Decision No. 55-AT-A-2018

September 11, 2018

APPLICATION by Maria Do Carmo Lobo and Alvaro Do Carmo Lobo (applicants) against Qatar Airways (Q.C.S.C) carrying on business as Qatar Airways, as Qatar Airways Cargo and as Qatar Executive (Qatar Airways) and Air Canada also carrying on business as Air Canada rouge and as Air Canada Cargo  (Air Canada) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) regarding Mrs. Do Carmo Lobo’s disability-related needs, and to subsection 110(4) of the Air Transportation Regulations SOR/88-58, as amended (ATR).

Case number: 
17-04003

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against Qatar Airways and Air Canada concerning a flight delay, delayed baggage and lack of wheelchair assistance in respect of their January 31, 2017 return flight with Qatar Airways from Goa, India, to London, England, via Doha, Qatar, and onward to Toronto, Ontario, with Air Canada.

[2] The applicants are seeking compensation in the amount of $10,000 for “baggage tag breach”, $5,200 for the airlines’ failure to provide disability-related assistance (in other documents provided by the applicants, they seek a $12,000 compensation in that regard), £12.28 for a long distance call from the hotel in London to Mr. Do Carmo Lobo’s work, and $520 for the loss of one day of work for Mr. Do Carmo Lobo.

[3] The Agency will address the following issues:

  1. Is Mrs. Do Carmo Lobo a person with a disability for the purposes of Part V of the CTA?
  2. Did Mrs. Do Carmo Lobo encounter an obstacle to her mobility?
  3. Did Qatar Airways properly apply the terms and conditions set out in Rules 85 and C35 of its International Passenger Rules and Fares Tariff, NTA(A) No. 524 (Tariff) regarding flight delays, as required by subsection 110(4) of the ATR? If not, what remedy, if any, is available to the applicants?
  4. Did Qatar Airways properly apply the terms and conditions set out in Rule 190 of its Tariff, and did Air Canada properly apply the terms and conditions set out in Rule 105 of its International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Air Canada’s Tariff), regarding their liability in respect of baggage, as required by subsection 110(4) of the ATR? If not, what remedy, if any, is available to the applicants?

[4] For the reasons set out below, the Agency finds that:

  1. Mrs. Do Carmo Lobo is a person with a disability for the purposes of Part V of the CTA.
  2. Mrs. Do Carmo Lobo did not encounter an obstacle to her mobility.
  3. Qatar Airways properly applied the terms and conditions set out in Rules 85 and C35 of its Tariff.
  4. There is no evidence from the applicants indicating that they incurred expenses as a result of the delayed delivery of their baggage, such that the Agency dismisses this aspect of the application.

PRELIMINARY MATTERS

Air Canada’s involvement

[5] Air Canada submits that it was not responsible for providing wheelchair assistance upon Mrs. Do Carmo Lobo’s arrival at the Heathrow Airport (Heathrow) in London, as the flight was operated by Qatar Airways. As such, Air Canada pleads that the complaint regarding the alleged lack of wheelchair assistance must be dismissed against Air Canada.

[6] With respect to the flight delay experienced by the applicants, Air Canada explains that it was due to a schedule irregularity on a flight operated by Qatar Airways. Air Canada further refers to its tariff which sets out that the carrier operating the flight that is experiencing the schedule irregularity will be responsible for making the alternative transportation arrangements. Air Canada therefore argues that Qatar Airways was responsible for re-accommodating and assisting the applicants following the delay of Qatar Airways’ flight from Doha to London.

[7] The Agency agrees that Air Canada was not responsible for providing wheelchair assistance upon the arrival of Qatar Airways’ flight from Doha to London, nor was it responsible for making alternative transportation arrangements further to the delay of the same flight. Consequently, the Agency will only consider Qatar Airways’ position in respect of the issues relating to wheelchair assistance and flight delay.

Additional submissions from the applicants

[8] On May 16, 2018, the Agency issued Decision No. LET-AT-C-A-35-2018 (Decision) in which it ordered Qatar Airways to file any relevant evidence it may have supporting its assertion that it conveyed the applicants’ request for wheelchair assistance to Omniserv. Qatar Airways had until May 24, 2018 to file the required information, following which the applicants had until May 28, 2018 to file a reply.

[9] On May 25, 2018, before Qatar Airways responded to the Decision, the applicants filed the following:

  • information related to the applicants’ mis-tagged baggage issue;
  • information related to Air Canada’s purported failure to provide wheelchair assistance at Heathrow;
  • a package of 24 documents setting out information in respect of the issues raised in their application.

[10] After the filing of Qatar Airways’ response to the Decision, the applicants filed, on July 5, 2018, another submission in which they:

  • repeat that no wheelchair assistance was provided at Heathrow;
  • request that Qatar Airways provide a “legible document of Omniserv’s records”;
  • request that Qatar Airways provide them with the arrival date and time of their rescheduled Qatar Airways flight from Doha to London; and,
  • ask why their baggage was mis-tagged.

[11] The applicants’ submission of May 25, 2018 simply restates their issues and includes documents that they had already submitted with their application. It does not, as provided for in the Decision, address Qatar Airways’ response to the Decision. The applicants seem to have interpreted the Decision as being final, when in fact, the Agency was simply gathering additional information on one of the issues raised by the applicants.

[12] With respect to the applicants’ submission dated July 5, 2018, it was filed past the deadline set out in the Decision, and did not include a request pursuant to section 34(1) of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104, to file documents whose filing is not otherwise provided for in the Rules. In addition, while the applicants ask for a legible version of Omniserv’s records, the information set out in the screenshot of Omniserv’s record provided by Qatar Airways is in fact clear and legible. With respect to the applicants’ request for the information pertaining to their rescheduled flight from Doha to London, Qatar Airways already provided the date and time of arrival of this flight in its answer dated April 13, 2018. With respect to the other two items raised by the applicants, namely the mis-tagging of their baggage and the lack of wheelchair assistance, they have already been raised in the application.

[13] In light of the above, the Agency rejects the additional submissions filed by the applicants on May 25, 2018 and July 5, 2018. These submissions will therefore not form part of the record.

BACKGROUND

[14] The applicants booked an interline ticket for travel on January 31, 2017 with Qatar Airways from Goa to London via Doha and were scheduled to travel with Air Canada from London to Toronto on the same day. Qatar Airways’ flight from Doha to London was delayed by more than four hours, which caused the applicants to miss their connecting flight to Toronto.

[15] The applicants submit that they had to wait for a prolonged period of time for wheelchair assistance in Heathrow, and claim that their baggage arrived home several days late, in addition to having been improperly tagged.

THE LAW

[16] The application contains issues relating to both the application of Qatar Airways’ Tariff and accessibility matters.

[17] The disability-related portion of the application was filed pursuant to subsection 172(1) of the CTA, which reads as follows:

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.

[18] The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a three-part approach.

Part 1: The Agency considers whether the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA.

Part 2: If it is determined that the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA, the Agency determines whether they encountered an obstacle. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.

Part 3: If it is determined that the applicant is a person, or the person on whose behalf the application is being filed, with a disability and that they encountered an obstacle, the Agency provides the respondent with an opportunity to either:

    • explain how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or
    • demonstrate that it cannot remove the obstacle without experiencing undue hardship.

[19] In this decision, the Agency will address the first two issues identified above when considering the disability-related portion of the application.

[20] With respect to the tariff portion of the application, subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff.

[21] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier 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.

[22] Rule 55(B) of Qatar Airways’ Tariff incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air - Montreal Convention, (Montreal Convention) and states the following:

(1) Subject to (2) and (3) below, carriage hereunder is subject to the rules and limitations relating to liability established by the applicable Warsaw Convention or the Montreal Convention unless such carriage is not carriage by air and/or is not international carriage to which the Convention applies.

[23] Rule C35 of Qatar Airways’ Tariff relating to passenger expenses en Route sets out that:

QR will provide passenger expenses en route in accordance with IATA Multilateral Interline Traffic Agreement – Hotel Accommodation, Meals and Surface Transport Multilateral Agreement […].

[24] Rule 85 of Qatar Airways’ Tariff outlines the actions that the carrier will undertake in the event of a schedule change, a flight delay or a cancellation:

B) Right to cancel, postpone, etc.

When circumstances so require, QR may without notice cancel, terminate, divert, postpone, or delay any flight, in which case, if QR is unable to provide previously confirmed space, or causes a passenger to miss a connecting flight on which he/she holds a reservation, QR with due consideration to the passenger’s reasonable interest shall:

  1. Carry the passenger on another of its scheduled flights on which space is available; or
  2. 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. […]
  3. Make a refund in accordance with the provisions of Rule 90 and, except as above, QR shall not have any other liability to passenger.

[25] Rule 190 of Qatar Airways’ Tariff relating to baggage sets out that:

(B) […] QR’s liability to pay compensation is limited and is calculated on the weight of the baggage lost, damaged, pilfered or delayed. It is in no way insurance or an automatic payment and all claims are subject to proof of value.

[26] Rule 105(5) of Air Canada’s Tariff incorporates by reference the Montreal Convention and states the following:

For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.

[27] Rule 105(C) of Air Canada’s Tariff sets out the liability of the carrier in respect of baggage:

(1) Where the Montreal Convention applies, the limits of liability are as follows:

(b) In respect of destruction, loss of, or damage or delay to baggage, 1,131 Special Drawing Rights […] per passenger in most cases.

[28] Article 19 of the Montreal Convention sets out the carrier’s liability in case of delay and states that:

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.

Is Mrs. Do Carmo Lobo a person with a disability for the purposes of Part V of the CTA?

[29] The applicants submit that Mrs. Do Carmo Lobo is disabled, cannot walk long distances and requires wheelchair assistance.

[30] While Qatar Airways submits that it has “no knowledge of whether Mrs. Do Carmo Lobo is disabled”, her boarding pass for her flight between Goa and Doha indicates “WCHR”, which is the code for persons who can use stairs but need a wheelchair or other means of transport for longer distances.

[31] In light of the above, the Agency finds that Mrs. Do Carmo Lobo is a person with a disability for the purposes of Part V of the CTA.

Did Mrs. Do Carmo Lobo encounter an obstacle to her mobility?

Positions of the parties and findings of fact

THE APPLICANTS’ POSITION

[32] The applicants submit that upon arrival at Heathrow, Qatar Airways personnel required that Mrs. Do Carmo Lobo remain seated until all passengers had disembarked the aircraft and that wheelchair assistance was provided “about one hour later, at about 7 p.m.”.

[33] In another submission, the applicants submit that they requested wheelchair assistance from a Qatar Airways flight attendant, but that the flight attendant was unsure about wheelchair availability due to their late arrival. The applicants further allege that the flight attendant told them that the “shuttle [busses] will take care of that issue”.

[34] The applicants submit that the passengers were “shuttled” to their respective terminal, and found out that they were left at the wrong terminal. They add that the shuttle bus driver told them to request wheelchair assistance once in the terminal. The applicants submit that “soon after [they] got to the terminal”, they requested wheelchair assistance, but that they still did not receive it. They finally found a wheelchair, took it to the Air Canada Lounge and waited to be re-accommodated.

QATAR AIRWAYS’ POSITION

[35] Qatar Airways refers to Article 7 of Regulation (EC) No 1107/2006 of the European Parliament and Council to explain that Heathrow is responsible for providing assistance to persons with disabilities in all areas of the airport outside the aircraft. Qatar Airways indicates that this assistance is provided by Omniserv, with which it has no contractual relationship. Qatar Airways argues that the Agency does not have jurisdiction over services offered by a foreign airport authority or by a foreign company contracted to provide services on the airport authority’s behalf.

[36] More specifically as it relates to the applicants’ travel, Qatar Airways submits that Great Travel Fares, the company that made the applicants’ travel arrangements, did not request wheelchair assistance at the time of booking. Rather, Qatar Airways submits that the applicants made that request during check in at the Goa Airport on January 30, 2017. Qatar Airways submits that it communicated Mrs. Do Carmo Lobo’s request for wheelchair assistance to the appropriate personnel at Heathrow, and that a wheelchair was reserved in its booking system. Qatar Airways supports its assertion with what it submits is a record from Omniserv, which sets out that wheelchair assistance for Mrs. Do Carmo Lobo was “pre-planned” at 3:02 p.m. on January 31, 2017, and provided at 4:54 p.m. As such, Qatar Airways pleads that it fulfilled its obligations.

Analysis and Determinations

[37] As set out in Decision No. 211-AT-A-2012, the Agency has jurisdiction over international transportation-related matters arising in Canada, as well as over activities taking place outside of Canada involving Canadian carriers. The Agency does not, however, have jurisdiction over services offered by a foreign company that is under contract with a foreign airport authority.

[38] In light of the above, the Agency cannot assert jurisdiction over Omniserv in this case as it relates to the provision of wheelchair assistance. However, the Agency can assert its jurisdiction over Qatar Airways’ involvement in the process to ensure the provision of the service; that is the communication of Mrs. Do Carmo Lobo’s need for wheelchair assistance to Omniserv. The Agency will therefore limit its determination to this aspect of the application.

[39] According to the Omniserv’s record filed by Qatar Airways, a request for assistance for Mrs. Do Carmo Lobo was generated in Omniserv’s record on January 30, 2017 at 11:56 a.m. Qatar Airways therefore adequately conveyed Mrs. Do Carmo Lobo’s need for wheelchair assistance to Omniserv, such that it fulfilled its obligations.

[40] In light of the above, the Agency finds that Mrs. Do Carmo Lobo did not encounter an obstacle attributable to Qatar Airways.

DID QATAR AIRWAYS PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULES 85 AND C35 OF ITS TARIFF REGARDING FLIGHT DELAYS, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR? IF NOT, WHAT REMEDY, IF ANY, IS AVAILABLE TO THE APPLICANTS?

Positions of the parties and findings of fact

THE APPLICANTS’ POSITION

[41] The applicants claim that they were left stranded at Heathrow with no “airline help” for four hours. The applicants submit that around 11:00 p.m. on January 31, 2017, an Air Canada agent rebooked them onto a new flight to Toronto for the following day, and provided them with hotel accommodations for the evening in London.

[42] The applicants provided an invoice in the amount of £12.28 for telephone charges incurred at the Crowne Plaza London Heathrow on January 31, 2017.

QATAR AIRWAYS’ POSITION

[43] Qatar Airways explains that the applicants’ flight from Doha to London was delayed as a result of a control system fault in one of its aircraft’s engines, which required a change in aircraft. The resulting delay was of 4 hours and 31 minutes. The flight arrived at Heathrow at 4:37 p.m., and as a result, the applicants missed their Air Canada flight departing at 3:00 p.m.

[44] Qatar Airways explains that there was a later Air Canada flight departing at 6:00 p.m. on January 31, 2017. However, the applicants were not booked on that flight because it would not have allowed the minimum connection time of 90 minutes at Heathrow. Qatar Airways notes that a change of terminal would have been required for that flight. Qatar Airways further explains that this minimum connection time is a generally accepted standard among other partner airlines.

[45] Qatar Airways submits that the applicants were rebooked on Air Canada’s Flight No. AC859 departing the next day at 6:00 p.m. Qatar Airways states that, in accordance with its Tariff, it provided the applicants with one night accommodation, including dinner and breakfast, and ground transportation to and from the hotel.

[46] Qatar Airways submits that the application filed against it ought to be dismissed, with the exception of the claim for the applicants’ two telephone calls, which Qatar Airways indicates that it is prepared to reimburse to the applicants. Qatar Airways states that this amount was not previously submitted for reimbursement.

Findings of fact

[47] The Agency accepts that the delay of Qatar Airways flight from Doha to London on January 31, 2017 was due to a mechanical failure, and as such, was beyond Qatar Airways’ control.

[48] The parties do not dispute that Qatar Airways paid for dinner and hotel accommodation for the applicants on the night of January 31, 2017, for ground transportation to and from the hotel, and for breakfast on February 1, 2017.

[49] Qatar Airways also accepts to reimburse the applicants in the amount of £12.28 for telephone charges incurred at the Crowne Plaza London Heathrow on January 31, 2017.

Analysis and Determinations

[50] Article 19 of the Montreal Convention provides that a carrier is liable for damage occasioned by a flight delay, unless it proves that it took all reasonable measures to avoid the damage or that it was impossible for it to take such measures.

[51] The Agency finds that, consistent with Rule 85 (B)(2) of Qatar’s Airways Tariff, the applicants were “reroute[d] […] to the destination indicated on the ticket or applicable portion thereof by its own scheduled services or the scheduled services of another carrier”, given that they were rebooked on Air Canada’s Flight No. AC859 departing on the following day. While there was another Air Canada flight departing from Heathrow in direction of Toronto later that day, there was insufficient time to rebook the applicants and ensure an adequate connection time.

[52] In accordance with Rule C35 of its Tariff, Qatar Airways provided the applicants with expenses en route, namely hotel accommodation, meals and ground transportation.

[53] In light of the above, the Agency finds that Qatar Airways properly applied Rules C35 and 85 of its Tariff, and that it took all reasonable measures to avoid the damage resulting from the delay of its January 31, 2017 flight from Doha to London.

DID QATAR AIRWAYS PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULE 190 OF ITS TARIFF, AND DID AIR CANADA PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULE 105 OF ITS TARIFF REGARDING THEIR LIABILITY IN RESPECT OF BAGGAGE, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR? If NOT, WHAT REMEDY, IF ANY, IS AVAILABLE TO THE APPLICANTS?

THE APPLICANTS’ POSITION

[54] The applicants claim that after returning home, they discovered that they had the wrong baggage, despite the fact that the baggage tag affixed to it was labeled with their name. The applicants submit that they returned the baggage to Air Canada on the following day, and that Air Canada delivered their baggage “after about four days”.

[55] The applicants claim that the wrong baggage that they brought home contained food products that are banned in Canada. The applicants allege that they were “setup by the airlines, violation and non‑compliance for banned items to be in [their] possession”. The applicants submit that there was a breach of security process.

AIR CANADA’S POSITION

[56] Air Canada submits that the “rush tag” affixed to the applicants’ baggage was issued by Qatar Airways in Doha, given that the identifier number begins with 157.

QATAR AIRWAYS’ POSITION

[57] Qatar Airways explains that the applicants returned the baggage that did not belong to them to Air Canada, and that the matter was reported to Qatar Airways on February 3, 2017. Qatar Airways states that the applicants’ baggage was located and delivered to them on February 5, 2017.

[58] Qatar Airways submits that its liability is limited to the actual proven financial loss incurred by the applicants as a direct result of the delayed baggage, to a maximum of 1,131 Special Drawing Rights, as set out in Article 22 of the Montreal Convention. To that effect, Qatar Airways states that the applicants have not alleged that they have incurred any expenses as a result of the delayed arrival of their baggage, nor have they filed any evidence or documents to substantiate such a claim.

Analysis and Determinations

[59] The applicants allege that there was a security breach in respect of the handling of their baggage. The Agency has no jurisdiction to deal with matters relating to baggage security, and as such, will not look further into this matter.

[60] The Agency’s authority to award compensation to passengers when their baggage is delayed is limited to expenses. As there is neither argument nor evidence from the applicants indicating that they incurred expenses as a result of the delayed delivery of their baggage, the Agency dismisses this aspect of the application.

CONCLUSION

[61] The Agency dismisses the application.

Member(s)

Scott Streiner
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