Decision No. 89-C-A-2020

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent regarding a flight schedule change from Québec, Quebec, to Paris, France, on June 25, 2019.

[2] The applicants are seeking CAD 1,547.90 in compensation for the expenses that they incurred, as well as CAD 300 for problems and inconvenience, and for the time spent preparing their application.

[3] The Agency will address the following issues:

• Did the respondent properly apply the terms and conditions set out in its international tariff titled Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada (Except the United States) on the Other Hand, CTA(A) No. 4 (Tariff) with respect to schedule irregularities, as required under subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR)?
• If the respondent did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, should be ordered?

[4] For the reasons set out below, the Agency finds that the respondent failed to properly apply the terms and conditions of carriage set out in the Tariff with respect to schedule irregularities. Consequently, the Agency orders the respondent to compensate the applicants in the amount of CAD 935.10. The respondent is to pay this amount to the applicants as soon as possible and no later than October 19, 2020.

BACKGROUND

[5] The applicants purchased tickets from the respondent for a round-trip flight from Québec  to Paris, at a cost of CAD 2,132.82. They also purchased tickets from KLM for a round-trip flight from Paris to Amsterdam, Netherlands, at a cost of CAD 472.60.

[6] The outbound flight from Québec   to Paris was scheduled to depart on June 25, 2019, and arrive on June 26, 2019, at 8 a.m. The applicants were then to take a flight from Paris to Amsterdam that was scheduled to depart on June 26, 2019, at 11:45 a.m. The applicants had also booked a cruise that was scheduled to depart from Amsterdam on June 26, 2019, at 5 p.m.

[7] On January 17, 2019, the respondent informed the applicants that it was rescheduling the flight from Québec to Paris and that the applicants would arrive in Paris later than originally scheduled, at 10:55 a.m.

[8] On January 17, 2019, the applicants contacted the respondent’s Sales Centre to cancel the tickets that they had purchased from the respondent. The respondent gave them a refund of the cost of the tickets less a penalty of CAD 600.

[9] The applicants also cancelled their non-refundable tickets for the KLM flight from Paris to Amsterdam. Lastly, the applicants purchased replacement tickets from Air Canada for a round-trip flight from Québec to Amsterdam, at a cost of CAD 2,467.92.

[10] The applicants are seeking CAD 1,547.90 in compensation, broken down as follows:

• CAD 600 for the flight cancellation penalty charged by the respondent;
• CAD 472.60 for the KLM tickets;
• CAD 80 for the KLM additional baggage fees;
• CAD 60.20 for KLM seat selection; and
• CAD 335.10 for the difference in cost between the tickets with the respondent and the replacement tickets with Air Canada.

PRELIMINARY MATTERS

Inconvenience

[11] The applicants are seeking CAD 300 in compensation for inconvenience and for the time spent preparing their application.

[12] The Agency does not have the power to order compensation for inconvenience in cases where a carrier has allegedly failed to meet its tariff-related obligations.

[13] Moreover, although the Agency has jurisdiction to order the payment of fixed amounts as compensation for inconvenience in the situations described in section 12 of the Air Passenger Protection Regulations, SOR/2019-150 (APPR), section 12 does not apply to a refusal to transport or to flights operated before the APPR came into effect.

[14] Accordingly, the Agency will not consider that issue.

Civil Code of Québec and Consumer Protection Act

[15] The applicants refer to the Civil Code of Québec and the Consumer Protection Act in support of their application.

[16] The Agency was created under federal law and exercises jurisdiction only under the Canada Transportation Act, SC 1996, c 10 (CTA), and its associated regulations. There is no provision in the CTA that grants the Agency the power to enforce the legislation referred to by the applicants.

[17] Accordingly, the Agency will not consider that issue.

THE LAW AND RELEVANT TARIFF PROVISIONS

[18] Subsection 110(4) of the ATR reads as follows:

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.

[19] Section 113.1 of the ATR states the following:

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.

[20] The relevant provisions of the respondent’s tariff are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicants

[21] The applicants state that they received notice of respondent’s schedule change and contacted the respondent on the same day to inform it that the new schedule was not suitable. They state that they would not have had time to take the connecting KLM flight from Paris to Amsterdam and arrive on time for their cruise because they would have only 50 minutes at the airport in Paris to board the KLM flight.

[22] The applicants point out that the respondent failed to offer any alternative and that the only option provided was to cancel their bookings, with a penalty of CAD 600, which they did.

[23] They state that the respondent had no right to charge the penalty and that they also had to cancel their flight bookings with KLM, which were non-refundable.

[24] The applicants also filed a number of screen shots of flights offered online in 2020 by various carriers to show that there were alternatives that would have enabled them to arrive in Paris in time.

[25] They argue that the respondent could have offered one of those alternate flights but did not.

The respondent

[26] The respondent claims that it committed no fault or negligence and that it acted in accordance with the terms and conditions of sale for the fare class of the applicants’ tickets and in accordance with its tariff and regulatory obligations.

[27] The respondent argues that the terms and conditions clearly state that flight schedules are subject to change without notice and that, for schedule changes of less than six hours, it has no obligation to reimburse the passenger or reroute the passenger on another flight offered by it or by another carrier.

[28] The respondent further states that, according to the notes in the record, no offer was made to the applicants, and no offer was requested by the applicants.

[29] Moreover, the respondent states that there was a flight on that day from Montréal that could have arrived in Paris at a suitable time for the applicants, but that it is now impossible to verify whether seats were available.

FINDING OF FACTS

[30] The applicants allege that they contacted the respondent’s Sales Centre to explain that the new flight schedule was not suitable. They state that they requested another flight but that the respondent did not offer them one. The respondent does not dispute this statement, but rather points out that the notes in the record contain no information on this conversation.

[31] The Agency finds that the applicants informed the respondent that the new schedule was unsuitable and that they attempted to obtain another flight.

ANALYSIS AND DETERMINATIONS

[32] The onus is on the applicants to establish, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.

[33] Rule 21(2)(C)(i) of the Tariff states that, if a passenger is impacted by a schedule irregularity, the carrier will take into account all the circumstances of the case as known to it as it attempts to find alternative transportation to the passenger’s destination.

[34] The carrier will provide the option of accepting one or more of the following choices:

• transportation to the passenger’s intended destination within a reasonable time at no additional cost;
• return transportation to the passenger’s point of origin within a reasonable time at no additional cost; and
• where no reasonable transportation option is available, a refund or credit (at the passenger’s discretion) in an amount equal to the fare and charges paid.

[35] Rule 21(2)(C)(ii) of the Tariff states that, when determining the transportation service to be offered, the carrier will consider the following:

• available transportation services, including services offered by interline, code sharing and other affiliated partners and, if necessary, other non-affiliated carriers; and
• the circumstances of the passenger, as known to it, including any factors which impact upon the importance of timely arrival at destination.

[36] Rule 21(2)(C)(iii) states that, having taken all the known circumstances into consideration, the carrier will take all measures that can reasonably be required to avoid or mitigate the damages caused by a schedule irregularity.

[37] The respondent failed to show that it had considered the applicants’ particular circumstances, namely that the proposed new flight schedule was not suitable, or that it had attempted to find an alternative. Rather, it stated that it was under no obligation to reroute the applicants. Although it is unclear whether suitable alternatives could have been offered to the applicants, Rule 21(2)(C)(ii) states that the carrier must provide passengers with a refund or credit where no reasonable transportation option is available.

[38] Moreover, the respondent deducted a penalty of CAD 600 from the cost of the tickets when it reimbursed the applicants.

[39] The Agency finds that the respondent failed to properly apply Rule 21(2)(C) of the Tariff. Consequently, under section 113.1 of the ATR, the applicants are entitled to compensation for the expenses that they incurred as a result of the respondent’s failure to properly apply the Tariff, namely the cost of replacement tickets with Air Canada.

[40] As the replacement tickets with Air Canada cost the applicants CAD 2,467.92 and as the respondent has already reimbursed them CAD 1,532.82, the respondent must pay the applicants CAD 935.10.

[41] As for the other remedies sought by the applicants, the expenses in question were incurred before the flight schedule was changed and are not a direct result of the respondent’s failure to properly apply the Tariff. Therefore, the Agency cannot order any compensation within the meaning of section 113.1 of the ATR.

CONCLUSION

[42] In light of the above, the Agency finds that the respondent failed to properly apply the terms and conditions of carriage set out in Rule 21(2)(C) of the Tariff by failing to consider the particular circumstances of the applicants’ situation, contrary to the requirements of subsection 110(4) of the ATR. Under section 113.1 of the ATR, the applicants are entitled to reimbursement for expenses incurred as a result of the respondent’s failure to apply the Tariff. The respondent is to pay the applicants an additional amount of CAD 935.10.

ORDER

[43] Pursuant to section 113.1 of the ATR, the Agency orders the respondent to compensate the applicants in the amount of CAD 935.10. The respondent is to pay this amount to the applicants as soon as possible and no later than October 19, 2020.

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APPENDIX TO DECISION NO. 89-C-A-2020

Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada (Except the United States) on the Other Hand,CTA(A) No. 4

RULE 21 – ADDITIONAL PASSENGER SERVICE COMMITMENTS

….

2. (C)(i) Given that passengers have a right to take the flight they paid for, if the passenger’s journey is impacted by a Schedule Irregularity, the Carrier will take into account all the circumstances of the case as known to it and will provide the passenger with the option of accepting one or more of the following remedial choices:

a) transportation to the passenger’s intended destination within a reasonable time at no additional cost;

b) return transportation to the passenger’s point of origin within a reasonable time at no additional cost;

c) where no reasonable transportation option is available and upon surrendering of the unused portion of the ticket, a cash amount or travel credit (at the passenger’s discretion) in an amount equal to the fare and charges paid will be refunded or provided as a credit where no portion of the ticket has been used. Where a portion of the ticket has been used, an amount equal to the lowest comparable one-way fare for the class of service paid for shall be refunded or provided as a credit in the event of a one-way booking/itinerary, and for round-trip, circle trip or open jaw bookings/itineraries, an amount equal to fifty percent of the roundtrip fare and charges for the class of service paid for, for the unused flight segment(s), shall be refunded or provided as a credit.

(ii) When determining the transportation service to be offered, the Carrier will consider:

(a) available transportation services, including services offered by interline, code sharing and other affiliated partners and, if necessary, other non-affiliated carriers;

(b) the circumstances of the passenger, as known to it, including any factors which impact upon the importance of timely arrival at destination.

(c) (iii) Having taken all the known circumstances into consideration, the Carrier will take all measures that can reasonably be required to avoid or mitigate the damages caused by a Schedule Irregularity. Where a passenger who accepts option (a) or option (b) or option (c) nevertheless incurs expense as a result of advancement Schedule Irregularity, the Carrier will in addition offer a cash payment or travel credit, the choice of which will be at the passenger’s discretion.
….