Decision No. 171-C-A-2007

April 11, 2007

File No. M4120-3/06-50845

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Complaint

[1] On November 24 and December 12, 2006, Robert Primeau filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title.

[2] Pleadings were opened on December 28, 2006, and they were closed on January 26, 2007.

Issues

[3] The issues to be addressed are:

1. whether Air Canada has properly applied the terms and conditions relating to failure to operate on schedule set out in the carrier's Canadian General Rules Tariff No. CGR-1 (hereinafter the Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR); and
2. whether the provision of Air Canada's Tariff regarding failure to operate on schedule is just and reasonable within the meaning of section 111 of the ATR.

Facts

[4] Mr. Primeau was scheduled to travel from West Palm Beach to Montréal via Toronto with Air Canada on November 6, 2006. On that day, Air Canada's Flight No. AC937 from West Palm Beach to Toronto was redirected to Tampa, Florida to pick up passengers that were stranded due to the mechanical breakdown of the aircraft on which they were to travel. As a result of the delay caused by the diversion, Mr. Primeau missed his connecting flight from Toronto to Montréal. Air Canada subsequently transported Mr. Primeau on another flight from Toronto to Montréal. Mr. Primeau's arrival in Montréal was delayed by two hours.

Positions of the parties

[5] Mr. Primeau submits that as a result of missing the connecting flight to Montréal, he lost the land transportation to his final destination, stayed up all night and was only compensated 2500 Aeroplan points by Air Canada, as a goodwill gesture.

[6] Mr. Primeau states that Air Canada only advised passengers it would be diverting the flight to Tampa after the doors of the aircraft were closed, which he submits is appalling, as Air Canada was aware that the flight in Tampa had been stranded for five hours. Mr. Primeau adds that no offer was made to let passengers disembark, especially those that would likely miss their connecting flights in Toronto. He states that if he had been provided with the opportunity, he would have gotten off the aircraft and travelled the next day. Mr. Primeau adds that, in his opinion, Air Canada denied passengers the right of getting off the aircraft and of seeking alternate transportation because of the delay that unloading the luggage would have caused, and because of other financial issues for the air carrier.

[7] Mr. Primeau asserts that it is unbelievable that Air Canada could divert a flight to an alternate destination for other than weather or mechanical reasons.

[8] Mr. Primeau maintains that the diversion of Air Canada's Flight No. AC937 qualifies as a "schedule change", as described in Air Canada's Tariff, and not as a "schedule irregularity", as defined by the Tariff. Mr. Primeau is of the opinion that Air Canada violated Rule 240AC, paragraph (D) of its Tariff, as it relates to schedule changes, by failing to provide him with the option of disembarking from the aircraft and requesting a refund of the unused ticket.

[9] Mr. Primeau requests that the Agency direct Air Canada to refund him the ticket price, at a minimum, and to change its Tariff to limit the air carrier's capacity to redirect a flight once the aircraft has departed from the gate to situations involving mechanical breakdowns, safety or weather that relate to the particular flight. Mr. Primeau maintains that, in the absence of these criteria, Air Canada should be required to disembark passengers who do not wish to travel on a flight that is to be diverted.

[10] Air Canada submits that the purpose of its stopover in Tampa was to pick up 75 passengers who were stranded due to an unforeseen mechanical breakdown of the aircraft on which they were to be carried. The carrier adds that the case at issue does not relate to a schedule change, but rather to a schedule irregularity, as the arrival of the flight in Toronto was delayed, causing Mr. Primeau to miss his connection from Toronto to Montréal, and such flight disruption occurred on the day of departure. Air Canada adds that its sole obligation in such circumstances is to transport the passenger without stopover on the next available flight and in the same class of service as the passenger's original flight, and that the carrier fulfilled this obligation by carrying Mr. Primeau on Air Canada's next available flight from Toronto to Montréal.

[11] Air Canada further submits that its Rule 240AC respecting schedule irregularities is fair and reasonable as it obliges the carrier to execute the contract of carriage despite the occurrence of a schedule irregularity.

[12] Air Canada adds that its Tariff also recognizes the applicability of the Montréal Convention, which sets out the liability of the carrier in cases of international transportation, and the passenger's recourses against the carrier. Air Canada adds that when a schedule irregularity occurs, the provisions contained in the Tariff ensure that the passenger will be transported to the final destination appearing on the ticket, and that if the passenger has suffered damages as a result of the delay caused, the Montréal Convention provides a mechanism under which the passenger can enforce his or her rights against the carrier.

Applicable legislative and regulatory provisions

[13] Subsection 110(4) of the ATR provides as follows:

(4) Where a tariff is filed containing the date of publication and the effective date and is consistent with these Regulations and any orders of the Agency, the tolls and terms and conditions of carriage in the tariff shall, unless they are rejected, disallowed or suspended by the Agency or unless they are replaced by a new tariff, take effect on the date stated in the tariff, and the air carrier shall on and after that date charge the tolls and apply the terms and conditions of carriage specified in the tariff.

[14] Section 113.1 of the ATR reads as follows:

113.1 Where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs, the Agency may

(a) direct the licensee to take corrective measures that the Agency considers appropriate; and

(b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.

[15] Section 111 of the ATR provides:

111.(1) All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just and reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic.

(2) No air carrier shall, in respect of tolls or the terms and conditions of carriage,

(a) make any unjust discrimination against any person or other air carrier;

(b) give any undue or unreasonable preference or advantage to or in favour of any person or other air carrier in any respect whatever; or

(c) subject any person or other air carrier or any description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatever.

(3) The Agency may determine whether traffic is to be, is or has been carried under substantially similar circumstances and conditions and whether, in any case, there is or has been unjust discrimination or undue or unreasonable preference or advantage, or prejudice or disadvantage, within the meaning of this section, or whether in any case the air carrier has complied with the provisions of this section or section 110.

[16] Section 113 of the ATR reads as follows:

113. The Agency may

(a) suspend any tariff or portion of a tariff that appears not to conform with subsections 110(3) to (5) or section 111 or 112, or disallow any tariff or portion of a tariff that does not conform with any of those provisions; and

(b) establish and substitute another tariff or portion thereof for any tariff or portion thereof disallowed under paragraph (a).

[17] The following provisions of the Montréal Convention are relevant to the present case:

Article 19 — Delay

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

Article 22 — Limits of Liability in Relation to Delay, Baggage and Cargo

1. In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4,150 Special Drawing Rights.

The Tariff provisions

[18] Rule 240AC of the Tariff, as it relates to failure to operate on schedule, states, in part, as follows:

[...]

(B) Definitions

For the purpose of this rule, the following definitions apply:

[...]

(8) Schedule irregularity includes any of the following which occurs [on] the day of departure, but does not refer to disruptions resulting from labour disturbances and/or strikes:

(a) Delay in scheduled departure or arrival of an AC flight resulting in a mis-connection; or

(b) Flight cancellation, omission of a scheduled stop, or any other delay or interruption in the scheduled operation of AC's flight; or

[...]

(C) Schedule Irregularity

(1) When a passenger will be delayed due to a scheduled irregularity involving an AC flight [...]

(a) AC will transport the passenger without stopover on its next available flight and in the same class of service as his original flight.

[...]

(D) Schedule Change:

In the event an AC schedule change requires the rerouting of a ticketed passenger, AC will:

(1) reroute the passenger without stopover on its next available flight and in the same booking class as his original flight: or,

(2) at the request of the passenger, reroute him without stopover on its next available flight in a different booking class [...]

(3) refund the ticket [or] unused coupon(s) in accordance with Rule 260 (REFUNDS - INVOLUNTARY).

Analysis and findings

[19] In making its findings, the Agency has carefully considered all of the evidence submitted by the parties during the pleadings. The Agency has also reviewed the terms and conditions of carriage specified in Air Canada's Tariff applicable to the present case.

1. Has Air Canada properly applied the terms and conditions relating to failure to operate on schedule set out in the carrier's Tariff, as required by subsection 110(4) of the ATR?

[20] Air Canada submitted that, on November 26, 2006, Flight No. AC937 experienced a schedule irregularity, as defined by Rule 240AC of the carrier's Tariff, in that the arrival of the flight in Toronto was delayed, causing Mr. Primeau to miss his connection from Toronto to Montréal, and the flight disruption occurred on the day of departure. Air Canada further submitted that it satisfied the requirements of the Tariff by carrying Mr. Primeau on Air Canada's next available flight from Toronto to Montréal.

[21] Mr. Primeau asserted that the diversion of Air Canada's Flight No. AC937 qualifies as a "schedule change", as described in Air Canada's Tariff, and that Air Canada violated Rule 240AC, paragraph (D), of its Tariff, as it relates to schedule changes, by failing to provide him with the option of disembarking from the aircraft and requesting a refund of the unused ticket.

[22] The Agency is of the opinion that based on the evidence on file, the interruption of the scheduled operation of Air Canada's Flight No. AC937 occurred on the day of departure of the flight. As such, the flight was subject to a schedule irregularity, as defined by Rule 240AC.

[23] Therefore, the Agency finds that Air Canada has properly applied the terms and conditions of its Tariff as, in accordance with Rule 240AC, Air Canada transported Mr. Primeau without stopover on its next available flight.

[24] With respect to the matter of Air Canada's liability under the Montréal Convention for damage caused by the delay of Flight No. AC937, the Agency notes that there is no evidence on file to indicate that Mr. Primeau suffered such damage.

2. Is Air Canada's Tariff provision regarding failure to operate on schedule just and reasonable within the meaning of section 111 of the ATR?

[25] Mr. Primeau maintained that it is unreasonable for Air Canada to be able to divert a flight to an alternate destination for other than weather or mechanical reasons. Mr. Primeau submitted that the Agency should direct Air Canada to change its Tariff to restrict the carrier's ability to redirect a flight once the aircraft has departed from the gate to situations involving mechanical breakdowns, safety or weather that relate to the particular flight. Mr. Primeau maintained that, in the absence of these criteria, Air Canada should be required to disembark passengers who do not wish to travel on a flight that is to be diverted.

[26] Air Canada's position is that Rule 240AC is reasonable as it obliges the carrier to execute the contract of carriage despite the occurrence of a schedule irregularity.

[27] The Agency is of the opinion that Air Canada's Tariff provisions relating to failure to operate on schedule provide the carrier with the flexibility that is essential to conduct business according to operational and commercial demands. The Agency also finds that these provisions are consistent with the practices of other carriers offering international scheduled services to and from Canada and that the Tariff provisions represent acceptable means to address passengers' needs when schedule irregularities occur.

[28] Accordingly, the Agency finds that, in this case, Rule 240AC is just and reasonable within the meaning of section 111 of the ATR.

Conclusion

[29] Based on the above findings, the Agency hereby dismisses the complaint.

Members

• Baljinder Gill
• Mary-Jane Bennett