Decision No. 17-C-A-2014

INTRODUCTION

[1] Daniel Pfeifer on behalf of himself, his daughter and Connie Nghien (complainants) filed a complaint with the Canadian Transportation Agency (Agency) against Sunwing Airlines Inc. (Sunwing) alleging that they could not travel on Sunwing’s Flight No.WG602 from Toronto, Ontario, Canada to Cayo Coco, Cuba on May 29, 2012, as they were denied boarding due to overbooking.

ISSUE

[2] Did Sunwing properly apply its terms and conditions concerning cancellation, change and refunds, and responsibility for schedules and operations specified in its International Scheduled Services Tariff, CTA(A) No. 2 (Tariff) as required by subsection 110(4) of the Air Transportation Regulations, SOR/88‑58, as amended (ATR)?

POSITIONS OF THE PARTIES

The complainants

[3] The complainants submit that they arrived at the check-in counter 1.5 hours prior to the scheduled departure time of their flight and that they were told by an agent that they could not travel as their flight was overbooked.

[4] The complainants indicate that Sunwing offered to reschedule them on a later Sunwing flight but that they would have to pay “again for the flight out”.

[5] The complainants submit that while still at the airport, they contacted Sunwing by telephone and were asked by the representative with whom they spoke, to send an e-mail to Sunwing to explain the issue, which they did. The complainants state that as they were not satisfied with Sunwing’s response, they contacted Sunwing by telephone many times before finally receiving a response from Sunwing advising that no remedy would be offered.

[6] The complainants request an explanation, compensation and a refund from Sunwing.

Sunwing

[7] Sunwing denies the facts as alleged in the complaint. Sunwing advises that the complainants failed to present themselves for check in and as such, they were recorded as “No-Show” passengers in the Quality Control Message for Flight No. WG602, which was filed with the Agency.

[8] Sunwing submits that its policy in the event that a passenger is denied boarding is that a Passenger Denial Report must be generated, with specific information recorded as to why the denied boarding transpired with corresponding timelines. Sunwing advises that such a report was not generated with respect to the complainants as they did not present themselves at check in for their flight.

[9] Sunwing denies the allegation that Flight No. WG602, scheduled to depart at 3:35 p.m. on May 29, 2012, was overbooked as the Quality Control Message for the flight, which was generated once the aircraft had departed from the gate in line with Sunwing’s standard procedure, shows that 147 passengers plus 4 infants were on board, leaving 42 available seats from the maximum capacity possible of 189 passengers.

[10] Sunwing also submits that the booking notes relating to the complainants’ booking, which were filed with the Agency, show that at 3:34 p.m. on the day of the flight at issue, Mr. Pfeifer called Sunwing Vacations Sales Centre to advise that he and his family were going to miss their flight from Toronto to Cayo Coco, and to request that Sunwing not cancel their return flight or their hotel accommodation.

The complainants

[11] The complainants, in their reply, dispute the assertions set out in Sunwing’s answer, asking specifically that if they did not wish to travel, why would they have purchased tickets in the first place. They also imply that purchasing another ticket would have been unreasonable. Finally, they dispute the existence of empty seats on the aircraft at the time of departure.

ANALYSIS AND FINDINGS

[12] When a complaint such as this one is filed with the Agency, the complainants must, on a balance of probabilities, establish that the air carrier has failed to apply, or has inconsistently applied, terms and conditions of carriage appearing in the applicable tariff.

[13] For this case, the onus is on the complainants, as they are making the allegations, to convince the Agency, on a balance of probabilities, that they presented themselves at the check-in counter on time. This is the key element of the case they must make.

[14] They have a greater burden of proof than simply making assertions or statements, they must present facts and prove these facts. Furthermore, they must do so with the best evidence. As mentioned in Decision No. 348-C-A-2008 (Bernier vs Air Transat), this best evidence can be presented in several ways: testimonies, corroborations, admission, production of materials, etc.

[15] The Agency notes that Sunwing’s Tariff provides that check-in counters are open three hours prior to the scheduled departure and will close 60 minutes before scheduled departure, and that passengers arriving for check in after 60 minutes prior to the scheduled departure will not be accepted for travel.

[16] In order to decide the issue, the Agency must determine when the complainants presented themselves at the check-in counter. If they did not present themselves at the check-in counter or arrived after the cut-off set out in the Tariff, their case and claim for any compensation fail.

[17] The Agency notes that the parties’ versions of events are completely contradictory.

[18] The complainants allege that they arrived at the check-in counter 1.5 hours prior to the scheduled flight departure and were denied boarding because their flight was overbooked; however, they have filed no evidence at all to support this position.

[19] Sunwing, on the other hand, submits that the complainants were simply “No-Show”. In support of this submission, Sunwing filed a document reporting that, on May 29, 2012 at 3:34 p.m., i.e., one minute prior to the scheduled departure time of Flight No. WG602, Mr. Pfeifer called Sunwing Vacations Sales Centre to advise that he and his family would miss their flight from Toronto to Cayo Coco. This late announcement, literally a “last minute” call by Mr. Pfeiffer to Sunwing personnel, can in no way be viewed as meeting the Sunwing Tariff requirement that the passengers present themselves for check in no later than 60 minutes prior to scheduled departure. They did not present themselves for boarding and were, in the common industry expression, “No-Show”.

[20] With regard to the complainants’ allegation that Flight No. WG602 was overbooked, the Agency notes that Sunwing filed a copy of the report generated after the flight departure, which indicates that Flight No. WG602, on May 29, 2012, left with 42 available seats. The Agency also notes that, based on the 42 empty seats at departure set out in the business record provided by Sunwing, denied boarding due to overbooking, as claimed by the applicants, would be numerically impossible.

[21] In this case, the complainants failed to provide evidence that would lead the Agency to the fair and reasonable conclusion that they arrived at the check-in counter 60 minutes before the scheduled departure of Flight No.WG602 on May 29, 2012. On the other hand, Sunwing filed business records evidence to support its allegations that the complainants were “No-Show”.

[22] Therefore, the Agency finds that Sunwing has not contravened subsection 110(4) of the ATR in relation to this matter. Consequently, Sunwing is not required to compensate or refund the complainants.

CONCLUSION

[23] In light of the foregoing, the Agency dismisses the complaint.