Decision No. 91-C-A-2020

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against the respondents regarding the four-day delay that the applicant experienced after WestJet did not permit them to board their flight from Edmonton, Alberta, to Bordeaux, France, on March 3, 2019.

[2] The applicant seeks CAD 768 and EUR 150 in compensation for the expenses that they incurred during their delay.

[3] The Agency will address the following issues:

• Is Air France liable for the applicant’s expenses arising from the delay?
• Did WestJet properly apply the terms and conditions set out in its International/Transborder Passenger Fares and Rules Tariff No. WS-1 Containing Local and Joint Rules, Fares and Charges on Behalf of WestJet Airlines, Ltd Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points in Area 1/2 and Between Points in the US and Points in Canada, NTA(A) No. 518 (Tariff), as required by subsection 110(4) of the ATR?
• If WestJet 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 Air France is not liable for the applicant’s expenses arising from the delay and, therefore, dismisses the application against Air France.

[5] The Agency further finds that WestJet did not properly apply the terms and conditions set out in Rule 55(A) of its Tariff. Therefore, the Agency orders WestJet to compensate the applicant in the amount of CAD 488. WestJet is to pay this amount to the applicant as soon as possible and no later than November 3, 2020.

[6] The Agency also orders WestJet to compensate the applicant in the amount of EUR 150 (or its equivalent in CAD), as well as to compensate them for the applicable taxes, upon submission by the applicant to WestJet, with a copy to the Agency, of a receipt or an invoice for the animal care expense of EUR 150 (or its equivalent in CAD) and the applicable taxes, or a credit card statement showing that the applicant incurred the expense. The Agency further orders WestJet to advise it once that compensation has been tendered. The applicant is to provide the specified supporting evidence to WestJet, with a copy to the Agency, as soon as possible and no later than November 3, 2020. Upon receipt of this evidence, WestJet is to pay this amount to the applicant as soon as possible and no later than 30 business days after its receipt.

BACKGROUND

[7] The applicant purchased, from Air France, a round-trip interline ticket to travel as follows:

• November 30, 2018: from Bordeaux to Vancouver, British Columbia, via Paris, France, with Air France; from Vancouver to Edmonton with WestJet; and
• March 3, 2019: from Edmonton to Vancouver with WestJet; from Vancouver to Bordeaux, via Paris, with Air France.

[8] The booking was made under the name “Carol Callaway”, although the applicant’s passport specified their name as “Carol-Ann Callaway”. The booking also included the transportation of a dog, which was to be carried in the aircraft’s cargo hold.

[9] On November 30, 2018, the applicant successfully completed the outbound portion of their itinerary from Bordeaux to Edmonton. The applicant did so despite the discrepancy between the name provided at booking and the name on their passport. The dog was also transported through to Edmonton, having been successfully transferred from Air France to WestJet.

[10] On March 3, 2019, when the applicant attempted to begin the return portion of their itinerary, WestJet representatives discovered that more than one Passenger Name Record (PNR) existed for them. After creating a new PNR, WestJet could not add the dog to the applicant’s booking and, on this ground, did not permit the applicant to board the aircraft. The applicant was reprotected to travel with Koninklijke Luchtvaart Maatschappij, N.V. (K.L.M. Royal Dutch Airlines) (KLM) from Edmonton to Bordeaux, via Amsterdam, Netherlands, on March 7, 2019.

THE LAW AND RELEVANT TARIFF PROVISIONS

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

[12] 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 direct the 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 set out in the tariff.

[13] Rule 55(A) of WestJet’s Tariff, which pertains to the limitation of liability, incorporates the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention).

[14] Article 19 of the Montreal Convention, with regard to delay, 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.

[15] Article 22(1) of the Montreal Convention sets out the limits of liability in relation to delay as follows:

In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4 694 Special Drawing Rights.

[16] Articles 36(1) and (2) of the Montreal Convention, relating to successive carriage, provide:

(1) In the case of carriage to be performed by various successive carriers and falling within the definition set out in paragraph 3 of Article 1, each carrier which accepts passengers, baggage or cargo is subject to the rules set out in this Convention and is deemed to be one of the parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under its supervision.

(2) In the case of carriage of this nature, the passenger or any person entitled to compensation in respect of him or her can take action only against the carrier which performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.

POSITIONS OF THE PARTIES

The applicant

[17] The applicant submits that during the outbound portion of their itinerary in Vancouver, WestJet advised them that the time that they would have in Vancouver to transfer from the WestJet flight to the Air France flight on their return journey would be short and that they should check if it would be sufficient. Following the applicant’s arrival in Edmonton, they claim to have made the following inquiries:

• The applicant called Air France and was told that they would need to recheck their checked baggage and their dog in Vancouver, and that they would probably have enough time to do so.
• On an unrelated trip to Vancouver on February 21, 2019, the applicant inquired at a WestJet desk at the Vancouver International Airport, and was told that their checked baggage and their dog would be checked through to their final destination and that neither would have to be rechecked in Vancouver.
• The applicant called WestJet on March 2, 2019, the day before their scheduled return flight, and was told that they would need to recheck their checked baggage and their dog in Vancouver, and that they would have enough time to do so.

[18] The applicant claims that they checked in their dog with WestJet at the Edmonton International Airport (Edmonton airport), and that prior to boarding, WestJet representatives advised them that a hyphen needed to be added to the name on their ticket so that it matched the name on their passport. WestJet then advised the applicant that they could not depart on this flight because Air France had wrongly issued the ticket and that WestJet did not have the authority to reserve their dog on the flight.

[19] The applicant contends that they then immediately approached KLM and were able to obtain a ticket for an itinerary with KLM departing four days later, on March 7, 2019.

[20] The applicant seeks the following compensation:

• Accommodation at a private residence for four nights at CAD 120 per night: CAD 480;
• Meals for four days at CAD 50 per day: CAD 200;
• Transportation by automobile from the Edmonton airport to a private residence and back to the airport: CAD 88; and
• Animal care at the Amsterdam Airport Schiphol (Schiphol airport): EUR 150.

[21] The applicant also indicates that after they complained to WestJet on March 6, 2019, it provided them with 100 WestJet dollars as a goodwill gesture.

WestJet

[22] WestJet submits that it advised the applicant during the outbound portion of their itinerary in Vancouver that there may be issues during their return itinerary and that they should confirm the details beforehand. WestJet does not address the applicant’s alleged interaction with its staff on February 21, 2019, but it agrees with the applicant that on March 2, 2019, the day before the scheduled return flight, the applicant called WestJet and was advised that they would need to recheck their checked baggage and their dog in Vancouver.

[23] WestJet indicates that it conferred with Air France when the applicant reached Vancouver during their outbound itinerary, and confirmed that there was no agreement between it and Air France to allow animals to be transferred from one carrier to the other. In this case, however, WestJet states that it decided to accept the dog because the applicant was mid-journey.

[24] WestJet submits that, at the gate prior to boarding on March 3, 2019, a WestJet customer service agent noticed that the applicant’s name on their boarding pass did not match that shown on their passport. WestJet claims that it performed a name correction and had to create a new PNR because it discovered that there were multiple PNRs for this passenger. The evidence filed indicates that WestJet was able to print a new boarding pass showing the name “CALLAWAY/CAROL ANN”.

[25] WestJet asserts that, following the name correction process, it was unable to add the applicant’s dog to the booking. Consequently, WestJet removed the applicant from the flight and advised them that they were not permitted to board it. WestJet states that it also removed the applicant’s dog from the cargo hold of the aircraft. WestJet argues that the dog should never have been added to the booking by Air France.

[26] WestJet claims that it then reprotected the applicant on a new itinerary with KLM departing four days later, on March 7, 2019, to ensure that there would be no issues transporting the applicant’s dog.

Air France

[27] Air France confirms the applicant’s claim that they spoke with Air France, and that they were told that they would need to recheck their checked baggage and their dog in Vancouver on their return itinerary.

[28] Air France confirms WestJet’s assertion that there was no agreement between the two carriers regarding the transfer of animals.

[29] Air France indicates that the applicant travelled on the outbound portion of their itinerary without issue, and it argues that the decision not to allow the applicant to board their flight in Edmonton was WestJet’s alone.

ANALYSIS AND DETERMINATIONS

[30] The onus is on the applicant 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.

Is Air France liable for the applicant’s expenses arising from the delay?

[31] The applicant’s itinerary receipt indicates that their itinerary involved successive carriage where, during their return trip from Edmonton to Bordeaux, WestJet was the carrier operating the first segment of the itinerary and Air France was the carrier operating the last two segments of the itinerary.

[32] Article 36(2) of the Montreal Convention provides that, in cases of successive carriage:

… the passenger or any person entitled to compensation in respect of him or her can take action only against the carrier which performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.

[33] Consequently, as the applicant’s delay occurred during the portion of the carriage performed by WestJet, the Agency finds that Air France is not liable for the applicant’s expenses arising from the delay.

[34] Therefore, the Agency dismisses the application against Air France.

Did WestJet properly apply the terms and conditions set out in its Tariff, as required by subsection 110(4) of the ATR? If WestJet did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, should be ordered?

[35] In Decision No. 144-A-2014 (Interline Baggage Rules), the Agency noted that its “approach to interline baggage rules is guided by two fundamental principles”, one of which includes that “passengers should have a seamless travel experience throughout their interline itinerary issued on a single ticket”. The applicant would have had a seamless travel experience had they been able to check in their dog as required and board their flight from Edmonton to Vancouver without issue.

[36] WestJet does not offer an explanation as to why it was unable to add the applicant’s dog to the booking after it had created a new PNR for the applicant. If there were technical barriers to the modification of a booking originally created by another carrier, such as Air France, no evidence was submitted showing that WestJet attempted to contact Air France to have the applicant’s booking modified so that the applicant would not miss their flight. There is nothing on the record to indicate that WestJet took “all measures that could reasonably be required to avoid the damage” to the applicant. In the absence of such evidence, the Agency finds that WestJet did not take all such measures, and that, consequently, WestJet is liable for the expenses incurred by the applicant as a result of the delay.

[37] The applicant seeks compensation for several expenses that they incurred without submitting receipts as corroboration. As the Agency stated in Decision No. 308-C-A-2010 (MacGillivray v Cubana de Aviación S.A.):

The Agency is of the opinion that a party, in endeavoring to prove a fact, must do so by presenting the best evidence available in light of the nature and circumstances of the case. While the production of original receipts of purchase will generally adequately support proof of loss, circumstances may render it unreasonable to require this form of proof. In these situations, it may be unreasonable to expect that such proof is in an applicant’s possession. 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. Furthermore, the Agency notes that Article 22(2) of the Montreal Convention does not require proof of loss in the form of receipts of purchase.

[38] However, the Agency has also found that under certain circumstances, the lack of receipts or other forms of evidence can justify the rejection of expense claims. In Decision No. 8-C-A-2019 (Satheeswaran et al v Qatar Airways and American Airlines), a claim for hotel expenses was rejected because no receipts were filed.

[39] Article 22(1) of the Montreal Convention limits the liability of carriers in the case of damage caused by delay in the carriage of persons to 4,694 Special Drawing Rights, which is equivalent to approximately CAD 8,703.15.

[40] The Agency finds that the applicant’s claim of CAD 200 for meals for four days is a reasonable amount. The Agency also finds that the applicant’s claim of CAD 88 for transportation by automobile from the Edmonton airport to a private residence and back to the airport is a reasonable amount in this circumstance. Regarding the applicant’s claim relating to their accommodation at a private residence for four nights, the Agency finds that CAD 50 per night, totalling CAD 200, is a reasonable amount.

[41] The applicant also seeks compensation for an expense of EUR 150 in relation to animal care at the Schiphol airport. While the applicant’s KLM boarding pass shows that they transited through Schiphol airport, no evidence was submitted to support their claim for compensation for this expense. In the absence of any such evidence, the Agency finds that the applicant should be compensated for this amount, as well as for the applicable taxes, if the applicant is able to provide to WestJet, with a copy to the Agency, a receipt or an invoice for the animal care expense or a credit card statement showing that the applicant incurred the expense.

[42] In light of the above, the Agency finds that, by failing to reimburse the applicant for the expenses that they incurred due to the delay, WestJet did not properly apply the terms and conditions of carriage set out in Rule 55(A) of its Tariff and, therefore, contravened subsection 110(4) of the ATR.

CONCLUSION

[43] The Agency dismisses the application against Air France.

ORDER

[44] Pursuant to section 113.1 of the ATR, the Agency orders WestJet to compensate the applicant in the amount of CAD 488. WestJet is to pay this amount to the applicant as soon as possible and no later than November 3, 2020.

[45] Also pursuant to section 113.1 of the ATR, the Agency orders WestJet to compensate the applicant in the amount of EUR 150 (or its equivalent in CAD), as well as to compensate them for the applicable taxes, upon submission by the applicant to WestJet, with a copy to the Agency, of a receipt or an invoice for the animal care expense of EUR 150 (or its equivalent in CAD) and the applicable taxes, or a credit card statement showing that the applicant incurred the expense. The Agency further orders WestJet to advise it once that compensation has been tendered. The applicant is to provide the specified supporting evidence to WestJet, with a copy to the Agency, as soon as possible and no later than November 3, 2020. Upon receipt of this evidence, WestJet is to pay this amount to the applicant as soon as possible and no later than 30 business days after its receipt.