Considera-
tion of representa-
tions

(5) Before making a direction under paragraph (1)(b) or subsection (2), the Agency shall consider any representations that the licensee has made with respect to what is reasonable in the circumstances.

Finding on the Agency's own motion

(6) The Agency may make a finding under subsection (1) or (2) on its own motion within two years after the date that this subsection comes into force. The Governor in Council may, by order, extend for a maximum of two years the period within which the Agency may make a finding on its own motion.

Informing the Agency

(7) During the period during which the Agency may make a finding under subsection (6), every licensee operating a domestic service between two points in accordance with a published timetable or on a regular basis shall

    (a) keep the Agency informed of its existing tariffs in respect of that service in the form and manner that the Agency may specify; and

    (b) on request, inform the Agency of the tariffs it applied in respect of any of its domestic services during the previous three years and provide the Agency with any information that the Agency considers necessary for the purposes of subsection (6) and that is in support of those tariffs or related to the passenger seating or cargo capacity offered or proposed to be offered in relation to the fares or cargo rates set out in those tariffs.

Confiden-
tiality of information

(8) The Agency may take any measures or make any order that it considers necesssary to protect the confidentiality of any of the following information that it is considering in the course of any proceedings under this section:

    (a) information that constitutes a trade secret;

    (b) information the disclosure of which would likely cause material financial loss to, or prejudice to the competitive position of, the person providing the information or on whose behalf it is provided; and

    (c) information the disclosure of which would likely interfere with contractual or other negotiations being conducted by the person providing the information or on whose behalf it is provided.

5. Subsection 67(3) of the Act is replaced by the following:

No fares, etc., unless set out in tariff

(3) The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

6. The Act is amended by adding the following after section 67:

Fares or rates not set out in tariff

67.1 If, on complaint in writing to the Agency by any person or on its own motion, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

    (a) apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;

    (b) compensate any person adversely affected for any expenses they incurred as a result of the licensee's failure to apply a fare, rate, charge or term or condition of carriage that was set out in its tariffs; and

    (c) take any other appropriate corrective measures.

When unreasonable or unduly discriminatory terms or conditions

67.2 (1) If, on complaint in writing to the Agency by any person, 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.

Prohibition on advertising

(2) The holder of a domestic licence shall not advertise or apply any term or condition of carriage that is suspended or has been disallowed.

7. Section 68 of the Act is replaced by the following:

Non-applicati on of fares, etc.

68. (1) Sections 66, 67, 67.1 and 67.2 do not apply in respect of fares, rates, charges or terms and conditions of carriage applicable to a domestic service provided for under a contract between a holder of a domestic licence and another person whereby the parties to the contract agree to keep its provisions confidential.

Provisions regarding exclusive use of services

(2) The parties to the contract shall not include in it provisions with respect to the exclusive use by the other person of a domestic service operated by the holder of the domestic licence between two points in accordance with a published timetable or on a regular basis, unless the contract is for all or a significant portion of the capacity of a flight or a series of flights.

Retention of contract required

(3) The holder of a domestic licence who is a party to the contract shall retain a copy of it for a period of not less than three years after it has ceased to have effect and, on request made within that period, shall provide a copy of it to the Agency.

7.1 The Act is amended by adding the following after section 85:

Air Travel Complaints Commissioner

Designation

85.1 (1) The Minister shall designate a temporary member to act as the Air Travel Complaints Commissioner for the purposes of this section.

Filing of complaints

(2) A person shall file in writing with the Air Travel Complaints Commissioner a complaint against a licensee in respect of its air service if the person made the complaint to the licensee and the complaint was not resolved to the person's satisfaction.

Review and mediation

(3) The Commissioner, or a person authorized to act on the Commissioner's behalf, shall review and attempt to resolve every complaint filed under subsection (2) for which no other remedy exists and may, if appropriate, mediate or arrange for the mediation of a complaint filed under that subsection.

Production of documents

(4) On request by the Commissioner or a person authorized to act on the Commissioner's behalf, a person shall produce for examination by the Commissioner any document, record or thing that is in the possession or under the control of the person and is, in the opinion of the Commissioner, relevant to a complaint.

Report to parties

(5) The Commissioner or a person authorized to act on the Commissioner's behalf shall provide to the parties a report that outlines their positions and any settlement that they reached.

Publicly available report

(6) The Commissioner shall, at least semi-annually, prepare a report to the Governor in Council through the Minister setting out the number and nature of complaints filed under subsection (2), including the names of the licensees against whom the complaints were made and describing the manner in which they were dealt with and any systemic problems observed. The Agency shall include the Commissioner's reports in its annual report.

8. Paragraph 86(1)(h) of the Act is replaced by the following:

    (h) respecting traffic and tariffs, fares, rates, charges and terms and conditions of carriage for international service and

      (i) providing for the disallowance or suspension by the Agency of any tariff, fare, rate or charge,

      (ii) providing for the establishment and substitution by the Agency of any tariff, fare, rate or charge disallowed by the Agency, and

      (iii) authorizing the Agency to direct a licensee to take corrective measures that the Agency considers appropriate and to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges or terms or conditions of carriage applicable to the service it offers that were set out in its tariffs;

Transitional

Transactions before section 2 comes into force

9. (1) If, after October 26, 1999 and before the date that section 2 comes into force, a person completes a transaction, other than the transaction described in subsection 10.1(1) of the Air Canada Public Participation Act, to which subsection 56.1(1) of the Canada Transportation Act would have applied had the transaction been completed after that subsection comes into force and the Minister of Transport is of the opinion that the transaction raises concerns with respect to the public interest as it relates to national transportation, the Governor in Council may, by order made on the recommendation of the Minister of Transport, direct the person or their affiliates to take any action that the Governor in Council considers reasonable and necessary to protect the public interest, including requiring the divestiture of assets.

Offence

(2) Every person who contravenes an order made under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or to a fine not exceeding $10,000,000 or to both.

Continuing offence

(3) If an offence under subsection (2) is committed or continued on more than one day, the person who commits it is liable to be convicted for a separate offence for each day on which it is committed or continued.

Officers, etc., of corporations

(4) If a corporation commits an offence under subsection (2), any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted.

Order of divestiture

(5) If a person contravenes an order made under subsection (1), on application by the Minister of Transport, a superior court may order the person to cease the contravention or do any thing that is required to be done, and may make any other order it considers appropriate, including an order requiring the divestiture of assets.

Application of certain provisions of the Canada Transporta-
tion Act

10. If, after October 26, 1999 and before section 2 comes into force, a person gives notice to the Minister of Transport, the Canadian Transportation Agency and the Commissioner of Competition of a transaction, other than the transaction described in subsection 10.1(1) of the Air Canada Public Participation Act, that involves an air transportation undertaking that provides domestic services and the transaction is not completed before section 2 comes into force, sections 56.1 to 56.3 of the Canada Transportation Act apply to the transaction with any modifications that the circumstances require.

R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19

COMPETITION ACT

11. The Competition Act is amended by adding the following after section 4:

Travel agents

4.1 (1) Sections 45 and 61 do not apply in respect of a contract, an agreement or an arrangement that is between or among travel agents and that is only in respect of the negotiation of commissions on ticket sales for domestic flights paid to travel agents by an airline that, with its affiliates, accounts for at least 60% of the revenue passenger-kilometers of all domestic services over the 12 months immediately before the contract, agreement or arrangement was entered into.

Tribunal certificate

(2) If, on application by an airline, the Tribunal finds that the airline and its affiliates account for less than 60% of the revenue passenger-kilometers of all domestic services over the 12 months immediately before the application, the Tribunal shall issue a certificate to that effect.

Effect of certificate

(3) Subsection (1) does not apply in respect of an airline that holds a certificate issued under subsection (2).

Revocation of certificate

(4) If, on application by a travel agent, the Tribunal finds that an airline that holds a certificate issued under subsection (2) and its affiliates account for at least 60% of the revenue passenger-kilometers of all domestic services over the 12 months immediately before the application, the Tribunal shall revoke the certificate.

Opportunity to be heard

(5) Before issuing a certificate under subsection (2) or revoking a certificate under subsection (4), the Tribunal shall afford the Commissioner and, in the case of revocation, any airline in respect of which the revocation of the certificate is sought, a reasonable opportunity to be heard.

Definitions

(6) The definitions in this subsection apply in this section.

``airline''
« ligne aérienne »

``airline'' means a person licensed under section 61 of the Canada Transportation Act to operate a domestic service.

``domestic service''
« service intérieur »

``domestic service'' has the same meaning as in subsection 55(1) of the Canada Transportation Act.

``travel agent''
« agent de voyage »

``travel agent'' means a person who issues, on behalf of an airline, tickets for travel on a domestic service.

12. The Act is amended by adding the following after section 29:

Communica-
tion to Minister of Transport

29.1 (1) Notwithstanding subsection 29(1), the Commissioner may, if requested to do so by the Minister of Transport in accordance with subsection (3), communicate or allow to be communicated to that Minister any information referred to in subsection (2) that is specifically requested by that Minister.

Information

(2) The information that may be communicated under this section is

    (a) the identity of any person from whom information was obtained under this Act;

    (b) any information obtained in the course of an inquiry under section 10;

    (c) any information obtained under section 11, 15, 16 or 114;

    (d) any information obtained from a person requesting a certificate under section 102;

    (e) whether notice has been given or information supplied in respect of a particular proposed transaction under section 114; and

    (f) any information collected, received or generated by or on behalf of the Commissioner, including compilations and analyses.

Contents of request

(3) Requests under this section must be in writing and must

    (a) specify the information referred to in any of paragraphs (2)(a) to (f) that is required; and

    (b) state that the Minister of Transport requires the information for the purposes of section 56.1 or 56.2 of the Canada Transportation Act and identify the transaction being considered under that section.

Restriction

(4) The information communicated under subsection (1) may be used only for the purposes of section 56.1 or 56.2, as the case may be, of the Canada Transportation Act.

Confiden-
tiality

(5) No person who performs or has performed duties or functions in the administration or enforcement of the Canada Transportation Act shall communicate or allow to be communicated to any other person any information communicated under subsection (1), except to persons who perform duties or functions under section 56.1 or 56.2 of that Act.

R.S., c. 19 (2nd Supp.), s. 45

13. (1) Section 78 of the Act is renumbered as subsection 78(1).

(2) Subsection 78(1) of the Act is amended by striking out the word ``and'' at the end of paragraph (h) and by adding the following after paragraph (i):

    (j) acts or conduct of a person operating a domestic service, as defined in subsection 55(1) of the Canada Transportation Act, that are specified under paragraph (2)(a); and

    (k) the denial by a person operating a domestic service, as defined in subsection 55(1) of the Canada Transportation Act, of access on reasonable commercial terms to facilities or services that are essential to the operation in a market of an air service, as defined in that subsection, or refusal by such a person to supply such facilities or services on such terms.

(3) Section 78 of the Act is amended by adding the following after subsection (1):

Regulations

(2) The Governor in Council may, on the recommendation of the Minister and the Minister of Transport, make regulations

    (a) specifying acts or conduct for the purpose of paragraph (1)(j); and

    (b) specifying facilities or services that are essential to the operation of an air service for the purpose of paragraph (1)(k).

14. Section 94 of the Act is amended by striking out the word ``or'' at the end of paragraph (a), by adding the word ``or'' at the end of paragraph (b) and by adding the following after paragraph (b):

    (c) a merger or proposed merger approved under subsection 56.2(6) of the Canada Transportation Act and in respect of which the Minister of Transport has certified to the Commissioner the names of the parties.

15. The Act is amended by adding the following after section 104:

Temporary order

104.1 (1) The Commissioner may make a temporary order prohibiting a person operating a domestic service, as defined in subsection 55(1) of the Canada Transportation Act, from doing an act or a thing that could, in the opinion of the Commissioner, constitute an anti-competitive act or requiring the person to take the steps that the Commissioner considers necessary to prevent injury to competition or harm to another person if

    (a) the Commissioner has commenced an inquiry under subsection 10(l) in regard to whether the person has engaged in conduct that is reviewable under section 79; and

    (b) the Commissioner considers that in the absence of a temporary order