Decision No. 589-C-A-2002

October 31, 2002

File No. M4370/R177/01-8

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COMPLAINT

On April 27, 2001, Marilyn McGowan filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title.

On June 14, 2001, the Agency initiated pleadings on this complaint. On July 11, 2001, Skyservice Airlines Inc. carrying on business as Skyservice and/or Roots Air (hereinafter Skyservice) requested an extension until July 30, 2001 to file its answer to the complaint. By Decision No. LET-C-A-347-2001, the Agency granted Skyservice the requested extension. On July 27, 2001, Skyservice filed its answer.

By Decisions No. LET-C-A-145-2002 and LET-C-A-144-2002 both dated May 13, 2002, the Agency, pursuant to subsection 18(1) of the National Transportation Agency General Rules requested that Skyservice and Mrs. McGowan provide additional information with respect to the complaint. The information requested was filed by Mrs. McGowan on May 17, 2002 and by Skyservice on May 31, 2002.

On July 25, 2002, the Agency held a hearing in Toronto to obtain factual evidence to assist the Agency in reaching a decision in this complaint.

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 indefinite extension of the deadline.

ISSUE

The issue to be addressed is whether Skyservice has complied with the regulatory requirements imposed by the CTA and the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) in respect of this matter, including:

1. whether, pursuant to subparagraph 122(c)(viii) of the ATR, the terms and conditions of carriage provided for in Skyservice's International Charter Tariff clearly set out the carrier's policy with respect to the refusal to transport passengers and goods; and
2. whether, pursuant to subsection 110(5) of the ATR, Skyservice applied the terms and conditions of carriage set out in its International Charter Tariff.

FACTS

On March 14, 2001, Mrs. McGowan travelled on Skyservice Flight No. SSV890 from Toronto, Canada to Port of Spain, Trinidad. Approximately two hours into the flight, she was accused of smoking in the lavatory and was presented with a Formal Warning by the Customer Service Manager (hereinafter the CSM).

On March 28, 2001, a letter dated March 16, 2001 was hand-delivered to Mrs. McGowan at the Port of Spain airport, in which Skyservice advised her that because of her behaviour onboard Flight No. SSV890 on March 14, 2001, she would not be accepted for travel on the return flight to Toronto. The carrier also indicated that Mrs. McGowan would no longer be accepted as a passenger on Skyservice's flights as it considered that she posed a risk to the safety and comfort of passengers and crew. On July 27, 2001, Skyservice sent a letter to Mrs. McGowan lifting this ban.

Mrs. McGowan returned to Toronto three days later on a different carrier, at her own expense.

POSITIONS OF THE PARTIES

Mrs. McGowan submits that she was wrongfully accused of smoking in the lavatory during her travel to Port of Spain on March 14, 2001. Mrs. McGowan states that she had to wait in line to use the lavatory and that, after she returned to her seat, a male flight attendant asked her if she had been smoking in the lavatory and asked how she had disposed of the cigarette. Mrs. McGowan indicates that she denied having had a cigarette. Mrs. McGowan also acknowledges that, prior to this incident, she had consumed a significant quantity of alcohol and that, following the smoking allegation, she was refused alcoholic beverage service for the remainder of the flight.

According to Mrs. McGowan, the flight attendant summoned the CSM who obtained Mrs. McGowan's passport and ticket. Mrs. McGowan advises that her passport and ticket were returned to her upon her arrival in Trinidad while she was being warned by the CSM that the crew on her return flight would keep a watchful eye on her.

Mrs. McGowan states that, on March 28, 2001, when she was refused transportation for her return flight to Toronto upon her arrival at the Port of Spain airport for check-in, a discussion between herself and a Skyservice agent ensued. Mrs. McGowan submits that, at that time, she again denied having smoked onboard the aircraft on March 14, 2001 and advised the agent that she could not afford to purchase another ticket to return to Toronto.

On behalf of Mrs. McGowan, Ron Joseph, her travelling companion, submits that they requested to speak with the Captain of the flight but were refused the opportunity to discuss her case.

Mrs. McGowan argues that, as a result of Skyservice's decision to refuse her transportation, she has suffered pain, distress, and hardship along with monetary loss. Mrs. McGowan is seeking compensation for the expenses incurred as a result of her being stranded in Trinidad for three days.

In his testimony, Skyservice's employee, Jeffrey Murphy, referred to as "the male flight attendant" in Mrs. McGowan's statement, indicates that, once Mrs. McGowan left the lavatory, there was cigarette smoke lingering in the air. He also states that, because there was no one in line to use the lavatory, he was able to observe Mrs. McGowan walk back to her seat. He submits that when he confronted Mrs. McGowan, she never actually denied having smoked in the lavatory and furthermore admitted having disposed of the cigarette in the toilet. Mr. Murphy maintains that Mrs. McGowan appeared to be intoxicated. Therefore, in compliance with internal procedures, he turned the matter over to his supervisor, the CSM.

In her testimony, Karen Wahnslaw, the CSM, states that when she was called to the scene of the incident, she observed that Mrs. McGowan's hair was singed, she smelled of cigarette smoke and she appeared to be intoxicated. Ms. Wahnslaw indicates that Mrs. McGowan admitted to her that she had smoked in the lavatory and that the cigarette had been thrown in the toilet. The CSM adds that she confiscated Mrs. McGowan's cigarettes and an open bottle of liquor. The CSM submits that, after consulting with the Captain of the aircraft, she proceeded to read to Mrs. McGowan a formal warning which declares that smoking onboard is prohibited and dangerous, and warns that the Captain has the authority to invalidate the passenger's return ticket. The CSM points out that the Captain had determined that Mrs. McGowan should only be given a formal warning rather than being charged with smoking.

The CSM states that Skyservice's internal procedures require that such incidents be reported in the In-Flight Service Report and, in order to properly record the required information, she borrowed Mrs. McGowan's passport and ticket which were returned to her at the end of the flight.

In response to an Agency letter dated March 5, 2002, Skyservice provided a copy of the In-Flight Service Report for Flight No. SSV890 of March 14, 2001, where the CSM had indicated that both she and the Captain felt that Mrs. McGowan's behaviour warranted a warning prior to her return flight to Toronto with Skyservice on March 28, 2001. The CSM also reported that Mrs. McGowan was very scared and apologetic.

In his testimony, Len Corrado, Skyservice's Director of Customer Security and Delivery, states that an internal investigation was conducted at the carrier's head office in Toronto. As a result of this investigation, the Director of Customer Security and Delivery determined that Mrs. McGowan had displayed such disruptive behaviour that she constituted a threat to the safety and comfort of the crew and passengers on Skyservice's aircraft and therefore would be refused transportation on her return flight to Toronto and on all future Skyservice flights. This decision, according to Mr. Corrado, was based on criteria outlined in the carrier's internal procedures titled Zero Tolerance Policy, Disruptive and Unruly Passengers.

In his testimony, Mr. Corrado adds that, because of Skyservice's technical inability to monitor a ban on transportation, it informed Mrs. McGowan, on July 27, 2001, that it was willing to accept her for future travel provided she agreed that there would be no violation of the on-board smoking law and that she would not consume any alcohol during any flight.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings and the hearing held in Toronto on July 25, 2002.

Statutory provisions

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

i) General provision

Section 26 of the CTA provides:

26. The Agency may require a person to do or refrain from doing any thing that the person is or may be required to do or is prohibited from doing under any Act of Parliament that is administered in whole or in part by the Agency.

ii) International Charter Tariff provisions

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.

Section 110 of the ATR provides:

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.

(2) Acceptance by the Agency of a tariff or an amendment to a tariff does not constitute approval of any of its provision, unless the tariff has been filed pursuant to an order of the Agency.

(3) No air carrier shall advertise, offer or charge any toll where
(a) the toll is in a tariff that has been rejected by the Agency; or
(b) the toll has been disallowed or suspended by the Agency.

(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. [Emphasis added]

(5) No air carrier or agent thereof shall offer, grant, give, solicit, accept or receive any rebate, concession or privilege in respect of the transportation of any persons or goods by the air carrier whereby such persons or goods are or would be, by any device whatever, transported at a toll that differs from that named in the tariffs then in force or under terms and conditions of carriage other than those set out in such tariff. [Emphasis added]

Section 113.1 of the ATR states:

113.1 Where a licensee fails to apply the fares, rates, charges, terms and 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.

Finally, section 122 of the ATR provides, in part:

122.Every tariff shall contain

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

(viii) refusal to transport passengers or goods, [emphasis added]

In light of the above legislative provisions, and upon receipt of a consumer complaint such as the one filed by Mrs. McGowan, the Agency's mandate is to determine:

• whether an air carrier has abided by the terms and conditions of carriage set out in its International Charter Tariff filed with the Agency; and
• whether the terms and conditions of carriage contained in the carrier's International Charter Tariff clearly set out the carrier's policy with respect to refusal to transport passengers or goods.

The present case

i) Clarity of the carrier's tariff on refusal to transport passengers and goods

As mentioned above, subparagraph 122(c)(viii) of the ATR compels carriers to file an International Charter Tariff containing terms and conditions of carriage clearly stating the carrier's policy in respect of the refusal to transport passengers or goods.

The evidence in this file indicates that Skyservice imposed upon Mrs. McGowan a permanent ban. In its letter presented to Mrs. McGowan on March 28, 2001, Skyservice indicated: "Your behaviour on our Skyservice Flight No. SSV890 on March 14, 2001 was reported to be disruptive, causing a perceived threat to the safety of our crew, your fellow passengers, and the aircraft. [...] In light of your behaviour, which was reported and substantiated by several crewmembers, you are hereby notified that Skyservice will not accept you for carriage on your return flight to Toronto on March 28, 2001 or on any other future Skyservice flight".

The Agency notes that this permanent ban has since been removed and replaced with a conditional acceptance. This change is based on Skyservice's letter of July 27, 2001 which stated, in part: "At this time Skyservice is willing to accept Mrs. McGowan for future travel provided she agrees that there will be no violations of the smoking onboard law, as well, that she will not consume/be served any alcohol on her flight".

The sanction imposed on Mrs. McGowan as a result of her alleged unruly behaviour onboard Flight No. SSV890 from Toronto to Port of Spain on March 14, 2001 was applied pursuant to Rule 6 of Skyservice's International Charter Tariff, CTA(A) SSV3, Section 1, Rules and Regulations, on Conditions of Carriage (hereinafter the International Charter Tariff), on file with the Agency.

Rule 6 reads as follows:

6. Conditions of Carriage

b) Carrier will refuse passage to any person when:

i) Such action is necessary for reasons of safety

In Decision No. 2-C-A-2001 dated January 3, 2001, a complaint with respect to the refusal by Air Canada to accept him as a passenger for travel on Air Canada, the Agency had an opportunity to examine a tariff provision respecting a general refusal to transport, such as the one found in Skyservice's International Charter Tariff. In that case, the Agency found that, while Air Canada's tariffs clearly stated the condition necessary to trigger the sanction of removal or refusal (such as safety), and while those same tariffs clearly provided that the air carrier had the ability to refuse or remove an unruly passenger on a one-time basis, Air Canada's tariffs did not clearly state Air Canada's policy with respect to its authority to impose upon an unruly passenger a sanction other than the simple refusal to transport or removal from the aircraft.

In support of that finding, the Agency stated:

Indeed, the Agency is of the view that both tariffs are formulated in such a way as to raise doubt, uncertainty and ambiguity in the mind of a reasonable person as to the extent of the sanction Air Canada may impose upon an unruly passenger. In the opinion of the Agency, a reasonable person could question whether the carrier's right to refuse or remove an unruly passenger is restricted to a one-time refusal or removal, or whether the carrier has the authority to impose a more severe penalty such as a long-term refusal, a life-time ban or even to subject the future acceptance of a passenger who has been known to be unruly in the past to a number of conditions.

This position is reinforced by the fact that neither the international nor domestic tariff include a system of incrementation of sanctions. As such, a passenger having been found responsible for a minor incident affecting the comfort of the other passengers could be subject, according to the present wording of the tariffs, to a permanent ban. As the reasonableness of the sanction to be taken in relation to a particular incident is at the carrier's sole discretion, every passenger should be able to clearly understand the full extent of the carrier's authority to sanction an unruly passenger. The Agency is of the view that, apart from Air Canada's right to refuse or remove an unruly passenger on a one-time basis, the ACIT and the ACDT do not provide a clear understanding of the full extent of the carrier's authority to sanction an unruly passenger.

Similarly, in this case, while the Agency is of the view that Skyservice's International Charter Tariff clearly provides the air carrier with the ability to refuse or remove an unruly passenger on a one-time basis for reasons of safety, the Agency is also of the view that Rule 6 of Skyservice's International Charter Tariff does not clearly state Skyservice's policy with respect to its authority to impose upon an unruly passenger a sanction other than simple refusal to transport or removal from the aircraft.

That is, the Agency finds that, as in the Decision, Skyservice's International Charter Tariff is formulated in such a way as to raise doubt, uncertainty and ambiguity in the mind of a reasonable person as to the extent of the sanction Skyservice may impose upon an unruly passenger.

This finding is reinforced by the actions of Skyservice which believed it necessary to clarify in a document entitled Zero Tolerance Policy, Disruptive and Unruly Passengers the application of its policy as set out in Rule 6. The policy provides for a system of incrementation of sanction and the particular sanction that may potentially be imposed for each category of incident.

In light of the foregoing, the Agency finds that Rule 6 of Skyservice's International Charter Tariff regarding the refusal to transport unruly passengers does not respect the regulatory requirements set out in subparagraph 122(c)(viii) of the ATR as it does not clearly state the carrier's policy in respect of the refusal to transport passengers.

ii) Application of the tariff

Subsections 110(4) and (5) of the ATR compel air carriers to apply only the terms and conditions of carriage found in a tariff filed with the Agency pursuant to subsection 110(1).

As found above, Rule 6 of Skyservice's International Charter Tariff clearly allows the carrier to remove or refuse an unruly passenger, on a one-time basis, for reasons of safety.

Skyservice contended that, as Mrs. McGowan was caught smoking onboard Flight No. SSV890 on March 14, 2001, she was deemed to constitute a threat to the safety of the aircraft for her return trip to Toronto on March 28, 2001. Mrs. McGowan denied that she smoked onboard Flight No. SSV890.

Based on the foregoing, the questions that the Agency must answer in this case are:

• whether Mrs. McGowan was indeed smoking onboard Flight No. SSV890 on March 14, 2001; and
• in the affirmative, whether as a result of this, Mrs. McGowan's acceptance onboard Skyservice on March 28, 2001 would have represented a threat to the safety of the aircraft.

With respect to the question of whether Mrs. McGowan smoked onboard Flight No. SSV890 on March 14, 2001, the Agency, after examining the written and oral evidence provided by the parties during the proceedings, finds, on balance, that Mrs. McGowan likely smoked onboard the aircraft on her trip to Port of Spain on March 14, 2001.

The preponderance of the evidence indicates that two and a half hours into the flight to Port of Spain on March 14, 2001, Mrs. McGowan used the washroom at the rear section of the aircraft and smoked a cigarette. The Agency therefore accepts the testimony of Mr. Murphy and Ms. Wahnslaw who testified that Mrs. McGowan admitted smoking in the aircraft lavatory. These statements are in accordance with the In-Flight Service Report prepared at the time of the incident and the Agency has no compelling evidence that would allow it to question the veracity of these testimonies or report.

As for the question of whether the action of Mrs. McGowan onboard Flight No. SSV890 on March 14, 2001 constituted sufficient grounds to deny her travel on March 28, 2001, the Agency is of the view that Skyservice's decision to refuse transportation to Mrs. McGowan on March 28, 2001 is irreconcilable with both Skyservice's International Charter Tariff and Skyservice's policy.

Rule 6 of Skyservice's International Charter Tariff allows the carrier to refuse carriage to a passenger for reasons of safety. Thus, only if Mrs. McGowan's acceptance onboard Skyservice, on March 28, 2001, would have represented a threat to the safety of the aircraft, could she be rightfully denied carriage for her return trip to Toronto. In determining whether Mrs. McGowan constituted a threat to the safety of the aircraft on March 28, 2001, one must not only look at the facts surrounding this particular case but also at the policy put in place by the carrier to address instances where actions of passengers may potentially endanger the safety of an aircraft.

In the present case, the Agency notes that following Mrs. McGowan being caught smoking onboard Flight No. SSV890 on March 14, 2001, the evidence of Mr. Murphy and Ms. Wahnslaw indicates that: i) the washroom was blocked off, water was doused in the trash container and in the toilet to secure the pipe and holding tank, ii) Mrs. McGowan's cigarettes were confiscated, iii) Mrs. McGowan's ticket and passport were collected, iv) the Captain was informed of the incident and elected to give her a formal warning, v) a formal warning was read to Mrs. McGowan, vi) Mrs. McGowan was scared, "very apologetic, very co-operative and the rest of the flight was without incident". Further and although the evidence tends to demonstrate that Mrs. McGowan was intoxicated as a result of her consumption of alcohol, Mr. Murphy and Ms. Wahnslaw testified that Mrs. McGowan never became

belligerent toward the crew members or other passengers.

The Agency finds that Mrs. McGowan's behaviour onboard Flight No. SSV890 on March 14, 2001, raised a safety concern. As such, there is no doubt in the Agency's mind that measures had to be immediately taken by the crew against Mrs. McGowan following her being caught smoking in the aircraft lavatory. That being said, the Agency is troubled with the subsequent decision of the carrier to modify the decision of the Captain and crew members.

The Agency finds that the Captain and crew's actions were consistent with Skyservice's Zero Tolerance Policy, Disruptive and Unruly Passengers which provides for a system of incrementation of sanctions and the particular sanction each category of incident may involve.

The level 2 category is described by the carrier as : "Moderate interference with crew members or ground personnel (i.e., belligerent or obscene behaviour, consuming own alcohol, smoking, refusal to comply with crew instructions, etc.)". The level 2 category further provides that: "once an incident is determined to be a level 2 incident, the passenger will receive a warning letter from the Director of Ground Operations, based on the report submitted by the CSM or ground personnel. This letter requires the passenger to agree and sign to the terms of return carriage". It is only if the said behaviour continues in flight, that a notice of violation, which could result in prosecution, invalidation of the passenger ticket or a ban, would be issued and signed by the Captain.

The level 3 category is described by the carrier as: "serious safety concerns for passengers and crew/staff (e.g. criminal activity including threats or assault, tampering with smoke detector, etc.)". The level 3 category further provides that if the behaviour escalates to the point where the actions of the passenger are criminal or pose a physical threat, the passenger can be denied carriage if the incident occurred on the ground or can be prosecuted, denied return carriage or even restrained if the incident occurred in flight.

In this case, there is no evidence to suggest that Mrs. McGowan's behaviour amounted to a level 3 category incident. To the contrary, the Agency notes that the testimony of both Mr. Murphy and Ms. Wahnslaw is that after she had been served with a formal warning, Mrs. McGowan was very apologetic, very co-operative and that the rest of the flight was without incident.

The Agency finds that the evidence in this case does not support the contention of Skyservice that the acceptance of Mrs. McGowan's onboard Skyservice on March 28, 2001, two weeks after being caught smoking onboard Flight No. SSV890, would have represented a threat to the safety of that aircraft. The fact that her acceptance onboard the carrier's aircraft is not a threat to safety is even implicitly recognized by the carrier in its letter of July 27, 2001 in which Skyservice states: "At this time Skyservice Airline is willing to accept Mrs. McGowan for future travel provided she agrees that there will be no violations of the smoking onboard law, as well, that she will not consume/be served any alcohol on her flight."

The Agency finds that, in changing the sanction imposed on Mrs. McGowan from a life time ban to a conditional acceptance, the carrier effectively endorsed the Captain and crew members' original sanction which had been imposed on March 14, 2001, at the time of the incident, as provided for in the level 2 category incident of Skyservice's policy on unruly passenger.

Len Corrado testified that the carrier's decision to refuse carriage to Mrs. McGowan on March 28, 2001, was based on a conversation he had with the crew members in which he was told that Mrs. McGowan was a handful to deal with. Mr. Corrado further testified that the intoxication of Mrs. McGowan coupled with the smoking in the lavatory each constituted a level 2 incident. According to Mr. Corrado, the safety of the aircraft was actually in jeopardy as two crew members were removed from their basic duty to deal with Mrs. McGowan and he feared that a less experienced crew may have had more difficulty in defusing the situation.

The Agency finds that Mr. Corrado's explanation with respect to the jeopardy of the aircraft is at odds with Skyservice's letter of July 27, 2001 in which Mrs. McGowan's acceptance onboard Skyservice is no longer perceived as a threat to safety. Upon being questioned by the Agency about the change of circumstances from March 28, 2001 to July 27, 2001, Mr. Corrado explained that Skyservice did not have the tools to track banned passengers and that the actions of the carrier were not aimed at punishing but rather at protecting. The Agency cannot accept Mr. Corrado's explanation. Thus, to the extent that a known unruly passenger could pose a real threat to the safety of a Skyservice aircraft, the Agency is of the opinion that, in such circumstances, Skyservice should put everything in place to ensure that such a known unruly passenger would never board its aircraft.

With respect to Mr. Corrado's contention regarding Mrs. McGowan's behaviour, the Agency notes that Mr. Murphy and Ms. Wahnslaw testified that other than the incident in the lavatory, the behaviour of Mrs. McGowan was never a cause for concern, even if she was intoxicated. This is supported by the in-flight service report in which no behavioural problem is reported apart from the incident in the lavatory.

Given that the carrier failed to demonstrate that the acceptance of Mrs. McGowan onboard Skyservice on March 28, 2001 posed a threat to safety, the Agency finds that Skyservice, in refusing to transport Mrs. McGowan, did not apply the terms and conditions of carriage set out in its International Charter Tariff contrary to subsection 110(4) and (5) of the ATR.

Where the Agency finds that, contrary to subsection 110(5) of the ATR, the holder of an international charter licence has applied terms and conditions of carriage applicable to the international service it offers that are not set out in its tariff, it may, pursuant to paragraphs 113.1(a) and (b), direct the licensee to take corrective measures or direct the licensee to pay compensation for any expenses incurred by a person adversely affected by the licensee's failure to apply the terms and conditions provided for in its International Charter Tariff.

In this case, the Agency finds that Skyservice should reimburse Mrs. McGowan for her expenses incurred as a result of Skyservice's wrongful refusal to transport. The Agency examined the amounts claimed by Mrs. McGowan and finds that:

1. the costs of the taxi rides from and to Port of Spain airport in the amount of $30 each way, and the cost of the taxi from Toronto airport to her residence in the amount of $50, are reasonable. As such, the Agency finds that Skyservice should reimburse the amount of $110 to Mrs. McGowan to cover these costs;
2. although Mrs. McGowan is unable to confirm the exact amount paid for alternative transportation on Air Canada from Port of Spain to Toronto, the Agency is of the view that such an amount can easily be obtained by Skyservice by verifying the cost of a one-way unrestricted economy fare from Port of Spain to Toronto in effect on March 28, 2001, as published by Air Canada. As such, the Agency finds that Skyservice should reimburse Mrs. McGowan an amount equivalent to an Air Canada one-way unrestricted economy fare from Port of Spain to Toronto in effect on March 28, 2001;
3. Mrs. McGowan must have incurred living expenses as a result of her extra three days in Port of Spain. Accordingly, and, given the difficulty in obtaining proof of payment for accommodation from Port of Spain, the Agency is of the opinion that Skyservice should reimburse Mrs. McGowan a reasonable amount to cover those costs. The amount to be reimbursed to Mrs. McGowan should be negotiated and agreed upon between the parties.
4. Mrs. McGowan's collect phone calls to her daughter in Etobicoke in the amount of $100 could have been supported through the filing of a telephone company bill. In the absence of such evidence, the Agency dismisses such a request for compensation.

CONCLUSION

The Agency finds that Skyservice's International Charter Tariff does 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.

Therefore, the Agency, pursuant to section 26 of the CTA, hereby directs Skyservice to ensure, within 90 days from the date of this Decision, that its International Charter Tariff contains terms and conditions of carriage clearly stating Skyservice's policy in respect of refusal to transport unruly passengers pursuant to subparagraph 122(c)(viii). Also, the Agency, pursuant to subparagraph 110(1) of the ATR, directs Skyservice to file an International Charter Tariff which, among other things, fully sets out the extent of the sanctions Skyservice may impose upon an unruly passenger and which fully states the relationship between different levels of unruly behaviour and the range of sanctions other than simple removal or refusal to transport, that Skyservice may impose.

The Agency further finds that, contrary to subsections 110(4) and (5) of the ATR, Skyservice, in refusing to transport Mrs. McGowan on March 28, 2001, did not apply the terms and conditions of carriage set out in its International Charter Tariff.

Accordingly, the Agency, pursuant to paragraph 113.1(b) of the ATR, hereby orders Skyservice to:

1. Pay Mrs. McGowan an amount of $110 for the extra cost of taxis in Port of Spain and Toronto;
2. Pay Mrs. McGowan an amount equivalent to an Air Canada one-way unrestricted economy fare from Port of Spain to Toronto in effect on March 28, 2001;
3. Pay Mrs. McGowan a reasonable amount destined to cover her living expenses resulting from the extra three days she spent in Port of Spain as a result of her being refused transportation. Such an amount is to be negotiated and agreed upon between the parties. In the event that the parties are unable to reach an agreement as to Mrs. McGowan's living expenses in Port of Spain, the Agency remains seized of this matter.