Decision No. 294-C-A-2014

August 4, 2014

APPLICATION by Keith Barth pursuant to section 32 of the Canada Transportation Act, S.C., 1996. c. 10, as amended.

File No.: 
M4120-3/14-03307

APPLICATION

[1] In Decision No. 202-C-A-2014 dated May 27, 2014, the Canadian transportation Agency (Agency) dismissed 83 complaints, among which was one filed by Keith Barth, respecting the cancellation by Swiss International Air Lines Ltd. also carrying on business as Swiss (Swiss) of tickets purchased for carriage from Yangon, Myanmar to Montréal, Quebec, Toronto or Ottawa, Ontario, Canada.

[2] On June 25, 2014, Mr. Barth applied to:

  1. have the Agency set aside Decision No. 202-C-A-2014 (Decision) on the ground of being denied procedural fairness by reason of insufficient disclosure; and,
  2. be afforded the opportunity to file a reply to Swiss’s answer.

ISSUE

[3] Has there been a change in the facts or circumstances pertaining to the Decision since it issued that would warrant a review, rescission or variance of the Decision?

POSITIONS OF THE PARTIES

Mr. Barth

[4] Mr. Barth states that in Decision No. LET-C-A-12-2014, the Agency provided Swiss with the opportunity to file an answer to the complaints by March 24, 2014, and the complainants until April 4, 2014 to file their respective replies. He states that he had no knowledge of Swiss’s answer until the Decision was issued, and that on May 29, 2014, after communicating with Swiss, he received Swiss’s answer, which was incomplete.

[5] Mr. Barth argues that in neglecting to disclose its answer in a timely manner, Swiss has violated procedural fairness and has denied him the right to a fair hearing.

Swiss

[6] Swiss indicates that it inadvertently failed to provide its answer to Mr. Barth on March 24, 2014. However, it adds that Mr. Barth received Decision No. LET-C-A-12-2014, in which the Agency established timelines for the filing of submissions by all parties. Swiss also states that Mr. Barth was in receipt of the May 8, 2014 letter of Swiss requesting permission from the Agency to file further submissions in response to the replies filed by the complainants. According to Swiss, it plainly referenced its March 24, 2014 submission in its May 8, 2014 letter. Swiss states that Mr. Barth also received the Agency’s May 9, 2014 e-mail, which also made reference to Swiss’s March 24, 2014 submission.

[7] Swiss states that Mr. Barth, in his communication with Swiss on May 28, 2014, acknowledged receipt of Swiss’s and the Agency’s correspondence.

[8] Swiss maintains that given the communications from Swiss and the Agency, it would have been reasonable for Mr. Barth to inquire about Swiss’s answer prior to the issuance of the Decision, but he failed to do so.

[9] Swiss argues that in light of the foregoing, Mr. Barth has waived his right to assert a breach of procedural fairness. According to Swiss, the jurisprudence clearly indicates that issues relating to procedural fairness must be raised at the earliest opportunity. Where a party to a proceeding has sufficient knowledge to afford the party an opportunity to participate, there is no denial of procedural fairness.

[10] Swiss contends that Mr. Barth’s application should be denied, or alternatively, given what has transpired to date, the Agency should direct Mr. Barth to show cause why the Agency should not make the same determination as it did in the Decision.

Mr. Barth

[11] Mr. Barth states that Swiss’s letter requesting permission from the Agency to file a further response suggested that it was clear to a reader that Swiss had filed an earlier response. According to Mr. Barth, that was not the case. He argues that the reader must be experienced in legal formalities to understand that Swiss is making reference to the answer that was due on March 24, 2014. Mr. Barth indicates that he understood the letter as being an attempt by Swiss to file a late response, and not a submission additional to its answer, and the Agency’s May 9, 2014 e-mail as being a denial of Swiss’s late attempt to file an answer.

[12] Mr. Barth disputes Swiss’s submission that, in his communication with Swiss on May 28, 2014, he acknowledged awareness of “submissions, replies, responses and answers”.

ANALYSIS AND FINDINGS

[13] Pursuant to section 32 of the Canada Transportation Act (CTA), the Agency may review, rescind or vary any decision made by it if, in the opinion of the Agency, since the decision, there has been a change in the facts or circumstances pertaining to the decision.

[14] The review process contemplated by section 32 is not an open-ended authority for the Agency to review its decisions, nor is it an appeal mechanism. The Agency’s jurisdiction under this section is limited and only arises if there has been a change in the facts or circumstances pertaining to the decision since its issuance. Parties wishing to appeal an Agency decision may proceed before the Federal Court of Appeal under section 41 of the CTA.

[15] The Agency’s practice, which was first fully set out in Decision No. 488-C-A-2010, is to first determine whether there has been a change in the facts or circumstances relating to the decision. If no such change exists, the decision stands; however, if the Agency finds that there has been a change in the facts or circumstances since the issuance of the decision, the Agency must then determine whether that change is sufficient to warrant a review, rescission or variance of the decision.

[16] The wording of section 32 must generally be construed to include only facts or circumstances that did not exist at the time of the initial hearing or were undiscoverable by the applicant through exercise of due diligence at the time of the initial hearing.

[17] The burden of proof rests with the applicant to provide the Agency with some substance and explanation demonstrating that the alleged change in the facts or circumstances has arisen since the decision. The applicant must also explain how the alleged change affects the outcome of the matter.

[18] The burden rests with Mr. Barth to demonstrate that there has been a change in the facts or circumstances since the issuance of the Decision.

[19] The evidence on file strongly suggests that given the references in Swiss’s May 8, 2014 letter and the Agency’s subsequent communication to Swiss’s answer, which Mr. Barth received, the existence of that answer should have been “discoverable” by Mr. Barth during the initial proceedings. Mr. Barth’s submissions that he understood those references to relate to something other than Swiss’s answer are not persuasive. The Agency therefore finds that Mr. Barth did not provide the Agency with some substance and explanation demonstrating that there has been a change in the facts or circumstances since the issuance of the Decision.

[20] Even if the Agency were to come to the conclusion that Mr. Barth had demonstrated a change in the facts or circumstances since the issuance of the Decision, the Agency would then have had to determine whether the change was sufficient to warrant a review, rescission or variance of that Decision. Mr. Barth has simply argued that he was denied the right to participate in the proceedings because of Swiss’s failure to provide him with its answer in a timely manner, and has not brought any substantive arguments that might persuade the Agency that the alleged changes or circumstances would affect the outcome of this matter.

CONCLUSION

[21] In light of the above, the Agency dismisses Mr. Barth’s application.

Member(s)

Sam Barone
Geoffrey C. Hare
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