Decision No. 129-A-2014

April 7, 2014

DETERMINATION by the Canadian Transportation Agency on whether Hope Air is operating an air service within the meaning of subsection 55(1) of the Canada Transportation Act, S.C., 1996, as amended.

File No.: 
M4161/H226

INTRODUCTION

[1] In Decision No. 390-A-2013 (Decision), the Canadian Transportation Agency (Agency) determined that an "air service" is one that is:

  1. offered and made available to the public;
  2. provided by means of an aircraft;
  3. provided pursuant to a contract or arrangement for the transportation of passengers or goods; and
  4. offered for consideration.

[2] The Decision informed the air industry of the criteria the Agency will apply, going forward, to determine what constitutes an "air service" within the meaning of subsection 55(1) of the Canada Transportation Act (CTA). The Agency also stated in the Decision that, "If a person believes that the criteria set out in this Determination may impact a previous determination of their requirement to hold an Agency licence, they may request the Agency to reconsider the matter."

[3] On January 15, 2014, Hope Air requested that the Agency review whether Hope Air is presently operating an air service, based on the four criteria identified in the Decision. Hope Air responded on March 2, 2014, to specific questions posed by Agency staff that address each of the four criteria.

ISSUE

[4] Is Hope Air operating an air service?

BACKGROUND

[5] Hope Air is a registered, charitable organization that arranges and provides free flights to Canadians who cannot afford the cost of an airline ticket to travel to a medical appointment or specialized medical technologies that usually exist only in larger urban centres.

[6] Hope Air offers the following programs or services to flight applicants:

  • The Flight Purchase Programwhere cash donations from donors are used to directly purchase flights on commercial airlines for Canadians in need;
  • The Commercial Airline Donation Programwhere Canadian commercial airlines donate seats or flight passes;
  • The Volunteer Pilot Programwhere private pilots from across Canada volunteer their time and general aviation aircraft to service communities not well served by commercial airlines; and
  • The Business Aviation Program(previously referred to as the Corporate Aviation Program) where eligible corporate aircraft owners donate their aircraft and flight crew to transport the flight applicant on, typically, long-haul routes, where the flight applicant has an immune deficiency and commercial air travel would not be appropriate.

[7] In its Order No. 2006-A-674 dated December 22, 2006, the Agency determined that Hope Air, with regard to its Volunteer Pilot Program and its Business Aviation Program, was operating an air service within the meaning of subsection 55(1) of the CTA, in contravention of paragraph 57(a) of the CTA. Accordingly, the Agency ordered Hope Air to cease and desist from operating an air service without holding a licence for that service.

[8] In Order No. 2007-A-29 dated January 26, 2007, the Agency exempted Hope Air from the requirement to hold a licence. The exemption was subject to certain conditions. The Agency also concluded that, in light of the exemption granted, Order No. 2006-A-674 would no longer be in effect.

ANALYSIS AND FINDINGS

[9] Paragraph 57(a) of the CTA provides that no person shall operate an air service unless, in respect of that service, the person holds a licence issued under Part II of the CTA.

[10] Subsection 55(1) of the CTA defines "air service" as a service, provided by means of an aircraft, that is publicly available for the transportation of passengers or goods, or both.

[11] The Agency will now consider, based on the four criteria set out in the Decision, whether Hope Air is operating an air service in respect of any of its services, including its Volunteer Pilot Program and Business Aviation Program.

[12] The Agency has determined that a publicly available service is one that is offered to the public, typically through some form of promotion, advertisement, or solicitation. This is the means through which members of the public can become aware of the service's existence and availability and thereby decide if they would like to contact the air service provider and arrange for air transportation.

[13] Hope Air's services are advertised to the public on the Web and other media such as radio, television, brochures, and through word of mouth from a variety of sources in the community, such as family doctors, social workers, hospitals and clinics where flight applicants receive treatment.

[14] Members of the public interested in Hope Air's services can contact Hope Air by e-mail, facsimile, or telephone and can apply for a flight by completing and submitting the online "Flight Request" form. Flight applicants can also contact Hope Air by e-mail, facsimile, or telephone for an interview with a volunteer or staff member who will go through the required "Flight Request" information.

[15] To be eligible for Hope Air's services, the person must:

  1. travel for approved medical appointment where the cost of the medical treatment is covered by the applicant's provincial health care plan;
  2. not be able to afford the cost of the flight;
  3. be self-ambulatory and not require any medical services on board the aircraft; and
  4. receive medical clearance from a medical professional stating that the flight applicant has no condition that precludes the applicant from travelling in an aircraft.

[16] If the above conditions are met, Hope Air will plan and arrange each flight based on the individual requirements of the flight applicant. Hope Air indicated to the Agency that it endeavors to grant all requested flights, where its eligibility conditions are met.

[17] The Agency determined in the Decision that to ensure that an air service reaches an intended user group, the person who operates the service may impose eligibility conditions on the user. While these conditions may be restrictive, the service could still be considered to be offered and made available to the public if a person, who meets the terms and conditions of carriage, can access the air service.

[18] The Agency therefore finds that Hope Air's services, which are provided by means of an aircraft, are offered and made available to the public.

[19] The Agency also determined in the Decision that a key component of an air service is that there be a contractual or other arrangement that authorizes the use of the air service. The contract or arrangement creates an obligation on the person who operates the service to provide the air service in return for payment of an agreed consideration.

[20] Hope Air requires all flight applicants to complete and submit the online "the Flight Request" forms which is used to plan and arrange the requested flight services and to assess whether the flight applicant meets the above-noted eligibility criteria.

[21] Once Hope Air determines that the flight applicant is eligible for its services, Hope Air will contact the applicant's medical professional to obtain information and confirm whether the applicant is "fit to fly". Subject to the applicant meeting the eligibility requirements and receiving approval from the applicant's medical professional, Hope Air will arrange the air transportation service with its aviation partners.

[22] According to Hope Air, its services are offered and provided completely free of charge to the flight applicant and any escort, nor is any other form of consideration involved.

[23] The Agency therefore finds that Hope Air's services, including its Volunteer Pilot Program and Business Aviation Program, are not provided pursuant to a contract or arrangement for the transportation of passengers or goods for consideration.

CONCLUSION

[24] While Hope Air's services are offered and made available to the public and are provided by means of an aircraft, they are not provided pursuant to a contract or arrangement for consideration. As a result, the Agency finds that Hope Air's services, including its Volunteer Pilot Program and Business Aviation Program, are not an "air service" within the meaning of subsection 55(1) of the CTA. As such, the Agency finds that the exemption from the requirement to hold a licence issued by Order No. 2007-A-29 is no longer necessary.

[25] Consequently, the Agency, pursuant to section 32 of the CTA, rescinds Order No. 2007-A-29.

Member(s)

  • Geoffrey C. Hare
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