Decision No. 78-C-A-2017

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) concerning their denied boarding for Flight No. 9W5069 from London, England to Toronto, Ontario, Canada on May 10, 2015 and the resulting delay, as well as their baggage being delayed for two days upon their arrival in Toronto.

[2] The applicants are seeking an undisclosed amount in compensation for pain and suffering and the inconvenience that resulted from being delayed in London. The applicants are also seeking GBP£50 to cover the cost of their breakfasts.

[3] The Agency will address the following issues:

1. Did Jet Airways properly apply the terms and conditions set out in Rule 87 of its International Passenger Rules and Fares Tariff, NTA(A) No. 521 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), and if not, what remedies, if any, are available to the applicants?
2. Did Jet Airways properly apply the terms and conditions set out in Rule 55 of its Tariff, which incorporates the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) by reference, as required by subsection 110(4) of the ATR, and if not, what remedies, if any, are available to the applicants?

[4] For the reasons set out below, the Agency finds that Jet Airways, by not compensating the applicants for denied boarding and the subsequent damages that they incurred for being delayed, did not properly apply the terms and conditions set out in its Tariff. Therefore the Agency orders Jet Airways to compensate the applicants in the amount of CAN$2,439 by July 29, 2017, and to advise the Agency once compensation has been tendered to the applicants.

BACKGROUND

[5] The following is a summary of the facts as described by the applicants. Jet Airways did not file an answer to the application.

[6] The applicants were scheduled to travel from Mumbai, India to Toronto via London on May 10, 2015. However, they were delayed at their connecting point in London as Air Canada, which was acting as an agent for Jet Airways, did not have their reservation in its system, and therefore could not issue boarding passes to the applicants for Flight No. 9W5069. Consequently, Air Canada booked the applicants on an alternate Air Canada flight departing approximately four hours later, at noon. The applicants requested meal vouchers from Air Canada to cover the cost of their breakfasts, but their request was refused.

[7] Upon boarding their new flight, the applicants requested a snack from the flight attendant as their child was crying and would not settle down, but the flight attendant refused to give them anything. When it came time for the meal service on the flight, the flight attendant had no record of the vegetarian meals being requested by the applicants as their original request had not been transferred to their rebooked flight. Once the other passengers had been served, Air Canada had two remaining vegetarian meals, which the applicants shared between them.

[8] Upon arriving in Toronto, the applicants’ baggage did not arrive with them, and it was delivered two days later.

PRELIMINARY MATTERS

Code Share

[9] The applicants’ itinerary involved carriage from London to Toronto on a Jet Airways and Air Canada code-share flight, ticketed as Flight No. 9W5069 operated by Air Canada.

[10] A code share constitutes an arrangement between air carriers in which one air carrier (marketing carrier) sells transportation in its name (under its code) on flights operated by the partner air carrier (operating carrier), where the marketing carrier’s tariff applies for the whole journey. The applicants’ tickets indicate that Jet Airways was the marketing carrier. Therefore, Jet Airways’ Tariff applies to this case.

Agency jurisdiction over quality of service

[11] In their application, the applicants make several references to what they perceived to be poor customer service on the part of Air Canada and the manner in which they were treated by the carrier’s staff.

[12] The applicants are seeking an undisclosed amount in compensation.

[13] The Agency does not have jurisdiction to order compensation relating to the level of service that a passenger receives from an air carrier, as stated in previous decisions, such as Decision No. 18-C-A-2015 (Enisz v. Air Canada) and Decision No. 55-C-A-2014 (Brine v. Air Canada).

[14] Therefore, the Agency will not consider this issue.

THE LAW

[15] Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff.

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.

[16] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to grant certain types of relief.

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 direct it to

1. take the corrective measures that the Agency considers appropriate; and
2. pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions set out in the tariff.

DID JET PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULE 87 OF ITS TARIFF, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR, AND IF NOT, WHAT REMEDIES, IF ANY, ARE AVAILABLE TO THE APPLICANTS?

Position of the applicants

[17] The applicants state that when they presented themselves at the Air Canada check-in counter in London, they were unable to obtain boarding passes as Air Canada did not have their reservation in its system.

[18] The applicants are seeking compensation for the inconvenience that they suffered.

ANALYSIS AND DETERMINATIONS

[19] The Agency finds that the inability for the applicants to obtain boarding passes for Flight No. 9W5069, for which they had a confirmed status, resulted in the applicants being denied boarding.

[20] Rule 87, Part II of Jet Airways’ Tariff provides the following:

(1) Applicability:

The following rules shall apply:

1. in respect of flight departing from an airport in the EU...;
2. on condition that the passenger has a confirmed reservation on the flight concerned and presented himself/herself for check-in as stipulated and at the time indicated in advance and in writing or electronically, or, if no time is indicated, no later than 45 minutes before the published departure time;
3. only to the passengers travelling at a fare available directly or indirectly to the public, or on tickets issued under a frequent flyer program or other commercial program;
4. where 9W are the operating carrier of the flight.

(2) Rules for Compensation and Assistance

1. Denied boarding is a refusal by an airline to carry a passenger on a flight, even though the passenger has presented him or herself for boarding under the conditions mentioned above under the heading Applicability, except when there are reasonable grounds to deny boarding, such as reasons of health, safety, security or inadequate travel documentation.
2. Before 9W denies boarding for a flight 9W will call for volunteers to surrender their reservations, in return for benefits under conditions to be agreed, and also assistance described in paragraph (f) below as appropriate.
3. If an insufficient number, of volunteers comes, forward and 9W denies boarding to the passenger against their will? 9W will immediately compensate the passenger:

i. EUR 250 for all flights of 1500 kilometres or less?

ii. EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights, between. 1500 and 3500 kilometres;

iii. EUR 600 for all flights not falling under (a) or (b) of this paragraph.

d. . . .

[21] In support of their application, the applicants filed their itineraries and electronic ticket receipts. The electronic ticket receipts for Alpesh Kabra, Sanjeeta Kabra, and S. Kabra indicate a confirmed status for Flight No. 9W5069. A. Kabra’s ticket indicates that he was ticketed as an infant, and the status on his ticket indicates no seat, presumably as he was travelling as a lap child. Based on the foregoing, the Agency is satisfied that Alpesh Kabra, Sanjeeta Kabra, and S. Kabra had confirmed reservations.

[22] There is no evidence to suggest that the applicants did not check in on time.

[23] With respect to whether the applicants were travelling using fares directly or indirectly available to the public, the evidence suggests that the applicants’ fares were directly available to the public as Alpesh Kabra’s ticket was purchased through a travel agent, and Sanjeeta’s and their children’s tickets were purchased directly with Jet Airways.

[24] Rule 87, Part II, 1(d) of Jet Airways’ Tariff describes denied boarding as only relating to flights operated by Jet Airways. However, the Agency reminds the carrier that the code-share authority granted to Jet Airways by the Agency in Decision No. 12-A-2017 includes a condition that the carrier that sells the transportation to the passenger must apply its own published tariff, on file with the Agency and in effect, even if another carrier operates the flight. In this case, the applicants were scheduled to travel on Jet Airways’ Flight No. 9W5069, which was a Jet Airways marketed flight operated by Air Canada. In keeping with Decision No. 12-A-2017, Jet Airways is responsible to the applicants in this case.

[25] Lastly, Jet Airways’ Tariff provides that if there are reasonable grounds to deny boarding to a passenger, such as reasons of health, safety, security or inadequate travel documentation, the carrier will not provide denied boarding compensation. In this case, there is no evidence to suggest that any of these reasons would apply to the applicants.

[26] Based on the foregoing, the Agency finds, on a balance of probabilities, that Alpesh Kabra, Sanjeeta Kabra, and S. Kabra were denied boarding for Flight No. 9W5069 from London to Toronto.

[27] Jet Airways’ Tariff provides that if the carrier denies boarding to a passenger, it will provide denied boarding compensation. However, the amount varies depending on the distance to be travelled. Using a flight distance mileage calculator, the flight distance between the London Heathrow Airport and the Toronto Pearson International Airport is approximately 5780.87 kilometers. Therefore, as provided in Jet Airways’ Tariff, Alpesh Kabra, Sanjeeta Kabra, and S. Kabra would each be entitled to EUR€600, or CAN$813.

[28] Based on the above, the Agency finds that, by not compensating Alpesh Kabra, Sanjeeta Kabra, and S. Kabra for denied boarding, Jet Airways failed to apply the terms and conditions set out in its Tariff, and therefore contravened subsection 110(4) of the ATR. Accordingly, Alpesh Kabra, Sanjeeta Kabra, and S. Kabra are each entitled to denied boarding compensation in the amount of CAN$813.

DID JET AIRWAYS PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULE 55 OF ITS TARIFF, WHICH INCORPORATES THE MONTREAL CONVENTION BY REFERENCE, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR, AND IF NOT, WHAT REMEDIES, IF ANY, ARE AVAILABLE TO THE APPLICANTS?

Position of the applicants

[29] The applicants submit that upon being denied boarding, they requested meal vouchers from Air Canada, which was acting as an agent for Jet Airways, to cover the cost of their breakfasts, but their request was refused. The applicants are seeking compensation in the amount of GBP£50 to cover the cost of their breakfasts at the London Heathrow Airport.

[30] The applicants also submit that their baggage was delayed for two days upon their arrival in Toronto.

Analysis and determinations

[31] Rule 55(C)18 of Jet Airways’ Tariff provides the following:

Rule 55 Liability of Carriers

(C) Limitation of Liability

(18) For the purpose of international carriage governed by the Montreal Convention,  the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with-those rules

[32] Article 19 of the Montreal Convention provides that:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage, or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

[33] The statements made by the applicants are uncontested as Jet Airways did not file an answer to the application, therefore there is no evidence that Air Canada, which was acting as an agent for Jet Airways, took all the measures that could reasonably be required to avoid the damage occasioned by the delay, or that it was impossible for it or them to take such measures.

[34] The Agency notes that the applicants’ original flight was scheduled to depart at 8:30 a.m. and that they were rebooked to depart approximately four hours later. Therefore, it was not unreasonable for the applicants to request meal vouchers in the circumstances.

[35] The applicants have claimed for the cost of the breakfasts that they purchased at the London Heathrow Airport, but they have not provided receipts to substantiate this expense. In Decision No. 308-C-A-2010 (MacGillivray v. Cubana), the Agency found that other methods such as a sworn affidavit, a declaration, or the inherent reasonableness of the expenses claimed could, in some cases, assist in determining the validity of a claim. In this case, the Agency finds that GBP£50 is a reasonable amount to cover the cost of the breakfasts at the London Heathrow Airport and therefore, receipts are not necessary.

[36] With respect to the applicants’ statement that their baggage was delayed for two days upon their arrival in Toronto, the Agency notes that the applicants have not made any claims with respect to damages that resulted from their baggage being delayed. The Agency therefore finds that the applicants’ submissions are incomplete in this regard and, consequently, it cannot reach a decision with respect to their delayed baggage.

[37] Based on the above, the Agency finds that, by not offering the applicants meal vouchers as compensation for their delay, Air Canada, which was acting as an agent for Jet Airways, failed to properly apply the terms and conditions of carriage relating to the limits of liability as set out in Rule 55(C)18 of Jet Airways’ Tariff, which incorporates the Montreal Convention by reference, and therefore contravened subsection 110(4) of the ATR. Accordingly, the applicants are entitled to GBP£50, or CAN$93.44, for the expenses that they incurred as a result of being delayed at the London Heathrow Airport.

ORDER

Issue 1

[38] The Agency, pursuant to paragraph 113.1(a) of the ATR, directs Jet Airways to pay Alpesh Kabra, for himself, Sanjeeta Kabra, and S. Kabra, by July 29, 2017 denied boarding compensation in the amount of CAN$813 each (totalling CAN$2,439) and to advise the Agency once compensation has been tendered.

Issue 2

The Agency, pursuant to paragraph 113.1(b) of the ATR, directs Jet Airways to pay Alpesh Kabra, for himself, Sanjeeta Kabra, and S. Kabra, by July 29, 2017 the amount of CAN$93.44, for the expenses that they incurred as a result of being delayed, as set out in Rule 55 of Jet Airways’ Tariff, which incorporates the Montreal Convention by reference, and to advise the Agency once compensation has been tendered.