Mickey Anslow and Donna Anslow against Sunwing - consumer complaint

February 24, 2023

Application by Mickey Anslow and Donna Anslow (applicants) against Sunwing (respondent) regarding a flight delay

[1] The applicants purchased round-trip tickets to travel from Regina, Saskatchewan, to Cancun, Mexico, on March 7, 2020, and returning on March 14, 2020. When they arrived at the airport in Cancun to check in for their return flight, they were informed that the flight was delayed. They were originally scheduled to arrive in Regina at 7:55 pm on March 14, 2020, but their actual time of arrival was 2:29 am on March 15, 2020.

[2] The applicants each seek compensation for the delay in the amount of CAD 700, for a total of CAD 1,400.

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether the respondent properly applied the terms and conditions that were applicable to the tickets that the applicants purchased, as set out in its Tariff.

[4] If the Agency finds that the respondent failed to properly apply its Tariff, the Agency can direct it to take the corrective measures that the Agency considers appropriate or to pay compensation for any expense incurred by the applicants as a result of the respondent's failure.

Positions of the parties

[5] The applicants state that they were provided meals and were transported to a hotel to wait for their revised departure time. They filed a claim with the respondent for compensation under the Air Passenger Protection Regulations (APPR). The respondent declined their request for compensation, claiming that the delay they experienced was within its control but required for safety purposes. The respondent informed them that the rear lavatory pipes of the aircraft originally scheduled for the round trip that included their flight froze and ruptured at the point of departure. To ensure that there was more than one operating lavatory, an unscheduled stop was made in Toronto, Ontario, to substitute the aircraft as well as the crew to comply with duty time regulations. The applicants argue that the respondent was not required by law under the Canadian Aviation Regulations (CAR) to ensure that all of the aircraft's lavatories were functioning in order to operate the flight.

[6] The respondent provided evidence that the rear lavatory pipes of the original aircraft froze and ruptured because a heater was turned off in Regina for an unknown period of time. It states that the pilot-in-command, along with its Commercial Operations office, made the decision that a change of aircraft was required given the risk that further issues might occur with the only remaining functional lavatory and the water system, and render the aircraft out of service at any time. It submits that this decision was based on hygienic concerns which were heightened by the COVID-19 pandemic, especially as the applicants' flight was almost at full capacity. The respondent argues that it took all reasonable measures to mitigate the impact of the delay of the flight preceding the applicants' flight and that they are not entitled to compensation because the delay was within its control but required for safety purposes.

Analysis and determinations

[7] Under the Tariff and the APPR, compensation for inconvenience is owed if the delay was within the respondent's control, but it is not owed if the delay was within its control but required for safety purposes. The onus is on the applicants to establish, on a balance of probabilities, that the respondent failed to properly apply the rules applicable to their tickets. However, when a carrier claims that a disruption was within its control but required for safety purposes, it must establish this claim by providing evidence that supports its categorization of the disruption.

[8] In Decision 122-C-A-2021 (APPR Interpretive Decision), the Agency found that when a flight is delayed for multiple reasons, the Agency must identify the primary reason, or most significant contributing factor, of the disruption in order to determine the categorization of the flight delay. The Agency also recognized that delays due to unforeseeable mechanical issues that cannot be anticipated or planned for should be categorized as disruptions within the carrier's control but required for safety purposes.

[9] In this case, the respondent's maintenance notes document the technical stop and substitution of the defective aircraft in Toronto. These notes confirm that the aircraft's rear lavatories were frozen and leaking because an aircraft heater had been turned off for an unknown period of time prior to departure at the aircraft's point of origin in Regina.

[10] The Agency therefore finds that the primary reason for, or most significant contributing factor of, the applicants' flight disruption was because the rear lavatory pipes of the aircraft originally scheduled for their flight froze and ruptured. Given the winter conditions in Regina at the time, it was reasonably foreseeable that sensitive components would freeze if proper maintenance protocols were not followed while the aircraft was parked. Therefore, the Agency finds that the respondent has not established that the delay resulting from the lavatory malfunction was unavoidable, but rather, the respondent has shown that the delay could have been prevented if the maintenance and ground crew had been prudent and diligent.

[11] When confronted with rear lavatories that were out of service, the pilot and the respondent's Commercial Operations office decided, for legitimate hygienic reasons, to change the aircraft scheduled for the international round trip that included the applicants' flight. While their sensitivity to the health risks may have been heightened by the onset of the COVID-19 pandemic, an appropriate number of working lavatories for the expected number of passengers on an aircraft should be an element of flight safety, notwithstanding the minimum legal requirements to operate an aircraft under the CAR. Moreover, had a tarmac delay occurred, the respondent would have been required under the APPR to provide access to all the lavatories onboard the aircraft in working order.

[12] The circumstances described by the respondent were not unforeseeable mechanical issues. The respondent must therefore take responsibility for the consequences of the failure of its maintenance and ground crew to properly adhere to maintenance protocols and it must compensate the applicants for inconvenience pursuant to the APPR.

[13] In Determination A-2020-42, issued on March 13, 2020, the Agency temporarily exempted carriers from providing compensation for inconvenience under the APPR if passengers were notified of a flight delay or cancellation within 72 hours of their departure time. However, carriers were required to pay compensation to passengers delayed by six hours or more in arriving at their destination. A large carrier was required to pay compensation in the amount of CAD 400 to passengers delayed in arriving by six hours or more, but less than nine hours. These exemptions were effective immediately and were then extended in Determination A-2020-47 until June 30, 2020. As the disruption in this case occurred during this period, the exemptions apply.

[14] In this case, the applicants were first notified of the delay within 72 hours of their departure time, and they were delayed in arriving at Regina by 6 hours and 34 minutes. Accordingly, the Agency finds that the applicants are each entitled to compensation for inconvenience in the amount of CAD 400, for a total of CAD 800.

Applying the Decision to other passengers

[15] As this application relates to a flight delay, the Agency has the authority under the Air Transportation Regulations (ATR) [subsection 113.1(3)] to apply all or part of its decision concerning the respondent's obligations under the APPR to other passengers on the same flight, to the extent that it considers appropriate.

[16] The respondent and the applicants had an opportunity to file submissions on this issue; however, both parties chose not to do so. Based on the evidence and the Agency's decision in this case, the Agency finds that the other passengers on the same flight also experienced a flight delay that was within the respondent's control.

[17] Prior to this decision, the respondent categorized the delay of this flight as being within its control but required for safety. Consequently, the respondent may have denied claims filed by other passengers on the flight that should have been compensated.

[18] In light of the above, the Agency finds that other passengers on the same flight who previously filed a claim within the deadlines prescribed under the APPR and the Montreal Convention are also eligible for compensation.

Order

[19] The Agency orders the respondent to:

• Compensate the applicants in the amount of CAD 400 each, for a total of CAD 800;
• Provide other passengers on the same flight who filed claims for compensation within the applicable deadlines with a copy of the Agency's decision, and inform them that they could be eligible to receive compensation for inconvenience and reimbursement of expenses incurred as a result of the flight disruption; and
• File evidence with the Agency that it has responded to other existing requests for compensation related to this flight and reassessed requests related to this flight that it previously refused, based on the Agency's findings in this decision.

The respondent has until April 11, 2023, to comply with this order.

Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Air Transportation Regulations, SOR/88-58	110(4); 113.1(1);113.1(3)
Air Passenger Protection Regulations, SOR/2019-150	1(1); 8(1)(a); 11(2); 11(3); 12(2); 14(1); 19(1); 19(3)
Convention for the Unification of Certain Rules for International Carriage by Air - Montreal Convention	35
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) 3	2.1(g)

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