Letter Decision No. LET-AT-C-A-21-2020
Request by Air Canada for a stay of Decision No. LET-AT-C-A-51-2019, extending compliance with the second and third elements of the order made in Decision No. 12-AT-C-A-2019 (the Order), pursuant to section 41 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules) and for a review of Decision No. 12-AT-C-A-2019, pursuant to section 32 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).
BACKGROUND
In Decision No. 12-AT-C-A-2019, the Canadian Transportation Agency (Agency) found that Air Canada did not make reasonable efforts to notify the applicant of the reason for a tarmac delay, as required by Rule 80(C)(3) of its International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Tariff). The Agency also found that, when Air Canada did not provide the applicant with the option of disembarking, it did not respect Rule 80(C)(5)(c) of its Tariff. These failures constituted a contravention of subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended.
Based on these findings, the Agency ordered Air Canada to:
- issue a written reminder to its commanders that during a tarmac delay, they must notify passengers of the reason for the delay, if known, as set out in Rule 80(C)(3) of its Tariff;
- issue a notice to the System Operations Control and the commanders that when the time threshold for offering passengers an opportunity to disembark is reached, that offer must be made proactively, even if it is only possible, for practical reasons such as the capacity of the holding area in the airport, to disembark some rather than all passengers; and
- develop criteria for determining which passengers will be disembarked during a tarmac delay, if the number of passengers who indicate an interest in doing so exceeds the number that can be accommodated in an airport holding area. These criteria should include the existence of disabilities that result in discomfort or other difficulties for passengers during an extended tarmac delay, even if these disabilities are only brought to the attention of Air Canada personnel in the course of the tarmac delay.
The Order directed Air Canada to provide a copy of the above documents to the Agency’s Chief Compliance Officer by May 17, 2019.
On May 17, 2019, Air Canada petitioned the Governor in Council (GIC), pursuant to section 40 of the CTA, to rescind or vary Decision No. 12-AT-C-A-2019 (Initial Decision). On the same date, Air Canada requested that the date to comply with the Initial Decision be extended to align with the effective date of the then-anticipated Air Passenger Protection Regulations, SOR/2019-150 (APPR).
In Decision No. LET-AT-C-A-51-2019 (Extension Decision), issued on July 9, 2019, the Agency ordered Air Canada to file the document referenced in the first element of the Order on the basis that it was a requirement of the APPR that came into force on July 15, 2019. As such, there was no basis for delaying the effective date for this element past that date. Air Canada has complied with this requirement.
However, the Agency stayed the second and third elements of the Order until December 15, 2019, at which time Air Canada was required to file a copy of the related documents with the Agency’s Chief Compliance Officer.
On February 3, 2020, Air Canada filed a request with the Agency to stay the Extension Decision and delay the deadline for compliance with the second and third elements of the Initial Decision until such time as the GIC renders a decision on its petition or until December 15, 2020. In the alternative, Air Canada requested a review of the Order, pursuant to section 32 of the CTA.
For the reasons stated below, the Agency stays compliance with the Initial and Extension Decisions until such time that the GIC renders its decision on Air Canada’s petition.
THE LAW
Subsection 41(2) of the Dispute Adjudication Rules sets out the circumstances under which the Agency may, at the request of a party, stay a decision or order of the Agency:
- a review or re-hearing is being considered by the Agency under section 32 of the Act;
- a review is being considered by the Governor in Council under section 40 of the Act;
- an application for leave to appeal is made to the Federal Court of Appeal under section 41 of the Act;
- the Agency considers it just and reasonable to do so.
POSITION OF AIR CANADA
Air Canada argues that it meets the three-part test for granting a stay set out by the Supreme Court of Canada in RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. Air Canada submits that the additional workload resulting from various major events makes it difficult for its staff to be involved in the development of new policies. Air Canada maintains that it currently lacks the resources to develop alternative compliance options to respect the Decisions as it is currently managing the following:
- structural IT changes resulting from the implementation of a new system covering reservations, itineraries and ticketing, which will require 13,000 Air Canada personnel to be trained;
- compliance with the Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244, which come into force on June 25, 2020;
- the coronavirus crisis (COVID-19), which required Air Canada to suspend flights to China temporarily and to redeploy staff;
- the grounding of the Boeing 737 Max.
ANALYSIS AND DETERMINATIONS
Pursuant to subsection 41(2)(d) of the Agency’s Rules, the Agency may, at the request of a party, stay a decision or order if it “considers it just and reasonable to do so.”
The Agency finds that it is just and reasonable to delay the deadline for Air Canada’s compliance with the second and third elements of the Order in the Initial Decision, given that the GIC has not yet responded to Air Canada’s petition and, more importantly, the unanticipated and significant operational challenges that have confronted Air Canada since the issuance of the Extension Decision; notably, the major disruptions related to the COVID-19 pandemic.
CONCLUSION
The Agency, in accordance with paragraph 41(2)(b) of the Dispute Adjudication Rules, grants a stay of the Initial and Extension Decisions, until such time that the GIC responds to Air Canada’s petition.
At this time, the Agency will not consider Air Canada’s proposal to review the Order pursuant to section 32 of the CTA, given that it was presented as an alternative to a stay. However, the Agency notes that Air Canada indicates it has undertaken further analysis on the impacts of the Order and alternative ways the Order’s objectives could be achieved. If Air Canada wishes to make a more fulsome submission in this regard, the Agency will consider whether that submission demonstrates a change in facts or circumstances that would justify a variation of the Order, pursuant to section 32 of the CTA.
Member(s)
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