Decision No. 43-C-A-2018

July 31, 2018

APPLICATION by Asif Islam Khan, on behalf of himself, his wife Proma Anwar, and his minor child (applicants) against Jet Airways (India) Limited (Jet Airways).

Case number: 
17-06385

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against Jet Airways concerning its refusal to transport Mr. Khan from Dhaka, Bangladesh to Toronto, Ontario.

[2] The applicants seek compensation in the amount of CAN$4,111, which they state is the difference between the cost of their original Jet Airways tickets and the replacement tickets that they had to purchase.

[3] Jet Airways did not file an answer to the application.

[4] The Agency will address the following issue:

Did Jet Airways properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 521 (Tariff) regarding refusal to transport as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Jet Airways did not properly apply its Tariff, what remedy, if any, is available to the applicants?

[5] For the reasons set out below, the Agency finds that Jet Airways did not properly apply the terms and conditions set out in Rules 25 and 45 of its Tariff. The Agency therefore orders Jet Airways to compensate the applicants in the amount of CAN$4,111. This amount is to be paid as soon as possible and no later than September 19, 2018.

BACKGROUND

[6] The applicants purchased round-trip tickets to travel with Jet Airways, departing from Dhaka on August 10, 2017 and returning on September 3, 2017. Jet Airways refused to transport Mr. Khan at the Dhaka airport. The applicants then purchased replacement travel to Toronto with Qatar Airways (Q.C.S.C.) carrying on business as Qatar Airways, as Qatar Airways Cargo and as Qatar Executive (Qatar), and Air Transat A.T. Inc. carrying on business as Air Transat (Air Transat), departing on August 11, 2017. The applicants later purchased travel with Etihad Airways P.J.S.C. carrying on business as Etihad Airways (Etihad Airways) for their return trip to Dhaka on September 7, 2017.

THE LAW

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

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.

[8] Subsection 113.1 of the ATR provides:

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.

[9] Rule 25 of Jet Airways’ Tariff provides, in part, as follows:

REFUSAL TO TRANSPORT – LIMITATIONS OF CARRIER

I. REFUSAL TO TRANSPORT – REMOVAL OF PASSENGER

Carrier will refuse to transport, or will remove any passenger at any point for any of the following reasons:

(A) GOVERNMENT REQUEST OR REGULATIONS

Whenever such action is necessary to comply with any government regulation […]

[…]

(D) IMMIGRATION OR SIMILAR CONSIDERATIONS

When the passenger is to travel across any international boundary, if:

(1) The travel documents of such passenger are not in order;

[…]

III. RECOURSE OF THE PASSENGER/LIMITATION OF LIABILITY

Carrier’s liability in case of refusal to carry a passenger for a specific flight or removal of a passenger en route for any reason specified in the foregoing paragraphs or in Rule 21 shall be limited to the recovery of the refund value of the unused portion of passenger’s ticket from the carrier so refusing or removing, as provided in Rule 90(D).

[10] Rule 45 of Jet Airways’ Tariff provides 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 the 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 comply with such laws, regulations, orders, demands, requirements, or instructions.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

[11] The applicants submit that on the date of their travel to Toronto, they arrived at the Dhaka airport well ahead of time and approached the Jet Airways counter in order to obtain their boarding passes. The applicants state that after waiting for approximately two hours, they were told that the travel agent who booked their trip had made a mistake with Mr. Khan’s name and therefore, their boarding passes could not be issued. The applicants state that Mr. Khan was shown the computer screen where “TSA-NO FLY” was depicted. The applicants submit that Mr. Khan inquired as to whether there was an issue with the Canada Border Services Agency (CBSA); however, he was told that the issue did not concern the CBSA.

[12] The applicants explain that Mr. Khan’s full name is “Asif Islam Khan” and that his passport lists his last name as “Khan” and his given names as “Asif Islam”. They submit that when booking tickets, either through a travel agent or internet booking engines, Mr. Khan’s name appears on his itinerary as “KHAN/ASIFISLAMMR”. The applicants state that this is exactly how Mr. Khan’s name appeared on the itinerary on the date of their travel with Jet Airways. The applicants argue that despite the fact that there were no missing or misplaced letters in Mr. Khan’s name as reflected on the itinerary, the Jet Airways agent perceived a misspelling and informed Mr. Khan that he was not clear to travel. However, when he subsequently travelled to Toronto with Qatar Airways, his name was listed as “KHAN/ASIF ISLAM MR” and he experienced no problems with his trip to Toronto. On his return to Dhaka with Etihad Airways via Abu Dhabi, his name was listed as “ASIFISLAMMR KHAN” and he had no problems with his trip home.

[13] According to the applicants, when trying to board Jet Airways in Dhaka, Mr. Khan was eventually informed that his passport was “blocked” and that he would not be able to take the flight. The applicants state that they contacted their travel agent and booked replacement tickets for travel on the same day (i.e. 3:25 a.m. on August 11, 2017). The applicants submit that the lowest fare possible was with Qatar, which only offered travel to Montréal. The applicants therefore booked travel with Qatar to Montréal, and then with Air Transat from Montréal to Toronto. The applicants submit that they received their boarding passes to travel with Qatar within ten minutes of arriving at the airport.

[14] The applicants state that after their travel, they contacted Jet Airways concerning its refusal to transport Mr. Khan. Jet Airways reiterated that Mr. Khan was not permitted to travel due to the misspelling of his name on his itinerary. The applicants, however, submit that Jet Airways refunded them the full amount that they paid for their Jet Airways tickets.

[15] The applicants argue that as a result of Jet Airways’ refusal to transport Mr. Khan, they paid a total of CAN$9,243.38 on the purchase of tickets, instead of the CAN$5,132 that they paid for their original Jet Airways tickets. They therefore request that the Agency order Jet Airways to compensate them in the amount of CAN$4,111, which is the difference between the cost of their original Jet Airways tickets and the replacement tickets that they purchased. To support their request, the applicants provided:

- Receipts for the applicants’ original Jet Airways tickets at a cost of BDT$329,000

- Receipts for the applicants replacement Qatar tickets at a cost of BDT$359459

- Receipts for the applicants’ replacement Air Transat tickets at a cost of CAN$937.98

- A receipt for Mr. Khan’s replacement Etihad Airways’ at a cost of BDT$53419

- A receipt for in Ms. Anwar’s name for two Toronto-Dhaka-Toronto tickets in the amount of CAN$1,760.17

[16] The applicants also state that they had to pay CAN$126 for baggage fees; however, they provided no receipt for this purchase.

[17] Jet Airways did not file an answer to the application; therefore, the evidence presented by the applicants remains unchallenged.

ANALYSIS AND DETERMINATIONS

[18] Rule 45 of Jet Airways’ Tariff requires passengers to comply with all laws, regulations, orders, demands or travel documents of the countries to be flown from, into, over and with all rules and regulations of the carrier. Rule 25 of the Tariff allows Jet Airways to refuse to transport any passenger whenever such action is necessary to comply with a government regulation.

[19] The applicants state that two different reasons were provided by Jet Airways to justify its refusal to transport Mr. Khan. First, he was told that the travel agent who booked their trip made a mistake with Mr. Khan’s name. Later Mr. Khan was told that his “passport was blocked” and that he would not be able to take the flight.

[20] The applicants explain that Mr. Khan’s full name is “Asif Islam Khan” and that his passport lists his last name as “Khan” and his given names as “Asif Islam”. They submit that when booking tickets, either through a travel agent or internet booking engines, Mr. Khan’s name appears on his itinerary as “KHAN/ASIFISLAMMR”. The applicants state that this is exactly how Mr. Khan’s name appeared on the itinerary on the date of their travel with Jet Airways. As such, Mr. Khan’s name was not misspelled. The applicants provided evidence of two other tickets with which Mr. Khan travelled, one with the name KHAN/ASIF ISLAM MR, and another with the name ASIFISLAMMR KHAN. In both cases, the first name, middle name and last name are the same as is the salutation, “MR”.

[21] Jet Airways did not file an answer to the application. There is therefore no clear justification from Jet Airways with respect to its refusal to transport Mr. Khan. In the absence of reliable evidence from Jet Airways, notably with respect to Mr. Khan’s name configuration, it is unclear why Jet Airways refused to transport Mr. Khan.

[22] In light of the above, it would not be appropriate for the Agency to speculate about Jet Airways’ reason to refuse to transport Mr. Khan. As such, the Agency concludes that, on a balance of probabilities, the applicants have established that Jet Airways did not properly apply its Tariff when it refused to transport Mr. Khan.

[23] Section 113.1 of the ATR provides that where an air carrier that provides an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in its tariff, the Agency may direct it to pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions of carriage set out in its tariff.

[24] As Jet Airways did not properly apply Rules 25 and 45 of its Tariff, as required by subsection 110(4) of the ATR, the Agency, pursuant to paragraph 113.1(b) of the ATR, finds that the applicants are entitled to receive compensation for the expenses that they incurred as a result of Jet Airways’ failure to apply its Tariff.

[25] The cost of the applicants’ original Jet Airways tickets is CAN$5,132, for which Jet Airways provided them with a refund. However, the applicants provided receipts demonstrating that, as a result of Jet Airways’ refusal to transport Mr. Khan, they incurred additional travel expenses in in the amount of CAN$4,111. This amount includes the cost of replacement tickets, and CAN$126 for baggage fees. While the applicants filed no receipt for the cost of the baggage fees, in light of the circumstances, the Agency finds the amount of CAN$126 to be reasonable.

[26] Accordingly, the Agency finds it reasonable to award the applicants CAN$4,111, which is the difference between the cost of their original Jet Airways tickets and the cost of the replacement travel.

CONCLUSION

In light of the above findings, and pursuant to section 113.1 of the ATR, the Agency orders Jet Airways to compensate the applicants in the amount of CAN$4,111. This amount is to be paid as soon as possible and no later than September 19, 2018.

Member(s)

P. Paul Fitzgerald
Date modified: