Decision No. 145-C-A-2023

[1] The applicants purchased tickets to travel from Montréal, Quebec to Cancun, Mexico, departing at 1:30 pm on February 7, 2020. The flight was delayed and the applicants arrived in Cancun more than nine hours later than originally scheduled.

[2] The applicants seek compensation for inconvenience under the Air Passenger Protection Regulations (APPR). They also expressed dissatisfaction with the information provided to them by the respondent.

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether the respondent properly applied the terms and conditions applicable to the tickets that the applicants purchased, as set out in the respondent Tariff. The Tariff is a legal document that contains the terms, conditions and other rules that apply to the passenger's ticket. The APPR are incorporated into the Tariff by reference.

[4] If the Agency finds that the respondent failed to properly apply its Tariff, it may direct the respondent to take the corrective measures that it considers appropriate or to pay compensation for any expense incurred by a person adversely affected by its failure.

Delay

[5] Under the APPR, passengers are entitled to compensation for inconvenience if they arrive at their destination three or more hours later than scheduled due to a flight disruption within the carrier’s control.

[6] The applicants requested compensation for inconvenience from the respondent, but the respondent denied their claim on the basis that the delay was due to a technical issue with the aircraft and because of weather and therefore, the delay was within its control but required for safety purposes. The applicants are contesting this categorization of the delay because no crew members were present at the flight’s boarding gate at the scheduled departure time and because other flights took off despite the weather. Consequently, the applicants submit that the delay was due to crew unavailability.

[7] The respondent acknowledges that its decision to deny the applicants’ claim was unfounded, but for other reasons than what they suggested. The respondent explains that the applicants’ flight was in fact delayed because of the cumulative impacts of the poor weather conditions, including the need to repeat de-icing operations, impaired ground servicing activities and the expiry of crew duty time limits. Because the respondent used replacement crews available within the network and assigned the first available crew available — the one available for the applicants’ flight — to a flight departing earlier, the respondent submits that it took all reasonable measures to mitigate the impact of the delay. For these reasons, the respondent claims that the delay of the applicants’ flight was outside the respondent’s control and no compensation is due to the applicants.

[8] To support its position, the respondent provided historical weather data for Montréal on February 7, 2020, which attest that there was snow, wind gusts and low visibility. The respondent also points out that the applicants acknowledge that they left for the airport earlier because of the weather.

[9] Regarding the delay, the respondent provided the Daily Flight Schedule Report attesting that each of its flights from Montréal on February 7 was delayed. According to that document, the applicants’ flight was affected by a 39-minute ground delay and two additional delays of approximately 7 hours and 1 hour.

[10] In Decision 122-C-A-2021 (APPR Interpretive Decision), the Agency stated that the most significant contributing factor of the flight disruption (e.g. what caused the longest period of delay) is the appropriate test to determine the categorization of a flight disruption with multiple contributing reasons. In this case, this factor was evidently the one that caused the period of delay of approximately 7 hours, but neither the Daily Flight Schedule Report nor any evidence indicate whether this delay period was the one due to weather or the one due to the respondent’s decision to assign the crew assembled for the applicants’ flight to another flight departing earlier that day. While the Agency accepts that the weather was outside the respondent’s control, the Agency considers that the crew assignment, described by the respondent as an operational decision, was within the respondent’s control. Without knowing whether the most significant delay period was due to a decision within the respondent’s control, the Agency finds that the respondent did not demonstrate that the cancellation was outside its control.

[11] Therefore, the Agency finds that applicants are entitled to compensation for inconvenience in the amount of CAD 1,000 each, as set out in the APPR.

Communications

[12] The applicants are not satisfied with the information provided to them by the respondent regarding their flight’s delay. However, they do not claim expenses as a result of the respondent’s communications. Therefore, no remedy is available to the applicants.

[13] Since this incident, the Agency clarified in the APPR Interpretive Decision the regulatory requirements for carriers to provide clear, timely and accurate communications.

Order

[14] The Agency orders the respondent to compensate each applicant in the amount of CAD 1,000 as soon as possible and no later than November 23, 2023.

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Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Air Transportation Regulations, SOR/88-58	110(4); 113.1(1)
Air Passenger Protection Regulations, SOR/2019-150	19; 19(1)a)(iii)
Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada on the Other Hand, CTA(A) 3	2.1(g)