Decision No. 3-AT-A-2021
APPLICATION by Air Canada, pursuant to section 32 of the Canada Transportation Act, SC 1996, c 10 (CTA), requesting that the Canadian Transportation Agency (Agency) review Decision No. 47-AT-A-2020 (Decision).
SUMMARY
[1] Air Canada submitted an application to the Agency pursuant to section 32 of the CTA requesting that the Agency review the Decision regarding the carrier’s refusal to transport John Liland’s portable oxygen concentrator (POC). Air Canada requests that the Decision be reviewed on the basis that the crew operating Flight No. AC8314, the flight considered in the Decision, is employed by Jazz Aviation LP (Jazz Aviation). Air Canada argues that, since it is a company separate from Jazz Aviation, it cannot order Jazz Aviation employees to implement the corrective measures set out in the Decision.
[2] The Agency will address the following issue:
Has there been a change in the facts or circumstances pertaining to the Decision sufficient to warrant a review of the Decision?
[3] For the reasons set out below, the Agency finds that Air Canada did not meet its burden of proof to demonstrate that there was a change in the facts or circumstances pertaining to the Decision sufficient to warrant a review of the Decision. The Agency, however, acknowledges the particularities of the capacity agreement between Air Canada and Jazz Aviation and amends the order set out in the Decision to ensure its enforceability.
BACKGROUND
[4] In Decision No. LET-AT-A-104-2019, issued on December 24, 2019, John Liland was found to have encountered an obstacle to his mobility when he was refused transport due to alleged safety concerns about his POC in an incident that occurred on Flight No. AC8314, on August 22, 2017.
[5] On July 2, 2020, the Agency issued the Decision where it found that Air Canada did not discharge its burden to explain how removing the obstacle would cause it undue hardship, and the obstacle was found to be undue. The Agency ordered Air Canada to:
[I]ssue a bulletin to its flight deck employees about Air Canada’s policy and procedures for the carriage of POCs. Air Canada is to send a memo including this bulletin directly to the pilot, first officer, and other members of the crew involved in the incident of August 22, 2017, detailed in the application. Air Canada is to provide a copy of the bulletin and memo it has sent to its employees to the Agency’s Chief Compliance Officer, through its Secretariat, as soon as possible and by no later than July 30, 2020.
[6] On July 29, 2020, Air Canada filed with the Agency a copy of the email that it sent to a Jazz Aviation representative, sharing a copy of the Decision and requesting that Jazz Aviation issue a bulletin to its flight deck employees about Jazz Aviation’s policy and procedures for the carriage of POCs.
THE LAW
[7] Section 32 of the CTA addresses the Agency’s authority to review its decisions and states:
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.
AIR CANADA’S POSITION
[8] Air Canada submits that the pilot operating Flight No. AC8314 on August 22, 2017, is employed by Jazz Aviation. It explains that while Jazz Aviation operates flights on behalf of Air Canada, Jazz Aviation and Air Canada are wholly separate companies. Air Canada adds that Jazz Aviation provides its services to Air Canada pursuant to a capacity agreement “whereby Jazz Aviation provides its flight crews to operate the designated scheduled flights.” Air Canada specifies that Jazz Aviation retains full responsibility for its flight crew employees. More specifically, Air Canada refers to the following excerpt of its capacity agreement with Jazz Aviation:
The employees … of Jazz engaged in performing any of the services Jazz is obligated to perform pursuant to this Agreement shall be employees … of Jazz for all purposes and under no circumstances shall employees … of Jazz be deemed to be employees, agents or independent contractors of Air Canada. Air Canada shall have no supervisory power or control over any employees … engaged by Jazz in connection with Jazz’s performance of its obligations hereunder, and all complaints or requested changes in procedure shall, in all events, be transmitted by Air Canada to a designated representative of Jazz. Nothing contained in this Agreement is intended to limit or condition Jazz’s control over its operation or the conduct of its business as an air carrier [Air Canada’s emphasis].
[9] Air Canada refers to the capacity agreement to claim that since its employees were not involved in the events that occurred on the flight in question in the original application, ordering Air Canada to issue a bulletin to its employees is not “responsive to the facts in question.” It maintains that as a result of Air Canada and Jazz Aviation being separate companies, the former cannot ask Jazz Aviation employees to take or not to take any actions. As such, Air Canada submits that it cannot be ordered to send a memo directly to the Jazz Aviation employees involved in the incident that occurred on August 22, 2017.
[10] Air Canada adds that it can address correspondence to a designated representative of Jazz Aviation but cannot control the steps taken internally by Jazz Aviation afterward. Therefore, it requests that the order be revised to read as follows:
The Agency orders Air Canada to inform Jazz Aviation LP of the Agency’s Decision No. 47-AT-A-2020 and to make a request to Jazz Aviation LP to issue a bulletin to its flight deck employees about its policy and procedures for the carriage of POCs. Air Canada is to provide a copy of the request sent to Jazz Aviation LP to the Agency’s Chief Compliance Officer, through its Secretariat, as soon as possible and by no later than July 30, 2020.
ANALYSIS AND DETERMINATIONS
[11] The test applied by the Agency in applications under section 32 of the CTA was described as follows in Decision No. 86-C-A-2017:
The burden of proof rests on the applicant requesting the review pursuant to section 32 of the CTA to provide the Agency with sufficient evidence demonstrating that the two following criteria have been met:
Since the decision, there has been a change in the facts or circumstances pertaining to the decision that was not known or was undiscoverable by the applicant at the time of the hearing.
The change in the facts or circumstances is significant enough to warrant a review, rescission and/or variance of the decision.
[12] While Air Canada requests a review of the Decision, it did not identify a change in facts and circumstances since its issuance. Rather, Air Canada’s request relies on the existence of a capacity agreement in place at the time the Decision was issued. This information would undoubtedly have been relevant during the pleadings on the original application, but it does not represent a new fact or a new circumstance given that it existed
at that time. As a result, the Agency finds that Air Canada has not met its burden of proof to demonstrate there has been a change in facts or circumstances since the Decision was issued.
[13] Notwithstanding the above, the Agency acknowledges the particularities of the capacity agreement between Air Canada and Jazz Aviation and recognizes that an amendment of the order of the Decision is warranted to ensure its enforceability.
CONCLUSION
[14] Based on the above finding, the Agency dismisses Air Canada’s application for a review of Decision No. 47-AT-A-2020. However, the Agency amends its order as follows to ensure its enforceability:
The Agency orders Air Canada to communicate in writing with Jazz Aviation’s designated representative requesting that Jazz Aviation issue a bulletin to its flight deck employees operating flights on behalf of Air Canada about Air Canada’s policy and procedures for the carriage of POCs. Air Canada shall request that this bulletin be brought to the attention of the flight deck employees involved in the incident of August 22, 2017, on Flight No. AC8314.
ORDER
[15] The Agency acknowledges that Air Canada has already sent an email to Jazz Aviation and that a copy was provided to the Agency’s Secretariat on July 29, 2020. However, due to discrepancies between the email and the order set out in this decision, Air Canada has until 5:00 p.m. Gatineau local time on February 3, 2021, to send a new email to Jazz Aviation and provide a copy to the Agency’s Chief Compliance Officer, through the Agency’s Secretariat.
Member(s)
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