Decision No. 85-C-A-2017

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against Air Canada, regarding the cancellation of Flight No. AC8569 and the delay of Flight No. AC8591, from San Jose, United States of America to Vancouver, British Columbia, Canada. The applicants state that they arrived at their destination 4 hours late.

[2] The applicants are requesting reimbursement in the amount of US$26.51 for the additional expenses for food and water, which they incurred due to the delay. In addition, the applicants indicate that if Flight No. AC8569 was overbooked, they are seeking reimbursement of their ticket costs. Alternatively, if the flight was not overbooked, the applicants are seeking reimbursement of 15% off the base fare of the ticket they purchased, instead of 15% off the base fare for future travel with Air Canada.

[3] The Agency will address the following issues:

1. Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff NTA(A) No. 458 (Tariff) as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), related to flight delays?
2. If Air Canada did not properly apply its Tariff, what remedies, if any, are available to the applicants?

[4] For the reasons set out below, the Agency finds that the applicants have failed to demonstrate that Air Canada did not properly apply the terms and conditions set out in its Tariff, provided that Air Canada reimburse the additional expenses incurred by the applicants in the amount of US$26.51 by September 5, 2017.

THE LAW

Air Transportation Regulations

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.

International Passenger Rules and Fares Tariff, NTA(A) No. 458

Rule 80(A)(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.

Rule 80(C)(5)(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.

POSITIONS OF THE PARTIES AND FINDING OF FACTS

The applicants’ position

[5] The applicants submit that on December 16, 2016, they proceeded to check in for Air Canada Flight No. AC8569, which was scheduled to depart at 6:50 p.m. The applicants state that, at that time, Air Canada advised them that the flight was cancelled and that they were re-scheduled to depart at 8:40 p.m. on Flight No. AC8591.

[6] The applicants claim that Air Canada told them that an e-mail advising of the flight cancellation was sent to them on December 3, 2016. The applicants insist that they did not receive it.

[7] The applicants indicate that Flight No. AC8591 was delayed until 10:51 p.m. and that Air Canada provided each of them with a US$10 meal voucher. The applicants submit that they incurred additional expenses for food and water in the amount of US$26.51. The applicants filed receipts in support of their claim.

[8] In addition, the applicants state that Air Canada wrote what appears to be a flight number (2583) on their boarding passes. The applicants are seeking information to determine if they were re‑protected on a different flight due to overbooking, and if so, they are seeking reimbursement of the cost of their tickets.

[9] The applicants state that if Flight No. AC8591 was not overbooked, they are seeking reimbursement of 15% off the ticket they purchased instead of Air Canada’s offer of 15% off the base fare of a flight for future travel with Air Canada.

Air Canada’s position

[10] Air Canada contends that on December 3, 2016, an e-mail was sent to the applicants, advising them that the flight number had changed from Flight No. AC8569 to Flight No. AC8591 and that there was no change to the time of the flight.

[11] Air Canada submits that the Flight No. AC8591 was delayed because of a delay on the inbound flight, and further prior to departure because of mechanical problems. Air Canada submitted a copy of the Netline document, which provides information on the specific flight, and indicates that Flight No. AC8591 was delayed by 4 hours and 15 minutes.

[12] Air Canada contends that the applicants travelled on Flight No. AC8591 and for that reason it is not relevant to determine whether the flight was oversold. Air Canada provided a copy of the Flight Opsis document and points out that 73 passengers travelled on the flight, which had a total capacity of 75 passengers.

[13] Air Canada asserts that it gave each applicant a US$10.00 meal voucher and that it is in the process of issuing a cheque for the additional expenses incurred by the applicants for food and water in the amount of US$26.51.

[14] Finally, Air Canada submits that the Agency has consistently stated that it does not have the jurisdiction to order compensation for pain and suffering or loss of enjoyment. For that reason, Air Canada is of the opinion that it does not need to reimburse 15% off the base fare of the applicants’ purchased tickets as its offer of 15% off the base fare of a ticket for future travel is a good will gesture.

[15] Air Canada requests that, for these reasons, the application be dismissed.

Finding of facts

[16] In support of Air Canada’s claim that the applicants were sent an e-mail regarding the change in flight numbers, it submitted the corresponding Passenger Name Record (PNR). The PNR indicates that the e-mail was sent to the applicants on December 3, 2016, without an error message. The applicants did not file evidence to contradict Air Canada’s submission. Therefore, the Agency accepts that the applicants were notified by e-mail of the change in flight numbers on December 3, 2016.

[17] In addition, Air Canada provided a copy of the Flight Opsis document that indicates that Flight No. AC8591, which had a carrying capacity of 75 passengers, departed San Jose with 73 passengers. The applicants did not file evidence to contradict that the flight was not oversold. As such, the Agency accepts that Flight No. AC8591 was not oversold.

ANALYSIS AND DETERMINATIONS

[18] When an application is filed with the Agency, the applicant must, on a balance of probabilities, establish that the air carrier has failed to apply the terms and conditions of carriage appearing in the applicable tariff.

[19] As stated in Rule 80(A)(1) of Air Canada’s Tariff, schedules are not guaranteed and are subject to change without notice. The times and the aircraft type that are indicated in the timetables or elsewhere are not guaranteed and form no part of the contract of carriage.

[20] Rule 80(C)(5)(a) of Air Canada’s Tariff states that in the event of a delay lasting longer than 4 hours, Air Canada will provide a meal voucher to all passengers for use at the airport restaurant, where available, or the onboard café. The amount of the voucher depends on the time of the day. In this case, the applicants were provided with a US$10 meal voucher per passenger and Air Canada advised the Agency that it will reimburse the additional expenses incurred by the applicants for food and water in the amount of US$26.51.

[21] Based on the above, the Agency finds that Air Canada properly applied its Tariff. The Agency finds that on a balance of probabilities, Air Canada acted consistently with subsection 110(4) of the ATR.

CONCLUSION

[22] In light of the above, the Agency finds that the applicants have failed to demonstrate that Air Canada did not properly apply the terms and conditions set out in its Tariff, provided that Air Canada reimburse the additional expenses incurred by the applicants in the amount of US$26.51 by September 5, 2017.