Decision No. 71-C-A-2022

May 17, 2022

APPLICATION by Brittany Wiersema against WestJet, pursuant to subsection 67(3) of the Canada Transportation Act, SC 1996, c 10 (CTA), concerning schedule irregularities.

Case number: 
21-50279

[1] Brittany Wiersema purchased round-trip tickets to travel from Ottawa, Ontario, to Comox, British Columbia, via Calgary, Alberta, on July 6, 2020, and returning on July 13, 2020. Her itinerary was changed on June 14, 2020, and then again on June 28, 2020. The final rescheduled itinerary had Ms. Wiersema arriving at her destination approximately 20 hours later than originally scheduled and returning with a delay of over 9 hours. Furthermore, her inbound flight, which had a new connection in Toronto, was cancelled from Toronto to Ottawa. She was rebooked on another connecting flight and experienced an additional delay of 4 hours and 48 minutes.

[2] Ms. Wiersema seeks compensation in the amount of CAD 1,400 under the APPR.Note 1 More specifically, CAD 1,000 for the outbound flight delay of over 20 hours and CAD 400 for the cancellation of the inbound flight that resulted in a delay of over 3 hours.

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether WestJet properly applied its TariffNote 2 to the tickets Ms. Wiersema purchased. If the Agency finds that WestJet failed to properly apply its Tariff, it can order WestJet to compensate any person adversely affected for any expenses they incurred as a result of its failure or to take any other appropriate corrective measures. The relevant provisions of the CTA, the APPR and the Tariff are set out in the Appendix.

[4] Under the APPR, which is incorporated into WestJet’s Tariff in Rule 5(B), passengers may be entitled to compensation for inconvenience if they experience a flight delay or a cancellation that was within the carrier’s control. The monetary compensation under these circumstances is described in subsection 19(1) of the APPR and in Rule 95(C) of the Tariff.

[5] Rule 90(D)1.a. of WestJet’s Tariff states that schedules are not guaranteed. Rule 90(D)2. of the Tariff defines a schedule irregularity as a change in the scheduled departure or arrival of WestJet’s flight; the cancellation of a flight; a change in the scheduled itinerary which requires the rerouting of a passenger at the departure time of their original flight; and a schedule change.

[6] Rule 90(D)6.a)ii. of WestJet’s Tariff states that the carrier will make all reasonable efforts to transport the passenger at the times indicated in its schedule. Rule 90(D)6.a)iii. of the Tariff states that in the event of a schedule change, the passenger is entitled to a full refund or accepts to be rebooked on the next available WestJet flight. Accordingly, the Agency finds that WestJet rebooked Ms. Wiersema on other flight segments and that she travelled on the rebooked flight segments.

OUTBOUND FLIGHT DELAY

[7] On March 13, 2020, as a result of the COVID-19 pandemic, the Agency issued Determination A-2020-42 (Temporary exemptions from the APPR), in which it ordered, among other things, that all air carriers be exempted from the obligation to pay compensation for inconvenience if the flight delay or the flight cancellation is communicated to the passenger within 72 hours of the departure time indicated on their original ticket. The exemptions were then extended in Determination A-2020-47 (Additional temporary exemptions from the APPR) until June 30, 2020.

[8] WestJet asserts that the delay was communicated to Ms. Wiersema on June 28, 2020, within the exemption period and more than 72 hours before her original scheduled departure time. WestJet argues that, therefore, it is not obligated to provide compensation for inconvenience. Ms. Wiersema argues that the outbound flight segments, which were scheduled to depart on July 6, 2020, were not within the exemption period and that, therefore, she should be compensated for inconvenience.

[9] The temporary exemptions established in Determination A-2020-42 apply to passengers who were informed of a flight delay before June 30, 2020, and more than 72 hours before their original scheduled departure time. Ms. Wiersema was informed of the flight delay within the exemption period and 8 days before her originally scheduled departure date. Therefore, the Agency finds that WestJet is exempt from the obligation, under paragraph 19(1)(a) of the APPR, to pay compensation for inconvenience related to the outbound flight delay.

INBOUND FLIGHT DELAY

[10] Regarding the cancelled inbound flight, which resulted in an additional delay of 4 hours and 48 minutes, the Agency notes that, although WestJet asserts that the cancellation was outside its control, it has not provided any evidence or arguments to support that. Accordingly, the Agency finds that the cancellation of the inbound flight was within WestJet’s control. Pursuant to paragraph 12(3)(d) and subparagraph 19(1)(a)(i) of the APPR, Ms. Wiersema is entitled to compensation for inconvenience.

ORDER

[11] Pursuant to section 67.1 of the CTA, the Agency orders WestJet to compensate Ms. Wiersema in the amount of CAD 400 as soon as possible and no later than June 30, 2022.
 


APPENDIX TO DECISION NO. 71-C-A-2022

Canada Transportation Act, SC 1996, c 10

No fares, etc., unless set out in tariff

67(3) The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

Fares or rates not set out in tariff

67.1 If, on complaint in writing to the Agency by any person, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

(a) apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;

(b) compensate any person adversely affected for any expenses they incurred as a result of the licensee’s failure to apply a fare, rate,
     charge or term or condition of carriage that was set out in its tariffs; and

(c) take any other appropriate corrective measures.

Air Passenger Protection Regulations, SOR/2019-150

Obligations when within carrier’s control

12(1) Subject to subsection 10(2), this section applies to a carrier when there is delay, cancellation or denial of boarding that is within the carrier’s control but is not referred to in subsections 11(1) or (2).

Cancellation

(3) In the case of a cancellation, the carrier must

(d) if a passenger is informed 14 days or less before the original departure time that the arrival of their flight at the destination that is
     indicated on their ticket will be delayed, provide the minimum compensation for inconvenience in the manner set out in section 19…

Compensation for delay or cancellation

19(1) If paragraph 12(2)(d) or (3)(d) applies to a carrier, it must provide the following minimum compensation:

(a)  in the case of a large carrier,

(i) $400, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by three hours or more, but less than six hours,…

Local Domestic Tariff

Rule 5: Application of Tariff

(B) Gratuitous Carriage and Non-Public Fares

Subject to the provisions of the Convention and the APPR, the Carrier reserves the right to exclude the application of all or any part of this Tariff with respect to gratuitous carriage and Non-Public Fares. Compensation entitlements under the APPR (including but not limited to the compensation entitlements set out in Rule 95) shall not apply to gratuitous carriage and Non-Public Fares…

Rule 90: Schedule Irregularities, Delay, Cancellation and Denied Boarding

(D) Schedule Irregularities

1. General

a. Schedules are not guaranteed…

2. Definitions:

a. “Schedule Irregularities” means the following:

i. Changes in the scheduled departure or arrival of the Carrier’s Flight;

ii. Cancellation of Flight, or omission of a scheduled stop;

iii. Change of schedule itinerary which require rerouting of a passenger at departure time of his or her Original Flight; and

iv. Schedule Change;

Exception: Schedule Irregularities do not include Events of Force Majeure and do not include events governed by the APPR.

6. Prior to travel

a) Change in Schedule

ii. The Carrier will make all reasonable efforts to transport the passenger and his/her Baggage at the times indicated in its published schedules and timetables.

iii. In the event of a schedule change, the passenger is entitled to a full refund to the original form of payment or accept to be booked on the next available WestJet flight, if there are seats in the class of service within the Cabin originally purchased. If there are seats available in an alternate cabin, the passenger can choose to either cancel their existing booking and purchase a new seat in the cabin available or accept a refund in the fare difference for a lower cabin or pay the fare difference for a higher cabin. Any refund will be to original form of payment and change fees will be waived…

8. Schedule Irregularities: non-Carrier controlled:...

(F) Delays, Cancellations or Denial of Boarding Outside of the Control of the Carrier

  1. A delay, cancellation or Denial of Boarding is deemed outside of the control of the Carrier if it is caused by an Event of Force Majeure.
  2. When a delay, cancellation or denial of boarding has occurred and is due to situations outside of the Carrier’s control, the Carrier will provide passengers with the reason for the delay, cancellation or Denial of Boarding, provide information related to compensation to which passengers may be entitled to, provide information regarding the standard of treatment for passengers, if any, and provide information regarding the recourse available against the Carrier, including recourse to the Canadian Transportation Agency, if applicable.
  3. The carrier will communicate new information to passengers as soon as feasible and will provide updates to passengers every 30 minutes until a new departure time is set or alternative travel arrangements have been made. The method of communication will be provided in the method preferred by a passenger, if indicated, and in a method that is compatible with adaptive technologies intended to assist persons with disabilities, if applicable.

(G) Delays, Cancellations or Denial of Boarding within the Carrier’s Control but required for Safety Purposes

  1. A delay, cancellation or Denial of Boarding is deemed within the control of the Carrier but required for safety purposes when required by law in order to reduce risk to passenger safety and includes required safety decisions made within the authority of the pilot of an aircraft or a decision made through a safety management system to ensure aviation safety or the safety of the public, but does not included scheduled aircraft maintenance.
  2. The Carrier will provide passengers with the reason for the delay, cancellation or denial of boarding, provide information related to compensation to which passengers may be entitled to, provide information regarding the standard of treatment for passengers, if any, and provide information regarding the recourse available against the Carrier, including recourse to the Canadian Transportation Agency, if applicable.
  3. The Carrier will communicate new information to passengers as soon as feasible and will provide updates to passengers every 30 minutes until a new departure time is set or alternative travel arrangements have been made. The method of communication will be provided in the method preferred by a passenger, if indicated, and in a method that is compatible with adaptive technologies intended to assist persons with disabilities, if applicable.
  4. The Carrier will not deny boarding due to situations within the Carrier’s control but required for safety purposes, unless the carrier has asked all passengers if they are willing to give up their seat. The carrier will not deny boarding to a passenger who is already on board the aircraft, unless the denial of boarding is required for safety.
  5. The carrier may offer a benefit in exchange for a passenger willingly giving up their seat and will provide written confirmation of the benefit if accepted by the passenger. Passengers accepting such benefits shall not be entitled to compensation amounts under the APPR.
  6. If Denial of boarding is necessary, the Carrier will select passengers who will be denied boarding, giving priority to unaccompanied minors, a person with a disability and their support person, service animal, or emotional support animal, if any, a passenger who is travelling with family member, and a passenger who was previously denied boarding on the same ticket, in that order...

Rule 95: Compensation for Delays, Cancellations and Denial of Boarding

(C) For Flights Departing On or After December 15, 2019: Compensation for Inconvenience resulting from Delays or Cancellations within the Control of the Carrier

If a passenger is informed 14 days or less before the departure time on their ticket that the arrival of their flight at the destination that is indicated on their ticket will be delayed by at least three hours, and the delay is a caused by a situation under the Carrier’s control, compensation will be provided if a passenger files a request for compensation with the carrier before the first anniversary of the day on which the flight delay occurred.

Within 30 days from the date on which the carrier receives the request, the carrier will provide the compensation or an explanation why the compensation is not payable.

The Carrier will provide compensation in the following amounts to Guests who are delayed due to delay or cancellation and when that delay is within the Control of the Carrier and when the passenger was informed 14 days or less about the delay. Regardless of the Fare paid, Guests are entitled to a monetary compensation as follows:

  1. no compensation if the delay is less than three hours;
  2. $400, if the delay is three hours or more but less than six hours;
  3. $700, if the delay is more than six hours but less than nine hours; and
  4. $1000, if the delay is more than nine hours.

It a passenger is informed 14 days or less before the departure time on their ticket that the arrival of their flight at the destination that is indicated on their ticket will be delayed and the passengers ticket is refunded, the Carrier will compensate the passenger in the amount of $400, if compensation is requested by the passenger.

The Carrier will compensate the passenger in the form of money unless it offers compensation in another form that has a greater monetary value than the applicable amounts referred to in this section, the passenger has been informed of the monetary value in writing and the alternative form of compensation does not expire. The passenger must confirm in writing that the passenger has been informed of the right to monetary compensation and has chosen to accept the alternative form of compensation…

Member(s)

Heather Smith
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