Decision No. 116-C-A-2002

March 11, 2002

File No. M4370/A465/02-1

APPLICATION

On January 16, 2002, Aerolineas Argentinas Sociedad Anonima carrying on business as Aerolineas Argentinas (hereinafter Aerolineas Argentinas) applied to the Canadian Transportation Agency (hereinafter the Agency) for a review of Decision No. 7-C-A-2002 dated January 3, 2002.

BACKGROUND

Decision No. 7-C-A-2002 dated January 3, 2002, was issued as a result of a complaint filed by Dr. Raouf Mikhail, on behalf of his spouse, Ms. Jimena Frias, with respect to Aerolineas Argentinas' refusal to reimburse the unused portion of an open return ticket from Montréal to Santiago, Chile. In its Decision, the Agency found that Aerolineas Argentinas had not applied the terms and conditions of carriage specified in its international tariff on file with the Agency and that, as such, had contravened subsection 110(4) of the Air Transportation Regulations (hereinafter ATR). Accordingly, the Agency ordered that Aerolineas Argentinas apply the terms and conditions of carriage set out in its international tariff.

JURISDICTION OF THE AGENCY

Pursuant to section 32 of the Canada Transportation Act (hereinafter the CTA), the Agency may review, rescind, or vary any decision if new facts or circumstances have arisen since the issuance of the decision.

It is important to stress at the outset that the review contemplated by section 32 of the CTA is not an open-ended authority for the Agency to review its decisions. The Agency's jurisdiction under this section is limited and only arises if there has been a change in facts or circumstances pertaining to the decision since its issuance. The Agency must first determine whether there has been a change in facts or circumstances pertaining to the decision and, if so, then determine whether such change is sufficient to warrant a review, rescission or variance of the decision.

ISSUE

The matter to be addressed is whether or not the information submitted by Aerolinas Argentinas in its application for review constitutes a change in facts or circumstances since Decision No. 7-C-A-2002 was issued.

ANALYSIS AND FINDINGS

In its application for review, Aerolineas Argentinas alleged that Dr. Mikhail had omitted to report an important fact. Aerolineas Argentinas stated that Ms. Frias originally arrived in Canada as a visitor in June 1995 and that entry into Canada requires the visitor to arrive with a return ticket to satisfy the Canadian immigration requirements. Aerolinas Argentinas submitted that, as Ms. Frias visitor's time limit was getting close to the expiry date, Dr. Mikhail applied for a visitor's extension permit and requested the renewal of Ms. Frias' ticket. Aerolineas Argentinas agreed to the renewal request until April 2000, at which time it agreed to issue a travel voucher valid only until December 31, 2000.

Aerolineas Argentinas submitted that, as a visitor, Ms. Frias was required to have a return ticket in her possession in order to meet immigration regulations. The Agency is of the view that this fact cannot be considered as a new fact within the meaning of section 32 of the CTA as it was a well known fact at the time of the original application. Furthermore, the information is irrelevant to Ms. Frias' original request for a reimbursement and to the issue the Agency had to determine in Dr. Mikhail's original application, namely whether Aerolineas Argentinas had complied with the legislative and regulatory requirements with respect to its refusal to reimburse the unused portion of the return ticket. A party to an application cannot take advantage of section 32 of the CTA to reargue its case unless there has been a real change in the facts and circumstances since the original decision.

In view of the foregoing, the Agency finds that the information provided by Aerolineas Argentinas after Decision No. 7-C-A-2002 was issued does not constitute new facts and circumstances as contemplated in section 32 of the CTA.

CONCLUSION

The Agency hereby dismisses the application for review of Decision No. 7-C-A-2002.