Decision No. 601-C-A-2002

November 6, 2002

November 6, 2002

IN THE MATTER of a complaint by Shan Chaudhuri, on behalf of his parents, Asit Prakash Chaudhuri and Swapna Chaudhuri, with respect to the refusal by Aeroflot - Russian Airlines to honour Mr. and Mrs. Chaudhuri's tickets for travel from Toronto, Ontario, Canada to New Delhi, India, on September 12, 2000.

File No. M4370/A565/00-1


COMPLAINT

On September 13, 2000, Shan Chaudhuri filed with the Air Travel Complaints Commissioner (hereinafter the ATCC) the complaint set out in the title on behalf of his parents, Asit Prakash Chaudhuri and Swapna Chaudhuri (hereinafter the passengers).

On March 14, 2001, this complaint was referred to the Canadian Transportation Agency (hereinafter the Agency) as it raised a tariff issue that falls within the jurisdiction of the Agency.

By Decision No. LET-C-A-93-2002 dated March 28, 2002, the Agency asked Mr. Chaudhuri and Aeroflot - Russian Airlines (hereinafter Aeroflot) whether they would agree to have the comments that they filed before the ATCC considered as pleadings before the Agency, in order to avoid asking the parties to resubmit the same comments to the Agency. On April 10, 2002, Mr. Chaudhuri filed his agreement to the Agency's request. On April 15, 2002, Aeroflot filed a submission wherein it questioned the Agency's jurisdiction to investigate the complaint.

By Decision No. LET-C-A-127-2002 dated April 29, 2002, the Agency informed Mr. Chaudhuri of Aeroflot's submission and invited him to comment on it. On May 8, 2002, Mr. Chaudhuri filed his comments in this regard, and on May 21, 2002, Aeroflot responded to Mr. Chaudhuri's comments.

By Decision No. LET-C-A-164-2002 dated June 7, 2002, the Agency informed both parties that it had taken Aeroflot's jurisdictional question under reservation until such time as the pleadings on the merit of the complaint were completed, and Aeroflot was asked whether it agreed that the comments that were filed with the ATCC with respect to the complaint be considered as pleadings before the Agency. On June 11, 2002, Aeroflot advised that its letters of March 13, April 15 and May 21, 2002, be considered as its pleadings before the Agency.

PRELIMINARY MATTER

Although Aeroflot's submission of May 21, 2002 was filed after the prescribed deadline, the Agency, pursuant to section 6 of the National Transportation Agency General Rules, SOR/88-23, accepts this submission as being relevant and necessary to its consideration of this matter.

ISSUE

The issue to be addressed is whether Aeroflot, in conformity with subsections 110(4) and (5) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR), has abided by the terms and conditions contained in its international tariff.

FACTS

The passengers purchased round-trip tickets from Aeroflot to travel from New Delhi to Toronto on May 9, 2000. These tickets were purchased in New Delhi on April 28, 2000, and were valid for a 4-month maximum stay, with a planned return from Toronto to New Delhi on September 9, 2000.

A computer reservation system print-out provided by Aeroflot indicates reconfirmed reservations for the passengers on Aeroflot's Flight No. SU 538 on May 9, 2000 from New Delhi to Moscow, Russia, departing at 02:00 am, with a same day connection to Toronto, on Aeroflot's Flight No. SU 301; however, a computer reservation system print-out provided by Mr. Chaudhuri indicates reconfirmed reservations for travel on Aeroflot's Flight No. SU 538 from New Delhi to Moscow departing at 02:00 am, connecting to Aeroflot's Flight No. SU 301, from Moscow to Toronto, both on May 16, 2000. Moreover, the passengers' passports were stamped by the respective regulatory authorities, for exit from India on the night of May 15/16, 2000 and entry to Canada on May 16, 2000. Copies of these stamped passports pages were provided by Mr. Chauduri.

Further to Aeroflot's refusal to honour the passengers' tickets for travel on September 12, 2000, unless an upgrade in fare was paid, an invoice for the purchase of two one-way Emirate Airlines tickets for travel from Toronto to New Delhi at the cost of $850 CAD each (a total of $1,700 CAD) was provided by Mr. Chaudhuri. This invoice is dated September 13, 2000.

POSITIONS OF THE PARTIES

Mr. Chaudhuri states that the passengers purchased two round-trip tickets, valid for a 4-month maximum stay, and were scheduled to depart New Delhi on May 9, 2000. Mr. Chaudhuri contends that when the passengers checked-in for their confirmed May 9, 2000 flight, Aeroflot told them that they "could not travel" on these flights as seats were not available. Mr. Chaudhuri maintains that Aeroflot then rescheduled the passengers' departure, from New Delhi, for May 16, 2000 at 02:00 a.m.

Mr. Chaudhuri further maintains that when the passengers checked-in for travel in the early morning of May 16, 2000, Aeroflot did not reissue their May 9, 2000 tickets to show the May 16, 2000 amended flights, but provided the passengers with a computer print-out of their May 16, 2000 itinerary.

Mr. Chaudhuri contends that as the passengers left India on May 16, 2000 and held tickets for a 4-month maximum stay, they assumed that they could remain in Canada until September 16, 2000; however, when they presented themselves in Toronto for their return flight to New Delhi on September 12, 2000, Aeroflot representatives advised them that their tickets were no longer valid.

Mr. Chaudhuri submits that he tried to explain to the Aeroflot representatives that the passengers had left New Delhi on May 16, 2000, as confirmed by their stamped passports, and that they had 4-month maximum stay tickets, which should have enabled them to travel on September 12, 2000. However, he maintains that, despite his repeated efforts on behalf of the passengers, Aeroflot would not allow the passengers to travel on September 12, 2000, unless they each paid $1,200 CAD to upgrade their fare.

Mr. Chaudhuri claims that the passengers decided to purchase new cheaper one-way tickets on another carrier, for a lesser price ($850 CAD for each ticket or $1,700 CAD for both). He is requesting a reimbursement for the cost for these tickets.

Aeroflot states that it refused to honour the passengers' expired tickets on September 9, 2000, as the passengers were in possession of "EE4M" fare type, 4-month maximum stay tickets, and as they departed New Delhi on May 9, 2000 (the date clearly shown on their tickets), return to New Delhi was not valid after September 9, 2000 (4 months from May 9, 2000). In this regard, Aeroflot contends that it did offer the passengers the opportunity to travel on September 12, 2000 provided that they pay for more costly 6-month maximum stay tickets; however, the passengers refused this option.

With respect to the evidence that the passengers travelled from New Delhi after May 9, 2000, Aeroflot states that the tickets and computer reservation print-outs confirm a May 9, 2000 departure; however, the passenger flight manifest cannot be provided as these are not kept beyond three days. Aeroflot also states that boarding passes, rebooking stickers validated by a carrier, or reissued tickets would have been acceptable proof of travel at a later date; however, these were not provided by the passengers.

With respect to the evidence of a stamped entry into Canada on May 16, 2000 as proof of a May 16, 2000 departure from New Delhi, Aeroflot maintains that upon consultation with Canadian Immigration officials, it was advised that this date does not confirm arrival in Canada on such a date.

Finally, Aeroflot submits that as the passengers are citizens and residents of India, the Government of India, not the Agency, should address this matter.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

Jurisdictional issue

As part of its answer to Agency Decision No. LET-C-A-93-2002, Aeroflot requested the Agency to review its jurisdiction to entertain Mr. Chaudhuri's complaint as the tickets were purchased in India, by Indian citizens residing in India.

In this regard, section 108 of the ATR, as set out in Part V, Division II, states that:

Subject to paragraph 135.3(1)(d), this Division [Division II] applies in respect of every air carrier that operates an international service except an air carrier that operates TPCs, TPNC or TGGs [emphasis added].

Subsection 55(1) of the CTA, defines"international service" as follows:

"International service" means an air service between Canada and a point in the territory of another country.

Finally, subsection 110(1) of the ATR provides that:

Except as provided in an international agreement, convention or arrangement respecting civil aviation, before commencing the operation of an international service, an air carrier or its agent shall file with the Agency a tariff for that service, including the terms and conditions of free and reduced rate transportation for that service, in the style, and containing the information, required by this Division [emphasis added].

In light of the above legislative provisions, once a tariff has been filed by either a foreign or a domestic carrier with respect to the international service it offers, the Agency may, pursuant to subsections 110(4) and (5) of the ATR, ensure that the carrier, whether foreign or domestic, applies only the tolls and the terms and conditions provided for in its tariff.

In the present case, not only was the air service provided by Aeroflot an international service within the meaning of the CTA, but Aeroflot's refusal to transport the passengers occurred in Toronto. In light of the foregoing, the Agency finds that it has the jurisdiction to determine whether, in refusing to transport the passengers, Aeroflot abided by the terms and conditions of carriage of its international tariff.

Application of the tariff

Subsections 110(4) and (5) of the ATR provide that a carrier must apply the tolls and terms and conditions of carriage specified in its tariff.

Subsection 55(1) of the CTA further defines a tariff as follows:

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

Aeroflot's terms and conditions applicable to the passengers' ticket, in particular the maximum stay provision, is set out in category 7, Rule 71CC, of the Participating Carriers' International Passenger Rules Atlantic (IPRA), published by the Airline Tariff Publishing Company.

The Agency notes that category 7, Rule 71CC, of the 4-month maximum stay "EE4M" type fare provides that:

Return travel from last stopover must commence no later than midnight 4 months after departure from fare origin [emphasis added].

In this regard, the Agency finds that although the passengers' tickets indicate a departure from New Delhi on May 9, 2000, departure from New Delhi actually occurred on May 16, 2000, as the passengers' passports were duly stamped by the respective Indian and Canadian authorities for exit from India and entry into Canada on that date. The Agency therefore finds that, pursuant to category 7, Rule 71CC, return travel from Toronto should have been permitted up to and including September 16, 2000.

In light of the foregoing, the Agency is of the opinion that, in refusing to carry the passengers on September 12, 2000, without an upgrade in fare, Aeroflot did not apply the terms and conditions of carriage provided for in its tariff in effect, contrary to subsection 110(4) of the ATR.

As such, the Agency is of the opinion that Aeroflot should reimburse Mr. Chaudhuri for his purchase of two Emirate Airlines tickets in the amount of $1,700 CAD.

CONCLUSION

On the basis of the evidence before it, the Agency finds that Aeroflot did not apply the terms and conditions of carriage specified in its international tariff and that, as such, has contravened subsection 110(4) of the ATR.

Accordingly, the Agency hereby orders that Aeroflot apply the terms and conditions of carriage set out in its international tariff.

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