Fauvel v. Westjet Airlines Ltd., 2024 BCPC 190

Does this apply to you?

This case applies if you missed a connecting flight because the airline's computer cancelled your boarding pass before you landed and rebooked you on a later flight. The court said the automatic cancellation, not the earlier delay, caused the passengers' 16-hour delay. That put the delay within WestJet's control, and the APPR compensation applied.

What happened

Zoe Fauvel and Steffan Chmuryk flew one way on WestJet from London, England to Comox, BC. They connected in Toronto and again in Calgary. The Calgary connection was tight. The IATA standard minimum turn time for a domestic connection in Calgary is 45 minutes, and that is all their booking allowed. There was no margin for delay.

Their flight out of Toronto was delayed during de-icing. While they were in the air, WestJet's computer system worked out that the delay would leave less than 45 minutes in Calgary. It automatically cancelled their boarding passes for the Calgary to Comox flight and rebooked them on a flight the next day. Airlines call this "re-accommodation" or "proactive re-protection".

The plane landed in Calgary at 22:46, 11 minutes late. Their connecting flight was due to leave at 23:20. That left 34 minutes. But their boarding passes were no longer valid, so they could not board. The Comox flight left that night with empty seats. The passengers stayed in a Calgary hotel and reached Comox at 17:00 the next day, 16 hours after their scheduled arrival.

They sued WestJet in the Provincial Court of British Columbia, Small Claims, in Courtenay. They represented themselves. WestJet had a lawyer. The court heard the case on 31 January and 2 May 2024.

What the passengers argued

The passengers said bad weather that requires de-icing in Toronto in February should be expected and planned for. They said the 11-minute delay still left them 34 minutes to get off the plane and reach the gate, so they would have made the connection. They also said WestJet's explanation for the delay, the de-icing in Toronto, was inadequate or wrong. They said WestJet should have told them at the time about payment for a hotel and about compensation for the delay.

What WestJet argued

The decision does not set out WestJet's submissions in full. WestJet's position when the delay happened was that the de-icing in Toronto caused it. The trial record included evidence about the Toronto Pearson Central De-Icing Facility. The airport runs the facility itself, with 160 staff and 36 de-icing trucks that can de-ice 500 aircraft in a day. De-icing crews coordinate with aircraft crews, equipment operators and air traffic control, and planes are de-iced after they leave the gate and before they taxi to the runway. WestJet's terms and conditions were also in evidence. Check-in closes 45 minutes before departure, passengers must be at the gate 40 minutes before, and a guest who reaches the gate less than 10 minutes before departure risks losing the seat.

What the court decided

This was not a "denial of boarding" under the APPR. Section 1(3) of the Air Passenger Protection Regulations (APPR) defines denial of boarding narrowly. It only covers a flight that is overbooked or oversold. The Calgary to Comox flight had empty seats when it left. WestJet gained nothing from the re-accommodation. It paid for the empty seats and for the next-day tickets.

The de-icing delay in Toronto was outside WestJet's control. The judge found the de-icing facility is an airport operation of "considerable complexity". It involves many airlines, many aircraft, ground crews, air traffic control, weather and overlapping rules. It is not like baggage handling, catering or boarding. The judge understood the passengers' point that February weather should be expected. But with a fixed 45-minute turn time in Calgary, WestJet could not add weather padding to the Toronto to Calgary schedule without making the Comox connection unbookable. The passengers could have chosen other routes or carriers, as any passenger can. The judge suggested a pop-up warning for tight connections might help, but that did not change the finding.

The automatic cancellation of the boarding passes caused the delay, and that was within WestJet's control. The judge found the passengers "probably would have made the connection had their boarding passes not been cancelled". At the very least, they should have had the chance to try. The judge asked, "Why not just hold their seat, and see if they can make it to the gate?" Checked bags might be the complication, but many travellers would rather fly on and collect their bags later, especially when the airport they land at is their final stop.

The key point was an inconsistency in WestJet's own terms. A non-connecting passenger does not lose a seat until the 10-minute gate cut-off. WestJet has systems to cancel that reservation and pull the bags at that point. The judge found the same terms should apply to a delayed connecting passenger. WestJet's computer could still hold a backup booking on the next flight, but cancelling the boarding passes before the 10-minute cut-off was "within WestJet's control". Nothing in WestJet's terms explained why connecting passengers were treated differently.

WestJet's communication was not at fault. The judge did not criticize WestJet for telling the passengers the delay was due to de-icing. Its first view was not disingenuous, and the distinction the court drew took careful analysis.

WestJet is a large carrier, and section 19(1)(a)(iii) sets $1,000 for a delay of nine hours or more. The court awarded $596.00 for expenses, including filing and service fees, and $1,000.00 to each passenger under section 19(1)(a)(iii) of the APPR, a total of $2,596.00. Pre-judgment interest from the filing date was added.

Why this matters

• A delay caused by the airline's own automated rebooking is within the airline's control, even if the first delay was not. The court looked at what actually stopped the passengers boarding.
• The judge applied WestJet's own terms and conditions to the delayed connecting passengers, the same as to any other passenger. If the gate cut-off is 10 minutes, cancelling a seat before that is the airline's choice.
• Being refused a seat on a flight with empty seats is not "denial of boarding" under the APPR. Claim it as a delay within the airline's control instead.
• De-icing at a major airport's central facility counted as an airport operation outside the airline's control. A claim built only on a de-icing delay will likely fail.
• Self-represented passengers won $2,596 in BC Provincial Court against an airline with a lawyer.

The details