Decision No. 24-C-A-2016

INTRODUCTION

[1] On September 17, 2015, Norman Camerman filed an application with the Canadian Transportation Agency (Agency) against United, regarding his denied boarding for Flight No. UA3626 departing from Toronto, Ontario, Canada to Honolulu, Hawaii, United States of America via Denver, Colorado, United States of America.

[2] Mr. Camerman requests the same USD$1300 in denied boarding compensation that United provides to passengers scheduled to depart from American airports. He also alleges that the denied boarding compensation policy set out in United’s tariff for flights originating in Canada versus flights originating in the United States of America is grossly unfair, unjust and discriminatory.

[3] The Agency opened pleadings on November 13, 2015. United acknowledged receipt of the application; however, it did not file an answer.

[4] As United did not file an answer, the Agency will make its decision based on the information provided by Mr. Camerman.

ISSUES

1. Did United properly apply the terms and conditions set out in Rules 25(A)(4)(c) and 25(A)(5)(b) of its International Passenger Rules and Fares Tariff, NTA(A) No. 361 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88‑58, as amended (ATR)?
2. Is United’s Tariff Rule 25(A)(4)(c), regarding denied boarding compensation for flights originating in Canada to a foreign point, reasonable within the meaning of subsection 111(1) of the ATR?

RELEVANT TARIFF AND STATUTORY EXTRACTS

[5] The applicable tariff provisions and statutory extracts relevant to this matter are set out in the Appendix.

POSITION OF MR. CAMERMAN

[6] Mr. Camerman claims that he was refused boarding on Flight No. UA3626 in Toronto, due to an aircraft weight problem and was offered a flight with Air Canada, departing seven and a half hours after his original flight.

[7] Mr. Camerman provided an e-mail dated March 31, 2015 in which United claims that the applicant was reaccommodated on an Air Canada flight, and was provided with USD$500 in electronic travel certificates.

[8] Mr. Camerman also provided an e-mail dated June 5, 2015 in which United submits that its policy regarding compensation for denied boarding on flights departing from Canada is CAD$300 per passenger for a delay exceeding four hours, and confirms that Mr. Camerman was given USD$500 (CAD$636) in compensation. According to United, this amount was double the required amount and exceeded the maximum compensation allowed.

ISSUE 1: DID UNITED PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULES 25(A)(4)(C) AND 25(A)(5)(B) OF ITS TARIFF, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

ANALYSIS AND FINDINGS

[9] When an application such as this one is filed with the Agency, the applicant must, on a balance of probabilities, establish that the carrier has failed to apply, or has inconsistently applied, terms and conditions of carriage appearing in the applicable tariff.

[10] Tariff Rule 25(A)(4)(c) provides, in part, that:

If UA offers Alternate Transportation that, at the time the arrangement is made, is planned to arrive at the Passenger’s Destination or first Stopover more than four hours after the planned arrival time of the Passenger’s original flight, UA shall pay compensation to Passengers denied boarding involuntarily from an Oversold Flight with a maximum of 300 CAD.

[11] Tariff Rule 25(A)(5)(b) provides that:

UA may offer free or reduced rate air transportation in lieu of a check payment due under this Rule, if the value of the transportation credit offered is equal to or greater than the monetary compensation otherwise due and UA informs the Passenger of the amount and that the Passenger may decline the transportation benefit and receive the monetary compensation.

[12] The Agency notes that, according to the e-mails provided by Mr. Camerman, United provided Mr. Camerman with compensation in the amount of USD$500 (CAD$636), which exceeds the amount required under Tariff Rule 25(A)(4)(c).

[13] In light of the foregoing, the Agency finds that Mr. Camerman has not established, on a balance of probabilities, that United did not properly apply the terms and conditions set out in Rules 25(A)(4)(c) and 25(A)(5)(b) of its Tariff, as required by subsection 110(4) of the ATR.

ISSUE 2: IS UNITED’S TARIFF RULE 25(A)(4)(c), REGARDING DENIED BOARDING COMPENSATION FOR FLIGHTS ORIGINATING IN CANADA TO A FOREIGN POINT, REASONABLE WITHIN THE MEANING OF SUBSECTION 111(1) OF THE ATR?

ANALYSIS AND FINDINGS

[14] To assess whether a term or condition of carriage is “unreasonable”, the Agency has traditionally applied a balancing test, which requires that a balance be struck between the rights of passengers to be subject to reasonable terms and conditions of carriage and the particular air carrier’s statutory, commercial and operational obligations.

[15] The terms and conditions of carriage are set out by an air carrier unilaterally without any input from passengers. The air carrier sets its terms and conditions of carriage on the basis of its own interests, which may have their basis in purely commercial requirements. There is no presumption that a tariff is reasonable.

[16] When balancing the passengers’ rights against the carrier’s obligations, the Agency must consider the whole of the evidence and the submissions presented by both parties, and make a determination on the reasonableness or unreasonableness of the term or condition of carriage based on which party has presented the more compelling and persuasive case.

[17] However, as stated in 426-C-A-2009">Decision No. 426-C-A-2009 (Alter v. Air Canada), the burden is ultimately on the complainant to provide evidence to demonstrate that the terms and conditions are unreasonable within the meaning of section 111 of the ATR.

[18] In this case, Mr. Camerman argued that he should be entitled to receive the same denied boarding compensation that United would have provided had his flight originated in the United States of America. However, Mr. Camerman provided no support or explanation for this position.

[19] Therefore,the Agency finds that Mr. Camerman has failed to discharge his burden to establish that Tariff Rule 25(A)(4)(c) is unreasonable and contrary to subsection 111(1) of the ATR.

CONCLUSIONS

Issue 1

[20] The Agency finds that United properly applied the terms and conditions set out in Rules 25(A)(4)(c) and 25(A)(5)(b) of its Tariff, as required by subsection 110(4) of the ATR.

Issue 2

[21] The Agency finds that Mr. Camerman failed to discharge his burden to establish that Tariff Rule 25(A)(4)(c) is unreasonable and contrary to subsection 111(1) of the ATR.

[22] The Agency dismisses the application.

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APPENDIX TO DECISION NO. 24-C-A-216

United’s International Passenger Rules and Fares Tariff, NTA(A) No. 361

Tariff Rule 25(A)(4)(c)

For passengers traveling from Canada to a foreign point, subject to the exceptions in section d) below, UA shall pay compensation to Passengers denied boarding involuntarily from an Oversold Flight originating at a Canadian airport with a maximum of 200 CAD if UA offers Alternate Transportation that, at the time the arrangement is made, is planned to arrive at the Passenger’s Destination or first Stopover more than one hour but less than four hours after the planned arrival time of the Passenger’s original flight. If UA offers Alternate Transportation that, at the time the arrangement is made, is planned to arrive at the Passenger’s Destination or first Stopover more than four hours after the planned arrival time of the Passenger’s original flight, UA shall pay compensation to Passengers denied boarding involuntarily from an Oversold Flight with a maximum of 300 CAD.

Tariff Rule 25(A)(5)(b)

UA may offer free or reduced rate air transportation in lieu of a check payment due under this Rule, if the value of the transportation credit offered is equal to or greater than the monetary compensation otherwise due and UA informs the Passenger of the amount and that the Passenger may decline the transportation benefit and receive the monetary compensation.

Air Transportation Regulations, SOR/88-58, as amended

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.

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.