Decision No. 88-C-A-2019

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Flair Airlines regarding its refusal to transport them from Toronto, Ontario, to Vancouver, British Columbia, on December 20, 2018. The applicant allegedly did not have the required government-issued identification at the boarding gate in Toronto and was refused transportation as per Rule 23 of Flair Airlines’ Domestic Scheduled Passenger Tariff, CTA(A) No. 2 (Tariff). The applicant seeks compensation in the amount of CAD 1,179.44.

[2] The Agency will address the following issue:

Did Flair Airlines properly apply the terms and conditions set out in Rule 23 of its Tariff, as required by subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)? If not, what remedy, if any, is available to the applicant?

[3] For the reasons outlined below, the Agency finds that Flair Airlines did not properly apply the terms and conditions set out in Rule 23 of its Tariff, as required by subsection 67(3) of the CTA. Pursuant to paragraph 67.1(b) of the CTA, the Agency orders Flair Airlines to reimburse the applicant the amount of CAD 651.44, which includes the cost of the flight, the seat selection fee and the additional fee. Flair Airlines is to pay this amount to the applicant as soon as possible and no later than January 16, 2020.

BACKGROUND

[4] The applicant had a ticket to travel from Toronto to Vancouver, via Edmonton, Alberta, on December 20, 2018, departing at 7:00 p.m. and arriving at 11:05 p.m. The applicant was refused transportation on Flair Airlines Flight No. 463 for allegedly not having the required government-issued identification at the boarding gate in Toronto. The applicant decided to take ground transportation back to Vancouver.

[5] The applicant seeks a full reimbursement of CAD 594.94 for their flight from Toronto to Vancouver, which includes a seat selection fee; CAD 56.50 for Flair Airlines’ additional fee charged on December 20, 2019; and CAD 528.00 for the costs associated with driving back to Vancouver, including gas, food and hotels; for a total amount of CAD 1,179.44.

THE LAW AND RELEVANT TARIFF PROVISIONS

[6] The relevant provisions of Flair Airlines’ Tariff, the Air Transportation Regulations, SOR/88-58, as amended (ATR) and the CTA are set out in the appendix.

POSITIONS OF THE PARTIES AND FINDING OF FACTS

The applicant

[7] The applicant claims to have presented two government-issued identification cards (without photo) at the boarding gate, namely their Ontario birth certificate and British Columbia (BC) Care Card. The applicant filed their birth certificate which shows their name, date of birth and gender. The applicant claims to have used this identification when they received a boarding pass, checked their baggage, completed their seat selection and went through security.

[8] The applicant states that the Flair Airlines representative then requested government‑issued photo identification and that they presented a photocopy of their British Columbia identification card. The applicant argues that the representative at the boarding gate was unaware that passengers could travel domestically with government‑issued identification cards (without photo). The applicant adds that the Flair Airlines representative informed them that they did not have the proper identification and did not permit them to board the flight. The applicant further adds that they were charged CAD 56.60, which they believe to be a no-show fee.

[9] The applicant claims that after being refused transportation, Flair Airlines apologized and said that they could take the next available flight, which was scheduled to depart 12 hours later, at 7:00 a.m. on December 21, 2018. The applicant states that they felt that there was no choice but to find other means to reach their destination as they did not trust that Flair Airlines would not refuse to transport them again. The applicant adds that their friend, Jimmy Higbee, drove them from Toronto to Vancouver. Jimmy Higbee provided a statement that confirmed receiving payment from the applicant for costs associated with the drive to Vancouver, including two nights in a hotel, food and gas.

Flair Airlines

[10] Flair Airlines provided an answer and included notes from its reservation system, Ameliares, from December 20, 2018, to January 2, 2019. In its answer, it mentions three different contradicting possibilities of which pieces of identification were presented by the applicant, as follows:

(1)  a birth certificate and a photocopy of a government-issued identification card (without picture);

(2)  a birth certificate and a photocopy of a non-government-issued identification card;

(3)  a birth certificate, a photocopy of a health card or driver’s licence (the personnel involved cannot recall) that was expired, and a non-
      government identification card.

[11] Flair Airlines states that it cannot identify the representative that refused transportation to the applicant and thus cannot provide particulars. Flair Airlines claims that it cannot confirm which identification was presented by the applicant at the check-in counter when they received their boarding pass, and whether it was the same as what they presented at the boarding gate, but told the applicant that it could not override the decision, and sent the matter to Automated Passport Control (APC) to further investigate the matter.

[12] Flair Airlines did not comment on reprotecting the applicant on another flight or on the additional fee of CAD 56.50 charged to the applicant on December 20, 2018.

Finding of facts

[13] Both parties agree that the applicant was refused transportation. They both agree that the applicant was told that they did not have the proper government-issued identification at the boarding gate.

ANALYSIS AND DETERMINATIONS

Identification presented by the applicant at the boarding gate in Toronto

[14] The Agency has previously ruled, in Decision No. 426-C-A-2013 (Gibbins v. Société Air France), that when contradictory versions of events are presented by parties, the burden of proof falls on the applicant to establish that their version is most likely to have occurred. The Agency must determine which of the different versions is more probable, based on the preponderance of evidence.

[15] The evidence presented by Flair Airlines is unclear and inconsistent. The carrier was unable to identify the representative who refused transportation to the applicant, nor which or how many identification cards were presented by the applicant at the boarding gate on December 20, 2018. As indicated above, Flair Airlines’ submission provides three different contradicting possibilities of what was presented as identification by the applicant at the boarding gate. It is not clear if the applicant was reprotected on another flight the following day based on Flair Airlines’ answer.

[16] Furthermore, Flair Airlines also mentions that the photocopy of the identification card that the applicant presented at the boarding gate was expired; however, it does not know if it was the health card or the driver’s licence. Moreover, the carrier contradicts itself and also states that the health card was not expired. Based on the evidence, the photocopy of the BC Care Card shows no expiry date.

[17] The applicant provided the Agency with photocopy evidence of what they claim to have presented at the boarding gate, which was two government-issued identification cards (without photo), namely their Ontario birth certificate and their BC Care Card. The applicant’s version of events, in regards to the presentation of these two pieces of identification, is consistent throughout their application and reply. On this basis and given the many contradictions in Flair Airlines’ answer, the Agency finds that the applicant’s version of what was presented at the boarding gate is more probable, based on the preponderance of evidence.

Requirements of Rule 23 of Flair Airlines’ Tariff

[18] Rule 23(A)3 of Flair Airlines’ Tariff states that the carrier will refuse to transport a passenger at any point when the passenger refuses a request to produce government‑issued, photo identification, to demonstrate proof of identity. The “Note” below Rule 23(A)3 provides as follows:

….

The Carrier is also required to screen each passenger who appears to be 18 years of age or older by comparing the passenger, and in particular the passenger’s entire face, against one piece of government-issued photo identificationthat shows the passenger’s name, date of birth and gender; or two pieces (without photo) of government-issued identification at least one of which shows the passenger’s name, date of birth and gender. [emphasis added]

[19] There is an apparent inconsistency in the Tariff’s statement that a passenger can be refused transportation for failure to present photo identification when it is read in light of the Note which suggests that, as denoted by the “or”, an alternative to photo identification is two pieces (without photo) of government-issued identification at least one of which shows the passenger’s name, date of birth and gender.

[20] Flair Airlines has argued that its position that photo identification is required for domestic air travel is consistent with the Secure Air Travel Regulations, SOR/2015-181 (Regulations) under which Transport Canada regulates the types of documents that are required for domestic travel. The Agency notes that subsection 3(1) of the Regulations provides as follows:

3(1) An air carrier must accept only the following identification to verify the identity of a passenger for a domestic flight:

(a)  one piece of valid photo identification that is issued by a government authority and that shows the passenger’s name, date of
      birth and gender;

(b)  two pieces of valid identification that are issued by a government authority, at least one of which shows the passenger’s name,
      date of birth and gender; or

(c)  a restricted area identity card, as defined in section 3 of the Canadian Aviation Security Regulations, 2012.

[21] While the Regulations state that photo identification must be accepted by an air carrier to verify the identity of a passenger for a domestic flight, the Regulations point to two alternatives to photo identification. One of those alternatives is the provision of two pieces of valid identification that are issued by a government authority, at least one of which shows the passenger’s name, date of birth and gender. Accordingly, the Agency rejects Flair Airlines’ argument that a strict requirement for photo identification originates in the Regulations.

[22] As per subparagraph 107(1)(n)(viii) of the ATR, the terms and conditions in the Tariff must be clearly stated. In Decision No. 2-C-A-2001 (Mr. H. v. Air Canada), the Agency formulated the test respecting the carrier’s obligations of tariff clarity as follows:

... the Agency is of the opinion that an air carrier’s tariff meets its obligations of clarity when, in the opinion of a reasonable person, the rights and obligations of both the carrier and passengers are stated in such a way as to exclude any reasonable doubt, ambiguity or uncertain meaning.

[23] The Note below Rule 23(A)3 in Flair Airlines’ Tariff suggests that the alternative stated under paragraph 3(1)(b) of the Regulations (i.e., the provision of two pieces of valid government-issued identification, at least one of which shows the passenger’s name, date of birth and gender, would be acceptable to Flair Airlines as identification for a domestic flight. Yet, the text of Rule 23(A)3 of Flair Airlines’ Tariff allows the carrier to refuse to transport a passenger who has failed to present photo identification. This contradiction is confusing. As a result, the Agency finds that it is unclear to passengers and to its personnel what is required and, as such, that Flair Airlines’ Tariff does not meet its obligations of clarity.

[24] The applicant was wrongfully refused transportation in accordance with Rule 23 of Flair Airlines’ Tariff, when the applicant presented two pieces of government‑issued identification (without photo). Furthermore, because no portion of a ticket had been used as per Rule 26(B)2(c) of its Tariff, the Agency finds that it is appropriate to order Flair Airlines to provide an involuntary refund to the applicant in an amount equal to the fare and charges paid, in this case, the ticket and seat selection fee of CAD 594.94.

[25] Section 67.1 of the CTA provides, in part, that if the Agency finds that the holder of a domestic licence failed to apply the terms or conditions of carriage set out in its tariffs, the Agency may order the licensee to compensate any person adversely affected for any expenses they incurred as a result of the licensee’s failure to apply their tariff and take any other appropriate corrective measures. The Agency finds that it is appropriate to require Flair Airlines to reimburse the applicant the amount of CAD 56.50 for the cost of the additional fee charged on December 20, 2019, when they were refused transportation.

[26] As the Agency has ordered Flair Airlines to reimburse the cost of the applicant’s unused ticket, it will not order reimbursement of the cost of the applicant’s alternative transportation, particularly given that it was less expensive than the original ticket.

CONCLUSION

[27] The Agency finds that Rule 23 of Flair Airlines’ Tariff is unclear and inconsistent and is therefore in violation of subparagraph 107(1)(n)(viii) of the ATR, which requires the air carrier’s policy regarding refusal to transport to be clearly stated. The Agency orders Flair Airlines to review and update Rule 23 of its Tariff in order to remove inconsistencies.

[28] Furthermore, the Agency finds that Flair Airlines did not properly apply the terms and conditions set out in Rule 23 of its Tariff, as required by subsection 67(3) of the CTA, when it refused to transport the applicant despite the fact that they presented the carrier with two pieces (without photo) of government-issued identification, at least one of which showed the applicant’s name, date of birth and gender.

ORDER

Based on the foregoing, pursuant to section 67.1(b) of the CTA, the Agency orders Flair Airlines to reimburse the applicant the amount of CAD 651.44. Flair Airlines is to pay this amount to the applicant as soon as possible and no later than January 16, 2020.

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APPENDIX TO DECISION NO. 88-C-A-2019

Flair Airlines’ Domestic Scheduled Passenger Tariff, CTA(A), No. 2

RULE 23: REFUSAL TO TRANSPORT

(A) Removal of passenger

Carrier will refuse to transport, or will remove any passenger at any point for any of the following reasons:

….

3. Proof of Identity/Age:
(a)  When the passenger refuses a request to produce government-issued, photo identification, to demonstrate proof of identity.

Note: Carrier is obliged to screen each passenger by looking at the passenger, and in particular the passenger’s entire face, to determine if they appear to be 18 years of age or older.

The Carrier is also required to screen each passenger who appears to be 18 years of age or older by comparing the passenger, and in particular the passenger’s entire face, against one piece of government-issued photo identification that shows the passenger’s name, date of birth and gender; or two pieces (without photo) of government-issued identification at least one of which shows the passenger’s name, date of birth and gender.

….

RULE 26: REFUNDS

….

(B) Involuntary Refunds

1. Involuntary refunds are not subject to any restrictions contained in the applicable fare rule.

        2. The amount of the involuntary refund will be as follows:

….

(c) If, due to a schedule irregularity not within the carrier’s control or a refusal to transport in accordance with the tariff, no portion of a ticket has been used, the amount of refund will be equal to the fare and charges paid; or

….

         3. Involuntary refund of tickets shall be made in the currency used to issue the ticket and in the country where the ticket was purchased,
             whenever possible. However, Canadian dollar refunds or refunds in the currency of the country where the involuntary refund is necessary
             may be made at the request of the passenger provided a refund in such currency is not prohibited by local government foreign exchange
             control regulations.

….

Air Transportation Regulations, SOR/88-58, as amended

Contents of Tariffs

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,

….

Canada Transportation Act, S.C., 1996, c. 10, as amended

The Agency’s jurisdiction in matters respecting the applicability of domestic tariffs is set out in section 67.1 of the CTA:

If, on complaint in writing to the Agency by any person, 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.