Date Issued: July 30, 2024

File: SC-2023-006448 and

SC-2023-006454

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Digenova v. Air Canada, 2024 BCCRT 732

Between:

STEFANIA DIGENOVA

Applicant

And:

AIR CANADA

Respondent

- and -

Between:

PHILIP DI VIZIO

Applicant

And:

AIR CANADA

Respondent

 

REASONS FOR DECISION
Tribunal Member:	Amanda Binnie

INTRODUCTION

1.      The applicant in dispute SC-2023-006448 (6448), Stefania Digenova, and the applicant in dispute SC-2023-006454 (6454), Philip Di Vizio, are romantic partners. They experienced a flight delay on their return flight to Ontario on May 13, 2024. They each claim $1,000 in compensation under the Air Passenger Protection Regulations (APPR).

2.      The respondent in each dispute, Air Canada, accepts that there was a delay, however says it was within its control, but for safety reasons and so it owes nothing in compensation under the APPR.

3.      This decision involves two linked disputes. In both disputes, the applicant seeks $1,000 in compensation for flight delay from the same respondent, Air Canada, for the same flight. In each dispute, the applicants provided mostly the same evidence, and Air Canada also relied on the same evidence. The applicants’ different evidence relates to an additional claim made by Mr. Di Vizio in 6454, which the parties settled before adjudication. Both parties used the same submissions for each dispute. So, I have issued one decision for both disputes.

4.      The applicants are self-represented. Air Canada is represented by an employee.

JURISDICTION AND PROCEDURE

5.      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). Section 2 of the CRTA 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.

6.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

7.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court.

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.      As mentioned above, Mr. Di Vizio and Air Canada reached an agreement on Mr. Di Vizio’s $218.39 claim for delay-related expenses, so those issues are not before me in this decision.

ISSUE

10.   The issue in this dispute is whether the applicants are each entitled to $1,000 in compensation for their delayed flight under the APPR.

EVIDENCE AND ANALYSIS

11.   In a civil proceeding like this one, the applicants must prove their claims on a balance of probabilities. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.

12.   The background for this dispute is straightforward and not in dispute. Based on the parties’ evidence and submissions, I find the following:

a.    The applicants were scheduled to fly from Vancouver to Toronto on May 14, 2023 at 12 pm, arriving in Toronto at 7:23 pm.

b.    Around 12 am on May 14, Air Canada told the applicants their flight was cancelled due to a technical issue from an earlier flight. Another email was to follow with alternate travel plans.

c.    Air Canada initially offered a flight with a layover in Edmonton, which would have left Vancouver at 7:10 pm on May 14. As this trip was not direct, the applicants turned it down.

d.    Air Canada then offered a direct flight the next day, leaving Vancouver May 15 at 2 pm, arriving in Toronto at 8 pm. The applicants accepted this flight.

13.   Air Canada does not dispute that there was a flight cancellation that resulted in a delay of almost a day to the applicants, and I find that there was.

14.   The parties agree the APPR applies to the applicants’ flights and since the applicants’ flight was within Canada, I find that it does. So, whether the applicants are entitled to compensation under the APPR depends on the reason for the delay.

15.   APPR section 11 applies when a delay is within a carrier’s control but required for safety purposes. Section 11(2) says a delay that is directly attributable to an earlier delay within the carrier’s control but required for safety purposes is also considered to be within the carrier’s control but required for safety purposes, if the carrier took all reasonable measures to mitigate the delay’s impact. This is the “knock-on effect”.

Cause of the delay

16.   Air Canada says the aircraft scheduled to fly the applicants’ flight was FIN 738, which would be flying from Toronto to Vancouver before the applicants’ flights.

17.   However, while still in Toronto on May 12, FIN 738 was determined to have a fuel leak and was immediately grounded. Air Canada says it remained grounded until May 14 at 9:05 pm, after the applicants’ scheduled flight. Air Canada provided the maintenance log supporting this. In any event, the applicants do not dispute the fuel leak occurred, and I find that it did.

18.   I find that this fuel leak was a safety issue which caused FIN 738 to be unable to fly to Vancouver, which had a “knock-on effect” on the applicants’ flight to Toronto.

19.   The applicants refer to Welsh v. Flair Airlines Ltd., 2023 BCCRT 107. In that case, the issue was whether Flair Airlines had proven the weather was too severe to fly in, which caused the delay. The tribunal member in Welsh found Flair Airlines had not proven the weather was so severe. That is not the case here, as I accept a fuel leak is a safety issue that requires the aircraft’s grounding. So, I find the reasoning in Welsh does not apply here, even if it were binding on me.

Did Air Canada mitigate the delay?

20.   I turn now to the applicants’ evidence from “Flightera.net” (Flightera), which they say shows FIN 738 did fly to Vancouver on May 13. However, the applicants do not provide any details about Flightera, including the source of its information, and I accept Air Canada’s evidence that this flight was flown by another aircraft, FIN 742. FIN 742 then flew elsewhere and was not available to take the applicants to Toronto.

21.   The applicants also rely on Flightera to argue that FIN 738 flew to Barcelona on May 14 at 11:32 pm. Air Canada does not dispute this, and I find this is supported by its own aircraft schedule. In any event, I agree with Air Canada this flight was after the applicants’ cancelled flight would have arrived in Toronto and so does not help the applicants.

22.   The applicants argue that Air Canada had 14 hours to find an alternative aircraft for their flight. However, I accept Air Canada’s evidence, supported by their aircraft schedule, that all other aircrafts were grounded, in maintenance, in flight or scheduled to be in flight shortly. So, I find the applicants have not proven Air Canada was able to mitigate the delay by replacing FIN 738 with another aircraft.

23.   As noted, I find the applicants’ flight was delayed due to safety reasons. The APPR does not provide for compensation where a flight is delayed or cancelled for safety purposes. So, I dismiss the applicants’ claim for compensation on that basis.

Did Air Canada provide alternative travel arrangements?

24.   Under the APPR section 17(1)(a), where there is a knock-on effect attributable to a delay required for safety purposes, a large carrier must make alternate travel arrangements on the next available flight it operates, or on a carrier it has a commercial agreement with. The route must be reasonable, and the flight must depart within 9 hours of the passenger’s original departure. Air Canada does not dispute that it is a large carrier, and I find that it is.

25.   While I accept the applicants were not happy with the original rebooking offered as it was not direct, I find they have not proven it was not “reasonable”, under section 17. It was within 9 hours of the applicants’ original flight, as required by the APPR section 17(1)(a)(i). I find Air Canada’s proposed alternative was reasonable and complied with section 17 of the APPR. Even if it did not, there is no compensation for failure to comply with section 17.

26.   As the applicants were unhappy with Air Canada’s initial proposed flight alternative, Air Canada provided a second alternative, a direct flight departing May 15. The applicants accepted this second alternative. While the second alternative departed more than 9 hours after the original flight, it was still within the 48 hours required by section 17(1)(a)(ii). So, I find the applicants have not proven Air Canada breached section 17, even if that would entitle them to compensation.

27.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. Here, while Air Canada was successful on the compensation claim, I find it did not agree to Mr. Di Vizio’s expense claim until he started his dispute. So, I find Mr. Di Vizio is entitled to reimbursement of $37.50 in CRT fees, which is half the fees he paid. Air Canada did not pay any CRT fees. None of the parties claimed dispute-related expenses.

ORDERS

28.   Within 30 days of the date of this order, I order Air Canada to pay Mr. Di Vizio a total of $37.50 in CRT fees.

29.   Mr. Di Vizio is entitled to post-judgment interest, as applicable.

30.   I dismiss the applicants’ remaining claims.

31.   This is a validated decision and order. 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.