Decision No. 34-C-A-2018

April 27, 2018

APPLICATION by Tessie Bencker against Icelandair ehf (Icelandair).

Case number: 
17-03189

SUMMARY

[1] Tessie Bencker filed an application with the Canadian Transportation Agency (Agency) against Icelandair, alleging that the carrier and the Keflavik International Airport Authority violated her passenger rights and subjected her to harassment and discrimination because she is female and a member of a visible minority.

[2] Ms. Bencker is seeking reimbursement for her flight, as well as damages for pain and suffering, in the amount of $12,000.

[3] Icelandair denies all allegations of discrimination and mistreatment made against it. It submits that Ms. Bencker has failed to identify any provision of its International Passenger Rules and Fares Tariff NTA (A) No. 447 (Tariff), or any other term or condition of carriage, that was improperly applied or was applied in a way that was unjustly discriminatory.

[4] The issue to be addressed in this case is whether Icelandair properly applied the terms and conditions set out in its Tariff.

[5] For the reasons outlined below, the Agency finds that Icelandair properly applied the terms and conditions set out in its Tariff.

[6] With respect to the applicant’s allegation of pain and suffering, the Agency does not have the jurisdiction to order payment of compensation for pain and suffering. The Agency also does not have jurisdiction to consider Ms. Bencker’s complaint against the Keflavik International Airport Authority.

BACKGROUND

[7] On June 24, 2016, Ms. Bencker was travelling with her family from Edmonton, Alberta, Canada to Venice, Italy. Her original itinerary was from Edmonton to Reykjavik, Iceland, on Icelandair Flight No. 692, with a connecting flight on June 25, 2016 from Reykjavik to Munich, Germany. Finally, on that day, Ms. Bencker had a scheduled flight, on a separately purchased ticket, from Munich to Venice.

[8] On June 25, 2016, Ms. Bencker arrived in Reykjavik, but did not continue to Munich on the same flight as the rest of her party. Instead, she travelled on a different flight approximately 17 hours later, and took an alternate flight to Venice the next morning.

[9] In addition, Ms. Bencker was initially not allowed to board the return flight from Reykjavik to Edmonton on July 9, 2016 with her family, but was eventually permitted to embark the aircraft.

PRELIMINARY MATTERS

[10] Ms. Bencker submits that Icelandair violated her passenger rights and subjected her to harassment and discrimination. She is seeking compensation for emotional and mental harm caused by the carrier.

[11] The Agency does not have the jurisdiction to order payment of compensation for pain and suffering or loss of enjoyment, as consistently stated in previous decisions, such as Decision No. 13‑AT‑A‑2018 and Decision No. 112-C-A-2017.

[12] Further, the Agency does not have jurisdiction to consider complaints against an airport authority unless the airport is in the federal transportation network and the complaint is related to an accessibility issue for a person with a disability. Given that the Keflavik International Airport Authority is located in Iceland, the Agency finds that it lacks the jurisdiction to consider the matter against the Keflavik International Airport Authority.

[13] With respect to Ms. Bencker’s claim that Icelandair violated her human rights as per the Canadian Human Rights Act and the European Convention on Human Rights, the Agency’s jurisdiction in this respect is limited to the protection of the human rights of persons with disabilities to an accessible transportation network. The Agency does not have jurisdiction to contemplate the applicant’s allegations of discrimination related to race and gender. However, the Agency is empowered to consider whether a carrier applied the terms and conditions set out in its tariff in an unjustly discriminatory manner.

THE LAW

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

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.

“Unjustly discriminatory” application of the terms and conditions of a carrier’s tariff

[15] The Agency’s jurisdiction over complaints concerning fares and terms and conditions of carriage applicable to transportation to and from Canada is set out in sections 111 and 113 of the ATR.

[16] Section 111 of the ATR provides that:

  1. All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just and reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic.
  2. No air carrier shall, in respect of tolls or the terms or the conditions of carriage,

a. make any unjust discrimination against any person or other air carrier;

b. give any undue or unreasonable preference or advantage to or in favour of any person or other air carrier in any respect whatever; or

c. subject any person or other air carrier or any description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatever.

3. The Agency may determine whether traffic is to be, is or has been carried under substantially similar circumstances and conditions and whether, in any case, there is or has been unjust discrimination or undue or unreasonable preference or advantage, or prejudice or disadvantage, within the meaning of this section, or whether in any case the air carrier has complied with the provisions of this section or section 110.

[17] Additionally, if the Agency finds that the air carrier has contravened section 111 of the ATR, the Agency may, pursuant to section 113 of the ATR:

  1. suspend any tariff or portion of a tariff that appears not to conform with subsections 110(3) to (5) or section 111 or 112, or disallow any tariff or portion of a tariff that does not conform with any of those provisions; and
  2. establish and substitute another tariff or portion thereof for any tariff or portion thereof disallowed under paragraph (a).

Proper application of the terms and conditions set out in a carrier’s tariff

[18] 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 grant certain types of relief.

If an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may direct it to:

  1. take the corrective measures that the Agency considers appropriate; and
  2. 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.

POSITIONS OF THE PARTIES

Ms. Bencker’s position

[19] Ms. Bencker submits that due to the discriminatory actions made against her, Icelandair violated her rights as a passenger. She alleges that the incidents of harassment and discrimination made against her occurred after she arrived at the Keflavik International Airport. Ms. Bencker indicates that she was prevented from boarding her connecting flight to Munich, and although she advised personnel that she was travelling with other family members, her concerns were ignored and she was placed with a group of other excluded individuals.

[20] Ms. Bencker states that she and other visible minorities were excluded, asked questions, and treated improperly. According to Ms. Bencker, it was apparent that there was an issue with her racial background because of the rude and disrespectful demeanor of the personnel toward her, and by the types of questions they asked of her.

[21] Ms. Bencker also submits that on her return journey, Icelandair staff refused to allow her to board the aircraft in Reykjavik with her family. She states that on the insistence of her husband, she was eventually allowed on the flight.

[22] Ms. Bencker asserts that as a female and visible minority of Polynesian-Samoan descent, she should have received treatment equal to that accorded to males and non-minority groups. However, she contends that the actions of the carrier are systemic and demonstrative of the intolerance that certain individuals have toward visible minorities, the elderly, and those with health issues.

Icelandair’s position

[23] Icelandair denies all of Ms. Bencker’s allegations of discrimination and mistreatment.

[24] Icelandair submits that because the alleged incident took place over 18 months ago, it is very difficult to find any of its staff who remember Ms. Bencker. The carrier states that it is also difficult to verify any of Ms. Bencker’s claims, given that she did not indicate whether it was Icelandair staff or the airport authority who excluded her and other individuals. Icelandair states that Ms. Bencker also did not provide names of the personnel that carried out the alleged actions, nor did she provide names of any other excluded passengers. Furthermore, the carrier submits that Ms. Bencker did not provide any details regarding the types of questions that were asked of her.

[25] Icelandair acknowledges that Flight No. 692 from Edmonton to Reykjavik was delayed, causing Ms. Bencker to miss her connecting flight to Munich. The carrier contends that without more information, it can only speculate as to why Ms. Bencker did not travel with the rest of her family. Icelandair suggests that, due to the delay of the inbound flight, it is possible that there were not enough seats on the next available flight to Munich, which could have resulted in only some of Ms. Bencker’s travelling party being offered seats. However, the carrier maintains that it does not forcibly separate travelling parties. Icelandair submits that those travelling with Ms. Bencker could have chosen to stay back with her and take the next flight, but chose not to do so.

[26] With respect to Ms. Bencker’s allegation that she was initially not allowed to board the aircraft with her family on her return journey, Icelander explains that many flights are boarded according to the zone in which the traveller is seated. Icelandair suggests that, absent any information, it is possible that Ms. Bencker’s seat was located in a different zone than the rest of her family, which would have prevented her from boarding the aircraft at exactly the same time as the others in her party.

[27] Finally, Icelandair submits that when a complaint is filed with the Agency, it is the applicant who bears the burden of proving that the air carrier either did not properly apply the terms and conditions of its tariff, or that it applied the tariff in a way that was unjustly discriminatory. Icelandair submits that Ms. Bencker has not met her burden as she failed to identify any improper application of any term or condition in its Tariff.

[28] Nevertheless, Icelandair acknowledges that Ms. Bencker is entitled to compensation in the amount of EUR 600 for missing her connecting flight, pursuant to Regulation (EC) 261/2004 of the European Parliament and of the Council of 11 February 2004 (Regulation (EC) No. 261/2004). Icelandair indicates that even though this amount was offered to and refused by the applicant, it maintains its offer.

ANALYSIS AND DETERMINATIONS

[29] 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. In this respect, the Agency notes that Ms. Bencker did not provide arguments on the application of Icelandair’s Tariff.

[30] In addition, the Agency notes that Ms. Bencker provided no specifics on the incidents that occurred, such that it is unclear if the questioning was undertaken by Icelandair, the airport authority, customs and immigration agents, or any other officials affiliated therewith. Moreover, Ms. Bencker did not provide any information pertaining to what questions were asked of her that would suggest that there was an issue with her gender, age, or racial background.

[31] Ms. Bencker indicates that she was separated from her family and was told that she could not continue her journey. Icelandair submits that Ms. Bencker did not specify how her travelling party continued onward without her. Icelandair states that it could only speculate on the events that occurred, but maintains that it does not forcibly separate travelling parties. The Agency notes that the record is unclear as to whether Ms. Bencker’s travelling party were able to continue on their scheduled connecting flight or if the delay of Flight No. 692 caused all her family to be re-booked on later flights with limited seat availability. In light of the lack of evidence, the Agency cannot assess what occurred to Ms. Bencker and her travelling parties.

[32] Ms. Bencker asserts that other visible minorities were also excluded. However, the Agency notes that she did not provide any information about those individuals - such as their names, the number of affected passengers, or the specific circumstances behind their exclusion. Finally, it is unclear what Ms. Bencker is attempting to convey when she refers to being “excluded” as she does not indicate whether the other individuals were separated from their family members, segregated from other passengers, or detained.

[33] Having considered the submissions on record, and in light of the fact that Ms. Bencker did not file a reply to challenge the carrier’s answer, the Agency finds that Ms. Bencker did not establish, on a balance of probabilities, that Icelandair applied the terms and conditions set out in its Tariff in an unjustly discriminatory manner.

[34] In respect of delays, Rule 85 (SCHEDULES, DELAYS AND CANCELLATIONS OF FLIGHTS) of Icelandair’s Tariff states:

B. CANCELLATION, REROUTING, DELAYS, ETC

Carrier will take all necessary measures to avoid delay in carrying the passenger and his/her baggage. In the exercise of these measures and in order to prevent a flight cancellation, in exceptional circumstances Carrier may arrange for a flight to be operated on its behalf by an alternative Carrier and/or aircraft. In case of a flight cancellation or flight delay Carrier offers assistance and compensation to the concerned passengers according to the Regulation EC 261/2004.

[35] Articles 6 (Delay) and 7 (Right to Compensation) of Regulation (EC) No. 261/2004 provide that when an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure for four hours or more, the passengers shall be offered compensation in the amount of EUR 600.

[36] The Agency finds that Ms. Bencker is entitled to compensation in the amount of EUR 600 pursuant to Rule 85 of Icelandair’s Tariff, and that Icelandair, in indicating its readiness to provide that compensation, has properly applied its Tariff.

CONCLUSION

[37] In light of the above, the Agency finds that Icelandair has properly applied the terms and conditions set out in its Tariff.

Member(s)

Scott Streiner
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