Decision No. 11-C-A-2012

INTRODUCTION AND ISSUE

[1] Peter Jeffery filed a complaint against Air Canada with the Canadian Transportation Agency (Agency) concerning Air Canada’s refusal to transport him and his wife on Flight No. AC1234 from Toronto, Ontario to Fort Myers, Florida on February 24, 2011, due to alleged unruly behaviour.

[2] Mr. Jeffery seeks an apology from Air Canada and compensation for stress, insult and embarrassment caused to himself and his wife.

[3] The issue before the Agency in this complaint is:

Did Air Canada properly apply the terms and conditions of carriage as set out in its Canadian General Rules Tariff NTA(A) No. 241 (Tariff) relating to refusal to transport, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?

[4] As indicated in the reasons that follow, the Agency finds that, on a balance of probabilities, Air Canada properly applied the terms and conditions set out in its Tariff relating to refusal to transport. The Agency therefore dismisses the complaint.

PRELIMINARY MATTER

[5] The Agency will not address Mr. Jeffery’s request for an apology and compensation for stress, insult and embarrassment as the Agency does not have jurisdiction to direct an air carrier to apologize or to award compensation for matters of this nature.

POSITIONS OF THE PARTIES

Complainant

[6] Mr. Jeffery states in his complaint that he and his wife were removed from Flight No. AC1234 after his wife was refused a necessary washroom break. Mr. Jeffery asserts that prior to boarding, Mrs. Jeffery and other passengers were held in the walkway due to an aborted boarding process. Mrs. Jeffery went to the lavatory as the aircraft was at the gate, while the loading door was still open and before all passengers were seated. Mr. Jeffery further states that the flight service director, Ms. Annie Michaud, made an abusive and loud comment about “fricking woman who needed the break.” Mr. Jeffery asked flight service director Michaud, for an apology for this remark, and then the incident escalated and involved some loud and unpleasant language. Mr.Jeffery states that he and his wife were subsequently deplaned on the basis that Mrs. Jeffery had “barged” the flight attendant which Mr. Jeffery asserts is a completely false accusation.

[7] Mr. Jeffery states that the incident was humiliating as a result of intolerable and abusive behaviour by flight service director Michaud and a failure of other Air Canada staff to intervene.

[8] Mr. Jeffery provided several e-mails from other passengers in support of his complaint. The comments describe flight service director Michaud as being rude to and berating passengers during the boarding process and having an obnoxious attitude toward and disrespect for passengers. According to one passenger, he overheard flight service director Michaud telling another employee she was upset the flight was late because she had hoped to go shopping. Among the passengers was a former airline employee, who describes flight service director Michaud’s behaviour as “unprofessional and uncalled for,” adding that she thought the rest of the crew were intimidated by her behaviour and were going about their duties trying not to upset the situation further.

[9] An off-duty Air Canada employee seated behind the couple describes flight service director Michaud’s loud comments about Mrs. Jeffery’s use of the lavatory as “unnecessary and insulting” and states that in the subsequent discussion with Mr. Jeffery, flight service director Michaud “flew off the handle and lost her cool” and that the “situation was blown out of proportion.”

[10] Mr. Jeffery also provided a copy of a letter from Air Canada in which travel vouchers for future travel in the amount of $200 were provided to him and his wife.

Air Canada

[11] Air Canada states that Mr. Jeffery exhibited abusive and disrespectful behaviour after flight service director Michaud remarked that his wife should have followed the crew’s instructions and waited until after take-off to use the lavatory. More precisely, Mrs. Jeffery, who was seated near Mr. Jeffery in the aircraft, asked flight service director Michaud if she could use the lavatory before departure. At that time, the flight attendants, including flight service director Michaud, were in final preparation for departure. Air Canada submits that flight service director Michaud had been instructed by the Captain to close the aircraft door and make the final count of the passengers in order to be able to take off as soon as possible, as the flight was already delayed due to mechanical problems. Flight service director Michaud informed Mrs. Jeffery that she could not use the lavatory at that moment and instructed her to wait until after take-off.

[12] Air Canada submits that Mrs. Jeffery did not follow instructions, proceeded to the front of the aircraft to use the lavatory and, in doing so, compromised the final count of passengers that was being made. Air Canada further states that Mrs. Jeffery also ignored the instructions of another flight attendant who was serving Business Class and further delayed the departure of the flight.

[13] Air Canada states that flight service director Michaud was surprised that Mrs. Jeffery had not followed instructions and did comment “under her breath,” while Mrs. Jeffery was making her way to the lavatory, that she could have used the washroom while waiting for the flight to board. Air Canada maintains that flight service director Michaud did not use the language that Mr.Jeffery alleges in his complaint.

[14] Air Canada submits that Mr. Jeffery made a disrespectful comment relating to the ethnicity of flight service director Michaud. Upon hearing this statement, flight service director Michaud inquired into who had made such a statement. Mr. Jeffery confirmed that he had made the statement. Flight service director Michaud informed Mr. Jeffery that his statement was unacceptable and all of the other flight attendants on that flight were also of the same ethnic origin. In order to determine whether Mr. Jeffery would respect the crew’s instructions and abide by their authority during the flight, flight service director Michaud requested that Mr. Jeffery apologize. Air Canada further submits that Mr. Jeffery continued to be confrontational and asked for an apology for his wife. Considering Mr. Jeffery’s continued confrontational attitude and disrespect towards the crew, Mr. Jeffery was ordered to deplane.

[15] Air Canada submits that in light of Mr. Jeffery’s behaviour and attitude toward flight service director Michaud and the crew’s authority, the Captain decided to maintain flight service director Michaud’s decision to deplane Mr. Jeffery in order to avoid further unruly behaviour, which could jeopardize the safe and adequate operations of Flight No. AC1234 and put at risk the safety and comfort of the crew and other passengers.

[16] Air Canada states that when the decision was communicated to Mr. Jeffery, he further reacted in a disruptive manner, thereby requiring the intervention of Air Canada’s customer service manager. Instead of gathering his belongings to deplane the aircraft, Mr. Jeffery further delayed the flight by remaining on the aircraft and gathering information from other passengers. Air Canada further submits that Mr. Jeffery insisted that the customer service manager proceed with an “on the spot” investigation regarding the incident, which was denied as the Captain’s decision was final and as the flight was scheduled to depart.

[17] Air Canada submits that once Mr. Jeffery was deplaned, no further action was taken against him and that he and his wife were able to take a later direct flight with Air Canada that same day to Fort Myers.

[18] Air Canada also provided witness statements of flight service director Michaud, the flight attendant who served Business Class, Ms. Villeneuve, and the customer service manager, Ms.Leonardo.

[19] Flight service director Michaud states that: Mrs. Jeffery did not listen to the instruction that use of the lavatory would have to wait until after take-off and that she would have to use the rear lavatory; she did not make the statement alleged by Mr. Jeffery, but did question why Mrs.Jeffery had not gone to the washroom while waiting to board the flight; Mr. Jeffery made a derogatory comment about French Canadians that was unacceptable, i.e., “freeking French Canadian”; and there was a concern that Mr. Jeffery would continue to be disrespectful and not follow instructions.

[20] The flight attendant in Business Class states that: she heard Mrs. Jeffery ask to use the lavatory and the response that she would have to sit down and wait for after take-off; Mrs. Jeffery did not listen and proceeded to go to the lavatory in Business Class; Mrs. Jeffery interrupted service to Business Class passengers and pushed her aside to get to the lavatory after being told to return to her seat; Mr. Jeffery was in and out of the aircraft several times to collect his personal belongings and to get contact information from other passengers; every time Mr. and Mrs. Jeffery passed by the flight attendant, they were aggressive and confrontational.

[21] The Air Canada customer service manager states that: she was called to the gate as two passengers were being deplaned; she asked the Captain if the decision was final and this was confirmed; she explained to Mr. Jeffery that he would have to deplane; Mr. Jeffery further delayed the flight by getting contact information from surrounding passengers; Mr. Jeffery was very agitated the whole time and took a while to calm down once deplaned.

ANALYSIS AND FINDINGS

[22] When a complaint is filed with the Agency, the onus is on the complainant to establish that, on a balance of probabilities, the carrier failed to properly apply the terms and conditions of carriage set out in its Tariff as required by subsection 110(4) of the ATR.

[23] The Agency notes that Air Canada’s Tariff contains the provision that the air carrier may refuse to transport or can remove a passenger if it considers, while exercising reasonable discretion, that the passenger has engaged in unacceptable behaviour. More specifically, Rule 35AC II(1) reads as follows:

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’s 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:

(...)

b) 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 judgement 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 carrier’s employees, interfere with a crew member in the performance of his duties aboard carrier’s aircraft, or otherwise jeopardize safe and adequate flight operations;

(...)

d) the person fails to observe the instructions of carrier and its employees, including instructions to cease prohibited conduct;

[24] The Agency acknowledges that there is some contradictory evidence submitted particularly as it relates to the exact comments made by flight service director Michaud with respect to Mrs.Jeffery. Where contradictory evidence exists, the Agency will determine which version of events is the more probable, based on the preponderance of evidence. However, in this case, the Agency finds that it is not necessary to determine which version is more probable as the series of events which led Mr. and Mrs. Jeffery to be deplaned from Flight No. AC1234 were recognized by both Air Canada and Mr. Jeffery.

[25] Based on the written submissions before the Agency, Mrs. Jeffery used the lavatory at the front of the aircraft while final preparations for take-off were underway. In doing so, Mrs. Jeffery ignored the instruction of flight service director Michaud to wait until after take-off and to use the rear lavatory and ignored the instruction of the flight attendant in Business Class to return to her seat. Mr. Jeffery did not deny that his wife ignored these instructions.

[26] Based on the comments provided by Mr. Jeffery and the witness statements in support of his complaint, the overall behaviour of flight service director Michaud contributed in part to the manner in which the incident escalated into an argument between her and Mr. Jeffery. According to the evidence on file, this argument was characterized by the exchange of loud and possibly unpleasant remarks on the part of both Mr. Jeffery and flight service director Michaud.

[27] The wording used in the Air Canada Tariff gives relatively broad latitude to employees in interpreting what constitutes prohibited conduct. However, the interpretation and subsequent actions of an Air Canada employee must be within the scope of reasonable judgement. Air Canada’s Tariff provision cannot be used as a means to deplane passengers simply because there is disagreement or an argument between an air carrier employee and a passenger. There must be some evidence that the passenger’s behaviour does, in fact, pose a threat to the safety or comfort of other passengers, air carrier personnel or the aircraft itself.

[28] The Agency must decide whether or not flight service director Michaud made a reasonable judgement that Mr. and Mrs. Jeffery should be deplaned from the aircraft because of their behaviour. In view of the fact that Mrs. Jeffery had ignored instructions and that Mr. Jeffery was argumentative, flight service director Michaud had a legitimate concern that this behaviour might continue on the flight and pose a threat to the comfort and safety of other passengers. Mr.Jeffery’s reference to flight service director Michaud’s ethnicity was at the very least unhelpful in resolving the situation and was taken as derogatory. While the simple question of what a person’s ethnicity might be is neutral in some situations, it is hard to see how a reasonable person would conclude it would be appropriate, would reduce the tension or would be likely to bring about the resolution that person was seeking, which was an apology. In these circumstances, the Agency finds that these comments fall within the definition of abusive behaviour.

[29] Flight service director Michaud’s loud comments about the use of the lavatory were inappropriate and contributed to the disturbance. It is not clear why, faced with a passenger who was seeking an apology, flight service director Michaud concluded that demanding one instead was necessary to the safety of the aircraft. However, no matter how much her own lack of restraint had contributed to the escalation of the incident, flight service director Michaud still had the duty to make a judgement about the continued behaviour of Mr. and Mrs. Jeffery and its potential effect on the safe and orderly conduct of the flight.

[30] While the Tariff provision is not meant to shield flight attendants from the consequences of their own bad judgement, in this case, the prospect of continued disorderly conduct was not unreasonable. The decision to deplane the passengers was subsequently confirmed by the Captain.

[31] The events that transpired after Mr. and Mrs. Jeffery were ordered to deplane are completely immaterial to the decision of flight service director Michaud to deplane Mr. and Mrs. Jeffery.

[32] On balance, and taking into account the legitimate purpose for which they exist, the Agency finds that Air Canada correctly applied the terms and conditions of carriage in its Tariff governing refusal to transport.

[33] Air Canada transported Mr. and Mrs. Jeffery to Fort Myers on a later flight that same day. Therefore, the Tariff provision requiring the refund of an unused portion of a ticket does not apply. Air Canada also provided travel vouchers to Mr. and Mrs. Jeffery prior to their bringing the case before the Agency.

CONCLUSION

[34] The Agency finds that Air Canada properly applied the terms and conditions of carriage set out in its Tariff and the applicable regulatory requirements.

[35] Consequently, the Agency dismisses the complaint.