Decision No. 26-C-A-2020
APPLICATION by Robert and Karen Gloge (applicants) against WestJet.
SUMMARY
[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against WestJet regarding a schedule irregularity when their direct flight from Calgary, Alberta, to Fort Lauderdale, Florida, on March 16, 2019, was cancelled due to the grounding of the Boeing 737 MAX 8s.
[2] The applicants are seeking a total of CAD 1,951.75, which is the difference between the new flights (CAD 2,848.34) plus out of pocket expenses and the refund received.
[3] The Agency will address the following issue:
Did WestJet properly apply the terms and conditions set out in its International/Transborder Passenger Fares and Rules Tariff No. WS-1 Containing Local and Joint Rules, Fares and Charges on Behalf of WestJet Airlines, Ltd Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points in Area 1/2/3 and Between Points in the US and Points in Canada, NTA(A) No. 518 (Tariff), as required by subsection 110(4) of the Air Transportation Regulation, SOR/88-58, as amended (ATR)? If WestJet did not properly apply the Tariff, what remedy, if any, should be ordered?
[4] For the reasons outlined below, the Agency finds that WestJet properly applied its Tariff, as required by subsection 110(4) of the ATR. The Agency therefore dismisses the application.
BACKGROUND
[5] The applicants held tickets to travel directly from Calgary, Alberta, to Fort Lauderdale, Florida, on March 16, 2019, arriving at 5:05 p.m. On March 15, 2019, the applicants’ flight was rescheduled to March 17, 2019, arriving in Fort Lauderdale on March 18, 2019. The applicants were told there were no other seats available to get to Fort Lauderdale earlier.
[6] The reprotected flight was not satisfactory to the applicants as they had pre-purchased a cruise leaving Fort Lauderdale on March 17, 2019, at 5:00 p.m. The applicants requested a refund and purchased new tickets with Delta Airlines departing from Great Falls, Montana, to Fort Lauderdale, via Salt Lake City, Utah, and arriving in Fort Lauderdale at 5:30 a.m. on March 17, 2019.
[7] WestJet refunded the applicants. WestJet would not cover the costs of a rescheduled flight departing from a different country and a city that was not in close proximity to the original city of departure.
[8] The applicants drove to Great Falls to take their replacement flight.
THE LAW AND RELEVANT TARIFF PROVISIONS
[9] The relevant provisions of the ATR and WestJet’s Tariff are set out in the Appendix.
POSITIONS OF THE PARTIES
The applicants
[10] The applicants purchased round-trip tickets from Calgary to Fort Lauderdale using a combination of credit card reward points and credit card payment of CAD 413.34 in fees and taxes. They checked in on March 15, 2019, at 9:45 a.m. and received boarding passes, but were not assigned seats. The same day, they were notified at 4:30 p.m. that their flight was rescheduled on a Delta Airlines flight leaving on March 17, 2019, and arriving in Fort Lauderdale on March 18, 2019, one day after their cruise was scheduled to leave the port in Fort Lauderdale. In addition, the rescheduled flight was no longer direct. The applicants tried to get an earlier flight, so that they would not miss their cruise, but they were told there were no other seats available across western Canada that would get to Fort Lauderdale on time. That evening, on March 15, 2019, the applicants booked a new flight leaving from Great Falls. They drove 512 km to Great Falls for their departure flight on March 16, 2019. The applicants claim a total of CAD 1,951.75, which is the difference between the new flights (CAD 2,848.34) plus out-of-pocket expenses and the refund received, which included the refunded credit card reward points (a nominal cash value of CAD 1,500 with respect to the cancelled tickets), the refunded fees and taxes, and certain cancelled hotel accommodation and taxi costs.
[11] The applicants state that they notified WestJet of the available flight leaving Great Falls and claim that it refused to consider this flight as it was with Delta Airlines and was departing from a different city. The applicants claim that WestJet mentioned that they should have gone to Kalispell, Montana, a closer airport, instead of Great Falls, but the applicants argue that there were no connection flights they could take from that location.
[12] They claim that their original flight was not cancelled and left on time. They assume that WestJet either changed the size of the aircraft or overbooked the aircraft, which resulted in their flight being rescheduled. The applicants argue that their flight was not directly impacted by the Boeing 737 MAX 8s’ grounding, but that WestJet made changes due to operational requirements. The applicants contend that this is not a force majeure, but instead WestJet needed to borrow the Boeing 737-700 originally scheduled to fly from Calgary to Fort Lauderdale for another flight. The applicants assert that WestJet failed to apply its Tariff, as they state that the carrier should be held to the rules in the Tariff related to schedule irregularities under the carrier’s control.
[13] The applicants state that they did not want to accept a refund, but believed that they had no choice since the rescheduled flight did not meet their needs and they would be taking on a significant financial loss if they missed their cruise. In addition, they do not believe that WestJet’s proposed rescheduled flight was equal in value as the original flight was direct and the rescheduled flight had 4 stops (2 connections) and was over 20 hours long as opposed to 5 and a half hour.
[14] Furthermore, the applicants argue that WestJet could have provided them with more notice and did not reschedule their flight within a reasonable amount of time. They state that if WestJet had informed them earlier, they might have been able to find an alternate flight departing from Calgary and would have made it to their destination in time for their cruise. They believe that since the Boeing 737 MAX 8s were grounded worldwide, WestJet should have had a contingency plan in place and should have known that Transport Canada’s decision to ground the aircraft was imminent.
WestJet
[15] WestJet notes that Transport Canada grounded all Boeing 737 MAX 8 aircraft on March 13, 2019. WestJet asserts that the grounding of the Boeing 737 MAX 8s was out of its control.
[16] WestJet explains that approximately 72 hours prior to the flight departure, an aircraft is automatically assigned. On March 14, 2019, a Boeing 737-700 was assigned to the applicants’ flight.
[17] WestJet states that the Delta flight departing from Great Falls that was suggested as an alternative by the applicants was not an option that it would consider as it was not within the same country nor a city in close proximity to the original city of origin. WestJet asserts that it is committed to reroute or refund passengers, especially in an uncontrollable situation, but that it could not find a revised routing that would meet the applicants’ requirements.
[18] WestJet notes that the grounding of the Boeing 737 MAX 8s resulted in 13 aircraft being removed from operations and over 10,000 guests required rescheduling within the first 3 weeks. WestJet submits that it worked diligently to reschedule affected guests’ flights to get them to their destination in a timely manner. WestJet explains that 28 guests were affected by the aircraft downgauge of the applicants’ original flight.
[19] WestJet asserts that on March 15, 2019, when the applicants did not accept the rescheduled flight and requested a full refund, their contract with WestJet ended.
ANALYSIS AND DETERMINATIONS
[20] The onus is on the applicants 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.
[21] Rule 75(C)(3)(b) of its Tariff requires WestJet, in the event of a schedule irregularity outside of its control, to reprotect the passenger, provided there is space available on another carrier’s flight with whom they have a commercial agreement, if there are no available flights with WestJet.
[22] The Agency finds that the rescheduling of the applicants’ flight was outside of the carrier’s control as Transport Canada grounded all Boeing 737 MAX 8 aircraft on March 13, 2019, resulting in 13 aircraft being removed from service in WestJet’s fleet and requiring the rescheduling of over 10,000 passengers’ flights within the following 3 weeks. It is unsurprising that, in endeavouring to meet the sudden shortfall of seats on various routes, aircraft would have to be reassigned and that not all reassigned aircraft would have the same seating capacity as the originally assigned aircraft.
[23] After cancelling the applicants’ original flight, WestJet reprotected them on the next available flight out of Calgary, operated by Delta Airlines. The reprotected flight did not satisfy the applicants due to the length of the itinerary, which consisted of 20 hours of travel with multiple stops, that would have made them miss the departure of their cruise. WestJet and the applicants could not agree on other alternative routings that would meet the applicants’ requirements and, pursuant to Rules 75(C)(e) and 105(B) of its Tariff, WestJet provided the applicants with a refund.
[24] In light of the above, the Agency finds that WestJet properly applied Rule 75(C)(3)(b) of its Tariff by rescheduling the applicants’ flight on another carrier’s flight due to a schedule irregularity outside its control, and Rules 75(C)(e) and 105(B) of its Tariff by providing the applicants with a refund when the rescheduled flight did not meet their satisfaction, as required by subsection 110(4) of the ATR.
CONCLUSION
[25] The Agency therefore dismisses the application.
APPENDIX TO DECISION NO. 26-C-A-2020
Air Transportation Regulation, SOR/88-58, as amended (ATR)
Subsection 110(4) of the ATR requires that a carrier operating an international service properly 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:
- take the corrective measures that the Agency considers appropriate; and
- 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/Transborder Passenger Fares and Rules Tariff No. WS-1 Containing Local and Joint Rules, Fares and Charges on Behalf of WestJet Airlines, Ltd Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points in Area 1/2/3 and Between Points in the US and Points in Canada, NTA(A) No. 518 (Tariff)
WestJet’s Tariff defines a “schedule irregularity” as follows under Rule 1:
SCHEDULE IRREGULARITIES means the following:
- Delays in the scheduled departure or arrival of the carrier’s flight resulting in the passenger missing his/her onward connecting flight(s) or any other delay or interruption in the scheduled operation of the carrier’s flight, or;
- Cancellation of flight, or omission of a scheduled stop, or;
- Substitution of aircraft or of a different class of service, or;
- Schedule changes which require rerouting of a passenger at departure time of his or her original flight.
Rule 75(C)(3) of its Tariff states:
SCHEDULE IRREGULARITIES
In the event of a schedule irregularity, not within the carrier’s control (e.g. force majeure), the carrier will provide the following:
-
- The carrier will offer the passenger the choice to travel on another of its scheduled flights on the same route as the passenger was originally ticketed or to travel on a different routing operated by the carrier to the same ticketed destination.
- If these options are not available, the carrier will offer to transport the passenger on the same route as he/she was originally ticketed or on a different route operated by the services of another carrier with whom the original air carrier has a commercial agreement and provided space is available.
….
e. Should the alternate transportation proposed by the carrier not meet the passenger’s satisfaction, the unused portion of the passenger’s ticker(s) will be refunded. The refund will be made to the purchaser of the ticker(s)….
Rule 105 of its Tariff states:
REFUNDS
….
B. INVOLUNTARY CANCELLATIONS
In the event a refund is required because of the Carrier’s failure to operate or refusal to transport, the refund will be made as follows:
If the ticket is totally or partially unused, the total fare paid for each unused segment will be refunded.
Member(s)
- Date modified: