Decision No. 20-C-A-2022

[1] Fouzia Khalboubi purchased an Economy Basic round-trip ticket, for CAD 370.91, to travel between Winnipeg, Manitoba, and Saskatoon, Saskatchewan, departing on October 18, 2019, and returning on October 22, 2019. When attempting to board her outbound flight, Ms. Khalboubi was told that she could not travel without paying a fee for excess carry-on baggage. As Ms. Khalboubi did not pay before the boarding deadline, WestJet cancelled her ticket. Ms. Khalboubi claims that WestJet denied her boarding when it should have arranged for her to be able to travel.

[2] Ms. Khalboubi seeks the following:

• a refund of her cancelled WestJet ticket, in the amount of CAD 370.91;
• reimbursement for the replacement ticket that she purchased from Air Canada, in the amount of CAD 713.21; and
• unspecified amounts of compensation for her wasted time, inconvenience, and the allegedly disrespectful and discriminatory behaviour of WestJet’s personnel.

[3] In this decision, the Agency’s role is to decide whether WestJet properly applied its Tariff^{Note 1} to the ticket Ms. Khalboubi purchased. If the Agency finds that WestJet failed to do so, the Agency may direct it to pay compensation for any expenses incurred as a result of that failure.

[4] The Agency does not deal with matters such as wasted time or customer service issues. With respect to discrimination, the Agency has the authority to hear claims about travellers with disabilities and about discriminatory terms and conditions of carriage. It cannot decide claims about discriminatory behaviour. It notes, however, that Ms. Khalboubi may consider submitting a complaint to the Canadian Human Rights Commission, which investigates certain discrimination-related complaints under the Canadian Human Rights Act, RSC 1985, c H-6. The Agency will therefore not consider these parts of the application further.

[5] Ms. Khalboubi raises two issues related to the proper application of WestJet’s Tariff: whether she was required to pay for excess carry-on baggage and whether WestJet was entitled to cancel her reservation. The relevant provisions of the Tariff are set out in the Appendix.

[6] Consistent with the information in the check-in email provided by Ms. Khalboubi, Rule 55(B)(3)(b) of the Tariff states that all passengers, regardless of fare class, may carry on one piece of baggage and one personal item. Baggage and personal items in excess of that allowance or larger than the maximum sizes set out in Rule 55(B)(3)(d) will be checked at the gate for a fee of CAD 100. Ms. Khalboubi does not dispute WestJet’s statement that she arrived at the boarding gate with multiple pieces of carry‑on baggage, including an oversized, hard-sided roller bag. Therefore, the Agency finds that Ms. Khalboubi was required to pay a fee to gate-check her excess baggage. The Agency further accepts WestJet’s undisputed statement that it was unable to accept Ms. Khalboubi’s eventual attempt to pay in cash because the Winnipeg airport is cashless.

[7] Consistent with subsection 1(3) of the APPR^{Note 2}, Rule 95 of the Tariff defines denied boarding as occurring when a flight is overbooked. Based on the Post-Flight Manifest and Gate Events Tracker provided by WestJet, the Agency finds that the flight at issue was not overbooked and, therefore, accepts WestJet’s argument that Ms. Khalboubi was not denied boarding but rather refused transportation. The APPR does not apply to situations of refusal to transport.

[8] Rule 105(A)(5) of the Tariff states that WestJet will refuse to transport passengers who fail to comply with the rules and regulations set out in its Tariff. Given that Ms. Khalboubi did not comply with Rule 55(B)(3) of the Tariff, the Agency finds that WestJet properly applied Rule 105(A)(5) when it refused to transport her on her outbound flight.

[9] According to Rule 105(C)(1) of the Tariff, the only recourse for passengers who are refused transportation is a refund of the value of the unused portion of their ticket, as set out in Rule 125(B). Rule 125(B)(1) states that such refunds are not subject to the fare rules. The Agency finds, therefore, that WestJet did not properly apply Rule 105(C)(1) when it failed to refund the fare and charges paid for Ms. Khalboubi’s unused ticket. Consequently, the Agency finds that a refund of that amount is owed to Ms. Khalboubi.

[10] However, the Agency finds that Ms. Khalboubi is neither entitled to compensation for inconvenience nor reimbursement for the cost of her replacement ticket with Air Canada, as it was incurred as a result of the justified refusal to transport as opposed to WestJet’s failure to apply Rule 105(C)(1).

[11] In light of the above, the Agency orders WestJet to refund Ms. Khalboubi CAD 370.91 for the cost of her WestJet ticket. This amount is to be paid as soon as possible and no later than March 30, 2022.
 

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APPENDIX TO DECISION NO. 20-C-A-2022

Canada Transportation Act, SC 1996, c 10

67(3) 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.

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67.1 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.

Local Domestic Tariff

Rule 55: Baggage Acceptance

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(B) General Conditions of Acceptance of Checked and Unchecked Baggage

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3. Unchecked Baggage (Carry-on Baggage)

1. Unchecked Baggage must be within the Carrier’s size and weight limits to be taken onboard the aircraft
2. Each Guest may have one (1) piece of Unchecked Baggage (carry on item) and one (1) personal item.
3. In all cases, the items may not exceed the applicable measurements outlined below:
4. Unchecked Baggage: WestJet aircraft maximum size of 53 cm x 23 cm x 38 cm (21 in. x 9 in. x 15 in.), WestJet Link maximum size of 21.5” X 15.5” X 9” (55 cm X 40 cm X 23 cm). Personal item: Maximum size of 41 cm x 15 cm x 33 cm (16 in. x 6 in. x 13 in.)
5. Kennel: Maximum size of 41 cm x 21.5 cm x 25 cm (16 in. x 8.5 in. x 10 in.)
6. In the interest of Guest safety within the cabin, the Carrier, in its sole discretion, may check any Unchecked (Unchecked) Baggage for any or no reason.
7. All Unchecked Baggage must be stored in an overhead bin or placed completely under the seat directly in front of the Guest.
8. Guests should contact the Carrier or review its Web site for more information about which objects are not suitable for carriage as Checked Baggage and will only be accepted for transportation in the Guest cabin of the aircraft upon prior agreement with the Carrier

Any item larger than the carry-on baggage size and any item above the carry-on and personal item allowance will be checked to your final destination. For travel on or after December 3, 2018, a gate checked baggage fee of $100 CAD/USD will apply.

Rule 95: Denied Boarding and Overbooking

Note: In the case of Code-share, Guests are advised that the denied boarding rules applicable to their transportation are those of the carrier identified on your Ticket and not of the carrier operating the Flight.

When the Carrier is unable to provide previously confirmed space due to there being more Guests holding confirmed Reservations and Tickets than for which there are available seats on a Flight, the Carrier will follow the provisions of this rule, unless as otherwise provided in other applicable foreign legislation.

(A) Applicability

1. This rule applies to all Guests irrespective of the type of Ticketed Fare.

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Rule 105: Refusal To Transport

(A) Refusal to Transport - Removal of Guest

The Carrier will refuse to transport, or will remove any Guest at any point for any of the following reasons:

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5. Failure to Comply with Carrier’s Rules and Regulations

When the Guest fails or refuses to comply with rules and regulations of the Carrier as stated in this Tariff.

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(C) Recourse of the Guest/Limitation of Liability

1. The Carrier’s liability in case of refusal to carry a Guest for a specific Flight or removal of a Guest en route for any reason specified in the foregoing paragraphs will be limited to the recovery of the refund value of the unused portion of the Guest’s Ticket in accordance with Rule 125(B), Involuntary Refunds.

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Rule 125: Refunds

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(B) Involuntary Refunds

1. Involuntary refunds are not subject to any restrictions contained in the applicable Fare rule.

2. The amount of the involuntary refund will be as follows:

1. If, no portion of a Ticket has been used, the amount of refund will be equal to the Fare and charges paid; or
2. If, a portion of the Ticket has been used, the amount refunded to the purchaser will be the difference between the Fare paid and the Fare for transportation actually used or to be used.

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