Decision No. 122-C-A-2022

[1] The applicants were scheduled to travel from Cancun, Mexico, to Regina, Saskatchewan, via Calgary, Alberta, on February 29, 2020. The applicants’ flight from Calgary to Regina was scheduled to depart at 10:55 pm on February 29, 2020, and arrive in Regina at 1:31 am on March 1, 2020. However, the flight was delayed and eventually cancelled, and the applicants had to spend the night in a hotel in Calgary. The applicants were rebooked on a flight the following day, March 1, 2020, departing at 8:25 am and arriving in Regina at 11:00 am. The applicants experienced a total arrival delay of 9 hours and 29 minutes.

[2] The applicants seek a refund of CAD 73.42 for their hotel accommodation in Calgary and they each seek compensation in the amount of CAD 1,000 under the Air Passenger Protection Regulations^{Note 1} (APPR).

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether the respondent properly applied its Tariff^{Note 2} to the tickets that the applicants purchased. If the Agency finds that the respondent failed to properly apply its Tariff, it can direct the respondent to take the corrective measures that it considers appropriate or to pay compensation for any expense incurred by a person adversely affected by the respondent’s failure. The relevant provisions of the ATR, the APPR and the Tariff are set out in the Appendix.

[4] Under sections 12 and 19 of the APPR, incorporated into the Tariff in Rule 100, passengers may be entitled to compensation for inconvenience if they experience a flight delay or cancellation within the carrier’s control.

[5] The applicants submit that the departure gate agent told them at least three times that the reason for their flight delay was flight crew availability, as they had to wait for a crew on an incoming flight from Edmonton. The applicants explain that after a three-hour wait, they were then told that the crew could not make the trip to Regina as the crew “ran out of hours” and could no longer work that night.

[6] The applicants submit that at no time were they notified of any pending mechanical issues with the aircraft, and indicate that they saw their luggage loaded on to the aircraft. The applicants submit that after the flight cancellation, they were told that if they did not wait in line for a hotel voucher, the respondent would reimburse them for the cost of their hotel accommodation, to a maximum of CAD 250. However, when the applicants submitted their CAD 223.42 hotel accommodation receipt, the respondent refused to cover the full amount and refunded them only CAD 150.

[7] The respondent argues that the cancellation was within its control but required for safety purposes and that, therefore, no compensation is owed to the applicants. The respondent submits that the crew scheduled to operate the flight was initially impacted by adverse weather on a previous flight, which resulted in the applicants’ flight being delayed. The respondent submits that then a mechanical issue occurred on an aircraft that was supposed to operate other flights, which resulted in the applicants’ flight being delayed further. Lastly, the respondent explains that when the flight crew finally arrived in Calgary, they were unable to operate the flight as they had exceeded their duty time limit and that, as a result, the applicants’ flight was cancelled.

[8] The respondent recognizes that the applicants’ flight was cancelled due to the crew exceeding their duty time limit. However, the respondent argues that this cancellation is deemed to be within the carrier’s control but required for safety purposes because the most significant delay that caused the crew to exceed their duty time limit was unscheduled maintenance.

[9] The respondent explains that it has a policy that limits the amount for hotel accommodation compensation at CAD 150. The respondent states that the applicants had the option to wait for a hotel voucher but that they did not wait. It argues that consequently, they are not entitled to any further compensation for the accommodation expense incurred.

Flight cancellation

[10] The respondent agrees that the applicants’ flight was cancelled because the flight crew scheduled to operate the flight exceeded their duty time limit by the time the crew arrived in Calgary. This is supported by the evidence submitted by the respondent.

[11] In Decision 122-C-A-2021 (APPR Interpretive Decision), the Agency stated that when determining the categorization of a flight disruption caused by a crew shortage, the circumstances surrounding the crew shortage must be considered, including, but not limited to, factors such as the categorization of the events that caused the crew shortage, and whether the carrier has prepared and implemented reasonable contingency plans.

[12] As stated in the APPR Interpretive Decision, even if situations outside the carrier’s control, or within the carrier’s control but required for safety purposes, contribute to a crew shortage, the crew shortage may still be found to be within the carrier’s control depending on whether the carrier has prepared and implemented reasonable contingency plans for replacing its crew. This assessment must be made on a case-by-case basis, and the carrier is expected to file evidence before the Agency with respect to its contingency plans.

[13] In Decision 89-C-A-2022 (Lareau v WestJet), the Agency stated that while the onus is on the applicant to establish, on a balance of probabilities, that the carrier failed to properly apply the rules applicable to their ticket, when a carrier claims that a disruption was within its control but required for safety purposes, or outside its control, it must establish this claim. As the relevant information is in the possession of the carrier, it has the responsibility to provide evidence to support its categorization of a disruption.

[14] As outlined in Lareau v WestJet, disruptions within the carrier’s control but required for safety purposes should be limited to events that cannot be foreseen nor prevented or, in other words, that cannot be prevented by a prudent and diligent carrier, and staffing issues should generally be within the carrier’s control. The Agency stated that the threshold for establishing that a crew shortage was not within the carrier’s control within the meaning of section 12 of the APPR is high. The carrier must demonstrate that it could not have reasonably prevented the disruption despite proper planning.

[15] In this case, the respondent argues that two disruptions contributed to the crew shortage: one that was outside its control; and one that was within its control but required for safety purposes.

[16] The respondent submits that the crew scheduled to operate the applicants’ flight was delayed early in the day while operating a flight from Brandon, Manitoba, to Calgary because of adverse weather. While the respondent provided evidence that the flight from Brandon to Calgary encountered a delay of 4 hours and 8 minutes, it did not provide evidence demonstrating how that delay directly impacted the crew assigned to the applicants’ flight, such as duty time logs listings.

[17] The respondent submits that later during the day, a mechanical issue occurred on an aircraft, resulting in the crew being delayed again. However, the respondent’s explanations regarding that disruption are vague, and the respondent did not provide evidence of a mechanical issue not included in scheduled maintenance and evidence of the impact of this disruption on the duty time of the crew scheduled to operate the applicants’ flight.

[18] Moreover, the respondent did not submit evidence regarding contingency plans that it had in place to ensure that a flight crew was available to carry out the flight on time in the event that the intended flight crew was delayed past their duty time limit. In this case, this is especially relevant given that the applicants’ flight was scheduled to depart at 10:55 pm on February 29, 2020, while the assigned flight crew had been working since early in the morning and that Calgary is not a remote posting, but rather the respondent’s headquarters.

[19] Furthermore, the respondent recognizes that the flight crew assigned to the applicants’ flight encountered a delay early in the day, which suggests that it would have had time to consider other options to mitigate the impact of earlier disruptions, such as transporting a different flight crew in Calgary if no other flight crew was available in Calgary.

[20] Given these factors, the Agency finds that the evidence filed by the respondent does not sufficiently establish that the cancellation resulting from the crew shortage was unavoidable despite proper planning, nor does it demonstrate that the cancellation was not the result of its own actions or inactions.

[21] The Agency finds that the respondent has failed to establish that the cancellation was directly attributable to an earlier delay that was within the carrier’s control but required for safety purposes and that it took all reasonable measures to mitigate the impacts of the earlier flight delay.

[22] Therefore, the Agency finds that the flight cancellation was within the respondent’s control under section 12 of the APPR.

[23] The applicants are each entitled to compensation for inconvenience for the delay they experienced in the amount of CAD 1,000, pursuant to paragraph 12(3)(d) and subparagraph 19(1)(a)(iii) of the APPR.

Standards of treatment

[24] The respondent argues that it fulfilled its requirements under the APPR when it partially compensated the applicants for their hotel accommodation expenses, and submits that they should not be provided with further compensation. The respondent also argues that it has a maximum CAD 150 policy on hotel accommodation. However, these terms and conditions do not form part of the Tariff, and the applicants are not bound by them. In addition, under paragraph 12(3)(b) and subsection 14(2) of the APPR, the respondent must offer passengers faced with an overnight delay a reasonable hotel accommodation, and this standard of treatment is incorporated into the Tariff in Rule 100.

[25] The Agency finds that the applicants’ expense of CAD 223.42 for their hotel accommodation was reasonable and that the applicants are entitled to a reimbursement of the expense that they incurred as a result of the flight cancellation. The Agency finds that the applicants are entitled to the remaining amount of CAD 73.42.

Order

[26] Pursuant to subsection 113.1(1) of the ATR, the Agency orders WestJet to compensate each of the applicants in the amount of CAD 1,000 for the delay that they experienced and to reimburse the applicants in the amount of CAD 73.42 for their hotel accommodation expenses, for a total amount of CAD 2,073.42. WestJet is to pay this amount to the applicants as soon as possible and no later than November 22, 2022.
 

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Appendix to Decision 122-C-A-2022

Air Transportation Regulations, SOR/88-58

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.

113.1(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, if it receives a written complaint, direct the air 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 that are applicable to the service it offers and that were set out in the tariff.

Air Passenger Protection Regulations, SOR/2019-150

Obligations when within carrier’s control

12(1) Subject to subsection 10(2), this section applies to a carrier when there is delay, cancellation or denial of boarding that is within the carrier’s control but is not referred to in subsections 11(1) or (2).

…

Cancellation

(3) In the case of a cancellation, the carrier must

(a) provide passengers with the information set out in section 13;

(b) if a passenger is informed of the cancellation less than 12 hours before the departure time that is indicated on their original ticket, provide the standard of treatment set out in section 14;

(c) provide alternate travel arrangements or a refund, in the manner set out in section 17; and

(d) if a passenger is informed 14 days or less before the original departure time that the arrival of their flight at the destination that is indicated on their ticket will be delayed, provide the minimum compensation for inconvenience in the manner set out in section 19.

Accommodations

14(2) If paragraph 11(3)(b) or (4)(b) or 12(2)(b) or (3)(b) applies to a carrier and the carrier expects that the passenger will be required to wait overnight for their original flight or for a flight reserved as part of alternate travel arrangements, the air carrier must offer, free of charge, hotel or other comparable accommodation that is reasonable in relation to the location of the passenger, as well as transportation to the hotel or other accommodation and back to the airport.

Compensation for delay or cancellation

19(1) If paragraph 12(2)(d) or (3)(d) applies to a carrier, it must provide the following minimum compensation:

(a) in the case of a large carrier,

…

(iii) $1,000, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by nine hours or more; and

…

International Passenger Rules and Fares Tariff WS1 containing Local Rules, Fares and Charges on Behalf of WestJet Applicable to the Transportation of Passengers and Baggage Between Points in United States/Canada and Points in Area 1/2/3 and Between the US and Points in Canada, CTA 518

Rule 100 APPR Provisions

 …

(h) right to care

1. For flights departing on or after December 15, 2019: in the event of delay or flight cancellation within the carrier’s control or within the carrier’s control but required for safety purposes, in which a passenger is informed of the delay less than 12 hours before the schedule departure time indicated on the original ticket, and the passenger has waited two hours after the departure time indicated on the ticket, or the schedule irregularity has resulted in a flight cancellation and the passenger was informed of the cancellation less than 12 hours before the departure time indicated on the ticket, a passenger will be offered the following:

                        …

c.         if the carrier expects that the passenger will be required to wait overnight for their original flight or a reserved flight as part of alternative travel arrangements, the carrier will offer, free of charge, hotel or other comparable accommodation as well as transportation to and from the accommodation, taking into consideration the location of the passenger.

…

(j) Applicability

…

(b) for flights departing on or after December 15, 2019: compensation for inconvenience resulting from delays or cancellations within the control of the carrier
it a passenger is informed 14 days or less before the departure time on their ticket that the arrival of their flight at the destination that is indicated on their ticket will be delayed by at least three hours, and the delay is a caused by a situation under the carrier’s control, compensation will be provided if a passenger files a request for compensation with the carrier before the first anniversary of the day on which the flight delay occurred.

Within 30 days from the date on which the carrier receives the request, the carrier will provide the compensation or an explanation why the compensation is not payable.

The carrier will provide compensation in the following amounts to passengers who are delayed due to delay or cancellation and when that delay is within the control of the carrier and when the passenger was informed 14 days or less about the delay. regardless of the fare paid, passengers are entitled to a monetary compensation as follows:

...

d.         $1000, if the delay is more than nine hours.

 

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