Decision No. 329-C-A-2015
APPLICATION by Ayesha Nadakavukaran against Etihad Airways P.J.S.C. carrying on business as Etihad Airways.
 Ayesha Nadakavukaran filed an application with the Canadian Transportation Agency (Agency) against Etihad Airways P.J.S.C. carrying on business as Etihad Airways (Etihad Airways), regarding the delay and rescheduling of her flights, from Kochi, India via Abu Dhabi, United Arab Emirates to Toronto, Ontario, Canada. Ms. Nadakavukaran states that her arrival at her final destination was delayed by more than 30 hours and requests a minimum of US$6,000 in compensation.
Agency jurisdiction over compensation for inconvenience, distress and frustration
 The Agency does not have the jurisdiction to order payment of compensation for pain and suffering or loss of enjoyment, as consistently stated in previous decisions, such as Decision No. 18-C-A-2015 (Enisz v. Air Canada) and Decision No. 55-C-A-2014 (Brine v. Air Canada).
Request to file clarification
 On September 2, 2015, Etihad Airways filed a request to submit a clarification to its answer and to provide additional background information regarding the operational reasons for the flight delays experienced by Ms. Nadakavukaran; the latter did not file a response to the request.
 Subsection 34(1) of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules) permits a person to file a request to file a document whose filing is not otherwise provided for in the Rules. Subsection 34(2) of the Dispute Adjudication Rules permits a party to file a response to the request.
 The Agency is of the opinion that the information filed by Etihad Airways in its clarification is relevant to a full and fair adjudication of this matter. Furthermore, Ms. Nadakavukaran did not argue that the Agency should reject Etihad Airways’ request. Accordingly, the Agency grants Etihad Airways’ request and accepts the clarification and additional information as part of the record.
- Did Etihad Airways properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff (Tariff), NTA(A) No. 510 relating to flight delay, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), and comply with Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention)?
- If Etihad Airways did not properly apply its Tariff or comply with Article 19 of the Montreal Convention, what remedy, if any, is available to Ms. Nadakavukaran?
RELEVANT TARIFF AND MONTREAL CONVENTION EXTRACTS
 The tariff and Montreal Convention extracts relevant to this matter are set out in the Appendix.
ISSUE 1: DID ETIHAD AIRWAYS PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF, RELATING TO FLIGHT DELAY, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR, AND COMPLY WITH ARTICLE 19 OF THE MONTREAL CONVENTION?
Positions of the parties
Position of Ms. Nadakavukaran
 Ms. Nadakavukaran submits that on February 26, 2015, she arrived at the Kochi airport for her flight from Kochi to Abu Dhabi, with a final destination of Toronto. According to Ms. Nadakavukaran, Etihad Airways informed her that it was experiencing technical difficulties and that she would be rerouted. Ms. Nadakavukaran states that, due to health issues, she requested to leave the airport in Kochi while waiting to be rerouted to Abu Dhabi. Ms. Nadakavukaran claims that she felt comfortable checking her baggage, which included her medication, as Etihad Airways assured her that she would be placed on the next available direct flight from Abu Dhabi to Toronto. Ms. Nadakavukaran claims that not only was she delayed in Abu Dhabi, where she spent the night in a hotel, but she was rerouted to Toronto via London, England. Ms. Nadakavukaran claims that all of her flights were delayed, which caused her to miss her connecting flights, and that she was delayed arriving at her destination by more than 30 hours.
 Ms. Nadakavukaran argues that she can understand a certain level of delay, but that the numerous delays she encountered were unacceptable. She expresses her distress and frustration at the way she was treated, and claims that she faced health problems during the journey and afterwards. Ms. Nadakavukaran states that as her medication had been checked in her luggage in Kochi, she underwent an extended period without access to her medication. Ms. Nadakavukaran contends that she only carried a limited supply of medication with her, as she was assured by Etihad Airways that there would not be any extended delays.
Position of Etihad Airways
 Etihad Airways acknowledges that Flight EY281 from Kochi to Abu Dhabi was delayed on February 26, 2015 due to operational reasons beyond its control. Etihad Airways states that due to a five‑hour delay in the arrival of the aircraft in Kochi, Ms. Nadakavukaran missed her connecting flight to Toronto. Etihad Airways also acknowledges that her connecting flight to London was delayed by more than three hours, for reasons beyond its control. Etihad Airways maintains that it took all measures reasonably required to transport Ms. Nadakavukaran to her destination in a timely fashion.
 Etihad Airways states that Tariff Rule 85 of its international tariff provides, in part, that the times shown on tickets are not guaranteed and do not form part of the contract of carriage; schedules are subject to change without notice; and that when circumstances so require, it will carry the passenger on another of its scheduled flights or reroute the passenger to the destination indicated on the ticket. Etihad Airways maintains that Rule 85 clearly sets out its rights and responsibilities in these circumstances. Accordingly, Etihad Airways contends that it fully complied with the terms and conditions of carriage found in its Tariff by doing everything possible to transport Ms. Nadakavukaran to her destination in as timely a way as possible, including placing her on the most efficient route available to transport her to her destination and providing her with hotel accommodations in Abu Dhabi.
 Finally, Etihad Airways submits that it it is not liable for any damage occasioned by the delay under terms of Article 19 of the Montreal Convention, as it took all measures that could be reasonably required to avoid damages due to the delay.
 For the above reasons, Etihad Airways requests that the application be dismissed.
Analysis and findings
 When an application is filed with the Agency, the applicant must, on a balance of probabilities, establish that the air carrier has failed to apply the terms and conditions of carriage appearing in the applicable tariff, or to abide by the Montreal Convention.
 As submitted by Etihad Airways, Rule 85(A)(1) of its Tariff states, in part, that times shown on tickets are not guaranteed, and do not form part of the contract of carriage. Furthermore, Rule 85(B), states, in part, that when Etihad Airways is unable to provide a previously confirmed space, or causes a passenger to miss a connecting flight, it will carry the passenger on another of its scheduled flights on which space is available, or reroute the passenger to the destination indicated on the ticket by its own scheduled services or the scheduled services of another carrier.
 Based on the above, the Agency finds that Etihad Airways has demonstrated that by rerouting Ms. Nadakavukaran to her final destination, it properly applied Rule 85(B)(2) of its Tariff. In addition, the Agency finds that Ethiad Airways took all measures that could reasonably be required to avoid damages occasioned by the delay as required by Article 19 of the Montreal Convention.
 In light of the above, the Agency finds that on a balance of probabilities, Etihad Airways acted in a manner consistent with subsection 110(4) of the ATR and Article 19 of the Montreal Convention.
 Therefore, there is no need for the Agency to address Issue 2.
 The Agency dismisses Ms. Nadakavukaran’s application.
APPENDIX TO DECISION NO. 329-C-A-2015
Etihad Airwaysʼ International Passenger Rules and Fares Tariff, NTA(A) No. 510
85 SCHEDULE CHANGES, FLIGHT DELAYS AND CANCELLATION
(A) Times and Schedules not Guaranteed
- EY undertakes to use its best efforts to carry the passenger and his baggage with reasonable dispatch. Times shown in the ticket, timetables or elsewhere are not guaranteed and do not form part of the contract of carriage and EY assumes no responsibility for making connections.
- Schedules are subject to change without notice. EY may, when circumstances so require, alter or omit stopping places shown on the ticket or in schedules and may without notice substitute alternative carrier or aircraft.
- EY will not be liable for errors or omissions in timetables or other publications or Schedules or in statements or representations made by employees, agents or representatives of EY as to the dates or times of departure or arrival or as to the operation of any flight.
(B) Right to Cancel, Postpone, etc.
When circumstances so require, EY may without notice cancel, terminate, divert, postpone, or delay any flight, in which case, if EY is unable to provide previously confirmed space, or causes a passenger to miss a connecting flight on which he/she holds a reservation, EY with due consideration to the passenger’s reasonable interest shall:
- Carry the passenger on another of its scheduled flights on which space is available; or
- Reroute the passenger to the destination indicated on the ticket or applicable portion thereof by its own scheduled services or the scheduled services of another carrier, or by means of surface transportation. If the fare, excess baggage charges and any applicable service charge for the revised routing are higher than the refund value of the ticket or applicable portion thereof as determined under Rule 90, no additional fare or charge shall be collected from the passenger. In the event the fare and charges for the revised routing are lower, a refund shall be made; or
- Make a refund in accordance with the provisions of Rule 90 and, except as above, EY shall not have any other liability to passenger.
Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Convention)
Article 19 — Delay
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
Limits of liability in relation to delay, baggage and cargo
- In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4 150 Special Drawing Rights.