Decision No. 65-C-A-2018
APPLICATION by Ammar Khabbaz against Qatar Airways (Q.C.S.C.) [Qatar].
 Mr. Khabbaz filed an application with the Canadian Transportation Agency (Agency) against Qatar, regarding a delay and subsequent cancellation of the return portion of his round-trip ticket from Montréal, Quebec, to Beirut, Lebanon, via Doha, Qatar.
 Mr. Khabbaz is seeking a refund from Qatar in the amount of CAN$6,778.75 for the replacement ticket that he purchased to return to Montréal.
 The Agency will address the following issue:
Did Qatar properly apply the terms and conditions set out in Rule 85(B)(1) of its International Passenger Rules and Fares Tariff, NTA(A) No. 524 (Tariff) relating to schedule changes, flight delays and cancellation, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR).
 For the reasons set out below, the Agency finds that Qatar properly applied the terms and conditions set out in Rule 85(B)(1) of its Tariff. Nevertheless, Mr. Khabbaz is entitled to a refund of the unused portion of his original ticket. Therefore, the Agency orders Qatar to provide Mr. Khabbaz with a refund of CAN$1,175.42 for the unused portion of his original ticket. Qatar is to pay this amount to Mr. Khabbaz as soon as possible and no later than February 1, 2019.
 Mr. Khabbaz purchased a non-refundable round-trip ticket to travel with Qatar from Montréal to Beirut, via Doha. The return portion of Mr. Khabbaz’ itinerary included travel from Beirut to Doha on Flight No. QR419 departing at 1:35 a.m. on April 8, 2018, and then from Doha to Montréal on Flight No. QR763, departing at 8:20 a.m. that same morning.
 On April 8, 2018, Flight No. QR419 was initially delayed, then cancelled, as a result of a technical issue with the landing gear. Frustrated by the delay and unsure of when he would be able to travel, Mr. Khabbaz requested that his luggage be retrieved in order for him to find another flight to Montréal that morning. Mr. Khabbaz received his luggage and purchased a business-class ticket on a British Airways flight departing at 8:00 a.m. that morning. Mr. Khabbaz indicates that he was not aware that Qatar had reprotected him on an alternate flight later that evening.
 Subsection 110(4) of the ATR requires that an air carrier operating an international service apply the terms and conditions of carriage set out in its tariff.
 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:
- take the corrective measures that the Agency considers appropriate; and
- 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.
 Rule 85 of Qatar’s Tariff states, in part that:
SCHEDULE CHANGES, FLIGHT DELAYS AND CANCELLATION
(A) Times and Schedules not Guaranteed
(1) QR undertakes to use its best efforts to carry the passenger and his baggage with reasonable dispatch. Times shown in the ticket, timetables or elsewhere are not guaranteed and do not form part of the contract of carriage and QR assumes no responsibility for making connections.
(B) Right to Cancel, Postpone, etc.
When circumstances so require, QR may without notice cancel, terminate, divert, postpone, or delay any flight, in which case, if QR is unable to provide previously confirmed space, or causes a passenger to miss a connecting flight on which he/she holds a reservation, QR with due consideration to the passenger’s reasonable interest shall:
- Carry the passenger on another of its scheduled flights on which space is available; or
- Reroute the passenger to the destination indicated on the ticket or applicable portion thereof by its own scheduled services or the scheduled services of another carrier, or by means of surface transportation. If the fare, excess baggage charges and any applicable service charge for the revised routing are higher than the refund value of the ticket or applicable portion thereof as determined under Rule 90, no additional fare or charge shall be collected from the passenger. In the event the fare and charges for the revised routing are lower, a refund shall be made; or
- Make a refund in accordance with the provisions of Rule 90 and, except as above, QR shall not have any other liability to passenger.
 Rule 90 of Qatar’s Tariff states, in part that:
Following QR failure to provide carriage in accordance with the Conditions of Contract, or where passenger request a voluntary change of passenger arrangements, refund for an unused Ticket or portion thereof will be made by QR in accordance with this Rule or with QR’s Regulations.
(C) INVOLUNTARY REFUNDS
If QR cancels a flight, fails to operate a flight reasonably according to schedule, fails to stop at a point to which the Passenger is destined or ticketed to stopover, is unable to provide previously confirmed space or cause PASSENGER to miss a connecting flight on which PASSENGER hold a reservation, the amount of refund will be; if no portion of the Ticket has been used, the amount equal to the fare paid, if a portion of the Ticket has been used, the refund will be the higher of:
- The one way fare (less applicable discounts and charges) from point of interruption to destination or point of next Stopover, or
- The difference between the fare paid and the fare for the transportation used.
(D) VOLUNTARY REFUNDS
If PASSENGER wishes to have a refund of his/her Ticket for reasons other than those set out in Paragraph (C) it will be at our sole discretion to determine the refund, the amount of which:
- If no portion of the Ticket has been used, an amount equal to the fare paid, less any applicable service charges or cancellation fees’ or
- If a portion of the Ticket has been used, any refund will be an amount equal to the difference between the fare paid and the applicable fare for travel between the points for which the Ticket has been used, less any applicable service charges or cancellation fees.
POSITIONS OF THE PARTIES
Mr. Khabbaz’ position
 Mr. Khabbaz states that he arrived at the Beirut airport at approximately 9:00 p.m. on April 7, 2018, in order to check in for Flight No. QR419. Mr. Khabbaz states that boarding was scheduled to commence at 12:40 a.m., on April 8, 2018, but that it never occurred, and claims that Qatar initially lied to passengers about the status of the flight. Mr. Khabbaz contends that Qatar first indicated that the aircraft needed to be cleaned and then advised passengers that there was a problem with the aircraft’s “tire system”.
 According to Mr. Khabbaz, passengers began to panic when no further information was provided by Qatar. He argues that no official Qatar agents or representatives were present to answer any questions and that by 5:00 a.m., passengers were still not provided any information regarding the flight. Mr. Khabbaz states that Qatar communicated to passengers that there was a limited number of seats available on a flight to Doha later that evening, but that priority was being given to passengers travelling only to Doha, or those with a silver membership.
 Mr. Khabbaz also contends that there was an issue with retrieving his luggage, stating that by 3:00 a.m., he began requesting that his baggage be returned to him so that he could find another flight early that morning. Mr. Khabbaz submits that, after a long wait, he was able to reclaim his luggage and purchase a business-class ticket on a British Airways flight that was departing at 8:00 a.m. on April 8, 2018.
 Mr. Khabbaz states that without consulting him, Qatar automatically booked him on another flight, which would arrive in Montréal the next day. Mr. Khabbaz argues that Qatar did not “respect the timing” for finding him an alternate flight and did not inform him of the alternate flight. He states that he could have cancelled his newly purchased ticket by the time that he was made aware of the alternate flight arranged by Qatar.
 Qatar disputes Mr. Khabbaz’ statement that no information was provided to passengers before 5:00 a.m. It asserts that the aircraft was declared unserviceable by engineers at 3:00 a.m. and up until that time, multiple staff members were present to provide updates.
 Qatar states that the flight was first delayed, then cancelled, due to technical issues with the landing gear. Qatar submits that once the flight was cancelled, all other flights from Beirut to Doha were suspended for public sale so that it could begin reprotecting passengers. Qatar also states that Mr. Khabbaz should not have acted as his own travel agent because flights for sale on its website would not reflect the accurate number of available seats. Furthermore, Qatar contends that Mr. Khabbaz was advised of the reprotection process and was informed that his ticket was being rebooked. Qatar states that Mr. Khabbaz refused the option that it provided him.
 Qatar also states that the facts do not support a finding that it failed to properly apply its Tariff. It contends that it accommodated Mr. Khabbaz with a new itinerary at no cost to him. However, he voluntarily, and without consultation or authority from Qatar, chose to purchase a ticket with another air carrier at a cost higher than the ticket that he originally held. Qatar states that there is no Canadian law or filed tariff that states that an airline must refund new bookings voluntarily purchased by a passenger.
 Qatar indicates that if the Agency does find it liable, Mr. Khabbaz is not entitled to compensation for loss of salary or inconvenience, or to any sort of refund for the purchase of his British Airways ticket, and also indicates that a refund should be limited to the unused portion of his ticket in the amount of CAN$1,175.42.
ANALYSIS AND DETERMINATIONS
 The issue is whether Qatar properly applied the terms and conditions set out in its Tariff. Rule 85(B) of Qatar’s Tariff states that when circumstances so require, it may without notice cancel, terminate, divert, postpone, or delay any flight, and, in such cases, it will, with due consideration to the passenger’s reasonable interest, either:
- carry the passenger on another of its scheduled flights on which space is available; or
- reroute the passenger to the destination indicated on the ticket or applicable portion thereof by its own scheduled services or the scheduled services of another carrier, or by means of surface transportation; or
- make a refund in accordance with the provisions of Rule 90 of its Tariff.
 The evidence on record demonstrates that Qatar cancelled Flight No. QR419 and reprotected Mr. Khabbaz on an alternate flight later that evening. The submissions also establish that Mr. Khabbaz was aware that Qatar was in the process of reprotecting him on the later flight, but he purchased alternate transportation before he discussed his situation with a Qatar representative.
 Although the Agency appreciates the frustration that Mr. Khabbaz experienced because of the delay and uncertainty of his situation, the Agency finds that he chose, of his own free will, to book another return flight instead of waiting to speak with a representative who could have provided him with a chance to discuss his options, such as those outlined in Rules 85(B)(1), (B)(2), and (B)(3) of Qatar’s Tariff.
 Qatar’s Tariff does not require it to compensate a passenger for alternate flights booked at the passenger’s initiative, in lieu of an alternate flight made available by it. That said, Rules 85(B) and 90(D) of Qatar’s Tariff require that it refund the passenger for the unused portion of their ticket, instead of for the alternate flight, if the passenger chooses not to take the alternate flight. The Agency considers that Mr. Khabbaz, by his actions, has chosen to accept that option. Therefore, the Agency finds that Mr. Khabbaz is entitled to a refund of the unused portion of his original ticket.
 The Agency orders Qatar to provide Mr. Khabbaz with a refund of CAN$1,175.42 for the unused portion of his original ticket. Qatar is to pay this amount to Mr. Khabbaz as soon as possible and no later than February 1, 2019.