Decision No. 27-C-A-2017

INTRODUCTION

[1] Gilbert Nkubili filed an application with the Canadian Transportation Agency (Agency) against Air China regarding the cancellation of his flight. Mr. Nkubili states that this cancellation caused him inconvenience, and he is seeking compensation.

BACKGROUND

[2] On February 22, 2016, Mr. Nkubili reserved four round-trip tickets from Montréal, Quebec, Canada to Havana, Cuba, for travel departing on July 1, 2016 and returning on August 1, 2016. On June 4, 2016, Mr. Nkubili received an e-mail from Air China entitled Air China Schedule Change Email, informing him that his return Flight No. CA880, leaving Havana on August 1, 2016 at 10:00 a.m., had been changed to Air china Flight No. CA880 leaving Havana on July 30, 2016, at 1:30 p.m.

[3] Mr. Nkubili states that he made several attempts to contact Air China by telephone about this cancellation, but never received an answer. When he reached Air China, he insisted that he be given a replacement flight allowing him to leave Havana on August 1, 2016. Mr. Nkubili contends that after a discussion, Air China offered him a flight from Havana to Montréal on August 6, 2016.

PRELIMINARY MATTER

[4] Mr. Nkubili submits that the arrival time of the replacement flights proposed by Air China was not within a time frame of no more than one hour in relation to the arrival time of the initial flight. Mr. Nkubili is therefore claiming compensation, and is of the opinion that Rule 87 of Air China’s International Passenger Rules and Fares Tariff, NTA(A) No. 354 (Tariff) is unreasonable. This matter refers to the Tariff rule concerning denied boarding, which is not applicable in this case as it pertains to the cancellation of a flight.

[5] Therefore, the Agency will not address this issue.

ISSUE

[6] Did Air China properly apply the terms and conditions set out in Rule 80 of its Tariff, which governs revised routings, failure to carry and missed connections, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?

SUMMARY OF CONCLUSIONS

[7] The Agency finds that Air China did not properly apply the terms and conditions set out in Rule 80 of its Tariff.

THE LAW

[8] The Tariff provisions and statutory extracts relevant to this matter are set out in the Appendix.

POSITIONS OF THE PARTIES

Mr. Nkubili

[9] Mr. Nkubili submits that, contrary to Rule 80 of the Tariff, Air China did not reserve seats or confirm that seats would be reserved for him and his family on a return flight leaving Cuba on August 1, 2016. On June 27, 2016, Air China offered Mr. Nkubili seats on a return flight with Air Canada on August 1, 2016 but, according to Mr. Nkubili, Air China did not provide any evidence showing that seats had been reserved for him and his family on board this flight. Instead, he submits that Air China’s solution for a return flight on August 1, 2016 was based on the possible cancellation by at least four persons on the Air Canada flight, on the day of the flight. Mr. Nkubili states that this solution was discussed on the telephone, and that Air China did not want to explain what would happen if those cancellations did not occur. Mr. Nkubili submits that it is reasonable for passengers to expect to be given seat confirmation prior to a flight.

[10] Mr. Nkubili is of the opinion that Air China had time to find other options for the passengers affected by the cancellation of the August 1, 2016 flight, considering that this cancellation occurred on June 4, 2016, nearly two months prior to Mr. Nkubili’s return flight. Mr. Nkubili states that Air China should have reserved seats on another flight to allow him and his family to return to Montréal on the initially scheduled date, without causing him a “damaging delay”.

[11] Mr. Nkubili states that he waited until July 29, 2016 to receive the confirmed tickets. It is on that date that he checked his e-mails, from Cuba, even though Air China had not asked him to do so to obtain the confirmation. He points out that he did not receive an email from Air China at that time, and that no electronic ticket was sent to him.

[12] Mr. Nkubili finally travelled on Air China’s flight on July 30, 2016. He submits that his stay was shortened and that he lost money on the reservations that had been made and that could not be honoured. He claims the following:

• USD$104 for previously confirmed reservations that were not honoured;
• CAD$25.24 for the cost of sending two formal notices to Air China;
• CAD$69.92 for the cost of using cellphone data in Cuba on July 29, 2016.

Air China

[13] Air China submits that, on June 27, 2016, it offered Mr. Nkubili a return flight with Air Canada departing on August 1, 2016, and started communicating with Air Canada “after [they] gave the solution” to Mr. Nkubili. Air China indicates that it called “Air Canada’s hotline”, and its “colleague” tried to contact Air Canada’s sales manager, in Toronto Ontario, Canada. Air China points out that, once it received the seat confirmation from Air Canada for the August 1, 2016 flight, it requested Mr. Nkubili’s authorization to keep the seats for him and his family, but he never provided the required confirmation.

[14] Nevertheless, Air China asserts that it provided the Flight Interruption Manifest (FIM) ticket to Air Canada in case Mr. Nkubili wanted to take Air Canada’s flight on August 1, 2016.

[15] Air China states that it does not have any commitment with Air Canada for the flight line between Havana, Toronto, and Montréal, such that “the only way is to use the FIM ticket with Air Canada”. Air China further states that the FIM ticket is the “paper ticket solution between airline compan[ies]”.

ANALYSIS AND FINDINGS

[16] When an application is filed with the Agency, the applicant must, on a balance of probabilities, establish that the air carrier has failed to apply the terms and conditions of carriage appearing in the applicable tariff.

[17] This application pertains to an involuntary revised routing. The applicable tariff provision is Rule 80(B)(1) of Air China’s Tariff, which states the following:

In the event carrier cancels a flight, fails to operate according to schedules, substitutes a different type of equipment or different class of service, or is unable to provide previously confirmed space, or the passenger is refused passage or removed, in accordance with Rule 55 (Refusal to Transport – Limitation of carriage) herein, carrier will either:

1. Carry the passenger on another of its passenger aircraft on which space is available; or
2. Endorse to another carrier or to any other transportation service the unused portion of the ticket for purposes of rerouting; or
3. Reroute the passenger to destination named on the ticket or applicable portion thereof by its own services or by other means of transportation; […]

[18] As set out in clause (a) of Tariff Rule 80(B)(1), Air China offered as a replacement two of its flights to Mr. Nkubili. However, neither of the offered flights was leaving on the original flight date, i.e., August 1, 2016. The first return flight offered was leaving on July 30, 2016, two days before the initially scheduled return date, and the second one was leaving on August 6, 2016, five days after the initially scheduled return date. Although it is not specified in the Tariff, the Agency deems it reasonable that the replacement flight be on the same date as that of the cancelled flight. Therefore, Air China did not properly apply the terms and conditions set out in Rule 80(B)(1)(a) of its Tariff.

[19] With respect to clause (b) of Rule 80(B)(1), Air China tried to arrange for a return flight for Mr. Nkubili with Air Canada on August 1, 2016. However, it appears that Air Canada was unable to obtain and confirm seats on this flight for Mr. Nkubili and his family. Instead Air China stated in its e-mail to Mr. Nkubili on June 28, 2016 that “The condition of the firm ticket, when you arrive at the airport, we check with Air Canada if they still have the seat on that airplane, we could use firm ticket. (Normally only urgent cases, like flight delayed due to the weather or flight cancelled on the same day.) […] If you want [to] know the exact date and seat booked, we could only change the date for your ticket with our flight, on July 30 or August 6” [Emphasis added]. Based on his understanding that four people had to cancel their flights with Air Canada on August 1, 2016 so that they could take this flight, Mr. Nkubili declined Air China’s offer and requested confirmed seats. Air China never clarified the situation with Mr. Nkubili and was never able to provide seat confirmation for the Air Canada flight of August 1, 2016.

[20] Even on July 18, 2016, less than two weeks before the initially scheduled return date, when Air China sent an e-mail to Mr. Nkubili concerning Air Canada’s flight on August 1, 2016, Air China did not confirm that the seats had been reserved, or that they could be: “We just get the confirm that we could exchange your ticket on August 1, 2016. And we could provide the ticket number. If Air Canada still have the place, we could exchange your ticket. Please give us the authorization for exchanging your ticket number for your trip with Air Canada on August 1, 2016” [Emphasis added]. Based on this e-mail, it appears that the allocation of seats for Mr. Nkubili and his family was conditional upon Air Canada still having available seats. In addition, at that time, Mr. Nkubili was already in Cuba, and Air China had not asked him to check his e-mails to obtain a confirmation. Mr. Nkubili had already informed Air China several times that he was waiting to receive confirmation that four seats were reserved for him and his family on the Air Canada flight on August 1, 2016, as well as the ticket numbers, which Air China had still not provided on July 18, 2016.

[21] To comply with the terms and conditions set out in Rule 80 of its Tariff, Air China should have offered four confirmed seats on the Air Canada flight to Mr. Nkubili. This failure to provide confirmation of seats demonstrates that Air China did not do everything in its power, as set out in Rule 80(B)(1)(b) of its Tariff, to offer a confirmed flight with another carrier for a return trip on August 1, 2016.

[22] The parties did not discuss the application of Rule 80(B)(1)(c) of Air China’s Tariff.

[23] Therefore, the Agency finds that Air China did not properly apply the terms and conditions set out in Rule 80 of its Tariff, which governs revised routings, failure to carry and missed connections, as required by subsection 110(4) of the ATR.

[24] Paragraph 113.1(b) of the ATR provides that if an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may direct it to 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.

[25] Based on the above finding that Air China did not properly apply the terms and conditions set out in Rule 80 of its Tariff, as required by subsection 110(4) of the ATR, the Agency, pursuant to paragraph 113.1(b) of the ATR, finds that Mr. Nkubili is entitled to receive compensation for the expenses incurred as a result of Air China’s failure to properly apply its Tariff, less any refund already received.

[26] More specifically, Mr. Nkubili provided receipts showing that he spent the amount of USD$104.50 for previously confirmed reservations that were not honoured.

ORDER

[27] Pursuant to paragraph 113.1(b) of the ATR, the Agency orders Air China to compensate Mr. Nkubili, by no later than March 13, 2017, in the amount of USD$104.50 (value equivalent to the amount that was spent by Mr. Nkubili on April 27, 2016).

[28] Mr. Nkubili is also seeking reimbursement for the cost of sending two formal notices to Air China. The Agency considers these expenses to be costs. The Agency’s practice is to award costs only in special or exceptional circumstances. The Agency finds that this case does not constitute special or exceptional circumstances and, therefore, the Agency will not order the reimbursement of these costs. Mr. Nkubili is also seeking reimbursement for the cost of using cellphone data in Cuba on July 29, 2016. The Agency considers these costs to be unreasonable, given that Air China had not asked Mr. Nkubili to check his e-mails from Cuba to obtain the confirmed tickets. Therefore, the Agency will not order Air China to reimburse these costs to Mr. Nkubili.

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Appendix

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

110 (4) Where a tariff is filed containing the date of publication and the effective date and is consistent with these Regulations and any orders of the Agency, the tolls and terms and conditions of carriage in the tariff shall, unless they are rejected, disallowed or suspended by the Agency or unless they are replaced by a new tariff, take effect on the date stated in the tariff, and the air carrier shall on and after that date charge the tolls and apply the terms and conditions of carriage specified in the tariff.

113.1 If an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may direct it 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.

Air China’s International Passenger Rules and Fares Tariff, NTA(A) No. 354

Rule 55(C)(1)

Limitation of liability

Except as the Convention or other applicable law may otherwise require:

(1) Carrier is not liable for any death, injury, delay, loss, or other damage of whatsoever nature (hereinafter in this tariff collectively referred to as “damage”) to passengers or unchecked baggage arising out of or in connection with carriage or other services performed by carrier incidental thereto, unless such damage is caused by the negligence or willful fault of carrier and there has been no contributory negligence of the passenger. […]

Rule 80(B)(1)

Involuntary revised routings

(1) In the event carrier cancels a flight, fails to operate according to schedules, substitutes a different type of equipment or different class of service, or is unable to provide previously confirmed space, or the passenger is refused passage or removed, in accordance with Rule 55 (Refusal to transport – Limitation of carriage) herein, carrier will either:

(a) Carry the passenger on another of its passenger aircraft on which space is available; or

(b) Endorse to another carrier or to any other transportation service the unused portion of the ticket for purposes of rerouting; or

(c) Reroute the passenger to destination named on the ticket or applicable portion thereof by its own services or by other means of transportation; […]