Office Canadian

des transports Transportation

LET-C-A-155-2009
du Canada Agency

October 14, 2009 File No. M4120-3/09-03560

BY FACSIMILE: 514-422-5829

Air Canada Gabor Lukacs

Law Branch
Dorval, Quebec Winnipeg, Manitoba
H4Y 1H4

Attention: Martine De Serres, Counsel, Regulatory

and International

Dear Madam/Sir:

Re: Complaint against Air Canada re: Additional Service Standard Commitments
applicable to Domestic Transportation

This refers to the complaint against Air Canada dated June 8, 2009 filed by Gabor Lukacs with
the Canadian Transportation Agency (the Agency) respecting the above-noted matter.

Pleadings in this matter were opened on June 30, 2009. On July 20, 2009, Air Canada filed
its answer to the complaint, and on July 30, 2009, Mr. Lukacs filed his reply. However, as
Mr. Lukftcs raised new issues in his reply, the Agency, in Decision No. LET-C-A-139-2009
dated August 26, 2009 (the Decision), provided Air Canada with the opportunity to submit an
answer respecting the new issues in question.

MOTION TO DISMISS CERTAIN ELEMENTS OF THE COMPLAINT

In its answer to the Decision, Air Canada filed a motion to dismiss certain elements of Mr.
Lukacs' complaint on the basis that the Agency does not have jurisdiction to evaluate a
complaint based on subsection 67.2(1) of the Canada Transponation Act (CTA) that is
submitted on principle only and that is not founded in the experience of the complainant or on
any alleged facts.

In support of this position, Air Canada argues that it would be procedurally unfair for the
Agency to expect it to respond to unsubstantiated allegations of unreasonableness and that such
complaints are an inefficient use of public resources. More particularly, Air Canada submits
that Mr. Lukacs' allegations are based on neither fact nor suppositions and that it cannot
respond to Mr. Lukacs' "imagined scenarios, since the evaluation of what is reasonable simply
cannot be made in abstracto."(Letter from Air Canada to the Agency, September 15, 2009,
p.4).
. . ./2
Ottawa (Ontario) K1 A ON9 Ottawa Ontario K1 A ON9
www.otc.gc.ca www.cta.gc.ca

Canada
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In a letter to the Agency dated September 18, 2009, Mr. Lukacs responded to Air Canada's
motion and requested its dismissal. In support of his position, Mr. Lukacs cited the Agency's
decision in Black v. Air Canada, Decision No. 746-C-A-2005 (Black) which will be discussed
in further detail below. Mr. Lukacs also argued that, contrary to Air Canada's position,
challenging an air carrier's tariff, even on principle, is an effective way of protecting the
public from being subject to an air carrier's unreasonable terms and conditions.

AGENCY FINDING

In the Black case, Air Canada filed a similar motion to dismiss on the basis that "the Agency
should exercise its jurisdiction only when confronted by 'a real and precise factual background
involving the application of terms and conditions'"(see Black, para. 4).

In that decision, the Agency analysed subsection 67.2(1) of the CTA to determine whether a
fact pattern was required in order for the Agency to be validly seized of a complaint. The
Agency's analysis began with a discussion on who could be a complainant and it found that the
wording of the provision provides it with the jurisdiction to hear a complaint by "any person",
including a person who has not encountered "a real and precise factual background involving
the application of terms and conditions", but who wishes, on principle, to contest a term or
condition of carriage (see Black, para. 5). A similar conclusion was made with regards to
section 111 of the ATRs.

The Agency also decided that, for the purposes of subsection 67 . 2(1) of the CTA, Air Canada
had applied the terms and conditions of the tariff simply "by virtue of incorporating terms and
conditions of transport in a tariff" (see Black, para. 6).

Finally, the Agency came to the following conclusion:

The Agency is therefore of the opinion that it has jurisdiction to consider complaints
that, on principle, allege that terms and conditions of carriage are inconsistent with
subsection 67. 2(1) of the CTA and section 111 of the ATRs.

In O'Toole v. Air Canada, Decision No. 215-C-A-2006, Air Canada also filed a motion to
dismiss on similar grounds. The Agency, citing with approval its decision in Black, denied the
motion and proceeded with the evaluation of the complaint in that case as well.

The Agency has also considered Air Canada's submissions to the effect that requiring it to
respond to abstract allegations is "procedurally unfair". The Agency disagrees with this
position.
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Air Canada has not provided the Agency with any evidence demonstrating that it does not have
enough information to respond to Mr. Lukacs' complaint. The test for determining whether a
term or condition of carriage applied by a domestic carrier is "unreasonable" requires that a
balance be struck between the rights of the passenger to be subject to reasonable terms and
conditions of carriage and the particular air carrier's statutory, commercial and operational
obligations (Del Anderson v. Air Canada, Decision No. 666-C-A-2001).

Air Canada knows what tariff provisions are at issue; it has been provided with the
complainant's submissions to that end and it is reasonable to assume that Air Canada has all the
information relating to its statutory, commercial and operational obligations: the factors to be
submitted by air carriers for consideration by the Agency in its determination of
reasonableness.

Finally, with regards to Air Canada's submission that abstract complaints are an inefficient use
of public resources, the Agency refers to the following policy statement it made in the context
of the Black decision:

Furthermore, it would be inappropriate to require a person to experience an incident

that results in damages being sustained before being able to file a complaint. To require
a "real and precise factual background" could very well dissuade persons from using
the transportation network.

In light of the above, the Agency denies Air Canada's motion to dismiss and will proceed with
the consideration of the complaint.

In addition, the Agency clarifies its position on the definition of the word "unreasonable"
found in subsection 67.2(1) of the CTA. Air Canada's submissions indicate it has interpreted
the Agency's decision in Del Anderson as providing the following definition of the word:

The Canadian Oxford Dictionary defines the word "unreasonable" as "going beyond the
limits of what is reasonable or equitable; not guided by or listening to reason". Black's
Law Dictionary defines "unreasonable" as meaning "irrational; foolish; unwise; absurd;
silly; preposterous; senseless; stupid".

The use of this citation in isolation is misleading, giving the impression that the Agency in Del
Anderson had adopted the dictionary definition of the word as the test for determining a tariffs
reasonableness. Rather, this citation marked the beginning of the Agency's analysis of the
requirements of subsection 67 . 2(1) of the CTA, an analysis which ended with the formulation
of the balancing test mentioned above.

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 LET-C-A-155-2009
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Accordingly, the Agency provides Air Canada with 10 days from the date of this letter to file
its submissions regarding the elements for which the motion to dismiss was filed. The Agency
notes that in its answer to the Decision, Air Canada has already responded to those aspects of
the complaint that are not the object of its preliminary motion to dismiss. If Air Canada wishes
to file further submissions to supplement its response on those issues, it may do so.

Upon receipt of Air Canada's further submissions, Mr. Lukacs will have 5 days to file a reply
to those submissions with the Agency and to serve a copy on Air Canada.

Should you have any questions, you may contact Sylvie Giroux by telephone at (819) 997-640,
by facsimile at 819-953-5686, or by e-mail at sylvie.giroux@cta-otc.gc.ca.

Sincerely,

a-.J--
tif/ M"
ca

Secretary

BY THE AGENCY:

J. MARK MACKEIGAN JOHN SCOTT

Member Member