Decision No. 38-C-A-2022

[1] René Savoie purchased a round-trip ticket from Air Canada for travel to Kingston, Ontario, to Moncton, New Brunswick, via Toronto, Ontario, departing on December 20, 2019, and returning on January 5, 2020. On December 20, 2019, Mr. Savoie’s flight from Kingston to Toronto was delayed by one hour and five minutes. As a result of this delay, Mr. Savoie missed his connecting flight in Toronto. Air Canada then rebooked him on a flight departing later that evening from Toronto to Montréal, Quebec, and from Montréal to Moncton the following morning. Instead of arriving in Moncton at 11:43 p.m. on December 20, 2019, as originally scheduled, Mr. Savoie experienced a delay of 11 hours and 33 minutes, arriving in Moncton at 10:20 a.m. on December 21, 2019.

[2] Mr. Savoie seeks compensation under the APPR^{Note 1} for the flight delay he experienced.

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether Air Canada properly applied its Tariff^{Note 2} to Mr. Savoie’s ticket. The relevant provision of Air Canada’s Tariff is set out in the Appendix.

[4] In his reply, Mr. Savoie raised new issues and arguments that were not part of his application. Section 20(2) of the Rules^{Note 3} states that the reply must not raise issues or arguments that are not addressed in the answer or introduce new evidence unless a request has been filed with and granted by the Agency. Accordingly, the Agency will not consider these issues in its decision.

[5] Rule 5(C)(1) of the Tariff states that the APPR form part of the Tariff and supersede any term or condition of carriage that is inconsistent with the APPR, although it does not relieve Air Canada from applying terms and conditions of its Tariff that are more favorable to the passenger. The relevant sections of the APPR are set out in the Appendix.

[6] Air Canada argues that the delay Mr. Savoie experienced was the result of a knock-on effect. It states that on December 20, 2019, Flight AC8609 from Toronto to Sudbury, Ontario, was first delayed for safety reasons due to a mechanical issue related to the zone temperature sensor of its QK325 aircraft. This delay also affected Flight AC8610 from Sudbury to Toronto, Flight AC8006 from Toronto to Kingston, Ontario, and Flight AC8011 from Kingston to Toronto, which was Mr. Savoie’s flight, all operated using the same QK325 aircraft. Air Canada argues that based on the above, the delay of Mr. Savoie’s flight was within its control but required for safety reasons.

[7] Mr. Savoie does not dispute that there was a mechanical issue with the aircraft, but rather, argues that it is not reasonable to allow carriers to avoid liability due to delay as a result of a mechanical issue that occurred three flights previously.

[8] According to subsection 11(2) of the APPR, a delay that is directly attributable to an earlier delay that is within the carrier’s control but required for safety purposes is also considered to be within the carrier’s control but required for safety purposes, if the carrier took all reasonable measures to mitigate the impact of the earlier flight delay.

[9] In Decision 122-C-A-2021 (APPR Interpretative Decision), the Agency provided clarity on its approach to assessing knock-on effects under subsection 11(2) of the APPR. The Agency recognized that a flight disruption may affect more than one subsequent flight. The Agency stated that the burden is placed on the carrier to establish that all reasonable measures were taken to prevent or minimize the impact of a knock-on effect, and that the longer a knock-on effect is in duration, the more likely it will be that reliable evidence will be required to establish that the carrier mitigated the impact of the ongoing knock-on effect. The Agency also stated that it would consider various factors when determining this, including the duration of the knock-on effect, the remoteness of the location, the availability of another aircraft or crew, and the impact of the cause of the flight delay or cancellation on the operations of the carrier.

[10] Air Canada states that a substitute aircraft was not available at the time that the malfunction was detected on aircraft QK325, and therefore it could not prevent the delayed departure of Flight AC8609. However, Air Canada has not provided evidence of any efforts that it took to mitigate the impact of the knock-on effect on further flights, including the applicant’s flight, particularly given the duration of the knock-on effect, which affected at least three subsequent flights.

[11] In light of the above, the Agency finds that Air Canada has not established that it took all reasonable measures to minimize the impact of the ongoing knock-on effect, and therefore finds that the delay of Mr. Savoie’s flight was within its control.

[12] Paragraph 12(2)(d) of the APPR requires a carrier to compensate passengers in accordance with section 19 of the APPR when they are delayed in reaching their destination for reasons within the carrier’s control, and are informed of the delay 14 days or less before their departure time. Under subparagraph 19(1)(a)(iii) of the APPR, a large carrier must provide passengers with CAD 1,000 if the passenger is delayed by nine hours or more in reaching their final destination due to a flight delay that was within the carrier’s control.

[13] Based on the above, the Agency finds that Air Canada did not properly apply its Tariff and that Mr. Savoie is entitled to compensation in the amount of CAD 1,000.

ORDER

[14] Pursuant to section 67.1 of the CTA, the Agency orders Air Canada to compensate Mr. Savoie in the amount of CAD 1,000 as soon as possible and no later than April 22, 2022.
 

---

APPENDIX TO DECISION NO. 38-C-A-2022

Canadian Transportation Act, SC 1996, c 10 (CTA)  

Fares or rates not set out in tariff

67.1 If, on complaint in writing to the Agency by any person, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

(a) apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;

(b) compensate any person adversely affected for any expenses they incurred as a result of the licensee’s failure to apply a fare, rate,
     charge or term or condition of carriage that was set out in its tariffs; and

(c) take any other appropriate corrective measures.

….

Tariffs to be made public

67(3) The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

Air Passenger Protection Regulations, SOR/2019-150 (APPR)

Earlier flight disruption

11(2) A delay, cancellation or denial of boarding that is directly attributable to an earlier delay or cancellation that is within that carrier’s control but is required for safety purposes, is considered to also be within that carrier’s control but required for safety purposes if that carrier took all reasonable measures to mitigate the impact of the earlier flight delay or cancellation.

….

Delay

12(2) In the case of a delay, the carrier must

(a) provide passengers with the information set out in section 13;

(b) if a passenger is informed of the delay less than 12 hours before the departure time that is indicated on their original ticket, provide
     them with the standard of treatment set out in section 14;

(c) if the delay is a delay of three hours or more, provide alternate travel arrangements or a refund, in the manner set out in section 17, to
     a passenger who desires such arrangements; and

(d) if a passenger is informed 14 days or less before the departure time on their original ticket that the arrival of their flight at the
     destination that is indicated on that original ticket will be delayed, provide the minimum compensation for inconvenience in the manner
     set out in section 19.

….

Alternate arrangements — within carrier’s control

17(1) If paragraph 11(3)(c), (4)(c) or (5)(c) or 12(2)(c), (3)(c) or (4)(c) applies to a carrier, it must provide the following alternate travel arrangements free of charge to ensure that passengers complete their itinerary as soon as feasible:

(a) in the case of a large carrier,

(i) a confirmed reservation for the next available flight that is operated by the original carrier, or a carrier with which the original carrier has a commercial agreement, is travelling on any reasonable air route from the airport at which the passenger is located to the destination that is indicated on the passenger’s original ticket and departs within nine hours of the departure time that is indicated on that original ticket,

(ii) a confirmed reservation for a flight that is operated by any carrier and is travelling on any reasonable air route from the airport at which the passenger is located to the destination that is indicated on the passenger’s original ticket and departs within 48 hours of the departure time that is indicated on that original ticket if the carrier cannot provide a confirmed reservation that complies with subparagraph (i), or

(iii) transportation to another airport that is within a reasonable distance of the airport at which the passenger is located and a confirmed reservation for a flight that is operated by any carrier and is travelling on any reasonable air route from that other airport to the destination that is indicated on the passenger’s original ticket, if the carrier cannot provide a confirmed reservation that complies with subparagraphs (i) or (ii); and

(b) in the case of a small carrier, a confirmed reservation for the next available flight that is operated by the original carrier, or a carrier with which the original carrier has a commercial agreement, and is travelling on any reasonable air route from the airport at which the passenger is located to the destination that is indicated on the passenger’s original ticket.

Refund

(2) If the alternate travel arrangements offered in accordance with subsection (1) do not accommodate the passenger’s travel needs, the carrier must

(a) in the case where the passenger is no longer at the point of origin that is indicated on the ticket and the travel no longer serves a
     purpose because of the delay, cancellation or denial of boarding, refund the ticket and provide the passenger with a confirmed
     reservation that

(i) is for a flight to that point of origin, and

(ii) accommodates the passenger’s travel needs; and

(b) in any other case, refund the unused portion of the ticket.

Comparable services

(3) To the extent possible, the alternate travel arrangements must provide services that are comparable to those of the original ticket.

….

Compensation for delay or cancellation

19(1) If paragraph 12(2)(d) or (3)(d) applies to a carrier, it must provide the following minimum compensation:

(a) in the case of a large carrier,

(i) $400, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by three hours or more, but less than six hours,

(ii) $700, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by six hours or more, but less than nine hours, or

(iii) $1,000, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by nine hours or more; and

….

Domestic Tariff General Rules Applicable to the Transportation of Passengers and Baggage, CTA(A) 3 (Tariff)

RULE 5 – APPLICATION OF TARIFF

…

C. Air Passenger Protection Regulations (“APPR”)

(1) The obligations of the carrier under APPR form part of this tariff and supersede any incompatible or inconsistent term and condition of carriage set out in the tariff to the extent of such inconsistency or incompatibility, but do not relieve the carrier from applying terms and conditions of carriage of this tariff that are more favorable to the passenger than the obligations set out in the APPR.