Decision No. 682-C-A-2005

November 15, 2005

File No. M4370/U3/01-15

COMPLAINT

[1] On September 11, 2001, Dr. Karol Mathews filed with the Air Travel Complaints Commissioner (hereinafter the ATCC) the complaint set out in the title against Air Canada and United Air Lines Inc. (hereinafter United).

[2] The ATCC identified United as being the responsible carrier in the matter and attempted unsuccessfully to resolve this matter through the informal complaint resolution program.

[3] On November 21, 2003, staff of the Canadian Transportation Agency (hereinafter the Agency) advised Dr. Mathews and United of the Agency's jurisdiction in this matter. Agency staff also sought Dr. Mathews' confirmation that she wished to pursue this matter formally before the Agency. As comments regarding Dr. Mathews' complaint were filed by both parties with the ATCC, Agency staff also sought their agreement to have the comments filed with the ATCC considered as pleadings before the Agency.

[4] On November 22, 2003, Dr. Mathews confirmed that she wished to pursue the matter formally before the Agency and agreed that the Agency consider the comments she filed with the ATCC as pleadings before the Agency. Therefore, this complaint was referred to the Agency on that date.

[5] On December 19, 2003, United agreed that the Agency consider the comments it filed with the ATCC as pleadings before the Agency.

[6] In February 2004, the file was returned to the ATCC, at her request, as she felt that she might be able to resolve the matter informally; however, the ATCC's attempt to resolve this complaint was unsuccessful and the file was once again referred to the Agency in June 2004.

[7] Prior to bringing the matter before the Agency for a decision, Agency staff made numerous attempts to determine from Air New Zealand, United and Air Canada which carrier issued the tickets in question, and whether there was any residual value to Dr. Mathews' unused tickets for carriage from Los Angeles to Toronto, and to clarify the facts in what was a complex series of events. However, in the end these attempts proved unsuccessful due to the tickets being unavailable.

[8] Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c.10 (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.

ISSUE

[9] The issue to be addressed is whether the applicable carrier failed to apply the terms and conditions relating to Revised Routings, Failure to Carry and Missed Connections appearing in the carrier's tariff, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR).

POSITIONS OF THE PARTIES

[10] Dr. Mathews submits that, after a two-week business trip, she and her husband, Mr. John Brants, were scheduled to return on May 19, 2001 to Toronto, Ontario from Auckland, New Zealand via Los Angeles, departing on Air New Zealand Flight No. 9842 operated by United and connecting in Los Angeles with Air Canada Flight No. 796 to Toronto. In Auckland, as the aircraft departed from the gate, one of the wings clipped a nearby building and sustained some damage. As repairs to the aircraft could not be made within an allotted time, Dr. Mathews and Mr. Brants were deplaned and were provided with overnight accommodation.

[11] Dr. Mathews submits that United's local reservations office arranged to book flights for May 20, 2001 for her and Mr. Brants and advised that her flight would depart Auckland at 2:30 p.m. local time, arriving in Los Angeles at 7:02 a.m. local time, and that her Air Canada flight to Toronto would depart at 8:30 a.m. local time. Dr. Mathews and Mr. Brants caught their flight in Auckland, which did not depart until 3:45 p.m. local time and arrived in Los Angeles later than scheduled, at 7:20 a.m. local time. Dr. Mathews and Mr. Brants arrived at the Air Canada check-in counter at 8:20 a.m. and were informed that the flight had already departed.

[12] According to Dr. Mathews, Air Canada informed her that the next two flights to Toronto were overbooked and that the carrier had no space to accommodate her until the following day. As Dr. Mathews had commitments at home to which she needed to attend, she could not be delayed another day. Dr. Mathews submits that she discovered that Air Canada had seats available in "First Class" for the carrier's next flight and that she and Mr. Brants purchased these seats, at a cost of US$1,415.34 each, in order to arrive home that day. Dr. Mathews requests that this amount be fully reimbursed.

[13] United maintains that when flight irregularities occur, United's policy is to offer affected passengers confirmed reservations on the carrier's next available flight in the same class of service for which these passengers have paid. If United is unable to confirm a flight for the passenger because the flight is full, the carrier will place the passenger on stand-by in case space becomes available. United notes that it can appreciate that some passengers may not want to wait for another flight, but states that if passengers decide to obtain their own transportation, they do so at their own expense. United also notes that, as a goodwill gesture, it provided Dr. Mathews and Mr. Brants each with US$300 in travel certificates.

[14] Dr. Mathews submits that the travel certificates are inadequate and that, with regard to misconnections arising from the failure to operate according to schedule, United's tariff states that the carrier will transport affected passengers to their destination on the next flight, in First Class provided that space is available, and this flight will arrive earlier than the next flight on which Economy Class seats are available. Dr. Mathews maintains that as United did not appear to follow this policy, she and Mr. Brants should be entitled to a full refund of the tickets that they purchased to travel from Los Angeles to Toronto.

[15] United submits that its tariff provision respecting flight irregularities provides for First Class carriage solely with United, and not with any other carrier. United also submits that it did not have an opportunity to apply its policy governing misconnections because Dr. Mathews approached Air Canada to make alternate arrangements. United notes that, as Air Canada received the funds from the purchase of the additional tickets by Dr. Mathews and Mr. Brants, United cannot refund money that it did not receive.

[16] Dr. Mathews maintains that because United code-shares with Air Canada, United should assume some responsibility for passengers who travel with Air Canada.

ANALYSIS AND FINDINGS

[17] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

[18] It appears that Dr. Mathews travelled on flights that may have operated pursuant to code-share agreements. In this regard, numerous attempts were made to obtain the original tickets issued to Dr. Mathews. However, Dr. Mathews was unable to provide these tickets to the Agency. The contract of carriage is between the passenger and the issuing carrier, and therefore it is this carrier's terms and conditions of carriage that are applicable to the transportation. In the absence of any proof as to the identity of the issuing carrier, the Agency is unable to determine with any precision which terms and conditions of carriage were applicable in this instance.

[19] The Agency notes that Dr. Mathews' complaint was also filed against Air Canada based on the allegation that the connecting Air Canada flight from Los Angeles to Toronto departed 10 minutes prior to its scheduled departure, thus causing Dr. Mathews and Mr. Brants to miss the connection. The evidence on file indicates that Dr. Mathews and Mr. Brants arrived at Air Canada's check-in counter 10 minutes prior to the scheduled departure time. The Agency has reviewed Air Canada's tariff, in effect at the time of the incident, and has determined that it required passengers to be "available for boarding at the gate at least 20 minutes prior to scheduled departure". Therefore, even if the Air Canada flight had departed on time, there would not have been sufficient time for Dr. Mathews and her husband to board the flight. The Agency did not, therefore, open pleadings against Air Canada.

[20] The Agency's jurisdiction over complaints concerning terms and conditions of carriage applicable to transportation to and from Canada is set out in subsection 110(4) and section 113.1 of the ATR.

[21] Subsection 110(4) of the ATR provides that:

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.

[22] Section 113.1 of the ATR states:

Where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs, the Agency may

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

(b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.

[23] Given that the Agency is unable to determine which carrier issued the tickets in question, the Agency has reviewed the tariffs of all three carriers involved in the transportation of Dr. Mathews and her husband, i.e. Air New Zealand, United and Air Canada with respect to the terms and conditions relating to Revised Routings, Failure to Carry and Missed Connections. The Agency notes that, in all three tariffs, upgrades, including upgrades to First Class carriage, are only provided for on the carrier's own-flight operations; not on other carriers' flights operated pursuant to code-share agreements.

[24] Therefore, the Agency finds that Dr. Mathews would not have been eligible for upgraded transportation between Los Angeles and Toronto regardless of which carrier sold the transportation.

CONCLUSION

[25] Based on the above findings, the Agency hereby dismisses the complaint.

Members

• Guy Delisle
• Mary-Jane Bennett
• George Proud