Decision No. 103-C-A-2017

November 21, 2017

APPLICATION by Usman Chowdhury, on behalf of himself, his wife, Syeda Suhana Rahman and their minor children, A. Chowdhury and N. Chowdhury (applicants) against Türk Hava Yollari Anonim Ortakligi (Turkish Airlines Inc.) carrying on business as Turkish Airlines (Turkish Airlines).

Case number: 
17-03314

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) concerning a requested change to the return portion of their roundtrip tickets from Toronto, Ontario, Canada to Dhaka, Bangladesh.

[2] The applicants are seeking CAN$3,000 for the new tickets that they purchased with Cathay Pacific Airways Limited (Cathay Pacific Airways) for their return flight from Dhaka to Toronto (return tickets). In addition, the applicants are seeking a refund for the unused portions of their roundtrip tickets with Turkish Airlines.

[3] The Agency will address the following issues:

Did Turkish Airlines properly apply the terms and conditions set out in Rules 2(2)(b)(i) and 90(E)(2) of its International Passenger Rules and Fares Tariff, NTA(A) No. 530 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Turkish Airlines did not properly apply the terms and conditions set out in its Tariff, what remedies, if any, are available to the applicants?

[4] For the reasons set out below, the Agency finds that, by not providing a refund for the unused portion of the roundtrip tickets, Turkish Airlines did not properly apply the terms and conditions set out in its Tariff. Therefore, the Agency orders Turkish Airlines to provide the applicants with a refund of the residual amount of the unused tickets by December 21, 2017 and to advise the Agency what the amount of the refund will be, how this amount was determined, and once compensation has been tendered to the applicants.

[5] Although Turkish Airlines did not properly apply its Tariff, and hence the applicants are entitled to a refund, the Agency notes that Turkish Airlines did provide the applicants with direction on how to collect the refund; however, the applicants did not establish that they followed up with the carrier.

BACKGROUND

[6] On October 2, 2016, Ms. Rahman and her two children travelled with Turkish Airlines from Toronto to Dhaka, via Istanbul, Turkey, and were scheduled to return on February 1, 2017 (February 1 tickets). The tickets were purchased through a travel agent. At the time of reservation, Ms. Rahman arranged for "meet and assist" service from Turkish Airlines because she was travelling alone with two young children. As a result of Ms. Rahman not being assisted on her outbound flight, Mr. Chowdhury purchased a roundtrip ticket with Turkish Airlines so that he could accompany his wife and children on their return home. Mr. Chowdhury departed Toronto on January 24, 2017 and was scheduled to return on February 21, 2017 (February 21 tickets). As the return date for Ms. Rahman and her children was scheduled for February 1, 2017, Mr. Chowdhury requested to have their return date rescheduled to coincide with his February 21 return date.

PRELIMINARY MATTER

Agency jurisdiction over quality of service

[7] The applicants make several references to what they perceive to be poor customer service on the part of Turkish Airlines with respect to not receiving the “meet and assist” service that Ms. Rahman requested, and the manner in which they were generally treated by the carrier’s staff.

[8] The Agency does not have jurisdiction with respect to the level of service that a passenger receives from an air carrier, as stated in previous decisions, such as Decision No. 18-C-A 2015 (Enisz v. Air Canada), Decision No. 55-C-A-2014 (Brine v. Air Canada), and most recently Decision No. 78-C-A-2017 (Kabra v. Jet Airways).

[9] Therefore, the Agency will not consider this issue.

THE LAW

[10] Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions set out in its Tariff.

[11] If the Agency finds that a carrier has failed to properly apply its Tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to:

  1. take the corrective measures that the Agency considers appropriate; and
  2. pay compensation for any expense incurred by a person adversely affect by its failure to apply the fares, rates, charges, or terms and conditions set out in the tariff.

[12] Rule 2(2)(b)(i) of the Tariff addresses ticket cancellation.

After departure

In the event of cancelling by the passenger or failure to use confirmed space as ticketed after travel has commenced, except as provided in (ii) below, refund will be the difference between the fare paid and the fare for the transportation used less the non-refundable amount specified in the applicable rule.

[13] Rule 90(E)(2) deals with refunds for the unused portion of a ticket.

If a portion of a ticket has been used, refund will be made in an amount equal to the difference, if any, between the fare paid and the applicable fare between the points between which the ticket has been used, less any applicable service charge and communications expenses.”

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicants’ position

[14] The applicants submit that they did not wish to reschedule the February 1 tickets with the travel agent who booked the tickets as “there were some suspicious charges on [Mr. Chowdhury’s] credit card by the travel agent” and the agent “used abusive language with [Mr. Chowdhury] when he questioned the charges.” The applicants submit that Mr. Chowdhury decided to contact Turkish Airlines directly to reschedule the February 1 tickets.

[15] The applicants state that Mr. Chowdhury advised Turkish Airlines that his wife and children would not be returning to Toronto on February 1, 2017 and that he attempted to change the return date to coincide with his February 21 ticket. The applicants state that after several failed attempts to reschedule the February 1 tickets, Mr. Chowdhury opened a complaint with Turkish Airlines about the lack of assistance for Ms. Rahman on her outbound flight and he was advised that it would be handled within seven business days.

[16] The applicants allege that Turkish Airlines assured Mr. Chowdhury in mid-January that it would contact him soon about rescheduling the February 1 tickets.

[17] The applicants submit that Mr. Chowdhury contacted Turkish Airlines a total of 11 times between mid-January and late February to reschedule the February 1 tickets. Each time the agents told him that they had sent an emergency e-mail to the appropriate department and that he would receive a response within 48 hours. The applicants state that that never happened and that the first response from Turkish Airlines came after they returned to Canada.

[18] The applicants state that a couple of days before February 1, 2017, the online status for the February 1 tickets was “cancelled status”.

[19] In support of the application, Mr. Chowdhury provided an ongoing e-mail exchange between himself and Turkish Airlines.

[20] The applicants submit that when they realized that they were not getting a response from Turkish Airlines in a timely manner, Mr. Chowdhury contacted Turkish Airlines’ office in Toronto for assistance. According to the applicants, Mr. Chowdhury was advised to contact the office in Dhaka. The applicants state that the Dhaka office wanted Mr. Chowdhury to be physically present in its office to change the tickets, but it was not possible for him to do so; therefore, he sent a relative to the office with their passports and tickets. According to the applicants, Turkish Airlines would not accept this arrangement as Mr. Chowdhury had to be present for the credit card payment. The applicants submit that Mr. Chowdhury offered to provide the details by telephone, however this was not accepted either even though, according to the applicants, Mr. Chowdhury agreed to pay a high rescheduling fee.

[21] The applicants submit that Mr. Chowdhury booked new tickets for himself and his wife and children with Cathay Pacific Airways to return to Toronto as they did not have any more time to wait for Turkish Airlines to rebook the February 1 tickets.

Turkish Airline’s position

[22] Turkish Airlines states that Mr. Chowdhury filed a complaint with the airline “on or about” January 14, 2017 about the lack of service for his wife (complaint). In support of its answer, Turkish Airlines filed a copy of the complaint, in which Mr. Chowdhury requests that “their flights be changed to 21st February. Your booking department is demanding an unrealistic fee for this change. Please take necessary steps. We consider it’s unfair to charge us such a high fee…” Turkish Airlines alleges that the lack of assistance is a pretext to avoid paying the fee required to change the tickets.

[23] Turkish Airlines submits that on or about February 15, 2017, its Canadian office advised Mr. Chowdhury that, in order to modify the return tickets, he should contact his travel agent or contact its office in Dhaka as its Canadian office could not make the modification.

[24] Turkish Airlines submits that Mr. Chowdhury refused to contact his travel agent, claiming that the agent was a fraud, and he also refused to follow the requirements of its Dhaka office. Turkish Airlines further submits that if the applicants had agreed to pay the change fees, the tickets would have been modified in time.

Findings of fact

[25] As both parties agree on the following, the Agency finds that the applicants did not use their confirmed space, as ticketed, after travel commenced in regards to the February 1 and February 21 tickets.

ANALYSIS AND DETERMINATIONS

[26] As the applicants did not use their confirmed space as ticketed after travel commenced in regards to the February 1 and February 21 tickets, Rule 2(2)(b)(i) of the Tariff applies; specifically, Turkish Airlines must provide a refund that is “the difference between the fare paid and the fare for the transportation used less the non-refundable amount specified in the applicable rule.” This is consistent with Rule 90(E)(2) of the Tariff.

[27] However, the applicants are also seeking CAN$3,000 for the return tickets. The Agency finds that under Rule 2(2)(b)(i) of the Tariff, the applicants are not entitled to a refund for the return tickets.

[28] The Agency notes that Turkish Airlines has not provided to the applicants a refund for the February 1 and February 21 tickets. In an e-mail exchange between the applicants and the carrier, Turkish Airlines indicated to Mr. Chowdhury that as they “used a one way fare of their tickets and a one way fare is of more value than the cost of a round trip fare, only a few taxes would be refunded.” In addition, Turkish Airlines stated that “for the refund you should kindly contact our Call Centre or refer to the Dhaka Office.” No additional evidence was submitted by the parties indicating what the amount of that refund would be.

[29] As such, Turkish Airlines is only responsible for providing a refund for the residual amount, if any, of the unused portion of the tickets purchased with Turkish Airlines.

[30] Typically, air carriers base one-way fares on the cost of a full-fare economy ticket without restrictions and roundtrip fares are less expensive as they have restrictions and penalties attached to the fare. However, as no submissions were made by either of the parties as to what the residual amount of the unused tickets is, the amount will have to be calculated by Turkish Airlines.

[31] Based on the above, the Agency finds that, by not providing the applicants with a refund for the unused portion of their return tickets, Turkish Airlines failed to properly apply the terms and conditions of carriage relating to refunds as set out in Rules 2(2)(b)(i) and 90(E)(2) of the Tariff, and therefore contravened subsection 110(4) of the ATR. Accordingly, the applicants are entitled to a refund of the residual amount, if any, of the unused portion of the February 1 and February 21 tickets.

ORDER

[32] Pursuant to 113.1 of the ATR, the Agency orders Turkish Airlines to provide a refund to the applicants of the residual amount, if any, of the unused portion of the February 1 and February 21 tickets by December 21, 2017 and to advise the Agency what the amount of the refund will be, how the amount of the refund was calculated, and once compensation has been tendered to the applicant.

Member(s)

William G. McMurray
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