Decision No. 21-C-A-2022

[1] Michael Kuhlmann purchased round-trip tickets to travel from Toronto, Ontario, to Denver, Colorado, departing on February 14, 2020, and returning on February 17, 2020. His return flight was delayed and cancelled. He was rebooked on another flight the next day.

[2] Mr. Kuhlmann seeks compensation in the amount of CAD 5,000, which he states represents the income he lost after missing a day of work.

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether Air Canada properly applied its Tariff^{Note 1} to the ticket Mr. Kuhlmann purchased. The relevant provisions of the Tariff are set out in the Appendix.

[4] If the Agency finds that a carrier has failed to properly apply its tariff, it may direct the carrier to take the corrective measures it considers appropriate or to pay compensation for any expenses incurred by a person adversely affected by its failure. However, the Agency does not have jurisdiction to order compensation for loss of income.

[5] Under the APPR^{Note 2} , incorporated into the Tariff in Rule 5(C), passengers may be entitled to compensation for inconvenience if they experience a flight delay or cancellation within the carrier’s control. The monetary compensation under these circumstances is described in Section 19(1) of the APPR. This entitlement is set out in Rules 80(B)(1) and 80(B)(3)(d) of the Tariff.

[6] The APPR does not entitle passengers to this compensation if the flight delay or cancellation was outside Air Canada’s control or required for safety purposes as set out in Rule 80(B)(3)(e) of the Tariff.

[7] In this case, Mr. Kuhlmann’s return flight was initially delayed by 2 hours and 17 minutes awaiting the arrival of the inbound aircraft. It was subsequently cancelled because de‑icing fluid had leaked into the cockpit window during de-icing. Air Canada rebooked Mr. Kuhlmann on another flight the next day, resulting in him arriving at his final destination 16 hours and 38 minutes late. Air Canada categorized this overall delay as within its control, but required for safety purposes, and therefore refused to pay compensation for inconvenience.

[8] Mr. Kuhlmann claims that the incident that occurred during de-icing was due to the pilot leaving the cockpit window open, such that Air Canada should be held liable. Air Canada states that de-icing fluid leaked onto the pilot’s microphone module, and that this resulted in a cancellation that was required for safety purposes.

[9] In this case, the flight reports provided by Air Canada indicate that de-icing fluid leaked into the flight deck, which led to the aircraft being pulled from service. The Agency considers this to have been an unexpected aircraft malfunction that affected the safe operation of the flight. The Agency therefore finds that the resulting cancellation was more likely than not within Air Canada’s control but required for safety reasons.

[10] As a result, the Agency finds that Air Canada properly applied the terms and conditions set out in its Tariff when it refused to pay compensation for inconvenience to Mr. Kuhlmann. Further, the Agency notes that Mr. Kuhlmann does not seek a remedy that would require a determination of whether Air Canada properly applied its other terms and conditions of carriage set out in its Tariff.

[11] Therefore, the Agency dismisses the application.
 

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APPENDIX TO DECISION NO. 21-C-A-2022

Air Transportation Regulations, SOR/88-58

110(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.

…

113.1(1) If an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may, if it receives a written complaint, direct the air 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 that are applicable to the service it offers and that were set out in the tariff.

Air Passenger Protection Regulations, SOR/2019-150

Obligations when required for safety purposes

11(1) Subject to subsection 10(2), this section applies to a carrier when there is delay, cancellation or denial of boarding that is within the carrier’s control but is required for safety purposes.

…

Delay

(3) In the case of delay, the carrier must

(a) provide passengers with the information set out in section 13;

(b) if a passenger is informed of the delay less that 12 hours before the departure time that is indicated on their original ticket, provide he
     standard of treatment set out in section 14; and

(c) if the delay is a delay of three hours or more, provide alternate travel arrangements or a refund, in the manner set out in section 17, to
     a passenger who desires such arrangements.

Cancellation

(4) In the case of a cancellation, the carrier must

(a) provide passengers with the information set out in section 13;

(b) if a passenger is informed of the cancellation less than 12 hours before the departure time that is indicated on their original ticket,
     provide the standard of treatment set out in section 14; and

(c) provide alternate travel arrangements or a refund in the manner set out in section 17.

….

Compensation for delay or cancellation

19(1) If paragraph 12(2)(d) or (3)(d) applies to a carrier, it must provide the following minimum compensation:

(a) in the case of a large carrier,

(i) $400, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by three hours or
    more, but less than six hours,

(ii) $700, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by six hours or
     more, but less than nine hours, or

(iii) $1,000, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by nine hours or
     more;

….

International Passenger Rules and Fares Tariff AC2 containing Local Rules, Fares & Charges on behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, CTA 458 (Tariff)

Rule 5 Application of Tariff

….

(C)  Air Passenger Protection Regulations (“APPR”)

(1) The obligations of the carrier under appr form part of this tariff and supersede any incompatible or inconsistent term and condition of
      carriage set out in the tariff to the extent of such inconsistency or incompatibility, but do not relieve the carrier from applying terms and
      conditions of carriage of this tariff that are more favorable to the passenger than the obligations set out in the APPR.

(2) For the purpose of APPR, Air Canada, Air Canada rouge and any airlines operating under the Air Canada Express banner are all
      considered a large carrier.

….

(E) Effective Rules, Fares and Charges

(1) All carriage of passengers and/or baggage shall be subject to the carrier’s rules, regulations, and tariffs in effect on the date of commencement of carriage covered by the first flight coupon of the ticket. For tickets issued for carriage between Canada and the U.S. and where required by local law or regulation, carriage of passengers and/or baggage shall be subject to the carrier’s rules, regulations, and tariffs in effects on the date of the ticket issuance.

….

Rule 80 Schedule Irregularities

….

(B)  Schedule Irregularity

This rule only applies to flights operated by Air Canada, Air Canada Express and Air Canada Rouge.

(1) Applicable law

In the case of a delay or cancellation (“Schedule Irregularity”), Air Canada shall comply with APPR, including but not limited to what is stated below, unless applicable local law provides otherwise. If a passenger’s flight is delayed or cancelled in a jurisdiction other than Canada where another passenger rights regime applies, the passenger can only submit a compensation claim under one of the two regimes. Passengers may not receive compensation under one regime if they have already received compensation under another passenger rights regime for the same event.

….

(3) In the event of a Scheduled Irregularity that is within Air Canada’s control:,

…

d) Compensation

If, due to a delay or cancellation within Air Canada’s control, passenger arrives with a delay at arrival of three hours or more, Air Canada will provide compensation in accordance with APPR. Only the operating carrier will provide compensation;

e) A passenger is not eligible for delay or cancellation compensation under the APPR if:

i. the passenger was delayed at arrival for reasons outside Air Canada’s control or required for safety purposes, such as when the passenger’s flight was delayed or cancelled due to weather;

….