Decision No. 97-C-A-2022

[1] The applicants purchased round-trip tickets from the respondent for travel from Calgary, Alberta, to Honolulu, Hawaii, via Vancouver, British Columbia, departing February 26, 2020, and returning March 7, 2020. While on their return flight to Vancouver, their 10:00 a.m. connecting flight to Calgary was cancelled. The applicants, who were originally travelling in Premium Economy Class, were rebooked in Economy Class on the next available flight to Calgary, via Comox, British Columbia, departing at 2:40 p.m. and arriving 8 hours and 54 minutes later than originally scheduled. The applicants declined the rebooked flight due to the change in aircraft type and delayed arrival time in Calgary. They were then offered another rebooked flight departing from Abbotsford, British Columbia, in Premium Economy, along with ground transportation to this airport. The applicants also declined this offer and instead booked Business Class tickets on an Air Canada flight departing Vancouver for Calgary at 12:15 p.m.

[2] The respondent offered the applicants a refund of the unused portion of their tickets in the amount of CAD 122.24. The refund was never processed. The applicants claim that the respondent did not properly communicate the reason for the flight cancellation or respond to their compensation request within 30 days as required under the Air Passenger Protection Regulations (APPR).Note 1 They seek compensation under the APPR for the cancellation of their return flight, which resulted in a delay; a refund in the amount of CAD 1,258.16 for the tickets they purchased from Air Canada; a full refund for their
original itinerary tickets in the amount of CAD 3,263.32; a written apology; the application of a penalty for not responding to their compensation request within 30 days; and compensation for stress.

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether the respondent properly applied its TariffNote 2 to the tickets thatthe applicants purchased. If the Agency finds that the respondent failed to properly apply its Tariff, it can order the respondent to compensate any person adversely affected for any expenses they incurred as a result of the respondent’s failure or to take any other appropriate corrective measures. The relevant provisions of the ATR, the Tariff and the APPR are set out in the Appendix.

[4] The Agency does not have authority to order written apologies, apply the penalty requested or compensate for stress and will therefore not consider these aspects of the application.

[5] Under the APPR, which is incorporated into Rule 100 of WestJet’s Tariff, passengers may be entitled to compensation for inconvenience if they experience a flight delay or cancellation that was within the carrier’s control.

[6] The respondent claims that the flight cancellation was due to unscheduled maintenance and was therefore within its control, but required for safety. It provides extracts from notes of an operation duty manager that indicate the flight was cancelled due to maintenance on tail 826, and it filed the APPR Flight Leg Search and Details document indicating that the aircraft was changed multiple times between March 6 and March 8, 2020, before the flight was cancelled. However, the evidence provided is vague and does not explain what maintenance was performed, why the maintenance was required for safety purposes, nor why and how it led to the cancellation of the applicants’ flight.

[7] In light of this, the Agency finds that the respondent has not demonstrated that the cancellation was within its control but required for safety purposes. Accordingly, the Agency finds the cancellation was within the respondent’s control.

ALTERNATE TRAVEL ARRANGEMENTS

[8] Rule 75(A) of the Tariff states that schedules are not guaranteed. Rule 75(d)(1)(b) of the Tariff states that the carrier will make all reasonable efforts to transport the passenger and their baggage at the times indicated on the schedule. Furthermore, Rule 75(d)(1)(a) of the Tariff states that for a change in schedule prior to travel, the carrier may need to substitute other aircraft and may change, add or omit intermediate stops.

[9] Section 12 of the APPR states the carrier’s obligations when a flight cancellation is within its control. Paragraph 12(3)(c) of the APPR states that the carrier will provide alternate travel arrangement or a refund as per section 17 of the APPR. Subparagraph 17(1)(a)(i) of the APPR states that the carrier must provide a confirmed reservation for the next available flight that is operated by the original carrier, or on another airline with which the original carrier has a commercial agreement, is travelling on any reasonable route from the airport at which the passenger is located to the destination indicated on the original ticket and departs within nine hours of the departure time indicated on the original ticket.

[10] The Agency acknowledges the inconvenience suffered by the applicants as a result of the cancellation. However, subsection 17(1) of the APPR does not require a carrier to offer an alternate air route that matches the original itinerary or guarantees a similar arrival time. Pursuant to subsection 17(3) of the APPR, alternate travel arrangements must, to the extent possible, provide services that are comparable to those of the original ticket. As such, an air route may still be reasonable even if it entails a delay, a change of aircraft type or an additional stopover. The proposed rebooking to Calgary via Comox was reasonable given the circumstances at the time of the cancellation. Therefore, the applicants are not entitled to compensation for expenses, including the new tickets they purchased with Air Canada.

REFUND

[11] The applicants state that on March 8, 2020, they were told by the respondent that they would be refunded CAD 110.67 and CAD 20.83 for their tickets, for a total of CAD 131.05, within 2 to 5 business days. They state that they never received the refund, whereas the respondent states that the applicants declined the refund of the unused portion of their tickets.

[12] Paragraph 17(2)(b) of the APPR provides that if the alternate travel arrangements offered do not accommodate the passenger’s travel needs, the carrier must refund the unused portion of the ticket. Rule 105 of the Tariff states that in the event a refund is required because of the carrier’s failure to operate or refusal to transport, the refund will be made as follows: if the ticket is partially unused, the total fare paid for each unused segment will be refunded. Therefore, the applicants are entitled to a refund for the unused portion of their tickets.

[13] The Agency finds that the respondent failed to properly apply the terms and conditions set out in Rule 105 of its Tariff and paragraph 17(2)(b) of the APPR, when it did not provide the applicants with a refund of the unused portion of the tickets.

[14] WestJet provided calculations for the unused portion of the applicants’ tickets. According to these calculations, the refund of the unused portion of Mr. Frandsen’s ticket is CAD 101.80, and the refund of the unused portion of Ms. Frandsen’s ticket is CAD 20.44. The Agency accepts these calculations as representing the amount that the applicants are entitled to in accordance with Rule 105 of the Tariff.

COMPENSATION FOR INCONVENIENCE

[15] Since the cancellation was within the carrier’s control, paragraph 12(3)(d) of the APPR provides that if the passenger is informed 14 days or less before the departure time on their original ticket that the arrival of their flight at the destination indicated on the original ticket will be delayed, the carrier will provide minimum compensation for inconvenience in the manner set out in section 19 of the APPR.

[16] Paragraph 12(3)(c), section 17 and subsection 19(2) of the APPR must be read together. The logical conclusion to be drawn from these provisions is that when a passenger does not accept a carrier’s alternate travel arrangements after a flight is cancelled less than 14 days before departure, the carrier must still provide the passenger with a refund pursuant to subsection 17(2) of the APPR, along with the compensation for inconvenience set out in subsection 19(2) of the APPR.

[17] In this case, the respondent cancelled the applicants’ flight on the day they were scheduled to travel back to Calgary. Accordingly, the Agency finds that the applicants are entitled to compensation for inconvenience in the amount of CAD 400 each pursuant to paragraph 19(2)(a) of the APPR.

COMMUNICATION

[18] When a flight is cancelled, paragraph 12(3)(a) of the APPR provides that the carrier must provide passengers with information set out in section 13 of the APPR, such as the reason for the cancellation. Similarly, Rule 75(d)(1)(e) of the Tariff states that the carrier will make all reasonable efforts to inform passengers of delays and schedule changes and, to the extent possible, the reason for the delay or change.

[19] Based on the evidence, it appears that the respondent communicated with the applicants on March 8, 2020, via text, voice messages and emails to inform them that their flight was cancelled due to mechanical issues and rebooked them on the next available flight. Therefore, the Agency finds that, on the balance of probabilities, the respondent properly applied Rule 75(d)(1)(e) of the Tariff and met the obligations established in section 13 of the APPR.

DEADLINE TO RESPOND TO A REQUEST FOR COMPENSATION

[20] Pursuant to subsection 19(4) of the APPR and Rule 100(j)(5)(b) of the Tariff, the carrier must provide the compensation or an explanation why the compensation is not payable within 30 days from the date on which the carrier receives the request.

[21] Determination A-2020-47 was in effect until June 30, 2020, and specified that air carriers were still required to respond to compensation requests within 120 days of the expiry of the order. However, since the respondent never provided the applicants with any compensation nor an explanation as to why the compensation was not payable, further to their request submitted on March 8, 2020, the Agency finds that the respondent failed to properly apply the terms and conditions set out in 100(j)(5)(b) of its Tariff and to meet the obligations established in paragraph 19(4) of the APPR and Determination A-2020-47. However, as the applicants have not incurred any expenses as a result of this failure, there is no remedy available for the applicants.

CONCLUSION

[22] In light of the above, the Agency finds that the respondent is to refund Mr. Frandsen CAD 101.80 and Ms. Frandsen CAD 20.44 for the unused portion of the tickets.In addition, the respondent is to compensate the applicants a total of CAD 800 for inconvenience.

ORDER

[23] Pursuant to subsection 113.1(1) of the ATR, the Agency orders the respondent to compensate the applicants in the amount of CAD 922.24, as soon as possible and no later than September 6, 2022.

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APPENDIX TO DECISION NO. 97-C-A-2022

Air Transportation Regulations, SOR/88-58

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(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, if it receives a written complaint, direct the air 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 that are applicable to the service it offers and that were set out in the tariff.

Air Passenger Protection Regulations, SOR/2019-150

Obligations when within carrier’s control

12(1) Subject to subsection 10(2), this section applies to a carrier when there is delay, cancellation or denial of boarding that is within the carrier’s control but is not referred to in subsections 11(1) or (2).

…

Cancellation

(3) In the case of a cancellation, the carrier must

(a) provide passengers with the information set out in section 13;

(b) if a passenger is informed of the cancellation less than 12 hours before the departure time that is indicated on their original ticket,
     provide the standard of treatment set out in section 14;

(c) provide alternate travel arrangements or a refund, in the manner set out in section 17; and

(d) if a passenger is informed 14 days or less before the original departure time that the arrival of their flight at the destination that is
     indicated on their ticket will be delayed, provide the minimum compensation for inconvenience in the manner set out in section 19.

…

Information — cancellation, delay, denial of boarding

13(1) A carrier must provide the following information to the passengers who are affected by a cancellation, delay or a denial of boarding:

(a) the reason for the delay, cancellation or denial of boarding;

(b) the compensation to which the passenger may be entitled for the inconvenience;

(c) the standard of treatment for passengers, if any; and

(d) the recourse available against the carrier, including their recourse to the Agency.

…

Alternate arrangements — within carrier’s control

17(1) If paragraph 11(3)(c), (4)(c) or (5)(c) or 12(2)(c), (3)(c) or (4)(c) applies to a carrier, it must provide the following alternate travel arrangements free of charge to ensure that passengers complete their itinerary as soon as feasible:

(a) in the case of a large carrier,

(i) a confirmed reservation for the next available flight that is operated by the original carrier, or a carrier with which the original carrier has a commercial agreement, is travelling on any reasonable air route from the airport at which the passenger is located to the destination that is indicated on the passenger’s original ticket and departs within nine hours of the departure time that is indicated on that original ticket,

…

Refund

(2) If the alternate travel arrangements offered in accordance with subsection (1) do not accommodate the passenger’s travel needs, the carrier must

…

(b) in any other case, refund the unused portion of the ticket.

…

Comparable services

(3) To the extent possible, the alternate travel arrangements must provide services that are comparable to those of the original ticket.

…

Compensation in case of refund

19(2) If paragraph 12(2)(c) or (3)(c) applies to a carrier and the passenger’s ticket is refunded in accordance with subsection 17(2), the carrier must provide a minimum compensation of

(a) $400, in the case of a large carrier; and

…

Deadline to respond

(4) The carrier must, within 30 days after the day on which it receives the request, provide the compensation or an explanation as to why compensation is not payable.

Airline Tariff Publishing Company, Agent International Passenger Rules and Fares Tariff No. WS1 containing Local Rules, Fares & Charges on behalf of WestJet Applicable to the Transportation of Passengers and Baggage between points in United States/Canada And points in Area 1/2/3 and between the US and points in Canada, CTA 518

…

Rule 75 Schedule Irregularities

(A)  General

Schedules are not guaranteed.  Flight schedules are subject to change without notice, and the times shown on WestJet’s published schedules, tickets, timetable and advertising are not guaranteed and form no part of this contract.  The carrier will not be responsible for errors or omissions either in timetables or other representation of schedules.  No employee, agent or representative of the carrier is authorized to bind the carrier by any statement of representation regarding the dates or times of departure or arrival, or of the operation of any flight.

(B)  Definitions

…

(2) “Schedule change” means the following:

(a) The cancellation of a scheduled flight where no WestJet flight of comparable routing is available within ninety (90) minutes of the
      original time of departure; or

(b) A change in the scheduled departure time of a WestJet flight which exceeds ninety (90) minutes; or

(c) A change in the routing of a scheduled WestJet flight which adds one (1) or more stops to the original itinerary; or

(d) A change in the routing of a WestJet scheduled flight that results in a scheduled arrival time more than ninety (90) minutes later
     than the original scheduled arrival time; or

(e) Any change in the arrival time of a WestJet flight that results in a misconnection to any flight shown in the same reservation and
     ticket.

…

Rule 100 APPR Provisions

(a) General

…

6. The carrier will determine when a delay or cancellation is controllable and identify which passengers are eligible for applicable compensation.

…

(f) Delays, cancellations or denial of boarding within the carrier’s control

1. When a delay, cancellation or denial of boarding has occurred and is due to situations within the carrier’s control, the carrier will provide passengers with the reason for the delay, cancellation or denial of boarding, provide information related to compensation to which passengers may be entitled to, provide information regarding the standard of treatment for passengers, if any, and provide information regarding the recourse available against the carrier, including recourse to the Canadian Transportation Agency, if applicable.

2. The carrier will communicate new information to passengers as soon as feasible and will provide updates to passengers every 30 minutes until a new departure time is set or alternative travel arrangements have been made. the method of communication will be provided in the method preferred by a passenger, if indicated, and in a method that is compatible with adaptive technologies intended to assist persons with disabilities, if applicable.

3. The carrier will not deny boarding due to situations within the carrier’s control unless the carrier has asked all passengers if they are willing to give up their seat. the carrier will not deny boarding to a passenger who is already on board the aircraft, unless the denial of boarding is required for safety.

4. The carrier may offer a benefit in exchange for a passenger willingly giving up their seat and will provide written confirmation of a benefit if accepted by a passenger.

5. If denial of boarding is necessary, the carrier will select passengers who will be denied boarding, giving priority to unaccompanied minors, a person with a disability and their support person, service animal, or emotional support animal, if any, a passenger who is travelling with family member, and a passenger who was previously denied boarding on the same ticket, in that order.

…

(j) Applicability

…

(5) Safe travel

…        

(b)

…

Within 30 days from the date on which the carrier receives the request, the carrier will provide the compensation or an explanation why the compensation is not payable.

The carrier will provide compensation in the following amounts to passengers who are delayed due to delay or cancellation and when that delay is within the control of the carrier and when the passenger was informed 14 days or less about the delay. regardless of the fare paid, passengers are entitled to a monetary compensation as follows:

a.no compensation if the delay is less than three hours;

b.$400, if the delay is three hours or more but less than six hours;

c.$700, if the delay is more than six hours but less than nine hours; and

d.$1000, if the delay is more than nine hours.

If a passenger is informed 14 days or less before the departure time on their ticket that the arrival of their flight at the destination that is indicated on their ticket will be delayed and the passengers ticket is refunded, the carrier will compensate the passenger in the amount of $400, if compensation is requested by the passenger.

Rule 105 Refunds

…

(B)  Involuntary cancellations

In the event a refund is required because of the carrier’s failure to operate or refusal to transport, the refund will be made as follows:

If the ticket is totally or partially unused, the total fare paid for each unused segment will be refunded.