Is it reasonable to refuse to transport monkeys for medical research? - International Law Office

Late in 2011 Air Canada filed a revision of its international cargo tariff which was to take effect in January 2012. The revised rule would have made clear that Air Canada would not transport monkeys for research and vivisection. Complaints were filed by Queens University and the Public Health Agency of Canada. There were several interveners, including the British Union for the Abolition of Vivisection, the Humane Society and the Primate Research Center of Barbados. These complaints raise the issue of whether Air Canada's proposed tariff amendment can be said to pass the statutory reasonableness test, which stipulates that tariff terms must not be unjust, unreasonable or unjustly discriminatory.

The Canadian Transportation Agency launched an investigation and suspended Air Canada's international cargo tariff pending completion of the investigation. On July 3 2012 the agency released an interlocutory decision which answers some preliminary questions of importance and sets out the framework that it will use to determine whether the proposed tariff amendments pass the statutory reasonableness test. The parties were given a limited period in which to file additional submissions and it appears unlikely that there will be a public hearing.

Issues related to the carriage of monkeys for research and vivisection have been brought before the agency on at least one previous occasion, although the question which arose some 15 years ago was different. By late 1994 Air Canada had received a number of complaints from individuals who were opposed to the use of primates in medical research. The airline reacted by declaring that it would no longer accept monkeys shipped by the Primate Research Center. This resulted in a complaint being filed. Air Canada responded that it had the right to refuse to carry the monkeys being transported for medical research based on a provision in its tariff which stated that it need not carry cargo which would be likely to cause annoyance to passengers. It pointed to a number of letters that expressed outrage at the practice of vivisection as evidence of annoyance. The agency rejected this reading of 'annoyance', finding that the word refers not to moral indignation, but to more mundane matters, such as offensive noise or odour. Contrary to many press reports, the agency did not order Air Canada to resume the carriage of monkeys destined for research. In a decision released in January 1998, the agency simply stated that denial of carriage could not be based on the tariff provision on which Air Canada had relied.

Fourteen years later, Air Canada has attempted to withdraw from an unpopular business by amending its tariff so as to give itself a specific right to refuse the traffic. Although appropriate wording can doubtless avoid the results of the 1998 decision, that wording remains subject to scrutiny under the statutory reasonableness test that is the subject of the current investigation.

It is agreed that a common carrier has a general obligation to accept cargo tendered to it, but this obligation is not absolute. Air Canada submitted the point - which was essentially uncontested - that it is obliged to transport goods if:

• there is capacity on the flight;
• the shipment is properly packaged;
• in the case of live animals, all medical and customs requirements are met;
• the shipper pays the appropriate fees; and
• the shipper delivers the shipment to the airport on time.

The applicants raised arguments which, had they been accepted, would have had potentially far-reaching effects. They pointed to provisions of the National Transportation Policy and, in particular, the declaration that one of the policy's objectives is to: "serve the needs of... users, advance the well-being of Canadians and enable competitiveness and economic growth in both urban and rural areas throughout Canada". The applicants argued that the agency should consider issues such as the possible impact of the tariff on medical research and the advance of healthcare in Canada. This would certainly have marked a departure from the agency's traditional area of jurisdiction. Fortunately, the agency rejected this invitation, stating:

"While the NTP recognizes the need for regulation and public intervention where satisfactory economic, safety, security, environmental and social outcomes are not achieved, in the Agency's opinion, the Agency cannot be called upon in the context of the [Canada Transportation Act] to decide between the harm that Air Canada's tariff would potentially cause to animal research on the one hand and its benefits to the campaign against the use of non-human primates in medical research on the other. Nor would such an assessment be consistent with the Agency's role as an administrative body that adjudicates commercial and consumer transportation-related disputes and as an economic regulator."

Having decided to confine itself to more traditional lines of inquiry, the agency sought to define the factors that it would take into account in assessing whether the proposed tariff ban on the carriage of monkeys destined for research and vivisection could be said to be just and reasonable. After reviewing the 'balancing of competing interests' test that it has applied in cases involving passenger claims, the agency noted that special attention should be paid to factors which are important in the context of carriage of cargo. These include:

• industry practice "in regard to the shipment of the same cargo in similar circumstances";
• the reason for the tariff;
• the competitive environment;
• international agreements pertaining to air cargo;
• a shipper's right to protection from decisions made without a reasonable basis;
• the carrier's operational requirements; and
• legislative provisions relating to safety or security.

Having set out these factors, the agency invited further submissions. Unless the agency extends the time for filings, the pleadings are to close by mid-August. The agency will then proceed to issue a decision in due course.

For further information on this topic please contact Gerard A Chouest at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (chouest@lexcanada.com).