Decision No. 68-C-A-2018

SUMMARY

[1] Ms. Gavryliuk filed an application with the Canadian Transportation Agency (Agency) against Lufthansa and Air Canada concerning delays she and her children encountered while travelling from Ottawa, Canada to Lviv, Ukraine.

[2] Ms. Gavryliuk alleges that, in accordance with Regulation (EC) 261/2004 of the European Parliament and of the Council (EU Regulations), she and her children are entitled to compensation in the amount of $5,400 for the delay they experienced. Alternatively, she is willing to accept three round trip tickets (one adult, two children) to travel from Ottawa to Lviv. Ms. Gavryliuk also requests the reimbursement of the following expenses that she claims she incurred as a result of the flight delays:

a) the parking fee at the Ottawa Airport on March 12, 2017;

b) the parking fee incurred by Ms. Gavryliuk’s family at the Lviv Airport on March 15, 2017; and

c) the costs of meals and gas purchased by Ms. Gavryliuk’s family to drive by car from the Lviv Airport to the Kiev Airport, and on to Chernivtsi on March 15, 2017.

[3] The Agency will consider whether Lufthansa and Air Canada properly applied the terms and conditions set out in their International Passenger Rules and Fares Tariff, NTA(A) No. 312 (Lufthansa Tariff) and NTA(A) No. 458 (Air Canada Tariff), respectively, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR).

[4] For the reasons set out below, the Agency finds that Air Canada, acting as an agent for Lufthansa, did not establish that it took all reasonable measures to avoid the damage occasioned by the delay, as required under Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), which is incorporated by reference into Rule 55(A) of the Lufthansa Tariff. As a result, Air Canada failed to properly apply the terms and conditions of the Lufthansa Tariff, thereby contravening subsection 110(4) of the ATR. Accordingly, pursuant to paragraph 113.1(b) of the ATR, Air Canada is ordered to compensate Ms. Gavryliuk for expenses that were incurred with respect to her trip to Ukraine, as the expenses incurred on March 15, 2017 are directly linked to Ms. Gavryliuk and her children’s initial Ottawa to Montréal, Quebec, flight delay on March 12, 2017.

BACKGROUND

[5] Ms. Gavryliuk and her children were originally scheduled to travel on March 12, 2017, from Ottawa to Lviv, via Montréal and Munich, Germany. However, due to a delay of their Ottawa to Montréal flight, Air Canada rebooked the family to travel from Ottawa to Lviv, via Montréal and Munich, on March 14, 2017.

[6] On March 14, 2017, Ms. Gavryliuk and her children’s Ottawa to Montréal flight was cancelled due to weather. Air Canada rebooked them to travel the same day to Munich via Toronto. However, these flights were also delayed due to weather, resulting in them arriving late into Munich, and missing their onward flight to Lviv. Given that there were no other flights departing for Lviv on March 15, 2017, and that Ms. Gavryliuk did not have a Schengen visa to enable her to leave the airport and spend the night at a hotel, Lufthansa rebooked them to travel to Kyiv, Ukraine, on Lufthansa Flight No. 2546. Upon their arrival in Kyiv, Ms. Gavryliuk and her children were met by her family, who then drove them by car to their final destination, Chernivtsi, Ukraine, some 540 km away.

PRELIMINARY MATTERS

Compensation for pain and suffering

[7] In her application, Ms. Gavryliuk makes reference to several difficulties that she encountered in trying to contact Air Canada to resolve issues related to her and her children’s outbound travel to Lviv, and the hardship they encountered while travelling. As a result, Ms. Gavryliuk is seeking $2,000 in compensation for the physical and mental stress she claims that the family endured.

[8] However, the Agency does not have the jurisdiction to order compensation for pain and suffering as stated in previous decisions, such as Decision No. 18-C-A-2015 (Enisz v. Air Canada) and Decision No. 103‑C‑A‑2017 (Chowdhury v. Turkish Airlines). Therefore, the Agency will not consider this issue.

Compensation provided for under EU Regulations

[9] Ms. Gavryliuk states that she and her children are entitled to compensation in the amount of $5,400, in accordance with the EU Regulations. However, the Agency does not have jurisdiction to enforce EU Regulations. Therefore, the Agency will consider Ms. Gavryliuk entitlement to compensation pursuant to Canadian law and jurisprudence.

THE LAW

[10] 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.

[11] 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 set out in the tariff.

[12] Rule 55(A) of the Lufthansa Tariff and Rule 105(B)(5) of the Air Canada Tariff both state that:

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.

[13] Rule 80(B) of the Lufthansa Tariff states that:

In the event carrier cancels a flight, fails to operate according to schedules, substitutes a different type of equipment or different class of service, or is unable to provide previously confirmed space, […],carrier will either:

(1) Carry the passenger on another of its passenger aircraft on which space is available; or

(2) Endorse to another carrier or to any other transportation service the unused portion of the ticket for purposes of rerouting; or

(3) Reroute the passenger to destination named on the ticket or applicable portion thereof by its own services or by other means of transportation; and, if the fare, excess baggage charges and any applicable service charge for the revised routing is higher than the refund value of the ticket or applicable portions as determined from Rule 90 (REFUNDS) herein, carrier will require no additional payment from the passenger, but will refund the difference if the fare and charges for the revised routing are lower; or

(4) Make involuntary refund in accordance with the provisions of Rule 90 (REFUNDS) herein.

[…]

[14] Article 19 of the Montreal Convention sets out the carrier’s liability in case of delay and states that:

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.

[15] Article 29 of the Montreal Convention sets out the basis for claims and states that:

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Ms. Gavryliuk’s position

[16] Ms. Gavryliuk submits that her and her children’s round trip tickets from Ottawa to Lviv, via Montréal and Munich, departing on March 12, 2017, were purchased by her husband through Air Canada’s website. On the morning of their departure, the family received a telephone call from Air Canada informing them that their 7:20 p.m. flight from Ottawa to Montréal was either delayed or overbooked. Ms. Gavryliuk also submits that Air Canada advised her that it would try to put her and her children on an earlier flight to Montréal to enable them to arrive on time for their 9:05 p.m. Lufthansa flight from Montréal to Munich. Ms. Gavryliuk states that when she asked Air Canada for their new flight details, Air Canada simply told her to arrive to the airport before 5 p.m.

[17] Ms. Gavryliuk submits that she and her family (including her husband) arrived at the Ottawa Airport around 4 p.m. and, upon check-in, was told by Air Canada that their flight was overbooked, and that there were no other flights to Montréal that would allow them to arrive on time for their connecting flight to Munich. According to Ms. Gavryliuk, she and her husband spent several hours with an agent trying to find an alternate flight to Lviv. Ms. Gavryliuk states that she told the agent that it was important that they travel to Lviv on March 12, 2017, as the purpose of their trip was to celebrate her mother’s birthday on March 14, 2017. However, the only option provided by Air Canada was to travel two days later, on March 14, 2017, via the same routing. Ms. Gavryliuk further states that she had no other choice but to agree to the rebooked flights. Ms. Gavryliuk submits that she asked the agent for reimbursement of the airport parking fee that they had to pay, but that the request was denied.

[18] Ms. Gavryliuk submits that on March 14, 2017, her family returned to the Ottawa Airport only to learn that their Ottawa to Montréal flight was cancelled due to poor weather conditions. She states that, although Air Canada rebooked them to travel via Toronto, their Ottawa to Toronto flight and their Toronto to Munich flights were also delayed. Ms. Gavryliuk states that, once in Munich, they tried to check-in for their flight to Lviv, but they were told by Lufthansa that their tickets were to Kyiv, not Lviv, and that they had missed their Kyiv flight, as well as the flight to Lviv.

[19] Ms. Gavryliuk maintains that Lufthansa provided her with two options:

1) take the next Lufthansa flight to Lviv, departing two days later, on March 17, 2017; or

2) travel on the next Lufthansa flight to Kyiv, departing 8 hours later, on March 15, 2017.

[20] Ms. Gavryliuk states that the first choice was not an option for her, given that she did not have a Schengen visa which would permit her to leave the airport in Munich. This would have resulted in her and her young children having to sleep at the airport for two nights; therefore, she took the second option. Ms. Gavryliuk claims that, while at the Munich Airport, she asked to have access to her checked baggage to get diapers and a change of clothing for her children, but that this request was denied.

[21] Ms. Gavryliuk submits that they arrived in Kyiv close to midnight on March 15, 2017, where she and her children were met by her family. Ms. Gavryliuk claims that her family had to drive from the Lviv Airport (where they were waiting for Ms. Gavryliuk and her children to arrive) to the Kyiv Airport, a distance of 600 kilometres , to pick them up. Ms. Gavryliuk states that the drive took approximately 10 hours, due to the poor road conditions in Ukraine. Ms. Gavryliuk asserts that because she and her children had to travel to Kyiv, as opposed to Lviv, her family had to drive approximately 1,345 km, round trip, to bring them to Chernivtsi. Ms. Gavryliuk states that their trip was exhausting and stressful, especially for the children.

[22] Ms. Gavryliuk is seeking compensation to cover expenses related to her family parking at the Lviv Airport, and for the purchase of gas and meals. Ms. Gavryliuk submits that they do not have receipts for these expenses as everything was purchased in cash and that receipts are not commonly issued in Ukraine for cash purchases.

Air Canada and Lufthansa’s (the carriers) joint position

[23] The carriers submit that the Air Canada Tariff is applicable to the family’s journey, specifically its Tariff Rule 80(C) with respect to missed connections (schedule irregularity), and Tariff Rule 105(C) with respect to limitations of liability. In addition, the carriers state that the contract of carriage is subject to the Montreal Convention, which is enacted in Canadian law by the Carriage by Air Act, R.S.C., 1985, c. C-26.

[24] The carriers contest the alleged expenses incurred, arguing that no evidence has been provided to support Ms. Gavryliuk’s claims.

[25] The carriers state that on March 12, 2017, Air Canada Flight No. 8966 (LH6691) from Ottawa to Montréal was delayed, and they argue that the flight was not oversold as it departed at only 16.2 percent capacity. In support of their statement, the carriers filed copies of a Daily Operational Report and a Netline document indicating that the flight was delayed due to equipment failure, and arrived in Montréal at 9:33 p.m. on March 12, 2017, carrying only 12 passengers.

[26] The carriers submit that because Ms. Gavryliuk and her children were certain to miss their flight from Montréal to Munich, Air Canada took control of their tickets and rebooked them to travel to Lviv, on March 14, 2017. The carriers assert that this was the only available itinerary as the next Lufthansa flight from Munich to Lviv was not scheduled to depart until March 15, 2017. In support of its statement, Air Canada filed a copy of Lufthansa’s flight schedule which indicates that, for the week of March 12, 2017, Lufthansa only operated three flights a week (March 13, 15 and 17) from Munich to Lviv.

[27] The carriers state that, on March 14, 2017, the Air Canada flight from Ottawa to Montréal was cancelled due to poor weather conditions; consequently, Ms. Gavryliuk and her children were rebooked via Toronto in order to reach Munich in time for their connecting flight to Lviv. In support of their statement, the carriers filed a copy of the family’s historical passenger name record (HPNR) which indicates Ms. Gavryliuk and her children’s rebooked flights. The carriers maintain that at all times the family was booked to Lviv.

[28] The carriers further state that the Air Canada flight from Toronto to Munich was also delayed due to poor weather conditions. The carriers submit that the flight arrived into Munich at 10:49 a.m. on March 15, 2017, resulting in Ms. Gavryliuk and her children missing their Lufthansa flight from Munich to Lviv. The carriers confirmed this with the filing of a copy of another Netline document.

[29] The carriers submit that, at the Munich Airport, it was revealed that Ms. Gavryliuk did not have the appropriate Schengen visa to leave the airport as she was travelling on a Ukrainian passport. The carriers argue that, as per Lufthansa’s standard procedures, Ms. Gavryliuk was provided with three options:

1) return to Canada;

2) stay inside the Munich Airport until the next Lufthansa flight from Munich to Lviv, scheduled to depart on March 17, 2017 (i.e., two days later); or,

3) be rebooked on a Lufthansa flight from Munich to Kyiv, with an additional flight on Ukraine International Airlines from Kyiv to Lviv.

[30] The carriers claim that Ms. Gavryliuk chose to be rebooked on a Lufthansa flight from Munich to Kyiv, connecting to Lviv with Ukraine International Airlines. The carriers indicate that while Lufthansa initially received confirmation from Ukraine International Airlines that Ms. Gavryliuk and her children were rebooked on its flight, for reasons that are unknown, Ukraine International Airlines cancelled their confirmation. Given this outcome, the carriers submit that Ms. Gavryliuk opted to take the Lufthansa flight from Munich to Kyiv only, as there were no other air transportation options to Lviv on March 15, 2017. In support of their statements, the carriers filed a copy of Lufthansa’s HPNR which shows Lufthansa’s attempt to book Ms. Gavryliuk and her children with Ukraine International Airlines from Kyiv to Lviv.

[31] The carriers submit that the Air Canada Tariff Rule 80(C) sets out the obligation to arrange carriage for the passenger in the case of a schedule irregularity, and that in doing so, they took all reasonable measures to avoid the alleged damage to Ms. Gavryliuk and her children. Therefore, the carriers argue that they have respected the Montreal Convention and their tariff obligations, and that no compensation is owed.

Findings of fact

[32] Ms. Gavryliuk states that her and her children’s tickets were purchased through Air Canada’s website and the carriers assert that Air Canada’s Tariff applies in this case; however, the evidence indicates that their itinerary and tickets were issued by Lufthansa. The evidence further establishes that Ms. Gavryliuk and her children’s flight from Ottawa to Montréal was on a Lufthansa and an Air Canada code share flight, marketed by Lufthansa under its code (LH6691), where “code share” refers to arrangements where an air carrier provides services by selling transportation in its name (using its code) on flights operated by another air carrier. In Decision No. 344-A-2014, the Agency granted code-share authority to Lufthansa to enable it to sell transportation in its own name on flights operated by Air Canada. This authority includes a condition that the carrier that sells the transportation to the passenger (marketing carrier) must apply its tariff, even if another carrier operates the flight. Therefore, the Agency finds that the Lufthansa Tariff applies to Ms. Gavryliuk and her children’s travel between Ottawa and Montréal on March 12, 2017.

[33] As to Ms. Gavryliuk’s statement that their Ottawa to Montréal flight on March 12, 2017 was overbooked, the Agency notes that overbooked means that there are more passengers holding confirmed space than seats available on the aircraft. Based on the evidence, their Ottawa to Montréal flight had seating capacity for 74 passengers, but only carried 12. Accordingly, the Agency finds that the March 12 Ottawa to Montréal flight was not overbooked.

[34] On March 12, 2017 Ms. Gavryliuk and her children were originally scheduled to depart Ottawa at 7:20 p.m.; however, the evidence establishes that their flight was delayed due to equipment failure. It is undisputed that they were contacted by Air Canada the morning of March 12, 2017, and that they were asked to arrive at the Ottawa Airport early. It is also undisputed that Ms. Gavryliuk and her children arrived at the Ottawa Airport at approximately 4:00 p.m. The evidence indicates that their Ottawa to Montréal flight departed approximately an hour and a half late, arriving in Montréal at 9:33 p.m., which would have resulted in them missing their 9:05 p.m. Montréal to Munich flight. The record before the Agency does not indicate that Air Canada provided any options to Ms. Gavryliuk to enable them to arrive on time for their Montréal to Munich flight. Based on the evidence, the only option provided to them was to travel from Ottawa to Lviv on March 14, 2017.

[35] On March 14, 2017, the evidence establishes that Ms. Gavryliuk and her children’s Ottawa to Montréal flight was cancelled due to poor weather conditions. Although Air Canada rerouted the family to travel from Ottawa to Munich, via Toronto, the evidence indicates that the Toronto to Munich flight was also delayed due to poor weather conditions, and departed approximately 40 minutes late, arriving in Munich at 10:49 a.m. on March 15, 2017.

[36] Ms. Gavryliuk alleges that when Air Canada rerouted her and her children via Toronto, it erroneously rebooked them to Kyiv instead of Lviv. However, the evidence indicates that Ms. Gavryliuk and her children had a confirmed reservation from Munich to Lviv on Lufthansa Flight No. 2550 departing at 10:40 a.m. and scheduled to arrive into Lviv at 1:20 p.m. on March 15, 2017. Therefore, the Agency finds that Ms. Gavryliuk and her children were initially booked to Lviv on March 15, 2017. However, the evidence establishes that the late arrival of the Toronto-Munich flight resulted in them missing this flight.

[37] It is undisputed that Ms. Gavryliuk was travelling on a Ukrainian passport and that she did not have a Schengen visa that would allow her to leave the Munich airport. The evidence indicates that Lufthansa attempted to confirm seats for the family to travel from Kyiv to Lviv on March 15, 2017 with Ukraine International Airlines; however, Ukraine International Airlines did not accept Lufthansa’s request. The evidence establishes that, after waiting in the airport in Munich for over 8 hours, the family travelled from Munich to Kyiv on Lufthansa Flight No. 2546 departing from Munich at 7:20 p.m.

ANALYSIS AND DETERMINATIONS

[38] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its tariff.

[39] Ms. Gavryliuk and her children’s travel involved carriage to and from Canada; therefore, the Montreal Convention applies to Ms. Gavryliuk’s application. It should be noted that the Montreal Convention is also incorporated by reference into both the Air Canada and Lufthansa Tariffs, Rules 105(B)(5) and 55(A), respectively.

[40] In the case of damage caused by delay, Article 19 of the Montreal Convention provides that the carrier is liable for the damage occasioned by this delay, unless it can prove that it took all measures that could reasonably be required to avoid the damage.

[41] In this case, it is undisputed that the family’s initial Ottawa-Montréal flight on March 12, 2017, as well as their subsequent rebooked Ottawa-Toronto and Toronto-Munich flights on March 14, 2017, were delayed.

[42] Rule 80(B) of the Lufthansa Tariff sets out a list of alternative measures to be taken by the carrier in the event of a flight delay. The Rule provides that the carrier will either:

1) carry the passenger on another of its aircraft on which space is available;

2) endorse the ticket to another air carrier;

3) reroute the passenger on another of its flights or by other means of transportation.

[43] The Agency notes that, in determining how best to mitigate damage caused by delay, a carrier must consider all options, including those set out in its tariff, and weigh them against the passenger’s particular situation. In the present case, Air Canada rebooked the family to travel two days later because Lufthansa’s next flight from Munich to Lviv was not until March 15, 2017. However, the evidence establishes that Air Canada was aware of the upcoming delay of the March 12 evening flight on the morning of March 12, 2017, hours before the scheduled departure. In addition, despite having all of this time to respond, there is no evidence to show that Air Canada took any reasonable measures to ensure that Ms. Gavryliuk and her children arrived at the airport in Montréal in time to make their 9:05 p.m. Montréal to Munich flight, including investigating other flights or other means of transportation to Montréal. Therefore, the Agency finds that the carriers did not meet their burden of proof to demonstrate that they took all reasonable measures to avoid the damage occasioned by the flight delay on March 12, or that it was impossible for them to take such measures.

[44] The Agency further finds that, because Air Canada was responsible for Ms. Gavryliuk and her children’s initial delay on March 12, 2017, and was also responsible for ensuring that all reasonable measures were taken to mitigate the damage occasioned by that delay, Air Canada is therefore liable for the damage incurred, pursuant to Article 19 of the Montreal Convention.

[45] Ms. Gavryliuk claims that she and her family incurred the following expenses as a result of the delays:

a) the parking fee at the Ottawa Airport on March 12, 2017;

b)   the parking fee incurred by Ms. Gavryliuk’s family at the Lviv Airport on March 15, 2017; and

c) the costs of meals and gas purchased by Ms. Gavryliuk’s family to drive by car from the Lviv Airport to the Kyiv Airport, and on to Chernivtsi on March 15, 2017.

[46] Air Canada contests the expenses incurred, as no evidence has been filed to support the claims made. While the Agency notes that a party, in endeavoring to prove a fact, must do so by presenting the best evidence available in light of the nature and circumstances of the case (for example, original receipts of purchase), circumstances may render it unreasonable to require this form of proof. Other methods such as a sworn affidavit or the inherent reasonableness of expenses claimed could, in some cases, be adequate.

[47] In this case, the Agency finds it reasonable that Ms. Gavryliuk incurred a parking fee at the Ottawa Airport on March 12, 2017, and accepts the claim made.

[48] With respect to the expenses incurred by Ms. Gavryliuk’s family on March 15, 2017, the Agency finds that the expenses claimed are directly linked to Ms. Gavryliuk and her children’s initial Ottawa to Montréal flight delay on March 12, 2017, as they would not have been incurred if the flight had operated as scheduled, or if Ms. Gavryliuk and her children were transported to Montréal in time to travel on their originally scheduled onward flights to Lviv. The Agency finds that the claims made are reasonable given that Ms. Gavryliuk and her children were originally scheduled to arrive in Lviv; the significant distance between Lviv, Kyiv and Chernivtsi; and the time required to drive between these points. Therefore, the Agency accepts the claims made with the exception of the gas expenses. The Agency notes that Ms. Gavryliuk is claiming gas expenses to and from Chernivtsi when her original ticketed destination was Lviv. Therefore, the Agency finds that Air Canada is only liable for mileage between the points of Lviv–Kyiv–Lviv, as the mileage driven between Chernivtsi and Lviv would have been travelled regardless of the delay incurred.

[49] With respect to the dollar amount associated with the expenses claimed, the Agency provides the parties with an opportunity to come to an agreement. If an agreement cannot be reached, Ms. Gavryliuk should advise the Agency, and pleadings will be opened on the matter.

CONCLUSION

[50] In light of the foregoing, the Agency finds that Air Canada, acting as an agent for Lufthansa, did not establish that it took all reasonable measures to avoid the damage occasioned by the delay on March 12, 2017, as required under Article 19 of the Montreal Convention and Rule 55(A) of the Lufthansa Tariff, thereby failing to properly apply the terms and conditions set out in the Lufthansa Tariff and contravening subsection 110(4) of the ATR. The Agency also finds that Air Canada is liable for the expenses incurred on both March 12 and on March 15 as they are directly linked to Ms. Gavryliuk and her children’s initial Ottawa to Montréal flight delay on March 12, 2017.

ORDER

[51] The Agency orders Air Canada, pursuant to paragraph 113.1(b) of the ATR, to compensate Ms. Gavryliuk for the following expenses:

a) the parking fee at the Ottawa Airport on March 12, 2017;

b) the parking fee incurred by Ms. Gavryliuk’s family at the Lviv Airport on March 15, 2017; and

c) the costs  of meals and gas purchased by Ms. Gavryliuk’s family when travelling to pick up Ms. Gavryliuk and her children on March 15, 2017.

Once an agreement is reached between the parties on the amount of expenses to be paid to Ms. Gavryliuk, the parties are asked to inform the Agency’s Secretariat. If an agreement cannot be reached, Ms. Gavryliuk should advise the Agency, by no later than February 25, 2019 and the Agency will open pleadings on the matter.