Decision No. 31-C-A-2018

April 6, 2018

APPLICATION by Revaben Patel against Air India Limited (Air India) and Air Canada also carrying on business as Air Canada rouge and as Air Canada Cargo (Air Canada).

Case number: 
17-03078

SUMMARY

[1] Revaben Patel filed an application with the Canadian Transportation Agency (Agency) against Air India regarding its refusal to transport Ms. Patel from Toronto, Ontario, Canada to Ahmedabad, India via London, United Kingdom on September 21, 2016.

[2] Ms. Patel is seeking compensation in the amount of CAN$8,053.56, which includes CAN$1,504.16 for the ticket that she purchased after she was refused transport, CAN$2,549.40 for her original ticket, CAN$2,000 for accommodations in Delhi, India and CAN$2,000 for non‑refundable accommodations in London that Ms. Patel was unable to use because she did not transit through London.

[3] The pleadings were opened with Air Canada (operating carrier) and Air India (marketing carrier) as respondents.

[4] The Agency will address the following issue:

Did Air India properly apply the terms and conditions set out in its International Schedule Tariff NTA(A) No. 317 (Tariff), relating to refusal to transport, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), when it refused to transport Ms. Patel? If Air India did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Ms. Patel?

[5] For the reasons set out below, the Agency finds that Air Canada, acting as the operating carrier for the Air India flight, properly applied the terms and conditions set out in Rule 25 of Air India’s Tariff when it refused to transport Ms. Patel on September 21, 2016. Therefore, the Agency dismisses the application.

BACKGROUND

[6] Ms. Patel purchased a ticket from Air India to travel on May 14, 2016 from Ahmedabad to Toronto via London, and return on September 21, 2016 from Toronto to Ahmedabad via London. The return flight from Toronto to London was a code-share flight operated by Air Canada.

[7] Ms. Patel, an Indian citizen, arrived in Canada on May 14, 2016 with a multiple entry visa valid until August 25, 2016. Upon her arrival, a Canada Border Services Agency (CBSA) officer date- stamped her passport with a date that would enable her to remain in Canada for a period of no more than 6 months, ending on November 13, 2016.

[8] On September 21, 2016, Ms. Patel was refused transport by Air Canada for her flight from Toronto to London on the basis that it believed that Ms. Patel could not transit through London because she did not possess the required travel documentation.

[9] The Air Canada agent advised Ms. Patel to purchase a new ticket that did not transit through the United Kingdom. Ms. Patel purchased a new ticket to travel from Toronto to Delhi and from Delhi to Ahmedabad.

PRELIMINARY MATTER

[10] The Agency considered whether Air Canada’s Tariff or Air India’s Tariff applies to Ms. Patel’s itinerary. Ms. Patel’s itinerary involved carriage from Toronto to Ahmebadad via London. The flight from Toronto to London was an Air Canada and Air India code-share flight, initially ticketed as Flight No. AI7310, operated by Air Canada. The flight from London to Ahmebadad was operated by Air India.

[11] A code share constitutes an arrangement between air carriers in which one air carrier (marketing carrier) sells transportation in its name (under its code) on flights operated by the partner air carrier (operating carrier), where the marketing carrier’s tariff applies for the whole journey, as set out in past Agency decisions. In Decision No. 287-C-A-2009, at paragraph 55, the Agency stated as follows:

With respect to Air Canada’s submission that, in a code-sharing arrangement, the terms and conditions of the operating carrier must apply, the Agency reminds the carrier that this position is inconsistent with Agency decisions relating to applications requesting permission to code share. These decisions include the condition that the carrier who sells the transportation to the passenger must apply its own published tariff, on file with the Agency and in effect, even if another carrier operates the flight.

[12] Ms. Patel’s ticket indicates that Air India was the marketing carrier. As such, Air India’s Tariff applies in this case.

THE LAW

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

[14] 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:

  1. take the corrective measures that the Agency considers appropriate; and
  2. 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.

[15] Rule 25(A) of the Tariff addresses Air India’s terms and conditions with respect to refusal to transport and states:

REFUSAL, CANCELLATION OR REMOVAL

(1). Carrier will refuse to carry, cancel the reserved space of, or remove en route any passenger:

[…]

(b) when such action is necessary to prevent violation of any applicable laws, regulations or orders of any state or country to be flown from, into or over;

[…]

(3) Subject to the provisions of Rule 87 (DENIED BOARDING COMPENSATION) the sole recourse of any person so refused carriage or removed en route for any reason specified in the foregoing paragraphs, shall be recovery of the refund value of the unused portion of his/her ticket(s) as hereinafter provided in Rule 90 (REFUNDS).

[16] Rule 45 of Air India’s Tariff sets out it terms and conditions with respect to travel documents and states:

ADMINISTRATIVE FORMALITIES, PASSPORTS, VISAS AND TOURIST CARDS

(A) COMPLIANCE WITH REGULATIONS

The passenger shall comply with all laws, regulations, orders, demands or travel requirements of countries to be flown from, into or over, and with all rules, regulations and instructions of Carrier. [...]

[...]

(B) PASSPORTS AND VISAS

(1) Upon request, the passenger must present to carrier all exit, entry or other documents required by laws, regulations, orders, demands or requirements of the countries concerned. Carrier is not liable to the passenger for any loss or expense due to the passenger’s failure to obtain the required documents, whether or not the carrier provides carriage to passengers. Carrier will refuse carriage to any passenger who, to carrier’s knowledge, fails to comply with applicable exit, entry or other travel document laws, regulations or requirements of the countries concerned and carrier shall not be liable to the passenger for any loss or expense due to the carrier’s refusal to carry the passenger.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Ms. Patel’s position

[17] Ms. Patel argues that Air Canada staff incorrectly denied her boarding in Toronto on September 21, 2016 regarding the portion of her itinerary from Toronto to London. (As stated earlier, that was the portion of her Air India itinerary that day that was operated by Air Canada.) Ms. Patel argues that she did not need a valid Canadian visitor’s visa to transit through London as she had been in Canada within the last six months and therefore could use an expired visa. Therefore, Ms. Patel argues that Air Canada did not properly apply the relevant Tariff item.

[18] According to Ms. Patel, the Travel Information Manual (TIM), published by the International Air Transportation Association (IATA) states that passengers may make a landside transit if they are travelling from Canada less than six months after the date on which they entered Canada even if their visa is expired when they transit through the United Kingdom. According to Ms. Patel, the TIM also states that a passenger can take an onward flight on the same day if they are travelling from the same airport without passing through the United Kingdom’s border.

[19] Ms. Patel claims that a friend of hers, with documentation identical to hers (i.e. Indian passport, expired visa, and travelling before the expiration of the stamp giving her permission to stay), was permitted to travel on the same flight on September 21, 2016.

[20] Ms. Patel states that she was able to enter Canada from the United States of America at the Niagara Falls border on September 18, 2017, after her Canadian visitor’s visa had expired.

Air Canada’s position

[21] Air Canada submits that Ms. Patel was refused transport because she did not have the proper documentation to transit through the United Kingdom. Air Canada states that Ms. Patel’s Canadian visitor’s visa expired on August 25, 2016, and therefore was not valid at the time of the flight on September 21, 2016 and accordingly, it would become null and void after she left Canada.

[22] Air Canada argues that as Ms. Patel was not in possession of all necessary travel documents, she was not in compliance with all government travel requirements, and Air Canada rightfully refused her transport. Air Canada claims that according to the information contained in the TIM relevant to her itinerary, Ms. Patel would not have been allowed to transit through London to India. Air Canada further argues that it is the passenger’s responsibility to comply with government travel requirements.

[23] Alternatively, Air Canada submits that even if its interpretation of the TIM statement and the validity of Ms. Patel’s travel documents are incorrect, it is not liable for the damages incurred by Ms. Patel because it acted in good faith when making its interpretation.

Air India’s position

[24] Air India states that Ms. Patel was refused transportation because she did not have the required travel documents. Air India submits that in order to establish the requirements for Ms. Patel to transit through London, Air Canada relied on IATA’s TIM, which states that Indian citizens transiting through London require a valid Canadian visitor’s visa or a Direct Airside Transit Visa (DATV) for the United Kingdom. Air India argues that the TIM statement referred to by Ms. Patel relates to landside transit, which is not relevant to this case. Air India submits that the airside transit requirements apply to this case.

[25] Air India states that it reimbursed Ms. Patel for the unused portion of the ticket, after the deduction of the penalties, in the amount of CAN$96.06.

Findings of fact

[26] It is uncontested by the parties that Ms. Patel’s Canadian visitor’s visa expired on August 25, 2016, prior to the date of her travel, September 21, 2016. Moreover, it was on this basis that Air Canada denied her boarding on the flight that day from Toronto to London.

ANALYSIS AND DETERMINATIONS

[27] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to establish, 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.

[28] Rule 45(B)(1) of Air India’s Tariff states that Air India may refuse to transport a passenger if they do not appear to have valid travel documents. Air Canada relied on the TIM, which states that Indian citizens transiting through London require a valid Canadian visitor’s visa or a DATV for the United Kingdom.

[29] The Agency finds that the landside transit requirements that were referred to by Ms. Patel do not apply to her travel because landside transit applies to passengers passing through the United Kingdom border (to recheck bags, stay overnight or change airport). Airside, however, includes all secured areas within an airport accessible to aircraft (e.g. boarding gates areas). In this case, as Ms. Patel was staying within the secured areas of the airport and was not required to pass through the United Kingdom border to recheck her bags, stay overnight or change airport, she was making an airside transit.

[30] The validity of the TIM has already been recognized by the Agency in previous decisions. In Decision No. 178-C-A-2008, the Agency stated that the TIM is a document recognized in the air transportation industry as being a reliable source of information with respect to the requirements for entry into various countries and that it is reasonable for a carrier to use the TIM to establish requirements for entry into various countries.

[31] Although Ms. Patel argues that another individual with the same travel documents was allowed to travel on the same flight, the Agency notes that the only issue before it is whether Air Canada properly applied Air India’s Tariff when it refused transport to Ms. Patel.

[32] In light of the above, the Agency finds that it was legitimate for Air Canada to refer to the TIM to determine the transit requirements for the United Kingdom, and that its refusal to transport Ms. Patel was appropriate given the information provided in the TIM.

[33] The Agency finds that Ms. Patel has failed to demonstrate that Air Canada, as the marketing carrier for the Air India flight, did not properly apply the terms and conditions of carriage set out in Air India’s Tariff. For those reasons, the Agency finds that Air Canada properly applied Air India’s Tariff when it refused to transport Ms. Patel on September 21, 2016.

CONCLUSION

The Agency dismisses the application.

Member(s)

William G. McMurray
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