Decision No. 46-C-A-2018
APPLICATION by Francis Musyoki against Porter Airlines Inc. (Porter).
 Francis Musyoki filed an application with the Canadian Transportation Agency (Agency) concerning Porter’s cancellation of the Toronto-Windsor segment of his Montréal‑Toronto‑Windsor itinerary. Mr. Musyoki claims that to reach his final destination, Windsor, he paid for alternate transportation, and he states that he requested that Porter provide him with a refund for the resulting costs that he incurred, but Porter refused. In addition to the refund or compensation from Porter, he also asks the Agency to regulate Porter’s flight cancellation policies and procedures.
 The Agency will address the following issue:
Did Porter properly apply the terms and conditions set out in Rule 14(j) of its Domestic Tariff, CTA(A) No. 1 (Tariff), as required by subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)? If not, what remedy, if any, is available to Mr. Musyoki?
 For the reasons set out below, the Agency finds that Porter did not properly apply the terms and conditions set out in Rule 14(j) of its Tariff. Pursuant to paragraph 67.1(b) of the CTA, the Agency orders Porter to compensate Mr. Musyoki in the amount of $84.15. Porter is to pay this amount to Mr. Musyoki as soon as possible and no later than September 20, 2018.
 Mr. Musyoki purchased a one-way ticket from Expedia to travel from Montréal to Windsor via Toronto with Porter, departing at 5:30 p.m. on July 23, 2017. Upon his arrival at the Montréal Pierre Elliott Trudeau International Airport (Montréal Airport), Porter informed Mr. Musyoki that the Toronto-Windsor segment of his itinerary was cancelled. Porter then reprotected Mr. Musyoki on a similar itinerary for travel on July 24, 2017, departing from Montréal at 9:35 a.m., with the connecting flight from Toronto to Windsor departing at 4:45 p.m.
 The reprotected itinerary was unacceptable to Mr. Musyoki, who was scheduled to work in Windsor on July 24, 2017. He therefore requested, and was allowed, to travel on the original Montréal-Toronto segment of his itinerary. Mr. Musyoki then spent the night in Toronto and, on the morning of July 24, 2017, rented a car and drove to Windsor instead of awaiting the departure of the reprotected 4:45 p.m. flight (reprotected 4:45 p.m. flight).
 Subsection 67(3) of the CTA requires that the holder of a domestic licence 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 67.1 of the CTA empowers the Agency to direct the carrier to:
- apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;
- 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
- take any other appropriate corrective measures.
 Rule 14(j) of Porter’s Tariff, which sets out the conditions of carriage related to cancellations by the carrier and the associated remedies available to passengers, provides, in part, that:
(a) If the passenger’s journey is interrupted due to overbooking, a flight cancellation or an advancement of a flight’s scheduled departure by more than the minimum period for the passenger to check in pursuant to Rule 20 of this Tariff (each a “Schedule Irregularity”), the Carrier will offer the passenger the choice of accepting one or more of the following remedial choices:
- alternative transportation, within a reasonable time and without additional charge, to the passenger’s intended destination;
- return transportation to the passenger’s point of origin within a reasonable time and without additional charge; and
- a refund of the fare paid by the passenger for each unused segment, and, subject to Rule 14(j)(c) below, for segments already flown if they no longer serve the purpose for which the passenger undertook such travel;
(b) In defining the remedy or remedies appropriate in each case arising under Rule 14(j)(b) above, the Carrier:
- will consider, to the extent they are known to the Carrier, the transportation needs of the passenger and/or other relevant circumstances of the passenger affected by the Schedule Irregularity;
- will not limit itself to considering its own services or the services of carriers with which it has interline or code-sharing agreements; and
- will make a good faith effort to fairly recognize, and appropriately mitigate, the impact of the Schedule Irregularity upon the passenger.
(c) If the Carrier demonstrates that (1) the Schedule Irregularity occurred for reasons beyond its control, and (2) it took all reasonable measures to avoid the Schedule Irregularity or it was impossible for the Carrier to take such measures, then the Carrier shall not be required to refund passengers for segments already travelled, regardless of whether they serve the purpose for which the passenger undertook such travel.
(d) The rights of a passenger against the Carrier in the event of overbooking and cancellation is, in most cases of international carriage, governed by the Montreal Convention. Article 19 of that Convention provides that an air carrier is liable for damage caused by delay in the carriage of passengers and goods unless it proves that it took all reasonable measures to avoid the damage or that it was impossible for it to take such measures. […]
 Rule 16.1 of Porter’s Tariff, which governs passenger expenses resulting from delays, provides, in part, that:
(a) Passengers will be entitled to reimbursement from the Carrier for reasonable expenses incurred as a result of a delay, subject to the following conditions:
- The Carrier shall not be liable for any damages, costs, losses or expenses occasioned by delays if it, and its employees and agents, took all measures that could reasonably be required to avoid the damage or if it was impossible for the Carrier and its employees or agents to take such measures;
Mr. Musyoki’s position
 Mr. Musyoki states that the core of his complaint is that Porter has adopted a business strategy according to which it advertises flight routes, induces passengers to purchase tickets and then often cancels the flights, claiming it lacks crew. He therefore proposes that the Agency implement a regulatory regime in order to create fair rules and tariffs concerning flight cancellations. Mr. Musyoki’s proposed regulatory regime includes the following features: (a) that the Agency require airlines to report involuntarily cancelled flights and impose fines on carriers with unusually high rates of cancellation; (b) compensation for passengers whose flights have been involuntarily cancelled; (c) refunds of the value of the entire ticket or unused portion of the fare; and (d) the implementation of rescheduling procedures for involuntarily cancelled flights (proposed regulatory regime).
 Additionally, Mr. Musyoki alleges that the submissions filed by Porter in its response to Decision No. LET-C-A-16-2018 (response) support his argument to the effect that Porter cancels flights that are not fully booked as part of a business strategy. In particular, Mr. Musyoki argues that the information contained in Porter’s response demonstrates that Porter cancelled the partially-booked Toronto-Windsor flight on his original itinerary, and reprotected those passengers on two later Porter flights. According to Mr. Musyoki, this cancellation caused the later flights to be fully booked and it was only then that Porter assigned a crew to those later flights.
 Porter submits that Mr. Musyoki’s allegation that it cancelled his flight (and implicitly many others) as a part of a calculated “financial tactic” for unexplained monetary gain goes beyond the factual circumstances of his travel from Montréal to Windsor. Porter argues that Mr. Musyoki’s position in this regard, which is based on Mr. Musyoki’s anecdotal experience with respect to a single itinerary, is without merit.
Analysis and determinations on the preliminary matter
 Mr. Musyoki requests that the Agency broadly regulate Porter’s (and seemingly other carriers’) policies concerning flight cancellations, including those pertaining to rescheduling procedures and compensation regimes.
 The proposed regulatory regime and related remedies sought by Mr. Musyoki are outside the scope of the current matter, and are not within the Agency’s mandate. The Agency, however, notes that, as a result of recent amendments to the CTA, it has launched a public consultation process as part of its mandate to establish new air passenger protection regulations.
 With respect to the allegation that Porter reassigns crews away from flights that are not fully booked as a business strategy, and without addressing whether the Agency would have jurisdiction over this aspect of the application, the Agency notes that no evidence was put before it to suggest that Porter did not intend to operate the cancelled flight.
DID PORTER PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULE 14(J) OF ITS TARIFF, AS REQUIRED BY SUBSECTION 67(3) OF THE CTA? IF NOT, WHAT REMEDY, IF ANY, IS AVAILABLE TO MR. MUSYOKI?
Positions of the parties and findings of fact
MR. MUSYOKI’S POSITION
 Mr. Musyoki submits that he presented himself at the Montréal Airport approximately 1.5 hours before the scheduled departure of his flight to Toronto on July 23, 2017. He states that upon approaching Porter’s customer service desk, he was advised that Porter had cancelled the Toronto‑Windsor segment of his itinerary, due to a lack of available crew. While Porter states that it notified Expedia’s agent of the flight cancellation, Mr. Musyoki maintains that he received no advanced notification.
 Mr. Musyoki submits that his situation was dire in that he was scheduled to work in Windsor on July 24, 2017, where he practices medicine. Mr. Musyoki explains that he had patients booked and had paid support staff to work on July 24, 2017. Mr. Musyoki submits that he therefore requested that Porter make reasonable efforts to arrange alternative transportation to his final destination, in light of the fact that Porter had voluntarily cancelled the flight. According to Mr. Musyoki, Porter’s customer service agent remained adamant that he would receive no assistance from Porter to travel to Windsor and presented him with a single option, namely that he spend the night in Montréal and travel the next day at 4:45 p.m. Mr. Musyoki submits that this option was unacceptable, as this would mean a whole day of cancelled patient services and financial losses.
 Mr. Musyoki states that as he received no help from Porter’s agents, he called Expedia, and the agent advised him that although Porter had an earlier flight departing from Toronto to Windsor on July 24, 2017 at approximately 9:35 a.m. (9:35 a.m. flight), Porter prevented Expedia from booking him on that flight. Mr. Musyoki adds that the Expedia agent also attempted to make an entirely new reservation, but that no other airline had available flights. Mr. Musyoki states that the Expedia agent then advised him to travel to Toronto and attempt to speak with Porter’s customer service representatives upon his arrival, and that is what he did.
 Mr. Musyoki submits that upon arriving in Toronto on July 23, 2017, he spoke with two other Porter agents, who confirmed the existence of the 9:35 a.m. flight, which was not full. Mr. Musyoki maintains that the Porter agents nevertheless insisted that his only option was to travel on the reprotected 4:45 p.m. flight on July 24, 2017. Mr. Musyoki states that he asked for assistance in booking a train or car to minimize his losses, but that the Porter agents insisted that his only option was to leave the airport, check into a hotel and return the next afternoon. Mr. Musyoki submits that he therefore rented a car on the morning of July 24, 2017 and drove five hours to Windsor.
 Mr. Musyoki states that he later submitted a complaint to Porter, in which he requested that Porter reimburse the unused portion of his fare as well as the cost of the car rental, and that Porter refused to do so. To support his claim, Mr. Musyoki provided a copy of his flight itinerary and a copy of the receipt for the car rental in the amount of $84.15.
 Porter acknowledges that it cancelled the Toronto-Windsor segment of Mr. Musyoki’s itinerary, and states that it had to do so due to the unavailability of a Captain to pilot that flight. Porter submits that promptly upon cancellation of Mr. Musyoki’s flight, it sent an e-mail notification to the e-mail address provided for each booking at the time of purchase. Porter submits that, in Mr. Musyoki’s case, the e-mail address provided was email@example.com. Porter understands that “TEH TFS Global” is a fulfillment agent for Expedia. Porter states that it has no knowledge as to whether Mr. Cheng attempted to pass the notification on to Mr. Musyoki or otherwise notify him of the cancellation.
 Porter submits that upon cancellation of the flight, it promptly reprotected Mr. Musyoki on a similar two-flight itinerary from Montréal to Windsor via Toronto, departing the following morning (i.e. July 24, 2017). Porter acknowledges that the reprotected itinerary involved a layover in Toronto, as the Toronto-Windsor segment of the reprotected itinerary was not scheduled to depart until 4:45 p.m. Porter also acknowledges that Mr. Musyoki instead asked to retain his seat on the Montréal-Toronto flight on his original itinerary and that he travelled to Toronto on the night of July 23, 2017. Porter indicates that it provided a hotel room for Mr. Musyoki’s stay in Toronto on the night of July 23, 2017.
 Porter points out Mr. Musyoki’s submission that, following his arrival in Toronto, he sought to be put on the 9:35 a.m. flight. Porter, however, maintains that that flight was sold to capacity. Porter further points out that on the morning of July 24, 2017, Mr. Musyoki again sought to get a seat on the 9:35 a.m. flight, but states that no seats had become available. Porter, however, acknowledges that, as a result of no-shows, the 9:35 a.m. flight ultimately departed with 16 empty seats.
 Porter refers the Agency to Rule 14(j) of its Tariff, which governs carrier cancellations and the resulting remedies to passengers. Porter submits that pursuant to Rule 14(j)(a), in the event of a flight cancellation by Porter, Porter will offer the passenger a choice between the following three options: (i) alternative transportation, within a reasonable time and without additional charge, to the passenger’s intended destination; (ii) return transportation to the passenger’s point of origin within a reasonable time and without additional charge; and (iii) a refund of the fare paid by the passenger for each unused segment as well as for segments already travelled if they no longer serve the purpose for which the passenger undertook such travel. Porter submits that Rule 14(j)(b) enshrines the circumstance-focused approach that has been promulgated by the Agency’s decisions concerning passenger remedies for cancellation. Specifically, Porter explains that Rule 14(j)(b) provides that Porter will not limit itself to considering its own flights if the transportation needs of the passenger known to the carrier weigh in favour of booking on another airline to ensure faster delivery to the destination. Porter submits that Rule 16 of its Tariff complements Rule 14, providing that in the event of a “controllable” cancellation or delay, Porter will reimburse reasonably-incurred out-of-pocket expenses that result from a schedule irregularity.
 Porter points out that Mr. Musyoki does not allege that he made the urgency of his particular travel needs known to any Porter agent and that, in any event, Mr. Musyoki acknowledges that there were no seats available from Toronto to Windsor on any other airline on the date of his initially scheduled departure. Porter maintains that, by reprotecting Mr. Musyoki within a reasonable time based on the circumstances known to Porter and absent any request by Mr. Musyoki that his fare be cancelled and refunded, Porter fulfilled its obligations under Rule 14(j) of its Tariff.
 Porter indicates that Mr. Musyoki submitted a complaint to its Customer Relations team, in response to which Porter took the position that (a) Porter had fulfilled its Tariff obligations by reprotecting Mr. Musyoki within a reasonable time on the next flight; (b) Porter would authorize a refund of the unused portion of Mr. Musyoki’s fare; and (c) to the extent that Mr. Musyoki had incurred travel expenses from Toronto to Windsor over and above the amount of any refund for that portion of his journey, Porter would pay the difference. Porter states that Mr. Musyoki must, however, advise his travel agent to request a refund authorization from Porter so that the agent may provide Mr. Musyoki with a refund.
FINDINGS OF FACT
 It is uncontested that Porter cancelled the Toronto-Windsor segment of Mr. Musyoki’s itinerary on the date on which the flight was scheduled to depart (i.e. July 23, 2017), and that Porter subsequently reprotected Mr. Musyoki for travel on July 24, 2017. It is also uncontested that the Toronto-Windsor flight on the reprotected itinerary was not scheduled to depart until 4:45 p.m. on July 24, 2017, and that there was an earlier flight scheduled to depart at 9:35 a.m. on that same day. Porter concedes that although all 74 seats on the 9:35 a.m. flight were fully booked on the morning of July 24, 2017, the flight ultimately departed with 16 empty seats as a result of no‑shows.
 Based on the above, the Agency finds that on July 23, 2017, Mr. Musyoki’s journey was interrupted by a schedule irregularity, as described in Rule 14(j) of Porter’s Tariff, and that Porter reprotected Mr. Musyoki for travel on July 24, 2017. The Agency also finds that, on a balance of probabilities, the 9:35 a.m. flight departed with 16 empty seats.
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.
 Rule 14(j)(d) of Porter’s Tariff incorporates the liability rules set out in the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention). Article 19 of the Montreal Convention provides that an air carrier is liable for damage caused by delay in the carriage of passengers and cargo unless the carrier proves that it took all reasonable measures to avoid the damage or that it was impossible for it to take such measures.
 Porter argues that, by reprotecting Mr. Musyoki within a reasonable time based on the circumstances known to Porter and absent any request by Mr. Musyoki that his fare be cancelled and refunded, Porter fulfilled its obligations pursuant to Rule 14(j) of its Tariff. Mr. Musyoki, on the other hand, maintains that Porter did not demonstrate that it took all reasonable measures to meet its obligations, as Porter has not established that it has a reasonable human resource plan in place to mitigate staff unavailability. Mr. Musyoki further argues that Porter has not established that all seats on the 9:35 a.m. flight departing on July 24, 2017 were filled when he first requested assistance or that all Air Canada flights were fully booked when Porter first knew that it would cancel Mr. Musyoki’s initially scheduled flight.
 To comply with the terms and conditions set out in Rule 14 of Porter’s Tariff, the Agency finds that Porter should have placed Mr. Musyoki on standby for the 9:35 a.m. flight departing on July 24, 2017. Porter maintains that it was not aware of the urgent need for Mr. Musyoki to be in Windsor for the day of July 24, 2017. However, even if this is so, there are two considerations that demonstrate that Mr. Musyoki treated his need to arrive in Windsor as early as possible on July 24, 2017 with urgency. Firstly, Mr. Musyoki was willing to travel to Toronto on the evening of July 23, 2017 without being guaranteed a seat on the 9:35 a.m. flight. Secondly, Mr. Musyoki contacted Porter on two separate occasions in order to gain a seat on the 9:35 a.m. flight.
 Porter acknowledges that the 9:35 a.m. flight departed with 16 empty seats as a result of “no‑shows”. Porter’s failure to reprotect Mr. Musyoki on a standby basis on this flight demonstrates that Porter did not do everything in its power, as required by Rule 14(j)(d) of its Tariff, to avoid damage caused by the cancellation of the Toronto-Montréal segment of Mr. Musyoki’s original July 23, 2017 itinerary.
 The Agency therefore finds that Porter did not properly apply the terms and conditions set out in Rule 14(j) of its Tariff, as required by section 67.1 of the CTA.
 Where the Agency finds that, contrary to subsection 67(3) of the CTA, the holder of a domestic licence has not applied the terms or conditions of carriage set out in the applicable tariff, section 67.1 of the CTA provides that the Agency may order the licensee to compensate any person adversely affected for any expenses that the person incurred as a result of the licensee’s failure to apply the terms or conditions set out in its tariff.
 The Agency notes that Mr. Musyoki provided a receipt showing that he rented a car at the cost of $84.15 to travel from Toronto to Windsor. The Agency therefore orders Porter to compensate Mr. Musyoki in the amount of $84.15.
 The Agency finds that Porter did not properly apply the terms and conditions set out in Rules 14(j) of its Tariff.
 Pursuant to paragraph 67.1(b) of the CTA, the Agency orders Porter to compensate Mr. Musyoki in the amount of $84.15. Porter is to pay this amount to Mr. Musyoki as soon as possible and no later than September 20, 2018.