Decision No. 68-C-A-2022
APPLICATION by Sean Klosterman against Aerovias de Mexico S.A. de C.V. (AeroMexico), pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR), regarding a schedule irregularity.
[1] On April 2, 2020, Sean Klosterman purchased a round-trip ticket from AeroMexico for travel from Vancouver, British Columbia, to Buenos Aires, Argentina, via Mexico City, Mexico, departing on November 26, 2020, and returning on December 5, 2020.
[2] On October 10, 2020, AeroMexico informed Mr. Klosterman that it had changed the outbound portion of his itinerary, which would result in him departing Vancouver on November 25, 2020, and arriving in Buenos Aires in the morning on November 27, 2020, instead of the evening as originally scheduled. Mr. Klosterman submits that when he later contacted AeroMexico by telephone regarding these changes, he was informed that AeroMexico would be changing the return portion of his itinerary as well, which would result in him departing on December 6, 2020, and arriving in Vancouver on the morning of December 7, 2020.
[3] Mr. Klosterman informed AeroMexico that he no longer wished to travel due to these changes to his itinerary. He claims that he was initially given the option of receiving a refund or an open ticket for future travel. He submits that he requested a refund, but was later told that his ticket did not qualify for a refund because it was purchased prior to July 2020. Mr. Klosterman seeks a refund to his original form of payment.
[4] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether AeroMexico properly applied its TariffNote 1 to the ticket Mr. Klosterman purchased. The Tariff is deemed to incorporate the provisions of the APPRNote 2. The relevant provisions of the ATR, the APPR, and the Tariff are set out in the Appendix.
[5] Mr. Klosterman submits that his itinerary changed because AeroMexico cancelled his original flights, which it does not contest. His original itinerary shows he was scheduled to travel on Flight AM695 from Vancouver to Mexico City and Flight AM30 from Mexico City to Buenos Aires, and his revised itinerary shows Flights AM697 and AM28 for these segments. According to the notification that Mr. Klosterman received from AeroMexico, the changes to his itinerary were due to adjustments in its operations. AeroMexico submits that the applicant’s ticket was purchased during a time of uncertainty and while it was experiencing a financial crisis, but it has not explained how these factors contributed to the cancellation of his original flights. The Agency finds that the cancellations were made for commercial reasons within AeroMexico’s control.
[6] Subsection 2(1) of the APPR provides that carriers are liable to passengers for the obligations set out in sections 7 to 22 and 24 of the APPR, or the obligations for the same matters that are set out in the carriers tariff if they are more favourable to passengers. Rule 80(B) of AeroMexico’s Tariff gives it the option to either provide a passenger with alterative travel arrangements or a refund when it cancels a flight. According to paragraph 12(3)(c) of the APPR, when a carrier cancels a flight for reasons within its control, it must provide passengers with alternative travel arrangements or a refund in accordance with section 17 of the APPR. Paragraph 17(2)(b) of the APPR stipulates that if the alternative travel arrangements offered do not accommodate the passenger’s needs, the carrier must refund the unused portion of the ticket. Given this, the Agency finds that the Tariff is not more favourable than the applicable APPR provisions, and therefore these APPR provisions apply to this case.
[7] AeroMexico states that it voluntarily filed for creditor protection in the United States in order to preserve the continuity of its operations and that, as part of this process, it is authorized to provide refunds to passengers who purchased their tickets after July 1, 2020. It argues that it cannot refund Mr. Klosterman, as he purchased his ticket prior to this date. However, AeroMexico has not provided any corroborating evidence to support this assertion or explained how this would relieve it of its regulatory obligations under the APPR for actions it took in October 2020. The Agency finds that, pursuant to paragraph 17(2)(b) of the APPR, Mr. Klosterman is entitled to the refund of his ticket in the original form of payment.
[8] Mr. Klosterman’s ticket was purchased on April 2, 2020, at a cost of USD 817.78. According to the Bank of Canada, the applicable exchange rate on that date was CAD 1.4179 for USD 1.00. At this exchange rate, the cost of Mr. Klosterman’s ticket was CAD 1,159.53.
Order
[9] Pursuant to subsection 113.1(1) of the ATR, the Agency orders AeroMexico to provide Mr. Klosterman with a refund in the amount of CAD 1,159.53. AeroMexico is to provide the refund as soon as possible and no later than June 23, 2022.
APPENDIX TO DECISION NO. 68-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, 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(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 that are applicable to the service it offers and that were set out in the tariff.
Air Passenger Protection Regulations, SOR/2019-150
12(3) In the case of a cancellation, the carrier must
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(c) provide alternate travel arrangements or a refund, in the manner set out in section 17; and…
17(2) If the alternate travel arrangements offered in accordance with subsection (1) do not accommodate the passenger’s travel needs, the carrier must
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(b) in any other case, refund the unused portion of the ticket.
International Passenger Rules Fares Tariff AMRF1 Containing Local Rules, Fares & Charges on Behalf of AeroMexico Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Area 1/2/3
RULE 80 REVISED ROUTINGS, FAILURE TO CARRY AND MISSED CONNECTIONS
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(B) Involuntary revised routings (see also rule 87 (denied boarding compensation)
In the event carrier cancels a flights, 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, or the passenger is refused passage or removed, in accordance with rule 25 (refusal to transport) herein, 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.
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