Decision No. 20-C-A-2020

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Swoop, regarding the cancellation of his flight from Abbotsford, British Columbia, to Hamilton, Ontario, that was scheduled to depart on February 16, 2019.

[2] The applicant seeks compensation in the amount of CAD 341.68 for his travel on a replacement flight with Air Canada.

[3] The Agency will address the following issues:

• Did Swoop properly apply the terms and conditions set out in Rule 90(C)2.(c) of its Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and their Baggage Between Points in Canada and Points in Canada, CTA(A) No. 1 (Tariff), relating to schedule irregularities, as required by subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)?
• If Swoop did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, should be ordered?

[4] For the reasons presented below, The Agency finds that Swoop did not properly apply the terms and conditions set out in Rule 90(C)2.(c) of its Tariff because it did not offer the applicant the option of transportation from Abbotsford to Hamilton with another carrier when his flight was cancelled on February 16, 2019. However, because Swoop has already compensated the applicant for the cost of the replacement flight to Ontario, no further remedy will be ordered. The Agency therefore dismisses the application.

BACKGROUND

[5] The applicant purchased a roundtrip ticket from Abbotsford to Hamilton, departing at 10:20 a.m., Pacific Standard Time, on February 16, 2019, and returning on February 19, 2019.

[6] On February 16, 2019, at 1:46 a.m., Swoop sent a cancellation notice via e-mail to the applicant, which mentions that one or more of his flights had been cancelled due to crew shortages. It does not specify which flights were impacted.

[7] On the same day, the applicant consulted Swoop’s website and discovered that his flight was cancelled. He later found that the cancellation e-mail had been filtered to his junk e‑mail.

[8] The applicant called Swoop’s customer service, which offered him a full refund or a replacement flight departing on February 18, 2019. Swoop informed the applicant that the only other flight departing before that date was fully booked.

[9] The applicant accepted a full refund from Swoop for his roundtrip ticket and purchased a replacement roundtrip ticket from Air Canada, at a cost of CAD 1,156.05.

[10] Swoop has refunded the applicant the full value of his tickets (CAD 420.82) and awarded him an additional CAD 393.53 in compensation.

PRELIMINARY MATTER

[11] The applicant refers to sections of the Air Passenger Protection Regulations, SOR/2019‑150 (APPR). The provisions of the APPR that require carriers to provide compensation for flight cancellation within their control came into effect on December 15, 2019. In this case, because these provisions were not yet in effect at the time the incident occurred, the applicant is not entitled to compensation pursuant to the APPR.

THE LAW AND RELEVANT TARIFF PROVISIONS

[12] The relevant provisions of the CTA and the Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicant

[13] The applicant states that he was travelling to Hamilton to meet his girlfriend in London for their anniversary. He was planning to stay there during the long weekend and to come back to Hamilton on the night of February 18, 2019, for his return flight the next morning.

[14] Since the replacement outbound flight offered by Swoop was departing on February 18, 2019, the applicant states that the time he would have had in London would have been too short and therefore decided to obtain a full refund.

[15] The applicant submits that Swoop did not offer him transportation with another carrier.

[16] The applicant seeks an additional amount of CAD 341.68, which would cover the full difference in fares that he had to pay to purchase the Air Canada return trip ticket.

Swoop

[17] Swoop acknowledges that the cancellation of the outbound flight was within its control and that it was obligated to cover the cost of an alternate carrier from Abbottsford to Hamilton. It submits that because the applicant’s return flight was not cancelled, it was not obligated to compensate the applicant for the changes he made in respect of this portion of the trip.

[18] Swoop adds that it was the applicant who asked to have the tickets for both of his flights refunded.

Findings of fact

[19] It is undisputed that Swoop did not offer the applicant an alternative outbound flight with another carrier when the applicant contacted the carrier on February 16, 2019. The parties also agree that Swoop refunded the full cost of the applicant’s original flight, and reimbursed him the price difference between his Swoop ticket to Hamilton and his Air Canada ticket to London.

[20] Based on Swoop’s uncontested assertion, the Agency finds that the applicant’s original return flight had not been cancelled by Swoop. Instead, his ticket for this flight was refunded at his request.

ANALYSIS AND DETERMINATIONS

[21] 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 its tariff.

[22] Swoop’s terms and conditions of carriage as they relate to schedule irregularities and rerouting options are set out in Rule 90(C)2 of its Tariff. According to this provision, in the case of a schedule irregularity, Swoop needs to present the passenger with the following options:

- Carry the passenger, within a reasonable amount of time, on another of its aircraft without additional charge;

- Reroute the passenger on its own transportation services within a reasonable amount of time;

- When other options have been deemed unacceptable, reroute the passenger on the transportation services of another transportation
   provider within a reasonable amount of time (at no additional costs); or

- Should the alternate transportation proposed by the carrier not meet the passenger’s satisfaction, Swoop will offer a refund equal to the
   fare and charges paid.

[23] The Agency finds that Swoop did not properly apply Rule 90(C)2(c) of its Tariff because it did not offer the applicant the option of transportation without any additional cost from Abbotsford to Hamilton with another carrier when his flight was cancelled on February 16, 2019.

[24] However, the Agency also finds that Swoop went beyond its Tariff requirements when it compensated the applicant in the amount of CAD 393.53 to cover the cost of the replacement flight to London, in addition to refunding the cost of the original tickets (CAD 420.84). As a result, the applicant’s entire round trip cost him CAD 341.68, which is less than the cost of his original tickets.

CONCLUSION

In light of the above, the Agency finds that the carrier did not properly apply Rule 90(C)2.(c) of its Tariff, but because it has already refunded the cost of the full roundtrip ticket and compensated the applicant for the cost of his replacement flight to Ontario, no further remedy should be ordered. The Agency therefore dismisses the application.

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APPENDIX TO DECISION NO. 20-C-A-2020

Canada Transportation Act, S.C., 1996, c. 10, as amended

Subsection 67(3) states:

The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

Section 67.1 states:

If, on complaint in writing to the Agency by any person, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

(a)  apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;

(b)  compensate any person adversely affected for any expenses they incurred as a result of the licensee’s failure to apply a fare, rate,
      charge or term or condition of carriage that was set out in its tariffs; and

(c)  take any other appropriate corrective measures.

Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and their Baggage Between Points in Canada and Points in Canada, CTA(A) No.1 (Tariff)

Rule 90(C) of the Tariff states in part:

1. Given that a passenger has a right to information on flight times and schedule changes, Swoop will make reasonable efforts to inform passengers of schedule irregularities and to the extent possible, the reason for the schedule irregularities.
2. In the event of a schedule irregularity, within the Swoop’s control, Swoop will present the passenger with the following options:

(a)  Carry the passenger to the destination named on the ticket, or applicable portion thereof, within a reasonable amount of time, on
       another of its passenger aircraft without additional charge or,

(b)  Reroute the passenger to the destination named on the ticket, or applicable portion thereof, on its own transportation services
      within a reasonable amount of time. If the fare for the revised routing is lower than the fare paid no refund is provided, if the fare
      is higher than the fare paid by the passenger, Swoop will require no additional payment from the passenger or,

(c)  In situations where other options have been deemed unacceptable, and in acknowledging that Swoop offers leisure focused
      service from secondary airports with limited alternate options, re-route the passenger in the same class of service to the
      destination named on the ticket, or applicable portion thereof, on the transportation services of another transportation provider
      within a reasonable amount of time. If the fare is lower no refund is provided, and if the fare for the revised routing is higher than
      the fare paid by the passenger, Swoop will require no additional payment from the passenger or,

(d)  Otherwise, should the alternate transportation proposed by the Carrier not meet the Passenger’s satisfaction, Swoop will offer a
      refund equal to the Fare and charges paid. The refund will be made to the purchaser of the ticket(s). The form of refund will be
      the same form used as payment of the ticket(s). The refund will be based on the total value of the ticket(s). For complete
      conditions on refunds see rule 125.

                   In addition to the above, the Carrier will always consider the needs of the Passenger on a case by case basis and take
                   into account all known circumstances to avoid or mitigate the damages caused by the schedule irregularity within woop’s control;

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