Decision No. 20-C-A-2011

January 26, 2011

MOTION by Karen Kipper – Decision No. 309-C-A-2010.

File No. M4120-3/10-07268

INTRODUCTION

[1] In its Decision No. 309-C-A-2010 (Decision) regarding a complaint filed by Karen Kipper against WestJet respecting damage to her baggage, the Canadian Transportation Agency (Agency) concluded, in part, that:

in applying the conditions appearing in its "Baggage Information" sheet, including the provision disclaiming liability for "normal wear and tear" to baggage, WestJet has applied terms and conditions of carriage that are not set out in its tariff, contrary to subsection 67(3) of the CTA.

[2] Accordingly, the Agency reminded WestJet to respect subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).

[3] On November 19, 2010, Ms. Kipper advised the Agency that it had come to her attention that WestJet's domestic tariff, effective November 12, 2010, contains provisions that are identical to the provisions that were "condemned" by the Agency in the Decision. Ms. Kipper submits that these provisions are unreasonable, contrary to subsection 67.2(1) of the CTA, and that they attempt to circumvent the Decision. Ms. Kipper requests that the Agency:

• find WestJet in contempt of the Decision;
• enforce the Decision by disallowing the tariff provisions in question;
• in the unique circumstances, order WestJet to pay costs for her motion.

[4] In response to Ms. Kipper's motion, WestJet advised that it would revise the applicable tariff provisions as soon as possible, and would update its Web site and published tariffs.

[5] Ms. Kipper, while acknowledging that WestJet has corrected its tariff, submits that it is clear that at the time of her motion, the tariff contained provisions which are contrary to the Decision. Ms. Kipper reiterates that, given the circumstances, she should be awarded nominal costs for the preparation of her motion.

ISSUES

[6] The issues to be addressed are:

1. Should the Agency take action with respect to the tariff provisions in question?
2. Should the Agency award Ms. Kipper costs for the motion?

ANALYSIS AND FINDING

(i) Should the Agency take action with respect to the tariff provisions in question?

[7] In her submission dated November 19, 2010, Ms. Kipper notes that WestJet's tariff, which bears an effective date of November 12, 2010, contained provisions identical to those "condemned" by the Agency in the Decision.

[8] The Agency did not require WestJet in the Decision to submit a proposed tariff provision to the Agency for approval. The Agency concluded in the Decision that in applying certain terms and conditions of carriage relating to baggage liability, WestJet had contravened subsection 67(3) of the CTA. The Agency also reminded the carrier to respect this legislative provision.

[9] Subsection 67.2(1) of the CTA allows the Agency, on complaint, to disallow terms and conditions of carriage which are found to be unreasonable or unduly discriminatory. The Agency does not monitor tariffs governing domestic carriage, and is therefore unable to verify Ms. Kipper's assertion that WestJet's tariff contained provisions addressed in the Decision. The Agency notes, as acknowledged by Ms. Kipper, that the provisions addressed in the Decision no longer appear in WestJet's domestic tariff.

(ii) Should the Agency award Ms. Kipper costs for the motion?

[10] Section 25.1 of the CTA empowers the Agency to award costs respecting proceedings before it. The Agency has complete discretion regarding the award or denial of costs and each application is decided on its own merits. As a general rule, costs are not awarded, and the Agency's practice has been to award these only in special or exceptional circumstances. In making its determination in a given case, the Agency considers a combination of factors such as the nature of the application, the length and complexity of the proceeding, whether the Agency held an oral hearing, whether parties have acted efficiently and in good faith, or if a party has incurred extraordinary costs to prepare and defend its application.

[11] The Agency finds that there are no special or exceptional circumstances in respect of the present matter which would warrant the awarding of costs.

CONCLUSION

[12] In view of the foregoing, the Agency concludes that no further action is required respecting the tariff provisions in question, and denies Ms. Kipper's motion requesting awarding of costs.

Members

• Jean-Denis Pelletier, P. Eng.
• Geoffrey C. Hare