Decision No. 252-C-A-2012

June 28, 2012

COMPLAINT by Gábor Lukács against WestJet with respect to its Domestic Tariff.

File No.: 
M4120/10-07796

INTRODUCTION

[1] On June 8, 2009, Gábor Lukács filed a complaint with the Canadian Transportation Agency (Agency) in which he challenged certain provisions of WestJet’s international tariff, as well as the equivalent provisions of WestJet’s domestic Tariff (domestic Tariff), which both provide for additional service standard commitments for passengers.

[2] Mr. Lukács’ complaint primarily concerns whether the tariff provisions are consistent with the principles of Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air, commonly known as the Montreal Convention (Convention).

[3] The Agency proceeded with Mr. Lukács’ complaint respecting the impugned provisions of WestJet’s international tariff, but noted in Decision No. LET-C-A-101-2009 dated June 30, 2009, that WestJet had not revised the terms and conditions of its domestic Tariff to reflect its international tariff. WestJet subsequently published tariff provisions reflecting the international tariff and on December 21, 2010, Mr. Lukács indicated that he intended to pursue his complaint respecting certain provisions of WestJet’s domestic Tariff.

[4] In Decision No. LET-C-A-1-2011 dated January 5, 2011, the Agency advised that it would first proceed with a consideration of Mr. Lukács’ complaint regarding WestJet’s international tariff provisions and once a determination had been made respecting that complaint, the Agency would address the issues raised by Mr. Lukács concerning the provisions set out in WestJet’s domestic Tariff.

[5] In Decision No. LET-C-A-79-2011 dated August 8, 2011 (Show Cause Decision), the Agency issued an interim decision respecting the issues raised in the complaint as they relate to WestJet’s international tariff, and provided WestJet with the opportunity to show cause as to why certain actions should not be taken regarding those terms and conditions.

[6] In Decision No. LET-C-A-81-2011 dated August 15, 2011, the Agency lifted the stay concerning WestJet’s domestic Tariff, and initiated pleadings respecting those provisions. In its answer, WestJet submitted that it knew of no reason why the principles the Agency applied in considering WestJet’s international tariff, as set out in the Show Cause Decision, should be different from those the Agency would apply to the domestic Tariff. WestJet therefore proposed to incorporate the same principles and wording into its domestic Tariff.

[7] In order to ensure that the record in the domestic file was complete and that the tariff wording proposed by WestJet was complete, the Agency required WestJet to file a copy of the entire tariff provisions that WestJet proposes to implement, which it did on December 22, 2011. Mr. Lukács was then given an opportunity to file a submission on these proposed tariff rules (Proposed Tariff Rules), which he filed on December 29, 2011. On January 10, 2012, WestJet filed its response.

[8] Appendix A sets out Proposed Tariff Rule 12.

[9] In light of the fact that WestJet has stated that it knows of no reason why the principles applied by the Agency with respect to WestJet’s international tariff should be different from those that would apply to its domestic Tariff, the Agency will first set out the principles set out in the Show Cause Decision respecting WestJet’s international tariff. The Agency expressed these principles as preliminary findings in the Show Cause Decision. In Decision No. 249-C-A-2012, the Agency adopted these preliminary findings as final.

[10] Next, the Agency will comment on the provisions of WestJet’s existing domestic Tariff which will be affected by the tariff amendments it proposes. The Agency has identified Rules 4.1, 4.4 and 12 as relevant to this proceeding. Appendix B sets out these provisions of WestJet’s existing domestic Tariff.

[11] The Agency will then consider whether certain provisions of Proposed Tariff Rule 12 are clear and reasonable.

[12] It should be noted that Mr. Lukács states that his complaint does not extend to situations outside the control of a carrier. Accordingly, this Decision is related to an assessment of situations that are within the control of WestJet.

PRINCIPLES SET OUT IN THE SHOW CAUSE DECISION RELATING TO WESTJET’S INTERNATIONAL TARIFF

[13] The Agency made the following preliminary findings in the Show Cause Decision, which it has since adopted as final findings:

  • Overbooking and cancellation that are within WestJet’s control constitute delay for the purpose of Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Convention).
  • With a presumption of liability for delay against a carrier, there is a concomitant obligation for a carrier to mitigate such liability and address the damage which has or may be suffered by a passenger as a result of the delay.
  • A circumstance-focussed approach is a reasonable approach to addressing the issue of overbooking and cancellation when the circumstances are made known to WestJet. The Agency stated that the jurisprudence dealing with overbooking or cancellation takes a circumstance-focussed approach by generally looking to the particular circumstances of a situation to determine whether a carrier took all reasonable measures to avoid the damage caused by delay. For example, the time-sensitive nature of a passenger’s purpose of travel is a consideration in applying this approach.
  • Tariff Rule 15.2(c) of WestJet’s international tariff, which is equivalent to Rules 4.4 a. and 4.4 c. of WestJet’s existing domestic Tariff – see Appendix B, is unreasonable as WestJet has not demonstrated why, given its commercial and operational obligations, it cannot refund the entire ticket cost and has not addressed the question of returning a passenger to their point of origin, within a reasonable time and at no extra cost, in cases where delay or cancellation occurs at a connecting point during travel with the result that a passenger’s travel no longer serves the passenger’s purpose.
  • Tariff Rule 15.2(c) which indicates that WestJet will make “all reasonable efforts” to provide a refund to passengers, is unreasonable.
  • Tariff Rule 15.2 is unreasonable as it gives to WestJet the choice of option as to whether the passenger will receive a refund of the unused portion of their ticket or whether the passenger will continue on their journey on another flight.
  • Tariff Rule 15.2, which is equivalent to Rule 4.4 of WestJet’s existing domestic Tariff – see Appendix B, is unreasonable as it does not give any indication of which rights and remedies a passenger might have under the applicable provisions of the Convention in the event of overbooking or cancellation and it does not indicate that passengers may have rights and remedies at law outside the Conventions.
  • Tariff Rule 15.3, which is equivalent to Rules 4.4 c. and 4.1 of WestJet’s existing domestic Tariff – see Appendix B,  is unreasonable as the choice of option as to whether a passenger will obtain a refund or credit is at WestJet’s discretion.
  • Tariff Rule 15.3, which is equivalent to Rule 4.1 of WestJet’s existing domestic Tariff – see Appendix B, is unreasonable as it limits WestJet’s liability in the event of a refund by stating that the carrier shall not be liable to any passenger if it provides, at its discretion, the credit or refund set out in the provision.

[14] As noted above, the Agency adopted the above preliminary findings as final in Decision No. 249‑C‑A‑2012. Accordingly, the Agency, in assessing Proposed Tariff Rule 12, will rely on these findings.

WESTJET’S EXISTING DOMESTIC TARIFF RULE 12

[15] In response to the complaint, WestJet was given an opportunity to provide submissions concerning the reasonableness of its existing domestic Tariff rules setting out additional service standard commitments for passengers. Instead, in light of the Show Cause Decision respecting WestJet’s international tariff provisions, WestJet submitted that it knew of no reason why the principles the Agency applied in considering its international tariff should be different from those it would apply to its domestic Tariff. WestJet therefore proposed to incorporate the same principles into its domestic Tariff.

[16] According to the tariff provisions WestJet filed with the Agency on December 22, 2011, WestJet proposes to incorporate the principles of the Show Cause Decision by adding new provisions to existing domestic Tariff Rule 12. The existing provisions of Rule 12 are carried over into Proposed Tariff Rule 12, with one exception: existing Rule 12(f) is absent from the Proposed Tariff Rule.

[17] The Agency acknowledges that WestJet has submitted Proposed Tariff Rule 12 to reflect the principles set out in the Show Cause Decision relating to its international tariff and that WestJet intends to replace existing domestic Tariff Rule 12.

CLARITY AND REASONABLENESS OF THE PROPOSED TARIFF RULES

[18] The Agency will now consider the pleadings made with respect to WestJet’s Proposed Tariff Rule 12, as submitted on December 22, 2011, in order to determine if Proposed Tariff Rule 12 is clear, as required by section 107 of the Air Transportation Regulations, SOR/88-58, as amended (ATR), and reasonable within the meaning of subsection 67.2(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).

Clarity of Proposed Tariff Rule 12

Applicable legislation

[19] The Agency's jurisdiction in matters related to clarity of domestic tariffs is set out in Part V, Division I, Domestic Tariffs of the ATR.

[20] A carrier’s tariff must conform to section 107 of the ATR which requires that, for domestic carriage, the terms and conditions of carriage contained in the tariff should clearly state the air carrier's policy in respect of, at a minimum, certain enumerated matters.

[21] More specifically paragraph 107.1(l) of the ATR provides that:

Every tariff shall contain:

(l) the terms and conditions governing the tariff, generally, stated in such a way that it is clear as to how the terms and conditions apply to the tolls named in the tariff;

[22] Subparagraph 107(1)(n) of the ATR provides, in part, that:

Every tariff shall contain

(n) the terms and conditions of carriage, clearly stating the air carrier's policy in respect of at least the following matters, namely,

[...]

(iii) compensation for denial of boarding as a result of overbooking,

(iv) passenger re-routing,

(v) failure to operate the service or failure to operate on schedule,

(vi) refunds for services purchased but not used, whether in whole or in part, either as a result of the client's unwillingness or inability to continue or the air carrier's inability to provide the service for any reason,

[...]

[23] The Agency has previously stated that an air carrier meets its tariff obligation of clarity when, in the opinion of a reasonable person, the rights and obligations of both the carrier and the passengers are stated in such a way as to exclude any reasonable doubt, ambiguity or uncertain meaning1. Applying this standard with respect to clarity, the Agency will address below the specific provisions of Proposed Tariff Rule 12 which Mr. Lukács, in his submission dated December 29, 2011, has identified as failing to meet the Agency’s legal test for the clarity of air carrier tariff provisions.

Proposed Tariff Rule 12.1 - Available options

Positions of the parties

[24] Mr. Lukács submits that Proposed Tariff Rule 12.1 fails to clearly state whether a passenger may choose only one of the listed options, or a combination. He states that it is not clear, for example, whether a passenger could choose both options 12.1.1 and 12.1.4.

[25] WestJet claims that when Proposed Tariff Rule 12.1 is read in conjunction with Proposed Tariff Rules 12.2, 12.3, and 12.4, it is apparent that the passenger will be given one or more alternatives depending on the circumstances of the caseIt is clear to. WestJet states that it is clear that it that the carrier has the obligation to consider the circumstances of the passenger affected by the overbooking or cancellation and offer remedies designed to recognize and appropriately mitigate the impact of the overbooking or cancellation. WestJet submits that in some cases, such as cancellations which cause only very brief delays in continued transportation, it may be that continued transportation alone will be sufficient, while in others a combination of remedies may be required to mitigate the impact.

Analysis and findings

[26] Although WestJet has submitted that the tariff wording clearly indicates that, depending upon the case, a passenger will be provided with one or more alternative remedies, the Agency is of the opinion that this intention is not clearly reflected in the Proposed Tariff Rule. The addition of the words “and/or” rather than clarifying the options available, in the Agency’s opinion, creates confusion as to which permutations and combinations of options are available.. The Agency is of the further opinion that this would leave a reasonable person with a reasonable doubt as to the remedies to which they might be entitled.

[27] For example, clearer wording would indicate that WestJet will give the passenger the option to choose between Proposed Tariff Rules 12.1.1 or 12.1.2, and any one or more of Proposed Tariff Rules 12.1.3 and 12.1.4. Proposed Tariff Rules 12.1.1 and 12.1.2 are mutually exclusive, so stating that a passenger might be entitled to 12.1.1 and/or 12.1.2 leads to an absurd result. The Agency is of the opinion that using the phrase “and/or” leads to inconsistency and contributes to the ambiguity of the provision.

Conclusion

[28] The Agency has determined that Proposed Tariff Rule 12.1 lacks clarity with respect to the specific issue of choice of options, and that if such Rule were to be included in the domestic Tariff, it would be considered to be contrary to section 107 of the ATR.s

Proposed Tariff Rules 12.1.3 and 12.1.4 – Method used to define the amount of compensation

Positions of the parties

[29] Mr. Lukács submits that Proposed Tariff Rules 12.1.3 and 12.1.4 fail to clearly state the method WestJet will use to define the amount of the compensation.

[30] WestJet claims that Proposed Tariff Rules 12.1.3 and 12.1.4 clearly state that it will consider the known circumstances and make a good faith effort to fairly recognize, and appropriately mitigate, the impact of the overbooking or cancellation.

Analysis and findings

[31] The Agency notes that Mr. Lukács also raised issues respecting the reasonableness of these Proposed Tariff Rules. Those issues will be dealt with in the section that follows, which addresses the concerns of Mr. Lukács with the reasonableness of certain provisions of Proposed Tariff Rule 12.

[32] Subject to the review of reasonableness set out below, the Agency is of the opinion that the subject provisions are unambiguous in that together with Proposed Tariff Rules 12.3 and 12.4, they clearly state that WestJet, when determining the amount of compensation to be offered a passenger in the event of delay, will take into account the circumstances of the passenger, including expenses incurred, and will make a good faith effort to recognize and mitigate the impact of the overbooking or cancellation on the passenger. It is clear that a circumstance-focussed approach will be applied and that this is the basis upon which the alternatives will be considered by WestJet.

[33] However, another issue to consider is whether reference in Proposed Tariff Rule 12.1.3 to “a monetary payment in an amount... which shall in no case be less than the value of the unused portion of the passenger’s ticket” is clear. The Agency considered that same issue in reviewing WestJet’s domestic tariff in Decision No. 219-C-A-2005. The Agency pointed out that the tariff rule did not identify the basis upon which the “unused portion” would be calculated and that there appeared to be no other tariff provision that set out a general methodology that could be relied on to calculate the “unused portion”. The Agency concluded that a reasonable person would be left with a reasonable doubt as to the refund entitlement of a passenger and that accordingly the subject provision was not clear.

[34] The Agency reasserts the finding in Decision No. 219-C-A-2005 and is of the opinion that Proposed Tariff Rule 12.1.3 is not clear as a reasonable person would be left with a reasonable doubt as to what would be the lower limit of a potential monetary payment in a situation of overbooking or cancellation.

[35] Accordingly, the Agency is of the further opinion that WestJet must draft a tariff provision that identifies the methodology by which a refund of the “unused portion” of a ticket will be calculated, or that makes reference to the methodology to be relied on to calculate the unused portion of the ticket.

Conclusion

[36] The Agency has determined that Proposed Tariff Rules 12.1.3 and 12.1.4, when read with Proposed Tariff Rules 12.3 and 12.4, are unambiguous in that they clearly state that WestJet, when determining the amount of compensation to be offered to a passenger in the event of delay, will take into account the circumstances of the passenger, including expenses incurred, and will make a good faith effort to recognize and mitigate the impact of the overbooking or cancellation on the passenger. This tariff language would be considered clear if if were included in WestJet’s domestic Tariff.

[37] However, the Agency has also determined that Proposed Tariff Rule 12.1.3 is not clear with respect to a general methodology that could be relied on to calculate the “unused portion” of a ticket, as a reasonable person would be left with a reasonable doubt as to what would be the lower limit of a potential monetary payment in a situation of overbooking or cancellation. If this Proposed Tariff Rule were to be included in the domestic Tariff, it would therefore be considered to be contrary to section 107 of the ATR.

Proposed Tariff Rule 12 – Out-of-pocket expenses

Positions of the parties

[38] Mr. Lukács maintains that Proposed Tariff Rule 12 fails to clearly state whether a passenger who chooses options 12.1.1 or 12.1.2 is also entitled to be reimbursed for reasonable out-of-pocket expenses such as accommodation, meals and alternative transportation.

[39] WestJet responds that if it determines that the passenger, acting reasonably, incurred such expenses it will be obliged to include an alternative remedy which will appropriately compensate the passenger for the expenses reasonably incurred.

Analysis and findings

[40] The Agency is of the opinion that Proposed Tariff Rules 12.3 and 12.4 make it clear that a passenger, in the appropriate circumstances, will be reimbursed for out-of-pocket expenses. Proposed Tariff Rule 12.1 sets out the alternative remedies that are available and Proposed Tariff Rules 12.3 and 12.4 set out the particulars as to how the specifics of compensation are to be made.

[41] Proposed Tariff Rule 12.3 specifically states that in defining the alternative remedies to be offered, WestJet will consider any expenses that the passenger, acting reasonably, might have incurred. The Agency finds that the subject provision would be considered clear and not ambiguous if included in WestJet’s domestic Tariff.

Conclusion

[42] Rules 12.1.1 and 12.1.2, when read in conjunction with Rules 12.3 and 12.4, would be considered clear and not ambiguous with respect to out-of-pocket expenses, if included in WestJet’s Tariff.

Proposed Tariff Rules 12.3 and 12.4 - The phrases “will consider” and “will make a good faith effort”

Positions of the parties

[43] Mr. Lukács maintains that Proposed Tariff Rules 12.3 and 12.4 fail to clearly state the obligations of WestJet because the phrases “will consider” and “will make a good faith effort” are vague.

[44] WestJet submits that the phrases “will consider” and “will make a good faith effort” are not always vague, and that the context must be considered. According to WestJet, if a tariff were to simply state that the carrier “will consider” offering compensation (while leaving it open to the carrier to decide to decline to offer compensation), that might properly be said to be a vague undertaking which can provide the passenger no comfort as everything is left to the discretion of the carrier. WestJet submits that, under its Proposed Tariff Rules, WestJet has a clear obligation to define alternatives, and that in defining those remedies, WestJet must consider certain circumstances.

[45] WestJet asserts that this approach is in accordance with the directions given by the Agency. WestJet argues that, in Proposed Tariff Rules 12.3 and 12.4, the basic obligation is clear, that is, to define alternative remedies. WestJet submits that the Proposed Tariff Rule then goes on to impose restrictions which bind the carrier in defining those remedies.

Analysis and findings

[46] The Agency agrees with WestJet’s submission that the context must be considered in determining the clarity of the phrases “will consider” and “will make a good faith effort”. As explained by WestJet, its Proposed Tariff Rules 12.3 and 12.4 compel the carrier to consider certain circumstances relating to a delay or cancellation of a flight, with respect to available transportation services and the particular circumstances of the passenger affected by a delay or cancellation. Proposed Tariff Rules 12.3 and 12.4, as noted by WestJet, clearly establish the alternatives which WestJet must offer to affected passengers. 

[47] The Agency is of the opinion that these provisions reflect the circumstance-focussed approach set out in the Show Cause Decision respecting WestJet’s international tariff. The Agency notes that WestJet has stated that it knows of no reason why the principles the Agency applied in considering WestJet’s international tariff as set out in the Show Cause Decision should be different from those it would apply to its domestic Tariff. Accordingly, the Agency considers it appropriate that Proposed Tariff Rules 12.3 and 12.4 should be evaluated in light of the circumstance-focussed approach, and in making that evaluation, the Agency is satisfied that they are clear and not ambiguous.

Conclusion

[48] The Agency has determined that if Proposed Tariff Rules 12.3 and 12.4 were included in WestJet’s domestic Tariff, they would be considered clear and not ambiguous.

Proposed Tariff Rule 12.7 – Amount of meal voucher

Positions of the parties

[49] Mr. Lukács submits that Proposed Tariff Rule 12.7 fails to clearly state the obligation of the carrier because Proposed Tariff Rule 12.7 does not state the amount of the meal voucher. He asserts that, based on his experience, airlines tend to provide meal vouchers of a few dollars, while the cost of a meal at airports is typically in the $20 to $30 range.

[50] WestJet argues that the Agency should not accept the evidence offered by Mr. Lukács respecting the typical cost of a meal and the value of vouchers which “airlines tend to provide”. WestJet maintains that the evidence is entirely impressionistic, and that if Mr. Lukács had actual facts and figures, he might have properly adduced them in evidence. WestJet submits that Mr. Lukács has sought to discredit air carriers generally with statements based on his alleged experience, and that he has failed to provide any objective description of the extent of his experience. WestJet asserts that the reasonable dollar value of a meal will vary depending on many circumstances, including the location of the airport, and the times of day at which a flight delay begins and ends. WestJet submits that it would be unreasonable to require an air carrier to stipulate the value of the meal voucher to be provided.

Analysis and findings

[51] While subparagraph 107(1)(n) of the ATR requires the carrier to clearly state its policy in respect of a number of matters, it does not specifically require the carrier to stipulate the value of a meal voucher in its tariff. The Agency considers that the evidence provided by Mr. Lukács does not show that Proposed Tariff Rule 12.7 lacks clarity for failing to stipulate the meal voucher amount. Furthermore, the Agency notes WestJet’s submission that there are too many variables, including the location of the airport, and the times of day at which a flight delay begins and ends, to allow a carrier to establish in a tariff a set amount. WestJet’s statement that a meal voucher will be provided is, in the Agency’s opinion, sufficient to meet WestJet’s tariff obligation of clarity.

Conclusion

[52] The Agency has determined that Proposed Tariff Rule 12.7 would be considered clear and not ambiguous if it were included in WestJet’s domestic Tariff.

Proposed Tariff Rule 12 – Alternative remedies

Positions of the parties

[53] Mr. Lukács maintains that Proposed Tariff Rule 12 fails to clearly state whether the listed “alternative remedies” are in addition to denied boarding compensation payable to passengers under the domestic Tariff.

[54] WestJet responds that Proposed Tariff Rule 12 makes it clear that if a passenger affected by overbooking accepts the alternative remedies proposed by WestJet, the passenger does so in full and final satisfaction of all claims arising from the overbooking.

Analysis and findings

[55] The Agency notes that Mr. Lukács also raises issues respecting the reasonableness of full and final satisfaction of claims as set out in Proposed Tariff Rule 12.5. These issues will be addressed in the section that follows.

[56] Subject to the review of reasonableness set out below, the Agency is of the opinion that this provision clearly establishes that if an alternative remedy is accepted by a passenger, denied boarding compensation will not be tendered. Proposed Tariff Rule 12.1 clearly states that if a passenger is affected by overbooking they will have the option of choosing among the alternative remedies. Proposed Tariff Rule 12.5 goes on to state that the passenger’s acceptance of an alternative remedy is in full and final satisfaction of all claims.

[57] The Agency therefore finds that, in applying the test for clarity in the opinion of a reasonable person, the rights and obligations of both WestJet and passengers respecting this matter are stated in such a way as to exclude any reasonable doubt, ambiguity or uncertain meaning.

Conclusion

[58] The Agency has determined that Proposed Tariff Rule 12, as it relates to alternative remedies and denied boarding compensation, would be considered clear and not ambiguous if it were included in WestJet’s domestic Tariff.

REASONABLENESS AND CONSISTENCY WITH THE PRINCIPLES OF THE CONVENTION

[59] A carrier is required to not only clearly set out its policy with respect to overbooking and cancellation, but to also ensure that with respect to domestic flights, its tariff is just and reasonable within the meaning of subsection 67.2(1) of the CTA.

[60] Subsection 67.2(1) of the CTA states:

If, on complaint in writing to the Agency by any person, the Agency finds that the holder of a domestic licence has applied terms or conditions of carriage applicable to the domestic service it offers that are unreasonable or unduly discriminatory, the Agency may suspend or disallow those terms and conditions and substitute other terms or conditions in their place.

[61] The Agency has stated in previous decisions that in order to determine whether a term or condition of carriage applied by a carrier is "reasonable" within the meaning of subsection 67.2(1) of the CTA, a balance must 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 obligations2.

[62] 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.

[63] 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.

[64] In his submissions dated December 29, 2011, Mr. Lukács, in addition to his submissions setting out his concerns regarding the clarity and reasonableness of the Proposed Tariff Rules, provides submissions on whether the subject tariff provisions are in conformity with the principles of the Convention. In past Agency decisions,3 the Agency has referred to the principles of the Convention when dealing with domestic limits of liability. Accordingly, it is clear that the Agency is, and has been, of the view that the Convention is a useful interpretive tool to which the Agency may refer when applying its “reasonableness” test and striking the balance between passengers’ rights and the statutory, commercial and operational obligations of a carrier. In doing so, the Agency takes into account the principles of the Convention rather than applying the Convention itself. The Agency will therefore consider the submissions of the parties on the issue of consistency with the principles of the Convention when assessing the issue of reasonableness.

Reasonableness of Proposed Tariff Rules 12.3 and 12.4 – Compensation of passengers

Positions of the parties

[65] Mr. Lukács submits that Proposed Tariff Rules 12.3 and 12.4 provide WestJet with discretion about how to compensate its passengers and impose a “subjective” obligation upon WestJet, namely, to consider certain factors. He believes that these Proposed Tariff Rules, as opposed to an “objective” test, are virtually unenforceable, throw passengers at the mercy of the carrier, and fail to consider at all the passenger’s right to be subject to fair and reasonable terms and conditions. In particular, he claims that these Proposed Tariff Rules fail to strike any balance between the carrier’s statutory, commercial and operational obligations and the rights of passengers to be subject to reasonable terms and conditions of carriage. Thus, he holds that  these Proposed Tariff Rules are unreasonable.

[66] WestJet argues that a tariff rule which fixes compensation to certain amounts which might vary with changing circumstances, for example the length of a delay, would be objective and easy to apply but would be contrary to the context-sensitive approach the Agency has outlined.

[67] WestJet submits that Mr. Lukács’ alternative is equally subjective. For example, the determination of when a flight no longer serves any purpose in relation to the passenger’s original travel plan requires subjective determinations of what those plans were and what might serve a purpose in relation to those plans. According to WestJet, making a fair offer of compensation in the circumstances of flight cancellation and overbooking requires a subjective assessment of the impact of these events on an individual and requires as well a subjective assessment of the ways in which that impact may be most reasonably alleviated.

Analysis and findings

[68] Mr. Lukács points out that Proposed Tariff Rules 12.3 and 12.4 are unreasonable as although they refer to various considerations that WestJet will take into account in determining compensation in cases of delay, it is left to WestJet’s discretion as to how these considerations are taken into account.

[69] As reflected in Proposed Tariff Rule 12.3, WestJet has stated that it will consider the passenger’s circumstances when these are made known to WestJet.

[70] WestJet also makes it clear that it will consider reasonable expenses the passenger may have incurred in defining the alternative remedies to be offered to the passenger. WestJet explicitly states that the expenses may include costs for accommodation, meals or additional transportation. WestJet further states, at Proposed Tariff Rule 12.4, that it will make a good faith effort to fairly recognize and appropriately mitigate the impact of overbooking or cancellation on the passenger.

[71] The Agency concludes that WestJet has not taken a restrictive approach to determining how it will compensate a passenger for delay. It is clear from the Proposed Tariff Rules that WestJet will consider the circumstances of the passenger’s situation and will make a good faith effort to mitigate the impact of the delay on the passenger. The Agency is of the opinion that these provisions reflect the circumstance-focussed approach set out in the Show Cause Decision respecting WestJet’s international tariff. WestJet has stated that it knows of no reason why the principles the Agency applied in considering WestJet’s international tariff as set out in the Show Cause Decision should be different from those it would apply to its domestic Tariff. The Agency finds that the Proposed Tariff Rules balance the passengers’ right to be subject to reasonable terms and conditions of carriage by providing them with the possibility of obtaining compensation in the event of overbooking and cancellation, including costs for accommodation, meals or additional transportation, while also affording the carrier flexibility to determine what remedies might be appropriate in the circumstances. Accordingly, in applying the circumstance-focussed approach to WestJet’s domestic Tariff, the Agency finds that the Proposed Tariff Rules would be considered reasonable if the provisions were to be included in the domestic Tariff.

Conclusion

[72] The Agency has determined that Proposed Tariff Rules 12.3 and 12.4 reflect the circumstance-focussed approach set out in the Show Cause Decision respecting WestJet’s international tariff, and if those Rules were to be included in the domestic Tariff, they would be considered to be reasonable.

Reasonableness of Proposed Tariff Rule 12.5 – “Full and final satisfaction” clause

Positions of the parties

[73] Mr. Lukács submits that Proposed Tariff Rule 12.5 pre-empts the rights and cause of action of passengers who accept any of the “alternative remedies” listed under Proposed Tariff Rule 12.1. In particular, Proposed Tariff Rule 12.5 purports to pre-empt the claims of passengers who agree to be re-protected and re-routed under Proposed Tariff Rule 12.1.1. 

[74] For example, Mr. Lukács argues that if a passenger is delayed by 48 hours at a point of connection and accepts to be reprotected, then under Proposed Tariff Rule 12.5 the passenger will not be able to advance a claim for out-of-pocket expenses occasioned by the overbooking or cancellation. He states that Proposed Tariff Rule 12.1 conditions the continuation of transportation of the passenger (Proposed Tariff Rule 12.1.1) on the passenger waiving their rights to seek compensation for damages caused by the delay.

[75] According to Mr. Lukács, provisions of this nature (in the context of baggage liability), the aim of which is to create contractually a defence to claims under the Convention, have been held to be invalid and unreasonable by the Agency (Lukács v. WestJet, Decision No. 477-C-A-2010). In that Decision the Agency held that freedom of contract and the doctrine of estoppel do not take precedence over the provisions of the Convention.

[76] Mr. Lukács refers to paragraphs 106 and 107 of the Agency’s Show Cause Decision in respect of his complaint concerning WestJet’s international tariff. Mr. Lukács notes that existing international Tariff Rule 15.3 states that the carrier shall not be responsible to any passenger if it provides, at its discretion, the credit or refund outlined in that provision. Mr. Lukács points out that the Agency stated that such a provision would tend to relieve WestJet of its liability under the Convention, and the Agency was of the opinion that the provision is unreasonable. Mr. Lukács asserts that the effect of Proposed Tariff Rule 12.5 is essentially the same as existing Rule 15.3 of WestJet’s international tariff, and therefore it fails to conform to the principles formulated by the Agency.

[77] Mr. Lukács submits that Proposed Tariff Rule 12.5 circumvents WestJet’s liability for damage caused by delay, and it contravenes the legal principles of the Convention.

[78] Mr. Lukács further argues that Proposed Tariff Rule 12 fails to adequately address the issue of denied boarding compensation, and suggests that passengers’ rights to such compensation are also pre-empted by Rule 12.5. He asserts that this is clearly contrary to subparagraph 107(1)(n)(iii) of the ATR, and as such, it cannot be  reasonable. 

[79] Finally, Mr. Lukács argues that Proposed Rule 12.5 forces passengers to give up their rights in exchange for continuation of their journey. He further claims that passengers would be expected to make such decisions within a few minutes or hours, while at an airport, and without due access to legal counsel and advice. He concludes that the provision is not reasonable.

[80] WestJet responds that the reference to the role of freedom of contract in Decision No. 477‑C‑A‑2010 is misplaced and what the Agency decided in its Decision is that the carrier is pre-empted from protecting itself from unwanted liabilities in the period before a loss occurs. WestJet submits that Article 26 of the Convention addresses contractual provisions which attempt to define rights before the transportation in questions occurs. WestJet argues that there is nothing in the Convention or applicable jurisprudence which prevents a party who has suffered a loss from giving a release to the carrier after the loss has occurred. WestJet maintains that the Convention, if it were found applicable, would not render Proposed Tariff Rule 12.5 null and void.

[81] Finally, WestJet asserts that the Convention prevents an air carrier from unilaterally relieving itself of a liability imposed by the Convention. However, WestJet submits that the settlement of claims is an everyday occurrence and the very nature of settlement is to relieve a party of further liability. WestJet does not purport to define terms which the passenger must accept; rather, it proposes to make offers of accommodation within the parameters defined in the Rule. According to WestJet, that a passenger who accepts such an offer should do so in full and final satisfaction of a claim is not a surprising legal conclusion. As is made clear in Proposed Tariff Rule 12.6, WestJet claims that a passenger is free to decline to accept an offer and exercise his or her legal rights.

Analysis and findings

[82] It is clear that by the terms unilaterally imposed by WestJet under Proposed Tariff Rule 12.5, a passenger must decide between two options when their flight has been overbooked or cancelled: either accept the carrier’s alternative remedies and give up any rights they may have under the law; or refuse the alternative remedies and be forced to find alternative travel on their own and incur any related expenses in order to retain their legal rights.

[83] The Agency is of the opinion that this Proposed Tariff Rule is unreasonable. Proposed Tariff Rule 12.5 does not provide the passenger with a reasonable opportunity to fully assess their options. Instead, the passenger must decide between two options as determined by the carrier, both of which have legal consequences on the passenger’s rights without a reasonable period of time to assess the full potential of the impact of selecting one over another. In such situations, the rights of a passenger under the law should remain available.

[84] WestJet has not contested the Agency’s approach of considering the principles of the Convention when determining whether a domestic tariff provision is reasonable. In fact, WestJet submits that if the Convention were found applicable, it would not render null and void Proposed Tariff Rule 12.5. Accordingly, the Agency finds it appropriate, in determining whether Proposed Tariff Rule 12.5 is reasonable, to consider the principles of the Convention.

[85] Article 19 of the Convention states that a carrier is liable for damage caused by delay, but that it will not be liable if it can prove that it and its servants and agents took all measures that could reasonably be required to avoid the damage, or that it was impossible for them to take such measures. Article 26 renders null and void any tariff provision tending to relieve the carrier of liability or fixing a lower limit than that laid down in the Convention.

[86] The Agency notes that in the complaint relating to its international tariff, WestJet has filed International Proposed Tariff Rule 15.6 which is identical to Domestic Proposed Tariff Rule 12.5. With respect to International Proposed Tariff Rule 15.6, the Agency has found that although WestJet might, in appropriate circumstances, in situations of delay give the passenger the option to choose among one or more remedies, this does not necessarily mean that the carrier will have met the requirements of the Convention. In effect, the Agency found that WestJet’s International Proposed Tariff Rule 15.6 is a predetermination by WestJet that the alternative measures offered are reasonable measures pursuant to Article 19 of the Convention, and that offering these measures relieves it from liability under that Article.

[87] The Agency found that International Proposed Tariff Rule 15.6 leaves to WestJet the determination as to what is a reasonable remedy for delay. The Agency held that this might be appropriate for the circumstance-focussedpurposes making determinations pursuant to that Proposed Tariff Rule but might not be appropriate for the purposes of Article 19 of the Convention.

[88] As in the international proceeding, WestJet has argued with respect to its domestic Tariff that there is nothing in the Convention or applicable jurisprudence that prevents a party who has suffered a loss from giving a release to the carrier after the loss has occurred. WestJet states that the Convention, if it were found to apply to its domestic Tariff, would not render Proposed Tariff Rule 12.5 null and void. While WestJet argues that nothing in the authorities prevents it from obtaining such a release, WestJet has not directed the Agency to any authorities to support its position that a “full and final satisfaction” clause such as that found in Proposed Tariff Rule 12.5 should be considered valid.

[89] WestJet has argued that obtaining a release, in itself, is permissible under the Convention. However, it has not demonstrated why unilaterally imposing the terms of a release in its domestic Tariff would not tend to relieve it from liability under the Convention, if it applied. Accordingly, the Agency does not agree with WestJet’s position that, if the Convention were found to apply, it would not render null and void Proposed Tariff Rule 12.5. The Agency therefore finds that WestJet has not demonstrated why Proposed Tariff Rule 12.5 is consistent with the principles of the Convention.

[90] Furthermore, the Agency finds that aside from arguing for consistency with the Convention, WestJet has provided no evidence that Proposed Tariff Rule 12.5 is reasonable in light of its statutory, commercial and operational obligations. The Agency is of the opinion that WestJet is depriving the passenger of their rights under the law through a contract of adhesion which it has unilaterally developed and imposed on the passenger. In light of the principles of the Convention, and in balancing the right of passengers to be subject to reasonable terms and conditions against WestJet’s statutory, commercial and operational obligations, the Agency finds that Proposed Tariff Rule 12.5 is unreasonable.

Conclusion

[91] Accordingly, the Agency has determined that Proposed Tariff Rule 12.5 would be considered unreasonable if it were to be included in WestJet’s domestic Tariff.

Reasonableness of Proposed Tariff Rule 12.10 – Times shown in timetables

[92] Mr. Lukács submits that the statement that the wording “times shown in timetables and elsewhere are not guaranteed and form no part of this contract”, as set out in Proposed Tariff Rule 12.10, is inconsistent with the principles of the Convention and is a reformulation of the infamous “Condition 9,” which was held to be invalid by American, British, and Canadian courts. In this respect Mr. Lukács refers to the following cases in support:

  • Cohen v. Varig Airlines, 380 N.Y.S.2d 450 (affd 405 N.Y.S.2d 44);
  • Jones v. Britannia Airways Limited (Chester County Ct, 5th November 1998);
  • Assaf(at paras. 5 and 11-12);
  • Zikovsky c. Air France, 2006 QCCQ 948 (at paras. 21-23 and 29-31).

[93] According to Mr. Lukács, the importance of time as part of a contract of carriage was also underscored in Daniel v. Virgin Atl. Airways Ltd., 59 F. Supp. 2d 986, where the court held that the inconvenience of being trapped in an airport is a compensable element of damages for delay under the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed in Warsaw on 12 October 1929 – Warsaw Convention (Warsaw) and domestic law, even in the absence of economic loss or physical injury.

[94] Therefore, Mr. Lukács concludes that Proposed Tariff Rule 12.10 is inconsistent with the legal principles of the Convention, as the Rule tends to relieve WestJet from liability for delay, and appears to be a blanket exclusion of liability.

[95] WestJet submits that the words indicating that times in timetables are not guaranteed are necessary to confirm that the applicable standard the same as is applied in cases governed by the Convention. WestJet maintains that Proposed Tariff Rule 12.10 is a statement that the carrier does not, in cases not governed by the Convention, assume the more onerous standard of guarantee. WestJet adds that the fact that timetables are not guaranteed does not mean that the carrier will never be liable for delay. WestJet argues that it only means that any liability will not arise from a guarantee of producing a particular result but rather from a failure to take that degree of care required by the governing law.

[96] WestJet also submits that to guarantee a result is to promise that an act will be carried out, and that it is important to distinguish between a promise of performance, which amounts simply to an agreement to exercise reasonable care, and a promise to produce a particular result, which imposes an obligation greater than the exercise of care. 

Analysis and findings

[97] According to Mr. Lukács, Proposed Tariff Rule 12.10 is inconsistent with the principles of the Convention as it is a provision tending to relieve the carrier from liability for delay, and appears to be a blanket exclusion of liability. In support of his position, Mr. Lukács cites various cases that, according to him, have held such conditions to be invalid or which have underscored the importance of time as part of a contract of carriage.

[98] In response to Mr. Lukács’ submission, WestJet has argued that stating that the times are not guaranteed does not mean that the carrier will never be liable for delay. Instead, WestJet claims it is important to distinguish between its obligation to exercise reasonable care and a promise to produce a particular result.

[99] The Agency finds that although Mr. Lukács has cited some case law invalidating provisions similar to Proposed Tariff Rule 12.10, it is not possible on this basis alone to make a finding that the provision is unreasonable.

[100] For example, the Agency finds that the Canadian case law cited by Mr. Lukács is not sufficiently conclusive as to the invalidity of such a tariff provision. Mr. Lukács cites the Cour du Québec’s decision in Zikovsky, which found that a similar provision contradicts the Convention, but which went on to evaluate the provision in light of the Civil Code of Quebec, R.S.Q., c. C-1991, emphasizing that the clause was illegible and ought to have been brought to the passenger’s attention in order to be binding. The court also considered that the provision may be abusive under Quebec law.

[101] The Agency finds that the reasoning in this case is contradictory in that the court at once found that the provision was contrary to the Convention but that in order to be binding, it should have been brought to the passenger’s attention. The Agency finds that this decision does not provide conclusive direction as to the validity of provisions like those found in Proposed Tariff Rule 12.10.

[102] Mr. Lukács also cited the Cour du Québec’s decision in Assaf, which dealt with a provision similar but not identical to Proposed Tariff Rule 12.10. The court found that such a provision is contrary to Warsaw because the carrier replaced its obligation to transport without delay into a simple obligation to do its best; because the carrier excluded departure and arrival times indicated on the ticket from the contract; and, because the carrier stated that it excluded all liability for connections and delays.

[103] The Agency finds that the presence of an outright exclusion from liability for delay in the tariff in Assaf is significant enough to distinguish it from the present case. Proposed Tariff Rule 12.10 does not contain a similar exclusion from liability for delay. What is more, in Assaf¸ the court considered the impugned provision in isolation. In the present case, the Agency has before it the entirety of Proposed Tariff Rule 12, which outlines the alternative remedies WestJet will offer to a passenger, including expenses incurred as a result of overbooking or cancellation. In light of the entirety of Proposed Tariff Rule 12, the Agency agrees with WestJet’s submission that Proposed Tariff Rule 12.10 does not mean that it will never be liable for delay.

[104] What is more, Mr. Lukács has not explained why the Agency should find it reasonable for WestJet to include departure and arrival times as part of its contract of carriage, or why failure to do so is contrary to the principles of the Convention. In the Show Cause Decision relating to WestJet’s international Tariff, the Agency noted that the drafters of the Convention did not define delay, and that they intended to leave the definition open-ended and subject to a case-by-case assessment. In his arguments, Mr. Lukács has not explained how the Convention could be read to require carriers to take on the onerous obligation of guaranteeing precise departure and arrival times as part of their contract of carriage.

[105] Accordingly, the Agency considers that the arguments presented by Mr. Lukács are not sufficient to allow for a finding that Proposed Tariff Rule 12.10 is unreasonable.

Conclusion

[106] The Agency has determined that Proposed Tariff Rule 12.10 would be considered reasonable if included in WestJet’s domestic Tariff.

Proposed Tariff Rule 12.12 – Carriage of baggage

Positions of the parties

[107] Mr. Lukács asserts that the carriage of passengers’ baggage is an inherent part of the contract of carriage, and passengers are entitled to timely delivery of their baggage, specifically, at the time of their arrival. Mr. Lukács submits that the effect of Proposed Tariff Rule 12.12 is a blanket exclusion of liability, which exonerates the carrier from liability for delay of checked baggage, contrary to the principles of the Convention.

[108] WestJet submits that Proposed Tariff Rule 12.12 is not an exclusion from liability, and that the intent and legal effect of a rule such as Rule 12.12 is not to allow a carrier to avoid liability in all cases, but simply to confirm that the carrier does not assume the absolute liabilities imposed where a guarantee is given.

Analysis and findings

[109] Proposed Tariff Rule 12.12 recognizes that situations may arise where, because of insufficient space on the aircraft, WestJet is unable to carry a passenger’s baggage on the flight on which the passenger is being transported. The Agency does not agree with Mr. Lukács’ submission that the Rule represents an exemption from liability. The Agency finds that, in accordance with the principles of the Convention, WestJet would remain liable for any damages incurred by a passenger to whom this provision may apply.

Conclusion

[110] The Agency finds that Proposed Tariff Rule 12.12 does not represent an exemption from liability, and that if it were included in WestJet’s domestic Tariff, it would be considered reasonable.

SUMMARY OF CONCLUSIONS

[111] In light of the foregoing, the Agency concludes the following:

Clarity

1. With respect to Proposed Tariff Rule 12.1 – Available options

The Agency has determined that Proposed Tariff Rule 12.1 lacks clarity with respect to the specific issue of choice of options, and that if such Rule were to be included in the domestic Tariff, it would be considered to be contrary to section 107 of the ATR.s

2. With respect to Proposed Tariff Rules 12.1.3 and 12.1.4 – Method used to define the amount of compensation

The Agency has determined that Proposed Tariff Rules 12.1.3 and 12.1.4 are unambiguous in that they clearly state that WestJet, when determining the amount of compensation to be offered to a passenger in the event of delay, will take into account the circumstances of the passenger, including expenses incurred, and will make a good faith effort to recognize and mitigate the impact of the overbooking or cancellation on the passenger. This tariff language would be considered clear if it were included in WestJet’s domestic Tariff.

The Agency has also determined that Proposed Tariff Rule 12.1.3 is not clear as a reasonable person would be left with a reasonable doubt as to what would be the lower limit of a potential monetary payment in a situation of overbooking or cancellation. If this Proposed Tariff Rule were to be included in the domestic Tariff, it would be considered to be contrary to section 107 of the ATR.

3. With respect to Proposed Tariff Rule 12 –Out-of-pocket expenses

Rules 12.1 and 12.1.2, when read in conjunction with Rules 12.3 and 12.4, would be considered clear and not ambiguous with respect to out-of-pocket expenses, if included in WestJet’s domestic Tariff.

4. With respect to Proposed Tariff Rules 12.3 and 12.4 – The phrases “will consider” and “will make a good faith effort”

The Agency has determined that if Proposed Tariff Rules 12.3 and 12.4 were included in WestJet’s domestic Tariff, they would be considered clear and not ambiguous.

5. With respect to Proposed Tariff Rule 12.7 – Amount of meal voucher

The Agency has determined that Proposed Tariff Rule 12.7 would be considered clear and not ambiguous if it were included in WestJet’s domestic Tariff.

6. With respect to Proposed Tariff Rule 12 – Alternative remedies

The Agency has determined that Proposed Tariff Rule 12, as it relates to alternative remedies and denied boarding compensation, would be considered clear and not ambiguous if it were included in WestJet’s domestic Tariff.

Reasonableness

1. With respect to Proposed Tariff Rules 12.3 and 12.4 – Compensation of passengers

The Agency has determined that Proposed Tariff Rules 12.3 and 12.4 reflect the circumstance-focussed approach set out in the Show Cause Decision respecting WestJet’s international tariff, and if those Rules were to be included in the domestic Tariff, they would be considered to be reasonable.

2. With respect to Proposed Tariff Rule 12.5 – “Full and final satisfaction” clause

The Agency has determined that Proposed Tariff Rule 12.5 would be considered unreasonable if it were to be included in WestJet’s domestic Tariff.

3. With respect to Proposed Tariff Rule 12.10 – Times shown in timetables

The Agency has determined that Proposed Tariff Rule 12.10 would be considered reasonable if included in WestJet’s domestic Tariff.

4. With respect to Proposed Tariff Rule 12.12 – Carriage of baggage

The Agency has determined that Proposed Tariff Rule 12.12 does not represent an exemption from liability, and that if it were included in WestJet’s domestic Tariff, it would be considered reasonable.

ORDER

[112] WestJet has stated that it knew of no reason why the principles the Agency applied in considering its international Tariff should be different from those it would apply to WestJet’s domestic Tariff. WestJet has proposed amendments to existing domestic Tariff Rule 12 in an effort to incorporate those principles.

[113] Pursuant to subsection 27(1) of the CTA, on an application to the Agency, the Agency may make any order or grant any further relief that to the Agency seems just and proper.

[114] In recognition of the fact that WestJet has proposed amendments to existing domestic Tariff Rule 12 and that many of the provisions of that existing Tariff Rule do not reflect the principles set out in the Show Cause Decision, the Agency considers it just and proper to order WestJet to amend existing domestic Tariff Rule 12.

[115] In this Decision, the Agency has made findings based on the parties’ submissions concerning the clarity and reasonableness of Proposed Tariff Rule 12. Accordingly, in amending existing domestic Tariff Rule 12, the Agency orders WestJet to conform to the findings set out in this Decision and to publish its amended Tariff.

[116] The Agency notes that WestJet’s existing Tariff Rules 4.1 and 4.4 address matters similar to those at issue in the proceedings concerning WestJet’s international tariff. Accordingly, in order to ensure that its domestic Tariff is consistent with the findings in this Decision, as well as the principles the Agency applied in considering its international Tariff, WestJet shall make any consequential amendments to domestic Tariff Rules 4.1, 4.4 and any other relevant provisions of its domestic Tariff.

[117] In making amendments to its domestic Tariff, the Agency refers WestJet to the findings and order set out in Decision No. 249-C-A-2012 relating to WestJet’s international Tariff.

[118] Pursuant to paragraph 28(1)(b) of the CTA, this order shall come into force when WestJet complies with the above or in 30 days from the date of this Decision, whichever is sooner.

APPENDIX A TO DECISION NO. 252-C-A-2012

PROPOSED TARIFF RULE 12

  1. Subject to the exception stated in Rule 2.5, if a flight is overbooked or cancelled, with the result that a ticketed passenger is not transported on a flight for which he held confirmed space, the Carrier will give the passenger the option to choose among the following remedies (“the alternative remedies”):
    1. 1.1 transportation, without further charge, to the passenger’s intended destination on a transportation service which service will be identified by the Carrier; and/or
    2. 1.2 transportation, without further charge, to the passenger’s point of origin on a transportation service which service will be identified by the Carrier; and/or
    3. 1.3 a monetary payment in an amount to be defined by the Carrier which shall in no case be less than the value of the unused portion of the passenger’s ticket; and/or
    4. 1.4 a credit, to be defined by the Carrier, towards the purchase of future transportation on a service operated by the Carrier.
  2. In identifying the transportation service to be offered to the passenger, the Carrier will not limit itself to considering its own services or the services of carriers with which it has interline agreements.
  3. In defining the alternative remedies to be offered, the Carrier will consider, to the extent they are known to the Carrier, the circumstances of the passenger affected by the overbooking or cancellation, including any expenses which the passenger, acting reasonably, may have incurred as a result of the overbooking or cancellation as, for example, costs incurred for accommodation, meals or additional transportation.
  4. In defining the alternative remedies to be offered, the Carrier will make a good faith effort to fairly recognize, and appropriately mitigate, the impact of the overbooking or cancellation upon the passenger.
  5. If a passenger accepts the alternative remedies offered by the Carrier, that acceptance shall be in full and final satisfaction of all claims the passenger may have had against the Carrier by reason of the overbooking or cancellation.
  6. If a passenger declines to accept the alternative remedies offered by the Carrier, the passenger shall be entitled to exercise any legal rights it may have against the Carrier by reason of the overbooking or cancellation.
  7. If a flight is delayed and the delay between the scheduled departure of the flight and the actual departure of the flight exceeds 4 hours, the Carrier will provide the passenger with a meal voucher.
  8. If a flight is delayed by more than 8 hours and the delay involves an overnight stay, the Carrier will pay for the overnight hotel stay and airport transfers for passengers who did not start their travel at that airport.
  9. If the passenger is already on the aircraft when a delay occurs, the airline will offer drinks and snacks if it is safe, practical and timely to do so. If the delay exceeds 90 minutes and circumstances permit, WestJet will offer passengers the option of disembarking from the aircraft until it is time to depart if safe and practical to do so.
  10. The carrier will endeavour to transport the passenger and baggage with reasonable dispatch, but times shown in timetables or elsewhere are not guaranteed and form no part of this contract. Schedules are subject to change without notice.
  11. The agreed stopping places are those places shown in the carrier’s timetable as scheduled stopping places on the route. The carrier may, without notice, substitute alternative carriers or aircraft and, if necessary, may alter or omit stopping places shown in the timetable.
  12. Without limiting the generality of the foregoing, the carrier cannot guarantee that the passenger’s baggage will be carried on the flight if sufficient space is not available as determined by the carrier.

APPENDIX B TO DECISION NO. 252-C-A-2012

4.1 Carrier Schedule Changes and Cancellation / Refund Terms

The Carrier reserves the right to cancel or change the planned departure, schedule, route, aircraft or stopping places of any flight for which fares in respect of a Domestic Service have been paid, at any time and from time to time, for any reason, without notice to any passengers affected thereby and, in connection therewith, THE CARRIER SHALL NOT BE LIABLE TO ANY PASSENGER in respect of such cancellation or change, whether or not resulting from an Event of Force Majeure; provided that, the Carrier may and reserves the right, at its sole discretion, to provide any passengers affected by such cancellation or change with:

  1. a credit, valid for one year from the cancellation date, towards the provision of a fare relating to a future flight, which credit shall be equal to the original fare which was canceled; or
  2. to otherwise refund to such passenger, an amount which shall not be greater than the fare paid by that passenger in respect of that flight.

4.4 Carrier Cancellation Options

When a flight is cancelled:

  1. Passengers will be re-accommodated to the next available seat on the Carrier’s next available flight or Passengers who choose not to travel with the Carrier will be provided with a travel credit for any unused portion of their flight;
  2. Passengers will be re-accommodated on an alternate Carrier by the Carrier where the airline deems the alternative re-accommodation, change or cancellation options to be unreasonable. The option to transport passengers on alternate Carriers as a result of delay or cancellation will be provided at discretion of the Carrier;
  3. Passengers who choose to purchase a seat and travel on an alternate Carrier will be refunded or given the full amount of their flight in a WestJet Travel Bank credit for any unused portion of their WestJet flight at the discretion of the Carrier.

RULE 12 TRAVELER’S RIGHTS PROVISIONS

  1. If a flight is delayed and the delay between the scheduled departure of the flight and the actual departure of the flight exceeds 4 hours, the Carrier will provide the passenger with a meal voucher.
  2. If a flight is delayed by more than 8 hours and the delay involves an overnight stay, the Carrier will pay for overnight hotel stay and airport transfers for passengers who did not start their travel at that airport.
  3. If the passenger is already on the aircraft when a delay occurs, the airline will offer drinks and snacks if it is safe, practical and timely to do so. If the delay exceeds 90 minutes and circumstances permit, WestJet will offer passengers the option of disembarking from the aircraft until it is time to depart if safe and practical to do so.
  4. The carrier will endeavor to transport the passenger and baggage with reasonable dispatch, but times shown in timetables or elsewhere are not guaranteed and form no part of this contract.
  5. The agreed stopping places are those places shown in the carrier's timetable as scheduled stopping places on the route. The carrier may, without notice, substitute alternative carriers or aircraft and, if necessary, may alter or omit stopping places shown in the timetable.
  6. Schedules are subject to change without notice. The carrier is not responsible or liable for failure to make connections or for failure to operate any flight according to schedule, or for a change to the schedule of any flight. Under no circumstances shall the carrier be liable for any special, incidental or consequential damages arising from the foregoing (including the carriage of baggage) whether or not the carrier had knowledge that such damage might be incurred.
  7. Without limiting the generality of the foregoing, the carrier cannot guarantee that the passenger's baggage will be carried on the flight if sufficient space is not available as determined by the carrier.
  1. Lukács v. WestJet, Decision No. 418-C-A-201↑
  2. Ibid. ↑
  3. For example, Lukács v. WestJet  - Decision No. 483-C-A-2010. A subsequent application by WestJet for leave to appeal was denied by the Federal Court of Appeal. ↑

Member(s)

J. Mark MacKeigan
John Scott
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