Decision No. 35-C-A-2018

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) regarding issues that they encountered with Air Canada on the return portion of their international itinerary.

[2] The applicants are seeking relief in the amount of $1,350 per passenger, which they deem to be the equivalent of the maximum of 400% of the fee charged for compensation, in keeping with the denied boarding compensation provision (Rule 110) of WestJet’s International and Transborder (US) Tariff, NTA(A) No. 518 (WestJet’s Tariff). The applicants are also seeking compensation for out-of-pocket expenses that they incurred as a result of Air Canada’s actions.

[3] Air Canada submits that the applicants are not entitled to compensation for denied boarding, flight delay or out-of-pocket expenses, and that the application should be dismissed.

[4] The issue before the Agency is whether Air Canada properly applied the terms and conditions set out in its International Passenger Rules and Fares Tariff NTA (A) No. 458 (Tariff).

[5] For the reasons outlined below, the Agency finds that the applicants have failed to demonstrate that Air Canada did not properly apply the terms and conditions set out in its Tariff. Therefore, the Agency dismisses the application.

BACKGROUND

[6] The applicants purchased return tickets with Air Canada, for travel from Edmonton, Alberta, Canada to Honolulu, Hawaii, United States of America. The return portion of their itinerary included the following scheduled flights:

• Flight No. AC1830 from Honolulu to Vancouver, British Columbia, departing at 11:20 p.m. on November 18, 2016;
• Flight No. AC234 from Vancouver to Edmonton, departing at 8:55 a.m. on November 19, 2016.

[7] The applicants allege they were not able to check in or select seats online ahead of Flight No. AC1830, and that they were made to wait in line at the airport for approximately 4 hours before they could check in for their scheduled flight. The applicants’ flight was subsequently delayed and they arrived in Vancouver later than originally scheduled.

THE LAW

[8] Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff:

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.

[9] 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 grant certain types of relief:

1. take the corrective measures that the Agency considers appropriate; and
2. 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.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicants’ position

[10] The applicants submit that they attempted to select seats for their return flights up to 24 hours prior to departure, but they were unsuccessful. They contend that Air Canada’s online system was unavailable for check in and their attempts to contact the carrier by telephone were also unsuccessful.

[11] The applicants state that they arrived at the airport three and a half hours prior to the scheduled departure time in order to check in, and they were advised to stand in line to do so. The applicants allege that they remained in line “for hours” and were not provided any information on the status of their flight. The applicants submit that while waiting in line, they noted that Air Canada staff were requesting that passengers who were delayed from the previous night come forward for check in.

[12] According to the applicants, they were “held hostage”, waiting in line for hours and it was not until their intended departure time that Air Canada advised passengers that their originally scheduled flight was delayed because another aircraft was required to transport them to Vancouver. The applicants contend that they were never given an explanation of what occurred, but they believe that their scheduled flight was used as a replacement flight for passengers delayed from the previous night. The applicants argue that because they were not allowed to check in, they were denied boarding, or de facto denied boarding, and should be compensated accordingly.

[13] The applicants contend that the compensation provided under Air Canada’s Tariff is unreasonable and they are seeking relief in the amount of 400% of the fee charged as compensation, to the maximum of $1,350.00, as permitted under Rule 110 of WestJet’s Tariff, which governs denied boarding compensation. The applicants submit that compensating passengers at WestJet’s amount would be fair and may persuade the carrier to consider the proper treatment of its passengers in the future.

[14] The applicants also claim out-of-pocket expenses for baggage charges towards which the carrier refused to apply gift certificates in their possession. In addition, the applicants claim $30.00 for their lunch in Vancouver and additional parking expenses associated with their later return to Vancouver.

Air Canada’s position

[15] Air Canada submits that the inbound flight from Vancouver to Honolulu was delayed 3 hours and 55 minutes, due to an unforeseen mechanical problem that resulted in a replacement aircraft being required. The delay of the inbound flight caused the outbound Honolulu to Vancouver flight, on which the applicants were ticketed to travel, to be delayed by approximately 4 hours.

[16] In addition, Air Canada indicates that the previous day’s inbound and outbound Vancouver to Honolulu flights were also cancelled for mechanical reasons. According to the carrier, extra flights were created to replace this set of cancelled flights. Air Canada submits that the Honolulu to Vancouver flight that replaced the previous day’s cancellation, departed the gate at 9:50 p.m. on November 18, 2016 - the same date as the applicant’s scheduled flight, and well before their flight was initially scheduled to depart.

[17] With respect to check in and notification issues raised by the applicants, Air Canada states that it takes all reasonable measures to allow passengers to use web check in. However, it submits that technical issues can occur that make this option impossible. Air Canada indicates that it has verified and confirmed that other passengers on the applicants’ scheduled flight were able to check in online. Air Canada also submits that information on flight delays is made available on its website and its mobile app, and confirms that both avenues were available at the time of the events in dispute.

[18] Furthermore, Air Canada states that unless passengers have expressly consented to and have signed up for flight notifications, information on delays are not sent to passengers. Air Canada submits that the applicants have not indicated if they had signed up for its flight notifications. Nevertheless, Air Canada submits that while it does everything possible to provide the most accurate flight status at all times, it is not liable for non-delivery of messages and it cannot guarantee the timeliness or reliability of SMS message receipt.

[19] In respect of the applicants’ denied boarding claim, Air Canada states that, as per Rule 90 of its Tariff, “a passenger is considered to have been denied boarding when it was not possible to accommodate the passenger on the flight on which he held confirmed reservations and the flight must have departed without him”. Air Canada indicates that, in accordance with this Rule, the applicants travelled on the flight in respect of which they held confirmed reservations, and that therefore, they were not denied boarding. Moreover, Air Canada maintains that there was no swap of aircraft that could possibly amount to de facto denied boarding. Rather, Air Canada confirms that the flight on which the applicants were scheduled to travel (and did travel) was delayed by approximately 4 hours and 33 minutes and, as such, the applicants are not entitled to denied boarding compensation.

[20] With respect to out-of-pocket expenses, Air Canada acknowledges that the applicants should have been able to use gift cards for baggage fees, and indicates that a refund for the charge has been processed. However, the carrier argues that the applicants are not entitled to out-of-pocket expenses for the meal in Vancouver, stating that the passengers were always scheduled for a two‑hour layover, and that it was only the timing of the layover that changed. In respect of the applicants’ claim for extra hours related to car parking, the carrier indicates that, as the applicants did not provide receipts in support of this claim, it is not prepared to compensate for unsubstantiated damages that may have occurred as a result of the delay.

Findings of Fact

[21] In support of its answer, Air Canada submitted copies of the NetLine/Ops documents, which provide flight details for the delayed inbound and outbound Vancouver to Honolulu flights of November 18, 2016 as well as for the flights created to replace the cancelled November 17, 2016 flights.

[22] The evidence demonstrates that there was a mechanical problem with the inbound Vancouver to Honolulu flight on November 18, 2016. A replacement aircraft was required, which resulted in the flight’s delayed arrival in Honolulu and the subsequent delay in the applicants’ outbound Honolulu to Vancouver flight. Furthermore, the previous day’s inbound and outbound Vancouver to Honolulu flights were also cancelled for mechanical reasons and extra flights were created to replace this set of cancelled flights.

[23] The Agency notes that the applicants state that they arrived at the airport and waited in line for approximately 3.5 hours prior to their flight’s scheduled departure time. Given that their flight was originally scheduled to depart at 11:20 p.m., this establishes that the applicants arrived at the airport for check in at approximately 8:00 p.m. The supporting NetLine/Ops documents confirm that the previous day’s replacement Honolulu to Vancouver flight departed the gate at 9:50 p.m. In light of the timing surrounding these two flights, the Agency finds it reasonable to expect that Air Canada’s staff would be calling passengers to check in for the previous day’s replacement flight at the same time that the applicants were waiting in line for their flight.

[24] As appears from the evidence filed in support of Air Canada’s submission, the replacement aircraft used to transport passengers from the previous day was different from the replacement aircraft used for the applicants’ return flight. In light of this, the Agency finds that the applicants were provided accommodation on the flight in relation to which they had confirmed reservations, and therefore, they were not denied boarding or de facto denied boarding.

[25] The Agency notes that the applicants were originally scheduled to depart Honolulu at 11:20 p.m. on November 18, 2016, arriving in Vancouver at 7:00 a.m. the next morning. The applicants were scheduled to then travel from Vancouver to Edmonton at 8:55 a.m., arriving at 11:26 a.m. on November 19, 2016. However, as demonstrated in Air Canada’s answer, the applicants did not depart Honolulu until 3:09 a.m. on November 19, 2016. The applicants arrived in Vancouver at 11:01 a.m. later that morning and ultimately arrived in Edmonton, at 3:59 p.m. on November 19, 2016. Based on the evidence, the Agency finds that the applicants were delayed in arriving at their ultimate destination by approximately 4 hours and 33 minutes.

[26] With respect to the applicants’ inability to check in prior to the flight, Air Canada submits that technical issues can arise and states that other passengers were able to check in online. The applicants refute Air Canada’s claim, stating that the carrier has not provided any statement or authoritative staff sign-off to attest to other passengers being able to check in. Although the applicants were not able to check in online, the Agency notes that they were able to do so at the airport, and were provided accommodation to their destination, on the flight in which they had confirmed reservations, albeit more than 4 hours later than scheduled.

[27] With respect to the out-of-pocket expenses claimed by the applicants, the Agency finds that the applicants were each offered a $10.00 food voucher for the delay pursuant to Air Canada’s Tariff and that this amount covers their meal claim of $30.00. With respect to the applicants’ claim that they should have been able to use gift cards for baggage fees, the Agency notes that Air Canada indicates that it processed a refund for the baggage charges. Given that the applicants confirmed their satisfaction with the carriers’ actions in this respect, the Agency finds that the claim for baggage fees is resolved. Finally, based on the evidence adduced by the parties, the Agency finds that the applicants have not provided sufficient information or any supporting documentation to justify their claim for additional parking expenses.

ANALYSIS AND DETERMINATIONS

[28] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to establish, 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.

[29] The applicants request that the Agency find the actions taken by Air Canada to constitute denied boarding, or de facto denied boarding, and are seeking compensation equivalent to that found under Rule 110, the denied boarding compensation provision of WestJet’s Tariff.

[30] In support of their claim for denied boarding compensation, the applicants indicate that Air Canada requested passengers from the previous day’s delayed flight to present themselves for check in ahead of passengers waiting in line for the applicants’ flight, suggesting that their flight was used as a replacement.

[31] As established in the “Findings of Fact” section above, however, Air Canada did not use the applicants’ flight as a replacement flight for passengers delayed from the previous night, and although the applicants’ scheduled flight was delayed, they were provided accommodation on the flight in relation to which they had confirmed reservations. Therefore, the Agency concludes that the applicants are not entitled to denied boarding compensation, or de facto denied boarding compensation, either pursuant to Air Canada’s Tariff or WestJet’s Tariff.

[32] With respect to the lack of information provided to passengers, Rule 80(C)(3) of Air Canada’s Tariff states that “Given that passengers have a right to information on flight times and schedule changes, Air Canada will make reasonable efforts to inform passengers of delays, cancellations and scheduled changes and to the extent possible, the reason for the delay or change”. The Agency notes that the language in Air Canada’s Tariff does not guarantee that the carrier will keep passengers informed of flight irregularities, only that it will make reasonable efforts to do so. In light of the operational challenges faced by Air Canada at the time of the incident, the Agency concludes that it is not unreasonable that the carrier may not have been able to keep passengers informed of the situation.

[33] In respect of the applicants’ claim for out-of-pocket expenses, the Agency notes that Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) provides that:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves 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 it or them to take such measures.

[34] Thus, an air carrier is required to provide compensation to passengers who have experienced delay. That obligation is subject to limits provided for in Article 22 of the Montreal Convention. Furthermore, it is also subject to the condition that the carrier took “all measures that could reasonably be required to avoid the damage.”

[35] In this case, the delay was caused, as established in the “Findings of Fact” section above, by an unforeseen mechanical problem that required the carrier to locate a replacement aircraft to transport passengers. Air Canada’s schedule irregularity provisions under Rule 80(C) of its Tariff defines a schedule irregularity as including a delay in scheduled departure or arrival of a carrier’s flight. Rule 80(C)(5) of its Tariff states:

Except as otherwise provided in applicable local law, in addition to the provisions of this rule, in case of scheduled irregularity within its control […] Air Canada will offer:

1. For a schedule irregularity lasting longer than 4 hours, a meal voucher for use, where available, at an airport restaurant or our on board cafe, or an amount dependent on the time of day.

[36] As established above, the Agency finds that, in keeping with its Tariff, Air Canada offered the applicants food vouchers equivalent to their $30 meal claim. Further, the Agency finds that the applicants have not provided sufficient information or any supporting documentation to justify their claim for additional parking expenses. In light of these findings, the Agency concludes that the applicants are not entitled to the out-of-pocket expenses claimed as a result of the delay.

[37] Based on the above, the Agency concludes that the applicants have failed to demonstrate that Air Canada did not properly apply the terms and conditions set out in its Tariff.

CONCLUSION

[38] The Agency dismisses the application.