Decision No. 373-C-A-2016

December 20, 2016
APPLICATION by Jeffrey Lucas, Lucia Neda and Angela Neda (applicants) against British Airways Plc carrying on business as British Airways (British Airways).
Case number: 
16-03972

SUMMARY

[1] On August 10, 2016, Kathryn Lucas filed an application, on behalf of the applicants with the Canadian Transportation Agency (Agency) against British Airways. The applicants allege that British Airways cancelled their tickets prior to travel on Flight No. BA0092 from Toronto, Ontario, Canada to London, England, on May 23, 2016, and Flight No. BA0431 from Amsterdam, Kingdom of the Netherlands to Toronto on June 2, 2016.

[2] The applicants claim that the carrier caused them financial, physical and emotional harm, and they are seeking compensation and fines. The applicants are also seeking to be made whole financially for all out of pocket expenses incurred as a result of the cancellation.

[3] The Agency opened pleadings on September 30, 2016. On October 24, 2016, British Airways filed its answer, and on October 25, 2016, the applicants filed their reply.

[4] For the reasons provided below, the Agency finds that British Airways did not properly apply its International Passenger Rules and Fares Tariff, C.T.C.(A) No. 306 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), when it cancelled the applicants’ tickets, and that, pursuant to paragraph 113.1(b) of the ATR, the applicants are entitled to receive compensation for the expenses incurred as a result of this, less any refund already received.

[5] The applicable statutory excerpts are provided in the Appendix.

PRELIMINARY MATTER

Have the applicants established a case under subsection 172(1) of the Canada Transportation Act, S.C., 1996, c.10, as amended (CTA)?

[6] The applicants raise disability-related issues pertaining to Angela Neda and Jeffrey Lucas. With respect to Angela Neda, the applicants state that she called the week prior to the date of departure, inquired about potential accommodations due to a mobility issue, and wanted to know what may be done to accommodate her.

[7] British Airways counters that Angela Neda did not request accommodation and instead was advised to provide a medical note on her fitness to travel by air so that she could delay her travel. British Airways contends that a subsequent request was made for a refund of the tickets, which resulted in the cancellation.

[8] The applicants state that on May 22, 2016, when Jeffrey Lucas attempted to print his online boarding pass, he found out that the applicants’ tickets had been cancelled. The applicants claim that when he telephoned British Airways to investigate, he was told that he was limited to three telephone calls and was subsequently hung up on. The applicants argue that this action caused Jeffrey Lucas, who has epilepsy and juvenile diabetes, undue physical stress, and they argue that it is very important for his overall health that he avoid extreme stress.

[9] The applicants assert that you cannot see disabilities through the telephone or in person, and that the agents assigned to field telephone calls should be better educated and be provided with additional training on the issues of the disabled, including stress-induced conditions such as epilepsy. They argue that British Airways has a duty to have policies in place to comply with inquiries of persons with a disability regarding the use of its facilities.

[10] British Airways denies that it harmed the applicants or discriminated against them, and states that this application has nothing to do with accessibility and accommodation of travellers with a disability. In particular, British Airways submits that the medical condition of Jeffrey Lucas is not relevant, as the nature of this application is a consumer complaint issue.

[11] When adjudicating an application pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:

  1. the person has a disability for the purposes of the CTA;
  2. that person encountered an “obstacle” (a rule, policy, practice, physical barrier, etc. that directly or indirectly discriminates against a person with a disability and has the effect of denying the person the same benefits and privileges that are available to others in the federal transportation network); and,
  3. the obstacle was “undue”. This requires the Agency to decide whether the service provider has done all it could have done to accommodate the person with a disability without facing undue hardship.

[12] With respect to Jeffrey Lucas, there is no evidence that he requested any accommodation for his disability. In fact, British Airways submits that when Jeffrey Lucas contacted it to complain about the cancellation, it had no information about his medical condition.

[13] The Agency notes that even if Jeffrey Lucas is a person with a disability for the purposes of the CTA, this does not automatically make this application disability-related.

[14] Regarding Angela Neda’s claim, the issue is not whether she was provided with accommodation. In fact, the allegation is that she contacted British Airways to inquire about the options that were available to her given her injury. The issue is whether her ticket was improperly cancelled and refunded after she requested information regarding British Airways’ medical policy. Moreover, given that no medical evidence was submitted, it is unclear whether she needed, and was not provided with, accommodation.

[15] The Agency finds that the applicants have not established a case under subsection 172(1) of the CTA.

ISSUES

  1. Did British Airways properly apply the terms and conditions set out in its Tariff, regarding the cancellation of the applicants’ tickets, as required by subsection 110(4) of the ATR?
  2. If British Airways did not properly apply its Tariff, what remedy, if any, is available to the applicants?

ISSUE 1: DID BRITISH AIRWAYS PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF, REGARDING THE CANCELLATION OF THE APPLICANTS’ TICKETS, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

Positions of the parties

[16] The applicants claim that the incident occurred because Angela Neda telephoned British Airways on May 17, 2016 to inquire about a mobility issue that she was experiencing. The applicants contend that after the telephone call, a British Airways agent forwarded the itinerary to another agent for cancellation. The applicants submit that on May 19, 2016, Angela Neda made a second telephone call to British Airways in order to seek direction on how to meet the carrier’s medical policy.

[17] Regarding Jeffrey Lucas, the applicants claim that at no time was any communication sent to him regarding any issues with his trip, and that the day before departure, he discovered that the tickets had been cancelled.

[18] British Airways submits that the tickets were booked and paid for by Lucia Neda, and that, on May 17, 2016, Angela Neda telephoned and advised that she was not fit to travel by air. British Airways states that it advised her to provide a medical note regarding her fitness to travel by air in order to delay her travel. According to British Airways, Angela Neda telephoned again on May 19, 2016, and was advised that a medical note was required to delay her travel.

[19] It is British Airways’ position that, on May 17, 2016, it received an electronic communication requesting the cancellation of the booking for all three passengers via a web form completed on its website. British Airways submits that the web form clearly states that “requesting a refund will cancel all the flights listed on the booking, and can only be used to refund all qualifying flights in this booking.” British Airways also submits that the web form also specifies that “partial refunds or refunds for selected passengers cannot be processed using this form.” British Airways argues that it complied with the request and cancelled the flights of all passengers in the booking.

[20] The applicants maintain that British Airways has not disputed anything stated in the passenger name record (PNR) submitted as a part of the application, and disagree with its characterization of the content of Angela Neda’s telephone call of May 17, 2016. According to the applicants, British Airways informed Angela Neda that they could “split her off” the ticket should she be unable to obtain the proper documentation to meet the conditions of the medical policy.

[21] The applicants believe that the web form in question was created outside of the reservation system and that whoever created the web form did not do it through the reservations system.

[22] The applicants also question the authenticity of the web form as evidence for the following reasons:

  • The e-mail address specified on the web form is incorrect and different from what is found on the original tickets.
  • British Airways claims that the web form was submitted via BA.com, but that transaction does not appear on the PNR.
  • It does not indicate who created it.
  • It does not have a time stamp.
  • It does not contain any IP address information to show from where it originated.
  • It lists a single ticket number and this does not demonstrate that anyone asked to cancel the entire reservation.
  • No employee ID is presented.

[23] The applicants also question why British Airways did not indicate to Angela Neda, when she called on May 19, 2016, that the tickets had already been cancelled.

Analysis and findings

[24] 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. In these cases, the burden of proof rests with the applicants.

[25] Information found in the uncontested PNR indicates that Angela Neda telephoned British Airways on May 17, 2016 and advised that she would be unable to travel due to a knee injury. Additionally, the PNR provides that on the same day, British Airways noted that it advised Angela Neda that it would “split her off booking and can hold flights off till receives fit to fly doc”, and that “alternatively can split her off and process tax only refund.” British Airways further contends that it received a refund request via its website at 9:26 p.m. It is stated in the PNR that on May 19, 2016, Angela Neda called to check the medical policy.

[26] There does not appear to be any evidence in the PNR indicating that Angela Neda requested a refund for herself or for all three passengers, and it would seem unlikely that a passenger would call two days after cancelling their ticket to inquire about the medical policy.

[27] In addition, the discrepancies noted by the applicants regarding the web form raise questions as to who completed this form and under what circumstances. Notably, the e-mail address on the web form and the one on the e-ticket receipt are inconsistent, the web form does not establish that anyone requested that the tickets be cancelled, and while it indicates the correct date of refund, there is no time stamp. It is also noted that the web form states that the date of the flight was “05 05 2016”, which is inconsistent with the departure dates on the e-ticket. Moreover, the web form asks if the person completing the form is a passenger and whether they paid for the booking, likely to establish that the person is authorized to request a refund. Taking into account British Airways’ admission that Lucia Neda paid for the booking, it is unclear on what basis Angela Neda would be authorized, even if she did complete the web form, to cancel the booking for all three passengers.

[28] The applicable tariff rule in this case would be Rule 65(B), which states, in part, that:

When validated, the ticket is good for carriage from the airport at the place of departure to the airport at the place of destination via the route shown therein and for the applicable class of service and is valid for one year from the date of commencement of flight except as otherwise specified in Carrier’s tariffs.

[29] The evidence does not establish that Angela Neda intended to cancel her ticket. British Airways relies on the web form to establish that Angela Neda requested a refund and did so knowing that this would have the effect of cancelling her ticket. However, given the above noted discrepancies, the Agency is not satisfied that Angela Neda completed that form. The Agency is of the opinion that a request to cancel should be clear and unequivocal, with full knowledge and understanding of the consequences. These elements are not present here, and based on the evidence, the Agency finds that British Airways has failed to establish that Angela Neda cancelled the tickets. Even if Angela Neda did request that the tickets be cancelled, British Airways has provided no explanation as to how she would have had the authority to cancel all three tickets given that she did not pay for them. There is otherwise no evidence that the other two passengers did anything that suggested that they intended to cancel their trip.

[30] Consequently, the Agency finds that, by not honouring the applicants’ tickets, British Airways did not properly apply Rule 65(B) of its Tariff, as required by subsection 110(4) of the ATR.

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

Positions of the parties

[31] The applicants submit that the original tickets cost CAD$2,423.58, and that, to replace the tickets at the last minute, they had to purchase new tickets for CAD$3,180.84, which added two days to the trip, in order to avoid an even higher fare. Due to the extended stay, the applicants claim hotel costs of approximately CAD$346.56, and they state that taxes in the amount of approximately CAD$300 were refunded.

[32] The applicants claim that they were harmed physically and emotionally, and that British Airways’ lack of policies to comply with the inquiries of the disabled caused undue physical stress. The applicants also claim that British Airways’ alleged characterization of the passengers as dishonest and without the basic ability to understand how to navigate a website, when one of the passengers works in an information technology capacity, is harmful to their reputation and disparaging to their character.

[33] In this regard, the applicants request compensation in the amount of CAD$750 per passenger, and ask the Agency to exercise its ability to fine British Airways in order to force future compliance with transportation policies regarding persons with a disability travelling in Canada.

[34] British Airways denies that it is liable for the cost of alternative transportation, for the cost of accommodation, and for the refund in the amount of the original fares paid on behalf of the applicants. It also claims that, on May 20, 2016, it processed a refund of CAD$458.55 for taxes and third party charges.

Analysis and findings

[35] 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 carrier’s failure to apply such fares, rates, charges or terms and conditions of carriage.

[36] Based on the above finding that British Airways did not properly apply Rule 65(B) 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 British Airways failing to apply its Tariff, less any refund already received.

[37] Specifically, the applicants provided receipts demonstrating that CAD$3,180.84 was spent on replacement tickets and that CAD$346.56 was spent on extra hotel expenses. The Agency accepts British Airways’ evidence regarding the amount already refunded for taxes and third party charges of CAD$458.55, as this is the amount stated on the e-ticket.

[38] Based on the forgoing, the Agency finds that the applicants are entitled to receive CAD$3,068.82 to be made whole financially. This amount is equal to the total out of pocket expenses incurred as a result of the cancellation of the applicants’ tickets minus the amount already refunded.

[39] The Agency does not have the jurisdiction to order remedies such as compensation for physical and emotional harm, and to impose fines, as requested by the applicants.

ORDER

[40] The Agency, pursuant to paragraph 113.1(b) of the ATR, orders British Airways to compensate the applicants, by no later than January 20, 2017, in the amount of CAD$3,068.82.


APPENDIX 

Canada Transportation Act, S.C., 1996, c.10, as amended

172 (1) The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

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

  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.

Applicable Tariff Provisions

International Passenger Rules and Fares Tariff, C.T.C.(A) No. 306

Rule 65(B)

When validated, the ticket is good for carriage from the airport at the place of departure to the airport at the place of destination via the route shown therein and for the applicable class of service and is valid for one year from the date of commencement of flight except as otherwise specified in Carrier’s tariffs. Each flight coupon will be accepted for carriage on the date and flight for which accommodation has been reserved. When flight coupons are issued on an ‘Open Date’ basis accommodation will be reserved upon application subject to the availability of space. The place and date of issue are set forth on the flight coupons. Any extension of ticket validity will be in accordance with Carrier’s tariff.

EXCEPTION 1: If the ticket is for or includes an excursion or other special fare having a shorter period of ticket validity than indicated above, such shorter period of validity shall apply only in respect to such excursion or special fare transportation.

EXCEPTION 2: If no portion of the ticket is used, the period of validity will be one year from date of issuance of the ticket.

Member(s)

Scott Streiner
Sam Barone
William G. McMurray
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