Decision No. 99-C-A-2021

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondents concerning the flight advancement of Air India Flight No. AI55 from Kochi, India, to Mumbai, India, on August 9, 2016, resulting in them missing their flight and onward connections to Canada.

[2] The applicants seek the following relief:

• Reimbursement of the value of the Alitalia and Air Canada tickets they purchased, totalling approximately CAD 6,800; and
• Compensation for stress.

[3] In this decision, the Agency will address the following issues:

1. Did Air India properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff No. AI-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Air India Applicable to the Transportation of Passengers and Baggage Between Points in the United Stated/Canada and Points in Areas 2/3, NTA(A) No. 317 (Tariff), as required by subsection 110(4) of the ATR?
2. Should Air India modify its Tariff to include the terms and conditions relating to its policy on flight advancements pursuant to paragraph 122(c) of the ATR?
3. Are Rule 85(A) and Rules 85(B)(1) and (2) of the Tariff reasonable within the meaning of subsection 111(1) of the ATR?

[4] For the reasons set out below, the Agency finds that:

1. the applicants’ right to damages has been extinguished under the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) and Air India’s Tariff and, therefore, dismisses the application.
2. on a preliminary basis, Air India’s Tariff is unclear regarding flight advancements, therefore contravening paragraph 122(c) of the ATR;
3. on a preliminary basis, Rule 85(A) and Rules 85(B)(1) and (2) of Air India’s Tariff are unreasonable within the meaning of subsection 111(1) of the ATR.

[5] The Agency also provides Air India an opportunity to show cause by October 3, 2021, why it should not be ordered to amend its Tariff.

BACKGROUND

[6] The applicants were scheduled to travel on August 9, 2016, from Kochi, India, to Regina, Saskatchewan, via: Mumbai, India; Frankfurt, Germany; and Toronto, Ontario. When they checked in for Air India Flight No. AI55 at Cochin International Airport they were advised that the flight had already departed. They claim that neither they nor their travel agent were notified that the flight was rescheduled to depart earlier and, as a result, they missed their departing flight and all of their connecting flights to Canada.

PRELIMINARY MATTERS

Applicable tariff

[7] The applicants were travelling on interline tickets with flights operated by Air India, Lufthansa and Air Canada. In Decision No. 150-C-A-2013, the Agency identified the difference between interline and code-share tickets. In that decision, the Agency stated:

Only in the case of a code-share ticket would one carrier’s terms and conditions apply for carriage performed by the other. A code-share ticket is a ticket for travel sold under the code or identity of one carrier but performed by two or more carriers via specific contractual agreements between the carriers governing such flights, where the marketing carrier’s tariff applies for the whole journey.

... Interline travel is transportation utilizing two or more carriers operating under their own terms and conditions. For the convenience of the passenger and the participating carriers, all segments of the interline travel appear on the same ticket and the fare for the journey is paid to the ticketing carrier and later distributed between the carriers providing the transportation. However, the transportation is not marketed solely by one carrier.

[8] When determining which carrier’s tariff applies on interline tickets, the Agency has found that each carrier’s tariff applies to their respective flights of the itinerary.

[9] The applicants missed Air India Flight No. AI55; therefore, Air India’s Tariff applies to this case.

Application against Air Canada

[10] Both Air Canada and Air India were named as respondents. However, upon review of the evidence, Air Canada did not play a role in the applicants missing their flight from Kochi. Since Air India’s tariff applies to this matter, the Agency dismisses the application against Air Canada.

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] Subsection 111(1) of the ATR provides that the terms and conditions of carriage contained in the tariff must be just and reasonable:

All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just and reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic.

[13] If the Agency finds that a tariff or portion of a tariff is unjust or unreasonable, the Agency may, pursuant to section 113 of the ATR:

(a) suspend any tariff or portion of a tariff that appears not to conform with subsections 110(3) to (5) or section 111 or 112, or disallow any tariff or portion of a tariff that does not conform with any of those provisions; and

(b) establish and substitute another tariff or portion thereof for any tariff or portion thereof disallowed under paragraph (a).

[14] 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 it 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.

[15] Section 122 of the ATR states:

Every tariff shall contain

(a) the terms and conditions governing the tariff generally, stated in such a way that it is clear as to how the terms and conditions apply to the tolls named in the tariff;

(b) …

(c) the terms and conditions of carriage, clearly stating the air carrier’s policy in respect of at least the following matters, namely,

…

[16] The relevant provisions of the Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES

The applicants

[17] The applicants state that when they checked in for Air India Flight No. AI55 at Cochin International Airport they were advised that the flight had already departed. They claim that neither they nor their travel agent were notified that the flight was rescheduled to depart earlier and that, as a result, they missed that flight and all of the other flights on their return itinerary to Canada.

[18] According to the applicants, the check-in agent tried to book them on an alternative flight later that day, but none were available. Their only option was to purchase new tickets to travel on August 11, 2016, with Alitalia and Air Canada, if they wished to return to Canada before the tourist visa of one of the applicants was due to expire.

[19] The applicants state that the purchase of the new tickets caused them “financial trouble” and “mental stress”. They claim that at the time of the incident, they filed a complaint at the airport with the “Airline Authorities” and contacted Air India and Air Canada regarding this matter.

Air India

[20] Air India argues that the application should be dismissed because the applicants did not commence their claim within the applicable limitation periods and that the delay in bringing their complaint has prejudiced its ability to respond. It states that it only became aware of the complaint approximately three years after the incident date, on September 27, 2019, when it was contacted by the Agency’s informal dispute resolution process.

[21] Air India argues that since the applicants reside in the province of Saskatchewan, the courts of Saskatchewan would have jurisdiction over their claim and the applicable provincial law would be The Limitations Act, SS 2004, c L-16.1 (Act). Air India claims that the Act creates a general rule that a claimant must commence a proceeding within two years after a claim is discovered.

[22] Air India also argues that the applicants’ right to damages is extinguished by Article 35 of the Montreal Convention, which provides that an action of a claimant respecting the right to damages is extinguished if not brought before a court within two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

ANALYSIS AND DETERMINATIONS

Did Air India properly apply the terms and conditions set out in its Tariff, as required by subsection 110(4) of the ATR?

[23] 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.

[24] In Canada, the Montreal Convention is incorporated into law by the Carriage by Air Act, RSC 1985, c C-26, which governs. among other things, the time and liability limitations for damages incurred in the carriage of passengers by air. Rule 55(B) of the Tariff provides that the terms and conditions set out in the Tariff are subject to the rules and limitations relating to liability established by the Montreal Convention. Therefore, the Agency finds that the limitation periods set out in the Montreal Convention apply, not those of Saskatchewan’s Act.

[25] Article 1 of the Montreal Convention states that the Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. The applicants were travelling on the return portion of their round-trip tickets from Regina to Kochi when the incident occurred. The Agency finds that since they had begun travel on their tickets, the performance of the contract for carriage by air had commenced. Therefore, the Montreal Convention applies to this matter.

[26] Article 35 of the Montreal Convention provides that a passenger’s right to damages will be extinguished if their claim is not brought before a court within two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived at destination, and the method of calculating that period shall be determined by the law of the court seized of the case.

[27] Rule 55(E)(2) of the Tariff provides that damages against the carrier shall be extinguished unless an action is brought within two years from the date of arrival at the destination or from the date on which the aircraft ought to have arrived.

[28] The applicants were initially scheduled to arrive in Regina on August 10, 2016. On August 6, 2019, they brought their case to the Agency’s informal dispute resolution process. The Agency has found in past decisions, such as in Decision No. 18-C-A-2015, that bringing a complaint to the Agency through the informal dispute resolution process is an action against the carrier for the purpose of Article 35(1) of the Montreal Convention. The evidence establishes that the applicants brought their case to the Agency’s attention three years after the incident date. Therefore, the Agency finds that the applicants’ right to damages has been extinguished in accordance with Article 35 of the Montreal Convention. Consequently, the Agency will not consider the issues raised in the application or the relief sought.

Should Air India modify its Tariff to include the terms and conditions relating to its policy on flight advancements pursuant to paragraph 122(c) of the ATR?

[29] Although the applicants did not raise the issue of clarity of the carrier’s Tariff in their application, the Agency notes that Rule 80(B) of the Tariff only addresses matters relating to delays and cancellations; it is silent on the rights of passengers affected by flight advancements.

[30] In its answer to the application, Air India states that it has policies in place when a flight is advanced. Namely, it permits passengers to make changes to their itineraries at no charge and that these changes could be made either before or after the original flight departed. The carrier also provides that if a passenger misses a flight, Air India’s airport staff would work with the passenger to reprotect them on the next available flight. Air India would also coordinate with other air carriers in the case where the passenger has a connection with another air carrier.

[31] The Agency notes that with respect to international carriage, paragraph 122(c) of the ATR states that the tariff shall contain the terms and conditions of carriage in respect of “at least the following matters.” The use of the phrase “at least” in paragraph 122(c) of the ATR indicates that the list of matters that shall be contained in a tariff is not exhaustive. Rather, the Agency has the authority to perform a broad interpretation of this provision and to consider additional matters that are not otherwise listed therein.

[32] In Decision No. 459-C-A-2014, the Agency found that supplemental policies that constitute terms and conditions of carriage shall form part of a carrier’s tariff. The Agency adopts the same reasoning in this case. The Agency also finds that the absence of any terms and conditions addressing the rights of passengers affected by flight advancements creates reasonable doubt, ambiguity or uncertain meaning with respect to the rights and obligations of both the carrier and passengers in such cases.

[33] In light of the above, the Agency finds, on a preliminary basis, that the Tariff is unclear as it fails to set out Air India’s policy regarding the rights of passengers affected by flight advancements.

Are Rule 85(A) and Rules 85(B)(1) and (2) of the Tariff reasonable within the meaning of subsection 111(1) of the ATR?

[34] The applicants did not raise the issue of reasonableness of the carrier’s Tariff in their application. However, upon review of the Tariff, the Agency notes that Rule 85(A) and Rules 85(B)(1) and (2) of the Tariff appear to be unreasonable.

[35] Rule 85(A) and Rules 85(B)(1) and (2) of Air India’s Tariff provide that schedules are subject to change without notice. Rule 85(A) of Air India’s Tariff also provides that the carrier assumes no responsibility for making connections.

[36] In Decision No. 344-C-A-2013, the Agency found that tariff language that deprives passengers of the right to be provided with notice about schedule changes is unreasonable. The Agency also found, in Decision No. 14-C-A-2019, that tariff language that purports to be blanket exclusions of liability to relieve carriers from any and all liability for damages to their passengers occasioned by delays and/or cancellation of flights is also unreasonable, as it is inconsistent with the Montreal Convention.

[37] The Agency finds that the language of Rule 85(A) and Rules 85(B)(1) and (2) of Air India’s Tariff are largely identical to tariff rules that the Agency previously disallowed in Decision Nos. 344-C-A-2013 and 14-C-A-2019.

[38] Based on the foregoing, the Agency finds, on a preliminary basis, that Rule 85(A) and Rules 85(B)(1) and (2) of Air India’s Tariff are unreasonable because they relieve Air India from the obligation to provide timely notice to its passengers about delays or schedule changes. Rule 85(A) also appears to be unreasonable because the carrier assumes no responsibility for making connections, thus it is inconsistent with the Montreal Convention insofar as this would appear to place limitations on claims governed by the Convention.

CONCLUSION

[39] The Agency finds that the applicants’ right to damages has been extinguished under Article 35 of the Montreal Convention and Air India’s Tariff. Therefore, the Agency dismisses the application.

[40] The Agency finds, on a preliminary basis, that Air India’s Tariff is unclear regarding flight advancements, therefore contravening paragraph 122(c) of the ATR.

[41] The Agency finds, on a preliminary basis, that Rule 85(A) and Rules 85(B)(1) and (2) of the Tariff are unreasonable as they relieve the carrier from the obligation to provide timely notice of schedule changes, and that Rule 85(A) is also inconsistent with the Montreal Convention. Thus, the Agency finds that these Rules are unreasonable within the meaning of subsection 111(1) of the ATR.

ORDER

[42] The Agency provides Air India with the opportunity to show cause, by October 3, 2021, why the Agency should not find:

1. that the Tariff is unclear regarding flight advancements, therefore contravening paragraph 122(c) of the ATR, and why it should not be ordered to amend it; and
2. that Rule 85(A) and Rules 85(B)(1) and (2) of the Tariff are unreasonable within the meaning of 111(1) of the ATR, and why it should not be ordered to amend them.

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APPENDIX TO DECISION NO. 99-C-A-2021

Air India’s International Passenger Rules and Fares Tariff No. AI-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Air India Applicable to the Transportation of Passengers and Baggage Between Points in the United Stated/Canada and Points in Areas 2/3, NTA(A) No. 317

RULE 55 LIABILITY OF CARRIERS

…

(B)  LAWS AND PROVISIONS APPLICABLE

…

(4) 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.

…              

(E)  TIME LIMITATIONS ON CLAIMS AND ACTIONS

…

(2) Any right to damages against carrier shall be extinguished unless an action is brought within two (2) years reckoned from the date of arrival at the destination or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

…

RULE 80 REVISED ROUTINGS, FAILURE TO CARRY AND MISSED CONNECTIONS

…

(B) INVOLUNTARY REVISED ROUTING (SEE ALSO RULE 87 (DENIED BOARDING COMPENSATION)

In the event carrier cancels a flight, fails to operate according to schedules, substitutes a different type of equipment or different class of service, or is unable to provide previously confirmed space, or the passenger is refused passage or removed, in accordance with Rule 25 herein, carrier will either:

…

RULE 85 SCHEDULES, DELAYS AND CANCELLATIONS OF FLIGHTS

(A)  SCHEDULES

The times 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 and Carrier assumes no responsibility for making connections. Carrier will not be responsible for errors or omissions either in timetables or other representations of schedules. No employee, agent or representative of carrier is authorized to bind carrier as to the dates or times of departure or arrival or of the operation of any flight.

(B)  CANCELLATIONS

(1) Carrier may, without notice, substitute alternate carriers or aircraft.

(2) Carrrier may, without notice cancel, terminate, divert, postpone or delay any flight or the further right of carriage or reservation of traffic accomodations and determine if any departure or landing should be made, without any liability except to refund in accordance with its tariffs the fare and baggage charges for any unused portion of the ticket if it would be advisable to do so:

…