Decision No. 54-C-A-2006

January 31, 2006

File No. M4370/04-50420

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COMPLAINT

[1] On September 20, 2004, Craig McIntyre filed with the Air Travel Complaints Commissioner (hereinafter the ATCC) the complaint set out in the title. However, as the parties were unable to resolve the complaint and due to its regulatory nature, the complaint was referred to the Canadian Transportation Agency (hereinafter the Agency).

[2] In a letter dated May 31, 2005, both Mr. McIntyre and Air Canada were advised of the Agency's jurisdiction in this matter. In that same letter, Mr. McIntyre was requested to confirm in writing whether he wished to pursue the matter formally before the Agency. The parties were also requested to advise whether they agreed that the comments that they had filed with the ATCC be considered as pleadings before the Agency.

[3] In a letter dated June 7, 2005, Air Canada advised that it did not agree that the previous comments on file be considered as pleadings before the Agency. On June 10, 2005, Mr. McIntyre advised that he wished to pursue this matter formally before the Agency and that the comments he had filed with the ATCC should be considered as pleadings before the Agency.

[4] On June 22, 2005, Air Canada was requested to provide the Agency and Mr. McIntyre with its answer to the complaint, and Mr. McIntyre was given the opportunity to file a reply to Air Canada's answer.

[5] In an e-mail dated August 14, 2005, Air Canada advised the Agency that the parties were attempting to achieve a negotiated settlement, but in an e-mail dated September 20, 2005, Mr. McIntyre advised the Agency that the parties had been unable to reach an agreement. In a letter dated October 20, 2005, Air Canada filed its answer to Mr. McIntyre's complaint, and on November 15, 2005, Mr. McIntyre filed his reply.

[6] Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), 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 January 31, 2006.

PRELIMINARY MATTER

[7] Although both parties files their submissions after the prescribed deadline, the Agency, pursuant to section 4 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts these submissions as being relevant and necessary to its consideration of this matter.

ISSUE

[8] The issue to be addressed is whether Air Canada properly applied the terms and conditions relating to its refusal to transport specified in its CDGR-1 Domestic tariff (hereinafter the Tariff) as required by the CTA and the Air Transportation Regulations, SOR/88-58, as amended.

POSITIONS OF THE PARTIES

[9] Mr. McIntyre's sons, Eric and Scott, were scheduled to travel on Air Canada's Flight No. AC181 from Montréal to Edmonton on May 17, 2004. Mr. McIntyre states that on that morning he drove his sons to the airport, arriving at approximately 8:10 a.m. for a flight scheduled to depart for Edmonton at 8:55 a.m. He adds that he accompanied his sons inside the terminal building, leaving his vehicle unattended at curbside.

[10] Mr. McIntyre claims that, at no later than 8:15 a.m. - that is, at least forty minutes before the scheduled departure of his sons' flight - an Air Canada representative directed Scott and Eric into the queue. Mr. McIntyre states that as his vehicle was unattended, he left the building to move it, only then deciding to park and return to the terminal to ensure that his sons did not encounter any problems. The parking stub submitted by Mr. McIntyre confirms that he entered the airport parking facility at 8:24 a.m.

[11] Mr. McIntyre claims that when he re-entered the terminal, his sons were no longer at the Air Canada check-in counter so he proceeded to the security screening area, arriving at approximately 8:30 a.m. He states that, as there were only security screening personnel present, he thought his sons had proceeded through security to the departure gate for their flight. He adds that as he was leaving the security screening area, he noticed his sons at the pay phones where they were apparently trying to contact him. Mr. McIntyre claims that his sons told him that Air Canada would not check them in for the flight because they were too late in arriving at the check-in counter.

[12] In a written statement, Scott and Eric state that the agent advised them that Air Canada did not check in passengers who arrived 30 minutes before a flight. The agent refused to reconsider her position when Mr. McIntyre's sons pointed out that they still had 45 minutes before the flight was scheduled to depart. Scott and Eric advise that they were then directed to another counter to purchase new tickets.

[13] Air Canada states that Mr. McIntyre's sons arrived at the check-in counter too close to the 8:30 a.m. cut-off time to allow for their arrival at the gate within the prescribed 25 minutes prior to the flight's departure time, and that its records indicate that their pre-assigned seats were consequently cancelled. The carrier adds that there was no congestion at security and the passengers were moving steadily through screening.

[14] Air Canada states that the information regarding check-in time limits is provided with all tickets and that such information forms part of the conditions of carriage set out in the Tariff. Mr. McIntyre argues that the tickets he purchased for his sons did not contain time limits for check-in and that when he showed the tickets to the Air Canada agents at the check-in counter, they agreed with him. According to Mr. McIntyre, they told him that had he purchased his tickets at an Air Canada ticket counter instead of over the Internet, he would have been told to check in for the flight at least 60 minutes prior to departure, and that "within 30 minutes of the flight it was possible that the seats might be given away". Air Canada indicates that the recommended check-in time set out in its Tariff for flights within Canada is 60 minutes in advance of a flight and that failing to meet this requirement will result in the cancellation of a passenger's reservation. The agent added that Scott and Eric's arrival 45 minutes before their flight allowed insufficient time for them to be checked in and to get their baggage onto the aircraft.

[15] Mr. McIntyre states that the Air Canada agent told him he would be required to purchase new tickets for his sons and directed him to another counter to make those arrangements, even though fifteen minutes remained before the departure of Scott and Eric's scheduled flight to Edmonton. Mr. McIntyre adds that the alternate arrangements suggested by the carrier were costly and unacceptable.

[16] Mr. McIntyre states that after new tickets in the amount of $1482.92 had been purchased from WestJet, he returned to the Air Canada ticket counter where he was advised that a credit would be available for the unused portion of his sons' tickets. However, as part of the documentation comprising his complaint, Mr. McIntyre filed letters he had received from Air Canada prior to his filing the complaint with the ATCC. In one of those letters to Mr. McIntyre, Air Canada states that the tickets did not have any remaining value, but as a goodwill gesture the carrier sent vouchers totalling $300 for each of his sons.

[17] Mr. McIntyre advises that he returned to Edmonton the following week and was advised by the agent at check-in that the cut-off time for check-in is 30 minutes prior to a flight's departure, and less if it is not busy. He adds that his flight was held past its departure time for passengers who had not cleared security.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[18] Section 67 of the CTA provides, inter alia:

67(1) The holder of a domestic licence shall

(a) publish or display and make available for public inspection at the business offices of the licensee all the tariffs for the domestic service offered by the licensee;

...

(3) The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

[19] Subsection 67.1 of the CTA provides:

67.1 If, on complaint in writing to the Agency by any person or on its own motion, 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

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 or term or condition of carriage that was set out in its tariffs; and
3. take any appropriate corrective measures.

The tariff provisions

[20] Rule 35 and 135 of the Tariff governing the terms and conditions of carriage in effect on May 17, 2004, state, in part, that:

Rule 35AC REFUSAL TO TRANSPORT - LIMITATIONS OF CARRIER

[21] II Passenger's Conduct - Refusal to Transport Prohibited Conduct and Sanctions

Prohibited Conduct

Without limiting the generality of the foregoing, the following constitutes prohibited conduct where it may be necessary, in the reasonable discretion of the carrier, to take action to ensure the physical comfort or safety of the person, other passengers (in the future and present) and/or the carrier's employees; the safety of the aircraft; the unhindered performance of the crew members in their duty aboard the aircraft; or the safe and adequate flight operation:

...

(D) The person fails to observe the instruction of carrier and its employees, including instructions to cease prohibited conduct;

...

[22] III Refuse to Transport the Passenger

The length of such refusals to transport may range from a one time to a(sic) indefinite up to...

...

Rule 135AC CANCELLATION OF RESERVATIONS

(C) Airport Check-In Time Limits

1) The passenger is recommended to present himself/herself for check-in at locations designated for such purposes at least 60 minutes prior to scheduled departure time of flight on which he/she holds a reservation in order to permit completion of government formalities and departure procedures.
2) For Rapidair flights, the passenger must be available for boarding gate at least 20 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.
3) For all other flights, the passenger must be available for boarding gate at least 25 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. Departure will not be delayed for passengers who arrive too late for such formalities to be completed before scheduled departure time. Carrier is not liable to the passenger for loss or expense due to passenger(s) failure to comply with this provision.
NOTE: For the purpose of this rule, the check-in is the point for checking baggage and the boarding gate is the point where the boarding pass stub is lifted and retained by the carrier.

ANALYSIS AND FINDINGS

[23] 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 Air Canada's tariff concerning the refusal to transport and the cancellation of reservations.

[24] Pursuant to subsection 67(3) of the CTA, an air carrier shall, inter alia, apply the terms and conditions of carriage specified in the Tariff.

[25] The Agency notes that Rule 135 of Air Canada's Tariff states in part that it recommends that passengers present themselves for check-in 60 minutes prior to departure, and that passengers must present themselves at the boarding gate at least 25 minutes prior to the scheduled departure of their flight. The Rule further states that failure to meet any of these requirements could result in the loss of either the seating assignment or the reservation. As a recommendation is not a requirement, the Agency infers from the wording of this Rule that as long as a passenger has completed check-in more than 25 minutes prior to the scheduled departure of the flight, the carrier does not have the right to cancel that passenger's reservation unless he or she fails to present himself or herself at the boarding gate at least 25 minutes prior to the flight's departure. Only in the event of failure to do so may the carrier exercise the provisions of this Rule relating to the cancellation of that passenger's reservation.

[26] Air Canada stated that the McIntyres arrived so close to 8:30 a.m. that the carrier was unable to check them in and have them arrive at the departure gate within the specified time limits for boarding. However, Mr. McIntyre claimed that his sons entered the queue for check-in between 8:10 a.m. and 8:15 a.m. but that Air Canada refused to allow Mr. McIntyre's sons to check in as they were too late in arriving at the check-in counter to complete the check-in and security screening processes in time to reach the boarding gate 25 minutes prior to the flight's departure. In support of his claim with respect to time lines, Mr. McIntyre filed his parking receipt, showing that he had entered the parking facility at 8:24 a.m. He stated that he had returned to the terminal and had reached the security screening area by 8:30 a.m. - that is, 25 minutes before the flight's scheduled departure - and that the security screening personnel were the only people in the area. Air Canada did not present any concrete evidence in contradiction of Mr. McIntyre's position. The Agency is of the opinion that had Scott and Eric been allowed the opportunity to reach the boarding gate in sufficient time for the 25-minute cut-off, they may have been able to do so.

[27] Only in the event that Scott and Eric had arrived at the check-in counter after 8:30 a.m. would the carrier have the right to refuse to complete the check-in process. The recommendation that passengers be available for check-in 60 minutes prior to the schedule departure is not an enforceable Tariff provision.

[28] However, the tariff provision which requires that a passenger be at the boarding gate 25 minutes prior to a flight's scheduled departure time is an enforceable Tariff provision. Given that the carrier has supplied no evidence to contradict Mr. McIntyre's position that he arrived at the airport at approximately 8:10 a.m., left his sons in the check-in queue and went to move his vehicle, the Agency accepts the evidence provided by Mr. McIntyre and is of the opinion that the incident transpired as described in the complaint. Further, the Agency finds that Air Canada failed to provide any documentation in support of its claim that the passengers arrived too late for processing and therefore could not be at the boarding gate within the required 25 minutes prior to the flight's departure time. In fact, Air Canada failed to provide Scott and Eric McIntyre with the opportunity to meet that requirement. Further, the Agency notes that while Air Canada stated that 45 minutes was an insufficient amount of time for a passenger to be processed and at the gate for boarding within the gate cut-off time, when Mr. McIntyre checked in for his return flight to Edmonton he was advised that passengers would be accepted at the counter 30 minutes prior to the scheduled departure of their flight, and even less under some circumstances.

[29] In light of the foregoing, the Agency finds that Air Canada failed to prove that it was entitled to cancel Scott's and Eric's reservation and that, in not allowing them the opportunity to present themselves at the boarding gate, Air Canada did not properly apply its Tariff in this matter and therefore has contravened subsection 67(3) of the CTA.

CONCLUSION

[30] In light of the above findings, the Agency, pursuant to paragraph 67.1(b) of the CTA, hereby orders Air Canada to pay Mr. McIntyre, within 30 days from the date of this Decision, an amount of $1482.92 which represents the value of the tickets that Mr. McIntyre had to purchase from WestJet to return his sons to Edmonton because of Air Canada's refusal to transport them.

Members

• George Proud
• Baljinder Gill
• Beaton Tulk