Decision No. 430-C-A-2005

July 7, 2005

July 7, 2005

IN THE MATTER of a complaint filed by Harry Schatz against Air Canada alleging that the carrier failed to apply its tariff and that it wrongly deplaned him from Flight No. AC 536 from Toronto, Ontario, Canada to Washington, D.C., United States of America, on August 29, 2004.

File No. M4370/04-04981


COMPLAINT

[1] On September 2, 2004, Harry Schatz filed with the Air Travel Complaints Commissioner (hereinafter the ATCC) the complaint set out in the title.

[2] Due to the regulatory nature of the complaint, on February 7, 2005, the complaint was referred to the Canadian Transportation Agency (hereinafter the Agency) for its consideration.

[3] In a letter dated February 7, 2005, the parties were advised of the Agency's jurisdiction in this matter. In that same letter, Mr. Schatz was requested to confirm that he wished to pursue this matter formally before the Agency. The parties were also requested to advise whether they agreed that the comments they had filed with the ATCC be considered as pleadings before the Agency.

[4] On February 7, 2005, Mr. Schatz advised both the Agency and Air Canada that he wished to pursue this matter formally before the Agency and confirmed that the comments he had filed with the ATCC should be considered as pleadings before the Agency.

[5] In a letter dated February 16, 2005, in addition to agreeing to accept comments already on file, Air Canada filed its answer to the complaint and concurrently served a copy on Mr. Schatz. On March 3, 2005, Mr. Schatz filed his reply to Air Canada's answer and concurrently served a copy on the carrier. In response, Air Canada wrote to Mr. Schatz on March 14, 2005.

[6] In its Decision No. LET-C-A-91-2005 dated March 24, 2005, the Agency granted Air Canada an opportunity to file with the Agency a response to Mr. Schatz's reply, which focussed upon specific provisions of Air Canada's tariff that had not been addressed in Mr. Schatz's original complaint. In that same Decision, the Agency provided Mr. Schatz with the opportunity to file further comments concerning Air Canada's response. On April 4, 2005, Air Canada filed its response and concurrently served a copy on Mr. Schatz.

[7] On April 4, 2005, Mr. Schatz filed comments and concurrently served a copy on Air Canada. On April 5, 2005, Air Canada filed a copy of Mr. Schatz's boarding card as further evidence and, in response, Mr. Schatz also filed further comments on that date.

[8] Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until July 7, 2005.

ISSUE

[9] The issue to be addressed is whether Air Canada has properly applied the terms and conditions of carriage concerning denied boarding, as specified in its Transborder Passenger Rules and Fare Tariff NTA(A) No. 241 (hereinafter the tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) in respect of this matter.

FACTS

[10] Air Canada Flight No. AC 536, of August 29, 2004, from Toronto to Washington, D.C. was oversold.

[11] At the Toronto-Lester B. Pearson International Airport, Mr. Schatz checked in at a self-service kiosk, but he was not provided with a seat number until he arrived at the departure gate, where he was assigned seat 3A. He boarded the aircraft and proceeded to his seat.

[12] The flight's departure was delayed to await the arrival of "must-fly" passengers. Upon their arrival, an Air Canada ground supervisor and a police officer approached Mr. Schatz and requested that he leave the aircraft. He was escorted back to the terminal, where he was told that he was being denied boarding in order to accommodate "must-fly" passengers.

[13] At the time of the incident, Air Canada provided Mr. Schatz with a travel voucher valued at CAD$200 as denied boarding compensation, along with hotel accommodation, shuttle bus vouchers and meal vouchers. In November 2004, Air Canada sent Mr. Schatz an additional USD$200 travel voucher.

POSITIONS OF THE PARTIES

[14] Mr. Schatz claims that, on August 29, 2004, he checked in, cleared U.S. Customs and Immigration and had plenty of time to get something to eat after passing through security, well before the scheduled departure time of Flight No. AC 536.

[15] Mr. Schatz states that although he had initially been permitted to board the aircraft, he was deplaned, without any explanation and, therefore, with much embarrassment, by an Air Canada ground supervisor and an armed police officer one hour after the scheduled departure time of the flight. Mr. Schatz alleges that he was denied boarding to allow two "must-fly" passengers to travel on the flight. He further maintains that the flight was delayed for an hour, not to accommodate other late-arriving connecting passengers, as Air Canada claimed on board the aircraft, but to wait for two "must-fly" passengers, whom Air Canada subsequently identified as sky marshals, to arrive for the flight.

[16] Mr. Schatz adds that the other passengers who arrived after the flight's scheduled departure time were permitted to board the aircraft but argues that, had the two sky marshals arrived sooner, the flight would have departed before the arrival of the late connecting passengers and, thus, he would have been able to travel. Mr. Schatz notes that Air Canada's rules require a passenger to be at the departure gate twenty-five minutes prior to the scheduled time of departure of his/her flight, and that failure to meet this deadline may result in the cancellation of a reservation. He maintains that the carrier should have denied boarding to those passengers who were late, rather than to him, as he had checked in on time.

[17] Mr. Schatz states that inside the terminal, Air Canada told him that he had been selected to be deplaned as he was the last person to check in. Mr. Schatz states that his boarding pass shows that he was the 44th passenger to check in, and he suggests that, as the capacity of the aircraft type used for the flight was approximately fifty seats, he could not have been the last to check in. Mr. Schatz alleges that he was the easiest person to bump because he had no checked baggage which would, for security reasons, have had to have been removed from the aircraft.

[18] According to Mr. Schatz, Rule 245(C)(2) of Air Canada's tariff states that in an oversold situation, Air Canada should use its boarding priority provisions to determine which passenger(s) will be denied boarding. He maintains that as Air Canada's provision governing the order of boarding priority lists full fare passengers before all other passenger types, full-fare passengers should be given precedence over non full-fare passengers, regardless of their check-in sequence. Mr. Schatz argues that while he was a full-fare passenger at the time of the incident, it would be rare to find a plane reserved with all passengers paying full fare. Mr. Schatz claims that Air Canada's action in denying him boarding before denying boarding to a non-full-fare passenger thus comprises a violation of its tariff as Air Canada did not apply the prescribed boarding priority.

[19] Mr. Schatz reports that when he asked Air Canada why volunteers were not sought to be bumped from the flight, the carrier explained that it cannot solicit volunteers due to a U.S. Department of Transport rule.

[20] Despite his suggestion early in the proceedings that he was withdrawing the element of his complaint dealing with denied boarding compensation, Mr. Schatz later alleged that Air Canada contravened its tariff in providing him with a CAD$200 travel voucher instead of either the CAD$100 cash or CAD$300 travel voucher prescribed by its tariff. Mr. Schatz submits that while the carrier later provided him with an additional USD$200 travel voucher, the additional amount was extended to him as a goodwill gesture and did not constitute compensation for denied boarding.

[21] Mr. Schatz claims that, in contravention of Rule 245(F) of the tariff, Air Canada did not provide him with a copy of the published notice, requested at the gate, which lists the amount of denied boarding compensation the carrier is required to provide.

[22] Mr. Schatz also notes that Rule 245(C)(1) of the tariff requires the carrier to seek volunteers in oversold situations. As he was not asked to volunteer and as there appears to be no evidence that volunteers were sought prior to his being involuntarily removed from the aircraft, he contends that the carrier thereby contravened that provision of its tariff.

[23] In response, Air Canada explains that an overbooked situation occurs when too many passengers holding reservations for a specific flight register for that flight and, in such situations, Air Canada asks at check-in time for volunteers to take a later flight. The carrier adds that it finds itself in the unfortunate position of having to involuntarily deny boarding to one or more passengers should an insufficient number of passengers volunteer to give up their seats.

[24] Air Canada states that as Mr. Schatz checked in at a self-service kiosk, he would not have had any interaction with an agent until he arrived at the departure gate. Air Canada adds that Mr. Schatz was one of the last passengers to check in at 5:53 p.m., and that the sequence in which passengers check in is one of several criteria used when off-loading passengers becomes necessary.

[25] Air Canada claims that on August 29, 2004, Flight No. AC 536 was delayed while waiting for the sky marshals to arrive, and that the flight could not have been operated without the marshals on board the aircraft. Air Canada maintains that it was forced to deplane Mr. Schatz to accommodate the sky marshals. The carrier adds that its policy is to offload passengers in reverse order of check-in.

[26] Air Canada states that it realizes that the escort accompanying the ground supervisor may have caused distress for Mr. Schatz, but notes from past experiences that some passengers cause a disturbance and may be unwilling to deplane when escorted solely by its own personnel. Air Canada also adds that there are heightened security requirements on flights to Washington, D.C.

[27] In response to Mr. Schatz's allegation that, at the time of the incident, it did not provide him with the amount of denied boarding compensation prescribed by its tariff, Air Canada states that, while it cannot recreate conversations that may have occurred at the departure gate, it has remedied its error. The carrier states that it provided Mr. Schatz with a voucher in the amount of CAD$200 and, later, an additional voucher in the amount of USD$200; as a result, the total compensation that it has paid to Mr. Schatz exceeds the amount required by its tariff. Air Canada reports that Mr. Schatz declined its offer to exchange the vouchers for cash in the amount of CAD$100.

[28] Air Canada regrets that Mr. Schatz was advised that it cannot request volunteers for U.S. destined flights, and in particular flights destined for Washington D.C., as there is no such regulation. Air Canada claims that this incorrect information resulted from a misunderstanding.

[29] Air Canada explains that it performed "flight firming processes" in advance of the departure date and that this process allows the carrier "to ask for volunteers or to re-protect passengers in advance of their arrival at the airport". Air Canada adds that due to the safety regulations in effect since September 11, 2004, it is required to remove from an aircraft the checked baggage of passengers who do not travel, which inevitably causes delays when volunteers are requested at the boarding gate. The carrier reports that on August 29, 2004, there were unfortunately more passengers than there were available seats on Flight No. AC 536 and, as a result, some passengers had to be denied boarding.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[30] The Agency's jurisdiction over the present complaint is set out in subsection 110(4) and section 113.1 of the ATR.

[31] Subsection 110(4) of the ATR provides that:

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.

[32] Section 113.1 of the ATR states:

Where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs, the Agency may

(a) direct the licensee to take corrective measures that the Agency considers appropriate; and

(b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.

The tariff provisions

[33] The terms and conditions of carriage set out in Rule 245 of the tariff provide, in part:

Rule 245AC

Denied Boarding Compensation - Part II (For transportation from points in Canada to a destination or first point of stopover in the United States.)

When AC is unable to provide previously confirmed space due to there being more passengers holding confirmed reservations and tickets that for which there are available seats on a flight, AC shall implement the provision of this rule.

(B) Request for Volunteers

(1) AC will request volunteers from among the confirmed passengers, to relinquish their seats in exchange for compensation as defined in (E).

(2) Once a passenger has voluntarily relinquished his seat, he will not later be involuntarily denied boarding unless he was advised at the time he volunteered of such possibility and the amount of compensation of which he would be entitled.

(3) The request for volunteers and the selection of passengers to be denied boarding shall be in a manner solely determined by AC.

(C) Boarding Priorities

(1) If a flight is oversold, no passenger may be involuntarily denied boarding until AC has first requested volunteers to relinquish their seats.

(2) In the event there are not enough volunteers, other passengers may be involuntarily denied boarding in accordance with AC's boarding priority policy. Passengers with confirmed reservations who have not received a boarding pass, will be permitted to board in the following order until all available seats are occupied:

(a) Physically handicapped passengers, unaccompanied children under 12 years of age and others for whom, in AC's assessment, failure to carry would cause severe hardship.

(b) Passengers paying First (F), Executive (J) or full Economy (Y) class fares.

(c) All other passengers, including tour conductors accompanying a group. These passengers will be accommodated in the order in which they present themselves for check-in and boarding.

(D) Transportation For Passengers Denied Boarding

A passenger who has been denied boarding either voluntarily or involuntarily, will be provided transportation in accordance with the following:

(1) The passenger will be transported without stopover on the next available AC flight, regardless of the class of service, and at no additional cost to him.

(2) Should AC not be able to provide onward transportation, acceptable to the passenger, on the services of AC, transportation via the services of another carrier(s) will be provided as follows:

(a) The passenger will be accommodated in the class of service and/or booking class applicable to his transportation on AC.

(b) Transportation in a different class of service and/or booking class will be provided without additional cost to the passenger only if it will provide for an earlier arrival at his destination or next point of stopover.

(E) Compensation

In addition to provided transportation in accordance with (D), a passenger who has been denied boarding will be compensated by AC as follows:

(1) Conditions for Payment

(a) The passenger must present himself for carriage at the appropriate time and place:

(i) having complied fully with AC's applicable reservation, ticketing, check-in and reconfirmation procedures; and,

(ii) being acceptable for transportation in accordance with AC's published tariffs.

(b) It must not have been possible to accommodate the passenger on the flight on which he held confirmed reservation and the flight must have departed without him.

Exception: The passenger will not be eligible for compensation:

(i) if he is offered accommodation or is seated in a compartment of the aircraft other than that specified on his ticket at no extra charge to him. (Should he be seated in a compartment for which a lower fare applies, he shall be entitled to the appropriate refund); or,

(ii) if his reservation has been cancelled, pursuant to Rule 135 (Cancellation of Reservations (C) (Airport Check-in Time Limits); or,

(iii) when the flight on which he hold a confirmed and ticketed reservation is cancelled or space has been requisitioned by the government; or,

(iv) if, for operational and safety reasons, his aircraft has been substituted with one having lesser capacity

(v) (Applicable to AC connector carrier ZX only) if the passenger can be accommodated on another flight which departs within one hour of the scheduled departure of the flight on which boarding has been denied.

(2) Amount of Compensation

...

(B) (Applicable for transportation from points in Canada to a destination or first point of stopover in the United States.)

Amount of compensation subject to the provisions of (E) (1), AC will tender liquidated damages in the amount of 100.00 cash (CAD currency) or a credit voucher (good for future travel on Air Canada) in the amount of $300.00 (CAD currency). If accepted by the passenger, such tender will constitute full compensation for all actual or anticipatory damages, incurred or to be incurred.

Exception: (Applicable to AC connector carrier ZX) liquidation damages will be offered in cash or by credit voucher, to a maximum of $50.00 (CAD currency).

Exception: (Applicable to AC 6000-AC6099) compensation will be paid to customer by credit voucher only to a maximum value of 150.00 CAD.

ANALYSIS AND FINDINGS

[34] In making its findings, the Agency has carefully considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined Air Canada's terms and conditions of carriage applicable to denied boarding as set out in the tariff in effect at the time of Mr. Schatz's travel.

Application of the tariff

[35] In his complaint, Mr. Schatz alleged that Air Canada breached its tariff when it removed him from the aircraft after he had boarded Flight No. AC 536 on August 29, 2004. More specifically, Mr. Schatz alleged that Air Canada failed to solicit volunteers prior to deplaning him, failed to follow its published boarding priority, failed to provide him with adequate compensation and failed to provide him with a written notice of denied boarding. In order to determine whether Air Canada, in denying boarding to Mr. Schatz on August 29, 2004, complied with the applicable provisions of its tariff and, hence, to the requirement imposed by subsection 110(4) of the ATR, the Agency must examine each of Mr. Schatz's allegations.

1) Request for volunteers

[36] Rule 245(B)(1) of the tariff provides in part that when a flight is oversold, "AC will request volunteers from among the confirmed passengers, to relinquish their seats in exchange for compensation". Furthermore, Rule 245(C)(1) provides that "if a flight is oversold, no passenger may be involuntarily denied boarding until AC has first requested volunteers to relinquish their seats".

[37] In a letter dated February 16, 2005, Air Canada advised the Agency that it performed "flight firming processes" in advance of the flight's departure date. Air Canada further stated that the flight firming process "allows [Air Canada] to ask for volunteers". The Agency accepts that because the flight was oversold, Air Canada may have undertaken a firming process in advance of the flight departure date. However, a firming process is not, by its very nature, a request for volunteers. The Recommended Practice 1008 in the Passenger Services Conference Resolutions Manual, 23rd Edition, effective June 1, 2003 - May 31, 2004 which is published by the International Air Transport Association (hereinafter IATA) defines "firming" as "a procedure whereby a carrier at a boarding point contacts passengers holding definite reservations to ensure that they actually intend using this space". As a firming process is merely conducted to ensure that passengers holding definite reservations will indeed travel, it cannot in and of itself be considered as a request for volunteers. While there is no question that a firming process allows a carrier to determine whether volunteers will need to be sought on a particular flight, a clear request for volunteers still needs to be performed by the carrier should the firming process confirm the inability of the carrier to transport all the passengers holding definite reservations. In this case, the evidence suggests that Air Canada did not make such a clear request for volunteers.

[38] In its letter dated October 6, 2004, Air Canada stated that a request for volunteers when a flight is overbooked is "made at the time of check-in due to security reasons". However, in the course of the pleadings, Air Canada has presented no evidence to suggest that it made any such request to passengers either at check-in or, alternatively, at the boarding gate. Had such a request been made, Mr. Schatz would have been invited to relinquish his seat in advance of being deplaned. Further, the evidence indicates that at no time during the incident did Air Canada expressly request volunteers.

[39] The evidence provided by the carrier also indicates that Air Canada itself was not certain that it could request volunteers on a U.S.-bound flight. Indeed, in its letter dated October 28, 2004, Air Canada stated that it could not "solicit volunteers on this flight or any United States bound flight, for deplaning at the gate". While Air Canada, upon further verification, did confirm in its letter of February 16, 2005 that there was no regulation prohibiting it from soliciting volunteers on a U.S.-bound flight, it is apparent that Air Canada, at the time of the incident, was not certain that such a request for volunteers could be made.

[40] Based on the evidence, the Agency finds that, contrary to Rule 245(B)(1) and Rule 245(C)(1) of the tariff, Air Canada did not seek volunteers, nor did it request Mr. Schatz to voluntarily relinquish his seat prior to being deplaned on August 29, 2004. Therefore, the Agency finds that Air Canada did not apply the terms and conditions of its tariff contrary to subsection 110(4) of the ATR. Pursuant to subsection 110(4) of the ATR, a carrier can apply only the terms and conditions set out in its tariff. If Air Canada's current practice is not reflected in its tariff, then its tariff must be amended. In the meantime, Air Canada is bound by the provisions currently set out in its tariff.

2) Application of boarding priorities

[41] Mr. Schatz suggested in his complaint that Air Canada, in not applying the boarding priority prescribed in its tariff, violated its tariff in denying him boarding before denying boarding to a non full-fare passenger.

[42] Rule 245(C) provides, in part, that Air Canada may involuntarily deny boarding to passengers in accordance with its boarding priority policy should there be an insufficient number of passengers who have volunteered to relinquish their seats on an oversold flight. The Agency notes, however, that Air Canada's boarding priority policy only applies to passengers who have not been issued a boarding pass.

[43] In this case, the evidence confirms that Mr. Schatz was issued a boarding pass when he checked in at the self-service kiosk. As the boarding priority set out in the tariff applies only to passengers who do not hold a boarding pass, the Agency finds that the boarding priority would not have applied to Mr. Schatz.

[44] As a result, the Agency finds that, as the boarding priority provisions of the tariff do not apply in this matter, this portion of Mr. Schatz's complaint is hereby dismissed.

3) Denied boarding compensation

[45] The Agency notes that pursuant to Rule 245(E)(2)(B), a passenger who has been denied boarding shall be compensated by Air Canada in the amount of CAD$100 cash or a credit voucher valued at CAD$300 for future travel with Air Canada.

[46] In the case at hand, the Agency notes that Air Canada initially provided Mr. Schatz with a CAD$200 travel voucher as well as hotel and meal vouchers as compensation for his involuntary denied boarding. The Agency notes that Air Canada later provided Mr. Schatz with an additional credit voucher in the amount of USD$200 and offered Mr. Schatz the possibility of exchanging the two travel vouchers it had provided for a cash amount of CAD$100. The record indicates that Mr. Schatz declined Air Canada's offer.

[47] While Air Canada's initial offer of denied boarding compensation did not meet the level of compensation required by its tariff for denied boarding, the Agency finds that the appropriate level of compensation was later provided to Mr. Schatz. Mr. Schatz argued that the additional voucher in the amount of USD$200 provided by Air Canada was not provided as additional compensation for denied boarding, but rather as a "customer service appeasement effort". Notwithstanding the purpose and characterization of the additional voucher provided to Mr. Schatz, the fact remains that the initial voucher of CAD$200, the hotel and meal vouchers and the additional voucher of USD$200 were all provided to Mr. Schatz as compensation for the inconvenience suffered as a result of his being denied boarding on August 29, 2004. As Mr. Schatz received an overall compensation that exceeds that prescribed by Rule 245(E)(2)(B) of the tariff, the Agency finds that even though Air Canada did not initially apply the terms and conditions of carriage set out in the tariff, its subsequent actions did ultimately result in Air Canada complying with the tariff. Consequently, this portion of Mr. Schatz's complaint is dismissed.

4) Written notice to involuntarying denied passengers

[48] Rule 245(F) requires Air Canada to provide a written notice detailing its compensation to all passengers who are involuntarily denied boarding. Mr. Schatz complained that Air Canada violated the tariff in not providing him with a copy of the published notice requested at the gate.

[49] The Agency notes that there is no evidence to suggest that Air Canada complied with the requirement in the tariff to provide Mr. Schatz with a copy of the notice. The Agency further notes that Air Canada did not address this aspect of Mr. Schatz's complaint in the various submissions it filed with the Agency.

[50] In this regard, therefore, the Agency finds that Air Canada did not, contrary to Rule 245(F) of the tariff, provide Mr. Schatz with a written notice detailing its compensation for involuntarily denied boarding. In this respect, the Agency finds that Air Canada contravened subsection 110(4) of the ATR.

Compensation for failure to apply the tariff

[51] Section 113.1 of the ATR provides that where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs, the Agency may (a) direct the licensee to take corrective measures that the Agency considers appropriate; and (b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.

[52] In this case, the Agency notes that Mr. Schatz was ultimately provided with compensation for denied boarding that exceeds the level of compensation prescribed in the tariff. As Mr. Schatz made no additional claim of direct damage resulting from the denied boarding, there are, in this case, no grounds for the Agency to grant compensation pursuant to paragraph 113.1(b) of the ATR.

Clarity of the Air Canada transborder tariff

[53] While the Agency, because of the limited scope of the boarding priority set out in Rule 245(C), did not find that Air Canada contravened the provisions of the tariff, the Agency notes that Rule 245 is silent on the issue of boarding priority for passengers who do hold a boarding pass.

[54] Furthermore, and notwithstanding the issue of boarding priority, the Agency notes that Air Canada, in this case, deplaned Mr. Schatz after he had boarded the aircraft. Upon examination of Rule 245 of the tariff, the Agency notes that the rule does not detail Air Canada's policy with respect to removing a passenger from an aircraft that had already been boarded.

[55] In light of the foregoing, the Agency finds it appropriate to provide Air Canada with the opportunity to show cause why the Agency should not, pursuant to section 26 of the CTA and section 122 of the ATR, order Air Canada to clarify Rule 245 of the tariff with respect to the boarding priority of passengers who do hold a boarding pass and with respect to the priority for deplaning passengers in oversold situations.

CONCLUSION

[56] Based on the above findings, the Agency has determined that by failing to request volunteers and/or provide Mr. Schatz with the opportunity to relinquish his seat on Flight No. AC 536 on August 29, 2004, Air Canada, in contravention of subsection 110(4) of the ATR, has not applied the terms and conditions of the tariff. The Agency has also determined that by failing to provide Mr. Schatz with a copy of a written notice upon being denied transportation, Air Canada, in contravention of subsection 110(4) of the ATR, has not applied the terms and conditions of the tariff. Accordingly, Air Canada is hereby ordered to comply with the terms and conditions set out in the tariff.

[57] As Mr. Schatz was provided with compensation for denied boarding that exceeds the level of compensation provided for in the carrier's applicable tariff, and as Mr. Schatz made no additional claim of direct damage resulting from the denied boarding, there are, in this case, no grounds for the Agency to grant compensation pursuant to paragraph 113.1(b) of the ATR.

[58] As the examination of the carrier's tariff has revealed that it is silent on the issue of boarding priority for passengers who do hold a boarding pass, as well as on the carrier's policy for removing a passenger from an aircraft that had already been boarded, Air Canada is hereby provided with an opportunity to show cause, within thirty (30) days from the date of this Decision, why the Agency should not, pursuant to section 26 of the CTA and section 122 of the ATR, order Air Canada to clarify Rule 245 of the tariff.

[59] With respect to the contraventions set out above, the issuance of this Decision does not, however, preclude any actions that may be taken against Air Canada pursuant to the Canadian Transportation Agency Designated Provisions Regulations.

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