Decision No. 191-C-A-2000

March 20, 2000

File No. 4370/A328/99

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APPLICATION

On February 22, 1999, Mr. M. filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title. On March 31, 1999, Air Transat A.T. Inc. (hereinafter Air Transat) filed its answer to the complaint. Additional documentation was subsequently filed by Air Transat on April 19, May 26, June 3 and June 4, 1999.

On April 13 and June 10, 1999, Mr. M. filed replies to the answer. Additional comments were filed by Mr. M. on June 26, July 22, August 16 and November 2, 1999 and on February 10, February 21 and March 7, 2000.

Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until March 19, 2000.

BACKGROUND

In his letter dated June 24, 1999, Mr. M. requested that the Agency not render a final decision on his complaint until a police report regarding the incident, as prepared by the Peel Regional Police, is filed with the Agency. On July 5, 1999, the Agency received a copy of the said police report.

On July 22, 1999, Mr. M. asked that the Agency not make its final decision on the complaint before a police investigation of the original police report is completed.

On February 20, 2000, Mr. M. advised that he no longer wants the Agency to wait for the conclusion of the police investigation to make its decision on his complaint.

ISSUES

The issues to be addressed are:

1. Whether Air Transat's failure to provide Mr. M., Mrs. M. and their daughter with their pre-selected seats constitutes a contravention of the applicable terms and conditions of the air carrier's tariff; and
2. Whether Air Transat's refusal to transport Mr. M. and his daughter on board Flight No. TS510 on December 21, 1998 constitutes a failure by the air carrier to comply with the applicable terms and conditions of its tariff.

FACTS

Mr. M., Mrs. M. and their daughter (hereinafter the Ms) purchased round trip tickets for travel between Toronto and Santiago de Cuba departing on December 21, 1998. After booking, the Ms reserved their seats and paid the applicable charges for the pre-selection of seats. They were assigned seats 11A, 11B and 11C.

At check-in, Air Transat informed Mrs. M. that because of a technical problem, their pre-selected seats were no longer available. The Ms were then reassigned seats 39E, 39F and 39G, and Air Transat assured Mrs. M. that she would be reimbursed for the cost associated with the preassignment of seats.

Mrs. M. voiced her dissatisfaction concerning the alternate arrangements. After some discussions with the in-flight personnel, Air Transat summoned the Peel Regional Police who subsequently escorted the Ms off the aircraft.

POSITIONS OF THE PARTIES

Mr. M. submits that he realized at the airport that his preselected seats had been assigned to other passengers. Mr. M. states that he was not aware of his wife's interaction with the Air Transat check-in personnel about the seat reassignment, and that he and his wife were "flying as separate people". He indicates that he and his daughter boarded the aircraft and sat in their reassigned seats, followed by Mrs. M. shortly thereafter. Mr. M. submits that the In-flight Director approached him, saying that the pilot had decided that he should leave the plane. Mr. M. replied "We are going to leave the plane if the police asked us to do so". Mr. M. further states that "It is clear without any doubt that by addressing herself to me only, the In-flight Director wanted me off the plane".

Mr. M. states that several minutes later, the In-flight Director returned with two policemen who asked Mr. M., his daughter and his wife to disembark.

Mr. M. advises that when he indicated that they would leave the aircraft only if asked to do so by the police, he was speaking on behalf of himself and his daughter only, and not on behalf of Mrs. M..

Air Transat apologizes for the difficulties encountered by the Ms regarding their advance seat selection, and notes that the Ms were seated together on the aircraft, following the reassignment of seats. The air carrier states, however, that Mrs. M. was disruptive and unruly all through the check-in and boarding processes and kept demanding her preselected seats. Air Transat notes that travel packages offered by tour operators are non-refundable, but, as a goodwill gesture, Air Transat Holidays refunded the amount of $1,000.00.

Air Transat submits that due to Mrs. M.'s aggressive behaviour, the In-flight Director had no other alternative but to ask Mrs. M. to disembark from the aircraft. Air Transat is of the opinion that Mrs. M. could have posed a safety hazard during transportation.

Air Transat further submits that the directive to disembark the aircraft was addressed only to Mrs. M., and that Mr. M. and his daughter were free to remain on board the aircraft. Air Transat states that both Mr. and Mrs. M. advised the In-flight Director that they would not leave the aircraft, which gave the In-flight Director no choice but to call the police.

OTHER SUBMISSIONS

Air Transat provided the Agency with a copy of various flight reports which relate to Mr. M.'s complaint, including a report made by the In-flight Director. This report indicates that the In-flight Director informed Mr. M. that Mrs. M. was requested to disembark, and that the air carrier needed to know whether Mr. M. and his daughter wished to continue on the flight in order to advise the ground personnel of which baggages were to be removed. The report states that at no time was Mr. M. or his daughter requested to leave the aircraft.

In his response, Mr. M. indicated that he could only reply to the In-flight Director's report, as the In-flight Director was the only person who asked him to leave the aircraft. He stated that the said report contains false statements and that the In-flight Director asked him and his daughter to leave the plane, but did not speak to his wife or give a reason for the request.

The Agency requested and received a copy of the June 24, 1999 Peel Regional Police report on July 5, 1999. The report states that Mrs. M., due to her behaviour, was required by the air carrier to deplane. It also indicates that while Mr. M., in the presence of the police, did not cause any problems and tried to calm his wife, he and his daughter were given the choice to stay on the aircraft by Air Transat. They, however, chose to deplane.

Mr. M. submits that, in his opinion, Air Transat lied to the police in order to have Mr. and Mrs. M. and their daughter removed from the aircraft.

PRELIMINARY MATTER

By Decision No. LET-A-63-2000 dated March 3, 2000, the Agency sought clarifications from Mr. M. regarding his initial request for the Agency to wait for the review of the police investigation into the matter before rendering its decision.

In his reply, Mr. M. confirms that he no longer wants the Agency to wait for the conclusion of the police investigation to make its decision on his complaint.

Furthermore, Mr. M. requests that the Agency only take into account the reports and notes written on the day of the incident and that it should not consider any of the reports written after the incident.

The Agency is, however, of the opinion that the information contained in the reports referred to by Mr. M. is relevant to the matter before the Agency. The fact that the reports were written after the incident will be taken into account in the Agency's determination of the matter.

ANALYSIS AND FINDINGS

The Agency examines consumer complaints by ensuring that the provisions of the CTA, as well as those of its attendant regulations, including the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR), are complied with by air service operators. The Agency must also ensure that air carriers abide by the terms and conditions of their respective tariffs.

Pursuant to section 110 of the ATR, air carriers who provide an international air service to and from Canada must file their tariffs with the Agency.

Pursuant to paragraph 122(c) of the ATR, tariffs shall contain the terms and conditions of carriage clearly stating the air carrier's policy in respect of, amongst other matters, the refusal to transport passengers or goods. The Agency has examined Air Transat's tariff applicable to the service described herein and notes that rule 12.1(A) thereof stipulates that the air carrier may refuse to carry a passenger for safety reasons. Rule 10(A) of the air carrier's tariff provides for the pre-selection of seats on payment of a charge of CDN $10.00 per flight segment.

In making its findings, the Agency has carefully considered all the submissions filed by the parties and notes that there are some contradictions with respect to some of the facts relating to Mr. M.'s complaint.

According to Air Transat's evidence, the air carrier had to remove Mrs. M. from the aircraft for safety reasons, and Mr. M. and his daughter were given the option of remaining on board. Mr. M. asserts, to the contrary, that he was given no such option. The Peel Regional Police report filed on July 5, 1999 supports Air Transat's assertion that Mr. M. and his daughter were given the option of remaining on board the aircraft.

Although there is reference in the in-flight reports to the police requesting the Ms as a family to collect their bags in the sequence of events, this request was made after Mrs. M. was asked to disembark and the option was given of only Mrs. M. or Mrs. M., Mr. M. and their daughter disembarking. According to the in-flight report, Mr. M. then indicated that Air Transat could call the police. This was set out in the In-flight Director's report which is dated December 21, 1998, i.e. the date of the incident.

In addition, although the Incident Report referred to by Mr. M. states that "airlines wants a disgruntled family removed from a flight before they take off", the in-flight reports and the police report, which provide a more detailed and specific summary of the incident, indicate that Mr. M. and his daughter were given the option of remaining on board the aircraft. In other words, the Incident Report does not make reference to the details as to what occurred, but is, rather, a generalization of the incident.

The Agency notes that the circumstances regarding the disembarkation of Mrs. M. must have been difficult for Mr. M.. However, the Agency is of the opinion that the preponderance of the evidence indicates that Mr. M. and his daughter chose to disembark from the aircraft.

With regard to the matter of the Ms' pre-selected seats, the Agency notes that Air Transat acknowledged that an error was committed and reimbursed the Ms the charge assessed for the pre-selection of seats.

CONCLUSION

In light of the above findings, the Agency has determined that Air Transat has not contravened the terms and conditions of its tariff, and the applicable regulatory requirements.

The Agency is of the view, based on the evidence submitted, that Mr. M. has not demonstrated to the Agency's satisfaction that he and his daughter were involuntarily removed from the aircraft.

With respect to the air carrier's failure to provide the Ms with their pre-selected seats, the Agency notes Air Transat's submission that a technical problem resulted in some seats being double booked. In addition, the Ms were refunded the amount that they paid for the pre-selection of seats. Therefore, the Agency does not contemplate the taking of any corrective action with respect to this particular matter.

Consequently, the complaint filed by Mr. M. is hereby dismissed.