As many readers know, I have a law degree and am currently pursuing a graduate degree in law. I recently moved to Montreal, which follows the Civil Code instead of the common law system.
The common law allows airlines to void a contract for unilateral mistake. To rely on that defence, the airline must prove on a balance of probabilities that:
- The carrier mistakenly sold a ticket with a mistaken price, and;
- The purchaser knew, or ought to have reasonably known, that the price was a mistake.
In many recent mistake fare cases, airlines have relied on the defence of unilateral mistake and cancelled tickets without consequence. However, having moved to Quebec, I am no longer subject to the common law rule of unilateral mistake. I am subject to the contract law of the Civil Code of Quebec.
Last week I purchased a well-published round-trip fare from London, Heathrow to Guayaquil, Ecuador on British Airways First Class and American Airlines Business Class. The ticket was $USD 1069.09 per person (I bought a ticket for myself and a companion).
I had to make plans to get to and from London, book flights to the Galapagos, etc. I called and emailed British Airways (after the fare was no longer offered, of course). I recorded the telephone call. On the telephone call, I pointed out the fare paid and the class of service. I asked a number of times whether British Airways was honouring the ticket. The agent answered in the affirmative. They also replied to my email, confirming the ticketed status of the reservation (and they sent me an updated confirmation).
Three days after booking the ticket, I received an email from British Airways stating they were not honouring my ticket:
BA always takes great care to ensure that all published fares are correct. However, on rare occasions mistakes are made which cause the display of incorrect fares. Unfortunately, this has happened in relation to the recent booking you made, and the fare you paid was incorrect.
In circumstances where a booking has been concluded on the basis of a manifestly incorrect fare, as is the case here, we cancel that booking.
If you wish to retain the booking, you must pay the difference between the incorrectly advertised price and correct price for this journey. Should you wish to do this, and retain the ticket, please contact your local BA contact centre by Monday 9 October 2017 at 5.00pm UK time or two days before your travel date, whichever is earlier.
If we do not hear from you by this time, your ticket will be cancelled and you will receive a full refund. We are sorry for any inconvenience caused.
Alternatively, BA can offer you the option of applying the value of the ticket you have purchased toward a flight to the same destination in economy class. This will be a new booking, but you will travel on the same flights, and no additional fare or fee will be payable. Please contact your local BA contact centre by Monday 9 October 2017 at 5.00pm UK time or two days before your travel date, whichever is earlier if you wish to do this. BA’s Conditions of Carriage will apply to this new contract for carriage. Any appropriate tax refunds will be applied by the BA contact centre.
Given that the fare was manifestly incorrect, BA cannot accept any responsibility for any costs or losses incurred as a result of the booking made.
Today, as promised, I can no longer see my reservation on the British Airways website, and the reservation on the American Airlines website no longer shows the British Airways segments. My ticket is cancelled and not being honoured.
If I were in a common law jurisdiction, British Airways may be entitled to their behaviour (though I’d argue that they were estopped from relying on unilateral mistake, and argue that a buyer did not know nor ought to have known the ticket was a mistake). However, living in Quebec, the jurisdiction where I entered into the contract and where British Airways operates, I believe the contract is subject to Quebec law. Gowling WLG, a prominent law firm, writes about the Quebec Consumer Protection Act:
As for the existence of a contract under the Québec Consumer Protection Act (the “C.P.A.), the Court noted that unlike the Civil Code of Québec’s definition of an “offer”, a retailer is deemed to have made an offer if the retailer’s proposal contains all of the essential elements of the intended contract, regardless of whether there is an indication of the retailer’s willingness to be bound in the event the proposal is accepted, and even if there is an indication to the contrary!
That is, British Airways cannot rely on the defence of unilateral mistake for breach of contract. There are cases in Quebec where the Court has not enforced contracts that were entered into by mistake (ex. Faucher v. Costco Wholesale Canada Ltd. (2015 QCCQ 3366)). However, the case law in Quebec that allowed voiding the contract for mistake has shown to require that the price be obviously a mistake, and there must be a term in the contract that allows the seller to void the contract for mistake.
First, the ticket was over $USD $1,000. This isn’t a clear and obvious mistake. While this is substantially cheaper than the full cost of a First Class ticket, it’s not a dramatic and unrealistic price – this price could very well be a sale. Second, I could not find in the British Airways Contract of Carriage a provision that allows the voiding of tickets for mistaken prices. And finally, I contacted the carrier twice asking if the ticket would be honoured, and in both instances, my question was answered in the affirmative.
British Airways took three days to inform passengers that they did not intend to honour the ticket. A passenger is usually only afforded 24 hours to do the same. The price of the ticket, while low, is not obviously mistaken. Further, I cannot find a provision in the contract of carriage that would allow British Airways to cancel the ticket for allegedly mistaken price. Finally, British Airways confirmed that the tickets were valid. If this isn’t a clear breach of contract, I don’t know what is.
I filed a claim for $CAD 15,000 in Small Claims Court, the Court’s maximum. I am suing for the difference between what I paid and the price of the same flights now. Let’s see how this plays out!