Decision No. 92-C-A-2021

SUMMARY

[1] Jose Herrera filed an application with the Canadian Transportation Agency (Agency) against AeroMexico and WestJet concerning WestJet’s refusal to transport him from Calgary, Alberta, to Hermosillo, Mexico, on the basis that he did not hold a confirmed reservation in WestJet’s reservation system.

[2] Mr. Herrera purchased his tickets, marketed by AeroMexico, from Expedia. AeroMexico did not properly enter Mr. Herrera’s reservations in WestJet’s reservation system; as a result, WestJet refused to transport him. WestJet attempted to assist Mr. Herrera by offering him alternate transportation, which he declined. Mr. Herrera seeks compensation for his prepaid, non-refundable apartment rental in Hermosillo in the amount of CAD 843.42.

[3] The Agency will address the following issue:

Did WestJet properly apply the terms and conditions set out in AeroMexico’s International Passenger Rules and Fares Tariff No. AMRF-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Aerovias de Mexico, S.A. de C.V. (AeroMexico) Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points in Areas 1/2, NTA(A) No. 421 (Tariff), regarding refusal to transport, as required by subsection 110(4) of the ATR? If WestJet did not properly apply the terms and conditions set out in the Tariff, what remedy, if any, should be ordered?

[4] For the reasons set out below, the Agency finds that WestJet failed to properly apply the terms and conditions set out in Rule 25(A) of the Tariff when it refused to transport Mr. Herrera. As no expenses were incurred as a result of WestJet’s failure to properly apply the terms and conditions set out in the Tariff, the Agency makes no order.

BACKGROUND

[5] Mr. Herrera purchased code-share, round-trip tickets marketed by AeroMexico on July 16, 2019, from Expedia, to travel from Calgary to Hermosillo, via Las Vegas, Nevada, and Mexico City, Mexico, on December 20, 2019, and returning on January 5, 2020, via Mexico City and Las Vegas. WestJet operated two segments of the code-share flights: the outbound flight from Calgary to Las Vegas and the return flight from Las Vegas to Calgary.

[6] On July 26, 2019, Expedia changed Mr. Herrera’s outbound itinerary to travel from Calgary to Hermosillo, via Toronto, Ontario and Mexico City. WestJet operated the segment from Calgary to Toronto, Flight No. WS0668, marketed as Flight No. AM7262, in this new outbound itinerary.

[7] Although Mr. Herrera’s outbound itinerary was changed, AeroMexico did not cancel his reservation for Flight No. WS1424 from Calgary to Las Vegas. When he did not board this flight the morning of December 20, 2019, he was considered a “no-show” and the remaining segments on his itinerary were cancelled.

[8] AeroMexico also did not enter Mr. Herrera’s reservation on Flight No. WS0668 into WestJet’s reservation system and there were no available seats on that flight when Mr. Herrera presented himself for check-in.

[9] WestJet offered Mr. Herrera alternate travel arrangements, but Mr. Herrera declined. He received a refund from his VISA insurance company for the price of the ticket.

[10] Mr. Herrera seeks compensation for his non-refundable apartment rental in Hermosillo for a total of CAD 843.42.

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, 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.

[13] Subsection 1(3) of the Air Passenger Protection Regulations,SOR/2019-150 (APPR) provides as follows:

For the purpose of these Regulations, there is a denial of boarding 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 checked in by the required time, hold a confirmed reservation and valid travel documentation and are present at the boarding gate at the required boarding time.

[14] The tickets were marketed by AeroMexico and two segments of the itinerary were operated by WestJet. In the case of a code-share flight, the marketing carrier’s tariff applies to the whole itinerary. Thus, AeroMexico’s Tariff applies, even for the portions of the itinerary operated by WestJet.

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

POSITIONS OF THE PARTIES

Mr. Herrera

[16] Mr. Herrera submits that just hours before boarding, AeroMexico cancelled some of his flights.

[17] Mr. Herrera provided an email from Expedia that states that upon its conversation with WestJet, WestJet confirmed that: Mr. Herrera was on time for check-in, but his reservation for Flight No. WS0668 was not found as it was not properly received from AeroMexico; WestJet called AeroMexico and was able to rebook a new itinerary for Mr. Herrera, but this option did not suit him; and the tickets were voided.

[18] Mr. Herrera was refunded for his flight by his VISA insurance company. He seeks compensation for his non-refundable apartment rental in Hermosillo for a total of CAD 843.42.

WestJet

[19] WestJet claims that Mr. Herrera was not denied boarding on Flight No. WS0668, from Calgary to Toronto, as he did not hold a confirmed reservation for that flight. It claims that when Expedia made the change to the itinerary on July 26, 2019, AeroMexico did not properly confirm his flight from Calgary to Toronto, departing at 3:30 p.m. However, his flights from Toronto to Mexico City and Mexico City to Hermosillo were properly confirmed.

[20] WestJet also claims that AeroMexico did not cancel Mr. Herrera’s flight from Calgary to Las Vegas, Flight No. WS1424. As a result, when Mr. Herrera did not board this flight on the morning of December 20, 2019, he was marked as a “no-show” and the remaining segments were removed from his itinerary. The ticket was then forfeited.

[21] As there were no available seats on Flight No. WS0668, and as it was clear that there had been a booking error, WestJet proposed to rebook Mr. Herrera on another itinerary from Calgary to Toronto, via Winnipeg, Manitoba, departing Calgary at 4:00 p.m. and Winnipeg at 8:00 p.m. WestJet also states that it was able to reinstate the original coupons for the segments that were removed from the itinerary based on the “no-show”.

[22] According to WestJet, Mr. Herrera declined the new itinerary and the flights were voided. WestJet advised Mr. Herrera to contact Expedia for a refund.

AeroMexico

[23] AeroMexico did not file an answer.

ANALYSIS AND DETERMINATIONS

[24] 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.

[25] While Mr. Herrera claims that he was denied boarding on Flight No. WS0668 and that he is entitled to compensation under the APPR, the Agency finds that there was no denial of boarding within the meaning of subsection 1(3) of the APPR.

[26] Subsection 1(3) of the APPR states that there is a denial of boarding when a passenger is not permitted to occupy a seat on board a flight because the number of seats on the flight is less than the number of passengers who have validly checked in for the flight, who hold a confirmed reservation and valid travel documentation, and who are present at the boarding gate at the required boarding time.

[27] Although the itinerary provided by Mr. Herrera shows the status of his reservation as “confirmed” for Flight No. WS0668, WestJet refused to transport him because he did not have a confirmed reservation in its system. It did not check him in when he arrived for this flight on December 20, 2019 and he never reached the boarding gate for the flight. Thus, two of the criteria in the APPR’s definition of denied boarding were not met in his case.

[28] Nevertheless, Mr. Herrera did have a valid ticket for Flight No. WS0668 and a confirmed reservation from Expedia. Rule 65(A)(3) of the Tariff states that when a passenger presents a valid ticket, the passenger is entitled to travel between points of origin and destination and via the routing designated on the ticket. Mr. Herrera was therefore entitled to travel on this flight, but because it was full, he could not board the flight.

[29] Rule 25(A) of the Tariff sets out the reasons why the carrier can refuse to carry a passenger or cancel the reserved space. This rule does not allow the carrier to refuse to carry a passenger with a ticket indicating a confirmed reservation because that reservation is not confirmed in the reservation system. Therefore, the Agency finds that WestJet did not properly apply Rule 25(A) of the Tariff when it refused to transport Mr. Herrera.

[30] The Agency acknowledges Mr. Herrera’s frustration in dealing with Expedia and the carriers to determine who was responsible for the consequences of AeroMexico’s error, but notes that he received a refund of the unused ticket from his VISA insurance company.

[31] Mr. Herrera provided a receipt for his prepaid, non-refundable apartment rental in Hermosillo for a total of CAD 843.42.

[32] The Agency has authority under paragraph 113.1(1)(b) of the ATR to order compensation for expenses that were incurred by a person adversely affected by an air carrier’s failure to apply the terms and conditions set out in its tariff. However Mr. Herrera incurred his accommodation expense in advance of his travel, and not as a result of WestJet’s failure to properly apply the terms and conditions set out in the Tariff. The Agency finds that it has no authority to order compensation for this expense pursuant to paragraph 113.1(1)(b) of the ATR.

[33] AeroMexico did not file an answer in this case. The Agency is aware that it has sought protection from its creditors under Chapter 11 of the US Bankruptcy Code. However, these facts would not change the Agency’s conclusion in that it has no authority to order compensation for Mr. Herrera’s apartment rental expense under paragraph 113.1(1)(b) of the ATR.

[34] In light of the above, the Agency finds that WestJet failed to properly apply the terms and conditions set out in Rule 25(A) of the Tariff when it refused to transport Mr. Herrera. As no expenses were incurred as a result of WestJet’s failure to properly apply the terms and conditions set out in the Tariff, the Agency makes no order.

CONCLUSION

[35] The Agency dismisses the application.

---

APPENDIX TO DECISION NO. 92-C-A-2021

International Passenger Rules and Fares Tariff No. AMRF-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Aerovias de Mexico, S.A. de C.V. (AeroMexico) Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points in Areas 1/2, NTA(A) No. 421  

Rule 25   REFUSAL TO TRANSPORT – LIMITATION OF CARRIAGE

(A) REFUSAL, CANCELLATION OR REMOVAL

(1) Carrier will refuse to carry, cancel the reserved space of, or remove en route any passenger;

(a) when such action is necessary for reasons of safety:

(b) when such action is necessary to prevent violation of any applicable laws, regulations, or orders of any state or country to be flown from, into or over;

(c) when the conduct, age, status or mental or physical condition of the passenger is such as to:

(i) require special assistance of carrier; or

(ii) cause discomfort or make himself objectionable to other passengers; or

(iii) involve any hazard or risk to himself or to other persons or to property;

(d) When the passenger refuses on request to produce positive identification.

Note: Carrier shall have the right, but shall not be obligated, to require positive identification of persons purchasing tickets and/or presenting a ticket(s) for the purpose of boarding aircraft.

(e) When the passenger refuses to permit search of his person or property for explosives or a cancelled, deadly or dangerous weapon or article.

(2) If question arises of any aircraft being overloaded carrier shall decide which passengers or articles will be carried.

(3) Subject to the provisions of Rule 87 (Denied Boarding Compensation) the sole recourse of any person so refused carriage or removed en route for any reason specified in the foregoing paragraphs, shall be recovery of the refund value of the unused portion of his/her ticket as hereinafter provided in Rule 90 (Refunds).

….

....

RULE 65   TICKETS

(A) General

….

(3) No person shall be entitled to transportation except upon presentation of a valid ticket. Such ticket shall entitle the passenger to transportation only between points of origin and destination and via the routing designated thereon.

….

….