Decision No. 348-C-A-2008

June 30, 2008

File No. M4120-3/07-08691

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INTRODUCTION AND ISSUE

[1] Cécile Bernier filed a complaint with the Canadian Transportation Agency (the Agency), concerning the decision by Air Transat A.T. Inc. carrying on business as Air Transat (Air Transat) to deny her boarding on Flight No. TS960 from Québec, Quebec, Canada to Varadero, Cuba on March 10, 2007.

[2] The terms and conditions set out in Air Transat's tariff applicable to the international transportation of passengers (the tariff) state that the carrier, if it deems it reasonable, has the right to refuse to board unruly passengers.

[3] Did Air Transat correctly apply the terms and conditions set out in its tariff when it refused to board Ms. Bernier?

[4] As indicated in the reasons that follow, the Agency finds that Air Transat correctly applied the terms and conditions set out in its tariff when it refused to transport Ms. Bernier from Québec to Varadero on March 10, 2007. The complaint is accordingly dismissed.

FACTS

[5] On March 10, 2007, Ms. Bernier was scheduled to travel with six other family members on Air Transat Flight No. TS960 from Québec to Varadero, but she was refused transportation just before boarding.

[6] There was an argument between Ms. Bernier and a security officer at the security check point. The officer filed a complaint that was brought to the attention of Air Transat and that led to a meeting involving Ms. Bernier, the flight director and the captain. At that meeting, Ms. Bernier was informed that she could board her flight, but that no unruly behaviour would be tolerated and no alcohol would be served to her during the flight. Subsequently, another event led to the flight director, with the captain's agreement, denying Ms. Bernier boarding.

EVIDENCE AND SUBMISSIONS

[7] Ms. Bernier states that when she reported to the security check point at the Québec Jean Lesage International Airport (the Québec airport), she was intercepted in an offhanded fashion by an officer, and to try to reduce the tension, she suggested to the officer that he smile and reminded him of the basic rules of courtesy. Ms. Bernier indicates that she was then called to a meeting with other officers. Thinking that this meeting was due to her comment to the officer at the security check point being considered inappropriate, she apologized, and with the agreement of the officers, returned to the lounge. Ms. Bernier adds that when she was back in the lounge with her family, she could not help but burst into tears because her emotions got the better of her. However, she denies having been verbally threatening and adds that, on the contrary, she let the tears flow in silence, while accepting a glass of wine that her niece offered to help her relax. Ms. Bernier adds that, subsequently, at the time of boarding, the officer she had spoken to at the security check point came back to tell her that she had been seen drinking on a surveillance camera and that she was being denied boarding on Flight No. TS960.

[8] Ms. Bernier indicates that Air Transat failed to comply with the travel arrangements and consequently, she is requesting a refund for the cost of her ticket and that of her spouse, who refused to leave without her.

[9] Air Transat states that it received a complaint from the security officer at the security check point that Ms. Bernier had spoken to him aggressively and impolitely, and that, subsequently, the flight director and the captain had a meeting with Ms. Bernier during which they advised her that no unruly behaviour would be tolerated and no alcohol would be served to her during the flight. Air Transat submits that during this discussion, Ms. Bernier was agitated, but as she appeared to be co-operative, they decided to allow her to travel.

[10] Air Transat submits that once she was back in the lounge, Ms. Bernier was again unruly, i.e., she was very agitated, was crying and was verbally threatening. According to Air Transat, Ms. Bernier's behaviour disturbed the peaceful atmosphere in the lounge. Air Transat adds that Ms. Bernier had been seen drinking alcohol. Air Transat states that as a result, security officers had to intervene again, and the flight director, with the captain's agreement, refused to board Ms. Bernier on Flight No. TS960. Air Transat maintains that it was reasonable to expect that Ms. Bernier's behaviour would be just as unruly during the flight and consequently, the denial of boarding was justified.

ANALYSIS AND FINDINGS

[11] In accordance with a well established principle on which the Agency relies when considering complaints, it is up to the complainant to show, on a preponderance of evidence, that the air carrier failed to properly apply the terms and conditions of transport set out in its tariff or that these terms and conditions are unreasonable.

[12] The Agency notes that Air Transat's tariff gives the carrier the right to refuse to carry a passenger if in its reasonable opinion the passenger engages in unacceptable behaviour. Specifically, Rule 6.1 c) states that:

The carrier may refuse to carry or cancel the reserved space of, or may remove enroute from any flight any passenger when:

...

c) The conduct, status, age, psychological and/or physical condition of the passenger is such as to require, in the reasonable opinion of the Carrier's personnel, special assistance or cause discomfort or be objectionable to other passengers, or involve any hazard or risk to such passenger, to any other persons or property, or to the flight.

[13] In the case at hand, while the evidence is contradictory in several aspects, the parties admit that Ms. Bernier's comments to the security officer gave rise to a discussion with the flight director and the captain during which Ms. Bernier received a formal verbal warning that no unruly behaviour on her part would be tolerated.

[14] Ms. Bernier claims that her behaviour was justified under the circumstances, given the emotional state she was in as a result of being harassed by the security officers and Air Transat personnel. Air Transat submits however that it had reasonable grounds to believe, after this sequence of events, that Ms. Bernier's unruly behaviour on the ground might be repeated during the flight, so that her denied boarding was justified in this case. The evidence shows that, on more than one occasion, Ms. Bernier's behaviour gave rise to intervention by security officers and Air Transat personnel.

[15] The Agency, in considering the evidence, must determine which of the different versions is more probable, based on a preponderance of evidence. Furthermore, Ms. Bernier has a greater burden of proof than simply presenting facts. She must persuade the Agency that her version is more probable than that of Air Transat.

[16] Upon filing a complaint, applicants can support their statements in several ways: testimony, corroboration, admission, production of materials, etc. In the absence of corroborating evidence in Ms. Bernier's case, the Agency must conclude that Air Transat's evidence has at least equal weight to Ms. Bernier's, which means that Ms. Bernier has not met her burden of proof. Consequently, the Agency cannot conclude that Air Transat failed to exercise its reasonable discretion, as required by its tariff, when it denied Ms. Bernier boarding on Flight No. TS960 from Québec to Varadero on March 10, 2007.

[17] The Agency therefore finds that Air Transat properly applied the terms and conditions of transport set out in its tariff when it refused to board Ms. Bernier.

CONCLUSION

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

Members

• J. Mark MacKeigan
• John Scott