Decision No. 40-C-A-2021

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding a schedule irregularity affecting their return flight from Tel Aviv, Israel, to Montréal, Quebec, via Frankfurt, Germany, on January 9, 2019.

[2] The applicants seek the following:

• A finding that Air Canada and Lufthansa knowingly provided false information as to why they were denied boarding;

• An order that Air Canada and Lufthansa put in place training procedures to ensure that their representatives cease providing false information to passengers; and

• A finding that Air Canada and Lufthansa incorrectly denied them their right to compensation under Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (Regulation (EC) No 261/2004).

[3] The Agency will consider the following issue:

Did Lufthansa properly apply the terms and conditions set out in Air Canada’s International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on behalf of Air Canada Applicable to the Transportation of Passengers and Baggage between points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada NTA No. 458 (Tariff), relating to schedule irregularities, as required by subsection 110(4) of the ATR?

[4] For the reasons set out below, the Agency finds that Lufthansa properly applied the terms and conditions set out in Rules 80(C)(4) of Air Canada’s Tariff, as it was in January 2019. The Agency, therefore, dismisses this application.

BACKGROUND

[5] The applicants purchased round-trip tickets to travel from Montréal to Tel Aviv. The outbound flights operated without issue. On their return flights, scheduled for January 9, 2019, the applicants faced a number of issues with their scheduled itinerary. The applicants’ original return itinerary was as follows:

• Flight No. LH691/AC9021, operated by Lufthansa: departing Tel Aviv at 5:20 a.m., arriving in Frankfurt at 9:00 a.m.
• Flight No. AC0875, operated by Air Canada: departing Frankfurt at 10:05 a.m., arriving in Montréal at 12:05 p.m.

[6] The departure of Flight No. LH691/AC9021 was delayed by about 30 minutes, resulting in the flight arriving in Frankfurt 25 minutes later than scheduled. The applicants claim that they were able to reach the departure gate for Flight No. AC0875 as passengers were boarding. The applicants provided their boarding passes when they reached that departure gate, but were told that their names were not on the passenger list for the flight. The applicants later found that they had been removed from the flight and reprotected to the following itinerary:

• Flight No. LH0904, operated by Lufthansa: departing Frankfurt at 11:00 a.m., arriving in London, United Kingdom, at 11:45 a.m.
• Flight No. AC0865, operated by Air Canada: departing London at 1:00 p.m., arriving in Montréal at 3:25 p.m.

[7] The applicants travelled on their new itinerary and arrived in Montréal less than four hours later than their originally scheduled arrival time.

[8] As the application was originally filed against Air Canada, the pleadings opened against Air Canada. However, Lufthansa filed a request to intervene. As a result, in Decision No.  LET-C-A-62-2020, the Agency added Lufthansa as a respondent to the application.  

[9] In Decision No. LET-C-A-23-2021, in which the Agency addressed several procedural requests, the Agency found that as “Rule 80(C)(2) of Air Canada’s Tariff expressly states that the carrier will apply the provisions of Regulation (EC) No 261/2004 for flights departing from the European Union and Switzerland. Accordingly, the Agency finds that it has jurisdiction to consider whether Air Canada has complied with its related obligations.”

PRELIMINARY MATTERS

Applicable tariff

[10] The applicants’ itinerary involves flights operated by both Air Canada and Lufthansa. All the flights except for Flight No. LH691/AC9021 were coded as, and operated by, Air  Canada. However, Flight No. LH691/AC9021 was a codeshare flight coded as an Air  Canada flight operated by Lufthansa. As Air Canada was the marketing carrier of the applicants’ tickets, the Agency finds that Air Canada’s Tariff applies to the whole itinerary.

APPR

[11] The applicants make reference to the carrier’s obligation to pay compensation for inconvenience and refer to a page on the Agency’s website with respect to flight delays and cancellations. However, this page addresses the Air Passenger Protection Regulations, SOR/2019-150 (APPR). The APPR came into force on July 15, 2019, and December 15, 2019, while the events that are the focus of the application took place on January 9, 2019. The APPR are, therefore, not applicable to this case.

Denied boarding

[12] The applicants’ claim that they were denied boarding on Flight No. AC0875. They seek denied boarding compensation under Regulation (EC) No 261/2004. They further request that the Agency find that Air Canada and Lufthansa knowingly provided them with false information on the reason they were denied boarding and order that Air Canada and Lufthansa put in place training procedures to ensure that their respective representatives cease providing false information to passengers.

[13] Rule 90 of the Tariff defines denied boarding as a situation where Air Canada is unable to provide previously confirmed space because the number of passengers who hold confirmed reservations and tickets exceeds the number of seats available. This occurs when Air Canada “oversells” a flight.

[14] In response to the application, Air Canada provided a copy of its NetLine report, which is a report reflecting flight schedule information, and cargo and passenger data. This report shows that Flight No. AC0875 departed with 32 unoccupied seats. Furthermore, as the applicants were reprotected on another itinerary as a result of the delay of Flight No.  LH691/AC9021, the applicants no longer held a confirmed reservation at the time they presented themselves at the boarding gate.

[15] Based on the above, the Agency finds that the applicants were not denied boarding, but rather, were affected by a schedule irregularity as a result of the delay of Flight No. LH691/AC9021.

THE LAW AND RELEVANT TARIFF PROVISIONS

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

[17] 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 the carrier 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.

[18] The relevant provisions of Air Canada’s Tariff and Regulation (EC) No 261/2004, which is incorporated into Air Canada’s Tariff, are set out in the Appendix.

POSITIONS OF THE PARTIES

The applicants

[19] The applicants argue that they should not have been removed from Flight No. AC0875 on the chance that they would not make the connection. The applicants argue that they are competitive athletes and provided affidavits describing their athletic abilities and achievements. According to the applicants, they could easily make the connection, despite the delay of their flight from Tel Aviv. They also claim that they reached the departure gate in Frankfurt by the 15-minute cut-off time for boarding. They argue that the calculations made by Lufthansa’s flight operating system, HubStar, were wrong and that they should not have been removed from the flight and rebooked on another itinerary.

[20] According to the applicants, Air Canada denied them their right to compensation under Regulation (EC) No 261/2004. The applicants argue that, in the event that the Agency finds that the provisions of Regulation (EC) No 261/2004 for denied boarding compensation do not apply in this case, the provisions for financial compensation of passengers for flight delay remain applicable.

The respondents

[21] The respondents acknowledge that Flight No. LH691/AC9021 was delayed at departure for a total of 35 minutes following a series of uncontrollable events: terminal security concerns (on the day of the flight, Israeli Intelligence was running additional checks, which caused a significant slowdown and delay for passengers and crew); boarding congestion when a surge of passengers finally made it through long security queues; and a delay in waiting for a push-back tug.  

[22] The respondents also confirm that Flight No. LH691/AC9021 arrived in Frankfurt at 9:25 a.m., 25 minutes after its scheduled arrival time. The respondents submit that, as per Air Canada’s policy, the applicants had to be at the boarding gate by 9:50 a.m. to accommodate the departure of Flight No. AC0875 at 10:05 a.m. Therefore, the applicants had 25 minutes to disembark from the aircraft, transit through security during morning peak hours, and travel the distance between the arrival gate (located in Concourse C) and departure gate (located in Concourse B) before the cut-off time for the flight. Air  Canada provided an affidavit from a Frankfurt Airport Manager who states that the transfer between the two gates takes approximately 25 to 30 minutes.

[23] The respondents also submit that there was insufficient time for the applicants’ baggage to be unloaded from their first flight and loaded onto their next flight without delaying the whole flight. The respondents explain that baggage may sometimes travel without the passenger, but state that there are regulations that prohibit carriers from knowingly transporting baggage across international borders without the passenger who has checked it.

[24] The respondents submit that HubStar identified that the applicants were not going to reach the departure gate before the cut-off time for flight No. AC0875, based on passenger connection data and the fact that the minimum connection time at the Frankfurt airport is 45 minutes. As a result, Lufthansa reprotected the applicants on an alternate itinerary. The respondents argue that the applicants’ flights were changed while they were on the flight from Tel Aviv to Frankfurt in order to fulfill the respondents’ obligations to transport passengers to their final destination and minimize the disruption associated  with  the delay. As a result, the applicants arrived at their final destination 3 hours and  6 minutes after the actual arrival time of their original itinerary.

[25] The respondents maintain that it is an industry standard to use systems like HubStar once passengers are en route to an airport where they have a connection to determine whether they will have enough time after landing to make the connecting flight. In cases where a passenger is unlikely to meet boarding times, the system reprotects the passenger on a later flight in order to minimize delays and disruptions for the passenger. This practice helps passengers. The respondents argue that it is more efficient to proactively reprotect passengers rather than wait for them to actually miss their connections. The longer the carrier waits, the more likely it is that seats will be sold out and passengers will experience further delays.

[26] The respondents argue that they correctly applied both carriers’ tariffs by reprotecting the applicants in the context of a schedule irregularity outside their control.

ANALYSIS AND DETERMINATIONS

[27] The onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.

Delay of Flight No. LH691/AC9021

[28] The parties filed submissions on the reasons for the delay. Rule 80 of the Tariff addresses schedule irregularities and does not set out different obligations depending on whether the delay was within or outside of the carrier’s control, except for delays longer than four hours and delays lasting overnight. The applicants’ delay was for less than four hours and occurred during the day; thus, the reasons for the delay are not relevant.

[29] Rule 80(C)(4) of the Tariff sets out the carrier’s obligations in the event of a schedule irregularity; in the applicants’ case, the obligation was to reprotect the applicants on another flight within a reasonable time frame. Rule 80(B) of the Tariff states that the carrier operating the flight that is experiencing the schedule irregularity will make the alternative travel arrangements for the passenger.

[30] In this case, Lufthansa was the carrier operating the flight that experienced the schedule irregularity and it reprotected the applicants on an alternative itinerary when it determined that the applicants were unlikely to reach the departure gate for the connecting flight by the boarding cut-off time.

[31] There is no reason to doubt the applicants’ claim that they managed to reach the departure gate before the cut-off time and it was no doubt frustrating for them to have done so, only to discover that they would not be permitted to board. It is unlikely that a system like HubStar could ever consider each passenger’s individual fitness level or ability to run quickly, and it was not unreasonable for the system to determine that the applicants and their checked baggage would not be able to reach the original connecting flight in time. Furthermore, the use of a data-based system to reprotect passengers on alternative itineraries at the earliest possible time can be expected, in general, to help reduce the delays experienced by passengers, relative to an approach that is manual and less proactive in nature.

[32] Based on the above, the Agency finds that, in proactively reprotecting the applicants, Lufthansa properly applied Rule 80(C)(4) of Air Canada’s Tariff.

Compensation for delay

[33] The applicants claim that the respondents denied them compensation that they are entitled to receive under Regulation (EC) No 261/2004. In Decision  No. LET‑C‑A‑23‑2021, the Agency found it has jurisdiction to determine whether Air  Canada has complied with Regulation (EC) No 261/2004, which is incorporated in its Tariff.

[34] The related obligations in Regulation (EC) No 261/2004 are contained in Article 6 which addresses flight delays. Article 6 of Regulation (EC) No 261/2004 sets out the carrier’s  obligations to a passenger with respect to right to care, and reimbursement or re-routing. However, the Agency notes that Article 6 does not contain an obligation for the carrier to provide compensation as set in Article 7 of Regulation (EC) No 261/2004. Accordingly, the Agency finds that the applicants are not entitled to compensation and that Lufthansa properly applied Rule 80(C)(2) of Air Canada’s Tariff when it denied the applicants compensation for the delay.

CONCLUSION

[35] In light of the above, the Agency finds that Lufthansa properly applied Rule 80(C)(4) of Air Canada’s Tariff when it reprotected the applicants, and that the applicants are not entitled to compensation. The Agency, therefore, dismisses the application.

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APPENDIX TO DECISION NO. 40-C-A-2021

International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and between the USA and Canada, NTA(A) No. 458

RULE 80 – SCHEDULE IRREGULARITIES

C. Schedule irregularity

(1) Definition
“Schedule irregularity” means any of the following:

a) Delay in scheduled departure or arrival of a carrier’s flight

b) Flight cancellation, omission of a scheduled stop, or any other delay or interruption in the scheduled operation of a carrier’s flight, or

c) Substitution of equipment or of a different class of service, or

d) Schedule changes which require rerouting of passenger at departure time of the original flight.

(2) In the case of a schedule irregularity, the carrier shall implement the provisions of this rule, unless applicable local law provides otherwise.  In particular, for flights departing from the following countries, Air Canada will apply the provisions of the following legislations: European Union and Switzerland: EC regulation NO. 261/2004; Israel: aviation services law (compensation and assistance for flight cancellation or change of conditions), 5772-2012. Turkey: regulations on air passenger rights (shy-passenger)

(3) Given that passengers have a right to information on flight times and schedule changes, Air Canada will make reasonable efforts to inform passengers of delays, cancellations and scheduled changes and to the extent possible, the reason for the delay or change.

(4) In the event of a scheduled irregularity, carrier will either:

Note: additional services are provided to on my way customers, as detailed below:

a) Carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service; or, at carrier’s option;

b) Endorse to another air carrier with which Air Canada has an agreement for such transportation, the unused portion of the ticket for purposes of rerouting; or at carrier’s option;

c) Reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from RULE 100 - REFUNDS, carrier will require no additional payment from the passenger but will refund the difference if it is lower or,

d) If the passenger chooses to no longer travel or if carrier is unable to perform the option stated in (a) (b) or (c) above within a reasonable amount time, make involuntary refund in accordance with RULE 100 - REFUNDS (an exception to the applicability of a refund occurs where the passenger was notified of the schedule irregularity prior to the day of departure and the schedule irregularity is of 60 minutes or less) or,

e) Upon request, for cancellations within Air Canada’s control, return passenger to point of origin and refund in accordance with RULE 100 - REFUNDS as if no portion of the trip had been made (irrespective of applicable fare rules), or subject to passenger’s agreement, offer a travel voucher for future travel in the same amount; or, upon passenger request.

f) For cancellations within Air Canada’s control, if passenger provides credible verbal assurance to Air Canada of certain circumstances that require his/her arrival at destination earlier than options set out in subparagraph (a) above, or, for on my way customers, for cancellations within or outside carrier’s control, Air Canada will, if it is reasonable to do so, taking all circumstances known to it into account, and subject to availability, buy passenger a seat on another carrier whose flight is schedule to arrive appreciably earlier than the options proposed in (a) above. Nothing in the above shall limit or reduce the passenger’s right, if any, to claim damages, if any, under the applicable convention, or under the law when neither convention applies.

Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91

Article 6 Delay

1. When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:

(a)  for two hours or more in the case of flights of 1 500 kilometres or less; or
(b)  for three hours or more in the case of all intra-Community flights of more than 1500 kilometres and of all other flights between 1 500 and 3 500 kilometres; or
(c)  for four hours or more in the case of all flights not falling under (a) or (b), passengers shall be offered by the operating air carrier:

(i) the assistance specified in Article 9(1)(a) and 9(2); and
(ii) when the reasonably expected time of departure is at least the day after the time of departure previously announced, the assistance specified in Article 9(1)(b) and 9(1)(c); and
(iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a).

2. In any event, the assistance shall be offered within the time limits set out above with respect to each distance bracket.

Article 7 Right to compensation

1. Where reference is made to this Article, passengers shall receive compensation amounting to

 (a) EUR 250 for all flights of 1 500 kilometres or less;
 (b) EUR 400 for all intra-Community flights of more than 1 500 kilometres, and for all other flights between 1 500 and 3 500 kilometres;
 (c) EUR 600 for all flights not falling under (a) or (b).

In determining the distance, the basis shall be the last destination at which the  denial of boarding or cancellation will delay the passenger’s arrival after the scheduled time.

2. When passengers are offered re-routing to their final destination on an alternative flight pursuant to Article 8, the arrival time of which does not exceed the scheduled arrival time of the flight originally booked

 (a) by two hours, in respect of all flights of 1500 kilometres or less; or
 (b) by three hours, in respect of all intra-Community flights of more than 1500 kilometres and for all other flights between 1500 and 3500 kilometres; or
 (c) by four hours, in respect of all flights not falling under (a) or (b),

the operating air carrier may reduce the compensation provided for in paragraph 1 by 50%.

3. The compensation referred to in paragraph 1 shall be paid in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services.

4. The distances given in paragraphs 1 and 2 shall be measured by the great circle route method