Decision No. 426-C-A-2009
October 9, 2009
COMPLAINT by Lloyd Alter against Air Canada.
File No. M4120-3/08-50589
INTRODUCTION AND ISSUES
 Lloyd Alter filed a complaint with the Canadian Transportation Agency (Agency) with respect to the handling fee of CAD$50 charged by Air Canada for the transportation of bicycles on board its flights between Canada and the United States of America.
 Mr. Alter alleges that Air Canada's:
- terms and conditions of carriage governing the transportation of bicycles in the transborder tariff are unjust and/or unreasonable under section 111 of the Air Transportation Regulations, SOR/88-58, as amended (ATR); and
- handling fee and terms and conditions of carriage are unjustly discriminatory.
 For the reasons below, the Agency dismisses both aspects of the complaint.
 Mr. Alter submits that he travels with a very small folding bicycle placed inside a bag that meets the size and weight limits of a piece of checked baggage. He states that Air Canada charged him a CAD$50 handling fee for the transportation of his folding bicycle on a trip from Toronto, Ontario, Canada to Boston, Massachusetts, United States of America on November 18, 2008. Mr. Alter argues that Air Canada does not charge a handling fee for the transportation of ski and hockey equipment and that its handling fee for bicycles is discriminatory.
 Air Canada submits that its handling fee for bicycles is neither discriminatory nor unduly discriminatory. Air Canada states that its handling fees for sports equipment are based on additional handling procedures required for certain items, including bicycles. Air Canada explains that bicycles usually require special care as they are picked up at the check-in counter or at the oversized area and hand-delivered to the baggage room, unlike other baggage which is sent down the baggage belt. Air Canada adds that upon arrival, the bicycles are specifically hand-delivered to a special oversized belt or drop-off area. Air Canada indicates that this process is time consuming and results in the removal of an employee from the baggage room, a diversion from this employee's other duties.
 Air Canada advises that it also charges handling fees for other special items that require special handling or the completion of documentation, such as firearms. Air Canada points out that items that do not require special handling or that are not subject to special procedures are not subject to additional handling fees. Air Canada explains that golf bags and skis, for example, can generally be sent down the oversize belt at most airports, as there is a straight belt conveyor. Air Canada argues that bicycles cannot be sent down the belt and usually require an employee from the baggage room to come and pick up the item at departure, and hand-deliver it upon arrival.
 Air Canada states that handling fees for special items are an industry standard and that it actually charges less than other air carriers for such a service. Air Canada filed copies of other major air carriers' tariff provisions for bicycles. Air Canada states that for operational reasons, its agents must treat all bicycles in accordance with its policy applicable to bicycles, regardless of whether they are folding bicycles or of their weight and size. Air Canada argues that its agents must treat all bicycles in the same manner because they are not in a position to know whether folding bicycles require the same handling as a more traditional bicycle and at what size and weight a bicycle stops being subject to special handling.
 Mr. Alter submits that the padded case containing his folding bicycle was sent down the belt like any other piece of checked baggage and that it does not require any special handling beyond what might be given to skis, snow boards or golf clubs. He contends that check-in agents routinely use scales at check-in and charge for those items which exceed the weight and size limits. He argues that if a bag of appropriate weight and size can travel down the belt without special handling, the fact that it contains a bicycle is completely irrelevant. Mr. Alter states that, after he paid the handling fee, he deposited the padded case containing his folding bicycle on the same belt as all of the other baggage, and on arrival, the bag came down the ramp and landed on the carousel with all of the other baggage. Mr. Alter claims that Air Canada's handling fee for bicycles is unduly discriminatory because it treats a bag of appropriate size and weight that needs no special handling different from other bags, simply because it contains a type of bicycle. He contends that the handling fee is unreasonable because his bag needs no special treatment like a conventional bicycle.
 Air Canada advises that it considers bicycles to be fragile items because of the potential damage to the wheels during transportation and that it requires that bicycles be placed in a hard-shell container. It submits that pursuant to applicable international conventions, the carrier may be liable for damages caused to a bicycle even if it is not placed in a "rigid and/or hard shell container specifically designed for shipping".
 Air Canada explains that Mr. Alter purchased a United Air Lines, Inc. (United) ticket for travel on UA Flight 8536, from Toronto to Boston, operated by Air Canada on a code share basis with United. Air Canada submits that Mr. Alter did not have a contractual relationship with Air Canada, that its tariffs were not applicable to Mr. Alter's ticket and that Mr. Alter should have been charged a handling fee of $175 for his bicycle in accordance with United's tariffs. Air Canada points out that, had Mr. Alter's travel been subject to its tariffs, his bicycle would have been treated in accordance with its policy. It would have been placed on the oversized and fragile luggage carrousel (for those airports that have such belts), it would have been transported by hand to the correct flight and, at arrival, it would have been delivered to the oversized/fragile area.
 Mr. Alter contends that the hard shell container of corrugated cardboard which is accepted by Air Canada, would not stand up to conventional baggage handling and has to be treated with special care. He argues, however, that a folding bicycle is designed for easy transport, has folding pedals and handlebars so that they do not protrude and risk being damaged, and that the carrying case for his folding bicycle provides protection that is superior to that of any hard shell container.
ANALYSIS AND FINDINGS
1. Are Air Canada's handling fee and terms and conditions of carriage governing the transportation of bicycles contained in its Transborder Tariff unjust and unreasonable within the meaning of section 111 of the ATR?
 When determining whether a fee, a term or a condition applied by an air carrier is "unjust" or "unreasonable" within the meaning of section 111 of the ATR, the Agency must adopt a contextual approach which balances the right of the travelling public not to be subject to unreasonable terms and conditions with the air carrier's regulatory, operational, and commercial obligations.
 The burden is on the complainant to provide evidence to demonstrate that the air carrier failed to properly apply the terms and conditions of transport set out in its tariff or that these terms and conditions are unjust and unreasonable within the meaning of section 111 of the ATR.
 The Agency is of the opinion that, generally, air carriers should have the flexibility to establish their terms and conditions of carriage and to price their services as they see fit, subject to legislative or regulatory constraints.
 In light of the submissions filed by Air Canada, the Agency accepts that the carriage of bicycles requires additional and special handling procedures that are unique to such carriage. The procedures implemented by Air Canada require that bicycles be picked up at the check-in counter or oversized area and hand-delivered to the baggage room and that, upon arrival, the bicycles be specifically hand-delivered by an employee from the baggage room to a special oversized belt or a drop-off area. Air Canada advised that, in some airports, this process can be quite time consuming and implies the withdrawal of an employee from the baggage room for this special assignment. Air Canada stated that, for operational reasons, its agents must treat all bicycles in accordance with its policy applicable to bicycles, regardless of whether they are folding bicycles or of their weight and size.
 The Agency has examined the justification filed by Air Canada in support of its handling fee of CAD$50 for bicycles and finds such justification to be convincing.
 Furthermore, the Agency finds that the complainant has failed to present compelling evidence that demonstrates that a balance has not been struck between the rights of passengers to be subject to reasonable terms and conditions of carriage and Air Canada's regulatory, commercial and operational obligations.
 Air Canada's policy must apply to a broad range of similar objects and it is not unreasonable that the policy be applied uniformly to the class of objects, notwithstanding that any individual item in the class may have characteristics that differentiate it from the broader category. There may be merit in an employee applying judgment as to whether the exceptional characteristics should exempt the individual item from the treatment or conditions applied to the broad category in which it belongs. However, it is also not unreasonable that an air carrier insist that the policy be applied uniformly for operational reasons. The failure to do so may, in fact, engender unrealistic expectations on the part of a consumer with respect to their future travel.
 The handling fee for bicycles reflects a bona fide operational cost that is common to the broad class of items identifiable as bicycles and Air Canada, where it is the sole carrier involved, stated that it treats the items uniformly in accordance with the policy. The fee charged is lower than that charged by many other air carriers. While it is clear that the other air carriers who carried Mr. Alter on his round trip have differing policies, the Agency does not require tariffs or policies to be identical.
 With respect to Mr. Alter's bicycle being sent down the regular baggage conveyer by another carrier on his return flight, the Agency notes that handling practices, like tariffs and charges, vary between carriers. The fact that approaches differ is not relevant to the reasonableness of Air Canada's tariff, which must be judged on its own merits.
 The complainant has not demonstrated that Air Canada's handling fee and terms and conditions governing the carriage of bicycles contained in its Transborder Tariff are unjust and unreasonable. Accordingly, the Agency finds that such terms and conditions are not "unjust" and are not "unreasonable" within the meaning of section 111 of the ATR.
2. Are Air Canada's handling fee and terms and conditions of carriage governing the transportation of bicycles contained in its Transborder Tariff unjustly discriminatory within the meaning of section 111 of the ATR?
 The first question for the Agency to consider in determining whether a term or condition of carriage applied by an air carrier constitutes "unjust discrimination" within the meaning of section 111 of the ATR, is whether the term or condition of carriage is discriminatory.
 A term or condition would be discriminatory if it singled out a particular category of traffic for different treatment for reasons that could not be justified.
 In the present case, Air Canada's handling fee and terms and conditions governing the handling of bicycles apply equally to all passengers carrying bicycles, regardless of whether they are folding bicycles or of their weight and size. Most bicycles require special handling and both the fee and the policy are a reflection of this. The Agency finds that there is no evidence before it to suggest that such provisions are discriminatory or that the provisions have been applied in a discriminatory manner.
 Given the Agency's finding that Air Canada's handling fee and terms and conditions governing the handling of bicycles are not "discriminatory" within the meaning of section 111 of the ATR, the Agency need not examine the question of whether such provisions are "unjustly discriminatory".
 In light of the foregoing, the Agency dismisses the complaint.
- Raymon J. Kaduck
- Jean-Denis Pelletier, ing./P. Eng.