Agency Rulings

Order No. 2003-A-612

December 11, 2003

IN THE MATTER OF an application by Cubana de Aviacion S.A. for an exemption from the application of subsections 110(1), (4) and (5) of the Air Transportation Regulations, SOR/88-58, as amended, to permit Cubana de Aviacion S.A., without having a valid tariff on file with the Canadian Transportation Agency, to carry passengers who had previously purchased transportation from Lineas Aereas Costarricenses, S.A., doing business as LACSA, to travel between Canada and Cuba, during the period commencing on December 1, 2003 and ending on January 27, 2004.

File No. M4110/C461-2

Cubana de Aviacion S.A. (hereinafter Cubana) has applied to the Canadian Transportation Agency (hereinafter the Agency) for the exemption set out in the title. The application was received on November 26, 2003.

In Decision No. 651-A-2003 dated November 20, 2003, the Canadian Transportation Agency (hereinafter the Agency) made its determination with respect to an application filed by Lineas Aereas Costarricenses, S.A. doing business as LACSA (hereinafter LACSA) for authority to operate a total of four round-trip flights per week between San José, Costa Rica, and Toronto, Ontario, Canada, during the 2003/2004 IATA winter season.

Following a review and consideration of the matter, the Agency, by Decision No. 651-A-2003, amended LACSA's Licence No. 90075, pursuant to subsection 78(2) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), to the extent necessary to permit LACSA to operate a total of four round-trip flights per week on the agreed routing, San José-San Salvador-Havana-Toronto, using B767, A320 or equivalent type of aircraft, from November 8, 2003 to November 30, 2003 only.

As a result of that Decision, LACSA may operate only three flights per week after November 30, 2003, in accordance with the Agreement Between the Government of Canada and the Government of the Republic of Costa Rica on Air Transport initialled ad referendum on November 22, 1996.

Due to this reduction in capacity, all of LACSA's previously ticketed passengers can not be accommodated on the remaining LACSA flights. Cubana, by this application, is seeking an exemption from the Air Transportation Regulations (hereinafter the ATR) which would allow it to deviate from the tolls and conditions of carriage set out in Cubana's tariff on file with the Agency and thereby carry previously ticketed passengers without re-ticketing and without extra collection by applying LACSA's tariff provisions. This exemption is requested for the period from December 1, 2003 to January 27, 2004 and only for the purpose of carrying Canada-Cuba traffic.

Upon consideration of the circumstances, including the fact that passengers who had purchased LACSA tickets in good faith could face either cancellation of their journey or extra collection, the Agency is of the opinion that compliance by Cubana with subsections 110(1), (4) and (5) of the ATR is unnecessary in this case. Accordingly, pursuant to paragraph 80(1)(c) of the CTA, the Agency hereby exempts Cubana, for the period from December 1, 2003 to January 27, 2004, from the application of subsections 110(1), (4) and (5) of the ATR in respect of passengers that were previously ticketed on LACSA flights and were destined for Cuba during this same period. This exemption is granted on the following conditions:

1. Cubana shall apply the fares and their associated rules as established by LACSA for the previously ticketed passengers; and,
2. Cubana shall apply to LACSA's previously ticketed passengers its own General Rules as filed and in effect with the Agency in its Tariff CTA(A) No.  9.

This Order takes effect on November 29, 2003, the date on which its content was verbally communicated to Cubana.