Decision No. 9-C-A-2011

January 13, 2011

COMPLAINT by Grigori Kiriakov and Vadym Petunin against Air Canada.

File No. M4120-3/10-50022

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INTRODUCTION

[1] Grigori Kiriakov and Vadym Petunin (complainants) filed a complaint with the Canadian Transportation Agency (Agency) with respect to Air Canada's refusal to transport them from Toronto, Ontario, Canada to Hewanorra, St. Lucia on December 13, 2009, due to alleged unruly behaviour.

ISSUES

[2] The issues are:

1. Did Air Canada refuse to transport Mr. Kiriakov and Mr. Petunin?
2. Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff NTA(A) No. 458 (Tariff) related to refusal to transport, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
3. If Air Canada failed to properly apply its Tariff, should the Agency order the carrier to reimburse the cost of the vacation package and associated expenses incurred by Mr. Kiriakov and Mr. Petunin?

[3] As indicated in the reasons that follow, the Agency finds that:

• Air Canada refused to transport Mr. Kiriakov; however, Mr. Petunin decided of his own volition that he would not board the flight;
• Air Canada properly applied the terms and conditions set out in its Tariff related to refusal to transport, as required by subsection 110(4) of the ATR; and
• As Air Canada properly applied the terms and conditions set out in its Tariff, Mr. Kiriakov and Mr. Petunin should not be reimbursed for the expenses that they incurred.

BACKGROUND AND EVIDENCE

[4] This case turns on the credibility of the parties' recollection of events. To understand the many contradictions between the complainants' and Air Canada's evidence, the Agency has determined that a detailed background is necessary in the circumstances. The Agency will make findings of fact in its analysis.

Events at the check-in kiosk

[5] On December 13, 2009, the complainants were scheduled to travel from Toronto to Hewanorra on Flight AC968.

[6] The complainants state, and it was not contradicted by Air Canada, that they arrived at the Toronto-Lester B. Pearson International Airport more than 3.5 hours prior to their departure and got in the check-in line. After some time, they were approached by an Air Canada employee and were told by that employee to use the check-in kiosk to complete check-in and get their boarding passes. The complainants state that they were unaware of this procedure and that they were also informed that after completing check-in, they had to return to the check-in line. The complainants state that when they used the check-in kiosks, they encountered difficulties. However, when they were finally able to obtain their passes, they realized that they were seated in different rows.

[7] Air Canada's evidence indicates that by the time Mr. Kiriakov approached the check-in counter, a customer sales and service agent, Ms. Lathuillerie, noted that Mr. Kiriakov was apparently already upset due to his experience with the check-in kiosks. She claims that Mr. Kiriakov was creating a scene in the lobby of the check-in area and raising his voice with an Air Canada agent.

Events at the check-in counter

[8] Ms. Lathuillerie was the agent who served the complainants at the check-in counter. The complainants requested that she find seats that were side by side for them, but were told that this could not be done because the flight was overbooked. According to the complainants, when they asked why this was not possible, Ms. Lathuillerie became provocative, yelled at them and behaved extremely defensively. They state that she yelled that registration had started 24 hours ago and that they should have received an email detailing all boarding procedures, to which they responded that they had never received this information and thought that the only option was check-in in person at the airport, three hours prior to the flight.

[9] Air Canada's submission regarding the events differs. According to Air Canada, Mr. Kiriakov was raising his voice when addressing Ms. Lathuillerie and he raised the fact that he and Mr. Petunin were not seated together. Mr. Kiriakov complained aggressively about the check-in procedure, was impatient and refused to co-operate when asked to comply with basic check-in requirements, such as showing his passport for identification purposes and weighing his luggage. In her statement, Ms. Lathuillerie indicates that she tried to explain that seats were not guaranteed until the day of travel, and that Mr. Kiriakov interrupted her on many occasions and continued to act in an irate, belligerent and unco-operative manner towards her.

[10] According to the complainants, they requested to speak to Ms. Lathuillerie's supervisor, to which she responded that although they could speak to her supervisor, they would not travel anywhere that day, and that she guaranteed it. They claim that Ms. Lathuillerie then threw down their documents, among other items, and left.

[11] Ms. Lathuillerie states that in light of the situation, she called the lead agent, Mr. Wong, for assistance.

Interaction with the lead agent

[12] According to the complainants, when Mr. Wong arrived, he was able to process their check-in and they obtained a luggage receipt. The complainants did not provide any details of Mr. Wong's behaviour at this time. However, in his statement, Mr. Wong indicates that when he arrived at the check-in counter, he noted that Mr. Kiriakov was speaking in a raised and angry voice to Ms. Lathuillerie.

First interaction with the customer service manager

[13] The complainants recall that only a few minutes later, when check-in was completed, the customer service manager (CSM), Mr. Macneil, arrived at the desk, aggressively took the processed luggage and started the process of removing them from the flight. They state that he did not ask what the problem was and made repetitive statements regarding his absolute power and authority on the floor as a manager. They add that Mr. Macneil was unwilling to reveal his name, covered his badge and hesitated for a few minutes before providing them his given name.

[14] The complainants assert that Mr. Macneil told them that he did not like their behaviour during the check-in process and that they had offended him and Air Canada. He yelled "Yes or No" twice in a row. The complainants further assert that it was unclear to them what those words applied to, and that when Mr. Kiriakov inquired if he could speak, Mr. Macneil ran to the baggage transporter and retrieved their baggage. They add that they did not respond to his yelling as they did not understand what he wanted and did not want to make things worse. According to the complainants, Mr. Macneil mocked their accent.

[15] It is the complainants' evidence that Mr. Macneil told them that he would not let at least one of them travel that day. They were extremely surprised to hear that they would not travel as they just wanted clarifications. They apologized to him and all other Air Canada personnel.

[16] According to Air Canada, the events did not unfold in this manner. Mr. Macneil overheard the discussion between Mr. Kiriakov and Mr. Wong, which prompted him to intervene. He introduced himself as the CSM on duty and asked the complainants to step aside to resolve the matter. Mr. Macneil asked Mr. Kiriakov what problem the complainants had encountered during the check-in procedure but Mr. Kiriakov refused to answer.

[17] Mr. Macneil states that at no time did he raise his voice towards Mr. Kiriakov. However, he points out that Mr. Kiriakov maintained his aggressive and unco-operative attitude and refused to respond to his questions, and claims that Mr. Kiriakov ranted about the competency of Air Canada's employees, swore, and whispered negative comments under his breath. Due to Mr. Kiriakov's behaviour, the situation escalated into one in which his aggressive attitude increased and he was impossible to satisfy.

[18] Air Canada's evidence sets out that Mr. Macneil explained to Mr. Kiriakov that he would be refused boarding if he could not confirm that he would co-operate with the crew members. Mr. Kiriakov did not confirm that he would act reasonably once onboard the flight, even though Mr. Petunin tried to convince him to co-operate. Mr. Kiriakov was asked three times to give assurances that he would co-operate and not cause a problem on the flight, after which Mr. Macneil refused him boarding. Mr. Macneil states that he believed that there was a serious possibility that Mr. Kiriakov was going to continue to behave belligerently and not listen to the crew members' instructions, and thus disrupt a crew member in the performance of their duties aboard the aircraft.

[19] According to Mr. Macneil, when he communicated the refusal to board to Mr. Kiriakov, he stated that it only applied to Mr. Kiriakov and, as such, Mr. Petunin decided on his own volition not to board the flight.

Second interaction with the CSM

[20] The complainants state that they were frustrated. They tried to rectify the situation by contacting other Air Canada employees in the airport; however, no other employees were willing to act in contradiction of Mr. Macneil. Their evidence, as submitted, claims that they asked another Air Canada manager what they should do in this situation and that the manager suggested that they speak with Mr. Macneil and ask him to reconsider his decision. Thus, they contacted him again. According to Mr. Kiriakov, they apologized during this second interaction; however, Mr. Macneil said that they had to leave the airport, otherwise he would call the police. Mr. Kiriakov states that Mr. Macneil was extremely angry, and was frowning and flaring his nostrils. According to the complainants, they then stated that they did not mind if Mr. Macneil called the police, to which he responded that Mr. Petunin could travel.

[21] As for Mr. Macneil's recollection of the events, he states that Mr. Petunin tried to assure him that Mr. Kiriakov would not cause any problem once onboard the aircraft. Mr. Macneil could not accept Mr. Petunin's assurances as at no point during this conversation did Mr. Kiriakov confirm that he would co-operate once onboard the aircraft.

[22] Later that day, the complainants purchased tickets from American Airlines, Inc. and travelled to St. Lucia with an overnight stopover in Miami.

RELEVANT TARIFF AND STATUTORY EXTRACTS

[23] The extracts relevant to this Decision are set out in the Appendix.

SUBMISSIONS

Complainants' arguments and claim

[24] The complainants challenge the assertion that they exhibited unruly behaviour. They state that no agent ever tried to defuse the situation.

[25] According to the complainants, it was obvious that Mr. Macneil treated them in a discriminatory manner by mocking their accent. They add that Mr. Macneil did not try to be clear and tried to confuse them with his words and language.

[26] The complainants are seeking a total reimbursement of $5,798.44, which accounts for the cost of the vacation package purchased from Air Canada and other expenses related to their one-way trip from Toronto to St. Lucia. This amount takes into consideration a sum of $559.67, which was previously reimbursed by Air Canada to cover the cost of a one-way ticket and compensation for a hotel room downgrade. They consider the compensation provided by Air Canada to be inadequate.

Air Canada's arguments

[27] According to Air Canada, Mr. Macneil's statement and the passenger name record (PNR) indicate that Mr. Petunin chose not to travel.

[28] As for Mr. Kiriakov, Air Canada submits that it was justified in denying him boarding in accordance with Rule 25 of its Tariff. As set out in this Rule, Air Canada has reasonable discretion in taking the decision it took as it was dictated by safety concerns. In this case, Mr. Macneil assessed that, if permitted boarding, Mr. Kiriakov could disrupt the safety of Air Canada's operations and the comfort and safety of other passengers and the crew, and interfere with a crew member in the performance of their duties aboard the aircraft.

[29] Air Canada submits that previous Agency Decisions have determined that a carrier's refusal to carry a passenger who exhibited prohibited conduct was justified. Air Canada further submits that the onus is on the passenger to establish, on a balance of probabilities, that the carrier failed to properly apply the terms and conditions, and that previous Agency Decisions determined that by submitting contradictory evidence, a passenger failed to meet their burden of proof of demonstrating that the carrier acted in a manner inconsistent with its tariff.

[30] Air Canada explains that its imminent implementation of the Regulations Amending the Canadian Aviation Regulations, SOR/2009-90, which prohibits carriers from transporting passengers if, at the time of boarding, the actions or statements of the person indicate that the person may present a safety risk, was a further consideration in the refusal to board Mr. Kiriakov.

[31] Air Canada asserts that the remedies sought by the complainants cannot be granted by the Agency, as the Agency's jurisdiction is limited to the application of the Tariff, which establishes that the carrier's obligation in the case of refusal to carry is the reimbursement of the cost of the unused portion of the passenger's ticket. Air Canada points out that it refunded Mr. Kiriakov for the unused portion of his ticket from Toronto to St. Lucia and that it should not be found liable for the unused portion of Mr. Petunin's ticket, nor for expenses incurred as a result of alternate travel plans, as Mr. Petunin voluntarily chose not to use the ticket.

Complainants' reply

[32] The complainants state that Air Canada's reference to its Tariff and regulations is irrelevant to the situation as there was no unruly behaviour. They point out that in their 20 years of global travel experience, this was the first time that they have experienced such a situation.

[33] The complainants maintain that all the negative comments submitted by Air Canada are untrue, as they spoke clearly regarding the service issues they were having, that they were polite and that they never raised their voices.

[34] The complainants submit that the removal of one from the flight would have made it impossible for the other to travel, considering that they were travelling together. They maintain that they have no idea why Mr. Macneil decided to change his initial decision to refuse boarding to both of them, or why he later decided that one could go, or why he chose Mr. Petunin.

[35] The complainants submit that their request for compensation is reasonable because Air Canada did not provide the service for which they paid. They point out that their vacation was completely ruined and that they are currently experiencing health problems due to stress.

ANALYSIS AND FINDINGS

Principles applied by the Agency

[36] When a complaint is filed with the Agency, the onus is on the complainant to establish, on a balance of probabilities, that the air carrier has failed to apply, or has inconsistently applied, the terms and conditions of carriage found in the applicable tariff.

[37] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings. The Agency has also reviewed the terms and conditions of carriage specified in Air Canada's Tariff applicable to its refusal to transport passengers and its liability in such situations.

1. Did Air Canada refuse to transport Mr. Kiriakov and Mr. Petunin?

[38] Pursuant to Rule 25 of the Tariff, Air Canada has the right to refuse to transport a passenger when the behaviour exhibited by the passenger falls within the carrier's list of "Prohibited Conduct". The Agency must determine whether Air Canada refused to transport the complainants as there seems to be confusion in the parties' submissions as to exactly when the refusal occurred and whether Air Canada refused to transport Mr. Petunin.

[39] The uncontested evidence presented by the complainants establishes that Ms. Lathuillerie, at the check-in counter, informed the complainants that she would guarantee that both of them would not travel on that day. It appears that, at that time, Air Canada refused to transport both complainants. However, the subsequent evidence shows that Air Canada only refused to transport Mr. Kiriakov. Indeed, Mr. Macneil states that the refusal to board the aircraft only applied to Mr. Kiriakov and, as such, Mr. Petunin was free to take the flight. The PNR supports this statement.

[40] Moreover, the complainants admit that while Mr. Macneil eventually told them that Mr. Petunin was permitted to travel, they state that the removal of one party made it impossible for the other to travel.

[41] The Agency finds that Mr. Macneil confirmed Ms. Lathuillerie's decision to refuse boarding to Mr. Kiriakov and made the final decision that Mr. Petunin could travel.

[42] The Agency notes that both parties agree that Mr. Kiriakov was refused boarding. This is an uncontested fact. He was refused boarding both by Ms. Lathuillerie and Mr. Macneil. Accordingly, the Agency finds that Air Canada refused boarding to Mr. Kiriakov.

[43] As for Mr. Petunin, although Air Canada refused to transport him, it changed its decision. In light of the evidence and the complainants' admission, the Agency finds that Air Canada ultimately did not refuse boarding to Mr. Petunin; rather that Mr. Petunin decided of his own volition that he would not board the flight, even though Mr. Macneil advised that the refusal to board only applied to Mr. Kiriakov.

2. Did Air Canada properly apply the terms and conditions set out in its Tariff related to refusal to transport, as required by subsection 110(4) of the ATR?

[44] The Agency examines consumer complaints by ensuring that air service operators comply with the provisions of the Canada Transportation Act, S.C., 1996, c. 10, as amended, as well as those of its attendant regulations, including the ATR. The Agency must also ensure that air carriers abide by the terms and conditions of their respective tariffs.

[45] The Agency examined the Tariff and notes that Rule 25 stipulates that the carrier may refuse to carry a passenger for safety reasons. The prohibited conduct which Air Canada attributes to Mr. Kiriakov is described in this Rule. Mr. Kiriakov denies exhibiting abusive, intimidating and disorderly behaviour.

[46] The Agency notes that there are many contradictions with respect to the facts relating to the incident. When contradictory versions of events are presented by parties, the Agency has previously ruled, in Decision Nos. 65-C-A-2001 and 57-C-A-2010, that the burden falls on the complainant to establish that their version is the most likely to have occurred. The Agency, in considering the evidence, must determine which of the different versions is more probable, based on the preponderance of evidence.

[47] In determining which version is more probable, the Agency is guided by Faryna v. Chorny, [1951] B.C.J. No. 152 (B.C.C.A.) (QL); [1952] 2 D.L.R. 354, where the test to be applied when credibility is at issue is well-established. The following passage from Faryna v. Chorny, at p. 357, sets out the test to apply as follows:

[...] The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions [...]

[48] With regard to the events that occurred at the check-in desk, the complainants state that upon inquiring why seats together on the flight were not available, Ms. Lathuillerie yelled at them and behaved extremely defensively. They maintain that they spoke clearly regarding the service issues they were having, were polite and never raised their voices. The complainants state that after asking to see Ms. Lathuillerie's supervisor, she became furious. However, Ms. Lathuillerie states that she observed Mr. Kiriakov before he entered the check-in queue, due to the scene he created in the lobby, and that he continued to act in a belligerent manner towards her upon arriving at her check-in counter. She indicates that, as such, she had no choice but to call Mr. Wong for assistance. Ms. Lathuillerie contends that Mr. Kiriakov refused to co-operate when asked to comply with basic check-in requirements.

[49] Regarding the events involving the complainants and Mr. Macneil, the complainants affirm that Mr. Macneil arrived at the desk and aggressively took the processed luggage and started the process of removing them from the flight. Mr. Macneil made repetitive statements about his absolute power and authority on the floor as a manager. Mr. Macneil did not want to reveal his name, covered his badge and hesitated for a few minutes before providing the complainants his given name.

[50] Mr. Macneil does not recall the events in this manner. He states that he overheard the discussion between Mr. Kiriakov and Mr. Wong, which prompted him to intervene. He introduced himself as the CSM on duty and asked the complainants to step aside to resolve the matter. Mr. Macneil asked them what problem they encountered during the check-in procedure. According to Mr. Macneil, Mr. Kiriakov refused to answer. At no time did Mr. Macneil raise his voice towards Mr. Kiriakov. Mr. Macneil further contends that Mr. Kiriakov maintained his aggressive and unco‑operative attitude and did not respond to his questions. He adds that Mr. Kiriakov ranted about the competency of Air Canada's employees, swore, and whispered negative comments under his breath.

[51] The Agency has reviewed the evidence and finds that Air Canada's version of the events is more probable than the complainants' version. The complainants state that when Mr. Macneil told them that he would not let at least one of them travel that day, they were extremely surprised to hear that they would not travel as they just wanted clarifications. They also apologized to him and all other Air Canada personnel. The Agency finds this to be unlikely as the complainants were told by Ms. Lathuillerie that they would not travel. It is contrary to common sense that the refusal to transport communicated by Mr. Macneil would surprise them. Furthermore, if Mr. Kiriakov had been polite and had not raised his voice, there would have been no reason for an apology.

[52] Moreover, Air Canada presented written statements from three of its employees, who relate that Mr. Kiriakov was belligerent in his interactions with Air Canada's employees. The carrier also provided a copy of Mr. Petunin and Mr. Kiriakov's PNR, which indicates that Mr. Kiriakov was belligerent to three agents for no apparent reason. Based on the consistency of the statements filed by Air Canada, along with the information contained in the PNR, the Agency finds that Air Canada's evidence that Mr. Kiriakov was unco-operative with its agents is more persuasive than the evidence presented by the complainants, which is that they were polite and never raised their voices.

[53] On balance, in light of the evidence, the Agency finds that Mr. Kiriakov engaged in abusive and offensive behaviour. The Agency is satisfied that Air Canada was justified in refusing to transport Mr. Kiriakov, and that, as such, the carrier properly applied its terms and conditions of carriage governing refusal to transport. Consequently, the Agency does not conclude that Air Canada failed to exercise its reasonable discretion, as required by its Tariff, when it refused to transport Mr. Kiriakov on Flight AC968 on December 13, 2009.

[54] With respect to the complainants' allegations that Mr. Macneil's actions were motivated by discrimination and that he mocked their accent, uncontested evidence was presented by the complainants showing that Mr. Macneil mocked their accent. Absent evidence from Air Canada contradicting the complainants' statement, the Agency accepts the complainants' evidence on this point. The Agency finds that such behaviour from customer service staff is unacceptable.

[55] The Agency suggests to Air Canada that its agents be reminded to practice good customer service principles and courteous treatment of passengers.

3. Should the Agency order the carrier to reimburse any of the remedies requested by the complainants?

[56] In view of the fact that Mr. Petunin chose not to travel, the Agency finds that Air Canada should not be ordered to reimburse any of the remedies requested by Mr. Petunin.

[57] Section III of Rule 25 of Air Canada's Tariff on Recourse of the Passenger/Limitation of Liability provides that the carrier's liability in the case of refusal to carry a passenger 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, as provided in Rule 90(D).

[58] The Agency notes that, in accordance with section III of Rule 25, Air Canada reimbursed Mr. Kiriakov in the amount of $254.67 for the unused portion of his ticket, pursuant to its Tariff.

[59] As the Agency found that Air Canada properly applied the terms and conditions of its Tariff when it refused to transport Mr. Kiriakov, the Agency finds that Air Canada should not be ordered to reimburse Mr. Kiriakov for costs associated with the vacation package and other expenses that he incurred.

CONCLUSION

[60] In light of the above findings, the Agency concludes that Air Canada did not contravene the terms and conditions of its Tariff, and the applicable regulatory requirements.

[61] The Agency also concludes, based on the evidence submitted, that the complainants have not demonstrated on a balance of probabilities that Air Canada was not justified in denying Mr. Kiriakov boarding on Flight AC968 on December 13, 2009.

[62] Consequently, the Agency dismisses the complaint.

Members

• Jean-Denis Pelletier, P. Eng.
• J. Mark MacKeigan

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Appendix

RELEVANT TARIFF AND STATUTORY EXTRACTS

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

110(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.

Air Canada's International Passenger Rules and Fares Tariff NTA(A) No. 458

Rule 25 REFUSAL TO TRANSPORT – LIMITATIONS OF CARRIER

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's employees; the safety of the aircraft; the unhindered performance of the crew members in their duty aboard the aircraft; or the safe and adequate flight operations:

[…]

(2) the person's conduct, or condition is or has been known to be abusive, offensive, threatening, intimidating, violent, or otherwise disorderly, and in the reasonable judgment of a responsible carrier employee there is a possibility that such passenger could cause disruption or serious impairment to the physical comfort or safety of other passengers or carrier's employees, interfere with a crew member in the performance of his duties aboard carrier's aircraft, or otherwise jeopardize safe and adequate flight operations;

[…]

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 21 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, as provided in rule 90(D).

[…]