Decision No. 72-C-A-2022

[1] On July 29, 2020, the applicant purchased round-trip tickets from RBC Travel Rewards to travel between Montréal, Quebec, and Cairo, Egypt, via London, United Kingdom, departing on September 3, 2020, and returning on October 4, 2020. The cost of this itinerary was CAD 932.07. The flight to travel from Montréal to London was cancelled prior to the date of travel.

[2] The applicant claims that the respondents refused to provide him with an alternative flight, cancelled his tickets, and provided him with a full refund. He then booked new tickets with a different carrier, at a cost of CAD 1,278.69.

[3] The applicant seeks compensation in the amount of CAD 346.62, which is the difference in cost between his original and replacement tickets.

[4] In this decision, the role of the Canadian Transportation Agency (Agency) is to determine whether the respondents properly applied the terms and conditions that were applicable to the ticket the applicant purchased. As the cancelled flight was a code share flight, marketed by American Airlines but operated by British Airways, American Airlines’ Tariff^{Note 1} (Tariff) applies.

[5] If the Agency finds that a carrier failed to properly apply a terms and conditions of carriage, the Agency may direct the carrier to take corrective measures that the Agency considers appropriate, or to pay compensation for any expenses incurred by a person adversely affected by the carrier’s failure.

[6] Rule 5(B) of the Tariff states that the carrier’s obligations under the APPR^{Note 2} form part of the Tariff and supersede any incompatible or inconsistent term or condition of carriage set out in the Tariff, although they do not relieve the carrier from applying terms and conditions of the Tariff that are more favourable to the passenger. The relevant provisions of the ATR, the APPR and the Tariff are set out in the Appendix.

[7] The respondents have submitted a joint answer to the applicant’s complaint. The respondents argue that the applicant’s flight was cancelled due to COVID-19 and restrictions on international travel, but no evidence was provided to support their claim. The applicant provided screen captures from American Airlines’ website showing that tickets could be purchased to travel from Montréal to Cairo; however, there is no information to indicate when these images were captured. He has also provided tickets that were purchased on August 27, 2020, from a different carrier to travel from Montréal to Cairo on September 3, 2020. Therefore, the Agency does not accept the respondents’ arguments that the cancellation of the applicant’s initial tickets was outside their control due to restrictions on international travel, and the Agency finds that the cancellation was within their control.

[8] The applicant submits that he contacted American Airlines that informed him that British Airways had cancelled the flight. He also submits that he then contacted British Airways and requested that it provide him with alternative travel arrangements. He claims that British Airways refused to provide him with alternative travel arrangements and instead provided him with a refund. The respondents claim that the applicant refused the alternative travel arrangements that he was offered, and that as a result he was provided with a refund. However, they also claim that RBC Travel Rewards informed the applicant that he was not entitled to alternative travel arrangements. Neither party has provided anything further to substantiate their position on this matter.

[9] Given the conflicting information provided by the respondents on this matter, the Agency finds that the applicant’s statements are more convincing and, therefore, finds that the applicant was not offered alternative travel arrangements. According to subsection 2(1) of the APPR, the carrier operating a flight is liable to passengers for the obligations set out in sections 7 to 22 and 24 of the APPR, which include the provisions regarding flight cancellation. According to paragraph 12(3)(c) of the APPR, in the event of a cancellation that is within its control, a carrier must provide affected passengers with alternative travel arrangements or a refund, in the manner set out in section 17. Pursuant to section 17 of the APPR, a carrier must provide alternative travel arrangements, and if the arrangements offered do not meet the passenger’s needs, it must provide a refund.In light of the above, the Agency finds that, by not offering alternative travel arrangements to the applicant, British Airways did not meet its obligations under paragraph 17(1)(a) of the APPR. British Airways therefore failed to properly apply Rule 5(B) of the Tariff and is therefore liable for the expenses that the applicant incurred when rebooking his travel.

[10] The parties offer conflicting information regarding when the applicant was notified that his flight had been cancelled. It is the responsibility of an applicant to provide evidence that would convince the Agency, on a balance of probabilities, that a carrier has failed to properly apply a term or condition of carriage. The respondents claim that the flight was cancelled on August 10, 2020, and have provided a flight record showing that the flight was cancelled on this date in support of their claim. The respondents also claim that it was the responsibility of RBC Travel Rewards to notify the applicant of the cancellation. The applicant claims that he received an email on August 27, 2020, concerning the cancellation, but has not provided this email nor any other documentation to support his version of events. Given this, the Agency finds that the applicant has not established that he was informed of the cancellation less than 14 days prior to his date of travel, and that he is therefore not entitled to compensation for inconvenience as set out in section 19 of the APPR.

ORDER

[11] Pursuant to subsection 113.1(1) of the ATR, the Agency orders British Airways to compensate the applicant in the amount of CAD 346.62, which represents the difference in cost between his original tickets and his replacement tickets. British Airways is to provide the applicant with this amount as soon as possible and no later than July 4, 2022.
 

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APPENDIX TO DECISION NO. 72-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

Carrier liability

2(1) The carrier operating a flight is liable to passengers with respect to the obligations set out in sections 7 to 22 and 24, or, if they are more favourable to those passengers, the obligations on the same matter that are set out in the applicable tariff.

Obligations when within carrier’s control

12(1) Subject to subsection 10(2), this section applies to a carrier when there is a 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

12(3) In the case of a cancellation, the carrier must

(a) provide passengers with the information set out in section 13;

(b) if a passenger is informed of the cancellation less than 12 hours before the departure time that is indicated on their original ticket, provide the standard of treatment set out in section 14;

(c) provide alternative travel arrangements or a refund, in the manner set out in section 17; and

(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.

Alternate arrangements — within carrier’s control

17(1) If paragraph 11(3)(c), (4)(c) or (5)(c) or 12(2)(c), (3)(c) or (4)(c) applies to a carrier, it must provide the following alternate travel arrangements free of charge to ensure that passengers complete their itinerary as soon as feasible:

(a) in the case of a large carrier,

(i) a confirmed reservation for the next available flight that is operated by the original carrier, or a carrier with which the original carrier has a commercial agreement, is travelling on any reasonable air route from the airport at which the passenger is located to the destination that is indicated on the passenger’s original ticket and departs within nine hours of the departure time that is indicated on that original ticket,

(ii) a confirmed reservation for a flight that is operated by any carrier and is travelling on any reasonable air route from the airport at which the passenger is located to the destination that is indicated on the passenger’s original ticket and departs within 48 hours of the departure time that is indicated on that original ticket if the carrier cannot provide a confirmed reservation that complies with subparagraph (i), or

(iii) transportation to another airport that is within a reasonable distance of the airport at which the passenger is located and a confirmed reservation for a flight that is operated by any carrier and is travelling on any reasonable air route from that other airport to the destination that is indicated on the passenger’s original ticket, if the carrier cannot provide a confirmed reservation that complies with subparagraphs (i) or (ii); and…

Refund

17(2) If the alternate travel arrangements offered in accordance with subsection (1) do not accommodate the passenger’s travel needs, the carrier must

(a) in the case where the passenger is no longer at the point of origin that is indicated on the ticket and the travel no longer serves a purpose because of the delay, cancellation or denial of boarding, refund the ticket and provide the passenger with a confirmed reservation that

(i) is for a flight to that point of origin, and

(ii) accommodates the passenger’s travel needs; and

(b) in any other case, refund the unused portion of the ticket.

Alternate arrangements — outside carrier’s control

18(1) If paragraph 10(3)(b) or (c) applies to a carrier, it must provide the following alternate travel arrangements free of charge to ensure that passengers complete their itinerary as soon as feasible:

(a) in the case of a large carrier,

(i) a confirmed reservation for the next available flight that is operated by the original carrier, or a carrier with which the original carrier has a commercial agreement, is travelling on any reasonable air route from the airport at which the passenger is located to the destination that is indicated on the passenger’s original ticket and departs within 48 hours of the end of the event that caused the delay, cancellation or denial of boarding,

(ii) if the carrier cannot provide a confirmed reservation that complies with subparagraph (i),

(A) a confirmed reservation for a flight that is operated by any carrier and is travelling on any reasonable air route from the airport at which the passenger is located, or another airport that is within a reasonable distance of that airport, to the destination that is indicated on the passenger’s original ticket, and

(B) if the new departure is from an airport other than the one at which the passenger is located, transportation to that other airport; and

(b) in the case of a small carrier, a confirmed reservation for the next available flight that is operated by the original carrier, or a carrier with which the original carrier has a commercial agreement, and is travelling on any reasonable air route from the same airport to the destination that is indicated on the passenger’s original ticket.

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,

(ii) $700, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by six hours or more, but less than nine hours, or

(iii) $1,000, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by nine hours or more.

Compensation in case of refund

19(2) If paragraph 12(2)(c) or (3)(c) applies to a carrier and the passenger’s ticket is refunded in accordance with subsection 17(2), the carrier must provide a minimum compensation of

(a) $400, in the case of a large carrier; and

(b) $125, in the case of a small carrier.

International Passenger Rules and Fares Tariff AA1 Containing Local Rules, Fares & Charges on Behalf of American Airlines Inc. Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Area 1/2/3, CTA 273

Rule 5: Application of Tariff

…

(B) Carrier liability to passengers - referenced in rule 55.

Note: (Applicable for transportation to/from Canada) the obligations of the carrier under the air passenger protection regulations (appr) form part of the tariff and supersede any incompatible or inconsistent term and condition of carriage set out in the tariff to the extent of such inconsistency or incompatibility, but do not relieve the carrier from applying terms and conditions of carriage that are more favorable to the passenger than the obligations set out in the air passenger protection regulations (appr).