Decision No. 102-C-A-2017

SUMMARY

[1] Ivan Kotskulych filed an application with the Canadian Transportation Agency (Agency) concerning Porter’s refusal to transport him between Washington, D.C., United States of America and Toronto, Ontario, Canada.

[2] Mr. Kotskulych is seeking reimbursement in the amount of US$220.35 for the cost of a one night stay in a hotel in Washington.

[3] The Agency will address the following issue:

Did Porter properly apply the terms and conditions set out in Rule 25 of its Transborder Tariff, NTA(A) No. 241 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Porter did not properly apply the terms and conditions of carriage set out in its Tariff, what remedy, if any, is available to Mr. Kotskulych?

[4] For the reasons set out below, the Agency finds that Porter properly applied the terms and conditions set out in its Tariff and dismisses the application.

BACKGROUND

[5] On July 16, 2017, Mr. Kotskulych was scheduled to travel on Porter Flight No. 728 from Washington to Toronto. However, following events on the aircraft before departure, Mr. Kotskulych was refused transportation.

THE LAW

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

[7] 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:

1. take the corrective measures that the Agency considers appropriate; and,
2. 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.

[8] Rule 25 of the Tariff addresses Porter’s terms and conditions with respect to refusal to transport due to a passenger’s conduct or behavior.

The carrier may reserve the right to transport or may remove from any flight any passenger for any reason, including but not limited to the following:

[E] Passenger’s Conduct/Behavior The Carrier may impose sanctions on any person who engages in or has engaged in any conduct or behavior on the Carrier’s aircraft, or to the knowledge or reasonable belief of the Carrier, on any airport property or other carrier’s aircraft, that the carrier’s determines, in its reasonable judgment, may have a negative effect on the safety, comfort or health of that person, passengers, the Carrier’s employees or agents, aircrew or aircraft or the safe operations of the Carrier’s aircraft (the “Prohibited Conduct”)

[1] Examples of Prohibited Conduct that could give rise to the imposition of sanctions include:

[…]

b. engaging in belligerent, lewd or obscene behavior toward a passenger or employee or agent of the Carrier;

c. threatening, harassing, intimidating, assaulting or injuring a passenger or employee or agent of the Carrier;

[…]

e. failing to comply with all instructions, including all instructions to cease Prohibited Conduct, given by the Carrier’s employees;

[…]

[2] The sanctions the Carrier may impose on a person may be any one or combination of the following:

a. written or verbal warning;

b. refusal to permit boarding of an aircraft;

e. removal from an aircraft at any point;

d. requiring the person, to undertake in writing to refrain repeating the Prohibited Conduct in question and from engaging in any other Prohibited Conduct as a prerequisite to further travel with the Carrier during the probationary period that will not normally exceed one year;

Mr. Kotskulych’s position

[9] Mr. Kotskulych states that prior to take-off, he complained to a flight attendant “that a mother with an infant must control [of] her baby, sitting next to me, and the baby climbing at me and touching me.” Mr. Kotskulych claims that the flight attendant”instead of taking my complaint and dealing with the mother, who did not control her baby, she shouted at me to get out from the plane because she cannot fly me because I did not speak English properly and I should go to my home country, not Canada.”

[10] According to Mr. Kotskulych, the flight attendant shouted at him, and went to the captain “to tell him to get me out because she cannot fly with me”. Mr. Kotskulych claims that the captain then “shouted at me to get out from the plane and fly to my own home country, instead of Canada, because the flight attendant does not want to fly with me. The captain did not politely ask me about my complaint, but was rude and is xenophobic.”

[11] Mr. Kotskulych submits that while he was talking to the captain, the mother with the baby changed her seat voluntarily and Mr. Kotskulych notified the captain and informed him that he was now comfortable travelling to Toronto. Mr. Kotskulych claims that the captain not only ignored this information but he was rude and shouted at him to get off the aircraft, stating that he would call the police to remove him from the aircraft. According to Mr. Kotskulych, he told the captain that “I paid for this flight and I am willing to leave the plane and fly by another airline if he refunds me for this flight and pays for the staying in the hotel overnight.” Mr. Kotskulych submits that the captain ignored him.

[12] Mr. Kotskulych states that when the police arrived, he left the aircraft with the police and informed them of the incident, and the police recorded that the incident was related to bad customer service.

[13] Mr. Kotskulych argues that, because his flight was rebooked for July 17, 2017 at 2:00 p.m., he had to book a hotel to stay overnight at a cost of US$220.35.

Porter’s position

[14] Porter “strenuously denies” Mr. Kotskulych’s version of the events, in particular his interactions with the crew.

[15] Porter submits that after boarding the flight, Mr. Kotskulych, located in seat 3D, complained to the flight’s purser about the passenger beside him, specifically about the infant on her lap, indicating that he was uncomfortable being seated by an infant, and that, having paid a fee to select his seat, he believed that Porter should have informed him that his selected seat was beside an infant. In response, the purser informed him that passengers are permitted to hold infants on their laps, but offered to move him to another seat, 4B.

[16] According to Porter, Mr. Kotskulych declined to move and the passenger holding the infant (the infant’s grandmother) “passed the infant to its mother seated in 3B across the aisle”. Porter submits that, even after the infant was moved, Mr. Kotskulych continued to complain aloud, “raising his voice in a rude and disrespectful manner”, creating an uncomfortable environment and making the infant’s grandmother uncomfortable.

[17] Porter submits that, as Mr. Kotskulych refused to cease the disruptive behavior, the purser sought the captain’s assistance, informing him that “she did not feel comfortable continuing the flight with this pax on board.” At this point the captain informed Mr. Kotskulych that he would need to get off the aircraft; however, he refused and as a result, the captain called the airport police for assistance in removing the passenger from the aircraft.

[18] Porter argues that Mr. Kotskulych’s loud and disrespectful behavior constitutes “Prohibited Conduct” and that in refusing him transport, Porter’s crew acted in accordance with Rule 25 of its Tariff.

Mr. Kotskulych’s reply

[19] Mr. Kotskulych states that Porter’s answer demonstrates that it “is offensive, xenophobic, Ukrainophobic, and exhibits the company has no customer service at all!” He argues that his complaint was polite and that he spoke at an appropriate volume so that the flight attendant could hear him, as she asked him to speak louder due to the noise of the aircraft’s engines. According to Mr. Kotskulych, the flight attendant stated that “…’she is not legally obliged to inform me in advance about unruly child seating near me. My response was that I was not obliged to fly by Porter Airlines Inc, plane legally, too.…”

[20] Mr. Kotskulych also submits that the flight attendant and the captain did not explain the rules to him in Ukrainian and therefore he did not “understand comprehensively anything during the conversation with the flight attendant and the Captain.” Mr. Kotskulych argues that every international flight has to have a flight attendant that is multilingual in order to communicate with passengers in their native language; specifically, he claims that the flight attendant on his flight must be able to communicate with him in Ukrainian during the international flight.

Findings of fact

[21] When contradictory versions of events are presented by the parties, the Agency has previously ruled, most recently in Decision No. 61-C-A-2017, that the burden of proof falls on the applicant to establish that their version is most likely to have occurred. The Agency, in considering the evidence, must determine which of the different versions is more probable, based on the preponderance of evidence.

[22] In this case, Mr. Kotskulych alleges that Porter’s flight attendant and captain verbally abused him and made xenophobic statements. He states that when he complained about being seated next to an infant, he was told that he did not speak English properly and that he should go back to his home country.

[23] In support of its version of events, Porter filed the purser’s Incident Report (Report) and witness statements from the purser, Sydney Neill, the captain, Sean Elston, and the first officer, Charles Shaw, along with signed witness statements from the infant’s mother, Cindy Najhram and a passenger seated behind Mr. Kotskulych, Hector Crespo.

[24] In the Report, Ms. Neill states that when Mr. Kotskulych informed her that he was uncomfortable in his seat, she asked why and he said that he should have been informed that there would be an infant seated beside him. She states that she informed him that the carrier does not have to inform passengers in such situations. Ms. Neill asserts that the mother offered to hold the infant but that Mr. Kotskulych continued to state that he was uncomfortable and that he paid extra for comfort but he was not comfortable.

[25] Ms. Neill states that she offered to move Mr. Kotskulych to another seat, as an aisle seat might be more comfortable, but he declined. According to Ms. Neill, after the infant moved seats, he continued to complain and speak disrespectfully to her, at which time she became uncomfortable continuing the conversation and told Mr. Kotskulych that she would get the captain to speak with him. Ms. Neill explains that she told the captain what happened and the captain asked if she wanted the passenger removed, to which she said yes.

[26] Ms. Neill submits that the captain spoke with Mr. Kotskulych and told him that he would have to leave the aircraft for being disrespectful and rude; however, Mr. Kotskulych refused and they called security.

[27] In his statement, the captain maintains that after the gate agents removed the bridge, the purser came to the flight deck and said that a passenger was being very frustrating and disrespectful towards her and a woman with an infant and that he was causing issues with the passengers around him. The captain states that he never witnessed the purser raise her voice with any passenger. The captain adds that after a short discussion, the purser stated that she did not feel comfortable continuing the flight with the passenger on board. The captain submits that he told Mr. Kotskulych that, based on his behaviour, he would need to get off the aircraft. The captain adds that all of Mr. Kotskulych’s responses were very quiet.

[28] According to the captain, Mr. Kotskulych said that he didn’t believe he was being disrespectful to anyone and he submits that at no time did Mr. Kotskulych attempt to apologize or take any responsibility for the situation; he only expressed that he paid for a seat. The captain asserts that Mr. Kotskulych was very dismissive and that it was very clear that he would not be leaving the aircraft at his request. The captain states that he requested the gate agents to call the police because the passenger was not getting off; the police arrived several minutes later. According to the captain, he told the police that a passenger needed to be removed, the police asked what happened and he told them that the passenger was disrespectful to crew members. They asked if he had asked the passenger to get off the aircraft and he told them yes.

[29] The captain submits that the police boarded the aircraft and within a few minutes Mr. Kotskulych got up, removed his bag from the overhead bin and followed the officers off the aircraft. He did not say anything else to the crew after the police boarded the aircraft. The captain claims that he heard many passengers that were sitting around Mr. Kotskulych compliment the purser, saying “you handled everything very well”.

[30] In his statement, Mr. Crespo reports that he heard Mr. Kotskulych say that the carrier should inform passengers if they are going to be seated beside an infant, and that he continued to complain for several minutes. He further states that he heard the flight attendant offer Mr. Kotskulych another seat and Mr. Kotskulych continued to complain even after the child was moved to another seat. Mr. Crespo submits that the flight attendant left to get the captain, who asked Mr. Kotskulych to exit the aircraft, but that he refused; however, once the police arrived, he left without incident.

[31] In addition, Mr. Crespo states that after Mr. Kotskulych left, the flight attendant returned to speak to the family with the infant to apologize for the incident and ensure that they were comfortable. He submits that the flight attendant was “professional and thoughtful and the family was polite and thankful for the help.”

[32] In her statement, Ms. Najhram reports that she was travelling with her two children and her mother, with her two year old child sitting on her mother’s lap. She submits that the passenger sitting beside her mother was upset that there was a child sitting on her mother’s lap. According to Ms. Najhram, the flight attendant tried to address Mr. Kotskulych’s complaints but he did not listen to any of the solutions and was upset that the carrier had not informed him that an infant would be seated beside him. Ms. Najhram asserts that the flight attendant tried again to offer a solution but Mr. Kotskulych was disrespectful and rude, raised his voice, and was creating an uncomfortable environment. Ms. Najhram submits that the flight attendant informed the captain of the situation.

[33] In his statement, Mr. Shaw reports that he did not witness any of the events; however, he did witness “the outpouring of support from passengers who were witnesses” who complimented the purser on the way she handled the situation.

[34] The Agency finds that based on this evidence, Mr. Kotskulych engaged in belligerent behaviour when continuing to complain about being seated next to an infant despite the attempts of the crew to address his concerns, and that his conduct affected the comfort of the crew and the other passengers. The statements provided by Porter’s crew supports the conclusion that Mr. Kotskulych was rude and disruptive and continued to complain even when offered solutions to what he perceived to be a significant issue. The evidence of Mr. Crespo also supports this conclusion. He indicates that Mr. Kotskulych continued to complain for several minutes and when he was directed to leave the aircraft, he refused. Significant weight should be given to this evidence as Mr. Crespo is an independent witness with no interest in these proceedings. Mr. Kotskulych’s version of what transpired does not have an air of reality. It seems unlikely that the crew would attack him and his nationality in the way that he describes, and his evidence is contradicted by that of the other witnesses to the events, including other passengers. Accordingly, the Agency finds that Mr. Kotskulych behaved in a disrespectful manner, was belligerent, and did not comply with the crew’s instructions.

ANALYSIS AND DETERMINATIONS

[35] Rule 25 of its Tariff allows Porter, at its reasonable discretion, to remove any person from its aircraft when it is deemed necessary for their comfort and safety and the comfort and safety of the cabin crew, other passengers, or for the safe operation of the aircraft. This Rule also lists prohibited conduct and behaviour that will lead to a passenger being refused transportation, specifically engaging in belligerent, lewd or obscene behaviour and failing to comply with the cabin crew instructions.

[36] Based on the above, the Agency finds that Mr. Kotskulych’s removal from the aircraft was justified and that, in removing Mr. Kotskulych from Flight No. 728, Porter properly applied its Tariff.

[37] In his reply, Mr. Kotskulych introduced an issue that was not raised in his application, specifically, that the flight attendant and captain did not explain the rules to him in Ukrainian. Subsection 20(2) of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 sets out that a reply must not raise issues or arguments that are not addressed in the answer or introduce new evidence unless a request has been filed to that effect and the request has been granted by the Agency.

[38] As Mr. Kotskulych did not file such a request, and thereby provide Porter with an opportunity to respond to these allegations, the Agency will not address this issue; however, the Agency notes that Mr. Kotskulych did not argue that he tried to explain to the crew that he was having difficulty communicating nor did he allege that he requested assistance in his native language, and the assistance was refused.

CONCLUSION

[39] The Agency dismisses the application.