Decision No. 19-C-A-2020

SUMMARY

[1] The applicant has filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding a missed connection on a multi-city international itinerary marketed by Deutsche Lufthansa Aktiengesellschaft (Lufthansa German Airlines) [Lufthansa].

[2] The applicant is seeking a “sincere apology” and compensation for physical and emotional stress as well as for financial losses and expenses. The applicant is requesting a total of CAD 995.55 for expenses incurred as a result of the delay:

• Hotel accommodation in Montréal (Quebec), which includes cost of breakfast: CAD 231.60;
• Cab fare in Montréal: CAD 30;
• Rental car cancellation: CAD 80.30;
• Food and refreshments: CAD 130.45;
• Medical expenses: CAD 373.20;
• Lawyer’s fees due to cancelled business meeting: CAD 150.

[3] The Agency will address the following issue:

Did Air Canada properly apply the terms and conditions set out in Lufthansa’s International Passenger Rules and Fares Tariff No. LH-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Deutsche Lufthansa Aktiengesellschaft Lufthansa German Airlines Applicable to the Transportation of Passengers and Baggage Between Points in Canada/United States and Points in Area 1/2/3, NTA(A) No. 312 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Air Canada did not properly apply the Tariff, what remedies, if any, should be ordered?

[4] For the reasons set out below, the Agency finds that Air Canada properly applied the terms and conditions set out in Rules 80 and 55(A) of the Tariff as required by subsection 110(4) of the ATR. Consequently, the application is dismissed.

BACKGROUND

[5] On January 28 and 29, 2019, the applicant was scheduled to travel from Toronto, Ontario, to Belgrade, Serbia, via Montréal, Quebec, and Munich, Germany. The itinerary was a codeshare flight marketed by Lufthansa, with the first flight segment from Toronto to Montreal operated by Air Canada.

[6] There was a large snowstorm in Toronto on the date of the applicant’s travel. The applicant completed travel on Air Canada from Toronto to Montreal, but this flight was delayed over 6 hours, resulting in the applicant missing the connecting flight from Montréal to Munich. Upon arrival in Montreal late at night, Air Canada provided the applicant with a reprotection notice, with information on how to access reprotection services from Air Canada. However, the next day, the applicant contacted Lufthansa, the marketing carrier, and Lufthansa reprotected the applicant on a new route to Belgrade, connecting in Frankfurt, Germany. Overall, the applicant was delayed 24 hours in reaching Belgrade.

PRELIMINARY MATTERS

[7] The applicant seeks compensation for physical and emotional stress experienced as a result of the delay. The Agency may only award costs directly incurred by a passenger adversely affected by the carrier’s failure to apply the applicable tariff and may not make awards for pain or suffering as found in Decision No. 185-C-A-2003 (Yehia v. Air Canada) and Decision No. 18-C-A-2015 (Enisz v. Air Canada).

[8] Similarly, the applicant also requests an apology from Air Canada. The Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) does not give the Agency the power to order apologies. Accordingly, and consistent with the Federal Court of Canada’s decision in Canada (Attorney General) v. Stevenson, 2003 FCT 341, the Agency does not have jurisdiction to order the carrier to apologize to the applicant.

THE LAW AND RELEVANT TARIFF PROVISIONS

[9] The relevant provisions of the ATR and Lufthansa’s Tariff are set out in the Appendix.

[10] It is well established that the marketing carrier’s tariff applies in a codeshare arrangement (Decision No. 68-C-A-2018, Gavryliuk v. Air Canada). Although Air Canada refers to its own tariff in its answer, Lufthansa’s tariff applies to the applicant’s flight. As a result, the tariff referred to in this Decision is Lufthansa’s tariff for its international scheduled service.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicant

[11] The applicant argues that Air Canada is responsible for the missed connecting flight in Montréal. The applicant claims to have been informed at one point in Toronto that the flight was being delayed because it was waiting for the flight crew. The applicant submits that it was clear in Toronto that the connecting flight in Montréal would be missed. The applicant argues that more assistance should have been offered by Air Canada in Montréal, such as meal vouchers, hotel vouchers, and a boarding pass for onward flights.

[12] The applicant claims to have spoken to a “Montreal airport clerk” at the Montréal airport around 2:00 a.m. on January 29, 2019, who advised him to call Lufthansa the next day to rebook new flights because the first Lufthansa flight was 16 hours later and the reprotection notice stated that the number provided was for rebooking Air Canada flights. The applicant claims to have tried to call the phone number provided by Air Canada at approximately 2:30 a.m., but the estimated wait time was 35 minutes, so the applicant proceeded to arrange hotel accommodation instead.

Air Canada

[13] Air Canada submits that the flight delay was caused by a significant snowstorm that occurred on the date of travel and resulted in widespread service disruptions to Air Canada’s flight schedule. As a result, the delay was outside of its control. According to Air Canada, the poor weather conditions contributed to the delay in multiple ways, including a slowdown in ramp activities at the airport and the delayed arrival of the flight crew from another flight that was also impacted by the poor weather. Finally, the flight was further delayed due to poor conditions on the tarmac.

[14] Air Canada submits that this storm was forecast several days in advance and that it emailed a notice to the passengers, including the applicant, the day before the storm. This notice advised passengers of expected flight disruptions and it set out Air Canada’s offer to waive flight change fees if they wished to reschedule to avoid the storm. Air Canada also argues that it provided a reprotection notice to the applicant upon his arrival in Montréal, which included the phone number to reach Air Canada’s reservations department to rebook flights.

[15] According to Air Canada, the applicant never contacted it to rebook the flights and instead chose to contact Lufthansa the next day. Lufthansa reprotected the applicant on the next available itinerary to Belgrade, just as Air Canada would have done if it had been given the opportunity to do so. Air Canada argues that it cannot be held responsible for the applicant’s failure to contact it at any point.

[16] With respect to the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), Air Canada argues that it took all reasonable measures to avoid the damage. Air Canada also argues that it is exonerated from liability pursuant to Article 20 of the Montreal Convention because the applicant acted carelessly by not contacting Air Canada to be reprotected on alternative flights. Air Canada asserts that the applicant did not justify all of the claimed expenses and failed to mitigate the damages. Specifically, the applicant did not call the phone number provided in Montréal that would have offered a preferred hotel rate.

Findings of fact

[17] Upon review of the information from Air Canada’s system for the delayed flight and the meteorological data provided by the carrier, the Agency finds that the main cause of the delay was the snowstorm. Consequently, the Agency finds that the cause of the flight delay was outside the carrier’s control.

[18] It is undisputed that the delay of the Toronto–Montreal flight resulted in the missed connecting flight to Munich.

ANALYSIS AND DETERMINATIONS

[19] The onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in the tariff.

Rule 80 – Revised routings, failure to carry and missed connections

[20] Rule 80(B) of the Tariff sets out what the carrier will do in the case of a schedule irregularity, and Rule 80(C) of the Tariff applies in the particular case of missed connections. Neither Rules 80(B) nor 80(C) explicitly limits rerouting on other carriers to the carrier’s own services, including in cases when the schedule irregularity is outside the carrier’s control. Rule 80(C) requires the delivering carrier, in this case, Air Canada, to either arrange alternate transportation for the passenger who missed their connection or to provide the passenger with a refund.

[21] In this case, when the applicant missed the connection in Montréal, Air Canada provided a reprotection notice, including instructions on how to arrange for rebooking either electronically or by phone. The Agency notes that this notice did not specifically address what to do in the case of code-shared flights, and it would have been preferable if it had done so. However, Air Canada provided choices in the manner in which passengers could access this service, and the Tariff does not specify the manner in which flight reprotection will be done. Although the applicant initiated a call with Air Canada, he chose not to complete the call due to a 35-minute wait. Instead, the applicant chose to seek assistance from the marketing carrier, Lufthansa, the following day.

[22] In any event, Lufthansa arranged for the applicant to travel on the next available itinerary to Belgrade. As the delivering carrier, Air Canada offered reprotection services to the applicant. The applicant elected to seek reprotection from the marketing carrier, which was provided, as required by the Tariff.

[23] As a result, the Agency finds that Air Canada properly applied Rule 80 of the Tariff as required by subsection 110(4) of the ATR.

Montreal Convention – Article 19 – Delay

[24] Even in the case of a delay outside the carrier’s control, Article 19 of the Montreal Convention requires the carrier to take all reasonable measures to avoid the damage or to demonstrate that it was impossible for it to take such measures.

[25] The first measure that Air Canada took was to advise passengers of the forecasted storm and anticipated delays a day in advance of the storm.

[26] The applicant argues that it was clear in Toronto before the flight departed for Montréal that he was going to miss his connecting flight from Montréal to Munich. However, the applicant did not take any steps to approach Air Canada about his concerns regarding the connection. Rather, he took the flight to Montréal.

[27] Once the applicant arrived in Montréal and had missed the connecting flight, Air Canada made reprotection services available by phone and electronically. Although the applicant called the number provided by the carrier for rebooking services, he chose not to complete the phone call due to a 35-minute wait. The applicant then chose to approach Lufthansa, the marketing carrier, and Lufthansa reprotected him on the next available itinerary.

[28] The Agency notes that Air Canada was experiencing widespread service disruptions with a large volume of passengers likely in need of reprotection at the time of the applicant’s travel. As a result, the Agency finds that the steps taken by the carrier to contact the applicant were reasonable under the circumstances. Although he did not use the reprotection services offered by Air Canada, it took all reasonable measures by making those services available to him.

[29] Consequently, the Agency finds that Air Canada took all reasonable measures to avoid the damage. As a result, the applicant is not entitled to expenses under the Montreal Convention. Accordingly, the Agency finds that Air Canada properly applied the terms and conditions set out in Rule 55(A) of the Tariff as required by subsection 110(4) of the ATR.

CONCLUSION

In light of the above, the application is dismissed.

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APPENDIX TO DECISION NO. 19-C-A-2020

THE LAW AND RELEVANT TARIFF PROVISIONS

Air Transportation Regulations, SOR 88-58, as amended (ATR)

Subsection 110(4) of the ATR requires that an air carrier operating an international service apply the terms and conditions of carriage set out in the tariff.

If the Agency finds that an air carrier has failed to properly apply the tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to:

(a)  take the corrective measures that the Agency considers appropriate; and
(b)  pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and
      conditions set out in the tariff.

International Passenger Rules and Fares Tariff No. LH-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Deutsche Lufthansa Aktiengesellschaft Lufthansa German Airlines Applicable to the Transportation of Passengers and Baggage Between Points in Canada/United States and Points in Area 1/2/3, NTA(A) No. 312 (Tariff)

Rule 55(A) of the Tariff incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention:

For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.

Rule 80(B) of the Tariff reads:

In the event carrier cancels a flight, fails to operate according to schedules, substitutes a different type of equipment or different class of service, or is unable to provide previously confirmed space … carrier will either:

(1)  Carry the passenger on another of its passenger aircraft on which space is
       available; or
(2)  Endorse to another carrier or to any other transportation service the unused
      portion of the ticket for purposes of rerouting; or
(3)  Reroute the passenger to destination named on the ticket or applicable portion thereof by its own services or by other means of
       transportation; and, if the fare, excess baggage charges and any applicable service charge for the revised routing is higher than
       the refund value of the ticket or applicable portions as determined from Rule 90 (REFUNDS) herein, carrier will require no
       additional payment from the passenger, but will refund the difference if the fare and charges for the revised routing are lower, or

….

Rule 80(C) of the Tariff specifically addresses the circumstances when an applicant misses a connecting flight due to a schedule irregularity:

In the event a passenger misses an onward connecting flight on which space has been reserved for him/her because the delivering carrier did not operate its flight according to schedules, or changed the schedule of such flight, the delivering carrier will arrange for the carriage of the passenger or make involuntary refund in accordance with Rule 90 (REFUNDS) herein.

Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention)

Article 19 of the Montreal Convention states that:

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 20 is a defence available to the carrier to exonerate it in whole or in part from liability:

        If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person
        claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its
        liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage....