Decision No. 18-C-A-2019

SUMMARY

[1] Ms. Meyer filed an application with the Canadian Transportation Agency (Agency) concerning Wow air’s refusal to transport her for her return flight from Tel Aviv, Israel, to Montréal, Quebec, via Keflavik, Iceland, on October 18, 2017.

[2] Ms. Meyer is seeking compensation that can be broken down as follows:

• • US$168.98 for the price of her ticket on October 18, 2017;
  • US$236 and CAN$35 for various taxi charges;
  • US$527 and 298.04 ILS for accommodations (including a mobile telephone) in Tel Aviv;
  • 839.48 ILS for the purchase of basic necessities in Tel Aviv;
  • CAN$840 in damages and interest;
  • CAN$1,500 for pain and suffering; and
  • 600 Euros pursuant to Regulation (EC) No 261/2004 of the European Parliament and of the Council (Regulation (EC) No 261/2004).

[3] The Agency will consider the following issues:

1. Did Wow air properly apply the terms and conditions set out in its tariff entitled Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and their Baggage Between Points in Canada and Points Outside of Canada, CTA (A) No. 1 (Tariff) relating to refusal to transport, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, amended (ATR)?
2. If not, did Wow air’s Tariff allow it to refuse to transport Ms. Meyer on the ground that the name appearing on her reservation and boarding pass was different from that on her Canadian passport?
3. If Wow did not properly apply its Tariff, what remedy, if any, is available to Ms. Meyer?

[4] For the reasons set out below, the Agency finds that Wow air’s Tariff did not allow it to refuse to transport Ms. Meyer on this ground and finds that Ms. Meyer is entitled to compensation in the circumstances. The Agency therefore orders Wow air to compensate Ms. Meyer in the amount of CAN$1,586.59 broken down as follows:

• • US$299.99 for the replacement ticket;
  • US$527 and ILS839.48 for accommodations and living expenses;
  • US$120 and CAN$35 for taxi fares; and
  • ILS298.04 for accommodations including food and mobile telephone expenses.

[5] This amount is to be paid as soon as possible and no later than April 26, 2019.

BACKGROUND

[6] Ms. Meyer and her family purchased tickets for a round-trip flight with Wow air. On October 18, 2017, for the return flight from Tel Aviv to Keflavik, Wow air refused boarding to Ms. Meyer because the information on her Canadian passport presented during check-in did not correspond to the name on her ticket.

[7] Ms. Meyer subsequently purchased a replacement ticket for a flight to Montréal with Wow air that was scheduled to leave on October 23, 2017.

THE LAW AND RELEVENT TARIFF PROVISIONS

[8] The relevant provisions of the ATR and the carrier’s tariff are set out in the Appendix.

PRELIMINARY MATTER

[9] Ms. Meyer is claiming amounts equivalent to the loss of three working days as well as for pain and suffering. As it was indicated in Decision No. 185-C-A-2003 (Yehia v. Air Canada), the Agency may only award compensation to a passenger for expenses incurred directly from Wow air’s failure to properly apply the terms and conditions of carriage set out in its Tariff. However, it cannot order compensation for loss of revenue, pain or suffering, as stated in previous decisions, such as Decision No. 18-C-A-2015 (Enisz v. Air Canada) and Decision No. 55‑C‑A‑2014 (Brines v. Air Canada).

[10] Ms. Meyer is also seeking 600 Euros on the basis of Regulation (EC) No 261/2004. The Agency had already ruled on this issue in question in Decision No. 10‑C‑A‑2014 (Lukács v. British Airways), wherein it stated as follows: “the Agency makes determinations on provisions related to legislation or regulations that the Agency is able to enforce. Legislation or regulations promulgated by a foreign authority, such as the European Union’s Regulation (EC) 261/2004, do not satisfy this criterion. If a carrier feels compelled or has been instructed by a foreign authority to include a reference in its tariff to that authority’s law, the carrier is permitted to do so, but it is not a requirement imposed by the Agency.

[11] In light of the above, the Agency cannot consider Mrs. Meyer’s claims for compensation for pain and suffering, loss of revenue, or the application of Regulation (EC) No 261/2004.

POSITIONS OF THE PARTIES

Ms. Meyer

[12] Ms. Meyer points out that she has a French passport and a Canadian passport. She claims that at the check-in in Tel Aviv, Wow air refused to transport her to Canada, purportedly because a Electronic Travel Authorization (eTA) was required on the ground that the name on her Canadian passport was different from the name on her ticket. Ms. Meyer maintains that she also holds Canadian citizenship and therefore did not need an eTA.

[13] Ms. Meyer argues that the information contained in both of her passports is the same with regard to the status of a person, that is to say, the date and place of birth. Furthermore, according to her, the photo on the two passports leaves no doubt as to the identity of the person.

[14] At Wow air’s request, Ms. Meyer filed an online application for an eTA, which was refused by the Canadian authorities because of her Canadian citizenship. Ms. Meyer asserts that by requiring her to obtain an eTA, Wow air agents forced her to incur expenses for that application.

[15] Ms. Meyer adds that Wow air once again refused to transport her and that, given the circumstances, she had to book another ticket for US$299.99 for a Wow air flight scheduled to depart on October 23, 2017. Lastly, Ms. Meyer claims that she is entitled to compensation in accordance with Regulation (EC) No 261/2004.

[16] Ms. Meyer also contends that the October 23 flight was the one that was the most reasonably priced. She adds that between October 18 and 23, 2017, her husband attempted to contact Wow air in order to obtain a replacement ticket.

[17] Ms. Meyer points out that, given the urgency of the situation, she had no time to gather cash, clothing, or personal hygiene products, and that she had no mobile telephone.

[18] Ms. Meyer is seeking compensation in the amount of US$527 for five nights’ accommodation and ILS298.04 for living expenses incurred in Israel, including food, and the purchase of a mobile telephone and calling card.

[19] In addition, she is seeking ILS839.48 for the purchase of basic necessities, including personal hygiene products (ILS46), clothing (ILS580) and shoes (ILS213.48). Ms. Meyer indicated that she had left her shoes in her carry-on luggage and that she was only wearing sandals. She purchased warmer and more appropriate footwear because of the cooler temperatures in aircraft.

[20] Ms. Meyer indicates that she incurred expenses in the amounts of US $236 and CAN$35 in taxi fares.

Wow air

[21] Wow air submits that for the outbound flight, all the Meyer family travelled under the same name and matching travel documents. Wow air indicates that for the return flight, Ms. Meyer presented her French passport which states her name as: “Joanna Amelia Lanquar épouse Meyer”. Wow air adds that Ms. Meyer did not present an eTA despite being a requirement for French citizens travelling to Canada. Wow air argues that it refused to transport Ms. Meyer based on the lack of an eTA.

[22] Furthermore, Wow air submits that Ms. Meyer then presented her Canadian passport which indicates a different last name, being Lanquar. Wow air explains that Lanquar is not the name under which the reservation booking was made and that consequently it was invalid for transportation.

[23] Wow air further states that “passengers booking airfare with Wow air must state their name exactly as they appear in the passport”.

[24] Wow air states that for her reservation of the October 23, 2017 flight, Ms. Meyer registered under her Lanquar name and as such did not need an eTA to travel to Canada.

[25] Wow air denies any responsibility or liability in refusing to transport Ms. Meyer and denies her claim for compensation. However as a goodwill gesture, Wow air offers to refund the October 23, 2017 ticket in the amount of US$299.99.

[26] Wow air submits that given that this is not a case of misconnection or passenger flight delay, the compensation request for expenses incurred should be rejected. Wow air notes that some of the expenses were made on October 22, 2017 and questions their justifications as these were made four days after the refusal to transport and the day prior to Ms. Meyer’s return to Canada. Furthermore, Wow air alleges that some expenses are contradictory to Ms^. Meyer’s contentions that Wow air did not respond to her husband nor offered her a replacement flight on Wow air or on another carrier.

[27] Wow air notes that Ms. Meyer did not provide invoices for all the expenses she incurred. In addition, Wow air questions Ms. Meyer’s claims for taxis expenses, namely the 116$US for the October 18, 2017 fare between Jerusalem and the Tel Aviv airport as this expense was incurred by Ms. Meyer and her family irrespective of her being refused transportation. With regard to the purchase of a phone, Wow air argues that this expense is not justified and adds that calling cards would have been sufficient to achieve the same purpose.

[28] With regard to replacement flights with Wow air or other air carrier, Wow air explains that it operates flight from Tel Aviv to Keflavik on days 1-3-4 and 6. These flights are departing Tel Aviv at 8:25 a.m. and arriving at Keflavik at 1:30 p.m. Flights from Keflavik to Montréal are operated on days 1‑3-5 and 7, departing Keflavik at 5:20 p.m. and arriving at 6:50 p.m.

[29] Wow air explains that while there was no flight to Montréal on October 19, 2017, it was possible to travel to Toronto, where Ms. Meyer could then have used another carrier en route to Montréal. Wow air further explains that there was a flight with a connection to Montréal on October 20, but that Mrs. Meyer chose to travel on October 23 where the flight from Tel Aviv would connect without much delay to the flight to Montréal. She chose Wow air for practical and economical reasons.

[30] Wow air indicates that it is an ultra low cost carrier and that it does not have interline agreement with other carriers, as such, all tickets purchased and issued by Wow air must be flown by Wow air.

Findings of Facts

[31] The parties do not dispute the fact that Ms. Meyer was refused transport for the flight from Tel Aviv to Montréal via Keflavik on October 18, 2017.

[32] Nor do the parties dispute the fact that Ms. Meyer has two passports, one Canadian and the other French, or that different names appear on the two passports. Ms. Meyer was able to travel on October 23, 2017, with Wow air between Tel Aviv and Montréal by booking her flight using the name on her Canadian passport without requiring an eTA.

ANALYSIS AND DETERMINATIONS

[33] The onus is on the complainant 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.

DID WOW AIR PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF RELATED TO REFUSAL TO TRANSPORT, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

IF NOT, DID WOW AIR’S TARIFF ALLOW IT TO REFUSE TO TRANSPORT MRS. MEYER ON THE GROUND THAT THE NAME APPEARING ON THE RESERVATION AND BOARDING PASS WAS DIFFERENT FROM THE ONE THAT APPEARED ON HER CANADIAN PASSPORT?

[34] Rule 115(B)(1) of the Tariff provides as follows with regard to a carrier’s obligations once a ticket has been issued to a passenger:

(B) Validity for Carriage

General: When validated, the ticket is good for carriage from the airport of departure to the airport of destination via the route shown on the ticket, for the applicable class of service and is valid for the period of time referred to in 2 below. The passenger will be accepted for carriage on the date and flight segments for which a seat has been reserved. [...]

[35] Rule 105 of the Tariff also provides that the carrier may refuse to transport a passenger in the cases listed in this Rule including the right to refuse to transport a passenger if that passenger’s travel documents are not in order.

[36] The facts as presented in the record in no way support a finding that Wow air had the right to refuse to transport Ms. Meyer for any of the reasons listed in the Tariff’s Rule 105.

[37] Although Rule 105 of Wow air’s Tariff requires that when an international boundary is crossed, passengers’ travel documents must be in order, the evidence shows that Ms. Meyer had the appropriate travel documents to enter Canada, namely, a valid Canadian passport. Rather, Wow air used the discrepancy between the name on the booking and the name on the travel document used by Ms. Meyer for the return flight as justification to refuse her transport. Although it appears that Wow air informs passengers at the time of booking that their name must be same as the one that appears on their passport, the Tariff does not reflect this requirement. Wow air’s Tariff does not require that the name used at the time of booking must correspond to the one on the travel documents, only that the travel documents be in order. The Agency therefore finds that Wow air did not properly apply its Tariff, which provides that a passenger will be accepted for transport on the date and flight leg for which a seat has been booked (Rule 115(B)(1)), because its Tariff does not state that Wow air may refuse transportation to a passenger when there is a discrepancy between the name on the passport and the name on the booking.

[38] Wow air itself agrees that a carrier’s Rules should be included in its Tariff to be valid. Under Rule 105(A)(5) of the Tariff, the carrier may refuse transportation, “when the passenger fails or refuses to comply with rules and regulations of the carrier as stated in this tariff.” [Emphasis added.]

[39] This Wow air policy, as we have seen from the above, is nowhere in its Tariff, the document that establishes the contractual relationship between the air carrier and the passenger. This policy had a profoundly significant effect on the passenger. This can result in the end of carriage, even where the passenger is in possession of the required travel documents, in this case a Canadian passport, which allows them to enter Canada by right, without a visa requirement or other formality. Rule 105 of the Tariff specifically states that for Canada a visual confirmation of the passenger’s identity, using a piece of government-issued photo ID, must be carried out in order to ensure that the passenger is truly the person they claim to be. In this case, French and Canadian passports confirmed this.

[40] The travel documents, which normally refer to passports or other official government-issued documents, were in order in Mrs. Meyer’s case. The booking and ticket documentation bore a surname which also appeared on one of the passports. Moreover, the possibility of changing that documentation, if necessary, was entirely within Wow air’s control.

[41] The application of this policy, in this case, without a legal basis, resulted in a series of unfortunate events for the passenger.

IF WOW AIR DID NOT PROPERLY APPLY ITS TARIFF, WHICH REMEDY, IF ANY, IS AVAILABLE TO MS. MEYER?

[42] Section 113.1 of the ATR provides that “[i]f 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 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.”

[43] Given that Wow air failed to properly apply the terms and conditions of its Tariff, as required by subsection 110(4) of the ATR, the Agency finds, pursuant to paragraph 113.1(b) of the ATR, that Mrs. Meyer is entitled to compensation for expenses incurred as a result of Wow air’s failure to properly apply its Tariff.

[44] Ms. Meyer is seeking US$168.98 in compensation for the cost of her ticket for October 18, 2017. Wow air is offering to reimburse the replacement ticket for October 23, 2017. Given that the purchase of the replacement ticket was the result of actions by Wow air in the application of its Tariff, the Agency orders Wow air to reimburse the cost of the ticket in the amount of US$299.99.

[45] The Agency has ruled in Decision No. 61-C-A-2017 (Yoganathanng v. Emirates) that the burden is on the complainant to establish that their version is the most likely to have occurred. When it examines the evidence, the Agency must determine which of the two versions is the most likely to have occurred, on a balance of probabilities.

[46] In light of the foregoing, it appears reasonable to believe that Ms. Meyer was left on her own and without the assistance of Wow air to make a new booking. The evidence in the record does not establish that there were any discussions between Wow air and Ms. Meyer in order to offer her an alternate flight. Thus, Ms. Meyer’s return five days later was justified for economic and practical reasons. Moreover, Wow air failed to show that a cheaper ticket was available for an earlier return flight. It is therefore reasonable to conclude that Ms. Meyer was obliged to incur these expenses in the five days prior to her return flight.

[47] With respect to Ms. Meyer’s claim for compensation in the amount of US$527 for five nights’ accommodation in Israel as well as ILS839.48 for the purchase of basic needs items, the Agency finds that Wow air should compensate Ms. Meyer, given that these expenses were the result of Wow air’s failure to properly apply its Tariff.

[48] Ms. Meyer is seeking compensation in the amount of ILS298.04 for food expenses. Aside from food, this amount includes the purchase of a mobile telephone and calling card. The Agency notes, first, that the total sum of this amount is not supported by invoices and that, as Wow air pointed out, the purchase date of the telephone is unclear. Nevertheless, the Agency finds that it appears reasonable that Ms. Meyer would want to be able to be reached, given that she was alone and without her family for five days and that the purchase of a telephone could be warranted. The Agency therefore finds that the reimbursement of a mobile telephone, calling card and food expenses in the amount of ILS298.04 must be ordered, as these expenses are attributable to Wow air’s failure to properly apply its Tariff.

[49] Ms. Meyer is seeking compensation in the amount of US$236 and CAN$35 in various taxi fares. The Agency notes Wow air’s argument that the claim for reimbursement of US$116 dated October 18, 2017 includes the transportation of members of Ms. Meyer’s family. The Agency finds that these taxi fares would nonetheless have been incurred and that it does not appear reasonable to order their reimbursement. The Agency further finds that other expenses should be reimbursed, namely US$60 for Ms. Meyer’s return trip from the airport after she was refused carriage on October 18, 2017, and US$60 for the return to the airport on October 23, 2017, and lastly, CAN$35 for her return trip home, as these were all attributable to Wow air’s failure to properly apply its Tariff.

[50] The amounts referred to by Ms. Meyer in her application for compensation are in Canadian dollars, U.S. dollars and in New Israeli shekels (ILS).

[51] Rule 5(A)(3)(a) of the Tariff provides as follows concerning the application of the Tariff:

(A) General

3. Applicable for travel to/from Canada

(a) Air transportation will be subject to the rules, rates, fares and charges published or referred to in this tariff in effect on the date of commencement of the carriage as indicated for the first flight segment of a ticket.

[52] Based on the Bank of Canada’s prevailing exchange rate on October 2, 2017, the day Ms. Meyer began her trip, the value of US$1 was CAN$ 1.2505. Ms. Meyer is seeking a sum of US$946.99. At that rate, US$946.99 is equivalent to CAN$1,184.21. Similarly, the value of ILS1 was CAN$0.3537357389. Ms. Meyer is seeking an amount of ILS1,137.52. At that rate, ILS1,137.52 is equivalent to CAN$402.38.

[53] Based on the above, Ms. Meyer should be entitled to receive CAN$1,586.59 in compensation.

CONCLUSION

[54] Accordingly, the Agency finds that Wow air applied terms and conditions that are not set out in its Tariff when it refused to transport Ms. Meyer and that the expenses she incurred as a result of the refusal to transport her must be compensated. The Agency orders Wow air to compensate Ms. Meyer in the amount of CAN$1,586.59 for the following expenses:

• • US$299.99 for the replacement ticket;
  • US$527 and ILS839.48 for accommodations and living expenses;
  • US$120 and CAN$35 for taxi fares; and
  • ILS298.04 for food and a mobile telephone.

[55] This amount is to be paid as soon as possible and no later than April 26, 2019.

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APPENDIX TO DECISION NO. 18-C-A-2019

Air Transportation Regulations, SOR/88-58, as amended (ATR)

Subsection 110(4) of the ATR provides that:

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.

Section 113.1 of the ATR provides that:

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. 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.

Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and their Baggage Between Points in Canada and Points Outside of Canada, CTA (A) No. 1 (Tariff)

Rule 80 of the Tariff provides in part that:

Administrative Formalities – Travel Documents, Customs and Security

(A) General

1. The passenger is responsible for obtaining all required travel documents (passports, visas, tourist cards, health certificates, or other appropriate and necessary identification) including those of any children that are accompanied by the passenger.
2. The passenger is responsible for complying with all laws, regulations, orders, demands, and travel requirements of countries to be flown from, into or through and also for complying with the instructions of the carriers concerned.
3. The carrier will not be liable for any help or information given either verbally or in writing to the passenger in good faith about proper travel documentation.
4. The carrier will not be liable to the passenger for any consequences resulting from the failure of the passenger to obtain the necessary travel documents or from the failure to comply with the laws, regulations, orders and/or demands of countries to be flown from, into or through.

(B) Travel documents

1. Prior to travel, the passenger must be prepared to submit for inspection to the carrier all travel documents required by the countries concerned.
2. […]
3. As described in Rule 105, Refusal to Transport, the carrier reserves the right to refuse transportation to any passenger who fails to present all exit, entry, health and other documents required by law, regulation, order, demand, or other requirement of the countries where travel is intended or whose travel documents do not appear to be in order.

Rule 105 of the Tariff provides in part that:

(A) Refusal to Transport – Removal of Passenger

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

1. Government Requests, Regulations and Force Majeure

Whenever it is necessary or advisable to:

(a) comply with any government regulation; or,

[…]

3. Proof of Identity/Age

When the passenger refuses a request to produce government-issued identification to demonstrate proof of identity.

[…]

4. Immigration or Other Similar Considerations

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

(a) The travel documents of the passenger are not in order; or,

(b) For any reason the passenger’s embarkation from, transit through, or entry into any country from, through or to which the passenger desires transportation would be unlawful or would otherwise not be permitted.

5. Failure to Comply with Carrier’s Rules and Regulations

When the passenger fails or refuses to comply with rules and regulations of the carrier as stated in this tariff.

Rule 115 of the Tariff provides in part that:

(A) General

1. A ticket will not be issued and the carrier will not carry the passenger unless the passenger has paid the applicable fare or has complied with all credit arrangements.
2. Before boarding, the passenger must present the carrier with proof that he/she has been issued a valid ticket for the flight. Such proof must be in the form of an itinerary/receipt, a record locator or reservation number, or boarding pass and the passenger must provide the carrier with positive identification to be entitled to transportation. […].

[…]

(B)  Validity for Carriage

1. General: When validated, the ticket is good for carriage from the airport of departure to the airport of destination via the route shown on the ticket, for the applicable class of service and is valid for the period of time referred to in 2 below. The passenger will be accepted for carriage on the date and flight segments for which a seat has been reserved. [...].