Decision No. 556-C-A-2007

October 31, 2007

File No. M4120-3/07-03654

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COMPLAINT

[1] On June 1, 2007, Edson Emilio Alvarez Garcia filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title.

[2] Pleadings were opened on June 19, 2007. On July 19, 2007, Air Canada filed its answer to the complaint and on July 27, 2007, Mr. Garcia filed his reply.

[3] In Decision No. LET-C-A-157-2007 dated August 21, 2007, the Agency requested additional information from the parties. On August 31, 2007, Mr. Garcia filed a statement from a friend who had taken him to the airport. On August 31, 2007, Air Canada requested an extension until September 7, 2007 to provide its response. The extension was granted. On September 7, 2007, Air Canada filed its response.

[4] Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (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 October 31, 2007.

ISSUE

[5] The issue to be addressed is whether Air Canada, as required by subsection 67(3) of the CTA, properly applied the terms and conditions relating to the cancellation of reservations specified in the Canadian Domestic General Rules Tariff No. CDGR-1 (hereinafter the Tariff).

FACTS

[6] Mr. Garcia was scheduled to travel on Air Canada Flight No. AC129 from Montréal to Vancouver on January 31, 2007. Mr. Garcia was advised by an Air Canada agent that he could not check in for his confirmed flight due to his late arrival at the check-in counter and as a result did not travel on that flight.

POSITIONS OF THE PARTIES

[7] Mr. Garcia submits that he arrived at the Montréal Pierre Elliott Trudeau International Airport at about 7:10 p.m. and claims that he presented himself at the Air Canada check-in counter no later than 7:20 p.m. for Air Canada Flight No. AC129, which was scheduled to depart at 7:55 p.m.

[8] Mr. Garcia argues that there were at least three minutes to go before the 30-minute cutoff deadline for check-in when the agent advised him of the check-in closure. Mr. Garcia states that Air Canada may have closed check-in for his flight early to assign his seat to a standby passenger. Mr. Garcia submits that he was directed to another counter to make alternate travel arrangements, even though Flight No. AC129 to Vancouver was scheduled to depart 25 minutes later. Mr. Garcia acknowledges that after speaking with a supervisor, Air Canada made other arrangements for him to travel by air to Vancouver, via Toronto, and charged him a rebooking fee.

[9] Air Canada states that the check-in closure is an automated function and that check-in for a domestic flight closes 30 minutes prior to the scheduled departure of the flight. Air Canada points out that as this function is automated, an agent does not have the ability to override the system to check in a passenger. Air Canada explains that as Mr. Garcia was not able to be checked in, it can be concluded that he arrived at the check-in counter after 7:25 p.m. Air Canada adds that its Flight No. AC129 was not fully booked and departed with available seats. Air Canada also submits that even though the ticket Mr. Garcia purchased did not allow him to change his departure time, Air Canada provided an alternative flight arrangement for him as a goodwill gesture. That is, upon payment of a same day change fee of $150, Mr. Garcia was rebooked on a later flight that day.

[10] Mr. Garcia states that his reservation should not have been cancelled. He believes that as long as he is able to present himself at the boarding gate at least 25 minutes before departure, he should be allowed to check in. As such, Mr. Garcia is seeking compensation for the additional costs he incurred for his transportation to Vancouver.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[11] The Agency's jurisdiction in this matter concerning domestic tariffs is set out in sections 67 and 67.1 of the CTA.

[12] Subsection 67(3) of the CTA states that:

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.

[13] Section 67.1 of the CTA provides as follows:

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

(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.

APPLICABLE TARIFF PROVISIONS

[14] Rule 135AC of the Tariff governing the terms and conditions of carriage in effect on January 31, 2007, states, in part, that:

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. Passengers checking in via the Internet must check-in at least (60) minutes before the scheduled or posted departure time.

2) Check-in times - Passenger must check-in via a self-service device, or through an AC agent at least thirty (30) minutes before the scheduled departure time. Passengers checking baggage are also subject to the above check-in times.

3) Boarding times - The passenger must be available for boarding at the 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.

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

[15] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined the terms and conditions of carriage concerning the cancellation of reservations set out in Air Canada's Tariff.

[16] The Agency is of the opinion that Rule 135AC of Air Canada's Tariff clearly defines the obligation for the passenger to have checked in at least 30 minutes prior to the scheduled departure of the flight. The Agency also finds that Rule 135AC clearly states that failure to meet this requirement will result in the carrier reassigning any pre-reserved seat and/or cancelling the reservation of such passenger.

[17] When a complaint is filed with the Agency, the complainant must, on a preponderance of the evidence, establish that the air carrier has failed to apply, or has inconsistently applied, terms and conditions of carriage appearing in the applicable tariff. Thus, the onus is on Mr. Garcia to prove that he presented himself at the check-in counter on or before the check-in time limit, as set out in Rule 135AC C) 2) of the Tariff.

[18] Mr. Garcia stated that he arrived at the check-in counter no later than 7:20 p.m., i.e. 35 minutes before the scheduled departure time of the flight. In support of his position, Mr. Garcia submitted a statement provided by a friend, which attests that he and Mr. Garcia arrived at the airport around 7:00 p.m., that the friend helped him with his luggage, and walked Mr. Garcia to the door of the airport. The friend states that he left the airport around 7:15 p.m., but is not able to attest to the actual time Mr. Garcia presented himself at the Air Canada counter for check-in.

[19] Air Canada stated that Flight No. AC129 was automatically closed for check-in at 7:25 p.m. on January 31, 2007, which is according to the system specifications. Air Canada also stated to the Agency that the closing of the check-in function could not be overridden by the individual check-in agent who dealt with Mr. Garcia. Air Canada also confirmed that there were available seats on Air Canada Flight No. AC129 when it departed from Montréal. The Agency is of the opinion that there was no commercial incentive to assign Mr. Garcia's seat to another passenger.

[20] The Agency finds that Mr. Garcia has not substantiated his actual arrival time at the check-in counter and that, as such, he has failed to meet his burden of proof. Therefore, the Agency finds that Air Canada has applied the terms and conditions specified in its tariff and was entitled to refuse transportation to Mr. Garcia.

CONCLUSION

[21] Based on the above findings, the Agency hereby dismisses the complaint.

Members

• Raymon J. Kaduck
• John Scott