Decision No. 27-C-A-2018

March 28, 2018

APPLICATION by Sean Gosnell against Air Canada also carrying on business as Air Canada rouge and as Air Canada Cargo (Air Canada), pursuant to section 67.1 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).

Case number: 
17-05057

SUMMARY

[1] Sean Gosnell filed an application with the Canadian Transportation Agency (Agency) concerning the cancellation of Air Canada’s Flight No. AC8939 from Moncton, New Brunswick, Canada to Toronto, Ontario, Canada, on September 4, 2017.

[2] Mr. Gosnell (the applicant)is seeking a reimbursement, among other things, in the amount of $434.84, which is the cost of the WestJet ticket that he bought to travel from Moncton to Toronto on September 4, 2017. The applicant purchased the WestJet ticket on September 4, 2017 to travel later on that same evening upon learning that his intended Air Canada flight had been cancelled. He is also seeking $10,000 in general damages for alleged inconvenience and distress.

[3] The Agency will address the following issue:

Did Air Canada properly apply the terms and conditions set out in Rule 80 of its Domestic Tariff General Rules Applicable to the Transportation of Passengers and Baggage, CTA(A) No. 3 (Tariff), as required by subsection 67(3) of the CTA? If Air Canada did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to Mr. Gosnell?

[4] For the reasons set out below, the Agency finds that Air Canada properly applied the terms and conditions set out in its Tariff, and dismisses the application.

BACKGROUND

[5] Mr. Gosnell was booked on Air Canada Flight No. AC8939 scheduled to depart from Moncton at 6:25 p.m. and to arrive in Toronto at 8:02 p.m. on September 4, 2017. After having been delayed, the flight was later cancelled.

[6] During the evening of September 4, 2017, Air Canada rebooked Mr. Gosnell on Flight No. AC8943, a direct flight from Moncton to Toronto, scheduled to depart at 8:30 p.m. on the following day, September 5, 2017. Mr. Gosnell elected to book a ticket with WestJet for Flight No. WS3437 departing at 7:55 p.m. on September 4, 2017. At 10:30 p.m. on September 4, 2017, Air Canada advised Mr. Gosnell that he had been rebooked on Flight No. AC7761 scheduled to depart Moncton at 8:50 a.m. on the following morning, September 5, 2017, with a connection in Halifax, Nova Scotia, Canada, arriving in Toronto at 1:13 p.m.

PRELIMINARY MATTERS

Agency jurisdiction over inconvenience and distress

[7] Mr. Gosnell requests $10,000 in general damages for inconvenience and distress. Pursuant to section 67.1 of the CTA, the Agency does not have the jurisdiction in applications such as this one to order payment of compensation for pain and suffering, loss of enjoyment, or the quality of service, as consistently stated in previous decisions, such as Decision No. 18-C-A-2015 and Decision No. 55‑C‑A‑2014.

[8] Therefore, the Agency is unable to consider the request for general damages.

Request for an extension of time to file a reply

[9] The applicant requested an extension of time to file his reply. To put that request into perspective, it is useful to review, in some detail, the content of the Agency’s “open pleadings letter” (OPL). Among other things, the OPL advises the parties that the test for the granting of such a request is evidence of “exceptional circumstances”.

[10] The OPL is a document drafted by the Agency to assist the parties. Where the Agency decides to open pleadings in a proceeding, it is the Agency that sends a copy of the application to the respondent via e-mail. The Agency appends a copy of the OPL to the application at the same time it sends a copy of the application to the respondent. Moreover, the Agency also sends these two documents to the applicant. The Agency serves the OPL and the application on both parties via e-mail.

[11] Of further significance, also as part of its standard practice, the Agency requests that both the applicant and the respondent acknowledge receipt of the OPL by return e‑mail.

[12] The OPL in this case is dated November 8, 2017 and was sent to the parties on that date. The applicant acknowledged receipt of the OPL in an e-mail dated November 15, 2017.

[13] The OPL serves several purposes. Among other things, the OPL alerts the parties to the specific time limits that apply to their particular proceeding. This is indicated in the very first paragraph of the OPL. In this case, the first paragraph of the OPL states as follows:

The Canadian Transportation Agency (Agency) accepts this application in accordance with subsection 18(2) of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules).

The purpose of this letter is to outline the pleadings process time limits for this case, which are:

  • Air Canada’s answer to the application – November 30, 2017; and,
  • Mr. Gosnell’s reply to the answer - five business days from the date of receipt of the answer.

[14] The OPL explains the stages in the pleadings process before the Agency in greater detail and reiterates the time limits for filing. By way of illustration, the second page of the OPL, in this case, provides, in part:

Reply to the answer

Mr. Gosnell has until 5:00 p.m. Gatineau local time on the fifth business day after the date of receipt of the answer to submit a reply to the Agency and provide a copy to Air Canada. For more information, see section 11 and section 20 of the Dispute Adjudication Rules.

[15] The OPL alerts the parties to the importance of timeliness. The first page of the OPL provides, in part:

The Agency will strive to resolve this case within 85 business days from the date of this letter. The case may take longer to resolve if the level of complexity changes.

[16] The above reference to 85 business days reflects the time limits set by Parliament in the CTA. Section 29 of the CTA instructs the Agency to:

[…] make its decision in any proceedings before it as expeditiously as possible, but no later than one hundred and twenty days after the originating documents are received […]

When a party asks the Agency to exercise its discretion to extend a time limit in a proceeding, the Agency has to be mindful of the requirements of section 29 of the CTA.

[17] Having advised the parties of the time limits that they are expected to follow, the OPL reiterates the importance of timeliness. At the same time, it assists the parties by advising them of the process to follow if they want the Agency to give them more time. In this case, page 3 of the OPL provides, in part:

Time limits

Parties are responsible for filing submissions within the required time limits.

Time limits for filing submissions can be as short as one business day. In addition, some time limits are automatic. Please refer to the chart of filing deadlines to ensure that submissions are filed on time.

To ensure that proceedings are efficient, the Agency will only grant extensions of time in exceptional circumstances. Parties should make sure that they have enough time to meet the original time limit should the Agency deny their request. The annotation to section 30 of the Dispute Adjudication Rules describes some of the factors that the Agency may take into account in considering these requests.

As set out in section 12 of the Dispute Adjudication Rules, documents filed after a time limit will not be placed on the Agency’s record and will not be considered unless a Request to Extend Time Limit has been filed under subsection 30(1) or a Request to File Document Whose Filing is not Otherwise Provided for in Rules has been filed under subsection 34(1) and granted by the Agency.

Of particular relevance, the above excerpt from the OPL informs the parties that request for extensions of time should be made to the Agency before that time period has expired, and that the Agency will grant such a request in exceptional circumstances only.

[18] The Agency can now address the specific request for an extension of time filed by the applicant.

[19] Mr. Gosnell filed his initial application with the Agency using a form provided by the Agency on its website. The Agency therefore finds that the applicant was in a position to avail himself of the various tools and guidance provided on the Agency’s website, including its Dispute Adjudication Rules.

[20] The OPL is dated November 8, 2017. Mr. Gosnell acknowledged receipt of the OPL by e-mail on November 15, 2017. The OPL expressly fixed the date of November 30, 2017 as the last possible date on which Air Canada was expected to file its answer to the application and provide a copy to the applicant. The OPL further provided that the applicant’s reply would have to be filed with the Agency no later than five business days after the date of receipt of the answer. Five business days is the standard length of time that the Agency gives to an applicant to prepare and file a reply.

[21] While five business days may appear to be a short period of time, it is useful to reiterate that the period of time given to a respondent to draft and file an answer to an application is 15 business days. These are standard time periods that generally apply to all such proceedings under section 67.1 of the CTA, such as the one currently before the Agency. The five business day period for filing a reply in this case is consistent with the Agency’s Dispute Adjudication Rules, and is no shorter or longer than the period of time for filing a reply in the vast majority of applications such as the one currently before the Agency. These 15-day and five-day periods are also commensurate with the period within which the Agency seeks to determine an application.

[22] Air Canada actually filed its answer to the application on November 28, 2017, a few days before the deadline of November 30, 2017. The respondent served its answer to the application on the applicant on November 28, 2017.

[23] The Agency therefore finds that Mr. Gosnell knew, or ought to have known, no later than November 15, 2017 (the date on which he acknowledged receipt of the OPL), that he would have five business days to prepare and file his reply and that he was expected to file his reply no later than December 5, 2017.

[24] The applicant purported to file his reply, for the first time, at 5:29 p.m. on January 2, 2018. He did not acknowledge any delay on his part at that time. Contrary to the advice provided in the OPL, he did not include a Request to Extend or Shorten Time Limit pursuant to section 30 of the Dispute Adjudication Rules. On January 4, 2018, the Agency sent an e-mail to the applicant advising him that if he wanted his reply to form part of the record of this proceeding, he would have to file an extension request pursuant to the Dispute Adjudication Rules. Later on that same day, the applicant filed an extension request.

[25] Mr. Gosnell did not contact the Agency at any time between November 15 and December 5, 2017 to indicate that he needed, or expected to need, more than five business days to prepare and file his reply. He did not try to contact the Agency until January 2, 2018, the day on which he purported to file his reply. In other words, the period of time established by the Agency and communicated to the applicant for the filing of his reply had, by then, expired by some 17 business days.

[26] It is very difficult for the Agency to act expeditiously, as required by law, and to meet its objective of deciding an application within 85 business days when an applicant allows 17 business days to elapse before seeking an extension of the initial five business day period of time. If the Agency were to allow an applicant such a great period of time to file a reply, it would also be difficult for the Agency to meet its objectives of timeliness.

[27] Given that all of the relevant time periods had expired, the Agency informed the applicant on January 4, 2018 that, pursuant to section 30 of the Dispute Adjudication Rules, his reply had to be accompanied by a request for an extension of time to file his reply.

[28] On January 4, 2018, Mr. Gosnell filed a request for an extension of time and requested that his reply be accepted and form part of the record. In support of his request, he stated that an extension of time would not cause any prejudice to Air Canada, and that the original deadline that he was given was “very short” and occurred during a time when he was “very busy”, and then was followed by the holiday period. He added that it was his first request for an extension of time and that the additional information provided in his reply was necessary and appropriate for a fair and proper adjudication of this matter.

[29] Air Canada submitted no objection to Mr. Gosnell’s request for an extension of time to file his reply.

[30] As set out in the OPL, the Agency will only grant extensions of time in exceptional circumstances. In addition, when filing a request for an extension of time, the parties are asked to ensure that they have enough time to meet the original time limit should the Agency deny their request. The annotation to section 30 of the Dispute Adjudication Rules sets out some of the factors that the Agency may take into account in considering these requests:

  • The complexity of the matter;
  • The impact of the request on other parties;
  • The time required to compile the necessary information;
  • The difficulty in obtaining the necessary information;
  • Whether the party made a serious effort to meet the deadline;
  • The period of time since the party first became aware of the matter;
  • When the party requested the extension of time;
  • The number of extensions already granted;
  • The availability of key personnel of parties;
  • A reasonable opportunity for parties to comment; and
  • Any other factors that may be relevant.

[31] In this case, the applicant did not ensure that he had enough time to file his reply within the time period specified in the Dispute Adjudication Rules and communicated to him by the Agency in the OPL. In fact, he attempted to file his reply 17 business days after the deadline, without initially explaining the circumstances that caused the delay. Further, the reasons that he subsequently provided for missing the deadline are not compelling. He submits that the deadline was short and that he was busy. Again, in the case before it, the Agency has already found that Mr. Gosnell knew, or ought to have known, no later than November 15, 2017, that he would have five business days to file his reply. Moreover, based on the information available to him on November 15, 2017, he knew, or ought to have known, that the five business day period would expire, at the latest, on or about December 5, 2017.

[32] In his request to the Agency, the applicant did not indicate what, if anything, prevented him from alerting the Agency, prior to December 5, 2017, that he needed additional time to prepare a reply. He did not indicate what, if anything, prevented him from seeking leave from the Agency to extend the time period for filing the reply prior to January 4, 2017. Given the significant number of days that had elapsed, it was incumbent on him to explain why he did not or could not take action in a more timely way. The Agency does not consider the reasons that he did ultimately provide to be compelling. The Agency finds that the reasons given do no constitute exceptional circumstances. The Agency has therefore decided not to exercise its discretion in favor of the applicant’s request.

[33] In light of the foregoing, the Agency dismisses Mr. Gosnell’s January 4, 2018 request for an extension of time to file his reply, and, as such, the reply that he purported to file with the Agency on January 2, 2018 will not form part of the record.

THE LAW

[34] The Agency’s jurisdiction in matters respecting the applicability of domestic tariffs is set out in section 67.1 of the CTA:

67.1 If, on complaint in writing to the Agency by any person, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

  1. apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;
  2. compensate any person adversely affected for any expenses they incurred as a result of the licensee’s failure to apply a fare, rate, charge or term or condition of carriage that was set out in its tariffs; and
  3. take any other appropriate corrective measures.

[35] In the adjudication of this application, where the applicant is not challenging the reasonability of the Tariff provisions themselves, the Agency must, on a balance of probabilities, determine whether Air Canada has applied, failed to apply, or inconsistently applied the terms and conditions of carriage appearing in the applicable Tariff. If the Agency finds that an air carrier has failed to properly apply the terms and conditions set out in its tariff, the Agency may order the air carrier to either compensate any person adversely affected for any expenses within the scope of paragraph (b) above, or to take any other appropriate corrective measures, or both.

[36] As stated above, the jurisdiction given to the Agency by Parliament in section 67.1 of the CTA to order compensation for certain types of expenses does not extend to or enable the Agency to order damages for pain and suffering. It is the civil courts in Canada that have the jurisdiction to award damages for pain and suffering, where applicable.

[37] Rule 80C.(1) of Air Canada’s Tariff defines a schedule irregularity as follows:

  1. Delay in scheduled departure or arrival of a Carrier’s flight
  2. Flight cancellation, omission of a scheduled stop, or any other delay or interruption in the scheduled operation of a Carrier’s flight, or
  3. Substitution of equipment or of a different class of service, or
  4. Schedule changes which require rerouting of passenger at departure time of the original flight.

[38] Further, Rule 80C.(4) of Air Canada’s Tariff states that in the case of a schedule irregularity, the carrier will either:

  1. Carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service; or, at the Carrier’s option;
  2. Endorse to another Carrier with which Air Canada has an agreement for such transportation, the unused portion of the ticket for purposes of rerouting; or at the Carrier’s option;
  3. Reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from RULE 100 – REFUNDS, the Carrier will require no additional payment from the passenger but will refund the difference if it is lower or,
  4. If the passenger chooses to no longer travel or if the Carrier is unable to perform the option stated in (a) (b) or (c) above within a reasonable amount time, make involuntary refund in accordance with RULE 100 – REFUNDS (an exception to the applicability of a refund occurs where the passenger was notified of the schedule irregularity prior to the day of departure and the schedule irregularity is of 60 minutes or less) or,
  5. upon request, for cancellations within the Carrier’s control, return passenger to point of origin and refund in accordance with RULE 100 – REFUNDS as if no portion of the trip had been made (irrespective of applicable fare rules), or subject to passenger’s agreement, offer a travel voucher for future travel in the same amount; or, upon passenger request.
  6. For cancellations within the Carrier’s control, if passenger provides credible verbal assurance to the Carrier of certain circumstances that require his/her arrival at destination earlier than options set out in subparagraph (a) above, or, for On My Way customers, for cancellations within or outside the Carrier’s control, Air Canada will, if it is reasonable to do so, taking all circumstances known to it into account, and subject to availability, buy passenger a seat on another carrier whose flight is schedule to arrive appreciably earlier than the options proposed in a), b), c) or d) above. Nothing in the above shall limit or reduce the passenger’s right, if any, to claim damages, if any, under the applicable Convention, or under the law when neither convention applies.

In other words, in the case of schedule irregularities involving flight cancellations beyond its control, Rule 80 of the Tariff requires Air Canada, among other things, at its option, to either carry the passenger on another of its flights on which space is available, or to endorse the unused portion of the ticket to other air carriers for the purpose of rerouting, or to reroute the passenger by its own or other transportation services.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Mr. Gosnell’s position

[39] Mr. Gosnell explains that after Air Canada cancelled his flight, Flight No. AC8939, he inquired about other possible Air Canada flights, but was told that none had any seats available. He submits that to have accepted Air Canada’s offer for a replacement flight departing 24 hours later would have required him to cancel important appointments that he had scheduled for the following day, and would have resulted in a loss of most of his income for Tuesday, September 5, 2017.

[40] Mr. Gosnell submits that, as another Air Canada flight from Moncton to Toronto departed on the evening of September 4, 2017, his flight could not have been cancelled due to the weather, as alleged by Air Canada.

[41] Further, Mr. Gosnell contends that Air Canada failed to take reasonable steps to minimize the damage caused when it failed to advise him of the cancellation of his flight in a timely manner, and when it failed to make reasonable efforts to book him on another flight from Moncton to Toronto that departed on September 4, 2017.

Air Canada’s position

[42] Air Canada admits that it cancelled Flight No. AC8939, but submits that it was delayed and then cancelled due to thunderstorms in Toronto. Air Canada explains that Air Traffic Control was restricting departure routes out of Toronto, which resulted in gating congestion. In support of its position, Air Canada refers to the Aerodrome Routine Meteorological Report and the operation report for Flight No. AC8939. Air Canada states that the events caused four diversions, 26 cancellations, and 30 delays. As such, Air Canada submits that it was impossible to operate Flight No. AC8939 safely and in accordance with the Canadian Aviation Regulations, SOR/96‑433.

[43] Air Canada submits that it respected the terms and conditions set out in its Tariff given that it rebooked Mr. Gosnell on Flight No. AC8349, and then subsequently, upon having the availability to do so, by rebooking him on an earlier alternative route, Flight No. AC7761 with a connection in Halifax.

[44] Air Canada states that despite having a non-refundable ticket, the applicant was refunded “in full”. An electronic ticket filed by Air Canada indicates that Air Canada reimbursed Mr. Gosnell in the amount of $ 184.14 on October 4, 2017.

[45] In light of the above, Air Canada submits that it has respected the terms and conditions of carriage set out in its Tariff by efficiently rebooking the applicant with the least delay at arrival as possible.

Findings of fact

[46] The Aerodrome Routine Meteorological Report filed by Air Canada presents data regarding the meteorological conditions prevalent on September 4, 2017, but does not specifically confirm whether the cancellation of Flight No. AC8939 was due to the inclement weather in Toronto. However, in the Flight AC8939 Operations Report, next to the last entry for September 4, 2017, a code indicates “CNL WEAT”, and the SOC Passenger Movement Operational Report,filed by Air Canada, further indicates:

Today, September 4, 2017

After a stable start up, the forecast thunderstorm activity impacted YYZ, YOW and YUL. YYZ was in a Ground Stop for 4 hours, with an extensive GDP which saw delays up to 500 minutes. ATC also restricted departure routes out of YYZ, creating gating congestion. […]

[47] Finally, Flight No. AC8939 forms part of the list of cancelled flights filed by Air Canada as “Cancelled due to Ground Stop/GDP in effect due YYZ WXX Thunderstorms – SOC advisory in effect for pax rebooking”.

[48] Although Mr. Gosnell asserts that other flights were departing from Moncton to Toronto on the evening of September 4, 2017, he did not refer the Agency to any specific flight.

[49] The Agency therefore finds that Air Canada cancelled Flight No. AC8939 on the evening of September 4, 2017, and that it did so as a consequence of a ground stop on account of events over which it had no direct control, including thunderstorms, and in accordance with the directives of Air Traffic Control, a third party.

[50] These events caused disruptions to and cancellations of Air Canada services in Moncton as well as in other cities.

[51] The Agency also finds that Air Canada offered, consistent with Rule 80C.(4) of its Tariff, to “Carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service”, namely Flight No. AC8943, a direct flight from Moncton to Toronto scheduled to depart on the following evening, as well as Flight No. AC7761 that was scheduled to depart from Moncton at 8:50 a.m. on the following morning.

[52] Moreover, the Agency finds that, based on the Flight Capacity Report for flights from YQM to YYZ on September 4 and 5, 2017, filed by Air Canada, there were no other Air Canada flights departing earlier than Flight No. AC8943 that had any available seats.

[53] The Agency further finds that, faced with those options, Mr. Gosnell chose to book a direct flight from Moncton to Toronto operated by another airline on which space was available and that would allow him to return home in a more timely fashion.

[54] Based on the evidence before it, the Agency accepts that the flight delay and further cancellation of Flight No. AC8939 on September 4, 2017 were due to the inclement weather in Toronto and, therefore, were beyond Air Canada’s control for the purposes of applying the terms and conditions set out in its Tariff.

ANALYSIS AND DETERMINATIONS

[55] Rule 80C.(1) of the Tariff defines a schedule irregularity as including a flight cancellation. Therefore, further to the cancellation of Flight No. AC8939, Rule 80 of the Tariff applies to the consideration of this case.

[56] In the event of a schedule irregularity, Rule 80C.(4) provides Air Canada with three options to reschedule affected passengers to their destinations, either on a direct flight or otherwise. The choice between these three options, set out in paragraphs 80C.(4)a), b) and c), belongs exclusively to Air Canada. This design provides Air Canada with the latitude to determine how best to accommodate passengers when a schedule irregularity occurs.

[57] When Mr. Gosnell’s original flight, Flight No. AC8939, was cancelled, Air Canada exercised its option under Rule 80C.(4)a) to offer to carry Mr. Gosnell on another of its passenger aircraft by firstly rebooking him on Flight No. AC8943, a direct flight scheduled to depart on the following evening at 8:30 p.m., and then by rebooking him on Flight No. AC7761, departing on the next morning, with a connection in Halifax. As noted above, Air Canada informed Mr. Gosnell of this second alternative flight at 10:30 p.m. on September 4, 2017, just over four hours after his cancelled flight had been scheduled to depart. Mr. Gosnell declined this option at 2:30 p.m. on September 5, 2017. According to the Flight Capacity Report for flights from YQM to YYZ on September 4 and 5, 2017, filed by Air Canada, no flights had any available seats, except for Flight No. AC8943.

[58] Moreover, after Mr. Gosnell chose to no longer travel with Air Canada, Air Canada reimbursed him in the amount of $184.14 on October 4, 2017. Mr. Gosnell did not dispute that he was reimbursed, nor that the amount reimbursed was not in accordance with the terms and conditions set out in Air Canada’s Tariff.

[59] Accordingly, the Agency finds that Air Canada properly applied the terms and conditions set out in Rule 80 of its Tariff.

[60] Consequently, Air Canada cannot be made to bear any of the expenses, including the cost of Mr. Gosnell’s WestJet ticket, that were incurred as a result of his decision to make alternative arrangements to travel from Moncton to Toronto on September 4, 2017.

CONCLUSION

[61] The Agency dismisses the application.

Member(s)

William G. McMurray
Date modified: