Decision No. 397-C-A-2010

September 17, 2010

File No. M4120-3/10-02008

INTRODUCTION

[1] Catherine Matchett filed a complaint with the Canadian Transportation Agency (Agency) with respect to the refusal by Sunwing Airlines Inc. (Sunwing) to transport her on Flight WG511 from Toronto, Ontario, Canada to Cancun, Mexico, on February 8, 2010, because of alleged prohibited conduct.

FACTS

[2] When Ms. Matchett checked in, Yasir Eisa, a Sunwing employee at the check-in counter, thought Ms. Matchett smelled of alcohol. He expressed concern to Aneta Raczynska, the Sunwing supervisor on duty at the check-in area. Ms. Raczynska advised Ms. Matchett to get a coffee and something to eat and that her condition would be further assessed at the boarding gate. Ms. Raczynska briefed Bea Perri, the other supervisor on shift.

[3] At the end of the boarding process, Ms. Perri met with Ms. Matchett and decided to refuse her transportation as she was concerned about the safety of Ms. Matchett and the remaining passengers and crew.

[4] Ms. Matchett and her travelling companion purchased replacement tickets for Air Canada's Flight AC1256. Ms. Matchett requests a reimbursement for these tickets and for the taxi fare from the Cancun airport to the resort, and expects to receive compensation for having lost a full day of vacation.

ISSUE

[5] Did Sunwing properly apply the terms and conditions of carriage relating to refusal to transport, as set out in its International Scheduled Services Tariff CTA(A) No. 2 (Tariff) when it refused transportation to Ms. Matchett?

[6] As indicated in the reasons that follow, the Agency finds that Ms. Matchett failed to discharge her burden of proof that, on a balance of probabilities, Sunwing did not properly apply the terms and conditions of its Tariff when it refused her transportation on February 8, 2010. The Agency therefore dismisses the complaint.

RELEVANT TARIFF PROVISION

RULE 8. REFUSAL TO TRANSPORT

EVIDENCE AND SUBMISSIONS

[7] In support of its submissions, Sunwing filed a copy of the "Quality Control Message" (QCM) report prepared after the incident occurred, as well as detailed written statements by its employees: Mr. Eisa, Ms. Raczynska and Ms. Perri. Sunwing submits that during the conversation between Ms. Raczynska and Ms. Matchett, the latter admitted that she had been drinking. Sunwing adds that when Ms. Perri met Ms. Matchett at the boarding gate, she asked her if she had been drinking and Ms. Matchett responded in the affirmative.

[8] Sunwing indicates that Ms. Perri reported that as departure time approached, Ms. Matchett was paged several times at the boarding gate and that when she arrived, she was incoherent and was weaving, stumbling and slurring her words. As Ms. Perri concluded that she was intoxicated and might disrupt the flight, she refused transportation to Ms. Matchett.

[9] Although Ms. Matchett does not specifically deny that she was under the influence of alcohol, she denies that she was weaving, stumbling and slurring her words. She also submits that she was never paged as she had arrived at the boarding gate well before the departure time of Flight WG511. Finally, Ms. Matchett submits that at no time was there any indication that Air Canada had any issue with her boarding the replacement flight.

[10] Ms. Matchett questions the accuracy of the written statements submitted by Sunwing in its answer to the complaint as these statements were written 77 to 84 days after the event.

ANALYSIS AND FINDINGS

[11] When a complaint is filed with the Agency, the onus is on the complainant to establish that, on a balance of probabilities, the carrier failed to properly apply the terms and conditions of carriage set out in its tariff.

[12] The Agency notes that the Tariff provides that the carrier may refuse to transport a passenger should the carrier decide that the passenger has engaged in prohibited conduct. Specifically, Rule 8(A)(v) of the Tariff states that Sunwing may refuse to transport a passenger if the passenger's mental or physical condition, including impairment by alcohol, presents a hazard or risk to themselves, to passengers, to crew or to property.

[13] To justify its decision to refuse to transport Ms. Matchett, Sunwing provided its QCM report relating to Flight WG511 and detailed written statements by personnel who interacted with Ms. Matchett on February 8, 2010. The Agency notes that both the written statements by Ms. Raczynska and Ms. Perri include the fact that Ms. Matchett acknowledged that she had been drinking.

[14] As stated in Decision No. 348-C-A-2008, upon filing a complaint such as that currently before the Agency, applicants can support their statements in a number of ways including testimony, corroboration, admission or other means. The evidence presented by Ms. Matchett does not meet the burden of proof, as it is rebutted by the statements of several witnesses who interacted with her at several times.

[15] Ms. Matchett also raises an issue with the fact that the statements made by Sunwing's witnesses are dated 77 to 84 days after the event. As it is in the nature of such complaints that much of the evidence is gathered after the application has been filed with the Agency, the fact that some period has elapsed is not problematic unless the testimony itself leads the Agency to question its veracity. In this case, the Agency finds the statements by Sunwing's employees to be cogent, consistent and without bias against Ms. Matchett.

[16] The Agency notes that although Air Canada later permitted Ms. Matchett to board Flight AC1256, the original Sunwing scheduled departure was at 6:20 a.m. and the Air Canada flight was more than seven hours later, so the fitness of the passenger to travel in the second case was not relevant to whether Sunwing properly applied its Tariff on its flight.

[17] Therefore, the Agency finds that, on a balance of probabilities, Sunwing properly applied the terms and conditions of its Tariff when it refused to transport Ms. Matchett on February 8, 2010. Accordingly, Ms. Matchett is not entitled to compensation or reimbursement.

CONCLUSION

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

Members

• Jean-Denis Pelletier, P. Eng.
• Raymon J. Kaduck