Decision No. 59-C-A-2022

[1] Ramon Arturo Gomez Quevedo purchased round-trip tickets for the applicants from Expedia on March 1, 2020, to travel from Bogota, Colombia, to Toronto, Ontario, departing on June 21, 2020, and returning on August 23, 2020.

[2] The respondent cancelled the flights on May 21, 2020, due to the COVID-19 pandemic, and the applicants were informed that they would receive a travel credit valid for 12 months that could only be used by the passengers identified on the tickets.

[3] On May 22, 2020, the respondent publicly announced a new policy for flights cancelled due to the COVID-19 pandemic under which passengers would obtain a transferable travel voucher with no expiry date. In response to an email from the Canadian Transportation Agency (Agency), the respondent advised the applicants on November 4, 2020, that they should contact Expedia if they wanted to transfer the voucher to another person. Many months later, in response to correspondence from the applicants, the respondent processed the request and informed the applicants that it could take up to four months for it to be completed.

[4] On April 12, 2021, before the applicants received their voucher, the respondent reached an agreement with the Government of Canada which was conditional, in part, on the respondent providing passengers whose flights had been cancelled due to the COVID-19 pandemic with a refund in their original form of payment. The applicants requested such a refund from Expedia. They were initially told that their refund would be issued, but were later advised that their tickets had already been converted to a travel voucher and were directed to contact the respondent directly. The respondent provided the applicants with a refund in their original form of payment on December 2, 2021.

[5] The applicants claim that passengers who purchased their tickets from a travel agency as opposed to the respondent’s platform were subject to detrimental conditions and that the respondent’s policies were therefore discriminatory. They also claim that the respondent’s policies were designed to make passengers who purchased tickets from a travel agency to give up on their claims. Finally, the applicants submit that the respondent was not transparent with its policies and violated the Competition Act, RSC 1985, c C-34.

[6] The applicants seek compensation for approximately 100 hours of time spent dealing with Expedia, the respondent and the Agency to obtain a refund; compensation for the devaluation of money during the time that it took them to obtain a refund; and compensation for the expenses that they incurred to travel from Bogota to their home in Cali, Colombia, after their flights were cancelled. In addition, the applicants ask that the Agency order the respondent to return the funds that it received as assistance from the Government of Canada due to the COVID-19 pandemic or issue a fine to the respondent in the amount of CAD 100,000,000. Finally, the applicants originally sought a full refund of their tickets, which they received after this application had been filed.

[7] The Agency does not have authority to award compensation for lost time or the devaluation of money, nor does it have authority to order the respondent to return the funds that it received from the Government of Canada or to issue the fine that the applicants are seeking. Therefore, the Agency will not consider these aspects of the application.

[8] In this decision, the role of the Agency is to decide whether the respondent properly applied the terms and conditions set out in its Tariff^{Note 1} that were applicable to the tickets the applicants purchased, and whether those terms and conditions are unjustly discriminatory. The relevant provisions of the ATR and the Tariff are set out in the Appendix.

[9] Given that the respondent provided the applicants with a full refund in their original form of payment during the course of the proceeding, it is not necessary for the Agency to determine whether the respondent properly applied Rule 100 of its Tariff, which establishes the terms and conditions with respect to refunds.

[10] Furthermore, the Tariff does not require that the respondent provide passengers with transportation to their home after a flight cancellation. Therefore, the Agency finds that the applicants are not entitled to compensation for the expenses that they incurred to return home.

[11] As explained in Decision 65-C-A-2021 (Chang and Usui v Air Canada), determining whether a term or condition of carriage is unjustly discriminatory involves a two-step analysis: the Agency first determines whether the term or condition is “discriminatory” in that it imposes a burden, obligation or disadvantage on one person or group that is not imposed on another person or group; if so, the Agency then determines whether the differential treatment is justified.

[12] In this case, the Agency finds that the respondent did not establish terms or conditions of carriage that were different for passengers who purchased their tickets from a travel agency than those for passengers who purchased their tickets directly from the respondent. Rather, the respondent established an evolving policy under which all passengers affected by a COVID-related cancellation were initially entitled to a non‑transferable expiring travel voucher, then a transferable non-expiring travel voucher, and eventually, a refund. The Agency recognizes that the applicants encountered difficulties in obtaining their transferable non-expiring travel voucher and refund; however, they have not established that this was the result of a discriminatory term or condition of carriage.

[13]  In light of the above, the Agency dismisses the application.
 

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APPENDIX TO DECISION NO. 59-C-A-2022

Air Transportation Regulations, SOR/88-58 (ATR)

Filing of Tariffs

110(4) 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.

111(1) All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just and reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic.

(2) No air carrier shall, in respect of tolls or the terms and conditions of carriage,

(a) make any unjust discrimination against any person or other air carrier;

(b) give any undue or unreasonable preference or advantage to or in favour of any person or other air carrier in any respect whatever; or

(c) subject any person or other air carrier or any description of traffic to any undue or unreasonable prejudice or disadvantage in any
     respect whatever.

(3) The Agency may determine whether traffic is to be, is or has been carried under substantially similar circumstances and conditions and whether, in any case, there is or has been unjust discrimination or undue or unreasonable preference or advantage, or prejudice or disadvantage, within the meaning of this section, or whether in any case the air carrier has complied with the provisions of this section or section 110.

International Passenger Rules and Fares Tariff AC2 Containing Local Rules, Fares & 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, CTA 458

Rule 100 Refund

…

(D) Involuntary Refund

…

(4) Amount of General Refund

…

(b) In all other cases, the amount of General Refund will be as follows and is subject to fare refundability in accordance to the fare rules:

i. When a ticket is fully unused, the amount of refund will be the fare, fees, charges and surcharges paid less any applicable cancellation/change fee or penalty set out in the applicable fare rules…