Decision No. 361-C-A-2007

July 16, 2007

File No. M4120-3/07-00581

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COMPLAINT

[1] Michael Dennis O'Connor filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title. On February 6, 2007, Mr. O'Connor was advised of the Agency's jurisdiction in this matter and was asked to confirm whether he wished to pursue this matter formally before the Agency. On March 23, 2007, Mr. O'Connor advised the Agency that he wished to pursue this matter.

[2] Pleadings were opened on March 30, 2007. On April 17, 2007, Air Canada filed its answer to the complaint and on April 30, 2007, Mr. O'Connor filed his reply.

ISSUE

[3] The issue to be addressed is whether Air Canada has properly applied the terms and conditions of carriage related to refusal to transport and refund as set out in the carrier's Domestic Passenger General Rules Tariff No. CDGR-1 (hereinafter the Tariff) as required by the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA).

FACTS

[4] Mr. O'Connor held a reservation to travel from Fort St. John to Penticton, British Columbia on Air Canada Flight No. 8184 on November 4, 2006. A scan of Mr. O'Connor's checked baggage revealed a device that appeared to be a taser (a type of stunning device). The airport security authorities called the Royal Canadian Mounted Police (hereinafter the RCMP). Air Canada imposed a ban from travel on Mr. O'Connor.

POSITIONS OF THE PARTIES

[5] Mr. O'Connor explains that the airport security authorities called the RCMP after finding an object in his checked baggage that appeared to be a taser. Mr. O'Connor advises that he threw the homemade taser in the snow where he later retrieved it. Mr. O'Connor states that the RCMP arrived on the scene, placed him in jail for five hours and fingerprinted him. Mr. O'Connor points out that Air Canada never asked to verify the contents of his checked baggage and suggests that if the carrier had asked him if it could check his baggage, he would have allowed it. Mr. O'Connor contends that the airport security officials and the RCMP overreacted and points out that the RCMP later dropped the charges against him. Mr. O'Connor admits to being guilty of having an item in his checked baggage which Air Canada claims is a taser but he maintains that Air Canada overreacted in banning him from travel on its flights. Mr. O'Connor states that he was never a threat or danger to anyone, the aircraft or the operations of the flight.

[6] Mr. O'Connor complains that he missed his daughter's birthday because of this incident and requests monetary compensation. Mr. O'Connor enclosed a copy of a newspaper clipping on this incident and a letter from Air Canada dated January 25, 2007 asking him to advise the carrier in writing why Air Canada should accept him for future travel. Mr. O'Connor points out that he replied to Air Canada that he was polite at all times toward Air Canada employees and that he apologized to the airport security personnel for being rude; however, Air Canada has banned him from future travel on its flights.

[7] Air Canada states that Mr. O'Connor had a reservation on Flight No. 8184 from Fort St. John to Penticton which was operated by Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc. carrying on business as Air Canada Jazz (hereinafter Air Canada Jazz).

[8] Air Canada submits that Mr. O'Connor checked in at 11:00 a.m. and his checked baggage was x-rayed and scanned as mandated by Transport Canada. The scan showed an object that appeared to be a taser in Mr. O'Connor's baggage which is an object that is prohibited in checked baggage. Further, the Criminal Code makes it an offense to carry or transport such a device. The carriage of tasers are prohibited under the Aviation Security Screening Measures as well as under the standards of the International Civil Aviation Organization and the International Air Transport Association.

[9] Air Canada notes that the Canadian Air Transport Security Agency (hereinafter CATSA) personnel approached Mr. O'Connor and asked him to identify the object in his baggage. According to Air Canada, Mr. O'Connor replied that the object was a homemade taser. Air Canada contends that Mr. O'Connor's attitude was defiant and that although he was requested not to touch the content of his baggage, Mr. O'Connor grabbed the device from his baggage, ran out of the terminal and threw it in the snow at which time CATSA employees called the RCMP.

[10] Air Canada refers to the newspaper clipping submitted by Mr. O'Connor, which reports that Mr. O'Connor admitted converting a garage door opener into something that looks like a taser, and that Mr. O'Connor did not appreciate airport security calling the RCMP. Furthermore, Air Canada refers to a conversation between the Security Manager for Air Canada Jazz (hereinafter the Manager) and Mr. O'Connor in which Mr. O'Connor was informed that he would not be allowed to travel with Air Canada until the investigation into the incident was completed. Air Canada adds that the Manager asked Mr. O'Connor to explain what happened. According to Air Canada, Mr. O'Connor admitted to the Manager that he built a homemade taser. He added that anyone could do it and that it was fairly harmless. Air Canada notes that the Manager informed Mr. O'Connor that even a toy gun is a prohibited item and asked him why he ran out of the terminal at which time Mr. O'Connor replied that he did so in order to get rid of the object so that he could travel.

[11] Air Canada maintains that when he spoke to the Manager, Mr. O'Connor was belligerent, he used profane language and he showed no remorse or understanding of what he had done wrong. Air Canada submits that Mr. O'Connor expressed his willingness and intent to repeat the same actions. Air Canada indicates that the Manager advised Mr. O'Connor that he would not be allowed on Air Canada Jazz flights until further notice. The carrier points out that it contacted CATSA personnel and the RCMP to confirm the status of their investigation as well as to find out if they had retrieved the object in question.

[12] Air Canada advises that the carrier was informed that the police were unable to retrieve the device, which may explain why charges were not pursued against Mr. O'Connor. Air Canada also points out that the local RCMP recommended that Mr. O'Connor not be allowed to travel. Moreover, Air Canada notes that Mr. O'Connor's own words do not reassure the carrier that the device was not, in fact, a taser.

[13] Air Canada provided the Agency with a copy of its letter to Mr. O'Connor dated January 25, 2007 in which the carrier explains that it was considering whether to accept him for future travel in view of his disturbing behaviour on November 4, 2006, and it also provided a copy of Mr. O'Connor's reply to the carrier dated March 8, 2007. Air Canada submits that the tone of Mr. O'Connor's reply caused serious concern to the carrier and that Mr. O'Connor's attitude demonstrated a clear intent of defiance and provided no indication that he would comply with any instructions from its crew or any regulations concerning the carriage of restricted items. Air Canada advises that it has credited an amount of CAD$435.61 to Mr. O'Connor's credit card, which represents a full refund of the cost of his ticket. Air Canada also provided a copy of its reply to Mr. O'Connor dated April 9, 2007 in which the carrier informed him that it was maintaining the interim ban from travel imposed on him because he had failed to provide the required assurances.

[14] Air Canada argues that, on November 4, 2006, no air carrier would have accepted Mr. O'Connor for travel in view of his behaviour that day, that it was justified, pursuant to the provisions of its Tariff, in refusing to transport Mr. O'Connor, and requests that the Agency dismiss Mr. O'Connor's complaint.

[15] In his reply, Mr. O'Connor, despite having admitted earlier that he had a taser in his checked baggage, refutes Air Canada's comments that the scan revealed any object, denies that he was a threat to Air Canada's passengers, crew and aircraft and denies stating that the object was a homemade taser. Mr. O'Connor submits that he waited at least 30 minutes for the RCMP without moving more than 10 feet from his luggage, and advises that he asked the male security guard if he could leave. According to Mr. O'Connor, the security guard replied that he was free to go and allowed him to place the device back in his luggage. Mr. O'Connor denies that he had been instructed not to touch the content of his bag or that he admitted building a homemade taser. Mr. O'Connor refutes Air Canada's comments that he was belligerent and used profane language towards the Manager.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[16] The Agency's jurisdiction in this matter concerning domestic tariffs is set out in sections 67 and 67.1 of the CTA.

[17] Subsection 67(3) of the CTA states:

The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

[18] Section 67.1 of the CTA states:

If, on complaint in writing to the Agency by any person or on its own motion, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

(a) apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;

(b) compensate any person adversely affected for any expenses they incurred as a result of the licensee's failure to apply a fare, rate or term or condition of carriage that was set out in its tariffs; and

(c) take any appropriate corrective measures.

[19] Carriers operating domestic air services are free to establish their own terms and conditions of carriage provided that they are set out in a tariff as required by subsection 67(1) of the CTA. Pursuant to paragraph 107(1)(n) of the Air Transportation Regulations, SOR/88-58, as amended, (hereinafter the ATR), the tariffs shall contain the terms and conditions of carriage clearly stating the air carrier's policy in respect of, among other things:

• refusal to transport passengers or goods.

[20] Section 55 of the CTA defines a tariff as a schedule of fares, rates, charges and terms and conditions of carriage applicable to the provision of an air service and other incidental services.

Air Canada's Tariff provisions

[21] The following rule of the Tariff governing the terms and conditions of carriage in effect on November 4, 2006 is relevant to the matter at hand.

RULE 35AC REFUSAL TO TRANSPORT - LIMITATIONS OF CARRIER

[22] II Passenger's Conduct - Refusal to Transport Prohibited Conduct & Sanctions

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:

...

(b) 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 judgment 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;

...

(i) the person is wearing or has on or about their person concealed or unconcealed deadly or dangerous weapons; provided, however, that carrier will carry passengers who meet the qualification and conditions established in F.A.R. 108.00;

...

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:

(i) removal of the passenger at any point;

(ii) probation. 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 in continued avoidance of prohibited conduct, and

(iii) 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.

...

These remedies are without prejudice to carrier's other rights and recourses, namely to seek recovery of any damage resulting from the prohibited conduct or as otherwise provided in the carrier's tariffs, including the recourses provided in the Aeroplan Member's Guide or the filing of criminal or statutory charges.

[23] III Recourse Of The Passenger/Limitation of Liability

Carrier's liability in case of refusal to carry a passenger for a specific flight or removal of a passenger en route for any reason specified in the foregoing paragraphs or in Rule 33 shall be limited to the recovery of the refund value of the unused portion of passenger's ticket from the carrier so refusing or removing, as provided in Rule 260.

A person who is refused carriage for an indefinite period of time, up to a lifetime ban, or to whom a probation notice is served may provide to the carrier, in writing, the reasons why he/she no longer poses a threat to the safety or comfort of passengers or crew, or to the safety of the aircraft. Such document may be sent to the address provided in the refusal to carry notice or the notice of probation.

Carrier will respond to the passenger within a reasonable period of time providing carrier's assessment as to the need or not to prolong the ban or to maintain the probation period.

ANALYSIS AND FINDINGS

[24] In addressing this complaint, the Agency determined that there were three aspects to be considered. The first aspect is whether, by imposing an interim ban from travel on Mr. O'Connor following the events at the Fort St. John Airport on November 4, 2006, Air Canada properly applied the terms and conditions of carriage set out in its Tariff. The second aspect is whether, by imposing a permanent ban from travel, Air Canada properly applied the terms and conditions of carriage set out in its Tariff. The third aspect is whether any compensation is payable to Mr. O'Connor with respect to this incident.

[25] 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 concerning refusal to transport specified in Air Canada's Tariff in effect at the time of the incident.

1. Imposition of an interim ban from travel

[26] Pursuant to subsection 67(3) of the CTA, an air carrier shall, inter alia, apply the terms and conditions of carriage specified in the Tariff.

[27] The Agency notes that pursuant to Rule 35AC of its Tariff, Air Canada has the right to refuse to transport a passenger when the behaviour exhibited by the passenger falls within the carrier's list of "Prohibited Conduct" as set out in paragraph (II) (b) and (i) therein 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 or comfort of other passengers, crew or the aircraft; the unhindered performance of the crew members in their duty aboard the aircraft; or the safe and adequate flight operations."

[28] In a letter dated January 25, 2007, Air Canada advised Mr. O'Connor that the carrier was considering whether to accept him for future travel in view of his disturbing behaviour on November 4, 2006. The prohibited conducts which the carrier attributes to Mr. O'Connor are: b) the person's conduct, or condition is or has been known to be abusive, offensive...; (i) the person is wearing or has on or about their person concealed or unconcealed deadly or dangerous weapons.

[29] In reviewing the evidence before it, the Agency notes Mr. O'Connor's admission that he apologized to security personnel for being rude to them, that he had in his checked baggage a device that appeared to be a taser, which he denied later on, and that the RCMP held him in jail for five hours. Evidence produced by the carrier also supports Air Canada's contention that Mr. O'Connor verbally abused both the security authorities and the carrier's agents and that the local RCMP recommended that Air Canada ban Mr. O'Connor from travel on its flights.

[30] In light of the foregoing, the Agency finds that the evidence supports a finding that Mr. O'Connor demonstrated behaviour that justified the decision taken by Air Canada to impose an interim ban from travel on Mr. O'Connor until the carrier receives assurances from him that he no longer poses a risk to the safety or comfort of passengers and crew and the safe operations of the flight.

[31] The Agency therefore finds that Air Canada properly applied the terms and conditions of carriage set out in its Tariff by imposing an interim ban from travel on Mr. O'Connor following the events at the Fort St. John Airport on November 4, 2006.

2. Imposition of a permanent ban from future travel with Air Canada

[32] Pursuant to Rule 35AC of its Tariff, Air Canada may refuse to transport the person on a one time basis, for an indefinite period or permanently, as determined by the carrier.

[33] As previously noted, in light of Mr. O'Connor's conduct on November 4, 2006, the Agency finds that Air Canada was justified in refusing to transport Mr. O'Connor following the events at the Fort St. John Airport.

[34] Air Canada, in a letter dated January 25, 2007, advised Mr. O'Connor that it was considering whether to accept him for future travel. The Agency has reviewed Mr. O'Connor's reply to that letter and finds that Mr. O'Connor was unrepentant and defiant and that his reply failed to provide Air Canada with any assurance that, in the future, he would not exhibit a prohibited conduct and he would not pose a threat to the safety of Air Canada's passengers, crew and aircraft.

[35] The Agency also reviewed Air Canada's reply to Mr. O'Connor dated April 9, 2007 in which the carrier advised Mr. O'Connor that he is permanently restricted from travel with Air Canada and Jazz.

[36] Under the circumstances, the Agency finds that Air Canada was justified in imposing a permanent ban from travel on Mr. O'Connor until the carrier receives, to its satisfaction, assurances and representations that he no longer poses a threat to the comfort and safety of its passengers, crew and safe operation of the aircraft and that he will comply with instructions of the crew in the future.

3. Compensation

[37] The Agency notes that Rule 35AC of the Tariff sets out Air Canada's policy with respect to its liability to a passenger for refusing to carry a person following an incident of prohibited conduct. Of particular significance is Rule 35AC III of the Tariff, Recourse Of The Passenger/Limitation of Liability, which states:

Carrier's liability in case of refusal to carry a passenger for a specific flight or removal of a passenger en route for any reason specified in the foregoing paragraphs or in Rule 33 shall be limited to the recovery of the refund value of the unused portion of passenger's ticket from the carrier so refusing or removing, as provided in Rule 260.

[38] On April 17, 2007, Air Canada advised the Agency that the carrier had credited an amount of CAD$435.61 to Mr. O'Connor's credit card, which represents a full refund of the cost of his ticket. The Agency finds that the compensation tendered by Air Canada is consistent with its Tariff.

[39] With respect to Mr. O'Connor's request for monetary compensation because he missed his daughter's birthday, the Agency does not have the authority to order payment of compensation for things such as pain and suffering or loss of enjoyment.

CONCLUSION

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

Members

• Gilles Dufault
• Beaton Tulk