Decision No. 153-C-A-2022

[1] Tyler Usselman was originally scheduled to travel from Toronto, Ontario, to Kelowna, British Columbia, on August 20, 2021, with a scheduled arrival time of 11:17 pm. However, on the day of his departure, he was notified by Air Canada that his flight was cancelled because of crew constraints resulting from the COVID-19 pandemic. Mr. Usselman was rebooked to travel two days later, on August 22, 2021, but on August 21, 2021, this flight was also cancelled because of crew constraints. Mr. Usselman was then rebooked on a new itinerary departing on August 22, 2021, with a connection in Montréal, Quebec. Mr. Usselman arrived in Kelowna at 9:13 pm on August 22, 2021, 45 hours and 56 minutes later than originally scheduled.

[2] Mr. Usselman requested compensation for inconvenience under the Air Passenger Protection Regulations (APPR). Air Canada denied his request on the basis that the cancellations were due to crew constraints resulting from the impact of the COVID-19 pandemic on its operations, which it considered a safety-related issue.

[3] As a preliminary matter, the Agency acknowledges Mr. Usselman’s objection to the filing of Air Canada’s answer on the basis that it was received after the 5:00 pm deadline for electronic transmission. However, the Agency considers it appropriate in the circumstances to place the answer on the record to ensure fair decision-making on the issues of this proceeding.

[4] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether Air Canada properly applied its Tariff to the ticket that Mr. Usselman purchased.

[5] The evidence shows that Mr. Usselman experienced two flight cancellations on his itinerary. Contrary to what is submitted by Mr. Usselman, this does not entitle him to twice the compensation for inconvenience because entitlement to compensation is calculated based on the number of hours that the passenger is delayed in arrival at the destination indicated on the original ticket, and not on the number of flight disruptions that they experienced. However, it is necessary to take into account all of the flights involved in the overall delay when determining whether a passenger delayed by multiple flight disruptions is entitled to compensation for inconvenience under the APPR, because the Agency must determine the primary reason, or most significant contributing factor, of the overall delay. Relevant factors for identifying the primary reason, or most significant contributing factor, include what caused the longest period of delay, whether a connection was missed, and whether the different disruptions are causally related.

[6] In this case, the Agency finds that the cancellation of Mr. Usselman’s original flight on August 20, 2021, which delayed his arrival in Kelowna by approximately 38 hours and 50 minutes, was the primary reason, or most significant contributing factor, of his overall delay of 45 hours and 56 minutes.

[7] Under the Tariff and the APPR, compensation for inconvenience is only owed if this cancellation was within Air Canada’s control.

[8] 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. However, 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 by providing evidence that supports its categorization of the disruption.

[9] In this case, Mr. Usselman claims that he is entitled to compensation given that failure to staff an aircraft is within Air Canada’s control.

[10] Air Canada takes the position that the cancellation was outside its control, or at least, within its control but required for safety purposes. While it recognizes that crew cancellations are generally controllable, it states that crew shortages can occur outside of normal operating conditions, and can be caused by extraordinary circumstances outside the carrier’s control. It further states that where an operation can take place but only part of the crew is available due to unforeseen circumstances, safety regulations prohibit the operation of the flight.

[11] Air Canada submits that in this case, it did not have the required number of cabin crew to operate the flight, as out of the four cabin crew that were originally scheduled to operate the flight, one had been “placed on release for COVID-19 care leave”, while two others had been reassigned to operate earlier flights in accordance with its contingency plans and standard operating procedures for crew shortages. Air Canada further submits that several uncontrollable events impacted its network during the summer of 2021 and interfered with its ability to secure reserve crew, namely the arrival of the Delta variant; the introduction of government measures and new labour law legislation; operational issues; and staffing issues with critical third-party stakeholders.

[12] Mr. Usselman argues in response that Air Canada’s evidence shows that crew shortages had been ongoing since the beginning of July 2021, such that they were not unpredictable by the date of his departure. In his view, Air Canada did not adequately plan for the crew shortages, and that instead of Air Canada adjusting its flight schedules in advance of departure to adequately address the crew shortage issues, it cancelled the flight hours before take-off, causing inconvenience to himself and other customers.

[13] In Decision 122-C-A-2021 (Interpretive Decision), the Agency found that when categorizing a flight disruption caused by a crew shortage as within the carrier’s control, within its control but required for safety purposes, or outside its control, the Agency must take into account the circumstances surrounding the crew shortage. These include factors such as the events that caused the crew shortage and whether they were within the control of the carrier, and whether the carrier prepared and implemented reasonable contingency plans. As carriers generally have control over staffing issues, to support claims that disruptions were required for safety or outside their control, carriers must demonstrate that they could not have reasonably prevented the disruption despite proper planning, and they must provide evidence showing that the crew shortage was not the result of their own actions or inaction. In doing so, they are expected to file evidence relating to the specific circumstances of the disruption, as these circumstances must be considered to determine a carrier’s obligations under the APPR.

[14] In this case, Air Canada filed several documents to support its position that uncontrollable events impacted its network as a whole during the summer of 2021. The Agency acknowledges that carriers encountered certain challenges during the summer of 2021; however, it also expects carriers to have planned their operations accordingly, particularly if these challenges were reasonably foreseeable. Disruptions outside the carrier’s control should be limited to unforeseeable events over which the carrier has no control, and disruptions within the carrier’s control but required for safety purposes should be limited to events that cannot be foreseen nor prevented by a prudent and diligent carrier.

[15] Air Canada did not file evidence showing when the crew members scheduled to operate Mr. Usselman’s flight were released or reassigned to operate earlier flights. Air Canada has not proven the crew shortage that impacted Mr. Usselman’s flight was last-minute and unforeseeable.

[16] Further, the documents Air Canada filed in support its position that various events impacted its operations during the summer of 2021 show that by August 20, 2021, issues impacting the scheduling of crew and reserve crew had been ongoing for several weeks. Proper planning was therefore particularly important in these circumstances. However, Air Canada did not address what steps had been taken in response to the ongoing crew shortage issues, nor what contingency plans were in place in light of the particular operating environment.

[17] While Air Canada filed data showing that many of its flight attendants based out of Toronto were absent on the day of the disruption, this evidence does not prove an inability to secure reserve crew. Air Canada could have substantiated through evidence its claim that all call-outs for reserve and overtime crew were unsuccessful, but it did not do so. Air Canada also did not indicate whether it considered bringing in reserve crew from its Montréal hub to operate the flight, nor why reserve crew was not secured the following day, on August 21, 2021.

[18] In light of the above, the Agency finds that the evidence filed by Air Canada does not establish that the cancellation resulting from the crew shortage was unavoidable despite proper planning. Accordingly, the Agency rejects Air Canada’s claims that the flight disruption was outside its control or within its control but required for safety purposes. The Agency notes that Air Canada cannot absolve itself of responsibility when a cancellation is the result of its own actions or inaction, such as improper planning.

[19] Therefore, the Agency finds that Mr. Usselman is entitled to compensation for inconvenience under the APPR.

Order

[20] The Agency orders Air Canada to compensate Mr. Usselman in the amount of CAD 1,000, as soon as possible and no later than February 8, 2023.
 

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Legislation or Tariff cited	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	67(3); 67(1)
Air Passenger Protection Regulations, SOR/2019-150	12(3); 19(1)
Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104	5(2); 6; 19
Domestic Tariff General Rules Applicable to the Transportation of Passengers and Baggage, CTA(A)3.	Rule 5(C); 80(B)(2)(d)