Decision No. 41-C-A-2022

[1] Natalie Vogt purchased round-trip tickets for herself and a minor child to travel from Ottawa, Ontario, to Lethbridge, Alberta, via Calgary, Alberta, departing on August 8, 2020, and returning on August 15, 2020. She also purchased a round-trip ticket for herself to travel on the same route, departing on December 16, 2020, and returning on December 30, 2020.

[2] On March 23, 2020, the respondent cancelled the portion of the applicants’ tickets between Calgary and Lethbridge. In the email notifications that it sent to Ms. Vogt, it refers to the impacts of the COVID-19 pandemic, the government’s travel advisories and health and safety concerns as the reasons for the cancellations. The respondent refunded both the applicants’ tickets.

[3] The applicants seek compensation for inconvenience in the amount of CAD 400 for each of the cancelled flights under subsection 19(2) of the APPR^{Note 1}. They also seek the issuance of an administrative monetary penalty (AMP), as they allege that the respondent failed to provide the required information set out in subsection 13(1) of the APPR.

[4] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether the respondent properly applied its Tariff^{Note 2} to the tickets Ms. Vogt purchased. The relevant provisions of the CTA, the APPR and the Tariff are set out in the Appendix. The APPR is incorporated into the Tariff under Rule 5C.

FLIGHT CANCELLATIONS

[5] The applicants argue that the respondent made a business decision to permanently cancel service to Lethbridge due to a lack of commercial sustainability, and that therefore, the cancellations were within its control. They further argue that compensation for inconvenience is not conditional to the cancellations being communicated to them within a certain time period.

[6] The respondent submits that it indefinitely suspended service to Lethbridge because of low demand and market volatility brought forward at the onset of the COVID-19 pandemic, and that the cancellations were therefore outside its control. Further, the respondent argues that the applicants are misinterpreting the APPR by failing to read subsection 19(2) conjunctively with paragraph 12(3)(d), which establishes the necessary criteria for compensation provided by section 19. The respondent argues that compensation is not owed when a passenger is notified of a controllable cancellation more than 14 days before the scheduled date of departure, or, as indicated in Determination A-2020-42 (Temporary exemptions to the APPR), more than 72 hours before that date. Finally, the respondent submits that its cancellation notifications complied with subsection 13(1) of the APPR.

[7] Under the APPR, compensation for flight delays and cancellations is owed only in situations within the carrier’s control. In this case, the flights between Calgary and Lethbridge were cancelled as a result of the respondent’s discontinuance of the service. The evidence shows that this operational decision was made because the route was struggling to remain commercially sustainable, exacerbated by the effects of the pandemic. The Agency finds that the lack of commercial sustainability, notwithstanding the pandemic, is the primary reason behind the respondent’s decision to discontinue the service indefinitely, and that therefore, the cancellations were within its control.

[8] Subsection 19(2) of the APPR, which provides for compensation when passengers are refunded rather than rebooked, states the following:

If paragraph 12(2)(c) or (3)(c) applies to a carrier and the passenger’s ticket is refunded in accordance with subsection 17(2), the carrier must provide a minimum compensation of

(a) $400, in the case of a large carrier; and

(b)  $125, in the case of a small carrier.

[9] This provision must be interpreted in accordance with the principles of statutory interpretation, which were recently reiterated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, at paragraph 117:

A court interpreting a statutory provision does so by applying the “modern principle” of statutory interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the interpretation of statutes and regulations: see, e.g., Interpretation Act, R.S.C. 1985, c. I-21.

[10] The purpose of the APPR is to provide a regulatory means by which carriers are obligated to provide compensation, standards of treatment and information to passengers in the event of certain flight disruptions which occur in respect of a passenger’s travel. Consistent with this purpose, the entitlements under the APPR are based on passenger experience and are thus trip-focused. The sections of the APPR must be read together in their entire context, harmoniously with the scheme of the regulations, which means that individual sections cannot be read in isolation.

[11] Each paragraph of subsection 12(3) covers a specific subject and regulatory reference:

(a) refers to information that must be provided as per section 13;

(b)  refers to standard of treatment when informed of a cancellation less than 12 hours before departure as per section 14;

(c) refers to alternate travel arrangements or a refund as per section 17;

(d)  refers to compensation when a notice of 14 days or less is given as per section 19.

[12] Subsection 19(2) of the APPR does not explicitly refer to a specific notice period for communications. However, as discussed above, paragraph 12(3)(d), which sets out when compensation is due, quite clearly states that if a carrier cancels a flight for reasons within its control within 14 days of the original departure time, the carrier must provide compensation “in the manner set out in section 19”. These two provisions must be read together. The logical conclusion to be drawn from the interaction of sections 19(2), and 12(3)(d) is that when the cancellation happens with a notice greater than 14 days, the carrier is not obligated to provide the compensation set out in subsection 19(2).

[13] The applicants raise the current proposal to amend the APPR as proof that their claim is soundly based in law. The proposed change to the APPR is merely one of drawing greater attention to the fact that the compensation right provided for in subsection 19(2) is dependent upon a less than 14-day notice period being provided, as per paragraph 12(3)(d).

[14] Therefore, when read with the rest of the APPR as a whole, subsection 19(2) cannot be interpreted as entitling passengers to compensation for flight disruptions within the carrier’s control, when these are communicated more than 14 days in advance. In the current application, the notice received by the applicants in respect of the cancellation of the particular flights was 138 days, 145 days, 282 days and 268 days respectively. Based on the above, and on the overall purpose, object and scheme of the APPR, the Agency finds that subsection 19(2) entitles passengers to compensation only when the disruption was communicated to the passenger 14 days or less before their original departure time.

[15] In addition, Rule 80 of the Tariff states that schedules are not guaranteed and exempts the carrier from compensation if the passenger was informed of the delay or cancellation more than 14 days before the original scheduled departure time.

[16] As the applicants were informed of the delay more than 14 days before their original departure time, the Agency finds that the respondent properly applied its Tariff, and that the applicants are not entitled to the compensation that they seek.

COMMUNICATIONS

[17] With respect to the requirements set out in subsection 13(1) of the APPR, the Agency notes that the respondent’s email notifications do not explicitly inform the applicants of the route discontinuance which was the reason for the cancellations.

[18] The relief that the applicants are seeking, that is the issuance of an AMP, is not an available remedy under the Agency’s complaint mechanism set out in section 67.1 of the CTA. The Agency made a similar observation in Decision 61-AT-C-A-2021 (Crick v Air Canada).

[19] The Agency has, since the opening of the pleadings on this application, issued Decision 122-C-A-2021 (APPR Interpretative Decision) following its inquiry into complaints from passengers with respect to carriers’ obligation to communicate the reasons for flight delays and cancellations under the APPR. In its findings, the Agency provided guidance to carriers with respect to the notification to passengers of the reasons for delays and cancellations when there are contributing causes, and provided passengers with criteria against which to measure the adequacy of the carrier’s notice.

CONCLUSION

[20] As there is no remedy available to the applicants, the Agency dismisses the application.

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APPENDIX TO DECISION NO. 41-C-A-2022

Canada Transportation Act, SC 1996, c 10

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.

Air Passenger Protection Regulations, SOR/2019-150

Obligations when within carrier’s control

12(1) Subject to subsection 10(2), this section applies to a carrier when there is delay, cancellation or denial of boarding that is within the carrier’s control but is not referred to in subsections 11(1) or (2).

….

Cancellation

(3) In the case of a cancellation, the carrier must

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

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

(c) provide alternate travel arrangements or a refund, in the manner set out in section 17; and

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

….

Information — cancellation, delay, denial of boarding

13(1) A carrier must provide the following information to the passengers who are affected by a cancellation, delay or a denial of boarding:

(a) the reason for the delay, cancellation or denial of boarding;

(b)  the compensation to which the passenger may be entitled for the inconvenience;

(c) the standard of treatment for passengers, if any; and

(d)  the recourse available against the carrier, including their recourse to the Agency.

….

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.

….

Compensation for delay or cancellation

….

Compensation in case of refund

19(2) If paragraph 12(2)(c) or (3)(c) applies to a carrier and the passenger’s ticket is refunded in accordance with subsection 17(2), the carrier must provide a minimum compensation of

(a) $400, in the case of a large carrier; and

(b)  $125, in the case of a small carrier.

….

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

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.

(2) For the purposes of APPR, Air Canada, Air Canada Rouge and any airlines operating under the Air Canada Express banner are all considered a large carrier.

RULES 80 – SCHEDULE IRREGULARITIES

A. General

(1) Schedules not guaranteed

Times and aircraft type shown in timetables or elsewhere are approximate and not guaranteed, and form no part of the contract of carriage. Schedules are subject to change without notice. No employee, agent or representative of the Carrier is authorized to bind the Carrier by any statements or representation as to the dates or times of departure or arrival, or of the operation of any flight. It is always recommended that the passenger ascertain the flight’s status and departure time either by registering for updates on their electronic device, via the Carrier’s website or by referring to airport terminal displays.

….