Decision No. 95-C-A-2016
APPLICATION by Anil Janmohamed against Air Transat A.T. Inc. carrying on business as Air Transat (Air Transat).
 On April 10, 2015, Anil Janmohamed filed an application on behalf of himself and his family members (applicants) with the Canadian Transportation Agency (Agency) against Air Transat regarding the alleged overbooking and denied boarding of two passengers on Flight No. TS246 from Toronto, Ontario, Canada to Orlando, Florida, United States of America, and six passengers on Flight No. TS247 from Orlando to Toronto, on March 14, 2015 and March 21, 2015 respectively.
 The Agency opened pleadings on December 7, 2015, and Air Transat submitted its answer on December 29, 2015. On December 31, 2015, the applicants submitted a request, pursuant to subsection 24(1) of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules), that Air Transat answer questions and produce documentation. On January 8, 2016, Air Transat submitted its answers, and on the same day, the applicants submitted a request, pursuant to subsection 32(1) of the Dispute Adjudication Rules, to compel Air Transat to provide full and complete answers to the questions.
 On January 25, 2016, the Agency denied the applicants’ request to compel on the basis that there was sufficient information in the response to determine the issues in dispute. On February 7, 2016, the Agency received the applicants’ reply.
 In their reply, the applicants submit that they were denied procedural fairness when the request made pursuant to subsection 32(1) of the Dispute Adjudication Rules was denied, and argue that the reasons to not compel provided by the Agency gave rise to a reasonable apprehension of bias. The applicants request that the Panel in this matter recuse themselves.
 The Agency makes note of section 4 of the Dispute Adjudication Rules which states that “the Agency is to conduct all proceedings in a manner that is proportionate to the importance and complexity of the issues at stake and the relief claimed.” In light of section 4, the Agency is of the opinion that while the issues in the case are important, the case was not complex, and did not call for the extensive discoveries sought by the applicants after the original application was filed.
 The Agency is of the opinion that the applicants have not provided any basis for an argument that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that the Panel in this particular matter is biased against them. The fact that a party receives an unfavourable decision is not a basis for a claim of bias. With respect to the request for the recusal of the Panel, the Agency is of the opinion that the request should have been submitted separately and is not properly part of the reply. Given that the Agency has determined that the applicants have failed to establish bias, there is no basis for the members of the Panel to recuse themselves.
- Did Air Transat properly apply the terms and conditions set out in Rule 17 of its Canadian General Rules Tariff No. CGR-1, NTA(A) No. 241 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
- If Air Transat did not properly apply its tariff, what remedy, if any, is available to the applicants?
RELEVANT STATUTORY EXTRACTS
 The applicable statutory extracts relevant to this matter are set out in the Appendix.
POSITIONS OF THE PARTIES
 The applicants claim that on March 12, 2015, they received a telephone call from Air Transat indicating that a “schedule change” had occurred for two passengers on Flight No. TS246 resulting in the passengers being placed on a much earlier flight. The applicants claim that they were informed by Air Transat that they had no choice in the matter. The applicants also state that on March 18, 2015, they received a call from Air Transat informing them that six passengers on Flight No. TS247 had been bumped to an earlier flight and that Air Transat indicated that there again was no choice in the matter. According to the applicants, Air Transat booked more passengers on Flight No. TS246 and Flight No. TS247 than the number of seats available and the placement of the passengers on the earlier inbound flight caused them to miss an entire day of their vacation. They seek denied boarding compensation for the affected passengers.
 Air Transat argues that the applicants were advised prior to the departure dates of the changes affecting their flight reservations, and that they were moved to other flights on the same day with the same routing. Air Transat argues that because they were notified of the flight change prior to the departure date, denied boarding compensation does not apply. Air Transat denies that the flights in question were overbooked. Air Transat also argues that the applicants did not submit any documentation in support of their allegations that the flight changes caused them any loss.
 The applicants argue that Air Transat booked more passengers on Flight No. TS246 than the number of available seats and that Air Transat gave away to other passengers the seats that were reserved by the affected passengers on Flight No. TS247. The applicants also argue that it is Air Transat’s obligation under Rule 17 of its Tariff to reprotect passengers on its next flight on which space is available or the next available flight, rather than a previous flight.
 As evidence, Air Transat submitted an airport report indicating the flight times and the total passengers for Flight No. TS246 and Flight No. TS247. Air Transat submits that Flight No. TS246 departed with 188 passengers and that there was one empty seat. Air Transat confirms that this affected two passengers who left 12 hours before the original departure time and agrees that it did not provide previously confirmed seats to these passengers. Air Transat argues that the reason for the change was due to an aircraft change, that this was not a case of overbooking and that there was no schedule change.
 According to Air Transat, Flight No. TS247 was scheduled to leave Orlando on March 21, 2015 at 11:00 p.m. and the schedule was not changed. Air Transat states that the aircraft capacity was 189 passengers and that the flight departed with 189 passengers on board plus one infant. Air Transat argues that Flight No. TS247 was not overbooked and that the changes were made to transfer passengers from one flight to another to accommodate 10 cruise passengers, booked through Transat Holidays, who would have otherwise missed their flight due to the cruise ship’s scheduled docking time. Air Transat submits that seats occupied by the cruise passengers were booked by the applicants.
 The applicants argue that this is a case of not adequately compensating for the overbooking. According to the applicants, upon their return, they spoke with customer service at Air Transat that confirmed that it was not a schedule change as the flights departed at the scheduled times. According to the applicants, Air Transat then provided them with a credit of CAD$75.00 per person for future travel, which they refused.
 The applicants argue that Air Transat fraudulently misrepresented that the flights in question were affected by a “schedule change” and that the only option would be to travel on flights that were leaving 12 hours earlier than the flights on which they held confirmed seats. The applicants reiterate that they did not voluntarily give up their confirmed seats and object to Air Transat unilaterally altering their itinerary. The applicants also argue that moving passengers to another flight does not relieve Air Transat from the obligation to pay denied boarding compensation.
 The applicants submit that the legal obligation to pay denied boarding compensation is triggered by the air carrier having previously confirmed space on a flight, and then subsequently being unable to provide seats on that flight because of lack of available seats on the aircraft. Whether or not Air Transat notified the applicants in advance about having moved them to other flights is irrelevant to the obligation of paying denied boarding compensation.
ANALYSIS AND FINDINGS
Issue 1: Did Air Transat properly apply the terms and conditions set out in rule 17 of its Tariff, as required by subsection 110(4) of the ATR?
 When an application such as this one is filed with the Agency, the applicants must, on a balance of probabilities, establish that the carrier has failed to apply, or has inconsistently applied, terms and conditions of carriage appearing in the applicable tariff.
 In this case, Air Transat confirmed that two affected passengers scheduled to travel on Flight No. TS246 left 12 hours before the original departure time on a different flight and agreed that it did not provide previously confirmed seats to these passengers. Air Transat claims that this change was made due to an “aircraft change” but that it departed according to schedule with one empty seat. Air Transat admits that on Flight No. TS247 the changes to the affected passengers’ reservations were made to accommodate cruise passengers who would have otherwise missed their flight due to the cruise ship’s scheduled docking time. Air Transat also confirmed that the seats occupied by the cruise passengers were booked by the applicants. Finally, Air Transat does not dispute the applicants’ evidence that this was done without their consent.
 The applicants asked Air Transat to identify which tariff provisions permitted Air Transat to change the applicants’ flights as was done in this case. Air Transat did not identify any such provision. The Agency has reviewed Air Transat’s Tariff and has also not been able to identify a tariff provision that permits the types of changes that occurred in this case.
 The Agency agrees with the applicants that the affected passengers had previously confirmed space on a flight, and then were subsequently denied seats on that flight because of a lack of available seats on the aircraft. According to Air Transat, Flight No. TS246 departed with only one empty seat, and Flight No. TS247 departed with no empty seats. The fact that Air Transat notified the passengers in advance about having moved them to other flights does not relieve Air Transat of the obligation to pay denied boarding compensation. The fact is that there were insufficient seats to accommodate the applicants, despite the fact that they had previously confirmed seats, and that they were involuntarily moved to another flight. This is a case of de facto or constructive denied boarding.
 The Agency appreciates that this situation may be unique, and not a typical case of denied boarding that normally occurs at the gate. However, effectively, the applicants were involuntarily denied boarding on their original flight because Air Transat elected, unilaterally, to give preference to other passengers who had been moved to their flight with the effect that the flight became oversold, resulting in prejudice to the applicants. Rather than wait for the applicants to arrive at the airport and deny them boarding at that time, they were instead moved, without their consent, to another flight in advance. The effect is the same. The applicants were not permitted to board their original flight because there was no longer room for them. It was oversold and they were “bumped”.
 Based on the foregoing, the Agency finds that, notwithstanding that the applicants did not present themselves at the gate for boarding because their reservations were cancelled well in advance, this is a case of denied boarding and Air Transat did not properly apply Rule 17 of its Tariff when it failed to pay denied boarding compensation to the applicants.
Issue 2: If Air Transat did not properly apply its Tariff, what remedy, if any, is available to the applicants?
 Paragraph 113.1(a) of the ATR provides that if an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may direct it to take the corrective measures that the Agency considers appropriate.
 In this case, the Agency has found that Air Transat did not properly apply its Tariff when it did not pay denied boarding compensation to the applicants in accordance with Rule 17 of its Tariff. Therefore, the appropriate corrective measure in this case is for Air Transat to pay denied boarding compensation in accordance with its Tariff.
 The Agency finds that Air Transat did not properly apply Rule 17 of its Tariff, as required by subsection 110(4) of the ATR.
 Pursuant to paragraph 113.1(a) of the ATR, the Agency finds that the applicants are entitled to receive denied boarding compensation as a result of Air Transat not properly applying its Tariff.
 The Agency, pursuant to paragraph 113.1(a) of the ATR, directs Air Transat to pay to the applicants, by no later than April 25, 2016, denied boarding compensation as set out in Rule 17 on its Tariff.
Air Transportation Regulations, SOR/88-58, as amended
110 (4) Where a tariff is filed containing the date of publication and the effective date and is consistent with these Regulations and any orders of the Agency, the tolls and terms and conditions of carriage in the tariff shall, unless they are rejected, disallowed or suspended by the Agency or unless they are replaced by a new tariff, take effect on the date stated in the tariff, and the air carrier shall on and after that date charge the tolls and apply the terms and conditions of carriage specified in the tariff.
113.1 If an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may direct it to
- take the corrective measures that the Agency considers appropriate; and
- 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.
Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/ 2014-104
Written Questions and Production of Documents
24 (1) A party may, by notice, request that any party that is adverse in interest respond to written questions that relate to the matter in dispute or produce documents that are in their possession or control and that relate to the matter in dispute. The notice must include the information referred to in Schedule 11 and must be filed
- in the case of written questions, before the close of pleadings; and
- in the case of the production of documents, within five business days after the day on which the party becomes aware of the documents or before the close of pleadings, whichever is earlier.
Request to Require Party to Provide Complete Response
32 (1) A party that has given notice under subsection 24(1) may, if they are not satisfied with the response to the notice or if they wish to contest an objection to their request, file a request to require the party to which the notice was directed to provide a complete response. The request must be filed within two business days after the day on which they receive a copy of the response to the notice or the objection, as the case may be, and must include the information referred to in Schedule 13.
(2) The Agency may do any of the following:
- require that a question be answered in full or in part;
- require that a document be provided;
- require that a party submit secondary evidence of the contents of a document;
- require that a party produce a document for inspection only;
- deny the request in whole or in part.