Last edit by: canadiancow
Pertinent details/events/articles:
- https://goo.gl/ioL7Tx
- Original email sent to Mr. Wong, accusing him of abuse of MLL privileges: https://www.flyertalk.com/forum/26733198-post38.html
- CBC article: https://www.cbc.ca/news/canada/briti...ourt-1.4717202
- VFTW post: https://viewfromthewing.boardingarea.com/2018/06/22/man-has-airline-status-yanked-for-refunding-tickets-after-using-airport-lounges-now-hes-suing/
- FBT story Air Canada ‘Super Elite’ Sues Airline After Status is Revoked for Using Airport Lounges Without Flying
- TPG post: https://thepointsguy.com/news/air-canada-super-elite-traveler-sues-carrier-over-revoked-airline-status/
Super Elite suspended; lawsuit filed but amicably settled out of court
#571
FlyerTalk Evangelist
Join Date: May 2001
Posts: 10,969
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
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
#572
Join Date: Aug 2003
Location: Canada
Programs: Marriott Plat; Air Canada E75K; Westjet Platinum
Posts: 1,161
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?
#573
A FlyerTalk Posting Legend
Join Date: Dec 2000
Location: Shanghai
Posts: 42,033
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
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
#575
A FlyerTalk Posting Legend
Join Date: Sep 2012
Location: SFO
Programs: AC SE MM, BA Gold, SQ Silver, Bonvoy Tit LTG, Hyatt Glob, HH Diamond
Posts: 44,331
I'm sorry but having read this thread and the public news, I don't really have any sympathy for Mr Wong.
It seems very simple, if he had a valid reason to change his travel plans, he should just say it. Don't hide behind "refunds, no questions asked". He admits to gaming the system and he got caught.
It's people like him that abuse the process that make it worse for others.
What was your reason for leaving the lounge Mr. Wong?
It seems very simple, if he had a valid reason to change his travel plans, he should just say it. Don't hide behind "refunds, no questions asked". He admits to gaming the system and he got caught.
It's people like him that abuse the process that make it worse for others.
What was your reason for leaving the lounge Mr. Wong?
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.
UW LS 101 (or was it 102? I can't recall which was civil) would say it's not.
Eric's lawyer would agree.
Advertising and legal terms and conditions are two wholly separate items and legal action typically ensues when they clash - as is with this lawsuit at hand.
Typically speaking though, the terms and conditions (e.g. the legalese that no one cares to or wants to read) ultimately prevail in the eyes of the law. Thus, Mr. Wong is facing an uphill battle while being dragged back towards zero elevation by a giant rock.
Typically speaking though, the terms and conditions (e.g. the legalese that no one cares to or wants to read) ultimately prevail in the eyes of the law. Thus, Mr. Wong is facing an uphill battle while being dragged back towards zero elevation by a giant rock.
#576
FlyerTalk Evangelist
Join Date: Aug 2009
Location: ZOA, SFO, HKG
Programs: UA 1K 0.9MM, Marriott Gold, HHonors Gold, Hertz PC, SBux Gold, TSA Pre✓
Posts: 13,811
In general, and in this case, once a pleading is filed and served against the defendant, in this case, Air Canada, the defendant is required (for all intents and purposes) to defend themselves, and this causes them to have to incur legal expenses (again, for all intents and purposes). If the plaintiff then withdraws the pleading, then the defendant is allowed to recover all of his or her costs because they were forced to incur legal expenses.
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).
Settlement privilege needs not to be waived in order to finalize the settlement.
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.
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.
2. Damages? If the program is a benefit given by the airline, a perk, an extra that is voluntarily provided and one which is governed by a condition that says it can be stopped at any time, it is a difficult case to claim damages. If I give you $10 every time I see you because I like your snazzy belt buckle, but then stop because you started wearing suspenders, sure, you suffer a loss of the $10, but it the money was awarded by me subject to my conditions of giving, you cannot claim for the $10.
3. As for jurisdiction, I am currently watching an action of significant size be contested. Filed in BC, but being argued that the case should be tried in ON because of the jurisdiction clause. (Plaintiff also lives in BC). First court agreed with defendant, and now in appeal.
2+ years of back and forth with defense legal fees close to $300K. Anyway, my point was that I expect to see the venue contested.
2+ years of back and forth with defense legal fees close to $300K. Anyway, my point was that I expect to see the venue contested.
4. News Cycle: You are considering it from the perspective of an engaged person who pays attention to the world around him, as are most people on this forum. However, I offer that most people live in their respective bubbles and are oblivious to this. Sure, folks react when there is an horrific event like a mass death, but then a few weeks pass and it's on to the next important event like whether or not Justin's eyebrow was glued on. (I kid you not, this was actually a top news item.) I don't think this case will have much of an impact for the simple reason that the general public will not be able to emotionally connect to the plaintiff. He's not some child abandoned in the airport or an elderly granny mistreated. Instead he will be seen as "a rich guy flying in first class and complaining about his champagne and caviar treats". Keep in mind that many people, particularly those who do not fly AC, still call domestic J, first class and assume the pax are waited on hand and foot. (No guffawing please.)
#577
Suspended
Join Date: Mar 2017
Programs: AC
Posts: 2,167
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.
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.
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.
Last edited by longtimeflyin; Jun 23, 2018 at 6:40 pm
#578
Suspended
Join Date: Mar 2017
Programs: AC
Posts: 2,167
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.
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.
#579
Join Date: Nov 2017
Posts: 3,359
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!"
#580
A FlyerTalk Posting Legend
Join Date: Sep 2012
Location: SFO
Programs: AC SE MM, BA Gold, SQ Silver, Bonvoy Tit LTG, Hyatt Glob, HH Diamond
Posts: 44,331
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.
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.
#581
Join Date: Nov 2017
Posts: 3,359
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
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
#582
FlyerTalk Evangelist
Join Date: Aug 2009
Location: ZOA, SFO, HKG
Programs: UA 1K 0.9MM, Marriott Gold, HHonors Gold, Hertz PC, SBux Gold, TSA Pre✓
Posts: 13,811
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 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.
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.
#583
Suspended
Join Date: Mar 2017
Programs: AC
Posts: 2,167
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.
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.
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.