Decision No. 36-C-A-2019

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Air Transat concerning its refusal to transport him from London, United Kingdom, to Calgary, Canada, on the basis that he did not pay the required excess baggage fees.

[2] The applicant is seeking a full refund of his flight as well as compensation for emotional distress.

[3] The Agency will address the following issues:

1. Did Air Transat properly apply the terms and conditions regarding baggage limits and acceptance of passengers as set out in Rules 7 and 12 of 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 (Except the United States) on the Other Hand, CTA(A) No. 4 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
2. If Air Transat did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to the applicant?

[4] For the reasons set out below, the Agency finds that Air Transat properly applied the terms and conditions set out in Rules 7 and 12 of its Tariff and therefore dismisses the application.

BACKGROUND

[5] The applicant had a reservation for one-way travel with Air Transat on a non-refundable “Eco” fare, departing July 5, 2018 from the Gatwick Airport (Airport), London, at 12:25 p.m. and arriving in Calgary on flight number TS541.

[6] On that day, the applicant arrived late at the airport because commuter trains in London, including those travelling to the Airport, experienced widespread delays and cancellations resulting from faulty signalling equipment. The applicant used a ride-sharing application in order to get to the Airport at a cost of CAD 300, spending his last available money.

[7] When the applicant arrived at the check-in counter, he was informed that his baggage was overweight and that supplemental fees would apply. He was unable to pay the fees, and did not board his flight.

PRELIMINARY MATTERS

[8] The applicant claims that he was treated poorly by Air Transat’s staff at the Airport and requests compensation on the basis of the emotional distress he suffered during the incident.

[9] The Agency does not have jurisdiction with respect to the level of service that a passenger receives from an air carrier, as stated in previous decisions such as Decision No. 39-C-A-2018 (Young v. Air Canada) and Decision No. 103-C-A-2017 (Chowdhury v. Turkish Airlines).

[10] Additionally, the Agency does not have jurisdiction to order compensation for inconvenience, pain, or suffering, as stated in previous decisions such as Decision No. 51-C-A-2018 (Kapur v. Jet Airways), Decision No. 18-C-A-2015 (Enisz v. Air Canada), and Decision No. 9-C-A-2018 (Zuman et al. v. Saudi Arabian Airlines).

[11] Therefore, the Agency will not consider these issues.

THE LAW AND RELEVANT TARIFF PROVISIONS

[12] 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.

[13] 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:

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.

[14] Rule 7.1d) of Air Transat’s Tariff, regarding baggage limits, states, in part that for ECO-ECO & ECO-PROMO tickets, a free baggage allowance of one (1) checked bag weighing up to 23 kg applies. It also provides that for overweight or excess baggage between 24 kg and 32 kg, a fee of CAD 75 per piece applies.

[15] Rule 7.1d) of Air Transat’s Tariff further states the following:

Prices and weights indicated are valid per flight segment. Applicable taxes are not included. In airports outside of Canada, prices will be charged in the currency of the departure city.

A piece of checked baggage shall not exceed 158 cm in total dimension (L x W x H) and 32 kilos in weight, otherwise baggage shall be shipped as cargo and cargo charges shall apply.

[16] Rule 7.1e) of Air Transat’s Tariff, regarding carry-on baggage, states, in part:

Baggage (equivalent to hand luggage) … the weight of which does not exceed 10 kilograms in Economy … may be carried on board the aircraft by the passenger provided that, at the sole discretion of the Carrier, it is suitable to be stowed in the passenger compartment of aircraft and is not otherwise offensive or objectionable to any other passengers.

[17] Rule 12 of Air Transat’s Tariff, regarding cancellation of reservations, states, in part:

All reservations are subject to cancellation without notice:

…

b) If the passenger fails to fulfill the requirements of the fare type of that reservation.

…

If the Carrier refuses to transport the passenger for any of the reasons stated above, even if a reservation was confirmed, the reservation may not be accepted for the flight specified. Subject to applicable fare rules and conditions, no refund will be due…

POSITIONS OF THE PARTIES AND FINDINGS OF FACTS

The applicant

[18] According to the applicant, he was left stranded in London without money or a flight back home for five days due to Air Transat’s refusal to transport him as a result of non-payment of excess baggage fees that he alleges were improperly applied.

[19] He submits that he arrived at the check-in counter 20 minutes before it closed and was informed that his baggage was overweight. He was instructed to move to another area where he transferred some items to his carry-on baggage. He asserts that after transferring the items, his baggage was under the maximum allowed weight for his fare, but Air Transat staff informed him he still had to pay an additional GBP 50.

[20] The applicant also submits that he was unable to pay the fees or to contact someone to provide an alternative form of payment due to the time difference between the United Kingdom and Canada. According to the applicant, someone eventually took and scanned his passport without asking his permission, and then informed him that he had missed his flight and that there was nothing else that could be done before closing the check-in counter.

Air Transat

[21] Air Transat submits that the applicant failed to comply with its staff’s instruction and the fare rules and conditions of sale of his ticket. As such, it claims it is not liable for any damages he may have suffered, which were the direct result of his own actions.

[22] Air Transat submits that the applicant was a last minute arrival at the check-in counter with excess baggage and maintains that its staff informed him that an excess baggage fee of GBP 49 applied. It submits that he arrived with an overweight bag which was reduced in weight by transferring some items to three pieces of carry-on baggage.

[23] According to Air Transat, the applicant was made aware by its staff that his reserved fare allowed for one free checked bag weighing up to 23 kg and one free carry-on bag weighing up to 10 kg. Additionally, he was informed that excess baggage is subject to payment of applicable fees and that a maximum weight per piece of baggage of 32 kg applied. Air Transat asserts that the applicant would have also been made aware of the baggage limits of his purchased fare when he was required to read and accept the conditions of sale when he made his reservation through its website. According to Air Transat, its website provides all required information regarding fare conditions and baggage allowances.

[24] Air Transat submits that the applicant refused to leave any items behind or provide a means of paying for the excess baggage fees and as such he was refused transportation. Further, Air Transat states that per the fare rules of the applicant’s reservation, airfare and related fuel surcharges are non-refundable and on September 11, 2018 it processed the refund of unused taxes in the amount of CAD 156.57.

Findings of fact

[25] When contradictory versions of events are presented by parties, the Agency must determine which version of the events is more probable, based on all of the evidence.

[26] The parties provided differing accounts regarding the timing of the applicant’s arrival at the check‑in counter. Air Transat filed an Interception Report indicating that he arrived at 12:15 p.m., 10 minutes before the counter was closed at 12:25 p.m. The applicant claims that he arrived at the check-in counter at 12:05 p.m., approximately 20 minutes before it closed.

[27] While both timelines place the applicant at the counter later than 60 minutes prior to his original scheduled departure time, Air Transat’s counter remained open and staff attempted to help him to check into his flight. Under either version of events, the applicant was under severe time constraints in addressing his excess baggage issue.

EXCESS BAGGAGE

[28] It is undisputed that the applicant had excess baggage at the check-in counter for his flight. Although he claims that his bag was underweight after transferring items from it, Air Transat filed a supervisor’s report which indicates that he arrived at the check-in counter with a bag weighing 42kg, which was then reduced to a bag weighing 34kg and three pieces of carry-on baggage.

[29] In order to avoid incurring charges for excess baggage, the applicant would have had to reduce his baggage by at least 19 kg. As his fare allowed for a single piece of carry-on baggage with a maximum weight of 10 kg, the Agency notes that in order to avoid excess baggage fees it would have been necessary for the applicant to leave items behind.

PAYMENT OF FEES

[30] The Agency finds as a fact that the applicant did not provide a valid method of payment for the excess baggage fees.

[31] It is undisputed that the applicant informed Air Transat staff that he did not have any money available to pay the excess baggage fees and that he was unable to contact someone who may have been able to pay due to the time difference between England and Canada.

ANALYSIS AND DETERMINATIONS

[32] The onus is on the applicant 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 regarding baggage limits and acceptance of passengers.

[33] As found above, the applicant’s baggage was overweight and, under Rule 7.1d) of the Tariff, he was required to pay an excess baggage fee; however, he did not. Therefore, the Agency finds that the applicant did not satisfy the passenger requirements under Rule 7.1d) of the Tariff.

[34] As Rule 12b) of the Tariff states that Air Transat may cancel a passenger’s confirmed reservation without notice, “if the passenger fails to fulfill the requirements of the fare type of that reservation,” the Agency finds that Air Transat properly applied Rules 7.1d) and 12b) of its Tariff in refusing to transport the applicant.

[35] Rule 12 of the Tariff provides that if “the Carrier refuses to transport the passenger for any of the reasons stated above…. Subject to applicable fare rules and conditions, no refund will be due.” Based on the applicant’s submitted booking confirmation, he held a reservation on a non‑refundable “Eco” fare ticket. Therefore, the Agency finds that Air Transat properly applied Rule 12 of its Tariff when it provided the applicant with a refund of the unused taxes.

CONCLUSION

The Agency therefore dismisses the application.