Date Issued: July 21, 2023

File: SC-2022-005974

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Perovic v. Flair Airlines Ltd., 2023 BCCRT 609

Between:

ZOE PEROVIC and HENRY PHAM

 

ApplicantS

And:

FLAIR AIRLINES LTD.

 

Respondent

REASONS FOR DECISION
Tribunal Member:	Shelley Lopez, Vice Chair

INTRODUCTION

1.      This dispute is about compensation for 2 flight cancellations in June and July 2022. The applicants, Zoe Perovic and Henry Pham, purchased round-trip domestic flights from the respondent Flair Airlines Ltd. (Flair). The applicants claim $1,861.39 in compensation, including for travel expenses associated with the delay.

2.      Flair says the applicable tariff terms and conditions do not require it to pay the claimed travel expenses. Otherwise, Flair admits the applicants are each entitled to $125 (for inconvenience under the Air Passenger Protection Regulations (APPR)), but for reasons it does not explain it has not paid that to the applicants.

3.      Ms. Perovic represents the applicants. Flair is represented by an employee.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). CRTA section 2 states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

5.      CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Bearing in mind the CRT’s mandate that includes proportionality and prompt resolution of disputes, I decided to hear this dispute through written submissions.

6.      CRTA section 42 says the CRT may accept as evidence information that it considers relevant, necessary, and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

8.      In their submissions, the applicants refer to their offer to settle the dispute during the CRT’s facilitation process. Under CRTA section 89 and CRT rule 1.11, information provided during the dispute’s facilitation stage is confidential and not admissible as evidence unless all parties consent. As I have no evidence that Flair consented, I have not considered that settlement offer in my decision below.

ISSUE

9.      The issue in this dispute is to what extent, if any, the applicants are entitled to the claimed compensation under the APPR or the parties’ contract.

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the applicants must prove their claim on a balance of probabilities (meaning “more likely than not”). I have read all the submitted evidence and arguments but refer only to what I find relevant to provide context.

11.   On June 28, 2022, with at least 12 hours’ notice, Flair notified the applicants that it had cancelled their scheduled June 29, 2022 return flight home. Initially, Flair rebooked the applicants’ return flight home for July 18, 3 weeks later. The applicants could not afford to extend their stay for 3 weeks and asked for an earlier flight home on a different airline. None of this is disputed.

12.   Ultimately, Flair rebooked their return flight home for July 3. While Flair initially denied also cancelling the July 3 flight, in its submissions it admits it did so on July 2. Again, this cancellation was undisputedly with at least 12 hours’ notice. While not entirely clear, Flair’s submitted booking records indicate Flair rebooked the applicants on a July 5 Flair return flight. Flair admits the July 3 flight cancellation led the applicants to cancel their Flair return flight on July 2 for a full refund. On July 2, the applicants booked a flight home through a different airline (that flight’s date is not in evidence but it appears it was on July 3, 4 or 5), for a total cost of $1,045.79. Again, none of this is disputed.

13.   Flair admits the flight cancellations were within its control. There is no evidence the cancellations were for safety reasons. However, Flair’s central argument is that it undisputedly notified the applicants of the cancellations more than 12 hours in advance and the applicants received a full refund for the flight they cancelled. So, Flair says the applicants are only entitled to $125 each under the APPR, though it does not explain why it has not paid this to the applicants. There is also no evidence or argument before me that Flair ever offered this compensation to the applicants before they started this CRT proceeding.

14.   The applicants say Flair breached the APPR, because it failed to provide a response and explanation within 30 days and did not offer or send the minimum $125 in compensation to each of the applicants as required under the APPR. The applicants also say Flair’s rebooking offer was to return them to Vancouver, rather than their original return destination of Abbotsford.

15.   Flair says under the terms and conditions of the applicable tariff the applicants are only entitled to $125 each in compensation, though as noted for reasons it does not explain it did not pay this to the applicants. Flair says that for passengers who “choose the rebook option” it will pay $200 CAD maximum per night and $60 CAD in meals per day. Flair says this would have only applied to June 29, 30, and July 1, plus July 2 for food only. However, Flair says it does not owe anything for these expenses because on July 2 the applicants cancelled their flight. In other words, Flair says “there is no further compensation for hotel and meal reimbursement once a flight has been cancelled and refunded in full”.

16.   Neither party submitted a copy of the applicable contract or tariff in evidence. Instead, Flair submitted a copy of a reservation confirmation that included a “Terms and Conditions” heading and referred the applicants to its website for, among other things, “reservations and bookings”. Under this heading, it also listed links to “Local Domestic Tariff”, “Reservations Terms & Conditions”, and “Website Terms & Conditions”. Parties are told to submit all relevant evidence. I cannot access a link now, as what is contained on it may be different than what was available to the applicants at the time they booked their flights.

17.   So, in short, I find there are no relevant tariff terms in evidence that impact Flair’s obligations to the applicants. I acknowledge the applicants argue Flair breached their contract to act in good faith and failed “in their duty to accommodate” the applicants. However, as noted the applicants also submitted no contractual terms that obliged Flair to book an alternative flight within a specified period of time. While the applicants submitted some evidence of alternative return flights on June 30, July 1, and July 2, there is no evidence before me that those flights had seats available to the applicants. Further, while the applicants argue that Flair “took hours” to help them find earlier flights, on the evidence before me I am unable to conclude that this was a breach of contract.

18.   Further, I note that in a prior published CRT decision, a default decision against Flair in dispute SC-2023-002130, the CRT tribunal member (now Vice Chair) found Flair’s tariff mirrored the APPR’s compensation and refund requirements. While not determinative, I find this does not support the applicants’ argument that the parties’ contract entitled them to compensation in excess of the APPR.

19.   In summary, I find I am therefore left with Flair’s obligations under the APPR. The APPR limits Flair’s liability for compensation for delayed or cancelled flights based on the cause of the delay or cancellation, unless the applicable tariff is more favourable to the passenger. I have addressed the tariff issue above. Section 12(3) of the APPR addresses an airline’s obligations when the delay or cancellation is within the airline’s control, as was the case here. That section says in the case of a cancellation Flair must:

a.    Inform the passengers about the reason for the cancellation and about any compensation they may be entitled to for inconvenience, as required by section 13,

b.    If a passenger is informed of the cancellation less than 12 hours before the departure time that is indicated on their original ticket, provide the standard of treatment set out in section 14 (reasonable food and drink and accommodations),

c.    Provide alternate travel arrangements or a refund, in the manner set out in section 17, and

d.    If a passenger is informed of the cancellation 14 days or less before the departure time that is indicated on their original ticket, provide the minimum compensation for inconvenience in the manner set out in section 19.

20.   First, APPR section 19(2)(b) requires a small airline to compensate a passenger $125 for the inconvenience of a cancellation where the passenger’s ticket is refunded. It is undisputed that Flair is a small airline. So, I find the applicants are each entitled to $125 for inconvenience. Again, Flair has undisputedly provided the refund required under APPR section 17(2)(b).

21.   Second, based on emails in evidence I find Flair advised the applicants the cancellations were for reasons within Flair’s control, and it referred the applicants to Flair’s website if they wanted to make a compensation claim.

22.   Third, the claimed accommodation and travel expenses. APPR section 12(3)(b) required Flair to provide the applicants with meals, hotels, and transportation expenses where the cancellation reason was within its control but only if Flair informed the applicants of the delay less than 12 hours before departure. As noted, Flair undisputedly informed the applicants with at least 12 hours’ notice. So, I dismiss the travel expenses aspect of the applicants’ claim.

23.   The Court Order Interest Act (COIA) applies to the CRT. I find the applicants are each entitled to $3.99 in pre-judgment interest on the $125. Calculated from August 1, 2022 (30 days after the July 2 flight cancellation) to the date of this decision, this interest equals $3.99.

24.   Under section 49 of the CRTA and the CRT’s rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. Flair agrees to reimburse the $125 in CRT fees, so I order Flair to reimburse Ms. Perovic that amount. No other party paid CRT fees and no dispute-related expenses were claimed by any party.

ORDERS

25.   Within 21 days of this decision, I order Flair to pay Ms. Perovic a total of $253.99, broken down as follows:

a.    $125 in damages,

b.    $3.99 in pre-judgment interest under the COIA, and

c.    $125 in CRT fees.

26.   Within 21 days of this decision, I order Flair to pay Mr. Pham a total of $128.99, broken down as follows:

a.    $125 in damages, and

b.    $3.99 in pre-judgment interest under the COIA.

27.   The applicants are entitled to post-judgment interest on the awards above, as applicable.

28.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.