Decision No. 160-C-A-2008

April 7, 2008

File No. M4120-3/07-06662

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INTRODUCTION AND ISSUE

[1] Edward W. Lucas filed a complaint with the Canadian Transportation Agency (the Agency) respecting Air Canada's refusal to transport him because of alleged unruly behaviour.

[2] Did Air Canada properly apply its tariff in refusing to transport Mr. Lucas?

[3] As indicated in the reasons that follow, the Agency finds on a balance of probabilities that Air Canada, in refusing to transport Mr. Lucas, failed to properly apply the terms and conditions of carriage as set out in its tariff.

FACTS

[4] Mr. Lucas purchased a ticket for travel with Air Canada from Vancouver, British Columbia, Canada to Honolulu, Hawaii, United States of America on February 23, 2007, and returning on March 25, 2007. In a separate transaction, Mr. Lucas also purchased a ticket for travel with Air New Zealand from Honolulu to Auckland, New Zealand on February 23, 2007, and returning to Honolulu on March 25, 2007.

[5] While in transit between Vancouver and Honolulu, and following several interactions between Mr. Lucas and Air Canada crew members, Mr. Lucas was issued a "Passenger Warning Card". Upon arrival in Honolulu, he was escorted from the aircraft by the local authorities.

[6] On his return from New Zealand, Mr. Lucas checked in with Air Canada in Honolulu on March 25, 2007, and was advised that, to travel to Vancouver as booked, he had to accept certain conditions of travel. Mr. Lucas accepted these conditions under duress. Air Canada subsequently advised Mr. Lucas that it would refuse to carry him in the future until he demonstrates to the carrier's satisfaction that he no longer poses a threat to the safety of other passengers, the crew or the aircraft, or to the comfort of the other passengers or crew.

[7] Mr. Lucas, alleging that Air Canada improperly applied its tariff, is seeking compensation for the expenses he incurred in Honolulu.

EVIDENCE AND SUBMISSIONS

[8] According to Mr. Lucas, during the flight to Honolulu, he requested a carton of duty free cigarettes from a flight attendant, but was refused as the flight was considered to be a domestic flight within the United States of America. He was not willing to accept this reasoning, and continued questioning flight attendants, which resulted in the in-charge flight attendant (In Charge) issuing a formal warning and advising Mr. Lucas that "you will not be flying to Auckland."

[9] Mr. Lucas advises that upon arrival in Honolulu, he was escorted by two sheriff's officers to the transit lounge and was told that he was being charged with assault and interfering with the operation of an aircraft. He states that the Air New Zealand manager advised him that Air Canada had informed him of the events on the Air Canada flight, and that Mr. Lucas would not be permitted to travel with Air New Zealand. Consequently, Mr. Lucas was unable to travel as ticketed.

[10] Mr. Lucas submits that he was advised by the law enforcement authorities that two reports unfavourable to him had been made by Air Canada's flight personnel and that one report favourable to him had also been made by an Air Canada flight attendant. Mr. Lucas submits that upon review of the statements made by the Air Canada crew, the law enforcement authorities terminated their investigation and no further action was taken against him. Mr. Lucas further submits that the Air New Zealand manager also rescinded the travel ban and re-booked Mr. Lucas on the carrier's next flight to Auckland, that being on February 25, 2007. Mr. Lucas adds that he was able to travel from New Zealand to Honolulu on March 25, 2007 on the return portion of his Air New Zealand flight without restriction.

[11] Air Canada submits that Mr. Lucas was unwilling to accept the crew's explanation respecting the sale of duty free items, which was correct. It adds that he responded angrily, and that he demanded that he be sold duty free cigarettes or "he'd have to get a gun or something." He was advised that those comments were inappropriate. The In Charge provided Mr. Lucas with a further explanation, which did not satisfy him.

[12] Air Canada advises that after the meal service, and approximately two hours prior to arrival in Honolulu, Mr. Lucas, still upset and argumentative, demanded to see the In Charge, failing which he would go to the flight deck and speak with the Captain. Air Canada states that the In Charge returned to speak with Mr. Lucas, who then attempted to have the In Charge open the duty free service or he would speak with the Captain.

[13] According to Air Canada, the In Charge attempted to calm Mr. Lucas, but was unsuccessful. Air Canada alleges that Mr. Lucas grabbed crew members, and only upon the serving of the warning card and the threat of the use of restraints did he modify his behaviour and quiet himself.

[14] Mr. Lucas argues that the allegations made by Air Canada are false, fictitious and libellous. He denies having made any comment relating to getting a gun. He further argues that because the carrier notified the authorities and Air New Zealand, he incurred the unplanned expense of CAD$441, caused by the two-day delay in Honolulu.

[15] Air Canada submits that its decision to refuse to transport Mr. Lucas on future flights is reasonable based on Mr. Lucas' behaviour on February 23, 2007, and his failure to demonstrate to the carrier's satisfaction that he no longer poses a threat to the safety of other passengers, the crew or the aircraft, or to the comfort of the other passengers or crew.

ANALYSIS AND FINDINGS

[16] The preponderance of evidence indicates that on Air Canada's flight to Honolulu on February 23, 2007, there were some exchanges between Mr. Lucas and the flight attendants. Upon arrival in Honolulu, Mr. Lucas was met by the authorities, temporarily detained, and advised by Air New Zealand that it had been apprised by Air Canada of his conduct and that, accordingly, Air New Zealand would not permit him passage on its flight. Mr. Lucas was released without being charged, and Air New Zealand lifted its restriction.

[17] Air Canada's 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 refusing to transport the person for a period ranging from a one-time ban to an indefinite or lifetime ban.

[18] The only evidence filed by Air Canada is a statement by its counsel. This statement is not supported by in-flight reports or statements by the parties directly involved in the incidents at issue. Mr. Lucas has stated that local law enforcement officials who investigated the alleged incidents did not proceed with any action and that Air New Zealand, following its investigation, did not impose any travel restrictions on him. Weighing the submissions made by Mr. Lucas and his statements regarding the subsequent actions of the third party law enforcement officials and Air New Zealand and, in the absence of any direct evidence from Air Canada, the Agency finds that Air Canada has failed to substantiate its action to refuse to transport Mr. Lucas and that, in imposing the sanction, the carrier has departed from the terms and conditions of carriage appearing in its tariff.

[19] With respect to Air Canada's notifying Air New Zealand of Mr. Lucas' alleged behaviour, the Agency finds that Air Canada's tariff does not contain any provisions that allow the carrier to advise another carrier of a passenger's behaviour. Therefore, the Agency finds that, by advising Air New Zealand of Mr. Lucas' alleged conduct, Air Canada has applied a term or condition of carriage that does not appear in its tariff.

CONCLUSION

[20] Based on the above findings, the Agency orders Air Canada to:

1. immediately remove the ban from future travel imposed on Mr. Lucas, and expunge from the carrier's records any material relating to such ban; and
2. within thirty (30) days from the date of this Decision, compensate Mr. Lucas the amount of CAD$441, which represents the expense that he incurred while delayed in Honolulu. Air Canada shall notify the Agency when the compensation is provided to Mr. Lucas.

Members

• Raymon J. Kaduck
• John Scott