Decision No. 53-C-A-2018

August 21, 2018

APPLICATION by Angela Maria Rotilio against Air Canada also carrying on business as Air Canada rouge and as Air Canada Cargo (Air Canada).

Case number: 
18-01694

SUMMARY

[1] Angela Maria Rotilio filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding her trip departing from Toronto, Ontario, to Catania, Italy, via Munich, Germany, on May 16, 2017, and returning from Lugano, Switzerland, to Toronto, via Zurich, Switzerland, on June 10, 2017.

[2] Ms. Rotilio is seeking a full refund of her ticket in the amount of CAN$1,859.14.

[3] The issue before the Agency is whether Air Canada properly applied the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR).

[4] For the reasons outlined below, the Agency finds that Ms. Rotilio has failed to demonstrate that Air Canada did not properly apply the terms and conditions set out in its Tariff. Therefore, the Agency dismisses the application.

THE LAW

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

[6] If the Agency finds that a carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier 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. Rotilio’s position

[7] Ms. Rotilio states that on her trip from Canada to Switzerland in May 2017, she requested wheelchair assistance, and that an Air Canada employee, “Giovanni”, was violent and abusive towards her as she was disembarking the Air Canada flight. In her application, Ms. Rotilio details what she submits is the outrageous conduct of this employee. Ms. Rotilio further states that she was so frightened by Giovanni’s conduct that she ran back on to the aircraft to hide, but that he followed her and continued to yell and curse at her.

[8] Ms. Rotilio also states that there were attendants with wheelchairs waiting, and that flight attendants and other Air Canada customers witnessed this and that they did nothing. She submits that the whole incident lasted 45 minutes.

[9] Ms. Rotilio states that, after this ordeal, a female employee came forward and offered her a wheelchair, but pointed out that she could sign a document and refuse the service if she no longer required a wheelchair. Ms. Rotilio states that she still required wheelchair assistance, so she refused to sign the document and the female employee then transported her on the wheelchair to the baggage section.

[10] Ms. Rotilio claims that cameras recorded this incident and asks that Air Canada provide the recordings.

[11] Ms. Rotilio explains that when she contacted Air Canada regarding the incident, she received a CAN$200 future travel voucher, but she asserts that this amount is insufficient.

Air Canada’s position

[12] Air Canada indicates that it cannot find any record of this incident occurring on either of Ms. Rotilio’s Air Canada flights. Air Canada states that on both her outbound and inbound flights, there were no flight crew members by the name of Giovanni, nor were there any incident reports filed by the Service Director or the flight attendants, as required by Air Canada’s policy.

[13] Air Canada explains that if the incident occurred on her outbound flight from Toronto, the responsibility to provide mobility assistance while transiting through Munich, Germany, rests on the managing body of the airport, and that any complaint must be directed to them and dismissed against Air Canada.

[14] Air Canada further explains that if the incident occurred on her inbound flight at the Toronto airport, wheelchair assistance would have been provided by customer sales and service agents who are assigned to meet specific flights. Air Canada confirms that none of the agents assigned to meet Flight No. AC879 (Ms. Rotilio’s return flight) went by the name of Giovanni. Air Canada explains that agents are expected to report any serious events to their managers, and points out that no report was filed by any agent. Further, Air Canada submits that no agent had any recollection of any incident occurring.

[15] Regarding Ms. Rotilio’s claims that she was asked to sign a document by the female agent providing wheelchair assistance, Air Canada states that passengers are never required to sign any documents upon arrival. Air Canada confirms that she received the requested wheelchair assistance.

[16] Air Canada states that it contacted the Greater Toronto Airport Authority (GTAA) to obtain footage from cameras at the arrival gate of Flight No. AC879. Air Canada claims that no footage is available as the GTAA only keeps it for 30 days.

[17] Air Canada points out that the applicant accepted Air Canada’s goodwill gesture of a CAN$200 travel gift card, and that this amount has already been used.

[18] Air Canada argues that applicants have the onus to prove their case and that Ms. Rotilio has failed to provide any corroborating evidence or any specific details of the alleged incident, including the names or physical descriptions of Giovanni and any other individuals allegedly involved. Air Canada also points out that Ms. Rotilio has offered no explanation as to how she was able to return to and remain on the aircraft for 45 minutes after she had initially disembarked.

[19] Air Canada further argues that the Agency does not have the jurisdiction to grant the remedy that Ms. Rotilio is seeking (refund of her ticket) because she has already completed her trip, and did not incur any expenses. As a result, Air Canada is seeking a dismissal of the application.

ANALYSIS AND DETERMINATIONS

[20] In a case regarding an air travel complaint, 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 set out in its tariff.

[21] When issues of credibility arise, as in this case, the Agency must determine which version of events is more probable. As the applicant bears the legal burden of proof, she must convince the Agency that her version is more probable than that of Air Canada and must prove her case by a preponderance of the evidence.

[22] Ms. Rotilio has made claims that an Air Canada employee was abusive to her; however, she has not provided any supporting evidence to corroborate her claims. Ms. Rotilio has not specified on which of her flights the incident occurred with this person. She has also failed to provide any other description of this person or the other persons who she claims witnessed the incident. The Agency accepts Air Canada’s evidence that had an incident such as that described by Ms. Rotilio occurred, a report would have been completed by its employees; however, there were no reports of any incident. The Agency finds that it is highly unlikely that such an incident would occur without any witnesses filing complaints, or without staff making a report.

[23] In light of the above, Ms. Rotilio has failed to demonstrate that Air Canada did not properly apply, or has inconsistently applied, the terms and conditions set out in its Tariff.

[24] Finally, even if the Agency were to accept that the events described by Ms. Rotilio occurred, there is no basis upon which to order that she receive a refund of her ticket since she completed her trip and does not claim to have incurred any additional expenses.

CONCLUSION

[25] The Agency dismisses the application.

Member(s)

Elizabeth C. Barker
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