Decision No. 99-C-A-2017

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), concerning missing Flight No. EK4675 from Toronto, Ontario, Canada to Halifax, Nova Scotia, Canada on September 9, 2016.

[2] The applicants are seeking compensation in the amount of $1,750 to recover expenses allegedly incurred as a result of missing their flight.

[3] The issue before the Agency is whether Emirates properly applied the terms and conditions of its International Passenger Rules and Fares Tariff, NTA(A) No. 503 (Tariff), as required by subsection 110(4) of the ATR.

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

BACKGROUND

[5] The applicants’ itinerary involved carriage from Karachi, Pakistan to Halifax (via Dubai, United Arab Emirates and Toronto), on an Emirates and WestJet code-share flight.

[6] Emirates’ Flight No. EK241 from Dubai experienced a delayed departure due to a baggage system malfunction, which resulted in the flight arriving late into Toronto, at 6:07 p.m.

[7] The applicants argue that due to the late arrival of Flight No. EK241 in Toronto, they missed their onward connecting flight, Flight No. EK4675, departing at 9:30 p.m. to Halifax, and could not travel out until the next day.

PRELIMINARY MATTERS

Code Share

[8] A code share constitutes an arrangement between air carriers in which one air carrier (marketing carrier) sells transportation in its name (under its code) on flights operated by the partner air carrier (operating carrier), where the marketing carrier’s tariff applies for the whole journey. The applicants’ tickets indicate that Emirates was the marketing carrier. Therefore, Emirates’ Tariff applies to this case.

Agency jurisdiction over quality of service and pain and suffering

[9] In their application, the applicants make references to what they perceived to be poor customer service on the part of Emirates, and the physical distress that they experienced as a result of the delay.

[10] The applicants are seeking a full refund of their tickets and the amount of a one-night stay at a five-star hotel.

[11] The Agency does not have jurisdiction to order compensation relating to the level of service that a passenger receives from an air carrier, as stated in previous decisions, such as Decision No. 18‑C-A-2015 (Enisz v. Air Canada) and Decision No. 55-C-A-2014 (Brine v. Air Canada).

[12] Therefore, the Agency will not consider this issue.

Apology

[13] The Agency is not a court of inherent jurisdiction and as such, it cannot coerce an expression of opinion or more specifically a letter of apology. The Agency is a creature of statute and the authority to order that letters of apology be provided would have to be expressly provided for in the Canada Transportation Act, S.C., 1996, c. 10, as amended. There is nothing in the Canada Transportation Act that empowers the Agency to order such an apology.

THE LAW

[14] Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff.

[15] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to:

1. take the corrective measures that the Agency considers appropriate; and,
2. 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.

[16] Tariff Rule 85(B) outlines Emirates’ obligations with respect to flight delays, and states:

When circumstances so require, EK may without notice cancel, terminate, divert, postpone, or delay any flight, in which case, if EK is unable to provide previously confirmed space, or causes a passenger to miss a connecting flight on which he/she holds a reservation, EK with due consideration to the passenger’s reasonable interest shall:

1) Carry the passenger on another of its scheduled flights on which space is available: or

2) Reroute the passenger to the destination indicated on the ticket or applicable portion thereof by its own scheduled services or the scheduled services of another carrier, or by means of surface transportation. If the fare, excess baggage charges and any applicable service charge for the revised routing are higher than the refund value of the ticket or applicable portion thereof as determined under Rule 90, no additional fare or charge shall be collected from the passenger. In the event the fare and charges for the revised routing are lower, a refund shall be made; or

[…]

[17] Tariff Rule 55(B)(3) incorporates the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) by reference and states that:

For the purpose of international carriage governed by the Montreal Convention, the Liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.

[18] Article 19 of the Montreal Convention sets out the carrier’s liability in case of delay of passenger, baggage or cargo::

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicants’ position

[19] The applicants state that they were travelling to Canada as permanent residents and intentionally booked an itinerary that had a five-hour connecting time in Toronto, in order to have sufficient time to go through immigration.

[20] The applicants submit that upon boarding in Dubai, take off was delayed two hours and as a result, they missed their connection in Toronto and had to take another flight on the next day.

[21] The applicants state that the delay caused them to experience extreme anxiety and nausea.

[22] According to the applicants, they received no cooperation from counter staff at the Lester B. Pearson Toronto International Airport (Toronto International Airport) in arranging transportation or accommodation.

[23] The applicants state that they paid for accommodation and meals at a “friend’s house in Toronto” and for taxi fare to and from the airport. The applicants submit that they incurred the following expenses:

• Taxi fare to and from the airport - $350
• Food $900 (dinner $400, lunch $200, breakfast $300)
• Accommodation $500

Emirates’ position

[24] Emirates contests all claims being made and argues that the delay of Flight No. EK241 was not the cause of the applicants’ failure to board Halifax-bound Flight No. EK4675 at 9:30 p.m. in Toronto.

[25] Emirates argues that, notwithstanding the delay, the applicants still had a transit time of 3 hours and 23 minutes in Toronto before Emirates’ Flight No. EK4675 departed for Halifax.

[26] Emirates further argues that the applicants did not suffer any recoverable loss as a result of the delay. Emirates states that it believes that the applicants did not pay for the expenses as claimed, and that that they failed to substantiate (or even provide adequate evidence of) the claims being made. Emirates adds that the amounts claimed are “unreasonable, unrealistic and potentially fabricated.”

[27] Emirates states that the amounts paid by the applicants to their “friends” are “fanciful” and contends that the average cost of a hotel near the Toronto International Airport is between CAD$180 and CAD$220 per night (for a room able to accommodate two adults and two infants), and the expected cost of dinner, lunch and breakfast for two adults (with two infants) in acceptable restaurants would be approximately CAD$200. Emirates further states that the disparity between the above amounts and the amounts claimed raises “genuine concerns over the believability of the applicants’ claims”. Furthermore, Emirates argues that the CAD$350 that the applicants are claiming for the two taxi journeys to and from the airport to their “friends’” property is not supported by any evidence, receipts or details of the alleged taxi journeys (e.g. taxi company, time of day, pick up/drop off locations etc.).

[28] Emirates submits that its policy is to record all complaints and customer service-related issues and interactions that Emirates has with its passengers. These passengers’ complaint/service‑ related records are vitally important to Emirates to not only track and manage Emirates’ service standards but also validate any customer complaints such as this current claim.

[29] With respect to the applicants missing Flight No. EK4675, Emirates states that neither it nor WestJet has any record of any interaction, complaint or discussion with the applicants in Toronto. In support of this, Emirates provided a written statement from Patty Watts, the Airport Station Manager on duty at the Toronto International Airport on September 9, 2016.

[30] Ms. Watts states that she can confirm that there is no record of any interaction between the applicants and herself or her staff. According to Ms. Watts, it is Emirates’ practice to provide assistance to any passenger requesting such. She submits that Emirates’ staff were available to assist arriving passengers from Flight No. EK241. She specifically states that for the flight in question they had 16 passengers requiring special assistance with wheelchairs, they rebooked 23 passengers onto other flights, and three passengers were provided with overnight hotel accommodations. Further, she states that staff were on duty at the check-in counters until approximately 9:15 p.m. on the evening of September 9, 2016, after which staff were present at the gate for the departing Emirates’ flight. She notes that the applicants’ baggage was not left behind on the belt, nor is there any record of the baggage being handed over for transfer to Terminal 3 by the applicants, as is the normal process. Based on this, she surmises that the passengers collected their baggage and transferred the baggage on their own without assistance.

[31] Emirates argues that the applicants’ bags were never loaded onto, or offloaded from, Flight No. EK4675, which, given the fact that the applicants still had a transit in Toronto of 3 hours and 23 minutes, suggests that the applicants intentionally decided to not board the relevant flight and instead spent the night in Toronto.

[32] Emirates submits that it has a record of a call that the applicants made on September 9, 2016 to Emirates’ Contact Centre, where Emirates rebooked the applicants from Flight No. EK4675 departing Toronto on September 9, 2016 to WestJet Flight No. WS270 departing Toronto on September 10, 2016. In support of its statement, Emirates provided a copy of the applicants’ Passenger Name Record which is annotated with remarks regarding the rebooking.

[33] Emirates states that the applicants have not discharged their burden to prove that the delay of Flight No. EK241 was responsible for their alleged losses, and that the applicants paid for the alleged amounts claimed for food, accommodation and transportation.

Findings of fact

[34] It is uncontested by the parties that Flight No. EK241 was delayed in departing Dubai and arrived late into Toronto, and that the applicants travelled on the following day to Halifax.

[35] The applicants did not reply to Emirates’ answer, therefore the evidence filed by Emirates is not challenged.

[36] Tariff Rule 85(B) enables the carrier to delay a flight when it is necessary to do so. In this case, the delay was the result of the baggage system malfunctioning.

ANALYSIS AND DETERMINATIONS

[37] When an application is filed with the Agency, the onus is on the applicant to establish that, on a balance of probabilities, the air carrier has failed to apply, or has inconsistently applied, the terms and conditions of carriage set out in its Tariff as required by subsection 110(4) of the ATR.

[38] In Decision No. 308-C-A-2010 (MacGillivray v. Cubana), the Agency stated that to prove a fact, a party must present the best evidence available in light of the nature and circumstances of the case.

[39] The applicants state that they intentionally booked a five-hour connecting time in Toronto to clear immigration; however, they have not provided any arguments or evidence to illustrate that 3 hours and 23 minutes was insufficient time to connect to Flight No. EK4675.

[40] The Agency agrees with Emirates’ arguments and finds that there is no compelling evidence to substantiate the claims being made. The Agency notes that the applicants have not presented any evidence beyond a general assertion.

[41] Therefore, the Agency finds that the applicants have not discharged their burden to demonstrate that Emirates contravened subsection 110(4) of the ATR. Accordingly, Emirates is not required to compensate the applicants for any expenses incurred as a result of them not travelling on Flight No. EK4675.

CONCLUSION

[42] The Agency dismisses the application.