Decision No. 75-C-A-2023

[1] The applicants were scheduled to travel on Flight WS1049 from Orlando, United States, to St. John’s, Newfoundland and Labrador, on January 25, 2020. The flight was cancelled on the day of departure and the respondent rebooked the applicants on a new flight departing the following day. The applicants were originally scheduled to arrive in St. John’s at 12:17 am on January 26, 2020, but their actual time of arrival was 5:45 pm that evening.

[2] The applicants seek compensation for the cancellation in the amount of CAD 1,000 each, for a total of CAD 4,000, under 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 may 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.

[5] The applicants submit that they were not given any information about the disruption during the three hours that they were in line to check in for the flight, until they overheard an employee say that the aircraft had a damaged door that was being fixed. The applicants submit that there was no formal communication of the reason for the disruption, and that they were delayed for several hours before the flight was cancelled.

[6] The respondent submits that the flight was cancelled at 3:57 pm, 2 hours and 30 minutes prior to the applicants’ original departure time, and provided a confirmation of receipt of the cancellation notification which indicates that it was emailed to the applicants at 4:16 pm, in accordance with the respondent’s obligations under the APPR.

[7] The respondent states that the aircraft scheduled for the round trip that included the applicants’ flight was hit by the airport bridge in St. John’s, and the aircraft door was damaged as a result. The respondent submits that the aircraft was taken out of service for inspection and then operated the inbound flight, arriving at Orlando 5 hours and 43 minutes later than scheduled. The respondent argues that a collision between an airport bridge and an aircraft cannot be anticipated, therefore the issue could not have been previously identified during scheduled maintenance. The respondent also argues that the pilot’s decision to delay the flight was required for safety purposes, as the damage to the aircraft could have impacted its safe operation and therefore required unscheduled maintenance.

[8] The respondent states that it did not have additional crew available to operate the applicants’ flight, since neither St. John’s nor Orlando are designated hub cities for the carrier and there was not enough time to have new crew members flown in from elsewhere to St. John’s prior to the flight departure. The respondent further submits that the inbound flight’s arrival delay in addition to the crew’s regularly scheduled duty day surpassed the maximum duty time limits set out by the Canadian Aviation Regulations, thereby necessitating the cancellation of the applicants’ flight.

[9] Accordingly, the respondent argues that it took all reasonable measures to mitigate the impact of this inbound flight delay on the applicants’ flight by returning the aircraft back into service as quickly as possible. The respondent therefore considers the applicants’ cancellation to have been within its control but required for safety purposes.

[10] Under the Tariff and the APPR, compensation for inconvenience is owed if the delay was within the respondent’s control, but it is not owed if the delay was within its control but required for safety purposes. The onus is on the applicants to establish, on a balance of probabilities, that the respondent has failed to properly apply the terms and conditions applicable to their tickets. However, when a carrier claims that a disruption was within its control but required for safety purposes, it must establish this claim by providing evidence that supports its categorization of the disruption.

[11] In Decision 122-C-A-2021 (APPR Interpretive Decision), the Agency recognized that delays due to unforeseeable mechanical issues that cannot be anticipated or planned for, and prevent the safe operation of the aircraft, should be categorized as disruptions within the carrier’s control but required for safety purposes.

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

[13] In this case, the respondent’s gate events tracker for the inbound flight indicates that the aircraft was damaged at around 12 pm. However, a maintenance engineer did not arrive to inspect the aircraft door until 4:09 pm. The document also indicates that the boarding process began at 5:47 pm once the inspection was complete and the aircraft was deemed “OK to return to service”, per the respondent’s maintenance defect report.

[14] The Agency acknowledges that the original crew delayed the inbound flight for legitimate safety reasons to inspect the aircraft following a collision with an airport bridge. However, as maintenance issues are expected to occur from time to time, carriers must plan their operations accordingly to ensure that aircraft in need of maintenance are serviced by qualified personnel within a reasonable timeframe to mitigate the impact of a resulting flight disruption on other flights.

[15] In this case, the respondent does not provide any explanation or evidence regarding the reason for the maintenance engineer’s four-hour delay to arrive at the aircraft for inspection. Moreover, the respondent does not provide any detailed information or evidence regarding its contingency plans to support its claim that additional crew could not have been transported to operate the inbound flight and the applicants’ flight, when it became apparent that the original crew would time-out in Orlando as a result of the unexplained maintenance delay.

[16] In light of the above, the Agency finds that the respondent has not demonstrated that it took all reasonable measures to mitigate the impact of the inbound flight delay on the applicants’ flight. The Agency therefore finds that the cancellation of the applicants’ flight was within the respondent’s control and that the applicants are entitled to compensation under the APPR in the amount of CAD 1,000 each, as they were delayed in their arrival at destination by more than nine hours due to the cancellation.

Applying the Decision to other passengers

[17] As this application relates to a flight delay, the Agency has the authority under the Air Transportation Regulations to apply all or part of its decision concerning the respondent’s obligations under the APPR to other passengers on the same flight to the extent that it considers appropriate.

[18] Based on the evidence and the Agency’s decision in this case, the Agency finds that the other passengers on Flight WS1049 also experienced a flight cancellation that was within the respondent’s control. Prior to this decision, the respondent categorized the cancellation of this flight as being within its control but required for safety purposes. Consequently, the respondent may have denied claims filed by other passengers on the flight that should have been compensated.

[19] In light of the above, the Agency finds that the other passengers on the same flight who previously filed a claim within the deadlines prescribed under the respondent’s Tariff may also be eligible for compensation.

Order

[20] The Agency orders the respondent to:

within 30 days of the date of this decision, compensate the applicants in the amount of CAD 1,000 each, for a total of CAD 4,000;

within 30 days of the date of this decision,

a) inform all passengers who purchased a ticket on Flight WS1049 scheduled for January 25, 2020, and who filed a claim with the respondent seeking any of the following:

• • compensation for inconvenience,
  • compensation for expenses incurred in connection with the flight disruption, or
  • a refund,

that the Agency has determined that the cause of the flight disruption was within the respondent’s control and that their claim will be redetermined by the respondent in accordance with this decision; and

b) provide each such passenger with a copy of this decision;

within 30 days of the date of this decision, redetermine each such passenger’s claim in accordance with the Agency’s finding in this decision that the flight disruption was within the respondent’s control; and

within 30 days of the date of this decision, file the following with the Agency:

• • a copy of the communication with each passenger that filed a claim in respect of this flight, informing them of this decision;
  • a copy of the redetermination made in respect of their claim, specifying any amount(s) paid to each passenger or the reason why the claim was denied in whole or in part.

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  Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
  Air Transportation Regulations, SOR/88‑58	110(4); 113.1(1); 113.1(3)
  Air Passenger Protection Regulations, SOR/2019-150	1(1); 11(1); 11(2); 12(1); 12(3); 13; 19(1)(a)(iii)
  International Passenger Rules and Fares Tariff WS1 Containing Local Rules, Fares and Charges on behalf of WestJet applicable to the Transportation of passengers and baggage between points in United States/Canada and points in Area 1/2/3 and between points in the US and points in Canada, CTA 518	12(F)