Decision No. 436-C-A-2007

September 11, 2007

File No. M4120-3/07-02960

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COMPLAINT

[1] On May 15, 2007, Julien-Paul Dufour filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title.

[2] On May 23, 2007, Air Transat A.T. Inc. carrying on business as Air Transat (hereinafter Air Transat) was requested to address the complaint within the context of sections 111 and 113 of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR).

[3] On June 14, 2007, Air Transat filed its answer to the complaint and on June 19, 2007, Mr. Dufour filed his reply.

ISSUE

[4] The issue to be addressed is whether the baggage allowances set out in Air Transat's Scheduled International Tariff CTA(A) No. 4 and in its International Charter Tariff CTA(A) No. 5 for services between points in Canada and points outside of Canada are "unjustly discriminatory" within the meaning of section 111 of the ATR.

POSITIONS OF THE PARTIES

[5] Mr. Dufour submits that he finds Air Transat's checked baggage allowance of 20 kilograms for flights to the Dominican Republic discriminatory, because it is lower than the checked baggage allowances for flights to other countries such as Haiti and Portugal, which he quotes as being 50 kilograms and 23 kilograms [the latter is actually 40 kilograms in the carrier's tariffs] respectively. Mr. Dufour states that when he goes to the Dominican Republic, he brings several suitcases containing clothing, medicine, and various items as gifts for his family. However, if he travels with Air Transat, he must pay $10 per kilogram for baggage in excess of the maximum allowance. Mr. Dufour points out that even though the Dominican Republic and Haiti are both located on the same island, the baggage allowance is different for those two points.

[6] Air Transat submits that its baggage allowance policy is based on the principle that passenger baggage needs vary according to destination and route, as well as the market characteristics of each destination.

[7] Air Transat indicates that for its international services to sun destinations, such as the Dominican Republic, the majority of the passengers are travelling for tourism purposes, primarily as part of all-inclusive packages that are generally one or two weeks in duration. In addition, because the passengers' stays are relatively short and their baggage consists of mostly light clothing and beachwear, the allowance is adjusted accordingly. According to Air Transat, this is why the checked baggage allowance is set at 20 kilograms per passenger for the majority of these destinations. Air Transat submits that this practice complies with industry standards, and adds that it is not only efficient from an operational and commercial point of view, but it is also more environmentally-friendly because it reduces fuel consumption for these flights.

[8] Air Transat states that the baggage allowance for Haiti is exceptionally set at 50 kilograms per passenger, instead of the 20-kilogram baggage allowance set for other destinations, because passengers are almost exclusively friends and relatives of people who live in Haiti, who tend to make longer trips than package tour travellers and consequently require more luggage. Air Transat adds that in light of Haiti's economic difficulties, Haitian-Canadians visiting this country tend to bring their families clothing and basic consumer goods that are not available in Haiti, and Air Transat takes this reality into account.

[9] For European destinations such as the United Kingdom, France, and Germany, Air Transat explains that the majority of passengers are tourists and the per-passenger baggage allowance reflects this reality. However, for Portugal, Greece, and Italy, a good part of these markets consists of families with children travelling during summer vacation for extended stays with friends and family. Air Transat indicates that it is meeting the needs of these passengers by granting them a larger baggage allowance, and that such practice is in the interest of consumers.

[10] Air Transat submits that its policy dictating the characteristics and requirements that can be established for one route but not to others is an advantage to consumers in many cases, and, as such, it cannot be described as discriminatory.

ANALYSIS AND FINDINGS

[11] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings, as well as the pertinent terms and conditions of Air Transat's tariffs.

[12] The Agency's jurisdiction over complaints regarding tolls and terms and conditions of international travel to and from Canada is set out, in part, in section 111 of the ATR, which provides that:

(1) All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just an reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic.

(2) No air carrier shall, in respect of tolls or the terms and conditions of carriage,

(a) make any unjust discrimination against any person or other air carrier;

(b) give any undue or unreasonable preference or advantage to or in favour of any person or other air carrier in any respect whatever; or

(c) subject any person or other air carrier or any description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatever.

[13] The pertinent provisions of the applicable tariffs in this case are Rule 7.1 of the Scheduled International Tariff and Rule 8.1 of the International Charter Tariff, which both read, in part, as follows:

The Carrier will accept for transportation as baggage such personal property as is necessary for the wear, use, comfort or convenience of the passenger for the purposes of the trip, subject to the following conditions:

...

d) Passengers (excluding infants under 2 years of age) in economy class will be allowed a maximum baggage allowance of 20 kilograms of checked baggage per passenger (40 kilograms in Club Transat Class) to be carried without additional charge subject to the following exceptions: 50 kilograms for flights between Canada and points in Haïti; 40 kilograms for flights between Canada and points in Portugal; 30 kilograms for flights between Canada and points in Greece and Italy; 25 kilograms for flights between Canada and Amsterdam, London-Gatwick, Nice, as well as for Florida cruise passengers and 23 kilograms for flights between Canada and all other points in Europe and the United Kingdom. If the total weight exceeds the maximum allowance, subject to space availability, an additional charge of CDN $7.00 (or equivalence in other currencies) per excess kilogram will be applicable for all flights between Canada and Europe or the United Kingdom, and an additional charge of CDN $10.00 (or equivalence in other currencies) per excess kilogram will be applicable for all flights between Canada and the USA, and all Southern locations in Mexico, the Caribbean, Cuba and Latin America. A piece of checked baggage shall not exceed 32 kilograms or 70 lbs., in such case, baggage shall be shipped as cargo and cargo charges shall apply.

[14] When determining whether a condition applied by an air carrier constitutes "unjust discrimination" within the meaning of section 111 of the ATR, the Agency must adopt a contextual approach which balances the right of the travelling public not to be subject to terms and conditions that are discriminatory with the air carrier's regulatory, operational, and commercial obligations.

[15] The first question for the Agency to consider in determining whether a term or condition of carriage applied by an air carrier constitutes "unjust discrimination" within the meaning of section 111 of the ATR, is whether the term or condition of carriage is discriminatory.

[16] A term or condition would be discriminatory if it singled out a particular category of traffic for different treatment for reasons that could not be justified.

[17] In the present case, the Agency notes that Air Transat's checked baggage allowance for the Dominican Republic is lower than that which is set for some other countries, but this condition applies equally to all passengers travelling to that destination.

[18] The Agency finds that Mr. Dufour's comparison of the different baggage allowances between flights to the Dominican Republic and Haiti, as well as between flights to Portugal and the Dominican Republic, is not valid because these are distinct markets to which completely different competitive measures apply. The Agency is of the opinion that air carriers are not required to set tolls, terms, or conditions based on the passengers' reasons for travel. For these reasons, the Agency finds that Air Transat's checked baggage allowances are not discriminatory. As a result, there is no need for the Agency to consider whether the allowances constitute "unjust discrimination".

CONCLUSION

[19] In light of the foregoing, the Agency hereby dismisses the complaint.

Members

• Gilles Dufault
• John Scott