Decision No. 333-AT-A-2012

APPLICATION

[1] Air Canada requests a review pursuant to section 32 of the Canada Transportation Act (CTA) of findings that impose on Air Canada the obligation to provide oxygen on its domestic itineraries as long as it does not accept passenger-supplied gaseous oxygen, and that Decision Nos. 164-AT-A-2010 and 336-AT-A-2008 (Oxygen Decision), as varied by Decision No. 411-AT-A-2009 (Revised Decision), be varied to change the appropriate accommodation in respect of domestic flights to portable oxygen concentrators (POCs) only (from POCs and passenger-supplied compressed gaseous oxygen).

BACKGROUND

[2] In 2008, the Canadian Transportation Agency (Agency) issued the Oxygen Decision which addressed applications filed against Air Canada and WestJet regarding persons who require that medical oxygen be available to them when travelling by air. The Agency found that the appropriate accommodation (referred to in the Oxygen Decision as “the most appropriate accommodation”) for these individuals when travelling on domestic flights is that they be allowed to use passenger-supplied oxygen in whatever form is permitted by regulations, i.e., passenger-supplied gaseous oxygen and POCs. The Agency also found that, insofar as the undue obstacles related to Air Canada’s carrier-supplied oxygen system were eliminated, it would accept Air Canada’s oxygen service as an equally responsive alternative to passenger-supplied gaseous oxygen. Therefore, to the extent that Air Canada chose not to permit passenger-supplied gaseous oxygen on domestic flights, it was required to provide a gaseous oxygen service. Moreover, if Air Canada chose to do so through its Medipak service or, alternatively, through a third-party supplier, it was required to implement specific corrective measures to address a number of undue obstacles.

[3] In 2009, Air Canada requested that the Agency vary the Oxygen Decision as a result of Air Canada’s intent to provide the appropriate accommodation set out in it by allowing the use of passenger-supplied gaseous oxygen on its domestic flights subject to very specific conditions, in addition to allowing the use of passenger-supplied POCs. The Agency reviewed the Oxygen Decision and issued the Revised Decision which, among other matters, varied the Oxygen Decision to require that, until such time as Air Canada accepts the use of passenger-supplied gaseous oxygen on its domestic flights, it must implement an interim measure to refund passengers for the gaseous oxygen they use between check-in and boarding, landing and baggage delivery, during connections, and until arrival in the general public area at the final destination on wholly domestic itineraries (i.e., provide a continuous oxygen service free of charge).

[4] In 2010, Air Canada requested that the Agency review, pursuant to section 32 of the CTA, the Oxygen Decision and the Revised Decision as they relate to appropriate accommodation, continuous service, and fees in light of the growing use of POCs. Air Canada submitted that for a 12-month period starting on February 9, 2009, there were 430 passenger-segments where POCs were used (41 percent of oxygen users) and 621 passenger-segments where its Medipak oxygen service was used (59 percent of oxygen users), as compared to only a minimal number of passengers who used POCs in 2008. Air Canada submitted that while the use of gaseous oxygen prevailed, it was no longer the appropriate accommodation and POCs were as useful and appropriate a method of accommodation as gaseous oxygen.

[5] In Decision No. 164-AT-A-2010, the Agency considered Air Canada’s request and found that the data provided by Air Canada with respect to the use of POCs did not reflect a significant enough change in facts or circumstances to warrant a variance of the Agency’s determination of the appropriate accommodation. However, the Agency did vary the Oxygen Decision with respect to refunds provided by Air Canada to passengers for a ground supply of oxygen on wholly domestic itineraries.

ISSUE

[6] Has there been a change in facts or circumstances since the issuance of Decision No. 164‑AT‑A‑2010 which warrants a variance of that Decision and of the Oxygen Decision as varied by the Revised Decision to change the appropriate accommodation on domestic flights to POCs only?

FACTS, EVIDENCE AND SUBMISSIONS

[7] Air Canada submits that there has been a significant change in facts and circumstances since the issuance of Decision No. 164-AT-A-2010, which warrants reconsideration by the Agency of its determination that, so long as it does not permit passenger-supplied gaseous oxygen on its domestic flights, it must provide its Medipak oxygen service free of charge and on a continuous basis.

[8] One of the factors raised by Air Canada in support of its request for a variance is the current situation affecting its Medipak services following the shutdown of Aveos Fleet Performance (Aveos), its sole Medipak supplier, on March 18, 2012. Although Air Canada advised that it has entered into a contract with a new supplier for gaseous oxygen supplies, it also advised that the situation would prevent it from fully resuming its Medipak service until June 20, 2012.

[9] Additionally, it is Air Canada’s position that the use of POCs is currently more prevalent than the use of Medipaks and cites their convenience as being a major factor (easy to carry, no replenishing required and can be used at destination).

[10] Air Canada provided the following statistics in respect of its passenger traffic during the past year, from April 2011 to April 2012, for its markets:

• Domestic: 205 POCs (51 percent) and 193 Medipaks (48.5 percent) for a total of 398
• Transborder (Canada-U.S.): 267 POCs (75.2 percent) and 88 Medipaks (24.8 percent) for a total of 355
• International: 583 POCs (61.7 percent) and 362 Medipaks (38 percent) for a total of 945

The statistics for the three markets are 1055 POCs (62 percent) and 643 Medipaks (38 percent) for a total of 1698.

[11] Air Canada states that the prevalence of POCs is further evidenced by the fact that, following the implementation of Air Canada’s interim partial Medipak services, many passengers requiring medical oxygen confirmed having a POC that could be used during their flight.

[12] Air Canada suggests that the above figures demonstrate that the majority of passengers who need medical oxygen use POCs as opposed to Medipaks, even if the use of the latter is without costs (except consumables) on domestic itineraries. Air Canada states that “from February 2009 to February 2010, 59 percent of passengers needing oxygen on domestic flights asked for Medipaks whereas only 41 percent used POCs. This means that there has been a proportional increase of more than 25 percent of users of POCs.”

[13] Furthermore, Air Canada submits that there has been an increase in the number of POC models it accepts since the issuance of Decision No. 164-AT-A-2010; it now accepts 11 worldwide. Finally, Air Canada states that it has noticed an increase in the number of passengers who use the Medipak service on domestic flights, and who carry their own POC for use at the airport and at destination. Air Canada states that they could be used inflight.

ANALYSIS

Legislative context

[14] Pursuant to section 32 of the CTA:

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.

[15] It is important to stress at the outset that the review process contemplated by section 32 of the CTA is not an appeal process. Parties wishing to appeal an Agency decision may proceed before the Federal Court of Appeal as per section 41 of the CTA.

[16] Nor is this process an open-ended authority for the Agency to review its decisions. The Agency’s jurisdiction under this section is limited and only arises if, in its opinion, there has been a change in the facts or circumstances pertaining to a particular decision since its issuance.

[17] Indeed, the ability for a tribunal to review a final decision constitutes an exception to the rule of functus officio that the final decision of a court cannot be re-opened. In Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, the Supreme Court of Canada dealt with the issue as to whether a board or a tribunal, such as the Agency, is empowered to review its final decisions in the following terms:

As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. O.J. Ross Engineering Corp., supra.

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.

[18] Section 32 of the CTA outlines the statutory framework through which the Agency can exercise its power to review its decisions. The Agency is fully empowered to interpret the provisions of the CTA, its enabling legislation.

[19] A similar issue was ruled on by the Federal Court of Appeal in Kent v. Canada (A.G.), 2004 FCA 420 (Kent Decision). The Court confirmed a two-step approach to the determination of whether new facts are being presented to a tribunal in the context of a request for rescission or amendment of a decision. First, the proposed new facts must not have been discoverable, with due diligence, prior to the first hearing. If such is the case, then the tribunal must proceed to the second step and evaluate the materiality of the new facts, i.e. it must assess the importance of the proposed new facts to the merits of the claim. In the event that there are no new facts, the decision must stand.

[20] Although the Kent Decision relates to subsection 84(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8, which refers to the introduction of “new facts” rather than “a change in facts and circumstances,” the Agency considers it nonetheless a source of guidance as to what can constitute a change in facts or circumstances.

[21] In dealing with an application for review, the Agency must first determine whether there has been a change in facts or circumstances pertaining to the decision. If no such change exists, the decision stands. If, however, the Agency finds that there has been a change in facts or circumstances since the issuance of the decision, it must then determine whether such a change is sufficient to warrant a review, rescission or variance of the decision. When another party was involved in the first hearing, the Agency may decide to open pleadings to ensure that all of the parties to the original decision are given the opportunity to address the issues, including the question as to whether there was a change in facts or circumstances since the issuance of the decision and the impact of the change on the matter.

[22] The Panel concludes that the wording of section 32 must generally be construed to include only facts or circumstances that were not in existence at the time of the original hearing or were undiscoverable by the applicant for review at that time. If a fact was known to the applicant or discoverable through exercise of due diligence at the time of the initial complaint, it cannot constitute a change in facts or circumstances. The text of section 32 expressly refers to new facts and circumstances arising “since the decision”.

[23] The burden of proof rests on the applicant requesting the review to provide the Agency with some substance and explanation demonstrating that the alleged change in the facts or circumstances has arisen since the decision. The applicant must also explain how the alleged change affects the outcome of the matter.

[24] A section 32 application is not the appropriate vehicle to introduce evidence that was known to or knowable by the applicant during the original application. It is not meant to provide the losing party an opportunity to complete the record or to re-argue a case. For the application to succeed, there must have been a real change in facts or circumstances since the original decision to justify a re-hearing. This must be weighed against the basic legal principle in favour of finality of decisions. This protects the other party, who has a legitimate expectation that a decision, once rendered, is final.

Has there been a change in facts or circumstances?

[25] In the case at hand, the Agency accepts that the increased percentage of passengers who use POCs on domestic flights and the situation involving Aveos constitute new facts and circumstances which have developed since the issuance of the Oxygen Decision as varied by the Revised Decision, and Decision No. 164-AT-A-2010 (Decisions).

Is the change in facts or circumstances significant enough to warrant a variance of the Decisions?

[26] In Decision No. 164-AT-A-2010, the Agency acknowledged that there appeared to have been a significant increase in POC usage by Air Canada passengers requiring medical oxygen while travelling by air, and that this trend was likely to continue. However, the Agency found that data provided by Air Canada with respect to the February 2009 to February 2010 period, which indicated that 41 percent of the oxygen used on its domestic flights was provided by passenger‑supplied POCs compared to a minimal use of POCs in 2008, did not reflect a change in facts or circumstances significant enough to warrant a variance of the Agency’s determination of the appropriate accommodation.

[27] In terms of the past year, although the data submitted by Air Canada does support its assertion that there has been a proportional increase of 25 percent with respect to the use of POCs on its domestic flights, the fact remains that only approximately half of Air Canada’s passengers on its domestic flights who needed medical oxygen used POCs. While Air Canada submits that most passengers who request Medipak services travel with a POC for use at destination that could be used in flight, Air Canada has not substantiated this claim. Air Canada refers to the unforeseen situation regarding Aveos as one of the reasons to substantiate its request to vary the Agency’s finding of appropriate accommodation. However, Air Canada has found another supplier for its gaseous oxygen requirements and indicated that it would be in a position to resume its full Medipak service on domestic flights by June 20, 2012.

[28] The Agency finds that the data provided by Air Canada with respect to the use of POCs on its domestic flights over the past year does not reflect a change in facts or circumstances significant enough to warrant a variance of the Agency’s determination of the appropriate accommodation. The Agency also finds that the situation resulting from the cessation of Aveos’ operations does not reflect a change in facts or circumstances significant enough to warrant a variance of the Agency’s determination of the appropriate accommodation as requested by Air Canada.

[29] The Agency further finds that Air Canada has not established that the new facts or circumstances which have developed since the issuance of the Decisions could be expected to change the result of the Decisions. The data provided by Air Canada with respect to the use of POCs on its domestic flights and the situation resulting from the cessation of Aveos’ operations do not reflect changes in facts or circumstances significant enough to warrant a variance of the Agency’s determination of the appropriate accommodation. Consequently, the Agency will not vary the Decisions by removing the requirement that Air Canada accept, on its domestic flights, passenger-supplied gaseous oxygen or that Air Canada provide an equally responsive alternative, such as its Medipak service with the required corrective measures to address the Agency’s findings of undue obstacles, including that the service be provided free of charge and on a continuous basis.

CONCLUSION

[30] The Agency dismisses Air Canada’s request for a review pursuant to section 32 of the CTA of Agency findings that impose on Air Canada the obligation to provide oxygen on its domestic itineraries as long as it does not accept passenger-supplied gaseous oxygen. The Agency also dismisses Air Canada’s request that Decision No. 164-AT-A-2010 and the Oxygen Decision, as varied by the Revised Decision, be varied to change the appropriate accommodation in respect of domestic flights to POCs only (from POCs and passenger-supplied compressed gaseous oxygen).