Decision No. 369-C-A-2008
July 15, 2008
IN THE MATTER OF a complaint filed by Hélène Thivierge and Jean-Denis Lambert against Air Canada.
File No. M4120-3/08-01680
INTRODUCTION AND ISSUE
 Hélène Thivierge and Jean-Denis Lambert (the complainants) filed a complaint with the Canadian Transportation Agency (the Agency) respecting Air Canada's cancellation of their reservation for Flight No. AC949 on April 7, 2007 from Pointe-à-Pitre, Guadeloupe, France to Montréal, Quebec, Canada.
 Did Air Canada properly apply the terms and conditions of carriage relating to check-in time limits set out in its International Passenger Rules and Fares Tariff, CTA(A) No. 458 (the Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (the ATR)?
 As indicated in the reasons that follow, the Agency finds that Air Canada properly applied the terms and conditions set out in its Tariff when it cancelled the complainants' reservation. The complaint is therefore dismissed.
 On April 7, 2008, the complainants travelled from Fort-de-France (Martinique), France to Pointe-à-Pitre with Air Caraïbes. They were then scheduled to travel from Pointe-à-Pitre to Montréal on Air Canada Flight No. AC949.
EVIDENCE AND SUBMISSIONS
 The complainants submit that upon their arrival at Pointe-à-Pitre airport, they hurried to retrieve their baggage, and headed for the Air Canada check-in counter for their return flight to Montréal. They maintain that they arrived at the Air Canada check-in counter at 3:10 p.m., 1 hour and 10 minutes before the departure of Flight No. AC949, and, therefore, they had at least 10 minutes to check in. The complainants add that they immediately noticed that no one was at the Air Canada check-in counter to help them and that it was already closed. They indicate that they went to the Air France check-in counter and were told that the Air Canada counter had been closed for some time. They then tried to contact Air Canada at its Montréal offices, but without success. As a result, they had to purchase tickets for the next Air Canada flight to Montréal, which was to depart five days later, on April 12, 2007. They state that this extended stay caused repercussions at their places of employment and they incurred additional expenses.
 The complainants request Air Canada to reimburse the total cost of the replacement tickets, that is CAD$1,414.02 for the first ticket and 75,000 Aeroplan points for the second. They also request that they be reimbursed for accommodation and car rental expenses, 170 and 236 euros respectively, as well as for the costs associated with their extended stay in France.
 Air Canada submits that on April 7, 2007 its check-in counter at Pointe-à-Pitre airport was closed, as scheduled, at 3:20 p.m., exactly one hour before the departure of Flight No. AC949.
 Air Canada provided an estimate of time required for passengers to get to the check-in counter following landing, disembarking, screening, and retrieving their luggage at Pointe-à-Pitre airport and adds that, because the Air Caraïbes flight from Fort-de-France arrived at Pointe-à-Pitre at 2:32 p.m., the complainants only had 48 minutes to make it to the check-in counter for their flight back to Montréal. Air Canada therefore submits that the complainants could not have arrived at the check-in counter before its closure at 3:20 p.m.
 Air Canada submitted a statement signed by its department manager on duty at the time of the incident, Patrice Louis Buret. Mr. Buret stated that he was at Pointe-à-Pitre airport on April 7, 2007 and that the Air Canada check-in counter was closed at 3:20 p.m. Air Canada also submitted a statement signed by Vincent Alexis, its senior passenger agent at Pointe-à-Pitre, in which he stated that he was at the airport on April 7, 2007 and that he followed Mr. Buret's instructions to close the Air Canada check-in counter at 3:20 p.m.
 Air Canada points out that 111 passengers were on Flight No. AC949, the maximum capacity of which was 120 passengers; nine seats were therefore empty. Air Canada submits that it is not in its best interest to leave passengers behind or have empty seats on its aircraft.
ANALYSIS AND FINDINGS
 When a complaint is filed with the Agency, the burden of proof is on the complainant to prove to the Agency that the carrier did not apply the terms and conditions of carriage specified in its tariff or that it did not do so properly. It is therefore incumbent on the complainants to prove that Air Canada did not properly apply the terms and conditions of carriage set out in its Tariff when it cancelled the complainants' reservation for Flight No. AC949.
 The Agency notes that Air Canada's Tariff provides that passengers must report to the check-in counter at least 60 minutes before the scheduled departure time of the flight.
 In this case, the parties' submissions are contradictory. The complainants allege that they arrived at the Air Canada check-in counter at 3:10 p.m. but that it was closed. Air Canada, on the other hand, submitted a statement signed by its department manager assigned to Pointe-à-Pitre airport and a second statement signed by its senior passenger agent at Pointe-à Pitre attesting that the Air Canada check-in counter was closed at 3:20 p.m.
 The complainants did not submit any evidence to corroborate their statements. In the absence of such evidence, the Agency finds that the complainants have not discharged the burden of proof that is incumbent upon them, that is to demonstrate that they are entitled to their claims. The Agency is therefore unable to conclude that Air Canada contravened subsection 110(4) of the ATR by cancelling the complainants' reservation on April 7, 2007.
 Having found that Air Canada properly applied the terms and conditions set out in its Tariff, the Agency has no jurisdiction to order Air Canada to pay the complainants an indemnity to cover the costs incurred as a result of the cancellation of their reservation for Flight No. AC949 on April 7, 2007.
 Based on the above findings, the Agency dismisses the complaint.
- J. Mark MacKeigan
- John Scott