June 27 2012
In April 2009 the Canadian Transportation Agency issued a bulletin informing air carriers that amendments to the Air Transportation Regulations had come into force and that these amendments required international air carriers selling flights to and from Canada online to keep current on their websites the terms and conditions of carriage found in their international tariffs on file with the agency.
The relevant section of the Air Transportation Regulations provides as follows:
"Display of Terms and Conditions on Internet Sites
116.1 An air carrier that sells or offers for sale an international service on its Internet site must also display on the site the terms and conditions of carriage applicable to that service and must post a notice to that effect in a prominent place on the site."
Since the issuance of that bulletin, the agency has been persistent in encouraging air carriers to comply with the regulation. It has been particularly vigilant about insisting that the substance of the information which is published on the air carrier websites is identical in content to that on file with the agency, rather than a paraphrased version of the same.
In the matter at hand, the agency sent a letter to Iberia on February 15 2010 advising the air carrier that it was not in compliance. The agency requested that Iberia ensure that its terms and conditions of carriage be posted on the website within 90 days.
In April 2010 the agency confirmed with Iberia that specific documents which the agency had required to be posted on the Iberia website would result in compliance with the regulations.
Approximately one month later, Iberia confirmed that it was working with the Airline Tariff Publishing Company to clarify outdated tariff filings. Iberia also advised that once this process was complete, it would update its website and inform the agency.
Unfortunately, Iberia was unable to accomplish this process in the following months.
In November 2010 Iberia requested and was granted a further extension to mid-January 2011. Iberia staff sent emails to the agency in March, June and October 2011 indicating that they were still working on the project.
In November 2011 the agency advised Iberia that its continued non-compliance was being referred to the agency's Enforcement Division. After receiving this notice, Iberia advised the agency that the up-to-date tariffs would be uploaded to the Iberia website by the following week.
It appears that this did not take place because, on February 1 2012, the enforcement officer assigned to the matter found Iberia to be in contravention of the regulations. The enforcement officer issued a warning of violation. Iberia appealed this issuance of the warning to the agency three weeks later.
In the appeal Iberia argued, among other things, that it should not have received the warning because the agency had failed to respond to its November 2011 correspondence. Further, Iberia submitted that in any event, it was in compliance with the regulations by December 16 2011. Finally, Iberia claimed that the warning letter provided no documentation or evidence supporting a violation.
The designated enforcement officer responded that the November 2011 email was a "purely informational letter which did not necessarily require a response". The officer also advised that if Iberia required documentation, he could provide copies of the original letter outlining non-compliance with the regulations, as well as copies of the communications between Iberia and the agency.
The agency considered Iberia's claim that it had complied with the regulations by December 2011, but disagreed. It held that:
"[a]lthough Iberia claims that on December 16, 2011, its internet site displayed the terms and conditions applicable to international services to/from Canada, it had been clearly advised on several occasions that compliance with [the regulations] required the posting of true copies of the applicable tariffs. Despite this, following a review of Iberia's internet site, a tariff could not be found."
The agency concluded that Iberia remained in non-compliance, despite repeated warnings that it must post its tariffs online.
The agency upheld the designated enforcement officer's finding and ruled that a record of violation, bearing the date of the original warning, will be retained by the agency to be used as a basis for further enforcement action.
The agency also noted that if Iberia contravenes or continues to contravene the regulations within four years of the original warning, it could be subject to an administrative fine of up to C$10,000.
For further information on this topic please contact Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (email@example.com).
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