Decision No. 95-C-A-2021

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondents for refusal to transport.

[2] The applicants seek CAD 821.26 in compensation for expenses incurred as a result of the refusal to transport, which forced them to spend one additional week in Montréal, Quebec.

[3] The Agency will address the following issues:

1. Did the respondents properly apply the terms and conditions set out in WestJet’s 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 1/2/3 and Between Points in the US and Points in Canada, NTA(A) No. 518 (Tariff), as required by subsection 110(4) of the ATR?
2. If the respondents 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 did not properly apply the conditions set out in Rule 30 of its Tariff regarding refusal to transport and orders WestJet to compensate the applicants in the amount of CAD 962.86 for the expenses incurred. WestJet is to pay this amount to the applicants as soon as possible and no later than October 26, 2021.

BACKGROUND

[5] The applicants purchased their tickets to travel from Montréal to Lima, Peru, via Mexico City, Mexico, through the travel agency Circuit Voyages Rénaux (travel agency).

[6] On October 25, 2018, the applicants were scheduled to take Flight No. WS6106 from Montréal to Mexico City, then Flight No. LA2471 from Mexico City to Lima. The applicants checked in on the website of AeroMexico, which operated Flight No. WS6106, and they obtained assigned seat numbers for the flight. On the departure date, at AeroMexico’s baggage drop-off counter, AeroMexico informed the applicants that there was a problem with their reservation and that it refused to transport them.

[7] The applicants obtained a new reservation, free of charge, from their travel agency on AeroMexico flights departing from Montréal one week later, on October 31, 2018.

PRELIMINARY MATTER

[8] The Agency must first determine which of the respondents’ tariffs is applicable to this case.

[9] Although the tickets were issued by LATAM, Flight No. WS6106, which is the subject of the complaint, was under a codeshare agreement between WestJet and AeroMexico where the flight was marketed by WestJet and operated by AeroMexico. A code share refers to an arrangement where an air carrier provides services by selling transportation in its name (code) on flights operated by another air carrier.

[10] Under the codeshare agreement, the carrier who sells the transportation as part of this arrangement must apply its tariff for the carriage of its traffic even though another carrier, in this case Aeromexico, operates the flight. Therefore, the applicable tariff in this case is WestJet’s Tariff.

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, in effect at the time of the events, 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] The relevant provisions of WestJet’s Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDING OF FACTS

The applicants

[14] The applicants claim that they were unable to complete their check-in at the AeroMexico baggage drop-off counter because AeroMexico told them that there was a problem with their tickets, but that they were not provided with any additional information. Despite talking to AeroMexico and WestJet employees and having boarding passes, they were refused transportation. It was later explained to them that this refusal to transport was caused by a synchronization problem with the reservation systems.

[15] The applicants argue that they were forced to spend an additional week in Montréal because AeroMexico refused to transport them on Flight No. WS6106.

[16] The applicants submit that they incurred expenses after they were refused transportation. The applicants seek compensation in the amount of CAD 821.26. The applicants filed receipts to support their expenses, which exceed the total claim and are broken down as follows:

• Accommodation: CAD 376.13
• Meals: CAD 460.63
• Transport: CAD 65.50
• Telephone: EUR 62.58

WestJet

[17] WestJet acknowledges being the marketing carrier of Flight No. WS6106. It states that it has little information explaining why the applicants were unable to travel on the flight and confirms that the flight departed as scheduled. According to WestJet, the refusal to transport could have been due to an itinerary change made to the reservation by AeroMexico on September 16, 2018. In short, WestJet argues that it was not responsible for reprotecting the applicants and that the travel agency or AeroMexico was responsible for reprotecting and compensating the applicants, because it was AeroMexico that made the change that resulted in the refusal to transport.

LATAM

[18] LATAM recognizes that it issued the applicants’ tickets and states that WestJet was the marketing carrier of Flight No. WS6106. LATAM states that the travel agency and AeroMexico were liable for the events.

[19] LATAM states that the tickets issued by the travel agency were class “D” tickets, which is the business class, while the seats reserved were in a different class. LATAM submits that the Passenger Name Record data indicates that AeroMexico asked the travel agency to change the applicants’ reservation. The travel agency did not make the change and thus caused a problem with their reservation. As there were no more seats available in class “R”, which is the “comfort” class, this situation appears to have caused AeroMexico’s refusal to transport.

AeroMexico

[20] AeroMexico claims that, because the tickets were purchased through a travel agency, it cannot be held responsible for the refusal to transport. AeroMexico argues that the travel agency issued class “D” tickets to the applicants, whereas the tickets were reserved in class “R”, which caused the refusal to transport. AeroMexico adds that it could not transport the applicants on Flight No. WS6106, as all the class “R” seats were sold. AeroMexico states that no reprotection option was available to the applicants without them having to pay an additional amount.

[21] AeroMexico states that it informed the travel agency of the booking error prior to the flight and that the onus was on the travel agency to reprotect the applicants and contact them. It adds that this dispute is civil in nature, as this is a matter involving a breach of contract by the travel agency.

Findings of facts

[22] None of the carriers have disputed the applicants’ version of the facts that they had checked in on AeroMexico’s website and obtained seats for Flight No. WJ6106 and that once they were at AeroMexico’s baggage drop-off counter, AeroMexico refused to transport them.

[23] The evidence shows that the refusal was caused by a booking error in the system and that the travel agency reprotected the applicants on a flight from Montréal a week later.

ANALYSIS AND DETERMINATIONS

[24] The onus is on the applicants 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.

1. Did the respondents properly apply the terms and conditions set out in WestJet’s Tariff, as required by subsection 110(4) of the ATR?

[25] Rule 30 of WestJet’s Tariff lists the various grounds on which it may refuse to transport a passenger.

[26] In this case, the applicants were refused transportation because of a booking error in AeroMexico’s computer system. LATAM and AeroMexico state that the travel agency initially made an error in issuing business class tickets when it made the reservation in “comfort” class. AeroMexico, which was acting as an agent for WestJet, states that it attempted to correct the error in its system by changing the applicants’ reservation. As a result, on September 16, 2018, it contacted the travel agency via a computerized system to request that it make the change for “comfort” class seats that were still available. However, AeroMexico never received confirmation from the travel agency and did not make the change. The available “comfort” class seats then ended up being sold to other passengers.

[27] However, the applicants had a valid reservation, as they had successfully checked in via AeroMexico’s website prior to the flight, they had boarding passes for the flight, and they were also offered replacement tickets at no additional cost. There is therefore no reason for refusing transportation to the applicants. Nor is the fact that there was a booking error in the system a reason for refusal to transport specifically provided for by Rule 30 of WestJet’s Tariff.

[28] The Agency found, in Decision No. 112-C-A-2017 (Paes et al v Qatar Airways), that the fact that a carrier cannot find a reservation in its system, even though the passenger has a reserved and confirmed seat, does not relieve the carrier of its obligation to honour the passenger’s reservation. As in this case, in Paes et al v Qatar Airways, a reservation had been made by a travel agency, and both carriers involved claimed that it was the travel agency’s responsibility to inform its clients of a change in itinerary. The Agency had concluded that: 

… Rule 60(B) of Qatar’s Tariff states that once a passenger obtains a ticket indicating confirmed reserved space for a specific flight and date, either from Qatar Airways or its authorized agent, the reservation is confirmed even if there is no subsequent record thereof in Qatar’s reservation system.

[29] Similarly, Rule 70 of WestJet’s Tariff indicates that a passenger will be considered as a confirmed passenger if they have a valid confirmation number that reflects a reservation for a specific flight and date on a flight operated by the carrier, unless such a reservation is cancelled under one of the reasons mentioned in Rule 15(B), which does not apply in this case.

[30] While WestJet argues that the error in the reservation system was caused by AeroMexico, AeroMexico was only acting as an agent for WestJet, and the marketing carrier for the flight was WestJet.

[31] With respect to AeroMexico’s argument that the travel agency should have rectified the situation, the fact remains that the carrier is responsible for properly applying the applicable tariff.

[32] In light of the above, the Agency finds that AeroMexico, which was acting as an agent for WestJet, did not properly apply Rule 30 of WestJet’s Tariff when it refused to transport the applicants.

         2. If the respondents did not properly apply the terms and conditions set out in the Tariff, what remedy, if any, should be
             ordered?

[33] AeroMexico’s refusal to transport the applicants forced them to spend an additional week in Montréal, for which they had to incur expenses. With respect to the amount of compensation claimed by the applicants, they filed receipts for accommodation (CAD 376.13), meals (CAD 460.63), transport (CAD 65.50) and telephone (EUR 62.58) for their additional week in Montréal. The receipts total CAD 902.26 and EUR 62.58. The amount for the expenses has not been challenged by the carriers. The Agency has reviewed the receipts and determined they are reasonable with one exception being receipts for alcoholic beverages, which are not considered as necessities. The applicants are therefore entitled to the reimbursement of their expenses in the total amount of CAD 869.75 and EUR 62.58. The historical Bank of Canada rate in effect on October 25, 2018, was CAD 1.4878 to 1 EUR. Using this rate, EUR 62.58 is equivalent to CAD 93.11.

[34] AeroMexico, as the operating carrier, was acting as an agent for WestJet, the marketing carrier. The Agency therefore finds that WestJet is liable for the expenses incurred by the applicants as a result of the failure to apply Rule 30 of its Tariff.

CONCLUSION

[35] In summary, the Agency finds that AeroMexico, acting as agent for WestJet, did not properly apply the terms and conditions set out in Rule 30 of WestJets’s Tariff relating to the refusal to transport. The Agency also finds that the applicants are entitled to compensation equal to the reasonable expenses that they incurred.

ORDER

Consequently, pursuant to section 113.1 of the ATR, the Agency orders WestJet to compensate the applicants in the amount of CAD 962.86 for the expenses that they incurred. WestJet is to pay this amount to the applicants as soon as possible and no later than October 26, 2021.

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APPENDIX TO DECISION NO. 95-C-A-2020

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 1/2/3 and Between Points in the US and Points in Canada, NTA(A) No. 518

RULE 15 – RATES AND CHARGES – INTERNATIONAL SERVICE

….

(B) Carrier schedule changes and cancellations

Passengers have a right to information on flight times and schedule changes. In the event of a delay, an advanced flight departure or schedule change, the carrier will make reasonable efforts to inform the passengers of delays, proposed advanced flight departures and schedule changes, and, to the extent possible, the reason for them.

RULE 30 – REFUSAL TO TRANSPORT

(A)  The Carrier may reserve the right to refuse to transport or may remove from any flight any passenger for any reason, including but not limited to the following….

RULE 70 – CONFIRMATION OF RESERVED SPACE

…. A passenger with a valid confirmation number reflecting reservations for a specific flight and date on the Carrier is considered confirmed, unless the reservation was cancelled due to one of the reasons indicated in Rule 15(B).…