Decision No. 7-C-A-2023

[1] The applicants were scheduled to travel from Kingston, Jamaica, to Toronto, Ontario, on December 19, 2019. However, their flight was delayed, and after four hours had passed they opted to rebook and travel on the following day.

[2] The applicants seek compensation for inconvenience for the delay as provided for by the Air Passenger Protection Regulations (APPR).

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether the respondent properly applied the terms and conditions that were applicable to the tickets that the applicants purchased, as set out in its Tariff.

[4] If the Agency finds that the respondent failed to properly apply its Tariff, the Agency can direct it to take the corrective measures that the Agency considers appropriate or to pay compensation for any expense incurred by the applicants as a result of the respondent’s failure.

Preliminary Matters

Late submission

[5] On August 30, 2022, the respondent filed a late answer but did not file a request to make a late submission in accordance with the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) (Dispute Adjudication Rules). The Agency accepts the respondent’s answer on its own initiative, in accordance with the Dispute Adjudication Rules, because of its relevance to the case and places it on the record.

Personal information

[6] In its answer, the respondent disclosed the dates of birth and passport numbers of all of the applicants. In the Opening Pleadings Letter sent to the parties on August 2, 2022, the Agency directed the parties to remove any irrelevant personal information that should not be included on the public record before submitting documents. Therefore, the respondent should have removed the applicants’ personal information prior to submitting its answer. The applicants did not consent to disclosure of this sensitive information and, given that it is irrelevant to the case, the Agency removes the information from the record under its own initiative.

Seat Selection Fees

[7] The applicants claim that, when they were rebooked on their new flight, they lost the seat selections that they had purchased for their original flight. The Tariff provides that passengers are entitled to refunds of the seat selection fees that they paid but did not use. However, there is no evidence that indicates exactly what fees the applicants paid. Therefore, the Agency is unable to order any refund of the seat selection fees claimed by the applicants.

Communication of Information

[8] The respondent provided various explanations for the delay to the applicants’ original flight. The applicants claim that the information provided to them on the day of travel, by both the respondent’s mobile application and the ground crew in Kingston, was that the flight was delayed due to “staffing issues”. They submit that they made their decision to rebook based on this information. They provided a copy of a delay notification they received on the day of travel which indicates that the flight was delayed due to a technical issue affecting the aircraft scheduled for their flight, and they claim that the reason for the delay changed twice after they rebooked their flight that day. When they filed a claim for APPR compensation, the respondent advised them that the delay was due to “scheduling issues” outside its control, providing the details of another earlier flight. Finally, in its answer to this application, the respondent submits that the delay was due to an unforeseen mechanical issue and weather.

[9] While recognizing that the reasons for flight delay may change as circumstances evolve, the Agency finds that the respondent’s communications with the applicants regarding the reasons for their delay were confusing and deficient.

[10] Since the incident that gave rise to this application, the Agency has clarified what is required of carriers’ communication with passengers regarding the reasons for delays and cancellations under the APPR. Carriers must provide clear, timely and accurate communication to passengers of these reasons when there is more than one contributing cause. In Decision 122-C-A-2021 (Interpretive Decision), the Agency stated that not only should a carrier clearly specify what the issue is, for example “crew scheduling issues” as opposed to an unclear statement such as “scheduling issues”; it should also clearly specify the reason for the issue, such as “crew exceeded their duty time limits due to earlier weather-related delays”, if this is known at the time that information is being provided to passengers.

[11] The Agency continues to monitor air carrier communications with passengers to ensure that the APPR’s requirements are fulfilled.

Flight Delay

[12] The applicants were originally scheduled to arrive in Toronto at 7 pm on December 19, 2019. After they were rebooked on a new flight, their revised arrival time was 7:32 pm on December 20, 2019.

[13] As previously mentioned, the respondent provided the applicants with various explanations as to why their flight was delayed. The applicants argue that the delay was within the carrier’s control and they are therefore entitled to compensation due to their delayed arrival at their final destination.

[14] In its answer, the respondent states that one of its aircraft was scheduled to travel from Toronto to Kingston on December 19, 2019, and was then to be used to operate the applicants’ original flight. It submits that this flight was delayed for a total of seven hours and five minutes, and claims that the most significant reason for this delay was a last-minute fault with the elevator system that was detected in the originally scheduled aircraft before it left Toronto. The respondent states that this aircraft was declared out of service for repairs at 4:37 am on December 19, 2019. In an effort to inconvenience the fewest number of passengers, it replaced this aircraft with another aircraft, which arrived in Toronto at 11:46 am. The replacement aircraft was then delayed from departing Toronto due to extreme cold, snow on the ground and slippery conditions.

[15] The respondent argues that the delay was required for safety purposes, that it took all reasonable measures to mitigate the impact of the delay by deploying the earliest available aircraft to the delayed flight, and therefore, that the applicants are not entitled to compensation for inconvenience.

[16] When contradictory versions of events are presented by parties, the Agency must determine which of the different versions is more probable, based on the evidence.

[17] In the Interpretive Decision, the Agency stated that, where there are multiple contributing reasons for a flight delay, it would determine the categorization of the flight disruption based on the most significant factor for the delay, such as the reason for the longest period of delay. The respondent provided Netline Operational Reports for both previous flights and the applicants’ flight which support the respondent’s claim that the unforeseen mechanical issue with the originally-scheduled aircraft was the most significant factor in the delay, and that another aircraft was substituted in to operate the flights.

[18] The respondent also provided a signed statement from its general manager of operational airworthiness and compliance, which indicates that the maintenance program for the aircraft was up to date and that no faults in the elevator system were recorded for six weeks prior to December 19, 2019. The general manager states that the aircraft had been used for one other flight that day, that the fault was identified during the required service check prior to the aircraft departing from Toronto to Kingston, and that the mechanical issue could not have been detected or prevented earlier.

[19] Based on this evidence, the Agency finds that the delay of the earlier flight from Toronto to Kingston was primarily due to an unforeseen mechanical issue which was within the carrier’s control but required for safety purposes.

[20] Under the APPR, a delay that is directly attributable to an earlier delay within the carrier’s control but required for safety purposes will be categorized in the same way if the carrier took all reasonable measures to mitigate the impact of the earlier flight delay.

[21] The Agency finds that the respondent took all reasonable measures to mitigate the knock-on impact on the applicants’ original flight by replacing the original aircraft with the next available one. While the applicants’ decision to rebook a different flight after four hours of delay was understandable, the Agency finds that they are not entitled to compensation for inconvenience under the APPR because the delay to their original flight was due to reasons within the carrier’s control but required for safety purposes. The respondent properly applied its Tariff when it rebooked the applicants at their request and is not liable to them for any expenses they incurred as a result of travelling on the new flight.

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