Decision No. 52-C-A-2012

INTRODUCTION

In Decision No. 416-C-A-2011 dated November 28, 2011 (Decision), the Canadian Transportation Agency (Agency) dismissed the complaint filed by Daniel Bates against Air Canada regarding an additional collection in airfare he incurred as a result of an itinerary change he had made.

On December 3, 2011, Mr. Bates advised the Agency that he wished to “appeal” the Decision on the following grounds:

1. The Decision is invalid because it was not signed by the Agency Members who made that Decision.
2. Contrary to what the Decision states, he did not “allege that Air Canada’s terms and conditions of carriage are unclear, unreasonable and unduly discriminatory”.
3. Contrary to what the Decision states, he did not take issue with the quality of service provided by Air Canada.
4. In light of the foregoing, the law cited by the Agency in the Decision is not applicable to the matter.
5. The Agency failed to request Air Canada to provide proof that an agent had advised Mr. Bates of the need to collect an additional amount.
6. The Agency failed to address the matter of Air Canada’s use of Mr. Bates’ credit card without his prior authorization.

On December 7, 2011, Agency staff advised Mr. Bates of the options available to persons wishing to contest an Agency decision. Agency staff also advised Mr. Bates that he could file an application with the Agency for a review of the Decision under section 32 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).

On December 10, 2011, Mr. Bates submitted that he wished to pursue the matter with the Agency. Air Canada filed an answer to the application.

LEGISLATIVE CONTEXT

Pursuant to section 32 of the 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.

ISSUE

Has there been a change in the facts or circumstances pertaining to the Decision since it was issued which would warrant a review, rescission or variance of the Decision?

ANALYSIS

As indicated in Decision No. 488-C-A-2010, it is important to stress at the outset that the review process contemplated by section 32 of the CTA is not an appeal process. Parties wishing to appeal an Agency decision may proceed before the Federal Court of Appeal pursuant to section 41 of the CTA. Alternatively, they may apply to the Governor in Council, pursuant to section 40 of the CTA, to vary or rescind a decision.

The 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, determine whether such a change is sufficient to warrant a review, rescission or variance of the decision.

The burden of proof rests on the applicant requesting the review to clearly evidence a change in facts or circumstances and to provide the Agency with some substance and explanation demonstrating that the alleged change has arisen since the issuance of the decision. The applicant must also explain how the alleged change affects the outcome of the matter.

Mr. Bates challenges the procedures followed by the Agency in making the Decision and the basis on which the Decision was made, and raises a purported failure of the Agency to address the matter of concern to him. Those may be grounds for an appeal or review which, as noted above, would be a matter for the Federal Court of Appeal or the Governor in Council to address. However, they do not constitute a change of the facts or circumstances within the meaning of section 32 of the CTA.

CONCLUSION

The Agency therefore dismisses the application.