Air Canada Bound by Its Chatbot

Hooray for Canada!  First you gave us the emoji-as-signature case; now this!

Just last week, I was complaining to my students that I don’t like the way the Restatement lays out the elements of misrepresentation.  It says that misrepresentation has to be either fraudulent or material, but it is hard to come up with a fact pattern in which a plaintiff could establish the requisite scienter for a misrepresentation that was not fraudulent.  Air Canada, can you prove me wrong?

Plaintiff Jake Moffat, who apparently uses “Mr.” but also they/them pronouns, went onto Air Canada’s website to book a flight.  They were looking for a bereavement fare, and Air Canada’s chatbot told them not to worry.  They could get the ticket recategorized as a bereavement fare retroactively so long as they applied to do so within ninety days of travel.  Air Canada’s human employees were less accommodating, and Mr. Moffat sued to recover the difference between the fare they paid and the bereavement fare; a difference of $880 (Canadian, I assume). 

In Moffat v. Air Canada, the Civil Resolution Tribunal (CRT) allowed Mr. Moffat’s claim for negligent misrepresentation.  The claim is brought in tort, but that’s only a product of a factual variable.  Mr. Moffat had paid for his ticket and was seeking a refund.  Had they not paid, Air Canada would be going after them for breach of contract, and they would be alleging negligent misrepresentation as an affirmative defense to their obligation to pay.  The elements of the claim seem to be same, except that Mr. Moffat had to establish that Air Canada owed him a duty.  No problem here.  In addition, Mr. Moffat had to show an untrue, inaccurate or misleading representation, negligence, reasonable reliance, and damages.  

The chatbot indicated that Mr. Moffat could fly first, provide evidence of bereavement later.  However, it also provided a hyperlink to Air Canada’s bereavement policy, which does not allow for requests for bereavement fares after travel.  The rest follows as expected.  Mr. Moffat traveled.  Mr. Moffat sought a bereavement fare.  This being Air Canada, they said “sorry” about the misinformation provided by the chatbot and thanked Mr. Moffat for allowing them the opportunity to address the problem.  Air Canada did not offer a refund, instead it offered Mr. Moffat a $200 coupon towards future flights.  Mr. Moffat refused.

Mr. Moffat was able to how by a preponderance of the evidence that all elements of a claim for negligent misrepresentation were met.  The CRT rejected Air Canada’s affirmative defense based on the terms and conditions of the applicable tariff because Air Canada described those terms and conditions but did not provide evidence of them.  Seems odd that Air Canada would bother to fight this claim but then not bother to provide evidence necessary to its defense.  as a result of Air Canada’s half-hearted litigation strategy, we can’t know whether other plaintiffs could follow in Mr. Moffat’s path.  It may be that Air Canada has a powerful defense.  However, when a big corporation goes up against a pro se litigant, the CRT is not inclined to cut it any slack.  The CRT engaged in a careful and detailed calculation of damages and ordered Air Canada to pay Mr. Moffat $812.02, plus post-judgment interest.  

Now I know what you are thinking.  It’s easy to blame the overworked chatbot for messing up.  But I asked a chatbot its opinion about what could have caused the negligent misrepresentation in question.  It sent me a before and after picture of the chatbot in question, who apparently started its career as “cht boot?” but then decided to take on the moniker “CHBoT?”, which like BONG HiTs 4 JESUS, just seems right to me.  At left we have the Air Canada chatbot pictured the day that it started work.  At right, we have it three weeks into its new career.  Images generated by DALL-E.  As you can see, like most airline employees, it was attracted by the allure and mystique of air travel.  Like some, it quickly learned that it was a glorified server on a greyhound bus trip to hell.  I’m not saying that all of the airlines’ customer service people end up hitting the sauce hard.  I’m just saying I would not blame them for doing so.

Hat tip to my former student, Don Dechert, who shared the case with me!