Decision No. 66-C-A-2018

SUMMARY

[1] Mr. Rousselle filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding his trip from Halifax, Nova Scotia, to Quito, Ecuador, via Panama City, Panama, on May 10, 2017.

[2] Mr. Rousselle is seeking a refund of US$401.25 for the excess baggage fees that he paid to Copa Airlines, and an amendment to Air Canada’s International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Tariff) to include the terms and conditions found in its Baggage Policy for Members of Military Travelling on Air Canada Flights (Policy).

[3] The Agency will address the following issues:

1. Did Air Canada properly apply the terms and conditions set out in Rule 61 of its Tariff, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Mr. Rousselle?
2. Should Air Canada modify its Tariff to include the terms and conditions relating to its Policy?

[4] For the reasons set out below, the Agency finds that Air Canada did not properly apply the terms and conditions set out in Rule 61 of its Tariff, and, despite this, that Mr. Rousselle is not entitled to any compensation. The Agency orders Air Canada to modify its Tariff to include the terms and conditions relating to its Policy by January 22, 2019.

BACKGROUND

[5] Mr. Rousselle’s purchased a round trip interline ticket to travel from Quito to Halifax, as follows:

- April 10, 2017: From Quito to Bogotá, Colombia, with Avianca Airlines (Avianca); from Bogotá to Toronto, Ontario, and from Toronto to Halifax with Air Canada.

- May 10, 2017: From Halifax to Toronto and from Toronto to Panama City with Air Canada; from Panama City to Quito with Copa Airlines.

[6] His ticket indicates that Avianca’s baggage rules applied to the round trip.

[7] As set out on its website, Air Canada offers eligible members of the Canadian and U.S. military extra baggage allowances free of charge under some circumstances, upon presentation of certain specified military identification cards.

[8] On May 10, 2017, upon check-in for his flight with Air Canada in Halifax, Mr. Rousselle was informed that Air Canada’s Policy only applied to the flight segments that it operated and that he had to pay the applicable overweight and baggage surcharge fees for the final segment of his trip. Mr. Rousselle refused to pay the fees to Air Canada but was permitted to board the flight. In Panama City, Mr. Rousselle was charged US$401.25 by Copa Airlines for excess baggage.     

DID AIR CANADA PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULE 61 OF ITS TARIFF, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR? IF AIR CANADA DID NOT PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF, WHAT REMEDY, IF ANY, IS AVAILABLE TO MR. ROUSSELLE?

The law

[9] Subsection 110(4) of the ATR requires that an air carrier operating an international service properly apply the terms and conditions of carriage set out in its tariff.

[10] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct it to:

(a) take the corrective measures that the Agency considers appropriate; and

(b) 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.

[11] Rule 61(B) and (C) of Air Canada’s Tariff regarding interline baggage acceptance states that:

(B) Where Air Canada is not the Selected Carrier on an interline itinerary but is an interlining Carrier that is providing transportation to the passenger based on the ticket issued, Air Canada will accept and apply as its own the baggage rules of the selected Carrier throughout the interline itinerary.

(C) For baggage rules provisions related to a passenger’s 1^st and 2^nd checked bag and the passenger’s carry-on baggage (i.e., the passenger’s “standard” baggage allowance), when Air Canada sells and issues a ticket for an interline itinerary, it will disclose to the passenger on any summary page at the end of an online purchase and on the passenger’s itinerary/receipt and e-ticket at the time of ticketing the baggage information relevant to the passenger itinerary. The disclosed information will reflect the baggage rules of the Selected Carrier.

[12] Rule 115 of Avianca’s International Passenger Rules Tariff, NTA(A) No. 326 (Avianca’s Tariff) regarding baggage allowance and excess baggage charges states the following:

(A) PIECE SYSTEM […]

(3) […]

(c) Economy Class (Between the U.S.A/Mexico/Canada and South America (except PA/The Caribbean) two checked pieces the sum of the three dimension can not exceed.

(i) Each one of 62 inches (158 cms.)

(ii) Maximum weight 50 pounds (23 kgs.) each piece.

[…]

(9) Excess Baggage Charges

[…]

Between the U.S.A./Mexico/Canada and South America/The Caribbean

Overweight each piece charge

24-32 kgs (52-70 pounds) USD 100/CAD 100

33-45 kgs (72-99 pounds) USD 160/CAD 160

[…]

Extra pieces any extra pieces

1-23 kgs (2-50 pounds) USD 185/CAD 185; 0-158 cms (0-62 inches)

24-32 kgs (52-70 pounds) USD 210/CAD 210; 0-158 cms (0-62 inches)

33-45 kgs (72-99 pounds) USD 260/CAD 260; 0-230 cms (0-90 inches)

[…]

[13] Rule 116(B)(1) of Avianca’s Tariff regarding interline baggage acceptance states that:

The carrier whose designator code is on the first segment of the passenger’s interline ticket will be known as the selecting carrier.

Positions of the parties

MR. ROUSSELLE’S POSITION

[14] Mr. Rousselle states that upon check-in for his flight in Halifax, he was informed by Air Canada that his baggage exemption for military personnel was not applicable to Copa Airlines, the air carrier for the portion of his itinerary from Panama City to Quito, and that he needed to pay a surcharge in order to have his baggage transported all the way through to Quito. Mr. Rousselle refused to pay this surcharge but was permitted to board the flight. Upon check-in in Panama City, Mr. Rousselle was charged US$401.25 by Copa Airlines for excess baggage.

[15] Mr. Rousselle claims that Air Canada was the selecting carrier, the most significant carrier, and that Air Canada’s baggage rules should have applied to his trip. Consequently, Air Canada should have applied its Policy and checked his baggage through to Quito without surcharge fees based on the following statement on its website:

Members of the Canadian and U.S. military benefit from an enhanced baggage allowance whenever they travel on a flight operated by Air Canada, Air Canada rouge or Air Canada Express. Eligible active and retired members of the Canadian and U.S. military are entitled to up to three pieces of checked baggage, each weighing up to 32 kg (70 lb) each.

[16] Mr. Rousselle argues that at the time of filing his complaint with the Agency, Air Canada’s Policy did not state that it did not apply to itineraries which include connecting flights with other airlines. Notably, he states that the information on Air Canada’s website did not include the following paragraph, which was added after this complaint was filed:

Please note that the baggage allowance for military personnel does not apply to itineraries which include connecting flights with other airlines (including Star Alliance member airlines). Regular baggage allowance and fees will apply.

AIR CANADA’S POSITION

[17] Air Canada refers to the terms and conditions associated with its Policy that are set out on its website, including both paragraphs set out above.

[18] Air Canada submits that Mr. Rousselle’s baggage was carried free of charge on the flight segment operated by Air Canada, and consequently, that it properly applied its Policy. Air Canada states that it cannot impose its Policy on air carriers around the world.

Analysis and determinations

[19] In Decision No. 144-A-2014, the Agency determined that, for international itineraries involving multiple air carriers, to and from Canada, purchased on a single ticket, carriers should apply a single set of baggage rules to the entire itinerary and disclose the applicable rules on the itinerary receipt or e-ticket.

[20] Although Air Canada sold the round-trip ticket to Mr. Rousselle, the first flight of his itinerary was with Avianca from Quito to Bogotá. Pursuant to Rule 116(B)(1) of Avianca’s Tariff, the carrier whose designator code is on the first segment of the passenger’s interline ticket will be known as the selecting carrier.

[21] Rule 61(B) of Air Canada’s Tariff provides that, when Air Canada is not the selected carrier on an interline itinerary but is an interlining carrier that is providing transportation to the passenger based on the ticket issued, Air Canada will accept, and apply as its own, the baggage rules of the selected carrier throughout the interline itinerary. Accordingly, Mr. Rousselle’s ticket stated that Avianca’s baggage rules applied to his trip.

[22] Even if Air Canada’s Policy did not explicitly state at the time of booking that it did not apply to itineraries which include connecting flights with other airlines, as pointed out by Mr. Rousselle, it did nonetheless clearly state that it applied to flights operated by Air Canada, Air Canada rouge or Air Canada Express. The fact that the current version of the Policy, which was submitted with Air Canada’s answer, now does include such a statement does not mean that the earlier version was unclear.

[23] Mr. Rousselle’s itinerary receipt also included the following disclaimer:

[Translation]

Passengers with itineraries that include flights operated by other airlines or codeshare flights may be subject to the carry-on rules and fees of the other airline, which may be different from Air Canada’s baggage policy.

[24] In light of the above, the Agency finds that Avianca’s Tariff, including its baggage rules, was applicable to Mr. Rousselle’s entire itinerary. However, Air Canada chose to apply its Policy, which allows for three pieces of checked baggage each weighing up to 70 pounds, and did not charge Mr. Rousselle excess baggage fees for the portion of his itinerary with Air Canada.

[25] Based on Rule 115 of Avianca’s Tariff, Mr. Rousselle was allowed two pieces of baggage weighing a maximum of 50 pounds, and measuring a maximum of 62 inches. The parties have not provided any information about the dimensions and weight of Mr. Rousselle’s baggage. However, according to Rule 115 of Avianca’s Tariff, Mr. Rousselle could have been charged $100 for each of his first two overweight baggage, and between $185 and $260 for his additional baggage, depending on the weight and dimensions, for a minimum total of $385 plus taxes.

[26] Upon retrieving his baggage in Panama City, Mr. Rousselle was charged $200 for his two overweight baggage and $175 for his extra baggage by Copa Airlines, for a total of $375 plus taxes. In fact, Copa Airlines’ charges were applied in error. As indicated on his ticket, and in accordance with Decision No. 144-A-2014, Avianca’s baggage charges should have been applied, which would have cost Mr. Rousselle at least US$10.00 more than the amount that he paid to Copa Airlines.

[27] The Agency finds that while errors were made in the application of Avianca’s baggage rules, Air Canada cannot be faulted for applying its Policy for the carriage it performed. As the fees charged by Copa Airlines are less than what could have been charged based on Avianca’s Tariff, no compensation is awarded to Mr. Rousselle.

[28] Therefore, the Agency finds that Air Canada did not properly apply the terms and conditions set out in Rule 61 of its Tariff, and, despite this, that Mr. Rousselle is not entitled to any compensation.

SHOULD AIR CANADA MODIFY ITS TARIFF TO INCLUDE THE TERMS AND CONDITIONS RELATING TO ITS POLICY?

The law

[29] Section 122 of the ATR, in respect of international carriage, provides as follows:

Every tariff shall contain

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

[…]

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

[…]

[30] Section 110(5) of the ATR provides that:

No air carrier or agent thereof shall offer, grant, give, solicit, accept or receive any rebate, concession or privilege in respect of the transportation of any persons or goods by the air carrier whereby such persons or goods are or would be, by any device whatever, transported at a toll that differs from that named in the tariffs then in force or under terms and conditions of carriage other than those set out in such tariffs.

Positions of the parties

MR. ROUSSELLE’S POSITION

[31] According to Mr. Rousselle, it is unacceptable that the terms of Air Canada’s Policy, as found on its public website, are omitted from its Tariff that is filed with the Agency. Mr. Rousselle submits that this means that, as far as such provisions are concerned, Air Canada is not bound to honour them in front of the Agency.

[32] Mr. Rousselle states that Air Canada should be made to either commit to the baggage allowance for members of the military in its Tariff or omit it altogether from its public website to ensure consistency between the two so that members of the military know what to expect at the time of travel.

[33] Mr. Rousselle agrees with Air Canada that its Policy is clear, reasonable and not unduly discriminatory.

AIR CANADA’S POSITION

[34] Air Canada submits that, while the terms and conditions associated with its Policy are not set out in its Tariff, they are set out on its website.

[35] Air Canada states “that particular baggage allowances should not be included in the Tariff document”, as its Tariff is already long, complex and does not need to go into such details. Air Canada argues that its website is clear on the requirements of the Policy and as such, it should not be included in the Tariff.

[36] Should the Agency conclude that this sort of policy should be forced on air carriers everywhere in the world, Air Canada submits that this is not feasible to implement.

[37] Air Canada adds that its Policy is clear, reasonable and not unduly discriminatory.

Analysis and determinations

[38] Section 4.4.2 of the Agency’s Interline Baggage Rules for Canada: Interpretation Note, effective for tickets issued after April 1, 2015, states the following as it relates to special issues affecting baggage rules:

Some passengers may be eligible for an enhanced baggage allowance or for reduced fees based on the passenger’s status or other factors. For example, a passenger’s status may vary due to: their participation in a frequent flyer program, travel on immigrant fares, travel connecting to a cruise, representation as a courier, or membership in the military, etc. […] 

[…] Carriers should ensure that accurate information is reflected in their respective tariffs and that consistent with existing practice, carriers should set out in their tariffs clear information related to a passenger’s eligibility for such entitlements. […] 

[39] In Decision No. 459-C-A-2014, the Agency found that supplemental policies which constitute terms and conditions of carriage shall form part of a carrier’s tariff. The Agency adopts the same reasoning in this case. With respect to international carriage, paragraph 122(c) of the ATR states that the tariff shall contain the terms and conditions of carriage in respect of “at least the following matters […].” The use of the phrase “at least” in paragraph 122(c) of the ATR indicates that the list of matters that shall be contained in a tariff is not exhaustive. Rather, the Agency has the authority to perform a broad interpretation of this provision and to consider additional matters that are not otherwise listed therein.

[40] Moreover, pursuant to subsection 110(5) of the ATR, no air carrier shall offer, grant or give any rebate or privilege in respect of the transportation of any persons or goods whereby such persons or goods are or would be, by any device whatever, transported at a toll that differs from that named in the tariffs then in force or under terms and conditions of carriage other than those set out in such tariffs.

[41] In light of the above, the Agency finds that the phrase “terms and conditions of carriage” encompasses the matter of “military baggage allowance” and, therefore, the terms and conditions in Air Canada’s Policy must be included in Air Canada’s Tariff.

[42] The Agency notes that Air Canada’s Policy, as submitted with Air Canada’s answer, clearly states that it does not apply to itineraries which include connecting flights with other airlines (including Star Alliance member airlines). Air Canada remains free to maintain the same limitation in its Tariff.

ORDER

[43] The Agency orders Air Canada to modify its Tariff to include the terms and conditions relating to its Policy by January 22, 2019