Decision No. 41-C-A-2018

SUMMARY

[1] Élisabeth Tsoulou filed an application with the Canadian Transportation Agency (Agency) against Air Canada and Air France regarding a flight delay and the delayed delivery of her baggage on the return portion of her trip between Montréal, Quebec, and Pointe-Noire, Republic of Congo, via Paris, France.

[2] Ms. Tsoulou is claiming compensation in the amount of $1,000, $1,500 to reimburse ticket overpayment, $2,000 for damages and $50 to reimburse the cost of a taxi in Pointe‑Noire.

[3] 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), 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 Ms. Tsoulou?

Did Air France properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 313 (Tariff), as required under subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Air France did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Ms. Tsoulou?

[4] For the reasons set out below, the Agency finds that Air Canada and Air France properly applied the terms and conditions set out in their respective tariffs. Accordingly, the Agency dismisses the application.

BACKGROUND

[5] On November 1, 2016, Ms. Tsoulou took Flight No. AC870 at 9:10 p.m. to Paris. She should then have taken Flight No. AF0830 to Pointe-Noire, the departure time of which was scheduled for November 2, 2016 at 10:45 a.m. However, the departure time was advanced to 10:20 a.m. Ms. Tsoulou was travelling on an interline ticket.

[6] The boarding pass, issued on November 1, 2016 by Air Canada, indicates that Flight No. AF0830 was scheduled to depart at 10:20 a.m. and that the boarding of passengers was at 9:25 a.m.

[7] The scheduled arrival time for Flight No. AC870 was 8:45 a.m. on November 2, 2016. This flight actually arrived in Paris at 8:42 a.m., three minutes ahead of schedule.

[8] Air France changed Flight No. AF0830 for Air Maroc Flight No. AF1596, which included a connection in Casablanca, Morocco. The scheduled departure time for the Air Maroc flight from Paris to Casablanca was 12:25 p.m. and the scheduled departure time for the flight from Casablanca to Pointe‑Noire was 6:00 p.m.

[9] Ms. Tsoulou arrived in Pointe-Noire seven hours after the scheduled arrival time. She has health issues and cannot communicate (speak, read, write) in French.

[10] Ms. Tsoulou had requested wheelchair assistance, which was provided to her.

[11] Ms. Tsoulou’s baggage arrived in Pointe-Noire less than 24 hours late. Ms. Tsoulou retrieved her baggage.

THE LAW

[12] 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.

[13] 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:

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.

[14] The provisions of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), statutory extracts and Tariff provisions relevant to this matter are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Position of Ms. Tsoulou

[15] Ms. Tsoulou submits that Air Canada and Air France confirmed the wheelchair reservation.

[16] Ms. Tsoulou indicates that when she arrived in Paris on November 2, 2016, she did not take Flight No. AF0830. Air France changed her ticket for another flight, which included a connection in Casablanca. As such, she arrived in Pointe-Noire at 1:40 a.m. on November 3, 2016. She indicates that her family was concerned.

[17] Ms. Tsoulou adds that Air France did not inform her family of the flight change. According to Ms. Tsoulou, when an explanation was requested from Air France about the flight change, the agents did not provide one.

[18] Ms. Tsoulou submits that due to the stress caused by her trip, she no longer wants to travel by air.

[19] Ms. Tsoulou questions the itinerary change in Paris, the scheduling irregularities, the unscheduled stopover, the delay in the delivery of her baggage, the ticket overpayment and finally, her delayed arrival time.

[20] Ms. Tsoulou is claiming compensation in the amount of $1,000, $1,500 to reimburse the ticket overpayment, $2,000 for damages and $50 to reimburse the cost of a taxi in Pointe‑Noire.

Position of Air Canada

[21] Air Canada recognizes that Ms. Tsoulou boarded Flight No. AC870, and that the flight left at the scheduled time and arrived at Paris-Charles De Gaulle Airport three minutes ahead of schedule. Air Canada provided the NetLine operation report for this flight.

[22] According to Air Canada, it was only after she arrived in Paris that Ms. Tsoulou did not follow the planned itinerary to get to Pointe-Noire. Air Canada indicates that it seems that Air France had issued a new ticket to Pointe-Noire, via Casablanca, and that due to this flight change, Ms. Tsoulou’s family was concerned because she did not arrive in Pointe‑Noire at the scheduled time.

[23] Air Canada submits that, pursuant to article 29 of the Montreal Convention, any damages for distress and inconveniences during international carriage by air are not recoverable. The Montreal Convention provides compensation for bodily injury or related to financial losses resulting from flight or baggage delays. Air Canada adds that the Supreme Court of Canada acknowledged this in Thibodeau v. Air Canada, 2014 SCC 67.

[24] Furthermore, according to Air Canada, the Agency does not have jurisdiction to grant the damages claimed, and even if it did, the nature of the damages claimed makes them inadmissible according to its Tariff and the Montreal Convention.

[25] With respect to the other amounts claimed, Air Canada states that Ms. Tsoulou has not submitted evidence to justify these amounts.

[26] Air Canada assumes no liability for the annoyances (inconveniences) experienced by Ms. Tsoulou. According to Ms. Tsoulou’s ticket history, Air Canada indicates that Air France issued a new ticket at 9:19 a.m., Zulu time, (or 11:19 a.m., Paris time) for the segment of the trip departing from Paris. Air Canada claims that Ms. Tsoulou confirms this information in her submissions.

[27] Furthermore, Air Canada adds that the new ticket begins with the code 057, which is Air France’s code. This number appears on the boarding passes and in the ticket history. Air Canada states that it is in unaware of the reasons for the changes to the ticket and itinerary.

[28] Air Canada submits that it met its Tariff obligations, and that it issued the boarding passes for the complete itinerary. It indicates that it also made notes in the Historical Passenger Name Record concerning the passenger’s physical condition and the need for wheelchair assistance. Air Canada claims that Ms. Tsoulou confirms this information in her submissions.

[29] Air Canada submits that it cannot be held responsible for events that took place under the direction of Air France.

[30] Finally, Air Canada requests that the Agency reject the application because it is not founded in fact or law.

Position of Air France

[31] Air France recognizes that Ms. Tsoulou had a reservation for Flight No. AF0830, that she did not board that flight and that she had requested wheelchair assistance for all flight segments. Furthermore, Air France recognizes that Ms. Tsoulou did not travel on Flight No. AF0830.

[32] However, Air France denies responsibility for the delay in taking over Ms. Tsoulou’s care once she arrived in Paris and the fact that she could not travel on Flight No. AF0830, as well as the damages alleged by Ms. Tsoulou.

[33] Air France submits that, in accordance with the provisions of Regulation (EC) No. 1107/2006, Aéroports de Paris, the airport authority, is responsible for the care of passengers with reduced mobility at Paris-Charles De Gaulle Airport. This responsibility does not fall to the carrier.

[34] According to Air France, it was the responsibility of the carrier arriving at the airport, in this case Air Canada, to inform Aéroports de Paris that Ms. Tsoulou required wheelchair assistance during her connection and that she was on her way.

[35] Air France indicates that, because an Aéroports de Paris agent brought Ms. Tsoulou to the Air France check-in counter after boarding for Flight No. AF0830 had finished, she could not board that flight. Air France claims that it took the necessary measures to transport Ms. Tsoulou to her destination as quickly as possible by rerouting her via Casablanca.

[36] According to Air France, it met its obligations and it is not responsible for the actions of Aéroports de Paris.

[37] With respect to the delay in delivering the baggage, Air France asserts that Ms. Tsoulou did not submit any proof of purchase for replacement items.

Findings of fact

[38] Based on the record before it, the Agency makes the following findings of fact.

[39] Ms. Tsoulou has health issues and requires wheelchair assistance. She cannot speak French and does not know how to read or write it. She arrived in Pointe-Noire more than seven hours late. Ms. Tsoulou had a difficult and stressful trip, during which she experienced several annoyances (inconveniences).

[40] Ms. Tsoulou held a ticket that included interline flights, meaning that the flights were managed by two or more carriers, under their own terms and conditions. For the convenience of passengers and the participating carriers, all segments of the interline travel appear on the same ticket and the fare for the journey is paid to the ticketing carrier and later distributed between the carriers that provide the transportation.

[41] Air carriers participating in interline arrangements are responsible for establishing their own terms and conditions of carriage that apply to their passengers on their flight segments. They do not, however, have common tariffs and are not responsible for each other’s terms and conditions of carriage.

[42] The evidence submitted demonstrates that Ms. Tsoulou was on board Air Canada Flight No. AC870 that departed Montréal on time and arrived in Paris three minutes ahead of schedule. Air Canada also provided wheelchair assistance and issued the boarding passes for all of the flights indicated on the ticket. Consequently, Air Canada respected the terms and conditions of the Tariff for its segment of the trip to which the Tariff applied.

[43] Ms. Tsoulou arrived at the Air France check-in counter after the scheduled boarding time for Flight No. AF0830. The evidence on file confirms that on November 2, 2016 at 11:19 a.m., Paris time, Air France issued a new ticket to Ms. Tsoulou, which modified her itinerary and added a connection in Casablanca to her flight to Pointe‑Noire.

ANALYSIS AND DETERMINATIONS

[44] 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 the terms and conditions set out in its tariff.

[45] Rule 85 of Air France’s Tariff, which relates to schedules, provides that the schedules are indicative and maybe be subject to changes for reasons beyond the control of the carrier. It also provides that it is the responsibility of the passenger to communicate their contact information so that they can be contacted in the event of a schedule change, and that Air France is required to transport passengers without delay.

[46] Rule 70 of Air France’s Tariff, which relates to boarding, provides that, in the event of an Air France flight where the passenger is at the airport, the passenger must arrive at the check-in counter with their baggage at least 60 minutes before the scheduled departure time. It also provides that the carrier can cancel the seat reserved for the passenger, without any liability toward the passenger.

[47] Given that that scheduled departure time for Flight No. AF0830 was advanced to 10:20 a.m. and that the boarding of passengers was at 9:25 a.m., Air France was required to transport Ms. Tsoulou without delay. According to the evidence submitted, as Ms. Tsoulou arrived at the Air France check-in counter after boarding for Flight No. AF0830 had finished, that is, less than 60 minutes before the scheduled departure time, the issuance by Air France of a new ticket that included a new itinerary was justified.

[48] As Air France rerouted Ms. Tsoulou on a later flight to Pointe-Noire free of charge, the Agency concludes that Air France properly applied the terms and conditions set out in its Tariff.

[49] The Agency notes that Ms. Tsoulou did not substantiate her application for compensation for expenses incurred. Given the circumstances, the Agency concludes that Ms. Tsoulou is not eligible for compensation.

[50] Consequently, and in light of the above findings of fact, the Agency concludes that Air Canada and Air France properly applied the terms and conditions set out in their respective tariffs. However, the Agency adds that, despite the fact that the air carriers properly applied the terms and conditions set out in their respective tariffs, it seems apparent that Ms. Tsoulou had a very negative experience during her trip. Under such circumstances, as a gesture of good faith towards Ms. Tsoulou, a voluntary compensation on the part of Air Canada and Air France would not be unprecedented.

CONCLUSION

[51] The Agency dismisses the application.

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Appendix to Decision

Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention

Article 29 provides that:

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.

Rule 85 of Air France’s Tariff provides, in part, as follows:

SCHEDULES, DELAYS AND CANCELLATIONS OF FLIGHTS

(A) SCHEDULES

(1)  The flights and flight schedules listed in the schedule indicators have no contractual value and are solely intended to inform passengers of the flights offered by the Carrier. Said schedule indicators are not definitive and are liable to be changed after their publication date. On the other hand, the flight schedules printed on the carriage ticket are deemed, subject to changes for reasons beyond the control of the Carrier, to be an integral part of the contract of carriage.

(2)  The flight schedules will be issued prior to acceptance of the passenger’s reservation and reproduced on the ticket. The flight schedules thus planned may, however, be changed following the issue of the ticket. In this case, passengers will be informed if the Carrier has their contact details. Passengers are nevertheless requested to check with the Carrier, before their scheduled departure date, that the flight schedules shown on their carriage ticket or their travel memo have not changed. However, in the event of a schedule change that is not convenient for the passenger and/or if the Carrier is not in a position to offer a more suitable reservation, the passenger may benefit from a refund, as stated in Rule 90 Refunds.

(B) CANCELLATIONS, REROUTING, DELAYS

(1)  The Carrier will take all steps required to carry the passenger and their baggage without delay. In this respect, and with the aim of avoiding cancelling the carriage, the Carrier may be led to offer carriage to the passenger in another aircraft or to make the journey on another Carrier’s flights and/or by any other means of carriage.

[…]

(2)  (b) Reroute the passenger to the destination shown on the ticket within a reasonable time, in whole or in part on the Carrier’s own flights or those of another Carrier, or by any other means of carriage agreed on with the passenger. If the fare and charges for the new routing are lower than the refund value of the ticket, in whole or in part, the difference will be refunded to the passenger, or

[…]

Rule 70 of Air France’s Tariff provides, in part, as follows:

CHECK-IN AND BOARDING TIMES

[N] For the purpose of this rule, check-in is the point for checking baggage and the boarding gate is the point where the boarding pass stub is lifted and retained by the carrier.

(A) Check-in Deadline (CID) [C]–see check-in deadline paragraph C below. Passengers are recommended to check said deadlines beforehand. Passengers must imperatively comply with Check-in Deadlines, in order to facilitate their journey and avoid their Reservations being cancelled. The Carrier or its Authorised Agent shall provide passengers with all requisite information on the Check-In Deadline for their first flight with the Carrier. If the passenger’s journey contains subsequent flights, it is up to the passenger to obtain information on the Check-In Deadlines, by consulting the Carrier’s Schedules or those of its authorised agents.

[…]

(C) Check-In Deadline at Airports or Railway Stations:

(1) Airport:

(a) Passenger must check-in with his/her baggage at least 60 minutes prior to scheduled departure time and be at the boarding gate at least 45 minutes before the scheduled departure time on Air France operating flights or on Air France flight numbers operated by KLM;[…]