Decision No. 386-C-A-2015

December 15, 2015

APPLICATION by Saudi Arabian Airlines Corporation carrying on business as Saudi Arabian Airlines, pursuant to section 32 of the Canada Transportation Act, S.C., 1996, c. 10, as amended, for a review of Decision No. 330-C-A-2015.

Case number: 
15-05326

INTRODUCTION

[1] In Decision No. 330-C-A-2015 (Decision) dated October 19, 2015, Noman Khawaja et al (applicants) claimed that Saudi Arabian Airlines Corporation carrying on business as Saudi Arabian Airlines (SAA) refused them transportation on their return flight as they did not meet the visa requirement for stopovers in Saudi Arabia. The applicants stated that they confirmed with SAA, prior to travel, that visas were not required on the return flight.

[2] The Canadian Transportation Agency (Agency) opened pleadings on June 5, 2015. SAA did not file an answer to the application despite acknowledging receipt on June 19, 2015.

[3] In order to complete the file, the Agency requested evidence from the International Air Transport Association (IATA). After this evidence was received, the Agency issued Decision No. LET‑C‑A-50‑2015 on August 27, 2015 and requested comments on the additional evidence. Neither the applicants nor the respondent provided comments despite having acknowledged receipt of the decision.

[4] In the Decision, the Agency found that SAA did not properly apply Rules 25(A)(1)(a)(ii) and 90(D) of its International Passenger Rules and Fares Tariff, NTA(A) No. 324 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), when it refused to transport the applicants and that the applicants were entitled to receive compensation, pursuant to paragraph 113.1(b) of the ATR, in the amount of CAD$11,000, less any refund already provided.

[5] On November 17, 2015, SAA filed an application for a review of the Decision pursuant to section 32 of the Canada Transportation Act (CTA).

ISSUE

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

POSITION OF SAA

[7] SAA states that it was prevented from making timely representations by only being provided 20 days to respond to the matter. SAA compares this time frame with the Federal Courts Rules, SOR/98-106, which provide 60 days to defend an action if served outside of Canada.

[8] SAA argues that transit through a second domestic point may be permissible. However, such a movement, pursuant to the domestic laws of the Kingdom of Saudi Arabia, could not be legally conducted without a transit visa. SAA states that these facts are new and would have been provided if it had been granted a reasonable amount of time to collect the requisite information, seek legal counsel and present the information for consideration to the Agency.

[9] SAA submits that according to its Tariff Rules and the new facts presented above, the applicants were only entitled to receive a refund of the unused portion of the tickets. In addition, SAA claims that if had it been afforded the opportunity and sufficient time to make representations to the Agency, it would have presented a compelling case as to why the applicants are only entitled to this refund. SAA adds that amounts in excess of the damages flowing from the failure to apply its Tariff are not compensatory but rather punitive, as it would be unreasonable to argue that but for SAA’s failure, the applicants would not have incurred those costs.

[10] With respect to the expenses of CAD$500 for taxis and porters that were awarded in the Decision, SAA submits that they are patently unreasonable as the charge per kilometer for a taxi in Lahore, Pakistan is CAD$0.28, and that for CAD$500, one could afford five round-trip taxi fares of a distance of over 175 kilometers.

ANALYSIS AND FINDINGS

[11] Pursuant to section 32 of the CTA:

The Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

[12] The Agency’s practice, which was initially 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.

[13] The review process contemplated by section 32 of the CTA 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. Where it is being alleged that the Agency erred in arriving at its decision, a party may appeal to the Federal Court of Appeal under section 41 of the CTA.

[14] The burden of proof rests with SAA to provide the Agency with some substance and explanation demonstrating that there is a change in the facts or circumstances pertaining to the Decision, and to explain how the change would have affected the outcome.

[15] With respect to SAA’s argument that the domestic laws of the Kingdom of Saudi Arabia during the relevant period would not legally allow certain movements without a transit visa, the Agency finds that it cannot be argued that this information constitutes a new fact as it was discoverable during the initial proceedings by exercising due diligence and could have easily been raised by SAA if it chose to file a submission during the pleadings process.

[16] With respect to the argument that SAA was prevented from making timely representations by only being provided 20 days to respond to the matter, this argument is problematic for several reasons.

[17] Firstly, the allegation that SAA was not provided enough time to file an answer is not a change in the facts or circumstances which would give the Agency jurisdiction to revisit its decision. SAA was advised from the beginning of the formal procedure that it had 15 business days to file an answer to the application. The allegation that SAA was denied procedural fairness is an issue more properly raised on appeal.

[18] Secondly, section 19 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules) provides that the answer must be filed within 15 business days after the date of the notice indicating that the application has been accepted. Therefore, the Dispute Adjudication Rules dictate when the answer must be filed. Moreover, and pursuant to subsection 30(1) of the Dispute Adjudication Rules, a person may file a request to extend or shorten a time limit that applies in respect of a dispute proceeding. In this regard, no request for extension was made by SAA concerning the time limits set out in the opening pleadings letter nor in Decision No. LET‑C‑A‑50‑2015.

[19] Finally, it is noteworthy that the pleadings in this matter were opened on June 5, 2015. The Agency contacted both parties and requested submissions on the information that had been obtained on August 27, 2015. The final decision did not issue until October 19, 2015. At no time during this period did SAA respond to these proceedings, nor did it apply for any time extensions.

[20] In considering the other arguments presented by SAA, the Agency finds that they do not constitute a change in the facts or circumstances pertaining to the Decision. SAA had the opportunity, at the time of the initial application, to plead any argument it considered relevant, but chose not to file an answer to the application. Any allegation that the Agency erred in law or that there was a denial of procedural fairness are not matters that trigger the Agency’s jurisdiction pursuant to section 32 of the CTA.

CONCLUSION

[21] Based on the above findings, the Agency dismisses SAA’s application for a review of 330-C-A-2015">Decision No. 330-C-A-2015.

[22] The Order set out in Decision No. 330-C-A-2015 requiring SAA to compensate the applicants continues to apply.

Member(s)

Stephen Campbell
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