Decision No. 37-C-A-2018
APPLICATION by Sylvain Unvoy et al., on behalf of himself and five other persons against Air Canada also carrying on business as Air Canada rouge and as Air Canada Cargo.
 The applicants filed an application with the Canadian Transportation Agency (Agency) against Air Canada concerning flight No. AC1750 from Montréal, Quebec, Canada, to Cayo Coco, Cuba, on August 9, 2017, which was delayed six hours.
 The applicants are seeking compensation in the amount of $800 per person, the equivalent of the compensation awarded for denied boarding.
 The Agency will address the following issue:
Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Tariff), as required by 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 finds that Air Canada properly applied the terms and conditions set out in its Tariff. Accordingly, the Agency dismisses the application.
 The applicants booked a roundtrip flight from Montréal to Cayo Coco with Air Canada, leaving on August 9 and returning on August 16, 2017. Air Canada Flight No. AC1750 was scheduled to depart at 8:05 a.m. and arrive at noon.
 On August 9, 2017, around 5:45 a.m., when the applicants checked in at the airport, they were informed that the flight was delayed because of a mechanical breakdown. A change of aircraft had to be made.
 The aircraft used for flight No. AC1750 left the gate at 2:02 p.m. and departed at 2:20 p.m. with the applicants on board.
 Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff.
 If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to:
- take the corrective measures that the Agency considers appropriate; and
- 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.
 Rule 5(2) of the Tariff states, in part, that:
International transportation shall be subject to the rules relating to liability established by, and to all other provisions of the Convention for the Unification of Certain Rules Relating to International Transportation by Air, signed at Warsaw, October 12, 1929, or the Convention for the Unification of Certain Rules International Carriage by Air, (Montreal Convention of 1999) or such convention as amended, whichever may be applicable to the transportation hereunder. Any provision of these rules which is inconsistent with any provision of said convention shall, to that extent, but only to that extent, be inapplicable to international transportation.
 Rule 80(A)(3) of the Tariff states, in part, that:
(3) Best Efforts
Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch, but no particular time is fixed for the commencement or the completion of carriage. Subject thereto carrier may, without notice, substitute alternate carriers or aircraft and may alter the route, add stopovers or omit the stopping places shown on the face of the ticket in case of necessity.
 Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) provides that:
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
POSITIONS OF THE PARTIES AND FINDINGS OF FACT
The applicants’ position
 The applicants argue that this was a delay, not a schedule change. They state that they were not notified of the delay until they arrived at the airport, despite the fact that Mr. Unvoy had provided his cell phone number so that he could be informed of any schedule changes. According to the applicants, another Air Canada aircraft, from Iceland, was used for the flight.
 The applicants submit that it is not enough for Air Canada to argue that it took all necessary measures to avoid the damage. According to them, Air Canada is required to prove that it took all measures that could reasonably be required to avoid the damage. In their view, Air Canada is bound by this obligation. The applicants also state that a mechanical breakdown is not a force majeure event that would relieve a carrier of its obligation. In support of their argument, the applicants cite Verrault c. 124851 Canada inc. (C.Q., 2003‑02‑28).
 The applicants add that Air Canada’s Tariff is subject to the Montreal Convention, which takes precedence over the Tariff. According to the applicants, the Tariff is unreasonable, given Article 19 of the Montreal Convention.
 The applicants argue that Air Canada has not succeeded in rebutting the presumption of liability set out in Article 19 of the Montreal Convention. They also argue that Air Canada is wrong in admitting that there was a mechanical breakdown and that it had to change aircraft because of this breakdown. According to them, Air Canada has not shown that it tried to avoid the damage or that it was impossible for it to take the measures that could reasonably be required to do so.
 The applicants request $800 per person in compensation, that is, the equivalent of 200 percent of the base amount awarded for a denied boarding of more than six hours.
 In addition, the applicants state that they have no receipts for their expenses as they are only seeking a remedy for the flight delay of more than six hours.
 The applicants disagree with Air Canada’s statement that the Agency does not have jurisdiction to award compensation to passengers whose flight has been delayed. The applicants state that Article 22 of the Montreal Convention makes specific reference to this.
Air Canada’s position
 Air Canada submits that it complied with its Tariff obligations. It argues that its international Tariff applies as the applicants’ itinerary was between Canada and Cuba.
 Air Canada states that the flight was delayed because the crew discovered a hydraulic fluid leak. Air Canada filed the Netline operations report for this flight.
 Air Canada argues that the applicants admit having travelled on the flight in question and that this cannot be a case of denied boarding. According to Air Canada, it is impossible to argue that they were denied boarding on a flight that they admit having taken. Accordingly, the applicants cannot claim to have suffered damage as a result of denied boarding, or to be entitled to compensation.
 In addition, Air Canada argues that it issued meal vouchers during the wait before departure. Air Canada states that the applicants are not claiming compensation for interim expenses incurred as a result of the flight delay.
 Air Canada adds that the Montreal Convention provides compensation for bodily injury or for pecuniary losses resulting from flight or baggage delays while excluding non-pecuniary damage, more specifically, for inconvenience. Air Canada refers specifically to Article 29 of the Montreal Convention.
 Furthermore, according to Air Canada, the Agency does not have jurisdiction to award the damage claimed, and even if it did have jurisdiction, the nature of the damage is such that it is disallowed under its Tariff and the Montreal Convention.
 Air Canada asks that the Agency dismiss the application because it is unfounded in law.
Findings of fact
 Based on the record before it, the Agency makes the following findings of fact.
 The evidence filed shows that the delay was caused by a mechanical breakdown of Air Canada’s aircraft. This delay caused the applicants’ flight to depart approximately six hours late.
 The evidence establishes that the applicants subsequently travelled on board Air Canada’s replacement aircraft.
 The applicants received meal vouchers from Air Canada while waiting for departure.
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 set out in its tariff.
 The rule applicable to schedule irregularities as set out in the Tariff provides that Air Canada is required to use its best efforts to carry the passenger and baggage with reasonable dispatch, but no particular time is fixed for the commencement or completion of carriage. In addition, the carrier may substitute aircraft.
 The Montreal Convention provides distinct remedies depending on whether the situation constitutes a delay or denied boarding. The evidence establishes that the applicants did indeed travel on board the Air Canada flight, and consequently, compensation for denied boarding does not apply. With respect to the delay experienced by the applicants, the Montreal Convention provides that the carrier is liable for the damage occasioned by this delay, unless it can prove that it took all measures that could reasonably be required to avoid the damage. In this case, Air Canada does not dispute the delay or its liability for the pecuniary damage that the delay may have caused for the applicants.
 According to Air Canada’s Tariff, which incorporates by reference the Montreal Convention, in accordance with Article 29 of the Montreal Convention, Air Canada is only required to reimburse the expenses incurred by the applicants.
 Article 29 of the Montreal Convention states:
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.
 The Agency finds that the applicants are entitled to damage as remedy for the delay. However, the Agency notes that the applicants did not claim compensation for the expenses incurred as a result of the delay. Under the circumstances, the Agency concludes that the applicants are not entitled to a remedy.
 The Agency also notes that the applicants do not dispute that Air Canada gave them meal vouchers.
 Therefore, and in light of the above findings, the Agency concludes that Air Canada properly applied the terms and conditions set out in its Tariff.
 The Agency dismisses the application.