Decision No. 23-C-A-2018

SUMMARY

[1] Mr. Uz Zaman Atif filed an application with the Canadian Transportation Agency (Agency) on behalf of his wife and their minor children (applicants) against Air Canada concerning its refusal to transport his wife and their minor children (the Atif family) from Toronto, Ontario, Canada to Jeddah, Saudi Arabia, via Frankfurt, Germany.

[2] The applicants seek compensation in the amount of $8,768.83, which includes denied boarding compensation and expenses related to food, accommodation, transportation and other incidental costs.

[3] The Agency will address the following issues:

1. Did Air Canada properly apply the terms and conditions set out in Rules 65 and 75(I)(D)(3) of its International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Tariff) regarding refusal to transport due to immigration requirements, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If not, what remedy, if any, is available to the applicants?
2. Is Rule 65(D) of Air Canada’s Tariff reasonable within the meaning of subsection 111(1) of the ATR?
3. Should the Agency grant the applicants’ request for costs?

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

1. Air Canada did not properly apply the terms and conditions set out in Rules 65(D) and 75(I)(D)(3) of its Tariff. The Agency therefore orders Air Canada to compensate the applicants in the amount of $1,567.83.
2. Rule 65(D) of Air Canada’s Tariff is reasonable.
3. The applicants have not demonstrated that special or exceptional circumstances exist to warrant an award of costs in their favour.

BACKGROUND

[5] The applicants purchased tickets for round trip travel from Jeddah to Toronto departing on July 16, 2015 and returning on September 1, 2015. The return portion of their trip consisted of a layover in Frankfurt. When the Atif family checked in at the Toronto Pearson International Airport (Toronto airport) for the return portion of their trip on September 1, 2015, Air Canada refused to transport them due to alleged improper travel documentation to transit through Germany. Air Canada subsequently rescheduled the Atif family to travel on September 2, 2015 from Toronto to Jeddah with a layover in Istanbul, Turkey.

PRELIMINARY MATTERS

Air Canada’s request to exclude new issues and evidence

[6] On March 20, 2017, Air Canada filed a request with the Agency to exclude alleged new issues and evidence raised in the applicants’ reply to Air Canada’s answer. In Decision No. LET‑C‑A‑14‑2017, the Agency granted Air Canada’s request in part. Specifically, the Agency denied Air Canada’s request to exclude the applicants’ claim for medical expenses, and Annex E of the applicants’ reply, which contained a list of expenses that the applicants incurred. The Agency, however, granted Air Canada’s request to exclude issues relating to the applicants’ delayed and damaged baggage, and the evidence in Annex B and Annex D of their reply. Annex B contained e-mail communications between Mr. Uz Zaman and Air Canada concerning the Atif family’s revised itinerary and visa requirements. Annex D contained e-mail communications between Mr. Uz Zaman and Air Canada concerning delayed delivery and damage to the applicants’ baggage, and the Atif family’s revised itinerary.

[7] The Agency provided Air Canada until April 24, 2017 to file comments on the issue of medical expenses and the expenses listed in Annex E. Air Canada filed its comments on April 25, 2017 and asked the Agency to accept them even though they were filed late. On April 28, 2017, the applicants filed a submission, wherein they objected to the Agency’s acceptance of Air Canada’s late comments, on the basis that doing so would affect the timely disposition of their application.

[8] The Agency considers Air Canada’s response relevant to the matter; therefore, the Agency accepts Air Canada’s response as part of the record.

Other requests contained in the applicants’ April 28, 2017 submission

[9] In their April 28, 2017 submission, the applicants also requested that the Agency:

• accept comments previously rejected by the Agency in the decision;
• find Air Canada negligent for its refusal to transport the Atif family; and,
• grant the applicants costs.

[10] The applicants’ first two requests are addressed directly below, and the issue of costs will be addressed at the end of this Decision.

REQUEST TO ACCEPT COMMENTS PREVIOUSLY REJECTED BY THE AGENCY

[11] In Decision No. LET-C-A-14-2017, the Agency excluded, among other things, Appendix D of the applicants’ reply, which consists of e-mail communications between Ms. Atif and Air Canada concerning damage to Ms. Atif’s/their baggage, and the rescheduling of their travel. The applicants request that the Agency reconsider its decision as it relates to “the 2^nd part”, namely comments concerning the rescheduling of the Atif family’s travel. According to the applicants, “the 2^nd part” demonstrates “[m]ismanagement and failure to provide alternate reasonable transit connection in [T]urkey.” The applicants further submit that they raised this matter in previous submissions before the Agency and, therefore, it should not be considered a new issue. Air Canada did not file a response to this request.

[12] The Agency notes that it has already issued a decision wherein it rejected Appendix D of the applicants’ reply. The applicants have provided no compelling arguments as to why the Agency should reconsider the April decision and, as such, the Agency denies the applicants’ request to accept the second part of Appendix D as part of the record.

REQUEST TO FIND AIR CANADA NEGLIGENT

[13] The applicants also request that the Agency find Air Canada negligent in its handling of the Atif family’s travel on September 1, 2015. Air Canada did not respond to this request.

[14] The Agency notes that the applicants did not raise the issue of negligence in their application, nor did they explain why they did not do so. The Agency therefore finds that the allegation of negligence constitutes a new issue that should have been raised in the application and as such, it will not form part of the record of the proceedings.

The issue of denied boarding

[15] The applicants assert that the Atif family was denied boarding on September 1, 2015 for the flight from Toronto to Frankfurt, and as such, Air Canada should be ordered to provide them with denied boarding compensation. To support their claim, the applicants allege that other passengers at the check-in counter and Air Canada’s staff indicated that the flight was overbooked. Air Canada disputes this claim and provided its ‘Flight Opsis’ to demonstrate that there were 17 empty seats on the flight.

[16] The Agency notes that while Air Canada disputes that the applicants were denied boarding, it has compensated the applicants in the amount of $2,400, which is the amount of denied boarding compensation to which the Atif family would have been entitled. The Agency therefore considers this issue moot.

THE LAW

[17] The relevant statutory extracts are set out in the Appendix. The relevant tariff provisions are set out below.

[18] Rule 65(A) of the Tariff addresses compliance with regulations:

The passenger shall comply with all laws, regulations, orders, demands, or travel requirements of countries to be flown from, into, or over, and with all rules, regulations, and instructions of carrier. […]

[19] Rule 65(B)(1) addresses passports and visas:

Each passenger desiring transportation across any international boundary will be responsible for obtaining all necessary travel documents and for complying with all government travel requirements. The passenger must present all exit, entry and other documents required by the laws, and unless applicable laws provide otherwise, shall indemnify the carrier for any loss, damage, or expense suffered or incurred by such carrier by reason of such passenger’s failure to do so. […]

[20] Rule 65(D) addresses governmental regulations:

No liability shall attach to carrier if carrier in good faith determines that what it understands to be applicable law, government regulation, demand, order or requirement, requires that it refuse and it does refuse to carry a passenger.

[21] Rule 75(I)(D)(3) of the Tariff addresses refusal to transport due to immigration, administrative or other requirements:

Carrier will refuse to transport, or will remove any passenger at any point for any of the following reasons:

[…]

When the passenger is to travel across international boundary, if:

[…]

Passenger fails to comply with the requirements of Rule 65 (Administrative Formalities) […]

Did Air Canada properly apply the terms and conditions set out in Rules 65 and 75(I)(D)(3) of its Tariff regarding refusal to transport due to immigration requirements, as required by subsection 110(4) of the ATR? If not, what remedy, if any, is available to the applicants?

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicants’ position

[22] The applicants submit that on September 1, 2015, Air Canada refused to transport the Atif family because Air Canada believed that they required German visas to transit through Frankfurt. According to the applicants, Ms. Atif presented Air Canada with various documentation and rules indicating that German visas were not required; however, Air Canada’s managers did not accept this information and refused to transport the Atif family. It is the applicants’ position that, as a resident of Saudi Arabia, Ms. Atif does not require a German visa. The applicants provided the following documents to support their submission:

• E-mail communications with the German embassy;
• A printout of the International Air Transport Association (IATA) passport, visa and health results;
• The TIMATIC (TIM) display for entry into Germany; and,
• A printout of United Arab Emirates’ visa and passport search results.

[23] In terms of the travel documents provided to Air Canada at check in on September 1, 2015, the applicants submit that Ms. Atif presented Saudi Arabian exit and re-entry visas, and residence permits for each family member. The applicants submit that Ms. Atif also provided Pakistani passports for herself, the infant and one child, and an Australian passport for the other child.

[24] In Decision No. LET-C-A-28-2017, the Agency asked Air Canada to specify the basis for its conclusion that the Atif family did not have the necessary travel documents to transit through Germany. Air Canada responded that it refused transportation to the Atif family because the infant was travelling on Ms. Atif’s passport and as such, did not hold a valid Canadian visa as required to transit through Germany. The applicants disagree with Air Canada’s position in this regard. They submit that all four passengers were travelling on individual passports and holding individual visas. The applicants further submit that Canada requires all individuals to have their own passports and visas to enter Canada, and that this fact is well known.

[25] In Decision No. LET-C-A-63-2017, the Agency ordered the applicants to file copies of the travel documents presented by Ms. Atif for herself and the infant at check in on September 1, 2015. In response, the applicants filed a redacted copy of the infant’s Pakistani passport and Canadian visa. The applicants further provided a copy of the infant’s exit and re-entry Saudi Arabian visa, along with her Saudi Arabian residence permit.

[26] The applicants argue that Air Canada failed to properly apply its Tariff as it incorrectly interpreted the TIM and the travel documents that Ms. Atif provided at check in. The applicants therefore maintain that Air Canada cannot rely on Rule 65(D) of the Tariff as it did not act in good faith by “not understanding” the clear documentation that Ms. Atif provided.

[27] The applicants acknowledge that Air Canada compensated them in the amount of $2,400, which they consider reasonable in the circumstances. However, they request that the Agency order Air Canada to compensate them for additional expenses incurred in the amount of $6,368.83 as follows:

• $1,451 for telephone calls and roaming fees;
• $500 for medical expenses after travel;
• $217.83 for expenses incurred at the airport lounge in Turkey over a 10-hour period;
• $1,700 for Mr. Uz Zaman’s loss of employment income, while attempting to rectify the situation;
• $700 for Ms. Atif’s loss of employment income over three days of travel;
• $200 for baggage transportation by porter;
• $600 for two days’ hotel accommodation;
• $180 for taxi cancellation on two occasions;
• $100 for airport parking fees incurred by relatives;
• $200 for meals at the Toronto airport;
• $170 for expenses incurred as a result of delayed delivery of baggage;
• $200 for transportation via taxi to and from the Toronto airport;
• $150 for children’s food and “accessories” at the airport in Turkey.

[28] The applicants state that proof of telephone calls and medical expenses may not be available as the telephone calls were made directly from a Saudi Arabian telephone number that has since been disconnected. They add that proof of Mr. Uz Zaman’s loss of employment income is available upon request.

Air Canada’s position

[29] Air Canada submits that the Atif family was refused transportation at the Toronto airport because the Air Canada check-in agent believed that they did not have the proper documentation to transit through Germany. Specifically, Air Canada contends that the infant was travelling on Ms. Atif’s passport (and presumably Ms. Atif’s visa). To support its position, Air Canada provided a copy of the Atif family’s Historical Passenger Name Record (HPNR), which states, in part, “PAX TRVL WITH INFANT INF ON A PAK PASSPORT INF REQ A VALID VISA AS PER TIMATIC TO TRANSIT FRA”.

[30] In terms of the steps that it took to ascertain whether the Atif family had the necessary travel documents, Air Canada states that as per usual procedure, it consulted the TIM for the entry requirements into Germany on September 1, 2015. Air Canada advises that upon consulting the TIM, the Air Canada agent determined that the infant did not have the proper documentation to transit through Germany. Specifically, Air Canada explains that Pakistani nationals are not permitted to transit without a visa unless (i) they are holding onward tickets and (ii) they meet one additional requirement, including returning from Canada after having used a visa and travelling to a non-Schengen Member state. Air Canada points out that while minors are permitted to travel on a parent’s passport, the TIM is silent on whether a separate Canadian visa is required for such minors. Air Canada therefore concludes that as the infant was travelling on Ms. Atif’s passport, the infant did not hold a valid Canadian visa and as such, was deemed not to meet the travel requirements.

[31] Air Canada further states that as per the Atif family’s HPNR, the Air Canada agent consulted a Lead Agent, a Customer Service Manager and a Manager, Operations – Customer Service, all of whom agreed that Ms. Atif could not travel with the infant through Germany. To support its position, Air Canada provided a statement from a Customer Service Compliance Manager, who states that this situation is extremely rare and could have been challenging for Air Canada agents. Air Canada adds that Germany is well known as one of the strictest countries for imposing immigration fines for improper travel documentation. Air Canada states that for these reasons, it rebooked the Atif family on a flight transiting through Turkey, at no additional cost.

[32] With respect to the redacted travel documents that the applicants filed for the infant, pursuant to Decision No. LET-C-A-63-2017, Air Canada contends that the Agency should view the redactions of the infant’s visa with skepticism. Air Canada provided a sample Canadian visa to demonstrate that the number of entries, category and class, number of persons admitted under the visa (and most likely, a government entry or exit stamp) were redacted from the documents. Air Canada argues that the redactions are of great significance and seriously diminish the validity of the applicants’ argument that the infant was travelling on her own passport and visa.

[33] Air Canada states that the Atif family arrived in Saudi Arabia with a total delay of 25 hours and 20 minutes. Air Canada acknowledges in its answer that the documents in question could have been interpreted differently; however, it maintains that at all times it acted in good faith. Air Canada therefore maintains that as per Rule 65(D) of its Tariff, it cannot be held liable if it, in good faith, determined that what it understood to be applicable law required that it refuse to transport the Atif family.

[34] Notwithstanding the $2,400 that it previously provided to the applicants, Air Canada states that it is willing to further compensate the applicants for all proven, reasonable expenses incurred.

Findings of fact

[35] When issues of credibility arise, as in this case, the Agency must determine which version is more probable. As the applicants bear the legal burden of proof, they must convince the Agency, on a balance of probabilities, that their version is more probable than that of Air Canada. The applicants must prove their case by a preponderance of credible evidence.

[36] As submitted by Air Canada, at issue is whether Ms. Atif presented valid travel documentation for the infant for scheduled transit without a visa through Germany. Air Canada maintains that the Atif family was refused transportation on September 1, 2015 because the infant was travelling on Ms. Atif’s passport (and presumably, Ms. Atif’s visa). Air Canada states that its staff determined that as the TIM was silent on whether the infant required her own visa to transit through Germany, its staff determined that the infant did not meet the requirements. To support its position, Air Canada provided a copy of the Atif family’s HPNR which states, in part, that “PAX TRVL WITH INFANT INF ON A PAK PASSPORT INF REQ A VALID VISA AS PER TIMATIC TO TRANSIT FRA”. The applicants, on the other hand, maintain that the infant was travelling on her own passport and visa, and they provided copies of the same to support their position.

[37] The Agency notes that even though Air Canada states that four employees (including two managers and a Lead Agent) were involved in the incident, Air Canada did not provide statements from any of them. Such statements could have further elaborated on the notations made in the Atif family’s HPNR. Instead, Air Canada relies on a statement from its Customer Service Compliance Manager, who cannot attest to the specific events, as he was not present at check in when the Atif family was refused transportation.

[38] Furthermore, even though Air Canada argues that the Agency should view the redactions on the infant’s visa with skepticism, the Agency notes that Air Canada provided no explanation as to how the infant could have arrived in Canada on the outgoing portion of the Atif family’s travel without a valid passport and visa.

[39] Additionally, the Agency notes Air Canada’s acknowledgement in its answer that “upon further review of the Atif family’s travel documents, the documents in question could have been interpreted differently.”

[40] Based on the above, the Agency finds, on a balance of probabilities, that Ms. Atif presented a valid visa and passport for the infant on September 1, 2015.

ANALYSIS AND DETERMINATIONS

[41] Generally, 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.

[42] Rule 65(A) of the Tariff requires passengers to comply with all measures “of countries to be flown from, into, or over, and with all rules, regulations and instructions of carrier.” Rule 65(B)(1) provides, in part, that passengers who travel across an international boundary must obtain all necessary travel documents, and must comply with all government travel requirements. Rule 65(D) of the Tariff states that no liability shall attach to the carrier if the carrier “in good faith determines that what it understands to be applicable law, government regulation, demand, order or requirement requires that it refuse and it does refuse to carry any passenger.” Given that this provision absolves Air Canada from liability when it refuses to transport passengers in the circumstances laid out therein, Air Canada also has to establish that such a refusal was done in good faith.

[43] On June 9, 2017, the Agency requested IATA to provide a copy of the TIM display for entry into Germany on September 1, 2015. On July 17, 2017, IATA provided an excerpt from the September 2015 edition of the TIM manual for entry into Saudi Arabia and Germany.

[44] Upon review of the TIM manual for Germany, it appears that transit through Germany without a German visa was permitted for nationals of Pakistan who were holders of a valid visa issued by Canada and holding onward tickets returning from Canada, after having used the Canadian visa.

[45] In light of the Agency’s finding above that, on a balance of probabilities, the infant was travelling on her own valid passport and visa, the Agency finds that Air Canada did not properly apply Rule 75(I)(D)(3) of its Tariff when it refused to transport the Atif family from Toronto to Jeddah via Frankfurt on September 1, 2015. Consequently, Air Canada cannot invoke Rule 65(D) of its Tariff to escape liability.

[46] The applicants submit that they incurred expenses in the amount of $8,768.83 as a result of Air Canada’s refusal to transport the Atif family on September 1, 2015. While the applicants detail the expenses, they provide no proof of them, but argue that they are reasonable in the circumstances.

[47] The Agency notes that a party, in endeavoring to prove a fact, must do so by presenting the best evidence available in light of the nature and circumstances of the case. While the production of original receipts of purchase will generally support proof of loss, circumstances may render it unreasonable to require this form of proof. Other methods such as a sworn affidavit or the inherent reasonableness of expenses claimed could, in some cases, be adequate.

[48] In this case, the Agency is satisfied that, having regard to the purpose of the trip, the duration of the delay, and the number of travellers, it is reasonable that the Atif family incurred expenses for parking, meals and accommodation, and other incidentals as follows:

• $100 for parking fees incurred by relatives at the Toronto airport;
• $600 for hotel accommodation for two days;
• $200 for meals in Toronto on three occasions;
• $200 for porter’s transportation of baggage;
• $217.83 for 10 hours stay at the airport lounge in Turkey;
• $50 for food and “accessories” for children at the airport in Turkey; and,
• $200 for transportation via taxi to and from the Toronto airport.

[49] With regard to the applicants’ claim for $150 for food and “accessories” for the children at the airport in Turkey, the Agency finds this amount unreasonable in light of the fact that the applicants also claim $217.83 for 10 hours stay at the airport lounge in Turkey. The Agency finds compensation in the amount of $50 reasonable.

[50] With respect to the $500 claim for medical expenses incurred after travel, the Agency is not satisfied that the applicants have met the onus of establishing that they incurred this expense. There is a reasonable likelihood that the applicants would have been provided with doctor’s notes, receipts for prescriptions, or would be in possession of a description of the medical expenses. In absence of such proof, the Agency does not accept this aspect of the claim.

[51] Similarly, the Agency finds that the applicants have not provided any evidence to support the asserted loss of employment income in the amount of $2,400 for Ms. Atif and Mr. Uz Zaman. The applicants stated that proof of income loss to Mr. Uz Zaman is available upon request; however, this proof should have been provided with the application. Therefore, the Agency does not accept this claim, as the applicants have not provided any evidence to support it.

[52] In terms of the claim for $1,451 for telephone calls, the Agency notes that while the applicants provided details of the locations called and the minutes spent, they did not list the organizations contacted nor the persons with whom they spoke. Therefore, the Agency does not accept this expense.

[53] With respect to the applicants’ claim for $180 for taxis on two occasions, the Agency finds this amount to be unreasonable without the provision of related receipts, communication with the taxi companies, or any other information related to the reservations. The Agency therefore does not accept this expense.

[54] With respect to the applicants’ claim for expenses incurred in the amount of $170 due to the delayed delivery of their/Ms. Atif’s baggage in Saudi Arabia, the Agency notes that in Decision No. LET‑C-A-14-2017, the Agency excluded the issues of delayed and damaged baggage from the record of these proceedings. The Agency therefore does not accept this expense.

[55] Finally, the Agency also notes the applicants’ acknowledgement that Air Canada has already compensated them in the amount of $2,400. As such, the Agency will not consider this aspect of the applicants’ claim.

Is Rule 65(D) of Air Canada’s Tariff reasonable within the meaning of subsection 111(1) of the ATR?

POSITIONS OF THE PARTIES

[56] The applicants request that Rule 65(D) of the Tariff either be removed or modified to prevent negligent behavior from Air Canada. They state that doing so will also provide more protection to passengers who have been denied boarding or refused transportation, as Air Canada’s reliance on that provision protects Air Canada’s interests to the detriment of passengers.

[57] Air Canada made no submissions concerning the reasonableness of Rule 65(D) of its Tariff.

ANALYSIS AND DETERMINATIONS

[58] According to subsection 111(1) of the ATR:

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.

[59] The Agency has stated in previous decisions that in order to determine whether a term or condition of carriage applied by an air carrier is “reasonable” within the meaning of subsection 111(1) of the ATR, a balance must be struck between the rights of passengers to be subject to reasonable terms and conditions of carriage and the particular air carrier’s statutory, commercial, and operational obligations.

[60] Rule 65(D) of the Tariff absolves Air Canada from liability in instances where it refuses to transport a passenger because it, in good faith, determines that what it understands to be applicable law, government regulation or other measure requires that it refuse to carry a passenger, and it does refuse to carry a passenger. In exercising good faith under Rule 65(D) of its Tariff, Air Canada would have to take reasonable measures to be informed of the laws, regulations and travel requirements of the various markets that it serves.

[61] Based on the above, the Agency finds that the applicants have not established that Rule 65(D) of Air Canada’s Tariff is unreasonable within the meaning of subsection 111(1) of the ATR.

CONCLUSION

[62] The Agency finds that the applicants have proven, on a balance of probabilities, that Air Canada did not properly apply the terms and conditions set out in Rules 65 and 75(I)(D)(3) of its Tariff. The Agency therefore orders Air Canada to compensate the applicants in the amount of $1,567.83.

[63] The Agency finds that the applicants have not established that Rule 65(D) of Air Canada’s Tariff is unreasonable within the meaning of subsection 111(1) of the ATR.

Should costs be awarded to the applicants?

[64] The applicants state that “[T]he expenses outlined in Annex E are not total and in addition to this, I need to provide the additional expenses once finalized (based on time spent on subject case and when case concluded) and that could be done on [A]gency advice whenever needed.”

[65] Air Canada did not respond to this submission.

[66] The Agency’s practice is to award costs only in special or exceptional circumstances. The Agency has reviewed the applicants’ submissions on the issue of costs, and finds that this case does not constitute special or exceptional circumstances. Therefore, the Agency will not order the reimbursement of costs to the applicants.

ORDER

[67] Pursuant to section 113.1 of the ATR, the Agency orders Air Canada to compensate the applicants in the amount of $1,567.83. Air Canada is to pay this amount to the applicants as soon as possible and no later than April 30, 2018. Air Canada is to advise the Agency Secretariat when compensation has been paid.

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APPENDIX

Air Transportation Regulations, SOR/88-58, as amended

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.

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.

113.1 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.