Decision No. 25-C-A-2020

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding the cancellation and delays of his flight from Toronto, Ontario, to Vancouver, British Columbia, on April 1, 2019.

[2] The applicant seeks EUR 600 in compensation for his delayed arrival, in accordance with Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (Regulation (EC) No 261/2004).

[3] The Agency will address the following issues:

• Does the Agency have the jurisdiction to apply Regulation (EC) No 261/2004? If it does, does this regulation apply to the application?
• Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and 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, NTA(A) No. 458 (Tariff), with regards to the cancellation and delays of the applicant’s flight, 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 terms and conditions set out in its Tariff, what remedy, if any, should be ordered?

[4] For the reasons set out below, the Agency finds that it has the jurisdiction to apply Regulation (EC) No 261/2004 and that this regulation does not apply in this case. The Agency also finds that Air Canada properly applied the terms and conditions set out in Rule 80 of its Tariff, relating to schedule irregularities, as required by subsection 110(4) of the ATR. Accordingly, the applicant is not entitled to compensation. The Agency, therefore, dismisses the application.

BACKGROUND

[5] The applicant purchased a round-trip ticket from Vancouver to Johannesburg, South Africa, with Air Canada. For his return flight on March 31, 2019, his itinerary included connections in Frankfurt, Germany, and Toronto. The Toronto to Vancouver segment of his itinerary was cancelled and, as a result, the applicant was delayed in his arrival in Vancouver. The applicant argues that because his trip included a segment from Europe, he should be entitled to EUR 600 as compensation for his delayed arrival, in accordance with Regulation (EC) No 261/2004. The applicant did not claim any expenses caused by the delay.

THE LAW AND RELEVANT TARIFF PROVISIONS

[6] The relevant provisions of the ATR and the Tariff are set out in the Appendix.

DOES THE AGENCY HAVE THE JURISDICTION TO APPLY REGULATION (EC) NO 261/2004? IF IT DOES, DOES THIS REGULATION APPLY TO THE APPLICATION?

Positions of the parties

THE APPLICANT

[7] The applicant claims that because he completed a segment of his trip from Frankfurt to Toronto through the European Union (EU), he should be eligible for compensation in the amount of EUR 600 under Regulation (EC) No 261/2004.

[8] The applicant argues that enforcement of Regulation (EC) No 261/2004 does not fall exclusively on European courts. The applicant argues that the Agency has been designated as a competent body for the enforcement of claims under Regulation (EC) No 261/2004. The applicant also challenges Air Canada’s claim that he is “forum shopping”, and states that Air Canada is aware that he is only seeking a resolution with the Agency.

AIR CANADA

[9] Air Canada argues that the Agency does not have the jurisdiction to enforce Regulation (EC) No 261/2004. Air Canada states that when a passenger seeks compensation under Regulation (EC) No 261/2004 or any other European law, they must seek this via the appropriate European courts. Air Canada states that the Agency has not been designated as a competent body for the enforcement of claims under Regulation (EC) No 261/2004, nor is it a national enforcement body of a EU Member State. Air Canada points out that the Agency has repeatedly recognized that it could not enforce Regulation (EC) No 261/2004, as the regulation was promulgated by a foreign authority, and cites Decision No. 432-C-A-2013 (Nawrot et al. v. Sunwing) and Decision No. 49-C-A-2016 (Lukács v. British Airways).

[10] Air Canada explains that the applicant has already brought this case to the appropriate German alternative dispute resolution provider, and states that serial forum shopping is unfair. Air Canada argues that the applicant cannot opt for both fora, as this may undermine the principle of comity and administrative justice by creating the potential for contradictory results and the unnecessary duplication of the proceedings.

Analysis and determinations

[11] Although Air Canada argues that the Agency does not have the jurisdiction to consider EU regulations, in Decision No. 34-C-A-2018 (Bencker v. Icelandair), the Agency found that the applicant was entitled to compensation under Regulation (EC) No 261/2004 as it was incorporated into the carrier’s tariff. In Decision No. 53-C-A-2019 (Falk et al. v. Air Canada), the Agency found that to the extent that a foreign instrument is expressly incorporated into the tariff, the Agency has the authority to consider it.

[12] Rule 80(C)(2) of Air Canada’s Tariff states that Air Canada will apply Regulation (EC) No 261/2004 for all flights departing from the EU and Switzerland. Therefore, while the Agency does not have the jurisdiction to enforce foreign legislation, it does have the jurisdiction to consider whether the carrier has properly applied its tariff which, in this case, requires it to consider whether Air Canada has complied with the obligations under its Tariff in respect of Regulation (EC) No 261/2004.

[13] However, in this case, the situation faced by the applicant is not within the scope of Rule 80(C)(2) of Air Canada’s Tariff because the applicant’s affected flight did not depart from the EU or Switzerland; it was a flight from Toronto to Vancouver.

[14] Thus, although the Agency finds that it does have the jurisdiction to apply Regulation (EC) No 261/2004 when it is incorporated into a carrier’s tariff, the section of Air Canada’s Tariff incorporating Regulation (EC) No 261/2004 does not apply in this case as the delays were for a flight between two points in Canada.

DID AIR CANADA PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF, WITH REGARDS TO THE CANCELLATION AND DELAYS OF THE APPLICANT’S FLIGHT, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR? IF AIR CANADA DID NOT PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF, WHAT REMEDY, IF ANY, SHOULD BE ORDERED?

Positions of the parties and findings of fact

THE APPLICANT

[15] The applicant claims that when he was departing the Frankfurt airport, he was informed that Flight No. AC119 was “on schedule and on time”, and that it would be departing at 2:00 p.m. from Toronto and arriving in Vancouver at 4:03 p.m. However, upon arriving in Toronto, the applicant claims that although his flight was listed on the departure boards, no gate number was assigned. He adds that he approached an agent to inquire about this and was told that the flight had been cancelled. The applicant argues that Flight No. AC119 to Vancouver was not tagged as “cancelled” as claimed by Air Canada; rather, it was only after the applicant approached Air Canada staff inquiring about the gate that the flight was cancelled. The applicant states that he was issued new tickets to board a flight scheduled to depart two hours later.

[16] The applicant submits that the new flight was also cancelled and that he was reprotected on another flight, Flight No. AC2121, which was scheduled for departure 2 hours later. He indicates that this flight then experienced more delays. The applicant submits that he finally boarded his flight to Vancouver at 7:30 p.m. and that, by the time he arrived in Vancouver, he had been delayed by more than 7 hours. The applicant claims that Air Canada did not do everything possible to mitigate his delayed arrival, and points out that there were other carriers operating flights from Toronto to Vancouver. To support this claim, the applicant provides an example of a WestJet flight that departed at 2:00 p.m.

[17] The applicant claims that he witnessed his “cancelled” flight, Flight No. AC123, depart from the gate beside him. The applicant speculates that he was likely “bumped” from this flight.

[18] The applicant argues that at no time did he consent to the change of his flights, nor was he notified of the changes before his flight as claimed by Air Canada. He argues that the cancellation and rescheduling of his flight was not related to “force majeure, including labour disruptions or strikes”, and that, therefore, the delays were not justified under the Tariff.

AIR CANADA

[19] Air Canada states that on March 13, 2019, Transport Canada issued a safety notice closing Canadian airspace to all Boeing 737 MAX aircraft until further notice. Air Canada submits that it was required to comply with this safety notice and immediately grounded all 24 Boeing 737 MAX aircraft in its fleet. Air Canada explains that this reduction in aircraft affected from 9,000 to 12,000 passengers on a daily basis. Air Canada argues that despite many efforts to maintain passengers’ schedules, many flights were cancelled, rerouted, or had itinerary and aircraft changes in order to accommodate passengers with as little disruption as possible. Air Canada submits that the Toronto to Vancouver itineraries in particular were severely impacted by the grounding.

[20] Air Canada claims that the applicant’s original Flight No. AC115 from Toronto to Vancouver was cancelled as a result of the grounding and that the applicant was automatically reprotected on the next available flight, Flight No. AC119, which resulted in a two-hour delay in departure from Toronto. Air Canada claims that it sent an e-mail to the applicant on March 24, 2019, informing him of this change. Air Canada states that the e-mail informed the applicant that, if he was unhappy with the updated itinerary, he could contact Air Canada Reservations to make changes free of charge. Air Canada adds that the applicant did not contact Air Canada.

[21] Air Canada states that upon arrival in Toronto on April 1, 2019, Flight No. AC119 was tagged as “cancelled” due to fleet constraints and maintenance issues, but was in fact renumbered twice (to Flight Nos. AC2119 and AC2121) and maintained the same departure time of 4:00 p.m.

[22] Air Canada states that Flight No. AC2121 then incurred a delay in departure of 3 hours and 44 minutes due to an unforeseen mechanical issue, rendering the aircraft scheduled to operate the flight unserviceable. Air Canada claims that the issue could not be fixed in time to operate Flight No. AC2121 and that a new aircraft had to be sourced.

[23] Air Canada indicates that the only available aircraft was inbound Flight No. AC188, which was scheduled to arrive in Toronto at 2:21 p.m., but unfortunately arrived at 5:52 p.m. due to a Pakistani airspace closure that delayed the previous leg of the itinerary from New Delhi to Vancouver. Air Canada states that Flight No. AC2121 departed from Toronto at 7:44 p.m., which is a 3 hour and 44 minute delay from the scheduled departure time of 4:00 p.m., and arrived in Vancouver at 9:30 p.m.

[24] Air Canada argues that Rule 80 of its Tariff with regards to schedule irregularities does not guarantee schedules but requires Air Canada to reprotect passengers should a flight be cancelled. Air Canada argues that the cancellation of all of its Boeing 737 MAX aircraft was due to uncontrollable and unexpected events. Air Canada adds that, as a result, the applicant was reprotected from Flight No. AC115 to Flight No. AC119 (later renumbered Flight No. AC2121), which was scheduled to depart only two hours after the departure time of the originally scheduled flight. Air Canada states that the applicant was notified of this itinerary change well in advance of his departure date and that he did not contact it to change the flight, thereby accepting the change. Air Canada asserts that it correctly applied Rule 80 of its Tariff by undertaking necessary measures to minimize the applicant’s inconvenience and reprotecting him on the next possible flight.

[25] Air Canada denies the applicant’s claim that it created “fictitious flights” in order to deceive its customers.

FINDINGS OF FACT

[26] The Agency finds that the closure of Canadian airspace to all Boeing 737 MAX aircraft is an unforeseeable circumstance not within the control of Air Canada. In the same vein, the Agency finds that the closure of Pakistani airspace is also an unforeseeable circumstance not within the control of Air Canada.

[27] The applicant argues that he was likely “bumped” from his Toronto to Vancouver flight, but has not provided any evidence to support this claim. The applicant claims that he witnessed his flight, Flight No. AC123, depart without him. However, Flight No. AC123 is not listed as his original flight, nor as any scheduled flight on his itinerary.

[28] The applicant also argues that he was not provided with advance notice of the change to his itinerary, from Flight No. AC115 to Flight No. AC119. Air Canada provided evidence that an e-mail was sent to the applicant on March 24, 2019, at 12:55 a.m. The applicant objects and provides evidence of an e-mail sent on March 31, 2019.

[29] The Agency finds that the applicant makes allegations based on speculations. In contrast, the Agency finds the evidence of Air Canada to be credible. As a result, the Agency makes the following findings of fact:

- the applicant’s original flight from Toronto to Vancouver, Flight No. AC115, was cancelled because of force majeure: the grounding of all Boeing 737 MAX aircraft;
- Air Canada reprotected the applicant on its next available flight, Flight No. AC119, which was scheduled to depart 2 hours later than the original flight;
- Air Canada informed the applicant of this change to his itinerary by e-mail on March 24, 2019, a week before his departure;
- the applicant’s scheduled flight, Flight No. AC119, was delayed because of unforeseen mechanical issues and then by the late arrival of the replacement aircraft, also due to force majeure: the Pakistani airspace closure; and
- the applicant was delayed in his arrival in Vancouver by 3 hours and 41 minutes.

Analysis and determinations

[30] 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.

[31] The applicant’s original flight, scheduled to depart from Toronto at 2:00 p.m. and arrive in Vancouver at 4:03 p.m., was cancelled because of the grounding of all Boeing 737 MAX aircraft a week before its intended departure.

[32] The applicant was automatically reprotected on Flight No. AC119, which was scheduled to depart at 4:00 p.m. the same day. However, this flight then experienced delays and renumbering until its departure 3 hours and 44 minutes later at 7:44 p.m.

[33] In the event of a schedule irregularity where a flight is delayed or cancelled, Air Canada’s obligations to its passengers are set out in Rule 80 of its Tariff, which states that schedules are not guaranteed and form no part of the contract of carriage, which applies to both cancelled and delayed flights. The applicant claims that he was informed by airline staff in Frankfurt that his flight departing from Toronto at 2:00 p.m. was on time, as scheduled. Regardless of what he may have been informed, Rule 80(A)(1) of the Tariff states that no employee is authorized to bind the carrier to any statements in regard to the dates or times of departure or arrival. Rule 80(A)(2) of the Tariff also states that Air Canada will not guarantee or be held liable for cancellations or changes to flight times that appear on passengers’ tickets due to force majeure.

[34] According to Rule 80(C)(4) of the Tariff, Air Canada’s obligations in the event of a schedule irregularity are to either reprotect passengers on another flight (whether placing them on another of its flights or on that of an alternate carrier, or rerouting passengers) or to provide passengers with a refund should they not be able to do so or if the passenger cancels his plans.

[35] The applicant argues that instead of being delayed by several hours, Air Canada could have placed him on an alternate carrier’s flight, as permitted by its Tariff, and provides evidence of a 2:00 p.m. WestJet flight that he could have been placed on. Although Air Canada may reprotect delayed passengers on alternate carriers’ flights (in the event of a cancellation within its control), it has the option, but not the requirement, to do so. Rule 80(C)(4)(f) of the Tariff outlines that Air Canada may consider reprotecting the passenger on another carrier’s flight if the passenger provides credible verbal assurance to Air Canada of certain circumstances that requires their arrival earlier than the other options provided. The applicant did not claim that he provided any argument or reason to Air Canada that he needed to be in Vancouver earlier for any reason other than convenience. In any event, in the absence of extraordinary circumstances, a two-hour delay in departure, which is known a week before departure, is reasonable such that the carrier should not be required to consider moving passengers to competitors’ flights. This is especially the case in the absence of any claims from the applicant of a need to arrive at his final destination for any urgent reason.

[36] The applicant was subject to a second schedule irregularity due to the delay of Flight No. AC119 because of mechanical issues. This flight was not cancelled, but renumbered to Flight No. AC2119, and then to Flight No. AC2121. Air Canada explains that it did everything that it could to minimize the delay, including using an alternate aircraft to complete the flight. However, Air Canada faced a delay in the arrival of its replacement aircraft due to the closure of Pakistani airspace, which is another instance of force majeure. Air Canada reprotected the applicant again, and the applicant experienced a 3 hour and 41 minute delay in his arrival in Vancouver. Therefore, the Agency finds that, in reprotecting the applicant on the next available flight both times, Air Canada properly applied the terms and conditions set out in its Tariff.

CONCLUSION

[37] Based on the above, the Agency finds that Air Canada properly applied the terms and conditions set out in its Tariff, relating to schedule irregularities, as required by subsection 110(4) of the ATR. Accordingly, the applicant is not entitled to compensation.

[38] The Agency dismisses the application.

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APPENDIX TO DECISION NO. 25-C-A-2020

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

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 its tariff.

If the Agency finds that an air carrier has failed to properly apply its 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. AC-2 Containing Local and Joint Rules, Regulations, Fares and 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, NTA(A) No. 458

RULE 80 SCHEDULE IRREGULARITIES

(A) GENERAL

(1)  Schedules not guaranteed. Times and aircraft type shown in timetables or elsewhere are approximate and not guaranteed, and form no part of the contract of carriage. Schedules are subject to change without notice. No employee, agent or representative of carrier is authorized to bind carrier by any statements or representation as to the dates or times of departure or arrival, or of the operation of any flight. It is always recommended that the passenger ascertain the flight’s status and departure time either by registering for updates on their electronic device, via the carrier’s web site or by referring to airport terminal displays.
(2)  Carrier not responsible
[C]arrier assumes no responsibility for passenger making connections not included as part of the itinerary set out in the ticket. Carrier is not responsible for changes, errors or omissions either in timetables or other representations of schedules. The carrier will not guarantee and will not be held liable for cancellations or changes to flight times that appear on passengers’ tickets due to force majeure, including labour disruptions or strikes. However, a passenger may invoke the provisions of the Convention regarding liability in the case of delay.
(3)  Best Efforts
Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch, but no particular time is fixed for the commencement or completion of carriage. Subject thereto carrier may, without notice, substitute alternate carriers or aircraft and may alter the route, add stopovers or omit the stopping places shown on the face of the ticket in case of necessity.

(B) OPERATING CARRIER TO ARRANGE ALTERNATE TRANSPORTATION

The carrier operating that flight that is experiencing the schedule irregularity will make the alternative transportation arrangements for the passenger and will apply its own tarmac delay contingency plan in the event of a tarmac delay.

(C) SCHEDULE IRREGULARITY

(1)  Definition

Schedule irregularity means any of the following:

(a)  Delay in scheduled departure or arrival of a carrier’s flight
(b)  Flight cancellation, omission of a scheduled stop, or any other delay or inter[r]uption in the scheduled operation of a carrier’s flight, or
(c)  Substitution of equipment or of a different class of service, or
(d)  Schedule changes which require rerouting of passenger at departure time of the original flight.

(2)  In the case of a schedule irregularity, AC shall implement the provisions of this rule, unless applicable local law provides otherwise. In particular, for flights departing from the following countries, Air Canada will apply the provisions of the following legislations: European [U]nion and Switzerland: EC [R]egulation No. 261/2004; Israel: Aviation Services Law (Compensation and Assistance for flight cancellation or change of conditions), 5772-2012. Turkey: Regulations on Air Passenger Rights (SHY-Passenger)
(3)  Given that passengers have a right to information on flight times and schedule changes, Air Canada will make reasonable efforts to inform passengers of delays, cancellations and scheduled changes and to the extent possible, the reason for the delay or change.
(4)  In the event of a scheduled irregularity, Carrier will either:
…

a) carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service; or, at carrier’s option;

b) endorse to another air carrier with which Air Canada has an agreement for such transportation, the unused portion of the ticket for purposes of rerouting; or at carrier’s option;

c) reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from Rule 100, carrier will require no additional payment from the passenger but will refund the difference if it is lower or[;]

d) If the passenger chooses to no longer travel or if Carrier is unable to perform the option stated in (a) (b) or (c) above within a reasonable amount [of] time, make involuntary refund in accordance with Rule 100 (an exception to the applicability of a refund occurs where the passenger was notified of the schedule irregularity prior to the day of departure and the schedule irregularity is of 60 minutes or less) or[;]

…

f) For cancellations within Air Canada’s control, if passenger provides credible verbal assurance to Air Canada of certain circumstances that require his/her arrival at destination earlier than options set out in subparagraph (a) above, or, for On My Way customers, for cancellation[s] within or outside carrier’s control, Air Canada will, if it is reasonable to do so, taking all circumstances known to it into account, and subject to availability, buy passenger a seat on another carrier whose flight is schedule[d] to arrive appreciably earlier than the options proposed in (a) above. Nothing in the above shall limit or reduce the passenger’s right, if any, to claim damage, if any, under the applicable Convention, or under the law when neither Convention applies.