Determination No. A-2019-19

SUMMARY

[1] Horizon applied to the Canadian Transportation Agency (Agency) for a review of the warning letter issued to it with respect to a violation of subsection 116(2) of the ATR.

[2] Horizon requests that the Agency rescind the warning letter.

[3] The issue is whether Horizon violated subsection 116(2) of the ATR.

[4] For the reasons set out below, the Agency finds that Horizon was not in contravention of subsection 116(2) of the ATR at the time of the inspection on July 6, 2018 and rescinds the warning letter issued to Horizon.

BACKGROUND

[5] On July 9, 2018, following a compliance verification conducted on July 6, 2018, the Designated Enforcement Officer (DEO) of the Agency issued a warning letter to Horizon for failing to post tariff signage at its business office in Kelowna, British Columbia (Warning Letter).

[6] On August 7, 2018, Horizon filed a request for a review of the Warning Letter, alleging that it was in compliance with the requirements of subsection 116(2) of the ATR at the time of the inspection on July 6, 2018, and asking that the Warning Letter be rescinded.

THE LAW

[7] Subsection 116(2) of the ATR states that:

116(2) Every air carrier shall display in a prominent place at each of its business offices a sign indicating that the tariffs for the international service it offers, including the terms and conditions of carriage, are available for public inspection at its business offices.

ISSUE

[8] Whether Horizon committed the violation as identified in the Warning Letter.

POSITIONS OF THE PARTIES

Horizon

[9] Horizon submits that the tariff signage which was posted at the time of the inspection was in compliance with subsection 116(2) of the ATR, and it seeks the recession of the Warning Letter.

[10] In support of its application, Horizon provides the written statement of Benoit Hilty, a Horizon Customer Service Agent, who was on duty on July 6, 2018 during the compliance verification conducted by the DEO.

[11] According to Mr. Hilty, upon request of the DEO, he directed the DEO to Horizon’s tariff signage, which was in place and displayed on a regulatory information sign in the lineup for the Horizon check-in counters. Mr. Hilty states that the sign is a large, metal, framed sign and includes specific reference to the availability of Horizon’s tariff for inspection. He further states that the sign also advises passengers that they may see a Customer Service Agent for more information on Horizon’s tariff. Mr. Hilty submits that the sign is located at the head of the check-in line for Horizon passengers and is approximately six to eight feet away from the check-in counter, and that all Horizon passengers are directed through the check-in line and would have to pass by the displayed sign. According to Mr. Hilty, the DEO provided no indication that the wording or the location of the sign was inadequate.

[12] Horizon submits that according to the interpretation note entitled Air Carrier Signage Requirements for Public Inspection of Tariffs (Interpretation Note) published on the Agency’s website, a carrier is considered to have met its obligations when there is a reasonable probability that a passenger will be able to read the sign, which should be placed in close proximity to the business office: baggage drop offs, ticket purchase locations (including check‑in counters). In addition, Horizon submits that the Interpretation Note provides for a variety of means that are available to air carriers to prominently display signs, and that the position of such signs may differ from one location to another.

[13] Horizon further submits that based on Mr. Hilty’s witness statement and the pictures of Horizon’s tariff sign, which are attached to the statement:

1. The sign was placed in close proximity to Horizon’s only business at the Kelowna International Airport;
2. The sign was located at the front of the line for check-in, allowing any passengers checking in for a flight to pass right next to the sign prior to going to the counter thus creating a reasonable probability that a passenger would be able to read the sign; and
3. The sign specifically informs passengers regarding the “inspection of tariff” and the message clearly conveys that Horizon’s tariff is available upon request to a customer service agent.

[14] Horizon submits that given the above, it met requirements for signage pursuant to the Agency’s interpretation of subsection 116(2) of the ATR.

[15] Horizon argues that the DEO, in her submissions, acknowledges that she did not stand in the “check‑in” line where the sign is located in the photo, and that therefore, there is no evidence to dispute that the sign was in place on that date, as stated in Mr. Hilty’s statement.

[16] Horizon states that the Interpretation Note does not specify that tariff signage must be placed “at” the check-in counter, or within a certain distance of the check-in counter. Horizon further states that the Agency allows air carriers flexibility in meeting their obligations under section 116(2) of the ATR and that according to the photos it provided, it is clear that the sign was located at the front of the check-in line, in close proximity to the counter and, as such, there is a reasonable probability that a passenger will be able to read it.

[17] Horizon submits that according to the written statement of Ben Wills, Horizon’s Customer Service Manager, the overwhelming majority of passengers approach Horizon’s check-in counters by travelling through the check-in lines. Furthermore, Horizon submits that it retains uniformed Commissionaires to conduct additional security checks for all Horizon flights to the United States of America, and accordingly, if the passengers were to walk around and approach the check-in counter without entering the line, the Commissionaire would stop them and have them proceed through the line.

[18] Horizon submits that upon receiving the Warning Letter, it wasn’t clear how the DEO reported that there was no signage, when there was and always had been signage posted. Horizon states that it contacted the DEO and asked for her report but it received no answer. In the absence of any direction from the DEO and the upcoming deadline to provide proof of compliance within 30 days of the Warning Letter, Horizon states that it placed additional tariff signage and provided the photographs to the DEO.

[19] Horizon further submits that its decision to place additional signage with the same information on the check-in counters and to send photographs of such to the DEO was not a “corrective” measure, and that it should not be viewed as an admission that the existing regulatory sign was not sufficient to meet Horizon’s obligations under section 116(2) of the ATR.

The DEO

[20] The DEO submits that during the inspection, Mr. Hilty was efficiently able to produce the carrier’s tariff in a reasonable time by displaying the document on the monitor of the computer. According to the DEO, upon inquiring whether there was a sign displayed to the public indicating that the tariff is available for public inspection, Mr. Hilty responded that he was not aware of such document and directed the DEO to the signage placed in front of the counter. The DEO states that the sign at the front of the counter did not have tariff inspection wording. In addition, the DEO submits that Mr. Hilty was unable to show a sign which met the requirements of subsection 116(2) of the ATR despite examining two other signs in an attempt to locate one with the required “inspection of tariff” wording.. As a result, the DEO concludedthat Horizon was in contravention of subsection 116(2) of the ATR.

[21] The DEO submits that the photo of a free-standing metal sign containing “inspection of tariffs” wording, provided by Horizon as part of its application for a review, shows that the sign is located off to the side of the check-in line and therefore lacks prominence as one would only see the content of the sign if they stand in that line. The DEO further submits that if a traveller approached the counter from the side, outside of the queue line, they would not be able to see the sign.

[22] The DEO submits that since the sign is free standing, its display position, angle and direction may change which can make the content of the sign less prominent. The DEO alsopoints out that according to the photos provided by Horizon, the “inspection of tariffs” paragraph on the sign is at the same height level as the stanchion extension, which could potentially cover a part of the contents of the sign.

[23] The DEO states that Horizon took corrective actions in response to the Warning Letter and provided photos of the new signage which is prominently displayed at the check-in counter and is visible to all passengers who approach the agent counters. However, according to the DEO, the Warning Letter issued to Horizon remains valid.

ANALYSIS AND DETERMINATION

[24] The Agency has reviewed and considered all of the evidence received, including the written statements of Mr. Hilty and Mr. Wills, and the photographs provided by Horizon and the DEO.

[25] According to the Interpretation Note, with respect to the airport terminals, the obligation under subsection 116(2) is considered to be met where there is a reasonable probability that a passenger will be able to read the sign, which should be placed in close proximity to the ticket purchase locations and baggage drop-off locations including check-in counters where baggage is tendered. The Interpretation Note also provides that “A variety of means are available to air carriers to prominently display signs. The most suitable means to efficiently and effectively convey the information to passengers may differ from one location to another”.

[26] According to the photographs provided by Horizon, it is clear that the metal sign which appears to display the section on “inspection of tariffs” is located several feet from the check-in counter and is facing where passengers queue up to check in or drop off their baggage.

[27] In addition, according to Mr. Hilty’s written statement, the sign is placed at the head of the check‑in line and was there at the time of the DEO’s inspection. The DEO does not dispute Mr. Hilty’s statement that the sign was there at the time of the inspection and points out that she did not stand in the check-in line.

[28] The Agency notes the evidence provided by Horizon and its employees with respect to the positioning of the sign and the explanation that circumstances require that passengers approach the check-in counter via the check-in line. In light of this, the Agency is of the opinion that the positioning and the wording on the metal sign comply with the requirements of subsection 116(2) of the ATR and is consistent with the Interpretation Note.

CONCLUSION

[29] In light of the above, the Agency finds that at the time of the inspection on July 6, 2018, Horizon was not in contravention of subsection 116(2) of the ATR.

[30] Accordingly, the Agency rescinds the Warning Letter issued to Horizon.