Decision No. 58-C-A-2021

SUMMARY

[1] Andrew Hassoun filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding the cancellation of his scheduled flight from Newark, New Jersey, USA, to Ottawa, Ontario, on August 6, 2019.

[2] Mr. Hassoun seeks compensation for the expenses he incurred as a result of the cancellation, which include the costs of hotel accommodations, transportation, meals, clothing and telephone charges. In addition, Mr. Hassoun claims compensation for the stress that he endured while attempting to find last-minute hotel accommodations.

[3] The Agency will address the following issue:

Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458 (Tariff), as required by subsection 110(4) of the ATR?

[4] For the reasons set out below, the Agency finds that Air Canada properly applied the terms and conditions set out in Rules 80(B), 80(C)(3) and 80(C)(4) of its Tariff. Therefore, the Agency dismisses the application.

BACKGROUND

[5] Mr. Hassoun purchased a round-trip ticket through Expedia.ca to travel from Ottawa to Newark on August 2, 2019, returning on August 6, 2019. The return portion of Mr. Hassoun’s itinerary, Air Canada Flight No. AC8857, was cancelled allegedly due to inclement weather conditions.

[6] Air Canada originally reprotected Mr. Hassoun on a flight that departed two days later on August 8, 2019, and included a layover in Montréal, Quebec. However, Mr. Hassoun was not satisfied with being reprotected on a connecting flight rather than a direct flight and contacted Air Canada to find an alternative. Air Canada then reprotected Mr. Hassoun on a direct flight to Ottawa that departed on August 8, 2019.

[7] After Mr. Hassoun was rescheduled on the flight departing on August 8, 2019, Air Canada found an available seat on a direct flight that departed on August 7, 2019. It offered to place Mr. Hassoun on the earlier flight but he declined because he had already booked hotel accommodations for two nights. Mr. Hassoun returned to Ottawa on August 8, 2019, approximately 39 hours after he was originally scheduled to arrive.

PRELIMINARY MATTERS

Pain and suffering

[8] Mr. Hassoun seeks compensation for the stress he endured while attempting to find last‑minute hotel accommodations. He argues that the flight cancellation also caused him extreme stress, financial hardship, employment issues and emotional distress. The Agency is a creature of statute and not a court of general jurisdiction. It may only exercise jurisdiction which is granted to it by statute. Pursuant to section 113.1 of the ATR, the Agency may award compensation for any expenses incurred by a person adversely affected by a carrier’s failure to properly apply the terms and conditions of carriage set out in its Tariff. It has no authority to order compensation for pain or suffering.

Customer service issue

[9] Mr. Hassoun claims that he encountered poor customer service from Air Canada when he was attempting to find alternate travel arrangements. As stated above, the Agency is not a court of inherent jurisdiction and its authority is limited to the one granted by statute. In this case, the Agency’s jurisdiction is limited to determining whether Air Canada respected the terms and conditions of carriage as they are set out in its Tariff as required by subsection 110(4) of the ATR. The Agency is therefore unable to address the customer service issue raised by Mr. Hassoun.

Compensation under the Air Passenger Protection Regulations, SOR/2019-150 (APPR)

[10] The APPR were registered on May 22, 2019. However, the APPR provisions for flight delays and cancellations came into force on December 15, 2019. Accordingly, as the incident occurred prior to the coming into force of the APPR provisions for flight delays and cancellations, the Agency does not have the authority to consider requests for compensation under these provisions.

THE LAW AND RELEVANT TARIFF PROVISIONS

[11] Subsection 110(4) of the ATR requires that an air carrier operating an international service apply the terms and conditions of carriage set out in its tariff.

[12] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to

(a) take the corrective measures that the Agency considers appropriate; and

(b) pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions that are applicable to the service it offers and that were set out in the tariff.

[13] Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) states:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

[14] The relevant provisions of the Tariff are set out in the Appendix.

POSITION OF THE PARTIES AND FINDINGS OF FACT

Mr. Hassoun

[15] Mr. Hassoun questions whether Flight No. AC8857 was cancelled for reasons beyond just the weather, given that other flights departing from Newark Liberty International Airport (Newark airport) and the surrounding area continued to operate. He identifies three flights destined for Montréal and Ottawa that departed from New York City’s LaGuardia Airport within the hour of his scheduled flight. Mr. Hassoun submits that if the weather was a serious concern, industry standards would have required the cancellation of the other flights.

[16] In addition, Mr. Hassoun claims that he was not properly notified of the flight cancellation. He also submits that Air Canada automatically reprotected him on a connecting flight through Montréal, which was not an acceptable option since he had paid for direct travel. He contends that when he noticed the error, he had to contact Air Canada in order to find an alternate direct flight.

[17] According to Mr. Hassoun, Air Canada made no effort to find him an earlier flight. He submits that although it eventually found availability on a flight departing the next day, he had to decline the offer because he had already booked hotel accommodations which were non-refundable.

[18] Mr. Hassoun argues that he was clearly not a priority for Air Canada since it was only through his actions that an alternate direct flight was found.

Air Canada

[19] Air Canada submits that on the date of the cancellation of Flight No. AC8857, the northeast coast of the United States was experiencing severe weather conditions that caused the cancellation of at least 1,400 flights into and out of the United States. According to Air Canada, Newark airport was the most affected, with an estimated 350 flight cancellations. Air Canada contends that the airport also implemented a ground delay program (GDP) to manage its reduced capacity and, because of this, the carrier was forced to reduce its schedule.

[20] Air Canada disagrees with Mr. Hassoun’s assertion that he was not notified about the cancellation, pointing out that his own evidence demonstrates that Expedia.ca sent him a notification which directed him to contact Expedia.ca following the cancellation.

[21] Regarding its attempts to reprotect Mr. Hassoun, Air Canada submits that it initially reprotected Mr. Hassoun on a connecting flight to Ottawa via Montréal, but when he refused this option, it found space and reprotected him on a direct flight on August 8, 2019. Air Canada submits that, at that time, there were no available seats on any earlier direct flights. According to Air Canada, when space opened up on an earlier direct flight, it was offered to Mr. Hassoun but he refused and opted to remain booked on the August 8 flight.

Findings of fact

[22] In his application, Mr. Hassoun challenges Air Canada’s assertion that weather was the cause of the cancellation. In response, Air Canada provided supporting evidence to demonstrate that the weather had affected a significant number of flights during the time when Mr. Hassoun’s original flight was scheduled to depart. It submitted several news articles and weather reports that detailed the severity of the weather conditions in and around the Newark airport on August 6, 2019, and the following day. The carrier also provided information such as the System Operations Control Report which shows that the Newark airport implemented a GDP and other reports which support its claim that flight operations were disrupted by the weather.

[23] Mr. Hassoun contends that other flights in the surrounding area continued to operate. However, the fact that some flights in the area were still departing does not establish that flights were not disrupted because of the weather. Widespread weather-related disruptions like that of August 6, 2019, cause issues in operations generally. For example, inbound flights might be cancelled or rerouted such that aircraft intended for certain routes may become unavailable, or ground crew operations might become limited such that not all flights can be operated. In other words, although Mr. Hassoun knew of other flights which were operating, this does not mean that all flights were able to operate normally.

[24] In light of the above and based on the evidence, the Agency finds that the cancellation of Flight No. AC8857 was caused by severe weather conditions in and around the Newark airport.

ANALYSIS AND DETERMINATIONS

Did Air Canada properly apply the terms and conditions set out in its Tariff as required by subsection 110(4) of the ATR?

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

[26] Rule 80(B) of the Tariff provides that the carrier experiencing a schedule irregularity will make alternative transportation arrangements for the passenger, which is what Air Canada did when the original flight was cancelled. Although Mr. Hassoun questions why he was not automatically placed on a direct flight, Rule 80(C)(4) does not require Air Canada to carry a passenger to the destination on the same route. In fact, Rule 80(C)(4)(c) provides the option of rerouting the passenger to the final destination.

[27] In addition, Rule 80(A)(3) of the Tariff requires that Air Canada use its best efforts to carry the passenger with reasonable dispatch, with no particular fixed time. As indicated by both parties, Mr. Hassoun was reprotected when his flight was cancelled, then reprotected again when he communicated to Air Canada that he did not want to take a connecting flight. Both parties also acknowledge that Mr. Hassoun declined the carrier’s offer to reprotect him a third time, when space became available on an earlier flight.

[28] Regarding liability for delay, Article 19 of the Montreal Convention, which is incorporated by reference under Rule 105(B)(5) of the Tariff, states that the carrier is liable for damage occasioned by delay in the carriage of passengers unless it took all measures that could reasonably be required to avoid the damage. Mr. Hassoun’s original flight was cancelled by weather conditions that severely impacted aircraft operations in Newark and the surrounding area. When Mr. Hassoun objected to travelling on the connecting flight on which he was originally reprotected, Air Canada was able to reprotect him on a direct flight. Furthermore, Air Canada eventually found an earlier flight, and offered it to Mr. Hassoun, but he declined the offer. In the particular circumstances of this case, by immediately reprotecting Mr. Hassoun on a later flight, changing that flight to a direct flight, and then offering Mr. Hassoun an earlier flight, Air Canada took all reasonable steps to prevent the damages incurred by Mr. Hassoun because of the delay. It follows that Air Canada is not responsible for any expenses incurred by Mr. Hassoun as a result of the delay.

[29] Finally, Rule 80(C)(3)(a) of the Tariff requires that Air Canada promptly provide timely updates, including the reasons for the delay or cancellation, as soon as it is aware of the delay or cancellation. Although Mr. Hassoun claims that he was not notified of the cancellation, he provided a copy of Expedia.ca’s cancellation notice as supporting evidence. Furthermore, it is unclear how Mr. Hassoun was not notified of the incident when, in his application, he indicates that he noticed the error in being reprotected on a connecting flight. He states “When my flight was cancelled without notice, I was redirected to a connecting flight when I paid for a direct flight. I noticed the error and had to contact your agent…”. Therefore, the Agency finds, on a balance of probabilities, that Mr. Hassoun was notified of the cancellation of Flight No. AC8857.

CONCLUSION

[30] Based on the above, the Agency finds that Air Canada properly applied the terms and conditions set out in Rules 80(B), 80(C)(3) and 80(C)(4) of its Tariff. Therefore, the Agency dismisses the application.
 

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International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458

Rule 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 carrier is authorized to bind 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.

(2) Carrier not responsible

….

The carrier will not guarantee and will not be held liable for cancellations or changes to flight times that appear on passengers’ tickets due to force majeure, including labour disruptions or strikes. However, a passenger may invoke the provisions of the Convention regarding liability in the case of delay.

(3) Best efforts

Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch, but no particular time is fixed for the commencement or completion of carriage. Subject thereto carrier may, without notice, substitute alternate carriers or aircraft and may alter the route, add stopovers or omit the stopping places shown on the face of the ticket in case of necessity. 

(B) OPERATING CARRIER TO ARRANGE ALTERNARE TRANSPORTATION

The carrier operating that flight that is experiencing the schedule irregularity will make the alternative transportation arrangements for the passenger and will apply its own tarmac delay contingency plan in the event of a tarmac delay.

(C) SCHEDULE IRREGULARITY

….

(3) Information to Passengers

Air Canada will promptly provide timely updates, including the reason for the delay or cancellation:

(a)  As soon as Air Canada is aware of such a delay or cancellation, and then:

….

(4) In the event of a schedule irregularity, Carrier will either:

….

(a) carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service; or, at the carrier’s option;

(b) endorse to another air carrier with which Air Canada has an agreement for such transportation, the unused portion of the ticket for purposes of rerouting; or at the carrier’s option;

(c) reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from Rule 100, carrier will require no additional payment from the passenger but will refund the difference if it is lower or,

….

Rule 105 LIABILITY OF CARRIERS

(B) LAWS AND PROVISIONS APPLICABLE

….

(5) For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.