Decision No. 67-C-A-2022
APPLICATION by Sushma Shahabadi (applicant) against Transportes Aéreos Portugueses, S.A. (respondent), pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88‑58 (ATR), regarding a refusal to transport.
[1] The applicant purchased from a travel agency a one-way ticket with the respondent to travel from Toronto, Ontario, to Delhi, India, via Lisbon, Portugal, and Madrid, Spain. The applicant was refused transportation by the respondent in Toronto and had to purchase a new ticket with Etihad Airways.
[2] The applicant seeks a full refund of their ticket, compensation for the new ticket and compensation for pain and suffering.
[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether the respondent properly applied its TariffNote 1 to the ticket the applicant purchased.
[4] If the Agency finds that the respondent failed to properly apply its Tariff, the Agency can direct it to pay compensation for any expenses incurred as a result of that failure. However, the Agency does not have the authority to award compensation for pain and suffering and will therefore not consider this aspect of the application.
[5] The relevant provisions of the ATR and the Tariff are set out in the Appendix.
Preliminary Matter
[1] In their submissions, the applicant referred to private discussions with the respondent in which offers of settlement were made. In light of the common law principle of settlement privilege, the Agency has given no consideration to this information.
[2] Moreover, subsection 36.1(4) of the CTANote 2 provides that all matters relating to the mediation of a dispute shall be kept confidential unless the parties to the dispute otherwise agree, and that information provided by a party for the purposes of mediation shall not be used for any other purpose without the consent of that party. Any such information has therefore been redacted from the record of these proceedings, and the Agency has given it no consideration.
Refusal to Transport
[3] The respondent submits that the applicant was unable to transit through two European countries, in this case Portugal and Spain, without a Schengen visa as they were travelling with an Indian passport and a Canadian permanent resident card. Consequently, the respondent refused to transport the applicant.
[4] The applicant does not contest that they did not have the proper documentation. However, they claim that they contacted the respondent ahead of purchasing the ticket to confirm whether a transit visa would be required for the flights and that the respondent’s agent indicated that a transit visa would not be required.
[5] Rule 25(A)(4) of the Tariff provides that the respondent will refuse to transport any passenger at any point when the passenger is to travel across any international boundary and their travel documents are not in order. Rule 25(C)(1) provides that the respondent’s liability when it refuses to transport a passenger will be limited to a refund of the unused portion of the passenger’s ticket in accordance with Rule 90(B).
[6] Furthermore, Rule 45(A)(3) of the Tariff provides that the respondent will not be liable for any help or information given in good faith, either verbally or in writing, to passengers about proper travel documentation.
[7] The Agency accordingly finds that the respondent properly applied the Tariff when it refused to transport the applicant because they did not have a Schengen visa. The Agency also finds that the applicant is entitled to a refund of the unused portion of their ticket; however, the applicant is not entitled to compensation for the new ticket that they purchased with Etihad Airways.
Refund
[8] Rule 90(B)(2)(a) of the Tariff provides that, in the event of a refusal to transport, the respondent will refund the passenger an amount that is equal to the fare paid plus, if applicable, the taxes, fees and charges paid, if no portion of the ticket has been used.
[9] At the end of the extensive pleadings process, the respondent claimed that it issued a refund to the travel agency and that the travel agency informed it that the ticket had been refunded to the applicant. However, the respondent did not provide any evidence in support of its assertions, such as a record of the refund or email correspondence with the travel agency.
[10] In light of the above, the Agency finds that it is more likely than not that the applicant has not been refunded. The Agency accordingly finds that the respondent failed to properly apply its Tariff by not providing the applicant with a refund of their unused ticket.
[11] The amount to which the applicant would be entitled to is disputed by the parties. The applicant submits that they paid USD 947.94 (CAD 1,221.29) for the ticket, an amount reflected on the booking confirmation and credit card statement that they filed. On the other hand, the respondent filed a copy of its internal records regarding the applicant’s ticket, stating that the value of the ticket is USD 606.92.
[12] The Agency accepts that the total cost of the ticket to the applicant was USD 947.94. However, the Agency must nonetheless determine whether the applicant is entitled to this amount under the Tariff.
[13] The evidence submitted by the respondent indicates that the applicant’s ticket was based on the “Fare WCACLI0I”, with a value of USD 286.00 and that a total of USD 606.92 was collected by the respondent. In accordance with Rule 90(B)(2)(a), the applicant is therefore entitled to a refund of USD 606.92 from the respondent as this corresponds to the fare, taxes, charges, and fees paid. Any amount paid to the travel agency in addition to this amount is not mentioned in the Tariff.
ORDER
[14] Pursuant to section 113.1 of the ATR, the Agency orders the respondent to refund the applicant in the amount of USD 606.92 and to notify the Agency when it has done so. The respondent is to refund this amount to the applicant as soon as possible and no later than June 17, 2022.
APPENDIX TO DECISION NO. 67-C-A-2022
Air Transportation Regulations, SOR/88-58
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, be 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.
113.1 If an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may, if it receives a written complaint, direct the air 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 set out in the tariff.
International Passenger Rules and Fares Tariff TP-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Transportes Aereos Portugeses, E.P. Applicable to the Transportation of Passengers and Baggage Between Points in Canada/United States and Points in Areas 1/2/3, NTA(A) 314
RULE 25 REFUSAL TO TRANSPORT-LIMITATIONS OF CARRIAGE
(A) Refusal to transport – removal of passenger
The carrier will refuse to transport, or will remove any passenger at any point for any of the following reasons:
…
(4) Immigration or other similar considerations
When the passenger is to travel across any international boundary, if:
(a) The travel documents of the passenger are not in order, or,
(b) For any reason the passenger’s embarkation from, transit through, or entry into any country from, though, or to which the passenger desires transportation would be unlawful or would otherwise not be permitted.
…
(C) Recourse of the passenger/limitation of liability
(1) The carrier’s liability in case of refusal to carry a passenger for a specific flight or removal of a passenger en route for any reason specified in the foregoing paragraphs will be limited to the recovery of the refund value of the unused portion of the passenger’s ticket in accordance with Rule 90(B) Involuntary refunds. Notwithstanding the foregoing paragraph, passengers and their baggage will be entitled to all other additional rights they may have under this tariff or elsewhere or any legal rights that international conventions (e.g., the Warsaw Convention or the Montreal Convention) and related treaties…
RULE 45 ADMINISTRATIVE FORMALITIES, PASSPORTS, VISAS AND TOURIST CARDS
(A) GENERAL
…
(3) The carrier will not be liable for any help or information given either verbally or in writing to the passenger in good faith about proper travel documentation…
(B) TRAVEL DOCUMENTS
…
(3) As described in Rule 25, Refusal to Transport, the carrier reserves the right to refuse transportation to any passenger who fails to present all exit, entry, health and other documents required by law, regulation, order, demand or other requirement of the countries where travel is intended or whose travel documents do not appear to be in order…
RULE 90 REFUNDS
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(B) INVOLUNTARY REFUNDS
…
(2) The amount of the involuntary refund will be as follows:
Without prejudice to the specially foreseen in these conditions or in any applicable law, if carrier fails to stop at passenger destination or at any of agreed stopping places, if carrier causes passenger to miss a connection flight on which he/she has a confirmed reservation or if carrier refuses to carry a passenger because a banning notice is in force against him/her, the amount of the refund shall be:
(a) if no portion of the ticket has been used – an amount equal to the fare paid plus, subject to applicable law, the taxes, fees and charges paid; …
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