Decision No. 5-C-A-2018
APPLICATION by Laurence Charton and Jean-Pierre Le Solleu, on behalf of themselves and their minor children (applicants), against Air Canada carrying on business as Air Canada rouge and as Air Canada Cargo (Air Canada).
 The applicants filed an application with the Canadian Transportation Agency (Agency) against Air Canada. They state that Air Canada refused to change the date of their return trip from Varadero, Cuba to Montréal, Quebec, Canada, in contravention of the applicable tariff rules. In order to move up their return to Montréal, the applicants purchased tickets from Air Transat.
 The applicants are seeking reimbursement for Air Canada tickets (CAN$2,088.32) or Air Transat tickets (CAN$1,622.85), as well as compensation in the amount of CAN$200 per person (CAN$800) for the inconvenience resulting from non-compliance with the tariff rules.
 The Agency will consider the following issues:
- Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Tariff) with regard to changes, as required under subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
- If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to the applicants?
 For the reasons set out below, the Agency concludes that Air Canada properly applied the conditions set out in its Tariff when it refused to change the planned date of the return trip from Varadero to Montréal on December 31, 2016. Accordingly, the Agency dismisses the application.
 The applicants had a reservation for a round trip flight with Air Canada from Montréal to Varadero, with the departure scheduled for December 22, 2016, and the return for January 31, 2017.
 On December 31, 2016 around 10:30 a.m., the applicants presented themselves at the Varadero airport to ask Air Canada to change the date of their return flight for a flight on that same day or another day. The Air Canada representative at the airport indicated that he could not change the date of the return flight at the airport and that the applicants had to contact Air Canada client services.
 Around 2:30 p.m., the applicants decided to buy tickets for a flight with Air Transat from Varadero to Montréal leaving at 8:50 p.m. on that day.
 The applicants did not file a reply to Air Canada’s response.
 The statutory and Tariff extracts relevant to this matter are set out in the Appendix.
POSITIONS OF THE PARTIES
 The applicants submit that on December 30, 2016 around 10:00 p.m., they decided to change their return date to Montréal. Consequently, they went to the Varadero Airport on the next day around 10:30 a.m. with their children aged 4 and 6 to ask Air Canada to change the date of their return trip for a flight on that same day or another day. They state that the Air Canada representative informed them that he could not change the tickets or sell them new tickets and that he could not help them communicate with Air Canada client services.
 The applicants decry the lack of support by the Air Canada representative in Varadero. They indicate that they were left on their own to change their tickets or buy new ones. They also indicate that due to a bad internet connection at the airport, they were not able to reach the Air Canada client services. They add that they were also not able to reach Air Canada client services by telephone.
 As they were unable to communicate with client services, the applicants went back to the Air Canada representative at the airport to inform him of their failed attempts. The applicants submit that at that point, the Air Canada representative at the airport suggested that they check with other airlines who were selling tickets at the airport. The applicants then bought tickets from Air Transat at a cost of CAN$1,622.84. Consequently, they left Varadero on December 31, 2016, at 8:50 p.m., after waiting for approximately 10 hours and 30 minutes at the airport.
 According to the applicants, Air Canada did not comply with the Tariff rules set out on the ticket, which allow changes to itinerary or passenger info until up to two hours before departure for a fee of CAN$75 plus applicable taxes and any difference in fare; and at the time of check in or at the airport on the day of departure for a fee of CAN$150 per passenger plus applicable taxes (no charge for the difference in fare) for flights operated on the same day only. The flights must follow the sequence set out on the itinerary from the departure point.
 The applicants also complain that Air Canada client services representatives did not follow up on their e-mails or calls of January 1 and 7, 2017.
 The applicants are requesting reimbursement for the Air Canada tickets (CAN$2,088.32) or the Air Transat tickets (CAN$1,622.85), as well as compensation in the amount of CAN$200 per person (CAN$800) for the inconvenience to them, namely approximately 12 hours of waiting at the airport with young children, the purchase of internet connection cards at Varadero, as well as the stress and time lost trying to resolve this problem following their return.
Air Canada’s position
 Air Canada submits that it complied with its Tariff obligations. It indicates that its international tariff applies as the applicants’ itinerary was between Canada and Cuba. Therefore, any voluntary changes are governed by Rule 85 of its Tariff.
 Air Canada states that Rule 85 of its Tariff provides that “when change can be made at the passenger’s request and subject to payment of any fee set out in applicable fare rule, carrier will effect a change in the routing, destination carrier(s), class of service, flight coupon(s), travel dates, or will cancel a reservation provided that such carrier issued the ticket.”
 Rule 85 also provides that the change shall be effected by endorsement or coupon control of such unused ticket or flight coupon(s) or re-ticketing of the passenger.
 Air Canada submits that the Tariff rules were communicated to the applicants with their reservation confirmation. These rules provide that changes made on the day of departure can be made at the airport. However, the rules do not provide for this possibility for changes made before the day of departure.
 Air Canada indicates that its agents were right to advise the applicants to contact Air Canada reservations service to make the requested change.
 In this regard, Air Canada refers to the "Contact Us" section on its aircanada.ca internet site, which describes the procedures to follow to change a reservation. According to this site, some changes can be made online while others – such as changes to the remaining part of a reservation – must be made by calling the Air Canada reservations service. According to Air Canada, the applicants therefore had to contact the Air Canada reservations service to change their return date.
 In addition, Air Canada submits that most of its international stations do not allow for changes to be made to travel dates as such changes require the issuance of a new ticket. It adds that the station in Cuba where it is possible to issue or change tickets is in Havana. It was therefore not possible for the Varadero agents to change the applicants’ tickets.
 Air Canada maintains that it cannot be held responsible for the applicants’ choices or for the damage that they are claiming.
 According to Air Canada, the applicants could have and should have communicated with the Air Canada reservations service. It states that this service is open 24 hours a day, 7 days a week.
 Air Canada adds that when the applicants went to the airport on December 31, they wanted to board a flight "on that day or another day". According to Air Canada, this means that the applicants had no obligation to travel on that day. In addition, the applicants could have returned to their hotel to contact the Air Canada reservations service to change their return date instead of going to the airport and buying new tickets from Air Transat.
 With respect to a reimbursement for the tickets, Air Canada explains that it offers several types of tickets and the applicants chose to buy non-refundable tickets.
 Air Canada states that according to Rule 100 of its Tariff, the unused potion of a non-refundable ticket may be used as credit in the passenger’s name. Therefore, the applicants are eligible for credits of $CAN178.93 for Ms. Charton and Mr. Le Solleu, and CAN$148.93 per minor child. It maintains that, in accordance with Rule 100 of the Tariff, the applicants have until December 22, 2017 to use these credits.
 For these reasons, Air Canada asks that the application be dismissed.
ANALYSIS AND DETERMINATIONS
 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.
 The applicable Tariff rule, as indicated in the reservation confirmation, provides that changes can be made prior to the day of departure and up to two hours before boarding at the airport on the day of departure. Contrary to the applicants’ statements, nothing indicates that changes can be made at the airport prior to the day of departure.
 The Agency notes that changes to the return flight date required that Air Canada issue new tickets, but that it is not possible to issue new tickets at the Varadero station. It was therefore not possible for the Air Canada representative in Varadero to make the changes requested by the applicants.
 Thus, Air Canada did not refuse to change the reservations, but rather asked the applicants to communicate directly with the reservation service as indicated on its internet site, which provides that changes to the remaining portion of a reservation must be made by contacting this service. As the applicants had already begun their trip and this was a change made before departure but not on the day of departure, the applicants had to call the reservation service.
 The applicants indicate that they tried to reach Air Canada client services, without success. The Agency concludes that the applicants chose, of their own free will, another return option instead of waiting to speak with a representative who could have changed their reservation upon payment of fees and other applicable amounts.
 The Agency concludes that Air Canada acted in accordance with Rule 85 of its Tariff. Air Canada did not refuse to change the applicants’ reservation; rather, the applicants simply did not follow the process established for making such changes.
 Notwithstanding the foregoing, the applicants are eligible for credits for the unused portions of their non-refundable tickets. It is incumbent on them to make the request to Air Canada. Should the applicants not have access to these credits and believe that they are still entitled to them, they may file another application with the Agency.
 The Agency dismisses the application.
Air Transportation Regulations
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.
International Passenger Rules and Fares Tariff, NTA (A) No. 458
Rule 85 – Voluntary changes and rerouting
A. WHEN CHANGE CAN BE MADE
At the passenger’s request and subject to payment of any fee set out in applicable fare rule, carrier will effect a change in the routing (other than the point of origin), destination carrier(s), class of service, flight coupon(s), travel dates, or will cancel a reservation provided that such carrier issued the ticket.
B. METHOD OF EFFECTING CHANGE
The change requested by the passenger shall be effected by:
- endorsement or coupon control of such unused ticket or flight coupon(s) or,
- reticketing of the passenger
C. APPLICABLE FARE
1. The fare, fees, charges and surcharges applicable as a result of any such change in routing, destination, or carrier shall be the new fare, taxes, fees, charges and surcharges available at the time the change is made, plus applicable change fee or penalty, per applicable fare rule provided that,
- 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 and
- 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
- 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.
2. Any difference between the fare, taxes, fees, charges and surcharges applicable under subparagraph (a) above, and the fare, taxes, fees, charges and surcharges paid by the passenger will be collected from the passenger by the carrier accomplishing the rerouting, who will also refund any amount per refund Rule 100.
D. EXPIRATION DATE
The expiration date of any new ticket issued will be the same as the expiration date of the old ticket.
E. Time Limits on cancellations and charges for late cancellation will be applicable to revised routings requested by passenger.
RULE 100 – REFUND
REFUND BY CARRIER: For an unused ticket or portion thereof, or miscellaneous charges order, refund will be made in accordance with this rule.
ϯ[C] 1. For non-refundable tickets, the unused value may be used toward the purchase of another ticket within a year from date of issue ϯ[C]if ticket is fully unused or from first departure date for partially used ticket, subject to any fee or penalty contained in applicable fare rules and subject to customer cancelling the booking prior to departure.
2. For paper tickets, Persons requesting refund must surrender to carrier all unused flight coupon(s) of the ticket, or miscellaneous charges order.
3. Carrier shall make all or any individual refunds upon written request, through its general accounting offices of regional sales or accounting offices, through Air Canada’s call centres, at certain airports, or on its transactional websites.
4. Time Limitation For Refund Requests: Application for refund should be made during the period of validity of the ticket or miscellaneous charges order, which is one year from the date of issue.
However, the period of validity may be extended subject to payment of applicable fee. For non-refundable tickets exchange for a ticket for travel commencing within 3 months of the end of the period of validity, applicable fee is $50. For refundable tickets, and refundable fees, taxes or charges, an over-aged fee of $100 will be applied to refunds issued after a year from the date of issue. For miscellaneous charges order, an over-aged fee of $25 will be applied to refunds issued after a year from the date of issue. No refund will be issued after 2 years from original ticket date of issue. All fees are subject to applicable taxes.
E. GENERAL REFUNDS
1. The term “General Refund” (sometimes referred to as “Voluntary Refund”) for the purpose of this paragraph, shall mean any refund or a ticket or portion thereof other than Carrier-Caused refund as defined above, which includes but is not limited to circumstances that are not within the airline’s control, such as situations described in rule 70 (check-in and Boarding Time Limits), rule 75 (refusal to Transport), passenger chooses to no longer travel, and schedule irregularities outside carrier’s control.
2. Amount of General Refund
The amount of general refunds will be as follows:
- when ϯ[C] ticket is fully unused, the amount of refund will be the fare, fees, charges and surcharges paid less any applicable cancellation/change fee or penalty set out in the applicable fare rules.
- when any ticket coupons have been used, the amount of refund will be: the difference, if any, between the fare, taxes, fees, charges and surcharges paid and the fare, taxes, fees, charges and surcharges applicable for transportation used, less any applicable cancellation/change fee or penalty, as set out in the applicable fare rules. Note: The most restrictive cancellation/change fee applies.