Decision No. 38-C-A-2007

January 25, 2007

File No. M4120-3/06-06281

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Complaint

[1] On November 1, 2005, Moira Hudson filed with the Complaint Investigations Division (hereinafter the CID) the complaint set out in the title. On September 27, 2006, Mrs. Hudson confirmed that she wished to pursue the matter formally before the Canadian Transportation Agency (hereinafter the Agency), given that the parties were unable to reach a satisfactory agreement.

[2] On November 15, 2006, both Mrs. Hudson and Zoom Airlines Inc. (hereinafter Zoom) were advised that the Agency will solely address the issues over which it has jurisdiction and that the quality of service issues mentioned in Mrs. Hudson's complaint do not fall under the jurisdiction of the Agency. In that same letter, the parties were also requested to advise whether they agree that the comments and documents filed with the CID may be considered as pleadings before the Agency.

[3] On November 15, 2006, Mrs. Hudson advised that she accepted that the Agency consider the comments and documents she had filed with the CID as pleadings before the Agency. On November 17, 2006, Zoom advised that it accepted that the Agency consider the documents it filed with the CID as pleadings before the Agency. On that same date, Zoom filed an additional submission with respect to this matter.

[4] On November 22, 2006, Agency staff requested additional information from Zoom, and on November 23, 2006, from Mrs. Hudson. On November 23, 2006, both Zoom and Mrs. Hudson submitted the information requested. On November 24, 2006, Zoom filed additional comments. On that same day, Agency staff requested Mrs. Hudson to provide additional information, and on November 27, 2006, Mrs. Hudson filed additional comments.

[5] Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until January 25, 2007.

Issues

[6] The issues to be addressed are whether Zoom properly applied the terms and conditions of carriage concerning the responsibility for schedules and operations and the refusal to transport as set out in the carrier's Scheduled International Tariff, CTA(A) No. 2 (hereinafter the Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR), in this matter.

Positions of the parties

[7] Mrs. Hudson states that she had made reservations to travel with Zoom on Flight No. OOM574 from Halifax to Glasgow departing at 7:35 p.m. on July 1, 2005. Mrs. Hudson submits that when she arrived at the check-in counter at 4:05 p.m., she was informed that the flight would depart from Moncton, New Brunswick due to a heavy fog alert and repair work at Halifax International Airport (hereinafter Halifax airport) and that passengers would be bused to Greater Moncton International Airport (hereinafter Moncton airport). Mrs. Hudson advises that her flight was further delayed due to security procedures and to allow five additional passengers to board the flight after the aircraft doors had been closed. Mrs. Hudson adds that the flight was delayed approximately five and a half hours.

[8] Zoom states that on July 1, 2005, Flight No. OOM574 was combined with Flight No. OOM513 and rerouted from Halifax to Moncton due to a heavy fog alert at the Halifax airport. Zoom explains that because of the rerouting, the carrier was unable to honour the pre-selected seating assignment purchased by Mrs. Hudson and that it refunded Mrs. Hudson the amount of CAD$15 she had paid for the seat selection. Zoom submits that pursuant to the provisions of its Tariff on file with the Agency, it is not responsible for providing compensation to passengers for a schedule change or a flight delay.

[9] Mrs. Hudson has also complained about Zoom's refusal to transport her on Flight No. OOM775 from Glasgow to Halifax on July 24, 2005. Mrs. Hudson submits that she arrived at the check-in counter at 1:53 p.m. and that her flight was scheduled to depart from Glasgow at 2:40 p.m. Mrs. Hudson states that the Customer Service representative (hereinafter C.R.) accepted her passport, proceeded to register her and told her that she would have to go "straight to departure". Mrs. Hudson adds that the C.R. then made a telephone call and informed her that the flight was closed, that the paper work was done and that she could not get on board the flight.

[10] Zoom states that on July 24, 2005, Mrs. Hudson failed to check in 45 minutes before the departure of Flight No. OOM775 at Glasgow International Airport (hereinafter Glasgow airport). Zoom advises that the onus is on the passenger to allow sufficient time for check-in and security formalities. Zoom submits that it cannot be responsible for passengers who attempt to check in without sufficient time allocation. Zoom explains that its records indicate that a Zoom Representative was on duty for the departure of Flight No. OOM775, but notes that this employee no longer works at the Glasgow airport.

[11] On November 27, 2006, Mrs. Hudson submitted a letter dated November 25, 2006, signed by an individual who accompanied her to the Glasgow airport on July 24, 2005. In that letter, the individual corroborated the facts pertaining to Mrs. Hudson's arrival at the Zoom check-in counter as described by Mrs. Hudson in her complaint.

[12] Zoom submits that there is no proof that Mrs. Hudson ever arrived at the Glasgow airport and advises that if she did get there, it cannot clearly determine at what exact time she arrived at its check-in counter or even if she did present herself for check-in. Zoom filed a booking memo and indicates that it does not contain any notes referring to an interaction with Mrs. Hudson at the check-in counter in Glasgow. Zoom explains that its representatives are directed to add any comments to a passenger's booking memo including "denied boardings" and missed flights. Zoom states that if Mrs. Hudson had been "denied boarding", the Zoom Representative on duty would have noted this fact in the "remarks" section of the Service Report Card for Flight No. OOM775 which the carrier filed with the Agency. Zoom adds that no notes or details regarding Mrs. Hudson were relayed to its Head Office on or after July 24, 2005.

[13] Mrs. Hudson filed with the CID a copy of the round-trip ticket she purchased to travel with Zoom for her trip to Glasgow in July 2005, totalling CAD$854.50. As well, Mrs. Hudson filed the itinerary for the replacement ticket she purchased to travel with Air Canada from Glasgow to Halifax on July 25, 2005 at a cost of CAD$961.58. Mrs. Hudson requests the reimbursement of the cost of the unused portion of her Zoom ticket, that is the return portion, and the cost of the replacement ticket she purchased from Air Canada to travel from Glasgow to Halifax.

[14] Zoom adds that the carrier was fair in offering Mrs. Hudson a voucher for future travel in the amount of CAD$350, which represents the cost of a one-way trip to any destination served by Zoom, as well as an upgrade to its Premium Economy Service, valued at CAD$150, on her next flight.

Applicable legislative and regulatory provisions

[15] The Agency's jurisdiction over the present complaint is set out in subsection 110(4) and section 113.1 of the ATR, which state:

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 Where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs, the Agency may

(a) direct the licensee to take corrective measures that the Agency considers appropriate; and

(b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.

Applicable provisions of the tariff

[16] The following rules of Zoom's Tariff governing the terms and conditions of carriage in effect on July 1, 2005 and July 24, 2005 are relevant to the matter at hand.

RULE 12. CANCELLATION

All reservations are subject to cancellation without notice:

(a) if the passenger has not purchased a validated ticket indicating confirmed seat(s) at least sixty (60) minutes prior to scheduled departure of the flight, or earlier if a specified time limit is required;

(b) if the passenger fails to fulfill the requirements of the fare type of that reservation;

(c) if the passenger is not present at the boarding gate at the time limit required prior to the original scheduled departure time of the flight;

(d) if the passenger fails to occupy a seat reserved (for example: a no-show);

(e) if such action is necessary to comply with any government regulation or to comply with any governmental request for emergency transportation in connection with national defense, or whenever advisable by reason of weather or other conditions beyond the carrier's control.

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. Cancellation will apply to all segments in the itinerary.

RULE 15 - RESPONSIBILITY FOR SCHEDULES AND OPERATIONS

(a) The carrier will endeavour to transport the passenger and baggage with reasonably (sic) dispatch, but times shown in timetables or elsewhere are not guaranteed and form no part of this contract.

(b) The agreed stopping places are those places shown in the carrier's timetable as scheduled stopping places on the route. The carrier may, without notice, substitute alternative carriers or aircraft and, if necessary, may alter or omit stopping places shown in the timetable.

(c) Schedules are subject to change without notice. The carrier is not responsible or liable for failure to make connections or for failure to operate any flight according to schedule, or for a change to the schedule of any flight. Under no circumstances shall the carrier be liable for any special, incidental or consequential damages arising from the foregoing (including the carriage of baggage) whether or not the carrier had knowledge that such damages might be incurred.

(d) Without limiting the generality of the foregoing, the carrier cannot guarantee that the passenger's baggage will be carried on the flight if sufficient space is not available as determined by the carrier.

(e) Subject to the Warsaw Convention or the Warsaw Convention as amended by the Hague Protocol, as the case may be, the carrier will not provide or reimburse passengers for expenses incurred due to delays or cancellations of flights.

Analysis and findings

[17] In making its findings, the Agency has carefully considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined the terms and conditions of carriage specified in Zoom's Tariff with respect to the refusal to transport and the responsibility for schedules and operations at the time of Mrs. Hudson's travel.

Delay of Flight No. OOM574 on July 1, 2005

[18] The Agency notes that pursuant to Rule 15 of Zoom's Tariff, the carrier has the right to change the schedules of its flights without notice and that it is not responsible or liable for failure to make connections or for failure to operate any flight according to schedule, or for a change to the schedule of any flight.

[19] In her complaint, Mrs. Hudson stated that upon her arrival at the check-in counter at the Halifax airport on July 1, 2005, she was informed that the flight would depart from the Moncton airport and that passengers would be bused to Moncton. Mrs. Hudson added that the flight was delayed approximately five and a half hours.

[20] In its submission, Zoom explained that on July 1, 2005, it diverted Flight No. OOM574 to the Moncton airport due to a heavy fog alert at the Halifax airport. Zoom added that Flight No. OOM513 from Halifax was also rerouted to Moncton and combined with Flight No. OOM574.

[21] In light of the foregoing, the Agency finds that Zoom acted in compliance with the terms and conditions of its Tariff and that it is not liable to Mrs. Hudson for the delay of Flight No. OOM574 on July 1, 2005. The Agency, therefore, dismisses this portion of Mrs. Hudson's complaint.

Refusal to transport Mrs. Hudson on Flight No. OOM775 on July 24, 2005

[22] In her complaint, Mrs. Hudson submitted that on July 24, 2005, when she arrived at the Zoom check-in counter at the Glasgow airport, the C.R. informed her while registering her for her flight that the flight was closed. Mrs. Hudson filed a letter signed by an individual who accompanied her to the Glasgow airport on July 24, 2005, confirming the description of events given by Mrs. Hudson.

[23] In its submission, Zoom argued that there was no proof that Mrs. Hudson ever arrived at the Glasgow airport on July 24, 2005 and advised that if she did, Zoom could not clearly determine at what exact time she arrived at its check-in counter. After reviewing the evidence on file, the Agency finds on a balance of probabilities that Mrs. Hudson went to the Glasgow airport on July 24, 2005 to travel on Flight No. OOM775 to Halifax, as she claims. The Agency also accepts the declaration given by the individual who accompanied Mrs. Hudson to the Glasgow airport on July 24, 2005 in support of Mrs. Hudson's claim.

[24] Nonetheless, the Agency is of the opinion that establishing the exact time at which Mrs. Hudson arrived at the Zoom check-in counter is not required in the present case. Upon examination of Zoom's Tariff and submissions, the Agency notes that the carrier's Tariff is silent with respect to any check-in time limit.

[25] Pursuant to subsection 110(4) of the ATR, an air carrier shall apply the terms and conditions of carriage set out in its tariff. Although the carrier may seek to add conditions in other documentation, it is the tariff which governs carriage. In this case, the Agency notes that, on the date of the incident, Zoom did not specify check-in time limits in its Tariff, nor did it specify time limits for passengers to be present at the departure gate. As the carrier's Tariff is silent with respect to check-in time limits, Zoom, by its refusal to check in and transport Mrs. Hudson on Flight No. OOM775, has not complied with the terms and conditions contained in its Tariff. Rather, the carrier has applied a term and condition that was not set out in its Tariff.

[26] The Agency further finds that by refusing to transport Mrs. Hudson, Zoom has not complied with the provisions of its Tariff and, as such, has contravened subsection 110(4) of the ATR.

[27] In light of the foregoing, the Agency finds that Zoom is liable for any expenses incurred by Mrs. Hudson as a direct result of its refusal to transport her on Flight No. OOM775.

[28] With respect to Mrs. Hudson's claim for compensation for the unused portion of her Zoom ticket, the Agency notes that Mrs. Hudson had purchased a return ticket to travel with Zoom for her trip to Glasgow in July 2005, and that the price associated with the carriage from Glasgow is not an expense Mrs. Hudson incurred because of Zoom's refusal to transport her. Therefore, the Agency dismisses this portion of Mrs. Hudson's complaint.

[29] The Agency notes that on September 15, 2006, Zoom amended its Tariff to include provisions specifying time limits for passengers to complete the check-in process and receive their boarding passes and to be present at the boarding gate.

Conclusion

[30] Based on the above findings, the Agency, pursuant to paragraph 113.1(b) of the ATR, hereby orders Zoom to compensate Mrs. Hudson within thirty (30) days from the date of this Decision, for the cost of the replacement ticket she purchased to travel with Air Canada from Glasgow to Halifax on July 25, 2005, totalling CAD$961.58.

Members

• Mary-Jane Bennett
• Baljinder Gill