Decision No. 1-C-A-2021

SUMMARY

[1] Oluwatosin Sanni filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding its refusal to transport him from London, United Kingdom (UK), returning to Canada.

[2] Mr. Sanni seeks an explanation and apology from Air Canada and compensation in the amount of CAD 672.49 for the expenses incurred to purchase an additional ticket from Toronto, Ontario, to Edmonton, Alberta, when he was initially refused transportation.

[3] The Agency will address the following issues:

1. Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458 (Tariff), with regard to its refusal to transport Mr. Sanni, as required by subsection 110(4) of the ATR?
2. If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, should be ordered?

[4] For the reasons set out below, the Agency finds that Air Canada correctly applied the terms and conditions set out in its Tariff when it refused to transport Mr. Sanni. However, the Agency finds that Air Canada did not properly apply the terms and conditions set out in its Tariff when it transported Mr. Sanni to Toronto and not Edmonton. Therefore, pursuant to section 113.1 of the ATR, the Agency orders Air Canada to compensate Mr. Sanni in the amount of CAD 672.49. Air Canada is to pay this amount to Mr. Sanni as soon as possible and no later than February 16, 2021.

BACKGROUND

[5] Mr. Sanni purchased a round-trip ticket with Air Canada from Edmonton to London, via Calgary, Alberta, departing on December 8, 2018, and returning on January 27, 2019.

[6] On December 8, 2018, on his outbound flight from Calgary to London, Flight No. AC850, Mr. Sanni had a conflict with another passenger and the crew. On December 22, 2018, Air Canada’s corporate security team sent a letter to Mr. Sanni querying whether it should accept him as a passenger in the future. In the letter, Air Canada requested Mr. Sanni to explain in writing why it should not consider him as a safety risk for other passengers and its crew. Mr. Sanni did not respond to the letter.

[7] On January 27, 2019, Air Canada refused to transport Mr. Sanni on Flight No. AC851, from London to Calgary. However, on January 30, 2019, Air Canada rebooked him on a British Airways flight from London to Toronto. Mr. Sanni had to purchase a ticket from WestJet to travel from Toronto to Edmonton in the amount of CAD 672.49.

PRELIMINARY MATTERS

Apology from Air Canada

[8] Mr. Sanni requests an apology from Air Canada. Consistent with the Federal Court of Canada’s decision in Canada (Attorney General) v Stevenson, 2003 FCT 341, the Agency does not have the authority to order an apology. Therefore, the Agency will not consider Mr. Sanni’s request for an apology from Air Canada.

Allegation of discrimination

[9] While the Agency has jurisdiction with respect to allegations of disability-based discrimination in the provision of transportation services, its jurisdiction to deal with applications that allege discrimination on grounds other than disability (ethnicity, religion, family status, etc.) is limited to the extent that the allegations relate to the terms or conditions of carriage contained in a carrier’s tariff.

[10] Mr. Sanni does not allege discrimination in relation to any term or condition of carriage applied by Air Canada. Accordingly, the Agency finds that it cannot adjudicate this aspect of the application. This allegation may be submitted to the Canadian Human Rights Commission, which has the power to investigate a contravention of the Canadian Human Rights Act, RSC 1985, c H-6.

Applicable tariff

[11] In its answer, Air Canada did not refer to the tariff applicable at the time of the events forming the basis of the complaint. Rather, it referred to a tariff that came into effect in August 2020. Carriage is subject to the tariff in effect on the date of departure. In this case, Mr. Sanni departed on December 8, 2018. The Agency will, therefore, refer to the tariff that applied on December 8, 2018, in its analysis.

THE LAW AND RELEVANT TARIFF PROVISIONS

[12] Subsection 110(4) of the ATR requires that an air carrier operating a service apply the terms and conditions of carriage set out in its tariff.

[13] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to:

(a)  take the corrective measures that the Agency considers appropriate; and

(b)  pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions set out in the tariff.

[14] The relevant provisions of Air Canada’s Tariff are set out in the Appendix.

Position of the parties and Findings of fact

Mr. Sanni

[15] Mr. Sanni explains that on the flight from Calgary to London, he had an argument with the passenger in front of him about the position of that passenger’s seat. After the passenger called on a member of the crew, Mr. Sanni began to argue with them as well. Mr. Sanni submits that his gender identity was ignored by Air Canada’s employees, which provoked his frustration and anger. He states that this incident is why he was purposely lied to in London and because of his foreign passport and as a retaliation against his “defensive attitude towards their staff which stemmed from my frustration with another staff of theirs who had previously purposely and completely disregarded my identity and being.”

[16] Mr. Sanni adds that he complied with a request to change seats on Flight No. AC850. He claims that he had the right to verbally defend himself against false accusations and the fact that his gender identity was continuously ignored. He does not understand why he was requested to change seats as both he and the other passenger were yelling. Mr. Sanni explains that there was a lot of noise on the plane and that he had to raise his voice in order to be heard. He states that he was just defending himself when he called one of the passengers a “racist.” He denies having called everyone “racists.” Finally, according to Mr. Sanni, he never received the letter sent by Air Canada because he was in the UK and not in Canada.

[17] Mr. Sanni claims that on January 27, 2019, Air Canada employees at Heathrow Airport in London informed him that he was denied entry into Canada and that, therefore, he could not board the flight to Edmonton. Mr. Sanni submits that, the next day, he contacted Citizenship and Immigration Canada and the Canada Border Services Agency. He alleges that they confirmed that he was not denied entry into Canada and that there was no issue with his passport. Mr. Sanni returned to Heathrow Airport twice to clarify the situation with Air Canada.

[18] Mr. Sanni submits that he spoke to a manager from Air Canada who clarified that he was not denied entry into Canada but rather “denied boarding.” According to Mr. Sanni, even though he wanted an explanation regarding the allegation that he was denied entry into Canada, none was provided to him.

[19] Mr. Sanni claims that the manager could not confirm whether he could get a full refund due to the “denied boarding.” Mr. Sanni also claims that the manager offered to rebook him onto another flight to Toronto, instead of Edmonton as there was no other available flights to Edmonton that day. Mr. Sanni argues that he had no other choice but to accept this new flight and that, once in Toronto, he had to purchase a flight from Toronto to Edmonton at his own cost.

Air Canada

[20] Air Canada points out that Mr. Sanni exhibited verbal aggressive behaviour toward several passengers and the crew. Air Canada submits that Mr. Sanni claimed that everyone on the aircraft was racist. As evidence of Mr. Sanni’s prohibited conduct, Air Canada provided several documents: the Passenger Warning Card, the Disruptive Passenger Security Report, and the Inflight Report and Flight Attendants’ Statements. Air Canada submits that it issued a disruptive passenger warning card to Mr. Sanni, who would not accept it. The card was read to him. In addition, Air Canada’s corporate security team sent a letter to Mr. Sanni requesting that he provide the necessary assurance that he no longer poses a risk to the safety and comfort of passengers, crew and the safe operation of the aircraft. The letter was sent to Mr. Sanni’s London address that he provided for the booking. Air Canada claims that Mr. Sanni did not respond to the letter.

[21] Air Canada submits that given Mr. Sanni’s prohibited conduct and that he did not provide the necessary assurances, it correctly applied Rule 75(B) of its Tariff in its refusal to transport Mr. Sanni. In particular, Air Canada refers to Rule 75(B)(1)(b) which, in its opinion, states that when exercising discretion regarding refusal to transport a passenger, the threshold is that there is a possibility that a passenger causes any safety concerns to other passengers, crew or the flight itself. Air Canada also points to the Canadian Aviation Regulations, SOR/96-433 (CAR), which stipulate that a carrier must refuse to transport a person who may present a risk to the safety of the aircraft, persons or property. Air Canadastates that past Agency’s decisions, such as Decision No. 61-C-A-2018 (Brighouse v Air Canada) and Decision No. 295-C-A-2011 (O’Reilly v Air Canada),

reaffirm carriers’ broad discretion in the exercise of reasonable judgment in determining the presence of offensive behaviour from passengers. Lastly, Air Canada notes that Mr. Sanni has not contested the travel ban, nor has he requested that the ban be lifted.

[22] Air Canada denies telling Mr. Sanni that he was “denied entry into Canada” as it has no authority to decide on a passenger’s right of entry into a country. Air Canada also explains that Mr. Sanni was not denied boarding pursuant to Rule 90 of its Tariff but rather refused transportation pursuant to Rule 75 because of the events that occurred on Flight No. AC850 and the risk he posed to safety.

[23] Air Canada submits that its liability is limited to only the recovery of the refund value of the unused portion of Mr. Sanni’s Air Canada ticket and does not include a refund in the amount of CAD 672.49 for the WestJet ticket. Air Canada submits that, given that Mr. Sanni’s ticket was basic fare and that the ticket was non-refundable, no amount is owed. Lastly, Air Canada claims that, given Mr. Sanni benefitted from the WestJet ticket as he travelled from Toronto to Edmonton, his refund claim amounts to general damages. Air Canada submits that the Agency does not have jurisdiction to award general damages.

Findings of fact

[24] Based on the evidence provided by the parties, the Agency finds that Air Canada refused to transport Mr. Sanni on Flight No. AC851 from London to Calgary and rebooked him with another carrier on a flight from London to Toronto. The Agency also finds that Mr. Sanni had to purchase a new ticket with WestJet to travel from Toronto to Edmonton.

ANALYSIS

Did Air Canada properly apply the terms and conditions set out in its Tariff, with regard to its refusal to transport Mr. Sanni, as required by subsection 110(4) of the ATR?

[25] The onus is on the applicant to establish, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff as required by subsection 110(4) of the ATR.

REFUSAL TO TRANSPORT

[26] As clearly identified by Air Canada, Mr. Sanni was not denied boarding but refused transport pursuant to Rule 75 of the Tariff. Denied boarding occurs when a person is not allowed to board the aircraft because there are not enough seats to accommodate them; essentially, when the flight has been overbooked. Refused transport, however, occurs when a person is not permitted to travel when, for example, they do not possess the correct travel documents or they are banned by the carrier from travelling on its flights. In this case, Mr. Sanni was not denied boarding.

[27] Rule 75(II)(A)(2) of Air Canada’s Tariff states that a person may be refused transport if the person’s conduct or condition is or has been known to be abusive, offensive, threatening, intimidating, violent or otherwise disorderly and, in the reasonable judgment of a responsible Air Canada employee, if there is a possibility that such a passenger would cause disruption or serious impairment to the physical comfort or safety of other passengers or Air Canada employees, interfere with crew members in the performance of their duties aboard the aircraft, or otherwise jeopardize safe and adequate flight operations. In addition, aviation security is governed by many legal requirements, including the CAR, which provide that the carrier must refuse to transport a person who may present a risk to the safety of the aircraft, persons or property.

[28] In Brighouse v Air Canada, the Agency determined that the reasonableness of the crew members’ conclusion that a passenger engaged in a prohibited conduct must be assessed in light of the aviation security context and legal scheme as well as the operational context of the aircraft boarding process, in which a large number of passengers must be seated and their baggage stowed, in a confined space, in a limited time. As a result, the Agency determined that Rule 75 of Air Canada’s Tariff, which places an emphasis on reasonable discretion of the carrier to refuse passengers, must be assessed in light of those obligations.

[29] In this case, Mr. Sanni’s description of the events is challenged by Air Canada. Mr. Sanni does not deny that he had an argument with the passenger sitting in front of him. Mr. Sanni asserts that he did nothing wrong on the flight from Calgary to London; always complied with the crew; and had the right to verbally defend himself, especially to defend his gender identity. Air Canada submits that Mr. Sanni’s aggressive behaviour and verbal abuse toward crew members and other passengers posed a threat to the safety and security of other passengers and crew; so much so that a passenger warning card was issued. When contradictory versions of events are presented by parties, the Agency must determine which of the different versions is more probable, based on the preponderance of evidence.

[30] Air Canada provided various statements from crew and other passengers indicating that Mr. Sanni’s behaviour was disruptive. Mr. Sanni explains his behaviour as a reaction to Air Canada employees not respecting his gender identity. The fact that Air Canada continuously referred to Mr. Sanni as Ms. Sanni, including in these proceedings, did not help to defuse the situation.

[31] However, there is sufficient evidence provided by Air Canada to indicate that further to his argument with the passenger in front of him about the position of that passenger’s seat, Mr. Sanni was neither calm nor well behaved with that passenger and toward other passengers and the crew. Air Canada’s request for Mr. Sanni to change seat was, therefore, justified.

[32] Mr. Sanni indicates that Air Canada employees purposely lied to him at Heathrow Airport when they stated that he was denied entry into Canada. Although Mr. Sanni indicates that he was accompanied by his parents at Heathrow Airport, he does not provide any evidence that Air Canada employees told him he was denied entry into Canada. Air Canada asserts that it would not make this kind of statement as it has no authority to deny a passenger’s entry to any country.

[33] Lastly, Air Canada’s corporate security team sent the letter to the address provided at the time of the booking; Air Canada confirms having sent the letter to the UK. Although a copy of the letter indicates that it was sent to the UK address, Mr. Sanni maintains that he never received it and claims that it was probably sent to his address in Canada while he was in the UK. Based on the evidence, the Agency finds that Air Canada sent the letter to the address that Mr. Sanni provided in the UK. That letter was of paramount importance as Air Canada informed Mr. Sanni that it was considering whether it should accept him as a passenger in the future given his behaviour on Flight No. AC850. Mr. Sanni was requested to explain in writing why he does not pose a risk to the safety of Air Canada’s operations. Air Canada also required him to provide assurances that the behaviour he exhibited on Flight No. AC850 would not happen again.

[34] In light of the evidence regarding Mr. Sanni’s conduct, the Agency finds that Air Canada exercised reasonable discretion, as required by Rule 75(II)(A) and 75(II)(B) of its Tariff and aviation security regulations, when it refused to transport Mr. Sanni on Flight No. AC851 from London to Calgary, on January 27, 2019.

TRANSPORTATION WITH ANOTHER CARRIER

[35] Rule 75(III) of the Tariff sets out a passenger’s recourse in the event that they are refused transport; specifically, that Air Canada’s liability is limited to refunding the value of the unused portion of the passenger’s ticket. In this case, Air Canada did not apply Rule 75(III). Rather, it rebooked Mr. Sanni onto a flight from London to Toronto operated by another carrier. By doing so, Air Canada was required by Rule 25(A)(2) of the Tariff to transport the passenger “between points of origin and destination.”

[36] Mr. Sanni’s final destination was Edmonton, not Toronto. When Air Canada decided to rebook Mr. Sanni onto a flight to Toronto operated by another carrier, it should have done so in accordance with Rule 25(A)(2) of the Tariff and also arranged a flight from Toronto to Edmonton. The Agency finds that, by failing to do so, Air Canada did not properly apply the terms and conditions set out in Rule 25 of its Tariff.

If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, should be ordered?

[37] At the time of the incident, section 113.1 of the ATR indicated that the Agency may direct a carrier to take the corrective measures that the Agency considers appropriate and pay compensation for any expense incurred by a person affected by the carrier’s failure to apply its tariff.

[38] Given that Air Canada did not rebook Mr. Sanni onto an itinerary that transported him to his final destination, he had to purchase a ticket with WestJet for a flight to Edmonton in the amount of CAD 672.49. For this reason, the Agency orders Air Canada to compensate Mr. Sanni in the amount of CAD 672.49.

CONCLUSION

[39] The Agency finds that Mr. Sanni has established, on a balance of probabilities, that by rebooking him onto a flight that did not transport him to his final destination, Air Canada did not properly apply the terms and conditions set out in Rule 25 of its Tariff, as required by subsection 110(4) of the ATR.

ORDER

[40] Therefore, pursuant to section 113.1 of the ATR, the Agency orders Air Canada to compensate Mr. Sanni in the amount of CAD 672.49. Air Canada is to pay this amount as soon as possible and no later than February 16, 2021.

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APPENDIX TO DECISION NO. 1-C-A-2021

International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458.

RULE 5 – APPLICATION OF TARIFF

….

(D) EFFECTIVE RULES, FARES AND CHARGES

(1)  All carriage of passengers and/or baggage shall be subject to the carrier’s rules, regulations, and tariffs in effect on the date of commencement of carriage covered by the first flight coupon of the ticket. For tickets issued for carriage between Canada and the U.S. and where required by local law or regulation, carriage of passengers and/or baggage shall be subject to the carrier’s rules, regulations, and tariffs in effects on the date of the ticket issuance.

….

RULE 25 – TICKETS

(A) General

….

(2)  No person shall be entitled to transportation except upon presentation of a valid ticket. Such ticket shall entitle the passenger to transportation only between points of origin and destination and via the routing designated thereon.

….

RULE 75 – REFUSAL TO TRANSPORT

….

II. Passenger’s conduct – Refusal to transport prohibited conduct and sanctions

(A) Prohibited conduct

Without limiting the generality of the foregoing, the following constitutes prohibited conduct where it may be necessary, in the reasonable discretion of the carrier, to take action to ensure the physical comfort or safety of the person, other passengers (in the future and present) and/or the carrier employees; the safety of the aircraft; the unhindered performance of the crew members in their duty aboard the aircraft; or the safe and adequate flight operations:

…

(2)  the person’s conduct, or condition is or has been known to be abusive, offensive, threatening, intimidating, violent, or otherwise disorderly, and in reasonable judgment of a responsible carrier employee there is a possibility that such passenger would cause disruption or serious impairment to the physical comfort or safety of other passengers or the carrier’s employees, interfere with crew member in the performance of his/her duties aboard the carrier’s aircraft, or otherwise jeopardize safe and adequate flight operations;

….

(B) Sanctions

Where, in the exercise of its reasonable discretion, the carrier decides that the passenger has engaged in prohibited conduct described above, the carrier may impose any combination of the following sanctions:

(1) removal of the passenger at any point;

(2) probation….

(3) refuse to transport the passenger. The length of such refusals to transport may range from a one-time to an indefinite up to lifetime ban. The length of the refusal period will be in the carrier’s reasonable discretion, and will be for a period commensurate with the nature of the prohibited conduct and until the carrier is satisfied that the passenger no longer constitutes a threat to the safety of other passengers, crew or the aircraft or to the comfort of the other passengers or crew; the unhindered performance of the crew members in their duty aboard the aircraft; or the safe and adequate flight operations.…

III. Recourse of the passenger/limitation of liability

Carrier’s liability in case of refusal to carry a passenger for a specific flight or removal of a passenger en route for any reason specified in the foregoing paragraphs or in Rule 40 or 75 shall be limited to the recovery of the refund value of the unused portion of passenger’s ticket from the carrier so refusing or removing, if any and subject to applicable fare rule, as provided in the General Refund section of rule 100 (Refunds).

A person who is refused carriage for an indefinite period of time, up to a lifetime ban, or to whom a probation notice is served may provide to the carrier, in writing, the reasons why he/she no longer poses a threat to the safety or comfort of passengers or crew, or to the safety of the aircraft. Such document may be sent to the address provided in the refusal to carry notice or the notice of probation.

Carrier will respond to the passenger within a reasonable period of time providing the carrier’s assessment as to the need or not to prolong the ban or to maintain the probation period.