username

Just read about this on Loyalty Lobby this morning. This is wild. Just some random thoughts, not having read all the posts here...

Having friends in the airline industry, they hate frequent flyers and frequent flyer programs in general - it is an added cost for them and they lose upgrade opportunities when they travel. So, I can totally see AC is using this to get rid of OP.

The fact that AC has not settled tells me maybe they have some trump card in their hands? The T&C of these programs are written by airline lawyers and they get the benefits, right? So, might AC win in the court of law and lose in the court of public opinion/PR?

I can totally understand OP's passion on this and I think many FTers feel the same way

Sunny Day

The lounge thing is a red herring, my guess is he was "winning too much" and they wanted him exclude him from playing. During trial AC may have to expose their revenue management system and reveal things such as how much they overbook on certain routes, how they calculate their loss when passengers cancel, how much they value each lounge visit, how many fully refundable fares are sold, how much value they place on each of the perks that come with SE status, etc. Mr. Wong's attorney should be seeking those answers. It wasn't clear, is Mr. Wong still flying with AC since the suspension?

moondog

Greetings, all.

I would never have seen this conversation, were it not for the "new threads" feature，but it has now crossed my bow, so I'd like to offer my perspective:
1. Like many FTers, I used to derive a great deal of pleasure out of stress testing both shortterm promotions, and longterm policies
2. EVERYTHING changes over time (e.g. perhaps AC will be able to use the instant case to compel its partners to put massive restrictions on lounge access)
3. Any people who outsmart your own are actually providing a positive contribution to your company...for free

longtimeflyin

This has been mentioned several times both in the CBC article and in the pleadings that he is still flying with AC albeit without his status.

canadiancow

That is actually offensive, and I'm so sick of AC prying into my life that I'm going to divulge information right now that I'd much rather not.

I fly AC out of SFO all the time. A large portion of the staff know me.

"Mr. Kennedy, why are you going to Montreal instead of Toronto?"

I think I've been asked that four times today.

Guess what. None of your freaking business. But since I keep getting drilled about it, my grandmother died. I'm going to her funeral.

Why the hell should I be required to divulge that? I shouldn't. But I've been asked by numerous employees of Air Canada today. Because just booking a flight isn't acceptable. You need a "valid" reason for every voluntary booking/change/cancellation you make.
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The big question is whether that term of their contact is enforceable.

UW LS 101 (or was it 102? I can't recall which was civil) would say it's not.

Eric's lawyer would agree.

I disagree.

garykung

Not true.

1. Defendant has no obligation to defend.
a. Ridiculously enough, a defendant can admit some to all allegations.
b. In most civil cases, plaintiff has the burden of proof. In case of defendant's failure to respond, plaintiff is still required to prove the case without defendant's contention (i.e. not a automatic victory).
c. Defendant can in fact waive his/her/its right to defend.

2. If the pleading is withdrawn, usually no party is allowed to recover fees (as there is no winner or loser).

Even with a NDA, the outcome of the case can still be made to the public. A NDA, or confidentially clause, is to protect the content of the settlement agreement. Because the case, as filed, is a matter of public record, no party can conceal the outcome of the case, which is a dismissal.

Settlement privilege needs not to be waived in order to finalize the settlement.

Settlement privilege is automatically at play when the parties are negotiating settlements regardless if a case has been filed or not and if the parties reach settlements or not.

The court's authority to set aside contracts is relatively limited.

Usually, a court of law will set aside a contract only upon the request of any of the parties of the contract. Also - a court will set aside a contract only if the contract is evidently formed contrary to the public policy.

Other than that, the court will not involve in this kind of matters.

Actually, it can.

From your previous post, you have mentioned that AC has the discretionary authority to revoke the membership, which I have no dispute. The question is a suspension is different from revocation as suspension is intended to be temporary while revocation is permanent. While the T&Cs do not mention AC's authority to suspend, I believe that it is reasonable to AC to have such authority.

The question is how long AC can suspend the membership without taking further actions. In this case, OP was suspended for 2 years without a resolution. If AC revoked, rather than suspended, OP's membership at the first place, OP would have been able to obtain benefits from similar programs, such as UA while continue to fly AC (Note - AC has not declared OP as persona non grata. As alleged in the pleading, OP was able to fly AC even with unwelcoming encounters). So even AC can justify the suspension, the delays caused are undue to OP and unreasonable.

You are thinking the future. This case is about the past.

True.

Still - it is bad press for AC now.

longtimeflyin

"for all intents and purposes" was missed during your reading of my post. You also missed the fact the plaintiff is alleged to not come to a settlement without the privilege being waived by both parties which is why I responded to that topic in length. You have not written anything incorrect but I surmise a few things were missed which is understandable given the length of this thread.

I also disagree with you regarding costs when withdrawing the claim. Even the withdrawal form itself speaks to costs entitlement to the party from which the claim is being withdrawn from.

longtimeflyin

I would encourage you and others who may not be familiar with terms and conditions and its legal impact on its customers by watching "Terms and Conditions May Apply" on Netflix Canada. It may inform you of certain legal principles that may help (or not help) your understanding of this current case being discussed.

I believe you alleged that Air Canada will have an issue enforcing the terms and conditions they have put forward. I will however counter that by saying Air Canada's T&Cs are in fact very light and weak when compared to many T&Cs that impact almost every computer/internet user in the world -and even those have been ruled enforceable several times.

FlyerTalker70

Thought I'd chime in with a guess before seeing the actual reason (lawsuit looks like it's serious!):

Using self-upgrades instead of eUpgrades to sponsor yourself to the front of the cabin. I've tried that a couple times and when the pursuer comes questions me I say, "I thought that's how eUpgrades work!"

canadiancow

I may very well watch that tonight. But I suspect that clause will be a matter that requires the courts.

FlyerTalker70

I can understand AC wanting to prevent customers from abusing the perks of *A Gold/SE status. However, having worked in a company that did a lot of frequent business travel, last minute bookings and cancellations are not that uncommon. Certainly, if you're a frequent business traveller like Cargo, who can spend the $20K annually and fly 100,000 miles on *A partners, there will likely be several occasions where you'll need to make changes last minute. It would be one thing if Cargo made the MLL effectively his mobile WeWork space, checking in everyday then leaving the lounge and cancelling the flight in question.

However, the records provided by AC show that's not the case at all.Looking at the log AC provided it doesn't seem too crazy, maybe 4-6 times per year. I'm sure some of us on FT have had the unfortunate situation of arriving to the airport waiting to board a flight only to find out that a meeting has been cancelled rendering the whole trip pointless. I bet if we compiled a similar log for frequent travellers like ua1flyer, we'll see similar (if not more frequent) patterns of last minute flight changes and cancellations at the lounge. Heck, NH has a desk in the lounge @ NRT with a dedicated agent to make changes to your flight!

Safe Travels,

James

garykung

I did not miss it. Defendant is not required to defend.

I have not seen that in the pleading...

Allow me to direct you to the relevant BCSC Rules on this:

BCSC Rule 9-8(2): Discontinuance after action set for trial - After a notice of trial is filed in an action, a plaintiff may discontinue the action in whole or in part against a defendant with the consent of all parties of record or by leave of the court.

BCSC Rule 9-8(4): Costs and default procedure on discontinuance or withdrawal - Subject to subrule (2), a person wholly discontinuing an action against a party or wholly withdrawing his or her response to civil claim filed in response to a notice of civil claim of a party must pay the costs of that party to the date of service of the notice of discontinuance or the notice of withdrawal, as the case may be, and if a plaintiff who is liable for costs under this subrule subsequently brings a proceeding for the same or substantially the same claim before paying those costs, the court may order the proceeding to be stayed until the costs are paid.


I just watched it. It has almost nothing to do with this case, except the fact that most people won't even bother to read the T&Cs.

Nevertheless, T&Cs are not automatically enforceable, contrary to most people's belief. Specifically in this case - AC could have complete discretion to revoke the account. However, such exercise of the discretion must be just and proper, i.e. AC must have some standards instead of arbitrary determinations.

longtimeflyin

I don't think us discussing legal minutia is of much relevance to FlyerTalk, but it is entertaining.

1) Yes, a defendant is not required to defend, but for all intents and purposes, most defendants do so because a law suit is before them, and in this case, Air Canada will most likely defend themselves, and thus incur legal fees.

2) BCSC Rule 9-8(4) states exactly what I have been saying. My reading of your previous post indicates otherwise, but perhaps there is a comprehension problem on my part or we are simply saying the same thing, although based on your previous post you are disagreeing with me, and in the post I am quoting and the relevant BCSC rule indicates that my posture on costs when a plaintiff withdraws their claim is as I wrote upthread.

3) My suggestion to watch said Netflix video was not directed towards you; however, the video in question is over an hour long, so unsure how you were able to watch the entire video in the timeframes as indicated in this thread.

4) The courts have ruled T&Cs of some of the world's biggest companies that affect almost everyone with an internet connection as enforceable. Here we are talking about Air Canada, Super Elites, Maple Leaf Lounges and the like. We're comparing caterpillars to nuclear bombs here. I'm not suggesting that Mr. Wong has no case, in fact, I have indicated my hope that Mr. Wong succeeds and that I do think he will likely win; however, it is also safe to say that the cards are stacked against him, and that he is trying to stay afloat in the middle of the Pacific Ocean with two large safes attached to his ankle. I wish him the best, and I do think he will win given my knowledge of various precedents, but that said, this is not a battle I would be fighting if I were in his shoes.

5) With respect to settlement privilege and such, I was responding to Mr. Peever, and not the pleading or the plaintiff, as I quoted him and addressed that specific discussion.

I understand that you have a stronger than average legal comprehension than the average Joe (no offense to the average Joe); however, like it often is said the devil is in the details, and I would offer my friendly suggestion to read who and what I am quoting in my responses otherwise we risk losing the general readership of this friendly board.

capedreamer

longtimeflyin

I'm more surprised that a purser even existed on an Air Canada flight.