Decision No. 75-C-A-2019

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding the cancellation of his flight from Kelowna, British Columbia, to Calgary, Alberta, on August 19, 2018. The applicant subsequently purchased a ticket with WestJet and travelled the same day.

[2] The applicant seeks CAD 155.10, the difference in cost between the two tickets.

[3] The Agency will address the following issues:

1. Did Air Canada properly apply the terms and conditions set out in its Domestic Tariff General Rules Applicable to the Transportation of Passengers and Baggage, CTA(A) No. 3 (Tariff), as required by subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)?
2. If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to the applicant?

[4] For the reasons set out below, the Agency finds that Air Canada properly applied the terms and conditions set out in Rules 80 and 100 of its Tariff, relating to schedule irregularities and refunds, as required by subsection 67(3) of the CTA. Accordingly, the Agency dismisses the application.

BACKGROUND

[5] The applicant booked a round-trip ticket from Calgary to Kelowna with Air Canada, departing on August 16, 2018, and returning on August 19, 2018. On the day of the return flight, the applicant was notified that the flight was cancelled due to poor weather conditions caused by wild fires in Western Canada.

[6] The applicant purchased a ticket with WestJet and travelled on that day. The applicant was refunded the unused portion of his Air Canada ticket, and he seeks CAD 155.10 for the difference between the amount of the refunded Air Canada ticket and the cost of his WestJet ticket.

THE LAW AND RELEVANT TARIFF PROVISIONS

[7] The relevant provisions of the CTA and Air Canada’s Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES

The applicant

[8] The applicant states that, on the day of the return flight, he received an e-mail from Air Canada stating that his flight was cancelled, and that he was offered no further details on how to proceed, nor was any contact information provided. The applicant claims that he attempted to call Air Canada multiple times and was disconnected. When he reached Air Canada, he was told that the waiting time would be over two hours. The applicant states that he drove to the Kelowna International Airport and asked an Air Canada agent for assistance, but was told that there was nothing that could be done at the airport and that he should call Air Canada reservations again.

[9] Because Air Canada did not offer any rerouting or options for him to get home, the applicant argues that the only way he saw to return home within a reasonable time frame was to travel with another air carrier. He booked a WestJet flight that left on the same day and at the same time as the cancelled Air Canada flight. The applicant also states that he contacted Air Canada when he returned home and asked that he be provided with the difference between the amount of his refunded ticket and the cost of his WestJet ticket, but was told that, as the incident was weather-related, he would not be provided with any compensation. He argues that if weather conditions were as poor as Air Canada claims, WestJet would have also cancelled its flights.

[10] The applicant states that the only time that he was contacted by Air Canada after the cancellation of his flight on August 19, 2018, was by an e-mail sent to him on August 21, 2018, indicating that he was booked on a flight on August 22, 2018, four days after his flight was cancelled.

[11] The applicant acknowledges that he received a refund of CAD 226.18 for the unused portion of his ticket, but argues that Air Canada should be liable to pay an additional CAD 155.10, the difference between the amount of the refund and the CAD 381.28 that he paid for the WestJet ticket, given that no other option was given to him to return home. He disagrees with Air Canada’s claim that he received a higher refund amount for the unused portion of his ticket, and provided a copy of his Visa credit card statement, which shows that he received a refund of CAD 226.18 from Air Canada.

Air Canada

[12] Air Canada states that it cancelled all flights to and from Kelowna on August 19, 2018, including Flight No. AC8408, because of poor weather conditions generated by forest fires in Western Canada, which affected visibility and made it unsafe to operate flights. Air Canada stresses that it always puts safety first and that the unforeseen weather conditions resulted in the cancellation of the applicant’s flight in accordance with the Canadian Aviation Regulations, SOR/96-433.

[13] Air Canada argues that the forest fires were extraordinary circumstances outside of its control and that it could not reprotect the applicant on another flight because all operations in and out of Kelowna were cancelled for the remainder of the day. It indicates that it provided a goodwill policy to all affected passengers, which was communicated via its website and media and social channels. This goodwill policy offered to reschedule flights for passengers with all change fees waived.

[14] Air Canada points out that the applicant instead chose to purchase a ticket from WestJet for Flight No. WS182. Air Canada states that it provided a refund of the unused portion of the ticket to the applicant in the amount of CAD 272.16, and offered a 15 percent discount off a future booking.

[15] Air Canada argues that it correctly applied its terms and conditions as outlined in Rule 80(C)(4)(d) of its Tariff in regards to schedule irregularities.

[16] Whereas the applicant claims that he was refunded CAD 226.18 for the unused portion of his ticket, Air Canada’s records indicate that VISA charged Air Canada CAD 276.18 to settle the refund of CAD 272.16. Air Canada states that it has no record of CAD 226.18 associated with the applicant’s ticket number. Air Canada adds that, regardless of this difference of almost CAD 46, it provided the applicant with a cheque of CAD 155.10, without admission of liability, as was requested in the application. It provided evidence that the package was received by the applicant on February 19, 2019. Air Canada therefore argues that since the applicant has already been compensated, the matter is moot.

ANALYSIS AND DETERMINATIONS

[17] The onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its tariff.

[18] Air Canada states that all flights departing from Kelowna on August 19, 2018, were cancelled due to the forest fires and the resulting poor weather conditions that were outside of its control. The applicant questions this explanation, arguing that if weather conditions were as poor as Air Canada claims, WestJet would have also cancelled its flights. However, the Agency is satisfied that the cancellation was due to safety concerns. As Air Canada has provided evidence that all Air Canada flights operating out of Kelowna were cancelled that day, it is clear that the decision to cancel the applicant’s flight was based solely on Air Canada’s safety concerns for its employees and passengers.

[19] In the event of a cancellation of a domestic flight, Air Canada’s obligations to its passengers are set out in Rule 80 of its Tariff: Air Canada must reprotect passengers on another flight (whether finding them a place on board another one of its flights, endorsing them to another carrier, or rerouting them), provide passengers with a refund should it not be able to reprotect them, or provide a refund when they cancel plans to continue travelling with Air Canada.

[20] Because the applicant booked a flight with WestJet, Air Canada refunded the unused portion of his ticket. Therefore, Air Canada properly applied the terms and conditions set out in its Tariff.

[21] Both parties provided valid evidence regarding the amount of the refund of the unused portion of the ticket. It appears that only the applicant’s credit card company could explain the discrepancy between these amounts.

[22] Notwithstanding the dispute between the parties about the amount refunded to the applicant’s credit card, Air Canada also paid the applicant CAD 155.10, the amount requested in the application. Air Canada provided more compensation than required by its Tariff. In light of the refund and additional payment, the applicant has not established that Air Canada failed to properly apply the terms and conditions set out in its Tariff.

CONCLUSION

[23] The Agency dismisses the application.

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APPENDIX TO DECISION NO. 75-C-A-2019

Canada Transportation Act (CTA)

Subsection 67(3) of the CTA requires that the holder of a domestic licence (i.e., an air carrier) apply the terms and conditions set out in its tariff.

If the Agency finds that an air carrier has failed to properly apply its tariff, section 67.1 of the CTA empowers the Agency to direct the carrier 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 Canada’s Domestic Tariff General Rules Applicable to the Transportation of Passengers and Baggage, CTA(A) No. 3 (Tariff)

Rule 80 – Schedule irregularities

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C. Schedule irregularity

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(4)  In the event of a scheduled irregularity, the Carrier will either:

a) Carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service; or, at the Carrier’s option,

b) Endorse to another Carrier with which Air Canada has an agreement for such transportation, the unused portion of the ticket for purposes of rerouting; or at the Carrier’s option,

c) Reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from Rule 100 – Refunds, the Carrier will require no additional payment from the passenger but will refund the difference if it is lower or,

d) If the passenger chooses to no longer travel or if the Carrier is unable to perform the option stated in (a) (b) or (c) above within a reasonable amount time, make involuntary refund in accordance with Rule 100 – Refunds (an exception to the applicability of a refund occurs where the passenger was notified of the schedule irregularity prior to the day of departure and the schedule irregularity is of 60 minutes or less) or,

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Rule 100 – Refunds

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1. D. Carrier-caused refunds
2. (1)  For the purpose of this paragraph, the term “Carrier-caused refund” (sometimes referred to as “involuntary refund”) shall mean any refund for reasons within the Carrier’s control made in the event the passenger is prevented from using all or a portion of his/her ticket. For example, delay or cancellation of flight within the Carrier’s control, inability to provide previously confirmed space (denied boarding), substitution of a different type of equipment or to a lower class of service by the Carrier (downgrade) other than upon passenger’s request, missed connections due to a schedule irregularity within the Carrier’s control, or omission of a scheduled stop due to a situation within the Carrier’s control.

(2)  Amount of the Carrier-caused refunds">The amount of involuntary refunds will be as follows, unless otherwise provided elsewhere in this tariff and subject to applicable law:
a) When no portion of the trip has been made, or when due to a schedule irregularity within carrier’s control the trip is interrupted and the passenger chooses to return to point of origin without completing the trip, or when flight returns to point of origin, a full refund will be issued.
b) When a portion of the trip has been made and the passenger elects to continue to destination by travel not arranged by carrier, the amount of refund of the unused portion will be prorated based on mileage.

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