Decision No. 40-C-A-2020

SUMMARY

[1] Darshani Kumaragamage and Sashika Sameera Kumaragamage (applicants) filed an application with the Canadian Transportation Agency (Agency) against WestJet regarding a schedule irregularity when their flight from Montréal, Quebec, to Toronto, Ontario, was delayed due to air traffic reasons and resulted in them missing their connecting flight to Winnipeg, Manitoba.

[2] The applicants seek compensation in the amount of CAD 1,112.20 for the cost of purchasing new tickets to travel from Toronto to Winnipeg.

[3] The Agency will address the following issue:

Did WestJet properly apply the terms and conditions set out in its Local Domestic Tariff (Tariff), as required by section 67.1 of the Canada Transportation Act, SC 1996, c 10 (CTA)?

[4] For the reasons set out below, the Agency finds that WestJet properly applied Rule 90 of its Tariff. The Agency, therefore, dismisses the application.

BACKGROUND

[5] The applicants held tickets to travel from Winnipeg to Montréal, via Toronto, on May 27, 2019, and to return on May 28, 2019. Their return flight from Montréal to Toronto was delayed by 34 minutes, arriving in Toronto at 5:20 p.m. Boarding for the flight from Toronto to Winnipeg commenced at 5:35 p.m., according to the boarding passes. The applicants arrived at the boarding gate at 5:50 p.m., assumed that the connecting flight was also delayed and did not attempt to board. The flight departed on time at 6:14 p.m. (departure time on the e-ticket was set out as 6:15 p.m.), without them on board. The applicants believe that they missed their connecting flight due to the delay of their first flight. They purchased new tickets after WestJet’s customer service representative told them that they had missed their flight and would be required to do so.

THE LAW AND RELEVANT TARIFF PROVISIONS

[6] The Agency’s jurisdiction in matters respecting the applicability of domestic tariffs is set out in section 67.1 of the CTA:

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.

[7] The relevant provisions of WestJet’s Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES

The applicants

[8] The applicants claim that when their flight from Montréal to Toronto arrived, it was not connected to a jetway, and that they had to descend to the tarmac and walk through an extended part of the terminal to make their way to the next gate for boarding. As the flight from Montréal was delayed and arrived at 5:20 p.m., the applicants had 15 minutes to make their connection. One of the applicants has asthma, could not run, and had difficulty getting to the gate. It took them 30 minutes to get to their boarding gate.

[9] The applicants claim that the display board at the gate showed their connecting flight number and destination, but did not indicate the flight’s status. Further, there was no activity at the gate. They assumed that their connecting flight was delayed, and sat and waited, facing away from the boarding gate.

[10] The applicants state that once their flight information was removed from the display board at 6:35 p.m., they approached the customer service counter. They were told that they missed their flight as it had left, on time, at 6:14 p.m., and that they had to purchase new tickets.

WestJet

[11] WestJet argues that the applicants had enough time to make their connecting flight and suggests that the applicants may have gone to the wrong gate or did not realize boarding occurred behind them. WestJet states that the minimum connection time required for a domestic flight is 35 minutes; that the applicants arrived in Toronto at 5:20 p.m.; that the connecting flight departed at 6:14 p.m.; and that the applicants had 54 minutes to get to the gate.

[12] WestJet states that other passengers missed the flight to Winnipeg, but that these passengers were not connecting from the same flight as the applicants.

[13] WestJet states that because the applicants’ original booking was for a basic fare and that this fare does not allow for any changes to the reservation, the applicants had to buy new tickets to travel to Winnipeg.

The applicants’ reply

[14] The applicants deny WestJet’s suggestion that they may have gone to the wrong gate or did not realize that boarding for their connecting flight to Winnipeg was occurring behind them when they were sitting at the gate facing the opposite direction.

ANALYSIS AND DETERMINATION

[15] The onus is on the applicants to prove, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.

[16] The Agency finds that the schedule irregularity causing the applicants’ first flight to be delayed was due to air traffic and, therefore, was outside of the carrier’s control, as outlined in Rule 90 of WestJet’s Tariff. The applicants arrived at the boarding gate of their connecting flight 15 minutes after boarding had started. Nonetheless, the applicants still had at least 10 minutes to board the flight, allowing for closing of the aircraft doors a few minutes before the scheduled departure.

[17] Based on Rule 40(F)2d of the Tariff, passengers must be at the boarding gate 40 minutes before the scheduled departure of a flight. The flight was scheduled to depart at 6:15 p.m. With the delay in the arrival of the flight from Montréal, the applicants had 15 minutes to get to the gate of their connecting flight in order to be present 40 minutes before departure. One of the applicants has asthma and as a result could not run; however, they did make it to the gate 25 minutes before departure.

[18] The applicants were present in the gate area while boarding was occurring. They had at least 10 minutes before the gate closing for departure. The applicants did not attempt to board the flight as they assumed that the flight was delayed. They waited in the boarding area until 6:35 p.m. before approaching the customer service counter. It is an unfortunate situation; however, the applicants were present at the gate with sufficient time to board their connecting flight, but did not. One potential cause of this may have been the fact that the applicants were consulting the information display screen at their specific gate for status information and they did not apparently consult the airport arrivals and departures board, which lists status for all flights.

[19] In light of the above, the Agency finds that WestJet properly applied Rule 90 of its Tariff. WestJet is not responsible for the applicants missing their flight while they sat at the boarding gate, because the applicants did not attempt to board the flight before the flight departed.

CONCLUSION

[20] The Agency finds that WestJet properly applied its Tariff. The Agency, therefore, dismisses the application.

---

APPENDIX TO DECISION NO. 40-C-A-2020

WestJet Tariff

Rule 40 (F) Check-in Time Limits

2. Check-in Cut-Off Times

…

d. Guests are required to be at the departure Boarding Area 40 minutes before the scheduled time of departure.

…

If the Guest fails to meet the time limits specified in the above chart, the Carrier may reassign any pre-reserved seat and/or cancel the Reservation of the Guest and the Carrier may not be able to transport the Guest’s Baggage. The Carrier shall face no liability to the Guest’s failure to comply with this provision.

…

Rule 90: Schedule Irregularities

(A) Applicability

This rule applies to all Guests irrespective of the Fare Type on which they are travelling.

(B) General

1. 1. The Carrier will make all reasonable efforts to transport the Guest and his/her Baggage at the times indicated in its timetable.
   2. Times shown in timetables or elsewhere are approximate and not guaranteed and form no part of the contract of carriage. The Carrier will not be responsible for errors or omissions either in timetables or other representation of schedules. No employee, agent or representative of the Carrier is authorized to bind the Carrier by any statement or representation regarding the dates or times of departure or arrival, or of the operation of any Flight.
   3. The Carrier will not guarantee and will not be held liable for cancellations or changes to Flight times that appear on Guests’ Tickets due to an Event of Force Majeure.
   4. The Carrier will make all reasonable efforts to inform Guests of delays and schedule changes and, to the extent possible, the reason for the delay or change.
   5. In the case of Schedule Irregularities, the Carrier will give priority for assistance to any person with a disability and Unaccompanied Minors.
   6. The Carrier will determine when a delay or cancellation is controllable and identify which Guests are eligible for applicable compensation.
   7. The Carrier shall not be liable for damage occasioned by overbooking or cancellation if the Carrier proves that it, and its employees and agents, took all measures that could reasonably be required to avoid the damage or if it was impossible for the Carrier, and its employees or agents to take such measures. Having taken all known circumstances into consideration, the Carrier will take all measures that can reasonably be required to avoid or mitigate the damages caused by the advance Flight departure, overbooking and cancellation.