Decision No. 81-C-A-2020

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against the respondent concerning its refusal to transport the applicant on Flight No. AC006 from Narita International Airport, in Tokyo, Japan, to Montréal, Quebec, on August 10, 2018, and on Flight No. AC002 from Haneda Airport, Tokyo to Toronto, Ontario, and on Flight No. AC834 from Toronto, to Montréal, on August 11, 2018.

[2] The applicant seeks a refund of CAD 2,034.91 for the original ticket; CAD 156.53 for compensation for ground transportation fees between the airports and their home; CAD 147.06 for hotel accommodation for one night; and CAD 2,000.00 as denied boarding compensation for the two incidents.

[3] The Agency will address the following issues:

1. Did the respondent properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada,NTA(A) No. 458 (Tariff) relating to refusal to transport as required by subsection 110(4) of the ATR?
2. If the respondent did not properly apply its Tariff, what remedy, if any, should be ordered?

[4] For the reasons set out below, the Agency finds that the respondent properly applied the terms and conditions set out in Rules 75 and 100 of its Tariff. Therefore, the Agency dismisses the application.

BACKGROUND

[5] On August 10, 2018, the applicant was refused transportation on Flight No. AC006 by the respondent at Narita International Airport, departing from Tokyo and arriving in Montréal. Following this refusal, the applicant’s travel agent rebooked them on Flight No. AC002, departing on August 11, 2018, from Haneda Airport, Tokyo, and arriving in Toronto, and then on Flight No. AC834 from Toronto to Montréal. The applicant spent one night at a hotel near the Haneda Airport. On August 11, 2018, the respondent refused them transportation on Flight No. AC002.

THE LAW AND RELEVANT TARIFF PROVISIONS

[6] Subsection 110(4) of the ATR requires that an air carrier operating an international service apply the terms and conditions of carriage set out in its tariff.

[7] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to:

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

(b) pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions set out in the tariff.

[8] The relevant provisions of the Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicant

[9] The applicant claims that both times they were refused transportation by the respondent, they were provided no explanation for the refusal. The applicant is of the opinion that these refusals constitute denied boarding.

[10] The applicant states that on August 12, 2018, the day after their rebooked flight, they became aware of a note on the respondent’s website indicating that their booking had been cancelled. They then booked a flight with another airline to Montréal departing on August 14, 2018.

The respondent

[11] The respondent asserts that the applicant was not denied boarding, which, as defined in Rule 90 of its Tariff, occurs when the number of seats available on a flight is less than the number of passengers who hold confirmed reservations, have valid transportation documentation, have checked in by the required time and have presented themselves at the boarding gate at the required time.

[12] The respondent states that the applicant was refused transportation on the basis of a travel ban put in place following an incident of significant disruptive behaviour by the applicant that occurred on Flight No. AC003, from Vancouver, British Columbia, to Tokyo, on July 8, 2010.

[13] The respondent filed a letter that it claims was hand-delivered to the applicant on July 13, 2010, advising them that it had put into place a travel ban based on the incident. The letter states the reasons for the ban, including the relevant provisions of the Tariff, and advises the applicant that they may submit in writing representations that they no longer pose a threat to the safety and comfort of passengers and crew or the safe operation of its aircraft. The respondent submits that the applicant did not respond to this letter and that, therefore, the applicant has not demonstrated to its satisfaction that they no longer constitute a risk to the safety and comfort of passengers and crew.

[14] Additionally, the respondent states that the travel agent who booked the applicant’s flight on August 11, 2018, could not have been, and was not, aware of the travel ban when the travel agent reissued the applicant’s original ticket.

[15] Further, the respondent filed a copy of the electronic refund record which shows that it refunded the applicant’s credit card for the applicable value of the unused portion of the applicant’s original ticket on November 14, 2019.

The applicant’s reply

[16] The applicant claims that the events during the flight from Vancouver to Tokyo on July 8, 2010, described by the respondent are “fabricated” and that they did not receive the letter regarding the travel ban.

Findings of fact

[17] Although the applicant claims that they never received the letter notifying them of the travel ban, the respondent filed a copy of the letter; therefore, the Agency finds that the letter was delivered to the applicant. The Agency finds that there was an indefinite travel ban in place for the applicant beginning on July 13, 2010.

[18] On the basis of the copy of the electronic refund record filed by the respondent, the Agency finds that the applicant was refunded for the applicable value of the unused portion of their original ticket on November 14, 2019.

ANALYSIS AND DETERMINATIONS

[19] The onus is on the applicant to establish, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.

[20] The applicant asserts that they are entitled to denied boarding compensation. However, the respondent’s refusal to transport the applicant is not the same thing as denied boarding, as defined in Rule 90 of the Tariff. The respondent’s refusal to transport the applicant was because of a travel ban. In light of this, the Agency finds that the applicant is not entitled to denied boarding compensation.

[21] Rule 75 II.(B) provides that the respondent, in the exercise of its reasonable discretion, may refuse to transport a passenger if it determines that a passenger has engaged in prohibited conduct. As an indefinite travel ban for the applicant was in place beginning July 13, 2010, the Agency finds that the respondent properly applied Rule 75 II.(B)(3) when it refused to transport the applicant on Flight No. AC006 on August 10, 2018, and on Flight No. AC002 on August 11, 2018.

[22] Rule 75 III. states that a passenger who is refused transportation for any reason shall be limited to the recovery of the refund value of the unused portion of the ticket subject to the applicable fare rules, as provided in Rule 100(E). Rule 100(E) states that when a ticket is fully unused, the carrier will refund the fare, fees, charges and surcharges paid by the passenger less any applicable cancellation or change fee or penalty. The Agency finds that the respondent properly applied the terms and conditions of Rules 75 III. and 100(E) by refunding the applicant the applicable value of the unused portion of their original ticket.

[23] The Agency finds that the applicant is not entitled to their claimed expenses for transportation to and from the airports and accommodation as the respondent properly applied its Tariff.

CONCLUSION

[24] The Agency dismisses the application.

---

APPENDIX TO DECISION NO. 81-C-A-2020

International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458

RULE 75 – REFUSAL TO TRANSPORT

II. PASSENGER’S CONDUCT – REFUSAL TO TRANSPORT 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 employees; the safety of the aircraft; the unhindered performance of the crew members in their duty aboard the aircraft; or the safe and adequate flight operations:

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

(2) the person’s conduct, or condition is or has been known to be abusive, offensive, threatening, intimidating, violent, or otherwise disorderly, and in reasonable judgement 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 crew member in the performance of his/her duties aboard carrier’s aircraft, or otherwise jeopardize safe and adequate flight operations;

(3) the person’s conduct involves any unusual hazard or risk to self or to other persons (including, in cases of pregnant passengers, unborn children) or to property;

(4) the person fails to observe the instructions of carrier and its employees, including instructions to cease prohibited conduct;

(5) the person is unable/unwilling to sit in the seat with the seatbelt fastened;

…

(12)  the person has resisted or may reasonably be believed to be capable of resisting escorts.

(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 combination of the following sanctions:

(1)  removal of the passenger at any point;

…

(3)  refuse to transport the passenger. The length of such refusals to transport may range from a one-time to an indefinite up to lifetime ban. The length of the refusal period will be in the carrier’s reasonable discretion, and will be for a period commensurate with the nature of the prohibited conduct and until the carrier is satisfied that the passenger no longer constitutes a threat to the safety of other passengers, crew or the aircraft or to the comfort of the other passengers or crew; the unhindered performance of the crew members in their duty aboard the aircraft; or the safe and adequate flight operations. The following conduct will automatically result in an indefinite ban, up to a lifetime ban:

(a)  the person continues to interfere with the performance of a crew member’s duties notwithstanding verbal warnings by the crew to stop such behavior;

(b)  the person injures or subjects to a credible threat of injury a crew member or other passenger;

(c)  the person has a conduct that requires an unscheduled landing and/or the use of restraints such as ties or handcuffs;

….

III. RECOURSE OF THE PASSENGER/LIMITATION OF LIABILITY

Carrier’s liability in case of refusal to carry a passenger for a specific flight or removal of a passenger en route for any reason specified in the foregoing paragraphs or in Rule … 75 shall be limited to the recovery of the refund value of the unused portion of passenger’s ticket from the carrier so refusing or removing, if any and subject to applicable fare rule, as provided in the General Refund section of rule 100 (Refunds).

A person who is refused carriage for an indefinite period of time, up to a lifetime ban, or to whom a probating notice is served may provide to the carrier, in writing, the reasons why he/she no longer poses a threat to the safety or comfort of passengers or crew, or to the safety of the aircraft. Such document may be sent to the address provided in the refusal to carry notice or the notice of probation.

Carrier will respond to the passenger within a reasonable period of time providing carrier’s assessment as to the need or not to prolong the ban or to maintain the probation period.

RULE 90 – DENIED BOARDING

(A) When the AC is unable to provide previously confirmed space due to there being more passengers holding confirmed reservations and tickets than for which there are available seats on a flight, AC shall implement the provisions of this rule, except for employee and industry discounted travel, unless applicable law provides otherwise.…

….

(D) TRANSPORTATION FOR PASSENGERS DENIED BOARDING

…

(1)  A passenger will be considered to have been denied boarding when

(a) The passenger presented himself for carriage in accordance with this tariff:
Having complied fully with AC applicable reservation, ticketing, Immigration formalities, check-in and boarding within the time limits at the location set out in Rule 70-check-in and boarding time limits; and

(b) It must not have been possible to accommodate the passenger on the flight on which he held confirmed reservations and the flight must have departed without him.

….

RULE 100 – REFUND

…. 

(E) GENERAL REFUNDS

(1) The term “General Refund” (sometimes referred to as “Voluntary Refund”) for the purposes of this paragraph, shall mean any refund of a ticket or portion thereof other than Carrier-Caused refund … which includes but not limited to circumstances that are not within the airline’s control, such as situations described in … rule 75 (refusal to Transport) ….

(2) Amount of general refund

The amount of general refunds will be as follows:

(a)  When ticket is fully unused, the amount of refund will be the fare, fees, charges and surcharges paid less any applicable cancellation/change fee or penalty set out in the applicable fare rules.

….