Bc business practices and consumer protection act canlii

Description: Federally regulated airlines subject to provincial consumer protection legislation.
Discussion: Fuel surcharges are now a common item reflected on transportation ticket prices. These fees are added to advertised ticket prices, and are retained by carriers, notionally to offset the fluctuating costs of fuel. These practices are raising scrutiny, including complaints under the BC Business Practices and Consumer Protection Act (the ' Act '). The Court of Appeal has now confirmed that federally regulated and international airlines are not immune to provincial consumer protection legislation.
Air Canada and Lufthansa included fuel surcharges in the total price paid for tickets, added to the advertised price. (New regulations regarding advertised prices have been brought in since the issuance of the tickets in question.) The fuel surcharge appeared on the tickets issued by the carriers in a field labelled 'TAX', in Air Canada's case appearing only as a lump sum totalled with other taxes. These surcharges were retained by the carriers and the Plaintiff alleged that the ticket was intended to deceive customers as to the nature of the charges they were paying. This decision was merely a preliminary to the planned class action on that question.
Air Canada and Lufthansa applied for summary judgment, arguing that the regulation of aviation was an area of sole federal jurisdiction,and that the Act was incompatible with the complete code of regulation administered by the Canada Transportation Agency. In their submission, the constitutional doctrines of paramountcy and interjurisdictional immunity meant that the Act did not apply to air carriers.
The Court found that, to be inapplicable due to federal paramountcy, provincial legislation must frustrate a federal purpose, or be in operational conflict with federal legislation: Québec (Attorney General) v. Canadian Owners and Pilots Association , 2010 SCC 39 at para. 64 . Section 5 of the BC Act prohibited any 'deceptive act or practice in respect of consumer transaction'. In the Court of Appeal's words, this meant that for the airlines to benefit from federal paramountcy, 'the Agency would have to require the airlines to have a tariff containing a deceptive statement.' Nor did applying the Act frustrate any federal purpose: the Canada Transport Agency had itself stated that '[i]t is the [airlines'] responsibility to ensure that they comply with all applicable legislation respecting advertising of prices, not just the [federal regulations]'.
Interjurisdictional immunity applied where provincial legislation seriously encroached on the core of a federal power. It was exceptional for it to be applied in situations not already covered by precedent, such as this one: Canadian Western Bank v. Alberta, 2007 SCC 22 at para. 77 . The Court of Appeal confirmed that in any event, the alleged encroachment was not serious enough to trigger the immunity.

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