Canadian Transportation Agency issues determination in Air Transat inquiry - Air carrier to pay $295,000 penalty for delay of flights 157 and 507

30/11/2017 16:16

GATINEAU, QC, Nov. 30, 2017 /CNW/ - The Canadian Transportation Agency (CTA) today issued its determination in the matter of the tarmac delays of Air Transat Flight Nos. 157 and 507, which occurred in Ottawa on July 31, 2017.

In its determination, the CTA found that during the tarmac delays, Air Transat did not properly apply its own tariff rules (terms and conditions of carriage) related passenger disembarkment – because aircraft commanders did not consider the option to disembark passengers when the delay exceeded 90 minutes – and to the distribution of drinks and snacks.

The CTA also found that the air carrier was not relieved of its obligations to passengers simply because events beyond its control required diversion of the flights to Ottawa or because the actions of other parties contributed to the length of the delays.

Finally, the CTA found that it was unreasonable for the tariff's Force Majeure rule to be as broadly worded as it was, and for pilots to have such wide discretion to decide whether or not to allow passengers to disembark, no matter how lengthy the tarmac delay.

Based on these findings, the CTA has ordered Air Transat to:

compensate all passengers of the two flights for out-of-pocket expenses incurred as a result of the carrier's failure to apply its tariff.
ensure that its employees are properly trained on tariff provisions, policies, and procedures related to tarmac delays, and that employees understand these are legal obligations the air carrier is bound to respect.
amend its international tariffs to incorporate the terms and conditions of its Contingency Plan for Lengthy Tarmac Delays at US Airports, which create a positive obligation for the air carrier to deplane passengers if a tarmac delay reaches four hours – unless there are safety, security, or air traffic control issues that prevent it– and require that during the delay, the air carrier provide passengers with updates every 30 minutes, working lavatories, and needed medical assistance.
tighten the definition of Force Majeure in its tariffs.

Following this determination, a CTA Designated Enforcement Officer issued a penalty of $295,000 against the air carrier. Air Transat has been advised that the penalty may be reduced by the amount of compensation provided to passengers on the affected flights, excluding the refund of out of pocket expenses.

Quote:

"This is a significant determination for air passengers and air carriers. It underscores that passengers have rights and recourse when their air travel is disrupted, and that even when problems stem from events such as bad weather, there is a minimum standard of treatment to which all passengers are entitled."

– Scott Streiner, Chair and CEO of the Canadian Transportation Agency

More information on the inquiry and the resulting determination can be found in the Backgrounder.

References

Determination No. A-2017-194
Notice of Violation
2017 Air Transat Tarmac Delay Inquiry
Enforcement actions taken by the CTA's enforcement officers
Types of enforcement actions and contraventions

About the CTA

The Canadian Transportation Agency is an independent, quasi-judicial tribunal and regulator which has, with respect to all matters necessary for the exercise of its jurisdiction, all the powers of a superior court. The CTA has three core mandates: helping to keep the national transportation system running efficiently and smoothly, protecting the fundamental right of persons with disabilities to accessible transportation services, and providing consumer protection for air passengers. To help advance these mandates, the CTA makes and enforces ground rules that establish the rights and responsibilities of transportation service providers and users and level the playing field among competitors, resolves disputes using a range of tools from facilitation and mediation to arbitration and adjudication, and ensures that transportation providers and users are aware of their rights and responsibilities and how the CTA can help them.

www.otc-cta.gc.ca

Backgrounder - Canadian Transportation Agency determination on the 2017 Air Transat Tarmac Delay Inquiry

Inquiry

A detailed background of the inquiry and the events leading up to it is available in the determination.

The CTA considered two issues in these proceedings:

Did Air Transat properly apply its tariff during these incidents, pursuant to subsection 110(4) of the Air Transportation Regulations?
Are Air Transat's applicable tariff provisions reasonable, pursuant to subsection 111(1) of the Air Transportation Regulations?

Findings

Upon review of testimony and evidence filed in the proceedings, the CTA found with respect to both flights, that Air Transat did not properly apply the rules of its tariff relating to drinks and snacks and disembarking the passengers as the aircraft commanders did not consider this option when the delay exceeded 90 minutes (rules 5.2d) and 21.3c)).

In addition, the CTA found the tariff rules relating to disembarkation and Force Majeure (rules 5.2d) and 21.3c)) were unreasonable on the grounds that:

Their disembarkation provision did not create a positive obligation to disembark passengers.
Their Force Majeure provisions were overly broad and included events that have not been determined to constitute Force Majeure.

Orders

Based on its findings that Air Transat did not properly apply the rules of its tariff, the CTA has ordered Air Transat to:

compensate all passengers of Flight Nos. 157 and 507 for expenses incurred as a result of its failure to properly apply its tariff; and
take the following corrective measures to ensure future compliance with tariff obligations:

ensure that proper training is provided to all Air Transat employees, including aircraft commanders, flight crew, operations staff, and any servant or agent engaged in delivering services during onboard delays so that they have knowledge of applicable tariff provisions, policies and procedures. Such training should emphasize that these provisions and policies are set out in the tariff and are legal obligations that Air Transat is bound to respect; and,
provide information on the required training, once it has been developed and delivered, and no later than May 24, 2018.

Based on its finding that elements of Rules 5.2d) and 21.3c) of the tariff are unreasonable, the CTA has ordered Air Transat to:

revise these rules and all corresponding rules of its other international tariffs so that the existing text in respect of food and water distribution and disembarking with the commander's permission after 90 minutes is supplemented with the terms and conditions that incorporate the provisions of Air Transat's Contingency Plan for Lengthy Tarmac Delays at US Airports (Revised April 2016). Those terms and conditions create a positive obligation to disembark passengers if a tarmac delay reaches four hours – unless there are safety, security, or air traffic control issues that prevent it – and require that during the delay, the carrier provide passengers with updates every 30 minutes, working lavatories, and medical assistance if needed; and,
file these amendments with the CTA as soon as possible, and no later than February 27, 2018.

Based on its finding that Rule 5.3.1 of the tariff is unreasonable, the CTA has ordered Air Transat to:

revise Rule 5.3.1 and all corresponding rules of its other international tariffs to reflect the definition of Force Majeure found in the CTA's sample tariff for domestic and international scheduled flights; and,
file these amendments with the CTA as soon as possible, and no later than February 27, 2018.

Compensation

Air Transat has until May 24, 2018, to compensate all passengers for out-of-pocket expenses. The CTA does not have the statutory authority to award compensation for the inconvenience that passengers experienced, nor for pain and suffering.

A CTA enforcement officer will be assigned to monitor the payment of compensation to ensure that Air Transat adheres to the CTA order.

Penalty

Following examination of the details and severity of the incident and the findings of the CTA in the inquiry, the Designated Enforcement Officer issued a penalty of $295,000 which Air Transat must pay by January 3, 2018. A credit up to the amount of the penalty will be applied and accepted as payment in lieu upon provision of evidence, to the satisfaction of the Chief Compliance Officer, of the amount of compensation provided to passengers on Flight Nos. 157 and 507, excluding the refund of out of pocket expenses.