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Agency Dismisses Complaints Against Air Canada's Proposed Tariff Revisions to Stop Transporting Non-Human Primates for Research

Agency Dismisses Complaints Against Air Canada's Proposed Tariff Revisions to 
Stop Transporting Non-Human Primates for Research 
OTTAWA, Dec. 20, 2012 /CNW/ - In a decision released today, the Canadian 
Transportation Agency found that Air Canada's proposed tariff revisions to 
stop transporting non-human primates for research are not unreasonable or 
discriminatory and do not subject any person or description of traffic to any 
prejudice or disadvantage and has therefore dismissed the complaints. 
The decision is the result of complaints submitted to the Agency against Air 
Canada's intention to no longer transport non-human primates for research 
purposes. 
In assessing the reasonableness of the proposed tariff revisions, or whether 
they are unjustly discriminatory, the Agency considered: 


    --  the reason for the proposed tariff revisions, and the extent to
        which they result from a business decision by Air Canada, and
    --  Air Canada's competitive environment, industry practices and
        the additional service options available to shippers of
        non-human primates for research.

"When balancing the shippers' rights against the carrier's obligations, the 
Agency must consider the whole of the evidence and the submissions presented 
by both parties and make a determination on the reasonableness or 
unreasonableness of the term or condition of carriage, or whether the tariff 
is "unjustly discriminatory" based on which party has presented the more 
compelling and persuasive case," said the Decision.

After assessing relevant facts and circumstances, and weighing the various 
factors and evidence presented by the parties involved in the case, the Agency 
found that Air Canada's decision to stop transporting non-human primates for 
research constitutes a rational business decision and does not differentiate 
between shippers on a specific characteristic or otherwise. Therefore, the 
proposed tariff provisions are not discriminatory.

As a result, the Agency has dismissed the complaints and rescinded the 
suspension of Air Canada's proposed tariff revisions to discontinue to 
transport non-human primates for research, as set out in its decision issued 
on January 9, 2012. When Air Canada re-files its proposed tariff revisions, it 
can then choose not to transport non-human primates for research.

The Agency treats complaints on a case-by-case basis. Each decision is based 
solely on the individual merits of the case. The Agency does however refer to 
past decisions when the principles stated are relevant.

About the Canadian Transportation Agency

The Canadian Transportation Agency is an independent administrative body of 
the Government of Canada. It performs two key functions within the federal 
transportation system:
    --  As a quasi-judicial tribunal, the Agency, informally and
        through formal adjudication, resolves a range of commercial and
        consumer transportation-related disputes, including
        accessibility issues for persons with disabilities. It operates
        like a court when adjudicating disputes.
    --  As an economic regulator, the Agency makes determinations and
        issues authorities, licences and permits to transportation
        carriers under federal jurisdiction.
    Backgrounder

Agency Decision on Air Canada's Proposed Tariff Revisions to No Longer 
Transport Non-Human Primates for Research

Tariff Overview

An air carrier's tariff is the contract between the air carrier and the user 
of the transportation service. Among other things, it includes their fares, 
rates, charges, and related terms and conditions for the transport of cargo.

An air carrier is free to set the terms and conditions contained in its tariff 
so long as the terms and conditions meet certain legislative requirements, 
which include not being unreasonable, unjustly discriminatory or unduly 
prejudicial.

The Agency enforces the application of tariffs and may hear complaints from 
users of air transportation services. Specifically, complaints may be filed 
with the Agency if it is felt that an air carrier has not acted in a manner 
consistent with the tariff, or if they feel the tariff is unclear, unjust, 
unreasonable or unduly discriminatory.

The Agency has the authority to address the terms and conditions of carriage 
for domestic and international traffic in a decision upon complaint, and for 
international traffic upon complaint and of its own motion. In this context, 
it has the power to suspend, disallow or substitute the terms and conditions 
of carriage.

Tariffs are governed by the Canada Transportation Act and the Air 
Transportation Regulations. The Agency evaluated the tariffs using these 
instruments.

Canada Transportation Act and Air Transportation Regulations

Subsection 67.2(1) of the Act which applies to domestic carriage, states that 
if, on complaint, 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.

Section 111 of the Air Transportation Regulations (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.
        

Agency Decision

On November 22, 2011, Air Canada filed with the Canadian Transportation 
Agency, certain revisions to its international tariff, which were to become 
effective on January 10, 2012. These revisions reflected that Air Canada would 
no longer transport non-human primates for medical research purposes.

Before coming into effect, the Agency received complaints that Air Canada's 
proposed tariff revisions were unjust, unreasonable or unduly discriminatory 
as per the Canada Transportation Act and the Air Transportation Regulations. 
As a result, the Agency suspended Air Canada's proposed tariff revisions while 
it investigated the complaint through its formal adjudicative process and 
rendered its decision.

Unreasonableness

In considering whether an air carrier's proposed cargo tariff is reasonable, 
the Agency balances the rights of a shipper with the statutory, commercial and 
operational obligations of an air carrier. This consideration includes:
    --  the rationale behind the proposed air cargo tariff provision,
    --  industry practices in regard to the shipment of the same cargo
        in similar circumstances,
    --  the applicable provisions of international instruments to which
        Canada is a party,
    --  an air carrier's operational requirements and applicable
        legislative or regulatory provisions relating to safety or
        security; and,
    --  the reason for the tariff, and the extent to which it results
        from a business decision.

Unjust discrimination

The Agency's assessment of whether or not a tariff is "unduly discriminatory" 
is a two step process.

While the Agency acknowledges that discrimination may result from a term or 
condition of carriage which applies equally to all, in order to constitute 
discrimination, it must be demonstrated that a burden, obligation, or 
disadvantage has been imposed on one person or group which is not imposed on 
others.

In determining whether a term or condition of carriage applied by a carrier is 
"unduly discriminatory" or "unjustly discriminatory", the Agency adopted a 
contextual approach which balances the rights of the users of transportation 
services not to be subject to terms and conditions of carriage that are 
discriminatory, with the statutory, operational and commercial obligations of 
air carriers operating in Canada. This position is also in harmony with the 
national transportation policy found in section 5 of the CTA.

The Agency must first determine whether the term or condition of carriage 
applied is "discriminatory." If the Agency finds that the term or condition of 
carriage applied by the domestic carrier is "discriminatory", the Agency must 
then determine whether such discrimination is "unjust" in consideration of the 
statutory, commercial and operational reasons that led to the tariff.

In assessing whether Air Canada's tariff is "unduly discriminatory" the Agency 
also considered the commercial context of the transportation of air cargo and 
the fact that a refusal to carry certain cargo may result from a legitimate 
business decision.

When balancing the shippers' rights against the carrier's obligations, the 
Agency must consider the whole of the evidence and the submissions presented 
by both parties and make a determination on the reasonableness or 
unreasonableness of the term or condition of carriage, or whether the tariff 
is "unjustly discriminatory" based on which party has presented the more 
compelling and persuasive case.

Conclusions

After having examined the evidence and arguments of all parties, the Agency 
finds that there are significant statutory, commercial and operational reasons 
supporting Air Canada's tariff.

In terms of commercial requirements and industry practices, the Agency finds 
that:
    --  Arguments presented by Air Canada's demonstrate that its
        proposed tariff revisions reflect a rational business decision.
    --  Air Canada's decision to stop transporting non-human primates
        for research is representative of an ongoing business decision
        where elements are balanced against conflicting market forces
        impacting its financial position.
    --  Air Canada's decision to stop transporting non-human primates
        for research follows general international industry practice.

The Agency is satisfied that Air Canada, in making its decision, has balanced 
the trade-off between lost cargo revenue from the transportation of non-human 
primates for research and the potential revenue impact of lost passenger 
business. The Agency accepts that one of the purposes for the proposed tariff 
revisions is to align Air Canada's commercial practices with those of many 
other major international carriers.

The Agency has considered the shipper's arguments challenging the proposed 
tariff revisions. As stated in the Decision, the Agency is of the opinion that 
there are service options available for shipping non-human primates for 
research and that there was no evidence provided to support the argument that 
transportation cost would increase or would increase to levels that would make 
the transportation of non-human primates for research economically unviable.

The Agency does not want to suggest that Air Canada's proposed tariff 
revisions won't cause inconvenience to the complainants; the Agency is of the 
opinion that, in balancing the impact that the proposed tariff revisions will 
have on them as shippers of non-human primates for research purposes with its 
conclusions on the reasons supporting the tariff, the Agency concludes that 
the proposed tariff revisions are not unreasonable.

The Agency has considered the complainants' positions respecting the transport 
of non-human primates for research, and finds that Air Canada's proposed 
tariff revisions are;
    --  not discriminatory as they do not differentiate between
        shippers on a specific characteristic of any shipper or
        otherwise, and
    --  do not subject any description of traffic to any "undue or
        unreasonable" prejudice or disadvantage within the meaning of
        paragraph111(2)(c) of the ATR.

In light of the above, the Agency has dismissed the complaints and rescinded 
its suspension of Air Canada's decision to discontinue to transport non-human 
primates for research, as set out in Decision No. LET-A-4-2012 issued on 
January 25, 2012. Air Canada can now choose not to transport non-human 
primates for research.

About the Agency

The Canadian Transportation Agency is an independent administrative body of 
the Government of Canada. It performs two key functions within the federal 
transportation system:
    --  As a quasi-judicial tribunal, the Agency, informally and
        through formal adjudication, resolves a range of commercial and
        consumer transportation-related disputes, including
        accessibility issues for persons with disabilities. It operates
        like a court when adjudicating disputes.
    --  As an economic regulator, the Agency makes determinations and
        issues authorities, licences and permits to transportation
        carriers under federal jurisdiction.

Decisions of the Canadian Transportation Agency are legally binding. Should a 
party disagree with an Agency decision, there are two options for contesting 
the decision:
    --  Under section 41 of the Canada Transportation Act, a party can
        apply to the Federal Court of Appeal within 30 days of the
        issuance of an Agency decision for leave to appeal the decision
        on a question of law or jurisdiction; and
    --  Under section 40 of the Act, a party can petition the Governor
        in Council to vary or rescind any decision made by the Agency.

For additional information, consult the News Release or Decision No. 
482-A-2012.

For more information, consult theBackgrounder on the Agency Decision.

For more information on dispute resolution for air travellers, consult  
theBackgrounder: Agency's Dispute Resolution Process.

News Media Enquiries:media@otc-cta.gc.ca or 819-934-3448

General Public Enquiries:info@otc-cta.gc.ca or 1-888-222-2592 or TTY

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SOURCE: Canadian Transportation Agency

To view this news release in HTML formatting, please use the following URL: 
http://www.newswire.ca/en/releases/archive/December2012/20/c2815.html

CO: Government of Canada
ST: Ontario
NI: TRN LEI 

-0- Dec/20/2012 21:07 GMT