Decision No. 39-C-A-2018

SUMMARY

[1] Dana Young filed an application with the Canadian Transportation Agency (Agency) regarding the reassignment of her confirmed seat on Air Canada Flight No. AC157 departing from Toronto, Ontario to Calgary, Alberta on May 18, 2017. The seat was reassigned as a result of the delayed departure of her rebooked Air Canada flight from Windsor to Toronto.

[2] Ms. Young alleges that Air Canada cancelled her confirmed seat contrary to its Tariff and that Air Canada was fraudulent and abusive in its conduct toward her.

[3] The Agency will address the following issue:

Did Air Canada properly apply the terms and conditions set out in Rules 240(B)(8)(A), (B) and (C)(1)(A) and Rules 135(C)(3) and (4) of its Domestic Passenger General Rules Tariff CTA(A) No. 3 (Tariff) relating to schedule irregularities, and check-in and boarding time limits, as required by subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)? If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedies, if any, are available to Ms. Young?

[4] For the reasons set out below, the Agency finds that Air Canada properly applied the terms and conditions of carriage relating to schedule irregularities, and check-in and boarding time limits set out in its Tariff.

BACKGROUND

[5] Ms. Young was scheduled to travel on May 18, 2017 with Air Canada from Windsor to Calgary, via Toronto. Specifically, her itinerary included travel from Windsor to Toronto on Flight No. AC8872 departing at 5:30 p.m., and then from Toronto to Calgary on Flight No. AC153 departing at 8:15 p.m. Upon arrival at the Windsor International Airport, Ms. Young was advised that the first leg of her itinerary, Flight No. AC8872 (to Toronto), had been cancelled.

[6] Air Canada rebooked Ms. Young to travel to Toronto on Flight No. AC8874 (from Windsor) departing at 8:45 p.m. later that same night, with a connection to Calgary on Flight No. AC157 departing at 10:30 p.m. Ms. Young was given boarding passes for each of the two new flights.

[7] Ms. Young’s re-scheduled flight from Windsor to Toronto (Flight No. AC8874) was subsequently delayed for an hour.

[8] Upon arrival in Toronto, Ms. Young received an e-mail from Air Canada advising her that her reservation had been modified and that she had been rebooked to travel to Calgary on Flight No. AC135, which was scheduled to depart the next day at 8:00 a.m. The delayed departure from Windsor and the subsequent expected delayed arrival in Toronto triggered Air Canada to re-book Ms. Young to travel on a later flight from Toronto to Calgary.

[9] Despite the e-mail notification, Ms. Young proceeded to the Air Canada gate for Flight No. AC157 and noticed that it too was delayed over an hour. Ms. Young spoke to the Air Canada gate agent who advised her that her seat had indeed been reassigned, but Air Canada would nevertheless place her on standby for Flight No. AC157. Ms. Young travelled to Calgary on Flight No. AC157.

PRELIMINARY MATTER

Agency jurisdiction over quality of service

[10] Ms. Young claims that Air Canada’s conduct toward her was abusive and that she received poor customer service from the Air Canada gate agents at the Toronto Pearson International Airport (Toronto Airport).

[11] Ms. Young submits that it is an implied term and condition of the Tariff that Air Canada will not be abusive to passengers. She argues that Air Canada was abusive to her by unilaterally reassigning her seat without her consent. Ms. Young further alleges that Air Canada fabricated a basis to refuse to transport her on Flight No. AC157.

[12] In support of these claims, Ms. Young alleges that, when she inquired at the gate about the likelihood of being confirmed on Flight No. AC157 and indicated that it was unfair that her seat had been given away, the gate agents kept interrupting her, told her to sit down, refused her request to speak to a manager, and would not provide information that would allow her to assess her options. Ms. Young states that she never raised her voice or used inappropriate language.

[13] Ms. Young recorded part of the exchange she had with the gate agents on her iPhone. She alleges that the gate agents became upset when they realized that she was recording the exchange and asked her to turn off the recording device. Ms. Young further alleges that they told her that she was not getting on the flight.

[14] For its part, Air Canada submits that on being informed that her seat had been automatically reassigned and that she had been automatically re-protected on the next available flight to Calgary, Ms. Young became very upset and ordered the gate agent to remove the passenger who had been reassigned her seat. Air Canada submits that the gate agent explained that, although she could not remove any passengers in order to re-allocate to Ms. Young her original seat, Ms. Young would be assigned a seat on standby if one was available at the end of boarding. Air Canada maintains that Ms. Young was asked to stop recording their discussion and to move to the side so it could continue boarding other passengers. Air Canada further submits that the gate agents called for a Customer Service Manager to come to the gate as Ms. Young was not following their instructions.

[15] 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. 18-C-A-2015 (Enisz v. Air Canada), Decision No. 78-C-A-2017 (Kabra v. Jet Airways) and, most recently, Decision No.103-C-A-2017 (Chowdhury v. Turkish Airlines).

[16] Therefore, the Agency will not consider this issue.

THE LAW

[17] Subsection 67(3) of the CTA requires that a carrier operating a domestic service apply the terms and conditions set out in its tariff.

[18] If the Agency finds that a carrier has failed to properly apply its tariff, section 67.1 of the CTA empowers the Agency to direct the carrier to:

1. apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;
2. 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
3. take any other appropriate corrective measures.

[19] Rules 240(B)(8)(A) and (B), Rule 240(C)(1)(A) and Rules 135(C)(3) and (4) of Air Canada’s Tariff are the rules that were in effect when Ms. Young travelled.^[1]

[20] Rules 240(B)(8)(A) and (B) of the Tariff define the term “schedule irregularity” as follows:

240(B)(8) Schedule irregularity includes any of the following occurring on the day of departure, but does not refer to disruptions resulting from labour disturbances and/or strikes:

(A) delay in scheduled departure or arrival of an AC flight resulting in a miss‑connection; or,

(B)  flight cancellation, omission of a scheduled stop, or any other delay or interruption in the scheduled operation of AC’s] flights; or,

[21] Rule 240(C)(1)(A) of the Tariff sets out one of the options that Air Canada will provide to its passengers in the event of a schedule irregularity:

When a passenger will be delayed due to a schedule irregularity involving an AC flight, or the invocation of the provisions of Rule 35 (Refusal to transport …) and/or Rule 135 (Cancellation of reservations […]):

AC will transport the passenger without stopover on its next available flight and in the same class of service as his original flight. […]

[22] Rules 135(C)(3) and (4) address boarding times and state the following:

(3) The passenger must be available for boarding at the gate at least 15 minutes prior to scheduled departure time of the flight on which he/she holds a reservation and must arrive properly documented and ready to travel.

(4) If the passenger fails to meet any of these requirements, the carrier will reassign any pre-reserved seat and/or cancel the reservation of such passenger. […]

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Ms. Young’s position

[23] Ms. Young states that Air Canada reassigned her seat on Flight No. AC157 without her consent and that this is contrary to its Tariff, as it was done more than 15 minutes prior to both the originally scheduled departure time of 11:10 p.m. and the rescheduled departure time of 12:10 a.m. Ms. Young submits that Air Canada failed to provide her with information that would have reasonably allowed her to assess her options, and fabricated a basis to refuse to transport her.

[24] Ms. Young takes issue with Air Canada’s assertion that, even when a scheduled flight time has been rescheduled, Air Canada can reassign a passenger’s seat if the passenger is not available for boarding at least 15 minutes prior to the originally scheduled time. Ms. Young submits that, when flights are delayed, passengers typically leave the boarding area. She further argues that to suggest that all such passengers must cling to their originally scheduled departure time and stay in the departure lounge for an aircraft that is not taking off is an absurd interpretation of Air Canada’s Tariff.

Air Canada’s position

[25] Air Canada submits that Flight No. AC8872 was cancelled due to a Ground Delay Program as a result of air traffic control constraints at the Toronto Airport. It also submits that Flight No. AC8874 was delayed due to the Ground Delay Program at the Toronto Airport and arrived at the gate at 11:09 p.m.

[26] Air Canada further submits that, due to the late arrival of Flight No. AC8874 and the expectation that Ms. Young would be unable to make her connection to Calgary on Flight No. AC157, Ms. Young was automatically rebooked on the next flight to Calgary, which was scheduled to depart at 8:00 a.m. the next morning.

[27] Air Canada states that although Flight No. AC157 was scheduled to depart Toronto at 11:10 p.m., it was delayed 54 minutes due to aircraft systems defects, namely a tire change and oil indicator issues. Air Canada submits that the rescheduled departure time of 12:10 a.m. on May 19, 2017 was forecast at 10:55 p.m.

[28] Air Canada maintains that it was because of the delay of Flight No. AC157 that this aircraft was still at the Toronto Airport when Ms. Young arrived at the gate following her 11:09 p.m. arrival on Flight No. AC8874. Air Canada submits that Ms. Young was informed by the gate agents in Toronto that, due to the late arrival of Flight No. AC8874, her seat on Flight No. AC157 had been automatically reassigned to another passenger and she had been automatically rebooked to depart on Flight No. AC135 from Toronto to Calgary at 8:00 a.m. the next morning. Air Canada submits that Ms. Young was advised that although Flight No. AC157 was fully booked at that time, she would be reassigned a seat on this flight if there was a seat available at the end of boarding.

[29] Air Canada states that at the end of boarding, there was one seat remaining and the Customer Service Manager brought Ms. Young to the door of the aircraft.

[30] Air Canada submits that at all points in time, it respected the provisions of its Tariff.

[31] Air Canada states that its primary duty towards its customers is to ensure that they get to their final destinations safely and as quickly as possible. If it is determined that a customer will miss a connection, the customer is automatically re-protected using Air Canada’s Passenger Rebooking System (PRS). The PRS provides options for rebooking based on available seats and automatically rebooks customers on the next available flight. In particular, the PRS will automatically offload passengers from their original flight, rebook them onto the next available flight, issue new tickets as required and make associated changes to their baggage tag information.

[32] In response to Ms. Young’s allegation that Air Canada violated Rule 70(B) of its Tariff (Rule 135(3) at the time Ms. Young travelled), which states that the passenger must be available for boarding at the gate at least 15 minutes prior to the scheduled departure time, Air Canada submits that Ms. Young was not present at the gate 15 minutes prior to the scheduled departure time of Flight No. AC157. In particular, Air Canada points out that Ms. Young’s flight from Windsor (Flight No. AC8874) only arrived at the gate in Toronto at 11:09 p.m. and that her flight to Calgary (Flight No. AC157) was scheduled to depart at 11:10 p.m. Air Canada indicates that the requirement set out in its Tariff is for passengers to be present 15 minutes before the scheduled time of departure and not the actual flight time.

[33] Air Canada also points out that Ms. Young was not refused transport as she travelled to Calgary on Flight No. AC157. On this basis, Air Canada argues that it respected its obligations under Rule 90 of its Tariff (Rule 245 at the time Ms. Young travelled).

Findings of Fact

[34] It is undisputed by the parties that Ms. Young incurred a flight cancellation, subsequent schedule delay from Windsor to Toronto on May 18, 2017, and another delay on Flight No. AC157 from Toronto to Calgary. It is also undisputed that Ms. Young’s seat on Flight No. AC157 was reassigned to another passenger, that Air Canada re-protected Ms. Young on another flight to Calgary scheduled to depart the following morning of May 19, 2017, and that Ms. Young was placed on standby and travelled on Flight No. AC157.

[35] Based on the flight record filed by Air Canada in support of its submission, the Agency finds that Flight No. AC8872 from Windsor to Toronto was cancelled as a result of air traffic control constraints at the Toronto Airport.

[36] Based on the Netline document for Flight No. AC8874 filed by Air Canada, the Agency finds not only that Flight No. AC8874 from Windsor to Toronto was subsequently delayed due to the Ground Delay Program at the Toronto Airport, but also that it ultimately arrived at the gate in Toronto at 11:09 p.m. on May 18, 2017.

[37] In addition, the Agency finds that, as reflected in the Netline and Leg History of Flight No. AC157 filed by Air Canada, Flight No. AC157 from Toronto to Calgary, which was scheduled to depart at 11:10 p.m. on May 18, 2017, was delayed for 54 minutes due to a tire change and oil indicator issues.

[38] In light of these findings, the Agency further finds that Ms. Young arrived at the gate in Toronto one minute before her connecting flight to Calgary was scheduled to depart.

[39] Moreover, the Agency finds that, by operation of Air Canada’s PRS, Ms. Young’s seat on Flight No. AC157 from Toronto to Calgary was automatically reassigned to another passenger based on the delay to the scheduled departure time of Flight No. AC8874 from Windsor to Toronto. The Agency further finds that the PRS automatically re‑protected Ms. Young by booking her on the next available flight from Toronto to Calgary, namely Flight No. AC 135, which was scheduled to depart at 8:00 a.m. on May 19, 2017.

[40] Finally, the Agency finds that, as reflected in the Departure Control System record filed by Air Canada, Ms. Young travelled on standby from Toronto to Calgary on Flight No. AC157.

ANALYSIS AND DETERMINATIONS

[41] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to establish, 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.

[42] In respect of the cancellation of Ms. Young’s original flight and the delay of her subsequent flights, the Agency notes that Rules 240(B)(8)(A) and (B) of Air Canada’s Tariff define a schedule irregularity as a delay in the scheduled departure or arrival of an Air Canada flight resulting in a missed connection or flight cancellation. Furthermore, Rule 240(C)(1)(A) states that, when a passenger is delayed due to a schedule irregularity involving an Air Canada flight, Air Canada will transport the passenger without stopover on its next available flight.

[43] Air Canada argues that it met its obligations under Rules 240(B)(8)(A) and (B) and 240(C)(1)(A) of its Tariff by re-protecting Ms. Young on the next available flight from Toronto to Calgary (Flight No. AC135) when it appeared that she would miss her original connecting flight in Toronto (Flight No. AC157) after her flight from Windsor to Toronto (Flight No. AC8874) was delayed. The Agency finds that Air Canada acted in keeping with these provisions of its Tariff when it re-protected Ms. Young on Flight No. AC135, the first available alternative flight from Toronto to Calgary, departing at 8:00 a.m. on May 19, 2017.

[44] With respect to Ms. Young’s argument as to the timing of her seat reassignment on Flight No. AC157, the Agency finds that Ms. Young has not established that Air Canada failed to properly apply its Tariff. As noted above, Air Canada acted in keeping with Rule 240(C)(1)(A) of its Tariff by automatically rebooking Ms. Young on the next available flight to Calgary when her flight from Windsor to Toronto was delayed. In any event, Ms. Young’s flight from Windsor arrived at the Toronto Airport at 11:09 p.m., one minute before her connecting flight was originally scheduled to depart. Absent the delay of Flight No. AC157, Ms. Young would have missed her 11:10 p.m. connecting flight to Calgary had Air Canada’s PRS not automatically rebooked her on the next available flight the following morning, Ms. Young would not have had any confirmed flight reservation to Calgary.

[45] The Agency also finds that Air Canada acted in keeping with Rule 135(4) of its Tariff in reassigning Ms. Young’s seat on Flight No. AC157 after she had been re-protected on Flight No. AC 135. The Agency notes that once the departure of Flight No. AC157 had been delayed until 12:10 a.m., Air Canada acted to accommodate Ms. Young by placing her on standby for that flight. In the event, Ms. Young was eventually confirmed on standby and travelled to Calgary on Flight No. AC157.

[46] Based on the above, the Agency finds that Air Canada properly applied the terms and conditions set out in its Tariff as required by subsection 67(3) of the CTA.

CONCLUSION

[47] The Agency dismisses the application.