Decision No. 42-C-A-2009

February 13, 2009

File No. M4120-3/08-50602

APPLICATION

On December 14, 2008, Harry Schatz filed with the Canadian Transportation Agency (Agency) the application set out in the title.

BACKGROUND

Decision No. 430-C-A-2005 was issued as a result of a complaint filed by Mr. Schatz against Air Canada alleging that the carrier failed to apply its tariff and that it wrongly deplaned him from Flight No. AC 536 from Toronto, Ontario, Canada to Washington, D.C., United States of America on August 29, 2004. In its Decision, the Agency determined that by failing to request volunteers and/or provide Mr. Schatz with the opportunity to relinquish his seat, Air Canada failed to apply the terms and conditions of its tariff. The Agency also determined that Air Canada's tariff was silent on the issue of boarding priority for passengers who do hold a boarding pass. Air Canada was required to show cause why the Agency should not order Air Canada to clarify Rule 245 of its tariff.

In its Decision No. 14-C-A-2006, the Agency determined that no further action from Air Canada was warranted as the incident involving Mr. Schatz appeared to have been exceptional and isolated.

In Decision No. 502-C-A-2008 respecting a complaint by Scott Gareau regarding an Air Canada denial of boarding, the Agency requested Air Canada to show cause why the Agency should not order Air Canada to clarify Rule 245(C)(2) of its transborder tariff governing situations of boarding denials to persons with confirmed reservations and boarding passes.

On October 21, 2008, Air Canada clarified Rule 245(C)(2) to indicate that passengers with confirmed reservations will be permitted to board the aircraft according to Air Canada's boarding priority sequence, and removed reference to persons with boarding passes.

ISSUE

Has there been a change in the facts or circumstances pertaining to Decision No. 430-C-A-2005 since it was issued and, if so, is such a change sufficient to warrant a review, rescission or variance of Decision No. 430-C-A-2005?

ANALYSIS AND FINDINGS

Pursuant to section 32 of the Canada Transportation Act (CTA), the Agency may review, rescind or vary any decision made by it if, in the opinion of the Agency, since the decision, there has been a change in the facts or circumstances pertaining to the decision.

It is important to stress at the outset that the review process contemplated by section 32 of the CTA is not an open-ended authority for the Agency to review its decisions. The Agency's jurisdiction under this section is limited and only arises if there has been a change in the facts or circumstances pertaining to a particular decision since its issuance. Accordingly, the Agency must first determine whether there has been a change in the facts or circumstances pertaining to the decision and, if so, then determine whether such a change is sufficient to warrant a review, rescission or variance of the decision.

In his application for review, Mr. Schatz submits that, based on the Agency's Decision No. 502-C-A-2008, "the complainant, who had a boarding pass when denied boarding, was granted a valid complaint". Therefore Decision No. 430-C-A-2005 should be reopened as it constitutes a change in facts or circumstances.

In carrying out its mandate, the Agency makes its determinations on a case-by-case basis in light of the information on file. Facts are often not comparable. The Agency notes that Mr. Schatz is relying on an Agency decision that assessed a different set of facts. A differing outcome in a subsequent case does not constitute new facts or circumstances within the meaning of section 32 of the CTA. A party to an application cannot use section 32 of the CTA unless it can demonstrate that there has been a discernible change in the facts or circumstances of the case since the original decision.

In light of the foregoing, the Agency finds that the argument provided by Mr. Schatz does not constitute new facts or circumstances, as contemplated by section 32 of the CTA, pertaining to Decision No. 430-C-A-2005 since it was issued, and dismisses the application.

Members

• J. Mark MacKeigan
• Raymon J. Kaduck