Decision No. 84-A-2008

February 29, 2008

APPLICATION by Air Canada for a review of a warning of alleged violation of subsection 116(1) of the Air Transportation Regulations, SOR/88-58, as amended.

File No. L4352/A74/07-1R

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Background

[1] Air Canada holds several licences for the operation of scheduled international services between Canada and several countries and domestic services.

[2] During an inspection at the Toronto Lester B. Pearson International Airport (the Toronto airport), an enforcement officer designated by the Canadian Transportation Agency (the Agency) discovered that Air Canada violated subsection 116(1) of the Air Transportation Regulations (the ATR) on September 27, 2007, in that its personnel did not have a copy of its international published tariff and there was no means available to access the tariff.

[3] Accordingly, on October 2, 2007, the enforcement officer issued a warning of alleged violation to Air Canada which indicates that "... any repetition of this violation at any time within the next 6 years, could result in the assessment of an administrative monetary penalty...". Air Canada also had thirty (30) days to contest the findings of the investigation by filing a request for review with the Agency.

[4] On November 1, 2007, Air Canada filed an application for a review of the warning of alleged violation.

[5] On November 16, 2007, the Agency informed Air Canada that the enforcement officer would not be providing any comments on its application.

Issue

[6] Did Air Canada commit the violation associated with the warning?

Positions of the parties

[7] Air Canada submits that it did not breach its obligations under subsection 116(1) of the ATR.

[8] Air Canada asserts that its international tariff was available at the Toronto airport, Terminal 1 on September 27, 2007. Air Canada acknowledges, however, that it is possible that the particular Air Canada agents met by the enforcement officer did not know that a paper version of the tariff was available in the Customer Service Manager's office at Terminal 1. Air Canada filed an affidavit of the Customer Service Manager attesting to the location of the tariff. Air Canada indicates that the tariffs have now been moved to Air Canada's Main Ticket Office at the Toronto airport, Terminal 1.

[9] Air Canada states that all ticketing agents and their supervisors at the Toronto airport have access via Air Canada's internal reservation system (Res III) to any published fare rules found in its international tariffs and are able to answer questions or to provide a copy to any person upon request.

[10] Air Canada points out that with respect to the availability of the general rules found in its international tariff, Air Canada station Terminal 1- Toronto airport is a subscriber to the Airline Tariff Publishing Company and receives periodic updates to its tariff. Furthermore, airport agents access all Air Canada's policies and procedures via its Central Information Chapters and "have no need to refer to the specific tariff format of the general rules in order to satisfy its customers' request for information pertaining to applicable rules". Air Canada asserts that past experience has shown that requests from the public for copies of tariffs at airports are "very sporadic and limited (no more than a few requests each year)."

[11] Air Canada advises that its full international tariff, as well as domestic, transborder and charter tariffs, are now posted on its Web site which will greatly facilitate the transfer and regular updating of this information.

[12] Air Canada states that it will send a reminder to its airport agents and supervisors regarding their obligation to provide access to tariffs at airports, including information about its new tariff Web page and the fact that it can be used to print hard copies.

[13] Air Canada submits that to ensure public awareness as to tariff availability, its airport group will be raising the public notice requirement with the Greater Toronto Airport Authority to facilitate the posting of an appropriate notice. It adds that this will take some time as airport approval is required for any public sign but it will ensure that the matter is addressed on a priority basis.

[14] Air Canada submits that the issuance of a warning is not warranted under the present circumstances.

Analysis and findings

[15] During an inspection on September 27, 2007, the enforcement officer discovered that Air Canada violated subsection 116(1) of the ATR, as its personnel did not have a copy of its international published tariff and there was no means available to access the tariff at the Toronto airport.

[16] Pursuant to subsection 116(1) of the ATR, every air carrier shall, immediately on filing a tariff with the Agency and thereafter while the tariff remains in effect, keep available for public inspection at each of its business offices a true copy of every tariff in which the air carrier participates that applies to the international services to or from the point where the business office is situated.

[17] Air Canada provided evidence confirming that a copy of the tariff was in the office of the Customer Service Manager at Terminal 1. However, neither the ticket agent nor the lead agent on duty on the day in question had knowledge of this. As a result, the employees could not provide the tariff to the enforcement officer. The Agency is of the opinion that the obligation to "keep available for public inspection" is not satisfied by the mere physical presence of the tariff at a business office. The purpose of this provision is consumer protection and subsection 116(1) of the ATR requires that all tariffs be available and accessible to the public. In this case, Air Canada employees, including a supervisor, could not provide the enforcement officer with access to the requested document. Accordingly, the Agency finds that Air Canada did contravene subsection 116(1) of the ATR, as specified in the warning of alleged violation.

[18] The Agency notes that Air Canada has taken steps to ensure that this will not recur. While this positive action is appropriate in response to the warning, the violation did occur.

[19] The Agency also notes that although the warning only concerned an alleged contravention of subsection 116(1) of the ATR, Air Canada admits to contravening subsection 116(2) of the ATR, that is the requirement that every air carrier must post a notice in a prominent location in each of its business offices indicating where the tariff is located and when it may be inspected.

[20] Had Air Canada not contravened subsection 116(2) of the ATR, its employees would have been aware of the location of the tariff and there likely would have been no contravention of subsection 116(1) of the ATR.

[21] Air Canada is reminded of its obligations under section 116 of the ATR to keep available for public inspection its international tariff and to post a notice advising of the tariff's location and when it may be inspected. These regulatory requirements under section 116 are system-wide and are required to be implemented at each of Air Canada's business offices.

[22] The Canadian Transportation Agency Designated Provisions Regulations, SOR/99-244 were established, in part, to ensure that carriers do not contravene the Canada Transportation Act, S.C., 1996, c. 10, as amended (the CTA) or the ATR. The Agency's enforcement policy provides for a warning on first offence as a less severe alternative to issuing an administrative monetary penalty. The penalty in this case could have been up to $5,000.

[23] The Agency also reminds Air Canada that there are similar requirements for domestic tariffs in section 67 of the CTA. Paragraph 67(1)(a) of the CTA states that:

The holder of a domestic licence shall

(a) display in a prominent place at the business offices of the licensee a sign indicating that the tariffs for the domestic service offered by the licensee, including the terms and conditions of carriage, are available for public inspection at the business offices of the licensee, and allow the public to make such inspections;

Conclusion

[24] The Agency reaffirms that Air Canada committed a violation of subsection 116(1) of the ATR and denies Air Canada's application.

[25] The Agency shall retain a record of Air Canada's violation, bearing the date of the original warning. If Air Canada contravenes subsection 116(1) of the ATR within six (6) years of the date of the original warning, the record of the original warning shall constitute evidence of a first violation, and an enforcement officer may then issue an administrative monetary penalty.

Members

• Raymon J. Kaduck
• John Scott