Decision No. 60-C-A-2018

November 15, 2018

APPLICATION by Jeffrey Osborne and Mary Anne Parkinson (applicants) against WestJet.

Case number: 
18-03432

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against WestJet because they did not obtain the seats they had pre‑selected and paid for on their WestJet flight. They are also seeking compensation in the amount of CAN$200 per person and a change in WestJet’s Tariff regarding the terms and conditions for the pre-selection of seats.

[2] The Agency will address the following issues:

  1. Did WestJet properly apply the terms and conditions of carriage set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 518 (Tariff) relating to confirmation of reserved space, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR). If WestJet did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to the applicants?
  2. Are the terms and conditions of carriage set out in WestJet’s Tariff governing confirmation of reserved space just and reasonable as required by subsection 111(1) of the ATR? If not, should the Agency suspend or disallow that portion of WestJet’s Tariff and establish a substitute pursuant to section 113.1 of the ATR?

[3] For the reasons set out below, the Agency finds that WestJet properly applied the terms and conditions of carriage set out in its Tariff, and as such, the applicants are not entitled to any compensation. The Agency also finds that WestJet’s terms and conditions governing confirmation of reserved space are just and reasonable as required under subsection 111(1) of the ATR.

PRELIMINARY MATTER

[4] With respect to the $200 that each of the applicants are seeking in compensation for their discomfort during the flight caused by the seat change, the Agency has consistently held that it does not have the jurisdiction to order payment of compensation for things such as pain and suffering or loss of enjoyment, such as in Decision No. 55-C-A-2014, Decision No. 434‑C‑A‑2007, and Decision No. 361-C-A-2007.

BACKGROUND

[5] The applicants travelled with WestJet on March 5, 2018 from Phoenix, Arizona, United States of America, to Toronto, Ontario. The applicants had pre-purchased aisle seats at the front of the aircraft but when they arrived at the airport to check-in, they were advised they would be seated in non-aisle seats.

THE LAW

[6] Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage specified in its tariff.

[7] 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.

[8] Subsection 111(1) of the ATR provides that the terms and conditions of carriage contained in the tariff must be just and reasonable :

All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just and reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic.

[9] If the Agency finds that a tariff or portion of a tariff is unjust or unreasonable, the Agency may, pursuant to section 113 of the ATR:

  1. suspend any tariff or portion of a tariff that appears not to conform with subsections 110(3) to (5) or section 111 or 112, or disallow any tariff or portion of a tariff that does not conform with any of those provisions; and
  2. establish and substitute another tariff or portion thereof for any tariff or portion thereof disallowed under paragraph (a).

[10] Rule 70 of WestJet’s Tariff states:

[…] The Carrier does not guarantee any specific seat.

[11] Rule 70 (A) of WestJet’s Tariff states:

[…] Advance Seat selection is not guaranteed, and may be subject to change/cancellation based on operational requirements.

[12] Rule 70(C)(5) of WestJet’s Tariff states:

The carrier reserves the right to cancel or change the selected seat(s) on any segment(s) for which fees have paid, at any time, for any reason, without notice to any passengers affected thereby and, in connection therewith, the carrier shall not provide a refund, but may provide a credit to any passenger in respect of such cancellation or change.

[13] Rule 70(C)(6) of WestJet’s Tariff states:

Notwithstanding the above, the carrier reserves the right to accommodate the passenger with seating in a comparable seat, or the best seat available at the time, or to provide a non‑refundable credit or refund for the fees associated with the seat.

POSITIONS OF THE PARTIES

Applicants’ position

[14] The applicants state that they pre-purchased their seats for their WestJet flight but did not receive what they had paid for and what WestJet had committed to provide. The applicants state that as a result, their comfort level was significantly diminished during their six hour flight.

[15] The applicants argue that by pre-purchasing their seats with WestJet they entered into a legally binding contract that WestJet failed or refused to fulfill without a valid reason recognized by law, and that by negating this contract WestJet’s Tariff is therefore fundamentally unjust and unreasonable.

[16] The applicants contend that WestJet’s continual seat layout reconfiguring provides a decreasing amount of passenger space which is increasing the importance of pre-purchasing seats. Further, the applicants state that WestJet’s online booking site allows customers to confirm seats before completing their flight purchase and therefore seat selection can be an important determinate as to whether one chooses to book a ticket on a specific flight.

[17] The applicants argue that WestJet’s Tariff allows it to withdraw from the terms of the flight purchase contract without consequence and is clearly unreasonable.

[18] The applicants state that the seat change caused them significant discomfort and are each seeking $200 in compensation for the discomfort they suffered during their flight and are asking that the Tariff be revised to reflect WestJet’s contractual obligations.

WestJet’s position

[19] WestJet states that the applicants pre-purchased seats 12C and 12D and paid the applicable pre‑purchase seating fees.

[20] WestJet states that due to a system failure that failed to re-instate the applicants seats following a reconfiguration of the aircraft seating for their particular flight, the applicants did not receive their pre-purchased seats.

[21] WestJet indicates that, as per Rule 70 of its Tariff, seat assignments are not guaranteed.

[22] WestJet states that it complied with its Tariff obligations and fully refunded the seat fees back to the original form of payment applicable for that flight segment. In addition, to acknowledge the inconvenience of the service failure, WestJet deposited CAN$100 per passenger ($200 in total) into the applicants’ WestJet dollars account as a gesture of goodwill.

[23] WestJet states that it fully met the obligations set out in its Tariff and that it even went above and beyond by offering a goodwill gesture in the form of WestJet dollars to the applicants.

Applicants reply

[24] The applicants state that they identified the issue of not receiving their pre-purchased seats at the gate well in advance of the flight and that WestJet had every opportunity to reinstate the seats they had paid for or provide the applicants with comparable ones.

[25] The applicants argue that while WestJet dollars may be considered a goodwill gesture by WestJet, the fact that they expire and that they require incremental spending disqualifies them as compensation.

[26] Further, the applicants argue that the Tariff fully benefits WestJet and is to the detriment of the customer and therefore the Tariff needs to be revised.

ANALYSIS AND DETERMINATIONS

Did WestJet properly apply the terms and conditions of carriage set out in its Tariff as required by subsection 110(4) of the ATR when it did not provide the applicants with the seats they had pre-purchased? If WestJet did not properly apply its Tariff, what remedy, if any, is available to the applicants?

[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 the terms and conditions set out in its tariff.

[28] It is uncontested by WestJet that the applicants pre-purchased their seats but did not receive the seats that they had requested for their flight from Phoenix to Toronto.

[29] It is also uncontested that WestJet fully refunded the applicants’ seat fees and the applicants were provided with different seats for their flight.

[30] The Agency finds that WestJet properly applied the terms and conditions of carriage set out in its Tariff relating to confirmation of reserved space. As stated in Rules 70(A) and 70(C)(5) of WestJet’s Tariff, advanced seat selection is not guaranteed and the carrier reserves the right to cancel or change the selected seat at any time, for any reason. Although WestJet was not able to provide the applicants with the seats that they pre-purchased due to a system failure, in accordance with Rule 70(C)(6) of its Tariff, WestJet fully refunded the seat selection fees back to the applicants and provided them with different seats on their flight.

[31] The Agency notes that in addition to this refund, WestJet also deposited 100 WestJet dollars into the applicants’ respective WestJet dollars account to acknowledge the inconvenience of the service failure, thus exceeding the obligations set out in its Tariff.

[32] Given that the Agency found that WestJet applied the terms and conditions of carriage specified in its Tariff, the applicants are not entitled to any of the remedies that are available under section 113.1 of the ATR.

Are the terms and conditions set out in WestJet’s Tariff governing confirmation of reserved space just and reasonable as required by subsection 111(1) of the ATR? If not, should the Agency suspend or disallow that portion of WestJet’s Tariff and establish a substitute pursuant to section 113.1 of the ATR?

[33] The applicants argue that the pre-selection of seats for which they paid is a legally binding contract and that the tariff negates that contract by allowing the carrier to change the selected seats.

[34] Pursuant to subsection 55(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) a tariff is defined as meaning:

a schedule of fares, rates, charges and terms and conditions of carriage applicable to the provision of an air service and other incidental services.

[35] Airlines operating flights within, to or from Canada are required to create a tariff that sets out the terms and conditions of carriage. The tariff is the contract of carriage between the passenger and the airline. WestJet’s Tariff provide for the pre-selection of seats and also provide for the terms and conditions related to that matter. These provisions are part of the contract between the applicants and the carrier. That being said, this does not mean that the carrier is entitled to impose any type of terms and conditions in its tariff as they must be just and reasonable as required by subsection 111(1) of the ATR:

All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just and reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic.

[36] The Agency has stated in previous decisions, such as in Decision No. 249-C-A-2012, that in order to determine whether a term or condition of carriage applied by an air carrier is “reasonable” within the meaning of subsection 111(1) of the ATR, a balance must be struck between the rights of passengers to be subject to reasonable terms and conditions of carriage, and the particular air carrier’s statutory, commercial, and operational obligations.

[37] Tariff Rule 70(A) states that advance seat selection is not guaranteed and may be changed or cancelled for operational requirements.

[38] Tariff Rule 70(C)(5) states that WestJet reserves the right to cancel or change selected seats for which a fee has been paid, at any time, and for any reason, without notice to passengers affected.

[39] In addition, Tariff Rule 70(C)(6) states that for passengers who have pre-purchased their seats and do not receive the seats they have paid for, WestJet must accommodate the passenger with seating in a comparable seat, or the best seat available at the time, or provide a non-refundable credit or refund for the fees associated with the seat selection.

[40] Taken together, these tariff provisions allow for WestJet to reconfigure or replace aircraft on a particular flight, which may be required for various operational reasons, resulting in a change in the total number of seats on an aircraft which may affect passengers pre-purchased seat assignment, while nonetheless creating obligations with respect to reseating of affected passengers or provision of credits or a refund.

[41] As in the instance forming the substance of this complaint, the change of pre-selected seats resulted in seating in different seats and the payment of a refund of the fee originally paid for the selected seats plus a further granting of reward credits beyond the options specified in the Tariff.

[42] The Agency therefore finds that a proper balance exists between the operational and commercial interests of WestJet and that of its customers, and that WestJet’s portion of its Tariff related to the “Confirmation of reserved space” under section 70 falls within the description of a tariff that is just and reasonable within the meaning of subsection 111(1) of the ATR.

CONCLUSION

[43] The Agency dismisses the application.

Member(s)

J. Mark MacKeigan
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