Decision No. 478-C-A-2005

July 25, 2005

File No. M4370/A896/02-4

APPLICATION

On March 7, 2005, Aeroflot - Russian Airlines (hereinafter Aeroflot) filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

BACKGROUND

In its Decision No. 76-C-A-2005, the Agency made its determination with respect to a complaint filed by Noor Malik against Aeroflot concerning the carrier's refusal to compensate her for one damaged suitcase, two lost suitcases and certain articles missing from a recovered suitcase, on flights between Toronto, Canada and Mumbai, India on or about July 21 and September 19, 2001.

The Agency determined that Aeroflot failed to apply the terms and conditions of carriage set out in its tariff, contrary to subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended, in refusing to compensate Mrs. Malik in any way. The Agency, therefore, directed Aeroflot to compensate Mrs. Malik within thirty (30) days from the date of the Decision in the amount of CAD$1,988. In addition, Aeroflot was directed to compensate Mrs. Malik for the repair of her damaged suitcase upon receipt of satisfactory proof of repair being provided by Mrs. Malik.

JURISDICTION OF THE AGENCY

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

It is important to stress at the outset that the review 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 the decision since its issuance. 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 change is sufficient to warrant a review, rescission or variance of the decision.

ISSUE

The issue to be addressed is whether the information submitted by Aeroflot in its application for review constitutes a change in facts or circumstances pertaining to Decision No. 76-C-A-2005 since it was issued.

ANALYSIS AND FINDINGS

Aeroflot submitted that Mrs. Malik's right to damages against Aeroflot has been extinguished by virtue of Article 29 of the Convention for the Unification of Certain rules Relating to International Carriage by Air signed in Warsaw on October 12, 1929, as amended (hereinafter the Warsaw Convention), which states, in part, that "The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, [...]."

As the Agency stated in its Decision No. 76-C-A-2005 that it had examined the Warsaw Convention in making the findings set out in that Decision, the Agency is of the opinion that Aeroflot's submission does not raise any new facts or circumstances within the meaning of section 32 of the CTA. A party to an application cannot take advantage of section 32 of the CTA to reargue its case unless there has been a real change in the facts or circumstances since the issuance of the original decision.

In light of the foregoing, the Agency finds that the information provided by Aeroflot does not constitute new facts or circumstances, as contemplated by section 32 of the CTA, pertaining to Decision No. No. 76-C-A-2005 since it was issued.

CONCLUSION

Based on the above findings, the Agency hereby dismisses the application for review of Decision No. 76-C-A-2005. In addition, Aeroflot is reminded of the Agency's direction in Decision No. 76-C-A-2005 to compensate Mrs. Malik.