Order No. 2005-A-679

December 16, 2005

File No. M4212/E176-4

Eva Airways Corporation (hereinafter Eva Airways) has applied to the Canadian Transportation Agency (hereinafter the Agency) for the exemption set out in the title. The application was received on November 29, 2005.

Section 59 of the Canada Transportation Act (hereinafter the CTA) states that no person shall sell, cause to be sold or publicly offer for sale in Canada an air service unless, where required under Part II of the CTA, the person holds a licence under that part in respect of that service.

Under Licence No. 990059, Eva Airways is authorized to operate a scheduled international service, in a manner consistent with the Supplementary Confidential Memorandum on Air Services between the Canadian Trade Office in Taipei and the Civil Aeronautics Administration of the Ministry of Transportation and Communications in Taipei signed on February 25, 1999, as amended (hereinafter the Memorandum).

Condition No. 2 of the said licence states:

The authority granted herein shall terminate on March 31, 2006.

Pursuant to Decision No. 79-A-2005 dated February 11, 2005, Eva Airways is required to submit a request for another authority to the Agency by no later than February 28, 2006.

In its application, Eva Airways advises that it requests the exemption in order to be allowed to sell, cause to be sold or publicly offer for sale in Canada its service under Licence No. 990059 for travel beyond March 31, 2006. It also requests that the condition that requires it to notify all consumers before reservation that the provision of service to those consumers is "subject to government approval" not be applied, as it is causing harm in the marketplace and giving the impression to the travelling public that the service may not be authorized.

The Agency has carefully reviewed and considered the application and is of the opinion that in order for the service to be viable, Eva Airways must be able to continue selling seats without interruption. Therefore, the Agency finds that compliance by Eva Airways with section 59 of the CTA is impractical in the present circumstances.

With respect to whether the condition that requires Eva Airways to notify all consumers before reservation that its scheduled international service between Canada and Taiwan beyond March 31, 2006 is subject to government approval, the Agency notes that Licence No. 990059 has been renewed on an annual basis in accordance with the terms of the Memorandum. The Agency is therefore of the opinion that, in this case, it is unnecessary for consumers to be notified that the scheduled international service is subject to government approval.

Accordingly, the Agency, pursuant to paragraph 80(1)(c) of the CTA, hereby exempts Eva Airways from the application of section 59 of the CTA, effective from the date of this Order, thereby permitting Eva Airways to sell, cause to be sold or publicly offer for sale in Canada a scheduled international service, between Canada and Taiwan for travel beyond March 31, 2006, without holding the required licence, subject to the following conditions:

1. The exemption authorized herein does not relieve Eva Airways from the requirement to hold a licence as required under Part II of the CTA in respect of the service to be provided and, accordingly, no flights shall be operated until the appropriate licence authority has been granted.
2. Should the scheduled international licence not issue by March 31, 2006, Eva Airways shall arrange to provide alternative air transportation by an appropriately licensed air carrier, at no additional cost for all passengers who have made reservations with Eva Airways or, if such arrangements are not possible or acceptable to the passenger, to provide a full refund of all monies paid by the passenger.

The exemption authorized herein is valid until March 31, 2006.

The exemption granted herein does not exempt Eva Airways from the requirements of other legislative acts or regulations, including those of Transport Canada.