Decision No. 14-C-A-2010

January 15, 2010

File No. M4120-3/09-02940

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INTRODUCTION AND ISSUE

[1] Scott Crosby filed a complaint with the Canadian Transportation Agency (Agency) with respect to the refusal by Air Canada to transport him on Flight AC129 from Montréal, Quebec to Vancouver, British Columbia on December 3, 2008 because of unruly behaviour.

[2] Did Air Canada properly apply the terms and conditions of carriage relating to refusal to transport, as set out in its Domestic Passenger General Rules Tariff No. CDGR-1 (Tariff), when it refused to transport Mr. Crosby?

[3] As indicated in the reasons that follow, the Agency finds that Mr. Crosby has failed to discharge his burden of proof that, on a balance of probabilities, Air Canada did not correctly apply the terms and conditions of its Tariff when it refused to transport Mr. Crosby on December 3, 2008. The Agency therefore dismisses the complaint.

FACTS

[4] On December 3, 2008, Mr. Crosby travelled by air from Saint John, New Brunswick to Montréal, to connect with Flight AC129 to Vancouver. Mr. Crosby was involved in two incidents with Air Canada's crew for Flight AC129. The first incident, regarding the removal of his iPod ear buds, occurred upon boarding the flight. The second incident involved Mr. Crosby's use of his cell phone and arose during a rapid deplaning of Flight AC129 before its departure from Montréal, due to a fuel spill. As a result of these incidents, Air Canada refused to transport Mr. Crosby from Montréal to Vancouver on December 3, 2008. However, after conducting an assessment based on its internal procedures, Air Canada allowed Mr. Crosby to use his original ticket to travel the next day, and applied a $56.50 change fee. Mr. Crosby seeks reimbursement totalling $742.90, which includes the flight change fee, the loss of wages, the cost of his accommodation in Montréal and his return flight.

EVIDENCE AND SUBMISSIONS

[5] Mr. Crosby acknowledges that while boarding Flight AC129, he wore his iPod ear buds, that Air Canada's gate agent instructed him to remove them, and that he responded "yes." Mr. Crosby indicates that he continued to walk down the ramp to board Flight AC129 without removing the ear buds because of the difficulty in doing so, given that his iPod was in his front pocket, and his hands were occupied carrying a backpack and a laptop computer. Mr. Crosby alleges that, upon entering the aircraft, he was confronted by an aggressive flight attendant who, with respect to the iPod ear buds, said to him "I am serious sir", to which Mr. Crosby replied "chill out", and that he continued to walk to his seat. Mr. Crosby indicates that because of the distance, barriers and passengers between the entrance to the aircraft and his seat, it was physically impossible for him to remove his ear buds until such time as he reached his seat. According to Mr. Crosby, he then removed his iPod and he had no further contact on the aircraft with Air Canada staff regarding this particular matter.

[6] Mr. Crosby acknowledges that he used his cell phone while on the ramp to the airport terminal immediately after passengers had been deplaned from Flight AC129. He submits that he wanted to advise his wife, who was to meet him on arrival in Vancouver, of the flight delay as soon as possible. Mr. Crosby maintains that his use of his cell phone was legal and compliant with the orders given by the captain while passengers were on the aircraft.

[7] Mr. Crosby notes that, while he waited in the terminal, an Air Canada employee advised him that the captain of Flight AC129 had decided that he would be refused transportation because of the need for the captain to approach him twice regarding the use of his iPod. Mr. Crosby indicates that, at his request, he then met with the captain, who indicated to him that he was being refused transportation because of security reasons.

[8] Air Canada submits that Mr. Crosby was hostile as soon as he boarded Flight AC129, and that he refused to remove his iPod ear buds when asked to do so by the service director.

[9] Air Canada contends that the captain witnessed the exchange between Mr. Crosby and the service director, and followed Mr. Crosby down the aisle to remind him that the ear buds had to be removed during the boarding process. Air Canada submits that Mr. Crosby responded that he would remove them for takeoff, but complied when the captain explained why they had to be removed at that moment.

[10] Air Canada submits that due to a fuel spill, the captain decided that a rapid deplaning was necessary. The captain publicly announced that passengers were prohibited from using their cell phone until they reached the terminal. Air Canada asserts that notwithstanding the announcement, Mr. Crosby used his cell phone and continued to do so after the flight director asked him to comply with the announcement.

[11] According to Air Canada, the captain was advised of Mr. Crosby's use of his cell phone. Air Canada submits that the captain made the decision to refuse to carry Mr. Crosby, as he had repeatedly disregarded the safety instructions of the crew and was at risk of further non-compliance. Air Canada submits that the gate agent advised Mr. Crosby of the captain's decision, and that the captain confirmed his decision to Mr. Crosby.

[12] In support of its submissions, Air Canada provided written statements by the captain and the service director for Flight AC129.

[13] With regard to Mr. Crosby's claims for reimbursement, it is Air Canada's position that it should not be required to compensate Mr. Crosby as it correctly applied its Tariff.

ANALYSIS AND FINDINGS

[14] When a complaint is filed with the Agency, the onus is on the complainant to prove, on a balance of probabilities, that the carrier failed to properly apply the terms and conditions of carriage as set out in its tariff.

[15] The Agency notes that the Tariff provides that the carrier may refuse to transport a passenger should the carrier decide, in its reasonable discretion, that the passenger has engaged in prohibited conduct. Specifically, Rule 35(II)(D) of the Tariff states that Air Canada may refuse to transport or remove a passenger if:

D. The person fails to observe the instructions of the carrier and its employees, including instructions to cease prohibited conduct.

[16] In this case, while parties have a different recollection of events, both parties agree that the two incidents occurred, which resulted in Mr. Crosby being refused transportation on Flight AC129.

[17] With regard to the first incident, Mr. Crosby maintains that he removed the iPod ear buds when he was able to do so. Air Canada submits that Mr. Crosby was instructed to remove the ear buds several times, and did not comply with the instructions until the captain followed him down the aisle.

[18] With respect to the second incident, Mr. Crosby asserts that as Flight AC129 "was not going anywhere anytime soon", there was no harm in him using his cell phone to contact his wife. Air Canada submits that not only did Mr. Crosby ignore the public announcement concerning the use of cell phones, but he continued to use his cell phone after the service director asked him to refrain from doing so. The parties differ in their testimony as to whether this incident took place on board the aircraft or on the jet bridge, which Mr. Crosby argues is part of the terminal building.

[19] The Agency notes Mr. Crosby's admission that he did not comply with the initial requests to remove the ear buds, insisting that those requests were not made by the captain. Mr. Crosby also admits continuing to use his cell phone after the service director reiterated that he should refrain from doing so, stating in his submissions that "It was evident that the plane was not going anywhere anytime soon, so what was the harm in me using my cell phone during this time?".

[20] The Tariff allows Air Canada to refuse to transport a passenger when he or she fails to observe the instructions of the carrier's employees to cease prohibited conduct.

[21] Air Canada's Tariff is clear, but actions taken pursuant to the Tariff are reviewable by the Agency upon complaint. Air Canada has not identified any specific purpose for repeatedly requesting that Mr. Crosby remove his ear buds while boarding the aircraft and it is not clear that this alone would have justified his removal from the aircraft. However, it is clear that the captain restricted the use of electronic devices, during the rapid deplaning due to a fuel spill, for the safety of the passengers, crew and airport personnel, which is fully in the captain's discretion.

[22] Mr. Crosby has not explained why it was necessary for him to use his cell phone to contact his wife immediately after deplaning the aircraft as she did not have to meet him for several hours and when, by his own admission, he had no clear information about his revised arrival time. Only a very urgent need would outweigh the lawful order of a captain respecting the safety of the aircraft. The burden lies with the applicant to prove his case, and Mr. Crosby has failed to do so.

[23] In light of the evidence submitted, the Agency finds that Mr. Crosby failed to observe the instructions of Air Canada's employees and that Air Canada properly applied the terms and conditions of carriage regarding refusal to transport set out in its Tariff.

[24] Consequently, the Agency will not require Air Canada to reimburse Mr. Crosby for any out-of-pocket expenses that he incurred because of Air Canada's refusal to transport him on Flight AC129 on December 3, 2008.

CONCLUSION

[25] Based on the above findings, the Agency dismisses the complaint.

Members

• Raymon J. Kaduck
• J. Mark MacKeigan