Decision No. 128-C-A-2002

March 20, 2002

File No. 4370/A74/00-557

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BACKGROUND

On September 22, 2000, Brian Timms filed with the Air Travel Complaints Commissioner (hereinafter the Commissioner) the complaint set out in the title. On November 19, 2001, Mr. Timms advised the Commissioner that no settlement had been reached between the parties and that he wished to pursue his complaint before the Commissioner.

On November 20, 2001, Mr. Timms' complaint was referred to the Canadian Transportation Agency (hereinafter the Agency) as it raised a tariff issue that falls within the jurisdiction of the Agency.

On December 19, 2001, by Decision No. LET-C-A-489-2001, the Agency asked the two parties whether they would agree to have the comments that were filed before the Commissioner considered as pleadings before the Agency.

On December 20, 2001, Air Canada filed its response indicating that it refused to accept the comments filed with the Commissioner as pleadings before the Agency because the comments did not clearly state what "tariff issue" had allegedly been violated by Air Canada.

On January 29, 2002, by Decision No. LET-C-A-30-2002, the Agency indicated that it was opening pleadings and requested that Air Canada provide its answer to the complaint no later than 30 days from the date of receipt of that Decision.

On February 5, 2002, Air Canada filed its answer to the complaint and on February 12, 2002, Mr. Timms filed his reply to Air Canada's answer.

ISSUE

The issue to be addressed is whether Air Canada's refusal to carry Mr. Timms on Flight No. 418 on June 26, 2000, constituted a failure by the air carrier to comply with the applicable terms and conditions of its tariff.

FACTS

On June 26, 2000, following a disagreement and a difference of opinion with Air Canada's Customer Service Manager at the Toronto-Lester B. Pearson International Airport, Mr. Timms was refused transport with Air Canada due to Air Canada's contention that he was intoxicated and that he was a potentially disruptive passenger. Air Canada summoned the Peel Regional Police and Mr. Timms was escorted from the airport.

POSITIONS OF THE PARTIES

Mr. Timms indicates that on June 26, 2000, he travelled from London, England to Toronto with a carrier other than Air Canada. Mr. Timms admits that he had consumed alcohol on the flight from England. In Toronto, Mr. Timms was to connect to a Rapidair flight which would have taken him from Toronto to Montréal. Mr. Timms indicates that when he presented himself at the check-in counter for his connecting flight to Montréal, he thought the flight was to depart at around 4:00 p.m. Mr. Timms states that he did not realize that the flight's departure time had been postponed to 4:15 p.m. This information had not been clearly communicated to him. Believing that he was about to miss his flight, he raised his voice and loudly shouted "Which gate do I go to for Montréal?" Mr. Timms states that a scene ensued and that the agent at the counter called for Air Canada's Customer Service Manager, who in turn advised Mr. Timms that he was a safety risk. Mr. Timms maintains that the Customer Service Manager offered to allow him to catch a 7:00 p.m. flight to Montréal but the Customer Service Manager later changed his mind and advised Mr. Timms that he would not be allowed to travel with Air Canada that night. Mr. Timms states that the Customer Service Manager then called the police and he was escorted from the airport. Mr. Timms states that he was offered no alternative for travel or overnight accommodation and that he arrived home 16 hours later than scheduled because of the incident.

Mr. Timms admits that he had consumed alcohol on his original flight from England and that he recognizes the importance for a carrier to protect all its passengers from unsafe passengers. He states that Air Canada's representatives should have afforded him the opportunity to present himself six hours after the original incident, at around 11:00 p.m, so that his situation could be reassessed and his ability to travel at that point could be determined. Mr. Timms submits that the Customer Service Manager's curt response was that he "would be too busy". Mr. Timms maintains that it would be impossible for Air Canada to still justify that Mr. Timms remained "unsafe" six hours later. In Mr. Timms' view, the Customer Service Manager's attitude was inconsiderate, irresponsible, and unreasonable.

Mr. Timms requests a formal apology and a first class return ticket to London, England as a gesture of goodwill and also to mitigate his costs and inconvenience.

In its answer to the complaint, Air Canada refers to Mr. Timms' admission that he had consumed alcohol on his previous flight and that he raised his voice at the Rapidair desk in Toronto. Air Canada states that what is really at issue with respect to this incident is Mr. Timms' alcohol consumption.

Air Canada states that, when faced with what appeared to be a potentially disruptive passenger, its gate agent called in the Customer Service Manager, to help with the situation. Air Canada indicates that the Customer Service Manager used his judgement and refused Mr. Timms carriage on the Montréal flight. Air Canada maintains that the Customer Service Manager believed that Mr. Timms had consumed a quantity of alcohol that exceeded his tolerance and determined that there was a potential, due to the pressurization of the aircraft and the increased effect of alcohol in flight, for the verbally violent behaviour displayed by Mr. Timms at the counter to be repeated in flight.

Air Canada states that the Customer Service Manager decided to defer Mr. Timms' eligibility to travel to 7:00 p.m. that night in an attempt to allow him to "sober up". However, the Customer Service Manager was made aware that Mr. Timms continued to consume alcohol in the Maple Leaf Lounge. This was interpreted by the Customer Service Manager as another signal that further cooperation from Mr. Timms would be difficult that evening and that his consumption of alcohol meant that he still posed a threat to the safety or comfort of other passengers.

Air Canada refers to its tariff, in effect at the time of the incident, and to the case (Agency Decision No. 2-C-A-2001 dated January 3, 2001), in order to illustrate its right to refuse a disruptive or unruly passenger on any given flight or on any given day. Air Canada concludes that it was reasonable for it to refuse carriage to Mr. Timms on June 26, 2000 due to the circumstances existing at that time.

Air Canada points out that Mr. Timms was provided with a travel voucher in the amount of $182.50 (which represents half of the Montréal-Toronto return fare paid) in lieu of the unused Toronto-Montréal portion of his ticket.

In his reply, Mr. Timms again questions why he was not allowed to travel on Air Canada's last flight to Montréal that same evening. Mr. Timms submits that this flight, leaving Toronto at around midnight, was more than seven hours after the original incident and that Air Canada could have re-examined the situation at 7:00 p.m., as previously agreed.

Mr. Timms refers to the fact that Air Canada changed its mind after seeing him having a drink in the Maple Leaf Lounge around 6:00 p.m. Mr. Timms submits however that Air Canada did not attempt to reason with him or to discuss his behaviour. In his view, his behaviour was no different from that of any other passenger finding themselves in similar circumstances, being afraid of missing a flight and being ignored and not heard.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings as well as the terms and conditions of Air Canada's domestic tariff.

A number of statutory provisions in force at the time of the incident are relevant to the present analysis.

Section 55 of the CTA defines a tariff as a schedule of fares, rates, charges and terms and conditions of carriage applicable to the provision of an air service or other incidental services. Subsection 67(1) of the CTA provides, in part, that the holder of a domestic licence shall publish or display and make available for public inspection its tariffs for the domestic service it offers. A tariff referred to in section 67 of the CTA shall include the information required by the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR).

Pursuant to paragraph 107(1)(n) of the ATR, tariffs shall contain the terms and conditions of carriage, clearly stating the air carrier's policy in respect of, among others, the refusal to transport passengers or goods. The Agency has examined Air Canada's tariff applicable to the service described herein.

The terms and conditions of carriage applicable to Air Canada's flight from Toronto to Montréal on June 26, 2000 were governed by the air carrier's Domestic General Rules Tariff in effect at the time of travel.

Rule 35(G) (Refusal to Transport) of the Domestic General Rules Tariff reads, in part, as follows:

AC may refuse to transport or may remove at any point any passenger for any of the following:

(G) Whenever a passenger's conduct is disorderly, abusive or violent and his removal or refusal is necessary for the reasonable safety and/or comfort of other passenger, or he:

(I) appears to be intoxicated and/or under the influence of narcotics.

As the incident took place prior to the legislative amendments which came into force on July 5, 2000, the Agency must decide whether Air Canada's tariff clearly established Air Canada's right to refuse to carry or remove an unruly passenger on a one-time basis.

In view of the evidence provided by the parties, as well as all documents pertaining to the complaint, including the air carrier's tariff, the Agency is of the view that Air Canada's domestic tariff clearly sets out the carrier's policy with respect to its right to refuse to carry or remove an unruly passenger on a one-time basis.

With respect to the evidence, Mr. Timms admitted that he had consumed alcohol on his previous flight from London, England to Toronto, and that he had raised his voice at the Rapidair check-in counter for his connecting flight to Montréal. Mr. Timms also recognized the importance for a carrier to protect all its passengers from unsafe situations.

Further to this admission, Air Canada referred to its tariff and to the case (Agency Decision No. 2-C-A-2001 dated January 3, 2001) in order to support its right to refuse a disruptive or unruly passenger on a given flight or on a given day.

The Agency has further considered Mr. Timms' continued insistence that Air Canada has not responded to his question as to why he was not allowed to travel on the last flight to Montréal on the same evening. Mr. Timms maintained that Air Canada could have re-examined the situation.

Air Canada acknowledged that its Customer Service Manager agreed to reconsider his decision to deny Mr. Timms travelling at 7:00 p.m. on the night in question. However, Air Canada advised that Mr. Timms was seen having an alcoholic beverage in the Maple Leaf Lounge at around 6:00 p.m. In his reply, Mr. Timms did not challenge this fact. The Customer Service Manager thus decided to deny Mr. Timms transport because he was of the opinion that Mr. Timms' continued consumption of alcohol indicated that he remained a threat to the safety or comfort of other passengers on all remaining Air Canada flights that evening. The Customer Service Manager chose not to reconsider the situation based on this information.

The Agency is of the opinion that Air Canada was under no obligation to transport Mr. Timms at any time that evening once it had established that Mr. Timms' unruly behaviour warranted its decision to refuse him carriage. This decision was supported further when Air Canada staff was advised that Mr. Timms had continued drinking in the Maple Leaf Lounge. There was thus no reason for Air Canada to review the situation later that night.

In light of the above findings, the Agency determines that Air Canada did not contravene paragraph 107(1)(n) of the ATR and that it did apply the terms and conditions of its tariff in refusing to transport Mr. Timms on board its aircraft on June 26, 2000.

CONCLUSION

Based on the foregoing, the Agency hereby dismisses the complaint filed by Mr. Timms.