A BC Supreme Court judge dismissed yesterday Air Canada’s claim that provincial consumer law is inapplicable to Air Canada as a federally regulated undertaking. Other airlines are also affected by the decision in the fuel surcharge class action.
After about eight months of deliberation Madam Justice Adair of the Supreme Court of British Columbia dismissed Air Canada’s motion that the Business Practices & Consumer Protection Act (BPCPA) is inapplicable to Air Canada, or its partner Lufthansa. The airlines are being sued by passenger B.Unlu in a class action on allegations that they misrepresented a fuel surcharge as a tax on his tickets. Similar class actions have been filed under BC’s provincial consumer protection law by other passengers against British Airways, Cathay Pacific, Delta Airlines and Japan Airlines through the North Vancouver law firm Poyner Baxter.
At a hearing held May 9- 11, 2011 the airlines’ legal counsel David Neave argued that the Canada Transportation Agency has exclusive jurisdiction over aviation and all matters related to air tariffs and surcharges. Airlines’ claim to immunity from the reach of provincial consumer law under the constitutional doctrines of federal paramountcy and interjurisdictional immunity was vehemently opposed by the Government of British Columbia who sent two lawyers from Victoria to Vancouver to fight the motion. Federal government did not respond to the airlines’ Notice of Constitutional Question.
James Poyner representing the plaintiff said the airlines made a last ditch effort on January 13 by bringing to the judge’s attention the federal government’s recent initiative to regulate airline advertising. In dismissing the motion Madam Justice Adair stated, however, that the plaintiff's claim is not about advertising, or tariffs, or the plaintiff’s challenge to the airlines' right to collect a fuel surcharge, but about the misrepresentation of the surcharge . She found some of their arguments to be based on a false premise, and some "bordering on absurd." She directed the parties to move forward to a certification hearing. A class action must be certified by the court before it can go to trial.
Fuel surcharge is coded as “YQ” or "YR" on an airline ticket. In its Response to Civil Claim filed November 23, 2010 with the BC Supreme Court Air Canada blames its agents for the alleged misrepresentation and claims that Air Canada did not receive or retain the YQ amount from the Plaintiff. Any amount collected from the passenger was collected on behalf of its agent Intair, and not on behalf of Air Canada, claims the airline.
Airline tickets are issued electronically by what is called in the travel industry a CRS (Computer Reservation System) or GDS (Global Distribution System) from information fed into the system by the airlines. Travel agents have no control over the contents or representation of this information.