Decision No. 671-C-A-2004

December 10, 2004

File No. 4370/A74/01-1268

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COMPLAINT

[1] On September 26, 2001, Dr. Diyaljee filed with the Air Travel Complaints Commissioner (hereinafter the Commissioner) the complaint set out in the title. On October 3, 2001, Dr. Diyaljee's complaint was forwarded to Air Canada, for consideration. On November 30, 2001, Air Canada replied and outlined its position with respect to Dr. Diyaljee's complaint. On the same day, Dr. Diyaljee indicated his dissatisfaction with Air Canada's reply.

[2] On April 11, 2002, this complaint was referred to the Canadian Transportation Agency (hereinafter the Agency) as it raised a tariff issue within the jurisdiction of the Agency.

[3] On June 13, 2002, by Decision No. LET-C-A-146-2002, the Agency sought the parties' agreement to have the comments filed before the Commissioner considered as pleadings before the Agency. Dr. Diyaljee was also requested to confirm that he wanted his complaint dealt with formally by the Agency.

[4] On June 14, 2002, Dr. Diyaljee confirmed that he wished to pursue the complaint and indicated that he had no further documentation to provide.

[5] On July 3, 2002, Air Canada filed its response to the Agency's June 13, 2002 letter, indicating that it was not prepared to accept the comments filed with the Commissioner as pleadings before the Agency as the comments provided by Air Canada in previous correspondence did not address specific sections of theCanada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA). Air Canada therefore reserved its right to file additional submissions.

[6] On July 29, 2002, by Decision No. LET-C-A-207-2002, the Agency indicated it was opening pleadings into this matter and requested Air Canada to provide its answer to the complainant no later than 30 days from the date of receipt of that Decision. Dr. Diyaljee was provided a further 10 days from receipt of Air Canada's answer to file a reply.

[7] On August 19, 2002, Air Canada filed its answer to the complaint, and on August 25, 2002, Dr. Diyaljee filed his reply.

[8] On October 4, 2002, by Decision No. LET-C-A-290-2002, the Agency sought additional information from Air Canada.

[9] On October 24, 2002, Air Canada provided its answer to the Agency's request.

[10] Between April 1, 2003 and September 30, 2004, Air Canada was under court-sanctioned protection from its creditors under the Companies' Creditors Arrangement Act. As part of that process, the Ontario Superior Court of Justice issued an order suspending all proceedings against Air Canada and certain of its subsidiaries. The Agency was, therefore, prohibited from dealing with any complaints or investigations involving Air Canada during that 18-month period.

[11] 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 indefinite extension of the deadline.

PRELIMINARY MATTER

[12] Although Air Canada's letter of October 24, 2002, was received beyond the 10-day deadline provided to Air Canada by Decision No. LET-C-A-290-2002, the Agency, pursuant to section 8 of the National Transportation Agency General Rules, SOR/88-23, accepts this submission as being relevant to its consideration of this matter. In addition, following receipt of Air Canada's letter of October 24, 2002, Dr. Diyaljee, on November 5, 2002, filed additional comments with the Agency. As the pleadings in the present case were closed at the time of Dr. Diyaljee's submission, the submission will be disregarded by the Agency and returned to Dr. Diyaljee.

ISSUE

[13] The issue to be addressed is whether Air Canada's refusal to transport Dr. Diyaljee on Flight No. AC3967, from Toronto to Edmonton on July 27, 2001, and on Flight No. AC3955, from Toronto to Edmonton on July 28, 2001, was in accordance with the applicable terms and conditions of its domestic tariff in effect at the time of the incidents.

FACTS

[14] Dr. Diyaljee was refused transportation from Toronto to Edmonton, on Flight No. AC3967, on July 27, 2001, as a result of an incident which took place on the aircraft, at Toronto Pearson International Airport. Dr. Diyaljee subsequently made alternate arrangements to travel between Toronto and Edmonton with Air Canada on the morning of July 28, 2001, and, while attempting to check-in for the flight, was refused transportation on Flight No. AC3955, by an Air Canada Customer Service Manager.

POSITIONS OF THE PARTIES

July 27, 2001 incident

[15] Dr. Diyaljee states that, on July 27, 2001, he was scheduled to travel from Toronto to Edmonton at 9:25 p.m. on Air Canada Flight No. AC3967. Dr. Diyaljee suggests that there was a lengthy delay at the boarding gate and confusion surrounding the boarding process. At approximately 9:45 p.m. he was allowed to board the flight and learned upon entering the aircraft that he had been upgraded to business class as a result of the flight being overbooked. Shortly after 10:30 p.m. the passengers were advised that there was a mechanical problem with the aircraft and that the pilot was awaiting ground crew personnel to assess the situation. Dr. Diyaljee contends that there was a further delay of approximately half an hour at which point passengers were deboarded.

[16] Dr. Diyaljee states that, as the rest of the passengers deboarded, he remained in his seat until the crowd lessened. Dr. Diyaljee indicates that he then approached a flight attendant on the aircraft and asked that individual if the announcements made regarding the delay were a joke as he felt something was amiss. According to Dr. Diyaljee, this comment seemed to infuriate the attendant and the attendant asked what he meant. Dr. Diyaljee states that he repeated himself, had a verbal exchange with the flight attendant, and then proceeded to leave the aircraft. Dr. Diyaljee maintains that the flight attendant followed him and made statements to the effect that he would not be travelling anywhere that night and that the police would be called. Dr. Diyaljee states that at this point he left the aircraft and went to the gate area inside the airport. Dr. Diyaljee indicates that, about 10 minutes after leaving the aircraft, another Air Canada agent approached him in the waiting area of the airport and informed him that, as a result of the Captain's instructions, he would not be travelling that night. However, Dr. Diyaljee maintains that the same individual told him that he could travel the next morning. Dr. Diyaljee states that he asked about his checked luggage and was told it could not be retrieved and it would go on to Edmonton without him.

[17] Air Canada confirms, in its answer to the complaint dated August 19, 2002, that Flight No. AC3967 from Toronto to Edmonton on July 27, 2001 was overbooked and that this resulted in Air Canada staff carrying out a "flight firming" process which determined whether all of the bookings on the flight were going to be honoured. Air Canada states that some seats were freed and the complainant was assigned a seat in business class, notwithstanding the fact that he had paid for an economy class ticket.

[18] The carrier also indicates that Air Canada Flight No. AC3967 subsequently incurred mechanical difficulties and a decision was made to cancel the flight and passengers were asked to leave the aircraft. Air Canada maintains that when Dr. Diyaljee was advised of this he became belligerent and asked the flight attendant "...is this your idea of a joke". Air Canada indicates that the flight attendant replied to Dr. Diyaljee that it was not a joke and that the attendant responded to him in a light manner in order to defuse the situation. Air Canada maintains that the complainant became angrier and the flight attendant again attempted to defuse the situation by inviting Dr. Diyaljee to the galley area to discuss the matter further. Air Canada states that the complainant responded by saying, in a loud and aggressive tone, "Don't tell me what to do or where to go, you guys act as though it's all a joke". Air Canada adds that the complainant continued to scream and wag his finger in the flight attendant's face. Air Canada indicates that the flight attendant attempted to calm Dr. Diyaljee down but according to Air Canada, Dr. Diyaljee continued his abusive behaviour. Air Canada states that as a result, the Captain was consulted and it was concluded that Dr. Diyaljee would not be carried on a further flight that day as there was a risk that his behaviour and attitude could disrupt the comfort and/or safety of passengers or crew. Air Canada adds that a message concerning Air Canada's refusal to transport Dr. Diyaljee was entered into his Passenger Name Record.

[19] In his response, Dr. Diyaljee indicates that he disagrees with Air Canada's version of the July 27, 2001 incident on board the aircraft but does not disagree that an incident occurred. With respect to the incident, Dr. Diyaljee explains that the flight attendant in question displayed unprofessional conduct by giggling and laughing when announcements were made by the Captain that there would be delays. Dr. Diyaljee indicates that he felt that the flight attendant's behaviour was not appropriate. Dr. Diyaljee raises concerns about the Captain's lack of involvement in the incident as the Captain at no time spoke to him directly.

July 28, 2001 incident

[20] Dr. Diyaljee indicates that, subsequent to the events that took place on board Air Canada Flight No. AC3967 and in the terminal on July 27, 2001, he telephoned Air Canada's Reservations Call Centre later that evening and purchased a full economy ticket to travel to Edmonton on Air Canada Flight No. AC3955 on July 28, 2001. Dr. Diyaljee maintains that, during the transaction, the Air Canada reservation agent asked why he was booking such an expensive flight. Dr. Diyaljee indicates that he briefly explained the events that had transpired on Air Canada Flight No. AC3967 and the agent advised him that there was no record about the incident on file. Dr. Diyaljee further claims that the agent suggested that he advise the ticketing agent on arrival at the airport the next day that he held an unused ticket and suggested that he should ask if the unused ticket could be used on his new itinerary.

[21] Dr. Diyaljee claims that, upon his arrival at the airport on the morning of July 28, 2001, he approached the ticketing agent at the Air Canada check-in counter and advised her that he had a ticket he had not used the previous day and he told her about the discussion he had with the Air Canada reservations agent. Dr. Diyaljee states that the ticketing agent could not find the reservation that he made at 2 a.m. that morning and he maintains that he voluntarily told her of the circumstances which led to the reservation being made. Dr. Diyaljee states that as a result of this information, the ticketing agent obtained a printout from the computer and then left him to consult with her superiors. Dr. Diyaljee adds that, after waiting approximately 15 minutes, a Customer Service Manager arrived and advised Dr. Diyaljee that he was not allowed to travel with Air Canada as a result of the decision made the previous evening by the Captain of Air Canada Flight No. AC3967. Furthermore, Dr. Diyaljee maintains that he was also told at that time that he was banned from travelling with Air Canada.

[22] Air Canada submits, in its letter dated August 19, 2002, that the refusal to transport Dr. Diyaljee on Air Canada Flight No. AC3955, on July 28, 2001 was based on the continued attitude displayed by Dr. Diyaljee on that day at the Air Canada check-in counter. Air Canada states that as a result, it determined that it would not transport him from Toronto to Edmonton. Furthermore, Air Canada cites tariff provisions it believed were in effect at the time of Dr. Diyaljee's travel and states that the decision by the Captain to refuse to transport Dr. Diyaljee on July 27, 2001 and the decision by the airport managers not to allow him to travel on July 28, 2001 were in full compliance with applicable tariffs. Air Canada offers to determine whether a refund of the unused portion of Dr. Diyaljee's ticket is owed to Dr. Diyaljee but it refuses any further compensation to the complainant. Air Canada advises Dr. Diyaljee that he is welcome to travel on Air Canada in the future. Air Canada also entered into evidence a copy of a letter sent to Dr. Diyaljee on November 30, 2001 which indicates that the decision to refuse to transport Dr. Diyaljee was based on his behaviour on July 27, 2001.

[23] Moreover, Air Canada refers to an earlier Agency Decision (Decision No. 2-C-A-2001) which recognized a carrier's right to refuse a passenger on a given flight on a given day. Air Canada maintains that based on the tariff that it believed to be in effect at the time of the incident, the carrier retained this right and as such the decision to refuse transport to Dr. Diyaljee on both days, was in full compliance with the applicable tariffs.

[24] Dr. Diyaljee reiterates his assertion that he was told by the gate agent after deboarding the aircraft on July 27, 2001 that he could not travel that night, but would be able to travel the next day. Dr. Diyaljee points out the different responses provided by Air Canada in its letters dated November 30, 2001 and August 19, 2002 with respect to the carrier's refusal to transport him on July 28, 2001. Dr. Diyaljee contends that he did not provoke the July 28, 2001 incident. In fact, he claims that he voluntarily provided the information that he was refused transportation on July 27, 2001 to the check-in agent at the Air Canada counter and this agent then informed her supervisor who in turn reacted by refusing to transport Dr. Diyaljee on the July 28, 2001 flight. Dr. Diyaljee states that Air Canada's statement in its letter of August 19, 2002 is concocted.

Further information

[25] In order to better understand certain points raised in the application and to seek further clarification, the Agency requested Air Canada to provide additional information concerning its refusal to transport Dr. Diyaljee on July 28, 2001.

[26] In reply, Air Canada states that during its investigation it was revealed that Dr. Diyaljee continued to display aggressive behaviour in dealing with ground personnel but it had no document or written statement to support this position. Air Canada also states that it recognized that it had submitted tariff provisions with its reply dated August 19, 2002, which were effective as of September 24, 2001, and therefore were not applicable at the time Dr. Diyaljee travelled. However, Air Canada indicates that it had already started applying some of the principles contained in this tariff, in light of Agency Decision No. 2-C-A-2001. Air Canada maintains that because Dr. Diyaljee's original Flight No. AC3967 on July 27, 2001 did not operate and was cancelled, Flight No. AC3955 on July 28, 2001 was in fact a replacement flight for the previous day's operations. Therefore, Air Canada argues that the refusal to transport Dr. Diyaljee on July 28, 2001 was an extension of the refusal of July 27, 2001.

[27] Dr. Diyaljee submits that as a result of Air Canada's refusal to transport him, he incurred several costs. He describes the various ways he attempted to return to Edmonton in an effort to continue his travels and the expenses he incurred including booking a flight on Canada 3000 Airlines Limited (hereinafter Canada 3000) departing on July 29, 2001. In particular, Dr. Diyaljee states that his inability to return to Edmonton resulted in the loss of the value of an advance purchase ticket bought to travel from Edmonton to Atlanta, Georgia with another air carrier in order to attend a business conference. Dr. Diyaljee indicates that he eventually purchased a replacement ticket on Northwest Airlines, Inc. and travelled from Toronto to Atlanta to attend the conference. Dr. Diyaljee submits a claim for $6,449.65 in total compensation as a result of not being able to travel on Air Canada on July 27 and 28, 2001.

ANALYSIS AND FINDINGS

[28] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings as well as the terms and conditions of Air Canada's domestic tariff.

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

[30] Sections 67 and 67.1 of the CTA read as follows:

67. (1) The holder of a domestic licence shall

(a) publish or display and make available for public inspection at the business offices of the licensee all the tariffs for the domestic service offered by the licensee;

(b) in its tariffs, specifically identify the basic fare between all points for which a domestic service is offered by the licensee; and

(c) retain a record of its tariffs for a period of not less than three years after the tariffs have ceased to have effect.

(2) A tariff referred to in subsection (1) shall include such information as may be prescribed.

(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.

(4) The holder of a domestic licence shall provide a copy or excerpt of its tariffs to any person on request and on payment of a fee not exceeding the cost of making the copy or excerpt.

67.1 If, on complaint in writing to the Agency by any person or on its own motion, 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 other appropriate corrective measures.

[31] The Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) provide in part that:

105. A tariff referred to in section 67 of the Act shall include the information required by this Division.

and that

107. (1) Every tariff shall contain

(n) 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,

[32] The terms and conditions of carriage applicable to Air Canada Flight No. AC3967 from Toronto to Edmonton on July 27, 2001 and Air Canada Flight No. AC3955 from Toronto to Edmonton on July 28, 2001 were governed by Air Canada's domestic tariff in effect at that time.

[33] Rule 35(G), Refusal to Transport, provides as follows:

AC may refuse to transport or may remove at any point, any passenger for any of the following:

(G)Whenever a passenger's conduct is disorderly, abusive or violent and his removal or refusal to transport is necessary for the reasonable safety and/or comfort of other passenger[s],

[34] In Decision No. 2-C-A-2001 dated January 3, 2001, the Agency examined Rule 35(G) of Air Canada's domestic tariff in light of subparagraph 107(1)(n)(viii) of the ATR. In its Decision, the Agency found that Air Canada's International Passenger Fares and Rules Tariff, as well as its Canadian Domestic General Rules Tariff, did not contain terms and conditions of carriage clearly stating Air Canada's policy with respect to its authority to impose a sanction on an unruly passenger other than simple refusal to transport or removal from the aircraft. Following the issuance of that Decision, Air Canada published an amended domestic tariff which, in Decision No. 492-C-A-2001 dated September 17, 2001, was deemed by the Agency to be in compliance with the requirements of Decision No. 2-C-A-2001. In the present case, the Agency will only address whether Air Canada complied with its tariff in effect at the time of the incidents.

[35] The Agency notes that Air Canada refused to transport Dr. Diyaljee on July 27, 2001 and again on July 28, 2001. As stated in Decision No. 2-C-A-2001, Rule 35(G) of Air Canada's domestic tariff clearly provides for this specific measure to be taken in particular situations. In Dr. Diyaljee's case, Air Canada has clearly indicated to the Agency and to Dr. Diyaljee, during the course of the pleadings of this complaint, that Dr. Diyaljee is not banned from travelling on Air Canada. As a result, the Agency must consider the refusals to transport Dr. Diyaljee on July 27 and July 28, 2001, as two separate incidents.

July 27, 2001 incident - Analysis and findings

[36] With respect to the July 27, 2001 incident, the Agency is of the opinion that Air Canada refused to transport Dr. Diyaljee as a result of an altercation between Dr. Diyaljee and a flight attendant on Air Canada Flight No. AC3967. Evidence presented by Air Canada, in the form of an incident flight report, supports Air Canada's position that Dr. Diyaljee demonstrated inappropriate behaviour. Dr. Diyaljee does not deny that an incident took place, although he disputes the version supplied by Air Canada. The Agency finds that the preponderance of the evidence supports Air Canada's decision to refuse transportation to Dr. Diyaljee on the night of July 27, 2001.

July 28, 2001 incident - Analysis and findings

[37] With respect to the July 28, 2001 incident, the Agency acknowledges Dr. Diyaljee's contention that he was advised by Air Canada personnel on July 27, 2001 that he would not be travelling on Air Canada that night but could do so in the morning. The Agency also notes that, based on this information, Dr. Diyaljee made a reservation with Air Canada for the following day, on Air Canada Flight No. AC3955, believing there would be no problems. Dr. Diyaljee maintained that when he presented himself at the Air Canada check-in counter on July 28, 2001 he was forthcoming about being refused transportation the previous day. It was only at that time that an Air Canada Customer Service Manager advised Dr. Diyaljee that he was banned from any further flights on Air Canada.

[38] The Agency observes that Air Canada provided conflicting statements regarding the reasons it refused to transport Dr. Diyaljee on July 28, 2001. In its answer to Dr. Diyaljee filed on November 30, 2001, Air Canada stated: "The decision by Air Canada to deny carriage to you on July 28, 2001 was based on your behaviour on July 27, 2001"; however, in Air Canada's answer to the application filed on August 19, 2002, it stated: "Based on his continued attitude the next day, it was determined that [the] complainant could not be carried on this itinerary with Air Canada". By Decision No. LET-C-A-290-2002 dated October 4, 2002, Air Canada was required to explain and/or provide evidence regarding Dr. Diyaljee's continued "abusive" behaviour on July 28, 2001. Air Canada responded that it had no document or written statement to support its claims.

[39] As stated by the Agency in past decisions, a carrier is entitled to refuse carriage to a passenger when the passenger poses a threat to the safety of an aircraft. However, when, as in this case, the Agency receives a compelling application from a complainant which contests a carrier's decision to refuse transportation on the basis that the passenger poses a threat to the safety of an aircraft, a mere statement that a passenger is or was a threat to safety will usually not be considered as sufficient evidence to support the carrier's decision to refuse transportation to the passenger. Evidence such as an affidavit from the flight crew, an incident report or a police report is usually required to substantiate the carrier's contention.

[40] In the present case, given the contradictory statements filed by Air Canada to justify the refusal to transport Dr. Diyaljee, and given that Air Canada has not been able to provide evidence to support its contentions that Dr. Diyaljee's conduct on July 28, 2001 posed a threat to the safety of the aircraft or its passengers within the meaning of Rule 35(G) of Air Canada's domestic tariff, the Agency finds that Air Canada did not apply the terms and conditions of carriage set out in its domestic tariff when it refused transport to Dr. Diyaljee on July 28, 2001.

[41] With reference to Air Canada's refusal to transport Dr. Diyaljee on Flight No. AC3955 on July 28, 2001, Air Canada argued that this was a replacement for Flight No. AC3967 which had been cancelled on July 27, 2001. A review of Air Canada's schedule effective at the time of the incident reveals that Flight No. AC3955 was a regularly scheduled flight which operated on a daily basis at the same time each day. As a consequence, Flight No. AC3955 cannot reasonably be considered to be a replacement for Flight No. AC3967.

[42] Where the Agency finds that, contrary to subsection 67(3) of the CTA, the holder of a domestic licence has applied a term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may, pursuant to section 67.1 of the CTA, order the carrier to take the remedial action set out in paragraphs 67.1(a) to (c).

[43] In this case, the Agency finds that Air Canada should reimburse Dr. Diyaljee for the expenses incurred as a result of Air Canada's wrongful refusal to transport him on July 28, 2001.

[44] The Agency has examined the amounts claimed by Dr. Diyaljee and finds that:

1. Air Canada should reimburse Dr. Diyaljee for the unused portion of his original ticket based on a set calculation in accordance with Rule 35(O) of Air Canada's domestic tariff;
2. Air Canada should reimburse Dr. Diyaljee any expenses incurred as a result of his having to make alternate travel arrangements on Northwest Airlines, Inc. to travel from Toronto to Atlanta and return to Edmonton, due to Air Canada's wrongful refusal to transport him on July 28, 2001;
3. Air Canada should reimburse Dr. Diyaljee the amount of $50 to cover the incidental expenses incurred for the cancellation of a Canada 3000 ticket;
4. Air Canada should reimburse Dr. Diyaljee the amount of $109 incurred in order to have his luggage returned to him from Edmonton to Toronto via Air Canada Cargo due to his being denied transportation on July 28, 2001;
5. Air Canada should reimburse Dr. Diyaljee the amount of $71 for the out-of-pocket expenses incurred to purchase essential toiletries and clothing.

[45] While the Agency finds that the above amount should be reimbursed by Air Canada, the Agency cannot legally compel Air Canada to do so. That is as a result of Air Canada's reorganization, whereby all claims of a financial nature arising out of incidents which occurred prior to April 1, 2003 have now been extinguished. The Agency, therefore, has no jurisdiction to order Air Canada to compensate Dr. Diyaljee as it otherwise would have done. It should also be noted that if Dr. Diyaljee has filed a Proof of Claim in the Companies' Creditors Arrangement Act proceedings, his Claim will be processed in accordance with the Claims Procedure established under that Act.

[46] In respect of the other expenses claimed by Dr. Diyaljee, the Agency has examined them and finds that they are either outside of what the Agency may order pursuant to subsection 67.1 of the CTA or have not been substantiated by Dr. Diyaljee. Accordingly, the Agency dismisses these requests for compensation.

CONCLUSION

[47] In light of the foregoing, the Agency finds that contrary to subsection 67(3) of the CTA, Air Canada, in refusing to transport Dr. Diyaljee on July 28, 2001, did not apply the terms and conditions of carriage set out in its domestic tariff. However, because of the aforementioned extinguishment of all claims of a financial nature against Air Canada, the Agency cannot order Air Canada to compensate Dr. Diyaljee.