Decision No. 57-C-A-2018

September 20, 2018

APPLICATION by Ihor Duda against Air Creebec Inc. (Air Creebec).

Case number: 
18-01991

SUMMARY

[1] Ihor Duda filed an application with the Canadian Transportation Agency (Agency) against Air Creebec concerning an excess baggage charge that was imposed on him by the carrier. Mr. Duda is seeking a refund in the amount of $111.29 for this charge.

[2] The Agency will consider whether Air Creebec properly applied the terms and conditions set out in its Charter Rules and Tariff #2 2013, CTA(A) No. 2 (Charter Tariff), as required by subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).

[3] For the reasons set out below, the Agency finds that Air Creebec contravened subsection 67(3) of the CTA, and, pursuant to section 67.1 of the CTA, orders Air Creebec to reimburse Mr. Duda the amount of $111.29. Air Creebec is to pay this amount to Mr. Duda as soon as possible and no later than November 2, 2018.

BACKGROUND

[4] Mr. Duda held a reservation to travel from Timmins, Ontario to Attawapiskat, Ontario on a charter flight operated by Air Creebec. Mr. Duda travelled to Timmins from Toronto, Ontario on an Air Canada scheduled flight, which arrived late in Timmins. As a result, Air Creebec delayed the departure of Mr. Duda’s flight.

[5] When Mr. Duda checked in for the Air Creebec flight, the carrier required him to pay $111.29, in the name of excess baggage, for being late. Air Creebec alleges that the charge was a condition of the charterer who contracted the flight.

[6] On June 21, 2018, the Agency issued Decision No. LET-C-A-42-2018 requiring Air Creebec to file relevant portions of its charter agreement, and any other documentation that it has with the charterer that contains the specific term and condition to impose charges for late-arriving passengers in the name of “excess baggage”. Between June 26 and July 3, 2018, Air Creebec filed submissions in response to the Decision.

THE LAW

[7] Subsection 67(3) of the CTA states that the holder of a domestic license shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

[8] Section 67.1 of the CTA states that if, on complaint in writing to the Agency by any person, the Agency finds that, contrary to subsection 67(3), the holder of a domestic license has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

  1. apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;
  2. compensate any person adversely affected for any expenses they incurred as a result of the licensee's failure to apply a fare, rate, charge or term or condition of carriage that was set out in its tariffs; and
  3. take any appropriate corrective measures.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Mr. Duda’s position

[9] Mr. Duda submits that on January 3, 2018, the Air Canada flight on which he was travelling from Toronto to Timmins, Flight No. 8287, arrived late in Timmins. He states that the group leader who chartered the Air Creebec flight delayed its departure until he and four other passengers arrived.

[10] Mr. Duda states that upon check in, he was advised by Air Creebec that, because he was late, he would have to pay an excess baggage charge for his baggage, despite it weighing less than 23 kg. Mr. Duda also states that Air Creebec told him that if he did not pay the charge, he would not be allowed to travel. Mr. Duda submits that, under the circumstances, he had no choice but to pay the $111.29.

[11] Mr. Duda claims that he was not treated the same as other passengers on the flight, and argues that there is no such requirement to pay an additional charge if your flight is delayed.

Air Creebec’s position

[12] Air Creebec submits that, given that the flight was a charter flight, the charterer’s rules apply, which were to charge all late passengers excess baggage fees as they were the cause for the late departure and the flight was full. When the Agency required Air Creebec, in Decision No. LET‑C‑A-42-2018, to submit documentation of said rules, Air Creebec responded that its charter tariff manual does not contain any provisions related to excess baggage, and that a verbal agreement existed between it and the charterer regarding the collection of an excess baggage charge for late‑arriving passengers.

[13] In support of its position, Air Creebec submitted an e-mail from Eva Metatawabin, a member of the ground staff in Timmins, explaining that she informed the group’s organizer (charterer) that the flight was close to the maximum weight capacity for the baggage, and asked whether the charterer wanted to close the check in and charge any remaining late passengers for the carriage of their baggage. Ms. Metatawabin adds that the charterer agreed to this course of action.

[14] Air Creebec argues that because the charterer made the decision to impose an excess baggage charge on late-arriving passengers, the complaint should be against the charterer and not Air Creebec.

Findings of fact

[15] The facts in this case are uncontroverted. Air Creebec is the holder of a domestic license and operated a domestic service between Timmins and Attawapiskat. Mr. Duda, a passenger on a flight that is part of this service, was late for the flight and, as a result, he was charged a $111.29 “excess baggage” charge.

ANALYSIS AND DETERMINATIONS

[16] The onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its tariff.

[17] With respect to Air Creebec’s claim that it is not responsible for this matter, the Agency notes that while there is no direct contractual relationship between a charter air carrier and its passengers, in this case between Air Creebec and Mr. Duda, passengers are still protected by the terms and conditions of carriage set out in the carrier’s tariff. This principle was established in Agency Decision No. 100-A-2016 (NewLeaf Travel Company Inc. – Determination by the Canadian Transportation Agency as to whether resellers operate air services and should therefore be required to hold an air licence):

[38] In weighing the relevance of the licensing provisions’ consumer protection purposes to the question of whether those provisions should be interpreted as covering resellers, it is important to note that when passengers buy tickets through a reseller that is not required to hold an air licence, they will still be covered by the terms and conditions of the tariff issued by the chartered air carrier operating the aircraft on which those passengers travel.

[18] This determination was upheld by the Federal Court of Appeal in Lukács v. Canada (Transportation Agency), 2016 FCA 314:

[8] I also reject the appellant’s argument that because of the absence of any contractual relationship between the licensee and the passengers, the licensee in a reselling arrangement owes no obligations to the passengers. As the Agency found, passengers will still be covered, and so protected, by the terms and conditions of carriage set out in the tariff issued by the licenced air carrier operating the aircraft on which the passengers travel. Further, the licenced air carrier will be required to hold the prescribed liability insurance. Put more broadly, licenced air carriers are regulated under the Act when they provide an air service. The involvement of a reseller does not obviate the requirement that licensees comply with all of the obligations imposed upon them under the Act.

[19] Subsection 67(3) of the CTA, in part, prohibits the holder of a domestic licence from applying a charge that is not set out in its tariff. The Agency has reviewed the evidence and finds that Air Creebec’s Charter Tariff does not address charges for late check in or excess baggage, nor has the carrier made any arguments that it respected its Charter Tariff. Accordingly, the Agency finds that by collecting $111.29 from Mr. Duda, in the name of an excess baggage charge, Air Creebec applied a charge that is not set out in its Charter Tariff, thereby contravening subsection 67(3) of the CTA.

[20] Section 67.1 of the CTA provides, in part, that if the Agency finds that the holder of a domestic licence applies a charge that is not set out in its tariff, the Agency may order the licensee to compensate any person adversely affected for any expenses they incurred as a result of the licensee’s failure to apply their tariff, and may take any appropriate corrective measures. The Agency finds that it is appropriate to require that Air Creebec reimburse Mr. Duda the “excess baggage” charge in this case.

ORDER

[21] In light of the foregoing, pursuant to section 67.1 of the CTA, the Agency orders Air Creebec to reimburse Mr. Duda the amount of $111.29. Air Creebec is to pay this amount as soon as possible and no later than November 2, 2018.

Member(s)

Elizabeth C. Barker
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