Decision No. 72-C-A-2017

May 2, 2017

APPLICATION by Natasha Nesturi against Alitalia – Società Aerea Italiana S.p.A. (Alitalia).

Case number: 
17-00174

SUMMARY

[1] Natasha Nesturi filed an application with the Canadian Transportation Agency (Agency) against Alitalia with respect to the additional collection in fare she had to pay for a change to the scheduled departure date of the return portion of the round-trip ticket that she purchased from Alitalia for travel from Tirana, Albania to Toronto, Ontario, Canada via Rome, Italy.

[2] Ms. Nesturi is seeking reimbursement in the amount of CAN$183.00 for the difference in fare that she had to pay in addition to a change penalty. Ms. Nesturi is also requesting that Alitalia change the layout and presentation of the fare rules in order for consumers to be aware of what they have to pay in the event that they have to change the date of their flight.

[3] The Agency will address the following issue:

Did Alitalia properly apply the terms and conditions set out in Rules 75(C)(1), 80(B)(2)(a) and (b) and 80(B)(3)(a) and (b) of its International Passenger Rules and Fares Tariff, NTA(A) No. 210 (Tariff) with regard to a date change of a flight requested by a passenger, and the applicable fare rules incorporated into the Tariff under Rule 5(A)(7) [applicable fare rules], as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Alitalia did not properly apply the terms and conditions set out in those Tariff Rules and the applicable fare rules, what remedy, if any, is available to Ms. Nesturi?

[4] For the reasons set out below, the Agency finds that Alitalia properly applied the terms and conditions set out in Rules 75(C)(1), 80(B)(2)(a) and (b) and 80(B)(3)(a) and (b) of its Tariff and the applicable fare rules. Therefore, the Agency dismisses Ms. Nesturi’s application.

BACKGROUND

[5] Elton Nesturi purchased for Ms. Nesturi, his mother, an economy class round-trip ticket for CAN$973.86 from Alitalia for travel departing on April 7, 2016 from Tirana to Toronto via Rome and returning on July 28, 2016. When Mr. Nesturi purchased the ticket online, he was prompted with a screenshot of the fare rules that state that a penalty of 120 euros would be charged in the event of a customer flight change. Mr. Nesturi made a voluntary change to extend his mother’s return date to August 9, 2016.

THE LAW

[6] The Tariff provisions and statutory extract relevant to this matter are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDINGS OF FACTS

Ms. Nesturi’s position

[7] Ms. Nesturi submits that when her son purchased her ticket from Alitalia, the fare rules clearly indicated that the penalty for customer changes to flight dates or for ticket cancellations was 120 euros. Ms. Nesturi states that when her son called to change the return date of her flight, he was told that she had to pay a difference in fare in addition to the penalty. Mr. Nesturi called twice to inquire about changing the flight date. He was first advised by a customer service agent that the cost would be CAN$246.00, and was then told that the cost would be CAN$183.00. Ms. Nesturi states that her son called Alitalia’s Customer Service to attempt to resolve the issue concerning the additional collection; however, he was unsuccessful in resolving it.

[8] Ms. Nesturi maintains that Alitalia needs to change its screenshot to state “read the fare rules” or that further fees apply, as the current one leaves the impression that only the 120-euro change fee applies.

[9] Ms. Nesturi submits that this is an unfair and non-transparent practice by Alitalia. She adds that Alitalia should make potential customers aware of the hidden change penalty prior to booking, and not after a purchase is made, when customers clearly have no choice but to pay the hidden penalty if they want to make any modifications to their itineraries. Ms. Nesturi is requesting that Alitalia change the web layout and presentation of its fare rules so that consumers can more clearly be aware of what they need to pay should they have to change their flight dates.

Alitalia’s position

[10] According to Alitalia, Mr. Nesturi had the opportunity during the booking process to view the fare rules using the links available and, as required, Mr. Nesturi checked the box agreeing to the fare rules and restrictions before completing the purchase.

[11] Alitalia states that on July 17, 2016, Mr. Nesturi called the Alitalia Contact Center to change Ms. Nesturi’s travel date and was advised that, in addition to the change fee of 120 euros, she would be charged a fare differential of 135 euros, equivalent to CAN$183.00. Alitalia submits that Mr. Nesturi agreed to make the payment and the ticket was re-issued.

[12] In response to Ms. Nesturi’s claim that only the change fee was disclosed on Alitalia’s website and on the e-ticket, Alitalia filed screenshots of booking pages from its website, and submits that they contain links to its full fare rules and restrictions and that these links are available on the booking pages and under the agreement box prior to purchase. According to Alitalia, guests cannot proceed to payment unless they have checked the web box confirming that they agree to all rules and restrictions. Alitalia also states that e-ticket receipts contain a disclosure that penalties apply (and display the penalty fee), and that a “fare integration” may occur if the original fare is no longer available. Alitalia filed Ms. Nesturi’s Passenger Name Record (PNR) which is notated with remarks that Mr. Nesturi agreed to make the payments before changing his mother’s date of travel.

Findings of facts

[13] Alitalia’s screenshots show the booking process that users must go through when making a reservation on its website. Specifically, before a purchase is finalized, the user is presented with the fare rules and must check the “accept” button on the screen to agree to the terms and conditions of the fare before the transaction is finalized and the ticket is issued.

[14] The history recorded in Ms. Nesturi’s PNR indicates that information was given to Mr. Nesturi concerning the penalty and additional fare collection for the date change he made on behalf of his mother when he contacted Alitalia. In addition, it is stated at the bottom of the e-ticket receipt that: “Penalties apply for each passenger and ticket. A fare integration may occur if the original fare is no longer available. Any change must be requested before the departure of the flight being changed.”

ANALYSIS AND DETERMINATIONS

[15] 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.

[16] Tariff Rule 5(A)(7) states that:

Except as otherwise provided below, fare rule provisions, local or joint fares, including arbitraries, contained in the On-line Tariff Database maintained by Airline Tariff Publishing Company, and on behalf of AZ […] all participating carriers in the Transatlantic and are considered to be part of this tariff. […]

[17] Tariff Rule 80(B)(3)(a) states, in part, that:

The fare and charges applicable as a result of any such change in routing, destination, or carrier shall be the fare and charges that would have been applicable if transportation had been purchased as of the date of commencement of carriage.

[18] Tariff Rule 80(B)(3)(b) states, in part, that:

Any difference between the fare and charges applicable under subparagraph (A) above, and the fare and charges paid by the passenger will be collected from the passenger by the carrier accomplishing the rerouting, who will also pay to the passenger any amounts due on account of refunds or arrange for the applicable refund by the carrier that issued the original ticket.

[19] The Agency notes that those Rules not only apply to Alitalia, but are equally applicable to eight other carriers that participate in the Tariff. Therefore, it is a common industry practice that if a passenger voluntarily changes a restricted economy ticket, they may be subject to a change penalty plus any difference in fare as the original fare may no longer be available or applicable with the new date of travel.

[20] Further, during the reservation process, Mr. Nesturi was given the opportunity to read the fare rules before accepting to purchase his mother’s ticket. The fare rules indicate that for changes made after departure (change is defined as a change in date, flight or routing modification), the fare must be recalculated using the applicable fare for the new origin/destination or the new routing. The Agency finds that by charging the additional collection fee to Ms. Nesturi, Alitalia properly applied its Tariff Rules and the applicable fare rules. In addition, Tariff Rule 5(A)(7) states that the fare rule provisions are considered to be part of the Tariff.

[21] Based on the above, the Agency finds that Ms. Nesturi has not established, on a balance of probabilities, that Alitalia failed to properly apply, or inconsistently applied, the terms and conditions of carriage set out in its Tariff.

[22] Accordingly, the Agency finds that Alitalia properly applied the terms and conditions set out in Rules 75(C)(1), 80(B)(2)(a) and (b) and 80(B)(3)(a) and (b) of its Tariff and the applicable fare rules, as required by subsection 110(4) of the ATR.

[23] The Agency therefore dismisses the application.


Appendix

Air Transportation Regulations, SOR/88-58, as amended

110(4) Where a tariff is filed containing the date of publication and the effective date and is consistent with these Regulations and any orders of the Agency, the tolls and terms and conditions of carriage in the tariff shall, unless they are rejected, disallowed or suspended by the Agency or unless they are replaced by a new tariff, take effect on the date stated in the tariff, and the air carrier shall on and after that date charge the tolls and apply the terms and conditions of carriage specified in the tariff.

Alitalia’s International Passenger Rules and Fares Tariff, NTA(A) No. 210

Rule 5(A)(7) – Application of Tariff

Except as otherwise provided below, fare rule provisions, local or joint fares, including arbitraries, contained in the On-line Tariff Database maintained by Airline Tariff Publishing Company, and on behalf of AZ […] all participating carriers in the Transatlantic and are considered to be part of this tariff. […]

Rule 75(C) – Voluntary Rerouting

In the event that voluntary rerouting or cancellation results in the reassessment of the fare:

(1) The fare will be reassessed in the currency of the country of commencement of transportation.

[…]

Rule 80(B) – Changes Requested By Passenger

[…]

(2) Method of Effecting Change

The change requested by the passenger shall be effected by:

  1. endorsement of such unused ticket, flight coupon(s), or exchange order to the new receiving carrier or
  2. reticketing of the passenger.

(3) Applicable Fare

(a) (Applicable to AZ, EI, FF, NZ, QF, SK, SN, and TZ only)

The fare and charges applicable as a result of any such change in routing, destination, or carrier shall be the fare and charges that would have been applicable if transportation had been purchased as of the date of commencement of carriage; provided that,

  1. additional passage at the through fare shall not be permitted unless request has been made prior to arrival at the destination named on the original ticket or Miscellaneous Charges Order, and
  2. after the carriage has commenced, a one way ticket shall not be converted into a round trip or circle trip ticket at the round trip or circle trip discount for any portion already flown; and
  3. after carriage has commenced a round trip ticket can be converted into a circle trip ticket, or vice versa provided that request is made prior to the passenger’s arrival at the destination named on the original ticket or Miscellaneous Charges Order.

(b) (Applicable to AZ, EI, FF, NZ, PH, QF, SK, SN and TZ only.) Any difference between the fare and charges applicable under subparagraph (A) above, and the fare and charges paid by the passenger will be collected from the passenger by the carrier accomplishing the rerouting, who will also pay to the passenger any amounts due on account of refunds or arrange for the applicable refund by the carrier that issued the original ticket. (See also Rule 60.)

Member(s)

P. Paul Fitzgerald
Date modified: