Decision No. 177-C-A-2013

INTRODUCTION

[1] On April 24, 2012, Vince Geisler filed a complaint with the Canadian Transportation Agency (Agency) against Air Canada and Jazz Aviation LP, as represented by its general partner, Aviation General Partner Inc. carrying on business as Air Canada Express and Jazz (Air Canada Express) concerning an air tariff issue and a disability issue.

[2] On February 6, 2013, the Agency issued Decision No. 39-AT-A-2013 with respect to the disability issue. In that Decision, the Agency found that Mr. Geisler failed to demonstrate that, for the purposes of Part V of the CTA, he is a person with a disability. As such, that aspect of the complaint was dismissed.

[3] The Agency will now address the air tariff issue.

ISSUES

[4] Did Air Canada properly apply the terms and conditions of carriage governing refusal to transport set out in its Canadian Domestic General Rules Tariff No. CDGR-1 (Tariff) when it imposed a travel ban on Mr. Geisler for future flights?

[5] Should the Agency order Air Canada to reimburse Mr. Geisler for the cost of his round trip travel from Victoria to Castlegar, British Columbia?

FACTS

[6] Mr. Geisler purchased a round trip with Air Canada for travel from Victoria to Castlegar via Vancouver on November 21, 2011 and returning on November 29, 2011. On November 21, 2011, Mr. Geisler travelled from Victoria to Vancouver on Flight No. AC8069, to connect with another flight to Castlegar. The Castlegar leg of his trip was cancelled due to bad weather and, as a result, Mr. Geisler was returned to Victoria. His outbound flight was then rescheduled for November 23, 2011.

[7] During his November 21, 2011 return to Victoria on board Flight No. AC8069, Mr. Geisler was involved in exchanges with members of Air Canada’s crew, including Stacey Vos, a flight attendant, and Jose Da Silva, the captain. The first two exchanges concerned Mr. Geisler’s refusal to remove his earmuffs during take-off and landing. The third exchange concerned Mr. Geisler’s attempt to arrest the flight attendant prior to deplaning.

[8] On November 23, 2011, Gary Thomson, Air Canada’s security manager/investigator, contacted Mr. Geisler by telephone to discuss what had occurred on board Flight No. AC8069. On the same day, prior to his flight to Castlegar, Mr. Geisler received a letter from Air Canada’s senior director of security, Gilles Charette, informing Mr. Geisler that he was banned from travel on the flights of Air Canada and Air Canada Express. According to the letter, the ban will remain in place until Mr. Geisler demonstrates to Air Canada’s satisfaction that he no longer poses a threat. The letter also provided Mr. Geisler with an opportunity to make representations as to why he no longer poses a threat and why he should be accepted on future flights operated by Air Canada and Air Canada Express.

[9] Mr. Geisler seeks reimbursement totalling $485.22, which is the cost of his round-trip travel.

EVIDENCE AND SUBMISSIONS

[10] The Agency notes that while both parties refer to the same events, with the same elements, their accounts of these events, which are both extensive, differ substantially.

Mr. Geisler

[11] Mr. Geisler submits that he has sensitive ears, and that after noticing ringing in his ears following flights on which he travelled as part of his employment, he voiced his concerns to his employer, who instructed him to wear hearing protection. Mr. Geisler adds that given that his working hours included the times he was required to travel, his employer was required, under WorkSafeBC laws and regulations, to ensure that Mr. Geisler was not exposed to dangerous situations during travel. Mr. Geisler explains that Part 7 of WorkSafeBC’s Noise, Vibration, Radiation and Temperature Regulations states that an employer must ensure that a worker is not exposed to noise levels above 85dBA Lex daily noise exposure. If a worker is so exposed, the employer is to ensure that the employee has hearing protection.

[12] Mr. Geisler states that he began wearing safety earmuffs such as those utilized in the construction industry to protect his hearing. Mr. Geisler submits that a senior flight attendant suggested that he call Air Canada’s medical desk and have an exemption put on his file. Mr. Geisler asserts that he called Air Canada’s medical desk on September 1, 2011, and spoke with a medical doctor who told him it was perfectly fine to wear the earmuffs and that a note would be placed on his file for future flights. To support his claim, Mr. Geisler filed a billing record showing that he made three telephone calls.

[13] Mr. Geisler acknowledges that he wore his earmuffs during take-off on Flight No. AC8069 on November 21, 2011 and that the flight attendant, Ms. Vos, instructed him to remove them. Mr. Geisler submits that he tried to explain to Ms. Vos that he was wearing hearing protection and not a stereo headset, and that he had gotten medical clearance to do so. According to Mr. Geisler, Ms. Vos told him to remove the earmuffs, after which she returned to her seat. Mr. Geisler then states that he was a little shocked by Ms. Vos’ behaviour and tried to remember what his employer and the Worker’s Compensation Board had instructed him to do in these situations. Mr. Geisler explains that he had been instructed that if a worker, sub or main contractor or agent thereof was causing a risk of injury or death and refused to stop such a risk, that he had both the duty and the obligation to arrest that person and turn them in to the police. Mr. Geisler states that he did, however, remove the earmuffs, but put them on again, due to the discomfort caused by the low frequency noise.

[14] Mr. Geisler acknowledges that upon the aircraft’s approach for landing, an announcement was made requesting the removal of headsets and noise busters, however, as he felt that his personal protective equipment was none of those, he chose to follow his employer’s instructions to wear hearing protection. Mr. Geisler alleges that after landing and when the aircraft was almost to the gate, Ms. Vos came storming down the aisle and yelled at him to remove his “noise busters.” Mr. Geisler submits that he once again tried to explain that they were personal protection equipment that his employer required him to wear for safety reasons. Mr. Geisler alleges that Ms. Vos then told him to “remove those damn things or I will arrest you for interference.”

[15] Mr. Geisler explains that as the aircraft was almost to the gate and the noise level had dropped to an acceptable level, he chose to remove his headset, but that he knew that a clear violation of law had occurred by Ms. Vos and that he reluctantly decided he needed to follow his training and arrest her.

[16] Mr. Geisler states that during deplaning, he waited for the other passengers to disembark, and went to the front of the aircraft where he found the captain, Mr. Da Silva, the first officer and Ms. Vos waiting for him. According to Mr. Geisler, he explained to Mr. Da Silva what had happened, the fact that he had medical clearance and that he was required by his employer to protect his health, and showed the captain the hearing protection. Mr. Geisler submits that Mr. Da Silva initially agreed with his position until the first officer stated, “How was she to know?” and, “She didn’t have time to check the passenger manifest for your medical exception.” According to Mr. Geisler, Mr. Da Silva then said, “If you want to cause trouble, you’ll see what kind of trouble I can cause for you.”

[17] Mr. Geisler maintains that he had no choice but to arrest Ms. Vos. Mr. Geisler submits that he informed Mr. Da Silva of his intention and reached towards Ms. Vos to make that arrest. Mr. Geisler alleges that Mr. Da Silva and the first officer moved aggressively to obstruct the arrest and as he felt that the risk of injury as a result of the crew’s obstruction of the arrest was too great, he simply deplaned and summoned the police inside the terminal. Mr. Geisler contends that he made it known upon disembarking from the aircraft that he was unhappy that his safety had been disregarded, but this was not a refusal to comply with instructions.

[18] Mr. Geisler states that approximately four hours prior to his scheduled flight to Castlegar on November 23, 2011, he received a call from Mr. Thomson, who explained that he was investigating Mr. Geisler’s complaint. Mr. Geisler explained the issue, including that he had previous medical clearance to wear the earmuffs; however, Mr. Thomson did not agree that Mr. Geisler had medical clearance. Mr. Geisler told Mr. Thomson that he had no right to keep him from “flying”, and that any person could expect hearing damage from those sound levels.

[19] Mr. Geisler then stated, “... next time my attempted citizen’s arrest would pale in comparison, that I would file a human rights complaint, contact the media and make the issue very public.” Mr. Geisler alleges that Mr. Thomson then said, “Well [...] now we have a threat,” to which Mr. Geisler responded, “What threat? Filing a human rights complaint over your dangerous cabins?” Mr. Geisler states that Mr. Thomson responded, “A threat is a threat, that’s all I need.”

[20] Mr. Geisler questions whether Air Canada actually has a regulation against protecting one’s hearing, and submits that the present matter is more about a power struggle between a crew member unwilling to listen to a passenger and a passenger who is well aware of his rights to ensure his safety.

[21] To support his position, Mr. Geisler provided a signed statement along with copies of his previous correspondence with Air Canada concerning the exchanges.

Air Canada

[22] Air Canada asserts that it was justified in implementing the flight ban against Mr. Geisler, in accordance with its Tariff, as Rule 35 of that Tariff sets out that Air Canada has reasonable discretion where safety dictates such a decision.

[23] Air Canada therefore concluded that if Mr. Geisler were permitted to take future Air Canada and Air Canada Express flights, he could put the safety of Air Canada’s passengers, crew and flight at risk. Air Canada holds that without providing written assurance that he no longer poses a threat to the safety and comfort of the crew, passengers and aircraft, Mr. Geisler cannot be permitted to take future Air Canada and Air Canada Express flights.

[24] Air Canada points out that the Canadian Aviation Regulations, SOR/96-433 (CAR) govern Air Canada and Air Canada Express with respect to safety in the carriage of passengers, and that paragraph 705.40(1)(a) of the CAR states that the operator shall establish procedures to ensure that the passengers move to and from the aircraft and embark and disembark safely. Air Canada explains that as part of its safety procedures, earmuffs/headphones and other headsets that are worn on or over the ears, including noise blocking headsets, must be removed in preparation for, and during, taxi, take-off and landing, as these devices prevent passengers from hearing safety announcements or evacuation commands. Air Canada points out that this safety consideration is reflected in Air Canada’s flight attendant manuals, which specify that noise blocking devices must not be worn during taxi, take-off and landing.

[25] Air Canada notes, however, that the procedures currently in place allow a passenger to use a noise blocking headset during all stages of the flight where there are medical reasons for such use, as long as such a request is vetted by Air Canada’s medical desk. Air Canada submits that it attempted to explain this to Mr. Geisler on many occasions, including in correspondence dated January 30, February 29, April 23 and May 11, 2012.

[26] Air Canada states that there is no indication in its file that Mr. Geisler contacted a reservations agent or the medical desk prior to his November 21, 2011 flight in order to be allowed to wear a noise blocking headset during taxi, take-off or landing.

[27] Regarding the events in question, Air Canada submits that during preparations for departure, Ms. Vos requested Mr. Geisler to remove his noise blocking headset as this was against Air Canada’s safety procedures. Air Canada points out that while Mr. Geisler attempted to contest the request, he ultimately removed the headset after Ms. Vos explained the underlying safety considerations associated with the request.

[28] Air Canada states that prior to landing, Ms. Vos made the required announcements, again requesting that passengers remove all ear buds and headsets. Air Canada points out that despite the announcement, after landing but while the aircraft was still taxiing to the gate, Ms. Vos noticed that Mr. Geisler had kept his headset on. Ms. Vos therefore made another general announcement requesting passengers to remove and stow headsets until the aircraft was safely at the gate.

[29] According to Air Canada, when Ms. Vos noticed that Mr. Geisler was still ignoring the instructions, she approached him to request that he remove the headset. Mr. Geisler refused to follow her instructions, and began to raise his voice and accuse her of violating his human rights. Air Canada submits that Mr. Geisler then went on to demonstrate that if he were to remove the headset he would be in pain. In order to carry out the demonstration, he removed the earmuffs, covered his ears and yelled that he was in pain. Mr. Geisler continued to refuse to follow instructions even though Ms. Vos escalated her request into a warning.

[30] Air Canada contends that during deplaning procedures, Mr. Geisler approached the crew and pointed his finger at Ms. Vos and threatened to make a citizen’s arrest. Mr. Geisler appeared as though he was going to grab Ms. Vos and demonstrated aggressive behaviour to the point that the first officer placed himself in front of Ms. Vos. Mr. Da Silva and the first officer attempted to calm Mr. Geisler down, without success.

[31] Air Canada points out that on November 23, 2011, Mr. Thomson contacted Mr. Geisler in order to ascertain the source of Mr. Geisler’s resistance to comply with the crew on Flight No. AC8069 and to inform him that for subsequent travel on Air Canada and Air Canada Express, he would need to be cleared by Air Canada’s medical desk as he had disclosed a medical condition that he claimed would be aggravated without the use of the noise blocking earmuffs at all stages of the flight.

[32] Air Canada maintains that Mr. Geisler became frustrated and aggressively stated that he “will fly,” and that what he did on Flight No. AC8069 would pale compared to what he would do on the next flight. It is Air Canada’s position that this threat was separate and distinct from Mr. Geisler’s threat to file a suit before tribunals. Mr. Thomson then recommended that Mr. Geisler be banned immediately from Air Canada and Air Canada Express flights until he assured Air Canada that he would no longer present a safety risk.

[33] On November 23, 2011, Mr. Charette, Air Canada’s senior director of security, sent Mr. Geisler a letter informing him that he would no longer be accepted as a passenger on Air Canada and Air Canada Express flights as he was considered a threat to the safety and comfort of passengers, crew and safe operation of the aircraft. The letter further set out that the ban would remain in place until Mr. Geisler demonstrated to Air Canada’s satisfaction that he no longer posed a threat to the safety and comfort of passengers, crew and safe operations of the aircraft. Air Canada submits that this decision was made in consideration of: (1) Mr. Geisler’s refusal to obey crew instructions on board the flight, (2) his threatening and aggressive behaviour towards Ms. Vos, (3) his continued threatening behaviour towards Mr. Da Silva and the first officer, and, (4) the comments he made over the telephone to Mr. Thomson.

[34] In support of its submissions, Air Canada provided signed statements by Ms. Vos, Mr. Da Silva and Mr. Thomson. Air Canada also provided previous correspondence with Mr. Geisler concerning the events.

[35] With respect to Mr. Geisler’s claim for reimbursement, Air Canada submits that according to Rule 35 (III) of the Tariff, where a passenger is banned for future travel, the recovery of the passenger shall be limited to the refund value of the unused portion of the passenger’s ticket. Air Canada asserts that in this case, all portions of Mr. Geisler’s ticket were used and as such, he is not entitled to a refund or any other form of compensation.

ANALYSIS AND FINDINGS

Did Air Canada properly apply the terms and conditions of carriage governing refusal to transport set out in its Tariff when it imposed a travel ban on Mr. Geisler for future flights?

[36] 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.

[37] The Agency notes that the Tariff provides that Air Canada may refuse to transport a passenger should Air Canada decide, in its reasonable discretion, that the passenger has engaged in prohibited conduct. Specifically, Rules 35(II)(b) and (d) of the Tariff state that Air Canada may refuse to transport a passenger if:

(b) the person’s conduct, or condition is or has been known to be abusive, offensive, threatening, intimidating, violent, or otherwise disorderly, and in the reasonable judgment of a responsible carrier employee there is a possibility that such passenger would cause disruption or serious impairment to the physical comfort or safety of other passengers or carrier’s employees, interfere with a crew member in the performance of his duties aboard carrier’s aircraft, or otherwise jeopardize safe and adequate flight operations;

[...]

(d) the person fails to observe the instructions of carrier and its employees, including instructions to cease prohibited conduct;

[...]

[38] Mr. Geisler submits that he called Air Canada’s medical desk on September 1, 2011 and was informed that a note would be placed on his file to allow him to wear the earmuffs. Mr. Geisler provided a billing record of three telephone calls to support his claim. The billing record provided does not indicate the length of the calls.

[39] Air Canada states, however, that there is no indication in its file that Mr. Geisler contacted a reservations agent or the medical desk prior to his flight in order to be allowed to wear the earmuffs during taxi, take-off or landing. The Agency notes that Mr. Geisler’s submissions only establish the occurrence of a telephone connection as opposed to the contents of any putative conversation. The Agency finds it unlikely that a medical desk physician would approve Mr. Geisler’s request without either obtaining documentation or recording the approval. On balance, Mr. Geisler’s claim is not found to be credible. However, the Agency also notes that the main issue in this matter is Mr. Geisler’s behaviour during his interaction with Air Canada’s employees.

Events during take-off, landing and deplaning

[40] Mr. Geisler states that during take-off, he removed the earmuffs as per the flight attendant’s instructions; however, he admits that he later put them back on. Mr. Geisler admits that prior to landing, an announcement was made requesting the removal of headsets and noise busters; however, he disregarded both the announcement and the flight attendant’s subsequent request that he remove the earmuffs. Mr. Geisler also admits that during deplaning, he reached towards Ms. Vos in an attempt to make a citizen’s arrest.

[41] Based on Mr. Geisler’s admission that he did not remove the earmuffs when requested by Ms. Vos, the Agency finds that Mr. Geisler failed to observe the instructions of the carrier and its employees, contrary to Rule 35(II)(d) of the Tariff. The Agency also finds that in attempting to arrest Ms. Vos, Mr. Geisler acted in a threatening and intimidating manner, contrary to Rule 35(II)(b) of the Tariff. The Agency is of the opinion that a reasonable person in a similar situation would not have attempted to arrest the flight attendant.

Telephone conversation between Mr. Geisler and Mr. Thomson

[42] On November 23, 2011, Mr. Thomson contacted Mr. Geisler to investigate his complaint. During the conversation, he disagreed with Mr. Geisler that he had medical clearance to wear the earmuffs during taxi, take-off and landing, and explained to Mr. Geisler what needed to be done before he could travel by air again. The parties differ as to what happened next.

[43] Mr. Geisler states that he told Mr. Thomson that the next time, his attempted citizen’s arrest would pale in comparison to what he will do, that he would file a human rights complaint, contact the media and make the issue very public. On the other hand, Air Canada submits that Mr. Geisler aggressively stated to Mr. Thomson that Mr. Geisler “would fly and what he did on Flight No. AC8069 would pale compared to what he would do.” Air Canada asserts that this threat was separate and distinct from Mr. Geisler’s threat to file a suit before tribunals.

[44] When contradictory versions of events are presented by the parties, the burden of proof falls on the complainant to establish that their version of events is the most likely to have occurred. The Agency, in considering the evidence, must determine whether Mr. Geisler’s version of events is more probable than Air Canada’s version.

[45] On a balance of probabilities, the Agency accepts Air Canada’s version of events. Mr. Thomson provided a coherent, cogent and convincing articulation of his conversation with Mr. Geisler. Moreover, his description of Mr. Geisler’s reaction is consistent with or supported by Mr. Geisler’s behaviour on board Flight No. AC8069. Consequently, the Agency finds that Mr. Geisler’s vague threats were, in the context of his previous behavior, sufficient grounds to reasonably conclude that he intended to disrupt the operation of the flight or interfere with the crew’s duties on that flight.

[46] The Agency therefore finds that Mr. Geisler exhibited behaviour that warranted Air Canada’s refusal to transport him, pursuant to Rule 35(II)(b) of the Tariff.

[47] The Agency however notes that statements by a passenger that they may complain to the airline or pursue legal remedies do not constitute a threat against employees, and are therefore not a reasonable basis for imposing a travel ban upon a passenger.

Should the Agency order Air Canada to reimburse Mr. Geisler for the cost of his round trip travel from Victoria to Castlegar?

[48] Section III of Rule 35 of the Tariff on Recourse to Passenger/Limitation of Liability states, among other things, the following:

Carrier’s liability in case of refusal to carry a passenger for a specified flight or removal of a passenger en route for any reason in the foregoing paragraphs [...] shall be limited to the recovery of the refund value of the unused portion of passenger’s ticket from the carrier so refusing or removing, as provided in Rule 260.

[49] Pursuant to the Tariff, Mr. Geisler is entitled to a refund in an amount equal to the “unused portion” of his fare. In this case, Mr. Geisler was returned to his point of origin on November 21, 2011, as the flight was unable to proceed to Castlegar, and he was banned from travel on Air Canada and Air Canada Express flights on November 23, 2011. As such, the Agency notes that Mr. Geisler did not complete any portion of his trip.

CONCLUSION

[50] In light of the above findings, the Agency directs Air Canada to provide compensation to Mr. Geisler in the amount of $485.22, if it has not already done so, within 30 days from the date of this Decision.

[51] The Agency dismisses the remainder of Mr. Geisler’s complaint.