Decision No. 37-A-2012

APPLICATION

Aerovias del Continente Americano S.A. carrying on business as Avianca (Avianca), on behalf of itself and Lineas Aereas Costarricenses S.A. carrying on business as LACSA (LACSA), has applied to the Canadian Transportation Agency (Agency) for extra-bilateral authority and approval to permit Avianca to provide an international air service on a scheduled basis between Columbia and Canada by selling transportation in its own name on flights operated by LACSA between San José, Costa Rica and Toronto (Ontario), Canada via San Salvador, El Salvador, for a period of three years.

Avianca is licensed to operate an international air service on a scheduled basis, limited to four flights per week, between Canada and Colombia. Avianca is applying for extra-bilateral authority to vary temporary licence No. 050007 to permit it to also provide, through code sharing, an international air service on a scheduled basis, via intermediate points San José and San Salvador.

The Agency gave notice of the application to Canadian carriers that may have an interest. No objections were received.

ANALYSIS AND FINDINGS

Authority under subsection 78(2) of the Canada Transportation Act (CTA)

The Agency may vary the terms and conditions of a licence, pursuant to subsection 78(2) of the CTA, for a service which is not permitted in an agreement or arrangement.

The Agency has considered the application and the material in support and finds it appropriate to grant the variance.

Accordingly, the Agency, pursuant to subsection 78(2) of the CTA, varies Avianca’s licence to the extent necessary to permit it to also provide, through code sharing, an international air service on a scheduled basis between Columbia and Canada, via intermediate points San José and San Salvador, from the date of this Decision to October 31, 2012.

Application under section 60 of the CTA and section 8.2 of the Air Transportation Regulations (ATR)

The Agency is satisfied that the application meets the requirements of section 8.2 of the ATR.

Accordingly, the Agency, pursuant to paragraph 60(1)(b) of the CTA and section 8.2 of the ATR, approves the use by Avianca of aircraft and flight crew provided by LACSA, and the provision by LACSA of such aircraft and flight crew to Avianca, to permit Avianca to provide an international air service on a scheduled basis between Columbia and Canada by selling transportation in its own name on flights operated by LACSA between San José and Toronto via San Salvador.

The approval is granted from the date of this Decision to October 31, 2012, subject to the following conditions:

1. Avianca shall continue to hold the valid licence authority.
2. Avianca shall apply its published tariffs, in effect, to the carriage of its traffic. Nothing in any commercial agreement between the air carriers relating to limits of liability shall diminish the rights of passengers as stated in such tariffs.
3. The air service approved shall only be provided as long as a code-sharing agreement providing for such service remains in effect.
4. Avianca and LACSA shall continue to comply with the insurance requirements set out in subsections 8.2(4), 8.2(5) and 8.2(6) of the ATR.
5. Avianca shall continue to comply with the public disclosure requirements set out in section 8.5 of the ATR.
6. Avianca and LACSA shall provide the Agency with a copy of any new agreement or amendments to their code-sharing agreement, including any new or amended annex, without delay.
7. Air transportation using Avianca’s code on flights operated by LACSA between San José and Toronto and between San Salvador and Toronto shall not be sold separately and shall only be available to traffic carried on a continuous journey under Avianca’s code between Columbia and Canada. No local traffic may be carried under Avianca’s code between San José and Toronto and between San Salvador and Toronto.