Decision No. 77-C-A-2007

February 16, 2007

File No. M4120-3/06-06228

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Complaint

[1] On August 2, 2005, Benoit Leclerc, on behalf of himself and his travelling companion, filed with the Complaint Investigations Division (hereinafter the CID) the complaint set out in the title. On September 20, 2006, Mr. Leclerc confirmed that he wished to pursue this matter formally before the Canadian Transportation Agency (hereinafter the Agency), given that the parties had been unable to reach a satisfactory agreement despite the intervention of the CID.

[2] On October 16, 2006, both Mr. Leclerc and Air Canada were advised of the Agency's jurisdiction in this matter. The parties were also requested to advise whether they agree that the comments and documents they filed with the CID be considered as pleadings before the Agency.

[3] On October 16, 2006, Mr. Leclerc advised that he accepted that the Agency consider the comments and documents he had filed with the CID as pleadings before the Agency. On October 24, 2006, Air Canada requested that the Agency officially open pleadings in this matter.

[4] Pleadings were opened on October 26, 2006.

[5] On November 27, 2006, Air Canada requested a 30-day extension of time to file its answer to the complaint. In Decision No. LET-C-A-300-2006 dated December 11, 2006, the Agency granted Air Canada until December 27, 2006 to file its answer to the complaint and concurrently serve a copy on Mr. Leclerc; Mr. Leclerc was provided with fifteen (15) days from the date of receipt of the carrier's answer to file a reply with the Agency and concurrently serve a copy on Air Canada.

[6] On December 29, 2006, Air Canada filed its answer to the complaint, and on January 11, 2007, Mr. Leclerc filed his reply to the carrier's answer.

[7] Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until February 17, 2007.

Preliminary matter

[8] Although Air Canada filed its answer after the prescribed deadline, the Agency, pursuant to section 5 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts it as being relevant and necessary to its consideration of this matter.

[9] Mr. Leclerc contends that the tariff that applies in the present case is the one in effect on August 13, 2004, the date of purchase of the tickets. The Agency notes that Rule 60(D) of Air Canada's Tariff concerning check-in time limits was in effect both on August 13, 2004 and August 24, 2004, i.e., the date of commencement of carriage covered by the first flight coupon of the ticket. As Rule 60(D) was in effect on both dates, the Agency considers the matter to be moot and will not rule on this aspect of Mr. Leclerc's complaint.

Issue

[10] The issue to be addressed is whether Air Canada has properly applied the terms and conditions of carriage concerning check-in time limits as set out in the carrier's International Passenger Rules and Fares Tariff, CTA(A) No. 458 (hereinafter the Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR).

Positions of the parties

[11] Mr. Leclerc and his travelling companion were scheduled to travel on Air Canada Flight No. AC893 from Amsterdam to Toronto on September 3, 2004. Mr. Leclerc submits that they arrived at Air Canada's check-in counter at Amsterdam Airport Schiphol (hereinafter the Schiphol airport) at 11:15 a.m. for Flight No. AC893, which was scheduled to depart at 12:00 p.m., but noted that there was no Air Canada employee on duty to arrange for check-in for the flight. Mr. Leclerc advises that they walked over to the Air Canada counter where an employee informed them that the check-in counter had closed two minutes prior to their arrival, that nothing could be done to help them board their flight to Toronto and that they should contact their travel agent. Mr. Leclerc adds that they asked the Air Canada employee to contact their travel agent on their behalf, but their request was denied. Mr. Leclerc advises that he and his travelling companion subsequently purchased two replacement tickets at a total cost of CAD$2,386.64 to travel to Montréal with Air Canada on the following day. Mr. Leclerc requests that Air Canada reimburse him and his travelling companion the full cost of the replacement tickets.

[12] Air Canada submits that Mr. Leclerc acknowledged that he arrived at the check-in counter at 11:15 a.m., and notes that his flight was scheduled to depart at 12:00 p.m. Air Canada submits that pursuant to Rule 60(D) of its Tariff, Mr. Leclerc was required to be at the boarding gate no later than 11:35 a.m. Air Canada states that given the time at which Mr. Leclerc arrived at the check-in counter, he only had twenty minutes to complete the entire screening process, including baggage check-in, and passport and security screening.

[13] Air Canada provided a breakdown of the length of time that it normally takes for passengers to complete the entire screening process at the Schiphol airport. Air Canada submits that it normally takes between eight to ten minutes for two passengers to check in with their checked baggage, five minutes to walk over to the passport check point, wait in line and be processed by a customs agent, five to seven minutes to walk over to the security check point, wait in line and complete the security screening process. Air Canada points out that in addition to the length of time passengers require to complete the screening process at the airport, it normally takes 15 to 17 minutes to walk from its check-in counter to boarding gate "F".

[14] Air Canada states that its breakdown is very conservative and does not take into account the possible delays incurred due to such things as a large volume of travellers. Air Canada points out that the Schiphol airport is one of the busiest airports in Europe and that twenty minutes would not have allowed sufficient time for Mr. Leclerc and his travelling companion to complete the entire screening process.

[15] In his reply, Mr. Leclerc contends that Air Canada stated in its response that the passenger's obligation is to go to and to be at the boarding gate at least 25 minutes before the flight and that the carrier's answer requires clarification. Mr. Leclerc contends that Rule 60(D) is unclear, confusing and should not apply in the present case. Furthermore, Mr. Leclerc rejects the breakdown provided by Air Canada as being unfounded and maintains that the carrier was not justified in cancelling his reservation.

Applicable legislative and regulatory provisions

[16] The Agency's jurisdiction in this matter is set out in subsection 110(4) and section 113.1 of the ATR, which state:

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 Where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs, the Agency may

(a) direct the licensee to take corrective measures that the Agency considers appropriate; and

(b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.

The tariff provisions

[17] The following rule of the carrier's Tariff governing the terms and conditions of carriage in effect on August 24, 2004 is relevant to the matter at hand.

RULE 60 - RESERVATIONS

(D) CHECK-IN TIME LIMITS

(1) The Passenger is recommended to present himself/herself for check-in at locations designated for such purposes at least 120 minutes prior to scheduled departure time of the flight on which he/she holds a reservation in order to permit completion of government formalities and departure procedures. The passenger must be available for boarding gate at least 25 minutes [N] (Exception: From Pearson International Airport in Toronto, at least 55 minutes) prior to scheduled departure time of the flight on which he/she holds a reservation and must arrive properly documented and ready to travel. If the passenger fails to meet any of these requirements, the carrier will reassign any pre-reserved seat and/or cancel the reservation of such passenger. Departures will not be delayed for passengers who arrive too late for such formalities to be completed before scheduled departure time. Carrier is not liable to the passenger for loss or expense due to passenger(s) failure to comply with this provision.

NOTE: For the purpose of this rule, check-in is the point for checking baggage and the boarding gate is the point where the boarding pass stub is lifted and retained by the carrier.

Analysis and findings

[18] In making its findings, the Agency has carefully considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined the terms and conditions of carriage specified in Air Canada's Tariff concerning check-in time limits.

[19] Mr. Leclerc maintained that Rule 60(D) of Air Canada's Tariff on Check-in Time Limits is unclear and confusing and that Air Canada's breakdown of the time required to go from the check-in to the boarding gate is unfounded.

[20] The Agency is of the opinion that Rule 60(D) of Air Canada's Tariff clearly defines the obligation for the passenger to be available at the boarding gate at least 25 minutes prior to the scheduled departure time of his or her flight. The Agency also finds that Rule 60(D) clearly states that failure to meet this requirement, among others, will result in the carrier reassigning any pre-reserved seat and/or cancelling the reservation of such passenger.

[21] Mr. Leclerc admitted that he and his travelling companion arrived at Air Canada's check-in counter at the Schiphol airport 45 minutes prior to the scheduled departure time of Flight No. AC893.

[22] The Agency has considered all of the evidence on file and is of the opinion that given the time of arrival of Mr. Leclerc and his travelling companion at check-in, the walking distances involved and the time required for the normal screening process, it was reasonable for Air Canada to conclude that there was insufficient time for the two passengers in question to reach the boarding gate prior to the specified cut-off time of at least 25 minutes prior to the scheduled time of departure of their flight, as required by Rule 60(D) of Air Canada's Tariff. Therefore, the Agency finds that Air Canada applied the terms and conditions set out in its tariff in a reasonable manner and was entitled to deny transportation to Mr. Leclerc and his travelling companion.

CONCLUSION

[23] Based on the above findings, the Agency hereby dismisses the complaint.

Members

• Guy Delisle
• Mary-Jane Bennett