jmolony

Got this this morning. I made no contact with Swiss. Did anyone else get this.

Dear guest,

Thank you for your message, which we have registered under the following reference: XXXX-XXXXX.

We will get back to you as soon as possible. The response time may vary depending on the amount of research required. We thank you for your understanding.

If you need to contact us in the meantime regarding this matter, you can simply respond to this message

Yours sincerely,

Customer Service

Swiss International Air Lines Ltd.
P.O. Box BSLLX/KMS
4002 Basel
Switzerland
SWISS.COM/CUSTOMERSERVICE

james84

I was planning on using the email which I received from Etihad that explicitly stated that no changes are involved unless difference in fare is paid. In fact, the call center agent also mentioned that I should have received communication that no changes are allowed, so it has to be recorded in the PNR somewhere.

I will file a DOT complaint as soon as I arrive in the US, assuming the CDG-DFW flight doesn't screw up. Not sure if AA can check me in if my flight coupon is marked "NOGO".

RCyyz

Hello all. Disclaimers first:

1) I am not a lawyer.
2) I do not have a Swiss fare so I am not part of the legal action.
3) I have a deep personal interest in how Canada works the way it does. So over the years I've tried to learn more about the governance of the nation. I don't consider myself an expert on this any more than I consider myself an expert on methods to accrue miles. I simply know more about this stuff than an average person does.
4) I have some friends who did purchase the fare. One of them emailed me last night to get my opinion on the pdf letter from Davis. He then suggested I post here to add to the general discussion.

So that said ... A Stay is basically a pause in legal proceedings. So Davis (a large Canadian law firm) is apparently now acting on behalf of Swiss. They are asking for a pause in the legal proceedings.

Section 1(A) just regurgitates why a Stay is permissible.

Sections 1(B) and (C) are clear. It’s very worth noting though that the Federal Court of Appeal has denied Swiss leave to appeal. More on that later.

Section 1(D) is interesting. To understand the role of Governor-in-Council, you need to understand the governance of Canada and specifically some provisions of the Constitution Act and related Acts that came before.

Canada is a constitutional monarchy. So the Crown (Her Majesty Queen Elizabeth II) is the head of state. (This is an important distinction from say, the American way where the President is head of state. Here, our Prime Minister is merely head of government, but he technically reports to Her Majesty who is head of state.) At the pleasure of Her Majesty, a government may be formed. The Governor General of Canada (David Johnston) is the Crown’s direct representative in Canada and is tasked with the day-to-day job of running the country and making sure that only important stuff is filtered up to Her Majesty. Direction / wisdom on certain issues will be sought from the Crown as required.

In order to help decide which issues are important (and need Crown input), the GG appoints (for life!) learned persons to the Privy Council. In theory, a member of the Privy Council - specifically one who commands the confidence of the House of Commons - is selected to be the Prime Minister. The PM then requests the GG to appoint select individuals to a special sub-committee of the Privy Council. This special sub-committee is known as Cabinet. Cabinet Ministers are Members of Parliament who carry special duties (& privileges) such as being the head of Foreign Affairs, or Finance Minister etc. In theory, the Crown and the GG will only take direction from this particular group. So Cabinet is also technically known as the Queen-in-Council or more commonly the Governor-in-Council.

The “in-Council” bit is important because this is where an Order-in-Council comes from. Laws in Canada are created first from Bills which need to move through debate in Parliament (various readings in the House) then to the Senate for “sober second thought” then finally to the Crown for Royal Assent. The Crown however, retains ultimate power in Canada. So the Crown can simply pass an Order-in-Council and something can come into being (from a judicial / legislative perspective) without having to go through the long route of passing something into law. Theoretically the Governor-in-Council will draft an Order-in-Council in front of the Crown, then read it out loud. The Queen will simply say “Approved” and the Order comes into immediate effect.

So an Order-in-Council is basically a quick & dirty way of bringing something into effect without having to rewrite laws. For example, the various prostitution laws were recently found un-Constitutional (i.e. illegal) by the Supreme Court. The Government could have sought an Order-in-Council that would essentially still leave prostitution illegal, while keeping an illegal law still embedded in the Criminal Code. Technically possible, but clearly not the best course of action.

So what’s happened in this case is that Swiss has petitioned the Governor-in-Council, to pretty please draft an Order-in-Council that will essentially let Swiss break the law, without actually having to re-write the laws of Canada.

Now, presumably the Federal Court has heard arguments from Swiss and from peeps like you. The Federal Court presumably told Swiss thanks for coming out, now go away and have a nice life.

Swiss applied for leave (permission) to appeal that decision. As Section 1(C) notes, the Federal Court of Appeal told Swiss thanks for coming out, now go away and have a nice life.

So that’s it. There are no more court arguments for Swiss and they are obligated to uphold whatever decision was initially made by the Federal Court. But, there is the possibility that they could get an Order-in-Council. Which is clearly what they’re hoping to do.

But an Order-in-Council is something to be used sparingly. It's a very special device which really should not be used at will.

An interesting wrinkle here is that there is no timeline associated with requesting an Order-in-Council. Typically it’s something so important and of national significance that it needs to be dealt with fairly quickly. Canadian passports for example are only made available to Canadian citizens. But when the US hostages were taken in Iran, then Prime Minister Joe Clark did a behind the scenes Order-in-Council that permitted issuing Canadian passports to those US citizens who Ambassador Ken Taylor got out with help from the CIA.

Clearly, the Swiss thing is not in the same league as rescuing hostages. So what may happen is that the Governor-in-Council may sit on this and do absolutely nothing. And then Parliament will be dissolved, an election called and a new Cabinet selected and sworn in. At which point in time I suspect Swiss will make another petition to the new Governor-in-Council.

From the perspective of Swiss, this would make sense because it would allow them infinite delays. I would, in a way, be surprised if the Governor-in-Council responds to the Swiss request because the matter is so trivial. If they respond, they set the precedent that any entity can seek an Order-in-Council. This is already true (anyone can seek an Order), but it’s a gross abuse of the executive function of Cabinet by trying to bog them down in such an inconsequential matter. The Swiss application deserves to be ignored by the Governor-in-Council.

But that’s the way of large corporations. Theoretically what this might do is clarify when an Order can be sought, but it’s awful hard to write something like that into law plus it probably requires an amendment to the Constitution which just ain’t gonna happen.

Practically what will most likely happen - eventually the CTA will stop granting Stays, at which point Swiss will accuse the CTA of not obeying their own rules (“pending the disposition of a petition to the Governor in Council”) and some weird legal stuff will happen and eventually Swiss will be forced to honour the fares. By this time though, many people will have moved, died or just plain forgotten about the fare.

Hope this helps. If anyone out there is truly an expert, please feel free to correct any mistakes I may have made!

calvinoeh

Wow. Awesome analysis. Thanks for the write up!

Hoping CTA will finally say "no more stays"

palefire

You're on the list of 80 people attached to yesterday's letter.

lewende

Thanks a lot for the insights, truly appreciate it.

Question: what's the repercussion if CTA finally decides not to grant Stays? I know LX will make a big noise about it, but other than that, what will happen next?

Deltahater

Very insightful. Thank you very much.

So in essence, because an order-in-council is so special and rarely used, LX can attempt to drag this out for the next 50 years?

yosithezet

So much great information for us politico buffs! Thanks!

james84

I'm honestly surprised no one else received the same unsolicited email. Makes me wonder if sending it out 36h before my departure was by design and not coincidence.

SanDiego1K

That was fascinating, RCyyz. Thank you for writing so clearly and bringing a much better understanding to the proceedings.

Pseudo Nim

Reading stuff like this makes getting up in the morning worth it (and yes, I have a full time job, which means that yes, I am saying that getting up for a full-time job is NOT worth it).

Thank you for writing this. This is a VERY intriguing perspective.

cruisr

Thanks RCyyz.

I can see LX and council hoping that it can drag on forever.

BrewerSEA

I would love to hear an answer to this question, because this morning the Agency denied Swiss' motion to stay 416/417, and ordered Swiss to compensate me by March 17 and fly the rest of the 7 over the next year! Not sure as of yet how this applies to other merged complaints. Tariff Rule 5F is also finally disallowed as of February 21st.

Here's a copy of the decision:

Deltahater

.... nm

RCyyz

Dunno. I'm not a lawyer! But the CTA is a Crown agency that operates under the auspices of the Governor-in-Council. So essentially, the CTA is a representative of Her Majesty the Queen. LX can make whatever noise they want but ultimately Her Majesty outranks them, at least in a Canadian judicial / legislative perspective.

Basically if Her Majesty chooses to ignore her own rules, there's nothing anyone can do about it other than stage a coup and cut off her head. I somehow doubt LX will succeed at that!

So if CTA does not grant a stay, I think LX will simply have to uphold whatever decision was made at the Federal Court.

Yup.

Actually Council would not want to drag this out. As I said, the Swiss application for an Order-in-Council is a gross abuse of the executive function of Cabinet. Personally as a Canadian, I am enormously insulted that Swiss - a foreign entity - would deign to attempt something like this. While what they are doing is legal, it's certainly of questionable moral integrity and as I said, an abuse of the system.

So the Governor-in-Council most likely wants nothing at all to do with this. They probably wish LX would just go away. Behind the scenes, the Minister of Transport may in fact be directing the head of the CTA to figure out how to not grant a Stay. That's certainly what I would do if I was Minister of Transport!


Anyhow, glad my comments seem to have helped a bit!