Decision No. 91-C-A-2021

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent regarding its refusal to transport their minor child from Mexico City, Mexico, to Halifax, Nova Scotia, on August 29, 2019, because their child did not have a valid Canadian passport. The applicants claim that the respondent provided false information on how to acquire the proper travel documentation for their child, which resulted in the parents not being able to travel.

[2] The applicants seek compensation for the out-of-pocket expenses allegedly caused by the respondent’s negligence. While the exact amount claimed is unclear, it includes the baggage fees for a total of CAD 71.26 and the electronic travel authorization (eTA) application fee of CAD 7.00.

[3] The Agency will address the following issue:

Did the respondent properly apply the terms and conditions set out in its International Passengers Rules and Fares Tariff Containing Local and Joint Rules, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Point in the United States/Canada/and Points in Areas 1/2/3 and Between US and Canada, NTA (A) No. 458 (Tariff) with respect to refusal to transport, as required by subsection 110(4) of the ATR? If the respondent did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to the applicants?

[4] For the reasons set out below, the Agency finds that the respondent properly applied the terms and conditions set out in the refusal to transport provisions of its Tariff, but did not properly apply the refund provisions of its Tariff, as it relates to the baggage fees. Therefore, pursuant to section 113.1 of the ATR the Agency orders the respondent to compensate the applicants in the amount of CAD 71.26 for the baggage fees. The respondent is to pay this amount to the applicants as soon as possible and no later than September 17, 2021. 

BACKGROUND

[5] The applicants held round-trip tickets to travel from Halifax to Mexico City via Toronto, Ontario, scheduled to depart on May 1, 2019, and return on July 9, 2019. While in Mexico, the applicants extended their stay and changed their return flight to August 29, 2019. They were charged a total change fee of CAD 275.00 and total baggage fees of CAD 71.26 for their return flight.

[6] On August 29, 2019, the date that the applicants were scheduled to travel on their return flight, the child’s Canadian passport was expired, resulting in the child being refused transportation. The applicants did not board their return flight and stayed in Mexico to obtain the required travel documentation and rebooked a flight on September 4, 2019. As it was high season seating was limited, the applicants decided to upgrade to business class instead of waiting for the next available seats in economy, and were charged the difference for the upgrade for a total of CAD 2,292.00.

PRELIMINARY MATTER

[7] The applicants filed two replies to the respondent’s answer within the prescribed five business days from the receipt of the answer. The second reply included 7 questions for the respondent. Pursuant to subsection 24(1) of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Rules), a party may, by notice, request that any party respond to questions that relate to the matter in dispute or produce documents that relate to the matter in dispute before the close of pleadings. The questions included in the applicants’ reply do not meet the requirements of subsection 24(1) of the Rules as it did not include all the information required as per Schedule 11 of the Rules. The respondent did not file a response to the questions and claims that most of the questions have already been addressed in its answer, and answers to these questions add no value to the Agency’s finding. In the circumstances there is no basis upon which to require that the respondent answer the questions raised in the applicants’ reply.

[8] Pleadings closed on May 26, 2021, when the applicants filed their reply. The applicants submitted additional information and questions following the closing of pleadings without requesting an extension of time to file a document after the end of the applicable time limit, as required by sections 12 and 34 of the Rules. A review of the additional information and questions reveals that the information is either not relevant or could have been filed during the pleadings process. The applicants do not explain why the information should be accepted after the close of pleadings, nor why they were unable to file it earlier. The information, even if accepted, would not alter the fundamental facts of the case. As such, the Agency will not consider the additional submissions filed after the close of pleadings.

THE LAW AND RELEVANT TARIFF PROVISIONS

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

[10] If the Agency finds that an air carrier has failed to properly apply its tariff, subsection 113.1(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 that are applicable to the service it offers and that were set out in the tariff.

[11] The relevant provisions of the Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicants

[12] The applicants admit that they discovered that the child’s Canadian passport was expired when presented at the check-in counter for their return flight. The applicants state that the respondent’s employees misinformed them that the child could enter Canada with a Mexican passport and an eTA if they used their Mexican address to complete the forms. The applicants provided evidence of a hand-written note claiming that the respondent’s employee wrote down the website and the CAD 7.00 cost to apply for the eTA. The applicants also claim that they were told that they could get the eTA in time to board the flight.

[13] The applicants acknowledge that dual national citizens require a Canadian passport to enter Canada. Mr. Vokey states that as a Canadian citizen, the child is not eligible for an eTA and that the only way the child could travel into Canada is with a Canadian passport.

[14] Mr. Vokey claims that he found out his father was terminally ill on August 28, 2019, and had to return to Canada as soon as possible to see him. He argues that had the respondent’s employees not told them this false information related to the eTA that he and his wife could have travelled to Halifax and left the child with family in Mexico City. The applicants accuse the respondent’s employees of negligence and believe that its staff should be aware of the regulations and should not share false information.

[15] According to Mr. Vokey, by the time he realized that the information he was provided was false, he told the respondent’s employee that he wanted to take the flight. He claims that they were then informed that the gate was already closed; however, Mr. Vokey argues that the flight was delayed departing Mexico City.

[16] As a result of the refusal to transport, the applicants state that they were delayed in Mexico for almost a week and they claim that they were forced to purchase three full‑fare business class tickets in order to return to Canada as quickly as possible. The applicants are prepared to assume the cost of the upgraded business class tickets.

[17] Mr. Vokey submits that he travelled to St. John’s, Newfoundland and Labrador, the day after arriving in Halifax, on a bereavement ticket, to see his father, who was terminally ill.

The respondent

[18] The respondent states that the applicants attempted to check in at the counter upon arrival at the airport and discovered that the child’s Canadian passport had expired two months prior to their scheduled return to Canada.

[19] The respondent states that dual Canadian citizens require a valid Canadian passport to board a flight to, or transit through, Canada by air. It states that the child could not enter Canada with an expired Canadian passport. Furthermore, it states that there is an exception where a dual Canadian citizen travelling to Canada without a valid Canadian passport can apply for a special authorization that, if approved, will allow the passenger to board the flight with a valid non-Canadian passport. Alternatively, passengers must seek Canadian Consular assistance.

[20] The respondent claims that its staff, in good faith, attempted to provide good customer service and assist the applicants in finding a solution, and allegedly suggested that the applicants attempt to apply for an eTA for the child to travel to Canada on their Mexican passport. The respondent acknowledges that the child was not eligible for an eTA, as Canadian citizens, including dual citizens, require a valid Canadian Passport to travel to Canada, but that special authorization existed for the child as they held a valid Mexican passport at the time of travel that is exempt from visa requirements.

[21] The respondent states that since the applicants were not able to obtain valid travel documentation for the child prior to the check-in cut-off, the child was refused transportation and the parents opted not to travel on August 29, 2019.

[22] The respondent submits that the applicants wanted to rebook as soon as possible, but due to high season and Labour Day weekend, not enough seats in economy class were available between August 29, 2019, and September 4, 2019. It states that instead of waiting for the next available flight with space in economy class, the applicants chose to upgrade their tickets to business class in order to travel to Halifax on September 4, 2019, on a flight that was operated at full capacity.

[23] The respondent argues that one parent could have checked in, leaving the other parent to sort out the passport issues with the child. Furthermore, it argues that the applicants could have waited to travel on a later date with available space in economy class, as opposed to travelling in business class.

[24] The respondent argues that Rule 65 of its Tariff clearly states that it is the passenger’s responsibility to have all the required travel documentation in compliance with a country’s entry requirements. It claims that it properly applied its Tariff when it refused the child transportation for not having a valid Canadian passport and contends that it is not liable for any information provided to the applicant from its employees related to obtaining the necessary travel documents. The respondent argues that this is standard practice in the industry and it is not its responsibility to inform the passengers of the travel requirements. Furthermore, the carrier states that it is not liable for any damages sought as it relates to the refusal to transport due to the applicants not having the required documentation to enter Canada. It argues that it properly applied Rules 65 and 75 of its Tariff and that the application should be dismissed.

[25] The respondent admits that the applicants are entitled to a refund of the baggage fees charged on August 29, 2019, as they did not travel on their flight.

FINDINGS OF FACTS

Expired passport

[26] It is undisputed that the child’s Canadian passport expired on June 5, 2019. The Agency accepts that the child did not present a travel document that met the requirements to enter Canada which were in force on August 29, 2019.

Rebooked tickets

[27] The parties agree that the applicants rebooked business class tickets on September 4, 2019, to travel to Canada and were charged the applicable fare differences for upgrade from economy class to business class. 

Baggage fees

[28] In regard to a refund, since the applicants did not travel on August 29, 2019, the respondent acknowledges that the applicants should not have been charged the baggage fees and are entitled to a refund of the baggage fees for a total of USD 52.64. Based on the evidence provided by the applicants, they were charged a total of CAD 71.26 for the baggage fees.

ANALYSIS AND DETERMINATIONS

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

Denied Boarding

[30] The applicants claim that they were denied boarding as they believe the flight was oversold and that their seats were sold to other passengers. The respondent submits that the applicants were not denied boarding as the flight was not overbooked and operated with 3 empty seats, as shown in the Netline Report submitted by the respondent. Furthermore, they argue that the applicants’ seats were not given away.

[31] Rule 90(A) of the Tariff states that denied boarding occurs when a passenger is not permitted to occupy a seat on board a flight because the number of seats that may be occupied on the flight is less than the number of passengers who have a confirmed reservation.

[32] The Agency finds that, based on the evidence, the flight left with empty seats and therefore the applicants could not have been denied boarding as this is a condition of denied boarding in the Tariff. The evidence establishes that the reason that the applicants did not board the flight was due to the fact that the child’s passport had expired and therefore could not travel, and that the parents first chose to stay behind with their child to sort out the issue and so that they could travel together as a family. The Agency instead finds that this is a case of refusal to transport.

Refusal to transport – administrative formalities

[33] Under Rule 65(B)(1) of the Tariff, each passenger who wishes to travel across any international boundary is responsible for obtaining all necessary travel documents and for complying with all government travel requirements. The same rule sets out that the carrier can refuse to transport passengers who do not have the necessary documents. Furthermore, the rule states that the carrier is not liable for any aid or information given by an employee to the passenger orally, in writing or otherwise. Moreover, the carrier is not liable for loss or expenses resulting from the passenger’s failure to comply with this provision.

[34] Rules 75(I)(D)(1) and 75(I)(D)(3) of the Tariff state that the carrier will refuse to transport a passenger when the passenger is to travel across any international boundary and does not have their travel documents in order and fails to comply with the requirements of Rule 65.

[35] The Agency finds that the respondent properly applied the terms and conditions set out in Rules 65(B)(1), 75(I)(D)(1) and 75(I)(D)(3) of the Tariff when it refused the child transportation for not having the necessary travel documents. Furthermore, even if one were to accept that the respondent’s staff provided incorrect information regarding the availability of an eTA, the respondent cannot be held liable, pursuant to Rule 65(B)(1) of its Tariff, for information given by an employee to a passenger. Moreover, if they were provided with incorrect information, it does not appear that the applicants were prejudiced as a result. Their inability to travel on that day is a result of the fact that the child’s passport had expired and that they tried to resolve that situation to travel as a family.

Refusal to transport – check-in and boarding time limits

[36] It is reasonable that when a child is refused transportation for not having the necessary travel documents that the parent(s) would stay with the child to resolve the issue. Mr. Vokey decided to first try to obtain an eTA for his child. When he inquired about boarding the flight, without his child, he submitted that he was told that the flight was closed.

[37] Rule 70(A)(2) of the Tariff states that for international flights, passengers must check in 60 minutes prior to their scheduled departure. Pursuant to Rule 70(C) of the Tariff, the carrier is not liable for loss or expenses due to the passenger’s failure to meet the time limits and the carrier shall provide a general refund as per Rule 100 of the Tariff. Moreover, Rule 75(I)(D)(4) of the Tariff states that the carrier will refuse to transport a passenger if they fail to comply with the rules and regulations of the carrier, including check-in or boarding times.

[38] The Agency finds that the respondent properly applied Rules 70(A)(2), 70(C) and 75(I)(D)(4) of the Tariff when it refused to transport Mr. Vokey when he had not checked in on time and was attempting to acquire the necessary travel documents for his child to enter Canada, at the check-in counter.

Refund

[39] Rule 75(III) of the Tariff provides that the carrier will refund the passengers the value of the unused portion of the passenger’s ticket as per the general refund section of Rule 100 of the Tariff, when refused transportation. Rule 100(E)(2)(b) of the Tariff states that when the ticket is fully unused, the amount of the refund will be the fare, fees, charges and surcharges paid less any applicable cancellation/charge fee or penalty set out in the applicable fare rules.

[40] Pursuant to Rule 100(E)(2)(b), the applicants are entitled to a refund of the baggage fees given that they were fees paid for their fully unused tickets on August 29, 2019.

[41] The Agency finds that the respondent properly applied Rules 75(III) and 100(E)(2)(b) when it charged the applicants the applicable fare difference for their upgraded replacement tickets from economy class to business class. However, the Agency finds that the respondent did not properly apply those rules when it did not refund the applicants the baggage fees for their fully unused tickets on August 29, 2019.

CONCLUSION

[42] In light of the above, the Agency finds that the respondent properly applied the terms and conditions set out in the refusal to transport provisions of its Tariff, but did not properly apply the refund provisions of its Tariff, as it relates to the baggage fees. Therefore, the Agency orders the respondent to refund the applicants the baggage fees.

ORDER

[43] Pursuant to section 113.1 of the ATR, the Agency orders the respondent to compensate the applicants in the amount of CAD 71.26 for the baggage fees. The respondent is to pay this amount to the applicants as soon as possible and no later than September 17, 2021.

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APPENDIX TO DECISION NO. 91-C-A-2021

International Passengers Rules and Fares Tariff Containing Local and Joint Rules, Fares and Charges on behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Point in the United States/Canada/and Points in Areas 1/2/3 and between US and Canada, NTA (A) No. 458

65  ADMINISTRATIVE FORMALITIES – PASSPORTS, VISAS AND TOURIST CARDS

(B) PASSPORTS AND VISAS

(1) Each Passenger desiring transportation across any international boundary will be responsible for obtaining all necessary travel documents and for complying with all government travel requirements. The passenger must present all exit, entry and other documents required by the laws, and unless applicable laws provide otherwise, shall indemnify the carrier for any loss, damage, or expense suffered or incurred by such carrier by reason of such passenger’s failure to do so. Carrier is not liable to the passenger for loss or expense due to the passenger’s failure to comply with this provision. Carrier reserves the right to refuse carriage to any passenger who has not complied with applicable laws, regulations, orders, demands or requirements or whose documents are not complete. No carrier shall be liable for any aid or information given by any agent or employee of such carrier to any passenger in connection with obtaining such documents or complying with such laws, whether given orally or in writing or otherwise. In addition, carrier reserves the right to hold, photocopy or otherwise image reproduce a travel document presented by any passenger and accepted as a condition of boarding.

70  CHECK-IN AND BOARDING TIME LIMITS

(A) CHECK-IN

          …

(2) Time Limit
For international flights, passengers much check-in with his/her baggage, if any, at least 60 minutes…prior to schedule departure time.

(C) If passenger fails to meet any of these requirements, the carrier may reassign prereserved seat and/or cancel the reservation of such passenger(s) who arrives past the aforementioned time limits. Carrier is not liable to the passenger for loss or expense due to failure by a passenger to comply with this rule. Carrier’s liability shall be limited to providing a general refund, per rule 100.

75 REFUSAL TO TRANSPORT

I.     REFUSAL TO TRANSPORT – REMOVAL OF PASSENGER

Carrier will refuse to transport, or will remove any passenger at any point for any of the following reasons:

…

(D) IMMIGRATION, ADMINISTRATIVE OR OTHER REQUIREMENTS

When the passenger is to travel across any international boundary, if:

(1) The travel documents of such passenger is not in order;

….

(3) Passenger fails to comply with the requirements of Rule 65 (Administrative Formalities)

(4) Such passenger fails or refuses to comply with this rules and regulations of the carrier, including check-in or boarding time-limits.

III.    RECOURSE OF THE PASSENGER/LIMITATION OF LIABILITY

Carrier’s liability in case of refusal to carry a passenger for a specific flight or   removal of a passenger en route for any reason specified in the foregoing paragraphs or in Rule 40 or 75 shall be limited to the recovery of the refund value of the unused portion of passenger’s ticket from the carrier so refusing or removing, if any and subject to applicable fare rules, as provided in the General Refund section of rule 100 (Refunds).

90 DENIED BOARDING

(A)   DEFINITION OF DENIED BOARDING

A passenger is denied boarding when the number of seats that may be occupied on a flight is less than the number of passengers who hold confirmed reservations, have valid travel documentation, and have checked in by the required time and presented themselves at the boarding gate by the required time as per Rule 70 ‑ CHECK-IN AND BOARDING TIME LIMITS.

100 REFUND

(E) GENERAL REFUNDS

(1)   The term “General Refund” (sometimes referred to as “Voluntary Refund”) for the purposes of this paragraph, shall mean any refund of a ticket or portion thereof other than Carrier-Caused refund as defined above, which includes but not limited to circumstances that are not within the airline’s control, such as situations described in rule 70 (check-in and Boarding Time Limits), rule 75 (refusal to Transport), passenger chooses to no longer travel, and schedule irregularities outside carrier’s control.

(2)   Amount of general refund

….

(b) When ticket is fully unused, the amount of refund will be the fare, fees, charges and surcharges paid less any applicable cancellation/change fee or penalty set out in the applicable fare rules.
….