Decision No. 18-C-A-2015

INTRODUCTION

[1] Katalin Enisz filed an application with the Canadian Transportation Agency (Agency) against Air Canada for its refusal to transport her due to alleged unruly behaviour.

[2] On June 6, 2012, Ms. Enisz boarded Air Canada Flight No. AC033 from Vancouver, British Columbia, Canada to Sydney en route to Melbourne, Australia, but was deplaned prior to the flight’s departure due to alleged disruptive behaviour. She purchased a replacement ticket to travel with China Eastern Airlines Corporation Limited also carrying on business as China Eastern Airlines and China Eastern (China Eastern) on June 7, 2012. Subsequently, Air Canada applied the sanction provided in the carrier’s International Passenger Rules and Fares Tariff NTA(A) No. 458 (Tariff) and banned Ms. Enisz from travelling with Air Canada until Ms. Enisz provides satisfactory assurances that she no longer poses a risk to the safety and the comfort of other passengers and crew.

REMEDY

[3] Ms. Enisz is seeking:

• compensation for mistreatment;
• refund of her hotel accommodations and the replacement ticket she purchased to travel with China Eastern;
• compensation for broken jewellery;
• a letter of apology from Air Canada; and,
• the right to travel again with Air Canada.

PRELIMINARY MATTERS

Deadline to file a claim

[4] Air Canada argues that Ms. Enisz’s claim is extinguished as it was submitted to the Agency, for formal adjudication, on June 16, 2014, i.e. more than two years after the events that occurred on June 6, 2012.

[5] The Agency notes that Ms. Enisz filed her application with the Agency on April 28, 2014. The Agency considers that date to be the operative date to establish whether a claim was filed within the two-year deadline for filing of such a claim under Article 35 of the Convention for the Unification of Certain Rules for International Carriage by Air - Montreal Convention (Montreal Convention). The Agency therefore finds that Ms. Enisz’s claim was filed within the deadline prescribed by the Montreal Convention, and that, as such, the claim has not been extinguished.

Agency jurisdiction over mistreatment

[6] Ms. Enisz requests an undefined amount of compensation for the purported mistreatment to which she was subjected.

[7] The Agency does not have the jurisdiction to order payment of compensation for things such as pain and suffering or loss of enjoyment, as consistently stated in previous decisions, such as 55-C-A-2014">Decision No. 55-C-A-2014 (Brines v. Air Canada), 434-C-A-2007">Decision No. 434-C-A-2007 (Thakkar v. Aeroflot) and 361-C-A-2007">Decision No. 361-C-A-2007 (O’Connor v. Air Canada).

Damage to jewellery

[8] The alleged damage to Ms. Enisz’s jewellery is related to incidents in which Air Canada was not involved. The Agency’s jurisdiction is limited to matters relating to Air Canada’s tariff.

Apology

[9] The Agency is not a court of inherent jurisdiction and as such, cannot coerce an expression of opinion or more specifically a letter of apology. The Agency is a creature of statute and the authority to order that letters of apology be provided would have to be expressly provided for in the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA). There is nothing in the CTA that empowers the Agency to order such an apology.

ISSUES:

1. Did Air Canada properly apply the terms and conditions of its Tariff as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), when it refused transportation to Ms. Enisz on June 6, 2012?
2. Did Air Canada properly apply the terms and conditions of carriage specified in its Tariff, as required by subsection 110(4) of the ATR, when it decided to impose a travel ban on Ms. Enisz?

RELEVANT STATUTORY AND TARIFF EXTRACTS

[10] The statutory and tariff extracts relevant to this matter are set out in the Appendix.

POSITIONS OF THE PARTIES

Ms. Enisz

[11] Ms. Enisz states that while waiting for Flight No. AC033 to take off, two couples seated near her had an altercation over luggage space in the overhead bins. She indicates that she commented that companies should not permit this, and that people should be more considerate of others.

[12] Ms. Enisz contends that her comments were made quietly and that she did not get involved in the other passengers’ arguments. She submits that she was then very aggressively singled out, and was told by the air crew to stop talking, failing which she would be removed from the aircraft. She further submits that she responded that she had a right to her opinion, and requested to speak with a senior crew member. She alleges that a second crew member then verbally abused her, and threatened to remove her from the aircraft.

[13] Ms. Enisz submits that given that she was not afforded the chance to clarify with the crew members or the Service Director what happened, she asked to speak to the Captain. She was then advised by the flight crew that the Captain had other things to do. She states that shortly after, she was informed that her luggage had been removed from the aircraft, and she was requested to leave the aircraft, which she refused to do.

[14] Ms. Enisz states that she was sitting quietly in her seat when police officers arrived. She adds that they asked to speak with her in private at the front of the aircraft, to which she responded that she wanted to clarify the issues from her seat as she had done nothing wrong. Ms. Enisz advises that she refused to leave the aircraft until someone listened to her.

[15] Ms. Enisz alleges that the police officers physically removed her from her seat, and escorted her off the aircraft.

[16] In support of her complaint, Ms. Enisz submitted several photographs, depicting the injuries that she purportedly suffered as a result of the physical mistreatment to which she was subjected by the police and airport security personnel in Vancouver.

Air Canada

[17] Air Canada asserts that after taking a seat other than the one assigned to her, Ms. Enisz loudly commented on the allegedly excessive luggage of other passengers, and that they were using her space in the overhead bins. Air Canada states that she was reminded by the first Service Director, who also addressed with Ms. Enisz the matter of her being in the incorrect seat, that passengers needed to share the overhead bins, which made her get increasingly loud, and angry and antagonistic.

[18] Air Canada advises that both the first and second Service Directors tried to calm Ms. Enisz down and, on four occasions, attempted to reason with her. An Air Canada ground employee also boarded the aircraft in an effort to calm Ms. Enisz down, but without success. According to Air Canada, Ms. Enisz then requested to speak with the Captain or a supervisor. Air Canada alleges that the disruptive behaviour displayed by Ms. Enisz then escalated when she started to call names to the flight crew and use inappropriate language.

[19] Air Canada submits that because Ms. Enisz refused to obey the repeated requests from the crew members to calm down, and following a consultation between the Captain and the first Service Director, it was decided to deplane Ms. Enisz.

[20] Air Canada asserts that Ms. Enisz refused to leave the aircraft, despite a formal request by officers of the Royal Canadian Mounted Police (RCMP), that she had to be forcibly removed, and that while being escorted from the aircraft by the police, she continued to argue and shout, while attempting to reach back towards the first Service Director.

[21] Air Canada points out that Ms. Enisz’s alleged injuries were sustained while being deplaned by airport security personnel and the RCMP, and that she does not allege that any injuries were caused by Air Canada’s personnel. Air Canada advises that in a letter dated June 12, 2012 to Ms. Enisz, it requested her to submit in writing representations as to why Air Canada should accept her on future flights, and the assurances that the behaviour she exhibited on June 6, 2012, will not recur. Air Canada states that it did not receive an answer from Ms. Enisz and consequently it was well founded in taking the sanction of banning Ms. Enisz from travelling with Air Canada.

[22] Air Canada refers to previous decisions by the Agency, where it was decided that (i) the refusal to carry a passenger who exhibited prohibited conduct was warranted (295-C-A-2011">Decision No. 295‑C‑A‑2011, O’Reilly v. Air Canada), and the burden of proof falls on the complainant to establish that their version is the most likely to have occurred; and (ii) Air Canada was entitled to refuse carriage in a case where a passenger was belligerent with the crew members and refused to sit in his assigned seat (493-C-A-2006">Decision No. 493-C-A-2006, Fuentes v. Air Canada).

[23] Air Canada maintains that it acted in accordance with its Tariff in refusing to transport Ms. Enisz and in imposing a ban. Air Canada undertakes to reimburse Ms. Enisz the cost of the return ticket, as required by its Tariff.

Ms. Enisz

[24] In her reply to Air Canada’s answer, Ms. Enisz argues that instead of acknowledging its mistreatment of her and compensating her for that mistreatment, Air Canada remains in denial.

[25] Ms. Enisz submits that Air Canada has conveniently neglected to mention that she travelled earlier with Air Canada, without incident, and that she did not pose any problems on her flight from Australia to Canada.

ANALYSIS AND FINDINGS

Issue 1: Refusal to transport

[26] Air Canada’s Tariff allows the carrier to refuse to transport or remove a passenger if it considers, while exercising reasonable discretion, that the passenger has engaged in an unacceptable behaviour. Specifically, Rule 25 - Refusal to transport – Limitations of carrier, of the Tariff provides for such action.

[27] In determining whether Air Canada properly applied its Tariff in this matter, the Agency examines the evidence put before it by the parties. As for the burden of proof, the rule is that the complainant, in this case Ms. Enisz, is required to prove, on a balance of probabilities, that Air Canada has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in the Tariff.

[28] The applicant must prove their case by a fair preponderance of credible evidence. The central test is the need to balance conflicting values to the extent of the complainant’s burden of proof. If at the close of a case the evidence is equally balanced, the applicant will have failed their burden.

[29] Ms. Enisz’s description of the events is challenged at length by Air Canada, either in their veracity or in their interpretation. Therefore, the burden is on Ms. Enisz to establish that her version is the most likely to have occurred.

[30] Ms. Enisz describes the events as follows:

Following a physical altercation and verbal argument between two couples she quietly expressed her view that such behavior should not be permitted. She was then repeatedly threatened by crew members to be removed from the aircraft if she did not stop talking. She emphasized that she did not argue, was polite at all times with everyone and only requested to talk to the senior crew member to explain what had happened, but the two crew members kept accusing her of disturbing the peace and repeated their threats to remove her from the aircraft. She then asked to speak to the Captain to clarify with him that she was accused and threatened without reason. Her requests to talk with the senior crew and the Captain were denied. Shortly after she was told that her luggage had been removed from the aircraft and that she must leave the aircraft peacefully. Following her refusal to abide by the crew’s instructions, two police officers were asked to intervene. She told them that she was not going to leave the aircraft until someone was willing to listen to her because she had done nothing wrong and it was not her but the couple next to her who caused the problem. She explains that she was forcefully removed from the aircraft and physically abused by the police officers and airport security personnel.

[31] Air Canada describes the events that lead to the deplaning of Ms. Enisz as follows:

Upon boarding, Ms. Enisz started complaining about the fact that other passengers were using her overhead luggage space. She was using a very loud voice, perceptible throughout the cabin such that the second Service Director had to advise her to calm down. She was told that all passengers need to share overhead bin space. Ms. Enisz was unresponsive and became increasingly loud and disruptive. A passenger seated beside Ms. Enisz did not want to be close to a loud passenger for over a 16-hour flight and asked to be assigned another seat. Other passengers were disturbed and concerned about Ms. Enisz’s behavior. The first and second Service Directors both repeatedly requested Ms. Enisz to refrain from using a loud voice and to calm down. Ms. Enisz persisted in her disruptive behavior, requested to speak to the Captain or the Supervisor, started to call names to the flight crew, and used inappropriate language. Her behaviour escalated for more than 20 minutes. As Ms. Enisz did not comply with the repeated requests to calm down, and after having consulted the Captain, it was decided to deplane her. Ms. Enisz refused to leave the aircraft despite a formal request. She had to be forced out by the RCMP.

[32] There is no doubt that there is genuine disagreement as to certain aspects of the events. On the one hand, Ms. Enisz asserts that she did nothing wrong; she only expressed her opinion quietly, which she contends she had the right to do. According to Ms. Enisz, for no reason, crew members verbally abused her and threatened to remove her from the aircraft. On the other hand, Air Canada submits that following boarding, Ms. Enisz’s conduct was disruptive; she became loud and agitated and refused to observe the repeated instructions of crew members. The Agency must determine which version is more probable.

[33] The Agency finds that Ms. Enisz’s evidence as to how the incident occurred is improbable. In regard to the allegations concerning Ms. Enisz’s behaviour, there is sufficient evidence to indicate that she was neither calm nor well behaved. In her submission, Ms. Enisz indicates that crew members told her on several occasions that she could be deplaned in light of her behaviour. She interpreted those notices as a threat and kept on arguing and requesting to talk to the Captain for more than 20 minutes. She also adopted a similar demeanor when she confronted the two police officers; in her submission, she states “I told them that I am not going to leave the plane until someone is willing to listen to me, because I have done nothing wrong.”

[34] The Agency finds that the incident unfolded as described by Air Canada, namely that Ms. Enisz’s conduct was disruptive and that she failed to observe instructions to cease the prohibited conduct, including the instruction to leave the aircraft.

[35] Based on these facts, the Agency concludes that Air Canada exercised its reasonable discretion, as required by its Tariff, when it refused to transport Ms. Enisz on Flight No. AC033 from Vancouver to Sydney on June 6, 2012. Therefore, the Agency finds that Air Canada properly applied the terms and conditions of its Tariff and thus, Air Canada is not required to compensate Ms. Enisz for the replacement ticket she purchased to travel from Vancouver to Melbourne and for the price of her overnight hotel accommodations.

[36] The Agency takes note of Air Canada’s commitment to refund Ms. Enisz for the return ticket as per the Tariff.

Issue 2: Travel ban

[37] The Agency notes that in its answer to Ms. Enisz’s application, Air Canada states that it advised Ms. Enisz that she will not be accepted as a passenger in the future until she provides the carrier with satisfactory assurances that she no longer poses a risk to the safety and the comfort of passengers and crew. The evidence on file indicates that, to date, Ms. Enisz has failed to provide those assurances.

[38] Rule 25 - Refusal to Transport – Limitations of carrier, of Air Canada’s Tariff allows the carrier to impose a travel ban on a passenger when Air Canada has determined, in its reasonable discretion, that a passenger has engaged in prohibited conduct.

[39] Given the evidence on file, the Agency finds that Air Canada is entitled to apply the sanction provided in its Tariff and to ban Ms. Enisz from travel with Air Canada until she provides satisfactory assurances that she no longer poses a risk to the safety and the comfort of passengers and crew. As such, the Agency finds that Air Canada properly applied the terms and conditions of carriage of its Tariff in this particular matter.

CONCLUSION

[40] In light of the above findings, the Agency dismisses the application.

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APPENDIX TO DECISION NO. 18-C-A-2014

RELEVANT STATUTORY EXTRACTS

Air Transportation Regulations, SOR/88-58, as amended

110(4) 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.

Convention for the Unification of Certain Rules for International Carriage by Air‑Montreal Convention

Article 35

1. The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
2. The method of calculating that period shall be determined by the law of the court seized of the case.

Air Canada’s International Passenger Rules and Fares Tariff, NTA(A) No. 458

Rule 25 - Refusal to transport – Limitations of carrier

II. Passenger’s conduct – refusal to transport prohibited conduct & sanctions

(A) Prohibited Conduct:

Without limiting the generality of the foregoing, the following constitutes prohibited conduct where it may be necessary, in the reasonable discretion of the carrier, to take action to ensure the physical comfort or safety of the person, other passengers (in the future and present) and/or the carrier’s employees; the safety of the aircraft; the unhindered performance of the crew members in their duty aboard the aircraft or the safe and adequate flight operations:

[…]

(2) 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;

[…]

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

(B) Sanctions

Where, in the exercise of its reasonable discretion, the carrier decides that the passenger has engaged in prohibited conduct described above, the carrier may impose any combination of the following sanctions:

(1) removal of the passenger at any point;

[…]

(3) refuse to transport the passenger. The length of such refusals to transport may range from a one-time to an indefinite up to lifetime ban. The length of the refusal period will be in the carrier’s reasonable discretion, and will be for a period commensurate with the nature of the prohibited conduct and until the carrier is satisfied that the passenger no longer constitutes a threat to the safety of other passengers, crew or the aircraft or to the comfort of the other passengers or crew; the unhindered performance of the crew members in their duty aboard the aircraft; or the safe and adequate flight operations. The following conduct will automatically result in an indefinite ban, up to lifetime ban:

(a)  the person continues to interfere with the performance of a crew member’s duties notwithstanding verbal warnings by the crew to stop such behavior;

(b)  the person injures or subjects to a credible threat of injury a crew member or other passenger;

(c)  the person has a conduct that requires an unscheduled landing and/or the use of restraints such as ties or handcuffs;

(d)  the person repeats a prohibited conduct after receiving a notice of probation as mentioned in (2) above;

These remedies are without prejudice to carrier’s other rights and recourses, namely to seek recovery of any damage resulting from the prohibited conduct or as otherwise provided in the carrier’s tariffs, including the recourses provided in the Aeroplan Member’s Guide or the filing of criminal or statutory charges.

III. Recourse of the passenger/limitation of liability

Carrier’s liability in case of refusal to carry a passenger for a specific flight or removal of a passenger en route for any reason specified in the foregoing paragraphs or in Rule 21 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 90(D).

A person who is refused carriage for an indefinite period of time, up to a lifetime ban, or to whom a probation notice is served may provide to the carrier, in writing, the reasons why he/she no longer poses a threat to the safety or comfort of passengers or crew, or to the safety of the aircraft. Such document may be sent to the address provided in the refusal to carry notice or the notice of probation.

Carrier will respond to the passenger within a reasonable period of time providing carrier’s assessment as to the need or not to prolong the ban or to maintain the probation period.