Decision No. 484-C-A-2007

September 28, 2007

File No. M4120/07-50292

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COMPLAINT

[1] On April 11, 2007, Mr. E. filed with the Complaints Investigation Division the complaint set out in the title. Due to the regulatory nature of the matter, the complaint was referred to the Canadian Transportation Agency (hereinafter the Agency) for its consideration.

[2] On April 16, 2007, Mr. E. 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 April 20, 2007, Mr. E. advised that he wished to pursue the matter formally before the Agency.

[3] On May 22, 2007, the Agency requested that Air Canada address the complaint within the context of sections 67 and 67.1 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (hereinafter the CTA). On June 22, 2007, Air Canada filed its answer.

[4] On June 25, 2007, Mr. E. filed his reply. On July 11, 2007, Air Canada filed comments with respect to Mr. E.'s reply. On July 15, 2007, Mr. E. requested an extension of thirty (30) days to file his comments.

[5] In a letter dated July 31, 2007, Air Canada was advised that its submission of July 11, 2007 was considered relevant and necessary with respect to this matter and, therefore, was accepted. In that same letter, Mr. E. was granted an extension of thirty (30) days to file his response.

[6] On August 13, 2007, Mr. E. filed his response.

[7] Pursuant to subsection 29(1) of 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 of the deadline until September 28, 2007.

ISSUE

[8] The issue to be addressed is whether Air Canada has properly applied the terms and conditions of carriage relating to refusal to transport 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. E. travelled on 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) Flight No. 8079 on January 5, 2007. He states that after he travelled on that flight, Air Canada falsely accused him of being a potential threat to the safety of its passengers, and informed him that he would no longer be accepted for transportation on Air Canada's or Air Canada Jazz's services unless he demonstrates, to Air Canada's satisfaction, that he no longer poses a threat.

[10] Mr. E. states that, prior to the departure of Air Canada Jazz Flight No. 8079, he advised the flight attendant that his travelling companion urgently needed to use the washroom, but was told that it would not be possible given the impending take-off of the flight and that severe turbulence was anticipated en-route. Mr. E. adds that, after take-off, his travelling companion did use the washroom, disregarding the flight attendant's instructions.

[11] Air Canada maintains that the flight attendant asked the captain, on Mr. E.'s travelling companion's behalf, if she could use the lavatory. Air Canada states that the captain indicated that he was unable to grant the request and that there would be no opportunity to use the lavatory during the 23-minute flight. Air Canada advises that the flight attendant conveyed these instructions by way of a general announcement to the passengers.

[12] Air Canada states that, upon deplaning, Mr. E. forcefully grabbed the flight attendant and said to her "all you deserve is a seat full of piss for your efforts, thanks for your empathy (expletive)", then shoved her shoulder.

[13] Mr. E. submits that at no time did he become aggressive or abusive or use profane language. An affidavit by Mr. E.'s travelling companion, which was submitted by Mr. E., states that she was beside Mr. E. during deplaning and that Mr. E. gently touched the flight attendant's shoulder in order to get her attention, and then said "a seat full of piss is what you deserve for your apathy." His travelling companion further attests that at no time did Mr. E. use any profane language, and that she did not witness Mr. E. either shove the flight attendant or be abusive towards her.

[14] Air Canada submits that it is unlikely that a gentle touch on the shoulder would be followed by the harsh words used by Mr. E. Air Canada maintains that it is more reasonable to believe that a push would have accompanied these words.

[15] Air Canada advises that Mr. E. was notified that he would be unable to travel with Air Canada or Air Canada Jazz until such time as he demonstrates that he no longer poses a threat to the safety and comfort of passengers and crew. Air Canada notes that although Mr. E. replied to its notification of sanction, he failed to address Air Canada's concerns. Air Canada also believes that the affidavit provided by Mr. E.'s travelling companion should not be considered, as she is not an independent witness.

[16] In support of its position, Air Canada submitted an affidavit by another passenger on Air Canada Jazz Flight No. 8079, attesting that the flight attendant was "very polite, courteous and professional during the entire flight". While acknowledging that this passenger did not witness the altercation between Mr. E. and the flight attendant, Air Canada argues that the affidavit supports the flight attendant's credibility.

[17] Mr. E. believes that the accusations against him are unfounded and requests that the sanctions on future travel imposed by Air Canada and Air Canada Jazz be removed, and that the carrier apologize.

ANALYSIS AND FINDINGS

[18] In making its findings, the Agency has 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 in effect at the time of Mr. E.'s travel.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

[19] Subsection 67(3) and section 67.1 of the CTA state:

67(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.

67.1 If, on complaint in writing to the Agency by any person, 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, charge or term or condition of carriage that was set out in its tariffs: and

(c) take any appropriate corrective measures.

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

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.

Refusal to transport

[21] 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".

[22] When a complaint is filed with the Agency, the complainant has the burden of providing evidence to the Agency that the air carrier has failed to apply, or has inconsistently applied, the terms and conditions of carriage found in the applicable tariff.

[23] When, as in this case, the Agency receives a compelling application from a complainant that contests a carrier's decision to refuse transportation because of a passenger's behaviour, the carrier is given the opportunity to provide evidence in support of its position. In this regard, Air Canada has failed to do so. A statement by the carrier, without supporting documentation, that a passenger was disruptive will usually not be considered as sufficient evidence to support a refusal to transport. Furthermore, the Agency discounts the affidavit filed by Air Canada as such affidavit does not concern the alleged incident.

[24] In the present case, the Agency is of the opinion that, based on the evidence on file, particularly Mr. E.'s travelling companion's affidavit, Mr. E.'s conduct does not fall under the carrier's list of prohibited behaviour. The Agency finds that Air Canada has failed to sufficiently refute this evidence and to demonstrate, on a preponderance of the evidence, that it acted in a manner consistent with the tariff in refusing to provide Mr. E. with future transportation.

[25] In light of the foregoing, the Agency finds that by refusing to transport Mr. E., Air Canada has not complied with the tariff and, as such, has contravened subsection 67(3) of the CTA. With regard to ordering the carrier to offer Mr. E. an apology, the Agency is not empowered to order a carrier to do so.

CONCLUSION

[26] In light of the above finding, the Agency, pursuant to section 67.1 of the CTA, orders Air Canada and Air Canada Jazz to accept Mr. E. for future transport, and to immediately remove any reference to their refusal to transport Mr. E. from their records.

Members

• Beaton Tulk
• Gilles Dufault
• Raymon J. Kaduck