Decision No. 81-C-A-2017

SUMMARY

[1] Zahra Dehghani filed an application with the Canadian Transportation Agency (Agency) against Sunwing with respect to its refusal to transport her from Calgary, Alberta, Canada to Holguin, Cuba on December 15, 2016.

[2] Ms. Dehghani is seeking reimbursement from Sunwing for various expenses totaling CAN$1,023.50. She has provided full particulars of her claims, the largest single item of which is $719 for a WestJet flight from Edmonton, Alberta to Holguin.

[3] Sunwing submits that it refused to transport Ms. Dehghani as she did not present the required identity documents as set by Cuba for entry into Cuba.

[4] The Agency will address the following issues:

1. Did Sunwing properly apply the terms and conditions set out in its Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods between Points in Canada on the One Hand and Points Outside Canada on the Other Hand, CTA(A) No. 3 (Tariff) with regard to proper travel documents required to be presented by the passenger, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended when it refused to transport Ms. Dehghani?
2. If Sunwing did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Ms. Dehghani?

[5] For the reasons set out below, the Agency finds that Sunwing properly applied the terms and conditions set out in its Tariff when it refused to transport Ms. Dehghani from Calgary to Holguin. Therefore, the Agency dismisses the application.

BACKGROUND

[6] Ms. Dehghani is an Iranian citizen residing in Canada. On December 15, 2016, Ms. Dehghani presented herself at the Calgary International Airport boarding gate for the flight that she was scheduled to take to Holguin. However, Sunwing refused to transport her, alleging that she did not have all the proper travel documents.

THE LAW

[7] The statutory and Tariff extracts, and excerpt from the Travel Information Manual (TIM) relevant to this matter are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Ms. Dehghani’s position

[8] Ms. Dehghani states that, at the gate, she presented her Iranian passport, Canadian immigrant visa, Confirmation of Permanent Residence (CoPR) document issued by Citizenship and Immigration Canada (now Immigration, Refugees and Citizenship Canada or IRCC), and a Cuban visa. She claims that she was also asked for her work permit, for re-entry into Canada. According to Ms. Dehghani, as she did not have her work permit with her, she was refused transport.

[9] Ms. Dehghani states that upon being refused transport, she returned to her hotel by taxi to retrieve her vehicle and then drove from Calgary to her home in Edmonton to retrieve her work permit. She then booked a WestJet flight from Edmonton to Holguin and travelled to Holguin on December 16, 2016.

[10] Ms. Dehghani maintains that Sunwing did not have the right to refuse her transport as she had all the required documents for travel to Cuba and to return to Canada. In support of her application, Ms. Dehghani filed a letter from IRCC that states that the CoPR document and visa sticker issued in her passport together make up her permanent resident visa.

Sunwing’s position

[11] Sunwing submits that Ms. Dehghani presented her Iranian passport and CoPR document at the gate. Sunwing states that the CoPR document was stamped with the words “NOT VALID FOR TRAVEL” and was not signed or dated. Sunwing maintains that Ms. Dehghani was asked for her permanent residence permit, otherwise known as a permanent residence card, as required, and her Cuban visa; however, she did not provide them. Sunwing submits that Ms. Dehghani’s CoPR document and Canadian immigration visa in her passport do not constitute a permanent residence permit, but instead was intended as a document to be used during her immigration to Canada.

[12] Sunwing submits that its agent did not request Ms. Dehghani’s work visa.

[13] Sunwing states that it relied on the TIM published by the International Air Transportation Association (IATA) on timaticweb.com to determine Ms. Dehghani’s eligibility to travel to Cuba and return to Canada. Sunwing submits that the Agency has already recognized the TIM as a means for determining country entry requirements in Decision No. 178-C-A-2008, Decision No. 307-C-A-2009, Decision No. 212-C-A-2015, and Decision No. 59-C-A-2017.

[14] The TIM provides that, for entry into Cuba, Iranian nationals require a Visa “except for Nationals of Iran with a residence permit issued by Canada”, and warns that “Visitors not holding return/onward tickets and other documents required for their destination could be refused entry.” Sunwing argues that as Ms. Dehghani did not have the valid documents to enter Cuba, she was refused transport.

[15] Further, Sunwing submits that Ms. Dehghani was properly informed that it was her responsibility to determine the documentation required for her to travel to Cuba, as this was stated under the heading “Travel Information Guide”, on page three and four of her eDocument.

Findings of fact

[16] The Agency finds as a fact that Ms. Dehghani presented to the Sunwing gate agent her Iranian passport, which contained a Canadian visa sticker, and her CoPR document, which was stamped with “NOT VALID FOR TRAVEL.” The Agency also finds that she did not present a Canadian permanent residence permit, also known as a permanent residence card. These facts are not contested by either party.

[17] Ms. Dehghani claims that she presented her Cuban visa; however, Sunwing claims that Ms. Dehghani did not present it. When contradictory versions of events are presented by parties, the Agency has previously ruled, most recently in Decision No. 61-C-A-2017, that the burden of proof falls on the applicant to establish that their version is 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.

[18] In support of her application, Ms. Dehghani filed a copy of her Cuban visa, which is dated November 18, 2016. As this is almost a month before her travel date of December 15, 2016, the Agency finds that, based on the balance of probabilities, Ms. Dehghani obtained the visa in preparation for her trip to Cuba, and that she presented it to the Sunwing check-in agent at the Calgary airport.

[19] Ms. Dehghani claims that she was asked for a work permit at the gate. Sunwing claims that its agent did not request this document. As the parties both submit that Ms. Dehghani did not present a work permit at the gate, a finding of fact on this matter is not necessary for the Agency to render a decision on Ms. Dehghani’s application.

ANALYSIS AND DETERMINATIONS

[20] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its tariff.

[21] Sunwing’s Tariff provides that it may refuse to carry a passenger across international borders if the passenger’s travel documents are not in order. Further, it provides that “(f)ailure of a Passenger to comply with this Rule, will result in the Passenger being denied boarding with no refund of his/her Ticket.”

[22] Sunwing states that it used IATA’s TIM to determine whether Ms. Dehghani was authorized to travel to Cuba from Canada with the documents that she presented. The Agency has recognized the validity of the TIM in the decisions cited by Sunwing above. Further, the Agency finds, as it determined in Decision No. 178-C-A-2008 with respect to another air carrier, that it is appropriate and reasonable for Sunwing to use the TIM to determine entry requirements, as it is “[…] a source widely recognized in the air transport industry for providing reliable information relating to entry requirements for countries throughout the world.”

[23] The snapshot of the TIM submitted by Sunwing clearly states that an Iranian national, who is a resident of Canada and wishes to travel to Cuba, must show a passport, Cuban Visa or a resident permit issued by Canada, and a Cuban tourist card. Additionally, and of note, it states that “Visitors not holding return/onward tickets and other documents required for their destination could be refused entry.” The return destination for Ms. Dehghani, with a round-trip ticket from Calgary to Holguin, was Calgary.

[24] In this respect, the Agency notes that the CoPR, which Ms. Dehghani submitted as proof of her permanent residence in Canada, states that it is “NOT VALID FOR TRAVEL”. In support of her application, Ms. Dehghani filed a letter from IRCC that states that the CoPR document and visa sticker issued in her passport together make up her permanent resident visa.

[25] Sunwing’s position is that the CoPR provides Ms. Dehghani the right to immigrate to Canada, but that it does not provide re-entry. In this regard, the Agency notes that the letter from IRCC mentioned above is not inconsistent with this conclusion either, as it appears to provide the applicant a right to enter Canada in order to apply to become a permanent Canadian resident. The Agency finds that it was reasonable for Sunwing to have concluded that the CoPR is not a travel document and could not be used to re-enter Canada, and that Ms. Dehghani could have been refused entry into Cuba on that basis.

[26] The Agency therefore finds that Ms. Dehghani has not established that Sunwing, in refusing to transport her to Cuba on December 15, 2016, failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its Tariff.

CONCLUSION

[27] The Agency dismisses the application.

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Appendix

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.

Sunwing Airlines Inc. – Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods between Points in Canada on the One Hand and Points Outside Canada on the Other Hand, CTA(A) No. 3

RULE 5. PASSPORT AND VISAS

5.1 Responsibility of Passenger

(a) Each Passenger desiring transportation across any international boundary shall be responsible for obtaining all necessary travel documents and for complying with the laws of each country from, through or to which he desires transportation, and unless applicable laws provide otherwise, shall indemnify the Carrier for any loss, damage, or expense suffered or incurred by the Carrier by reason of such Passenger’s failure to do so. The Carrier shall not be liable for any aid or information given by any agent or employee of the Carrier to any Passenger in connection with obtaining such documents or complying with such laws, whether given orally or in writing or otherwise; or for the consequences to any Passenger resulting from his failure to obtain such documents or to comply with such laws. Failure of a Passenger to comply with this Rule, will result in the Passenger being denied boarding with no refund of his/her Ticket.

RULE 8. REFUSAL TO TRANSPORT

(A) In the reasonable exercise of the Carrier’s discretion, the Carrier may refuse to carry a Passenger or a Passenger’s Baggage on the Carrier’s flights, if the Carrier has previously notified the Passenger in writing of prohibited conduct as mentioned in (C) (iv) below. The Carrier may also refuse to carry the Passenger or the Passenger’s Baggage if one of the following has occurred, or the Carrier has reason to believe will occur, in which case there will be no refund of the Passenger’s Ticket:

[…]

(iii) When a Passenger is to travel across any international boundary, if:

1. the travel documents of such Passengers are not in order; or
2. for any reason, such Passenger’s embarkation from, transit through, or entry into any country from, through, or to which such Passenger desires transportation would be unlawful […].

International Air Transportation Association (IATA)’s Travel Information Manual (TIM)

National Iran (IR) / Residence Canada (CA)

Destination Cuba (CU)

[…]

INFORMATION […]

Passport required.

• Passports and other documents accepted for entry must be valid on arrival.

Visa required, except for Nationals of Iran with a residence permit issued by Canada. They must also hold a Tourist Card (Tarjeta del Turista) issued to visitors traveling as tourists.

Additional Information:

• Tourist Cards (Tarjeta del Turista) must be obtained prior to arrival in Cuba […].
• Tourist Cards (Tarjeta del Turista) grant a max. stay of 30 days to nationals of Iran with a residence permit issued by Canada. They can apply to extend their stay for an additional 30 days.
• The length of stay must be covered by USD50 […].
• Photocopies of visas are accepted for entry in Cuba. The sponsor must be at the airport upon arrival with the original visa.

Warning:

• Visitors not holding return/onward tickets and other documents required for their destination could be refused entry. […]