Complaints
Licensing matters
Regulatory initiatives
Comment
On July 28 2011 the Canadian Transportation Agency released its annual report for the fiscal year ended March 31 2011. That date also marked the end of the first three-year period for which the agency promulgated a strategic plan. The agency has now published a new three-year plan for the period 2011 to 2014. This update summarises the information relating to complaints, regulatory initiatives and licensing matters found in the report and related statistical tables.
Complaints within the agency's jurisdiction proceed, potentially, through four phases. Where a complaint is first made directly to the agency, before an attempt is made to resolve the matter directly with the carrier, the agency will refer the matter to the carrier for possible consensual resolution. If that fails, the agency will attempt facilitation and, on consent, the matter may be referred to mediation. If resolution is not possible by any of these mechanisms, the agency will proceed to formal adjudication.
The large majority of complaints (87% for 2010 to 2011) are resolved informally by facilitation or mediation. Of these, 91% were resolved within 30 days. The agency's goal is 100%, but a number of mediated cases in the last year developed into quite complicated disputes.
In 2010 to 2011, 62% of all cases requiring formal adjudication were resolved within 120 days of commencement of the formal process. This is relatively close to the goal that the agency set itself in 2008 - resolution of 65% of all such cases within 120 days - and is a significant improvement over recent years. The annual report notes that of 23 adjudicated cases which were not resolved within 120 days, 19 were complex cases.
A look at the statistics reveals how heavily the air mode is represented in agency activity. Of 400 disputes resolved by facilitation in the last year, 374 involved air. The numbers for the two most recent past years are roughly comparable. However, when looking at more formal modes of dispute resolution, the prominence of the air mode disappears. The numbers for disputes which proceeded to formal adjudication are as follows:
- air - 22;
- rail - 11;
- marine - 21;
- accessible transportation - seven.
As of the end of the last fiscal period, 219 air travel complaints were in the facilitation process (similar to 2009 to 2010 and down from 448 in 2008 to 2009). The number for foreign carriers was 119 (the previous two years were 136 and 201, respectively). If this trend holds, it will give credence to the agency's assertion that it has succeeded in making its procedures more efficient and reducing the backlog of cases in progress. However, the number of complaints made against air carriers has declined markedly over the last three years: while the total stood at 1,352 in 2008 to 2009, this dropped to 817 in 2010 and to 328 for the year ended March 31 2011.
The issues raised in these complaints each show a declining pattern. The agency reports on all complaints made to it, regardless of whether it has jurisdiction in respect of the matter. Thus, complaints about quality of service (65, down from 314 two years ago) and safety (zero down from 13) continue to be made, although they are outside the agency's jurisdiction. The largest number of complaints concern flight disruptions (88) and baggage problems (73), followed by ticketing (27), reservations (27), refusal to transport (21) and denied boarding (16). Of this group, the greatest decline in the last two years occurred in the case of ticketing complaints, which stood at 131 in 2008 to 2009.
Resolving complaints by persons with disabilities remains a core function of the agency. Recent developments have involved examination of complaints by persons with allergies, in particular allergies to nuts and pets. Carriers can continue to serve peanuts on board, but in one case the agency has ruled that a carrier may be required to create a buffer zone within which foods containing nuts as a known product must not be served (for further details please see "Nut allergies and air travel"). A ruling respecting the accommodation which must be made for passengers with allergies to cats is expected soon.
An overriding issue affecting all accessibility cases is jurisdiction. At present, a turf war between the agency and the Canadian Human Rights Commission is underway. This began when the commission decided to rehear a case that the agency had ruled on. The agency sought review in the Federal Court and was successful. However, the commission has now appealed the matter to the Federal Court of Appeal. A hearing is scheduled for this autumn.
As for licensing matters, 1,514 air carriers held licences issued by the agency as of the fiscal year end. Of these, 710 were held by Canadians and 645 were held by US nationals. The total number of licences held by these carriers was 2,245. There has been no significant change in these numbers over the last two years.
Air charter permits continue to account for significant agency activity: 230 passenger entity charters, 151 cargo entity charters and 429 passenger resalable charters were issued. Exemptions to charter regulations were granted in 669 cases, which is comparable to the numbers in the two previous years. While the report does not break this down into categories, it is clear to anyone who follows the agency's decisions that most of these fall into well-known groups:
- exemptions from the old charter 'fences' which have not been applied for decades;
- exemptions from the need to give advance notice of certain executive aircraft charter operations;
- exemptions from minimum filing periods; and
- exemptions from the requirement to have a place of business in Canada.
One of the agency's identified objectives for the three-year period which began on April 1 is the revision of the Air Transportation Regulations, and it is likely that many of the anachronisms in those regulations which make these exemption applications necessary will be addressed and streamlined. The agency's report also recognises the fact that some of the decisions that it makes relating to licensing and charter permits are routine and would be best handled by staff. At present, it has no jurisdiction to delegate these matters. In its assessment of the Canada Transportation Act, the agency recommends to Parliament that it consider giving the chair and chief executive officer the power to delegate non-discretionary or routine decisions.
The larger regulatory issues which have occupied the agency of late on the air side include making tariffs available on any website through which transportation is sold. This is an ongoing programme and 100% of Canadian air carriers are now in compliance. As of year end, 54 foreign carriers were in compliance and some 15 were in discussions with the agency. The agency conducted three reviews of financial fitness of applicants for licences to operate air services using aircraft with 40 or more seats in 2010 to 2011. It also conducted four major reviews of Canadian ownership and control status. On the international scene, six new bilateral agreements were negotiated with Trinidad and Tobago, Jamaica, Switzerland, Qatar, Egypt and Brazil.
As noted above, the agency has also released a three-year strategic plan, which identifies three priorities. Briefly, these are:
- more efficient dispute resolution services;
- modernisation of essential regulations; and
- maintenance of knowledgeable and competent staff.
In its review of legislation for which it is, at least in part, responsible, the agency makes a number of significant recommendations. Progress with the identified priorities and regulatory reform is in the interest of the entire Canadian transportation industry.
For further information on this topic please contact Gerard A Chouest or Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email ([email protected] or [email protected]).