Decision No. 444-C-A-2012

INTRODUCTION AND ISSUES

[1] Guillaume Boutin filed a complaint with the Canadian Transportation Agency (Agency) against Air Canada regarding a permanent travel ban imposed by Air Canada following an incident that occurred at the Cancun, Mexico airport just prior to Mr. Boutin’s return flight (Flight No. AC1253) to Montréal, Quebec, Canada, on February 29, 2012.

[2] Mr. Boutin asks that Air Canada lift the travel ban and requests damages in the amount of $30,000.00, which includes monetary damages, including for moral damages and trouble and inconvenience, as well as consideration for future travel and a letter of apology.

[3] The issues before the Agency are as follows:

• Did Air Canada contravene the terms and conditions of carriage set out in its tariff entitled International Passenger Rules and Fares Tarif NTA(A) No. 458 (Tariff) and, consequently, subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), when it decided to impose a permanent travel ban?
• If Air Canada contravened the terms and conditions of carriage set out in its Tariff, should the Agency order Air Canada to pay Mr. Boutin the claimed compensation?

[4]  As indicated in the reasons that follow, the Agency concludes that:

• Air Canada did not contravene the terms and conditions set out in its Tariff when it imposed a permanent travel ban on Mr. Boutin;
• Therefore, the Agency need not address the issue of the claimed compensation.

[5] The legislative and Tariff provisions relevant to this Decision are appended.

PRELIMINARY MATTERS

[6] Mr. Boutin alleges that he did not receive the relevant documents in French. Given that the Agency does not have the authority to address issues relating to official languages, the Agency will not address this issue.

[7] Mr. Boutin is requesting damages in the amount of $30,000.00. These represent monetary damages, including for moral damages and trouble and inconvenience, as well as consideration for future travel and a letter of apology. There is nothing in the Agency’s enabling legislation that would allow the Agency to award compensation for these damages. Accordingly, the Agency will not address this issue.

[8] Although a letter signed by a witness for Air Canada was filed one day late, the Agency, pursuant to section 5 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts this statement as it deems it relevant to its review of this case.

[9] In Decision No. LET-C-A-188-2012, the Agency decided to address Mr. Boutin’s complaint despite the existence of a partially concurrent suit presently before the Court of Québec’s Small Claims Division – Civil Division.

POSITIONS OF THE PARTIES

[10] Mr. Boutin maintains that, while waiting in the Business Lounge at the Cancun airport, he and his travelling companion were misinformed by the Air Canada employees about the boarding announcement for their return flight from Cancun to Montréal on February 29, 2012, and that Air Canada failed to post its flight schedule, causing them to miss their flight.

[11] Mr. Boutin submits that he asked an Air Canada employee at the airport if he could arrange to have the aircraft return and, if not, to at least put them on another flight; this employee, in Mr. Boutin’s view, was uncompromising, very rude and arrogant.

[12] Mr. Boutin advises that he and his companion were able to leave Cancun the following day with Air Canada but they had to pay extra fees.

[13] Mr. Boutin advises that he received a letter from Air Canada notifying him that he can no longer travel with the carrier as he was aggressive, and therefore represented a danger to other passengers and that he had tried to grab an Air Canada agent. Mr. Boutin admits that he was upset and did complain forcefully, but he maintains that he never swore and did not make any offending gesture.

[14] Air Canada, in a letter sent to Mr. Boutin prior to the filing of this complaint with the Agency, referred to Leonard O’Reilly vs. Air Canada (Decision No. 295-C-A-2011). In response, Mr. Boutin submits that he does not support the carrier’s position respecting his situation based on the following:

• He missed his flight because of erroneous information he received. Air Canada did not refuse to put him on the next flight, or the seven other flights he took after the incident in Cancun, and a travel ban has been imposed, whereas the travel ban in Mr. O’Reilly’s case was a refusal to transport on one flight.
• He seeks an apology and the annulment of the travel ban, but no financial compensation unless the travel ban is not waived in a reasonable delay, whereas Mr. O’Reilly sought an apology from Air Canada and compensation for the additional costs he incurred and the “gross impugnment” of his character that the treatment he received constitutes.
• Air Canada has one witness and this person has yet to be identified, whereas in Mr. O’Reilly’s case, there were three written statements submitted.
• He was upset and did complain forcefully, but he never swore and did not make any offending gestures, whereas Mr. O’Reilly threw a $20 bill on the counter, swore, was very irate, aggressive and uncooperative.

[15] Mr. Boutin submits that he has travelled over 300 segments with Air Canada, has travelled 11 times, including seven with Air Canada, since the incident, and has shown no signs or behavior detrimental to the safety of passengers or crew, or affecting the operations of the carrier during these flights.

[16] In its reply, Air Canada indicates that in the “Mera” Business Lounge at the Cancun airport, while awaiting the departure of Flight No. AC1253, Mr. Boutin notified the Concierge that he had forgotten his wallet and cell phone at the hotel. To help him, the Concierge put him in touch with the hotel by telephone.

[17] Air Canada claims that when it came time to board Flight No. AC1253, the Concierge notified all passengers to head to the boarding gate. Air Canada adds that boarding for the flight was clearly posted on all screens in the Business Lounge but that despite these announcements, Mr. Boutin decided to stay in the Business Lounge as he was still on the phone with the hotel.

[18] Air Canada maintains that several general and personal calls were made in the waiting areas to indicate that final boarding for Flight No. AC1253 was underway. Air Canada adds that the Concierge continued to notify Mr. Boutin and his travelling companion personally that they needed to get to the boarding gate for Flight No. AC1253.

[19] Air Canada indicates that Mr. Boutin’s name was removed from the passenger list at 4:21 p.m., i.e., nine minutes before Flight No. AC1253’s scheduled departure time, in accordance with Rule 60 of its Tariff, which stipulates that passengers must be at the departure gate at least 30 minutes prior to the flight’s scheduled departure time.

[20] Air Canada submits that upon learning that he would not be able to board his flight, Mr. Boutin became aggressive toward the Air Canada agent at the boarding gate counter (Agent) and the customer service supervisor (Supervisor), who also tried to explain to Mr. Boutin that it was too late to board the flight. According to Air Canada, Mr. Boutin remained aggressive; more specifically, he used abusive and vulgar language and threatened the Agent and Supervisor, telling them in particular that he would make sure they lost their jobs. He also allegedly hit the desk and tried to grab the Agent.

[21] Air Canada points out that the next day, March 1, 2012, Mr. Boutin was redirected to Flight No. AC1251.

[22] Air Canada states that on March 22, 2012, Mr. Boutin sent a formal request to Air Canada for damages caused because he missed his flight. In this formal request, Mr. Boutin alleges that the incident of February 29, 2012 was the fault of Air Canada employees, who erroneously indicated to him that his flight would be delayed. In this regard, Air Canada maintains that Mr. Boutin falsely declared that he missed his flight due to Air Canada’s employees because, to the contrary, employees spoke directly to him to inform him that Flight No. AC1253 was boarding.

[23] Air Canada asserts that because Mr. Boutin was aggressive on February 29, 2012 and falsely declared that he missed his flight because of Air Canada employees at the Cancun airport, Air Canada decided to no longer accept Mr. Boutin as a passenger until he could demonstrate to Air Canada’s satisfaction that he no longer poses a threat to the safety and comfort of Air Canada’s passengers and crew. This decision was transmitted to Mr. Boutin in a letter on May 11, 2012.

[24] Air Canada advises that on May 30, 2012, Mr. Boutin again wrote to Air Canada. In this letter, M. Boutin alleges that the incident of February 29, 2012 was the fault of Air Canada employees, and he claims that these employees could not have identified him. Air Canada points out, however, that Mr. Boutin presented his passport and boarding card to the Agent, casting doubt on Mr. Boutin’s credibility.

[25] Air Canada maintains that in a letter dated June 19, 2012, Mr. Boutin asked Air Canada to lift the travel ban. Air Canada replied that it refused, mainly because Mr. Boutin continues to deny Air Canada’s version of the facts and refuses to acknowledge that he behaved wrongfully on February 29, 2012. Air Canada adds that, in this letter, Mr. Boutin alleged that he has been on seven flights with Air Canada since the incident of February 29, 2012. In this regard, Air Canada states that its reservation system indicates that he travelled twice for a total of four segments; Montréal-Narita, Japan, via Toronto, Ontario, on April 12, 2012, returning on April 25, 2012. Air Canada contends that this false statement once again casts doubt on Mr. Boutin’s credibility.

[26] Air Canada claims that it is reasonable to conclude that Mr. Boutin may still interfere with the physical comfort or safety of Air Canada’s other passengers or employees and consequently its decision to no longer accept him on its flights until he has shown to Air Canada’s satisfaction that he no longer poses a threat to the safety and comfort of passengers and crew is justified.

[27] Air Canada refers to previous Agency decisions in which a decision to refuse to transport a passenger was recognized as valid. Air Canada refers to Gus Fuentes v. Air Canada (Decision No. 493-C-A-2006) and Charles D. Flynn v. Air Canada (Decision No. 278-C-A-2006) and states that in those Decisions, the Agency determined that Air Canada had the right to refuse to transport a passenger in cases where said passenger used abusive language with its employees.

[28] Air Canada adds that, in any case, the onus is on the passenger to demonstrate that the terms and conditions of carriage of the applicable tariff were not correctly applied. In this regard, Air Canada contends that the Agency recognized the carrier’s right to refuse to transport a passenger when the evidence presented is contradictory, such as in Reverend Curtis Toppie v. Air Canada (Decision No. 65-C-A-2001), Shlomo Toledano v. Air Canada (Decision No. 637‑C‑A-2004), Cécile Bernier v. Air Transat (Decision No. 348-C-A-2008) and Frank Fowlie v. Air Canada (Decision No. 57-C-A-2010).

[29] Air Canada states that as indicated in Rule 25 of its Tariff, Air Canada must take the necessary measures to ensure the physical comfort and safety of the other passengers or employees when a passenger engages in prohibited conduct. According to Air Canada, Mr. Boutin’s conduct on February 29, 2012, denoted a lack of concern for the authority of Air Canada’s employees and, given this conduct, the way he spoke to Air Canada employees and the fact that he tried to grab the Agent, it is reasonable to conclude that Mr. Boutin could interfere with the physical comfort or safety of Air Canada’s other passengers or employees.

[30] Air Canada submits that for the travel ban to be lifted, Mr. Boutin must demonstrate to Air Canada in writing that he no longer poses a threat to the safety and comfort of Air Canada’s passengers and crew and will need to acknowledge that the conduct he engaged in on February 29, 2012, was inappropriate. Furthermore, he must explain the reasons why his behaviour was inappropriate. Mr. Boutin will also have to commit to no longer engage in such conduct if the travel ban were to be lifted.

[31] In support of the arguments presented, Air Canada appended written statements from employees who witnessed the event to its response.

[32] Mr. Boutin questions why Air Canada agreed to transport him between February 29 and May 11, 2012, and why the carrier denies other trips he took: Cancun-Montréal and Tokyo-Ho Chi Minh (return). Mr. Boutin indicates that these trips should be considered because they were organized and invoiced by Air Canada, and Air Canada issued the tickets; accordingly, the terms and conditions of carriage were Air Canada’s.

[33] Mr. Boutin points out that Air Canada did not contact him between February 29 and May 11, 2012, to inform him of its displeasure or concerns, and let him travel seven times during this period. Mr. Boutin submits that if a passenger behaves in a way that is abusive, offensive, threatening, intimidating, violent or disorderly, the carrier would probably have internal memos and communicate with the passenger to impose a penalty without waiting two months.

[34] Mr. Boutin states that he denies the facts presented in the written statements of Air Canada employees.

[35] Mr. Boutin alleges that Air Canada’s version is unlikely in the sense that neither he nor his travelling companion would have waited in the Business Lounge without reacting to repeated calls for them to go to the boarding counter.

[36] Mr. Boutin states that he did, out of anger and frustration and in reaction to the Agent’s attitude, tell the Agent that he would make sure he lost his job, but Mr. Boutin maintains that he did not say what Air Canada alleges.

[37] According to Mr. Boutin, the penalty imposed by Air Canada is too harsh and the conditions for the travel ban to be lifted are arbitrary, because they depend on the carrier’s good will.

ANALYSIS AND FINDINGS

[38] With respect to complaints filed with the Agency, the burden of proof is on the applicant, in this case Mr. Boutin. To this end, Mr. Boutin must show, on a preponderance of evidence, that the carrier did not correctly apply the terms and conditions of carriage set out in its Tariff. Furthermore, he must do so with the best evidence. As mentioned in Decision No. 348‑C‑A‑2008, this best evidence can be presented in several ways, such as through testimonies, corroborations, confessions or other.

[39] Rule 25(C)(A)(2) of Air Canada’s Tariff allows the carrier to impose a travel ban when there are reasonable grounds to believe that the passenger engaged in unacceptable behaviour.

[40] The Agency notes that the submissions and evidence are contradictory. Mr. Boutin maintains that he was not verbally abusive or physically violent toward Air Canada employees. Mr. Boutin also states that he was not aggressive toward Air Canada employees. He acknowledges, however, that he was angry and frustrated because he missed his flight. The Agency notes that Mr. Boutin’s version is corroborated by his travelling companion’s written statement. The Agency also notes that Mr. Boutin filed several statements with the Agency from people who know him. However, the people who signed these statements did not witness the events in question. The Agency gives little weight to these statements, because they neither directly nor indirectly support Mr. Boutin’s version of the facts.

[41] Air Canada maintains that Mr. Boutin was aggressive, threatened employees and tried to grab its Agent. The Agency notes that, in support of its position, Air Canada filed a copy of Mr. Boutin’s Passenger Name Record. Air Canada’s version is corroborated by three written statements from Air Canada employees who dealt with Mr. Boutin at the Cancun airport. The Agency has reviewed theses statements and finds that they are consistent and persuasive.

[42] As indicated above, the burden is on Mr. Boutin to prove the alleged facts. The Agency finds that Mr. Boutin did not demonstrate, on a preponderance of evidence, that his version of the facts is more conclusive than Air Canada’s, and accordingly Mr. Boutin has not proven that Air Canada did not correctly apply the terms and conditions of carriage set out in its Tariff.

[43] Although the Agency concludes that Mr. Boutin failed to demonstrate that Air Canada did not correctly apply the terms and conditions of its Tariff, the Agency notes that the travel ban imposed on Mr. Boutin is indeterminate. Given that the incident in question was a one-time event, the Agency encourages Air Canada to reconsider the travel ban imposed on Mr. Boutin.

CONCLUSION

[44] The Agency concludes that Air Canada did not contravene the provisions of its Tariff. The Agency therefore dismisses Mr. Boutin’s complaint.

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APPENDIX TO DECISION NO. 444-C-A-2012

Legislative provisions

Air Transportation Regulations, SOR/88-58, as amended

Subsection 110(4)

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

Canadian Transportation Agency General Rules, SOR/2005-35

Section 5

In any proceeding, the Agency may extend or abridge the time limits set by these Rules, or otherwise set by the Agency, either before or after the expiry of the time limits.

Tariff provisions

Air Canada’s International Passenger Rules and Fares Tariff NTA(A) No. 458

Rule 25 REFUSAL TO TRANSPORT – LIMITATIONS OF CARRIER

II. PASSENGER’S CONDUCT – REFUSAL TO TRANSPORT PROHIBITED CONDUCT & SANCTIONS

(A) 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:

[…]

(2) 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 could 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.

Rule 60 RESERVATIONS

[…]

(D) CHECK-IN TIME LIMITS

(1) The passenger is recommended to present himself/herself for check-in at locations designated for such purposes at least 120 minutes [N](Exception for Tel-Aviv: 180 minutes) prior to scheduled departure time of the flight on which he/she holds a reservation in order to permit completion of government formalities and departure procedures. Passengers must check-in, with his/her baggage, at least 60 minutes [N](Exception for Tel-Aviv: 75 minutes) prior to scheduled departure time.

[...]

NOTE: For the purpose of this rule, check-in is the point for checking baggage and the boarding gate is the point where the boarding pass stub is lifted and retained by the carrier.