Decision No. 363-C-A-2005

June 10, 2005

File No. M4370/T318/03-18

---

COMPLAINT

[1] On July 10, 2003, Jeff Burchell filed with the Air Travel Complaints Commissioner the complaint set out in the title.

[2] On November 25, 2003, the complaint was referred to the Canadian Transportation Agency (hereinafter the Agency) for its consideration as the complaint raised a tariff issue that falls within the jurisdiction of the Agency.

[3] 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 25, 2003, Mr. Burchell was advised of the status of his complaint under the Stay Order.

[4] Following Air Canada's emergence from creditor protection, in a letter dated November 24, 2004, the parties were advised of the Agency's jurisdiction in this matter. In that same letter, Air Canada was requested to provide the Agency and Mr. Burchell with its answer to the complaint, and Mr. Burchell was given the opportunity to file a reply to Air Canada's answer.

[5] On December 22, 2004, Air Canada filed its answer and concurrently served a copy on Mr. Burchell. By letter dated January 12, 2005, Mr. Burchell filed his reply and concurrently served a copy on Air Canada.

[6] Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10 (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 until June 10, 2005.

PRELIMINARY MATTER

[7] Although Mr. Burchell filed his reply after the prescribed deadline, the Agency, pursuant to section 4 of the Canadian Transportation Agency General Rules, SOR/05-35, accepts this submission as relevant and necessary to its consideration of this matter.

ISSUE

[8] The issue to be addressed is whether Air Canada has properly applied its terms and conditions of carriage relating to refusal to transport, and to its liability for a delay in the delivery of checked baggage, as specified in its Canadian Domestic General Rules Tariff, CDGR-1 (hereinafter the tariff), as required by subsection 67(3) of the CTA.

POSITIONS OF THE PARTIES

[9] Mr. Burchell travelled on Air Canada Tango Flight No. 6039 from Halifax to Toronto on July 6, 2003. When he arrived at Halifax International Airport (hereinafter the Halifax airport) to check in, there was a long line of passengers waiting to be served as only one ticket agent was on duty, but other agents had begun to assist with the backlog of customers by the time he reached the front of the line.

[10] Mr. Burchell reports that while he was at the front of the line waiting to be served, another customer expressed his concerns to a male ticket agent about the long waiting time and lack of available ticket agents. Mr. Burchell claims that the male ticket agent responded to the customer that ticket agents "work for their money". Mr. Burchell states that a female ticket agent sitting beside the male ticket agent commented at the same time to the other passenger "you shouldn't talk to me, just ask me how many pay cuts I've taken in the last year."

[11] Mr. Burchell submits that he proceeded to check in with a third ticket agent, and that upon completion of the check-in process, he commented to the first male ticket agent that he agreed with the previous customer's comments and that he thought that the agent's response to the customer had been rude. Mr. Burchell maintains that he did not raise his voice and that he then proceeded towards the security screening line.

[12] Mr. Burchell states that the female ticket agent then yelled for his attention, stepped over the luggage scale, and walked quickly towards him. He alleges that the female ticket agent attempted to take the boarding pass that he held in his hand, but by accident grabbed his sticky baggage claim tag instead. Mr. Burchell further states that after he asked the ticket agent if she was trying to take his boarding pass, she reaffixed the baggage claim tag to his ticket and asked him if he was threatening her. Mr. Burchell submits that he denied that he was doing so. When he questioned her again about trying to take his ticket, she advised him that she was calling the Royal Canadian Mounted Police (hereinafter RCMP).

[13] Mr. Burchell explains that he then continued to the security screening area and asked to speak with the carrier's manager on duty. During his subsequent conversation with the manager, an RCMP officer joined the discussion, and Mr. Burchell claims that he was told by the carrier that he had been removed from the flight by the female ticket agent.

[14] Mr. Burchell claims that the female ticket agent's actions were not motivated by airline security, but rather by an emotional personal reaction. He submits that he regards her actions as "personally and publicly embarrassing" to him, and that her actions were an unwarranted use of her authority. He also notes that the ticket agent's conduct was not reasonable and adds that he would like to know the basis on which the RCMP was notified and why he was initially told that he would not be accepted for travel.

[15] In addition, Mr. Burchell notes that his luggage was missing upon his arrival in Toronto, and that he did not receive it until 4 p.m. the following day. Mr. Burchell states that upon realizing that his luggage had been lost, he contacted the Air Canada manager who had already dealt with the previous incident at Halifax airport. Mr. Burchell claims that the manager advised him that he would take care of everything and that he would co-ordinate the delivery of Mr. Burchell's luggage to his place of work. Mr Burchell further states that he was not instructed to fill out any forms concerning the lost baggage. He does, however, emphasize that his complaint with respect to the lost baggage is not the primary element of his complaint.

[16] Air Canada advises that on July 6, 2003, the check-in counter at Halifax airport was very busy and that there was a long line-up of customers. The carrier claims that after Mr. Burchell checked in for his flight, he approached an Air Canada agent who had been assisting another passenger and advised the agent that he agreed with the previous passenger's comments. Air Canada states that the other passenger's companion, who was not travelling, had been verbally abusive and that he had made derogatory comments to the ticket agent. The carrier contends that Mr. Burchell's comments appeared to have been perceived as aggressive and abusive, and served only to inflame an already tense situation.

[17] Air Canada submits that the female ticket agent referred to in the complaint had electronically inhibited Mr. Burchell's boarding pass to ensure that he would be intercepted and spoken to before boarding his flight. The carrier advises that once Mr. Burchell arrived at the boarding gate, he was met by an Air Canada manager who, following a discussion of the incident, authorized Mr. Burchell to travel as ticketed.

[18] Air Canada states that in accordance with its Domestic Tariff Rule 35AC, the carrier "may remove a passenger from a flight if the passenger's conduct is or has been abusive, offensive, threatening or intimidating and in the reasonable judgment of the carrier [sic] employee, the passenger would cause disruption to the physical comfort or safety of other passengers or carrier's employees." The carrier claims that this provision allows it to accept or refuse travel to a passenger, and as Mr. Burchell did travel on his flight as booked, his complaint should be rejected.

[19] Air Canada reports that, with respect to Mr. Burchell's complaint concerning the delayed delivery of his baggage, it has no record of his filing a claim with its Baggage Claims department.

ANALYSIS AND FINDINGS

[20] 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 Air Canada's conditions of carriage applicable to refusal to transport, to baggage liability and to delivery of checked baggage as set out in its tariff in effect at the time of Mr. Burchell's travel.

Applicable legislative and regulatory provisions

[21] Subsections 67(1) and 67(3) of the CTA state that:

67. (1) The holder of a domestic licence shall

(a) publish or display and make available for public inspection at the business offices of the licensee all the tariffs for the domestic service offered by the licensee;

(b) in its tariffs, specifically identify the basic fare between all points for which a domestic service is offered by the licensee; and

(c) retain a record of its tariffs for a period of not less than three years after the tariffs have ceased to have effect.

(3) 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.

[22] The conditions of carriage as set out in the tariff, Rule 35AC, Rule 205AC and Rule 230AC provide, in part, that:

[23] Rule 35AC Refusal to Transport - Limitations of Carrier

II Passenger's Conduct - Refusal to Transport, Prohibited Conduct and 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;

...

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:

...

(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.

[24] Rule 205AC Checked and Carry-On Baggage

...

(B) Delivery of Checked Baggage By Carrier

...

(4) Acceptance of baggage by the bearer of the baggage check and baggage (claim) tag(s) without written complaint at the time of delivery is presumptive evidence that the baggage and contents have been delivered in good condition and in accordance with the contract of carriage.

[25] Rule 230AC Liability - Baggage

(A)(1) (Applicable for transportation solely within Canada only and not in conjunction with any international travel.) Liability for the loss of, damage to, or the delay in delivery of, baggage or other personal property (whether checked or otherwise delivered into the care of the carrier (...) - subject to acceptance as defined in Rule 195) shall not be more than 1,500 dollars per passenger unless a higher value is declared in advance and charges are paid pursuant to carriers regulations as defined in paragraph (C). In the event, the liability of the carrier shall be limited to such higher declared value. In no case shall the carriers liability exceed the actual loss suffered by the passenger. All claims are subject to proof of amount of loss (...). These limitations shall also apply for baggage or other personal property (as previously defined in Rule 195) accepted by the carrier for temporary storage at a city or airport office or elsewhere before or after the passengers trip.

Refusal to transport

[26] Pursuant to subsection 67(3) of the CTA, an air carrier shall apply the terms and conditions of carriage found in the tariff applicable to its domestic service. The Agency notes that Rule 35AC of the tariff provides that Air Canada has the right to refuse to transport a passenger when the passenger's exhibited behaviour falls within the carrier's list of "prohibited conducts" contained in its tariff. One of the prohibited forms of conduct identified in Rule 35AC II(b) is conduct that is "abusive, offensive, threatening, intimidating, violent or otherwise disorderly".

[27] The Agency acknowledges that the incident Mr. Burchell experienced at the hands of Air Canada was unfortunate and that he undoubtedly found the situation to be embarrassing.

[28] However, the Agency notes that in this instance there was no refusal by Air Canada to transport Mr. Burchell and that any allegation that such a refusal to transport was in any way improper is therefore without substance and is hereby dismissed.

Liability for delayed delivery of checked baggage

[29] The Agency notes that Rule 230AC of the tariff provides that the carrier's liability for the loss of, damage to, or delay in delivery of baggage is limited to $1,500 per passenger, and that all claims are subject to proof of amount of loss.

[30] The Agency also notes that Rule 205AC (4) of the tariff provides that any claim regarding loss, damage or delay of baggage must be filed with the carrier at the time of delivery of the baggage. In the case at hand, both parties have confirmed that Mr. Burchell's baggage was delivered to him the next day - that is, within 24 hours of his arrival in Toronto. Also, Air Canada advised that Mr. Burchell did not file a claim with respect to the delayed luggage and has not produced any proof of loss to substantiate such a claim.

[31] Therefore, Air Canada is under no obligation to provide Mr. Burchell with any compensation with respect to the delayed delivery of his luggage and, in refusing to do so, has not contravened the provisions of its tariff in any way.

CONCLUSION

[32] The Agency is prescribed in its jurisdiction to determining whether any refusal to transport or denied boarding is reasonable under the terms and conditions of carriage. As there was no refusal by Air Canada to transport Mr. Burchell, the complaint is hereby dismissed.