Decision No. 411-C-A-2005

June 29, 2005

File No. 4370/04-06151

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COMPLAINT

[1] On November 18, 2004, Joseph Talbot filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title.

[2] By letter dated December 8, 2004, Mr. Talbot and Air Canada were advised of the Agency's jurisdiction in this matter. In that letter, Air Canada was requested to provide the Agency and Mr. Talbot with its answer within 30 days from the date of receipt of the complaint. On January 17, 2005, Air Canada filed its answer. Mr. Talbot did not file a reply to Air Canada's answer.

PRELIMINARY MATTER

[3] Although Air Canada filed its answer after the prescribed deadline, the Agency, pursuant to section 4 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts this submission as being relevant and necessary to its consideration of this matter.

ISSUES

[4] The issues to be addressed are a) the alleged theft of CAD$1000, and b) with respect to involuntary refunds resulting from the carrier's refusal to transport, whether Air Canada is the carrier from whom a refund should be sought, and if so, has it applied the terms and conditions of carriage specified in its International Passenger Rules and Fares Tariff NTA(A) No. 458 (hereinafter Air Canada's tariff) as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR).

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[5] The Agency's jurisdiction over the present complaint is set out in subsection 110(4) of the ATR.

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

Where a tariff is filed containing the date of publication and the effective date and is inconsistent with these Regulations and any orders of the Agency, the tolls and terms and conditions of carriage in the tariff, 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.

The tariff provisions

[7] The conditions of carriage, as set out in Air Canada's tariff Rules 90 (A)(1) and 90 (D)(1) and (D)(2)(a), provide, in part, that:

[8] Rule 90

(A) GENERAL

Refund by carrier for an unused ticket or portion thereof, exchange order or miscellaneous charges order will be made in accordance with the following conditions, ...

(1) Persons requesting refund must surrender to carrier all unused flight coupon(s) of the ticket, exchange order or miscellaneous charges order.

...

(D) INVOLUNTARY REFUNDS

(1) For the purpose of this paragraph, the term "Involuntary Refund" shall mean any refund made in the event the passenger is prevented from using the carriage provided for in his/her ticket because of cancellation of flight, ...or removal or refusal to carry under conditions prescribed in "Acceptance of Children" provisions of Rule 25.

(2) Amount of Involuntary Refunds

The amount of involuntary refunds will be as follows:

(a) When no portion of the trip has been made, the amount of refund will be the fare and charges paid.

...

ANALYSIS AND FINDINGS

[9] 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 set out in Air Canada's tariff concerning the carrier's liability with respect to involuntary refunds resulting from its refusal to transport passengers.

Excess baggage fees

[10] Mr. Talbot submits that he paid CAD$1000 to Air Canada in excess baggage fees when he checked in for his flight from Calgary to Dubai via Frankfurt on October 5, 2004, and states that the carrier later claimed that such an amount had not been paid. According to Air Canada, while CAD$1000 was originally given to its check-in agent on October 5, 2004, it was returned to Mr. Talbot, pending completion of the appropriate paperwork. Mr. Talbot refutes Air Canada's contention and submits that the Air Canada check-in agent stole the CAD$1000.

[11] In his complaint, Mr. Talbot alleges that the CAD$1000 which he claims to have paid Air Canada in excess baggage fees was stolen by the carrier's agent. A complaint to that effect has been filed by Mr. Talbot with the Calgary Police Service - Airport Unit - the appropriate authority to conduct the investigation. Given that this matter is criminal in nature rather than involving the application of Air Canada's tariff, the Agency is dismissing this portion of Mr. Talbot's application.

Involuntary refunds

[12] On October 5, 2004, although Mr. Talbot checked in for Air Canada Flight No. AC 844, he did not board the flight. Mr. Talbot advised Air Canada later that evening that he had become too ill to travel and had returned home to Red Deer, Alberta.

[13] On October 19, 2004, Mr. Talbot once again attempted to commence his journey. He did not anticipate the delays he would eventually encounter at the Calgary International Airport (hereinafter the Calgary airport): while retrieving his baggage from the lost and found, he was detained for questioning by the police with respect to a disturbance he allegedly had caused in the Calgary airport that day, as well as his questionable behaviour on October 5, 2004; and he was further delayed by a discussion he had with an Air Canada representative concerning the status of his excess baggage fees. These delays did not allow him to complete his last minute arrangements at the Calgary airport and he was unable to check in for his flight. Mr. Talbot was then rebooked for travel on October 26, 2004. On that date, Air Canada advised him that he would not be accepted for transportation.

[14] Based on Mr. Talbot's behaviour on the previous two incidents, Air Canada determined that he constituted a threat to the safety and comfort of the passengers or crew and to the safe operations of the aircraft and the unhindered performance of the crew members in their duty on board the aircraft. Air Canada advised Mr. Talbot that he would be refused transportation until he was able to demonstrate to the carrier's satisfaction that he no longer constituted a threat, and that if he were to submit to it the unused Air Canada portion of his tickets, he would be entitled to a refund.

[15] The Agency notes that Rule 90 of Air Canada's tariff sets out the carrier's policy with respect to its liability to a passenger for refusal to transport following an incident of prohibited conduct. Of particular significance is Rule 90 (A)(1) which requires a passenger to submit the unused coupons to Air Canada to receive a refund for the unused tickets. Mr. Talbot alleged that his tickets were stolen; as such, he is unable to submit them to Air Canada to obtain a refund.

[16] Although Air Canada did not raise the matter, the Agency notes that Mr. Talbot's ticket and the subsequent changes that were made to it were issued on Deutsche Lufthansa Aktiengesellschaft (Lufthansa German Airlines) [hereinafter Lufthansa]'s ticket stock. The Agency further notes that Mr. Talbot has filed a Lost Ticket Indemnity Bond with Lufthansa seeking a refund for the missing ticket. The matter now rests with Lufthansa to determine whether Mr. Talbot's ticket has been used and, if not, to apply the provisions of its tariff with respect to the refund of the lost ticket.

CONCLUSION

[17] In light of the foregoing, the Agency dismisses the complaint against Air Canada. In the event that Mr. Talbot is not satisfied with Lufthansa's response, he may file with the Agency a complaint against Lufthansa.