Decision No. 382-C-A-2003

June 27, 2003

File No. M4370/A565/01-1

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COMPLAINT

On February 27, 2003, Sylvie Desrochers filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title.

On March 3, 2003, Agency staff requested that Aeroflot - Russian Airlines (hereinafter Aeroflot) address the complaint within the context of subparagraph 122(c)(iv) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR). Aeroflot did not file an answer with the Agency.

A follow-up letter dated April 8, 2003 to the carrier from Agency staff also failed to elicit an answer.

BACKGROUND

On January 1, 2001, Ms. Desrochers travelled from Montréal, Quebec, Canada, to Calcutta, India, via Moscow, Russia, with Aeroflot. Ms. Desrochers was scheduled to return to Canada on April 1, 2001, at which time she learned that the flight leaving from Calcutta had been transferred to Delhi. As Aeroflot took no responsibility for alternate travel arrangements, Ms. Desrochers had to purchase a ticket in the amount of $250 to travel from Calcutta to Delhi in order to return to Canada. Upon her arrival in Delhi, Ms. Desrochers was informed that the flights were cancelled. Ms. Desrochers spent the night at the airport and took her flight home the next day.

On May 9, 2001, Ms. Desrochers filed a complaint with the Air Travel Complaints Commissioner, by which she was seeking compensation for the ticket she had to purchase, as well as expenses related to her late arrival. Ms. Desrochers also brought her complaint to the Quebec Small Claims Court and received a settlement of $557 from Aeroflot.

Ms. Desrochers' complaint dated February 27, 2003 was referred to the Agency, given the regulatory nature of the complaint.

PRELIMINARY MATTERS

Although Aeroflot failed to reply to Agency staff's letters of March 3, 2003 and April 8, 2003, the Agency may, pursuant to subsection 46(4) of the National Transportation Agency General Rules, SOR/88-23, dispose of the application without further notice to the respondent.

While Aeroflot was asked to respond to the complaint within the context of subparagraph 122(c)(iv) of the ATR, the Agency will also examine the issue of Aeroflot's compliance with the terms and conditions of carriage of its International Passenger Rules and Fares Tariff No. IPG-1, NTA(A) No.324 (hereinafter the IPRFT), pursuant to subsection 110(4) of the ATR.

ISSUES

The issues to be addressed are:

1. whether, pursuant to subparagraph 122(c)(iv) of the ATR, the terms and conditions of carriage provided for in the IPRFT clearly set out Aeroflot's policy with respect to involuntary revised routings.
2. whether, pursuant to subsection 110(4) of the ATR, Aeroflot has applied the terms and conditions of carriage specified in the IPRFT.

POSITION OF MS. DESROCHERS

Ms. Desrochers submits that Rule 80(C), respecting Involuntary Revised Routings, as set out in the IPRFT, is not clear in that it creates uncertainty as to whether Aeroflot is required to carry the passenger from points appearing on the ticket, or from any points at which seats in aircraft are available.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered the complaint submitted by Ms. Desrochers, as well as Rule 80(C) with respect to Involuntary Revised Routings, as set out in the IPRFT, which provides, in part, that:

In the event carrier cancels a flight, fails to operate according to schedules, substitutes a different type of equipment or different class of service, or is unable to provide previously confirmed space, ... carrier will either:

(a) Carry the passenger on another of its passenger aircraft on which space is available; or

(b) Endorse to another carrier or to any other transportation service the unused portion of the ticket for purposes of rerouting; or

(c) Reroute the passenger to destination named on the ticket or applicable portion thereof by its own services or by other means of transportation; and, if the fare, excess baggage charges and any applicable service charge for the revised routing is higher than the refund value of the ticket or applicable portions as determined by Rule 90 (Refunds) herein, carrier will require no additional payment from the passenger, but will refund the difference if the fare and charges for the revised routing are lower, or

(d) Make involuntary refund in accordance with the provisions of Rule 90 (Refunds)

A number of regulatory provisions are relevant to the present analysis.

Section 110 of the ATR provides, in part, that:

110.(1) Except as provided in an international agreement, convention or arrangement respecting civil aviation, before commencing the operation of an international service, an air carrier or its agent shall file with the Agency a tariff for that service, including the terms and conditions of free and reduced rate transportation for that service, in the style, and containing the information, required by this Division.

(2) Acceptance by the Agency of a tariff or an amendment to a tariff does not constitute approval of any of its provisions, unless the tariff has been filed pursuant to an order of the Agency.

...

(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. [emphasis added]

Further, subsection 113.1 of the ATR states that:

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.

The Agency's jurisdiction over complaints alleging that terms and conditions of carriage contained in an air carrier's tariff are not clearly stated is set out in subparagraph 122(c)(iv) of the ATR, which provides as follows:

122. Every tariff shall contain

...

(c) the terms and conditions of carriage, clearly stating the air carrier's policy in respect of at least the following matters, namely,

...

(iv) passenger re-routing,

Subparagraph 122(c)(iv) of the ATR provides that international tariffs shall contain the terms and conditions of carriage, clearly stating the air carrier's policy in respect of passenger re-routing. The question before the Agency is whether Rule 80(C) of the IPRFT clearly sets out Aeroflot's policy with respect to passenger re-routing.

The word "clearly" is not defined in the ATR. The Dictionary of Canadian Law defines the word "clear" as free from doubt, free from encumbrance, lien or charge or free from deductions. The Black's Law Dictionary defines the words "clear" and "clearly" as:

Clear. Obvious; beyond reasonable doubt; perspicuous; plain. Free from all limitation, qualification, question or shortcoming. Free from incumbrance, obstruction, burden, limitation, etc. Plain, evident, free from doubt or conjecture, unequivocal, also unincumbered. Free from deductions or drawbacks.

Clearly. Visible, unmistakable, in word of no uncertain meaning. Beyond a question or beyond a reasonable doubt; honestly, straightforwardly, and frankly; plainly. Without obscurity, obstruction, entanglement, confusion, or uncertainty. Unequivocal.

While the Courts have not determined what constitutes a "clear" policy in the context of an air carrier's tariff, the Federal Court of Canada however considered the use and interpretation of the word "clearly" in another legislative context.

In GWG Ltd. v. The Registrar of Trade Marks, (1981) 55 C.P.R. (2d) (See also: John Labatt v. Carling Breweries Ltd., (1974), 18 C.P.R. (2d) 15 (F.C.T.D.); General Foods Inc. v. Tradition Fine Foods Ltd., (1990) 29 C.P.R. (3d) 348 (Can. T.M. Opp. Bd.); M.D. Vaillancourt Ltée v. Meubles Zip International Ltée, (1987) 16 C.I.P.R. 207), the rule to determine whether a trade mark is clearly descriptive pursuant to paragraph 12(1)(b) of the Trade Marks Act, R.S.C. 1970, c. T-10, (now paragraph 12(1)(b) of the Trade-Marks Act, R.S.C. 1985, c. T-13) was examined by the Federal Court, Trial Division (hereinafter the Court):

It has been repeatedly stated based on the authority of numerous decided cases:

(...) The word clearly in paragraph 12(1)(b) of the [Trade Marks Act, R.S.C. 1970, c. T-10] is not a tautological use but it signifies a degree and is not synonymous with "accurate" but means in the context of the paragraph "easy to understand, self-evident or plain (...) [emphasis added]

Although the Court's interpretation of the word "clearly" found in the Trade Marks Act is not binding on the meaning of this word found in the ATR, it nevertheless provides a general definition of its sense and meaning.

Based on the above interpretation and definitions, the Agency is of the opinion that an air carrier's tariff meets its obligations of clarity when, in the opinion of a reasonable person, the rights and obligations of both the carrier and passengers are stated in such a way as to exclude any reasonable doubt, ambiguity or uncertain meaning.

In this regard, the Agency is of the opinion that a reasonable interpretation of the IPRFT would require Aeroflot to carry the passenger to and from the ticketed points. The Agency therefore finds that the IPRFT contains terms and conditions of carriage that clearly state Aeroflot's policy with respect to passenger re-routing.

The Agency is aware that Aeroflot's Rule 80(C) is very similar to rules in effect for other carriers in their respective international tariffs, namely Air Canada, Société Air France, carrying on business as Air France, British Airways Plc, United Air Lines, Inc., and American Airlines, Inc. The Agency also notes that Ms. Desrochers, through judgement of the Quebec Small Claims Court, has been awarded expenses related to Aeroflot's actions.

CONCLUSION

In light of the foregoing, the Agency concludes that the IPRFT contains terms and conditions of carriage that clearly state Aeroflot's policy with respect to passenger re-routing. As such, the Agency concludes that the provisions of the tariff regarding passenger re-routing respect the regulatory requirements set out by subparagraph 122(c)(iv) of the ATR, and hereby dismisses the complaint.

Nonetheless, the Agency concludes that Aeroflot has contravened subsection 110(4) of the ATR, by not applying, in a reasonable manner, Rule 80(C) of its tariff, in that it failed to reroute the passenger either by its own services or by other means of transportation.

The Agency directs Aeroflot to respect its Rule 80(C) and apply a reasonable and industry-accepted interpretation of Aeroflot's Involuntary Revised Routings rule as found in the carrier's tariff.