Decision No. 50-C-A-2018

SUMMARY

[1] On April 16, 2018, Mr. Uz Zaman filed an application on behalf of himself, his wife and their minor children (applicants) with the Canadian Transportation Agency (Agency), requesting that the Agency review Decision No. 23-C-A-2018 (Decision) issued on March 15, 2018.

[2] The applicants request that the Decision be reviewed on the basis that relevant evidence might be available, or could have been obtained, had the Agency requested it. Therefore they request that the Agency review the Decision and order Air Canada to compensate them for certain expenses that they incurred.

[3] The Agency will address the following issue:

Has there been a change in the facts or circumstances pertaining to the Decision since it was issued that is sufficient to warrant a review of the Decision?

BACKGROUND

[4] On October 5, 2016, the applicants filed an air consumer application (initial application) with the Agency against Air Canada regarding its refusal to transport Mr. Uz Zaman’s wife and their minor children (the Atif family) due to alleged improper travel documentation. Specifically, Air Canada alleged that the infant travelling with the Atif family was travelling on Ms. Atif’s passport (and presumably Ms. Atif’s visa), and Air Canada’s staff believed that the infant required her own passport to transit through Germany.

[5] In its refusal to transport the Atif family, Air Canada relied on Rule 65(D) of its International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Tariff). This rule absolves Air Canada from liability in instances where Air Canada, in good faith, refuses to transport a passenger because it determines that it is required to do so by law, government regulation or other measure.

[6] In the Decision, the Agency found that the infant was travelling on her own valid visa and passport and that, as such, the Atif family should not have been refused transportation. While the applicants requested compensation in the amount of $8,768.83, the Agency found that the evidence provided by the applicants only supported a claim of $1,567.83. Consequently, Air Canada was ordered to compensate the applicant in the amount of $1,567.83. Additionally, the Agency found that Rule 65(D) of Air Canada’s Tariff was not unreasonable, and that the applicants’ allegations of negligence by Air Canada constituted a new issue that would not form part of the record of the proceedings. The Agency also declined to award costs against Air Canada.

PRELIMINARY MATTER: ADDITIONAL SUBMISSIONS FILED BY THE PARTIES

[7] On April 20, 2018, Air Canada filed an answer to the applicants’ section 32 application, and on April 24, 2018, the applicants replied to that answer.

[8] Although the Agency did not open pleadings on the applicants’ section 32 application, the Agency accepts Air Canada’s answer and the applicants’ reply to it, as those submissions are relevant to the Agency’s consideration of the matter.

THE LAW

[9] Section 32 of the CTA addresses the Agency’s authority to review its decisions and states:

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

THE APPLICANTS’ POSITION

[10] The applicants submit that relevant evidence to support their claim for compensation might be available, or could have been obtained, had the Agency requested it. They refer the Agency to their submissions in the original proceeding that they had provided information in good faith, based on facts backed with genuine evidence. Additionally, they state that they have repeatedly stated that Mr. Uz Zaman, one of the applicants, is not a lawyer and “cannot contest/follow/abide by legal terminologies,” and, as such, used best efforts to present their case.

[11] In terms of the Agency’s finding that Rule 65(D) of Air Canada’s Tariff was not unreasonable, the applicants state that they felt “tied to” legal obligations of which they were unaware, such as subsection 111(1) of the Air Transportation Regulations, SOR/88-58, as amended, and argue that legal representation would have allowed them to better contest the matter.

[12] With respect to the Agency’s denial of the applicants’ claim for compensation for medical expenses, lost income and taxi costs, the applicants refer the Agency to their submissions in the original proceeding in which they indicated that further clarification could be provided, if needed. The applicants add that receipts are not generally provided for local taxis in Saudi Arabia, and cite confidentiality concerns regarding the filing of their employment documents.

[13] In terms of the Agency’s finding that $50 (as opposed to the $150 requested by the applicants) was a reasonable amount for food and “accessories” for the children at the airport in Turkey, the applicants argue that $50 does not seem like a reasonable amount. They add that several items such as formula milk, children’s food and diapers were not available in the airport lounge.

[14] The applicants take issue with the Agency’s denial of their claim for compensation in the amount of $1,451 for telephone calls, due to a lack of details concerning the organizations contacted or the persons with whom they spoke. According to the applicants, the Agency overlooked their submissions in the original proceeding that they spoke with several offices in Canada, Turkey, and Germany, including airport/immigration desks, Air Canada, and friends attempting to assist them.

[15] The applicants also disagree with the Agency’s finding in the Decision that the issue of negligence raised in the applicants’ reply to Air Canada’s answer during the original proceeding would not form part of the record as it constituted a new issue. The applicants maintain that their air consumer application, as a whole, showed several levels of negligence by Air Canada.

[16] With respect to the Agency’s finding that costs were not warranted in absence of special or exceptional circumstances, the applicants state that they incurred several expenses amounting to more than $10,000 during the proceeding. They also argue that, due to Air Canada’s negligence and the prolonged nature of the proceeding, they expected reimbursement, as ordered by the Agency in many other cases.

AIR CANADA’S POSITION

[17] Air Canada submits that there has been no change in the facts or circumstances pertaining to the Decision. Air Canada argues that the applicants provided additional information and/or explanations that were available during the original proceeding. According to Air Canada, the applicants chose not to include the additional information or explanations during the original proceeding, notwithstanding having many opportunities to do so.

[18] Air Canada submits that the purpose of section 32 of the CTA is not to permit a party to reargue its case when it is not happy with the final outcome, but rather to allow the Agency the flexibility to adjust or rescind a decision where there has been a change of fact or circumstance that requires it. Air Canada requests that the Agency summarily dismiss the applicants’ section 32 application.

ANALYSIS AND DETERMINATIONS

[19] In its consideration of an application under section 32 of the CTA, the Agency has consistently applied the following test. First, there must have been a change in the facts or circumstances that was not known during the pleadings. If this condition is met, the Agency next determines whether the change is sufficient to warrant a review of the decision. The burden of proof rests on the applicant to show that their application meets these criteria.

[20] In this case, the Agency finds that there has been no change in the facts or circumstances since the Decision was issued. The applicants had the opportunity to file supporting documents with their initial application, but did not do so. Furthermore, Agency staff specifically asked the applicants to file proof of the expenses incurred. The applicants, therefore, had opportunities to file any additional evidence, but did not do so.

[21] The Agency also notes that in their section 32 application, the applicants raised issue with the Agency’s findings in the Decision concerning the amount of compensation to which they are entitled, Air Canada’s alleged negligence, the issue of costs and the reasonableness of Rule 65(D) of Air Canada’s Tariff. The Agency has previously stated (for instance in Decision No. 142‑C‑A‑2010) that a section 32 application does not provide a party with a right to reargue before the Agency a decided matter. It is not meant to provide a party with an opportunity to complete the record, or to reargue its case.

[22] Based on the above, the Agency finds that the applicants did not establish that there has been a change in the facts or circumstances pertaining to the Decision.

CONCLUSION

The Agency dismisses the application.