Decision No. 521-C-A-2006

September 28, 2006

File No. 4370/06-02513

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COMPLAINT

[1] In a letter dated February 15, 2006, Tracee Mathison-Midgley filed with the Office of the Air Travel Complaints Program the complaint set out in the title.

[2] In a letter dated May 4, 2006, Mrs. Mathison-Midgley was advised of the jurisdiction of the Canadian Transportation Agency (hereinafter the Agency) in this matter. Mrs. Mathison-Midgley was also requested to confirm whether she wished to pursue the matter formally before the Agency. On May 8, 2006, Mrs. Mathison-Midgley confirmed that she wished to pursue the matter formally before the Agency.

[3] On May 9, 2006, Skyservice Airlines Inc. carrying on business as Skyservice (hereinafter Skyservice) was requested to provide the Agency and Mrs. Mathison-Midgley with its answer to the complaint within 30 days and Mrs. Mathison-Midgley was provided with 10 days from the date of receipt of the answer to file a reply and serve a copy on Skyservice. On June 8, 2006, Skyservice filed its answer, and on June 29, 2006, Mrs. Mathison-Midgley filed her reply.

[4] Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c.10, the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until September 30, 2006.

PRELIMINARY MATTER

[5] Although Mrs. Mathison-Midgley filed her reply after the prescribed deadline, the Agency, pursuant to section 4 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts this submission as being relevant and necessary to its consideration of this matter.

ISSUE

[6] The issue to be addressed is whether Skyservice properly applied the terms and conditions of carriage relating to its refusal to transport specified in its International Charter Tariff, C.T.A (A) No. 3 (hereinafter the tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR), in respect of this matter.

FACTS

[7] Mrs. Mathison-Midgley arranged for transportation on December 25, 2005 for herself, her husband, and her two children to return from Cancun, Mexico to Vancouver, British Columbia, Canada on Skyservice Flight No. 5171. Upon check-in with Skyservice on that day, Mrs. Mathison-Midgley and her family were refused transportation by the carrier.

POSITIONS OF THE PARTIES

[8] Mrs. Mathison-Midgley states that she and her family arrived at the Skyservice check-in counter 50 minutes prior to their flight's scheduled departure time, but the carrier refused them transportation because they had arrived too late to check in.

[9] Mrs. Mathison-Midgley submits that she and her family members did not have any baggage to check in; they only had carry-on luggage. She further submits that after their arrival at the airport and their contact with the Skyservice representative, boarding of the flight continued for another hour and ten minutes, and that the flight left 20 minutes late. She also advises that the Skyservice representative directed her to the Signature Vacations (hereinafter Signature) representative who was standing outside of the terminal building.

[10] Mrs. Mathison-Midgley states that the Signature representative advised her that she should have been at the airport three hours prior to the scheduled departure time of her flight and because she had failed to meet this requirement, she was refused transportation and would have to purchase new tickets in order to get home. Mrs. Mathison-Midgley submits that she then contacted a Signature representative in Canada who advised her that there was a flight from Cancun to Victoria, British Columbia the following day. Mrs. Mathison-Midgley adds that the Canadian representative assured her that he would get her on that flight, but that she would have to purchase one-way tickets and deal with Signature upon her return with regard to any refund. She maintains that on December 26, 2005, she was advised by a different Canadian Signature representative that no reservations had been made for her on the flight to Victoria, that there was no availability on that flight, that she would not be able to return with Signature to Victoria, and that she would have to find her own way back to Canada. Mrs. Mathison-Midgley advises that she then made reservations with Alaska Airlines, Inc. (hereinafter Alaska Airlines) for travel on December 27, 2005 from Cancun to Vancouver with an overnight stay in Los Angeles, California, United States of America.

[11] Skyservice states that it advertises that international check-in closes 45 minutes prior to flight departure time. It also advises that when possible, it will endeavour to check in those passengers that arrive after check-in has closed.

[12] Skyservice advises that although the flight departed five minutes late, the door was closed and the flight was ready to depart at its scheduled time. Skyservice adds that once the doors are closed and the aircraft deemed secure, regulations do not permit the reopening of the doors.

[13] Skyservice submits that the passengers were in contact with Signature, which advised Mrs. Mathison-Midgley and her family that they would be able to travel on a standby basis on December 26, 2005, but would have to purchase new tickets, which they did not want to do. Skyservice also submits that Signature advised the passengers that the original tickets they purchased were non-refundable, non-transferable and could not be exchanged. Skyservice maintains that it has no record that these passengers spoke with its representative in Cancun.

[14] Mrs. Mathison-Midgley submits that she was advised on December 26, 2005 that the flight that day was not available, and that at no time did Signature provide her with a contact at Skyservice.

[15] Mrs. Mathison-Midgley is seeking compensation for the flights, accommodations, meals and miscellaneous expenditures that her family incurred as a result of Skyservice's refusal to transport her and her family.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[16] Subsection 110(4) of the ATR provides that:

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)

[17] Section 113.1 of the ATR provides 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 tariff provisions

[18] Rule 6 of Skyservice's tariff reads, in part, as follows:

6. CONDITIONS OF CARRIAGE

l) In the event of any conflict or dispute pertaining to a charter contract, the carrier's tariff, filed with the CTA will be the final authority.

o) Recourse of the Passenger and Limitation of Liability

Where the person is subject to probationary conditions imposed by the carrier or where a person has been refused carriage on a one-time or other specified basis or is subject to an indefinite or lifetime ban, the person may provide to the carrier, in writing, the reasons the carrier should remove the sanction. Carrier will respond to the passenger within a reasonable period of time with carrier's assessment as to the need or not to continue applying the sanction(s). Carrier shall not be liable for its refusal to transport any passenger or for its removal of any passenger in accordance with the preceding paragraphs of this rule. (Emphasis added)

ANALYSIS AND FINDINGS

[19] In making its findings, the Agency has carefully considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined the terms and conditions of carriage set out in Skyservice's tariff concerning its refusal to transport a passenger.

[20] Pursuant to subsection 110(4) of the ATR, an air carrier shall apply the terms and conditions of carriage specified in the carrier's tariff.

[21] After reviewing the evidence, the Agency is satisfied that Mrs. Mathison-Midgley and her family arrived at the check-in counter 50 minutes prior to the scheduled time of their flight.

[22] However, the Agency is of the opinion that such a finding of fact is not required in the present case. Upon examination of Skyservice's tariff and submissions, the Agency notes that Skyservice's tariff does not support the carrier's claim that passengers are required to be at the check-in counter within 45 minutes of the scheduled departure time of the flight. In fact, the carrier's tariff is silent with respect to any check-in time limit.

[23] Pursuant to subsection 110(4) of the ATR, an air carrier shall apply the terms and conditions of carriage set out in its tariff. Although the carrier may seek to add conditions in other documentation, it is the tariff which governs carriage. In this case, the carrier has chosen to not specify check-in time limits in its tariff. As the carrier's tariff is silent with respect to check-in time limits, Skyservice, by its refusal to check in and transport Mrs. Mathison-Midgley and her family has not complied with the terms and conditions contained in its tariff; it has applied terms and conditions that are not found in its tariff.

[24] In light of the foregoing, the Agency finds that the limitation of liability set out in Rule 6(o) of Skyservice's tariff does not apply in the present case and that Skyservice must therefore be held liable for its refusal to transport Mrs. Mathison-Midgley and her family.

[25] The Agency further finds that by refusing to transport Mrs. Mathison-Midgley and her family, Skyservice has not complied with its tariff provisions and, as such, has contravened subsection 110(4) of the ATR.

CONCLUSION

[26] Based on the above findings, the Agency, pursuant to section 113.1 of the ATR, hereby directs Skyservice to compensate Mrs. Mathison-Midgley, within thirty (30) days from the date of this Decision, for the following expenses incurred by her and her family:

1. CAD$2747.51, which represents: CAD$2110.16 for the purchase of four Alaska Airlines tickets for travel from Cancun to Vancouver; CAD$423.39 for two nights hotel accommodation in Cancun; and CAD$213.96 for meal expenses between December 25, 2005 and December 27, 2005 ; and
2. CAD$151.44, which represents the expenses incurred by Mrs. Mathison-Midgley for telephone cards and round-trip taxi fare between the airport and the hotel (converted from US$130.00 based on the rate of exchange on December 25, 2005).

Members

• Baljinder Gill
• Mary-Jane Bennett