Letter Decision No. LET-C-A-31-2017

SUMMARY

[1] Edward Diogo filed an application with the Canadian Transportation Agency (Agency) against TAP in regard to a missed connecting flight that resulted in a two-day travel delay. Mr. Diogo and his family missed their return flight travelling from Lisbon, Portugal to Toronto, Ontario, Canada, because of what Mr. Diogo alleges were several “errors” on the part of TAP.

[2] Mr. Diogo is seeking compensation in the amount of CAN$2,163.46, which represents CAN$1,104.37 for the out of pocket expenses he incurred during his two-day stay in Lisbon, and CAN$1,059.09 for rebooking fees he states he incurred to make changes to a pre-booked vacation to the Dominican Republic with WestJet Vacations.

[3] The Agency will address the following issues in this Decision:

1. Did TAP properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA (A), No. 314 (Tariff) relating to delay, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
2. If TAP did not properly apply its Tariff, what remedy, if any, is available to Mr. Diogo?
3. Should the Agency consider the clarity and the reasonableness of Rules 55(B)(3)(b) and (c) of TAP’s Tariff?
4. Is it reasonable that TAP’s Tariff may result in an itinerary requiring passengers to check in more than once when travelling on a code-share flight with multiple legs?

[4] For the reasons that follow, the Agency finds that TAP did not properly apply its Tariff and therefore, the Agency orders TAP to compensate Mr. Diogo in the amount of CAD$2,163.46.

[5] The Agency finds that it should consider the clarity and reasonableness of Rules 55(B)(3)(b) and (c) of TAP’s Tariff. Moreover, the Agency finds, on a preliminary basis, that TAP’s Tariff Rules 55(B)(3)(b) and (c) are unclear and unreasonable, contrary to the ATR, and requires TAP to show cause why these Rules are not unclear and unreasonable and why it should not be ordered to amend its Tariff.

[6] Furthermore, the Agency finds, on a preliminary basis, that TAP’s Tariff, which can result in passengers having to check-in more than once on a code-share flight, is unreasonable, contrary to the ATR, and requires TAP to show cause why its Tariff is not unreasonable and why it should not be ordered to amend its Tariff.

BACKGROUND

[7] Mr. Diogo purchased four round-trip tickets from TAP for travel from Toronto to Ponta Delgada, Portugal, departing September 23, 2015 and returning September 29, 2015. The itinerary TAP sold to Mr. Diogo involved TAP code-share flights operated by SATA Internacional - Serviços e Transportes Aéreos, S.A. (SATA), and Air Canada. Mr. Diogo was travelling with his wife, Maria Diogo, his daughter, Jacquelyn Diogo, and his sister-in-law, Maria Pereira (the passengers).

[8] Mr. and Mrs. Diogo had also previously booked a vacation with WestJet Vacations scheduled to depart from Toronto to Punta Cana, Dominican Republic on September 30, 2015, one day after their original scheduled return.

[9] On the return leg of their itinerary, from Ponta Delgada to Toronto via Lisbon on September 29, 2015, the passengers missed their connecting flight from Lisbon to Toronto. Mr. Diogo complained to TAP regarding this missed connection and sought compensation for expenses he alleges he incurred as a result. He was not satisfied with TAP’s response to his complaint and eventually filed an application with the Agency. On January 5, 2017, TAP filed its answer, and on January 10, 2017, Mr. Diogo filed a reply.

THE LAW

The ATR

[10] Subsection 110(4) of the ATR requires that a carrier offering an international service apply the terms of its tariff.

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.

[11] Not only must a carrier apply the terms in its tariff, but those terms must be just and reasonable.

111 (1) 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.

[12] Tariffs must also be clear.

122 Every tariff shall contain

…

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

…

x. limits of liability respecting passengers and goods,

xi. exclusions from liability respecting passengers and goods…

[13] The Agency can disallow a tariff or a portion thereof if it does not comply with certain provisions of the ATR, including the requirement that the tolls and terms and conditions be just and reasonable. Specifically, section 113 of the ATR states that the Agency may

1. 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
2. establish and substitute another tariff or portion thereof for any tariff or portion thereof disallowed under paragraph (a).

[14] Section 113.1 empowers the Agency to order corrective measures in the event that a carrier fails to properly apply its tariff.

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 direct it 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.

The Montreal Convention

[15] Article 19 of the Montreal Convention establishes the liability of carriers for damages occasioned by delay.

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.

[16] Chapter V of the Montreal Convention deals with carriage by air by a person other than the contracting carrier. Specifically, Article 39 reads as follows:

The provisions of this Chapter apply when a person (hereinafter referred to as “the contracting carrier”) as principal makes a contract of carriage governed by this Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor, and another person (hereinafter referred to as “the actual carrier”) performs, by virtue of authority from the contracting carrier, the whole or part of the carriage, but is not with respect to such part a successive carrier within the meaning of this Convention. Such authority shall be presumed in the absence of proof to the contrary.

[17] Article 40 of the Montreal Convention sets out which carrier is subject to the Convention.

If an actual carrier performs the whole or part of carriage which, according to the contract referred to in Article 39, is governed by this Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in this Chapter, be subject to the rules of this Convention, the former for the whole of the carriage contemplated in the contract, the latter solely for the carriage which it performs.

[18] The Montreal Convention includes a provision which provides for the joint and several liability of the contracting and actual carriers. Article 45 states as follows:

In relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately. If the action is brought against only one of those carriers, that carrier shall have the right to require the other carrier to be joined in the proceedings, the procedure and effects being governed by the law of the court seised of the case.

TAP’s Tariff

[19] TAP’s Tariff includes a provision dealing with delay which essentially mirrors Article 19 of the Montreal Convention.

55(B)(3) The Carrier shall be liable for damage occasioned by delay in the carriage of passengers by air, as provided in the following paragraphs:

a. The carrier shall not be liable 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.

[20] TAP’s Tariff Rule 55(B)(3) also includes the following terms and conditions:

b. Airport, air traffic control, security, and other facilities or personnel, whether public or private, not under the control and direction of the Carrier are not servants or agents of the Carrier, and the Carrier is not liable to the extent the delay is caused by these kinds of facilities or personnel.

c. Damages occasioned by delay are subject to the terms, limitations and defenses set forth in the Warsaw Convention the Montreal Convention, whichever may apply. They include foreseeable compensatory damages sustained by a passenger and do not include mental injury damages.

[21] The Tariff states that its fare rule provisions are to be considered part of the Tariff.

5(A)(8) Except as otherwise provided for below, fare rule provisions, local or joint fares, including arbitraries contained in the On-line Tariff Database maintained by Airline Tariff Publishing Company, agent on behalf of TP are considered to be part of this tariff.

TAP Code Share Agreements

[22] In each of the code-sharing agreements, which the Agency has approved and which are applicable to this case, the Agency has stated that TAP must apply its tariff to the transportation of its traffic.

POSITIONS OF THE PARTIES

Mr. Diogo’s Position

[23] Mr. Diogo states that when he and his family checked in for their TAP flights with SATA at the Ponta Delgada airport on September 29, 2015, they were only provided with boarding passes for their flight from Ponta Delgada to Lisbon operated by SATA; they were told that they would receive their international boarding passes for the Air Canada operated flight from Lisbon to Toronto at the Lisbon airport. Upon arrival in Lisbon, the passengers had to wait on the airplane for shuttle busses to take them to the terminal. When they arrived at the terminal, they were directed to customs because they did not have their boarding passes for their flight to Toronto, and had to exit the airport’s secure area and then check in again with Air Canada. However, when they arrived at Air Canada’s check-in counter, it was closed. Mr. Diogo sought assistance from several TAP staff members, but no one was able to help him and his family obtain their requisite boarding passes and consequently, the passengers missed their flight to Toronto.

[24] Additionally, Mr. Diogo alleges that TAP did not help them rebook on the next flight to Toronto. Mr. Diogo submits that they were told by an Air Canada representative to return to the airport the following day to determine whether there would be seats available on the Toronto flight departing on that day. Upon arrival at the airport the next day, the flight in question was full and so they had to take the next flight which was leaving the following day. As a result, the passengers had to spend two days in Lisbon and Mr. and Mrs. Diogo missed their September 30 flight to Punta Cana.

[25] Mr. Diogo states that, during the passengers’ stay in Lisbon, he incurred expenses for food and hotel accommodation, as well as for clothing as their luggage containing their clothing was transported to Toronto on their booked September 29th flight. He also had to rebook the Dominican Republic vacation, and was charged CAN$1,059.09 in fees to do so.

[26] Mr. Diogo states that he understands SATA and Air Canada do not have a ticketing agreement which caused SATA to be unable to print the boarding passes for the connecting flight from Lisbon to Toronto. Mr. Diogo argues, however, that as the marketing carrier, TAP should be liable. He further argues that because SATA and Air Canada do not have a ticketing agreement, connecting flights between them should not be sold. In his view, it is TAP’s responsibility to ensure the airlines have reciprocal ticketing agreements before issuing tickets to passengers.

[27] Mr. Diogo requests compensation for out-of-pocket expenses in the amount of GBP 795 (approximately CAN$1,104.37) for the following items:

• Food: GBP 160 (no receipt provided)
• Taxi: GBP 30 (receipt provided for GBP 10)
• Clothing: GBP 226.21 (receipts provided)
• Toiletries: GBP 29.79 (receipts provided)
• Hotel: GBP 349 (receipts provided)

[28] Mr. Diogo also requests compensation in the amount of CAN$1,059.09 for the rebooking fees he incurred to re-book his vacation to the Dominican Republic.

TAP’s Position

[29] TAP argues that, despite being ticketed by TAP, the passengers’ flights were operated by SATA and Air Canada, and that in such a situation it is the operating carrier that is responsible for assisting the passengers. According to TAP, the passengers should have checked-in online via Air Canada’s website, or done so personally by going to the Air Canada counter at the Lisbon airport. TAP refers to its General Conditions of Carriage provisions concerning code-shares which indicate that the contract with the passengers is with the ticketing carrier but the level of service across the various code-share partners may be different; therefore, the TAP Airline Passenger Service Commitment may not apply.

[30] Furthermore, TAP submits that, based on paragraph 5 of Article 3 of the Regulation (EC) No 261/2004, both SATA and Air Canada had contracts with the passengers. Paragraph 5 of Article 3 states as follows:

This regulation shall apply to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2. Where an operating air carrier which has no contract with the passenger performs obligations under this Regulation, it shall be regarded as doing so on behalf of the person having a contract with that passenger.

[31] TAP submits that because the flights were operated by SATA and Air Canada, it had no obligation to provide the boarding passes to the passengers or to assist them.

[32] In support of its answer, TAP filed statements from TAP and SATA staff which purport to confirm that TAP is not liable in a situation such as the one at hand.

[33] In an undated e-mail, Virgilio Louro, from the Airport Services, Regulation and Training Division, at TAP, states as follows:

The operation and agreements of “code-share” are always done between two airlines that participate in complimentary routes operated by both airlines and that present the itinerary with distinctions between “operating carrier” and “marketing carrier” on complimentary routes. The involvement of a third operator in a code-share environment is always irregular, there exists an agreement of code-share between TP/S4 and another with TP/AC which are not recommended for interline for itineraries S4/TP/AC.

The irregularities that occur in such an interline environment must always be resolved by the respective company which caused the irregularity.

[34] In a November 4, 2015 internal e-mail, Jordi Pi, TAP’s Lisbon Hub Manager, advises staff that, in a code-share arrangement, responsibility is normally with the operating carrier.

[35] Carmen Rocha, Customer Services Manager with SATA, indicates in an e-mail dated October 29, 2015 that it does not have an agreement with Air Canada and that passengers with a connection leaving Lisbon with that carrier are advised to check in online or at the Air Canada counter at the airport.

[36] In an October 29, 2015 e-mail, Mauro Medina, TAP’s Azores Station Manager, advises staff that as none of the flight segments were operated by TAP, TAP should not give an opinion or decide on the care that should be given. He also indicates that he is unfamiliar with code-shares and that the alterations done to the ticket were based on involuntary reroute.

[37] According to TAP, the passengers were sent to the TAP ticket office at the Lisbon airport to get re-protected, and were advised that they could be waitlisted for the SATA flight to Toronto departing the next day. However, TAP claims they chose instead to be confirmed on the Air Canada flight departing two days later.

[38] TAP argues it is not liable for Mr. Diogo’s out-of-pocket expenses and rebooking fees. TAP states that any issues related to baggage should be handled by the last operating carrier. With respect to the rebooking fees, TAP submits that Mr. Diogo’s vacation rebooking fees “should certainly not be considered as that itinerary was on a separate ticket in which neither TAP nor any of the other operating carriers involved held a contract with the passenger”.

Findings of Fact

[39] TAP alleges that it has a practice of directing passengers to check-in online or at the counter, but Mr. Diogo states that in his specific case he was not told that he should check-in online for the Air Canada flight. TAP did not offer any proof that it told Mr. Diogo specifically that he must check-in online. Accordingly, and in light of Mr. Diogo’s evidence that he was not in fact told to check-in online, the Agency accepts Mr. Diogo’s version of events, namely that he was not told he should check-in online for the Air Canada flight. Furthermore, unless they are expressly told otherwise, the Agency finds that it is reasonable for passengers to assume that they do not have to check-in online, but rather, that they can obtain boarding passes in person at the airport without checking in online.

[40] There is no dispute that the passengers missed their flight in Lisbon. They had no way to obtain their boarding passes once in Lisbon since there was limited time;, the Air Canada counter was closed; and Air Canada and SATA do not have a ticketing agreement that permits SATA to issue boarding passes for Air Canada flights.

[41] There is also no dispute that the passengers travelled to Toronto two days later than originally scheduled. Therefore, the Agency finds that the passengers experienced a flight delay. Moreover, apart from placing the passengers on a waitlist for one flight, TAP has offered no evidence regarding what additional steps it took in response to the delay. Accordingly, the Agency finds as a fact that TAP took no other steps (apart from placing the passengers on a waitlist) when it learned that the passengers had missed their connection and were experiencing a flight delay.

ANALYSIS AND DETERMINATIONS

[42] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its Tariff.

ISSUE 1: DID TAP PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF RELATING TO DELAY, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

Does TAP’s Tariff apply to the passengers’ travel?

[43] Having found that the passengers were delayed returning to Toronto, the issue is whether TAP’s Tariff applies and, if so, whether it was properly applied.

[44] In an arrangement such as this, known as a code-share, the marketing or contracting carrier sells the ticket but the flight is operated by another carrier. The flight often has more than one designated flight number, one for the operating or actual carrier, and one for the marketing or contracting carrier. The passengers’ itinerary in this case clearly indicates that TAP is the marketing carrier and SATA is the operating carrier for the direct flight from Toronto to Ponta Delgada. For the return flight, it indicates that TAP is the marketing carrier, SATA is the operating carrier for the first leg of the trip (from Ponta Delgada to Lisbon) and Air Canada is the operating carrier for the second leg of the trip (from Lisbon to Toronto).

[45] Article 40 of the Montreal Convention states that, if an actual carrier performs the whole or part of carriage, both the actual carrier and the contracting carrier are subject to the Convention. The actual carrier is subject to the Convention just for that part of the carriage it performs, but the contracting carrier is responsible for the whole of the carriage contemplated in the contract.

[46] Each of the code-share agreements between TAP and Air Canada and between TAP and SATA, which the Agency has approved, indicates that TAP shall apply its tariff to the transportation of its traffic.

[47] In addition, the Agency has confirmed in previous decisions that the marketing carrier’s tariff shall apply in the case of code-share flights. In Agency Decision 287-C-A-2009, at paragraph 55, the Agency stated as follows:

With respect to Air Canada’s submission that, in a code-sharing arrangement, the terms and conditions of the operating carrier must apply, the Agency reminds the carrier that this position is inconsistent with Agency decisions relating to applications requesting permission to code share. These decisions include the condition that the carrier who sells the transportation to the passenger must apply its own published tariff, on file with the Agency and in effect, even if another carrier operates the flight.

[48] In fact, when the Agency approved the use by TAP of aircraft and flight crew provided by Air Canada and Jazz Aviation for its scheduled international service between Portugal and Canada (Decision No. 51-A-2012), the approval was subject to TAP applying its Tariff to the carriage of its traffic. The same condition applied when the Agency approved the use by TAP of aircraft and flight crew provided by SATA for its scheduled international services on licensed routes between Canada and Member States of the European Community (Decision No. 380-A-2016).

[49] Furthermore, Article 45 of the Montreal Convention provides that in relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately. It also provides that where an action is commenced against one carrier, that carrier may seek to add the other carrier as a party to the proceedings.

[50] The e-mails submitted by TAP, which suggest that it is not liable, do not have the effect of changing this state of affairs. It is the law that applies, and not the views expressed in these e‑mails.

[51] With respect to TAP’s reference to paragraph 5 of Article 3 of Regulation (EC) No 261/2004, this provision does nothing more than confirm that an operating carrier acts on behalf of the marketing carrier. It does not absolve the marketing carrier of any liability.

[52] For the foregoing reasons, the Agency finds that TAP’s Tariff applies and that Mr. Diogo has a right of action against TAP as the marketing or contracting carrier. TAP had the option of seeking to add one of the other carriers to the proceedings but in this case no such request was made.

TAP’s Tariff

[53] Rule 55(B)(3)(a) of TAP’s Tariff states that it is liable for damages occasioned by delay in the carriage of persons except that it is not liable 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 them to take such measures. This wording is taken from and is therefore consistent with Article 19 of the Montreal Convention.

[54] The Agency finds that TAP has failed to discharge its burden to prove that it took all measures that could reasonably be required to avoid the damage incurred by the passengers, or that it was impossible for it to take such measures. While TAP states that the passengers were waitlisted for a flight the following day, TAP does not allege that there were no other flights available which could have carried the passengers to their destination earlier. It does not claim that other equipment was not available, or that the passengers could not be routed through another airport. TAP simply asserts that passengers were put on a waitlist for a flight the next day without indicating that it took any other steps, or that it was impossible for it to do more.

[55] On the contrary, not only did TAP not establish that it took reasonable measures to prevent the damage incurred by the delay, TAP materially contributed to the delay by allowing travel on flights operated by carriers that do not have a ticketing agreement.

[56] As noted by Mr. Diogo, SATA and Air Canada do not have a ticketing agreement which would have allowed SATA to provide the passengers with boarding passes for the flight operated by Air Canada. Consequently, Mr. Diogo and his family had to get their international boarding passes from Air Canada at the Lisbon Airport. This required that they be provided with sufficient connecting time to disembark; go through customs and security; check-in; and board Air Canada’s aircraft, taking into account the check-in closing time. In this case, the passengers were not provided with the time required: the Air Canada check-in counter was closed by the time the passengers arrived at the terminal, proceeded through customs, exited the airport’s secure area, and arrived at the counter. .

[57] Based on the above, pursuant to its Tariff and the Montreal Convention, the Agency finds that TAP is liable to the passengers for the damages occasioned as a result of the delay in their return trip to Toronto. Because TAP failed to discharge its burden to prove that it took all reasonable measures to avoid the delay, or that it was impossible to take such measures, and because TAP did not compensate the passengers for the damage occasioned by their delay, the Agency finds that Mr. Diogo has proven, on a balance of probabilities, that TAP did not properly apply the terms and conditions set out in its Tariff relating to delay, as required by subsection 110(4) of the ATR.

ISSUE 2: IF TAP DID NOT PROPERLY APPLY ITS TARIFF, WHAT REMEDY, IF ANY, IS AVAILABLE TO MR. DIOGO?

[58] Rule 55(B)(3)(a) of TAP’s Tariff states that it is liable for damages occasioned by delay in the carriage of persons except that it is not liable 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 them to take such measures. As the Agency has already found that TAP failed to discharge its burden to prove that it took all measures that could reasonably be required to avoid the damage, or that it was impossible for it to do so, TAP is liable for the passengers’ damages occasioned by delay.

[59] Mr. Diogo provided receipts for most of the out of pocket expenses he incurred as a result of the two-day delay in Lisbon, and the receipt for the fees he incurred to rebook his pre-planned trip with WestJet Vacations.

[60] With respect to the expenses incurred in Lisbon, the Agency finds that they are reasonable. The family was left in Lisbon without their luggage and therefore they had to buy replacement items, and pay for hotel and meals. TAP does not argue that the expenses are unreasonable, or that they were not incurred as a result of the delay. TAP suggests that any issues related to baggage should be dealt with by the last carrier, but this is not a complaint about delayed or damaged baggage; it is about delay in the carriage of persons, for which TAP is liable, both under its Tariff and under the Montreal Convention.

[61] The Agency also finds the fees Mr. Diogo incurred to rebook with WestJet Vacations are reasonable expenses and were also directly caused by the delay. Contrary to TAP’s assertion, it is irrelevant that this vacation was booked through another carrier; the fact remains that because of the delay, the trip had to be rebooked at a significant cost, and TAP is liable for any damage directly occasioned by delay.

[62] For the reasons mentioned above, the Agency finds Mr. Diogo is entitled to CAN$1,104.37 as compensation for out of pocket expenses incurred during his two day stay in Lisbon and CAN$1,059.09 as compensation for rebooking fees with WestJet Vacations.

ISSUE 3: SHOULD THE AGENCY CONSIDER THE CLARITY AND THE REASONABLENESS OF RULES 55(B)(3)(B) AND (C) of TAP’S TARIFF?

[63] Although Mr. Diogo did not specifically raise the issue of the clarity or reasonableness of Rules 55(B)(3)(b) and (c) of TAP’s tariff in his application, the Agency has identified concerns regarding TAP’s Tariff.

[64] In Decision No. 467-C-A-2012 (United Airways Decision), the Agency found that Rule 28(C)(2) of United Airlines’ Tariff governing liability of carriers did not clearly set out United Airlines’ terms and conditions respecting its liability for damage caused by certain facilities and personnel as required by subparagraphs 122(c)(x) and (xi) of the ATR. The Agency further found that Rule 28(c)(2) did not accurately reflect Article 19 of the Montreal Convention, and was therefore unreasonable.

[65] Rule 55(B)(3) of TAP’s Tariff, is largely identical to Rule 28(C) of the United Airlines’ Tariff, which the Agency found to be unclear and inconsistent with the Montreal Convention in Decision No. 467-C-A-2012 (United Airways Decision). Rule 28(C) of the United Airlines’ Tariff states the following: :

C. The Carrier shall be liable for damage occasioned by delay in the carriage of passengers by air, as provided in the following paragraphs:

1. The Carrier shall not be liable 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.
2. Airport, air traffic control, security, and other facilities or personnel, whether public or private, not under the control and direction of the Carrier are not servants or agents of the Carrier, and the Carrier is not liable to the extent the delay is caused by these kinds of facilities or personnel.
3. Damages occasioned by delay are subject to the terms, limitations and defenses set forth in the Warsaw Convention and the Montreal Convention, whichever may apply. They include foreseeable compensatory damages sustained by a passenger and do not include mental injury damages.

[66] In light of the Agency’s reasoning in the United Airways Decision, and the similarity of the tariff provisions considered in that case compared to TAP’s Tariff, the Agency finds that it should consider whether Rules 55(B)(3)(b) and (c) of TAP’s Tariff are unclear and unreasonable, contrary to the ATR. Moreover, the Agency finds, on a preliminary basis, that TAP’s Tariff Rules 55(B)(3)(b) and (c) are unclear and unreasonable, contrary to the ATR, based on the reasoning in the United Airways Decision. The Agency requires TAP to show cause why these Rules are not unclear and unreasonable and why it should not be ordered to amend its Tariff.

ISSUE 4: IS IT REASONABLE THAT TAP’S TARIFF MAY RESULT IN AN ITINERARY REQUIRING PASSENGERS TO CHECK IN MORE THAN ONCE WHEN TRAVELLING ON CODE-SHARE FLIGHTS WITH MULTIPLE LEGS?

[67] Rule 5(A)(8) of TAP’s Tariff provides that its fare rule provisions contained in the online database maintained by the Airline Tariff Publishing Company (“ATPCO”) are considered part of its Tariff.

[68] TAP’s fare rule 9035, applicable to the passengers’ travel in this case, permits travel within Portugal on any flight operated by SATA, and travel from Portugal to Canada on any flight operated by Air Canada. Consequently, TAP’s fare rule (and by extension, its Tariff) permits an itinerary where TAP operates neither flight on the itinerary and where the two carriers who do operate the flights on the itinerary do not necessarily have a ticketing agreement with each other.

[69] Mr. Diogo argues that this is unreasonable. He claims that TAP should not be permitted to sell itineraries with connecting flights between carriers, such as SATA and Air Canada, that do not have a ticketing agreement with each other.

[70] While TAP alleges that the passengers in this case could have checked-in online, no evidence was provided to substantiate that online check-in was possible, nor more importantly, that it was communicated to the passengers that they had to check-in online, as they might not be able to have their boarding passes issued in person at the airport. Moreover, putting passengers in a position where they must check-in online presumes that the passengers will have access to the Internet and the necessary equipment to download or print their boarding passes while travelling. It is not clear that this is a reasonable presumption.

[71] What happened to the passengers in this case was foreseeable. The Agency finds on a preliminary basis that passengers travelling on code-share flights are entitled to receive all of the boarding passes necessary to complete their trip when they check in at the airport, that is, when travelling on a code-share flight, passengers should experience “seamless travel”. It does not seem reasonable to expect passengers to complete the first leg of their trip and then exit the secured area of an airport and repeat through the entire check-in process again, including customs and security, for the next leg of their trip. This is especially problematic when the layover is of short duration.

[72] An air carrier has the responsibility of ensuring, for code-sharing arrangements, that any commercial arrangements that it has made with any of its partners will facilitate the travel arrangements of its passengers rather than encumber them. An air carrier who is marketing a particular air service by virtue of a code-sharing arrangement should work with its airline partners to establish itineraries and schedules which allow passengers to make connections, taking into account all administrative requirements, and should ensure that the appropriate arrangements to process passengers at the various points along their itinerary are in place.

[73] In the circumstances, the Agency finds, on a preliminary basis, that TAP’s Tariff, which can result in passengers having to check-in more than once on a code-share flight, is unreasonable, contrary to the ATR, and orders TAP to show cause why its Tariff is not unreasonable and why it should not be ordered to amend its Tariff.

CONCLUSION

Issue 1

[74] TAP did not properly apply the terms and conditions of its Tariff relating to delay.

Issue 2

[75] Mr. Diogo is entitled to compensation in the amount of CAN$2,163.46.

Issue 3

[76] The Agency should consider whether Rules 55(B)(3)(b) and (c) of TAP’s Tariff are unclear and unreasonable. The Agency finds, on a preliminary basis, that TAP’s Tariff Rules 55(B)(3)(b) and (c) are unclear and unreasonable, contrary to the ATR. The Agency requires TAP to show cause why these Rules are not unclear and unreasonable and why it should not be ordered to amend its Tariff

Issue 4

[77] The Agency finds, on a preliminary basis, that TAP’s Tariff, which can result in passengers having to check-in more than once on a code-share flight, is unreasonable, contrary to the ATR, and orders TAP to show cause why its Tariff is not unreasonable and why it should not be ordered to amend its Tariff

ORDER

[78] In light of the above findings, the Agency orders TAP to:

1. Compensate Mr. Diogo in the amount of $2,163.46 CAD by July 17, 2017.
2. Show cause why the Agency should not find that TAP’s Tariff Rules 55(B)(3)(b) and (c) are unclear and unreasonable and why the Agency should not order TAP to amend its Tariff.
3. Show cause why the Agency should not find that TAP’s Tariff, which allows for itineraries comprised of flights operated by two or more code-share partners who do not have a ticketing agreement, is unreasonable, and why the Agency should not order TAP to amend its Tariff.

[79] The Agency provides TAP until 5:00 p.m. Gatineau local time on July 17, 2017 to submit to the Agency its response to items 2 and 3 of the above show cause order.