Decision No. 330-C-A-2015

October 19, 2015

APPLICATION by Noman Khawaja et al against Saudi Arabian Airlines Corporation carrying on business as Saudi Arabian Airlines.

Case number: 
15-02471

INTRODUCTION

[1] Noman Khawaja filed an application, on behalf of himself, his family and Shereen Ehsan (applicants), with the Canadian Transportation Agency (Agency) against Saudi Arabian Airlines Corporation carrying on business as Saudi Arabian Airlines (SAA) regarding its refusal to transport the applicants on the return flight from Lahore, Pakistan to Toronto, Ontario, Canada via Madinah and Jeddah, Saudi Arabia, on January 11, 2015.

[2] SAA acknowledged receipt of the application; however, it did not file an answer.

ISSUES

  1. Did SAA properly apply Rules 25(A)(1)(a)(ii) and 90(D) of its International Passenger Rules and Fares Tariff, NTA(A) No. 324 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), when it refused to transport the applicants?
  2. If SAA did not properly apply its Tariff, what remedy, if any, is available to the applicants?

ISSUE 1: DID SAA PROPERLY APPLY RULES 25(A)(1)(a)(ii) AND 90(D) OF ITS TARIFF, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR, WHEN IT REFUSED TO TRANSPORT THE APPLICANTS?

Positions of the parties

[3] The applicants claim that they reserved seats on August 28, 2014, and that they confirmed with SAA, prior to travel, that visas were not required on the return flight. The applicants state that while boarding the return flight, SAA refused them transportation as they did not meet the visa requirement for stopovers in Saudi Arabia.

[4] SAA did not file an answer to the application.

Analysis and findings

[5] When an application such as this one is filed with the Agency, the applicant must, on a balance of probabilities, establish that the carrier has failed to apply, or has inconsistently applied, terms and conditions of carriage appearing in the applicable tariff.

Refusal to transport

[6] Tariff Rule 25(A)(1)(a)(ii) states that:

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

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.

[7] According to the evidence provided by the applicants, SAA confirmed, via e-mail, that:

  •  “Normal Passports Only” were required for the return flight;
  • A visa is required for transit, except when transit time is less than 18 hours on an inbound flight operated by SAA; and,
  • A second transit point is permitted when travelling on SAA.

[8] The Agency reviewed the evidence before it and determined that it required additional information; specifically, the actual entry requirements for Saudi Arabia at the time of travel needed to be established to determine whether SAA properly applied its Tariff. Therefore, on July 31, 2015, the Agency requested the International Air Transport Association (IATA) to provide a copy of the Timatic (TIM) display for entry into Saudi Arabia. On August 11, 2015, IATA provided a copy of the TIM manual for Saudi Arabia from January 2015 which, according to IATA, covered the data available when it was physically published and distributed in mid‑December 2014.

[9] Upon review of the TIM manual for Saudi Arabia, it appeared that transit without visa was permitted for holders of onward tickets for a maximum transit time of 18 hours when the inbound flight is operated by SAA and that a second transit point is permitted for individuals travelling on SAA.

[10] In Decision No. LET-C-A-50-2015, the Agency provided the parties with the information from IATA and sought their comments. Neither party provided comments.

[11] The Agency notes that the total transit time in Saudi Arabia was 9 hours and 20 minutes and there was a second transit point. Based on the evidence provided by IATA, the Agency finds that the applicants did not require a visa.

[12] Consequently, the Agency finds that, on a balance of probabilities, by refusing to transport the applicants, SAA did not properly apply Rule 25(A)(1)(a)(ii) of its Tariff, as required by subsection 110(4) of the ATR.

Involuntary refund

[13] Tariff Rule 90(D) states, in part, that:

For the purpose of this paragraph, the term “Involuntary Refund” shall mean any refund to a passenger who is prevented from using the carriage provided for in his ticket because of […] refusal to carry under conditions described in Rule 25.

[14] Tariff Rule 90(D)(2) states, in part, that:

When a portion of the trip has been made, the amount of refund will be:

a. Either an amount equal to the one-way fare less the same rate of discount, if any, that was applied in computing the original one-way fare (or on round or circle trip tickets, one-half of the round trip fare) and charges applicable to the unused transportation from the point of termination to the destination or stopover point named on the ticket or to the point at which transportation is to be resumed, via:

  1. The routing specified on the ticket, if the point of termination was on such routing; or
  2. The routing of any carrier operating between such points, if the point of termination was not on the routing specified on the ticket; in such case the amount of refund will be based on the lowest fare applicable between such points:

         or

b. The difference between the fare paid and the fare for the transportation used, whichever is higher.

[15] No evidence has been provided by the applicants or SAA that would indicate that a refund has been provided, as required by Tariff Rule 90(D). Therefore, the Agency finds that in the absence of any evidence to demonstrate that a refund has been provided under this Rule, SAA did not properly apply Rule 90(D) of its Tariff, as required by subsection 110(4) of the ATR.

ISSUE 2: IF SAA DID NOT PROPERLY APPLY ITS TARIFF, WHAT REMEDY, IF ANY, IS AVAILABLE TO THE APPLICANTS?

Positions of the parties

[16] According to the applicants, on the return trip, they were refused transportation due to an error made by SAA, and incurred extra expenses totalling CAD$10,500 for the replacement tickets and an extra CAD$500 for taxis and porters to transport 20 pieces of luggage in Lahore.

Analysis and findings

[17] Paragraph 113.1(b) of the ATR provides that if an air carrier fails to apply the fares, rates, charges or terms and conditions of carriage applicable to the international service it offers that are set out in its tariffs, the Agency may direct it to pay compensation for any expense incurred by a person adversely affected by the air carrierʼs failure to apply such fares, rates, charges or terms and conditions of carriage.

[18] As SAA did not properly apply t Rules 25(A)(1)(a)(ii) and 90(D) of its Tariff, as required by subsection 110(4) of the ATR, the Agency, pursuant to paragraph 113.1(b) of the ATR, finds that the applicants are entitled to receive compensation for the expenses incurred as a result of SAA failing to apply its Tariff, less any refund already received.

[19] Specifically, the applicants provided receipts demonstrating that approximately CAD$10,500 was spent to secure flights home. No receipts were provided for the claim that an additional CAD$500 was spent for taxis and porters; however, this amount seems reasonable in the circumstances.

CONCLUSION

Issue 1

[20] The Agency finds that SAA did not properly apply Rules 25(A)(1)(a)(ii) and 90(D) of its Tariff, as required by subsection 110(4) of the ATR.

Issue 2

[21] Pursuant to paragraph 113.1(b) of the ATR, the Agency finds that the applicants are entitled to receive compensation for the expenses incurred as a result of SAA failing to apply its Tariff, less any refund already received.

ORDER

[23] The Agency, pursuant to paragraph 113.1(b) of the ATR, directs SAA to pay to the applicants, by no later than November 18, 2015, compensation in the amount of CAD$11,000, less any refund already provided.

Member(s)

Stephen Campbell
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