Decision No. 90-C-A-2017

September 15, 2017

APPLICATION by Lise Boily against Air Canada also carrying on business as Air Canada rouge (Air Canada).

Case number: 
17-02987

SUMMARY

[1] Lise Boily filed an application with the Canadian Transportation Agency (Agency) against Air Canada concerning its refusal to transport her from Ottawa, Ontario, Canada, to Paris, France, via Montréal, Quebec, Canada, on February 18, 2017.

[2] Ms. Boily is requesting a total reimbursement of $2,079, which includes $1,579 to cover the cost of purchasing a second ticket to travel on February 19, 2017, and $500 to cover the cost of a passport delivered with the express service.

[3] The Agency will consider the following issues:

  1. Did Air Canada properly apply the terms and conditions set out in Rule 65 of its International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Tariff), which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), with regard to liability of carriers respecting travel documents, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
  2. If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Ms. Boily?

[4] For the reasons set out below, the Agency finds that Air Canada properly applied the conditions set out in Rule 65 of its Tariff.

BACKGROUND

[5] On December 1, 2016, Ms. Boily reserved a ticket in business class to travel between Ottawa and Paris, with a connection in Montréal, with the outbound flight scheduled for February 18, 2017. Ms. Boily went through the pre-check-in formalities 72 hours prior to her departure, providing her passport number and expiry date. On the day of the flight, she completed the check-in formalities.

[6] Once at the Air Canada check-in counter, Ms. Boily was not allowed to board because of her passport’s expiry date.

[7] Ms. Boily travelled on February 19, 2017, and arrived in Paris at 8:45 a.m. on February 20. She states that because of Air Canada’s refusal to transport her on the February 18 flight, she arrived late for her conference on February 20, 2017.

THE LAW

[8] Subsection 110(4) of the ATR states that:

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.

[9] Section 113.1 of the ATR states that:

If an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may direct it 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.

[10] Rule 65 of Air Canada’s tariff provides, in part, as follows:

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.

[…]

POSITIONS OF THE PARTIES

Position of Ms. Boily

[11] Ms. Boily states that, although Air Canada noted her passport’s expiry date, it did not inform her that she could not travel on February 18, 2017, either during the security check or during pre-check in. Ms. Boily wonders why the carrier required this documentation if [translation] “it serves no purpose.”

[12] Ms. Boily states that it is Air Canada’s responsibility to inform its passengers of any default in complying with the necessary travel documents. Ms. Boily believes that this responsibility is even greater towards business class passengers, to whom Air Canada must provide [translation] “special, personalized and attentive” treatment. For comparison purposes, Ms. Boily points out that private travel companies conduct such checks for passengers and inform them of any situations of non-compliance.

Position of Air Canada

[13] Air Canada states that when Ms. Boily arrived for her flight on February 18, 2017, Air Canada had to refuse her boarding because her passport was to expire on April 17, 2017, i.e. less than three months following her trip. Air Canada states that its decision is based on the information contained in the Travel Information Manual (TIM), a database maintained by the International Air Transport Association (IATA) that indicates that Canadian citizens leaving Canada for France must hold a passport that is valid for three months following their trip.

[14] Air Canada adds that the requirements for entering various countries can change quickly and for that reason travel documents are checked only at the time of travel, based on the passenger’s nationality, the point of departure and the ultimate destination of the flight, all the stopovers, as well as the purpose of the trip.

[15] Air Canada refers to its Tariff, which states that it is the travellers’ responsibility to ensure that they have the necessary travel documents. Air Canada adds that the Tariff also sets out that the carrier cannot be held responsible for damages resulting from the absence of appropriate travel documents.

[16] Air Canada explains that at the time of boarding, its agents check passengers’ travel documents to ensure that they comply with the entry requirements of the countries in question but that the sole purpose of this measure is to avoid any fine likely to be imposed on Air Canada.

ANALYSIS AND DETERMINATIONS

[17] In accordance with a well-established principle on which the Agency relies when it reviews 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.

[18] The parties are not contesting the fact that the expiry date of Ms. Boily’s passport did not comply with France’s entry requirements.

[19] The Agency has already agreed, in Decision No. 212-C-A-2015 (Sivilotti v. Air Transat), that carriers should be authorized to use various sources of information to help them determine what the various countries might require for entry. With respect to the fact that Air Canada relies on the TIM to determine the entry requirements of various foreign countries, the Agency, in Decision No. 178-C-A-2008 (Reeves v. Air Canada), stated the following:

The evidence indicates that Air Canada relied on the TIM, a source widely recognized in the air transport industry for providing reliable information relating to entry requirements for countries throughout the world, to determine whether Mr. Reeves’ travel documents were in order. The Agency finds that it is appropriate and reasonable for Air Canada to use the TIM to determine entry requirements.

The provisions of the TIM are derived from the national immigration requirements of the various states and jurisdictions listed in it. They are, in effect, a summary of national laws, regulations and policies. In interpreting these provisions, it is reasonable for an air carrier to apply a plain meaning approach to the text, just as courts can, and do, when interpreting statutes and regulations.

[20] In light of the foregoing, the Agency finds that it was legitimate for Air Canada to refer to the TIM to determine the entry requirements for France, and that the carrier’s refusal to transport Ms. Boily was appropriate given the information provided in the TIM.

[21] Under Rule 65(B)(1) of Air Canada’s Tariff, each passenger who wish to travel across any international boundary is responsible for obtaining all necessary travel documents and for complying with all travel requirements of the country in question. This same rule sets out that the carrier can refuse to transport passengers who do not have the necessary documents. As Ms. Boily did not have the necessary documents for her flight to France, Air Canada properly applied the conditions set out in its Tariff in this respect.

[22] The Agency also finds that it is not the carrier’s responsibility to inform each passenger of the applicable immigration requirements of the various states and jurisdictions, as well as the validity of the necessary travel documents. As Air Canada pointed out, these requirements change frequently and are subject to a number of factors (e.g., the passenger’s nationality, the duration of stay, the purpose of travel). It would be unreasonable to impose this responsibility on carriers for each of its passengers.

[23] The Agency therefore concludes that Ms. Boily failed to demonstrate that Air Canada did not properly apply the conditions set out in its Tariff.

CONCLUSION

[24] Based on the above, the Agency dismisses Ms. Boily’s application.

Member(s)

P. Paul Fitzgerald
Date modified: