Decision No. 97-C-A-2017
APPLICATION by Igor Chomiak against WestJet.
SUMMARY
[1] Igor Chomiak filed an application with the Canadian Transportation Agency (Agency) against WestJet regarding its refusal to transport him from Calgary, Alberta to Toronto, Ontario on February 27, 2017.
[2] Mr. Chomiak is requesting that the Agency order WestJet to refund him CAN$543.67 for the price of his ticket and to compensate him in the amount of CAN$167.28 for his hotel accommodations.
[3] The Agency will address the following issues:
- Did WestJet properly apply the terms and conditions set out in its Domestic Tariff - Rules, Rates and Charges Applicable to the Transportation of Passengers and Goods Between Points in Canada, CTA(A) No. 5 (Tariff), relating to refusal to transport, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), when it refused to transport Mr. Chomiak?
- If WestJet did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Mr. Chomiak?
[4] For the reasons set out below, the Agency finds that WestJet properly applied the terms and conditions set out in its Tariff when it refused to transport Mr. Chomiak from Calgary to Toronto on February 27, 2017. Therefore, the Agency dismisses the application.
BACKGROUND
[5] Mr. Chomiak was booked on a WestJet return flight, departing from Toronto to Calgary on February 25, 2017, and returning on February 27, 2017. On February 26, 2017, Mr. Chomiak was advised that his return flight, which was scheduled to depart at 10:00 a.m. the following day, was cancelled due to mechanical reasons.
[6] WestJet provided Mr. Chomiak with three options for returning to Toronto on February 27, 2017, the date of his original flight. Mr. Chomiak was given the option of travelling to Toronto via Vancouver, at 11:45 a.m., or to travel directly to Toronto later that day, at either 4:50 p.m. or 7:50 p.m. Mr. Chomiak chose to travel on the direct 4:50 p.m. flight.
[7] Upon check in, Mr. Chomiak was informed that his flight was delayed until 5:50 p.m. He was later notified that the flight was further delayed until 6:30 p.m. due to mechanical reasons. Finally, while on board the aircraft, the pilot advised passengers that one of the engines would not start. At this point, Mr. Chomiak chose to exit the aircraft as he did not feel safe on board.
[8] Once Mr. Chomiak deplaned, he spoke to WestJet personnel, and as a result of this exchange, the local police were contacted in order to remove Mr. Chomiak from the airport’s secure area.
[9] Mr. Chomiak was told to contact WestJet’s Corporate Security to seek permission to travel on another flight. Mr. Chomiak booked a hotel room for that evening and contacted Corporate Security the following morning. Mr. Chomiak was booked on a direct flight back to Toronto later that morning.
THE LAW
[10] The statutory and Tariff extracts relevant to this matter are set out in the Appendix.
POSITIONS OF THE PARTIES AND FINDINGS OF FACT
Mr. Chomiak’s position
[11] Mr. Chomiak states that on the day prior to travelling on the return portion of his trip, he was notified that the flight was cancelled due to mechanical issues. Mr. Chomiak indicates that he was given the option of travelling to Toronto via Vancouver, but declined this offer, pointing out that he was not provided with the departure time for the Vancouver - Toronto flight. According to Mr. Chomiak, he was left stranded because he declined this offer.
[12] Mr. Chomiak submits that he contacted WestJet’s reservation centre and was advised that there were two later flights departing on February 27, 2017; the first flight was scheduled to depart at 4:50 p.m. and the later flight was scheduled to depart at 7:50 p.m. Mr. Chomiak chose to travel on the 4:50 p.m. flight.
[13] Mr. Chomiak indicates that he arrived at the airport for check in at 2:00 p.m. on February 27, 2017, and was notified that his flight had been delayed until 5:50 p.m. Mr. Chomiak states that he was later informed that due to mechanical issues, the flight was further delayed until 6:30 p.m.
[14] According to Mr. Chomiak, once the passengers were on board the aircraft, the pilot announced that one engine would not start. Mr. Chomiak contends that because of this, he did not feel safe and asked to disembark from the aircraft. Mr. Chomiak states that WestJet's crew complied with his request.
[15] Mr. Chomiak maintains that after he disembarked, he complained to a WestJet representative about the service, at which point the police were called and he was escorted to the front of the airport. Mr. Chomiak contends that WestJet once again left him stranded.
WestJet’s position
[16] WestJet acknowledges that there were a number of delays and cancellations outside of Mr. Chomiak’s control. However, WestJet asserts that while these irregular operations were unfortunate, it did not leave Mr. Chomiak 'stranded', but rather it was Mr. Chomiak’s behaviour that resulted in his inability to travel on that date.
[17] According to WestJet, Mr. Chomiak’s original flight was cancelled due to unanticipated aircraft maintenance issues and he was re-accommodated on a flight later that day. WestJet notes that this flight also experienced maintenance issues that resulted in a 158-minute delay.
[18] WestJet states that Mr. Chomiak elected to deplane and was deemed unruly for demonstrating abusive behavior to WestJet’s in-flight crew and customer service agents.
[19] WestJet submitted excerpts from two Occurrence eReports that address Mr. Chomiak’s alleged behaviour. The first report indicates that from the flight attendant’s understanding, the passenger had dealt with several cancellations and delays that day and wanted to get off of the aircraft. The second report indicates that Mr. Chomiak was very upset, refused to speak without shouting and used abusive language. It further states that Mr. Chomiak would not leave the secured area, and consequently the Calgary police were contacted to escort him outside. The second report concludes that Mr. Chomiak was put on “no-go” status and would have to contact Corporate Security in order to be permitted to travel.
[20] WestJet relies on Rule 7 CONDITIONS OF CARRIAGE of its Tariff, which states, in part:
7.2 Carriage of Passengers
Notwithstanding anything to the contrary herein contained, the Carrier reserves the right to refuse to board or transport or remove from an aircraft at any time, any person if such refusal or removal is, in the Carrier’s reasonable discretion, necessary or desirable for reasons of the health, comfort or safety of that person, passengers, the Carrier’s employees or agents, the aircrew, the aircraft or the safe operation of the aircraft, or is otherwise necessary or desirable to prevent violation of any applicable law, regulation or order of any governmental authority of those jurisdictions where the aircraft shall be flown from, to or over.
The Carrier may, in its reasonable discretion, impose those sanctions described in 7.2(h) including the imposition of conditions in respect of future travel or the imposition of a temporary, indefinite, or permanent travel ban on a passenger who has engaged in any conduct or behaviour more fully described in Rule 7.2(g) […]
g. Examples of Prohibited Conduct that could give rise to the imposition of sanctions include:
i. significant impairment arising from the consumption or use of alcohol or drugs prior to boarding or while on board an aircraft of the Carrier;
ii. engaging in belligerent, lewd or obscene behavior toward a passenger or employee or agent of the Carrier;
iii. threatening, harassing, intimidating, assaulting or injuring a passenger or employee or agent of the Carrier; […]
[21] WestJet indicates that Corporate Security did allow Mr. Chomiak to travel from Calgary to Toronto on the following day under strict behaviour guidelines.
Mr. Chomiak’s reply
[22] Mr. Chomiak argues that he was not unruly. He states that he did not storm out of the aircraft as WestJet claims, but rather he spoke to the flight attendant who directed him to proceed to the front exit where he would be escorted up the ramp to the boarding area. Mr. Chomiak states that he was able to return to his seat and collect his baggage, he met with another flight attendant at the front exit, and he then proceeded to exit the aircraft towards the boarding area.
[23] Mr. Chomiak submits that he is concerned that there was confusion on WestJet’s part with another passenger’s behaviour and questions whether the customer service agent’s negative approach was a result of this confusion.
[24] According to Mr. Chomiak, the reason he disembarked from the aircraft was due to concerns for his safety and he remained in the boarding area, hoping to board the 7:50 p.m. flight. Mr. Chomiak argues that he was not escorted outside the airport, rather, he left the secure area and spoke to a WestJet counter agent who advised him to contact Corporate Security before he could travel. Mr. Chomiak indicates that Corporate Security was not available until the following morning, and as a result, he had to check into a hotel for the evening.
[25] Mr. Chomiak states that the following day, he had a brief conversation with a Corporate Security representative and he was booked on the 10:00 a.m. flight to Toronto, provided there would be no incident. Mr. Chomiak maintains that WestJet failed to provide service and to fulfill its commitment, indicating that WestJet “did not provide a safe and friendly experience or have a positive attitude towards everything”.
ANALYSIS AND DETERMINATIONS
[26] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to establish, on a balance of probabilities, that the carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its tariff.
[27] In respect of the cancellation of Mr. Chomiak’s original flight and the delay of his subsequent flight, the Agency notes section 4.5 of the Tariff, which states the following:
Compensation provided for delays and cancellations
The Carrier will determine when an IROP is controllable and identify which passengers are eligible for IROP compensation. The Carrier will send an apology email (when a passenger’s email address has been provided) which will include information on how to provide feedback via the Carrier’s website. For confirmed passengers who experience a controllable delay based on the following criteria:
i. Delays between 120 minutes and 179 minutes: apology email with contact information.
ii. Delays of 180 minutes or more: apology email with contact information and a 20 percent discount code.
[…]
c. If the Passenger’s journey is interrupted by an Advance Flight Departure, a flight cancellation or overbooking, the Carrier will take into account all the circumstances of the case as known to it and will provide the Passenger with the option of accepting one or more of the following remedial choices:
[…]
ii. transportation to the passenger’s intended destination at the earliest opportunity, at no additional cost;
[28] When Mr. Chomiak’s original flight was cancelled, WestJet provided him with three flight options to return to Toronto on the same date. Mr. Chomiak chose the 4:50 p.m. flight, and he was re-accommodated by WestJet, in accordance with subparagraph 4.5(c)(i) of its Tariff.
[29] With respect to the delay of the newly booked flight, WestJet states that it experienced a 158-minute delay due to maintenance issues. The time provided by WestJet is confirmed by Mr. Chomiak, who indicates that the flight was delayed until 7:30 p.m.
[30] According to subsection 4.5(i) of the Tariff, passengers, having been delayed 158 minutes, would have been entitled to receive an apology e-mail with contact information on how to provide feedback. Nevertheless, WestJet submits that it automatically compensated each passenger affected by the delay in the form of $150 WestJet dollars. WestJet states, however, that due to Mr. Chomiak’s behaviour, he was not offered compensation.
[31] By contrast, Mr. Chomiak indicates in his reply that WestJet did send him an e-mail acknowledging the inconvenience and offered him the $150 WestJet dollars, which he states was not sufficient for the aggravation and extended delays.
[32] Furthermore, the parties also disagree on the interaction that Mr. Chomiak had with the flight attendants on board the aircraft and with the customer service agent after he deplaned. Mr. Chomiak maintains that he was not unruly whereas WestJet argues that it was Mr. Chomiak’s behaviour that resulted in his inability to travel on February 27, 2017.
[33] The evidence provided by WestJet indicates that there was a separate and unrelated incident with another passenger, and although WestJet amended its answer to differentiate between the two incidents, it remains unclear if the Occurrence eReports excerpts refer to Mr. Chomiak.
[34] Nevertheless, the Agency notes that the parties agree that Mr. Chomiak was allowed to travel on the following day on the condition that he does not cause an incident. This acknowledgement, and the fact that Mr. Chomiak was required to seek permission from WestJet’s Corporate Security in order to travel, suggests that an incident did occur between Mr. Chomiak and WestJet's personnel. If this was the case, the Agency finds that WestJet would have exercised its reasonable discretion, as required by its Tariff, to refuse to transport Mr. Chomiak on the evening of February 27, 2017.
[35] Irrespective of the above, the fact is that Mr. Chomiak chose to deplane his scheduled flight. Although he states that he had hoped to travel on the later flight after disembarking from the aircraft, there is no indication from either party that Mr. Chomiak was advised that this was a possibility.
[36] In addition, Mr. Chomiak states that his scheduled flight was ultimately delayed until 7:30 p.m. Given that the later flight was scheduled to depart at 7:50 p.m., only 20 minutes later, it is unlikely that Mr. Chomiak would have been allowed to board that flight.
[37] In light of the above, the Agency is of the opinion that it was Mr. Chomiak’s decision to exit the aircraft with no guarantee that he would be able to travel on any other flight that day. Therefore, the Agency finds that Mr. Chomiak did not establish, on a balance of probabilities, that WestJet failed to properly apply, or inconsistently applied, the terms and conditions of carriage set out in its Tariff.
CONCLUSION
[38] The Agency dismisses the application.
APPENDIX
RULE 4 CARRIER SCHEDULE CHANGES, DELAYS AND CANCELLATIONS
4.5 Compensation provided for delays and cancellations
The Carrier will determine when an IROP is controllable and identify which passengers are eligible for IROP compensation. The Carrier will send an apology email (when a passenger’s email address has been provided) which will include information on how to provide feedback via the Carrier’s website. For confirmed passengers who experience a controllable delay based on the following criteria:
- Delays between 120 minutes and 179 minutes: apology email with contact information.
- Delays of 180 minutes or more: apology email with contact information and a 20 percent discount code.
a. The provisions of this Rule are not intended to make the Carrier responsible for the acts of third parties that are not deemed employees and/or agents of the Carrier under applicable law or international conventions and all the rights herein described are subject to the following exception, namely, that the Carrier shall not be liable for damage occasioned by overbooking or cancellation if the Carrier proves that it, and its employees and agents, took all measures that could reasonably be required to avoid the damage or if it was impossible for the Carrier, and its employees or agents to take such measures.
b. 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 reasons for them.
c. If the Passenger’s journey is interrupted by an Advance Flight Departure, a flight cancellation or overbooking, the Carrier will take into account all the circumstances of the case as known to it and will provide the Passenger with the option of accepting one or more of the following remedial choices:
- reimbursement of the total price of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if they no longer serve any purpose in relation to the passengers original travel plan, together with, when relevant, transportation to the passenger’s point of origin, at the earliest opportunity, at no additional cost; […]
RULE 7 CONDITIONS OF CARRIAGE
7.1 Conditions of Carriage
The conditions of carriage set out in this Rule shall apply to all Domestic Services, Charter Services and Cargo Services provided by the Carrier under this Tariff.
7.2 Carriage of Passengers:
Notwithstanding anything to the contrary herein contained, the Carrier reserves the right to refuse to board or transport or remove from an aircraft at any time, any person if such refusal or removal is, in the Carrier’s reasonable discretion, necessary or desirable for reasons of the health, comfort or safety of that person, passengers, the Carrier’s employees or agents, the aircrew, the aircraft or the safe operation of the aircraft, or is otherwise necessary or desirable to prevent violation of any applicable law, regulation or order of any governmental authority of those jurisdictions where the aircraft shall be flown from, to or over.
The Carrier may, in its reasonable discretion, impose those sanctions described in 7.2(h) including the imposition of conditions in respect of future travel or the imposition of a temporary, indefinite, or permanent travel ban on a passenger who has engaged in any conduct or behaviour more fully described in Rule 7.2(g).
[…]
g. Passenger Conduct/Behavior
Examples of Prohibited Conduct that could give rise to the imposition of sanctions include:
- significant impairment arising from the consumption or use of alcohol or drugs prior to boarding or while on board an aircraft of the Carrier;
- engaging in belligerent, lewd or obscene behavior toward a passenger or employee or agent of the Carrier;
- threatening, harassing, intimidating, assaulting or injuring a passenger or employee or agent of the Carrier; […]
h. Sanctions
The Carrier may impose sanctions on any person who engages in or has engaged in any conduct or behavior on the Carrier’s aircraft, or to the knowledge or reasonable belief of the Carrier, on any airport property or other carrier’s aircraft, that the carrier determines, in its reasonable judgment, may have a negative effect on the safety, comfort or health of that person, passengers, the Carrier’s employees or agents, aircrew or aircraft or the safe operations of the Carrier’s aircraft (the “Prohibited Conduct”).
The sanctions the Carrier may impose on a person may be any one or combination of the following:
- written or verbal warning;
- refusal to permit boarding of an aircraft;
- removal from an aircraft at any point;
- requiring the person, to undertake in writing to refrain from repeating the Prohibited Conduct in question and from engaging in any other Prohibited Conduct as a prerequisite to further travel with the Carrier during the probationary period that will not normally exceed one year;
- refusal to transport the person on a one time basis, for an indefinite period or permanently, as determined by the Carrier.
[…]
Member(s)
- Date modified: