Decision No. 259-C-A-2006

May 1, 2006

May 1, 2006

IN THE MATTER OF a complaint filed by Gordon W. Price against Air Canada regarding the reduction in the weight limit from 100 lbs. to 70 lbs. for the domestic carriage of animals and their kennels as checked baggage.

File No. M4370/06-00091


COMPLAINT

[1] On November 3, 2005, Gordon W. Price filed with the Office of the Air Travel Complaints Commissioner the complaint set out in the title.

[2] On January 1, 2006, Mr. Price requested that the complaint be referred to the Canadian Transportation Agency (hereinafter the Agency) for consideration as the complaint raised a tariff issue that falls within the jurisdiction of the Agency.

[3] On January 11, 2006, Agency staff requested that Air Canada address the complaint within the context of subsection 67.2(1) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA).

[4] On February 7, 2006, Air Canada requested an extension until March 11, 2006 to file its answer. In Decision No. LET-C-A-50-2006 dated February 17, 2006, the Agency granted this extension.

[5] Air Canada filed its answer on March 6, 2006, and Mr. Price submitted his reply to Air Canada's answer on March 10, 2006.

ISSUE

[6] The issue to be addressed is whether the maximum weight established by Air Canada for the carriage of animals and their kennels as checked baggage, as set out in its Domestic Passenger General Rules Tariff No. CDGR-1 (hereinafter the tariff), is unreasonable or unduly discriminatory within the meaning of subsection 67.2(1) of the CTA. Animals exceeding this weight would be carried as cargo at a higher cost than baggage.

POSITIONS OF THE PARTIES

[7] Mr. Price submits that Air Canada's policy that an animal and its kennel be carried as cargo rather than checked baggage, should the combined weight of such animal and kennel exceed 70 lbs., is discriminatory and places an undue financial burden on owners of large animals. Mr. Price notes that this policy also provides that a combined animal/kennel weight under 70 lbs. can be checked as baggage, and that the fee is $105 each way. He states that, typically, dog kennels weigh between 27 lbs. and 40 lbs., which means that only dogs weighing 30 lbs. to 43 lbs. can travel as checked baggage. Mr. Price submits that, according to his research, only 42 percent of dogs fall into this weight range, and that Air Canada is discriminating against the owners of the remaining dogs. Mr. Price explains that he was quoted a fee of $1,200 to transport his Rhodesian Ridgeback by cargo between Toronto and Vancouver. Mr. Price asserts that because persons who are able to check their pets as baggage would only be charged $210 for the same trip, he feels "excluded and discriminated against", and that the cargo charges assessed by Air Canada are too high, and restrict a person's ability to travel with his or her pet. Mr. Price notes that WestJet has not changed its maximum weight of 100 lbs. for the carriage of animals as checked baggage, but that the carrier cannot accommodate large kennels.

[8] Air Canada submits that the applicable provision of its tariff is neither unreasonable nor unduly discriminatory. Air Canada notes that it requires that checked baggage not involving animals, and weighing in excess of 70 lbs., be carried as cargo, and that it would be both illogical and unreasonable to accept as checked baggage animals and their kennels that weigh more than 70 lbs., given the regime that applies to other baggage. Air Canada further submits that the condition of carriage at issue applies to all passengers, does not extend any undue or unreasonable preference or advantage to or in favour of any person, and does not subject any person or other carrier to any undue or unreasonable prejudice or disadvantage.

[9] Air Canada explains that all air carriers, through the International Air Transportation Association (IATA), have determined procedures and standards for the safe and humane carriage of animals in aircraft, some of which have been incorporated into various countries' regulations. These standards relate to, for example, the size and structure of acceptable pet carriers and their positioning in the cargo/baggage hold of the aircraft. Air Canada submits that, given these standards, and the carrier's effort to ensure that a passenger's checked baggage is carried on the same flight transporting the passenger, large and extra-large pet carriers cannot be accommodated on nearly 58 percent of Air Canada's flights.

[10] Air Canada acknowledges a person's desire to have a pet travel in the same aircraft, but maintains that such travel is not a necessity as it is for passengers with a disability who are in need of service animals. Air Canada concludes that because of operational and commercial restrictions involving the types of aircraft the carrier operates on domestic routes and the restricted baggage/cargo compartments of these aircraft, as well as the regulations that govern the carriage of animals, the carrier's terms and conditions of carriage are not unduly discriminatory.

[11] In his reply, Mr. Price reiterates that Air Canada's policy imposes a financial burden on a specific group of pet owners. Mr. Price disagrees with Air Canada's position that travelling with a pet is not a necessity as it is for disabled passengers in need of service animals, asserting that pets are an integral part of society that provide benefits other than service, such as companionship and protection.

[12] Mr. Price questions the reasonableness of Air Canada's policy, arguing that Air Canada has not provided the rationale behind the reduction in the weight limit from 100 lbs. to 70 lbs. for the domestic carriage of animals and their kennels as checked baggage, and noting that WestJet still allows the carriage of animals weighing up to 100 lbs. as checked baggage. Mr. Price also contends that the policy is unduly discriminatory when one can "assess the consequence or effect if the undue thing is allowed to remain in place".

[13] Mr. Price requests that Air Canada be made accountable, and that the weight limit for carriage of pets as checked baggage revert to 100 lbs.

ANALYSIS AND FINDINGS

[14] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined Air Canada's terms and conditions pertaining to weight limits associated with the carriage of animals as checked baggage as set out in the carrier's tariff.

[15] The Agency's jurisdiction over complaints concerning domestic tariffs is set out in section 67.2 of the CTA. Pursuant to subsection 67.2(1) of the CTA, the Agency may take certain remedial action following receipt of a complaint where 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. More particularly, subsection 67.2(1) states that:

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.

[16] Rule 200, Conditions and Charges for Acceptance of Live Animals, of Air Canada's tariff provides, in part, that:

(A) General Conditions of Acceptance

Carriers will accept domestic cats, dogs, and household birds for transportation. The acceptance of animals is subject to the conditions below.

[...]

(3) The animal must be confined in a cage or container subject to inspection and approval by the carrier prior to acceptance. The maximum allowable weight for both the animal and the container must not exceed 32 kg/70 lbs. or will have to be shipped cargo.

[17] The reduction in the maximum allowable weight from 46 kg/100 lbs. to 32 kg/70 lbs. for both the animal and the container, as set out in Air Canada's terms and conditions relating to the carriage of animals and their kennels as checked baggage, has been in effect since September 1, 2005.

Are Air Canada's terms and conditions relating to the carriage of animals and their kennels as checked baggage, as set out in the carrier's tariff, "unreasonable" within the meaning of subsection 67.2(1) of the CTA?

[18] In Decision No. 666-C-A-2001 dated December 24, 2001, the Agency had an opportunity to examine the scope of the word "unreasonable" found in subsection 67.2(1) of the CTA.

[19] In that Decision, the Agency stated that in determining whether a term or condition of carriage applied by a carrier is "unreasonable" within the meaning of subsection 67.2(1) of the CTA, the Agency must ensure that it does not interpret the provision in such a way that impairs or jeopardizes the ability of the travelling public to efficiently use the recourse put in place by Parliament to protect it against the unilateral setting of terms and conditions of carriage by air carriers. The Agency is of the opinion that the same applies in this case.

[20] Conversely, the CTA dictates that the Agency must also take into account:

  • the operational and commercial obligations of the particular air carrier that is the subject of the complaint;
  • the other consumer protection provisions found under Part II of the CTA which compel air carriers to publish, display or make available for public inspection tariffs that contain the information required by the Air Transportation Regulations, SOR/88-58, as amended and only apply the terms and conditions of carriage set out in those tariffs; and
  • the fact that air carriers are required to establish and apply terms and conditions of carriage designed to apply collectively to all passengers as opposed to one particular passenger.

[21] The Agency is therefore of the opinion that in order to determine whether a term or condition of carriage applied by a carrier is "unreasonable" within the meaning of subsection 67.2(1) of the CTA, 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.

[22] In the case at hand, Air Canada reduced the weight limit for the carriage of animals and their kennels as checked baggage from 100 lbs. to 70 lbs. Given that Air Canada no longer accepts checked baggage of any kind over 70 lbs., the Agency is of the opinion that it would not be logical for the carrier to accept animals and their kennels, which exceed 70 lbs., as checked baggage.

[23] Although it is unfortunate that travellers who may wish to travel with their pets have to pay the increased amount, the Agency is of the opinion that, generally, air carriers should have the flexibility to price their services as they see fit, subject to legislative or regulatory constraints. The Agency is also of the opinion that Air Canada's reduction in the weight allowance for the carriage of animals and their kennels is a legitimate means for the carrier to offset costs of operation, while applying a condition that can still accommodate many travellers.

[24] In light of the foregoing, the Agency finds that Air Canada's limit of 70 lbs. for the carriage of animals and their kennels as checked baggage is not "unreasonable" within the meaning of subsection 67.2(1) of the CTA.

Are Air Canada's terms and conditions relating to the carriage of animals and their kennels as checked baggage, as set out in the carrier's tariffs, "unduly discriminatory" within the meaning of subsection 67.2(1) of the CTA?

[25] As with the word "unreasonable", the phrase "unduly discriminatory" is not defined in the CTA.

[26] In Decision No. 666-C-A-2001, quoted above, the Agency also had an opportunity to examine the scope of the words "unduly discriminatory" found in subsection 67.2(1) of the CTA.

[27] In that Decision, the Agency stated that in determining whether a term or condition of carriage applied by a carrier is "unduly discriminatory" within the meaning of subsection 67.2(1) of the CTA, it must adopt a contextual approach which balances the rights of the travelling public not to be subject to terms and conditions of carriage that are discriminatory with the statutory, operational and commercial obligations of air carriers operating in Canada. This position is also in harmony with the national transportation policy found in section 5 of the CTA. The Agency is of the opinion that the same applies in this case.

[28] The first question for the Agency to consider in determining whether a term or condition of carriage applied by an air carrier is "unduly discriminatory" within the meaning of subsection 67.2(1) of the CTA is whether the term or condition of carriage is discriminatory.

[29] A term or condition would be discriminatory if it singled out a particular category of traffic for different treatment for reasons that could not be justified. In the present case, given that Air Canada's reduced weight limit for the carriage of animals and their kennels as checked baggage applies equally to all passengers, the Agency finds that there is no evidence before it to suggest that this condition of carriage is discriminatory or that the condition has been applied in a discriminatory manner.

[30] Given that Air Canada's weight limit for the carriage of animals and their kennels as checked baggage is not "discriminatory" within the meaning of subsection 67.2(1) of the CTA, the Agency need not examine the question of whether the applicable tariff provision is "unduly discriminatory".

CONCLUSION

[31] Based on the above findings, the Agency hereby dismisses the complaint.

Members

  • Gilles Dufault
  • Guy Delisle
  • Beaton Tulk
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