Decision No. 153-C-A-2007

Follow-up - Decision No. 372-C-A-2007

March 28, 2007

File No. M4370/04-7454

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Background

[1] Darren and Beth Jakubec (hereinafter the complainants) filed a complaint with the Canadian Transportation Agency (hereinafter the Agency) with respect to the matter set out in the title. In Decision No. LET-C-A-64-2006 dated March 9, 2006, the Agency made preliminary findings and provided to the parties an opportunity to comment. In response, Air Canada and the complainants filed submissions. The Agency then issued Decision No. 319-C-A-2006, wherein it made its final findings in this matter.

[2] The issue dealt with by the Agency in those Decisions was whether certain provisions in Air Canada's tariff governing domestic travel, namely the Canadian Domestic General Rules Tariff, Airline Tariff Publishing Company, Agent (hereinafter Air Canada's tariff), were unreasonable and/or unduly discriminatory within the meaning of subsection 67.2(1) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA). In Decision No. 319-C-A-2006, the Agency found that Air Canada's tariff provisions that limit the carrier's liability with respect to the carriage of animals was not unreasonable. The Agency also found that there was no evidence before it to suggest that Air Canada's limitations of liability for the carriage of animals were discriminatory or were applied in a discriminatory manner.

[3] The Agency found, however, that the description of Air Canada's liability in its tariff for "fragile" or "perishable" articles, which also appeared on Air Canada's Web site and passenger receipts/itineraries, was unclear and ambiguous. Notably, the Agency ruled that the applicable notices do not represent adequate warning of Air Canada's limitations of liability for the carriage of animals. While the Agency acknowledged that Air Canada had amended its Web site to include a statement that the carrier assumes no liability for the "loss, delay, injury, sickness or death of any pet or animal accepted for transportation" it also found that the statement was inconsistent with Air Canada's assertion in pleadings before the Agency that "Air Canada is not limiting its liability with respect to direct damages nor in cases of gross negligence or intentional fault".

[4] For the above reasons, the Agency disallowed Rule 230(B)(1) of Air Canada's tariff, finding that Air Canada had failed to give adequate notice in a timely fashion to persons regarding the carrier's limitations of liability for the carriage of animals. The Agency required Air Canada to rectify this defect and to identify how it will provide such notice within the carrier's Web site, advertisements and information relating to the carriage of animals, as well as in documents provided to passengers that set out the carrier's liability in respect of baggage (such as itineraries and electronic tickets). Basically, the Agency ruled that the notices must accurately reflect Air Canada's limitations of liability (inclusions and exclusions), and that this be set out in clear and unambiguous language.

[5] The disallowance of the tariff provision was to come into effect thirty (30) days from the date of Decision No. 319-C-A-2006 or such shorter time coincident with the effectiveness of a revised Rule 230(B)(1) that would be acceptable to the Agency.

[6] Air Canada filed its submissions respecting this matter on September 21 and December 18, 2006, and the complainants responded on September 22, December 18 and December 28, 2006.

Preliminary matter

[7] In their pleadings, in addition to commenting on the tariff or notice changes, the complainants requested a review of Decision No. 319-C-A-2006. The Agency will deal with this prior to ruling on Air Canada's response regarding the adequacy of its tariff or notice changes.

[8] Section 32 of the CTA provides that:

The Agency may review, rescind or vary any decision made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

[9] 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 the facts or circumstances pertaining to the decision since its issuance. The Agency must first determine whether there has been a change in the relevant facts or circumstances and, if so, then determine whether such change is sufficient to warrant a review, rescission or variance of the decision.

[10] The complainants submit that what is new in the context of their complaint is the admission by Air Canada that it accepts responsibility for intentional acts. As a result, the complainants request that the Agency reconsider Decision No. 319-C-A-2006 claiming that the full facts about Air Canada's tariffs and the interpretation and application of such tariffs were not available to the Agency when it rendered its original decision.

[11] Further to a review of the pleadings in this matter, the Agency notes that Air Canada accepted responsibility for intentional acts and this was acknowledged by the Agency in Decision No. 319-C-A-2006. As such, the facts relied upon by the complainants are not new and the Agency hereby dismisses the application for a review of Decision No. 319-C-A-2006.

Issue

[12] The issue to be addressed by the Agency is whether Air Canada has complied with the Agency's direction as set out in Decision No. 319-C-A-2006.

Analysis and findings

[13] In making its findings, the Agency has considered the submissions of the parties including Air Canada's revised tariff rule and supporting documentation.

[14] Air Canada's revised Rule 230(B)(1) of its tariff governing domestic carriage now reads as follows:

(b) exclusions from liability

(1) Carrier shall not be liable for the loss, delay, injury, sickness or death of any pet or animal accepted for transportation. The owner of the pet assumes all responsibility for compliance with all governmental regulations and/or restrictions. Carrier is not responsible in the event any pet is refused passage into or through any country, state, or territory. Air Canada's limitation of liability in regards to carriage of animals are disclosed to the passengers on the information pages on the Air Canada website at aircanada.com and in the "important information" sections of the itinerary/receipt produced by the carrier.

[15] Air Canada has also revised its receipts/itineraries, that are issued when bookings are made through the carrier's call centres, and its Web site, to include the following provision:

Notice of limitation of liability for carriage of pets

Air Canada will not be responsible in the event of loss, delay, injury, sickness or death of any pet animal accepted for transportation.

[16] Air Canada also includes the following notice in receipts/itineraries that are issued when bookings are made through the carrier's Web site:

Carriage of pets

Please read important information regarding carriage of pets in the Travelling with your Pet section.

[17] With respect to the carrier's advertisements, Air Canada states that it does not promote its service relating to the carriage of pets so there is no mention of advertisements in the revised tariff rule.

[18] The complainants submit that the Agency should require Air Canada to make its limitation of liability more pronounced in its documentation, and in particular, staff who deal with clients ought to provide specific verbal and written notice of the carrier's exclusion from liability in respect of the carriage of pet animals. While this would be an ideal solution, it is not necessary in the circumstances. Rather, the Agency finds that the changes introduced by Air Canada to date are reasonable as far as they relate to the adequate and timely notice of the tariff exclusion.

[19] With respect to the substance of the notice, the complainants ask the Agency to ensure that Air Canada provide specific notice to clients who intend to transport animals on the extent of the carrier's exclusions of liability while (i) the animals are under the care of Air Canada and (ii) where the carrier is at fault. Air Canada counters that its limitation of liability is set out in clear and unambiguous language, and that the carrier does not exclude itself from liability in the case of "intentional fault".

[20] The Agency finds that Air Canada has not clearly set out the extent of its liability. In Decision No. 319-C-A-2006, the Agency found that a statement on Air Canada's Web site was inconsistent with the carrier's assertion that "Air Canada is not limiting its liability with respect to direct damages nor in cases of gross negligence or intentional fault". The Agency directed Air Canada to ensure that notices regarding liability for the carriage of pets be set out in clear and unambiguous language, but it has failed to do this. Notably it has failed to include the above statement in its tariff, on its Web site and on passenger receipts/itineraries. Without such clarifying language, the message to clients remains unclear and ambiguous.

[21] Simply put, due to the broad exculpatory nature of the tariff as it is now, many of the carrier's clients will not accurately understand the extent of the carrier's liability. For example, without specific mention in the tariff itself, clients may believe that the carrier is free from liability even where it, or its agents are grossly negligent. The Agency finds that more precision is necessary and directs Air Canada to, within sixty (60) days from the date of this Decision, amend its tariff to make it clear that Air Canada does not limit its liability with respect to direct damages or in cases of gross negligence or intentional fault of the carrier or its agents. This change shall also be reflected in the carrier's supporting documents, that is, on its Web site and on itinerary/receipts.

Members

• Mary-Jane Bennett
• Guy Delisle
• Gilles Dufault