Decision No. 86-C-A-2019

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding a flight cancellation and the consequential delay she experienced in reaching her destination.

[2] The applicant seeks compensation under Regulation (EC) No 261/2004 of the European Parliament and of the Council (Regulation (EC) No 261/2004), and compensation for pain and suffering. She also seeks reimbursement for expenses incurred as a result of the delay she experienced.

[3] The Agency does not have jurisdiction to apply European Union (EU) law to the facts of this case. It does, however, have jurisdiction to address the following issues raised by the applicant:

1. Is Rule 80(C)(2) of Air Canada’s International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458 (Tariff) unjustly discriminatory within the meaning of subsection 111(2) of the Air Transportation Regulations, SOR/88-58 (ATR)?
2. Is Rule 80(C)(2) of the Tariff unreasonable within the meaning of subsection 111(1) of the ATR?
3. Did Air Canada properly apply the terms and conditions set out in its Tariff as required by subsection 110(4) of the ATR?
4. If Air Canada did not properly apply its Tariff, what remedy, if any, is available to the applicant?

[4] For the reasons set out below, the Agency finds that Rule 80(C)(2) of the Tariff is reasonable and not unjustly discriminatory.

[5] The Agency also finds that the carrier did not properly apply its Tariff because it did not take all reasonable steps to avoid the damage the applicant incurred as a result of the delay. Pursuant to section 113.1 of the ATR, the Agency orders Air Canada to compensate the applicant for her food costs and for her additional transportation costs in the amount of GBP 48.60. Air Canada is to pay this amount to the applicant as soon as possible and no later than December 9, 2019.

BACKGROUND

[6] On June 13, 2018, the applicant travelled from Winnipeg, Manitoba, to London, United Kingdom, via Toronto, Ontario. On the day of her departure, Air Canada informed the applicant of a change to her itinerary. Her first flight was cancelled and she was reprotected on new flights along the same route. The applicant was delayed in Winnipeg for approximately 4 hours and 45 minutes, and she arrived in London approximately 5 hours and 45 minutes later than the time set out in her original itinerary.

[7] In her original application, the applicant sought CAD 800 for denied boarding compensation based on Regulation (EC) No 261/2004, and CAD 75 for pain and suffering, and discrimination based on her country of origin. However, she later clarified that she is now seeking half the price of her ticket as compensation for the delay, being “at least” CAD 486.

[8] The applicant was permitted in Decision No. LET-C-A-36-2019 to amend her application to address new issues related to the schedule irregularity; however, the Agency could not consider new concerns raised regarding an entertainment system malfunction that occurred during the flight. The Agency also found that the applicant was not denied boarding. Rather, the issue is one of schedule irregularity or delay.

[9] The applicant now seeks compensation for the following expenses:

GBP 18 – for parking at Heathrow Airport;
GBP 10.50 – bus ticket for the bus she missed from Heathrow;
GBP 20 – for a meal at the Winnipeg Airport;
GBP 13.50 – for a phone call to arrange getting home; and
GBP 25.10 – for fuel used to get home.

THE LAW AND RELEVANT TARIFF PROVISIONS

[10] The relevant provisions of the ATR, the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), and the carrier’s Tariff are set out in the Appendix.

PRELIMINARY MATTERS

Pain and suffering

[11] The applicant has requested compensation for pain and suffering, and discrimination based on her country of origin.

[12] However, neither the CTA nor the ATR provides the Agency with the authority to make awards of general damages. As set out in previous decisions, such as Decision No. 18‑C‑A-2015 (Enisz v. Air Canada), the Agency may only award costs directly incurred by a passenger and may not make awards for pain or suffering. As a result, the applicant’s claims for damages for pain and suffering are beyond the authority of the Agency.

Prepaid expenses

[13] The applicant has requested compensation for a prepaid bus ticket that she was unable to use due to the delay.

[14] Paragraph 113.1(b) of the ATR empowers the Agency to order compensation for certain expenses incurred by passengers in matters involving international air services.

[15] The English and French versions of paragraph 113.1(b) of the ATR contain a discrepancy. The English version provides for compensation for “any expense incurred by a person adversely affected by” a carrier’s failure to apply its tariff. The French version provides for compensation for “toutes dépenses qu’il a supportées en raison de”, or for any expense incurred as a result of, a carrier’s failure to apply its tariff.

[16] In order to resolve this discrepancy, reference is made to paragraph 67.1(b) of the CTA which provides the Agency with the same power in the case of domestic air services. In that provision, both versions of the legislation are consistent with the French version of paragraph 113.1(b), that is they provide for compensation to be paid for expenses “incurred as a result of” or “consécutivement à” the carrier’s failure to apply its tariff.

[17] The principles of bilingual statutory interpretation (R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6) require an approach where the meaning common to both versions is preferred. The common meaning of paragraph 113.1(b) must be the narrower of the two versions, which is the French version in this particular case. Therefore, this narrower interpretation will be applied by the Agency. The Agency, therefore, finds that, in order for compensation to be awarded pursuant to paragraph 113.1(b) of the ATR, the expense must be incurred as a result of a carrier’s failure to properly apply its tariff.

[18] Given that the applicant’s payment for the prepaid bus ticket precedes the delay of her flight and is not a direct consequence of Air Canada’s failure to properly apply its Tariff, the Agency finds that no compensation for this expense can be awarded pursuant to paragraph 113.1(b) of the ATR.

[19] On July 15, 2019, section 113.1 of the ATR was amended and paragraph 113.1(b) was replaced by paragraph 113.1(1)(b). In this case, the Agency has applied paragraph 113.1(b), as the incident occurred prior to July 15, 2019. The Agency notes, however, that the amendments made to section 113.1 of the ATR have no impact on the above analysis, given that the wording found in paragraph 113.1(1)(b) is identical to the one found in former paragraph 113.1(b).

Regulation (EC) No 261/2004

[20] Although it cannot enforce foreign instruments, including Regulation (EC) No 261/2004, in Decision No. 15-C-A-2019 (Heaney v. Air Canada) [Heaney], the Agency stated that it has jurisdiction to determine whether the carrier’s terms and conditions of carriage related to compensation are unreasonable or unjustly discriminatory within the meaning of section 111 of the ATR. In this case, the Agency has jurisdiction to determine whether Rule 80(C)(2) of the Tariff is unreasonable or unjustly discriminatory:

In the case of a schedule irregularity, AC shall implement the provisions of this rule, unless applicable local law provides otherwise. In particular, for flights departing from the following countries, Air Canada will apply the provisions of the following legislations: European [u]nion and Switzerland: EC [r]egulation No. 261/2004….

IS RULE 80(C)(2) OF THE TARIFF UNJUSTLY DISCRIMINATORY WITHIN THE MEANING OF SUBSECTION 111(2) OF THE ATR?

Positions of the parties

THE APPLICANT

[21] The applicant alleges that Air Canada discriminated against her based on her country of origin and where she was landing; specifically, compensation under Regulation (EC) No 261/2004 was not provided to her because her flight departed from Canada instead of the EU. The applicant relies on Decision No. 442-C-A-2013 (Azar v. Air Canada) [Azar] to argue that the Agency should apply Regulation (EC) No 261/2004 to her case.

AIR CANADA

[22] Air Canada disputes that there is any unjust discrimination, as defined in section 111 of the ATR, in how its Tariff applies in relation to Regulation (EC) No 261/2004. The carrier argues that this Regulation does not apply to its flights departing from Canada to the EU as it is not an EU carrier. Air Canada submits that all passengers who experience a delay while travelling from a non-EU country with Air Canada are subject to the same policy pursuant to European and Canadian laws, and that the applicant was not treated prejudicially in this circumstance compared to other passengers.

Analysis and determinations

[23] According to paragraph 111(2)(a) of the ATR, terms and conditions of carriage should not “make any unjust discrimination against any person or other carrier”. The first step in assessing whether a term or condition of carriage constitutes unjust discrimination under section 111 of the ATR is to determine whether the term or condition of carriage is discriminatory (Heaney).

[24] The Agency finds that the applicant has not established that Rule 80(C)(2) of the Tariff is discriminatory based on the country of origin because this Rule applies the same way to all passengers flying from Canada and other non-EU countries, regardless of the country of origin.

[25] With respect to the arguments raised by the applicant regarding the unfairness of applying Regulation (EC) No 261/2004 compensation to flights departing from the EU, but not to flights departing from Canada, the Agency finds that it is implied in the application that this is an argument about reasonability of the Tariff in the same way as the issue was set out in the case relied upon by the applicant Azar. As a result, the Agency will address the applicant’s arguments on this issue below.

IS RULE 80(C)(2) OF THE TARIFF UNREASONABLE WITHIN THE MEANING OF SUBSECTION 111(1) OF THE ATR?

Positions of the parties

THE APPLICANT

[26] The applicant relies on Azar, where the passenger argued that the carrier arbitrarily and unreasonably distinguished between passengers who are denied boarding while travelling between Canada and the EU, based on their point of origin.

AIR CANADA

[27] Air Canada argues that Rule 80(C)(2) is reasonable and it distinguishes its schedule irregularity policies from the denied boarding compensation policy at issue in Azar. Air Canada indicates that it is required to have a compensation policy for denied boarding under subparagraph 122(c)(iii) of the ATR, and that the ATR does not contain any obligation for air carriers to have a compensation policy for delays or cancellations (subparagraph 122(c)(v)). Air Canada argues that it is beyond the Agency’s jurisdiction to impose obligations on carriers to have a compensation regime for delays or cancellation under the circumstances.

[28] The carrier argues that it would be redundant for the Agency to address the issue given what was, at that time, the upcoming Canadian air passenger protection regulations.

Analysis and determinations

[29] As stated in past decisions, such as Heaney and Decision No. 44-C-A-2006 (Gottselig v. Air Canada), in determining whether a term or condition of carriage applied by a carrier is unreasonable within the meaning of subsection 111(1) of the ATR, the Agency must strike a balance between the rights of the passengers to be subject to reasonable terms and conditions of carriage and the particular air carrier’s statutory, commercial and operational obligations.

[30] The Agency distinguishes the circumstances of this case from those underlying Azar because the applicant in this case was not denied boarding whereas Dr. Azar was. As observed by the carrier, the ATR explicitly requires the carrier to set out its policies regarding compensation for involuntary denied boarding. Furthermore, the amount of compensation that the carrier offered on flights from the EU was one of many factors considered in Azar in order to assess the reasonableness of the amount of denied boarding compensation that the carrier was offering on flights departing from Canada to the EU.

[31] While EU law may require that compensation be offered for flight cancellations under some circumstances for flights originating in the EU, Canadian law does not currently contain the same requirement. The fact that compensation may be required in a foreign jurisdiction does not mean that a tariff applicable to flights in other jurisdictions is unreasonable if it does not contain the same compensation provisions.

[32] Consequently, the Agency finds that Air Canada’s Tariff is reasonable.

DID AIR CANADA PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

Positions of the parties and findings of fact

THE APPLICANT

[33] According to the applicant, meal vouchers were provided to other passengers. The applicant argues that she should have been given one as well. The applicant asks why other passengers were provided with a meal voucher if the flight delay was outside the carrier’s control, given that the Tariff only provides for meal vouchers in the case of a schedule irregularity within the carrier’s control.

AIR CANADA

[34] Air Canada argues that the cause of the delay was a hydraulic leak outside its control; that the leak was found during the inspection just before departure; that no problems had been identified during the inspection before the previous flight on the same day; and that a part had to be sourced externally. Air Canada asserts that Rule 80(C)(5)(a) of its Tariff states that passengers are entitled to meal vouchers only in the event that a delay is within its control. As a result, the applicant was not entitled to a meal voucher. Additionally, the carrier argues that it should not be liable for expenses under the Montreal Convention, incorporated by reference in its Rule 105, because it took all reasonable measures to minimize the damage to the applicant by reprotecting her on the next available itinerary.

FINDINGS OF FACT

[35] It is undisputed that the applicant did not receive a meal voucher during the delay of more than four hours.

[36] The Agency finds that the flight cancellation was caused by a hydraulic leak, which was not in the carrier’s control.

[37] The Agency finds that the applicant was reprotected on the next available itinerary with Air Canada to her destination in London.

Analysis and determinations

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

[39] In this case, the delay was outside the carrier’s control.

[40] The carrier’s terms and conditions of carriage as they relate to schedule irregularities are set out in Rule 80 of its Tariff. If the schedule irregularity is outside the carrier’s control, the passenger is entitled to a rescheduled flight on one of Air Canada’s own flights or on a flight with a carrier with which it has a commercial agreement.

[41] Air Canada reprotected the applicant on its next available itinerary to her final destination. As a result, the Agency is of the view that the carrier properly applied Rule 80(C)(4) as it relates to reprotection.

[42] Air Canada’s Tariff incorporates by reference the Montreal Convention at Rule 105. Regardless of whether the delay is outside the carrier’s control, Article 19 of the Montreal Convention requires that the carrier take all reasonable steps to avoid the damage to its passengers in the event of delay in order to avoid liability for expenses. This could, depending on the circumstances, include reprotecting the passenger on alternate routes, providing for meals, providing for ground transportation and/or other mitigating steps (for example, see Decision No. 286-C-A-2016 [Johnson v Air Canada] where offering a meal voucher was among the mitigating steps taken by the carrier).

[43] Although Rule 80(C)(5) of the Tariff states that it only requires the carrier to provide a meal voucher after four hours when the delay is within its control, the Tariff cannot be inconsistent with the Montreal Convention; depending on the circumstances, the carrier could still be required to provide for a meal as a reasonable step to avoid damage under the Montreal Convention, though not necessarily in the form of a voucher. It is the Agency’s view that providing for a meal was required as a reasonable step to avoid the damage the applicant incurred at the Winnipeg Airport under the circumstances, including the length of the delay (over four hours) and the timing of the delay in the early afternoon.

IF AIR CANADA DID NOT PROPERLY APPLY ITS TARIFF, WHAT REMEDY, IF ANY, IS AVAILABLE TO THE APPLICANT?

Positions of the parties and findings of fact

THE APPLICANT

[44] The applicant submits that as a result of the delay, she missed her prepaid bus to her residence and her parents had to drive to the Heathrow Airport to pick her up. With respect to the expenses incurred to arrange alternate transportation from the Heathrow Airport, the applicant claims:

GBP 18 – for parking at the Heathrow Airport;
GBP 13.50 – for a phone call to arrange getting home; and
GBP 25.10 – for fuel used to get home.

[45] She also claims GBP 20 for a meal at the Winnipeg Airport that she consumed while waiting for her new flights.

[46] The applicant states that she did not provide receipts for her expenses because she cannot locate them. The applicant is of the view that she was entitled to a meal voucher and, as such, she should not be required to provide a receipt for her meal.

AIR CANADA

[47] The carrier argues that the applicant did not prove the expenses claimed, and that there are many alternative forms of documentation that the applicant could have provided in addition to receipts, such as copies of her credit card statements or screenshots of the relevant websites to support the costs of items such as the parking or bus costs.

FINDINGS OF FACT

[48] The Agency finds that the applicant was unable to use her bus ticket as a result of the delay and had to make alternate arrangements to get home. The Agency also finds that the applicant purchased a meal during her delay at the Winnipeg Airport. However, as will be discussed below, the applicant has not proven, on a balance of probabilities, the amount of expenses claimed were reasonable.

Analysis and determinations

[49] Given the Agency’s finding that the carrier has not properly applied its Tariff, the carrier is liable to the applicant for reasonable expenses incurred as a result of the delay.

[50] The liability of the carrier in the case of delay is limited to 4,150 Special Drawing Rights (SDR) for each passenger under Article 22(1) of the Montreal Convention. Although the applicant’s claim does not exceed this amount, the Agency finds that some of the expenses are not reasonable, and that the applicant has not proven that she incurred the amounts claimed.

[51] A party endeavouring to prove expenses and the reasonability of those expenses must do so by presenting the best evidence available in light of the nature and the circumstances of the case,. While the production of original receipts will generally adequately support proof of loss, depending on the circumstances, receipts may not be required for damages to be proven, as indicated in Decision No. 308-C-A-2010 (MacGillivray v. Cubana) andDecision No. 36-C-A-2018 (Scordo v. Air Canada). Other methods, such as a sworn affidavit, a declaration, or the inherent reasonableness of the expenses claimed, could assist in determining the validity of the claim. It should also be noted that the Montreal Convention does not require proof of loss in the form of receipts of purchase. Nonetheless, receipts or other documentary evidence may be necessary to prove the amount of a claim when the amount claimed appears abnormally high.

MEAL

[52] The applicant did not provide any receipts to support her claim that she spent GBP 20 (approximately CAD 34) on food at the Winnipeg Airport. The Agency is satisfied that the applicant incurred expenses to purchase food. However, the Agency finds that, in the absence of a receipt confirming the amount paid, the amount claimed is unreasonably high for the time and location. The Agency deems GBP 10 to be an appropriate amount of compensation for a lunchtime meal for an individual at the Winnipeg Airport.

TRANSPORTATION COSTS

[53] Although the applicant did not provide evidence to substantiate the fuel costs claimed, the Agency finds that the amount claimed is reasonable under the circumstances. As a result, the Agency awards the applicant the cost of the fuel claimed (GBP 25.10). Additionally, with respect to the applicant’s claim for the cost of the phone call to arrange alternate transportation when she missed her bus, although the applicant has provided no evidence to support the cost of this phone call being GBP 13.50, the Agency finds this amount to be reasonable under the circumstances.

[54] The Agency finds that the applicant has not proven on a balance of probabilities the parking costs claimed. In the absence of any evidence of the parking expense, the Agency observes that parking costs are not necessary when the applicant is being picked up from the airport.

CONCLUSION

[55] The Agency finds that Rule 80(C)(2) of the Tariff is reasonable and not unjustly discriminatory.

[56] The Agency also finds that Air Canada is liable for some expenses under the Montreal Convention and Rule 105 of its Tariff given that it did not take all reasonable steps to avoid the damage the applicant incurred as a result of the delay. The Agency orders Air Canada to compensate the applicant for her food costs in the amount of GBP 10, for her additional transportation costs in the amount of GBP 25.10, and for her phone call in the amount of GBP 13.50, for a total of GBP 48.60.

ORDER

[57] Pursuant to section 113.1 of the ATR, the Agency orders Air Canada to compensate the applicant in the amount of GBP 48.60. Air Canada is to pay this amount to the applicant as soon as possible and no later than December 9, 2019.

---

APPENDIX TO DECISION NO. 86-C-A-2019

Air Transportation Regulations, SOR/88-58

Subsection 110(4) states:

(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.

Section 111 reads:

(1)  All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just and reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic.

(2)  No air carrier shall, in respect of tolls or the terms and conditions of carriage,

(a)  make any unjust discrimination against any person or other air carrier;
(b)  give any undue or unreasonable preference or advantage to or in favour of any person or other air carrier in any respect whatever; or
(c)  subject any person or other air carrier or any description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatever.

(3)  The Agency may determine whether traffic is to be, is or has been carried under substantially similar circumstances and conditions and whether, in any case, there is or has been unjust discrimination or undue or unreasonable preference or advantage, or prejudice or disadvantage, within the meaning of this section, or whether in any case the air carrier has complied with the provisions of this section or section 110.

Section 113.1, as it was in force at the time the application was made, states:

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

(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 set out in the tariff.

Subsection 113.1(1), as it is in force as of July 15, 2019, states:

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.

Section 122, as it was in force at the time the application was made, states that every tariff shall contain:

….
(c)  the terms and conditions of carriage, clearly stating the air carrier’s policy in respect of at least the following matters, namely,
….
(iii) compensation for denial of boarding as a result of overbooking,
….
(v) failure to operate the service or failure to operate on schedule,
….

International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458

Rule 80(C) SCHEDULE IRREGULARITY

(1)  Definition

Schedule irregularity means any of the following:

(a)  Delay in scheduled departure or arrival of a carrier’s flight
(b)  Flight cancellation, omission of a scheduled stop, or any other delay or interruption in the scheduled operation of a carrier’s flight, or
(c)  Substitution of equipment or of a different class of service, or
(d)  Schedule changes which require rerouting of passenger at departure time of the original flight.

(2)  In the case of a schedule irregularity, AC shall implement the provisions of this rule, unless applicable local law provides otherwise. In particular, for flights departing from the following countries, Air Canada will apply the provisions of the following legislations: European union and Switzerland: EC regulation No. 261/2004; Israel: Aviation Services Law (Compensation and Assistance for flight cancellation or change of conditions), 5772-2012. Turkey: Regulations on Air Passenger Rights (SHY‑Passenger)

(3)  Given that passengers have a right to information on flight times and schedule changes, Air Canada will make reasonable efforts to inform passengers of delays, cancellations and scheduled changes and to the extent possible, the reason for the delay or change.

(4)  In the event of a scheduled irregularity, Carrier will either:
      NOTE: Additional services are provided to On My Way customers, as detailed below):

(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 carrier’s option;
(b)  endorse to another air carrier with which Air Canada has an agreement for such transportation, the unused portion of the ticket for purposes of rerouting; or at 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, 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 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 (an exception to the applicability of a refund occurs where the passenger was notified of the schedule irregularity prior to the day of departure an the schedule irregularity is of 60 minutes or less) or,
(e)  upon request, for cancellations within Air Canada’s control, return passenger to point of origin and refund in accordance with rule 100 as if no portion of the trip had been made irrespective of applicable fare rules), or subject to passenger’s agreement, offer a travel voucher for future travel in the same amount; or, upon passenger request.
(f)  For cancellation within Air Canada’s control, if passenger provides credible verbal assurance to Air Canada of certain circumstances that require his/her arrival at destination earlier than options set out in subparagraph (a) above, or, for On My Way customers, for cancellation within or outside carrier’s control, Air Canada will, if it is reasonable to do so, taking all circumstances known to it into account, and subject to availability, buy passenger a seat on another carrier whose flight is schedule to arrive appreciably earlier than the options proposed in (a) above. Nothing in the above shall limit or reduce the passenger’s right, if any, to claim damage, if any, under the applicable Convention, or under the law when neither Convention applies.

(5)  Except as otherwise provided in applicable local law, in addition to the provisions of this rule, in case of scheduled irregularity within its control (and outside its control, for On My Way customers) Air Canada will offer:

(a)  For a schedule irregularity lasting longer than 4 hours, a meal voucher for use, where available, at an airport restaurant or our on board cafe, of an amount dependent on the time of day.
(b)  For a schedule irregularity lasting overnight or over 8 hours, hotel accommodation subject to availability and ground transportation between the airport and the hotel. This service is only available for out of town passengers.

Rule 105(5)

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.

Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention)

Article 19 of the Montreal Convention provides:

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.