Determination No. A-2021-168

BACKGROUND

[1] On August 16, 2019, the Agency issued Decision No. LET-A-56-2019 (Direction) in which it initiated, on its own motion, an inquiry into whether certain terms and conditions of WestJet’s International/Transborder Passenger Rules and Fares Tariff No. WS-1, NTA(A) No. 518 (Tariff), in respect of schedule delays, schedule irregularities and denied boarding, are just and reasonable, taking into consideration the requirement for air carriers to apply the minimum obligations set out in the Air Passenger Protection Regulations, SOR/2019-150 (APPR).

[2] On August 30, 2019, WestJet responded to the Agency’s Direction by filing an amended tariff.

[3] On December 19, 2019, in Determination No. A-2019-241, the Agency found that WestJet’s Tariff did not meet the requirement set out in the Air Transportation Regulations, SOR/88-58(ATR) in that the Tariff did not contain terms and conditions relating to the matters specified in section 122 of the ATR and in that its terms and conditions were not clear. The Agency found that it would not be able to assess WestJet’s Tariff’s consistency with the APPR or its reasonableness until the issues of incompleteness and/or lack of clarity were addressed. The Agency ordered WestJet to provide the Agency, by March 18, 2020, with a proposed revised tariff that addressed the issues of completeness and clarity, that fully reflected the APPR and that, in WestJet’s view, met the standard of reasonableness.

[4] The Agency subsequently granted WestJet a number of extensions to file the tariff, primarily to afford WestJet the ability to draw upon the language of the sample tariff the Agency published in February 2021.

[5] On July 13, 2021, WestJet submitted its proposed tariff. WestJet states that the proposed tariff no longer reflects policies that applied prior to the coming into effect of the APPR and is consistent with the minimum obligations of the APPR. WestJet maintains that the proposed tariff addresses the issues of completeness and clarity identified in Determination No. A-2019-241 and meets the standard of reasonableness.

THE LAW

[6] The APPR prescribe a set of carrier obligations in relation to flights to, from and within Canada which is deemed, under subsection 86.11(4) of the Canada Transportation Act, SC 1996, c 10 (CTA), to form part of an air carrier’s tariff to the extent that a carrier’s tariff does not provide more advantageous terms and conditions of carriage.

[7] As set out in sections 110 and 111 of the ATR, air carriers are required to abide by the terms and conditions set out in their tariffs, and those terms and conditions must be just and reasonable.

[8] Pursuant to section 113 of the ATR, the Agency may

(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).

[9] Pursuant to section 122 of the ATR, a tariff for international carriage must contain certain information, including:

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

…

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

…
(v)  failure to operate the service or failure to operate the air service according to schedule,
(vi)  flight delay,
(vii) flight cancellation,
(viii) delay on the tarmac,
(ix) denial of boarding,
(x)  the re-routing of passengers,
…
(xxi) any other terms and conditions deemed under subsection 86.11(4) of the Act to be included in the tariff…

ISSUE

[10] As set out in Determination No. A-2019-241, the Agency must answer the following four questions:

1. Does the tariff contain terms and conditions relating to all matters listed under section 122 of the ATR?
2. Are the terms and conditions clear; that is, would a reasonable person conclude that the rights and obligations of both the carrier and passengers are stated in such a way as to exclude any reasonable doubt, ambiguity, or uncertain meaning?
3. Do the obligations of the carrier to its passengers under its tariff meet or exceed the requirements of APPR that are applicable to that carrier?
4. Are the terms and conditions reasonable; that is, do they strike a balance between the rights of passengers to be subject to reasonable terms and conditions of carriage and the particular carrier’s statutory, commercial, and operational obligations?

ANALYSIS AND DETERMINATION

[11] The Agency has reviewed the provisions of WestJet’s proposed tariff that are relevant to the subject of its inquiry, namely the provisions concerning schedule delays, schedule irregularities and denied boarding.

Completeness

[12] The first question is whether WestJet’s proposed tariff contains terms and conditions relating to the matters listed under section 122 of the ATR. In finding that WestJet’s Tariff was incomplete in Determination No. A-2019-241, the Agency specifically identified the requirement to address those matters in paragraph 122(c) of the ATR that reflect carrier obligations under the APPR.

[13] In its proposed tariff, WestJet has created a dedicated rule (Rule 100—APPR Provisions) which sets out the carrier’s obligations under the APPR. The Agency finds that the proposed tariff Rule 100 contains terms and conditions setting out the minimum obligations of the APPR listed under paragraph 122(c) of the ATR, including the carrier’s policies regarding flight delays; flight cancellations; denied boarding; lost, damaged or delayed baggage; seating of children under 14 years old; unaccompanied minors; and musical instruments. The Agency is satisfied that the addition into WestJet’s proposed tariff of a dedicated rule reflecting the APPR requirements and the complementary changes made to other supporting rules in the tariff address the Agency’s concern that WestJet’s Tariff was incomplete and did not properly reflect its APPR obligations.

Clarity

[14] The second question is whether WestJet’s proposed tariff meets its obligation of clarity under section 122 of the ATR. A term or condition is clear when a reasonable person concludes that the rights and obligations of both the carrier and passenger are stated in such a way as to exclude any reasonable doubt, ambiguity or uncertain meaning.

[15] WestJet has proposed several amendments to its tariff to address the issue of clarity. In particular, WestJet’s proposed tariff clearly identifies situations considered as a denial of boarding as opposed to a schedule irregularity (flight delay or cancellation) and clearly sets out compensation levels owed to passengers for different flight disruptions. The Agency is satisfied that WestJet has addressed the Agency’s concerns on clarity.

Consistency with APPR requirements

[16] The third question is whether WestJet’s proposed tariff meets or exceeds the requirements of the APPR. The APPR prescribe specific carrier obligations and passenger entitlements, which are deemed to form part of a carrier’s tariff insofar as the tariff does not provide more advantageous terms and conditions of carriage.

[17] As noted above, WestJet’s proposed tariff now contains a dedicated rule, Rule 100, which reflects the regulatory obligations set out in the APPR. WestJet has also reconciled other provisions of its proposed tariff to support the terms and conditions set out in Rule 100 and to ensure that passengers receive their entitlements according to the APPR. In particular, WestJet’s proposed tariff reflects its policies with respect to situations within the carrier’s control, within the carrier’s control but required for safety purposes, and outside the carrier’s control. WestJet has also updated its refunds rule, Rule 105, to support the requirement that refunds be provided to passengers for different flight disruptions.

[18] It is noted that in identifying situations that it considers to be outside a carrier’s control, WestJet has included additional situations not listed in section 10 of the APPR. The Agency acknowledges that section 10 of the APPR is not exhaustive and, therefore, could extend to additional situations. The Agency is satisfied that the additional situations listed in WestJet’s proposed tariff are not inconsistent with the APPR. However, the Agency retains the authority to determine whether any event or situation is in fact outside WestJet’s control upon further review, on its own motion or should the matter be brought before the Agency on complaint.

Reasonableness

[19] The Agency has found that WestJet’s proposed tariff provisions addressing schedule delays, schedule irregularities and denied boarding are consistent with the APPR. The proposed provisions are therefore, on their face, reasonable. However, the Agency retains the authority to review these provisions, on its own motion or on complaint, if further information suggests that the provisions are not fully consistent with the APPR or are otherwise unreasonable.

ORDER

The Agency orders WestJet to update its International/Transborder Passenger Rules and Fares Tariff No. WS-1, NTA(A) No. 518 (Tariff) with the proposed tariff revisions that are the subject of this Decision and to file it with the Agency by November 26, 2021.