Decision No. 90-C-A-2023

[1] The applicants purchased tickets to travel with the respondent from Vancouver, British Columbia, to Cancun, Mexico, on January 5, 2020. Their flight, scheduled to depart at 10 am, was delayed twice and then cancelled. The applicants were rebooked on a flight that departed the following day and arrived in Cancun approximately 24 hours later than scheduled.

[2] The applicants seek compensation for inconvenience under the Air Passenger Protection Regulations (APPR) and general damages for lost vacation time. They also express dissatisfaction with the information and rebooking options provided in relation to the flight disruption.

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether the respondent properly applied the rules applicable to the tickets that the applicants purchased, as set out in the respondent’s Tariff, which incorporates the APPR.

[4] If the Agency finds that the respondent failed to properly apply its Tariff, it may direct the respondent to take the corrective measures that the Agency considers appropriate or to pay compensation for any expense incurred by a person adversely affected by the respondent’s failure.

[5] The Agency is not authorized to award general damages for complaints related to a carrier’s failure to apply its tariff; therefore, the Agency will not consider that aspect of the applicants’ claim.

Flight disruption

[6] Under the APPR, passengers are entitled to compensation for inconvenience if they arrive at their destination three or more hours later than scheduled due to a flight disruption within the carrier’s control.

[7] The applicants requested compensation for inconvenience from the respondent, but the respondent denied the applicants’ claim on the basis that the cancellation was within its control, but required for safety purposes. The applicants dispute this categorization because the food vouchers provided by the respondent indicate that the delay was controllable and do not mention a safety issue. The applicants also submit that the pilot apologized for the delay when they boarded their flight the next day and that he did not refer to any mechanical malfunction.

[8] The respondent submits that the applicants’ flight was initially delayed because the aircraft scheduled to operate it experienced a delay on its incoming flight, and that the flight was further delayed because the respondent detected a malfunction with the weather radar upon the aircraft’s arrival in Vancouver. The respondent claims that it grounded the aircraft for maintenance because this malfunction, in conjunction with thunderstorms forecast on the flight route to Cancun, affected the safe operation of the aircraft.

[9] The respondent submits that it then attempted to replace the assigned aircraft with one scheduled to arrive that evening from Greensboro, North Carolina, United States, but that the replacement aircraft was diverted and returned to Greensboro because of an issue with its rudder. The respondent submits that there was no other available aircraft permitted to land in Mexico and that, therefore, it cancelled the flight and rebooked the applicants on a flight the following day.

[10] The respondent claims that the malfunction with the weather radar was detected outside of scheduled maintenance and that the Minimum Equipment List requires the weather radar to be switched on during inclement weather. Therefore, the respondent argues that the cancellation was within its control, but required for safety purposes.

[11] When multiple disruptions affect an applicant’s itinerary, the Agency applies the approach set out in Decision 122-C-A-2021 (APPR Interpretive Decision) to determine the primary reason, or most significant contributing factor, of the overall delay.

[12] In this case, the Agency finds that the primary reason, or most significant contributing factor, of the overall delay was the grounding of the assigned aircraft for maintenance.

[13] The onus is on the applicant to establish, on a balance of probabilities, that the carrier failed to properly apply the rules applicable to their ticket. However, when a carrier claims that a disruption was within its control but required for safety purposes, it must establish that claim by providing evidence to support its categorization of the disruption given that the relevant information is in its possession.

[14] In this case, the applicants established that the flight was delayed, then cancelled and that the respondent did not substantiate to them that the delay was due to a mechanical malfunction. Consequently, the applicants provided the information to support their position that the cancellation was within the carrier’s control.

[15] The Agency finds that the respondent did not establish its claim that the cancellation was due to a situation within its control, but required for safety purposes.

[16] The flight information provided by the respondent includes coded remarks which appear to mention the weather radar, the weather in Cancun and the Minimum Equipment List. However, the flight information does not substantiate that there was a mechanical malfunction with the weather radar on the aircraft, that the weather conditions along the flight route were adverse, or that those issues affected the safe operation of the aircraft. The respondent did not file mechanical reports, statements from the flight crew or maintenance personnel, weather reports or advisories or other documents as corroborating evidence of those allegations.

[17] Nor did the respondent provide evidence such as maintenance records, pre-departure reports or statements from the flight crew or maintenance personnel showing that the weather radar was in good order prior to the incoming flight in support of its claim that the malfunction with the weather radar was unforeseeable and could not have been proactively detected or controlled.

[18] The respondent mainly relies on materials created during the Agency’s inquiry into complaints from air passengers alleging that carriers were not accurately communicating the reasons for flight delays or cancellations (Inquiry). The respondent argues that the Inquiry Officer’s materials support its position that the flight was cancelled due to a combination of uncontrollable and safety-related events.

[19] However, the Inquiry Officer’s materials do not constitute evidence demonstrating the alleged mechanical malfunction with the weather radar which affected the safe operation of the aircraft and, therefore, do not establish the respondent’s claim, in this proceeding, that the cancellation was within its control, but required for safety purposes. As set out in Decision LET-C-A-72-2020, the Inquiry Officer’s report is the result of a fact-finding exercise which the Agency used to identify questions where interpretation was needed. The Agency did not adopt the Inquiry Officer’s report as a decision or order of the Agency in the context of the individual applications. The Agency established a process to disclose to the parties of each application the materials gathered by the Inquiry Officer in respect of the individual flights.

[20] In light of the above, the Agency finds that the delay to the applicants’ flight was within the respondent’s control and, therefore, that the applicants are each entitled under the APPR to compensation for inconvenience in the amount of CAD 1,000.

Alternate travel arrangements

[21] Under the APPR, the carrier must provide alternate travel arrangements for passengers delayed by three or more hours due to a flight disruption within its control. The applicants are dissatisfied that they were rebooked only once their flight was cancelled, but do not claim expenses incurred as a result of the timing of the rebooking. Therefore, no remedy is available to the applicants in this regard.

Communications

[22] The parties agree that there were multiple issues with the respondent’s communications about the flight disruption. Since the incident, the Agency has clarified, in the APPR Interpretive Decision, the regulatory requirements for carriers to provide clear, timely and accurate communications.

[23] The applicants do not claim expenses as a result of the respondent’s failure to properly communicate; therefore, no remedy is available to the applicants.

Applying the Decision to other passengers

[24] As this application relates to a flight cancellation, the Agency has the authority under the Air Transportation Regulations to apply all or part of its decision concerning the respondent’s obligations under the APPR to other passengers on the same flight, to the extent that it considers appropriate.

[25] The respondent and the applicants both had an opportunity to file submissions on this issue; however, neither party chose to do so. Based on the evidence and the Agency’s decision in this case, the Agency finds that the other passengers on Flight AC1738 also experienced a flight disruption that was within the respondent’s control.

[26] Prior to this decision, the respondent categorized the cancellation of this flight as being within its control, but required for safety. Consequently, the respondent may have denied claims filed by other passengers on the flight that should have been compensated.

[27] In light of the above, the Agency finds that other passengers on the same flight who previously filed a claim within the deadlines prescribed under the APPR and the Tariff may also be eligible for compensation.

Order

[28] The Agency orders the respondent to do the following by July 18, 2023:

• Compensate each of the applicants in the amount of CAD 1,000, for a total of CAD 5,000;
• Inform all passengers who purchased a ticket on Flight AC1738 scheduled for January 5, 2020, and who filed a claim with the respondent seeking any of the following:
  • compensation for inconvenience,
  • compensation for expenses incurred in connection with the flight disruption, or
  • a refund

that the Agency has determined that the cause of the flight disruption was within the respondent’s control and that their claim will be re-determined by the respondent in accordance with this decision;

• Provide each such passenger with a copy of this decision;
• Re-determine each such passenger’s claim in accordance with the Agency’s finding in this decision that the flight disruption was within the respondent’s control; and
• File the following with the Agency:
  • A copy of the communication with each passenger who filed a claim in respect of this flight, informing them of this decision;
  • A copy of the re-determination made in respect of their claim specifying the amount(s) paid to each passenger, as the case may    be, or the reason why the claim was denied in whole or in part.

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Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Air Transportation Regulations, SOR/88-58	110(4); 113.1(1); 113.1(3)
Air Passenger Protection Regulations, SOR/2019-150	12(2); 12(3); 13; 17(1)(a); 19(1)(a)(iii)
International Tariff General Rules Applicable To The Transportation Of Passengers And Baggage	80(B)(1)