Decision No. 313-C-A-2007

June 19, 2007

File No. M4120-3/07-01136

---

COMPLAINT

[1] On February 14, 2007, Carolyn and Stan Zwick filed with the Complaint Investigations Division the complaint set out in the title. Due to the regulatory nature of the matter, the complaint was referred to the Canadian Transportation Agency (hereinafter the Agency) for its consideration.

[2] On February 27, 2007, Mrs. Zwick was asked to confirm whether she wished to pursue this matter before the Agency. On March 6, 2007, Mrs. Zwick consented to having her complaint submitted to the Agency.

[3] In a letter dated March 7, 2007, both parties were advised of the Agency's jurisdiction in this matter. In that same letter, Skyservice Airlines Inc. carrying on business as Skyservice (hereinafter Skyservice) was requested to provide the Agency and Mrs. Zwick with the carrier's answer to the complaint within the following thirty (30) days, and Mrs. Zwick was provided an opportunity to file a reply to the carrier's answer and to serve a copy on Skyservice within ten (10) days from the date of receipt of the answer. On April 5, 2007, Skyservice filed its answer to the complaint. Mrs. Zwick did not reply.

ISSUE

[4] The issue to be addressed is whether Skyservice properly applied the terms and conditions of carriage concerning refusal to transport specified in its international charter tariff CTA(A) No. 3 (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

[5] Mrs. Zwick submits that, on January 21, 2007, she and her husband were scheduled to travel with Skyservice from Cancun to Edmonton, departing at 1:40 a.m., but the flight was delayed until 3:40 a.m. Mrs. Zwick states that at the check-in counter, they requested that they be assigned seats together but were informed that the request could not be accommodated. She adds that her husband voiced his displeasure about this issue and that the agent at the check-in counter mentioned to them that their breath smelled of alcohol and asked them if they had been drinking. Mrs. Zwick submits that, in response, both her and her husband acknowledged that they did have a few drinks as they knew their flight was delayed. Mrs. Zwick maintains that neither she nor her husband were obnoxious or disrespectful. Mrs. Zwick advises that they were then told to sit down and that they would be monitored. Mrs. Zwick indicates that about one hour later they were given their tickets and were told to go through security. According to Mrs. Zwick, after passing security and while waiting for their flight, she and her husband each drank a quarter of a beer before boarding of their flight was announced. Mrs. Zwick maintains that when she and Mr. Zwick arrived at the boarding gate, they were pulled aside and were refused transportation. Mrs. Zwick states that they were advised that the Captain would not allow them on board, and adds that they asked to speak with the Captain, but without success. Mrs. Zwick indicates that the following afternoon she and her husband were able to return home with Skyservice, but had to buy new tickets at the price of $320 each.

[6] Mrs. Zwick is seeking a refund of $120 for the telephone call she made home to advise of her delay in arrival, and a refund for the two tickets she bought to return home as she feels she should not be responsible to pay for these tickets twice.

[7] Skyservice claims that when Mrs. and Mr. Zwick were advised that it was not possible to accommodate their seating request, their behavior became such that the agents at the check-in counter felt that the couple posed a risk to the safe operation of the flight. Skyservice submits that its personnel requested Mrs. and Mr. Zwick to calm down, that on their later return to the check-in counter, Mrs. and Mr. Zwick's behavior had improved, and that the carrier's personnel checked them in for the flight but warned them that should there be any further outbursts, both would be refused travel. Skyservice submits that Mrs. Zwick consumed more alcohol after the warning by the agents and exhibited behavior that was "loud and noisy", and adds that both Mrs. and Mr. Zwick began to raise their voices, and, as a result, Skyservice refused to transport them on January 21, 2007.

[8] Skyservice asserts that it acted in accordance with the Tariff, that it will not tolerate unruly behavior compounded by alcohol consumption, and that the Canadian Aviation Regulations provide that no operator of an aircraft shall allow a person to board the aircraft, where there are reasonable grounds to believe that the person's faculties are impaired by alcohol or a drug to an extent that the person may present a hazard to the aircraft or to persons on board the aircraft.

Applicable legislative and regulatory provisions

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

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.

[10] Section 113.1 of the ATR provides:

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 tariff, the Agency may

(a) direct the licensee to take corrective measures that the Agency considers appropriate; and

(b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure 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 Tariff provisions

[11] Rule 6 of the Tariff governing the terms and conditions of carriage in effect on January 21, 2007 states, in part:

Rule 6 CONDITIONS OF CARRIAGE

...

n) Passenger's Conduct, Refusal to Transport, Prohibited Conduct and Sanctions

i) Prohibited Conduct

The following non-exhaustive list constituted (sic) prohibited conduct where it may be necessary, in the reasonable dissection (sic) of the carrier, to apply one or more sanctions 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 safe and adequate flight operations:

a) 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);

b) 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 or (sic) 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, interfere with a crew member in the performance of his duties aboard carrier's aircraft, or otherwise jeopardize safe and adequate flight operations;

c) the person's conduct involves any unusual hazard or risk to self or to other persons (including, in cases of pregnant passengers, unborn children) or to property;

...

(ii) 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 one or a combination of any of the following sanctions:

a) removal of the passenger at any point;

b) the carrier may stipulate that the passenger is to follow certain probationary conditions, such as to not engage in prohibited conduct, in order for the carrier to provide transport to said passenger. Such probationary conditions may be imposed for any length of time, which, in the exercise of the carrier's reasonable discretion, is necessary to ensure the passenger's continued compliance with the prohibition of certain conduct;

c) refuse to transport the passenger. The length of such refusals to transport may range from a one-time or other specified number 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 the 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 abroad the aircraft; or safe and adequate flight operations.

...

o) Recourse of the Passenger and Limitation of Liability

Where the person is subject to probationary conditions imposed by the carrier or where a person has been refused carriage on a one-time or other specified basis or is subject to an indefinite or lifetime ban, the person may provide to the carrier, in writing, the reasons the carrier should remove the sanction. Carrier will respond to the passenger within a reasonable period of time with carrier's assessment as to the need or not to continue applying the sanction(s). Carrier shall not be liable for its refusal to transport any passenger or for its removal of any passenger in accordance with the preceding paragraphs of this rule.

ANALYSIS AND FINDINGS

[12] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined the terms and conditions of carriage concerning refusal to transport passengers set out in the Tariff, and Skyservice's liability in such situations.

[13] 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.

[14] When a complaint is filed with the Agency, the complainant must, on a preponderance of the evidence, establish that the air carrier has failed to apply, or has inconsistently applied, the terms and conditions of carriage found in the applicable tariff.

[15] The Agency notes that the Tariff provides that the carrier has the right to refuse to transport a passenger should the carrier decide, in its reasonable discretion, that the passenger has engaged in a prohibited conduct.

[16] In the present case, no evidence has been presented that would allow the Agency to question the decision of Skyservice's agents to refuse to transport Mrs. and Mr. Zwick on Flight No. 5G3865 from Cancun to Edmonton on January 21, 2007.

[17] The Agency therefore finds that Skyservice properly applied its terms and conditions of carriage as set out in the Tariff when it refused transportation to Mrs. and Mr. Zwick.

[18] With respect to Mrs. Zwick's request to be compensated for the purchase of the second pair of tickets, and for the telephone call she made home to advise of her delay in arrival, the Agency finds that no compensation is due in light of paragraph (o), Recourse of the Passenger and Limitation of Liability, of Rule 6, Conditions of Carriage, of the Tariff, which provides, in part, that Skyservice "shall not be liable for its refusal to transport any passenger or for its removal of any passenger in accordance with the preceding paragraphs of this rule".

[19] Given the Agency's finding that Skyservice respected the Tariff in refusing to transport Mrs. and Mr. Zwick on January 21, 2007, the Agency does not have the jurisdiction, pursuant to section 113.1 of the ATR, to direct Skyservice to reimburse Mrs. and Mr. Zwick for expenses that they incurred as a result of Skyservice's refusal to transport them.

CONCLUSION

[20] In light of the foregoing, the Agency hereby dismisses the complaint.

Members

• Gilles Dufault
• Raymon J. Kaduck