Decision No. 87-C-A-2019

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against WestJet, alleging that the information regarding WestJet’s Guardian Fare Program found on its website is unclear and that the program discriminates against passengers travelling to destinations that are infrequently serviced. The applicant wanted to travel under the Guardian Fare Program to accompany two minor children and had difficulty finding a flight that met the program’s requirements, especially those that she alleges are not listed on the website.

[2] The applicant is seeking for WestJet to admit that the information on its website is unclear, update its website to include the full conditions of the Guardian Fare Program, and compensate her in WestJet dollars for inconvenience.

[3] The application raises the following issues:

Did WestJet apply terms and conditions not set out in its Domestic Tariff (Tariff), contrary to subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)? And if so, what remedy, if any, is available to the applicant?

Is Rule 40(A)1 regarding the Guardian Fare Program of WestJet’s Tariff unjustly discriminatory within the meaning of subsection 111(2) of the Air Transportation Regulation, SOR/88-58, as amended (ATR)?

[4] For the reasons outlined below, the Agency finds that WestJet contravened subsection 67(3) of the CTA by applying terms and conditions not set out in its Tariff, specifically the Guardian Fare Program’s two-hour minimum time requirement between the guardian’s arriving and departing flights. Pursuant to section 67.1 of the CTA, the Agency orders WestJet to update its Tariff to include the minimum time requirements between arriving and departing flights for both domestic and international travel under its Guardian Fare Program. Furthermore, the Agency orders WestJet to publish the terms and conditions of the Guardian Fare Program on its website to be consistent with its Tariff.

[5] On the second issue, the Agency finds that Rule 40(A)1 of WestJet’s Tariff is not unjustly discriminatory within the meaning of subsection 111(2) of the ATR.

BACKGROUND

[6] The applicant purchased tickets for herself and two minor children, from Ottawa, Ontario, to Kelowna, British Columbia, via Toronto, Ontario, departing at 6:45 a.m. and arriving at 10:43 a.m. on July 27, 2019. The applicant was travelling under WestJet’s Guardian Fare Program to accompany the minor children and also held a return ticket departing from Kelowna at 2:00 p.m. on July 27, 2019, and arriving in Ottawa at 12:03 a.m. on July 28, 2019, via Calgary, Alberta.

[7] The applicant seeks the following:

• an admission from WestJet that its website is not transparent or clear with regard to the Guardian Fare Program rules;
• an update to WestJet’s website to include full conditions of the Guardian Fare Program so that others do not have to spend unnecessary time on hold waiting for an agent to inform them of these conditions; and
• WestJet dollars for time spent waiting on hold, contacting the Agency, refuting the responses with the carrier, and preparing the adjudication case.

PRELIMINARY MATTERS

[8] The Agency is a creature of statute, whose authority over tariff issues is defined in the CTA. The Agency does not have the jurisdiction to order WestJet to admit that the rules and policies specific to its Guardian Fare Program are not transparent or clear on its website.

[9] Likewise, with regard to compensation related to time spent waiting on hold, contacting the Agency, refuting the responses with the carrier, and preparing the adjudication case, the Agency does not have jurisdiction to order payment of compensation for inconvenience, as stated in previous decisions, such as Decision No. 18-C-A-2015 (Enisz v. Air Canada) and Decision No. 103-C-A-2017 (Chowdhury v. Turkish Airlines).

THE LAW AND RELEVANT TARIFF PROVISIONS

[10] The relevant provisions of the CTA, the ATR, and WestJet’s Tariff are set out in Appendix A.

DID WESTJET APPLY TERMS AND CONDITIONS NOT SET OUT IN ITS TARIFF, CONTRARY TO SUBSECTION 67(3) OF THE CTA? AND IF SO, WHAT REMEDY, IF ANY, IS AVAILABLE TO THE APPLICANT?

Positions of the parties

THE APPLICANT

[11] The applicant claims that she called WestJet’s Reservation Centre to book flights using the Guardian Fare Program, as the carrier’s website instructed. The applicant states that she was advised of additional terms and conditions for domestic flights, specifically that a minimum of two hours is required between the arrival of the original flight and the departure of the return flight of the adult passenger.

[12] The applicant claims that she had significant difficulty finding a flight that corresponded to the minimum two‑hour domestic travel requirement and the maximum 24‑hour requirement and spent an excessive amount of time waiting on hold trying to get clarification on the terms and conditions, as the two-hour domestic travel requirement was not on the carrier’s website.

[13] The applicant states that WestJet told her to book a regular fare ticket when she could not find tickets that met the terms and conditions of the Guardian Fare Program. In the end, the applicant indicates that she did successfully book tickets that respected the time requirements, but feels that the full terms and conditions of the Guardian Fare Program are not clear.

[14] The applicant claims that, a number of weeks after booking the Guardian Fare tickets, WestJet advised her of a flight schedule change. The applicant alleges that this revised flight did not comply with the two-hour minimum time requirement, which contradicted earlier statements from WestJet that said the minimum time requirement was non-negotiable.

WESTJET

[15] WestJet describes the Guardian Fare Program as an alternative to children travelling alone and characterizes it as a special benefit to guests in addition to its Unaccompanied Minor Program. It states that the terms and conditions of the Guardian Fare Program have been established to meet the needs of passengers travelling with a child between two and 11 years old, to foster a stress-free travel experience.

[16] WestJet states that guests are required to call the Special Care Desk to benefit from the Guardian Fare Program because many factors are taken into account for each guest’s specific situation, and that it cannot put every scenario on its website. It indicates that a subject matter expert at the Special Care Desk is aware of the requirements, including the minimum time between flights, and shares them with guests when they call to make their bookings. WestJet specifically states that the two-hour minimum time requirement for domestic flights ensures that the drop-off and pick-up of the children happen without incident.

[17] WestJet believes that the publicly available information about its policies and procedures is clear and states that more details are available to guests when they call to take advantage of the Guardian Fare Program.

Analysis and determinations

[18] Subsection 67(3) of the CTA prohibits the holder of a domestic licence from applying any term or condition of carriage unless it is set out in its tariff. WestJet’s Tariff Rule 40(A)1 sets out the terms and conditions of the Guardian Fare Program, but does not include the two-hour minimum time requirement that the applicant discovered when she called the Special Care Desk to book tickets.

[19] Subsection 107(1) of the ATR requires that WestJet’s terms and conditions governing the Tariff be stated in a way that is clear on how they apply to thetolls named in the Tariff. WestJet has indicated that its internal guidance, which is used by staff, states that a minimum of two hours is required between the arrival of the original flight and the departure of the return flight for domestic flights and that the minimum time between arrival and departure of international flights is specified as three hours. While the Agency accepts that it is not possible to foresee every scenario where the Guardian Fare Program applies, standard conditions such as time requirements will not vary and should be clearly stated in the Tariff.

[20] The Agency therefore finds that WestJet contravened subsection 67(3) of the CTA when it applied terms and conditions, specifically the two-hour minimum time requirement of the Guardian Fare Program, not set out in its Tariff.

[21] Paragraph 67(1)(a.1) of the CTA requires that the holder of a domestic licence publish the terms and conditions of carriage on any Internet site it uses to sell the domestic service that it offers. Therefore, both the Tariff and website information must be updated to include the minimum time requirements.

IS RULE 40(A)1 REGARDING THE GUARDIAN FARE PROGRAM OF WESTJET’S TARIFF UNJUSTLY DISCRIMINATORY WITHIN THE MEANING OF SUBSECTION 111(2) OF THE ATR?

Positions of the parties

THE APPLICANT

[22] The applicant argues that WestJet’s Guardian Fare Program discriminates against passengers travelling to destinations that are infrequently serviced compared to other routes—for some destinations, the return flight may depart before the two‑hour minimum time requirement between flights, or there may not be a return flight within 24 hours of arrival, making it impossible to abide by the terms and conditions of the program.

WESTJET

[23] WestJet did not specifically comment on the discrimination allegations.

Analysis and determinations

[24] The Agency has stated in past decisions, such as in Decision No. 436-C-A-2007 (Dufour v. Air Transat) and Decision No. 746-C-A-2005 (Black v. Air Canada), that a toll, term, or condition of carriage would be discriminatory if it singled out a particular passenger or group of passengers, or shippers, for different treatment for reasons that could not be justified. That is not the case here.

[25] The Guardian Fare Program offers reduced fares to passengers travelling with a child between two and 11 years old if specific conditions are met. While it is possible that passengers travelling to destinations with less frequent service may not be able to benefit from this program for some itineraries, the carrier is not singling them out. The Agency also notes that the applicant was ultimately able to purchase tickets through the Guardian Fare Program.

[26] The Agency finds that WestJet’s rationale for requiring a minimum of two hours between the original and return flights to ensure that the drop-off and pick-up of children happen without incident is reasonable. While it did not provide a rationale for specifying that the stay at the destination cannot exceed 24 hours, the Agency finds that WestJet is entitled to define this as a condition for offering a reduced fare to passengers travelling with a young child. The Agency therefore finds that WestJet’s Guardian Fare Program is not unjustly discriminatory within the meaning of subsection 111(2) of the ATR.

CONCLUSION

[27] In light of the foregoing, the Agency finds that WestJet contravened subsection 67(3) of the CTA when it applied terms and conditions, specifically the two-hour minimum time requirement of the Guardian Fare Program, not set out in its Tariff. The Agency also finds that WestJet’s Guardian Fare Program is not unjustly discriminatory within the meaning of subsection 111(2) of the ATR.

ORDER

[28] Pursuant to section 67.1 of the CTA, the Agency orders WestJet to update its Tariff to include the minimum time requirements between arriving and departing flights for domestic and international travel under its Guardian Fare Program. Furthermore, the Agency orders WestJet to publish the terms and conditions of the Guardian Fare Program on its website to be consistent with its Tariff.

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APPENDIX TO DECISION NO. 87-C-A-2019

Canada Transportation Act, S.C., 1996, c. 10, as amended

67(1) The holder of a domestic licence shall

…

(a.1) publish the terms and conditions of carriage on any Internet site used by the licensee for selling the domestic service offered by the licensee;

….

67(3) The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

67.1 If, on complaint in writing to the Agency by any person, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee 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 Transportation Regulations,SOR/88-58, as amended

107(1) Every tariff shall contain

…

(l) the terms and conditions governing the tariff, generally, stated in such a way that it is clear as to how the terms and conditions apply to the tolls named in the tariff;

….

111(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.

111(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.

WestJet’s Domestic Tariff

Rule 40(A)1. Guardian Fare

The Carrier has implemented a Guardian Fare program which allows a Guest to travel with a Child to a Destination and return to the Origin airport within 24 hours as an alternative to Children travelling alone (a “Guardian Fare” or all rules as the “Guardian Fare Program”). In order to book the Guardian Fare, the following conditions must be met:

• A Guardian must travel with a Child or Children between 2-11 years of age;
• The Guardian must be at least 18 years of age;
• The Guardian must be assigned at the time of booking and will be fully responsible for the transportation of the child(ren);
• The Fare for the child(ren) shall be the rate available at the time of booking;
• The Guardian will receive a fifty percent reduction off the Fare at the rate available at the time of booking;
• The Guardian Fare is only valid for one person travelling with the child(ren)
• The scheduled departure time for the return Flight of the Guardian must be within 24 hours of the Original Flight (based on the time of the Original departure city). If the next available Flight is not within this 24 hour time restriction, the Guardian Fare is not applicable.
• Guardian Fare bookings can only be made and modified through the Contact Centre.
• The Guardian Fare is subject to all other rules associated with a Fare.