Decision No. 198-C-A-2007

April 24, 2007

File No. M4370/06-50499

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COMPLAINT

[1] On June 21, 2006, the National Firearms Association (BC Branch) [hereinafter NFA] filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title.

[2] In its Decision No. LET-C-A-147-2006 dated June 15, 2006, the Agency initiated pleadings respecting complaints filed by several parties regarding Air Canada's terms and conditions of carriage governing the handling of firearms.

[3] In its Decision No. LET-C-A-208-2006 dated July 21, 2006, in response to complaints filed after June 15, 2006 respecting the aforementioned terms and conditions, including a complaint by NFA, the Agency noted that such complaints raise the same issue about which pleadings had already been initiated. As such, the Agency determined that it was appropriate to stay the proceedings of these new complaints until the Agency had rendered a decision regarding this issue.

[4] In its Decision No. 613-C-A-2006 dated November 3, 2006, the Agency dismissed the complaints filed prior to June 15, 2006 regarding Air Canada's terms and conditions governing the handling of firearms.

[5] On November 20, 2006, Agency staff provided a copy of Decision No. 613-C-A-2006 to the parties who had complained after June 15, 2006 about Air Canada's terms and conditions governing the handling of firearms, and requested these parties to advise if they wished to pursue the matter.

[6] On November 24, 2006, NFA advised that it did wish to pursue its complaint against Air Canada, and that it wished to file additional arguments.

[7] In its Decision No. LET-C-A-6-2007 dated January 9, 2007, the Agency provided NFA with the opportunity to submit its additional arguments and Air Canada was given the opportunity to respond.

[8] On January 20, 2007, NFA filed its submission. Air Canada filed its response on January 29, 2007.

[9] In its Decision No. LET-C-A-32-2007 dated February 21, 2007, the Agency noted that Air Canada had not addressed NFA's arguments, but, rather, had referred to sections 31 and 32 of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), and asserted that the Agency has no jurisdiction to address the matter. The Agency explained to Air Canada that as NFA was not a party to Decision No. 613-C-A-2006, sections 31 and 32 of the CTA do not apply in this instance, and that the Agency would adjudicate NFA's complaint as a separate matter before the Agency. The Agency provided Air Canada with a further opportunity to respond to the points raised by NFA in its complaint.

[10] On February 26, 2007, Air Canada filed its response, and on February 27, 2007, NFA filed its reply.

[11] Pursuant to subsection 29(1) of the CTA, the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until April 24, 2007.

PRELIMINARY MATTER

[12] Air Canada contends that sections 31 and 32 of the CTA must be taken in consideration as NFA is a party with the same interests as the complainants in the file that led to Decision No. 613-C-A-2006, and adds that allowing NFA to file a separate complaint raising the same facts and arguments, with respect to terms and conditions that have been already determined by the Agency as not being unreasonable or unjustly discriminatory, is equivalent to allowing indirectly the review or reconsideration of a final and binding decision.

[13] Section 31 of the CTA provides that:

The finding or determination of the Agency on a question of fact within its jurisdiction is binding and conclusive.

[14] Section 32 of the CTA provides that:

The Agency may review, rescind or vary any decision or order 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.

[15] The Agency is of the opinion that NFA's submission does not represent an application under section 32 of the CTA, or involve in any manner section 31 of the CTA. Section 31 of the CTA is known as a "privative clause" legislated for the purpose of limiting the ability of an appeal court to review decisions of an administrative body. It provides that the Agency's finding of fact in a matter properly brought before it is final. Air Canada's argument that a finding of fact is definitive and conclusive with respect to the Agency's own decision is contrary to the intent of the legislature. Every case filed with the Agency, even if it is of the same nature as a previous case, must be considered independently by the Agency.

[16] With respect to the applicability of section 32 of the CTA, review applications contemplated by this provision must be requested by one of the parties initially involved in the original decision or, in special circumstances, be initiated by the Agency on its own motion. In the present case, this is not the situation. The original complaint by NFA was stayed by the Agency and, therefore, NFA was not a party to the original decision. A party that may be affected by a decision of the Agency must have a fair opportunity to present its case. The principle of natural justice demands that NFA be heard. On this basis, the Agency finds that NFA's submission is a new complaint and, as such, the Agency has the jurisdiction to consider the matter.

ISSUE

[17] The issue to be addressed is whether Air Canada's terms and conditions governing the handling of firearms are inconsistent with subsection 67.2(1) of the CTA, with respect to transportation between points in Canada, and section 111 of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR), with respect to transportation between points in Canada and points in the United States of America, and between points in Canada and points outside Canada other than in the United States of America.

POSITIONS OF THE PARTIES

[18] NFA submits that, generally, the carriage of firearms does not require special handling, and that in most airports where firearms may be handled, especially in small communities, there are no "special service counters", and therefore there are no extra expenses incurred by Air Canada. NFA maintains that any verification by Air Canada of packing of firearms and ammunition is at best "cursory" and is not more time-consuming than the examination of any other baggage. NFA asserts that completion of forms related to the "Carriage of Firearms" and "Limitation of Liability Release" is largely the responsibility of the passenger and not that of the air carrier, when such forms are filled out at all.

[19] NFA contends that the placing of stickers on baggage is frequently done for a variety of baggage types and that there is no extra charge for such a procedure. NFA further contends that there is no special need to handle firearms any differently than ordinary baggage. NFA argues that, in many cases, Air Canada does not follow its own procedures governing the handling of firearms.

[20] NFA submits that many airports, especially in rural areas, do not have the advanced check-in procedures of some major airports and, therefore, any argument by Air Canada that technological advances are not able to be used to process firearms is moot.

[21] NFA submits that it does not agree with Air Canada's claim that firearms are "dangerous goods". NFA contends that while the use and transportation of firearms is regulated in Canadian law, there is no law which requires the application of the policy that Air Canada claims to have adopted in the transportation of firearms. NFA maintains that neither the Criminal Code, R.S.C., 1985, c. C-46, nor the Transportation of Dangerous Goods Regulations, SOR/2001-286, classify firearms as dangerous goods.

[22] In reference to Air Canada's claim that the terms and conditions governing firearms apply to all passengers equally, NFA submits that these conditions only apply to those passengers with a particular characteristic, that is the content of their luggage is different and distinctive from that of other passengers.

[23] Air Canada submits that it relies on its submissions in respect of the complaints that led to Decision No. 613-C-A-2006.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[24] Subsection 67.2(1) of the CTA, as it relates to domestic carriage, provides as follows:

If, on complaint in writing to the Agency by any person, the Agency finds that the holder of a domestic licence has applied terms or conditions of carriage applicable to the domestic service it offers that are unreasonable or unduly discriminatory, the Agency may suspend or disallow those terms or conditions and substitute other terms or conditions in their place.

[25] Sections 111 and 113 of the ATR, as they relate to international travel, provide as follows:

111. (1) All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just and reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic.

(2) No air carrier shall, in respect of tolls or the terms and conditions of carriage,

(a) make any unjust discrimination against any person or other air carrier;

(b) give any undue or unreasonable preference or advantage to or in favour of any person or other air carrier in any respect whatever; or

(c) subject any person or other air carrier or any description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatever.

(3) The Agency may determine whether traffic is to be, is or has been carried under substantially similar circumstances and conditions and whether, in any case, there is or has been unjust discrimination or undue or unreasonable preference or advantage, or prejudice or disadvantage, within the meaning of this section, or whether in any case the air carrier has complied with the provisions of this section or section 110.

113. The Agency may

(a) suspend any tariff or portion of a tariff that appears not to conform with subsections 110(3) to (5) or section 111 or 112, or disallow any tariff or portion of a tariff that does not conform with any of those provisions; and

(b) establish and substitute another tariff or portion thereof for any tariff or portion thereof disallowed under paragraph (a).

The applicable provisions of Air Canada's tariffs

[26] Rule 195 (Conditions and charges for acceptance of special items) of the Air Canada tariffs governing travel between points in Canada, and between points in Canada and points in the United States of America, namely the Canadian Domestic General Rules Tariff and the Canadian General Rules Tariff, respectively, in effect when the complaint was filed, provides in part as follows:

(S) SPORTING EQUIPMENT

(5) Shooting Equipment (Sporting Firearms)

Items of shooting equipment will be accepted only as checked baggage subject to the conditions and charges specified below. (For the purpose of this provision one item of shooting equipment is defined as (1) one rifle case containing not more than two rifles, with or without scopes, 10 lbs. of ammunition, shooting mat, noise suppressors, and small rifle tools; (2) two shotguns and two shotgun cases and 10 lbs. of ammunition; or (3) one pistol case containing not more than five pistols, noise suppressors, one pistol telescope, and small pistol tools.)

(a) Conditions of Acceptance

(i) Firearms must be unloaded and placed in a suitable container.

(ii) Advance arrangements must be made.

(iii) Small arms ammunition under 11 lbs. must be packed in the manufacturers original package. Ammunition with explosive or incendiary projectiles will not be accepted. The ammunition shall be packaged in a strong outside container made of wood, metal or fiberboard. Ammunition inside container must be protected against shock and secured against movement.

(b) Charges

(1) Firearms will be included in determining the free baggage allowance, and when in excess, each item will be subject to the excess baggage charge for a single piece, whether or not presented as a single piece.

(2) In addition to the charges mentioned in paragraph (b)(1), there will be an additional handling charge of CAD$50/US$50 per item.

[27] Rule 117 (Baggage Regulations) and Rule 118 (Baggage Regulations) of the Air Canada tariff governing travel between points in Canada and points outside Canada, except in the United States of America, namely the International Passenger Rules and Fares Tariff, in effect when the complaint was filed, provide in part that:

Rule 117 BAGGAGE REGULATIONS

(O) FREE BAGGAGE ALLOWANCE

(4)(a) The following articles irrespective of their actual dimensions may be considered as a piece of baggage at 62 inches (158 cm):

[...]

(ix) sporting firearms consisting of not more than one rifle case containing not more than two rifles, 5 kgs. (11 lbs.) of ammunition, one shooting mat, noise suppressor and small rifle tools, or two shotguns and two shotgun cases, or one pistol case containing not more than five pistols, 5 kgs. (11 lbs.) of ammunition, noise suppressors, one pistol telescope and small pistol tools. A handling fee of CAD$50/USD$50 per item will be charged when travelling with firearms.

Rule 118 BAGGAGE REGULATIONS

(D) DANGEROUS, DAMAGEABLE OR UNSUITABLE BAGGAGE

Passengers must not include in checked baggage items which are likely to endanger the aircraft, persons or property, which are likely to be damaged by air carriage or which are unsuitably packed or which items by their particular nature (Fragile, Perishable, Valuable) the carrier does not agree to carry. If the weight, size or character of the baggage renders it unsuitable for carriage on the aircraft, carrier may, prior to, or any stage of the journey, refuse to carry the baggage or any portion thereof. The following items will be carried as baggage only after prior consent of and arrangement with the carrier, with exceptions to the acceptance of certain items clearly indicated:

(1) Firearms of any description, except those for sport purposes will not be carried when accompanying the passenger. Firearms for sport purposes will be carried when accompanying the passenger, provided that entry permits are in the possession of the passenger for the country or countries of transit and destination, and provided that such firearms are disassembled or packed in a suitable case designed for the shipping of such items: (Does not include standard carrying case or any container provided by the carrier). A handling fee of CAD$50/US$50 per item will be charged when travelling with firearms.

ANALYSIS AND FINDINGS

[28] In making its findings, the Agency has carefully considered all of the evidence submitted by the parties during the pleadings.

[29] The Agency notes that the issue raised in the present case is identical to the one addressed by the Agency in Decision No. 613-C-A-2006. In that Decision, the Agency found that Air Canada's terms and conditions governing the handling of firearms are neither unreasonable nor unduly or unjustly discriminatory within the meaning of subsection 67.2(1) of the CTA and section 111 of the ATR.

[30] As the Agency noted in Decision No. 613-C-A-2006, when a complaint is filed with the Agency, the complainant has the burden of providing evidence to the Agency that the air carrier has applied a term or condition of carriage that is inconsistent with subsection 67.2(1) of the CTA and/or section 111 of the ATR, whichever the case may be. The Agency also noted that in order to determine whether a term or condition of carriage does not comply with subsection 67.2(1) of the CTA and/or section 111 of the ATR, a balance must be struck between the rights of the passengers to be subject to reasonable terms and conditions of carriage and the particular air carrier's statutory, commercial and operational obligations.

[31] The Agency accepts that the carriage of firearms requires additional and special handling procedures that are unique to such carriage, and that these procedures are presumed to be reasonable given that such procedures flow from legislative requirements, i.e. the Firearms Act and the Canadian Aviation Security Regulations. As noted in Decision No. 613-C-A-2006, the Agency is of the opinion that, generally, air carriers should have the flexibility to establish their terms and conditions of carriage and to price their services as they see fit, subject to legislative or regulatory constraints. The Agency also found Air Canada's justification in support of its handling charge to be reasonable. While NFA makes certain statements about the expenses claimed by Air Canada and in particular about the handling of firearms at small airports, the Agency notes in Air Canada's submission that the complexity of the handling of firearms may vary depending on the airport size and location.

[32] The Agency finds that NFA has not discharged its burden of proof that Air Canada's terms and conditions governing the carriage of firearms are contrary to subsection 67.2(1) of the CTA and section 111 of the ATR. In this regard, the Agency also finds that NFA has failed to provide evidence substantiating its position and demonstrating that a balance has not been struck between the rights of the passengers to be subject to reasonable terms and conditions of carriage and the particular air carrier's statutory, commercial and operational obligations, or that Air Canada's terms and conditions single out a particular category of traffic for different treatment for reasons that are not justified.

CONCLUSION

[33] In light of the foregoing, the Agency hereby dismisses NFA's complaint.

Members

• Guy Delisle
• Beaton Tulk
• Baljinder Gill