Decision No. 148-C-A-2009

April 20, 2009

April 20, 2009

COMPLAINT by Barry Reeves against Air Canada.

File No. M4120-3/08-50536


INTRODUCTION AND ISSUE

[1] Barry Reeves filed a complaint with the Canadian Transportation Agency (Agency) with respect to a refusal by Air Canada to transport him on Flight AC162 from Vancouver, British Columbia to Toronto, Ontario on September 7, 2008 due to unruly behaviour.

[2] Mr. Reeves had booked an onward connection, to travel with Air Canada on the same date to Newark, New Jersey, United States of America, that he was unable to use because of Air Canada's refusal to transport him on Flight AC162. Mr. Reeves indicated he subsequently purchased an airline ticket from Cathay Pacific Airways Ltd. (Cathay) as alternate transportation from Vancouver to New York, New York, United States of America. He requests the amount of CAD$3,800.24 in compensation, which represents the costs he incurred for hotel accommodation in Vancouver, the tickets he purchased from Air Canada and Cathay and loss of income for two days. In addition, Mr. Reeves requests that Air Canada provide him with two free First Class tickets to any destination served by Air Canada and that the carrier terminate the employment of the flight attendant responsible for removing him from the flight.

[3] The issue to be determined is: Did Air Canada properly apply the terms and conditions of carriage relating to its refusal to transport Mr. Reeves, as specified in its Canadian General Rules Tariff No. CGR-1, NTA(A) No. 241 C.A.B. No. 427 (Transborder Tariff)? If not, what is the appropriate remedy?

[4] As indicated in the reasons that follow, the Agency finds that Mr. Reeves did not meet his burden of proof that Air Canada did not properly apply the terms and conditions of carriage. The Agency therefore dismisses the complaint.

SUBMISSIONS

[5] Mr. Reeves submits that after boarding Flight AC162 on September 7, 2008, he asked a flight attendant if he could move to a vacant seat located at the back of the aircraft. He claims that the flight attendant replied that she did not know if he could sit there because the seats located at the back of the aircraft were reserved for the crew. He advises that he then asked another flight attendant. Mr. Reeves contends that the second flight attendant yelled at him and refused to give his name. According to Mr. Reeves, the aircraft returned to the gate and he was asked to deplane. He submits that upon deplaning, the police met him and informed him that he would not be allowed to travel on the flight to Toronto. He states that he stayed overnight at a hotel and travelled to New York the following day with Cathay. Mr. Reeves claims that he received e-mails from four other passengers on board Flight AC162 indicating that the flight crew acted wrongly toward him, and provided the electronic addresses of those passengers.

[6] Air Canada states that Mr. Reeves purchased a one-way ticket and that his itinerary was Kelowna/ Vancouver/Toronto/Newark. Air Canada submits that, on September 7, 2008, once Mr. Reeves had boarded Flight AC162 in Vancouver bound for Toronto, he demanded several times that crew members allow him to use a vacant seat in the last row of seats located at the back of the aircraft. Air Canada advises that the Service Director informed Mr. Reeves that his demand was denied because the seats located at the back of the aircraft were reserved for crew members to permit them to rest during the flight. Air Canada reports that Mr. Reeves did not accept the crew's responses and, while the aircraft was taxiing for take-off, he became argumentative and aggressive, used abusive language towards the Service Director, and threatened to interfere with the crew's duties during the flight if his demand was not met. Air Canada advises that the decision was made to remove Mr. Reeves from the flight in accordance with the provisions of its Transborder Tariff to avoid unruly behaviour during the flight. Air Canada adds that the aircraft returned to the gate, Mr. Reeves was removed from the flight, the Royal Canadian Mounted Police were called and they met Mr. Reeves after he was deplaned.

[7] Furthermore, Air Canada states that it refunded Mr. Reeves an amount of US$316.23, which corresponds to the value of the unused portion of his ticket. Air Canada maintains that it respected the terms and conditions of transport relating to refusal to transport as set out in its Transborder Tariff and requests that the Agency dismiss Mr. Reeves' complaint. Air Canada advises that Mr. Reeves is not banned from future travel as the carrier no longer considers him to be a risk to the safety of its operations.

[8] Air Canada filed several documents relating to this matter. Those documents include relevant provisions of its Transborder Tariff and written, signed statements from the crew members on duty at the time of the incident, and from an off-duty Air Canada employee travelling as a passenger on the flight. Air Canada provided Mr. Reeves with a copy of its answer.

[9] In a letter dated January 12, 2009 which set out the process for pleadings, Agency staff informed Mr. Reeves that upon receipt of the answer from Air Canada, he had 10 days to file a reply with the Agency, with a copy to Air Canada. Mr. Reeves did not file a reply with the Agency nor did he file with the Agency any e-mails that he claimed to have received from four other passengers on board Flight AC162.

ANALYSIS AND FINDINGS

[10] In accordance with a well established principle on which the Agency relies when considering complaints, it is up to the complainant to show, on a preponderance of evidence, that the air carrier failed to properly apply the terms and conditions of transport set out in its tariff or that these terms and conditions are unreasonable. It is therefore incumbent on Mr. Reeves to prove that Air Canada did not properly apply the terms and conditions of carriage set out in its Transborder Tariff.

[11] Rule 35 of Air Canada's Transborder Tariff provides that where the carrier has determined, in its reasonable discretion, that a person has engaged in any conduct that may have a negative effect on the safety or comfort of that person, other passengers, the carrier's employees or agents or air crew, or the safe operations of the carrier's aircraft, Air Canada may impose certain sanctions, including removal of the passenger from a flight at any point, and/or refusal to transport the person for a period ranging from a one-time ban to an indefinite or lifetime ban. Air Canada's Transborder Tariff also provides that the carrier's liability in cases of refusal to carry a passenger for a specific flight or removal of a passenger en route, because the passenger exhibited prohibited conduct, shall be limited to the recovery of the refund value of the unused portion of the passenger's ticket. The Agency notes that Air Canada refunded Mr. Reeves the value of the unused portion of his ticket, in keeping with the Transborder Tariff provisions.

[12] Mr. Reeves claims that the second flight attendant yelled at him simply because he asked him if he could change seats. The written and signed statements filed by Air Canada corroborate Air Canada's description of the incident and indicate that Mr. Reeves became aggressive and verbally abusive towards a crew member after being informed that he would not be allowed to change seats. Air Canada claims that the decision was made to remove Mr. Reeves from the flight in order to avoid unruly behaviour during the flight. The Agency notes that Mr. Reeves chose not to file copies of the e-mails that he claimed he received from the other passengers on board Flight AC162 nor did he reply to the answer to his complaint submitted by Air Canada.

[13] The Agency, in considering the evidence, must determine which of the different versions is more probable, based on a preponderance of evidence. Furthermore, as the complainant, Mr. Reeves has a greater burden of proof than simply presenting allegations. He must persuade the Agency that his version of events is more probable than that of Air Canada.

[14] Upon filing a complaint, applicants can support their statements in several ways: testimony, corroboration, admission, production of materials, etc. In the absence of corroborating evidence in Mr. Reeves' case, the Agency must conclude that Air Canada's evidence has at least equal weight to Mr. Reeves', which means that Mr. Reeves has not met his burden of proof. Consequently, the Agency cannot conclude that Air Canada failed to exercise reasonable discretion, as required by its Transborder Tariff, when it removed Mr. Reeves from Flight AC162 from Vancouver to Toronto, on September 7, 2008.

CONCLUSION

[15] Based on the evidence submitted by both parties, the Agency finds that Mr. Reeves failed to discharge the burden of proving that Air Canada did not properly apply the terms and conditions set out in Rule 35 of its Transborder Tariff. As a result, the Agency dismisses Mr. Reeves' complaint.

Members

  • John Scott
  • Jean-Denis Pelletier, ing./P. Eng.

Member(s)

John Scott
Jean-Denis Pelletier, P.Eng.
Date modified: