Decision No. 465-AT-A-2010
November 8, 2010
APPLICATION by Sharon Orrey, on behalf of Ashleigh Dukoff, against Air Canada.
File No. U3570/09-21
INTRODUCTION
[1] In Decision No. 251-AT-A-2010 (Decision), the Canadian Transportation Agency (Agency) found, on a preliminary basis, that Air Canada did not adequately demonstrate that allowing attendant name changes on international tickets sold as part of a tour package or through consolidators will create undue hardship on Air Canada, and provided Air Canada with the opportunity to show cause why the Agency should not finalize that Decision.
[2] Air Canada submitted its response to the show cause direction on July 12, 2010 and the applicant, Sharon Orrey, submitted her reply to the show cause direction and to Air Canada's response on July 25, 2010.
ISSUE
[3] Has Air Canada shown that allowing attendant name changes on international tickets sold as part of a tour package or through consolidators creates undue hardship on Air Canada?
MRS. ORREY'S COMMENT REGARDING THE SHOW CAUSE DIRECTION
[4] Mrs. Orrey states that "As I have no expertise in the rules, regulations and laws governing the aviation industry, I will trust that the Agency will be in the best position to ascertain whether or not the initial findings of the Agency will stand, despite the objections of Air Canada and what they believe to be an inability to follow through with the Agency's decision."
TICKETS THAT FORM PART OF TOUR PACKAGES
Air Canada's comments
[5] Air Canada submits that changing attendant names on international tickets sold as part of a tour package constitutes undue hardship on Air Canada.
[6] Air Canada states that add-on fares sold to tour operators must be sold as part of a package that comprises a land component. The carrier cites the Air Canada International Tariffs Rule 0001 –Chapter 78 (K) Tour Requirements which states, in part, that contract bulk arrangements may only be made for the purpose of carrying passengers who have purchased inclusive tours which shall include, in addition to air travel, the following features, among others:
- Commercial sleeping accommodations for the total duration of the trip; and
- Ground transportation between airports or surface terminals and commercial accommodations used at all points other than the point of origin of the tour.
[7] As such, Air Canada states that it cannot change the attendant name on the ticket unless the tour operator confirms to Air Canada that the name will also be changed on the land component of the tour package. Air Canada adds that, as the air transportation in this case is not sold to the passenger but to the tour operator, Air Canada could not change the name of an attendant upon request of the passenger but would have to get this permission from the tour operator.
[8] Air Canada further states that, practically speaking, tour operators will disclose the names of the passengers at the last minute and will often remit a coupon to a passenger to exchange at the airport counter. Air Canada adds that tour operators often have a separate check-in counter at the airport.
The Agency's analysis and findings
Contractual fares that form part of tour packages
[9] Air Canada only refers to contract bulk arrangements when it describes that it could not change the name of an attendant upon request of the passenger for tickets sold to a tour operator as part of a tour package. However, the Agency notes that two options exist for contractual purchase of international air transportation that forms part of a tour package:
- Inclusive Tour Charters (ITCs) for charter flights; and
- Contract Bulk Inclusive Tours (CBITs) for scheduled flights.
[10] The Agency is aware that tour packages are ultimately sold to the public by travel agencies. Air carriers therefore do not deal directly with the public with respect to air transportation that forms part of a tour package. The Agency also notes that the Air Transportation Regulations, SOR/88-58, as amended specifically prevent carriers from dealing directly with the public with respect to ITC fares. Therefore, Air Canada would not address attendant name change requests from the public when the tickets form part of a tour package. Rather, such requests would be made by tour operators to the carriers.
[11] ITC and CBIT tickets are sold by air carriers to tour operators pursuant to the terms and conditions of a unique contract between the two parties and in accordance with the carriers' tariff provisions. Air Canada's Charter Tariff, NTA(A) No. 333 (Charter Tariff) contains the ITC provisions. The Airline Tariff Publishing Company – Agent Tariff NTA(A) No. 458 (International Tariff) contains Air Canada's general conditions of carriage for international scheduled services which apply to CBITs.
[12] The Charter Tariff and International Tariff each set out that a ticket is not transferable. However, the Agency notes that the Charter Tariff and International Tariff contain other terms and conditions of carriage related to the transportation of persons with disabilities which are fully under Air Canada's control and which must be followed by the tour operator and passengers. These tariffs provide that Air Canada can limit the number of persons with disabilities and determine who needs attendants and who requires medical assessment.
[13] There is no evidence that Air Canada cannot amend its tariffs to allow attendant name changes on international tickets that form part of a tour package, nor that to do so would result in undue hardship on Air Canada. The issue being examined by the Agency relates to the air portion of the tour operator package, which forms part of the federal transportation network and, as such, falls within the Agency's jurisdiction. Therefore, while tour operators may choose to not allow attendant name changes on land portions of tour packages, Air Canada could, via an amendment to its tariffs, require tour operators to allow flight tickets to be transferable.
[14] Air Canada has not demonstrated that constraints exist that would prevent it from changing its policy to allow international tickets that form part of tour packages to be transferred from one attendant to another. Air Canada has also not demonstrated the grounds for its claim that it must seek confirmation from the tour operator that the name of an attendant will also be changed for the land portion of a tour package before it may change the name of an attendant on the ticket.
[15] Accordingly, the Agency finds that a policy change to allow attendant name changes on international tickets that form part of tour packages is under Air Canada's control, in the same way as other disability-related provisions in its tariffs.
[16] Air Canada also raises the following issues with respect to attendant name changes on tickets that form part of tour packages: that tour operators disclose passenger names at the last minute; that they often remit a coupon to a passenger to exchange at the airport counter; and that tour operators often have a separate check-in counter at the airport.
[17] The Decision recognizes that Air Canada needs time to address operational matters. As such, the Agency found, as reasonable accommodation, that attendant name changes would be allowed prior to commencement of travel from the original point of origin for all Air Canada international flights, at no additional cost, only when a minimum notice of 24 hours in advance of travel from the original point of origin is provided to Air Canada.
[18] Therefore, should Air Canada receive less than a 24-hour notice for an attendant name change, Air Canada would not be expected to make the attendant name change on the ticket.
[19] The Agency finds that Air Canada has not shown that it would result in undue hardship on it to change an attendant's name on an international ticket that forms part of a tour package when the request for the name change is made at least 24 hours in advance of travel from the original point of origin on behalf of a person with a disability who has been predetermined by Air Canada as requiring an attendant.
TICKETS SOLD THROUGH CONSOLIDATORS
Air Canada's comment
[20] Air Canada submits that the typical terms and conditions associated with tickets sold through consolidators are "extremely restrictive, with no changes possible". The carrier explains that tickets are sold at low prices through consolidators who acquire distressed inventory to resell to other travel agents with a mark-up.
The Agency's analysis and findings
[21] In the case of tickets sold through consolidators, carriers sell seats on scheduled flights to consolidators, who then resell these seats to travel agencies. Consolidators do not sell directly to the public. The public purchases the tickets from travel agencies, which determine the selling price for these tickets. The travel agencies issue the tickets, usually on the ticket stock of the carrier. Unlike tour packages where the air carrier does not have direct contact with the public, when tickets are sold through consolidators, the air carrier may have contact with the public, the consolidator and the travel agency.
[22] The Agency understands by Air Canada's reference to the tickets being "extremely restrictive, with no changes possible" that Air Canada is implying that tickets sold through consolidators are non-refundable and non-transferable. However, fare-related conditions in applicable tariffs are established by Air Canada and it is Air Canada which has decided that tickets sold through consolidators are non-refundable and non-transferable.
[23] Although Air Canada imposes restrictive conditions on tickets sold through consolidators, which are ultimately applied by travel agents, the general terms and conditions of its tariffs do apply like all other tickets sold on an international scheduled flight.
[24] As set out above, Air Canada's scheduled general terms and conditions already contain provisions such as the limitation on the number of certain persons with disabilities, the need to travel with an attendant, etc. As also stated above, Air Canada has control over the terms and conditions of the tariffs. There is no evidence that Air Canada cannot amend its applicable tariffs to allow attendant name changes on international tickets sold through consolidators, nor that to do so would constitute undue hardship.
[25] The Agency therefore finds that Air Canada has not shown that it would result in undue hardship on it to change an attendant's name on an international ticket sold through a consolidator when the request for the name change is made at least 24 hours in advance of travel from the original point of origin on behalf of a person with a disability predetermined by Air Canada as requiring an attendant.
CONCLUSION
[26] The Agency finds that Air Canada's policy which does not allow attendant name changes to international tickets that form part of tour packages or to international tickets sold through consolidators constitutes an undue obstacle to the mobility of Ms. Dukoff.
[27] The additional evidence filed by Air Canada in response to the show cause direction is not persuasive and does not adequately demonstrate that allowing attendant name changes on international tickets in respect of tickets sold as part of a tour package or through consolidators will create undue hardship on Air Canada.
ORDER
[28] Air Canada is required, within 30 days from the date of this Decision, to permit on international tickets sold as part of tour packages or through consolidators, without charge, an attendant name change with respect to a passenger who is a person with a disability predetermined by Air Canada as requiring an attendant, when Air Canada has received a request for the attendant name change at least 24 hours in advance of travel from the original point of origin.
Members
- John Scott
- Raymon J. Kaduck
Member(s)
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