Baggage Fees Class Action Lawsuit Against WestJet Takes Flight

Update:

• The B.C. Court of Appeal has dismissed WestJet’s efforts to overturn the certification of a class-action lawsuit on baggage fees.
• WestJet Airlines Ltd. and WestJet Encore Ltd. challenged certification relating to the claim under the Competition Act, not certification of the class in general.
• In a ruling, Justice Robert Bauman wrote that the plaintiffs’ efforts are not “bound to fail” because the meaning behind the alleged offense has not been “substantially developed.”

The Supreme Court of British Columbia will allow a class action lawsuit challenging WestJet’s baggage fee charges to move forward.

The WestJet baggage fees class action lawsuit accuses the airline of violating the Competition Act and breaching its contract with customers by charging baggage fees during a period of time when WestJet’s tariffs indicated baggage fees would not be charged for a customer’s first checked bag. The plaintiff says WestJet was unjustly enriched by this conduct.

WestJet Allegedly Posted Conflicting Information About Baggage Fees

Every commercial airline in Canada is required by law to publish tariffs, which are part of their contract with customers. This requirement is stated in the Canada Transportation Act for domestic flights and the Air Transportation Regulations for international flights.

From October 2014 through March 2016, WestJet’s domestic tariff allegedly contained conflicting provisions about the price of a customer’s first checked bag on domestic flights. Section 7(d) of the tariff entitled “Acceptance of checked baggage” stated that WestJet would accept one piece of checked baggage without charge for each traveler on a flight and indicates that additional pieces of luggage would be charged according to a fee table.

The fee table indicates that the first checked bag would cost $25 for “Econo Fare”, “WestJet Vacations” and “Group Fares.”

The WestJet domestic tariff language was allegedly changed in March 2016 to remove the sentence indicating the first checked bag would be accepted at no cost.

According to the WestJet baggage fees class action lawsuit, the airline’s international tariff contained similar inconsistencies from Jan. 17, 2016 through March 2019, indicating a free checked bag in its “Acceptance of Checked Baggage” section of the tariff, but listing in its fee table a $25-$35.40 fee for the first checked bag.

Travelers Unaware of Baggage Fees Until They Checked In, Class Action Says

WestJet clearly expressed the price of $0 for the first checked bag by the way of the published tariffs, but the higher price was allegedly not expressed to travelers until they checked in for their flights, according to the WestJet baggage fees class action lawsuit.

Plaintiff Phebe-Joy Trotman filed the baggage fee class action lawsuit on behalf of herself and a proposed Class of individuals worldwide who traveled on a fare-paying itinerary on a WestJet flight and paid a fee for their first checked bags during the following time periods:

Canada domestic flights: tickets issued on or after Sept. 15, 2014 for travel between Oct. 29, 2014 and Feb. 22, 2018

USA and international flights: travel between Jan. 17, 2016 and March 20, 2019

WestJet Argued Claims Could be Heard Individually

The WestJet defendants argued that the baggage fees class action lawsuit should be dismissed because the plaintiff’s claim under certain sections of the Competition Act were bound to fail.

However, the court found that the plaintiff had met the requirements necessary for certification of a class action lawsuit. WestJet argued for a limitation on the proposed Class Members, particularly travelers outside of Canada. However, the court did not find a reasonable basis to exclude passengers who don’t live in Canada.

WestJet also argued that the Canada Transportation Agency provides a mechanism by which to adjudicate passenger complaints. The court acknowledged that the agency could hear individual claims, but that this would not be a preferable procedure to a class proceeding.

Because there are allegedly more than 9 million potential Class Members, the court determined that a WestJet class action lawsuit “is the only economically viable means for class members to obtain justice in a matter in which each traveller’s individual claim is very small.”

Court Approves Amended Definition for Class Members

The court approved the following amended definition for eligible Class Members: “All individuals residing anywhere in the world who travelled on a WestJet Booking made directly with WestJet during the Class Period (defined below) and paid to WestJet a fee for the first checked bag…”.

The court certified the following Class Period:

Canada domestic flights: tickets issued on or after Sept. 15, 2014 for travel from Oct. 29, 2014 to Feb. 22, 2018; and

USA and international flights: tickets issued on or after Nov. 3, 2015 for travel from Jan. 6, 2016 to March 20, 2019.

The parties were ordered to set a case management conference to take place within 90 days.

This isn’t the first class action lawsuit filed against WestJet. The airline has recently been hit with a WestJet class action lawsuit challenging its policy of issuing travel credits that expire after one year.

Were you charged WestJet baggage fees for your first checked bag even though the tariff indicated the first checked bag was free? What do you think about this WestJet class action lawsuit? Tell us about your experience in the comments section below.

The plaintiffs are represented by M.P. Good, K. McLaren and S. Lin.

The WestJet Baggage Fees Class Action Lawsuit is Dora Bergen, et al. V. WestJet Airlines Ltd., et al., Case No. S197550, in the Supreme Court of British Columbia, Canada. 

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