File: SC-2022-007202
Type: Small Claims
Civil Resolution Tribunal
Indexed as: S.M. v. Westjet Airlines Ltd., 2023 BCCRT 622
Between:
S.M., S.B., B.M., and O.M.
ApplicantS
And:
WESTJET AIRLINES LTD.
Respondent
REASONS FOR DECISION |
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Tribunal Member: |
Shelley Lopez, Vice Chair |
INTRODUCTION
1. This dispute is about compensation for alleged denial of boarding on a July 31, 2022 flight operated by the respondent, Westjet Airlines Ltd. (Westjet). The applicant passengers, SM, SB, BM, and OM, are a family and booked their tickets on the flight together. Mid-flight on the Vancouver to Calgary leg of applicants’ international trip, Westjet cancelled their boarding passes for their connecting flight out of Calgary. Westjet did so on the belief the applicants would not make that connecting flight, which turned out to be incorrect as the applicants were able to make it to the gate in time. At the same time as it cancelled the connecting flight, Westjet rebooked the applicants onto different flights which ultimately resulted in a 9+ hour delay in the applicants’ arrival at their final European destination.
2. The applicants say that Westjet owes each of them a maximum of $2,400 in compensation under section 20 of the Air Passenger Protection Regulations (APPR). The applicants limit their total claim to $5,000, the monetary limit of the Civil Resolution Tribunal (CRT) in small claims matters. This $5,000 is comprised of $750.56 for travel-related expenses, and the balance for denied boarding.
3. Westjet has undisputedly already paid the applicants $1,000 each for delayed arrival, under section 19 of the APPR. Westjet says there was no denial of boarding, because APPR section 20 compensation is only available when the airline overbooks the flight, which was not the case here. Westjet agrees to pay $743.40 in travel-related expenses but says it owes nothing more.
4. I have anonymized the applicants’ names to protect the identities of the minor applicants BM and OM. SM represents the applicants. Westjet is represented by legal counsel, Marion Unrau.
JURISDICTION AND PROCEDURE
5. These are the CRT’s formal written reasons. 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.
6. 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.
7. 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.
8. 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.
9. Finally, as noted above, the applicants limited their combined total claim to $5,000, the CRT’s monetary limit in small claims matters. I find it is clear the applicants did so believing the $5,000 limit applied to their entire dispute, which is consistent with the CRT’s online system that will not allow a small claims dispute to be filed with a value over $5,000.
10. However, in law the $5,000 monetary limit is per “claim”, not per dispute. Here, as individual passengers, the applicants each had a separate $2,400 claim for denial of boarding, rather than 1 claim for all 4 applicants together. Had I been inclined to allow compensation under APPR section 20, I would have raised the monetary limit issue with the parties and sought their submissions about it. Here, I found it unnecessary to do so. This is because I have dismissed most of the applicants’ claim, as I find there was no denial of boarding within the meaning of the APPR. So, the monetary limit makes no difference here.
ISSUE
11. The issue in this dispute is whether the applicants experienced a “denial of boarding” as defined in the APPR and in the parties’ contract, and if so, whether they are entitled to the claimed $5,000.
EVIDENCE AND ANALYSIS
12. 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.
13. The background facts are not disputed. On July 31, 2022, the applicants took a Westjet flight from Vancouver to Calgary, with Europe as their final destination. The flight from Vancouver to Calgary was delayed by 59 minutes. The delay was within Westjet’s control. Mid-flight, Westjet’s “automatic re-accommodation tool” anticipated that the applicants would be unable to meet the minimum 45-minute connection time for a domestic to international terminal transfer and “re-accommodated” the applicants to new flights. The new flights required the applicants to stay overnight in a hotel in Calgary, and then stop in Halifax on their way to Europe.
14. As noted, on September 1, 2022 Westjet undisputedly paid each of the applicants $1,000 for delayed arrival, under APPR section 19. The applicants argue these payments should only be considered a partial payment towards their denied boarding claim, which, if proven, would undisputedly be $2,400 per passenger under the APPR.
15. First, the applicants’ claimed $750.56 for travel-related expenses. I find their claim is limited to the amount proven by receipts, which as Westjet notes totals $743.40. Westjet agrees to pay the applicants the proven $743.40 under the APPR, and I order it to do so, under APPR sections 12(2)(b) and 14. I find Westjet must repay that amount to SM, who is the primary applicant in this dispute and whose name is on the August 1, 2022 $650.32 hotel receipt.
16. Second, the balance of the applicants’ claim based on alleged denial of boarding, under APPR section 20. In essence, the applicants claim Westjet denied them boarding for their scheduled connecting flight out of Calgary, because Westjet unilaterally cancelled their boarding passes even though it turned out the applicants could have made the scheduled connecting flight. The applicants say Westjet’s “automatic re-accommodation tool” caused them to be denied boarding.
17. I disagree with the applicants. This is because I agree with Westjet’s interpretation of “denial of boarding” as defined in the APPR. My reasons follow.
18. Under APPR sections 1, 15, and 20, denial of boarding has a defined meaning. As I set out in paragraphs 10 and 11 of my earlier decision in Younus v. Flair Airlines Ltd., 2023 BCCRT 419, and as set out in another non-binding but persuasive CRT decision cited by Westjet, Mackoff v. Air Canada, 2022 BCCRT 1121, it essentially means overbooking. Specifically, APPR section 1 defines denial of boarding as when a passenger is not permitted to board the plane because there are less seats available than there are passengers booked and ready to travel in those seats. Westjet’s tariff has the same definition of “denial of boarding”.
19. So, contrary to the applicants’ argument, the fact they were compliant with the applicable rules and regulations does not mean Westjet is responsible to compensate for denial of boarding within the APPR’s meaning. Again, what matters under the defined term is if Westjet overbooked the scheduled connecting flight.
20. Here, there is no evidence or even argument that Westjet overbooked the scheduled connecting flight out of Calgary. Rather, there is evidence that it was not overbooked. In particular, Westjet submitted evidence showing that the scheduled connecting flight’s plane, a Boeing 787 Dreamliner, had room for 320 passengers and had 255 passengers on board shortly before departure. It then accommodated 7 further standby passengers and so it had capacity for an additional 58 passengers. I find the scheduled connecting flight was not overbooked.
21. Given the above, I find there was no denial of boarding as defined in the APPR. This means Westjet does not owe the applicants compensation for denied boarding under the APPR or under the applicable tariff. I dismiss this aspect of the applicants’ claim.
22. I acknowledge the applicants’ submission that they were not made aware of Westjet’s minimum connection times or its booked passenger load for the scheduled connecting flight. However, even if this were so, I find it does not entitle the applicants to compensation for denial of boarding as claimed.
23. The Court Order Interest Act (COIA) applies to the CRT. I find SM is entitled to pre-judgment interest on the $743.40. Calculated from September 2, 2022 (30 days after SM’s expense claim to Westjet) to the date of this decision, this interest equals $23.02.
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. As the applicants were partially successful, I find Westjet must reimburse SM ½ her paid CRT fees, or $87.50. 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 Westjet to pay SM a total of $853.92, broken down as follows:
a. $743.40 in damages,
b. $23.02 in pre-judgment interest under the COIA, and
c. $87.50 in CRT fees.
26. SM is entitled to post-judgment interest, as applicable. I dismiss the balance of the applicants’ claims.
27. 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.
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Shelley Lopez, Vice Chair |