Decision No. 238-C-A-2005

April 22, 2005

File No. M4370/A74/03-459

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COMPLAINT

[1] On October 28, 2003, Howard Hoffer filed with the Air Travel Complaints Commissioner the complaint set out in the title, and on November 3, 2003, Mr. Hoffer filed additional information concerning his complaint. However, due to the regulatory nature of the complaint, it was referred to the Canadian Transportation Agency (hereinafter the Agency).

[2] Between April 1, 2003 and September 30, 2004, Air Canada was under court-sanctioned protection from its creditors under the Companies' Creditors Arrangement Act, R.S.C., 1985, c. C-36. As part of that process, the Ontario Superior Court of Justice issued an order suspending all proceedings against Air Canada and certain of its subsidiaries. The Agency was, therefore, prohibited from dealing with any complaints or investigations involving Air Canada during that 18-month period. In a letter dated November 27, 2003, Mr. Hoffer was advised of the status of his complaint in this respect.

[3] By letter dated November 24, 2004, both Mr. Hoffer and Air Canada were advised of the Agency's jurisdiction in this matter. In that same letter, Air Canada was requested to provide the Agency and Mr. Hoffer with its answer to the complaint, and Mr. Hoffer was given the opportunity to file a reply to Air Canada's answer. Mr. Hoffer was also requested to provide the Agency with a copy of his Air Canada ticket and a copy of any further correspondence with Air Canada.

[4] On December 21, 2004, Air Canada requested that the deadline for filing its answer to the complaint be extended from December 24, 2004 to January 24, 2005. In its Decision No. LET-C-A-357-2004 dated December 23, 2004, the Agency granted Air Canada the requested extension. On January 24, 2005, Air Canada filed its answer and concurrently served a copy on Mr. Hoffer.

[5] On February 11, 2005, Agency staff contacted Mr. Hoffer to remind him that he had ten days to reply to Air Canada's answer. Mr. Hoffer declined the Agency's request to provide any comments concerning Air Canada's answer, and refused to comply with the request for a copy of his Air Canada ticket.

[6] Pursuant to subsection 29(1) of the Canada Transportation Act (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 May 28, 2005.

ISSUE

[7] The issue to be addressed is whether Air Canada has applied the terms and conditions of carriage relating to refusal to transport specified in its International Passenger Rules and Fares Tariff, N.T.A.(A) No. 458 (hereinafter the tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) with respect to this matter.

POSITIONS OF THE PARTIES

[8] On September 23, 2003, Mr. Hoffer and his companion, Ms. Nancy Wagoner, travelled on Air Canada Flight No. AC 29 from Vancouver to Beijing. Mr. Hoffer was assigned Seat 12D in the bulkhead row of the aircraft.

[9] Mr. Hoffer states that he placed his bag in the compartment directly above his seat, and Ms. Wagoner's bag in the overhead bin above seats 12A and 12C. They then sat in their assigned seats. Mr. Hoffer advises that several moments later, a crew member advised him to put his bag under his seat, as loose items were not permitted in the space between the seats and the bulkhead. Mr. Hoffer states that he complied with her request, but that the crew member then asked him in an impatient tone to give her the bag so that it could be placed under his seat from the rear.

[10] Mr. Hoffer notes that while he tried to explain to the crew member in a normal voice that the bag was lodged behind the retaining bar and firmly in place, she ignored his comment, snatched his bag and stowed it under his seat from behind. Mr. Hoffer adds that although he tried to explain that his bag was firmly pushed all the way under his seat with only the end strap in view, the crew member became rude and aggressive. He states that at this point, as he was stunned by her behaviour, he requested to be left alone.

[11] Mr. Hoffer maintains that approximately five minutes later the Captain came back and spoke to him in a very rude tone, demanding to know if Mr. Hoffer was going to behave, and advising him that the alternative would be to return the plane to the terminal to deplane him, causing a delay to all other passengers. The Captain asked him repeatedly whether the flight should continue, giving Mr. Hoffer little chance to respond. Mr. Hoffer replied that he wished to continue. Mr. Hoffer alleges that the Captain then threatened him, warning that there would be serious consequences upon arrival in Beijing should he cause any more trouble during the flight.

[12] Mr. Hoffer feels that the crew member was particularly aggressive and states that at no point did he clench a fist at her, as alleged by Air Canada in its October 13, 2003 letter.

[13] In his complaint to the Agency, Mr. Hoffer indicates that he is seeking an apology from the carrier and the removal of irresponsible airline officials.

[14] In its answer to the complaint, Air Canada submits that the crew member was performing the final cabin safety inspection when she noticed that Mr. Hoffer's carry-on baggage was behind his legs and tilted backwards resting on the floor. Mr. Hoffer became angry and argumentative when the crew member explained that the bag needed to be secured for takeoff and landing. When she reached for the bag in order to place it securely behind his seat, Mr. Hoffer clenched his fist and yelled at her to get away from him. As this was the beginning of an eleven-hour flight, Mr. Hoffer's aggressive behaviour concerned the crew member and she advised the flight Captain, who then left the cockpit to speak to Mr. Hoffer.

[15] Air Canada reports that the Captain told Mr. Hoffer that he must follow the safety requirements and refrain from speaking abusively to his crew, otherwise, the Captain would return to the gate and deplane him. Air Canada adds that Mr. Hoffer was also warned that if he did not behave in a civil manner during the flight, he would be presented to the authorities in Beijing, but as Mr. Hoffer advised that he wished to continue on the flight, the Captain returned to the cockpit and the flight continued on to Beijing without further incident.

[16] Air Canada notes that in Beijing upon deplaning the aircraft, Mr. Hoffer leaned into the crew member's face and said to her to "have a nice education, cause you're really going to get one". Air Canada indicates that it delivered a warning letter to Mr. Hoffer on his return flight from Hong Kong to Vancouver on October 16, 2003. The carrier argues that upon reviewing this incident, it concluded that there were still concerns that Mr. Hoffer's behaviour could disrupt the safety and/or comfort of other passengers or crew on future flights.

[17] Air Canada contends that Mr. Hoffer's allegation that it wrongly accused him of exhibiting a "prohibited conduct" does not constitute a breach or failure by Air Canada to apply its tariff and submits that the Agency therefore has no jurisdiction to rule on this complaint. Air Canada also confirms that Mr. Hoffer was carried by Air Canada on his ticketed Air Canada flights both to Beijing and back to Vancouver in accordance with its tariff.

[18] As well, Air Canada refers to the provision of the Canadian Aviation Regulations, SOR/96-433 which provides that every passenger on board shall comply with instructions given by any crew member respecting the safety of the aircraft or of persons on board the aircraft.

[19] In conclusion, Air Canada submits that the crew member acted appropriately and in full compliance with the applicable regulations concerning the proper stowage of Mr. Hoffer's carry-on baggage.

ANALYSIS AND FINDINGS

[20] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings. Procedural fairness requires a full and fair consideration of the issues, and parties whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.

[21] Accordingly, in a letter dated November 24, 2004, Mr. Hoffer was asked to provide the Agency with a copy of his Air Canada ticket and was given the opportunity to comment on Air Canada's answer. However, the Agency notes that Mr. Hoffer was contacted on February 11, 2005 by Agency staff who reminded him to file comments, if any, and to file a copy of his Air Canada ticket. Despite these requests for information, Mr. Hoffer declined the Agency's request to provide any comments concerning Air Canada's answer and did not file a copy of his Air Canada ticket.

[22] Although Mr. Hoffer was asked to present specific information and was also provided with a meaningful opportunity to present any evidence relevant to his case for a full and fair consideration by the Agency, he refused to do so.

CONCLUSION

[23] Based on the foregoing, the Agency hereby dismisses Mr. Hoffer's complaint.