Decision No. 93-C-A-2020

SUMMARY

[1] Eleanor Blackwell filed an application with the Canadian Transportation Agency (Agency) against K.D. Air Corporation, now Cascadia Air, seeking a refund for a cancelled flight in the amount of CAD 129.27, which is the amount paid for the ticket.

[2] The Agency will address the following issues:

• Did Cascadia Air properly apply the terms and conditions set out in its Domestic Tariff – Provisions for Aircraft with up to 29 Passenger Seats – Rules, Rates, and Charges Applicable to Transportation of Passengers and Baggage or Goods Between Points in Canada, CTA(A) No. 3 (Tariff), as required by subsection 67(3) of the CTA?
• If Cascadia Air did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, should be ordered?

[3] For the reasons set out below, the Agency finds that Cascadia Air did not properly apply Rule 16 of its Tariff. Therefore, pursuant to section 67.1 of the CTA, the Agency orders Cascadia Air to refund Eleanor Blackwell in the amount of CAD 129.27. The carrier is to pay this amount as soon as possible and no later than November 10, 2020.

BACKGROUND

[4] The application was originally filed against K.D. Air Corporation; however, in early 2020, K.D. Air Corporation changed its legal name to Cascadia Airways Inc., carrying on business as Cascadia Air. On February 21, 2020, the Agency issued Licence No. 962387 to Cascadia Airways Inc. carrying on business as Cascadia Air. This licence supersedes the earlier version of Licence No. 962387 dated September 27, 1996, which had been issued to K.D. Air Corporation. Accordingly, this decision refers to Cascadia Air.

[5] On August 30, 2018, Eleanor Blackwell purchased a ticket to travel on a flight from Vancouver, British Columbia, to Qualicum Beach, British Columbia. The ticket was an “open booking,” meaning that the date of travel was not specified. Cascadia Air cancelled the flight Eleanor Blackwell intended to take on September 10, 2018. The applicant was not able to rebook the flight as Cascadia Air was not operating flights. K.D. Air Corporation declined to issue a refund for the ticket.

THE LAW AND RELEVANT TARIFF PROVISIONS

[6] The CTA states:

67(3) The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

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67.1If, on complaint in writing to the Agency by any person, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

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(c) take any other appropriate corrective measures.

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

POSITION OF THE PARTIES AND FINDINGS OF FACT

Eleanor Blackwell

[8] Eleanor Blackwell purchased a ticket with Cascadia Air on August 30, 2018. The Flight Confirmation Boarding Pass (ticket) is for an “open booking.” The ticket states, “Please note this ticket is non-refundable. Changes to flight dates or times are permitted at no charge.”

[9] The applicant submits they tried to travel with Cascadia Air with this ticket on a 1:15 p.m. flight on September 10, 2018, but the flight was cancelled. Eleanor Blackwell claims that “[m]ost flights that day did not occur, I know because I waited for three of them.”

[10] Eleanor Blackwell contacted Cascadia Air by e-mail for a refund after the flights on September 10, 2018, were cancelled. On September 13, 2018, Cascadia Air responded to this e-mail and explained that the flights were cancelled for “safety reasons.” The carrier informed Eleanor Blackwell that because the ticket was non-refundable, it had no legal obligation to provide a refund.

[11] Eleanor Blackwell filed an application with the Agency on July 5, 2019. The applicant submitted at that time that “somewhat recently (2-3 months ago),” Cascadia Air’s owner had phoned them to explain that the carrier’s licence was suspended in February 2019, but that the carrier would be reopening shortly and that Eleanor Blackwell would receive a return ticket as an apology. The applicant submits that they have not received a return ticket, nor a refund.

[12] The applicant is seeking compensation in the form of a refund for the ticket because it was not possible to rebook a flight prior to filing the application as Cascadia Air was not operating nor responding to communication. Eleanor Blackwell submits that it was not certain that Cascadia Air would resume operations during the 18-month period that the ticket remained valid toward another flight.

Cascadia Air

[13] The Agency opened pleadings on the application on November 8, 2019. Cascadia Air was provided with a copy of the application at that time; however, it did not file an answer to the application.

Findings of fact

[14] The Agency finds that the carrier cancelled its flights from Vancouver to Qualicum Beach on September 10, 2018, on the date Eleanor Blackwell wished to use the ticket. The Agency also finds that Eleanor Blackwell was not able to apply the value of the ticket to a flight with Cascadia Air during the period of the ticket’s validity.

[15] Cascadia Air holds Licence No. 962387 to operate a domestic service, small aircraft. The Agency suspended the carrier’s licence twice in 2019. On February 21, 2020, the Agency reinstated Licence No. 962387 to Cascadia Air. During the suspension periods, Cascadia Air was not authorized to operate its air service.

ANALYSIS AND DETERMINATION

[16] 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, as required by subsection 67(3) of the CTA.

[17] The evidence shows that Eleanor Blackwell requested a refund from K.D. Air Corporation for the ticket after the flight was cancelled on September 10, 2018. The ticket was non-refundable and valid for 18 months from the date of purchase. Since it was purchased on August 30, 2018, the ticket was valid until February 29, 2020. The carrier told Eleanor Blackwell that the value of the ticket could be applied to future travel, and the ticket states that changes to flight dates and times can be made at no cost.

[18] In order to apply Rule 16 of its Tariff to the ticket, Cascadia Air would have to apply the value of the original ticket toward another flight. However, Cascadia Air did not operate flights for extended periods of time during the 18-month validity of the ticket. Therefore, Eleanor Blackwell was unable to use the ticket while it was still valid. As the Agency found in Decisions Nos. 83-C-A-2019 and 85-C-A-2019, both issued in November 2019, Cascadia Air cannot rely on a condition that a ticket is non-refundable when it cancelled the flight and was unable to provide the service during the subsequent months.

[19] In the case before the Agency, over two years have passed since the originally scheduled flight and Cascadia Air did not operate flights for much of the ticket’s validity. Accordingly, given the circumstances, the Agency believes it to be reasonable to convert the ticket to a cash refund.

CONCLUSION

[20] For these reasons, the Agency finds that Cascadia Air did not properly apply Rule 16 of its Tariff as it did not apply the cost of the ticket to another flight, thereby contravening subsection 67(3) of the CTA.

ORDER

[21] Pursuant to section 67.1 of the CTA, the Agency orders Cascadia Air to refund Eleanor Blackwell in the amount of CAD 129.27. The carrier is to pay this amount to Eleanor Blackwell as soon as possible and no later than November 10, 2020.

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APPENDIX TO DECISION NO. 93-C-A-2020

Domestic Tariff – Provisions for Aircraft with up to 29 Passenger Seats – Rules, Rates, and Charges Applicable to Transportation of Passengers and Baggage or Goods Between Points in Canada, CTA(A) No. 3 (Tariff)

RULE 9. REFUNDS

(1)  Application for refund shall be made to the carrier or its duly authorized Agent.

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RULE 16.0 TICKETS

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16.1 General

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d) Transfer and/or refunding of ticket will be subject to terms of the fare purchased.

16.2 Validity

a) Except as otherwise provided, tickets shall be valid for a period of eighteen (18) months after date of issuance. Tickets expire at
    midnight on date of expiration.
b) Any ticket shall be revocable by the Carrier upon refunding the fare paid.