Determination No. A-2019-58

SUMMARY

[1] Between April 14 and April 18, 2018, widespread service issues were experienced by passengers with reservations on Sunwing flights scheduled to depart from or arrive in Toronto, Ontario, and Montréal, Quebec. These issues included lengthy rolling flight delays, tarmac delays, issues with baggage delivery and a lack of communication from the carrier.

[2] During the period in question, a total of 16,255 passengers travelled on board 96 affected flights. Five hundred and seventy-eight complaints from individual passengers regarding issues with these flights were submitted to the Agency.

[3] The initial triggering event that led to these issues was an ice storm in Toronto, which was obviously beyond Sunwing’s control. However, the way that the carrier and its agent at the time, Swissport Canada Inc. (Swissport), handled the situation exacerbated the difficulties experienced by passengers.

[4] Based on the record before it, the Agency finds that during these events, Sunwing failed, in respect of at least some of the 96 affected flights, to properly apply the terms and conditions of carriage set out in its tariffs regarding:

• flight delays, including the provision of meal vouchers, hotel accommodations and refund or cancellation options;

• tarmac delays, including the provision of snacks and drinks, and the option to disembark; and

• communication with passengers regarding flight status and lost or delayed baggage.

[5] Based on these findings, the Agency orders Sunwing to:

• compensate passengers for out-of-pocket expenses incurred as a consequence of these failures to properly apply its tariffs by June 28, 2019;

• revise Rules 15(4)(b) and 15(4)(c) to make them consistent with the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention); and

• undertake contingency planning to ensure that, in the case of widespread flight disruptions in the future, it can meet its tariff obligations, including in respect of communication, refund or reprotection, the provision of meal vouchers, compensation for hotel accommodations and transfers, and tarmac delays.

[6] This Determination addresses the 574 individual passenger active complaints filed with the Agency. Sunwing is required to make every effort to settle expense claims individually with all passengers who are owed compensation, whether or not they submitted a complaint. The parties can avail themselves of the Agency’s facilitation and mediation services, which are available free of charge, to the extent required to reach agreement on compensation. Should a dispute regarding compensation exist even after attempts at informal resolution, the Agency may adjudicate the matter.

BACKGROUND

Initiation of inquiry and Inquiry Officer’s report

[7] Between April 14 and April 18, 2018, during and after an ice storm in Toronto, widespread service issues affected Sunwing flights scheduled to depart from or arrive in Toronto and Montréal. Passengers experienced lengthy rolling flight delays, tarmac delays, issues with their baggage and a lack of communication from the carrier.

[8] On April 25, 2018, in light of multiple complaints from passengers and media reports, the Agency initiated, on its own motion, an inquiry into matters related to Sunwing flights in Toronto during the period in question. Decision No. LET-A-30-2018 informed Sunwing of the launch of the inquiry and the appointment of an Inquiry Officer. This Decision also stated that the inquiry would consider whether Sunwing had properly applied the terms and conditions of carriage set out in its relevant tariffs, and whether those terms and conditions were reasonable, in respect of:

• flight delays;
• flight cancellations;
• tarmac delays; and
• lost, damaged and delayed baggage.

[9] On May 2, 2018, in Decision No. LET-A-31-2018, the Agency expanded the inquiry to include issues related to Sunwing flights scheduled to depart from or arrive in Montréal during the same period.

[10] On October 25, 2018, the Inquiry Officer provided his final report to the Agency, which identified four causes of the disruption in service experienced by passengers:

• severe weather conditions in Toronto;
• staff shortages at Swissport;
• widespread communication issues; and
• Sunwing’s business model.

Interrogatories

[11] On October 15, 2018, in Decision No. LET-A-68-2018, the Agency sought additional information from Sunwing by way of interrogatories in order to complete the evidentiary record. After being granted an extension, Sunwing responded to the interrogatories on November 2 and November 6, 2018.

[12] On December 24, 2018, in Decision No. LET-A-93-2018, the Agency found that certain business information provided by Sunwing in its response to the interrogatories (some of which had been previously provided to the Inquiry Officer) met the test for confidentiality and would be treated as such; that is, not placed on the public record.

Show cause decision

[13] On January 22, 2019, in Decision No. LET-A-18-2019 (Show Cause Decision), the Agency found, on a preliminary basis, that Sunwing had not properly applied a number of its tariff rules during the events that are the focus of the inquiry. The Show Cause Decision provided the carrier with an opportunity to demonstrate why the Agency should not finalize these findings. Passengers were also provided with the opportunity to provide comments. The Agency also adopted the Inquiry Officer’s report pursuant to subsection 38(2) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) and stayed its assessment of the reasonableness of the tariff provisions at issue, given the progress towards development of air passenger protection regulations pursuant to amendments made to the CTA by the Transportation Modernization Act, S.C., 2018, c. 10.

[14] In Decision No. LET-A-22-2019, the Agency granted the carrier and passengers an extension of time to provide their submissions in response to the Show Cause Decision. Additionally, the Agency ordered that certain sensitive personal information provided by passengers during the course of the inquiry be treated as confidential.

Carrier’s response

[15] On February 19, 2019, Sunwing provided its response to the Show Cause Decision. The carrier argued that “there were only minimal breaches to its tariff rules”. Sunwing did not dispute the Agency’s preliminary finding that it was responsible under its tariffs for the service failures of its agent, Swissport. Details on the carrier’s position regarding its application of its various tariff rules are set out in greater detail below.

[16] Sunwing also underscored steps it had taken to address the systemic issues that had occurred. The carrier argued that it had provided goodwill gestures “exceeding both its tariff obligations and its Passenger Care Commitment” (a non-binding carrier policy) and that it “[…] has made every effort to respond individually to each passenger complaint it has received […]”. Finally, Sunwing stated that it had cancelled its contract with Swissport.

Passengers’ comments

[17] By February 27, 2019, the Agency received submissions from 80 passengers. Many disputed the carrier’s assertion that it had made every effort to address their complaints, and many remain unsatisfied with what they have received from the carrier.

THE LAW AND RELEVANT TARIFF PROVISIONS

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

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.

[19] Subsection 111(3) of the ATR provides that the “Agency may determine […] whether in any case the air carrier has complied with the provisions of […] section 110.”

[20] Subsection 113.1 of the ATR provides that:

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

(a) take the corrective measures that the Agency considers appropriate; and

(b) 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.

[21] The relevant tariffs are Sunwing’s Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada on the Other Hand, CTA(A) No. 3 (Scheduled International Tariff) and its Charter Tariff Containing Rules, Rates and Charges Applicable to the Charter of Aircraft for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada on the Other Hand, CTA(A) No. 1 (Non-Scheduled International Tariff). The provisions of these tariffs relevant to this inquiry can be found in Appendices A and B.

FINDINGS OF FACT

[22] It is clear from the record that the initial trigger for the breakdown in service by Sunwing on the weekend in question was an ice storm in Toronto. Although the weather may have appeared fine to passengers in other locations or in Toronto after the storm had passed, the weather-related delays resulted in knock-on delays throughout the carrier’s network, notably in Montréal. Over the time period in question, a total of 77 flights were delayed by more than 4 hours; 43 flights were delayed by more than 8 hours; 15 scheduled flights were delayed on the tarmac for over 90 minutes; and multiple passengers’ baggage was lost, delayed and/or damaged.

[23] The ice storm had been forecasted several days in advance of the period in question, as evidenced by media reports as early as Wednesday, April 11, 2018. Consequently, the Greater Toronto Airport Authority (GTAA) asked air carriers to reduce their planned flights, as it sought to decrease traffic at the airport by 60 percent to help alleviate the impact that the adverse weather conditions were expected to have on the airport’s and carriers’ operations.

[24] In contrast to other carriers, Sunwing did not cancel any of its flights. The evidence indicates that this was at least in part due to Sunwing’s business model and its belief that delaying rather than cancelling its flights would be less disruptive to its passengers, who were on their way to or from vacation destinations.

[25] The record shows that another cause of the Sunwing service disruptions was staffing problems experienced by Swissport. Swissport was responsible for providing a number of different types of ground handling services on behalf of Sunwing on the days in question, including passenger services, such as check-in and boarding gate agents, and aircraft and ramp services, such as baggage handling and aircraft guidance. For most passengers, the Swissport employees who were working inside the terminal were indistinguishable from Sunwing employees, and were often the main point of contact for those affected by Sunwing’s flight disruptions. A large number of Swissport agents did not show up for work due to the ice storm, with absenteeism peaking at 21.3 percent on Sunday, April 15, 2018. The number of Swissport staff who showed up for work was insufficient to provide efficient services for all of the Sunwing flights attempting to depart and arrive during the period in question, particularly given the carrier’s decision to attempt to operate all planned services.

[26] Finally, the evidence indicates that problems related to weather, the schedule and staffing were compounded by a lack of communication between the major players, including Sunwing, the GTAA and Swissport. Sunwing, in particular its Operations Control Centre, took a relatively hands-off approach to managing its agent, Swissport, and its operations, and took time to intervene as the situation on the ground deteriorated and the backlog of flights grew.

ISSUES

[27] In this Determination, the Agency makes final findings on whether Sunwing properly applied the terms and conditions of carriage set out in its Scheduled International Tariff and its Non-Scheduled International Tariff, as required by subsection 110(4) of the ATR, in relation to the following matters:

SCHEDULED FLIGHT

Flight delays

Did Sunwing properly apply the terms and conditions set out in Rules 10, 16(a) and 16(b) of its Scheduled International Tariff in respect of meal and hotel vouchers, and expenses?

Did Sunwing properly apply the terms and conditions set out in Rules 15(3)(a) and 15(3)(b) of its Scheduled International Tariff in respect of rerouting and refunds?

Baggage

Did Sunwing properly apply the terms and conditions set out in Rules 11 and 15(4) of its Scheduled International Tariff in respect of the transportation of baggage?

Communication

Did Sunwing properly apply the terms and conditions set out in Rules 15(4)(b) and 15(1)(f) of its Scheduled International Tariff in respect of communication with passengers?

Tarmac Delay

Did Sunwing properly apply the terms and conditions set out in Rule 16(c) of its Scheduled International Tariff in respect of its tarmac delays?

NON-SCHEDULED FLIGHT

Did Sunwing properly apply the terms and conditions set out in Rules 9 and 10 of its Non‑Scheduled International Tariff in respect of the Montreal Convention and baggage?

[28] Three general principles guide the Agency’s assessment of these matters. The first is that events outside the control of a carrier do not release the carrier from its responsibility to deal appropriately with the effects of those events. The ice storm was clearly beyond Sunwing’s control, but adverse weather had been in the forecast for several days, leaving the carrier time to plan and prepare accordingly. Sunwing was obligated throughout the period in question to make all reasonable efforts to avoid and minimize impacts on passengers and ensure that they received their entitlements under its tariffs.

[29] The second principle is that because the tariff lays out terms and conditions of carriage for each passenger, a tariff violation may be found even if only some (and not all) passengers affected by a flight disruption were not treated in a manner consistent with those terms and conditions.

[30] The third principle is that carriers are responsible for their agents. Sunwing, therefore, cannot rely on shortcomings in Swissport’s performance as a defence regarding any failure to apply its tariffs. Sunwing acknowledges that it was responsible for Swissport’s actions.

SCHEDULED FLIGHT

Flight Delays

Did Sunwing properly apply the terms and conditions set out in Rules 10, 16(A) and 16(B) of its Scheduled International Tariff in respect of meal and hotel vouchers, and expenses?

APPLICABLE TARIFF RULES

[31] Rule 16(a) of Sunwing’s Scheduled International Tariff states that for a delay that exceeds four hours, the carrier will provide the passengers with a meal voucher. Rule 16(b) of its Scheduled International Tariff states that for a delay of more than eight hours that includes an overnight stay, the carrier will pay for an overnight hotel stay and “airport transfers” for passengers “who did not start their travel at that airport”.

[32] Rule 10 of its Scheduled International Tariff also incorporates by reference the Montreal Convention with respect to expenses for passenger delay.

THE AGENCY’S PRELIMINARY FINDING

[33] In the Show Cause Decision, the Agency found, on a preliminary basis, that Sunwing did not properly apply Rules 16(a) and 16(b) of its Scheduled International Tariff for some passengers, given that the Inquiry Officer’s report indicated that some but not all affected passengers received meal vouchers and that some but not all affected passengers outside their home city were offered hotel accommodation.

POSITIONS OF THE PARTIES

Sunwing

[34] Sunwing argues that it authorized the distribution of meal vouchers to passengers on all flight that were delayed for more than four hours, except for two flights in Toronto. For one of those flights, the vouchers were not distributed due to a mistake, while for the other, there was not sufficient time to distribute the vouchers prior to pushback.

[35] The carrier argues that it was not required to provide hotel accommodation and transfers, but to compensate the passengers for them, and that this requirement only applied to passengers at destination, and not passengers departing from Toronto or Montréal. Using this interpretation, the carrier argues that it applied Rule 16(b) properly to passengers of all but one of the flights disrupted during the period in question.

Passengers

[36] Many passengers argue that they were not provided with a meal voucher or with a hotel stay at destination. At least one passenger alleged that they were not compensated for transportation from the hotel to the airport. Some passengers described being kept overnight in the hotel lobby at destination without a room.

ANALYSIS AND FINAL FINDINGS

[37] Sunwing’s statement that it authorized meal vouchers for passengers on all but two disrupted flights constitutes an acknowledgement that not all passengers who were entitled to meal vouchers under Rule 16(a) of its Scheduled International Tariff received them. Moreover, the evidence indicates that some passengers of other flights who were entitled to meal vouchers did not receive them either.

[38] With respect to the hotel accommodations, the carrier has conceded that it did not properly apply Rule 16(b) of its Scheduled International Tariff with respect to one flight. The Inquiry Officer also identified issues regarding hotel accommodations for passengers on other flights at the vacation destinations.

[39] Additionally, the Agency finds that Sunwing did not take all necessary measures to avoid the damages experienced by the passengers who experienced flight delays, as required by Articles 19 and 20 of the Montreal Convention, and that it was not impossible for the carrier to take such measures. As per Rule 10 of its Scheduled International Tariff, it should be noted that passengers who experienced delays are entitled to reasonable expenses under the Montreal Convention, which may include reasonable hotel expenses and transfers, irrespective of whether Rule 16(b) of its Scheduled International Tariff applies.

[40] The Agency finds that, for some passengers, Sunwing failed to properly apply Rules 16(a) and 16(b) of its Scheduled International Tariff.

Rerouting or refunds

Did Sunwing properly apply the terms and conditions set out in Rules 15(3)(A) and 15(3)(B) of its Scheduled International Tariff in respect of rerouting or refunds?

Applicable tariff rules

[41] Rule 15(3)(a) of Sunwing’s Scheduled International Tariff states that, in the case of “[…] an Advance Flight Departure, a flight delay or, a flight cancellation without reasonable notice, the Carrier will take into account all the circumstances of the case as known to it and will provide the Passenger with the option of accepting one of the following remedial choices […]”:

• reimbursement of the total ticket price if they decide to no longer travel; or
• transportation to the destination at the earliest opportunity, at no additional cost.

[42] No specific time period is identified for when these rights take effect in the case of a delay. With respect to the option to travel at no additional cost, Rule 15(3)(b) of its Scheduled International Tariff states that the carrier will consider:

[…]

(i) available transportation services, including services offered by interline, code sharing and other affiliated partners and, if necessary, other non-affiliated Carriers; and

(ii) the circumstances of the Passenger, as known to it, including any factors which impact upon the importance of timely arrival at destination.

[…]

THE AGENCY’S PRELIMINARY FINDING

[43] In the Show Cause Decision, the Agency found, on a preliminary basis, that Sunwing did not provide passengers with the option of being reprotected and that the carrier’s cancellation and refund policy was miscommunicated in some cases. The Agency noted that although there were widespread flight cancellations by other carriers in Toronto, the situation in Montréal was different. The Agency found, on a preliminary basis, that Sunwing did not properly apply Rules 15(3)(a) and 15(3)(b) of its Scheduled International Tariff.

POSITIONS OF THE PARTIES

Sunwing

[44] Sunwing argues that it did not offer reprotection options in Toronto because other carriers were cancelling flights and, therefore, alternative options would not have been available. Sunwing argues that the situation in Montréal was similar, with a limited number of alternative flights available.

[45] The carrier argues that, nonetheless, it did offer refunds in accordance with its Passenger Care Commitment.

Passengers

[46] Some passengers dispute that they were offered refunds. One alleges that she asked to cancel her flight but her request was refused. Others state that they were unaware that they could have requested a cancellation and refund. Some passengers indicate that they were unsatisfied because of the carrier’s failure to offer adequate alternative flight options, including one individual who wanted to schedule a later flight but was not able to do so.

ANALYSIS AND FINAL FINDINGS

[47] The record indicates that other air carriers were cancelling flights at a high rate in Toronto during the period in question, in part because they were asked to do so by the GTAA. The circumstances in Montréal during the period in question were fundamentally different. Although Sunwing argues that there were no alternate flights available in Montréal, it has provided no evidence to support its position.

[48] Sunwing should, therefore, have taken additional steps to consider the option of reprotection for passengers delayed in Montréal, including on other air carriers, as set out in Rule 15(3)(b) of its Scheduled International Tariff.

[49] With respect to flights to or from either Montréal or Toronto, Sunwing states that it did offer and pay out full or partial refunds for rolling delays or unused legs of travel. However, the record establishes that there was miscommunications of the carrier’s cancellation and refund policy; specifically, not all passengers were clearly informed of the option of no longer travelling and receiving reimbursement of the ticket price instead.

[50] Accordingly, the Agency finds that, for some passengers, Sunwing did not properly apply Rules 15(3)(a) and 15(3)(b) of its Scheduled International Tariff.

Baggage

Did Sunwing properly apply the terms and conditions set out in Rules 11 and 15(4) of its Scheduled International Tariff in respect of the transportation of baggage?

APPLICABLE TARIFF RULES

[51] Rule 15(4) of Sunwing’s Scheduled International Tariff sets out the carrier’s terms and conditions regarding reimbursement for lost and delayed baggage:

[…]

(b) Passengers have a right to retrieve their luggage quickly. If the luggage does not arrive on the same flight as the Passenger, the Carrier will take steps to deliver the luggage to the Passenger’s residence/hotel as soon as possible. The Carrier will take steps to inform the Passenger on the status of the luggage. Compensation will be provided as set out herein.

(c) Notwithstanding the foregoing, Passengers whose Baggage does not arrive on the same flight as the Passenger will be entitled to reimbursement from the Carrier for reasonable expenses incurred as a result of the Baggage delay, subject to the following conditions:

[…]

[52] Rule 11 of Sunwing’s Scheduled International Tariff incorporates by reference the Montreal Convention, which requires the carrier to provide for expenses for lost, damaged or delayed baggage up to specified liability limits.

THE AGENCY’S STATEMENT IN THE SHOW CAUSE DECISION

[53] In the Show Cause Decision, the Agency noted that Sunwing was required to apply the terms and conditions set out in its tariff regarding baggage claims made under the Montreal Convention.

POSITIONS OF THE PARTIES

Sunwing

[54] Sunwing states that it has, to its knowledge, addressed all outstanding baggage claims. It also argues that Rule 15(4) of its Scheduled International Tariff only applies to baggage that did not arrive on the same flight as the passenger.

Passengers

[55] Some passengers dispute that their baggage claims were addressed adequately by the carrier.

ANALYSIS AND FINAL FINDINGS

[56] The record shows that passengers of flights that were delayed in Montréal and in Toronto had lost, damaged or delayed baggage. Sunwing is required to apply the terms and conditions set out in its Scheduled International Tariff regarding baggage, including in respect of claims made under the Montreal Convention.

[57] The Montreal Convention’s baggage provisions (Articles 17 and 19) apply to lost, damaged or delayed baggage, regardless of which flight the baggage travelled on. A carrier cannot restrict the application of related entitlements only to baggage that does not arrive on the same flight.

[58] Sunwing states that it believes that it has closed all claims filed with it regarding baggage, and has not raised any of the defences provided for under the Montreal Convention, stating instead that it will pay compensation to passengers for reasonable baggage expenses. However, some passengers who experienced baggage issues on flights within the scope of the inquiry remain unsatisfied with the handling of these issues.

[59] By virtue of the Carriage by Air Act, R.S.C., 1985, c. C-26, the Montreal Convention has the force of law in Canada and governs the liability limitations for loss, damage or delay of baggage applicable to international carriage by air. Article 26 of the Montreal Convention states, in part, that any provision of a carrier’s tariff tending to relieve it of liability or to fix a lower limit than that which is laid down in the Montreal Convention is null and void.

[60] Consequently, the Agency finds that the language in Sunwing’s Scheduled International Tariff that restricts certain baggage-related entitlements to baggage that does not arrive on the same flight as the passenger is inconsistent with the Montreal Convention:

• “If the luggage does not arrive on the same flight as the Passenger […]” [Rule 15(4)(b)]; and
• “[…] Passengers whose Baggage does not arrive on the same flight as the […]” [Rule 15(4)(c)].

[61] The Agency reiterates that the carrier is required to apply the terms and conditions set out in its Scheduled International Tariff, without these limitations, and the provisions of the Montreal Convention concerning baggage-related claims.

Communication

Did Sunwing properly apply the terms and conditions set out in Rules 15(4)(B) and 15(1)(F) of its Scheduled International Tariff in respect of communication with passengers?

APPLICABLE TARIFF RULES

[62] Rule 15(1)(f) of Sunwing’s Scheduled International Tariff states that:

Passengers have a right to information on flight times and schedule changes. In the event of a delay, an advanced flight departure or schedule change the Carrier will make reasonable efforts to inform the Passengers of delays, proposed advanced flight departures and schedule changes, and, to the extent possible, the reasons for them.

[63] Rule 15(4)(b) of its Scheduled International Tariff states that:

Passengers have a right to retrieve their luggage quickly. If the luggage does not arrive on the same flight as the Passenger, the Carrier will take steps to deliver the luggage to the Passenger’s residence/hotel as soon as possible. The Carrier will take steps to inform the Passenger on the status of the luggage. Compensation will be provided as set out herein.

THE AGENCY’S PRELIMINARY FINDINGS

[64] In the Show Cause Decision, the Agency found, on a preliminary basis, that Sunwing did not “take reasonable steps” to update passengers or communicate with them in relation to flight times and schedule changes, such as by sending text message updates to impacted passengers or keeping its website up to date, and thus, that Sunwing did not properly apply, in all instances, Rule 15(1)(f) of its Scheduled International Tariff.

[65] The Agency further found, on a preliminary basis, that Sunwing did not properly apply Rule 15(4)(b) of its Scheduled International Tariff, given communication issues regarding lost or delayed baggage.

POSITIONS OF THE PARTIES

Sunwing

[66] The carrier argues that it took multiple steps to ensure that passengers were kept up to date regarding the status of their flights. The carrier also argues that less than 20 percent of its passengers provided their e-mail or text contact information, which affected its ability to provide updates. The carrier states that it provided a copy of an advisory notice to passengers that was posted on its website during the events in question. Other steps the carrier indicates that it took include:

• Sending members of its Customer Relations Management Team to the Toronto Pearson International Airport (Toronto Airport);
• Posting advisories about flight delays to encourage all Sunwing passengers to sign up for flight alerts;
• Using Facebook and Twitter; and
• Sending e-mail communications.

[67] The carrier also points to Swissport’s staffing issues as part of the reason for the breakdown in communication.

[68] With respect to baggage, the carrier argues that Rule 15(4)(b) of its Scheduled International Tariff only applies when the baggage does not arrive on the same flight as the passenger. Sunwing argues that the baggage arrived on the same flight as the passenger in every case.

Passengers

[69] Of the concerns raised by passengers in their submissions, lack of communication or miscommunication during the events are the most common. Many object to the carrier’s suggestion that passengers were at fault for not signing up for e-mail or text updates.

[70] Passengers who signed up for the updates argue that they did not receive timely updates, or that the information was not helpful or accurate. Many passengers object to the lack of information or misinformation being provided by gate agents, and they argue that the Flight Information Display Systems at the airport were not being updated.

[71] Passengers who experienced tarmac delays also complain about a lack of communication and the lack of updates on when they might depart or be able to disembark the aircraft.

[72] Multiple passengers complain about communication issues or miscommunications regarding their delayed or lost baggage.

ANALYSIS AND FINAL FINDINGS

Flight status communications

[73] Although Sunwing argues that it took reasonable steps to keep passengers updated on the status of its flights, the evidence shows that additional steps could have been taken under the circumstances to ensure that consistent and regular updates were provided to passengers, consistent with its Scheduled International Tariff. Even passengers who signed up for the e-mail and text updates referred to by the carrier in its submissions experienced communication issues.

[74] The Agency finds that passengers who were delayed on the tarmac were also entitled to information on matters such as the status of their flight and the expected departure time, as the most reasonable interpretation of the word “delay”, in the context of the tariff in relation to communication, includes “tarmac delay”, given that passengers’ arrival at their destination is affected whether delays occur while they are in the terminal or on board the aircraft.

[75] Consequently, the Agency finds that Sunwing did not properly apply, in some instances, Rule 15(1)(f) of its Scheduled International Tariff.

Baggage status communications

[76] With respect to communication regarding baggage issues, the carrier argues that the baggage was transported on the same flight as the passenger in every case, and that therefore Rule 15(4)(b) of its Scheduled International Tariff, regarding timely updates on baggage, did not apply during the events in question. As set out above, the Agency has struck the language limiting liability based on whether the baggage arrived on the same flight from Rule 15(4)(b). The remaining tariff with respect to communication may be read without the offending language.

[77] Therefore, based on the evidence of systemic communication breakdowns regarding baggage and baggage tracking, the Agency finds that, in some instances, Sunwing did not properly apply Rule 15(4)(b) of its Scheduled International Tariff.

Tarmac delays

Did Sunwing properly apply the terms and conditions set out in Rule 16(C) of its Scheduled International Tariff in respect of its tarmac delays?

APPLICABLE TARIFF RULES

[78] Rule 16(c) of Sunwing’s Scheduled International Tariff states that the carrier will offer drinks and snacks during a delay on the tarmac “if it is safe, practical and timely to do so”. The tariff does not specify the time frame within which these drinks and snacks will be offered.

[79] Rule 16(c) also states that if the tarmac delay exceeds 90 minutes, the carrier will offer passengers the option of disembarking from the aircraft “if safe and practical to do so”, until it is time to depart.

THE AGENCY’S PRELIMINARY FINDING

[80] In the Show Cause Decision, the Agency found, on a preliminary basis, that Sunwing did not properly apply Rule 16(c) of its Scheduled International Tariff with respect to the provision of drinks and snacks and the obligation to offer disembarkation to passengers after a 90-minute delay on board the aircraft if the aircraft is on the tarmac.

[81] The Agency also found, on a preliminary basis, that the period of a tarmac delay on departure should be calculated from the time the aircraft doors are closed until take-off or disembarkation, and on arrival, from the moment the wheels touch the ground until disembarkation. This approach most accurately reflects passengers’ experience of a tarmac delay.

[82] On this basis, the Agency found that 15 scheduled flights, all at the Toronto Airport, were delayed on the tarmac for more than 90 minutes (see Appendix C).

POSITIONS OF THE PARTIES

Sunwing

[83] Sunwing argues that no food or drink service could be provided “during minimal tarmac delays due to safety concerns” and that the determination of whether it is safe to distribute food or drink is up to the pilot and crew. It states paragraph 69 of its response to the Show Cause Decision:

While some of the tarmac delays were lengthy, the action of the captain and his cabin crew were at all times driven by the dynamic nature of the ultimate availability of a pushback time. Any delay in being able to action a pushback could lead to a loss of the slotted pushback time thus exacerbating the overall length of the tarmac delay.

Similarly, this applies to flights waiting for de-icing and clearance for take-off.

[84] Sunwing acknowledges that, in some instances, food was not offered to all passengers during tarmac delays due to limited supplies.

[85] In its response to the Show Cause Decision, rather than to provide arguments on why disembarkation was not offered after 90 minutes, Sunwing argues (at paragraph 65) that “[…] the length of a permissible tarmac delay should be 3 hours as opposed to 90 minutes as stated in tariff rule 16(c)”, noting that the proposed Air Passenger Protection Regulations (APPR) will only require carriers to disembark passengers after three-hour delays on the tarmac. According to the carrier’s calculations, 10 of the 15 flights identified by the Agency were delayed on the tarmac less than three hours.

[86] The carrier also argues that the starting point for calculating the length of a tarmac delay should be the time the aircraft pushes back from the gate because passengers are able to disembark prior to pushback, including after the doors are closed.

[87] For one of the 15 flights identified by the Agency (Flight No. WG302), the carrier states that it offered passengers the opportunity to disembark. Sunwing’s primary explanation of why disembarkation was not offered for most of the flights delayed on the tarmac is a lack of Swissport support on the ramp.

Passengers

[88] Some passengers object to the carrier being the sole decision-maker regarding whether drinks or snacks should be provided, and many were unsatisfied with the drinks or food that they did (or did not) receive. One passenger described receiving only “two half-sized cups of water” over a lengthy tarmac delay. Others described not receiving any water during a long tarmac delay.

[89] Many passengers recount experiencing lengthy and stressful tarmac delays during the period in question. Many passengers object to the carrier’s reliance on proposed regulations on this issue, which they argue are not relevant given that the event occurred in April 2018.

ANALYSIS AND FINAL FINDINGS

Food and drink

[90] The Agency accepts that, in some cases, it may have been unsafe or impractical to distribute food or provide drink service during comparatively short tarmac delays. However, by Sunwing’s own admission, limited supplies also played a role in the non-distribution of food on certain flights, and this is not a reasonable justification for failing to meet a tariff obligation. Carriers should stock adequate supplies that take into account the possibility of tarmac delays, particularly when they have advance information on the likelihood of poor weather conditions. Based on this consideration and statements from passengers that food and drinks were not distributed during some lengthy tarmac delays, the Agency finds that, in some cases, Sunwing did not properly apply Rule 16(c) of its Scheduled International Tariff.

Disembarkation

[91] While Sunwing argues, in respect of the method for calculating the length of a tarmac delay, that passengers can disembark the aircraft after the doors are closed but before the aircraft has pushed back, there is no evidence that passengers were informed of this possibility on any of the affected flights within the scope of this inquiry, and the Agency finds it unreasonable to expect passengers to be aware that they can disembark once the aircraft doors are closed. On this basis, the Agency finds that the length of the tarmac delay exceeded 90 minutes on all 15 of the flights identified in the Show Cause Decision. While passengers on Flight No. WG302 were provided with the opportunity to disembark, the evidence indicates that the offer was not made until several hours after the 90‑minute mark had passed.

[92] In none of these 15 cases has Sunwing argued that it would have been unsafe or impractical to disembark its passengers after 90 minutes. To the extent that the main issue was, as Sunwing indicates, problems with Swissport’s services, the carrier retains responsibility as Swissport was its agent.

[93] As for the carrier’s arguments that disembarkation should only be required after a three-hour tarmac delay in light of the proposed APPR, the Agency notes that the proposed regulations are not yet final or in force and would not, in any event, apply retroactively to the flights covered by this inquiry. Moreover, even after the APPR are in effect, carriers will be responsible for applying the terms and conditions of carriage as laid out in their tariffs, including in circumstances where tariff rules go beyond the minimum standards established in the APPR. Sunwing’s Scheduled International Tariff sets out the 90-minute time frame, and Sunwing is required to apply it.

[94] The Agency therefore finds that Sunwing did not properly apply Rule 16(c) of its Scheduled International Tariff, given that passengers on 15 flights were not provided with the opportunity to disembark after 90-minute tarmac delays.

NON-SCHEDULED FLIGHTS

Did Sunwing properly apply the terms and conditions set out in Rules 9 and 10 of its non‑scheduled international tariff in respect of the Montreal Convention and baggage?

[95] Four of the flights within the scope of the inquiry were offered pursuant to Sunwing’s non‑scheduled international licences: Flight No. WG201, Flight No. WG783, Flight No. WG784 and Flight No. WG785. As is the case with respect to its Scheduled International Tariff, Rule 10 of its Non-scheduled International Tariff incorporates by reference the Montreal Convention for lost, damaged or delayed baggage.

[96] Flight delays are not addressed in the Non-Scheduled International Tariff, except in Rule 9 through incorporation by reference of the Montreal Convention. The Montreal Convention does not distinguish between scheduled and non-scheduled services. As a result, the Agency finds that the carrier is liable for expenses caused by delay for these four non-scheduled flights in the same manner as with respect to its scheduled services.

CONCLUSION

[97] In summary, the Agency finds that, in responding to the flight disruptions that occurred between April 14 and April 18, 2018 at the Toronto Airport and the Montréal–Pierre Elliot Trudeau International Airport, Sunwing did not properly apply the terms and conditions set out in its Scheduled International Tariff, as required by subsection 110(4) of the ATR, specifically in respect of:

• Flight delays, including hotel and meal vouchers [Rules 16(a) and 16(b)], rerouting and refunds [Rules 15(3)(a) and 15(3)(b)]
• Communication, including communication about flight status [Rule 15(1)(f)] and delayed or lost baggage [Rule 15(4)(b)]; and
• Tarmac Delays [Rule 16(c)].

[98] Additionally, in accordance with this Determination, the Agency finds that the Montreal Convention applies to baggage and delay claims for both scheduled and non-scheduled flights within the scope of the inquiry, and that the carrier cannot argue any failure by its agent as a defence.

[99] Paragraphs 113.1 (a) and (b) of the ATR provide that if an air carrier fails to apply its tariff, the Agency may direct it to take the corrective measures that the Agency considers appropriate and pay compensation for any expense incurred by any person adversely affected by that failure. The Agency does not have the statutory authority to award general damages or compensation for matters such as any inconvenience or stress that passengers experienced, pain and suffering, or loss of vacation time.

ORDER

[100] The Agency orders Sunwing to compensate passengers for out-of-pocket expenses incurred as a consequence of the carrier’s failure to properly apply the terms and conditions set out in its Scheduled International Tariff no later than June 28, 2019 as set out in paragraph 97 of this Determination. Reasonable expenses include, but are not limited to reimbursement for hotel accommodations at destination, transfers to hotels and meal expenses incurred as a result of the delay.

[101] The Agency also reiterates that, in addition to the matters addressed in the preceding paragraph, the Montreal Convention, as incorporated by reference in Sunwing’s Scheduled International Tariff and Non-Scheduled International Tariff, applies in respect of both scheduled and non-scheduled services provided by Sunwing. As such, the carrier is required to compensate passengers for reasonable expenses related to:

• passenger delay, including but not limited to ground transportations, parking fees, and accommodation costs not at destination; and

• lost, delayed or damaged baggage, including but not limited to the cost of replacement items.

[102] The Agency notes that the carrier has made what it describes as goodwill gestures, including payments to some passengers. To the extent that a passenger has received such a monetary payment from the carrier, it may offset any amounts owed for expenses incurred. To the extent that goodwill gestures were non-monetary in nature, including vouchers for future travel, they do not offset any sums owed to passengers for expenses incurred.

[103] The Agency further orders Sunwing to develop a contingency plan to ensure that it can meet its tariff obligations in the case of widespread flight disruptions in the future, including in all the areas in which this Determination finds tariff violations. Sunwing is to provide the Agency’s Chief Compliance Officer with information on the required contingency plan, once it has been developed and no later than August 30, 2019.

[104] Additionally, based on its finding that elements of Rules 15(4)(b) and 15(4)(c) are inconsistent with the Montreal Convention, the Agency orders Sunwing to revise and refile these rules as soon as possible and no later than May 8, 2019.

[105] This Determination addresses the 574 individual passenger active complaints filed with the Agency in respect of flights that fall within the scope of this inquiry. Sunwing shall make every effort to contact the passengers and settle expense claims individually with all passengers who are owed compensation, whether or not they submitted complaints. The parties can avail themselves of the Agency’s facilitation and mediation services to the extent required to reach agreement on compensation. Should a dispute regarding compensation exist even after attempts at informal resolution, the Agency may adjudicate the matter.

[106] Any passengers with existing complaints related to the flights covered by this inquiry who believe that there are outstanding matters requiring dispute resolution by the Agency should contact the Agency no later than July 26, 2019 at secretariat@otc-cta.gc.ca.

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APPENDIX A TO DETERMINATION NO. A-2019-58

Sunwing’s Scheduled International Tariff

RULE 1. DEFINITIONS AND INTERPRETATION

[…]

Event of Force Majeure means an event, the cause or causes of which are not attributable to the wilful misconduct or gross negligence of the Carrier, including, but not limited to (i) earthquake, flood, hurricane, explosion, fire, storm, epidemic, other acts of God or public enemies, war, national emergency, invasion, insurrection, riots, strikes, picketing, boycott, lockouts or other civil disturbances, (ii) interruption of flying facilities, navigational aids or other services, (iii) any laws, rules, proclamations, regulations, orders, declarations, interruptions or requirements of or interference by any government or governmental agency or official thereof, (iv) inability to procure materials, accessories, equipment or parts from suppliers, mechanical failure to the aircraft or any part thereof, damage, destruction or loss of use of an aircraft, confiscation, nationalization, seizure, detention, theft or hijacking of an aircraft, or (v) any other cause or circumstances whether similar or dissimilar, seen or unforeseen, which the Carrier is unable to overcome by the exercise of reasonable diligence and at a reasonable cost;

[…]

RULE 8. REFUSAL TO TRANSPORT

(A) In the reasonable exercise of the Carrier’s discretion, the Carrier may refuse to carry a Passenger or a Passenger’s Baggage on the Carrier’s flights, if the Carrier has previously notified the Passenger in writing of prohibited conduct as mentioned in (C) (iv) below. The Carrier may also refuse to carry the Passenger or the Passenger’s Baggage if one of the following has occurred, or the Carrier has reason to believe will occur, in which case there will be no refund of the Passenger’s Ticket:

(i) Such action is necessary in order to comply with any applicable national or international regulations; or to comply with any government request for emergency transportation in connection with national defence, or wherever such action is necessary or advisable by reason of weather or other conditions beyond its control (including but without limitations: acts of God, Event of Force Majeure, strikes, civil commotion, embargoes, wars, hostilities or disturbances) actual, threatened or reported;

[…]

RULE 10. LIMITATION OF LIABILITY – PASSENGERS

(a) For travel governed by the Montreal Convention

For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this Tariff which may be inconsistent with those rules.

[…]

RULE 11. LIMITATION OF LIABILITY FOR BAGGAGE OR GOODS

(a) For travel governed by the Montreal Convention

For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this Tariff which may be inconsistent with those rules.

[…]

(c) For travel governed by either the Montreal Convention or the Warsaw Convention

(i) In no case shall the Carrier’s liability exceed the actual loss suffered by the Passenger. All claims are subject to adequate proof of amount of loss.

(ii) In the case of damage or partial loss, the Person entitled to delivery must complain to the Carrier forthwith after discovery of the damage or partial loss, and, at the latest, within seven days from the date of receipt of the Baggage. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the Baggage has been placed at his disposal. In the case of loss, the complaint must be made at the latest within 30 days from the date the Baggage should have been delivered. The Passenger must notify the Carrier immediately upon arrival in the case of missing checked-in Baggage. Every complaint, whether for loss, partial loss, damage or delay, must be made in writing and must be dispatched within the times aforesaid. Failing complaint within the times aforesaid, no action shall lie against the Carrier.

(iii) All Baggage must be suitably identified externally and packed in suitcases or in similar containers in order to ensure safe and convenient carriage with ordinary care and handling. Fragile or perishable articles, including medication or medical devices money, jewellery, silverware, laptop computers, personal audio/video devices, negotiable documents, securities, samples of business documents or other valuables (other than articles of clothing) shall not be accepted as checked Baggage. Any such items declared or found in checked Baggage are subject to removal prior to the Baggage in question being accepted for carriage by the Carrier.

(iv) The Carrier shall not be liable for damage to fragile, valuable or perishable items where such damage is the result of the inherent defect, quality or vice of the item in question. Unsuitably or inadequately packed items will be accepted at the Carrier’s discretion and, where accepted a limited release tag will be issued recording all the Baggage deficiencies of such checked Baggage, compensation may be denied as a result of the afore-mentioned factors. The Carrier assumes liability for the delay in delivery of any perishable items accepted as checked Baggage in the event it has failed to take all reasonable measures to avoid such delay.

(v) No claim shall be eligible under this Rule unless the Person presents a valid Baggage Tag issued by the Carrier for the lost, damaged or delayed bag.

(vi) Notwithstanding paragraphs a) and b) of this rule, in the case of damaged Baggage, the Carrier’s liability shall be limited to repairing the damaged bag, paying the cost of the repair, if such were pre-approved by the Carrier on the basis of an estimate or replacing the bag if it is not repairable.

(vii) In the case of unclaimed Baggage which cannot be identified, the Carrier will hold the Baggage and items therein for up to 30 days, subsequent to which it will dispose of the bag and its contents as it sees fit. If the Baggage can be identified by a name, address, telephone number, the Carrier will make reasonable efforts to inform the Passenger that his/her bag is in the possession of the Carrier and that he/she should make arrangements at his/her own cost and expense for collecting the said Baggage within 30 days after which time the Carrier will dispose of the bag and its contents as it sees fit.

(viii) The Carrier is not liable for any damages directly and solely arising out of its compliance with laws, government regulations, order or requirements or from the failure of the Passenger to comply with same or out of any cost beyond the Carrier’s control.

(ix) The Carrier is not liable for damage to the Passenger’s Baggage caused by contents in the Passenger’s Baggage. Any Passenger whose property cause damage to another Passenger’s Baggage or to the property of the Carrier will compensate the Carrier for all the losses and expenses it incurs as a result of the above.

(x) In the event of loss or partial loss the Passenger must provide adequate proof of loss when filing a claim. The Carrier may disallow any and all claims when the Passenger fails to provide the above referred adequate proof of loss.

Rule 15(1)(f) Passengers have a right to information on flight times and schedule changes. In the event of a delay, an advanced flight departure or schedule change the Carrier will make reasonable efforts to inform the Passengers of delays, proposed advanced flight departures and schedule changes, and, to the extent possible, the reasons for them.

Rule 15(3) Advance Departures, Delays or Cancellations

(a) If the Passenger’s journey is interrupted by an Advance Flight Departure, a flight delay, or a flight cancellation without reasonable notice, the Carrier will take into account all the circumstances of the case as known to it and will provide the Passenger with the option of accepting one of the following remedial choices:

(i) reimbursement of the total price of the Ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if they no longer serve any purpose in relation to the Passengers original travel plan, together with, when relevant, transportation to the Passengers point of origin, at the earliest opportunity, at no additional cost; or

(ii) transportation to the Passenger’s intended destination at the earliest opportunity, at no additional cost.

(b) When determining the transportation service to be offered, the Carrier will consider:

(i) available transportation services, including services offered by interline, code sharing and other affiliated partners and, if necessary, other non-affiliated Carriers; and

(ii) the circumstances of the Passenger, as known to it, including any factors which impact upon the importance of timely arrival at destination.

(c) Having taken all the known circumstances into consideration, the Carrier will take all measures that can reasonably be required to avoid or mitigate the damages caused by the Advanced Flight Departure, delay or cancellation. Where a Passenger nevertheless incurs expense as a result of the flight departure, delay or cancellation, the Carrier will offer a cash payment or travel credit, the choice of which will be at the Passenger’s discretion.

(d) When determining the amount of the offered cash payment or travel credit, the Carrier will consider all circumstances of the case, including any expenses which the Passenger, acting reasonably, may have incurred as a result of the Advance Flight Departure, delay or cancellation, as for example, costs incurred for accommodation, meals or additional transportation. The Carrier will set the amount of compensation offered with a view to reimbursing the Passenger for all such reasonable expenses.

(e) The Carrier shall not be liable for any damages, costs, losses or expenses occasioned by Advanced Flight Departures, delays or cancellations if the Carrier proves 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;

(f) Any Passenger seeking reimbursement for expenses resulting from Advance Flight Departure, delays or cancellations must provide the Carrier with: (i) written notice of his or her claim, (ii) particulars of the expenses for which reimbursement is sought, and (iii) receipts or other documents establishing to the reasonable satisfaction of the Carrier that the expenses were incurred; and

(g) The Carrier may refuse or decline any claim, in whole or in part, if:

(i) the Passenger has failed or declined to provide proof or particulars establishing, to the reasonable satisfaction of the Carrier, that the expenses claimed were incurred by the Passenger and resulted from an Advanced Flight Departure, delay or cancellations for which compensation is available under this Rule 15; or

(ii) the expenses for which reimbursement is claimed, or any portion thereof, are not reasonable or did not result from the delay or advanced flight departure, delay or flight cancellations as determined by the Carrier, acting reasonably.

Rule 15(4) Baggage Delays

(a) The Carrier cannot guarantee that the Passenger’s Baggage will be carried on the flight if sufficient space is not available as determined by the Carrier.

(b) Passengers have a right to retrieve their luggage quickly. If the luggage does not arrive on the same flight as the Passenger, the Carrier will take steps to deliver the luggage to the Passenger’s residence/hotel as soon as possible. The Carrier will take steps to inform the Passenger on the status of the luggage. Compensation will be provided as set out herein.

(c) Notwithstanding the foregoing, Passengers whose Baggage does not arrive on the same flight as the Passenger will be entitled to reimbursement from the Carrier for reasonable expenses incurred as a result of the Baggage delay, subject to the following conditions:

(i) The Carrier shall not be liable for any damages, costs, losses or expenses occasioned by delays in the delivery of Baggage if the Carrier proves it, and its employees and agents, took all measures that could reasonably be required to avoid the damage or it was impossible for the Carrier and it employees or agents to take such measures;

(ii) In order to assist the Carrier in commencing the tracing of the Baggage in question, the Passenger must report the delayed Baggage to the Carrier prior to departing the airport;

(iii) The Passenger must provide the Carrier with (a) written notice of any claim for reimbursement within 21 days of the date on which the Baggage was placed at the Passenger’s disposal, or in the case of loss within 21 days of the date on which the Baggage should have been placed at the Passenger’s disposal; (b) particulars of the expenses for which reimbursement is sought; and (c) original receipts or other documents establishing to the reasonable satisfaction of the Carrier that the expenses were incurred;

(iv) The liability of the Carrier in the case of lost or delayed Baggage shall not exceed 1,131 SDR (the “basic Carrier liability” which is the approximate Canada dollar equivalent of CAD$2,000, at the time of the filing of this Tariff, for each Passenger).

[…]

RULE 16. TRAVELLER’S RIGHTS

(a) If a flight is delayed and the delay between the scheduled departure of the flight and the actual departure of the flight exceeds 4 hours, the Carrier will provide[d] the Passenger with a meal voucher.

(b) If a flight is delayed by more than 8 hours and the delay involves an overnight stay, the Carrier will pay for overnight hotel stay and airport transfers for Passengers who did not start their travel at that airport.

(c) If the Passenger is already on the aircraft when a delay occurs, the Carrier will offer drinks and snacks if it is safe, practical and timely to do so. If the delay exceeds 90 minutes and circumstances permit, the Carrier will offer Passengers the option of disembarking from the aircraft until it is time to depart if safe and practical to do so.

[…]

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APPENDIX B TO DETERMINATION NO. A-2019-58

Sunwing’s Non-Scheduled International Tariff

Rule 6(C)

(a) Subject to the limits of liability contained in this tariff the carrier will be exempted from liability due to any failure to perform any of its obligations under the carrier’s charter agreement arising from:

(i) Labour disputes or strikes, whether of the carrier’s employees or of others upon whom the carrier relies for the fulfillment of the charter agreement; and

(ii) “Force Majeure”, or any other causes not attributable to the willful misconduct of the carrier including accidents to, or failure of aircraft or any part thereof, of any machinery or apparatus used in connection therewith. Refusal of any Government or public body on whatsoever ground to grant the carrier any clearance, licence, right or other permission necessary to the performance of the carrier’s charter agreement is deemed to be included in the term “Force Majeure”. Provided, always that in the event of such failure, the carrier will use its best efforts to fulfil its obligations including the provisions of alternate means of transport.

Rule 6(E)

Times shown in charter contracts, passenger tickets or elsewhere are not guaranteed and form no part of the charter contract. Flight times are subject to change without notice.

Rule 8. Refunds

(a) Application for refund shall be made to the carrier or its duly authorized Agent.

(b) If a portion of the agreed transportation has been completed, refund will be the difference between the rates and charges paid and the rates and charges applicable to that portion of the agreed transportation completed, less any applicable cancellation charges, as specified in this tariff.

Rule 9. Limitation of Liability – Passengers

(a) For travel governed by the Montreal Convention

For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this Tariff which may be inconsistent with those rules.

[…]

Rule 10. Limitation of Liability for Baggage or Goods and Excess Valuation Charges

(a) For travel governed by the Montreal Convention

For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.

[…]

(c) For travel governed by either the Montreal Convention or the Warsaw Convention

If the passenger or charterer does elect to declare a higher value an additional charge shall be payable and the carrier’s liability will not exceed the higher value declared. The additional charge shall be calculated as follows:

a) The amount of the carrier’s liability calculated in accordance with the parts of this rule set out above shall be referred to as “basic carrier liability”;

b) No charge shall be payable on that part of the declared value which does not exceed basic carrier liability;

c) For that part of the declared value which does exceed basic carrier liability, a charge shall be payable at the rate of CAD 0.50 cents for each CAD $100.00 or fraction thereof

(i) Whether passenger or charterer declares value or not, in no case shall the carrier’s liability exceed the actual loss suffered by the passenger. All claims are subject to proof of amount of loss.

(ii) In the case of damage or partial loss, the person entitled to delivery must complain to the carrier forthwith after discovery of the damage or partial loss, and, at the latest, within seven days from the date of receipt of the baggage. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage has been placed at his disposal. In the case of loss, the complaint must be made at the latest within 30 days from the date the baggage should have been delivered. The passenger must notify the carrier immediately upon arrival in the case of missing checked-in baggage. Every complaint, whether for loss, partial loss, damage or delay, must be made in writing and must be dispatched within the times aforesaid. Failing complaint within the times aforesaid, no action shall lie against the carrier.

(iii) All baggage must be suitably identified externally and packed in suitcases or in similar containers in order to ensure safe and convenient carriage with ordinary care and handling. Fragile or perishable articles, including medication or medical devices, money, jewelry, silverware, laptop computers, personal audio/video devices, negotiable documents, securities, samples of business or other valuables (other than articles of clothing) shall not be accepted as checked baggage. Any such items declared or found in checked baggage are subject to removal prior to the baggage in question being accepted for carriage by the Carrier.

(iv) The Carrier shall not be liable for damage to fragile, valuable or perishable items where such damage is the result of the inherent defect, quality or vice of the item in question. Unsuitably or inadequately packed items will be accepted at the Carrier’s discretion and, where accepted a limited release tag will be issued recording all the baggage deficiencies of such checked baggage, compensation may be denied as a result of the afore-mentioned factors. The Carrier assumes liability for the delay in delivery of any perishable items accepted as checked baggage in the event it has failed to take all reasonable measures to avoid such delay.

(v) No claim shall be eligible under this Rule unless the person presents a valid baggage tag issued by the Carrier for the lost, damaged or delayed bag.

(vi) Notwithstanding paragraphs a) & b) of this rule, in the case of damaged baggage, the carrier’s liability shall be limited to repairing the damaged bag, paying the cost of the repair, if such were pre-approved by the Carrier on the basis of an estimate or replacing the bag if it is not repairable.

(vii) In the case of unclaimed baggage which cannot be identified, the carrier will hold the baggage and items therein for up to 30 days, subsequent to which it will dispose of the bag and its contents as it sees fit[.] If the baggage can be identified by a name, address, telephone number, the Carrier will make reasonable efforts to inform the passenger that his/her bag is in the possession of the Carrier and that he/she should make arrangements at his/her own cost and expense for collecting the said baggage within 30 days after which time the Carrier will dispose of the bag and its contents as it sees fit.

(viii) In the event of loss or partial loss the passenger must submit receipts when filing a claim. The Carrier may disallow any and all claims when the passenger fails to provide proof of loss in the form of receipts of purchase.

Rule 14. Tickets

(iii) Tickets &/or e-tickets are valid for carriage only on the flights and dates shown thereon and are not refundable by the carrier to the passenger, except as provided by applicable fare conditions.

Rule 15. Passenger Re-routing

The carrier is not liable to any passenger when he/she misses his/her flight. In these instances, no other flight alternative is offered by the carrier to the passenger.

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APPENDIX C TO DETERMINATION NO. A-2019-58

Scheduled flights delayed on the tarmac over 90 minutes

1.WG022 (delayed 1 hour and 57 minutes)

2.WG031 (3 hours and 52 minutes)

3.WG218 (4 hours 50 minutes)

4.WG271 (2 hours and 20 minutes)

5.WG302 (7 hours and 3 minutes)

6.WG406 (1 hour and 44 minutes)

7.WG535 (2 hours and 17 minutes)

8.WG627 (2 hours and 28 minutes)

9.WG685 (2 hours and 29 minutes)

10.WG706 (2 hours and 14 minutes)

11.WG714 (2 hours and 35 minutes)

12.WG715 (6 hours and 14 minutes)

13.WG731 (1 hour and 59 minutes)

14.WG752 (2 hours and 5 minutes)

15.WG781 (4 hours and 45 minutes)