Decision No. 575-C-A-2006

With Decision No. 713-C-A-2006

October 20, 2006

File No. M4370/06-01925

---

COMPLAINT

[1] On February 20, 2006, Soheir Ibrahim filed with the Office of the Air Travel Complaints Program (hereinafter the ATCP) the complaint set out in the title.

[2] On April 7, 2006, Mrs. Ibrahim was advised of the jurisdiction of the Canadian Transportation Agency (hereinafter the Agency) in this matter and was asked whether she wished to pursue this matter formally before the Agency. On May 7, 2006, Mrs. Ibrahim confirmed that she wished to pursue this matter formally before the Agency.

[3] On May 8, 2006, both parties were advised of the Agency's jurisdiction in this matter. The parties were also requested to advise whether they agreed to have the comments they had filed with the ATCP considered as pleadings before the Agency. If the parties did not agree with that proposed procedure, or wished to provide further evidence, the Agency would open pleadings and solicit comments from them. Air Transat, A.T. Inc. carrying on business as Air Transat (hereinafter Air Transat) would be allowed thirty days to provide the Agency and Mrs. Ibrahim with its answer to the complaint, and Mrs. Ibrahim would be given ten days to file a reply to Air Transat's answer.

[4] On May 17, 2006, Air Transat agreed to have the comments it had filed with the ATCP considered as pleadings before the Agency. On May 19, 2006, Air Transat submitted certain documents that had been filed with the ATCP and marked as confidential. In that submission, Air Transat had removed the confidential information to allow it to form part of the public pleadings.

[5] On May 31 and June 2, 2006, Mrs. Ibrahim was provided with Air Transat's filed documents and a transcript of some of the wording of the said documents, also provided by the carrier. On June 5, 2006, based on the understanding that the refiled documents were Air Transat's answer to the complaint, Mrs. Ibrahim filed her reply and concurrently served a copy on Air Transat.

[6] On July 14, 2006, Mrs. Ibrahim also agreed to have the comments that she had filed with the ATCP considered as pleadings before the Agency.

[7] 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 October 20, 2006.

ISSUE

[8] The issue to be addressed is whether Air Transat applied the terms and conditions of carriage concerning refusal to transport as specified in its scheduled international tariff CTA(A) No. 4 (hereinafter the tariff) as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR).

POSITIONS OF THE PARTIES

[9] On August 25, 2005, Mr. and Mrs. Ibrahim arrived at the ticket counter in Toronto to check in for Air Transat Flight No. 420 from Toronto to Manchester. Mrs. Ibrahim states that upon checking in she and her husband were advised by Air Transat that they would have to check a third piece of baggage, which was too large to be considered carry-on baggage and would be subject to excess baggage charges. She points out that this bag was weighed by the carrier at three different times and that a different weight was indicated each time. According to Mrs. Ibrahim, she was advised by the Supervisor that the scales were calibrated regularly. Mrs. Ibrahim objected to paying the excess fees, but did so anyway. She also maintains that she was advised by the carrier to purchase a bag to carry her purse, camera and DVD player to take on board the aircraft.

[10] Mrs. Ibrahim advises that there were two agents on duty at the gate, one of whom was the agent who had checked them in. As she and Mr. Ibrahim did not to wish to deal with that agent again, they proceeded to the other agent. Mrs. Ibrahim contends that the agent who had checked her and her husband in pointed them out to the other agent and they were asked to step aside. According to Mrs. Ibrahim, she and her husband waited over thirty minutes before the agent advised them that they would have to check a fourth bag and pay additional excess baggage charges, which she was not aware would happen. She adds that they refused to pay any further excess charges and requested Air Transat to call the police to settle the matter. Mrs. Ibrahim contends that this request was denied and that they were refused transportation.

[11] Air Transat submits that the Ibrahims arrived at the check-in counter with several pieces of baggage, some of which exceeded the carrier's size and weight limitations. Air Transat maintains that the passengers became agitated when they were advised of the carrier's baggage regulations and that they were not pleased that they had to pay excess baggage charges. The carrier adds that the passengers were cautioned that any excess or overweight carry-on baggage would not be accepted in the cabin of the aircraft and would be taken from them at the gate and be subject to additional excess baggage charges. The carrier states that it recommended to the Ibrahims that they either repack their bags to meet the carrier's regulations, or arrange to leave the excess pieces behind, but the Ibrahims advised the Air Transat personnel that they would deal with this issue at the gate.

[12] Air Transat maintains that the passengers were identified at the boarding gate and advised that they had too many pieces of carry-on baggage and that one piece would have to be checked and the additional charges paid.

[13] Mrs. Ibrahim submits that they were not expecting to have to pay excess baggage charges at the gate as that had not been previously indicated to them when they checked in.

[14] Air Transat asserts that, at this point in time, Mr. Ibrahim became very upset and started to yell and verbally threaten the carrier's personnel. In support of this assertion, Air Transat submitted internal reports containing statements by members of the carrier's personnel attesting to the threatening behavior to which they were subjected. Air Transat submits that the Flight Director and the Captain were apprised of the disturbance and the Captain made the decision to refuse transportation to the Ibrahims.

[15] Mrs. Ibrahim states that she is aware that the tickets purchased were totally non-refundable, but she is seeking a full refund as it was not her and her husband's fault that Air Transat refused them transportation.

APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS

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

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.

[17] Section 113.1 of the ATR provides:

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 tariffs, 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.

The tariff provisions

[18] Rule 6 of Air Transat's tariff governing the terms and conditions of carriage in effect on August 25, 2005 states, in part:

Rule 6. CARRIAGE OF PASSENGERS

6.1 Refusal to transport - Removal of passengers

The Carrier may refuse to carry or cancel the reserved space of, or may remove enroute from any flight any passenger when:

a) Such action is necessary for reasons of safety.

...

c) The conduct, status, age, psychological and/or physical condition of the passenger is such as to require, in the reasonable opinion of the Carrier's personnel, special assistance or cause discomfort or be objectionable to other passengers, or involve any hazard or risk to such passenger, to any other persons or property, or to the flight.Subject to the provisions of Rule 6.4, the present will not apply to passenger with physical disabilities.

d) The passenger fails to observe the instructions of the Carrier's personnel.

...

6.2 Passenger's conduct - 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 operation of the flight:

...

ii) 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;

...

iv) the person fails to observe the instructions of the Carrier and its employees, including instructions to cease prohibited conduct;

...

b) 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 combinations of the following sanctions:

i. removal of the passenger at any point;

ii. probation. The Carrier may stipulate that the passenger is to follow certain probationary conditions, such as to not engage in prohibited conduct, in order for the Carrier to provide transport to said passenger. Such probationary conditions may be imposed for any length of time, which, in the exercise of the Carrier's reasonable discretion, is necessary to ensure the passenger's continued compliance in continued avoidance of prohibited conduct, and;

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 the 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 operation of the flight. The following conduct will automatically result in an indefinite up to lifetime ban:

• the person continues to interfere with the performance of a crew member's duties notwithstanding verbal warnings by the crew to stop such behavior;
• the person injures or subjects to a credible threat of injury a crew member or other passenger;
• the person has a conduct that requires an unscheduled landing and/or the use of restraints such as ties or handcuffs;
• the person repeats a prohibited conduct after receiving a notice of probation as mentioned in (2) above;

...

6.3 Liability for refusal to transport and for failure to operate on schedule

The Carrier is not liable for its refusal to transport any passenger in accordance with Rule 6. Subject to Rule 5.3.1, where a passenger incurs a schedule irregularity of not less than six(6) hours involving a flight operated by the Carrier:

...

ANALYSIS AND FINDINGS

[19] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined the terms and conditions of carriage outlined in the tariff concerning Air Transat's refusal to transport passengers, and its liability in such situations.

[20] The evidence before the Agency indicates that the Ibrahims refused to pay the additional charges for a fourth piece of baggage, and that Mr. Ibrahim's threatening behavior was brought to the attention of the Inflight Service Director and the Captain. It was determined that the Ibrahims disregarded all instructions given to them by the ground personnel and that such action, coupled with the Ibrahims' behavior and attitude, posed a risk to the security and safety of the passengers, crew and aircraft, and they were subsequently refused transportation. Air Transat's position is substantiated by the internal report it filed with the Agency which contains statements by members of the carrier's personnel attesting to the threatening behavior to which they were subjected. Mrs. Ibrahim submitted no evidence to substantiate her position that the Captain acted in an unreasonable way in refusing her and her husband transportation.

[21] Air Transat's tariff provides that the carrier is not liable for passengers being refused transportation when they demonstrate a prohibited conduct. Air Transat has therefore retained the non-refundable air fare, but it has refunded CAD$105 to the Ibrahims to cover the excess baggage charges that had been assessed at the check-in counter, and Transat Holidays has refunded CAD$220.10 for the refundable taxes and surcharges on the cancelled tickets.

[22] The Agency finds on balance of probabilities that the Ibrahims demonstrated behavior that justified the decision by Air Transat to refuse transportation. The Agency therefore finds that Air Transat properly applied its terms and conditions of carriage as set out in its tariff when it refused to transport the Ibrahims from Toronto to Manchester and when it refused to refund the air fare.

CONCLUSION

[23] In light of the foregoing, the Agency hereby dismisses the complaint.

Members

• Guy Delisle
• Mary-Jane Bennett
• Baljinder Gill