Decision No. 49-C-A-2005

February 1, 2005

File No. M4370/04-02940

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COMPLAINT

[1] On May 12, 2004, Darlene MacLeod filed with the Air Travel Complaints Commissioner the complaint set out in the title. However, due to the regulatory nature of the complaint, it was referred to the Canadian Transportation Agency (hereinafter the Agency).

[2] By letter dated May 20, 2004, both Mrs. MacLeod and Skyservice Airlines Inc. carrying on business as Skyservice (hereinafter Skyservice) were advised of the Agency's jurisdiction in this matter. In that same letter, Skyservice was requested to provide the Agency and Mrs. MacLeod with its answer to the complaint, and Mrs. MacLeod was given the opportunity to file a reply to Skyservice's answer.

[3] By letter dated June 22, 2004, Skyservice filed its answer and concurrently served a copy on Mrs. MacLeod. By letter dated July 13, 2004, Mrs. MacLeod filed her reply and concurrently served a copy on Skyservice.

[4] 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 of the deadline until February 6, 2005.

PRELIMINARY MATTER

[5] Although Mrs. MacLeod filed her reply after the prescribed deadline, the Agency, pursuant to section 6 of the National Transportation Agency General Rules, SOR/88-23, accepts this submission as relevant and necessary to its consideration of this matter.

ISSUE

[6] The issue to be addressed is whether Skyservice has applied the terms and conditions of carriage specified in its International Charter Tariff (hereinafter the tariff) as required by subsections 110(1) and 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) in respect of this matter.

FACTS

[7] On January 16, 2004, Mrs. MacLeod and her husband travelled on Skyservice Flight No. 5G350 from Calgary, Alberta, Canada to Holguin, Cuba, with a stopover in Varadero, Cuba. The passengers' tickets indicated that the original departure time was scheduled to be 6:10 a.m. However, the flight was delayed by approximately 11 hours. The actual departure time was thus at approximately 5:00 p.m. on January 16, 2004.

[8] Mrs. MacLeod and her husband completed the Calgary-Holguin portion of the trip with Skyservice and arrived at the Varadero Airport where, at the time of boarding the connecting flight to Holguin, Skyservice refused transportation to Mrs. MacLeod because she was so intoxicated that she required assistance to walk. Mrs. MacLeod's husband was not refused transportation but he chose to stay with his wife.

[9] In order to complete their trip to Holguin, Mrs. MacLeod and her husband were forced to find an alternative mode of transportation. They hired a taxi at a cost of US$450 to take them 700 km from Varadero to Holguin.

POSITIONS OF THE PARTIES

[10] Mrs. MacLeod claims that on January 16, 2004, she and her husband got up at 2:00 a.m. in order to reach the airport in time to board Skyservice's Flight No. 5G350 scheduled to depart Calgary at 6:10 a.m for Holguin. She states that they were unable to access the carrier's system advising of changes to flight schedules and therefore proceeded to the airport as planned, unaware that their flight had been delayed by nearly eight hours. Mrs. MacLeod and her husband chose to go back to their home when they learned of the delay, and they returned to the airport at noon for their 2:00 p.m. departure. On arrival, they were informed that there was an additional two-hour delay. Mrs. MacLeod and her husband then checked in, had lunch and joined in festivities with other passengers in the airport. A further one-hour delay occurred, and their flight finally departed at 5:00 p.m., after a total delay of approximately 11 hours.

[11] Mrs. MacLeod "guesses" that once the plane was boarded, she was laughing and talking somewhat loud because she was approached by the flight attendant who told her that she would not be served any alcohol. Mrs. MacLeod argues that the flight attendant's approach was out of place, but Mrs. MacLeod accepted the reproach and settled down for some much needed sleep.

[12] Mrs. MacLeod further claims that, when she woke up, she and her husband were served three drinks each over a period of two hours until landing in Varadero. Mrs. MacLeod suggests that the unavailability of food and the lack of sleep contributed to bringing her to a heightened state of inebriation. She also claims that during the three-hour wait for her connecting flight, her condition continued to deteriorate to a point where she was in need of supervision. Mrs. MacLeod states that on arrival at the boarding gate, she was refused transportation because she was believed to be unable to handle herself in case of emergency.

[13] Mrs. MacLeod feels that she did not drink more than usual but that the alcohol affected her in an unusual way. She claims that the unavailability of food and the fatigue resulting from the 11-hour delay prior to boarding reduced her tolerance for alcohol. Mrs. MacLeod adds that Skyservice should not have denied her transportation but rather should have placed her into the care of her husband. She further states that merely being intoxicated should not be considered a violation, and she questions the grounds for the carrier's reaction to her condition.

[14] In response, Skyservice refers to the Canadian Aviation Regulations passed pursuant to the Aeronautics Act, R.S.C., 1985, c. A-2, which provide, inter alia, that the operator of an aircraft must not allow a person to board where it believes that the person's faculties are impaired by alcohol to the extent that the person poses a hazard to the aircraft or to the other passengers on board.

[15] Skyservice's position is that, in Varadero, the flight Captain saw that Mrs. MacLeod was unable to walk without assistance and judged that her faculties were impaired by alcohol. He deemed that she posed a hazard to the aircraft and to the other passengers, and therefore denied her boarding. Skyservice adds that the Captain acted reasonably and that his decision was made on a reasonable basis. The carrier argues that, for these reasons, the Agency should dismiss the complaint.

[16] Mrs. MacLeod states that she had been unaware of Skyservice's unruly passenger policy and questions why passengers are not made aware of such policies. She also points out that she was not the only person intoxicated on that plane that day and asks why other inebriated passengers were not also refused transportation.

[17] In her complaint to the Agency, Mrs. MacLeod indicated that she is seeking an apology from the carrier, compensation, consideration for future travel and change to the carrier's policy.

ANALYSIS AND FINDINGS

[18] 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 Skyservice's Conditions of Carriage applicable to refusal to transport as set out in its tariff in effect at the time of Mrs. MacLeod's travel.

Applicable legislative and regulatory provisions

[19] A number of statutory provisions in force at the time of the incident are relevant to the present analysis.

[20] Paragraph 86(1)(h) of the CTA states in part:

86(1) The Agency may make regulations

(h) respecting traffic and tariffs, fares, rates, charges and terms and conditions of carriage for international service and

(i) providing for the disallowance or suspension by the Agency of any tariff, fare, rate or charge,

(ii) providing for the establishment and substitution by the Agency of any tariff, fare, rate or charge disallowed by the Agency, and

(iii) authorizing the Agency to direct a licensee to take corrective measures that the Agency considers appropriate and to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges or terms or conditions of carriage applicable to the service it offers that were set out in its tariffs;

[21] Subsections 110(1) and 110(4) of the ATR provide:

110(1) Except as provided in an international agreement, convention or arrangement respecting civil aviation, before commencing the operation of an international service, an air carrier or its agent shall file with the Agency a tariff for that service, including the terms and conditions of free and reduced rate transportation for that service, in the style, and containing the information, required by this Division.

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.

[22] Section 113.1 of the ATR provides:

113.1 Where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariff, the Agency may

(a) direct the licensee to take corrective measures that the Agency considers appropriate; and

(b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.

[23] Subparagraph 122(c)(viii) of the ATR also provides that:

122 Every tariff shall contain:

(c) the terms and conditions of carriage, clearly stating the air carrier's policy in respect of at least the following matters, namely,

(viii) refusal to transport passengers or goods,

The tariff

[24] Section I, Rule 6. e) and Rule 6. n) (i) (a) and (b) and (ii) (a) and (c) of Skyservice's tariff C.T.A.(A) No. 3 governing the terms and conditions of carriage applicable to the carrier on January 16, 2004 state:

[25] Rule 6. e)

Carrier shall use its best efforts to carry the passengers and baggage with reasonable dispatch. Times shown in contracts of carriage or elsewhere are approximate and not guaranteed, and form no part of the contract of carriage. No employee, agent or representative of the carrier is authorized to bind carrier by any statements or representations as to dates or times of departure or arrival, or of the operation of any flight.

[26] Rule 6. n) Passenger's Conduct, Refusal to Transport, Prohibited Conduct and Sanctions

(i) Prohibited Conduct

The following non-exhaustive list constitutes prohibited conduct where it may be necessary, in the reasonable discretion of the carrier, to apply one or more sanctions 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 safe and adequate flight operations:

(a) the person, in the reasonable judgment of a responsible carrier employee, is under the influence of intoxicating liquors or drugs (except a medical patient under proper care);

(b) the person's conduct, or condition is or has been known to be verbally or physically abusive, offensive, threatening, intimidating, violent or otherwise disorderly, and in the reasonable judgment of a 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.

(ii) 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 one or a combination of any of the following sanctions:

(a) removal of the passenger at any point;

...

(c) refuse to transport the passenger. The length of such refusals to transport may range from a one-time or other specified number 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 safe and adequate flight operations.

1. Clarity of the tariff

[27] In Decision No. 589-C-A-2002 dated October 31, 2002, the Agency had an opportunity to examine the provisions of Skyservice's tariff as it relates to the refusal to transport passengers. In its Decision, the Agency found that Skyservice's tariff did not contain terms and conditions of carriage clearly stating Skyservice's policy with respect to its authority to impose upon an unruly passenger a sanction other than simple refusal to transport or removal.

[28] Accordingly, the Agency ordered Skyservice to amend its tariff so that it complies with the regulatory requirements of the CTA and the ATR. Skyservice complied with the above Agency Order and amended its tariff. In Decision No. 127-C-A-2003, the Agency examined Skyservice's amended provisions in its tariff and found that they clearly state Skyservice's policy in respect of refusal to transport unruly passengers. Further, the Agency found that the tariff fully sets out the extent of the sanctions Skyservice may impose upon an unruly passenger, and the relationship between different levels of unruly behaviour and the range of sanctions, other than simple removal or refusal, that Skyservice may impose.

[29] Based on the foregoing, the Agency finds that Skyservice's tariff in effect at the time of the incident clearly states the carrier's policy with respect to its right to refuse to carry or to remove a passenger when it is necessary for the safety of the aircraft or of other passengers.

2. Application of the tariff

[30] With respect to the application of the tariff, subsection 110(4) of the ATR requires air carriers to apply only the terms and conditions of carriage found in a tariff filed with the Agency pursuant to subsection 110(1).

[31] As set out above, Rule 6. n)(i) of Skyservice's tariff includes a non-exhaustive list of prohibited conducts where it may be necessary, in the reasonable discretion of the carrier, to apply one or more sanctions to ensure the physical comfort or safety of other passengers, of the carrier's employees or of the aircraft. One of the prohibited conducts described in paragraph (a) is where a passenger in the reasonable judgment of a responsible carrier employee, is under the influence of intoxicating liquors or drugs.

[32] There is no doubt in this case that Mrs. MacLeod was intoxicated at the time of boarding. In her complaint with the Agency, she admitted to "partying with some other passengers in the airport" prior to departure. She further admitted to having arrived in Varadero "hungry, drunk and tired".

[33] Based on the foregoing and the Captain's observations at Varadero, Mrs. MacLeod's conduct clearly represented one of the prohibited conducts pursuant to which Skyservice is entitled to refuse transportation. The Agency finds that Skyservice has abided by the provisions of its tariff in this case.

[34] The only arguments brought forward by Mrs. MacLeod against the carrier's action is that the 11-hour delay prior to boarding and the lack of food contributed to her level of intoxication and that other passengers, also intoxicated, were allowed transportation. In the opinion of the Agency, these arguments do not constitute a valid defence against the carrier's decision not to transport a passenger because of intoxication. While it is each passenger's responsibility to ensure that he/she does not become or is not intoxicated to the extent that he/she might represent a threat to the safety and comfort of other passengers or to the safety of the aircraft, it is the carrier's responsibility to assess each passenger's condition and decide in its reasonable discretion which passengers, if any, represent such a threat to its aircraft.

[35] The Agency therefore finds that Skyservice applied the terms and conditions of carriage specified in its tariff with respect to this complaint.

CONCLUSION

[36] Based on the above findings, the Agency, hereby dismisses Mrs. MacLeod's complaint.