Decision No. 459-C-A-2014

December 31, 2014

COMPLAINT by Kevin Krygier against WestJet, Air Canada, Air Transat A.T. Inc. carrying on business as Air Transat, Sunwing Airlines Inc., Jazz Aviation LP, as represented by its general partner, Aviation General Partner Inc. carrying on business as Air Canada Jazz, Jazz and Jazz Air, and Porter Airlines Inc.

Case number: 
13-03258

INTRODUCTION

Background

[1] On September 7, 2012, Mr. Krygier booked travel for himself, his wife, his son (7 years old) and his daughter (5 years old) with WestJet, for travel in November 2012, from Vancouver to Calgary. At the time of booking, Mr. Krygier was given the option to reserve seats for each traveller at the cost of $10 per direction, for a total of an additional $80.

[2] The travel agent informed Mr. Krygier that his booking only entitled each traveller to a seat on the flight, as opposed to a specific seat. As such, Mr. Krygier, his wife, and each of his children could be seated separately from each other, depending on the flight load. Nevertheless, it was possible for the family to obtain seating next to each other at no additional charge, should they web check in 24 hours in advance of their travel and be able to find seats adjacent to one another. There were however no guarantees. Mr. Krygier suggested that he pay for the seat selection for his wife and himself and have one child linked to each adult, but he was told that was not possible.

[3] Mr. Krygier does not indicate in his complaint whether he purchased reserved seats.

Complaint

[4] On June 4, 2013, Mr. Krygier filed a complaint with the Canadian Transportation Agency (Agency) against WestJet, Air Canada, Air Transat A.T. Inc. carrying on business as Air Transat (Air Transat), Sunwing Airlines Inc. (Sunwing), Jazz Aviation LP, as represented by its general partner, Aviation General Partner Inc. carrying on business as Air Canada Jazz, Jazz and Jazz Air (Jazz) and Porter Airlines Inc. (Porter) [respondents].

[5] Mr. Krygier maintains that the respondents’ seat selection policies, as they relate to children under 12 years old, are unreasonable. Specifically, Mr. Krygier submits that children are unable to care for themselves, to understand the rules and regulations of air travel, to understand the requisite safety instructions being provided to them, and/or to act independently in an aircraft emergency. Mr. Krygier adds that by treating his children as adults, the air carriers unfairly discriminated against them and put them in a position where their personal safety and well-being may be put at risk.

[6] In a letter dated November 18, 2013, Mr. Krygier clarifies that he is not challenging the respondents’ policies with respect to advance seat selection fees in general. Rather, he states that the purchase of advance seat selection should not be the only way to ensure that a child sits with a guardian.

Legislative context

[7] Subsection 67.2(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), which applies to domestic carriage, states that:

If, on complaint in writing to the Agency by any person, the Agency finds that the holder of a domestic licence has applied terms or conditions of carriage applicable to the domestic service it offers that are unreasonable or unduly discriminatory, the Agency may suspend or disallow those terms or conditions and substitute other terms or conditions in their place.

[8] Section 111 of the Air Transportation Regulations, SOR/88-58, as amended (ATR), which applies to international carriage, states that:

(1) All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just and reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic.

(2) No air carrier shall, in respect of tolls or the terms and conditions of carriage,

(a) make any unjust discrimination against any person or other air carrier;

(b) give any undue or unreasonable preference or advantage to or in favour of any person or other air carrier in any respect whatever; or

(c) subject any person or other air carrier or any description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatever.

[9] The complaint relates to subsection 67.2(1) of the CTA and section 111 of the ATR. The Agency notes that while the terminology used in subsection 67.2(1) of the CTA and section 111 of the ATR is not identical, this terminology broadly refers to the issue of unreasonable or unjust discrimination. Therefore, the Agency is of the opinion that the words “unreasonable” and “unjust discrimination” used in section 111 of the ATR encompass and capture the meaning of the terms used in subsection 67.2(1) of the CTA.

[10] In the interest of efficiency, the Agency will consider this matter pursuant to section 111 of the ATR; however, the Agency’s findings will be equally applicable to the respondents’ international and domestic tariffs.

[11] The Agency also notes that the parties’ submissions refer to children under the age of 12 years old. At the time of travel, Mr. Krygier’s children were 5 and 7 years old. While the CTA and the ATR do not define the term “child”, for the purposes of this case, the Agency considers that the category of people referred to as “children under the age of 12 years old” should exclude “infants”, a term that is defined as “a person under two years of age” in subsection 101.01 (1) of the Canadian Aviation Regulations, SOR/96-433.

PRELIMINARY MATTER

Can the Agency consider both the international and domestic aspects of the complaint?

[12] In response to Mr. Krygier’s complaint, Porter and Sunwing argue, based on different arguments, that the Agency is limited in its ability to address the complaint.

Sunwing

[13] Sunwing states that Canada has entered into numerous open skies bilateral air agreements with other countries, and that according to subsection 78(1) of the CTA, these agreements prohibit Canada and each of the other countries from unilaterally modifying the fares and pricing of the countries’ carriers.

[14] To illustrate this point, Sunwing refers to Article 6 of the Air Transport Agreement between the Government of Canada and the Government of the United States of America signed on March 12, 2007, which states, in part, that:

  • “Price” is defined to include any fare, rate or charge (including discounts, frequent flyer plans or other benefits affecting the cost of air transportation) for the carriage of passengers;
  • Neither party can take unilateral action to prevent the inauguration or continuation of a price proposed to be charged or charged on services between the two countries; and
  • No pricing action can be taken by either country unless there is a feeling that such pricing contravenes certain provisions contained in paragraph 1 of Article 6.

[15] Sunwing also refers to the Agreement on Air Transport between Canada and the European Union and its Member States, signed on December 18, 2009, which states, in part, that while parties to that Agreement may discuss pricing issues which may be unjust or unreasonable, no action can be taken without an amendment to the Agreement.

[16] Sunwing adds that Canada’s international air policy as set out in Blue Sky: Canada’s New International Air Policy, provides that market forces should determine, among other things, prices with respect to air service options. Sunwing asserts that the policy provides that Canadian carriers should have the opportunity to compete in international markets on a reasonably level playing field, and that this would not occur if constraints were placed on Canadian carriers with respect to pricing.

[17] Sunwing therefore requests that the Agency confine its consideration of the complaint to the domestic aspect of the complaint.

Porter

[18] Porter submits that a seat selection fee is not a “condition of carriage” as that term is used in paragraphs 107(n) and 122(c) of the ATR and in various provisions of the CTA. Porter points out that the Governor in Council could have elected to require such fees to be in the tariff but chose not to. Porter adds that “Condition of Carriage” is not defined in the ATR or the CTA, and that for carriage by air, the fundamental contractual terms are carriage of the passenger from point A to point B, in exchange for a fare.

[19] Porter asserts that a seat selection fee is no more a condition of carriage than the cost of a soft drink from a vending machine at the gate area, the purchase of a sandwich on board the aircraft or the payment for use of a carrier’s departure lounge. Porter adds that all those options are available to passengers who value that particular service; however, none are required elements of the carriage such that they may be considered “conditions of carriage” that the CTA concerns itself with.

[20] Porter argues that the Agency does not have the power to alter the required elements established by sections 107 and 122 of the ATR, and additionally, that seat selection fee policies are not mandatory components of a tariff, and cannot be made so by decision of the Agency.

[21] According to Porter, as the complaint does not address a section of Porter’s domestic or international tariff, no remedy is available to the complainant under the CTA or the ATR.

Mr. Krygier

[22] Mr. Krygier disagrees with Porter’s argument that the seating of young children does not constitute a term and condition of carriage. Mr. Krygier submits that the issue in this matter concerns the acceptance of children, a matter that is identified in sections 107 and 122 of the ATR as one of the areas that a carrier’s tariff must explicitly address. Mr. Krygier, however, admits that advanced seat selection is an extra service that provides additional comfort to travellers.

[23] In response to Sunwing’s submissions concerning the open skies bilateral agreements and Canada’s international air policy, Mr. Krygier argues that the substance of his complaint relates to Canadian-based carriers and that requiring air carriers, including Sunwing, to guarantee that child travellers are seated with an accompanying adult guardian does not affect pricing or fares. Mr. Krygier also argues that by enacting the CTA and conferring upon the Agency broad regulatory powers with respect to terms and conditions of carriage, Parliament chose to establish a regulatory scheme. Mr. Krygier submits that Sunwing has been unable to point to any bilateral agreement that would restrict the Agency’s power to disallow unreasonable tolls or terms and conditions. Mr. Krygier also points out that the Agency has in the past disallowed terms and conditions of air carriers operating international services, including foreign airlines.

Analysis and findings

[24] Subsection 55(1) of the CTA defines the term “tariff” as a “schedule of fares, rates, charges and terms and conditions of carriage applicable to the provision of an air service and other incidental services.” The terms “fares”, “rates” and “charges” are set apart in the CTA from the phrase “terms and conditions of carriage” and have a different meaning.

[25] While the CTA does not define the phrase “terms and conditions of carriage”, section 122 of the ATR, in respect of international carriage, provides as follows:

Every tariff shall contain

(a) the terms and conditions governing the tariff generally, stated in such a way that it is clear as to how the terms and conditions apply to the tolls named in the tariff;

[…]; and

(c) the terms and conditions of carriage, clearly stating the air carrier’s policy in respect of at least the following matters, namely,

[…]

(ii) acceptance of children for travel,

[…]

[26] As Mr. Krygier is not challenging the respondents’ tariff provisions respecting seat selection fees, the Agency is of the opinion that the complaint relates primarily to the respondents’ policies and procedures to supplement tariff provisions related to the purchase of advance seat selection, in order to allow for the seating of children with their accompanying guardian (supplemental seating policies and procedures). These policies relate to the matter of carriage of children, as opposed to the purchase of a specific seat for a quantifiable sum.

[27] The matter of “acceptance of children” is narrow and is not inclusive of the broad matter of “carriage of children”. The current complaint does not relate to the children’s ability to be admitted on board an aircraft. Rather, it relates to the carriage of children upon admission.

[28] However, with respect to international carriage, paragraph 122(c) of the ATR states that the tariff should contain the terms and conditions of carriage in respect of “at least the following matters […].” Similar text appears in section 107 with respect to domestic carriage.

[29] Contrary to Porter’s submission, the use of the phrase “at least” in section 107 and paragraph 122(c) of the ATR indicates that the list of matters that shall be contained in a tariff is not exhaustive. Rather, the Agency has the authority to perform a broad interpretation of these two provisions and to consider additional matters that are not otherwise listed therein.

[30] Porter asserts that, in transportation law, a “condition” is a fundamental term of the contract. While Porter is silent on the definition of the word “term”, the Dictionary of Canadian Law defines a “term” as “a contract provision which explains an obligation or a group of obligations imposed on one or more of the parties.”

[31] Pursuant to section 78 of the CTA, the Agency’s finding with respect to international carriage must be made in accordance with the terms of any international agreement relating to civil aviation to which Canada is a party. In this context, the Agency notes that certain international agreements relating to civil aviation to which Canada is a party forbid signatories from taking certain unilateral action on pricing. As such, whether these international agreements impact the Agency’s power to order certain types of relief depends on the characterization of the complaint.

[32] The Agency notes that Canada’s model text definitions, which are contained in the majority of Canada’s “Blue Sky” agreements, state that:

“price” means any fare, rate or charge (including frequent flyer plans or other benefits provided in association with air transportation) for the carriage of passengers (including baggage) and cargo (excluding mail), and the conditions directly governing the availability of applicability of the fare, rate or charge.

“general terms and conditions of carriage” means those terms and conditions which are broadly applicable to the air transportation and not directly related to any price.

[33] Contrary to Sunwing’s submission, the supplemental seating policies and procedures at issue concern the matter of carriage of children. As such, these policies and procedures are broadly applicable to air transportation in general and are not directly related to the price that the respondents charge for advance seat selection.

[34] In light of the above, the Agency finds that the phrase “terms and conditions of carriage” encompasses the matter of “carriage of children” and, therefore, terms and conditions relating to the carriage of children are a matter that must be included in the respondents’ tariffs. With respect to international carriage, the Agency also finds that the present matter does not constitute a pricing matter for the purposes of Canada’s transportation agreements and international air policy.

[35] The Agency will therefore consider both the international and domestic aspects of the complaint.

ISSUES

[36] The issues to be addressed are:

  1. Are the respondents’ supplemental seating policies and procedures unreasonable within the meaning of subsection 67.2(1) of the CTA and subsection 111(1) of the ATR?
  2. Are the respondents’ supplemental seating policies and procedures unduly/unjustly discriminatory within the meaning of subsection 67.2(1) of the CTA and paragraph 111(2)(a) of the ATR?

Issue 1: Are the respondents’ supplemental seating policies and procedures unreasonable within the meaning of subsection 67.2(1) of the CTA and subsection 111(1) of the ATR?

Mr. Krygier

[37] Mr. Krygier states that currently in Canada, children who travel by air are provided two options in order to ensure that they are seated with their accompanying adult guardian:

  1. Pay an advance seat selection fee; or
  2. Gamble in the hopes that the airlines will take steps to seat them with an accompanying adult guardian.

[38] Mr. Krygier points out that he is not challenging the airlines’ policies with respect to advance seat selection fees in general, nor does he suggest that airlines should allow families with children to select their seats in advance (i.e., specific seat numbers) for free. Rather, he is challenging the state of affairs where purchasing preassigned seats is the only way to ensure that young children are seated with their accompanying guardian.

[39] It is Mr. Krygier’s position that air carriers are responsible for ensuring that young children are seated with their accompanying guardian, and airlines cannot charge an additional fee for fulfilling this obligation that is vital for the safety of young travelers. Mr. Krygier explains that what may be a matter of convenience and luxury for adult travelers is a vital need for young children.

[40] Mr. Krygier states that various provincial and federal laws such as the Youth Criminal Justice Act and the Criminal Code distinguish children from adults and treat them uniquely based on their vulnerabilities and/or status within society. Mr. Krygier adds that the United Nations Declaration of the Rights of the Child, 1959 (Declaration), to which Canada is a signatory, also distinguishes children from adults and affords a total of ten unique rights to children, including the right to special care. He also refers to the Charter of Rights and Freedoms.

[41] Mr. Krygier acknowledges that some air carriers have developed policies and trained their personnel to make “every effort” to accommodate children and their accompanying guardian, while some have implemented programs they claim resolve this issue entirely and adequately ensure the safety of child travellers. Mr. Krygier points out that still others have no official policy or program and claim that they manage by resolving issues on a case-by-case basis; however, Mr. Krygier is of the opinion that any such claims are patently false.

[42] Mr. Krygier asserts that what facts are known demonstrate that, despite their stated policies, training and programs, thousands of children are forced to travel separated from their parents or accompanying adult guardian and are left to care for themselves despite medical issues or disability and are exposed to risks such as violence, sexual predators, and others.

Air Canada/Jazz

[43] Air Canada submits that it markets the following fare groups: Tango, Flex, Latitude, Executive Class Lowest and Executive Class Flexible, and that the benefits and features of each fare class differ. Air Canada explains that, for example, Tango is an ultra-low priced, fixed-schedule travel fare without “frills”, whereas Executive Class is the category for full-featured, flexible, business class travel. Air Canada points out that each fare group is priced according to its built-in benefits (i.e., flexibility, refundability, level of Aeroplan mileage accumulation, lounge access, priority check in, seat selections, boarding, baggage handling and an array of special onboard services), and that this gives Air Canada customers the unique ability to select the specific fare category and benefits they need for the type of journey that they are planning.

[44] Air Canada argues that it is therefore not unreasonable to impose the condition that a fee be paid for advanced seat selection for Tango fares. Air Canada submits that the application of this restriction to all passengers travelling with a Tango fare (except for passengers with a disability required to travel with an attendant) is in response to operational and commercial realities associated to air transportation. Air Canada emphasizes that the very nature of this fare structure includes the restrictions and that one category of passengers, namely, those travelling with children under 12, should not be treated differently than other passengers.

[45] Air Canada adds that the fact that lower fare types have an increased amount of restrictions and less included features is an industry practice recognized by the Agency (for example, 397-C-A-2001">Decision No. 397-C-A-2001, 654-C-A-2001">Decision No. 654-C-A-2001, 38-C-A-2002">Decision No. 38-C-A-2002 and 680-C-A-2005">Decision No. 680-C-A-2005) as appropriate in order to differentiate prices in various market segments.

[46] Air Canada explains that while children under 12 are equally subject to the requirement to have an advance seat selection paid when travelling under the Tango fare, Air Canada’s policy in seating children focuses on having them seated beside their accompanying adult.

[47] Air Canada submits that its internal policy and procedures, as included in its internal directory ACPedia, include a section entitled Advanced Seat Selection – General Policy and Procedures – Infants and Children. The portion regarding seating of children includes the following procedures:

If the child and accompanying adult(s) cannot be seated together during advanced seat selection or at check in, the gate agents will do everything possible to seat the family together as follows:

    • The check-in agent will comment on the Departure Control System record and advise the customer to proceed to the gate.
    • When seats are released (i.e. when the check-in deadline expires), the gate agent will evaluate the seats available and rectify the situation.
    • If no seat is available, the agent will ask for volunteers among the customers to change seats.
    • If no customer volunteers, the gate agent will turn to the purser to move customers.

[48] Air Canada explains that if, following these steps, a child remains seated separately from their parent or legal guardian once on board the aircraft, flight attendants will then use their best efforts in reseating children under 12 years of age with the accompanying adult. Air Canada adds that in the unlikely event that, notwithstanding all of the above, it is not possible to have the child sit with the accompanying adult, Air Canada’s flight attendant manual provides that the child will receive an unaccompanied minor briefing.

[49] Air Canada points out that even if it were to waive the advanced seat selection fee, there would be no guarantee that a child under 12 would be seated beside the accompanying adult. Air Canada refers the Agency to Rule 115(D) of its Domestic Tariff and Rule 10(C) of its International Tariff, which contain an absence of guarantee concerning advance seat selection.

[50] Air Canada submits that it is not always possible, from a safety perspective, to ensure that complete families are always seated together. For example, in the case of families with infants, only one extra oxygen mask is located per seat bank. As such, two individuals, each holding an infant, could not be seated in the same seat bank if the third seat is occupied. Air Canada states that such important safety limitations warrant the current policies and procedures that it applies.

[51] In terms of other considerations, Air Canada contends that it is not uncommon for families to travel on separate booking records, where part of the travelling party is using frequent flyer points; some are using affinity points from a program such as Air Miles and others using a revenue ticket. Moreover, Air Canada points out that in certain provinces such as Quebec, it is the law for women when marrying to keep their last names. The children may have the mother’s, the father’s, or a combination of both names. All of these factors demonstrate that an automated system is not necessarily the solution.

[52] Nevertheless, Air Canada submits that it has a comprehensive policy in place to address the seating of children under the age of 12. Air Canada points out that there are methods that an accompanying adult can use in order to sit beside their children, which include purchasing a different fare ticket or purchasing advance seat selection. Air Canada asserts that ultimately, all Tango ticket holders who have opted not to pay the advance seat selection fee, as well as other higher fare holders who were not able to select adjoining seats, will rely on Air Canada’s check‑in, airport and onboard procedures to seat the child next to the accompanying adult. Air Canada reiterates that its procedures ensure, to the extent practicable, that a family who purchases Tango fare tickets for a flight and who opts to not pay advance seat selection fees will be seated together for that flight.

[53] Regarding Mr. Krygier’s argument that Principle 4 of the Declaration demonstrates that it is discriminatory and/or unreasonable to not have a child and the accompanying adult sit next to each other, Air Canada submits that Mr. Krygier is attempting to “make a farfetched application of core human principles in a manner inconsistent with the very purpose of these instruments, i.e. protecting the human rights of children.”

Mr. Krygier’s reply to Air Canada

[54] Regarding Air Canada’s submission that factors such as differences in surnames affect a carrier’s ability to provide for family seating in advance, Mr. Krygier submits that such issues can be resolved by Air Canada’s own reservation, check-in, gate and onboard personnel. Mr. Krygier points out that Air Canada has essentially indicated that it already relies on these personnel for such a purpose.

[55] According to Mr. Krygier, Air Canada has failed to demonstrate how its ability to meet its statutory, commercial and operational obligations would be adversely affected if it were required to seat all children, without any additional charge, next to their accompanying adult guardian. Therefore, Mr. Krygier submits that it is unreasonable for Air Canada to charge an extra fee for allowing children to travel safely, while seated with their accompanying adult guardian.

Porter

[56] With respect to its seating procedures, Porter explains that twenty-four hours prior to departure, a computer assigns seats to those passengers who have not already selected their seats. Porter submits that the computer program gives priority to seating adults and children together where they are booked on the same itinerary. Additionally, passengers may contact a Porter service representative directly and make a request to be seated with their children. Porter explains that such a request could be made during the booking process or after booking has been completed. Porter points out that although accommodation cannot be guaranteed, this is another manner of obtaining an adjacent seat to one’s child without paying an advance seat selection fee.

[57] Concerning operational considerations, Porter submits that there are a myriad of practical problems associated with a prohibition on advance seat selection fees. Porter maintains that implementation would be difficult and impractical (for example, applying a policy to a variety of related circumstances such as travel by youth sports teams, cultural groups, or teachers and students). Nevertheless, Porter states that in the vast majority of cases, advance seat selection can be accommodated.

[58] During the course of these proceedings, Mr. Krygier requested Porter to answer the question of whether Porter had a policy similar to that found on British Airways’ Web site, which states in part that British Airways will make sure that each child is seated with an adult in the travelling group. Porter responded that it had a similar policy, but also referred Mr. Krygier to a condition of carriage on British Airways’ Web site stating that British Airways “[…] cannot guarantee that you will be able to sit in any particular seat.” Porter explains that there appear to be similarities between British Airways’ policy and that of Porter’s, in that both carriers make best efforts to accommodate seating requests of adults travelling with children, but ultimately cannot, and do not, guarantee any seating assignment.

Mr. Krygier’s reply to Porter

[59] Mr. Krygier submits that while Porter claims that advance seat selections can be accommodated in the vast majority of cases, Porter provides no evidence, such as records or statistics to support that assertion.

[60] Mr. Krygier states that while Porter compares its policies and procedures regarding its child seating and advance seat selection policies to those of British Airways, Porter neglects to highlight British Airways’ policy, which states that on British Airways, you can “choose seats for the whole family so that you be sure that you’re seated together,” and you can “make sure each child is seated with an adult from your group” at no cost to the traveller should the traveller choose not to purchase advance seat selection. Mr. Krygier therefore concludes that while Porter indicates that it maintains a comparable policy to that of British Airways, the policies that Porter provided to the Agency contain no provision to guarantee that each child is seated with an adult from the group. Mr. Krygier therefore concludes that Porter either misstates its policies or its practices do not match its written policies.

[61] Nevertheless, Mr. Krygier argues that, as Porter has accepted the principle that children are entitled to be seated next to an accompanying adult guardian without further payment, there is no reason or justification for not including this provision in Porter’s tariff.

[62] Mr. Krygier asserts that as the data provided by Porter demonstrates, including such a policy into Porter’s tariff would not affect the carrier’s ability to meet its statutory, commercial or operational obligations. Mr. Krygier adds that he is of the opinion that the terms and conditions set out in Porter’s tariff are unreasonable and do not match Porter’s practices, as conceded by Porter, in response to the question of whether Porter had a similar process to that of British Airways.

Sunwing

[63] Sunwing submits that a parent or guardian has two options when travelling with a child. Firstly, for a small fee, advance seat selection is available at the time of booking in order to ensure at that time that the child will be sitting with their parent or guardian. Secondly, should the parent or guardian not wish to obtain that assurance at the time of booking, in most instances, Sunwing’s policies will ensure such seating either at the time of check in or at the time of boarding.

[64] Sunwing submits that the basic issue to be considered is whether a child can be assured of sitting with their parent or guardian.

[65] Sunwing states that it does not have any written policy or bulletin concerning the seating of children with the accompanying guardian; however, it places great emphasis on the training of its personnel, in particular, its cabin crew, to offer sincere consideration to all customers’ needs, especially those with special needs. During its fall “refresher training” of all existing cabin crew, emphasis was placed, amongst other things, on problem-solving. The obligation of each flight crew member is to do everything possible to solve the problem of the customer, including coming up with alternative solutions for the customer. As part of this process, flight attendants are encouraged to not only fully request details as to the problem but also consider suggested solutions by the customer. At the service level, customer happiness and satisfaction is the prime objective of the company.

[66] Sunwing points out that approximately 25 percent of its average flight is made up of advance seat selection passengers, with the balance choosing their seat at check in. Sunwing states that substantial unallocated seats are available for passengers at check in. Sunwing adds that in addition to this unallocated seat selection availability at check in, two rows of six seats each are always set aside for passengers having special requests for seat selection at check in. Sunwing adds that it has never had a complaint with respect to the seating options available to a parent or guardian of a child.

[67] Sunwing submits that notwithstanding the material submitted by Mr. Krygier, there is no U.S. legislation or regulation requiring a carrier to provide advance seating at the time of booking in order to ensure that a child sits with their parent or guardian. Furthermore, to the best of Sunwing’s knowledge, no such legislation or regulation is being contemplated.

[68] Sunwing submits that there is no validity to Mr. Krygier’s argument that the failure of a Canadian carrier to ensure a child’s advance seat selection at no cost at the time of booking is contrary to the Declaration and is therefore unjust and unreasonable. Sunwing explains that the Declaration is a non-binding resolution of the United Nations General Assembly intended to address such things as “non-therapeutic circumcision of male children”. As such, Sunwing argues that the Declaration has no relationship to a Canadian air carrier charging a small fee in order to provide advance seat selection for a child and their parent or guardian.

Mr. Krygier’s reply to Sunwing

[69] Mr. Krygier submits that Sunwing has not tendered any evidence to substantiate its claims with respect to the efficiency of its internal policies and procedures; on the contrary, Sunwing has explicitly stated that it does not have any data or statistics related to the effectiveness of its policies, procedures, or training to ensure that children are seated with an accompanying adult guardian.

[70] Mr. Krygier argues that it is clear from Sunwing’s own submissions that Sunwing’s policies and practices can only ensure that children are not separate from their accompanying adult guardian in “almost all instances,” but Sunwing is incapable of ensuring this in each and every case. Mr. Krygier submits that this admission by Sunwing already demonstrates the inadequacy and unreasonableness of the air carrier’s current policies and practices.

Air Transat

[71] Air Transat explains its procedures for seating children with their accompanying guardian as follows: Upon complimentary registration of minor children by their parents into the Kids Club, they benefit from an array of services that are meant to enrich the family’s travelling experience. These benefits are outlined on Air Transat’s Web site and include free advanced seat selection for registered children under 12 years of age who are travelling with their parents.

[72] Air Transat states that it does not have specific written policies respecting seat assignment for young children; however, more generally, check‑in agents are instructed to make every effort to ensure that families are seated together. In order to accommodate families that check in late or do not use Air Transat’s advance seat selection service, all stations are advised to keep small groups or blocks of seats available for family seating. In cases where this is absolutely not possible, the cabin crew chief of the flight in question may be asked by ground personnel to assist by asking assigned passengers to voluntarily change seats in order to accommodate a family once boarding is complete. Air Transat states that as one of the world’s leading leisure airlines, its principal focus is families and others travelling on vacation or holidays. Air Transat explains that it carries many young families and children every year with an extremely high satisfaction rate, and that one of the reasons for this is its Kids Club program, which it offers to families travelling with young children. Air Transat explains that if parents choose to reserve their seats in advance, their accompanying minor children who are registered free of charge in its Kids Club program are provided contiguous seat assignments on a complimentary basis – guaranteed.

[73] Air Transat believes that the above arrangement provides value for families travelling together, and is a fair balance between Air Transat’s legitimate commercial objectives and the interests of its customers. Air Transat states that its approach is an integral part of its service to families that has been recognized on a global basis for two years running as the best in the world.

[74] Air Transat points out that if parents travelling with minor children exercise their option not to reserve their seats in advance subject to applicable fees, they are nevertheless encouraged to check in early or to use Air Transat’s online check-in feature in order to ensure contiguous seating for all persons travelling together in their group. Air Transat states that while such contiguous seating remains subject to availability, Air Transat has had very few problems to date, as the above award attests.

[75] Air Transat views this exercise (i.e. the present complaint) as “a solution in search of a problem.” Air Transat argues that if the objective of the complaint is to eliminate the incentives to parents provided by Air Transat’s approach and to essentially provide all families travelling with minor children free advance seat assignment services in order to provide the “guarantees” of contiguous seating that Mr. Krygier ostensibly is seeking, “then this latest iteration of airlines being precluded from accessing legitimate ancillary revenues will most probably be subject to the law of unintended consequences: reduced services and higher base fares.”

Mr. Krygier’s reply to Air Transat

[76] Mr. Krygier argues that Air Transat’s Kids Club program only provides for advance seat selection for the children themselves, but fails to guarantee that a registered child is seated with an accompanying adult guardian. Mr. Krygier adds that the effectiveness of Air Transat’s Kids Club program in ensuring this is not known, as Air Transat has indicated that it maintains no data or statistics relevant to this specific issue.

[77] Nevertheless, Mr. Krygier submits that the facts presented by Air Transat demonstrate that its Kids Club program in no way ensures that children are seated with an accompanying adult guardian, and does not satisfactorily or otherwise address the issue, as Air Transat claims. Mr. Krygier contends that as Air Transat maintains no data or statistics and has no written policies with respect to the issue, Air Transat can make no claim respecting this matter.

[78] Mr. Krygier adds that Air Transat has failed to demonstrate how Air Transat’s ability to meet its statutory, commercial and operational obligations would be adversely affected if it were required to seat all children, without any additional charge, next to their accompanying adult guardian.

WestJet

[79] WestJet submits that provided the booking includes the Special Service Request (SSR) code for a “child” is referenced on the Passenger Name Record (PNR), WestJet’s automated preassigned program will, at no charge to the guest, ensure at 72-24 hours prior to departure, that any parent or guardian travelling with the child will be seated together. WestJet advises that analysis shows that 86.09 percent of bookings with children are appropriately assigned, placing the child with the parent/guardian travelling with them. WestJet submits that in cases where the guest and the child check in too late for the automated system (inside of 24 hours prior to departure), or in cases where the required SSR code is not present (less than 13.9 percent of bookings with children based on internal data analysis), web-based check in (at no charge), semi-automated processes like self-serve kiosks, or procedures executed by Customer Service Agents at the airport or Flight Attendants on board the aircraft, will ensure appropriate seating prior to departure.

[80] In response to questions posed by Mr. Krygier during the course of these proceedings, WestJet provided further data from its automated seating assignment system concerning its seating of children with their accompanying guardian for the fourth quarter of the years 2012 and 2013. The data indicate that in the fourth quarter of 2012, 95.63 percent of children travelling with their parents were seated with them at the time of boarding, while 4.37 percent were not. In the fourth quarter of 2013, 95.66 percent of children travelling with their parents were seated with them at the time of boarding, while 4.34 percent were not.

Mr. Krygier’s reply to WestJet

[81] Mr. Krygier submits that the data provided by WestJet demonstrate that approximately four percent of children who travel with an accompanying adult are not seated with their accompanying adult guardian. Mr. Krygier also points out that complaints received by WestJet from its customers demonstrate that the existing policies and procedures fail to address the essence of the problem, which is the unconditional and guaranteed right of young children to be seated with their accompanying adult.

[82] Mr. Krygier points out that in its answer to the complaint, WestJet stated amongst other things that it “makes every effort” to ensure that families can sit together even if pre-board seat selection is not an option purchased by travellers; and as a result of its practices, all children are seated with their accompanying adult guardian.

[83] Mr. Krygier asserts that contrary to these submissions, according to the historical data that were later provided by WestJet, in the fourth quarter of 2012, 4.37 percent of children were not seated with their accompanying adult at the time of boarding; and in the fourth quarter of 2013, 4.34 percent of children were not seated with their accompanying adult at the time of boarding.

[84] Mr. Krygier submits that WestJet has been unable to provide any data on whether the seats of any of these children were changed on board their flights; however, Mr. Krygier is of the opinion that the customer complaints received by WestJet via social media and e‑mail clearly demonstrate that there is a very real and substantial problem with the seating of young children with an accompanying adult guardian. Examples of those comments include: “kids were slotted in a different row,” and, “@WestJet. They won’t ensure you sit with your kids unless you pay for preselected seats.”

[85] Mr. Krygier argues that the data provided by WestJet clearly demonstrate that its current “best effort” method for seating children is inadequate, and a large number of children do end up falling through the cracks. Mr. Krygier concludes that according to WestJet’s own data, advance seat selection is currently the only way to guarantee that children are seated with their accompanying adult guardian.

[86] Mr. Krygier submits that the Agency ought to take judicial notice of the common knowledge that it is safer for children to travel if they are seated with their accompanying adult guardian, and that seating young children next to strangers exposes children to additional risks and harm.

[87] Mr. Krygier states that he does not insist that all children and their accompanying adult guardian be provided with free advance seating; instead, it is his position that all children are entitled to be seated, without any additional charge, next to their accompanying adult guardian. It is up to WestJet to implement this principle, either by offering free advance seat selection (as British Airways does) or using other methods.

[88] Mr. Krygier is of the opinion that WestJet has failed to demonstrate how its ability to meet its statutory, commercial and operational obligations would be adversely affected if it were required to seat all children, without any additional charge, next to their accompanying adult guardian. Mr. Krygier therefore concludes that it is unreasonable for WestJet to charge an extra fee for allowing children to travel safely, while seated with their accompanying guardian.

Analysis and findings

[89] In his submissions, Mr. Krygier refers to children with disabilities. The Agency notes that Mr. Krygier does not refer to subsection 172(1) of the CTA in his complaint or in his reply. As such, submissions that relate to obstacles to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA are outside the scope of the current complaint.

[90] The applicable test in this matter was established by the Agency in 666-C-A-2001">Decision No. 666-C-A-2001 (Del Anderson v. Air Canada). In that Decision, the Agency determined that in order for a tariff provision to be reasonable, a balance must be struck between the rights of passengers to be subject to reasonable terms and conditions of carriage and the particular air carrier’s statutory, commercial and operational obligations.

[91] Mr. Krygier states that he is not challenging the air carriers' policies with respect to advance seat selection fees in general, nor does he suggest that air carriers should allow families with children to select their seats in advance (i.e., specific seat numbers) for free. Rather, he is challenging what he considers to be the state of affairs where purchasing preassigned seats is the only way to ensure that young children are seated next to their accompanying guardian.

Commercial considerations

[92] Mr. Krygier asserts that the cost for families to travel by air in Canada is significant, including costs such as the airfare, accommodations, parking, meals, travel insurance and taxes. He argues that added fees and expenses, such as seat selection fees, can place a further burden on passengers. He adds that cost is a major determinant in whether a family is able to travel. According to Mr. Krygier, the policies of air carriers means that families of children must worry that, without paying for a selected seat, they may be separated from their child.

[93] Air Canada submits that the fact that lower fare types have an increased amount of restrictions and less included features is an industry practice recognized by the Agency. Porter submits that competitive rates that make travel affordable can only be accomplished through a system that offers low base fares and a menu of offers at additional expense. Porter argues that no evidence has been provided that the payment of a seat selection fee presents an undue financial burden to Mr. Krygier or the public at large. Air Transat points out that the preclusion of carriers from accessing legitimate ancillary revenues will most probably be subject to the law of unintended consequences - reduced services and higher base fares.

[94] The evidence filed by the respondents indicates that they have adopted supplemental seating policies and/or procedures. Through these policies and procedures, passengers who do not purchase advance seat selection have alternative options for obtaining seats together, for example, by requesting such seating at check in, or within 24 hours prior to flight departure, as is the case with all the respondents. Additional examples include WestJet’s computer program, which automatically assigns children and adults who are booked on the same ticket, Air Canada’s policy and procedures as included in its internal directory, and Air Transat’s Kids Club program.

[95] While Mr. Krygier is of the opinion that purchasing preassigned seats is currently the only way to ensure that young children are seated with their accompanying guardian, as Air Canada points out, Rule 115(D) of Air Canada’s Domestic Tariff and Rule 10(C) of its International Tariff, which provide for the purchase of pre-selected seats, offer no guarantee that a child under 12 will sit beside the accompanying adult. The Agency also notes that Porter, Sunwing, WestJet and Air Transat’s tariffs also contain absences of guarantees (see Appendix to this Decision). In light of this, the Agency notes that purchasing preassigned seats does not provide a guarantee that a child will sit beside an accompanying guardian.

[96] The adoption by carriers of supplemental seating policies or procedures is a common practice in the airline industry. The root of such practice is economical in nature. Carriers offer pricing models consisting of a low base fare with further options at an additional expense, including the option of pre-selecting seats. Ordinarily, lower-priced fares will have more restrictive terms and conditions than higher-priced fares. The various fare classes and their associated terms and conditions form vital elements in a carrier’s pricing strategy. While the preclusion of carriers from accessing ancillary revenues would undoubtedly benefit passengers, it would seriously affect the financial health of air carriers.

[97] The Agency is satisfied that the respondents’ supplemental seating policies and procedures demonstrate that the respondents are making reasonable efforts to ensure that children are seated with their accompanying guardian.

[98] The Agency finds that the supplemental seating policies and procedures strike a fair balance between the respondents’ commercial obligations and the interests of customers.

Operational and safety considerations

[99] Mr. Krygier asserts that some of the air carriers have developed policies and trained their personnel to make every effort to accommodate children and their guardians; however, he submits that the policies do not guarantee that all children are seated, without any additional charge, next to their accompanying guardian. He states that despite the respondents’ policies, training and programs, thousands of children are forced to travel separated from their parents or accompanying adult guardian and are left to care for themselves. Mr. Krygier requests that the Agency compel the respondents to guarantee that all children are seated, without any additional charge, next to their accompanying adult.

[100] Air Canada submits that it is not always possible, from a safety perspective, to ensure that complete families are always seated together. For example, in the case of families with infants, only one extra oxygen mask is located per seat bank. As such, two individuals, each holding an infant, could not be seated in the same seat bank if the third seat is occupied. Air Canada states that such important safety limitations warrant the current policies and procedures that it applies.

[101] While Mr. Krygier does not suggest that entire families be seated together, the Agency notes that in reality, a family could consist of only one adult and several children, a scenario that is consistent with the safety concerns raised by Air Canada.

[102] With respect to operational considerations, Porter submits that there are a myriad of practical problems associated with a prohibition on advance seat selection fees. It adds that implementation would be difficult and impractical (for example, applying a policy to a variety or related circumstances such as travel by youth sports teams, cultural groups, or teachers and students). Nevertheless, Porter states that in the vast majority of cases, advance seat selection can be accommodated.

[103] The evidence demonstrates that none of the respondents either claim to have, or have, a one hundred-percent success rate in relation to the implementation of their supplemental seating policies or procedures.

[104] Rather, the Agency notes that WestJet has provided data to indicate that during the fourth quarter of the years 2012 and 2013 (which is a time period where many families tend to travel), it was able to ensure that at the time of boarding, over 95 percent of children were seated with their accompanying guardian. While Mr. Krygier complains that the remaining five percent were not seated with their accompanying guardian, the Agency notes that these percentages do not reflect any further adjustments that may have been made on board the aircraft. As such, it is not known whether the remaining five percent were able to be seated with their accompanying guardian once on board the flight. Unlike WestJet, the other respondents did not provide specific data and/or analysis with respect to the efficiency of their respective policies or procedures to seat children with their accompanying adult. The Agency also notes Sunwing’s submission that it is unaware of any cases where children were not seated with their accompanying adult, and Air Transat’s position that it has had very few problems to date with this issue. Porter states that in the vast majority of cases, advance seat selection can be accommodated, while Air Canada admits that it is not always possible, from a safety perspective, to ensure that complete families always will be seated together.

[105] In 16-C-A-2013">Decision No. 16-C-A-2013, the Agency held that carriers should have the latitude required to amend flight schedules based on commercial and operational obligations, including the management of the air carrier’s fleet so as to achieve optimal results, which may benefit both the carrier and passengers, in order to conduct business in a dynamic environment.

[106] While Mr. Krygier requests that the Agency compel the respondents to guarantee that all children are seated, without any additional charge, next to their accompanying adult, the Agency is of the opinion that due to the dynamic nature of the transportation of passengers by air, the respondents must be afforded the latitude to make operational decisions. Such a high standard may otherwise place an unreasonable operational burden on the respondents.

[107] Considering the above, the Agency is of the opinion that, in light of the operational and safety considerations associated with loading an aircraft, it is not possible to guarantee that children are seated with their accompanying adult. Rather, it is reasonable to expect that the respondents make reasonable efforts to ensure that children are seated with their accompanying adult.

Statutory considerations

[108] Mr. Krygier refers to the Youth Criminal Justice Act, the Criminal Code, the Charter of Rights and Freedoms and the Declaration, which he asserts distinguish children from adults. Mr. Krygier states that the latter also affords unique rights to children, such as the right to special care and protection.

[109] Although it is accepted by the Agency that air carriers have the flexibility to establish their terms and conditions of carriage, this flexibility is subject to statutory considerations.

[110] The Agency notes that there is nothing to indicate that the respondents’ policies or procedures, or even their tariff provisions, would be in conflict with legislative or regulatory provisions. The statutes and the Declaration to which Mr. Krygier refers do not have the effect of compelling a carrier to guarantee that children under the age of 12 are seated beside their guardian. Further, the Agency notes that there are no legislative or regulatory provisions administered by the Agency that compel a carrier to guarantee that children under the age of 12 are seated beside their guardian.

[111] In light of the above, the Agency finds that Mr. Krygier has not established that the respondents’ supplemental seating policies or procedures are unreasonable within the meaning of subsection 67.2(1) of the CTA and subsection 111(1) of the ATR.

Issue 2: Are the respondents’ supplemental seating policies and procedures unduly/unjustly discriminatory within the meaning of subsection 67.2(1) of the CTA and paragraph 111(2)(a) of the ATR?

Mr. Krygier

[112] Mr. Krygier contends that by treating his children as adults, WestJet unfairly discriminated against them and placed them in a position where their personal safety and well-being may have been at risk. Mr. Krygier adds that his children’s ages, mental and physical limitations require that WestJet reasonably accommodate them. Mr. Krygier adds that the application of WestJet’s seat selection policy to children unfairly treats them as adults when they clearly do not have the same mental or physical capacity as an adult. Mr. Krygier states that this diminished mental and physical capacity is a factor that distinguishes them from adults and restricts their ability to act independently in a manner such as an adult.

[113] Mr. Krygier clarifies that he is not challenging the respondents’ policies with respect to advance seat selection fees in general. Rather, he states that the purchase of advance seat selection should not be the only way to ensure that a child sits with a guardian.

Air Canada/Jazz

[114] In response to Mr. Krygier’s allegation that the respondents’ advance seat selection policies unfairly discriminate against children and put them in a position where their personal safety and well-being may be put at risk, Air Canada argues that Mr. Krygier effectively attempts to draw a parallel between a child under the age of 12 and a passenger with a disability who is travelling with an attendant. Air Canada contends that such a parallel cannot be made, notably because policies and procedures to accommodate passengers with a disability are established in order to remove any obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA. It is Air Canada’s position that this test is entirely distinct from the test regarding undue discrimination by carriers under section 111 of the ATR.

[115] With respect to Mr. Krygier’s argument that Principle 4 of the Declaration demonstrates that it is discriminatory and/or unreasonable to not have a child and their accompanying guardian sit next to each other, Air Canada submits that Mr. Krygier is attempting to “make a farfetched application of core human rights principles in a manner inconsistent with the purpose of these instruments, i.e., protecting the human rights of children.”

[116] According to Air Canada, Mr. Krygier’s argument that the advance seat selection fee is unduly burdensome is insufficient to demonstrate discrimination. Air Canada points out that it is well established in law that discrimination must be based on personal characteristics that are fundamentally important characteristics that are usually protected by human rights legislation, such as sex, age and religion. Air Canada submits that its advance seat selection fee applies equally to all passengers purchasing Tango fares, independently of the passenger’s race, age, sex, religion, and regardless of whether they are travelling alone or in a group. Consequently, Air Canada is of the opinion that its advance seat selection fee cannot be considered as discriminatory, or, therefore, unduly discriminatory.

[117] Air Canada submits that the fare rules, including the requirement to pay an advance seat selection fee for Tango, apply to all passengers in order to have a uniform application to all Tango fare holders. Air Canada argues that any other application or carving out of exceptions in favour of passengers travelling with children under 12 would in fact be discriminatory and would favour such passengers. Air Canada adds that, in fact, any requirement to make such concessions would be similar to requiring that families pay a lesser fare for a seat occupied by their child under the age of 12. While Air Canada differentiates, by offering, in limited circumstances, a child’s fare that is lower than that of an adult, this is a purely commercial decision that should not be contingent on the travellers’ decision to travel with children and their desire to pay a lesser amount.

[118] Air Canada asserts that it is clearly evident that Air Canada’s tariff provisions regarding advance seat selection are not discriminatory and as such, the Agency need not proceed to the second stage of the “unduly discriminatory” two-pronged test. Without prejudice to its position that the tariff provisions are in no way discriminatory, Air Canada argues in a subsidiary manner that they are also not “unduly” discriminatory.

Porter

[119] Porter asserts that the Agency has identified that 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. Porter submits that its advance seat selection policy is equally applicable to all passengers, regardless of their personal characteristics or circumstances.

[120] Porter adds that it would be discriminatory to passengers travelling without children under a Firm Fare, to exempt a group of passengers from the application of the advance seat selection fee because they are travelling with children.

WestJet

[121] WestJet submits that at no point is it necessary to purchase advance seat selection to ensure that children will be seated adjacent to the parent or guardian who is travelling with them, though the option remains available to the guest up to 24 hours prior to departure at which point guests are free to seat select for no charge. WestJet submits that its policies with respect to preassigned seat selection fees are not discriminatory.

Sunwing

[122] Sunwing submits that Mr. Krygier’s argument that the failure of a Canadian carrier to ensure a child’s advance seat selection at no cost at the time of booking is contrary to the Declaration is invalid because, amongst other reasons, the Declaration is non-binding and is intended to address such things as “non-therapeutic circumcision of male children.”

Air Transat

[123] Air Transat made no submissions on this issue.

Analysis and findings

[124] Mr. Krygier submits that his children’s ages, mental and physical limitations require that WestJet reasonably accommodate them. Air Canada argues that Mr. Krygier attempts to draw a parallel between a child under the age of 12 and a passenger with a disability.

[125] The Agency notes that Mr. Krygier does not refer to subsection 172(1) of the CTA in his complaint or in his reply. As such, submissions that relate to obstacles to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA are outside the scope of this complaint.

[126] The applicable test in this matter was established by the Agency in 746-C-A-2005">Decision No. 746-C-A-2005 (Black v. Air Canada).

[127] The test to determine whether a toll or term and condition relating to the international carriage applied by a carrier is “unjustly discriminatory” within the meaning of paragraph 111(2)(a) of the ATR is a two-step process. The Agency must first determine whether the toll or term and condition of carriage applied by the carrier is “discriminatory”. If the Agency finds that the toll or term and condition of carriage is discriminatory, the Agency must then determine whether such discrimination is “unjust”.

[128] In addition, in order for the Agency to determine whether a toll or term and condition of carriage applied by a carrier is “unjustly discriminatory”, it must adopt a contextual approach that balances the rights of the travelling public not to be subject to terms and conditions of carriage that are discriminatory, with the statutory, operational and commercial obligations of air carriers.

[129] The Agency has stated in past decisions that a toll or term and condition of carriage would be discriminatory if it singled out a particular passenger or group of passengers, or shippers, for different treatment for reasons that could not be justified.

[130] As Mr. Krygier is not challenging the respondents’ tariff provisions respecting seat selection fees, the Agency is of the opinion that the complaint relates primarily to the respondents’ supplemental seating policies and procedures.

[131] In light of the analytical framework set out above, Mr. Krygier has failed to demonstrate that the respondents’ supplemental seating policies and procedures are discriminatory.

[132] Contrary to Mr. Krygier’s position, the respondents’ supplemental seating policies and procedures do not treat children as adults. On the contrary, children are treated differently than adults.

[133] It is recognized that discrimination could be achieved by singling out a particular passenger or group of passengers, or shippers, for different treatment for reasons that could not be justified. However, the Agency finds that there is a rational basis for the respondents’ supplemental seating policies and procedures; the policies and procedures are not directly aimed at discriminating between passengers, but represent a business decision to provide alternative means to seat children with their accompanying adult. The Agency also notes that, under the respondents’ supplemental seating policies or procedures, it is not necessary to purchase advance seat selection for children to be seated with their guardian, though the option remains available. By itself, an air carrier’s decision to adopt policies or procedures relating to a specific type of passengers for reasons that are rationally related to a business decision does not constitute discrimination.

[134] In light of the Agency’s findings in this regard, it is not necessary to determine whether the policies and procedures are unduly/unjustly discriminatory within the meaning of subsection 67.2(1) of the CTA and paragraph 111(2)(a) of the ATR.

[135] The Agency’s finding that the respondents’ supplemental seating policies and procedures do not constitute discrimination is sufficient to dispose of this aspect of the complaint. However, the Agency is of the opinion that even if the complaint had been in relation to the respondents’ tariff provisions related to the payment for seat selection, those tariff provisions would be equally applicable to all passengers regardless of their personal characteristics or circumstances, must be read in conjunction with supplemental seating policies and procedures, and would therefore not be discriminatory. Moreover, in such a case, the Agency is of the opinion that even if it had found the respondents’ tariff provisions related to the payment for seat selection to be discriminatory, balancing the complainant’s arguments against the tariff provisions with the statutory, operational and commercial obligations of the respondents, the tariff provisions could not have been considered to be “unjust”.

OTHER MATTERS

Air Canada’s supplemental seating policies and procedures

[136] The Agency notes that Air Canada’s supplemental seating policies and procedures are reflected in its internal directory and contain step-by-step procedures that its gate agents and flight attendants undertake in instances where a child and their guardian cannot be seated together during advance seat selection or check in.

[137] Specifically, Air Canada advises the customer to proceed to the gate, where the gate agent will evaluate seats available to rectify the situation. If no seats are available, the gate agent will request volunteers amongst customers to change seats and if that is to no avail, the gate agent will request the purser to move customers. If the child is still not seated with their accompanying guardian once on board the aircraft, Air Canada’s flights attendants will make their best efforts to reseat the child with their accompanying guardian. In instances where it is still not possible to seat the child with their accompanying guardian, the child will receive an unaccompanied minor briefing.

[138] The Agency recognizes that by standardizing its policy and procedures and incorporating them into its internal directory, Air Canada took the initiative to ensure that its staff is aware of the steps that are to be followed in instances where a child and their parents are not able to be seated together during advance seat selection or check in. The Agency therefore considers Air Canada’s policy and procedures a best practice.

Documents from British Airways’ Web site

[139] Mr. Krygier filed a printout from British Airways’ Web site entitled “Choosing your seat”. Porter has filed British Airways’ “General Conditions of Carriage” as reflected on British Airways’ Web site. The printout entitled “Choosing your seat” indicates that British Airways will make sure that each child is seated with an accompanying adult. However, British Airways’ “General Conditions of Carriage” indicate that British Airways will try to honour advance seating request; cannot guarantee that a passenger will be able to sit in a particular seat; can change a passenger’s seat at any time, even after boarding, for operational, safety or security reasons. While it has no bearing on this case, the Agency notes that, when read together, these two documents do not support the existence of a guarantee from British Airways that children under the age of 12 will be seated beside an accompanying guardian.

SUMMARY OF CONCLUSIONS

Issue 1

[140] The Agency finds that Mr. Krygier has not demonstrated that the respondents’ supplemental seating policies and procedures are unreasonable within the meaning of subsection 67.2(1) of the CTA and subsection 111(1) of the ATR.

Issue 2

[141] The Agency determines that the respondents’ supplemental seating policies and procedures are not unduly/unjustly discriminatory within the meaning of subsection 67.2(1) of the CTA and paragraph 111(2)(a) of the ATR.

ORDER

[142] As noted above, the terms and conditions relating to the carriage of children are a matter that must be included in the respondents’ respective tariffs.

[143] In light of the foregoing, the Agency orders the respondents, no later than March 2, 2015, to file with the Agency tariff provisions that reflect the fact that the respondents have adopted supplemental seating policies or procedures and are making reasonable efforts to ensure that children are seated with their accompanying guardian.


APPENDIX TO DECISION NO. 459-C-A-2014

RELEVANT TARIFF PROVISIONS

Air Canada’ Domestic Tariff

Rules 115(D) and (E)

(D) Seat Allocation – Carrier does not guarantee allocation of any particular seat in the aircraft.

[...]

(E) Advance seat selection fee

A fee per passenger per direction applies as follows to passengers wishing to preselect a seat number when booking a Tango fare type (Booking classes K/N/G/P/T/E):

For one way direction up to 350 miles the fee is CAD$20.00/USD$20.00
For one way direction from 351-1000 miles the fee is CAD $18/USD$18.00
For one way direction from 351 to 1000 miles the fee is CAD $20.00/USD $20.00
For one way direction from 1001 to 1600 miles the fee is CAD $26.00/USD/$26.00
For one way direction for over 1600 miles the fee is CAD$31.00/USD$31.00.

The seat selection fee is non refundable. However, should a substitution of aircraft occur and the carrier is not in a position to provide the preselected seat, we will refund the amount paid for the seat selection. If a passenger makes a flight change and advance seat selection is available on the new flight, carrier will not collect a new seat selection fee. The seat selection fee may be waived for passengers with special needs.

Air Canada’s International Tariff

Rules 10(C) and (D)

(C) Seat Allocation

(1) Carrier does not guarantee allocation of any particular space in the aircraft.

(2) Preferred or advance seat selection subject to availability and on flight operated by Air Canada, Air Canada Express (Preferred seats available on Air Canada Jazz only), and Air Canada Rouge, passengers may preselect a seat, preferred or not, when booking a fare via the web or call center. A fee per passenger and per each way if travel, applies below:

[…]

(D) Applicable fees

(1) Advance Seat selection

Tango – Within Canada or between Canada and the U.S.
Up to 350 miles - $18 per one way
351-1000 miles - $20 per one way
1001-1600 miles - $26 per one way
Over 1600 miles - $31 per one way
Tango – Caribbean, Mexico and Central America:
Air Canada/Air Canada Express: Complimentary
Air Canada Rouge: $15 per one way
Tango – All other itineraries:
Air Canada/Air Canada Express: Complimentary
Air Canada Rouge: $20 per one way
Flex, Latitude, Executive Class, Executive First Class – All Itineraries: Complimentary

Porter’s International Tariff

4. Advance seat assignments are not guaranteed and may change without notice. If your pre-assigned seat is unavailable, we will try to accommodate you in a comparable seat and will refund any applicable fees.

Sunwing’s International Tariff

RULE 13. CONFIRMATION OF RESERVED SPACE

A reservation of space on a given flight is valid when the availability and allocation of such space is confirmed by the carrier to a person subject to payment or other satisfactory credit arrangements. A passenger with a valid confirmation number reflecting reservations for a specific flight and date on the carrier is considered to be confirmed, unless the reservation was cancelled due to one of the reasons indicated in Rule 14. The carrier does not guarantee to provide any particular seat on an aircraft.

WestJet’s DomesticTariff

RULE 10 SEAT SELECTION

10.1 Policy and Procedures

The Carrier offers passengers the option of paying a fee for a specific seat at the time of booking or up to 24 hours prior to their flights departure.

Terms and conditions of the Seat Selection are as follows:

  • Availability of seats is determined by the type of aircraft operating for a selected flight, and the fare level purchased.
  • Seat selection may not be offered on some flights based on operational restrictions.
  • Some seats will be unavailable due to operational requirements.
  • Seat selection is an option available to all passengers; however this option may not be available through some reservation channels.
  • Passengers with disabilities may request a seat by contacting the carrier’s call centre.
  • Seat selection for a fee is an option available up until 2 hours prior to flight departure through the Carrier’s website, and up until 60 minutes prior to flight departure through the Carrier’s Reservation Centre.
  • Seat selection within 24 hours of flight departure is available at no charge through the Carrier’s website.
  • Seat selection is not guaranteed, and may be subject to change based on operational requirements.

10.2 Seat Selection fees

This section only deals with the fees associated with Seat Selection.

  1. Seat selection fees are payable in either CAD or USD (depending on the currency of the reservation as per Rule 3 Section 3.2.)
  2. Seat selection fees are calculated per segment (i.e. as identified by a change in flight number) for each direction of travel from the origin point to the destination point.
  3. When seats are selected on multi-segment flights, the fee shall be collected for each flight segment.
  4. Fee calculations are based on the approximate flight time for each flight segment.
  5. For round-trip reservations, seat selection fees are charged in each direction of travel.
  6. Different seat fees apply for regular and plus fare seats.
  7. This section only deals with the fees collected in associated with Seat Selection. For passenger requested reservation changes or cancellations see Section 3.3 Passenger Initiated Flight Modifications.
  8. Seat selection fees are refundable to the original form of payment up until 24 hours prior to the scheduled time of departure. In the event of a full cancellation of the itinerary, the seat fee will be included in the cancellation funds. See Section 3.3 Passenger Initiated Flight Modifications for details.
  9. Seat requests cancelled by the carrier will result in a credit file for the fee paid (+ tax).
  10. Where taxes are applicable to the flight, they shall also be applicable for seat selection fees.
Fees per segment
Time Regular seat fee Exit seat fee Plus fare seat fee*

1 hour or less

$5

$10

$45

Between 1 and 2.5 hours

$10

$15

$45

Over 2.5 hours

$15

$30

$45

Westjet’s US and International Tariff

TITLE/APPLICATION - 70

K CONFIRMATION OF RESERVED SPACE. A RESERVATION OF SPACE ON A GIVEN FLIGHT IS VALID WHEN THE AVAILABILITY AND ALLOCATION OF SUCH SPACE IS CONFIRMED BY THE CARRIER TO A PERSON SUBJECT TO PAYMENT OR OTHER SATISFACTORY CREDIT ARRANGEMENTS. A PASSENGER WITH A VALID CONFIRMATION NUMBER REFLECTING RESERVATIONS FOR A SPECIFIC FLIGHT AND DATE ON THE CARRIER IS CONSIDERED CONFIRMED, UNLESS THE RESERVATION WAS CANCELLED DUE TO ONE OF THE REASONS INDICATED IN RULE

15(B). THE CARRIER DOES NOT GUARANTEE ANY SPECIFIC SEAT.

(A) POLICY AND PROCEDURES TERMS AND CONDITIONS OF SEAT SELECTION ARE AS FOLLOWS:

AVAILABILITY OF SEATS IS DETERMINED BY THE TYPE OF AIRCRAFT OPERATING A SELECTED FLIGHT, AND THE FARE LEVEL PURCHASED.SEAT SELECTION MAY NOT BE OFFERED ON SOME FLIGHTS BASED ON OPERATIONAL RESTRICTIONS. SOME SEATS WILL BE UNAVAILABLE DUE TO OPERATIONAL REQUIREMENTS. SEAT SELECTION IS AN OPTION AVAILABLE TO ALL PASSENGERS; HOWEVER THIS OPTION MAY NOT BE AVAILABLE THROUGH SOME RESERVATION CHANNELS. NOT ALL SEATS WILL BE AVAILABLE TO ALL FARE TYPES.

PASSENGERS WITH DISABILITIES MAY REQUEST A SEAT BY CONTACTING THE CARRIER’S CALL CENTRE.

SEAT SELECTION FOR A FEE IS AN OPTION AVAILABLE UP UNTIL TWO (2) HOURS PRIOR TO FLIGHT DEPARTURE THROUGH THE CARRIER’S WEBSITE, AND UP UNTIL 60 MINUTES PRIOR TO FLIGHT DEPARTURE THROUGH THE CARRIER’S RESERVATION CENTRE (WITH THE EXCEPTION OF THE PLUS FARE TYPE WHICH HAVE THE OPTION OF SELECTING A SEAT AT NO ADDITIONAL CHARGE).

SEAT SELECTION WITHIN 24 HOURS OF FLIGHT DEPARTURE IS AVAILABLE AT NO CHARGE THROUGH THE CARRIER’S WEBSITE.

SEAT SELECTION IS NOT GUARANTEED, AND MAY BE SUBJECT TO CHANGE BASED ON OPERATIONAL REQUIREMENTS.

(B) SEAT SELECTION FEES

(1) THIS SECTION ONLY DEALS WITH THE FEES ASSOCIATED WITH SEAT SELECTION. FOR PASSENGER REQUESTED RESERVATION CHANGES OR CANCELLATIONS SEE RULE 15.

(B) PASSENGER INITIATED FLIGHT MODIFICATIONS. SEAT SELECTION FEES ARE PAYABLE IN EITHER CAD OR USD (DEPENDING ON THE CURRENCY OF THE RESERVATION AS PER RULE 15 (A)) SEAT SELECTION FEES ARE CALCULATED PER SEGMENT (I.E. AS IDENTIFIED BY A CHANGE IN FLIGHT NUMBER) FOR EACH DIRECTION OF TRAVEL FROM THE ORIGIN POINT TO THE DESTINATION POINT. WHEN SEATS ARE SELECTED ON MULTI-SEGMENT FLIGHTS THE FEE SHALL BE COLLECTED FOR EACH FLIGHT SEGMENT.

FEE CALCULATIONS ARE BASED ON THE APPROXIMATE FLIGHT TIME FOR EACH FLIGHT SEGMENT. FOR ROUND-TRIP RESERVATIONS, SEAT SELECTION FEES ARE CHARGED IN EACH DIRECTION OF TRAVEL. DIFFERENT SEAT FEES APPLY FOR REGULAR AND PLUS FARE SEATS.

SEAT SELECTION FEES ARE REFUNDABLE TO THE ORIGINAL FORM OF PAYMENT UP 24 HOURS PRIOR TO THE SCHEDULED TIME OF FLIGHT DEPARTURE. IN THE EVENT OF A FULL CANCELLATION OF THE ITINERARY, THE SEAT FEE WILL BE INCLUDED IN THE CANECELLATION FUNDS. SEE SECTION 3.3 PASSENGER INITIATED FLIGHT MODIFICATIONS FOR DETAILS.

CHANGES - THE ADDITION OF A SEAT SELECTION TO A NEW OR EXISTING RESERVATION IS NOT CONSIDERED A CHANGE TO THE RESERVATION, AND THEREFORE WILL NOT INCUR A CHANGE FEE. CHANGES TO SEAT TYPE - PASSENGERS WHO HAVE PURCHASED A REGULAR SEAT AND REQUEST A MOVE TO AN EMERGENCY EXIT ROW SEAT WILL BE REQUIRED TO PAY ANY INCREASE IN THE FEE; A REFUND OR CREDIT WILL BE ISSUED FOR A DECREASE IN FEE AMOUNT. WHERE TAXES ARE APPLICABLE TO THE FLIGHT, HE/SHE SHALL ALSO BE APPLICABLE FOR SEAT SELECTION FEES.

THE FOLLOWING FEES APPLY BASED ON FLIGHT DURATION (IN CAD):

 
  Econo Flex Plus*

ONE (1) HOUR OR LESS

5

5

COMPLIMENTARY

ONE (1) TO TWO AND A HALF (2.5) HOURS

10

10

COMPLIMENTARY

OVER TWO AND A HALF (2.5) HOURS

15

15

COMPLIMENTARY

ECONO AND FLEX FARE TYPES MAY SELECT A PLUS FARE SEAT AT THE TIME OF CHECK IN, IF AVAILABLE, FOR A FEE OF $45 (WITHIN * 24 HOURS OF DEPARTURE.) GUESTS WHO HAVE PREVIOUSLY SELECTED A SEAT AND WISH TO UPGRADE TO A PLUS FARE SEAT CAN CONTACT OUR CALL CENTRE AT 1-888-937-8538 TO HAVE THE ORIGINAL SEAT SELECTION FEE REFUNDED.

Air Transat’s International Tariff

Rule 11. CONFIRMATION OF RESERVED SPACE AND FLIGHT SCHEDULES

a) A reservation of space on a given flight is valid when the availability and allocation of such space is confirmed by the Carrier to a person subject to payment or other satisfactory credit arrangements. A passenger with a valid paper ticket reflecting reservations for a specific flight and date on the Carrier is confirmed, unless the reservation was cancelled due to one of the reasons indicated in Rule 12. The Carrier does not guarantee to provide any particular seat on the aircraft.

b) It is the responsibility of the passenger to re-confirm flight schedules at least 24 hours and not more than 72 hours prior to originally scheduled departure time. The carrier shall not be liable for damages or refund for failure to re-confirm which leads to a missed flight.

c) Seat reservation fees
A passenger holding a confirmed reservation may pre-select a seating assignment, where and when available, for the reserved flights. Such pre-selected seating assignment is not guaranteed and will be subject to cancellation without refund if the passenger fails to check in at least 75 minutes prior to scheduled departure time. Subject to the exceptions outlined hereunder, a seat pre-selection charge of CDN$20.00 per passenger per segment is applicable for all flights between Canada and Europe (including the UK). A CDN$15.00 fee is applicable for all other sectors. Exceptions: (i) For emergency exits and bulkhead row seats – CDN$80 for flights between Canada and the United Kingdom; CDN$70.00 for flights between Canada and Europe excluding the United Kingdom and CDN$45.00 for all other flights (ii)For two-by-two seats – CDN$40.00 for flights between Canada and Europe including the United Kingdom and CDN$35 for all other flights (iii) For A330-300 seats 5DEFG/14-29ABJK, A330-200 seats 4DEF/5-6ABCHJK/1011ABCHJK/31/36ABCHJK and A310-300 seats 5-9ABCHJK, 5DEF and 21-24ABCHJK-CDN$25.00 for flights between Canada and Europe (including the UK) and CDN$20 for all other flights. The above fees are non-refundable prior to departure but may be waived for passengers who advise the Carrier at booking that the requested seat is no longer needed to accommodate a physical disability. In the event that the pre-selected seating assignment is not available at check-in, the Carrier will undertake to make alternate seat assignment arrangements or will provide a refund of the seat reservation fee paid for the flight segment involved upon request by a passenger.

Rule 12. (C) CANCELLATION OF RESERVATIONS (Subject to Rule 21)

All reservations are subject to cancellation without notice:

a) If the passenger has not purchased a valid ticket indicating confirmed seat(s) at least 60 minutes prior to scheduled departure of the flight, or earlier if a special time limit is required.
b) If the passenger fails to fulfill the requirements of the fare type of that reservation.
c) If the passenger does not present himself at check-in at least 60 minutes prior to scheduled departure time.
d) If the passenger fails to occupy a seat reserved (for example: a no-show). If the carrier refuses transport to the passenger for any of the reasons stated above, even if a reservation was confirmed, the reservation may not be accepted for the flight specified. Subject to applicable fare rules and conditions, no refund will be due. Cancellation will apply to all segments in the itinerary.

Air Transat International Charter Tariff

SECTION III – RESERVATIONS

RULE 12. CONFIRMATION OF RESERVED SPACE AND FLIGHT SCHEDULES

a) It is the responsibility of the passenger to re-confirm flight schedules at least 24 hours and not more than 72hours prior to originally scheduled departure time. The Carrier shall not be liable for damages or refund for failure to re-confirm which leads to a missed flight.

b) Seat reservation fees
A passenger holding a confirmed reservation may pre-select a seating assignment, where and when available, for the reserved flights. Such pre-selected seating assignment is not guaranteed and will be subject to cancellation without refund if the passenger fails to check in at least 75 minutes prior to scheduled departure time. Subject to the exceptions outlined hereunder, a seat pre-selection charge of CDN $20.00 per passenger per segment is applicable for all flights between Canada and Europe (including the UK). A CDN$15.00 fee is applicable for all other sectors. Exceptions: (i) For emergency exit and bulkhead row seats – CDN$80.00 for flights between Canada and the United Kingdom; CDN$70.00 for flights between Canada and Europe excluding United Kingdom and CDN$45.00 for all other flights (ii) For two-by-two seats – CDN$40.00 for flights between Canada and from Europe including the United Kingdom and CDN$35.00 for all other flights (iii) For A330-300 seats 5DEFG/14-29ABJK, A330-200 seats 4DEF/5-6ABCHJK/10-11ABCHJK/10-11ABCHJK/31-36ABCHJK and A310-300 seats 5‑9ABCHJK, 5DEFand 21-24ABCHJK-CDN$25.00 for flights between Canada and Europe (including the UK) and CDN$20.00 for all other flights. The above fees are non-refundable prior to departure but may be waived for passengers who advise the Carrier at booking that the requested seat is needed to accommodate a physical disability. In the event that the pre-selected seating assignment is not available at check-in, the Carrier will undertake to make alternate seat assignment arrangements or will provide a refund of the seat reservation fee paid for the flight segment involved upon request by the passenger.

c) Cancellation of reservations
All reservations are subject to cancellation without notice: 
i) If the passenger does not present himself/herself at check-in at least 75 minutes prior to scheduled departure time.
ii) If the passenger fails to occupy a seat reserved (for example: a no-show)
If the Carrier refuses to transport the passenger for any of the reasons stated above, even if a reservation was confirmed, the reservation may not be accepted for the flight specified. Subject to applicable fare rules and conditions, no refund will be due. Cancellation will apply to all segments on the itinerary.

Air Transat Transborder Tariff

RULE 11. CONFIRMATION OF RESERVED SPACE AND FLIGHT SCHEDULES

(A) A reservation of space on a given flight is valid when the availability and allocation of such space is confirmed by the carrier to a person subject to payment or other satisfactory credit arrangements. A passenger with a valid paper ticket reflecting reservations for specific flight and date on the carrier is considered confirmed, unless the reservation was cancelled due to one of the reasons indicated in Rule 12. The carrier does not guarantee to provide any particular seat on the aircraft.

(B) It is the responsibility of the passenger to re – flight schedules at least 24 hours and not more than hours prior to originally scheduled departure time. The carrier shall not be liable for damages or refund for failure to re-confirm which leads to a missed flight.

(C) Seat reservation fees
A passenger holding a confirmed reservation may pre-select a seating assignment, where and when available, for the reserved flights. Such pre-seating assignment is not guaranteed and will be subject to cancellation without refund it the Fails to check-in at least 60 minutes prior to scheduled departure time. Except for emergency exit row seats and two-by-two, a seat pre-selection charge of CAD/USD$15.00 per passenger per segment is applicable for all flights between Canada and the United States of America. For emergency exit and bulkhead rows seats, CAD/USD$35 per flight segment will apply. For two-by-two seats, a charge of CAD/USD$25.00 per flight segment will apply. The above fees are non-refundable prior to departure but may be for passengers who advise the carrier at booking that the requested seat is needed to accommodate a physical disability. In the event that the pre-selected assignment is not available at check-in, the carrier will undertake to make alternate seat assignment arrangements or will provide a refund of the seat reservation fee paid for the flight segment involved upon request by the passenger.

Rule 12. CANCELLATION OF RESERVATIONS

All reservations are subject to cancellation without notice:
a) If the passenger has not purchased a valid ticket indicating confirmed seat(s) at least 60minutes prior to scheduled departure of the flight, or earlier if a special time limit is required.
b) If the passenger fails to fulfill the requirements of the fare type of that reservation.
c) If the passenger does not present himself at check-in at least 60 minutes prior to scheduled departure time.
d) If the passenger fails to occupy a seat reserved (for example: a no-show). If the carrier refuses transport to the passenger for any of the reasons stated above, even if a reservation was confirmed, the reservation may not be accepted for the flight specified. Subject to applicable fare rules and conditions, no refund will be due.

Cancellation will apply to all segments in the itinerary.

Member(s)

Sam Barone
Geoffrey C. Hare
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