Decision No. 35-C-A-2020

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding a late flight and the delay in the delivery of two of their pieces of baggage.

[2] The applicants seek reimbursement of CAD 1,819.20, the value of their two tickets, as compensation for the trauma and inconvenience caused by the absence of their medication and personal effects.

[3] The Agency will address the following issues:

• Did Air Canada properly apply the conditions set out in its tariff entitled International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458 (Tariff), as required by subsection 110(4) of the ATR?
• If Air Canada has not properly applied the conditions set out in its Tariff, what remedies, if any, should be ordered?

[4] For the reasons set out below, the Agency finds that Air Canada properly applied the conditions set out in its tariff. The Agency therefore dismisses the application.

BACKGROUND

[5] On April 9, 2019, the applicants were scheduled to take two flights: a flight to Toronto, Ontario, scheduled to depart Montréal, Quebec, at 2:00 p.m.; and a connecting flight to Athens, Greece. Due to weather conditions in Montréal, the departure of the flight was delayed. As a result, the applicants arrived in Toronto too late to board their connecting flight.

[6] On the same day, they were able to take a flight to Frankfurt, Germany, delaying their arrival in Athens by about eight hours. After they arrived at their destination, the applicants found that two of their pieces of baggage were missing.

PRELIMINARY MATTERS

Order No. 2020-A-32 and Order No. 2020-A-37

[7] In Order No. 2020-A-32, the Agency stayed dispute proceedings involving air carriers until April 30, 2020, due to the impact of the COVID-19 pandemic.

[8] In Order No. 2020-A-37, the Agency extended the stay until June 30, 2020.

[9] In this case, the Panel’s term as an Agency Member ends on May 31, 2020. Therefore, pursuant to subsection 5(2), paragraph 41(1)(d) and section 6 of the Canadian Transportation Agency Rules (Dispute Proceedings at Certain Rules Applicable to All Proceedings), SOR/2014-104, the Agency lifts the stay in the interest of justice.

Loss of enjoyment and time, trauma and inconvenience

[10] The applicants seek reimbursement of their two tickets as compensation for the loss of a vacation day as well as time, trauma and inconvenience caused by the absence of their medication and personal effects.

[11] The Agency does not have the jurisdiction to order compensation for pain and suffering in respect of cases involving alleged contraventions of carriers’ tariff-related obligations.

THE LAW AND RELEVANT TARIFF PROVISIONS

[12] The relevant provisions of the ATR, the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) and the Air Canada Tariff, which was filed in English only, are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDING OF FACTS

The applicant

[13] The applicants claim that they missed their connecting flight to Toronto because the departure of their flight from Montréal was delayed by 90 minutes. The applicants add that their daughter had to help them find an alternative flight and that, to do so, their daughter spent approximately 30 minutes on the telephone. The applicants submit that the role of the Air Canada agent was limited to issuing them replacement tickets.

[14] The applicants claim that they arrived in Athens on April 10, eight hours after the originally scheduled arrival time. In addition, they state that two of their pieces of baggage were missing. The applicants submit that one piece was returned on April 11 and that the second was returned on April 12, 2019, in Mykonos. The applicants claim that they have lost one day of vacation upon arrival in Athens as well as two afternoons from waiting for the delivery of their two pieces of baggage.

[15] The applicants allege that Air Canada failed to meet its commitment to carry them in a timely manner.

[16] The applicants claim the reimbursement of their tickets to compensate for the stress and uncertainty that they experienced in finding a replacement flight, the time lost while waiting for delivery of their two pieces of baggage, the inconvenience caused by the absence of their medication, and the lost vacation time.

[17] The applicants are not seeking reimbursement for the expenses that they incurred to purchase replacement items because they were reimbursed by their insurer.

Air Canada

[18] Air Canada states that it properly applied the conditions set out in its Tariff regarding schedule irregularities, ticket refunds and baggage delays. Air Canada is of the view that the application should be dismissed.

[19] Air Canada submits that Rule 80(A)(1) of its Tariff indicates that the times of departure and arrival, the duration of the journey and the type of aircraft indicated in the schedule or elsewhere are approximate, not guaranteed and in no way form part of the contract of carriage.

[20] Air Canada also argues that, under Rule 80(C)(4)(c) of its Tariff, it is required to reprotect the passenger to the destination shown on the ticket or the applicable portion of the ticket using its own or other transportation services. Air Canada submits that the applicants were reprotected on Air Canada and Lufthansa flights to their destination via Frankfurt.

[21] Air Canada refutes the applicants’ claim for reimbursement of the two tickets. Air Canada states that the tickets were fully used and that, according to Rule 100 of its Tariff, a refund can only be made if a ticket or part of a ticket is unused. Air Canada adds that although the itinerary may have been different, the applicants travelled to the destination shown on their tickets. Air Canada also states that the applicants’ tickets are not refundable.

[22] Air Canada argues that the applicants’ claim constitutes unjust enrichment because the applicants have already been reimbursed for expenses incurred as a result of the delay in the delivery of their two pieces of baggage and that a reimbursement of the tickets would amount to free travel.

[23] Air Canada submits that, under the Montreal Convention, which is incorporated by reference in Rule 105 of its Tariff, the compensation provided is adequate to compensate the passenger for the harm that they have suffered. Moreover, according to Air Canada, although reasonable expenses may be justified, the applicants have been reimbursed by their insurer. Air Canada further alleges that the applicants have not filed evidence to support the alleged harm.

Findings of fact

[24] Flight No. AC0415 to Toronto was delayed due to weather conditions in Montréal, and the applicants were unable to board their connecting flight to Athens. The applicants were reprotected on another flight to Athens via Frankfurt.

[25] Two of the applicants’ pieces of baggage were missing upon arrival in Athens. One piece was returned on April 11 in Mykonos, while the second was returned on April 12, 2019, also in Mykonos.

[26] The applicants’ insurer reimbursed them for the expenses that they incurred as a result of their delayed baggage.

ANALYSIS AND DETERMINATIONS

[27] The onus is on the applicants to prove, on a balance of probabilities, that the carrier did not properly apply the terms and conditions of carriage set out in its tariff.

[28] The provisions of Air Canada’s Tariff regarding its schedule irregularities obligations provide that under Rule 80(C)(4)(c), the carrier must reprotect the passenger, either on an alternative flight or through another carrier with which it has an agreement regarding the unused portion of the ticket, to the destination indicated on the ticket. The Agency notes that the applicants were reprotected on Air Canada and Lufthansa flights to Athens via Frankfurt. Although the applicants alleged that Air Canada did not carry them within a reasonable time, they did not file evidence to support this argument. According to the applicants’ original itinerary, the expected arrival time was 9:20 a.m. on April 10, while the arrival time of the flight on which they were reprotected was 5:15 p.m. on April 10. As a result, the applicants arrived at their destination approximately eight hours later than scheduled. In accordance with Rule 80(A)(3) of Air Canada’s Tariff, Air Canada is required to carry the passenger with reasonable dispatch. The Agency finds that Air Canada therefore properly applied Rule 80(C)(4)(c) of its Tariff.

[29] The applicants are seeking reimbursement of both tickets; however, Rule 100(A) of Air Canada’s Tariff provides that if a ticket or part of a ticket is unused, the carrier may refund the ticket according to the terms and conditions of the ticket. The Agency notes that although the itinerary had to be changed en route, Air Canada reprotected the applicants to their destination. The Agency finds that it is reasonable to conclude that the ticket was fully used and, therefore, Air Canada is not required to provide a refund.

[30] Rule 105(B)(5) of Air Canada’s Tariff, which incorporates by reference the Montreal Convention, provides that the liability rules of the Montreal Convention form an integral part of the Tariff and prevail over any provisions of the Tariff that are inconsistent with those rules.

[31] Article 19 of the Montreal Convention states:

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.

[32] As the applicants are not seeking reimbursement for the expenses that they incurred as a result of the delay of their baggage, because those expenses were reimbursed by their insurer, the Agency notes that the applicants have not demonstrated that they suffered any harm. Therefore, the Agency finds that it is reasonable to conclude that Air Canada properly applied the conditions set out in its Tariff with respect to the delay of the two pieces of baggage.

CONCLUSION

[33] In light of the above, the Agency finds that Air Canada properly applied the terms and conditions set out in its Tariff. The Agency therefore dismisses the application.

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APPENDIX TO DECISION NO. 35-C-A-2020

Règlement sur les transports aériens, DORS/88-58, modifié

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.

Air Canada’s Tariff titled International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458

RULE 80

SCHEDULE IRREGULARITIES

(A) GENERAL

(1)  Schedules not guaranteed. Times and aircraft type shown in timetables or elsewhere are approximate and not guaranteed, and form no part of the contract of carriage. Schedules are subject to change without notice. No employee, agent or representative of carrier is authorized to bind carrier by any statements or representation as to the dates or times of departure or arrival, or of the operation of any flight. It is always recommended that the passenger ascertain the flight’s status and departure time either by registering for updates on their electronic device, via the carrier’s web site or by referring to airport terminal displays.

….

(3)  Best Efforts

Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch, but no particular time is fixed for the commencement or completion of carriage. Subject thereto carrier may, without notice, substitute alternate carriers or aircraft and may alter the route, add stopovers or omit the stopping places shown on the face of the ticket in case of necessity.

….

(C) SCHEDULE IRREGULARITY

(1) Definition

Schedule irregularity means any of the following:

(a) Delay in scheduled departure or arrival of a carrier’s flight

(b) Flight cancellation, omission of a scheduled stop, or any other delay or interuption in the scheduled operation of a carrier’s flight, or

(c) Substitution of equipment or of a different class of service, or

(d) Schedule changes which require rerouting of passenger at departure time of the original flight.

.….

(4)  In the event of a scheduled irregularity, Carrier will either:

NOTE: Additional services are provided to On My Way customers, as detailed below):

(a) carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service; or, at carrier’s option;

(b) endorse to another air carrier with which Air Canada has an agreement for such transportation, the unused portion of the ticket for purposes of rerouting; or at carrier’s option;

(c) reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from Rule 100, carrier will require no additional payment from the passenger but will refund the difference if it is lower or.

(d) If the passenger chooses to no longer travel or if Carrier is unable to perform the option stated in (a) (b) or (c) above within a reasonable amount of time, make involuntary refund in accordance with Rule 100 (an exception to the applicability of a refund occurs where the passenger was notified of the schedule irregularity prior to the day of departure and the schedule irregularity is of 60 minutes or less) or,

….

RULE 100

REFUND

(A) GENERAL

REFUND BY CARRIER: For unused ticket or portion thereof, or miscellaneous charges order, refund will be made in accordance with this rule.

(1)  Economy Basic fares are entirely non-refundable and hold no credit for future travel. For all other nonrefundable tickets, the unused value may be used toward the purchase of another ticket within a year from date of issue if ticket is fully unused or from first departure date for partially used ticket, subject to any fee or penalty contained in applicable fare rules and subject to customer cancelling the booking prior to departure.

.….

RULE 105

Liability of carriers

….

(B) LAWS AND PROVISIONS APPLICABLE

….

(5)  For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.

(C) LIMITATION OF LIABILITY

….

(4)  Except as provided herein, or in the applicable law:

(a) 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 of carrier.

….

Convention pour l’unification de certaines règles relatives au transport aérien international – Convention de Montréal

Article 19 – Retard

Le transporteur est responsable du dommage résultant d’un retard dans le transport aérien de passagers, de bagages ou de marchandises. Cependant, le transporteur n’est pas responsable du dommage causé par un retard s’il prouve que lui, ses préposés et mandataires ont pris toutes les mesures qui pouvaient raisonnablement s’imposer pour éviter le dommage, ou qu’il leur était impossible de les prendre.