Decision No. 22-C-A-2010

January 20, 2010

File No. M4120-3/09-02590

INTRODUCTION AND ISSUE

[1] Kelly Murney filed a complaint with the Canadian Transportation Agency (Agency), on behalf of himself and his wife, Marlene Jones, with respect to the refusal by Sunwing Airlines Inc. (Sunwing) to transport them on Flight WG055 from Calgary, Alberta, Canada to Las Vegas, Nevada, United States of America on December 21, 2008, due to alleged unruly behaviour.

[2] Did Sunwing properly apply the terms and conditions set out in its International Scheduled Tariff CTA(A) No. 2 (Tariff) when it refused transportation to Mr. Murney and Ms. Jones?

[3] As indicated in the reasons that follow, the Agency finds that (i) Mr. Murney has failed to discharge his burden of proof that, on a balance of probabilities, Sunwing did not properly apply the terms and conditions of its Tariff in refusing to transport him, and (ii) the evidence on file does not support the carrier's refusal to transport Ms. Jones. Therefore, the Agency finds that Sunwing did not properly apply the terms and conditions of the Tariff with respect to Ms. Jones.

PRELIMINARY MATTER

[4] In support of its submission, Sunwing filed written statements of employees, including a statement of a Sunwing employee reporting on a telephone conversation that an employee had with a passenger who purportedly witnessed Mr. Murney's behaviour on Flight WG055 on December 21, 2008. Sunwing has redacted the passenger's name from the statement. The Agency has not considered this statement because it is hearsay and not attributed to any identifiable individual and, therefore, did not reach an acceptable level of reliability. The Agency does not accept that an air carrier can use its passenger list to find supporting testimony for its position and then selectively provide this information, claiming confidentiality. This offends fairness as it does not disclose responses that may have been less favourable to its position, nor does it allow the passenger to effectively rebut these statements or the Agency to gauge their reliability.

SUBMISSIONS

[5] Mr. Murney submits that on December 21, 2008, he and Ms. Jones were scheduled to travel with Sunwing on Flight WG055 from Calgary to Las Vegas. Mr. Murney states that when he and his wife were on board the aircraft, a flight attendant refused to allow Ms. Jones to place a bag containing duty-free liquor in the overhead bin because of the emergency equipment contained in the bin. Mr. Murney further submits that the flight attendant refused to help them find another place to store the bag.

[6] Sunwing maintains that the flight attendant asked Mr. Murney to remove his duty-free alcohol from the overhead bin due to the fact that there was emergency equipment in the bin and that, for security reasons, it could not be stored there. Sunwing asserts that Mr. Murney became rude, disrespectful and aggressive, and he swore and threw his carry-on luggage at the flight attendant.

[7] Mr. Murney submits that he did not behave aggressively toward the flight attendant, nor did he throw his carry-on luggage at her. He states that the flight attendant was rude and abrupt with him and he felt that he was being harassed and taunted by her. Mr. Murney acknowledges swearing once but claims that he attempted to follow her instructions with respect to storing his carry-on luggage in an alternate area.

[8] In support of its submission, Sunwing provided statements from crew members, including the captain of the flight who made the decision to contact the Operations Control Centre personnel to inform them of the situation, and who requested police assistance.

[9] Sunwing submits that pursuant to Rule 8 of the Tariff, Sunwing may refuse to carry a person if it is necessary in order to comply with regulations, if the person's conduct is verbally abusive or offensive and there is a possibility that this person would cause a disruption on board the flight, or if the person fails to observe crew instructions with respect to safety and security.

ANALYSIS AND FINDINGS

[10] When a complaint is filed with the Agency, the onus is on the complainant to prove, on a balance of probabilities, that the air carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its tariff.

[11] The Agency notes that Sunwing's Tariff provides that the carrier may refuse to transport a passenger should the carrier decide, in its reasonable discretion, that:

• The person fails to observe the instructions of the carrier and its employees, including instructions to cease prohibited conduct; or
• The person's conduct, or condition is or has been known to be verbally or physically abusive, offensive, threatening, intimidating, violent or otherwise disorderly and in the reasonable judgement of a 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, or interfere with a crew member in the performance of his/her duties aboard carrier's aircraft.

[12] In this case, the parties' description of events is contradictory. Therefore, the burden is on the applicant to establish that his version of events is the most likely to have occurred.

[13] Mr. Murney claims that he was respectful toward the flight attendant. He maintains that he attempted to follow her instructions and did not behave aggressively toward her. However, he acknowledges swearing once.

[14] Sunwing provided submissions from the inflight service director, the flight attendant and the captain in support of its position.

[15] The Agency finds that Sunwing's version of events is more convincing because it is corroborated by detailed and consistent statements made by several members of its personnel. The evidence supports, on a balance of probabilities, Sunwing's decision to refuse to transport Mr. Murney.

[16] However, Sunwing's refusal to transport Ms. Jones is not supported by particularly compelling evidence. Statements filed by the flight attendant, the inflight service director and the captain generally describe Ms. Jones as having a bad attitude when she came on board the aircraft and claim that she was rude and uncooperative. However, there are no details to explain the circumstances surrounding her alleged unruly behaviour. Generalized statements are not sufficient to support a conclusion that Ms. Jones' behaviour warranted a refusal to transport.

[17] Consequently, the Agency finds that Sunwing failed to demonstrate that there were reasonable grounds to refuse to transport Ms. Jones, and that, in doing so, Sunwing did not properly apply the terms and conditions set out in its Tariff.

CONCLUSION

[18] In light of the foregoing, the Agency finds that Ms. Jones should be reimbursed for expenses directly related to Sunwing's refusal to transport her.

[19] The Agency orders Sunwing to compensate Ms. Jones, within 30 days from the date of this Decision, the amount of CAD$1173.20, which represents the expenses for:

• WestJet's replacement ticket from Calgary to Las Vegas (CAD$1150.00)
• taxi to airport (CAD$23.20)

[20] Sunwing shall notify the Agency when Ms. Jones has been compensated.

Members

• Raymon J. Kaduck
• Jean-Denis Pelletier, P. Eng.