Decision No. 55-C-A-2014

February 14, 2014

COMPLAINT by Allane, Richard, David and Michael Brine against Air Canada.

File No.: 
M4120-3/13-05726

INTRODUCTION

[1] On June 4, 2013, Allane Brine filed a complaint with the Canadian Transportation Agency (Agency) on behalf of herself, Richard, David and Michael Brine (Brines) against Air Canada regarding certain problems associated with their travel to Cancun, Mexico in February, 2012.

[2] The Brines purchased tickets to travel to Cancun with Air Canada on February 17, 2012. Allane, Richard and David Brine were booked to travel from Vancouver, British Columbia, Canada to Cancun via Toronto, Ontario, Canada, and Michael Brine was booked to travel from Halifax, Nova Scotia, Canada to Cancun via Toronto. Their plan was for the family to meet in Toronto and then to travel together to Cancun.

[3] The departure of Flight No. AC108 (Vancouver-Toronto) was delayed such that Air Canada knew that Allane, Richard and David Brine would not make it on time for their connecting Flight No. AC1256 (Toronto-Cancun). As a result, Air Canada cancelled their boarding cards and reprotected them on a subsequent flight. However, as Flight No. AC1256 was delayed in departing, and one seat remained available, Air Canada offered this seat to Allane Brine, who accepted it and continued her travel with Michael Brine, who had arrived from Halifax. Allane Brine left her baggage to be transported by Richard Brine on a subsequent flight.

[4] Richard and David Brine were reprotected to travel the following day, i.e., February 18, 2012, on Flight No. AC993 from Toronto to Mexico City, Mexico and then on Flight No. AM445 from Mexico City to Cancun. Due to a misconnection in Mexico City, Richard and David Brine arrived in Cancun on February 19, 2012. Once in Cancun, they used transportation to their hotel.

[5] The Brines request:

  • a reimbursement of the cost of their four tickets, totalling $3,605.56, for the “wrong decisions and mistreatment that Air Canada put the family through”;
  • a refund of the following out-of-pocket expenses:
  • $277.60 (roaming charges for David Brine’s cellullar phone);
  • $30.40 for other airport and hotel calls (the difference between the claimed $308 and the $277.60 in roaming charges);
  • $100 transportation to the hotel;
  • $30 (over the $30 meal vouchers provided by Air Canada) for meals purchased in Toronto; and
  • $20 for meals purchased in Mexico.
  • compensation for the delay in delivery of baggage, and the loss of certain items.

PRELIMINARY MATTERS

[6] David Brine noted that some items were missing from his baggage when it was delivered late to him in Cancun. In its submission, Air Canada advises that it provided compensation in the amount of $193.65 for the late delivery of the baggage and for the missing items, and $100 for the cost of transportation to the hotel. In addition, Air Canada states that damages for inconvenience are not recoverable under the Convention for the Unification of Certain Rules for International Carriage by Air - Montreal Convention (Montreal Convention). In their reply, the Brines do not contest Air Canada’s submission with respect to baggage and transportation to the hotel compensation. The Agency therefore considers this part of the complaint to be settled and will not address it.

[7] Also, the Agency will not address the Brines’ request for a reimbursement of their four tickets as compensation for mistreatment because the Agency does not have jurisdiction to order payment of compensation for things such as pain and suffering or loss of enjoyment.

RELEVANT TARIFF AND STATUTORY EXTRACTS

[8] The Tariff provisions that were in effect at the time of the Brines’ travel [Rules 60(D)(3), 80(C)(1) and (2), 80(D), 89(Part1)(E)(1)(a) and 55(B)(5)(a)] as well as the statutory extracts and Article 19 of the Montreal Convention are set out in the Appendix.

ISSUES

  1. Were Richard and David Brine denied boarding, according to Rule 89 of Air Canada’s International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Tariff), relating to denied boarding compensation, and, if so, what amount of denied boarding compensation are they entitled to receive?
  2. Did Air Canada properly apply the terms and conditions of carriage specified in Rule 80(C), relating to schedule irregularity, of its Tariff as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
  3. Did Air Canada properly apply the terms and conditions of carriage relating to the limits of liability as set out in Rule 55(B)(5)(a) of its Tariff, which incorporates the Montreal Convention by reference, as required by subsection 110(4) of the ATR? If not, are the complainants entitled to reimbursement for out-of-pocket expenses?

POSITIONS OF THE PARTIES

The Brines

[9] The Brines submit that, knowing that they might be late to catch Flight No. AC1256 because of their delay departing Vancouver, Allane, Richard and David Brine asked the Vancouver gate crew to arrange to have a golf cart waiting for them at the Toronto-Lester B. Pearson International Airport. The Brines indicate that a golf cart was not provided.

[10] The Brines contend that some of the crew they had seen on Vancouver-Toronto Flight No. AC108 boarded Flight No. AC1256 as a means of obtaining a last minute increase in previously arranged off-duty time in Cancun, which originally was to involve a later departing flight, and that some stand-by passengers boarded as well. The Brines also contend that some of these people were given the preassigned seats of Richard and David Brine. The Brines wonder why Richard and David Brine were passed over in Toronto while some crew and stand-by passengers were able to travel on Flight No. AC1256.

[11] The Brines also question why it took so long for Richard and David Brine to finally arrive in Cancun; they were all in Toronto on February 17, 2012, but Richard and David Brine only arrived in Cancun on February 19, 2012.

[12] The Brines submit that Richard and David Brine should have been offered denied boarding compensation at the Toronto-Lester B. Pearson International Airport when they were advised that they would not be travelling on Flight No. AC1256.

[13] The Brines seek compensation for the following out-of-pocket expenses, totalling $358, incurred as a result of the flight delay and the delay in delivery of David Brine’s baggage:

  • meal in Toronto: $30;
  • two meals in Mexico City: $20; and
  • roaming fees for cellular phone – airport and hotel calls: $308.

Air Canada

[14] Air Canada submits that although Flight No. AC108 was initially scheduled to land in Toronto at 2:29 p.m., which would have allowed Allane, Richard and David Brine to make their connection to Flight No. AC1256, it arrived at 3:42 p.m., i.e., two minutes after the scheduled departure time of Flight No. AC1256.

[15] Air Canada indicates that as Flight No. AC1256 was pushed back to 4:13 p.m., Allane, Richard and David Brine were able to get to the departure gate before the aircraft door was closed; however, they did not arrive at the gate before the boarding gate cut-off time.

[16] Air Canada submits that because Allane, Richard and David Brine’s boarding cards and seat assignments had been cancelled, they were told that they were no longer on board Flight No. AC1256. However, Air Canada advises that as there was a seat that remained available, Allane Brine opted to embark on Flight No. AC1256, albeit without her baggage.

[17] Air Canada indicates that Richard and David Brine were reprotected on a flight departing the following day to Cancun via Mexico City. Air Canada further indicates that Richard and David Brine were not rebooked on Air Canada’s direct flights to Cancun as these flights were already at full capacity. Due to a subsequent missed connection in Mexico City, Richard and David Brine arrived at their final destination on February 19, 2012.

[18] Air Canada advises that Richard and David Brine were each provided with a $30 meal voucher, overnight accommodation in Toronto at a hotel near the airport, a $200 voucher, and a reimbursement of $100 for the cost of transportation to the hotel. Air Canada further advises that the Brines were given, on a goodwill basis, two 20 percent promotion codes, and that both the vouchers and the promotion codes were used by the Brines towards the purchase of subsequent travel.

[19] Air Canada submits that the fact that Flight No. AC108 was delayed and caused Richard and David Brine not to be able to successfully board Flight No. AC1256 constituted a missed connection and, as such, Air Canada met its legal and contractual obligations towards them under Rule 80(D) of its Tariff regarding missed connections. Air Canada adds that in cases of missed connections, the transfer of baggage and movement time within the terminal must be taken into account. This is exemplified by the fact that Allane Brine was able to board Flight No. AC1256 without her baggage.

[20] Air Canada submits that, although compensation in the form of travel vouchers was given to Richard and David Brine for the inconvenience they encountered for not being able to travel as originally scheduled, they were not entitled to denied boarding compensation. The compensation provided to them was a gesture of goodwill.

[21] Air Canada contends that the exception to the payment of denied boarding compensation found in Rule 89(Part 1)(E)(1) under the requirement to arrive on time clarifies and exemplifies the fact that where such situations are the result of misconnections, the applicable regime is that of misconnections under Rule 80(D), and not of denied boarding.

[22] Air Canada submits that even if Richard and David Brine were considered as having been denied boarding, the conditions to receive denied boarding compensation under Rule 89(Part 1)(E)(l)(a) of the Tariff were not fulfilled. Under this Rule, in order to be eligible to receive denied boarding compensation, passengers must be present at the appropriate time and place, having complied with applicable reservations, ticketing, check in and reconfirmation procedures, and being acceptable for transportation. Air Canada states that it requires that passengers be at the boarding gate within 30 minutes of the scheduled departure time of the flight, as set out on Air Canada’s Web site and in Rule 60(D)(3) of the Tariff. As it was impossible for Allane, Richard and David Brine to make their connection, as scheduled, they were offloaded from Flight No. AC1256.

[23] With respect to the Brines’ submission respecting Air Canada’s failure to arrange for a golf cart upon arrival in Toronto of Allane, Richard and David Brine, Air Canada submits that there is no legal requirement for a carrier to facilitate the movement of a passenger during connections. This is policy-driven and the extent of assistance directly provided to passengers whose connection is at risk varies depending on the circumstances of the daily operations in a given airport and on the transit security restrictions.

[24] Air Canada asserts that its obligation in a case of a scheduled irregularity and missed connection is to reprotect the passenger(s) or provide a refund, where requested. In this case, Air Canada advises that David and Richard Brine were effectively reprotected as they travelled with Air Canada to their final destination, and therefore, they are not entitled to a refund as there was no unused portion of their tickets.

[25] Air Canada submits that it is not liable for the consequential damages claimed by the Brines. In this respect, Air Canada refers to Agency Decision No. 185-C-A-2003 (Yehia v. Air Canada) and Decision No. 31-A-1999 (Katchmar v. Air Ukraine).

[26] With respect to the Brines’ claim seeking compensation of $358 for telephone and roaming charges, and meals in Toronto and Mexico City, Air Canada submits that it more than fully reimbursed the Brines in providing two $200 vouchers and two promotion codes for a 20 percent discount, which provided the Brines with another $641.60 discount. Air Canada argues that the provision of the vouchers and promotion codes, totalling savings of $1,041.60, exceeded that to which the Brines were entitled. Air Canada submits that as a goodwill gesture, upon presentation of relevant receipts, Air Canada will provide the Brines with compensation of $358 for out‑of‑pocket expenses pertaining to telephone and roaming charges, and for meals in Toronto and Mexico City.

ANALYSIS AND FINDINGS

Issue 1: Were Richard and David Brine denied boarding, according to Rule 89 of Air Canada’s Tariff, relating to denied boarding compensation, and, if so, what amount of denied boarding compensation are they entitled to receive?

[27] The Brines submit that Richard and David Brine were denied boarding, and wonder why they were not offered denied boarding compensation, whereas Air Canada claims that Richard and David Brine were not available at the boarding gate by the cut-off time for Flight No. AC1256 and therefore were not eligible for such compensation.

[28] Pursuant to Rule 89(Part I)(E)(1)(a) of the Tariff, to be eligible for denied boarding compensation, passengers are required to present themselves for carriage at the appropriate time. Given Air Canada’s evidence that Flight No. AC108 arrived in Toronto two minutes after the scheduled departure time of Flight No. AC1256, it was not possible for Allane, Richard and David Brine to present themselves at the boarding gate for Flight No. AC1256 at the appropriate time as provided in Rule 60(D)(3).

[29] The Agency notes the factual similarities between this case and the circumstances in Decision No. 264-C-A-2013 (Azar v. Air Canada) in which the passenger also missed a connection and had her seat given to another passenger, and sought denied boarding compensation. In that case, the Agency found that the situation was not one of denied boarding, but a missed connection, and determined that there was no entitlement to denied boarding compensation in such circumstances.

[30] For this case, the Agency is of the opinion that the event was also clearly a situation of a missed connection, not a denied boarding.

[31] In light of the foregoing, the Agency finds that Richard and David Brine were not denied boarding and, therefore, they are not entitled to denied boarding compensation.

Issue 2: Did Air Canada properly apply the terms and conditions of carriage specified in Rule 80(C), relating to schedule irregularity, of its Tariff as required by subsection 110(4) of the ATR?

[32] The Agency notes that, on February 17, 2012, Air Canada’s Flight No. AC108 experienced a schedule irregularity, as defined by Rule 80(C) of its Tariff in effect on the date of commencement of Allane, Richard and David Brine’s carriage, in that the arrival of the flight in Toronto was delayed, causing Richard and David Brine to miss their connection from Toronto to Cancun. The Agency also notes that Air Canada satisfied the requirements of Rule 80(C) of its Tariff by reprotecting Richard and David Brine, and by carrying them to their final destination. Also, Air Canada provided Richard and David Brine with overnight accommodation in Toronto and gave them meal vouchers.

[33] The Agency therefore finds that Air Canada properly applied its terms and conditions under Rule 80(C) of its Tariff when it reprotected Richard and David Brine, and when it provided them with overnight accommodation in Toronto and meal vouchers.

Issue 3: Did Air Canada properly apply the terms and conditions of carriage relating to the limits of liability as set out in Rule 55(B)(5)(a) of its Tariff, which incorporates the Montreal Convention by reference, as required by subsection 110(4) of the ATR? If not, are the complainants entitled to reimbursement for out-of-pocket expenses?

[34] In response to the Brines’ request for compensation of $358 for telephone and cellular phone roaming charges, and for meals, Air Canada submits that it has more than fulfilled its obligation by providing the Brines with travel vouchers and promotion codes for discounts, amounting to savings of $1,041.60. However, as a goodwill gesture, upon presentation of relevant receipts, Air Canada submits that it will provide the Brines with compensation of $358 for out-of-pocket expenses pertaining to telephone and roaming charges, and for meals in Toronto and Mexico City.

[35] Article 19 of the Montreal Convention provides 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.

[36] Rule 55(B)(5)(a) of the Tariff provides that:

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

[37] In Decision No. 250-C-A-2012 (Lukács v, Air Canada), the Agency stated:

[25] It is clear that Article 19 of the Convention imposes on a carrier liability for damage occasioned by delay in the carriage of, amongst other matters, passengers, but a carrier will 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 it was impossible for them to take such measures. As the Agency stated in the Show Cause Decision, with a presumption of liability for delay against a carrier, there is a concomitant obligation for a carrier to mitigate such liability and address the damage which has or may be suffered by a passenger as a result of delay. In addition, Article 19 of the Convention provides a carrier with a defence to the liability if it can show that it took, or it was impossible to take, all reasonable measures to avoid the damage caused by the delay. [...]

[38] The Agency is of the opinion that the delay in the departure of Flight No. AC108 on February 17, 2012, the subsequent delay in the arrival in Cancun of David and Richard Brine, and the delay in the delivery of David Brine’s baggage, constitute a delay as referred to in Article 19 of the Montreal Convention, and that the out-of-pocket expenses pertaining to telephone and roaming charges, and for meals in Toronto and Mexico City, constitute damages that are occasioned by those delays.

[39] The Agency is also of the opinion that the travel vouchers and promotions codes were provided to the Brines by Air Canada of its own volition, and not because it was compelled to do so by any legislative or regulatory requirement.

[40] The Agency finds that, although it was Air Canada’s obligation to demonstrate that it took all reasonable measures to avoid the damage or that it was impossible for Air Canada to take such measures, there is no evidence on file to show that Air Canada took all reasonable measures to avoid the damage incurred by the Brines, or that it was impossible for Air Canada to take such measures, as required by Article 19 of the Montreal Convention.

[41] As such, in accordance with Article 19 of the Montreal Convention, Air Canada is liable for this damage.

[42] Consequently, the Agency finds that by not compensating the Brines for expenses related to the cellular phone roaming and telephone charges, and meals, Air Canada failed to properly apply the terms and conditions of carriage relating to the limits of liability as set out in Rule 55(B)(5)(a) of its Tariff, which incorporates the Montreal Convention by reference, and therefore contravened subsection 110(4) of the ATR.

CONCLUSION

[43] Based on the above findings, the Agency, pursuant to section 113.1 of the ATR, orders Air Canada to compensate the Brines, by not later than March 17, 2014, an amount of $348, upon presentation of appropriate receipts, and to advise the Agency once that compensation has been tendered.


APPENDIX

Tariff Rules in effect at the time of the Brines’ travel

RULE 55 – LIABILITY OF CARRIERS

[...]

(B) – LAWS AND PROVISIONS APPLICABLE

[...]

(5)(a) 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.

RULE 60 –RESERVATIONS

[...]

(D) CHECK-IN TIME LIMITS

[...]

(3) The passenger must be available for boarding at the boarding gate at least 55 minutes prior to scheduled departure time of the flight on which he/she holds a reservation.

EXCEPTIONS: Caracas 30 minutes

                       Grand Cayman 45 minutes

                       Tel Aviv 60 minutes

RULE 80 – REVISED ROUTINGS, FAILURE TO CARRY AND MISSED CONNECTIONS

[...]

(C) SCHEDULE IRREGULARITY

(1) In the event carrier cancels a flight, fails to operate according to schedule, fails to stop at a point to which the passenger is destined or is ticketed to stopover, substitutes a different type of equipment or class of service, is unable to provide previously confirmed space, causes a passenger to miss a connecting flight on which he holds a reservation, or the passenger is refused passage or removed in accordance with Rule 25(A) carrier will at its option and as passenger’s sole remedy either:

  1. carry the passenger on another of its passenger aircraft on which space is available without additional charge regardless of the class of service; or at carrier’s option;
  2. endorse to another air carrier with which Air Canada has an agreement for such transportation, the unused portion of the ticket for purposes or rerouting; or at carrier’s option;
  3. reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from Rule 90(D), carrier will require no additional payment from the passenger but will refund the difference if it is lower or;
  4. at passenger’s option or if carrier is unable to perform the option stated in (A), (B) or (C) above within a reasonable amount of time, make involuntary refund in accordance with Rule 90(D).

(2) In the event carrier is a codeshare carrier and the operating carrier cancels a flight, fails to operate according to schedule, fails to stop at a point to which the passenger is destined or is ticketed to stopover, substitutes a different type of equipment or class of service, is unable to provide previously confirmed space, causes a passenger to miss a connecting flight on which he holds a reservation, or the passenger is refused passage or removed in accordance with Rule 25(A) carrier will, as the passenger’s sole remedy, if the operating carrier fails to do so:

  1. carry the passenger on another of its passenger aircraft on which space is available without additional charge regardless of the class of service; or at carrier’s option
  2. endorse to another carrier or other transportation service, the unused portion of the ticket for purposes of rerouting; or at carrier’s option
  3. reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from Rule 90(D), carrier will require no additional payment from the passenger but will refund the difference if it is lower at carrier’s option.
  4. or, at carrier’s option or if carrier is unable to perform the option stated in (A) (B) or (C) above within a reasonable amount of time, make involuntary refund in accordance with Rule 90(D).
(D) MISSED CONNECTIONS

In the event a passenger misses an onward connecting flight on which space has been reserved because the delivering carrier did not operate its flight according to schedule or changed the schedule of such flight, the delivering carrier will arrange for the carriage of the passenger or make involuntary refund in accordance with Rule 90.

RULE 89 – DENIED BOARDING COMPENSATION

(Part 1)

[...]

(E) COMPENSATION

In addition to providing transportation in accordance with (D), a passenger who has been denied boarding involuntarily 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:

  1. having complied fully with AC applicable reservation, ticketing, check-in and reconfirmation procedures; and,
  2. being acceptable for transportation in accordance with AC published tariffs.

RELEVANT STATUTORY EXTRACTS

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.
Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention
Article 19 – Delay

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.

Member(s)

J. Mark MacKeigan
Date modified: