Decision No. 462-A-2013

December 13, 2013

DETERMINATION by the Canadian Transportation Agency as to whether Angel Flight of British Columbia Society is operating an air service within the meaning of subsection 55(1) of the Canada Transportation Act, S.C., 1996, as amended.

File No.: 
M4161-A1066

INTRODUCTION

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

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

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

[3] On October 8, 2013, Agency staff advised Angel Flight of British Columbia Society (Angel Flight) that a case would be opened to review whether Angel Flight is presently operating an air service, based on the four criteria identified in the Decision.  Angel Flight responded to specific questions posed by Agency staff that address each of the four criteria.

ISSUE

[4] Is Angel Flight operating an air service?

BACKGROUND

[5] Angel Flight is a charitable, non-profit organization that provides air transportation for persons with cancer or children with certain medical conditions needing medical services at hospitals and centralized medical care facilities in Vancouver and Victoria, British Columbia. Angel Flight’s service is provided free of charge.

[6] Angel Flight, using a network of volunteer private pilots and aircraft owners, as well as ground crew support, works with families, doctors, hospital personnel and social workers to arrange for the benevolent flights.

[7] On December 21, 2006, the Agency, in its Order No. 2006-A-671, found that Angel Flight was operating an air service within the meaning of subsection 55(1) of the CTA, in contravention of paragraph 57(a) of the CTA. Accordingly, the Agency ordered Angel Flight to cease and desist from operating a publicly available air service without holding a licence for that service.

[8] On January 11, 2007, Angel Flight applied to the Agency for an exemption from the requirement, under paragraph 57(a) of the CTA, to hold an Agency licence.

[9] On February 27, 2007, the Agency, by Order No. 2007-A-73, exempted Angel Flight from the requirement to hold a licence. The exemption was subject to certain conditions. The Agency also concluded that, in light of the exemption granted, Order No. 2006-A-671 was no longer in effect.

[10] In Decision No. 56-A-2012, the Agency varied Order No. 2007-A-73 to permit Angel Flight to operate under its own insurance policy rather than by being named as an additional insured under the policy of the volunteer pilots and aircraft owners.

ANALYSIS AND FINDINGS

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

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

[13] The Agency will now consider, based on the four criteria set out in the Decision whether Angel Flight is operating an air service.

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

[15] Angel Flight advertises its air transportation service to the public on a number of different mediums, including through radio advertisements and its website. Angel Flight’s President and CEO also undertakes speaking engagements, on Angel Flight’s behalf, with service clubs on both fund raising and awareness activities.

[16] Members of the public that are interested in Angel Flight’s service can apply for a flight by submitting a completed copy of the “Patient Information Sheet” and the “Air Transport Waiver of Liability” form that can be obtained directly from Angel Flight’s Web Site or by contacting Angel Flight and requesting a copy.

[17] To be eligible for Angel Flight’s service, the person must:

  1. be a person with cancer or a child with a medical condition that requires treatment at a health centre in Victoria or Vancouver;
  2. be able to walk and climb aboard and out of a small aircraft without any assistance; and
  3. receive medical clearance from a medical professional stating that the flight applicant has no condition that precludes the flight applicant from travelling in an unpressurized aircraft at heights of up to 10,000 feet.

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

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

[20] The Agency therefore finds that Angel Flight’s service, which is provided by means of an aircraft, is offered and made available to the public.

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

[22] Angel Flight requires all flight applicants to complete, sign and return the “Patient Information Sheet” and the “Air Transport Waiver of Liability” form for its evaluation. Once Angel Flight receives the duly completed forms, it will assess whether the flight applicant is eligible for its service.

[23] Angel Flight’s “Patient Information Sheet” requests general information necessary to plan and arrange the requested flight services. Flight applicants complete and sign the “Air Transport Waiver of Liability” form, in return for being granted the air transportation, wherein the flight applicant and any escort agree to hold harmless Angel Flight, its volunteer pilots and any persons acting on its behalf from any liability.

[24] Angel Flight’s service is offered and provided completely free of charge to flight applicants and their escorts.

[25] The Agency therefore finds that Angel Flight’s service is not provided pursuant to a contract or arrangement for the transportation of passengers or goods for consideration.

CONCLUSION

[26] While Angel Flight’s service is offered and made available to the public and is provided by means of an aircraft, it is not provided pursuant to a contract or arrangement for consideration. As a result, the Agency finds that Angel Flight’s service is not an “air service” within the meaning of subsection 55(1) of the CTA.  As such, the Agency finds that the exemption from the requirement to hold a licence issued by Order No. 2007-A-73, as varied by Decision No. 56‑A‑2012, is no longer necessary.

[27] Consequently, the Agency, pursuant to section 32 of the CTA, rescinds Order No. 2007-A-73, as varied by Decision No. 56-A-2012.

Member(s)

Geoffrey C. Hare
J. Mark MacKeigan
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