Decision No. 312-C-A-2015

APPLICATION

[1] Austin Chai filed an application against Sunwing Airlines Inc. (Sunwing) alleging that Sunwing’s terms and conditions of carriage relating to flight delays are unjust and unreasonable, and that the compensation offered to him by Sunwing in this matter is inadequate.

ISSUES

1. Did Sunwing properly apply the terms and conditions of carriage relating to flight delays appearing in its Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada on the Other Hand (International Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
2. Are the terms and conditions governing flight delays appearing in Sunwing’s International Tariff just and reasonable within the meaning of subsection 111(1) of the ATR?

ISSUE 1: DID SUNWING PROPERLY APPLY THE TERMS AND CONDITIONS OF CARRIAGE RELATING TO FLIGHT DELAYS APPEARING IN ITS INTERNATIONAL TARIFF, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

Positions of the parties

Mr. Chai

[2] Mr. Chai and his travelling companion were scheduled to depart from Toronto, Ontario, Canada to Cancun, Mexico on Sunwingʼs Flight No. WG535 at 10:30 a.m. on January 18, 2015, but they were delayed for more than six hours. Mr. Chai submits that Sunwing’s terms and conditions of carriage relating to flight delays are unjust and unreasonable. He also maintains that the compensation offered to him by Sunwing in this matter is inadequate, and requests compensation that corresponds to what is required under regulations relating to delay promulgated by the European Union (i.e., the Canadian dollar equivalent of 400 euros for each passenger), or at least an amount that equals 1/7 of the total trip cost.

[3] Mr. Chai states that Sunwing failed to provide notice of the delay in departure of Flight No. WG535 until check-in for that flight at the airport. He submits that two different reasons were provided by Sunwing for the delay; some passengers were advised that the delay was due to mechanical issues, while others were told that the delay was related to a pilot scheduling issue. He argues that both situations were within Sunwing’s control to mitigate and limit the loss of time for travellers, and that contingency plans should have been in place to reduce or eliminate any delays/inconveniences. Mr. Chai maintains that Sunwing’s offer of a $75 travel voucher, with a one-year redemption limit, is inadequate.

Sunwing

[4] Sunwing filed an affidavit by one of its employees. According to this affidavit, this employee had knowledge of the events relating to the delay of Mr. Chai’s flight because of their position in Sunwing’s Operational Control Centre.

[5] Sunwing acknowledges that there was a six-hour delay of Mr. Chai’s flight on January 18, 2015. Sunwingʼs evidence reflects that at approximately 6:25 p.m. on January 17, 2015, its aircraft C‑FQWK, which was not the aircraft on which Mr. Chai was scheduled to travel, encountered an on-ground maintenance issue that resulted in the aircraft being grounded for an unforeseen period of time (AOG aircraft). The evidence also reflects that the AOG aircraft had been scheduled to operate on January 17 and 18, 2015, and that this aircraft represented 50 percent of Sunwing’s scheduled capacity for January 18, 2015. According to the affidavit, Sunwing had the following two options:

• Cancel the flights proposed to be operated by the AOG aircraft, resulting in substantial and material adverse consequences to over 734 passengers scheduled to fly on the cancelled flights; or
• Redeploy the remaining active aircraft across the company’s systems, resulting in flight delays, but permitting all of Sunwing’s passengers to travel, albeit, experiencing flight delays.

[6] Sunwing opted to redeploy its remaining aircraft and delay the flights.

[7] Sunwing states that it has two immediate passenger flight delay notification procedures, namely:

• Providing notification of flight delays on its Web site; and
• Providing e-mail alerts to passengers who have registered for its flight delay alert service.

[8] Sunwing submits that, at approximately 10:45 p.m. on January 17, 2015, its Web site provided information regarding the flights in question, including Mr. Chai’s flight, and Sunwing advised passengers who had registered for the flight delay alert service, of the flight delay. Sunwing points out that Mr. Chai did not register for that service.

[9] Sunwing argues that it made all reasonable efforts to notify passengers of the delay, and that nothing further could have been done given the last-minute nature of that delay.

[10] Sunwing points out that notwithstanding the fact that its International Tariff does not provide for compensation for delays, Sunwing provided each passenger with a $75 travel voucher and a $15 meal voucher. Sunwing also points out that the European Union Regulation (EC) No. 261/2004 is not applicable in Canada.

Analysis and findings

[11] With respect to flight delay, Rule 15(1)(c) of Sunwing’s International Tariff provides that:

The Carrier will endeavor to transport the passenger and baggage with reasonable dispatch, but times shown in timetables or elsewhere are not guaranteed.

[12] Similarly, Rule 15A(d) of the International Tariff provides that:

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.

[13] Further, Rule 15A(a) of the International Tariff provides that:

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.

[14] The Agency notes that the schedule change for Mr. Chai’s flight and the provision of a meal voucher are provided for in Sunwingʼs International Tariff.

[15] With respect to Mr. Chai’s submission that he was only advised of the delay of his flight when he checked in for that flight, Rule 15(1)(e) of Sunwing’s International Tariff provides, in part, that “in the event of a delay […] or schedule change the carrier will make reasonable efforts to inform the passengers of delays […] and schedule changes, and, to the extent possible, the reasons for them.”

[16] The Agency is of the opinion that given the last-minute nature of the flight delay, the measures taken by Sunwing to notify passengers of that delay represented reasonable efforts, as required by Rule 15(1)(e) of Sunwing’s International Tariff.

[17] As a result, the Agency finds that Sunwing properly applied the terms and conditions of carriage relating to flight delays appearing in its International Tariff, as required by subsection 110(4) of the ATR.

ISSUE 2: ARE THE TERMS AND CONDITIONS GOVERNING FLIGHT DELAYS APPEARING IN SUNWING’S INTERNATIONAL TARIFF JUST AND REASONABLE WITHIN THE MEANING OF SUBSECTION 111(1) OF THE ATR?

Positions of the parties

Mr. Chai

[18] Mr. Chai contends that the delay he experienced is addressed in the European Union Regulation (EC) No. 261/2004, which establishes common rules governing compensation and assistance to passengers in the event of, among other matters, a long flight delay.

Sunwing

[19] Sunwing submits that the Agency has addressed in several decisions a carrier’s right to change its schedules. For example, Sunwing refers to Decision No. 16-C-A-2013 (Lukács v. Porter Airlines Inc.), where the Agency addressed a Porter tariff provision relating to schedule changes, which provision, according to Sunwing, is basically the same as a Sunwing provision. In that Decision, the Agency found that “carriers should have the latitude required to amend flight schedules based on commercial and operational obligations, including the management of the air carrier’s fleet so as to achieve optimal results.” Sunwing also refers to Decision No. 313‑C‑A‑2013 (Lukács v. Sunwing), where the Agency determined that Sunwingʼs tariff provisions, which relate, in part, to the carrier’s obligations respecting schedule changes, were reasonable as they struck “a balance between the right of passengers to be subject to reasonable terms and conditions of carriage and Sunwing’s statutory, commercial and operational obligations”, and were consistent with previous Agency decisions.

[20] Sunwing maintains that its actions were clearly within the Agency’s finding in Decision No. 16‑C‑A‑2013, and that those actions resulted in minimal disruption to passengers.

Analysis and findings

[21] As pointed out by Sunwing, the Agency has determined, in previous decisions, that carriers should have the flexibility to alter their schedules to respond to commercial and operational obligations, and that tariff provisions reflecting such flexibility are therefore just and reasonable within the meaning of subsection 111(1) of the ATR.

[22] In this case, the Agency finds that the terms and conditions governing flight delays appearing in Sunwing’s International Tariff are just and reasonable within the meaning of subsection 111(1) of the ATR.

[23] With respect to Mr. Chaiʼs submission concerning the European Union Regulation (EC) No. 261/2004, the Agency previously ruled on this in Decision No. 10-C-A-2014. In that Decision, the Agency stated that: “the Agency makes determinations on provisions relating to legislation or regulations that the Agency is able to enforce. Legislation or regulations promulgated by a foreign authority, such as the European Union’s Regulation (EC) 261/2004, do not satisfy this criterion. If a carrier feels compelled or has been instructed by a foreign authority to include a reference in its tariff to that authority’s law, the carrier is permitted to do so, but it is not a requirement imposed by the Agency.”

CONCLUSION

[24] In light of the foregoing, the Agency dismisses Mr. Chaiʼs application.