Decision No. 59-C-A-2017

March 24, 2017
APPLICATION by Boniface Nimbona against Air Canada.
Case number: 
16-05105

SUMMARY

[1] Boniface Nimbona filed an application with the Canadian Transportation Agency (Agency) against Air Canada concerning its refusal to transport him between Zurich, Switzerland and Brussels, Belgium, on a flight between Montréal, Quebec, Canada and Entebbe, Uganda.

[2] The Agency will address the following issue:

Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 458 (International Tariff) when it refused to transport Mr. Nimbona?

[3] For the reasons set out below, the Agency dismisses Mr. Nimbona’s application.

BACKGROUND

[4] Mr. Nimbona purchased a ticket from Air Canada for a round trip between Montréal and Entebbe. The outbound flight was scheduled for January 19, 2016, and the return flight was scheduled for February 4, 2016.The trip itinerary was as follows:

  • Air Canada: between Montréal and Zurich;
  • Brussels Airlines: between Zurich and Brussels;
  • Brussels Airlines: between Brussels and Entebbe;
  • Brussels Airlines: between Entebbe and Brussels;
  • ASL Airlines France: between Brussels and Charles de Gaulle Airport, France;
  • Air Canada: between Charles de Gaulle Airport and Montréal.

[5] At the time of check in for the January 19, 2016 flight, Mr. Nimbona was redirected from the Air Canada check‑in counter to that of Swiss International Air Lines Ltd. carrying on business as Swiss (Swiss), the operating carrier. The check-in agent told Mr. Nimbona that he had to hold a Schengen visa as well as his Burundian passport to take the connecting flight between Zurich and Brussels. The agent also informed him that even if he held a Canadian permanent resident card, he had to hold a stay document, as the permanent resident card did not constitute a stay document.

[6] Consequently, Mr. Nimbona had to purchase additional tickets to travel.

THE LAW

[7] The tariff provisions related to this matter are set out in the Appendix.

QUESTION: DID AIR CANADA PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS INTERNATIONAL TARIFF WHEN IT REFUSED TO TRANSPORT MR. NIMBONA?

Mr. Nimbona’s position

[8] Mr. Nimbona submits that as it was impossible for him to exchange his ticket with Air Canada for a ticket for another flight that was not transiting through the Schengen Area, he had to purchase a new ticket for a flight departing on January 20, 2016.

[9] Mr. Nimbona states that when he arrived at the airport on January 20, 2016, he could not find his passport and consequently, he was unable to travel and had to purchase a new ticket for a flight departing on January 22, 2016.

[10] Mr. Nimbona submits that he understands that he is responsible for ensuring that he has the necessary travel documents.

[11] Mr. Nimbona states out that upon his return, he complained verbally to Swiss Air. The agent to whom he spoke repeated to him that he had to hold a visa or a stay document and that the permanent resident card was not considered a stay document. Mr. Nimbona adds that he then filed a written complaint with Swiss Air, and that the latter replied that in his case, he had to hold an airport transit visa to take a connecting flight in Zurich. Mr. Nimbona refers to a document from the Swiss Confederation, Federal Department of Justice and Police (FDJP), State Secretariat for Migration (SSM), Immigration and Integration Directorate section, Entry Division, entitled Liste 2: Prescriptions en matière de documents de voyage et de visas - Dispositions particulières indépendantes de la nationalité (version dated July 17, 2015), which states that the permanent resident card constitutes a stay document for Canada. According to Mr. Nimbona, as per this document, he belongs to the category that does not require an airport transit visa for Zurich as he holds a Canadian permanent resident card.

[12] Mr. Nimbona considers that Air Canada did not prove that an airport visa was necessary or that Mr. Nimbona could not take a connecting flight in Switzerland without leaving an international zone.

[13] Mr. Nimbona submits that Air Canada refused him boarding without a valid reason and made no effort to remedy the situation. He believes that he was subjected to systemic discrimination because he was travelling with a Burundian passport and his Canadian permanent resident card had no value.

[14] Mr. Nimbona requests a refund of $10,870 to cover the expenses incurred (including the cost of purchasing additional tickets) as well as moral compensation for the resulting inconvenience and stress and for the loss of three days’ vacation.

Air Canada’s position

[15] Air Canada states that as Mr. Nimbona’s ticket bore Flight Number AC6820, the rules of Air Canada’s International Tariff apply in this case.

[16] Air Canada submits that the decision to refuse to transport Mr. Nimbona was in compliance with its Tariff Rules 65 and 75. In accordance with Rule 65, every passenger shall comply with the administrative requirements to travel or transit through any country included in their itinerary. If a passenger fails to comply with these requirements, the airline reserves the right to refuse to transport the passenger.

[17] In support of its arguments, Air Canada refers to the terms and conditions of carriage of Swiss, specifically sections 7.1 - Right to refuse carriage and 13 - Administrative formalities.

[18] Air Canada refers to documents published by the International Air Transport Association (IATA) in the Travel Information Manual (TIM). The TIM documents provide information on requirements related to passports and visas for travellers transiting through the Schengen Area, i.e., the departure and arrival points, the passenger’s citizenship and the objective of the trip. According to Air Canada, a Schengen visa or a stay document issued by a country that is signatory to the Schengen Convention is required to take a connecting from Zurich to Brussels.

[19] Air Canada is of the opinion that it is not possible for a passenger arriving in a Schengen country, such as Switzerland, from a non-Schengen country, such as Canada, and departing again to a Schengen country, to transit without a visa. Passengers must comply with the Schengen Area entry requirements. Air Canada adds that Burundian citizens must hold a visa or a stay document to enter the Schengen Area. As Canada is not a Schengen Area member country, Mr. Nimbona had to hold a visa to enter the Schengen Area.

[20] In support of its arguments, Air Canada refers to Decision No. 212-C-A-2015 and Decision No. 307‑C‑A‑2009, which deal with the use of the TIM and the information contained therein.

[21] Air Canada submits that its decision to refuse to transport Mr. Nimbona on January 19, 2016 was justified because he did not hold a visa, and again on January 20, 2016, because he did not hold a passport.

[22] With respect to purchasing an additional ticket on January 19, 2016 to travel on January 20, Air Canada submits that Mr. Nimbona exchanged his ticket for a ticket on another flight that was not transiting through the Schengen Area. With respect to the trip on January 20, as he had forgotten his passport, Mr. Nimbona exchanged his ticket for a second time for a ticket for a flight departing on January 22, 2016. Air Canada maintains that Mr. Nimbona did not purchase new tickets, but instead exchanged them and paid the difference in the fare and applicable costs.

[23] According to Air Canada, Mr. Nimbona did not used flight coupons for his return trip. Mr. Nimbona’s ticket was refundable under Rule 100(E) of Air Canada’s International Tariff, which states:

When any ticket coupons have been used, the amount of the refund will be the difference, if any, between the fare, taxes, fees, charges and surcharges paid and the fare, taxes, fees, charges and surcharges applicable for transportation used, less any applicable cancellations/change fee or penalty, as set out in the applicable fare.

[24] Air Canada states that as only the flight coupons for travel between Montréal and Entebbe were used, Mr. Nimbona would only be entitled to a refund if the value of this trip was less than the value of the return trip between Montréal and Entebbe, available on that date, in addition to applicable cancellation fees.

[25] Air Canada also states that the least expensive ticket for a round trip between Montréal and Entebbe on January 22, 2016 cost $1,100. The unused portion therefore had a value of $550. The least expensive ticket for a one‑way trip between Montréal and Entebbe cost $1,997. Air Canada is therefore of the opinion that Mr. Nimbona was not entitled to a refund for the unused flight coupons. It adds that the only refund to which he would be entitled is an amount representing the taxes associated to the unused flight coupons, that is, $353.03, which Air Canada undertakes to pay to Mr. Nimbona.

[26] Finally, Air Canada submits that Rules 65 and 75 of its International Tariff have been properly applied in both cases of refusal to transport Mr. Nimbona, as well as with respect to the request for total refund of the tickets. Air Canada is requesting that the Agency dismiss the application.

Analysis and Findings

[27] In accordance with a well-established principle on which the Agency relies when considering such applications, 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.

[28] Mr. Nimbona admits that he is responsible for ensuring that he has the necessary travel documents. However, Mr. Nimbona considers that his Burundian passport and his Canadian permanent resident card were sufficient and that he did not need an airport transit visa to travel to Zurich.

[29] Mr. Nimbona provided a document from the Swiss Confederation that describes certain exceptions to the requirements related to airport transit visa, but these exceptions do not apply to persons who hold a Burundian passport. The Agency notes that none of the documentation submitted by Mr. Nimbona contradicts Air Canada’s position, which relies on the information contained in the TIM. The validity of this information has already been recognized by the Agency in Decision No. 307-C-A-2009 and 212-C-A-2015">Decision No. 212-C-A-2015.

[30] In light of the foregoing, the Agency is of the opinion that it was legitimate for Air Canada to refuse to transport Mr. Nimbona on January 19, 2016 because he did not hold the required documents to take a connecting flight from Zurich to Brussels, as specified in the TIM. In this respect, the Agency stated in Decision No. 178-C-A-2008 that the TIM is a document recognized in the air transportation industry as being a reliable source of information with respect to the requirements for entry into various countries and that it is reasonable for a carrier to use the TIM to establish requirements for entry into various countries.

[31] The Agency therefore concludes that Mr. Nimbona has failed to demonstrate that Air Canada did not properly apply its International Tariff.

[32] The Agency notes that Air Canada undertook to reimburse to Mr. Nimbona an amount of $353.03, which represents the taxes associated with the unused coupons for his flight.

Conclusion

[33] The Agency dismisses Mr. Nimbona’s application.


APPENDIX

Air Canada international tariff

Rule : 75

Refusal to transport – Removal of passenger

Carrier will refuse to transport, or will remove any passenger at any point for any of the following reasons:

[…]

D. IMMIGRATION, ADMINISTRATIVE OR OTHER REQUIREMENTS

When the passenger is to travel across any international boundary, if:

    1. The travel documents of such passenger is not in order;
    2. For any reason, such passenger embarkation from, transit through, or entry into any country from, through, or to which such passenger desires transportation would be unlawful;
    3. Passenger fails to comply with the requirements of Rule (Administrative Formalities)
    4. Such passenger fails or refuses to comply with the rules and regulations of the carrier, including check-in or boarding time-limits

Rule : 65

Administrative Formalities – Passports, visas and tourist cards.

A. COMPLIANCE WITH REGULATIONS

The passenger shall comply with all laws, regulations, orders, demands, or travel requirements of countries to be flown from, into, or over, and with all rules, regulations, and instructions of carrier. Carrier shall not be liable for any aid or information given by any agent or employee of carrier to any passenger in connection with obtaining necessary documents or complying with such laws, regulations, orders, demands, requirements, or instructions, whether given orally, in writing, or otherwise, or for the consequences to any passenger resulting from his failure to obtain such documents or to comply with such laws, regulations, orders, demands, requirements, or instructions.

B. PASSPORTS AND VISAS

  1. Each passenger desiring transportation across any international boundary will be responsible for obtaining all necessary travel documents and for complying with all government travel requirements. The passenger must present all exit, entry and other documents required by the laws, and unless applicable laws provide otherwise, shall indemnify the carrier for any loss, damage, or expense suffered or incurred by such carrier by reason of such passenger’s failure to do so. Carrier is not liable to the passenger for loss or expense due to the passenger’s failure to comply with this provision. Carrier reserves the right to refuse carriage to any passenger who has not complied with applicable laws, regulations, orders, demands or requirements or whose documents are not complete. No carrier shall be liable for any aid or information given by any agent or employee of such carrier to any passenger in connection with obtaining such documents or complying with such laws, whether given orally in writing or otherwise. In addition, carrier reserves the right to hold, photocopy or otherwise image reproduce a travel document presented by any passenger and accepted as a condition of boarding.

[…]

D. GOVERNMENT REGULATION

No liability shall attach to carrier if carrier in good faith determines that what it understands to be applicable law, government regulation, demand, order or requirement, requires that it refuse and it does refuse to carry a passenger.

Member(s)

Sam Barone
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