Date Issued: February 14, 2024

2024 BCCRT 149 (CanLII)

File: SC-2023-005609

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Moffatt v. Air Canada, 2024 BCCRT 149

BETWEEN:

JAKE MOFFATT

APPLICANT

AND:

AIR CANADA

RESPONDENT

REASONS FOR DECISION

Tribunal Member: Christopher C. Rivers

INTRODUCTION

1. This dispute is about a refund for a bereavement fare.

2. In November 2022, following the death of their grandmother, Jake Moffatt booked a
flight with Air Canada. While researching flights, Mr. Moffat used a chatbot on Air
 Canada’s website. The chatbot suggested Mr. Moffatt could apply for bereavement
fares retroactively. Mr. Moffatt later learned from Air Canada employees that Air
Canada did not permit retroactive applications.

2024 BCCRT 149 (CanLII)

3. Mr. Moffatt says Air Canada must provide them with a partial refund of the ticket price,
as they relied upon the chatbot’s advice. They claim $880 for what they say is the
difference in price between the regular and alleged bereavement fares.

4. Air Canada says Mr. Moffatt did not follow the proper procedure to request
bereavement fares and cannot claim them retroactively. Air Canada says it cannot be
held liable for the information provided by the chatbot. Finally, it relies on certain
contractual terms from its Domestic Tariff. Air Canada asks me to dismiss Mr.
Moffatt’s claim.

5. Mr. Moffat is self-represented. Air Canada is represented by an employee.

6. For the reasons that follow, I mostly allow Mr. Moffatt’s claim.

JURISDICTION AND PROCEDURE

7. These are the Civil Resolution Tribunal’s (CRT) formal written reasons. The CRT has
jurisdiction over small claims brought under Civil Resolution Tribunal Act (CRTA)
section 118. 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.

8. 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.
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.

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9. 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.

2024 BCCRT 149 (CanLII)

10. Where permitted by CRTA section 118, 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.

ISSUE

11. Did Air Canada negligently misrepresent the procedure for claiming bereavement
fares, and if so, what is the remedy?

EVIDENCE AND ANALYSIS

12. In a civil proceeding like this one, Mr. Moffatt, as applicant, must prove their claims
on a balance of probabilities. This means “more likely than not”. 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.

13. On November 11, 2022, Mr. Moffat’s grandmother passed away in Ontario. That
same day, Mr. Moffat visited Air Canada’s website to find and book a flight from
Vancouver to Toronto using Air Canada’s bereavement rates. It is undisputed that Air
Canada provides certain accommodations, such as reduced fares, for passengers
traveling due to the death of an immediate family member.

14. Mr. Moffat says while using Air Canada’s website, they interacted with a support
chatbot. While Air Canada did not provide any information about the nature of its
chatbot, generally speaking, a chatbot is an automated system that provides
information to a person using a website in response to that person’s prompts and
input. The parties implicitly agree that Mr. Moffatt was not chatting with an Air Canada
employee.

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15. Mr. Moffat says they asked the Air Canada chatbot about bereavement fares. They
include a screenshot of the chatbot’s response, which says, in part, as follows:

Air Canada offers reduced bereavement fares if you need to travel because

2024 BCCRT 149 (CanLII)

of an imminent death or a death in your immediate family.

If you need to travel immediately or have already travelled and would like to
submit your ticket for a reduced bereavement rate, kindly do so within 90
days of the date your ticket was issued by completing our Ticket Refund
Application form. (emphasis in original)

16. It is undisputed the words “bereavement fares” were a highlighted and underlined
hyperlink to a separate Air Canada webpage titled “Bereavement travel” with
additional information about Air Canada’s bereavement policy. Air Canada provided
a screenshot of part of what I infer is the hyperlinked Air Canada webpage.

17. The webpage says, in part, the bereavement policy does not apply to requests for
bereavement consideration after travel has been completed. I address the
inconsistency between Air Canada’s chatbot and webpage later in this decision.

18. Relying on the information provided by the chatbot, on November 11, Mr. Moffatt
booked a one-way flight from Vancouver to Toronto, departing on November 12, for
$794.98. On November 16, relying on the same information, they booked a one-way
flight from Toronto to Vancouver, departing on November 18, for $845.38.

19. Mr. Moffat says on November 11, they spoke to an Air Canada representative by
telephone about bereavement rates to determine what the discount may be. Mr.
Moffatt says they were told the fare for each flight would be approximately $380.
There is no evidence the Air Canada representative told Mr. Moffatt about whether or
not they could retroactively apply for bereavement rates.

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20. Mr. Moffatt submitted their first application for the bereavement fare on November 17,
2022, well within the 90 days requested by the chatbot. Emails in evidence show Mr.
Moffatt corresponded with Air Canada throughout December 2022 and February
2023 in an attempt to receive a partial refund of their fares.

2024 BCCRT 149 (CanLII)

21. On February 5, 2023, Mr. Moffatt emailed Air Canada. They included the screenshot
from the chatbot that set out the 90-day window to request a reduced rate and
confirmed they had filled out the refund form and provided a death certificate.

22. On February 8, an Air Canada representative responded and admitted the chatbot
had provided “misleading words.” The representative pointed out the chatbot’s link to
the bereavement travel webpage and said Air Canada had noted the issue so it could
update the chatbot.

23. The parties exchanged further emails after that but were unable to resolve matters.

Negligent Misrepresentation

24. While Mr. Moffatt does not use the words specifically, by saying they relied on Air
Canada’s chatbot, I find they are alleging negligent misrepresentation. Negligent
misrepresentation can arise when a seller does not exercise reasonable care to
ensure its representations are accurate and not misleading.

25. To prove the tort of negligent misrepresentation, Mr. Moffatt must show that Air
Canada owed them a duty of care, its representation was untrue, inaccurate, or
misleading, Air Canada made the representation negligently, Mr. Moffatt reasonably
relied on it, and Mr. Moffatt’s reliance resulted in damages.1

26. Here, given their commercial relationship as a service provider and consumer, I find
Air Canada owed Mr. Moffatt a duty of care. Generally, the applicable standard of
care requires a company to take reasonable care to ensure their representations are
accurate and not misleading.

1 See: Queen v. Cognos Inc., 1993 CanLII 146 (SCC).

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27. Air Canada argues it cannot be held liable for information provided by one of its
agents, servants, or representatives – including a chatbot. It does not explain why it
believes that is the case. In effect, Air Canada suggests the chatbot is a separate
legal entity that is responsible for its own actions. This is a remarkable submission.

2024 BCCRT 149 (CanLII)

While a chatbot has an interactive component, it is still just a part of Air Canada’s
website. It should be obvious to Air Canada that it is responsible for all the information
on its website. It makes no difference whether the information comes from a static
page or a chatbot.

28. I find Air Canada did not take reasonable care to ensure its chatbot was accurate.
While Air Canada argues Mr. Moffatt could find the correct information on another
part of its website, it does not explain why the webpage titled “Bereavement travel”
was inherently more trustworthy than its chatbot. It also does not explain why
customers should have to double-check information found in one part of its website
on another part of its website.

29. Mr. Moffatt says, and I accept, that they relied upon the chatbot to provide accurate
information. I find that was reasonable in the circumstances. There is no reason why
Mr. Moffatt should know that one section of Air Canada’s webpage is accurate, and
another is not.

30. Mr. Moffatt says, and I accept, that they would not have flown last-minute if they knew
they would have to pay the full fare. I find this is consistent with Mr. Moffatt’s actions,
which included investigating the options for bereavement fares and diligently
following up for a partial refund in line with the chatbot’s information.

31. To the extent Air Canada argues it is not liable due to certain terms or conditions of
its tariff, I note it did not provide a copy of the relevant portion of the tariff. It only
included submissions about what the tariff allegedly says. Air Canada is a
sophisticated litigant that should know it is not enough in a legal process to assert
that a contract says something without actually providing the contract. The CRT also
tells all parties are told to provide all relevant evidence. I find that if Air Canada wanted

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 to a raise a contractual defense, it needed to provide the relevant portions of the
contract. It did not, so it has not proven a contractual defence.

32. So, I find Mr. Moffatt has made out their claim of negligent misrepresentation and is

2024 BCCRT 149 (CanLII)

entitled to damages.

Damages

33. Mr. Moffatt is entitled to be put in the position they would have been in if the
misrepresentation had not been made. The measure of damages is generally
considered the difference between the price paid and the actual market value at the
time of the sale.2

34. Mr. Moffatt says when they spoke to an Air Canada agent, the agent advised them
the bereavement fare was approximately $380 each direction. So, Mr. Moffatt says
they should have only paid $760 total for their flights. In reality, they paid $1,630.36
for their flights. In submissions, they calculate the amount owing to be $880.36, which
is $0.36 more than they claimed in their application. I note, however, the actual
difference is $870.36, which I find is the maximum amount to which they could be
entitled.

35. In its boilerplate Dispute Response, Air Canada denies “each and every” one of Mr.
Moffatt’s allegations generally. However, it did not provide any evidence to the
contrary. Here, Air Canda was best positioned to provide evidence about what the
bereavement fare would have been.

36. When a party fails to provide relevant evidence without sufficient explanation, an
adjudicator is entitled to draw an adverse inference. An adverse inference is where
an adjudicator assumes a party has failed to provide relevant evidence because the
missing evidence would not support their case. Here, I find that if Air Canada had
evidence of a different bereavement fare, it would have provided it. Since I did not, I
find that $380 was the bereavement fare’s market value.

2 See: Ban v. Keleher, 2017 BCSC 1132, at paragraph 57.

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37. In calculating their damages, Mr. Moffatt uses $380 as the all-in cost of each flight.
Since Mr. Moffatt says they were told the fare was $380, I find that does not include
the additional costs of taxes, security charges, or airport improvement fees that they
also had to pay. Their original tickets contained all of these costs, and I find the

2024 BCCRT 149 (CanLII)

bereavement fares would have as well.

38. For the flight from Vancouver to Toronto, Mr. Moffatt paid $695, plus $62.12 in fixed-
rate charges and $37.86 in GST. With a bereavement fare of $380, plus $62.12 in
additional charges, and $22.11 in GST, Mr. Moffatt’s total cost would have been
$474.23.

39. For the return flight from Toronto to Vancouver, Mr. Moffatt paid $681, plus $67.12 in
fixed-rate charges and $97.26 in Harmonized Sales Tax (HST). With a bereavement
fare of $380, plus $67.12 in additional charges, and $58.13 in HST, Mr. Moffatt’s total
cost would have been $505.25.

40. In total, then, I find Mr. Moffatt should have paid $979.48 for their two flights. Since
they paid $1,630.36, I find they are entitled to damages of $650.88.

41. Air Canada argues that it provided Mr. Moffatt with a $200 coupon as a gesture of
goodwill. I infer Air Canada argues it is therefore entitled to a $200 set-off against any
amount it may owe Mr. Moffatt. However, Mr. Moffatt says they did not accept the
offered coupon, and Air Canada has provided no evidence to show otherwise. So, I
find Air Canada is not entitled to any set-off.

42. The Court Order Interest Act applies to the CRT. Mr. Moffatt is entitled to pre-
judgment interest on the damages from November 17, 2022, the date of their first
email requesting the bereavement fare refund, to the date of this decision. This equals
$36.14.

43. Under CRTA section 49 and CRT rules, the CRT will generally order an unsuccessful
party to reimburse a successful party for CRT fees and reasonable dispute-related
expenses. I see no reason in this case not to follow that general rule. I find the

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 applicant was substantially successful, so is entitled to reimbursement of $125 in CRT
fees. Mr. Moffatt did not claim any dispute-related expenses.

ORDERS

2024 BCCRT 149 (CanLII)

44. Within 14 days of the date of this order, I order Air Canada to pay Mr. Moffatt a total
of $812.02, broken down as follows:

a. $650.88 in damages,

b. $36.14 in pre-judgment interest under the Court Order Interest Act, and

c. $125 in CRT fees.

45. Mr. Moffatt is entitled to post-judgment interest, as applicable.

46. I dismiss Mr. Moffatt’s remaining claims.

47. Under CRTA section 58.1, 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.

Christopher C. Rivers, Tribunal Member