Decision No. 278-C-A-2006

May 12, 2006

File No. M4370/A74/02-1016

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COMPLAINT

[1] On September 18, 2002, Charles D. Flynn filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title.

[2] On October 4, 2002, Air Canada was requested to file with the Agency its answer to the complaint, within the following 30 days, and to serve a copy on Mr. Flynn; Mr. Flynn was given the opportunity to file a reply to Air Canada's answer with the Agency within 10 days from the date of receipt of the answer, and to serve a copy on Air Canada.

[3] In a letter dated October 23, 2002, Air Canada requested that the Agency provide clarification as to which legislative provisions of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA) the Agency would apply in its consideration of the complaint. Air Canada also advised that Mr. Flynn had filed a lawsuit before the British Columbia Small Claims Court on September 18, 2002, and, therefore, it requested that the Agency stay the proceedings before it until final adjudication had been rendered by the Court. Air Canada also requested a 30-day extension of the prescribed time frame for the filing of its answer should the Agency not grant the stay.

[4] In a letter dated November 12, 2002, both Mr. Flynn and Air Canada were advised of the Agency's jurisdiction in this matter. In addition, Mr. Flynn was requested to file a response to the carrier's request for a stay of proceedings, and Air Canada was provided with the opportunity to file a reply to Mr. Flynn's response. On November 15, 2002, Mr. Flynn filed his objection to the carrier's request for a stay of proceedings, and on November 19, 2002, Air Canada reiterated its request for a stay of proceedings or, in the event that the Agency did not grant the stay, a 30-day extension of the prescribed time frame for the filing of its answer to the complaint. In its Decision No. LET-C-A-361-2002 dated December 16, 2002, the Agency denied Air Canada's request for a stay of proceedings and granted the carrier a 30-day extension to file its answer to Mr. Flynn's complaint. In a letter received by the Agency on January 22, 2003, Air Canada filed its answer to the complaint; a copy was concurrently served on Mr. Flynn.

[5] In letters dated January 28 and January 29, 2003, Mr. Flynn filed with the Agency his reply to Air Canada's answer and documents that further supported his claim. A copy of his submissions was concurrently served on Air Canada. The carrier filed comments concerning Mr. Flynn's reply on January 30, 2003, including a copy of the flight report, form ACF34D, completed concerning the incident. In addition, on February 2 and 3, 2003, Mr. Flynn submitted documents in his possession supporting comments made both in his initial complaint and in his letter dated January 28, 2003.

[6] In its Decision No. LET-C-A-40-2003 dated February 14, 2003, the Agency accepted Air Canada's comments as being relevant and necessary to its consideration of this matter and Mr. Flynn was then provided 10 days to file his comments with respect to Air Canada's comments. Mr. Flynn had already filed comments on January 31 and February 1, 2003. On February 20, 2003, he advised that he did not expect to send additional replies, and that the comments filed on January 31 and February 1, 2003 were to be considered his reply.

[7] Between April 1, 2003 and September 30, 2004, Air Canada was under court-sanctioned protection from its creditors under the Companies' Creditors Arrangements Act, R.S.C., 1985, c. C-36 (hereinafter the CCAA). As part of that process, the Ontario Superior Court of Justice (hereinafter the Court) 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. The Court also prescribed a process administered by the Monitor by which claimants could pursue claims of a financial nature against Air Canada and certain of its subsidiaries. Mr. Flynn used this process to advance his claim for financial compensation against Air Canada arising from this incident.

[8] On August 23, 2004, the Court issued an Order pursuant to the CCAA (hereinafter the Sanction Order) which governed Air Canada's emergence from creditor protection and lifted the stay order as of October 1, 2004. Among other things, this Order had the effect of extinguishing all claims before the Agency for financial compensation from Air Canada and certain of its subsidiaries which arose on or before April 1, 2003.

[9] In January 2005, Air Canada took the position that all applications before the Agency against Air Canada and its subsidiaries in relation to incidents which occurred on or before April 1, 2003 (hereinafter the affected applications), including this application, were extinguished by the Sanction Order.

[10] The Agency was of the opinion that Air Canada's position was incorrect insofar as the applications raised issues other than claims for financial compensation and, in particular, claims of a regulatory nature. As a result, the Agency took action to have the issue resolved by the Court as expeditiously as possible by seeking an interpretation of the Sanction Order as to whether the affected applications were extinguished, as argued by Air Canada. As a result, the affected applications, including this application, were subsequently stayed for a second period of time pending the Court's decision on the matter.

[11] The Agency subsequently decided that the best way to deal with the affected applications was for the Agency to proceed with its consideration of the applications and, as such, on June 30, 2005, the Agency determined that it would not continue with its motion before the Court for an interpretation of the Sanction Order. While a resolution on the dispute surrounding the scope of the Sanction Order has yet to be reached, the Agency has determined that it will proceed with its processing of the affected applications, including the present one.

PRELIMINARY MATTERS

[12] Although Air Canada filed its answer to the complaint after the prescribed deadline, the Agency, pursuant to section 4 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts this submission as being relevant and necessary to its consideration of this matter.

[13] Furthermore, any financial aspect of Mr. Flynn's claim has been extinguished by operation of the Sanction Order. As such, the Agency's jurisdiction over this matter is limited to the issue set out below.

ISSUE

[14] The issue to be addressed is whether Air Canada has properly applied the terms and conditions of carriage concerning refusal to transport specified in its Scheduled International Rules and Regulations Tariff, CTA(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).

POSITIONS OF THE PARTIES

[15] On August 27, 2002, Charles J. Flynn, who was 19 years of age, and his two younger brothers, aged 17 and 13, checked in for Air Canada Flight No. AC897 in London, England, for travel to Vancouver, British Columbia, Canada.

[16] Both Mr. Flynn and Air Canada agree that, prior to boarding the flight, the three passengers visited Air Canada's Maple Leaf Lounge. Mr. Flynn states that they were in the lounge no more than 30 minutes prior to boarding their flight.

[17] Air Canada claims that when Charles J. and his brothers boarded the aircraft, a flight attendant noticed a strong smell of alcohol on the breath of Charles J. and that his eyes were glazed. Air Canada further states that when the In-Charge flight attendant (hereinafter the In-charge) approached Charles J. to ascertain how many alcoholic beverages he had consumed, Charles J. became abusive.

[18] Mr. Flynn alleges that his son was seated and resting his eyes when the In-charge put his hands on his son's legs and very loudly asked if he was going to have any trouble with Charles J. on this flight. Air Canada submits that Charles J. responded to the inquiry by becoming abusive. Air Canada further states that in order not to disrupt or disturb other passengers in the cabin, Charles J. was asked to join the In-charge in the galley at which time Charles J. admitted to having consumed three alcoholic beverages. Air Canada maintains that when Charles J. was questioned as to the quantity of alcohol he had consumed, he replied that he was 19 years old, that he was old enough to consume as many alcoholic beverages as he wanted, and that the In-charge had no right to question him.

[19] Mr. Flynn contends that while in the galley, Charles J. was berated in front of the crew. Mr. Flynn further states that when Charles J. asked for the name of the In-charge, the In-charge walked away and called the captain.

[20] Air Canada advises that Charles J. was told to settle down and to promise not to consume alcoholic beverages during the flight or he would be refused transportation; Charles J. responded with profane language and then returned to his seat. Subsequently, Charles J. was asked to leave the aircraft, which he did in the company of his two younger brothers.

[21] Air Canada maintains that the two younger brothers were not refused transportation, but were told by their older brother to accompany him off the aircraft; a customer service agent was called to assist. The flight report indicates that the ramp supervisor advised Charles J. that he would be accepted on the flight if he adopted a reasonable attitude; however, Charles J. did not agree. Furthermore, Air Canada submits that Charles J. did not respond reasonably and was described as being belligerent. Air Canada states that although he was not abusive in the boarding area, Charles J. remained extremely critical of the In-charge and was disruptive.

[22] The parties agree that the three passengers were offered seats on another Air Canada flight leaving later on the same day which they refused. They were rebooked, at no additional charge, to travel with Air Canada on the following day.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[23] Subsection 110(4) of the ATR provides that:

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.

[24] Paragraph 113.1(a) of the ATR provides that:

Where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs, the Agency may

direct the licensee to take corrective measures that the Agency considers appropriate.

The applicable provisions of the Tariff

[25] Rule 25 of the Tariff governing the terms and conditions of carriage in effect on August 27, 2002 states, in part, as follows:

REFUSAL TO TRANSPORT – LIMITATIONS OF CARRIER

II. PASSENGER'S CONDUCT – REFUSAL TO TRANSPORT – PROHIBITED CONDUCT AND 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:

(1) the person, in the reasonable judgement of a responsible carrier employee, is under the influence of intoxicating liquors or drugs (except a medical patient under proper care);

(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 judgement 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;

[...]

(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;

(2) [...]

(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.

ANALYSIS AND FINDINGS

Air Canada's request for an oral hearing and Air Canada's and Mr. Flynn's requests for the filing of affidavits

[26] The Agency has considered these requests and is of the opinion that it is in a position to make its ruling in this matter based on the information on file and, therefore, hereby denies these requests.

The case at hand

[27] 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 in effect at the time of the incident applicable to the carrier's refusal to transport passengers as set out in the Tariff. It is important to note at the outset that the Agency's jurisdiction in this matter is limited to determining:

• whether Air Canada did, in fact, refuse to transport the two younger Flynn brothers; and
• whether Air Canada properly applied the terms and provisions of its tariff in refusing to transport Charles J. Flynn, as well as the younger Flynn brothers should the Agency find that they were refused transport.

1. Refusal to transport Charles J. Flynn

[28] Pursuant to subsection 110(4) of the ATR, an air carrier shall, inter alia, apply the terms and conditions of carriage specified in its tariff.

[29] Rule 25 II (A) of Air Canada's Tariff includes a non-exhaustive list of prohibited conducts where it may be necessary, in the reasonable discretion of the carrier, to apply one or more sanctions to ensure, among other things, the physical comfort or safety of other passengers and the carrier's employees, or the safety of the aircraft, for example: when a passenger is under the influence of intoxicating liquors or drugs; and/or when a passenger demonstrates an abusive, offensive or otherwise disorderly behaviour and there is a possibility that such passenger could become disruptive to the crew and passengers and the safety of the flight operations, both to be determined "in the reasonable judgement of a responsible carrier employee".

[30] The report of the In-charge, prepared on the day of the incident and submitted by Air Canada, indicates that Charles J. emitted a strong smell of alcohol and that his eyes were glazed when he boarded the flight. According to Air Canada, Charles J. admitted that he had consumed three alcoholic beverages while in the Maple Leaf Lounge. Mr. Flynn did not dispute this statement. Mr. Flynn simply stated that his sons were in the lounge for no more than one half hour during which time his son was served alcoholic beverages.

[31] Based on this evidence, Charles J. did consume three alcoholic beverages in a relatively short period of time and it is reasonable to conclude that the In-charge was justified in his assessment that Charles J. was under the influence of alcohol, one of the prohibited conducts set out in Rule 25 of the Tariff.

[32] In weighing the evidence of the parties, the Agency has concluded that, on balance, Charles J. demonstrated an attitude and behaviour consistent with some of the other prohibited conducts that are listed in the Tariff. According to the In-charge, when Charles J. was approached to determine the number of alcoholic beverages he had consumed, Charles J. became verbally abusive. The In-Charge also stated that when he further questioned Charles J. in the galley, Charles J. became louder and more verbally abusive.

[33] The Agency also notes that an Air Canada customer service agent offered Charles J. the opportunity to reboard the flight but that Charles J. continued to exhibit the same behaviour.

[34] In light of the foregoing, the Agency finds that Charles J. demonstrated conduct which justified Air Canada's decision to refuse to transport him. The Agency therefore finds that Air Canada properly applied the terms and conditions of carriage set out in its Tariff when it refused to transport Charles J. from London to Vancouver on its Flight No. AC897 on August 27, 2002.

2. Alleged refusal to transport Charles J.'s two brothers

[35] Air Canada stated that when Charles J. was asked to leave the aircraft, he told his younger brothers to accompany him, and they did. Mr. Flynn alleged that the younger brothers were wrongfully removed from the aircraft.

[36] The Agency is of the opinion that, had there been a decision made by Air Canada to also refuse to transport Charles J.'s two younger brothers, this fact would have been reflected in the report which was prepared by the In-charge on the day that the incident occurred. This report contains the account of the In-charge of the events leading up to the refusal to transport Charles J.

[37] Mr. Flynn filed a note which states "Captain called operations and asked for 3 pax to be removed from the aircraft". However, the Agency is not persuaded that this is evidence of Air Canada's refusal to transport the two younger brothers. In this regard, the Agency accepts Air Canada's explanation that this note does not mean that the three brothers were required to leave the aircraft but simply that the Captain had to relay this information to determine how many pieces of baggage would need to be retrieved from the cargo hold as safety regulations require that baggage of passengers not travelling on a given flight be removed.

[38] The Agency is of the opinion that the evidence filed by Air Canada, being the report prepared by the In-charge on the day that the incident occurred, substantiates Air Canada's position that only Charles J. was required to leave the aircraft and that Mr. Flynn's other two sons were not required by Air Canada to deplane. As such, the Agency finds that Air Canada did not refuse to transport the two younger Flynn brothers.

CONCLUSION

[39] Based on the above findings, the Agency hereby dismisses the complaint.

Members

• Marian L. Robson
• Guy Delisle