Decision No. 14-C-A-2018
APPLICATION by Muhammad Jamil Ahmad and Yasmin Jamil (applicants) against Emirates.
 The applicants filed an application with the Canadian Transportation Agency (Agency) concerning fees that they incurred to have their tickets from Edmonton, Alberta, Canada to Lahore, Pakistan reissued as a result of being refused transportation on their departure from Edmonton.
 The applicants are seeking CAN$1,458.00 for the reissued tickets that they purchased with Emirates for their roundtrip flight from Edmonton to Lahore.
 The Agency will address the following issue:
Did Emirates properly apply the terms and conditions set out in Rules 60(G)(1)(g) and (h) of its International Passenger Rules and Fares Tariff, NTA(A) No. 503 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Emirates did not properly apply the terms and conditions set out in its Tariff, what remedies, if any, are available to the applicants?
 For the reasons set out below, the Agency finds that Emirates properly applied the terms and conditions set out in Rules 60(G)(1)(g) and (h) of its Tariff.
 The applicants purchased roundtrip tickets through a travel agent to travel with Emirates from Edmonton to Lahore via Seattle, Washington, United States of America and Dubai, United Arab Emirates, departing on February 1, 2017 and returning on March 9, 2017.
 On February 1, 2017, the applicants checked in at the Edmonton International Airport (Edmonton Airport) for a code-share flight with Alaska Airlines, Inc. carrying on business as Alaska Airlines, as Alaska and as Alaska Air Cargo (Alaska Airlines) from Edmonton to Seattle (Flight No. 3234). They checked their luggage, and received their boarding passes.
 Prior to departure, the applicants were prevented from boarding the flight, and their luggage was offloaded from the aircraft. After the flight departed, the applicants were advised to contact Emirates to rebook their flights. The applicants paid a fee to rebook their flights, and departed on February 3, 2017.
 The statutory extracts and tariff provisions relevant to this matter are set out in the Appendix.
POSITIONS OF THE PARTIES AND FINDINGS OF FACT
The applicants’ position
 The applicants submit that they thought that they were refused transportation because Emirates was either overbooked or had some other issues.
 The applicants assert that they were on time for their flight, and that, when they checked in, they received their boarding passes.
 According to the applicants, after the flight departed, an Alaska Airlines’ representative told them to contact Emirates to book the next available flight. The applicants claim that, in doing so, the Emirates customer service representative advised them that, once they had rebooked their departure and the tickets were reissued, they could claim the rebooking fees (CAN$1458) upon their return to Canada. The applicants submit that Emirates did not refund these fees when they attempted to claim them, and that, therefore, they have paid for the tickets twice.
 The applicants argue that, as the reason for which they were prevented from boarding their flight arose with Emirates, they should be entitled to a refund.
 Emirates disputes the applicants’ claim that not only Flight No. EK3234 was overbooked or experienced some other issues, but also that they were on time and they had checked in at the boarding gate for the flight from Edmonton to Seattle. According to Emirates, the applicants were refused transportation because they were delayed in clearing U.S. Immigration and Customs at the Edmonton Airport. Emirates submits that the applicants advised Alaska Airlines and Emirates that they had missed their original flight due to the immigration check at the Edmonton Airport. Emirates argues that the applicants’ delay was beyond its control.
 Emirates submits that, on February 1, 2017, the applicants contacted its Contact Centre by telephone on two occasions to inform it that they could not travel on their scheduled flight because they were held up by immigration officials at the Edmonton Airport. According to Emirates, its Contact Centre consultant advised them that rebooking fees would be charged to change the flights.
 Emirates asserts that its Contact Centre consultant followed up with Emirates’ sales staff to advise them of the conversation with the applicants, and to alert the applicants’ travel agent (Flight Hub) that they may require assistance with the rebooking and the reissuance of their tickets.
 Emirates submits that the applicants telephoned the Contact Centre again on February 1, 2017 to request changes to their flights. Emirates also submits that the applicants were rebooked to travel from Edmonton to Lahore via Toronto and Dubai departing on February 3, 2017, and that they agreed to the rebooking fees, and paid them via credit card.
 Emirates states that the applicants were charged CAN$729.00 per ticket, for a total of CAN$1,458.00, for the requested rebooking, which is in accordance with the applicable fare rules.
 Emirates states that, on March 16, 2017, the applicants contacted Emirates and requested the reimbursement of the rebooking fees, and that, on March 29, 2017, Emirates advised the applicants that the rebooking fees were correctly applied and collected in accordance with Emirates’ Conditions of carriage for passengers and baggage and the applicable fare rules.
 Emirates submits that, in accordance with articles 13 and 6 of its Conditions of carriage for passengers and baggage, it is not responsible for the applicants’ failure to check in and present themselves at the boarding gate before the specified time, where such failure is the result of a delay to clear U.S. Immigration and Customs at the Edmonton Airport. Emirates states that the applicants are:
- responsible for holding all necessary travel documents and for their compliance with all applicable laws, regulations and requirements necessary for travelling (including any immigration, security or customs inspection); and,
- required to check in and present themselves at the boarding gate before the time specified, which they failed to do.
Findings of fact
 When contradictory versions of events are presented by parties, the burden of proof falls on the applicant to establish that their version is most likely to have occurred. The Agency, in considering the evidence, must determine which of the different versions is more probable, based on the preponderance of evidence.
 In this case, the applicants assert, without providing any substantiating evidence, that they were refused transportation because Emirates was either overbooked or had some other issues. However, Emirates claims that the applicants were refused transportation because they were delayed in U.S. Immigration and Customs, and they did not arrive at the boarding gate prior to the cut-off time.
 In support of its claim, Emirates filed the Passenger Name Record (PNR), which states that the applicants telephoned Emirates on February 1, 2017 to advise that they had missed their flight due to the delay that they experienced in U.S. Immigration and Customs at the Edmonton Airport. The PNR also states that the Emirates Contact Centre sent an e-mail to the Emirates Canada sales team asking them to reach out to the applicants’ travel agent to assist them with the rebooking their reservation and the reissuance of the tickets.
 According to the PNR, Mr. Ahmad telephoned Emirates again to rebook the flights, and accepted paying the change fee plus the additional collection in fare to travel on February 3, 2017.
 In addition, Emirates provided written correspondence between its sales department and Alaska Airlines, which corroborates Emirates’ claim that the applicants were refused transportation because they were delayed in U.S. Immigration and Customs at the Edmonton Airport. In an e‑mail to Emirates, Alaska Airlines stated that the applicants “did not make flight due to being held up in customs and immigration”, and that it counted 74 passengers on the manifest. Emirates argues that the manifest for the flight from Edmonton to Seattle demonstrates that this flight was not overbooked, as the aircraft is configured to hold 76 passengers.
 The applicants did not file a reply to Emirates’ answer.
 Given the consistency of the evidence adduced by Emirates, and the fact that the applicants did not provide evidence or arguments to contradict Emirates’ position, the Agency finds that the applicants were refused transportation because they did not present themselves at the gate prior to the cut-off time as a result of having been unduly delayed in U.S. Immigration and Customs at the Edmonton Airport.
ANALYSIS AND DETERMINATION
 In accordance with a well-established principle on which the Agency relies when considering applications, the onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its Tariff.
 As the Agency has found that the applicants did not present themselves at the boarding gate prior to the cut-off time as a result of the undue delay that they experienced in U.S. Immigration and Customs at the Edmonton Airport, the Agency finds that Emirates properly applied the terms and conditions set out in Rules 60(G)(1)(g) and (h) of its Tariff when it required the applicants to pay the fees associated with having their tickets reissued in order to continue with their itinerary.
 This determination is in keeping with Decision No. 82-C-A-2017, in which the Agency accepted the carrier’s position that it cannot be held responsible for expenses incurred by passengers who do not meet the cut-off time set out in its Tariff for reasons beyond the carrier’s control.
 Furthermore, the Agency notes that Emirates assisted the applicants by notifying their travel agent that they may need assistance with having their departure date changed and their tickets reissued. The fare rules and the cost of reissuing the tickets were clearly communicated to the applicants when they contacted Emirates’ Contact Centre for assistance with changing of their departure date.
 The Agency dismisses the application.
Air Transportation Regulations, SOR/88-58, as amended
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 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 direct it to
- take the corrective measures that the Agency considers appropriate; and
- 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.
Emirates’ International Passenger Rules and Fares Tariff, NTA(A) No. 503
Rule 24 – Screening of passengers and baggage
Passengers and/or their baggage may be subject to security screening, including but not limited to, security profiling, physical pat-downs and inspections, x-ray screening, manual bag searches, questioning of passengers and use of electronic or other detectors or security screening devices, in the sole discretion of the government, airport or EK, and with or without passenger’s presence, consent or knowledge. Neither EK nor its employees or agents is liable for any damage, loss, delay (including refusal to transport), confiscation of property, injury or other harm to or arising out of security screening or passenger’s failure to comply with such screening.
g. Passengers not at the boarding gate 30 minutes prior to departure may be denied boarding and their baggage may be offloaded.
h. EK is not liable to the passenger for loss or expense due to passenger’s failure to comply with these provisions.
Emirates – Conditions of carriage for passengers and baggage
Article 6 – Check-in and boarding
6.1 If you are travelling in First or Business Class you must present yourself for check-in no later than 1.5 hours (90 minutes) prior to the scheduled departure time of your flight. If you are travelling in Economy Class you must present yourself for check-in no later than 3 hours prior to the scheduled departure time of your flight.
6.2 Check-in Deadlines are different at some airports. We or our Authorised Agents will advise you of the Check-in Deadline for your first flight with us if it is longer than the normal limit specified in Article 6.1. For any subsequent flights in your journey, you should inform yourself of the Check-in Deadlines by consulting our timetable, or by asking us or our Authorised Agents.
6.3 You must comply with the applicable Check-in Deadline. We have the right to cancel your reservation if you do not comply with the Check-in Deadline or, if no Check-in Deadline has been indicated, you fail to check-in prior to closing of check-in for your flight. See also Article 5.7.
6.4 You must be present at the boarding gate not later than the time specified by us at the time you check-in. If you arrive outside the applicable time limit at the boarding gate, you will be refused carriage and your Checked Baggage will be off-loaded from the aircraft. See also Article 5.7.
6.5 We will not be liable to you for any loss or expense whatsoever resulting from your failure to comply fully with Article 6.
Article 13 – Travel documents, customs and security inspections
13.5 Customs inspection
If required, you will attend inspection of your Baggage by customs or other government officials. We will not be liable to you for Damage suffered by you in the course of such inspection or as a result of your failure to attend.