SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent concerning its refusal to transport them and their pet dog from Toronto, Ontario, to Bogotá, Colombia, on September 24, 2017. Although the applicants had met the current Colombian entry requirements for pets, the respondent’s personnel applied incorrect information contained in the Travel Information Manual (TIMATIC) and refused them transportation until they met the more stringent TIMATIC requirements.

[2] On July 4, 2019, the Agency issued Decision No. LET-C-A-48-2019, where it found that the respondent failed to properly apply its International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458 (Tariff), as required by subsection 110(4) of the ATR, when it refused transportation to the applicants and their dog. The Agency directed the respondent to show cause why corrective measures should not be ordered in this case.

[3] On August 19, 2019, the respondent filed its answer to Decision No. LET-C-A-48-2019, which closed the pleadings.

[4] This Decision will address the following issues:

• Does the Agency have jurisdiction to review the respondent’s decision to rely solely on the TIMATIC when determining whether a passenger meets the travel document requirements?
• Should the respondent be required to develop policies and procedures to allow personnel to validate travel document requirements through sources other than the TIMATIC if presented with conflicting information?
• What are the mechanisms that the respondent has to reconcile discrepancies between the TIMATIC’s and passengers’ information to ensure that proper travel document requirements are applied.

[5] For the reasons set out below, the Agency orders the respondent to:

• amend its Tariff to include a statement that the travel document requirements applied by the carrier are those provided by the International Air Transport Association (IATA) in the TIMATIC and that they can be found on IATA Travel Centre’s website, and to file with the Agency the revised Tariff rule, as soon as possible and no later than August 14, 2020; and
• begin communicating this information to passengers in advance of international air travel, for example, by posting a notice on its website and by including the information on passenger tickets. This is to be done as soon as possible and no later than November 10, 2020.

PRELIMINARY MATTER

[6] On August 27, 2019, the applicants filed a submission outside of pleadings.

[7] Section 34 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules) provides a mechanism for a party to file a request for consideration of a submission outside of pleadings. In this case, the applicant did not make such a request; however, the Agency finds that the submission filed by the applicants may be relevant to its determination. Accordingly, the Agency exercises its discretion, under subsection 5(2) and section 6 of the Dispute Adjudication Rules, and places the applicants’ submission on the record of these proceedings.

THE LAW AND RELEVANT TARIFF PROVISIONS

[8] Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff.

[9] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR provides the Agency with the authority to direct the carrier to:

a) take the corrective measures that the Agency considers appropriate; and

b) pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and
    conditions set out in the tariff.

[10] Section 122 of the ATR, in respect of international carriage, provides as follows:

Every tariff shall contain

(a) the terms and conditions governing the tariff generally, stated in such a way that it is clear as to how the terms and conditions apply to
     the tolls named in the tariff;

…

(c) the terms and conditions of carriage, clearly stating the air carrier’s policy in respect of at least the following matters, namely,

…

(xiv) refusal to transport passengers or goods,

….

[11] In Decision No. 459-C-A-2014 (Kevin Krygier v WestJet, Air Canada, Air Transat, Sunwing, Jazz and Porter), the Agency found that the list of the terms and conditions of carriage referred to in paragraph 122(c) of the ATR that a carrier must address in its tariff is non-exhaustive and that the Agency has the authority to order a carrier to include any other term and condition of carriage in its tariff.

[12] The relevant provision of the respondent’s Tariff is set out in the Appendix.

DOES THE AGENCY HAVE JURISDICTION TO REVIEW THE RESPONDENT’S DECISION TO RELY SOLELY ON THE TIMATIC WHEN DETERMINING WHETHER A PASSENGER MEETS THE TRAVEL DOCUMENT REQUIREMENTS?

Positions of the parties

THE RESPONDENT

[13] The respondent submits that the procedure for verifying entry requirements is not a policy but rather a process and that, therefore, the Agency does not have jurisdiction to review the mechanism by which the carrier verifies entry requirements.

THE APPLICANTS

[14] The applicants assert that the Agency has jurisdiction over interpretation and application of the rules in the respondent’s Tariff, including Rule 55, which relates to the transport of pets and animals.

Analysis and determination

[15] The Agency finds that the respondent’s reliance on the TIMATIC for the purpose of verifying travel document requirements is a policy that constitutes terms and conditions of carriage and that, therefore, the Agency has authority to consider the carrier’s reliance on the TIMATIC. More particularly, this policy relates to the refusal to transport passengers or goods referred to in subparagraph 122(c)(xiv) of the ATR.

SHOULD THE RESPONDENT BE REQUIRED TO DEVELOP POLICIES AND PROCEDURES TO ALLOW PERSONNEL TO VALIDATE TRAVEL DOCUMENT REQUIREMENTS THROUGH SOURCES OTHER THAN THE TIMATIC, IF PRESENTED WITH CONFLICTING INFORMATION?

Position of the parties

THE RESPONDENT

[16] The respondent asserts that there are no reasonable procedures nor processes other than the TIMATIC to validate entry requirements. Furthermore, it states that one case is not “statistically significant” to justify the development and implementation of an entirely new procedure and that policies and procedures should not be developed based on “one-off” cases.

[17] In support of its position, the respondent submits a letter from IATA, dated August 19, 2019, stating that it is a trade association for the world’s air carriers, both passenger and cargo, that supports aviation activity and helps to formulate policy. IATA confirms that it operates the TIMATIC to catalogue immigration, entry and custom requirements as well as clearance requirements as they apply in different countries. IATA describes the TIMATIC as a tool to help air carriers with such requirements that was developed because it is unrealistic for an employee or agent of each carrier around the world to know the regulatory treatment of an almost unlimited number of potential scenarios.

[18] It is IATA’s view that the solution is one of ensuring that changes to relevant requirements are communicated by governments through existing channels, ahead of time, so these changes can be reflected in standardized databases, such as the TIMATIC. IATA indicates that it relies on its relationships with government authorities and other stakeholders in order to keep the TIMATIC entries accurate and current, and that while the TIMATIC cannot be considered as equivalent to law or governmental regulation itself, it is widely considered a comprehensive reference source.

[19] The respondent maintains that there is no alternative to the TIMATIC to verify entry requirements as its frontline agents do not have access to web-based applications and, for security reasons, Internet access on its gate systems is not possible. Furthermore, it claims that its agents are not experts in entry requirement documentation and cannot be expected to determine whether a document contains information that is inconsistent with the TIMATIC. Moreover, the respondent states that entry requirements are “extremely complex, unforgiving of mistakes, and are subject to change at any point.” In addition, source documents are often drafted in “complicated, legislative language,” and in the language of the issuing country.

[20] The respondent maintains that there can be serious and potentially permanent consequences for failing to respect local entry requirements for animals, ranging from quarantine, refusal of entry and even the euthanasia of the animal. In some cases, the carrier can also be fined by the local government if it is found that the carrier has transported an animal in violation of local requirements. Therefore, carriers must be very careful to respect the requirements set out in the TIMATIC.

THE APPLICANTS

[21] The applicants submit that any process for verifying entry requirements should comply with Rule 55 of the respondent’s Tariff. They argue that the TIMATIC can only be recognized as a valid source of information if it contains exactly the same information as foreign regulations, and they state that their case proves that the TIMATIC does not.

[22] The applicants strongly disagree with the respondent’s request “to be permitted to rely on information contained in the TIMATIC, to the exclusion of any other documentation.” The applicants submit that IATA’s letter confirms that the information in the TIMATIC is only a “snapshot” of foreign entry requirements and that differences between the TIMATIC and official entry requirements are possible.

[23] The applicants claim that if the TIMATIC is used universally as claimed by the respondent, then there are likely cases similar to theirs.

[24] The applicants also argue that the use of the TIMATIC should be made known to passengers. The applicants claim that very few passengers are aware of the TIMATIC and its use, and state that there is no mention of the TIMATIC under Rule 55 of the Tariff or any other rule, nor any reference to it on any public page of the respondent’s website. The applicants argue that passengers cannot be expected to comply with requirements coming from an unknown source.

[25] Furthermore, the applicants claim that neither the check-in agent nor the respondent’s reservations or customer service representatives advised them that the information being relied upon was from the TIMATIC or from IATA, but rather were told that Colombian entry requirements were being enforced.

Analysis and determination

[26] The Agency accepts the respondent’s submission that the TIMATIC is the only tool it has to verify travel document requirements and that its employees cannot be expected to have the proper skills, knowledge or training to be experts in the validation of travel document requirements, especially given the multitude of permutations of travel document requirements and the problems inherent in deciphering sometimes complex requirements that may be expressed only in foreign languages.

[27] While the applicants argue that the TIMATIC should not be used to make determinations on whether passengers have the correct travel documents, as inconsistencies can occur between official government requirements and the TIMATIC, the Agency has handled many air travel complaints related to carriers’ refusal to transport based on passengers’ failure to meet travel document requirements, and this is the first time that information in the TIMATIC has been found to be incorrect. All previous decisions of the Agency that refer to the TIMATIC note the authoritative nature of the tool, as indicated in Decision No. 22-C-A-2019 (Li v Air Canada). In balancing the interests of the air industry, on the one hand, to have a tool available to assist carriers’ personnel to quickly identify and understand the plethora of often complex travel document requirements and efficiently assess passengers’ travel documents against those requirements with, on the other hand, the interests of consumers and the possibility of error as a result of government authorities failing to provide information to IATA to update the tool as required, as evidenced by this case, the Agency finds that the tool is adequate and that it is appropriate for the respondent to continue to rely on the TIMATIC to verify travel document requirements.

WHAT ARE THE MECHANISMS THAT THE RESPONDENT HAS TO RECONCILE DISCREPANCIES BETWEEN THE TIMATIC AND PASSENGERS’ INFORMATION TO ENSURE THAT PROPER TRAVEL DOCUMENT REQUIREMENTS ARE APPLIED?

Positions of the parties

THE RESPONDENT

[28] The respondent submits that frontline staff do not have time to address any inconsistencies raised by passengers between the TIMATIC and official sources prior to a flight. It argues that adding complex tasks, such as those suggested by the Agency, would likely result in a delay to the entire flight, potentially causing significant inconvenience to other passengers. Therefore, the respondent asserts that it must be permitted to rely only on the information contained in TIMATIC, to the exclusion of any other documentation.

[29] The respondent also states that the TIMATIC database relies on the accuracy of the information submitted to IATA by government authorities. It maintains that, in the event that an anomaly is identified, the carrier will contact IATA, which investigates the matter with the government in question. If the content in the TIMATIC is inaccurate or outdated, IATA, in collaboration with the government in question, will make the necessary changes to the TIMATIC. The respondent argues that it is inappropriate to place the burden of investigation and liability on the gate agents of an air carrier, who are dependent on governments properly communicating travel document requirements to IATA.

[30] It is IATA’s position that there would be no benefit for frontline staff or managers to verify conflicting information, which may take any number of forms, or to resolve interpretive disputes about the nuances of foreign legislation in some 191 countries.

THE APPLICANTS

[31] The applicants argue that the respondent knew or should have known that the use of the TIMATIC could lead to decisions that were inconsistent with actual regulations. The applicants state that given the possibility for inconsistencies between official entry requirements and the TIMATIC, only the official documents should be considered and the use of the TIMATIC should be discarded. The applicants argue that the TIMATIC should only be used for convenience and, when necessary, to rapidly verify compliance with foreign regulations in lieu of the actual regulations, for example at check-in.

[32] The applicants state that since the use of the TIMATIC may result in erroneous decisions regarding acceptable entry requirement documentation, a clear and efficient dispute resolution procedure should be available and followed in such cases in order to minimize the negative impact to passengers. The applicants claim that the respondent’s existing complaints process is inadequate for such purposes.

Analysis and determination

[33] The Agency accepts the submissions of the respondent and IATA that, although they each play a role in identifying and resolving inaccuracies in the TIMATIC, the ultimate responsibility for the accuracy of the information in the TIMATIC and the timely communication of requirements to IATA falls to the various government authorities. The Agency is satisfied that placing responsibility on carrier personnel to investigate allegations of inaccuracy would be inappropriate as this falls outside of their training, skills and knowledge. Although this results in some risk to passengers when government authorities fail to meet their responsibility to provide the information necessary for IATA to maintain the accuracy of the TIMATIC, the applicants’ complaint is the first time that the Agency has found that the TIMATIC contained inaccurate information that led to a refusal to transport. Under the circumstances, although this resulted in a delay for the applicants, this risk is acceptable given the overall accuracy of the tool and the efficiency and effectiveness it brings to the complex task of assessing travel documents against entry requirements for up to 191 countries.

[34] The applicants’ complaint about the inadequacy of the respondent’s complaint process to handle their concerns in a timely fashion is understandable in the circumstances. The Agency agrees that it is inappropriate for a passenger to discover only at check-in that the tool used by the carrier contains information contrary to the information that they have obtained from the appropriate government authority. Passengers must have a mechanism to identify these potential problems in advance. Accordingly, the Agency finds that the carrier must communicate to all passengers in advance its reliance on the TIMATIC so that passengers can obtain the information that the carrier personnel will apply to them, determine whether that information is consistent with the information that they have obtained from the appropriate government authorities about their travel document requirements and reconcile any anomalies well in advance of travel.

[35] It should be noted that government authorities may change travel document requirements from time to time such that passengers may need to confirm the appropriateness of their travel documents more than once before their travel. This remains within the discretion of each state.

CONCLUSION

[36] In light of the above, the Agency finds that the respondent’s Tariff must reflect its policy of using the TIMATIC to verify travel document requirements, as required by subparagraph 122(c)(xiv) of the ATR, which relates to the refusal to transport passengers or goods. In addition, the respondent must communicate this information to passengers in advance of travel, for example by posting it on its website and by including a notice to this effect on its tickets.

[37] By making its policy explicit and by communicating it to passengers in advance of travel, the respondent will give passengers necessary information about its policy regarding travel documents that they will require to reach their destination and to avoid being refused transportation by the carrier. In addition, it will give advance notice of this information so that passengers can be better prepared to handle rare anomalies in the accuracy of the information such as that experienced by the applicants in this case.

ORDER

[38] The Agency orders the respondent to:

• amend its Tariff to include a statement that the travel document requirements applied by the carrier are those provided by IATA in the TIMATIC and that they can be found on IATA Travel Centre’s website, and to file with the Agency the revised Tariff rule, as soon as possible and no later than August 14, 2020; and
• begin communicating this information to passengers in advance of international air travel, for example, by posting a notice on its website and by including the information on passenger tickets. This is to be done as soon as possible and no later than November 10, 2020.

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APPENDIX TO DECISION NO. 51-C-A-2020

International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458. (Tariff)

Rule 55(A)(7) of the Tariff, in effect at the time of ticketing, states:

   The passenger must make all arrangements and assume full responsibility for complying with any applicable laws, customs and/or other
   governmental regulations, requirements or restrictions of the country, province, state or territory to which the animal is being transported,
   including but not limited to furnishing valid health and vaccination certificates, when required.