Decision No. 494-A-2012
APPLICATION by Air Transat A.T. Inc. carrying on business as Air Transat, on behalf of itself and I.M.P. Group Limited carrying on business as, among others, CanJet Airlines, a Division of I.M.P. Group Limited, pursuant to section 60 of the Canada Transportation Act, S.C., 1996, c. 10, as amended, and section 8.2 of the Air Transportation Regulations, SOR/88-58, as amended.
Air Transat A.T. Inc. carrying on business as Air Transat (Air Transat), on behalf of itself and I.M.P. Group Limited carrying on business as, among others, CanJet Airlines, a Division of I.M.P. Group Limited (CanJet), has applied to the Canadian Transportation Agency (Agency) for an approval to permit CanJet to provide its non‑scheduled international service between Toronto, Ontario, Canada and St. Lucia, on December 30, 2012 and January 6, 2013, using an Airbus 310 aircraft and flight crew provided by Air Transat.
CanJet is licensed to operate a non‑scheduled international service, large aircraft, to transport traffic on a charter basis between Canada and any other country.
Air Transat has also requested an exemption from the application of subsection 8.2(2) of the Air Transportation Regulations (ATR), which requires the filing of an application for an approval at least 45 days before the first planned flight.
In Decision No. 426-A-2012 dated November 7, 2012, the Agency advised that the 45-day filing requirement will be strictly enforced for any new applications made after the date of issuance of that Decision, unless the applicant can demonstrate to the Agency that the requirements for a wet lease resulted from an unexpected or unforeseeable situation.
CanJet submits that it had planned to operate these flights using a Boeing 737-800 aircraft provided by XL Germany; however, XL Germany ceased operations in mid‑December. CanJet points out that it continues to look for a spare aircraft which it hopes to have by January 13, 2013.
The Agency has considered the submission and is satisfied that the application was filed late as a result of an unexpected or unforeseeable situation.
Therefore, the Agency finds that compliance with subsection 8.2(2) of the ATR is impractical in this case. Accordingly, the Agency, pursuant to paragraph 80(1)(c) of the Canada Transportation Act (CTA), exempts Air Transat from the application of subsection 8.2(2) of the ATR.
In Decision No. 426-A-2012, the Agency found that the issues raised in Sunwing Airlines Inc.’s application for a wet lease suggest that it would be both timely and beneficial to clarify the Agency’s approach to wet-lease applications. In that regard, the Agency advised that it will initiate a consultation to seek the views of the industry and other interested parties regarding the intent of the wet-lease approval requirements. This consultation would include information required by the Agency for its assessment of necessity under paragraph 8.2(3)(j) of the ATR.
The Agency also ruled that until it provides further clarification on wet-lease application requirements, the current approach will be maintained.
The Agency notes that CanJet provided an explanation for the wet-lease application; however, as set out in Decision No. 426‑A‑2012, the Agency will continue with its current approach until it has conducted a consultation. Following its consultation, the Agency will establish specific criteria that it will apply in the future.
The Agency is satisfied that the application meets the remaining requirements of section 8.2 of the ATR.
Accordingly, the Agency, pursuant to paragraph 60(1)(b) of the CTA and section 8.2 of the ATR, approves the use by CanJet of an Airbus 310 aircraft and flight crew provided by Air Transat, and the provision by Air Transat of such aircraft and flight crew to CanJet, to permit CanJet to provide its non-scheduled international service between Toronto and St. Lucia, on December 30, 2012 and January 6, 2013, using an Airbus 310 aircraft and flight crew provided by Air Transat.
This approval is subject to the following conditions:
- CanJet shall continue to hold the valid licence authority.
- Commercial control of the flights shall be maintained by CanJet. Air Transat shall maintain operational control of the flights and shall receive payment based on the rental of aircraft and crew and not on the basis of the volume of traffic carried or other revenue-sharing formula.
- CanJet and Air Transat shall continue to comply with the insurance requirements set out in subsections 8.2(4), 8.2(5) and 8.2(6) of the ATR.
- CanJet shall continue to comply with the public disclosure requirements set out in section 8.5 of the ATR.
- CanJet and Air Transat shall advise the Agency in advance of any changes to the information provided in support of the application.
Air Transat is reminded that in any future wet‑lease application, it must provide an explanation, as required by paragraph 8.2(3)(j) of the ATR. Further, the Agency will continue to enforce the requirement to file such applications 45 days before the first planned flight. In this regard, the exemption granted in this Decision should not be relied upon for any future requests for an exemption.