Decision No. 17-C-A-2006

January 10, 2006

File No. M4370/A626/03-3

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COMPLAINT

[1] On September 17, 2003, Jaswinder Dhaliwal filed with the Air Travel Complaints Commissioner (hereinafter the ATCC) the complaint set out in the title.

[2] In a letter dated March 24, 2005, Mrs. Dhaliwal and Air India Limited also carrying on business as Air India (hereinafter Air India) were advised of the jurisdiction of the Canadian Transportation Agency (hereinafter the Agency) in this matter. In that same letter, Mrs. Dhaliwal was requested to confirm in writing whether she wished to pursue the matter formally before the Agency, and, in the event that she chose to do so, both parties were asked if they would agree to have the comments they had filed with the ATCC considered as pleadings before the Agency.

[3] On April 11, 2005, Mrs. Dhaliwal confirmed to the Agency that she wished to pursue the matter formally before the Agency and agreed to have the comments she had filed with the ATCC considered as pleadings before the Agency. Therefore, the complaint was referred to the Agency on that date.

[4] On April 15, 2005, Air India advised the Agency that it agreed to have only the comments it had filed with the ATCC on March 14, 2005 considered as pleadings before the Agency.

ISSUE

[5] The issue to be addressed is whether the terms and conditions of carriage of Air India relating to refusal to transport specified in its International Passenger Rules and Fares Tariff NTA(A) No. 317 (hereinafter the tariff) in effect at the time of the incident were properly applied, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) with respect to this matter.

POSITIONS OF THE PARTIES

[6] Mrs. Dhaliwal and her two children travelled to India on July 14, 2003, with Air India tickets purchased from General Tours on May 20, 2003. Their return trip was scheduled to commence with a flight on August 23, 2003 from Delhi to London, where they planned to spend a week prior to returning home to Calgary.

[7] In her complaint received by the ATCC on September 17, 2003, Mrs. Dhaliwal states that while she and her family were checking in at the Delhi airport on August 23, 2003, an Air India employee had the check-in process stopped and advised the family members that they would not be permitted to board the flight. Mrs. Dhaliwal did not indicate that the carrier provided reasons for its refusal to transport them; she expresses the view that the refusal to transport may have been linked to a bribe.

[8] Mrs. Dhaliwal states that she told Air India personnel that her relatives had left and that she and her family had nowhere to go. An Air India representative at the Delhi airport subsequently recommended to Mrs. Dhaliwal that she contact her travel agent. Mrs. Dhaliwal reports that she and her family left their luggage at the Delhi airport and travelled to the main Air India office in Delhi, located at Knaught Place, where they were again instructed by the carrier to go to a travel agent.

[9] Mrs. Dhaliwal states that the family travelled to the town of Moga, a ten-hour drive from Delhi. She claims that when they visited a local travel agent, the family's reservations were checked in the computer reservation system. Although there was no indication that their tickets had been cancelled, Mrs. Dhaliwal submits that she was advised by the travel agent that they would need to purchase new tickets in order to return to Canada. The travel agency advised that it sold to Mrs. Dhaliwal, at a cost of 113,000 Indian rupees (hereinafter IR), three new tickets for the family to return to Calgary, with a scheduled departure from India on August 30, 2003. Mrs. Dhaliwal states that her family's one-week planned stay in England was cancelled because that week was spent in India trying to get their tickets confirmed. She adds that, as a result, she and her family lost the deposits they had made related to their stay in England, and that because of the changes to that week, she estimates that they incurred a loss of 50,000 IR.

[10] Mrs. Dhaliwal states that the day before their planned departure for Calgary, the travel agency in Moga advised her that her original tickets could be used for the rescheduled return date of August 30, 2003, and that the replacement tickets that she had purchased would be refunded, subject to a penalty of 5,000 IR per ticket (15,000 IR in total). Mrs. Dhaliwal confirmed that she and her family subsequently travelled on the original tickets and received a refund for the replacement tickets, less the penalty applied.

[11] On June 21, 2004, Mrs. Dhaliwal submitted a more detailed claim for expenses totalling 72,500 IR for her family's additional week in India. In addition, she has made a claim for £110 London-related expenses: £50 for a prepaid vehicle deposit, and £60 for storing luggage at the airport. She advised that she did not have receipts for all of the expenses incurred, but that she had provided to the Agency all of those that she had in her possession.

[12] Air India has offered the comments made in its e-mail of March 14, 2005 as its only evidence to be considered by the Agency. In that submission, Air India submits that although it was the carrier that issued the original tickets, it was not the air carrier of carriage for Flight No. AI 6301 from Delhi to London on August 23, 2003, on which Mrs. Dhaliwal's daughter, Rajprit Dhaliwal, was refused transportation. Air India advises that the owner and operator of the code-share flight was Virgin Atlantic Airways Limited (hereinafter Virgin Atlantic), and that it was Virgin Atlantic that refused to transport Rajprit. In response to e-mails from Agency staff to Air India with respect to the carrier's position, Air India replied in e-mails of April 15, 2005 and July 7, 2005 that Virgin Atlantic was the carrier of carriage and was, therefore, the responsible carrier.

[13] On November 3 and 17, 2004, the ATCC sought Virgin Atlantic's comments on this complaint. In its responses of November 5 and 30, 2004, Virgin Atlantic submits that a doctor from the Airport Authority of India had examined Rajprit and would not allow her to travel on Flight No. AI 6301 on August 23, 2003, as she was suffering from conjunctivitis. The carrier states that a medilink certificate was not issued by the Airport Authority doctor and that Rajprit's family voluntarily elected not to travel without her on this date so that they could travel together on the next available flight.

[14] Mrs. Dhaliwal contends that no member of her family was ill on the date in question, and that all were capable of travelling on August 23, 2003; she further contends that no member of her family was examined by a doctor on August 23, 2003.

[15] Mrs. Dhaliwal is requesting that Air India compensate her for the expenses incurred in India and London, and has requested that Air India provide her with return air fare for her and her family to travel from Canada to London in compensation for the lost week of vacation in London on the family's return trip from India.

PRELIMINARY MATTER

[16] With respect to the issue of what constitutes the evidence to be considered by the Agency in the present case, Members of the majority are of the opinion that it is for the parties to decide what evidence they want the Agency to consider, as they are the masters of their own case to be put before the Agency. It is for them to decide what they want this panel to consider as evidence. In the present case, in response to the Agency's request as to whether Air India agreed to have the comments filed with the ATCC considered as pleadings before the Agency, Air India replied the following in an e-mail dated March 14, 2005:

As I informed you earlier, although we are the Carrier of Issue, we are not the Carrier for Carriage. In this case, it happens to be Virgin Atlantic who are the owner and operator of the Codeshare flight on which the passenger was not accepted for travel. The reasons have been given by Virgin Atlantic on their letterhead, a copy of which is available in your office.

[17] Further to another request from Agency staff to Air India asking it to clarify its position as to the extent to which its comments filed with the ATCC could be used in the Agency's process, Air India replied the following in an e-mail dated July 7, 2005:

Please apply as pleading before the Agency the following as advised you earlier: "Although we are the Carrier of Issue, we are not the Carrier for Carriage. In this case, it happens to be VS who are the owner and operator of the Codeshare flight on which the passenger was not accepted for travel. The reasons have been given by VS on their letterhead, a copy of which is available in your office".

[18] In view of Air India's responses to the Agency staff's requests and in light of the fact that the process before the ATCC is an informal one similar in many ways to a mediation process, whereas the process before the Agency as a quasi-judicial tribunal is a formal one that may result in serious consequences for the parties, the Agency is of the opinion that it cannot interpret Air India's responses as an agreement to have all of Air India's comments filed before the ATCC considered evidence in the present proceedings. If Air India had agreed to have all of its comments filed before the ATCC considered as evidence before the Agency, it could have very easily said so. Instead, Air India provided the Agency with a very narrow and qualified answer and the Agency would be defeating the very purpose of asking parties whether they wish to have the information filed before the ATCC considered evidence before the Agency if it interpreted Air India's responses as a positive answer to do so. The Agency reiterates that it is for the parties to decide what evidence they want the panel to consider in rendering a formal decision on the merits of the complaint it has in front of it.

[19] Therefore, the Agency will proceed with its analysis on the basis of those comments as stated above and consider them to be the only evidence provided by Air India in this matter.

ANALYSIS AND FINDINGS

[20] In making its findings, the Agency has carefully considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined Air India's terms and conditions of carriage applicable to refusal to transport as set out in its tariff in effect at the time of the incident. Rule 25 of Air India's tariff provides, in part, as follows:

Refusal to transport – limitations of carriage

(A) Refusal, cancellation or removal

(1) Carrier will refuse to carry, cancel the reserved space of, or remove en route any passenger:

(a) when such action is necessary for reasons of safety;

(b) when such action is necessary to prevent violation of any applicable laws, regulations or orders of any state or country to be flown from, into or over;

(c) when the conduct, age, status or mental or physical condition of the passenger is such as to:

(i) require special assistance of carrier; or

(ii) cause discomfort or make himself objectionable to other passengers; or

(iii) involve any hazard or risk to himself or to other persons or to property;

...

(3) Subject to the provisions of Rule 87 (Denied boarding compensation) the sole recourse of any person so refused carriage or removed en route for any reason specified in the foregoing paragraphs, shall be recovery of the refund value of the unused portion of his/her ticket(s) as hereinafter provided in Rule 90 (Refunds).

...

Applicable legislative and regulatory provisions

[21] The Agency's jurisdiction over the present complaint is set out in subsection 110(4) and section 113.1 of the ATR.

[22] Subsection 110(4) of the ATR provides that:

Where a tariff is filed containing the date of publication and the effective date and is consistent with these Regulations and any orders of the Agency, the tolls and terms and conditions of carriage in the tariff shall, unless they are rejected, disallowed or suspended by the Agency or unless they are replaced by a new tariff, take effect on the date stated in the tariff, and the air carrier shall on and after that date charge the tolls and apply the terms and conditions of carriage specified in the tariff.

[23] Section 113.1 of the ATR states:

Where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariff, the Agency may

(a) direct the licensee to take corrective measures that the Agency considers appropriate; and

(b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.

Appropriate carrier's tariff

[24] Although Air India has claimed that Virgin Atlantic was the carrier responsible for refusing to transport Rajprit, the Agency notes that Mrs. Dhaliwal and her family travelled to and from India with tickets purchased from Air India. Therefore, the Agency finds that, although Virgin Atlantic was the code-share carrier operating Flight No. AI 6301 between Delhi and London on August 23, 2003, Air India was the contracting carrier and, as such, the applicable terms and conditions of carriage are those set out in Air India's tariff.

Refusal to transport

[25] With respect to the application of the tariff, subsection 110(4) of the ATR requires air carriers to apply the terms and conditions of carriage set out in a tariff filed with the Agency.

[26] In her complaint, Mrs. Dhaliwal alleged that Air India breached its tariff when Rajprit was refused transportation from Delhi to London on Flight No. AI 6301 on August 23, 2003.

[27] Rule 25 (A)(1)(c) of the tariff allows Air India to refuse to carry any passenger when the physical condition of the passenger is such as to:

1. cause discomfort or make himself objectionable to other passengers; or
2. involve any hazard or risk to himself or to other persons or to property.

[28] On March 14, 2005, Air India advised the Agency that as Virgin Atlantic was the carrier of carriage for the flight on which Rajprit was not accepted for travel, it was Virgin Atlantic who refused to transport her. While Virgin Atlantic claimed that Rajprit was found by an Airport Authority of India doctor to be suffering from conjunctivitis, the Agency's investigation into this aspect of the complaint indicates that no medilink certificate was issued nor was the Agency able to confirm that a medical examination had taken place. In fact, in his response to Agency staff dated March 4, 2005, the Airport Authority of India Senior Medical Officer confirmed that Rajprit was not medically examined by an Airport Authority doctor, which supports Mrs. Dhaliwal's contention that no family member was ill nor had any member of her family been examined by a doctor.

[29] Therefore, in the absence of evidence in support of the carrier's refusal to transport Rajprit on August 23, 2003, the Agency finds that the terms and conditions set out in Air India's tariff concerning refusal to transport were not properly applied.

Compensation for failure to apply the tariff

[30] Section 113.1 of the ATR provides that where a licensee fails to apply the terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs, the Agency may direct the licensee to pay compensation for any expense incurred by a person as a result of the carrier's failure to apply those terms and conditions.

[31] The Agency notes that, as part of her complaint, Mrs. Dhaliwal filed a claim for 72,500 IR and submitted receipts for some of the expenses. The Agency also notes that Air India, to date, has not provided Mrs. Dhaliwal with any compensation.

[32] As the terms and conditions set out in Air India's tariff were not properly applied, there are, in the present case, grounds for the Agency to grant compensation pursuant to paragraph 113.1(b) of the ATR.

[33] With respect to Mrs. Dhaliwal's out of pocket expenses in India, the Agency has reviewed her claim and, based on the itemized list of expenses, finds that:

1. Air India should compensate Mrs. Dhaliwal in the amount of 13,000 IR (CAD$342.29) for theransportation costs that she incurred and for which she provided receipts.
2. Air India should compensate Mrs. Dhaliwal in the amount of 1,000 IR (CAD$26.33) for the luggage holding charge that she incurred at the Delhi airport and for which she provided a receipt.
3. Air India should compensate Mrs. Dhaliwal in the amount of 2,000 IR (CAD$52.66) for the telephone charges that she incurred during her delay in India. Although Mrs. Dhaliwal was unable to provide a receipt to support this claim, the Agency finds it reasonable that she be compensated for this expense.
4. Air India should compensate Mrs. Dhaliwal in the amount of 15,000 IR (CAD$394.95) for the cancellation charges that she incurred to refund the replacement tickets that she was advised to purchase in India.
5. Air India should compensate Mrs. Dhaliwal in the amount of 33,500 IR (CAD$882.05) for meal expenses that she incurred. Although Mrs. Dhaliwal was unable to provide receipts to support this claim, the Agency finds her claim to be reasonable.
6. One element of Mrs. Dhaliwal's claim concerned the family's planned stay in London, England, on its return trip home. Mrs. Dhaliwal indicated that she was out of pocket for a deposit on a van, amounting to £50. However, in the absence of a receipt for such an expense, this claim is rejected.
7. Mrs. Dhaliwal indicates that due to a layover in London, England for a connecting flight to Calgary, she incurred expenses for luggage holding charges totalling £60 (CAD$123.07). Although Mrs. Dhaliwal was unable to provide receipts to support this claim, the Agency's research shows that the fee currently charged at London's Heathrow Airport for storing luggage is £5.50 per bag per day. The Agency thus finds it reasonable that she be compensated for this expense, in light of the fact that the Dhaliwals' tickets show that they left India on August 30 and arrived in Calgary on September 1, 2003, suggesting that they spent two nights in London.

[34] In her claim, Mrs. Dhaliwal requested that Air India provide her with return air fares for her and her family to travel from Canada to London, England, in compensation for the family's week of vacation lost as a result of the refusal to transport. However, the granting of compensation for such damages is not within the Agency's jurisdiction.

CONCLUSION

[35] Based on the above findings, the Agency, pursuant to paragraph 113.1(b) of the ATR, hereby orders Air India to provide CAD$1821.35 to Mrs. Dhaliwal in compensation for expenses incurred, within thirty (30) days from the date of this Decision.

Members

• Baljinder Gill
• Beaton Tulk

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DISSENTING OPINION OF MARY-JANE BENNETT

[36] This Member finds that the issue to be determined is whether the applicant has shown on a balance of probabilities that the refusal to transport was as a consequence of a breach of Air India's tariff and not whether the tariff was properly applied, as framed by the majority.

[37] The differing versions of the facts and the lack of evidence lead this Member to conclude that on a balance of probabilities, a case against Air India has not been established.

[38] Mrs. Dhaliwal and her family travelled to India on July 14, 2003 on tickets purchased through General Tours on May 20, 2003. The tickets, issued on Air India stock, provided for travel from Calgary on July 14, 2003. The return flight which was booked for August 23, 2003 provided for a layover in London, England and was to depart on September 1, 2003 for Calgary. There is no complaint regarding the outbound flight. It is the segment of the return flight from Delhi to London, England on August 23, 2003 that is at issue.

[39] Upon her return to Canada, Mrs. Dhaliwal contacted the Office of the Air Travel Complaints Commissioner. In the Check sheet on file, the complainant identified to the ATCC staff the issue as refusal to transport due to illness. In her letter of September 17, 2003, Mrs. Dhaliwal provided written information. In that letter, Mrs. Dhaliwal advised that her tickets had been pre-booked for six months; that on the date of her return travel and at check-in, she and the family were told that they could not travel and that the refusal was based on the corruption in India and the likelihood of a bribe by another passenger which resulted in them not being able to travel to the advantage of another passenger. No explanation is provided in this letter as to why all three of the Dhaliwal family did not travel on that date.

[40] In that letter of September 17, 2003 Mrs. Dhaliwal advised that subsequent to the failed attempt to travel by air on that date, she and her family left their luggage at the airport; proceeded to the Air India main office in Delhi at which time they were directed to their travel agent. Mrs. Dhaliwal advised that they then proceeded to the travel agent where they were told that their tickets had not been cancelled but that they would have to purchase new tickets. According to Mrs. Dhaliwal, "as there were no tickets, then we asked about business class tickets." She stated that they purchased tickets at a cost of 113,000 IR. She claims a loss to them of the 50,000 IR for the week that they were to spend in England.

[41] Air India replied initially on October 2, 2003 that it would investigate the matter with its Delhi office and subsequently provided details on January 12, 2004. In that letter, Air India explained that the relevant flight was a code share with Virgin Atlantic. In correspondence provided with that letter, Virgin Atlantic advised that a doctor from the Airport Authority had examined Mrs. Dhaliwal's daughter, Rajprit and had determined that she was suffering from conjunctivitis and was therefore not fit for travel; and that the remaining members of the family had elected not to travel without Rajprit. This letter also indicates that no medilink certificate was issued.

[42] Mrs. Dhaliwal replied on February 20, 2004 advising that this information is wrong as she does not recall an examination by a doctor and that they were perfectly fine and able to board the plane.

[43] Thereafter and on June 21, 2004, Mrs. Dhaliwal wrote a letter containing new information. This letter differs in many respects from the initial letter of September 17, 2003. To this Member, the inconsistencies contained in the two letters lead me to conclude that Mrs. Dhaliwal has not proven on a balance of probabilities a case against Air India. The new facts alleged, which differ from the recitation of the events in her initial letter, warranted substantiating evidence, which was not provided.

[44] In particular, in Mrs. Dhaliwal's initial letter, she advised that after being refused boarding, the family proceeded initially to the Air India office at the airport, left their luggage at the airport, went to the Air India office in Delhi and then to the travel agency to purchase tickets.

[45] In her letter of June 21, 2004, Mrs. Dhaliwal advised that they travelled to Knaught Place by taxi; then left their luggage at the airport where they had some items stolen; then rented a van for Moga; then rented a vehicle for the seven days they were "stuck there". Mrs. Dhaliwal advises that the purchase of the new tickets was concluded following daily attendance at the travel agency and that they were finally able to rebook at a business class rate but that due to the price of the tickets, they had to obtain a loan. The original letter does not speak of this protracted travel nor of the difficulty in obtaining new tickets.

[46] Significantly, whereas Mrs. Dhaliwal, in the first letter, spoke only of the purchase of business class tickets at a cost of 113,000 IR, she provided a different version of events, in her letter of June 21, 2004, and now claims a loss of 15,000 IR as cancellation charges for the purchase of the business class tickets.

[47] Further, Mrs. Dhaliwal stated in this letter that subsequent to the purchase of the business class tickets, the travel agent advised the Dhaliwals that they could travel on the original tickets. In fact, Mrs. Dhaliwal claimed in her letter of June 21, 2004 that "the day before we were to leave" the travel agent called to say that their original tickets were confirmed. In a letter of July 18, 2005, Mrs. Dhaliwal provided a different time frame as to when they were told that they could travel on the original tickets. In that letter, she advised that "on the last day when we were going to board our travel agent called and informed us that our original tickets could be used because there was an opening in coach."

[48] Although in Mrs. Dhaliwal's first letter, she speaks of a loss of 113,000 IR and claims a loss of 50,000 IR, the letter of June 21, 2004 provided a list of twelve items claimed including their return air fare to London, all expenses paid. Yet, Mrs. Dhaliwal provides only two taxi receipts and a vehicle rental receipt as proof. The claim for the vehicle rental as contained in the letter of June 21, 2004 is for 10,000 IR whereas the submitted rental receipt is for 5,000 IR. Although Mrs. Dhaliwal claimed 3,500 IR in meal expenses, no receipts were provided as Mrs. Dhaliwal explained that "the places we ate did not provide us with receipts." No receipts for the 30,000 IR allegedly spent on food were provided. No receipts regarding the long distance telephone calls nor of the amount claimed in London for the two days that the majority found that they were in London were provided.

[49] Finally, Mrs. Dhaliwal was asked by the Agency to provide proof of the purchase of the business class tickets but such proof was never forthcoming. Mrs. Dhaliwal explained to the Agency in a letter dated July 17, 2005 that she does not have a receipt for the purchase of the business class tickets as the travel agent did not provide one. There is no substantiating evidence of purchase of the tickets, such as evidence of the loan which was allegedly assumed to cover this purchase. Goyal Travel did provide a letter to Mrs. Dhaliwal dated June 8, 2004. This letter does not include the original cost of the business class tickets and rather than including the business class tickets the Dhaliwals claim they purchased from Goyal Travel, the letter includes the original tickets purchased by General Tours. Goyal Travel states that the reason the business class tickets were returned by the Dhaliwals was that "the passengers could not travel on that date." This contradicts the evidence of Mrs. Dhaliwal to the effect that they did not travel on the business class tickets as they were advised by Goyal Travel that they could travel on their original tickets. Finally, Mrs. Dhaliwal advised that the tickets were returned to Goyal Travel but did not advise as to when this occurred. Although Mrs. Dhaliwal maintains this transaction occurred before they left India, this Member finds the timing of the return of the tickets with the flight date to be incompatible. Based on the evidence of Mrs. Dhaliwal that Goyal Travel of Moga is a "ten hour drive" from Delhi, this Member finds it difficult to reconcile the return of the tickets to Goyal Travel when the Dhaliwals were alerted to the fact that they could travel on their original tickets on either "the day before they were to leave" as alleged in Mrs. Dhaliwals' letter of June 21, 2004 or on the day of their departure as" they were about to board" as alleged in her letter of July 18, 2005.

[50] As to the reason for their inability to travel on August 23, 2003, Mrs. Dhaliwal claimed that they were prevented from leaving India on that date due to a probable bribe by a passenger ahead of them in the line up at check in. There is no evidence to substantiate this. Although there is seemingly conflicting evidence by Air India and its code share partner, Virgin Atlantic as to whether Rajprit Dhaliwal was seen by the Airport Authority doctor, this does not relieve Mrs. Dhaliwal of the burden of proving her claim on a balance of probabilities. Given the inconsistencies and lack of evidence as outlined above, this Member finds that she has not met that balance of probabilities and would have dismissed the complaint.

Member

• Mary-Jane Bennett