Decision No. 268-C-A-2007

May 25, 2007

File No. M4370/07-00030

---

COMPLAINT

[1] On September 6, 2005, Stephen Kirkham filed with the Complaints Investigation Division (hereinafter the CID) the complaint set out in the title.

[2] Given that the parties were unable to reach a satisfactory agreement, Mr. Kirkham advised on January 5, 2007, that he wished to pursue this matter formally before the Canadian Transportation Agency (hereinafter the Agency).

[3] In a letter dated January 17, 2007, the parties were advised of the Agency's jurisdiction in this matter. In that same letter, the parties were requested to advise whether they agreed that the comments that they had filed with the CID be considered as pleadings before the Agency.

[4] On January 24, 2007, Air Canada advised that it wished to file additional comments or documents in response to Mr. Kirkham's complaint, and therefore did not agree that its comments filed with the CID be considered as pleadings before the Agency. On that same day, Mr. Kirkham filed a further submission.

[5] Pleadings were opened on February 13, 2007.

[6] On March 13, 2007, Air Canada requested a 30-day extension to file its answer. In Decision No. LET-C-A-47-2007 dated March 16, 2007, the Agency granted an extension until March 23, 2007 only and on March 22, 2007, Air Canada filed its answer.

[7] On April 2, 2007, Mr. Kirkham confirmed that his comments filed with the CID should be considered as pleadings before the Agency. Mr. Kirkham also submitted additional comments.

[8] Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter 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 May 26, 2007.

ISSUES

[9] The issues to be addressed are whether:

1. Air Canada has applied the terms and conditions of carriage relating to failure to operate according to schedule and denied boarding, respectively, appearing in the Canadian General Rules Tariff No. CGR-1, NTA(A) No. 241, Airline Tariff Publishing Company Agent (hereinafter the Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR);
2. Air Canada has complied with section 116 of the ATR relating to availability of and access to tariffs.

FACTS

[10] Mr. Kirkham purchased through Air Canada's Web site a non-refundable ticket for carriage on Air Canada Flight No. AC4023 on August 19, 2005, a code-share flight that was to be operated by United Air Lines, Inc. (hereinafter United) from San Francisco, California, United States of America to Calgary. The purpose of the trip was to attend a family wedding. After Mr. Kirkham boarded the flight, the aircraft encountered mechanical difficulties and although another aircraft was substituted, the flight was ultimately cancelled as the crew had exceeded their legal working hours. United re-routed Mr. Kirkham to Los Angeles for onward transportation to Calgary on United Flight No. UA8612, operated under a code-share as Air Canada Flight No. AC569, on August 20, 2005. United arranged for overnight accommodation in Los Angeles for Mr. Kirkham.

[11] Mr. Kirkham was holding a confirmed reservation for Air Canada Flight No. AC569, but was not permitted to travel. In Los Angeles, Mr. Kirkham was not provided with compensation for denied boarding, out-of-pocket expenses or alternate transportation. Mr. Kirkham subsequently purchased a one-way ticket from WestJet to travel from Los Angeles to Calgary.

[12] Mr. Kirkham is seeking compensation in the amount of CAD$371.19 for his original Air Canada ticket, US$371.10 for the WestJet ticket, CAD$90.20 for a cancelled Hertz car rental reservation, US$25 for two meals, and US$25 in cellular telephone charges.

POSITIONS OF THE PARTIES

[13] Mr. Kirkham states that when he arrived at the check-in counter for Air Canada Flight No. AC569, the agent refused to check him in because the flight was oversold. Mr. Kirkham adds that he was not allowed to stand by for the flight, that in response to his request, Air Canada indicated that it was not possible to request passengers to voluntarily relinquish their seats, and that the Air Canada agent advised him to speak with United as it had made the changes to his travel arrangements. Mr. Kirkham asserts that Air Canada's failure to ask passengers to voluntarily relinquish their seats, to deny boarding on the basis of reverse order of check-in, to offer compensation for denied boarding, and to provide him with a written notice relating to denied boarding, constitute a contravention of the carrier's Tariff.

[14] Mr. Kirkham submits that he approached United regarding his inability to board Air Canada Flight No. AC569. United stated that the only seats available to Calgary that day were on Air Canada in Business Class on a flight leaving shortly after noon, and that Mr. Kirkham should go back to Air Canada as his ticket had been purchased from Air Canada.

[15] Mr. Kirkham submits that while waiting for assistance from United, he checked with WestJet and was advised that seats were available on its next flight at 11:25 a.m. that day.

[16] Mr. Kirkham states then when he returned to the Air Canada counter he was advised that the next available seats to Calgary were not until the following morning. Mr. Kirkham maintains that his request to Air Canada to be booked on WestJet was denied due to the fact that Air Canada and WestJet do not have an agreement in place to handle passengers in situations similar to Mr. Kirkham's.

[17] Mr. Kirkham asserts that, subsequent to his travel, he attempted on several occasions to obtain or inspect Air Canada's Tariff, but to no avail. Mr. Kirkham submits that Air Canada's Web site does not contain the relevant tariff information, that the carrier's telephone reservation line simply refers consumers seeking tariff information to the carrier's Web site, and that in response to his inquiries, he was told that the information is not available or does not exist. Mr. Kirkham maintains that Air Canada personnel at the Calgary and Edmonton airports were either unaware of the carrier's tariffs or were unable to produce a copy of such tariffs for inspection.

[18] Air Canada maintains that although Mr. Kirkham did have a confirmed reservation, he did not have an assigned seat on Flight No. AC569. Air Canada submits that it is impossible to reconstruct the events that unfolded more than 18 months ago but it believes that the flight was not overbooked. Although its records indicate that Flight No. AC569 departed full, there were "no denied boarding passengers on the flight". In spite of this assertion, in a letter dated April 5, 2006 from Beverly England of Air Canada Customer Solutions to the CID, it is stated, in part:

In reviewing our records Mr. Kirkham did have a confirmed booking for UA8612 operated as AC569 on August 20 to Calgary however this flight was full when Mr. Kirkham presented himself at check-in and as he did not have assigned seating he was unfortunately denied boarding. I have not been able to determine why he was not provided with the denied boarding compensation as per our tariff, however I will now send Mr. Kirkham the USD200.00 travel voucher that should have been issued.

[19] Air Canada submits that it provided Mr. Kirkham with a travel voucher in the amount of CAD$200 in lieu of denied boarding compensation, that it credited CAD$173.32 to Mr. Kirkham for the unused portion of his ticket, that in accordance with the Tariff, it offered a CAD$346.64 refund to Mr. Kirkham, an amount representing 200 percent of the value of the unused portion of the Air Canada ticket, provided that Mr. Kirkham return the travel voucher, and that as a gesture of goodwill, 25,000 Aeroplan miles were credited to his account. Air Canada points out that Mr. Kirkham has failed to return the travel voucher and the refund of CAD$346.64 was therefore not issued by Air Canada.

[20] Air Canada submits that neither its Web site nor reservation line constitutes a "business office" as they do not qualify as a "place" within the meaning of section 2 of the ATR. Air Canada points out that Mr. Kirkham received assistance regarding the carrier's tariffs from Air Canada's Customer Relation Department and its office at the Edmonton airport and was provided with a copy of the Tariff. Air Canada further notes that its tariffs are available at the Calgary airport. Air Canada filed affidavits by some of its personnel based in Alberta, attesting to the availability of tariffs.

[21] Mr. Kirkham maintains that the Tariff eventually provided to him at the Edmonton airport did not contain all the pages which set out the rules he was interested in, that Air Canada failed to post a notice at the Edmonton airport advising as to where tariffs are kept and when they may be inspected, and that a copy of the Tariff that Air Canada later provided him was outdated.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[22] The Agency's jurisdiction in the present matter is set out in section 2, subsection 110(4), section 113.1 and section 116 of the ATR.

[23] Section 2 of the ATR includes the following definition:

"business office", with respect to an air carrier, includes any place in Canada where the air carrier receives goods for transportation or offers passenger tickets for sale, but does not include an office of a travel agent;

[24] Subsection 110(4) of the ATR provides that:

Where a tariff is filed containing the date of publication and the effective date and is consistent with these Regulations and any orders of the Agency, the tolls and terms and conditions of carriage in the tariff shall, unless they are rejected, disallowed or suspended by the Agency or unless they are replaced by a new tariff, take effect on the date stated in the tariff, and the air carrier shall on and after that date charge the tolls and apply the terms and conditions of carriage specified in the tariff.

[25] Section 113.1 of the ATR states:

Where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs, the Agency may

(a) direct the licensee to take corrective measures that the Agency considers appropriate; and

(b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.

[26] Section 116 of the ATR states:

(1) Every air carrier shall, immediately on filing a tariff with the Agency and thereafter while the tariff remains in effect, keep available for public inspection at each of its business offices a true copy of every tariff in which the air carrier participates that applies to the international services to or from the point where the business office is situated.

(2) Every air carrier shall, in a prominent location in each of the carrier's business offices, post a notice

(a) directing attention to the place where the tariffs are kept; and

(b) indicating the business hours during which the tariffs may be inspected by members of the public.

(3) Every air carrier shall, for a period of three years after the date of any cancellation of a tariff participated in by the carrier, keep a copy of that tariff at the principal place of business in Canada of the carrier or at the place of business in Canada of the carrier's agent.

The Tariff provisions

[27] The terms and conditions of carriage set out in Rules 240 and 245 of the Tariff provide, in part:

Rule 240AC FAILURE TO OPERATE ON SCHEDULE (Applicable to confirmed and Ticketed Reservations)

(A) General The provisions of this rule apply only to a passenger who holds a confirmed reservation and has a ticket which he does not use for one/any of the reasons contained in this rule.

(B) Definitions

For the purpose of this rule, the following definitions apply:

(1) Comparable air transportation is that which is provided by air carriers holding certificates of public convenience and necessity.

...

(9) In the event the carrier is a codeshare carrier and the operating carrier fails to operate according to schedule, fails to stop at a point to which the passenger is destined or is ticketed to stopover, substitutes a different type of equipment or class or service, is unable to provide previously confirmed space, causes a passenger to miss a connecting flight on which he holds a reservation, or the passenger is refused or removed in accordance with Rule 0035 (Refusal to Transport) carrier will as the passenger's sole remedy, if the operating carrier fails to do so,

(a) carry the passenger on another of its passenger aircraft on which space is available without additional change regardless of the class of service; or

(b) endorse to another carrier or transportation service, the unused portion of the ticket for purposes of re-routing; or

(c) reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from Rule 260 (Refunds, Involuntary), carrier will require no additional payment from the passenger but will refund the difference if it is lower; or

(d) Make involuntary refund in accordance with Rule 260 (Refunds, Involuntary).

Rule 245AC DENIED BOARDING COMPENSATION - PART I

(Applicable for transportation from a point in the United States to the point of destination or first point of stopover in Canada.)

When the carrier is unable to provide previously confirmed space due to more passengers holding confirmed reservations and tickets on a flight than there are available seats on that flight, the carrier will take the actions specified in the provisions of this rule.

(A) DEFINITIONS

For the purpose of this rule, definitions of the following terms are as indicated.

...

(2) Alternate transportation means air transportation provided by an airline licensed by the C.A.B. or other transportation used by the passenger which, at the time of the arrangement is made, is planned to arrive at the passengers next scheduled stopover (of 4 hours or longer) or destination no later than 4 hours after the passengers originally scheduled arrival time.

(3) Carrier means (a) a direct air carrier, except a helicopter operator, holding a certificate issued by the Board pursuant to Section 401(d)(1), 401(d)(2), 401(d)(5), or 401(d)(8) of the Act or a Class 1, 2, 3, 8, 9-2 or 9-3 Commercial Air Service License issued by the CTC(A) pursuant to Section 16(3) of the Aeronautics Act authorizing the transportation of persons; or (b) a foreign route air carrier holding a permit issued by the Board pursuant to Section 402 of the Act, or an exemption from Section 402 of the Act, Class 8, 9, 9-2 or 9-3 Commercial Air Service License issued by the CTC(A) pursuant to Section 16(3) of the Aeronautics Act, authorizing the transportation of persons.

(4) Comparable Air Transportation means transportation provided to passengers at no extra cost by a carrier as defined above.

...

(B) REQUEST FOR VOLUNTEERS

The carrier will request passengers who are willing to do so, to voluntarily relinquish their confirmed reserved space in exchange for compensation in an amount determined by the carrier. If a passenger is asked to volunteer, the carrier will not later deny boarding to that passenger involuntarily unless that passenger was informed at the time he was asked to volunteer that there was a possibility of being denied boarding involuntarily and of the amount of compensation to which he would have been entitled in that event. The request for volunteers and the selection of such persons to be denied space shall be in a manner determined solely by the carrier.

NOTE: Passengers who volunteer to relinquish their confirmed reserved space will be offered a miscellaneous charges order ticket for free air transportation issued in the name of the passenger who volunteered and valid for 365 days from the date of issuance. The miscellaneous charges order/ticket is nontransferable, has no refund value, and may be voluntarily rerouted and reissued by AC. The value of the miscellaneous charges order/ticket will be equal to the value of the coupon(s) remaining to on-line or interline destinations or next stopover point.

(C) BOARDING PRIORITIES

If a flight is oversold (more passengers hold confirmed reservations than there are seats available), no one may be denied boarding against his will until airline personnel first ask for volunteers who will give up their reservations willingly, in exchange for a payment of the airline's choosing.

If there are not enough volunteers, other passenger may be denied boarding involuntarily, beginning with the last passenger to arrive at the ticket lift point, except passengers travelling due to death or illness or(sic) a member of the passenger's family, aged passengers or unaccompanied children.

(D) TRANSPORTATION FOR PASSENGER DENIED BOARDING

When the carrier is unable to provide previously confirmed space the carrier causing the passenger to be delayed will provide transportation to persons who have been denied boarding, whether voluntarily or involuntarily, in accordance with the provisions below.

(1) Carrier will transport the passenger without stopover on its next flight on which space is available at no additional cost to the passenger regardless of class of service.

(2) If the carrier causing such delay is unable to provide onward transportation acceptable to the passenger, any other carrier or combination of carriers, at the request of the passenger, will transport the passenger without stopover on its (their) next flight(s) in the same class of service as the passenger's original outbound flight, or if space is available on a flight(s) of a different class of service acceptable to the passenger, such flight(s) will be used without stopover at no additional cost to the passenger only if it (they) will provide an earlier arrival at the passenger's destination, next stopover point, or transfer point.

(E) COMPENSATION FOR INVOLUNTARY DENIED BOARDING

In addition to providing transportation as described in paragraph (D) above, when the passenger who is delayed has not voluntarily relinquished confirmed reserved space in accordance with provisions in paragraph (B) above, the carrier causing the delay will compensate the delayed passenger for the carrier's failure to provide confirmed space. Compensation will be made in accordance with the provisions below.

(1) Conditions for Payment

(a) The passenger holding a ticket for confirmed reserved space must present himself for carriage at the appropriate time and place, having complied fully with the carrier's requirements as to ticketing, check-in, and reconfirmation procedures and having met all requirements for acceptance for transportation published in carrier's tariff.

(b) The flight for which the passenger holds confirmed space must be unable to accommodate the passenger and departs without him.

EXCEPTION 1: The passenger will not be eligible for compensation if he is offered accommodations or is seated in a section of the aircraft other than that specified on his ticket at no extra charge. If a passenger is seated in a section for which a lower fare applies the passenger shall be entitled to an appropriate refund.

EXCEPTION 2: The passenger will not be eligible for compensation if his reservation has been cancelled pursuant to Rule 135(C) Airport Check-In Time Limits.

EXCEPTION 3: The passenger will not be eligible for compensation if the flight on which he holds confirmed reserved space is unable to accommodate him because the flight is cancelled.

EXCEPTION 4: The passenger will not be eligible for denied boarding compensation if:

(i) the flight for which the passenger holds confirmed reserved space is unable to accommodate him because of substitution of equipment of lesser capacity when required by operational or safety reasons, or

(ii) the carrier arranges comparable air transportation, or other transportation used by the passenger at no extra cost to the passenger, that at the time such arrangements are made is planned to arrive at the passenger's next stopover or, if none, final destination within one hour after the scheduled arrival time of the passenger's original flight or flights.

(2) (a) Amount of Compensation

Subject to the provisions of (E)(1) above, the carrier will tender liquidated damages in the amount of 200% of the sum of the values of the passengers remaining flight coupons of the ticket to the passenger's next stopover or, if none, to his destination, but not more than USD 400.00 or CAD X. However, the compensation shall be 50% of the amount described above, but not more than USD 200.00 or CAD X if the carrier arranges for comparable air transportation, or for other transportation that is accepted, that is, used, by the passenger, which, at the time either arrangement is made, is planned to arrive at the airport of the passenger's next stopover, or if none, at the airport of the passenger's destination not later than four hours after the planned arrival at the airport of the passenger's next point of stopover, or, if there is no next point of stopover, at the airport of the passenger's destination, of the flight on which the passenger holds a confirmed reservation.

NOTE 1: If the offer of compensation is made by the carrier and accepted by the passenger, such payment shall constitute full compensation for all actual or anticipatory damages incurred or to be incurred by the passenger as a result of the carrier's failure to provide passenger with confirmed reserved space.

NOTE 2: Subject to the passenger's approval, carrier will compensate the passenger with credit valid for the purchase of transportation in lieu of monetary compensation. The credit issued will be for a value equal to or greater than the monetary compensation. Such credit will be non-transferable, non-refundable and valid for one year from the date of issue.

(3) Time of Offer of Compensation

The offer of compensation will be made by the carrier on the day and at the place where the failure to provide confirmed reserved space occurs, and, if accepted, will be receipted for by the passenger. Provided, however, that when the carrier arranges, for the passenger's convenience, alternate means of transportation that departs prior to the time the offer can be made to the passenger, the offer shall be made by mail or other means within 24 hours after the time the denied boarding occurs.

(F) NOTICE PROVIDED PASSENGERS (sic)

The following written notice shall be provided all passengers who are denied boarding involuntarily on flights on which they hold confirmed reserved space. Blanks that appear in parentheses in the notice below will be completed in the actual notice provided passengers, with the full name of the applicable carrier and with specific boarding priorities for each carrier, as is appropriate.

...

ANALYSIS AND FINDINGS

[28] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings. The Agency has also reviewed the applicable terms and conditions of carriage specified in Air Canada's Tariff.

1. Have the terms and conditions of Air Canada's Tariff relating to failure to operate on schedule been properly applied, as required by subsection 110(4) of the ATR?

[29] Air Canada Flight No. AC4023, operated by United, experienced mechanical difficulties prior to its anticipated departure from San Francisco. A replacement aircraft was subsequently arranged, but the flight was ultimately cancelled because the flight crew had exceeded their maximum hours on duty.

[30] United was unable to provide direct service from San Francisco to Calgary that was acceptable to Mr. Kirkham, but was able to provide acceptable transportation on United to Los Angeles with a connection the following morning to Calgary on Air Canada Flight No. AC569.

[31] Subparagraph (B)(9) of Rule 240AC of the Tariff sets out the terms and conditions of carriage that apply when there is a failure to operate according to schedule. The Agency is of the opinion that in providing acceptable transportation to Mr. Kirkham for carriage from San Francisco, this provision has been properly applied.

2. Did Air Canada properly apply the terms and conditions of the Tariff with respect to denied boarding and denied boarding compensation, as required by subsection 110(4) of the ATR?

a) Was Mr. Kirkham denied boarding?

[32] Rule 245AC of the Tariff states that denied boarding occurs "When, the carrier is unable to provide previously confirmed space due to more passengers holding confirmed reservations and tickets on a flight than there are available seats on that flight...".

[33] Air Canada submitted that Mr. Kirkham had a confirmed reservation for Flight No. UA8612, operated by Air Canada as Flight No. AC569, departing from Los Angeles on August 20, 2005, but that he did not have a seat assignment. Air Canada could not confirm that the aforementioned flight was overbooked. The carrier's records indicate that the flight was full, but there is no indication that it was overbooked.

[34] The Agency has carefully considered this matter and is of the opinion that, based on the evidence on file, and with particular reference to Beverly England's letter dated April 5, 2006, Mr. Kirkham was denied boarding on August 20, 2005 for Flight No. AC569. As such, the Agency finds that Air Canada failed to apply the terms and conditions of carriage relating to denied boarding, as set out in Rule 245AC of the Tariff thereby contravening subsection 110(4) of the ATR.

b) What compensation is due Mr. Kirkham?

[35] Subparagraph (E)(2)(a) of Rule 245AC of the Tariff provides that, in the event of denied boarding, Air Canada will tender to the passenger a payment equal to the sum of 200 percent of the face value of the ticket, up to a maximum of US$400. As Air Canada has determined that the face value of the unused ticket coupon is CAD$173.32, the Agency finds that Mr. Kirkham is entitled to denied boarding compensation in the amount of CAD$346.64.

[36] The evidence on file does not indicate that Air Canada followed the procedures relating to denied boarding that are set out in Rule 245AC cited above, including requesting volunteers to relinquish their seats, denying boarding on the basis of reverse order of check-in, and arranging alternate transportation.

[37] Mr. Kirkham submitted that as a result of Air Canada's failure to follow these procedures, he incurred the following expenses: US$371.10 for a WestJet ticket, CAD$90.20 for a cancelled Hertz car rental reservation, US$25 for two meals, and US$25 in cellular telephone charges.

[38] The Agency finds that as a result of Air Canada's failure to properly apply the terms and conditions of the Tariff, Mr. Kirkham incurred the expense of US$371.10 for the WestJet ticket that he purchased for one-way travel from Los Angeles to Calgary on August 20, 2005. The Agency also finds that the expenses that Mr. Kirkham incurred for two meals, totalling an amount of US$25, and for cellular telephone charges, amounting to US$25, constitute expenses that arose as a result of Air Canada's failure to apply the Tariff and that these expenses, for which receipts were not provided, are not unreasonable. With respect to the claim in the amount of CAD$90.20 for a cancelled Hertz car rental reservation, Mr. Kirkham did not provide the Agency with any evidence to substantiate this expense and therefore the Agency dismisses this claim.

[39] The Agency notes that Air Canada has already credited CAD$173.32 to Mr. Kirkham, an amount that represents the value of the unused portion of his ticket and provided a voucher in the amount of US$200.

[40] In view of the foregoing, the Agency finds that Mr Kirkham is entitled to compensation for being denied boarding in the amount of CAD$346.64, and expenses covering air transportation, meals and telephone services in the amount of CAD$510.33, less the refund of CAD$173.32 that Air Canada has already provided to Mr. Kirkham, for a total amount of CAD$683.65.

3. Did Air Canada make its tariffs available for inspection as required by subsection 116(1) of the ATR?

[41] Mr. Kirkham stated that he had unsuccessfully attempted to obtain or inspect Air Canada tariffs through Air Canada's Web site, its telephone reservation line and the carrier's offices at the Calgary and Edmonton airports.

[42] Air Canada submitted that its Customer Relations department provided Mr. Kirkham with a copy of the carrier's tariffs. Furthermore, it provided sworn affidavits from employees who are based at the airports in question, stating that the tariffs are available for inspection.

[43] The Agency is of the opinion that the evidence on file relating to the availability of tariffs at Calgary and Edmonton airports is inconsistent. As such, the Agency is unable to make a determination respecting the matter.

[44] Air Canada maintained that its Web site and telephone reservation line are not business offices as neither qualifies as a "place" within the meaning of the definition of "business office" appearing in section 2 of the ATR, and therefore it is not obligated to post its tariffs on the Web site or make the tariffs available through the telephone reservation line.

[45] The Agency finds Air Canada's interpretation as to what constitutes a "business office" is unreasonable in light of the fact that Mr. Kirkham's ticket was purchased through the carrier's Web site. The Agency therefore finds that a Web site and a reservation line are places whereby a passenger may purchase a ticket for air transportation and as such constitute a "business office" within the meaning of section 2 of the ATR.

[46] Further, Bill C-11, an Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts, which is currently before the Parliament of Canada, includes a proposed amendment that requires carriers to set out their terms and conditions of carriage on any Internet site used by the carriers for selling the services that such carriers offer.

CONCLUSION

[47] In view of the foregoing, the Agency hereby directs Air Canada to, within thirty days of the date of this Decision, provide monetary compensation to Mr. Kirkham in the amount of CAD$683.65, upon the return by Mr. Kirkham of the US$200 voucher that Air Canada previously issued to him. In the event that Mr. Kirkham fails to return the voucher, the compensation due Mr. Kirkham shall be CAD$441.26.

[48] Air Canada is directed to advise the Agency when the carrier has compensated Mr. Kirkham.

[49] With respect to the matter of availability of the tariffs, and possible contraventions of section 116 of the ATR, this matter is being referred to the Agency's Enforcement Division for investigation and appropriate action.

Members

• Raymon J. Kaduck
• Beaton Tulk