Decision No. 97-C-A-2020

SUMMARY

[1] Mary Joanne Miller filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding the schedule irregularity of her flight from Orlando, Florida, USA, to Halifax, Nova Scotia, via Montréal, Quebec, on March 11, 2019. Ms. Miller claims that her flight was cancelled and that she subsequently purchased a replacement ticket with WestJet to travel to her final destination on the same day.

[2] Ms. Miller seeks a full refund of her unused Air Canada ticket, reimbursement of the cost of her WestJet ticket and compensation for her meal expense.

[3] The Agency will address the following issues:

• Did Air Canada properly apply the terms and conditions set out in Rule 80 of its International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458 (Tariff), with regard to flight delays and cancellations, as required by subsection 110(4) of the ATR?

• If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, should be ordered?

[4] For the reasons set out below, the Agency finds that Air Canada properly applied the terms and conditions set out in its Tariff. The Agency, therefore, dismisses the application.

BACKGROUND

[5] Ms. Miller booked a one-way flight with Air Canada from Orlando to Halifax, via Montréal, on March 11, 2019. Flight No. AC1635, which was scheduled to depart from Orlando to Montréal, experienced a schedule irregularity. Air Canada submits that there was a delay, whereas Ms. Miller claims that the flight was cancelled. Ms. Miller, believing that the flight was cancelled, purchased a new ticket for USD 1,035.10 with WestJet to travel home.

THE LAW AND RELEVANT TARIFF PROVISIONS

[6] 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.

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

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Ms. Miller

[8] Ms. Miller submits that she arrived at the Orlando airport at 10 a.m. and went to the gate for her flight, which was scheduled to depart at 11:55 a.m. She indicates that after reaching the gate, she learned that the gate number had been changed. According to Ms. Miller, she inquired about the status of her flight, but was unable to obtain any information. She claims that she was told to leave the gate area, go back through security and talk to someone at the check-in counter.

[9] Ms. Miller asserts that she was told at the check-in counter that she would not be able to get home that day and that there was no further information that could be provided to her. She claims that she was told to “try west jet”. Ms. Miller also claims that she asked someone at the check‑in counter whether she would be refunded, was told that she would be and was handed a card with refund instructions. Ms. Miller alleges that she was not provided any other directions and that she was not told that she should wait for another flight or that one would be provided for her.

[10] Ms. Miller states that she paid USD 1,035.10 for a WestJet flight departing at 1:45 p.m. that day. She also states that she paid USD 19.11 for a meal at the airport.

[11] Ms. Miller submits that she paid CAD 483 for her initial ticket with Air Canada, but was only refunded CAD 207.83. She is seeking the remainder of the refund for this ticket, as well as a full refund of the WestJet ticket and compensation for her meal expense.

[12] Ms. Miller argues that she only exited the gate area because she was specifically instructed to do so by Air Canada agents. She claims that she was also instructed at the check-in counter by another Air Canada employee that she needed to book a flight with an alternate carrier.

[13] Ms. Miller submits that she also contacted Air Canada by phone to ask for guidance but that no one was able to instruct her on what to do. She further submits that the only instructions that she received were to leave the gate area and purchase a new ticket. She disputes Air Canada’s claim that she did not give the carrier a “chance” to help her, stating that she spoke with two passengers agents, a check-in agent, and two Air Canada telephone operators. Ms. Miller claims that she did not receive any e-mails, phone calls or texts from Air Canada communicating her flight’s alleged delay, nor did she hear any announcements at the airport.

Air Canada

[14] Air Canada submits that Flight No. AC1635 was not cancelled, but rather was delayed due to mechanical issues. Air Canada states that the flight ended up departing for Montréal more than six hours later at 5:57 p.m. Citing a Service Director who was present at the gate area with passengers at the time of the delay, Air Canada claims that passengers were advised through audible announcements that the flight was delayed and that another aircraft was being sent from Montréal. Air Canada disputes the contention that it informed passengers that the flight had been cancelled.

[15] Air Canada asserts that it applied Rule 80(C) of its Tariff when it advised its passengers of the situation as soon as it was confirmed; that it proactively moved passengers to alternate flights, including on other airlines; and that it provided meal vouchers to passengers.

[16] Air Canada explains that, as a goodwill gesture, passengers booked on Flight No. AC1635, including Ms. Miller, received an e-coupon worth 15 percent off a future booking with Air Canada.

[17] Air Canada contends that Ms. Miller would have been accommodated had she remained at the gate. Air Canada points out that she left the gate area and went through the check-in area, purchased a new ticket, went through security and arrived at the gate for her next flight departing at 1:45 p.m. Air Canada argues that, given that her original flight was scheduled to depart at 11:55 a.m., all of these actions were completed in less than two hours. Given the time needed to complete all these steps, Air Canada argues that it is clear that Ms. Miller did not wait for further instructions and did not allow Air Canada to accommodate her. Air Canada submits that she failed to mitigate her damages by not waiting at the gate.

[18] Air Canada claims that it has no record of Ms. Miller informing it that its offer to reprotect her on a later flight, which ultimately left at 5:57 p.m., was inadequate, nor any statement by Ms. Miller of a need to arrive at her final destination earlier than the scheduled arrival time of the flight that it offered to reprotect her on.

[19] Air Canada argues that Rule 80(A)(1) of its Tariff applies, which states that flight times are not guaranteed and are subject to change, and that no employee, agent or representative of the carrier is authorized to bind it by any statements as to the schedule of any flight.

[20] Air Canada states that Ms. Miller’s Passenger Name Record (PNR) shows that Flight No. AC1635 was not cancelled and that the flight was delayed by seven hours. Furthermore, the PNR indicates that for the second segment of Ms. Miller’s itinerary, from Montréal to Halifax, Air Canada proactively reprotected her on a later flight in order to accommodate the delay that occurred in the first segment of her itinerary.

[21] Air Canada argues that Ms. Miller’s claim that she paid CAD 483 for her ticket is inaccurate. Air Canada states that she had made a prior ticket change and incurred a change fee, but that her ticket cost was CAD 465.83. Air Canada states that it refunded this amount, despite the fact that her fare was not refundable and that it increased Ms. Miller’s voucher from 15 to 20 percent off a future booking.

[22] Air Canada argues that as the flight was not cancelled, Rule 80(C)(4)(f) of its Tariff does not apply and, therefore, there is no requirement to reimburse the cost of Ms. Miller’s WestJet ticket. Air Canada also argues that refunding Ms. Miller for both her WestJet and Air Canada tickets would be unfair and would enrich her unduly. Air Canada maintains that the refund that she received is more than what should have been given to her, as her ticket was not refundable.

Findings of fact

[23] When contradictory versions of events are presented by the parties, the Agency has previously ruled, such as in Decision No. 61-C-A-2017 (Yoganathanng v Emirates) and Decision No. 110-C-A-2017 (Kanschat v Air Canada), that the burden of proof falls on the applicant to establish that their version is most likely to have occurred. The Agency, in considering the evidence, must determine which of the different versions is more probable, based on the preponderance of evidence.

[24] Ms. Miller claims that she was told by Air Canada that her Flight No. AC1635 had been cancelled, that she had to purchase an alternate ticket to complete her trip home and that she would be refunded this expense. However, she failed to provide any evidence to substantiate this claim. In contrast, Ms. Miller’s PNR shows that Flight No. AC1635 was not cancelled, rather it shows that the flight was delayed by seven hours. Furthermore, the PNR indicates that for the second segment of Ms. Miller’s itinerary, from Montréal to Halifax, Air Canada proactively reprotected her on a later flight in order to accommodate the delay that occurred in the first segment of her itinerary. A PNR is a record in the database of a carrier’s computer reservation system that contains the itinerary for a passenger. It constitutes a business record that was updated at the time of the events in question in this case and appears to the Agency to be unaltered. Therefore, the Agency finds that Flight No. AC1635 was not cancelled, but rather was delayed.

[25] Ms. Miller claims that she was not provided a full refund of her Air Canada ticket. She claims that she paid CAD 483 for her initial ticket, but was only refunded CAD 207.83. Air Canada argues that her calculations are inaccurate, and states that her ticket cost CAD 465.83. Air Canada further states that it refunded Ms. Miller in the amount of CAD 465.83. Air Canada provided evidence of the ticket price and refund. Therefore, the Agency finds that Ms. Miller was fully refunded for her unused Air Canada ticket in the amount of CAD 465.83, even though the ticket was not refundable.

ANALYSIS AND DETERMINATIONS

[26] 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.

[27] Ms. Miller seeks a full refund of her unused Air Canada ticket, reimbursement of the cost of her WestJet ticket and compensation for her meal expense.

[28] Rule 80(C)(4) of Air Canada’s Tariff provides that in the event of a schedule irregularity, Air Canada will either arrange alternate transportation or provide a full refund of a passenger’s ticket. Air Canada has provided evidence that it provided Ms. Miller with alternate transportation by securing her seat on the replacement flight. Air Canada also provided alternate transportation to Ms. Miller for the second segment of her itinerary in light of the delay that occurred in the first segment. Therefore, the Agency finds that Air Canada properly applied the terms and conditions set out in Rule 80(C)(4)(a) of its Tariff.

[29] Ms. Miller is not entitled to a reimbursement of the cost of her WestJet flight, which she elected to purchase in order to reach her final destination sooner than she would have with her delayed replacement flight. Under Rule 80(C)(4)(d) of Air Canada’s Tariff, if the passenger chooses to no longer travel due to a schedule irregularity, the passenger is entitled to a refund of their ticket. In this case, Air Canada refunded Ms. Miller’s unused ticket in the full amount of CAD 465.83, even though part of the ticket was not refundable. To provide a reimbursement of the cost of the WestJet ticket would be to grant Ms. Miller free travel. The Agency has repeatedly held that passengers are not entitled to free travel, as found in Decision No. 30-C-A-2019 (Trudgen et al v Air Canada), Decision No. 56‑C‑A‑2018 (Dotan et al v El Al Israel and Jet Airways) and Decision No. 51‑C‑A‑2018 (Kapur v Jet Airways). Therefore, the Agency finds that in refunding Ms. Miller the full cost of her Air Canada ticket, Air Canada properly applied the terms and conditions set out in Rule 80(C)(4)(d) of its Tariff.

[30] Rule 80(C)(4)(f) of Air Canada’s Tariff states that for cancellations within Air Canada’s control, if the passenger provides credible verbal assurance to it of certain circumstances that require their arrival at destination earlier than other options contained in the Tariff, Air Canada will, if it is reasonable to do so, taking all circumstances known to it into account, and subject to availability, buy the passenger a seat on another carrier whose flight is scheduled to arrive appreciably earlier than the other options. Air Canada asserts that Rule 80(C)(4)(f) of its Tariff does not apply because Flight No. AC1635 was not cancelled, rather it was delayed. Further, Air Canada points out that, because Ms. Miller did not remain in the gate area, she did not provide any indication that the delayed travel schedule that was offered to her was inadequate, nor did she explain a need to arrive at her final destination earlier. Moreover, Ms. Miller did not plead that there was any urgency in her arrival at Halifax prior to the anticipated arrival of the replacement flight. Therefore, the Agency finds that Rule 80(C)(4)(f) of Air Canada’s Tariff does not apply.

[31] Rule 80(C)(5)(a) of Air Canada’s Tariff states that if the schedule irregularity is considered to be within the carrier’s control, a meal voucher will be offered for a delay that exceeds four hours. Air Canada states that meal vouchers were provided to those passengers who waited for the replacement flight. However, as Ms. Miller quickly left the gate area, she did not receive a meal voucher. The Agency finds that Ms. Miller, therefore, did not mitigate her expense and is not entitled to compensation for her meal expense. Accordingly, the Agency finds that Ms. Miller has not established that Air Canada did not properly apply the terms and conditions set out in Rule 80(C)(5)(a) of its Tariff.

CONCLUSION

[32] The Agency finds that, pursuant to subsection 110(4) of the ATR, Air Canada properly applied the terms and conditions set out in Rule 80(C)(4)(a) of its Tariff when it secured Ms. Miller’s seat on the replacement flight and reprotected her for the second segment of her itinerary. The Agency also finds that Air Canada properly applied the terms and conditions set out in Rule 80(C)(4)(d) of its Tariff when it refunded Ms. Miller the full cost of her ticket, even though part of that ticket was not refundable. Furthermore, the Agency finds that Ms. Miller did not establish that Air Canada did not properly apply the terms and conditions set out in Rule 80(C)(5)(a) of its Tariff when it did not compensate her for her meal expense.

[33] The Agency, therefore, dismisses the application.

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APPENDIX TO DECISION NO. 97-C-A-2020

Air Canada’s International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458

RULE 80 SCHEDULE IRREGULARITIES

(A) GENERAL

(1) Schedules not guaranteed. Times and aircraft type shown in timetables or elsewhere are approximate and not guaranteed, and form no part of the contract of carriage. Schedules are subject to change without notice. No employee, agent or representative of carrier is authorized to bind carrier by any statements or representation as to the dates or times of departure or arrival, or of the operation of any flight. It is always recommended that the passenger ascertain the flight’s status and departure time either by registering for updates on their electronic device, via the carrier’s web site or by referring to airport terminal displays.

….

(3) Best Efforts

Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch, but no particular time is fixed for the commencement or completion of carriage. Subject thereto carrier may, without notice, substitute alternate carriers or aircraft and may alter the route, add stopovers or omit the stopping places shown on the face of the ticket in case of necessity.

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(C) SCHEDULE IRREGULARITY

(1) Definition

Schedule irregularity means any of the following:

(a) Delay in scheduled departure or arrival of a carrier’s flight

(b) Flight cancellation, omission of a scheduled stop, or any other delay or interruption in the scheduled operation of a carrier’s flight, or

(c) Substitution of equipment or of a different class of service, or

(d) Schedule changes which require rerouting of passenger at departure time of the original flight.

….

(3) Given that passengers have a right to information on flight times and schedule changes, Air Canada will make reasonable efforts to inform passengers of delays, cancellations and scheduled changes and to the extent possible, the reason for the delay or change.

(4) In the event of a scheduled irregularity, Carrier will either:

NOTE: Additional services are provided to On My Way customers, as detailed below):

(a) carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service; or, at carrier’s option;

(b) endorse to another air carrier with which Air Canada has an agreement for such transportation, the unused portion of the ticket for purposes of rerouting; or at carrier’s option;

(c) reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from Rule 100, carrier will require no additional payment from the passenger but will refund the difference if it is lower or.

(d) If the passenger chooses to no longer travel or if Carrier is unable to perform the option stated in (a) (b) or (c) above within a reasonable amount time, make involuntary refund in accordance with Rule 100 (an exception to the applicability of a refund occurs where the passenger was notified of the schedule irregularity prior to the day of departure and the schedule irregularity is of 60 minutes or less) or,

(e) upon request, for cancellations within Air Canada’s control, return passenger to point of origin and refund in accordance with rule 100 as if no portion of the trip had been made (irrespective of applicable fare rules), or subject to passenger’s agreement, offer a travel voucher for future travel in the same amount; or, upon passenger request.

(f) For cancellation within Air Canada’s control, if passenger provides credible verbal assurance to Air Canada of certain circumstances that require his/her arrival at destination earlier than options set out in subparagraph (a) above, or, for On My Way customers, for cancellation within or outside carrier’s control, Air Canada will, if it is reasonable to do so, taking all circumstances known to it into account, and subject to availability, buy passenger a seat on another carrier whose flight is schedule to arrive appreciably earlier than the options proposed in (a) above. Nothing in the above shall limit or reduce the passenger’s right, if any, to claim damage, if any, under the applicable Convention, or under the law when neither Convention applies.

(5) Except as otherwise provided in applicable local law, in addition to the provisions of this rule, in case of scheduled irregularity within its control (and outside its control, for On My Way customers) Air Canada will offer:

(a) For a schedule irregularity lasting longer than 4 hours, a meal voucher for use, where available, at an airport restaurant or our on board cafe, of an amount dependent on the time of day.

….

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RULE 100 REFUND

(A) GENERAL

REFUND BY CARRIER: For unused ticket or portion thereof, or miscellaneous charges order, refund will be made in accordance with this rule.

(1) Economy Basic fares are entirely non-refundable and hold no credit for future travel. For all other nonrefundable tickets, the unused value may be used toward the purchase of another ticket within a year from date of issue if ticket is fully unused or from first departure date for partially used ticket, subject to any fee or penalty contained in applicable fare rules and subject to customer cancelling the booking prior to departure.

(2) For paper tickets, Persons requesting refund must surrender to carrier all unused flight coupon(s) of the ticket, or miscellaneous charges order.

(3) Carrier shall make all or any individual refunds upon written request, through its general accounting offices of regional sales or accounting offices, through Air Canada’s call centers, at certain airports, or on its transactional websites.

(4) Time Limitations For Refund Requests: Application for refund should be made during the period of validity of the ticket or miscellaneous charges order, which is one year from the date of issue. However, the period of validity may be extended subject to payment of applicable fee. For non-refundable tickets exchange for a ticket for travel commencing within 3 months of the end of the period of validity, applicable fee is $50. For refundable tickets, and refundable fees, taxes or charges, an over-aged fee of $100 will be applied to refunds issued after a year from the date of issue. For miscellaneous charges order, an over-aged fee of $25 will be applied to refunds issued after a year from the date of issue. No refund will be issued after 2 years from original ticket date of issue. All fees are subject to applicable taxes.

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(E) GENERAL REFUNDS

(1) The term “General Refund” (sometimes referred to as “Voluntary Refund”) for the purpose of this paragraph, shall mean any refund of a ticket or portion thereof other than Carrier-Caused refund as defined above, which includes but not limited to circumstances that are not within the airline’s control, [s]uch as situations described in rule 70 (check-in and Boarding Time Limits), rule 75 (refusal to Transport), passenger chooses to no longer travel, and schedule irregularities outside the carrier’s control.

(2) Amount of general refund

The amount of general refunds will be as follows:

(a) When ticket is fully unused, the amount of refund will be the fare, fees, charges and surcharges paid less any applicable cancellation/change fee or penalty set out in the applicable fare rules.

(b) When any ticket coupons have been used, the amount of the refund will be: the difference, if any, between the fare, taxes, fees, charges and surcharges paid and the fare, taxes, fees, charges and surcharges applicable for transportation used, less any applicable cancellations/change fee or penalty, as set out in the applicable fare rules. Note: The most restrictive cancellation/change fee applies.

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