Decision No. 219-C-A-2005

April 14, 2005

File No. M4370/04-50311

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COMPLAINT

[1] On August 4, 2004, Saki Data filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title. On August 12, 2004, Mr. Data filed additional information regarding his complaint. On August 16, 2004, WestJet provided documentation in support of its actions.

[2] In a letter dated August 23, 2004, Mr. Data and WestJet were advised of the Agency's jurisdiction in this matter and WestJet was requested to file its answer to the complaint and to provide a copy to Mr. Data. On September 9, 2004, WestJet filed its answer.

[3] In a letter dated October 18, 2004, parties were advised of an amendment to the letter dated August 23, 2004 and were provided an additional ten days to file further comments. On October 27, 2004, Mr. Data filed his reply to WestJet's answer. On November 1, 2004, WestJet filed further documents supporting its position. Mr. Data did not file comments concerning WestJet's last correspondence.

[4] 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 April 15, 2005.

ISSUE

[5] The issue to be addressed is whether WestJet has complied with the regulatory requirements imposed by the CTA and the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) with respect to this matter.

FACTS

[6] On July 11, 2004, Mr. Data boarded WestJet Flight No. WS 719 for travel from Toronto to Vancouver, via a connection in Edmonton to WestJet Flight No. WS 215. When Mr. Data left his seat and attempted to use the forward lavatory on Flight No. WS 719 while the seatbelt sign was illuminated, he was denied access to the lavatory by an on-duty employee of the carrier and instructed to return to his seat. Mr. Data then went to the rear of the aircraft to use the aft lavatory. Upon arrival in Edmonton, Mr. Data deplaned, and while waiting in the boarding lounge for his connecting flight to Vancouver, he was first told by WestJet personnel that he would have to wait for a later flight that day, and he was subsequently advised by WestJet personnel that he would be able to travel on another flight the next morning.

[7] The Royal Canadian Mounted Police (hereinafter RCMP) subsequently escorted Mr. Data from the boarding lounge. Prior to his leaving the airport that evening, Mr. Data was informed by WestJet personnel that he was suspended from further travel with WestJet.

POSITIONS OF THE PARTIES

[8] Mr. Data notes that he has a pre-existing health condition that results in impulsive behavior and anxiety when he requires the use of a washroom. Mr. Data also submitted correspondence from a physician that confirms his health condition and suggests that it may explain his behavior while on board the flight from Toronto to Edmonton.

[9] Mr. Data states that one half hour prior to landing in Edmonton, he urgently required the use of a lavatory. He indicates that he attempted to access the facilities in the forward section of the aircraft while the seatbelt sign was illuminated, but was blocked by a flight attendant who instructed him to return to his seat. He states that, as he did not want to have an accident but wished to stress the urgency of the situation, he shouted at the flight attendant and went to the rear lavatory where access to a lavatory was not restricted. Mr. Data claims that after using the lavatory, he returned to his seat and sat quietly for the remainder of the flight to Edmonton, where he deplaned.

[10] Mr. Data states that while he was in the boarding lounge awaiting his connecting Flight No. WS 215, WestJet advised him, without providing justification, that he would not be able to board his connecting flight and that he would have to take a later flight. Mr. Data states that he was later told that he would be unable to board any flight that evening and that he would have to take a flight in the morning. He indicates that he remained quiet and did not create a fuss when so advised. Mr. Data adds that later in the evening, he was informed by a WestJet representative that he would not be permitted to travel with WestJet.

[11] WestJet states that the crew of WestJet Flight No. WS 719 from Toronto to Edmonton had concerns regarding Mr. Data's behavior prior to take off, but upon speaking with him, the crew determined that he should not be refused travel at that time. The carrier indicates, however, that Mr. Data later refused to remain in his seat while the seatbelt sign was illuminated. Further, when the flight attendant refused Mr. Data access to the forward lavatory, Mr. Data began to yell and flail his arms, hitting the flight attendant in the chest, and then proceeded to the lavatory in the rear of the aircraft. The carrier advises that the crew of Flight No. WS 719 reported the incident to the crew of connecting Flight No. WS 215, who asked the ground crew to assess Mr. Data's condition and determine whether he should be refused transportation. WestJet states that the ground crew spoke to Mr. Data regarding his behavior and realized that he may have been experiencing some mental instability. As such, the ground crew refused to allow him to board that day because he seemed irrational, but advised him that he could travel the next day. According to the carrier, Mr. Data agreed that he should behave more appropriately. WestJet adds, however, that when the ground crew attempted to explain to Mr. Data what behavior was appropriate for the flight the next day, he became even more irrational in his behavior and was yelling and flailing his arms. As a result, the RCMP who, according to WestJet, had earlier noted his behavior via security cameras, came to the boarding lounge to speak to him and escorted him out of the lounge. The carrier indicates that the ground crew advised the RCMP that Mr. Data would not be permitted to travel with WestJet until he had spoken with either corporate security or customer care. The carrier forwarded a letter to Mr. Data dated July 12, 2004 to advise him that he was suspended from further travel with WestJet pursuant to Rule 5.3 of its Local Domestic Tariff (hereinafter the Tariff).

[12] According to WestJet, it is required by the Tariff to provide "a refund to the person [refused transport] of the unused portion of the person's fare." In this regard, the carrier states that Mr. Data paid $172 plus taxes, fees and surcharges to travel from Toronto to Vancouver and that, as the cost of a similar ticket to travel from Toronto to Edmonton was $161 plus taxes, fees and charges, he was owed and paid $11.77 by WestJet for the unused portion of his flight, which represents the connecting flight from Edmonton to Vancouver.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[13] Section 67 of the CTA provides, inter alia:

67. (1) The holder of a domestic licence shall

(a) publish or display and make available for public inspection at the business offices of the licensee all the tariffs for the domestic service offered by the licensee;

. . .

(3) The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

[14] Subsection 67.1 of the CTA provides:

67.1 If, on complaint in writing to the Agency by any person or on its own motion, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

1. apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;
2. compensate any person adversely affected for any expenses they incurred as a result of the licensee's failure to apply a fare, rate, charge or term or condition of carriage that was set out in its tariffs; and
3. take any other appropriate corrective measures.

[15] Subparagraph 107(1)(l) and (n)(vi) of the ATR provide:

107. (1) Every tariff shall contain

. . .

(l) the terms and conditions governing the tariff, generally, stated in such a way that it is clear as to how the terms and conditions apply to the tolls named in the tariff;

. . .

(n) the terms and conditions of carriage, clearly stating the air carrier's policy in respect of at least the following matters, namely,

. . .

(vi) refunds for services purchased but not used, whether in whole or in part, either as a result of the client's unwillingness or inability to continue or the air carrier's inability to provide the service for any reason,

. . .

The tariff provisions

[16] The Conditions of Carriage as set out in the Tariff, Rule 5.3, and Rule 5.4 provide, in part:

5.3 Carriage of Passengers

Notwithstanding anything to the contrary herein contained, the Carrier reserves the right to refuse to board or transport or remove from an aircraft at any time, any person if such refusal or removal is, in the Carrier's reasonable discretion, necessary or desirable for reasons of the health, comfort or safety of that person, passengers, the Carrier's employees or agents, the aircrew, the aircraft, or the safe operation of the aircraft, or is otherwise necessary or desirable to prevent violation of any applicable law, regulation or order of any governmental authority of those jurisdictions where the aircraft shall be flown from, to or over. The Carrier may, in its reasonable discretion, impose those sanctions described in Rule 5.3(e) including the imposition of conditions in respect of future travel or the imposition of a temporary, indefinite, or permanent travel ban on a passenger who has engaged in any conduct or behaviour more fully described in Rule 5.3(e). In particular, without limiting the generality of the foregoing, the following rules apply with respect to the boarding or transportation of passengers by the Carrier:

e. Passenger Conduct/Behaviour

The Carrier may impose sanctions on any person who engages in or has engaged in any conduct or behaviour on the Carrier's aircraft, or to the knowledge or reasonable belief of the Carrier, on any airport property or other carrier's aircraft, that the carrier determines, in its reasonable judgement, may have a negative effect on the safety, comfort or health of that person, passengers, the Carrier's employees or agents, aircrew or aircraft or the safe operations of the Carrier's aircraft (the "Prohibited Conduct").

A. Examples of Prohibited Conduct that could give rise to the imposition of sanctions include:

1. significant impairment arising from the consumption or use of alcohol or drugs prior to boarding or while on board an aircraft of the Carrier;
2. engaging in belligerent, lewd, or obscene behaviour toward a passenger or employee or agent of the Carrier;
3. threatening, harassing, intimidating, assaulting or injuring a passenger or employee or agent of the Carrier;
4. tampering with or willfully damaging an aircraft, its equipment or other property of the Carrier;
5. failing to comply with all instructions, including all instructions to cease Prohibited Conduct, given by the Carrier's employees;
6. unauthorized intrusion or attempted intrusion onto the flight deck of an aircraft;
7. smoking or attempted smoking in an aircraft;
8. wearing or carrying dangerous or deadly weapons on aircraft (other than on duty escort or peace officers who have complied with the Carrier's guidelines).

B. The sanctions the Carrier may impose on a person may be any one or combination of the following:

1. written or verbal warning;
2. refusal to permit boarding of an aircraft;
3. removal from an aircraft at any point;

iv requiring the person, to undertake in writing to refrain from repeating the Prohibited Conduct in question and from engaging in any other Prohibited Conduct as a prerequisite to further travel with the Carrier during the probationary period that will not normally exceed one year.

v refusal to transport the person on a one time basis, for an indefinite period or permanently, as determined by the Carrier.

The Carrier reserves the right, in its reasonable discretion, to impose the sanction or sanctions it considers appropriate in the circumstances of each case considering the severity of the Prohibited Conduct. Prohibited Conduct described in paragraphs A, iii,iv,vi, or viii will usually entail the imposition of an indefinite or permanent ban from travel with the Carrier. The Carrier's customer care staff, security staff, airport customer service staff and aircrew are individually authorized in their reasonable discretion to impose sanctions described in paragraphs B i, ii, or iii above. Members of the Carrier's customer care and security departments are authorized in their reasonable discretion to impose sanctions described in paragraphs B iv or v above and will review the circumstances of each case prior to their imposition of any such sanctions. The Carrier will provide a person with written notice of the imposition of a sanction under paragraphs B iv or v above. Any person who is given a sanction pursuant to paragraph B v, may respond in writing to the Carrier with reasons why the Carrier should remove the sanction. The Carrier may remove a sanction imposed on a person pursuant to paragraph B v, if, in the Carrier's reasonable discretion, and considering the person's previous conduct, the Carrier determines that the person will not engage in further Prohibited Conduct and the Carrier will communicate its decision within a reasonable time.

Despite anything written elsewhere in this tariff the Carrier's sole liability to a person whom the Carrier refuses to carry following an incident of Prohibited Conduct is to provide a refund to the person of the unused portion of the person's fare.

5.4 Liability of Carrier for Refusing Carriage of a Passenger

Except as otherwise provided for in this Rule 5 and to the extent permitted by law, THE CARRIER SHALL NOT BE LIABLE TO ANY PASSENGER or other person for refusing to board or transport that passenger or any person on an aircraft of the Carrier or for otherwise removing a passenger from the aircraft at any point in the flight; nor shall the Carrier be liable to any of the passengers or other person for exercising its discretion not to refuse to board or transport or remove any passenger or other person on or from the aircraft.

ANALYSIS AND FINDINGS

[17] 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 the terms and conditions of carriage outlined in the Tariff concerning WestJet's refusal to transport passengers, and its liability in such situations.

Refusal to transport

[18] Pursuant to subsection 67(3) of the CTA, an air carrier shall apply the terms and conditions of carriage found in the tariff applicable to its domestic service, as has been published or displayed pursuant to paragraph 67(1)(a) of the CTA.

[19] The Agency notes that Rule 5.3 of the Tariff provides that the carrier has the right to refuse to board or transport, or to remove from an aircraft at any time, any person, if such refusal or removal is, in the reasonable exercise of the carrier's discretion, necessary or desirable for reasons of the health, comfort or safety of that person, passengers, the carrier's employees or agents, the aircrew, the aircraft, or the safe operation of the aircraft and that the carrier may impose those sanctions described in Rule 5.3(e). Paragraph (e) of the Rule includes a non-exhaustive list of examples of prohibited conduct that may necessitate that the carrier, in the reasonable exercise of its discretion, apply one or more of the sanctions identified therein to ensure the physical comfort or safety of other passengers, of the carrier's employees or of the aircraft.

[20] Two of the prohibited forms of conduct identified in Rule 5.3(e) of the Tariff include the following forms of conduct: 1) threatening, harassing, intimidating, assaulting or injuring another passenger or an employee of the carrier; and 2) failing to comply with all instructions, including all instructions to cease a prohibited form of conduct, given by the carrier's employees.

[21] The Agency notes that the parties agreed that Mr. Data shouted at a WestJet flight attendant and then proceeded, against instructions, to access the aft lavatory. In addition, according to the carrier, during the descent of Flight No. WS 719, Mr. Data struck a WestJet employee while flailing his arms when communicating with that employee, who had prohibited him from accessing the forward lavatory and who had instructed him to return to his seat and secure his seatbelt. The carrier also claims that Mr. Data exhibited similar behavior while awaiting his connecting flight in the boarding lounge at the airport in Edmonton. The Agency also notes that WestJet does not appear to have been aware of Mr. Data's pre-existing health condition in its dealings with him on July 11 and 12, 2004 and seems to have only received such information from the complaint filed with the Agency.

[22] Based on the evidence, the Agency is of the opinion that, prior to being refused transportation while awaiting the connecting flight in Edmonton, Mr. Data exhibited at least two of the forms of prohibited conduct, or behavior, identified in Rule 5.3(e) of the Tariff, specifically Rules 5.3(e)(A)iii and v when he, at various times, engaged in the following conduct: shouting at employees of the carrier, failing to comply with all instructions given by the carrier's employees, flailing his arms when communicating with employees of the carrier and striking an employee of the carrier.

[23] As a result, the Agency finds that based on the evidence provided, WestJet applied the terms and conditions of its Tariff when it suspended Mr. Data from future travel with the carrier on the basis that he engaged in prohibited conduct, as defined by Rule 5.3 of its Tariff.

[24] The Agency is of the opinion that, where a person knows that his or her health condition could result in a need for special accommodation in order to avoid a behavioural crisis during transit, the person has a responsibility to identify this potential need for accommodation to the carrier prior to travelling in order to allow the carrier to be prepared to meet the passenger's needs, should they arise. The Agency is of the opinion that, had WestJet known of Mr. Data's particular needs in advance, it may have been able to accommodate his particular requirements by, for example, advising him at the appropriate moment that descent was imminent and that the seatbelt sign was soon to be illuminated, after which time he would not be permitted to leave his seat. Such an approach would have permitted Mr. Data to proceed as necessary in the circumstances and may have avoided the resulting situation at issue in this complaint.

[25] In addition, the Agency notes that, pursuant to WestJet's Tariff, Mr. Data may apply in writing to the carrier, requesting that it reconsider its refusal to transport him in the future and remove the sanction in question. Rule 5.3(e) of the Tariff provides, inter alia:

Any person who is given a sanction pursuant to paragraph B v may respond in writing to the Carrier with reasons why the Carrier should remove the sanction. The Carrier may remove a sanction imposed on a person pursuant to paragraph B v, if, in the Carrier's reasonable discretion, and considering the person's previous conduct, the Carrier determines that the person will not engage in further Prohibited Conduct and the Carrier will communicate its decision to the person within a reasonable time.

Compensation for refusal to transport

[26] The Agency notes that Rules 5.3(e) and 5.4 of the Tariff set out WestJet's policy with respect to the carrier's liability to a passenger for refusal to carry the person following an incident of prohibited conduct. Of particular significance is Rule 5.3(e) of the Tariff which states, inter alia, as follows:

Despite anything written elsewhere in this tariff the Carrier's sole liability to a person whom the Carrier refuses to carry following an incident of Prohibited Conduct is to provide a refund to the person of the unused portion of the person's fare.

[27] In this case, the carrier has already provided a refund to Mr. Data in the amount of CAD$11.77, which it claims represents the difference in the price of the fare purchased by Mr. Data and the price of the same class for travel from Toronto to Edmonton with WestJet.

[28] Subparagraph 107(1)(n)(vi) of the ATR specifically requires that a carrier's terms and conditions of carriage clearly state its policy in respect of refunds for services purchased but not used. In addition, in previous rulings, the Agency determined that the requirement for clarity has been met when, in the opinion of a reasonable person, the rights and obligations of both the carrier and the passengers are stated in such a way as to exclude any reasonable doubt, ambiguity or uncertain meaning.

[29] Regarding the carrier's liability in the current case, the Agency is of the opinion that pursuant to an application of Rules 5.3(e) and 5.4 of the Tariff, Mr. Data is entitled to a refund in an amount equal to the "unused portion" of his fare. The Agency notes, however, that these particular Rules do not identify the basis upon which such an amount is to be calculated. In addition, evidence has not been established that the carrier's Tariff includes any other rule setting out a general methodology to be relied on to calculate a refund for unused services, whether such methodology specifically relates to a refusal to board a person.

[30] The Agency is of the opinion that upon reviewing Rules 5.3(e) and 5.4 of the Tariff, a reasonable person would be left with a reasonable doubt as to the refund entitlement of a passenger who has been refused carriage by WestJet as a result of an incident of prohibited conduct. The amount of CAD$11.77 that WestJet provided to Mr. Data as compensation for the imposition of the sanction in this case represents the difference between the fare from Toronto to Vancouver and the fare from Toronto to Edmonton and is but one possible interpretation of the phrase "unused portion of the person's fare," as found in the Tariff.

[31] The Agency has identified and reviewed other reasonable interpretations of the phrase "unused portion of the person's fare," including: prorating the ticket based on the carrier's Y-type fares; prorating by mileage; refunding the amount of the same (or most similar) WestJet fare class that would have applied to the segment not flown; and, calculating the percentage of the carrier's basic one-way Y-type fare that Mr. Data's fare represented and applying that percentage to the carrier's basic one-way Y-type fare for the segment on which Mr. Data was not carried. The Agency has calculated the refund entitlement of Mr. Data pursuant to an application of each of these interpretations and the results are set out below. Reference to Y-type fares are to those fares published in WestJet's Tariff in effect on July 11, 2004.

Refund Methodology

	Fare Percentage - Percentage of the "Y" Fare	Same/Similar Fare Class	Prorate by "Y" Fare Type	Prorate by Mileage	Total Fare Assessed Less Fare for Sector Flown
Total	106.64	104.86	79.58	42.85	11.77
Refund	99.66	98.00	74.37	40.05	11.00
G.S.T	6.98	6.86	5.21	2.80	.77

[32] In light of the foregoing, the Agency finds that, contrary to section 107(1)(n)(vi) of the ATR, the Tariff does not contain terms and conditions of carriage clearly stating WestJet's policy in respect of refunds for services purchased but not used, whether in whole or in part, either as a result of the client's unwillingness or inability to continue or the air carrier's inability to provide the service.

[33] Nevertheless, the Agency must consider the relevant Rules in the context of the current application. Given the lack of clarity in the Tariff associated with the carrier's statement of its policy on refunding the unused portion of a person's fare, the Agency is of the opinion that the principle of fairness justifies the interpretation of any ambiguities in the application of Rules 5.3(e) and 5.4 in favour of Mr. Data.

[34] In this case, the Agency finds that it is appropriate to interpret the "unused portion" of Mr. Data's fare as being the result of a methodology based on an equitable formula. The methodology involves establishing the percentage of the carrier's basic one-way Y-type fare for the one-way trip purchased that Mr. Data's fare represented, and applying that percentage to the carrier's basic one-way Y-type fare for the segment on which Mr. Data was not carried. In this regard, the Agency notes that according to such a methodology, the applicable refund in this case is CAD$99.66, to which a reimbursement representing GST in the amount of CAD$6.98 must be added. The total refund payable to Mr. Data is therefore the amount of CAD$106.64. However, as WestJet has already provided compensation to Mr. Data in the amount of CAD$11.77, the outstanding refund due to Mr. Data is CAD$94.87.

CONCLUSION

[35] In light of the above findings, the Agency hereby directs WestJet to provide compensation to Mr. Data in the amount of CAD$94.87 and to amend its Tariff in compliance with subsection 107(1)(n)(vi) of the ATR within 30 days from the date of this Decision.

[36] The remainder of Mr. Data's complaint is hereby dismissed.