Decision No. 75-C-A-2003

February 18, 2003

File No. M4370/A74/02-53

APPLICATION

On November 5, 2002, Harvey Wei Zeng filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

In its Decision No. 555-C-A-2002, the Agency dismissed a complaint filed by Harvey Wei Zeng, on behalf of his parents, concerning the application of Air Canada's Aeroplan Program to international travel. More particularly, the Agency found that the enrollment conditions of Air Canada's Aeroplan Program, as set out in the carrier's Passenger Tariff containing Rules and Regulations, Rates and Charges applicable to the Aeroplan Frequent Flyer Program for Transportation of Passengers and Baggage between Points in Canada and Points Outside Canada and also between Points Wholly Within Canada, NTA(A) No. 486, are just and reasonable and not contrary to section 111 of the Air Transportation Regulations, SOR/88-58, as amended.

ISSUE

The issue to be addressed is whether there has been a change in the facts or circumstances pertaining to Decision No. 555-C-A-2002 since it was issued on October 9, 2002 in order to enable the Agency to review, vary or rescind that Decision.

POSITION OF MR. ZENG

In his application, Mr. Zeng submits that, following the issuance of Decision No. 555-C-A-2002, he contacted Delta Air Lines, Inc. (hereinafter Delta), US Airways, Inc. carrying on business as US Air, US Airways or US Airways Shuttle (hereinafter US Air), Continental Airlines Inc. (hereinafter Continental), as well as United Air Lines Inc. (hereinafter United), by telephone, and was informed that these carriers would allow mileage accumulation prior to enrollment in their respective frequent flyer programs if requested to do so. According to Mr. Zeng, Decision No. 555-C-A-2002 was therefore based on incorrect information.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by Mr. Zeng.

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

The review process contemplated by section 32 of the CTA is not an open-ended authority for the Agency to review its decisions and orders. 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 its decision or order since its issuance. Accordingly, before reviewing one of its decisions or orders, the Agency must first determine whether there has been a change in the facts or circumstances pertaining to its decision or order.

In the course of the Agency's investigation into Mr. Zeng's complaint, the Agency reviewed the terms and conditions of the frequent flyer programs contained in the tariffs on file with the Agency and the frequent flyer brochures of certain carriers, including Northwest Airlines, Inc.,US Air, United, American Airlines, Inc., Société Air France carrying on business as Air France, and Qantas Airways Limited. As a result of its review, the Agency found that it is a common practice among these carriers to not permit mileage accumulation prior to enrollment in frequent flyer programs.

Following receipt of Mr. Zeng's application, Agency staff contacted the carriers referred to in the application, and was advised by telephone that, subject to certain conditions, such as time since the travel occurred and the documentation held by the passenger, US Air, Continental, and United do permit mileage accumulation prior to enrollment. A review of Delta's tariff and frequent flyer brochure revealed that this carrier permits mileage accumulation prior to enrollment.

The Agency is of the opinion that the information submitted by Mr. Zeng in the application constitutes a change in the facts pertaining to Decision No. 555-C-A-2002 since it was issued, within the meaning of section 32 of the CTA. Therefore, the Agency will now review that Decision.

The Agency recognizes that discrepancies exist between the written information regarding mileage accumulation prior to enrollment in frequent flyer programs, as found in the respective carriers' tariffs and frequent flyer brochures, and the information provided by these carriers over the telephone. However, the fact that some carriers may permit mileage accumulation prior to enrollment in frequent flyer programs does not necessarily make the enrollment conditions applicable to Air Canada's Aeroplan Program, which do not permit such accumulation, unjust or unreasonable. The Agency also notes that the enrollment conditions applicable to Air Canada's Aeroplan Program apply equally to all new members of the program.

CONCLUSION

The Agency determined that there has been a change in the facts or circumstances pertaining to Decision No. 555-C-A-2002 since it was issued and therefore it reviewed that Decision. However, for the reasons set out above, the Agency will not vary that Decision.