Decision No. 61-C-A-2018

November 30, 2018

APPLICATION by Ruth Brighouse against Air Canada.

Case number: 
18-03395

SUMMARY

[1] Dr. Brighouse filed an application with the Canadian Transportation Agency (Agency) regarding Air Canada’s refusal to transport her on board Flight No. AC1188 from Vancouver, British Columbia, to Kelowna, British Columbia, on March 10, 2018.

[2] Dr. Brighouse is seeking compensation in the amount of CAN$1113.43 for the cost of purchasing a new ticket and a lounge pass with WestJet, and for additional work-related “travel time”.

[3] Dr. Brighouse also requests that the Agency require Air Canada to display more clearly its domestic Tariff and Passenger’s Code of Conduct on its website for public inspection. Finally, she is seeking written assurance from Air Canada that there are no longer any sanctions against her travelling with Air Canada or any other carrier.

[4] The Agency will address the following issues:

  1. Did Air Canada properly apply the terms and conditions set out in Rules 75 and 100 of its Domestic Tariff General Rules applicable to the transportation of passengers and baggage, CTA(A) No. 3 (Tariff) relating to the refusal to transport and refunds, as required by subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)? If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to Dr. Brighouse?
  2. Are Air Canada’s terms and conditions of carriage published on any Internet site used by it for selling the domestic service offered in accordance with paragraph 67(1)(a.1) of the CTA?

[5] For the reasons set out below, the Agency finds that Air Canada properly applied the terms and conditions set out in Rules 75 and 100 of its Tariff relating to the refusal to transport and refunds, as required by subsection 67(3) of the CTA. Furthermore, there is no evidence to support that Air Canada is not compliant with paragraph 67(1)(a.1) of the CTA.

[6] With respect to the third issue raised by Dr. Brighouse, the request for a written assurance from Air Canada that there are no longer any sanctions against her travelling with Air Canada, the Agency notes that Air Canada’s correspondence with Dr. Brighouse following the incident states that the duration of the refusal to transport was for a 24-hour period and that she was free to travel after this period with no further sanctions.

PRELIMINARY MATTER

[7] Dr. Brighouse is seeking general damages for lost time at a rate of $150 per hour. The CTA does not provide the Agency with the authority to make awards of general damages and, as set out in Decision No. 185-C-A-2003, the Agency may only award costs directly incurred by a passenger and may not make awards for lost wages, pain or suffering. Accordingly, the Agency will not consider this aspect of Dr. Brighouse’s application.

BACKGROUND

[8] Dr. Brighouse was scheduled to travel on March 10, 2018 with Air Canada from Vancouver to Kelowna on Flight No. AC1188.

[9] Air Canada refused to transport Dr. Brighouse on Flight No. AC1188 because she allegedly uttered a threat and, subsequently, Air Canada issued her a 24-hour travel suspension.

[10] Dr. Brighouse purchased a ticket to travel to Kelowna on WestJet Flight No. 3322 as she could not wait 24 hours to travel with Air Canada.

THE LAW

[11] Subsection 67(3) of the CTA requires that a carrier operating a domestic service apply the terms and conditions set out in its tariff.

[12] If the Agency finds that a holder of a domestic licence has applied a term or condition of carriage applicable to the domestic service it offers that is not set out in its tariff, section 67.1 of the CTA empowers the Agency to order the carrier to:

  1. apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;
  2. 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
  3. take any other appropriate corrective measures.

[13] Paragraph 67(1)(a.1) provides that :

The holder of a domestic licence shall

[…]

(a.1) publish the terms and conditions of carriage on any Internet site used by the licensee for selling the domestic service offered by the licensee;

[…]

[14] Rules 75 and 100E(1) of Air Canada’s Tariff are the relevant rules that were in effect when Dr. Brighouse travelled.

[15] Rule 75 of Air Canada’s Tariff outlines its obligations and conditions with respect to the refusal to transport a passenger. Specifically, Rule 75(B) sets out the situations in which the carrier can refuse to transport a passenger due to a prohibited conduct and the applicable sanctions:

Rule 75(B)(1) 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 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:

Rule 75(B)(1)b) The person’s conduct, or condition is or has been known to be abusive, offensive, threatening, intimidating, violent, or otherwise disorderly, and in reasonable judgment of a responsible Carrier employee there is a possibility that such passenger would cause disruption or serious impairment to the physical comfort or safety of other passengers or the Carrier’s employees, interfere with crew member in the performance of his/her duties aboard the Carrier’s aircraft, or otherwise jeopardize safe and adequate flight operations;

Rule 75(B)(2) Sanctions

Where, in the exercise of its reasonable discretion, the Carrier decides that the passenger has engaged in prohibited conduct described above, the Carrier may impose any combination of the following sanctions:

a) Removal of the passenger at any point; and/or

b) Probation

[…]

c) Refuse to transport the passenger

The length of such refusals to transport may range from a one-time to an indefinite up to lifetime ban. The length of the refusal period will be in the Carrier’s reasonable discretion, and will be for a period commensurate with the nature of the prohibited conduct and until the Carrier is satisfied that the passenger no longer constitutes a threat to the safety of other passengers, crew or the aircraft or to the comfort of the other passengers or crew; the unhindered performance of the crew members in their duty aboard the aircraft; or the safe and adequate flight operations. […]

Rule 75(B)(3) Recourse of the passenger/limitation of liability [in effect at the time regarding the payment of the unused portion of the ticket]

Carrier’s liability in case of refusal to carry a passenger for a specific flight or removal of a passenger enroute for any reason specified in the foregoing paragraphs or in any other applicable rules 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, if any and subject to applicable fare rule, as provided in the General Refund section of RULE 100 – REFUNDS. A person who is refused carriage for an indefinite period of time, up to a lifetime ban, or to whom a probation notice is served may provide to the Carrier, in writing, the reasons why he/she no longer poses a threat to the safety or comfort of passengers or crew, or to the safety of the aircraft. Such document may be sent to the address provided in the refusal to carry notice or the notice of probation. Carrier will respond to the passenger within a reasonable period of time providing the Carrier’s assessment as to the need or not to prolong the ban or to maintain the probation period.

[16] Rule 100 of Air Canada’s Tariff outlines its terms and conditions with respect to refunds including in the event that a passenger is refused transportation.

Rule 100 – Refunds

[…]

E. General refunds

(1) The term “general refund” (sometimes referred to as “voluntary refund”) for the purpose of this paragraph, shall mean any refund of a ticket or portion thereof other than the Carrier‑caused refund as defined above, which includes but is not limited to circumstances that are not within the airline’s control, such as situations described in RULE 70 – CHECK-IN AND BOARDING TIME LIMITS, RULE 75 – REFUSAL TO TRANSPORT, passenger chooses to no longer travel, and schedule irregularities outside the Carrier’s control.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Dr. Brighouse’s position

[17] Dr. Brighouse submits that, while boarding the aircraft, there was a jostle of passengers trying to get settled at the front of the economy cabin and that a flight attendant asked her if she could get by. Dr. Brighouse states that she told the flight attendant “to be careful as her backpack can be a lethal weapon”. The flight attendant told Dr. Brighouse not to say that on an aircraft, and Dr. Brighouse states that she apologized immediately for her mistake and that referring to her backpack as a “lethal weapon” was a metaphorical statement.

[18] Dr. Brighouse submits that once she was seated, the flight attendant and service director asked her to gather her belongings and accompany them off the aircraft. Dr. Brighouse states that she asked the service director questions as to whether she would be permitted to travel once she established that she was not a security threat and was told that it would be discussed once they disembarked the aircraft.

[19] Dr. Brighouse states that she apologized again and meant no harm by her comment, and advises that she told the service director that she was not a security risk and offered to have her backpack searched.

[20] Dr. Brighouse submits that she was issued a 24-hour suspension from travelling with Air Canada, which she argues was because of the unreasonable application of discretion  by the flight attendant. Dr. Brighouse states that a 24-hour suspension was excessive given that she apologized immediately for her actions.

[21] Dr. Brighouse maintains that she was very upset by this incident and began searching Air Canada’s website for a passenger’s code of conduct and its Tariff, and submits that she had difficulty locating the information. Dr. Brighouse argues that Air Canada should display more clearly its Tariff.

Air Canada’s position

[22] Air Canada states that the flight attendant notified the service director of the incident, who advised the captain, who in turn requested that Dr. Brighouse be removed from the aircraft for uttering a threat. The service director then informed Dr. Brighouse that her right to travel was suspended for a 24-hour period while Air Canada’s corporate security department completed its investigation.

[23] Air Canada states that the 24-hour suspension was issued to conduct a thorough investigation and that Dr. Brighouse was free to travel with Air Canada after the suspension was lifted.

[24] Air Canada maintains that it properly followed Rule 75, entitled Refusal to transport, of its Tariff and that a “hard-line” must be drawn when determining what behaviour is deemed acceptable on board a flight.

[25] Air Canada submits that there is no ambiguity that Dr. Brighouse referred to her bag as a “lethal weapon”. Air Canada states that the crew reasonably interpreted that this comment endangered other customers, the crew or the aircraft. It submits that the fact that this was understood out of context by the crew or that Dr. Brighouse only had good intentions are irrelevant to the decision process.

[26] Air Canada points out that the Canadian government ratified the Convention on Offenses and Certain Other Acts Committed on Board Aircraft (Tokyo Convention) which authorizes pilots to deplane passengers and that the carrier is immune from any liability if the pilot has reasonable grounds to support their actions. Air Canada submits that the crew (i.e., the captain who signed off on the refusal to transport) had reasonable grounds to do so.

[27] Air Canada states that Rule 75 of its Tariff outlines its obligations and conditions with respect to the refusal to transport a passenger. Specifically, Rule 75(B) sets out the situations in which the carrier can refuse to transport a passenger due to a prohibited conduct and the applicable sanctions. Air Canada submits that it is satisfied that it met the legal and contractual obligations under Rule 75(B) of its Tariff by refusing to transport Dr. Brighouse on Flight No. AC1188. Air Canada further states that it refunded the unused portion of Dr. Brighouse’s ticket in accordance with Rules 75(3) and 100 of its Tariff.

[28] Air Canada states that its Tariff is available on its website at the bottom of the homepage and on every other page, and that it is also available on the Agency’s website. Air Canada further states that it is also available in any airport terminal where Air Canada operates as well as every Air Canada ticket office.

[29] Air Canada submits that, in response to Dr. Brighouse’s comment that no code of conduct is published on its website, it does not bear obligations to have or to publish a passenger’s code of conduct. However, Air Canada points out that Rule 75B(1) of its Tariff does list certain prohibited conducts that are unacceptable onboard an aircraft.

Dr. Brighouse’s reply

[30] Dr. Brighouse states that Air Canada misquoted her when it referred to her backpack. According to Dr. Brighouse, Air Canada states that she “had a lethal weapon on her back”. Dr. Brighouse submits that she told the flight attendant to “be careful, my backpack can be a lethal weapon” and that she was speaking metaphorically about the dangers of swinging backpacks in cramped spaces.

[31] Dr. Brighouse is of the view that the flight attendant could have scolded her and issued a warning instead of reporting the comment to the captain. Dr. Brighouse states that when the service director escorted her from the aircraft, she offered to have her backpack and person searched to prove that she was not a security risk.

[32] Dr. Brighouse states that she purchased a ticket with WestJet because she needed to return home to work her scheduled 24-hour shift at the hospital in Kamloops and that she could not wait for the 24-hour suspension from travelling with Air Canada to expire.

[33] Dr. Brighouse disagrees that Air Canada’s Tariff is easily accessible, stating that the Tariff is not immediately apparent on its website nor is it mentioned on the page a customer is directed to on Air Canada’s official website, aircanada.com.

Findings of fact

[34] It is undisputed by the parties that Dr. Brighouse was refused transportation on Flight No. AC1188 from Vancouver to Kelowna on March 10, 2018. It is also undisputed that Dr. Brighouse referred to her backpack as a “lethal weapon” although the parties made different submissions as to the full statement in which the words were said, was given a 24-hour suspension from travelling with Air Canada, and received a refund for the unused portion of her Air Canada ticket. Beyond this, the parties are in fundamental disagreement in their interpretation of the events.

ANALYSIS AND DETERMINATIONS

[35] 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.

[36] Air Canada provided, at considerable length, beginning with principles set out in international treaties, a review of the positive obligations upon the carrier to disembark a passenger if there is a belief that the passenger has engaged in prohibited behaviour or may, in the crew’s estimation, pose a danger to the aircraft and its passengers.

[37] Aviation security is governed by many legal requirements, including the Aeronautics Act, R.S.C., 1985, c. A-2, its regulations and the Criminal Code, R.S.C., 1985, c. C-46. While it is not the Agency’s role to assess compliance with these requirements, they are still helpful in understanding the aviation security context in which air carriers operate and in which passengers must travel.

[38] The Canadian Aviation Regulations, SOR/96‑433 provide that the carrier must refuse to transport a person that may present a risk to the safety of the aircraft, persons or property :

602.46 No air operator or private operator shall transport a person if at the time of check-in or at boarding the actions or statements of the person indicate that the person may present a risk to the safety of the aircraft, persons or property.

[39] The Canadian Aviation Security Regulations, 2012, SOR/2011-318 provides that a person on board an aircraft must not falsely declare that he or she is carrying a weapon (section 81). The Criminal Code contains a similar provision with respect to false declaration on board an aircraft (section 77). These requirements, together, clearly show the importance of aviation security and the role of this consideration when the decision is taken to disembark a passenger.

[40] Furthermore, the Tokyo Convention provides that it shall apply in respect of acts which, whether or not they are offences, may or do jeopardize the safety of the aircraft or of persons or property therein or which jeopardize good order and discipline on board.

[41] It goes without saying that in matters related to aviation security, public safety is paramount. The Federal court in Varadi v. Canada (Attorney General), 2017 FC 155 at paragraph 39 stated that “[…] in an area of such importance as aviation safety, wrong decisions can lead to grave consequences […]”. While this statement from the Federal Court was made in the context of a judicial review of the Minister of Transport’s decision to cancel the transportation security clearance of a pilot, it is certainly relevant to the present matter in assessing whether in their reasonable judgment, Air Canada’s employees reasonably believed that Dr. Brighouse’s statement constituted a prohibited conduct under Rule 75(B)(1) of Air Canada’s Tariff.The reasonability of both the flight attendant and the captain’s conclusion that Dr. Brighouse engaged in a prohibited conduct as per Air Canada’s Tariff must be assessed in light of the aviation security context and legal scheme as well as the operational context of the aircraft boarding process, in which a large number of passengers must be seated and their baggage stowed, in a confined space, in a limited time.

[42] The Tariff provision at issue, Rule 75(B)(1), places an emphasis on reasonability which the Agency believes must be assessed in light of those obligations.

[43] Dr. Brighouse holds that her statement was metaphorical and an attempt to apologize for her unwieldy backpack having the potential to hit another person as she was stowing it and taking her seat, and that she meant no harm. The Agency finds Dr. Brighouse to be credible when she states that she did not mean for her words to be considered as a threat. The Agency has no doubt that, as per Dr. Brighouse’s submissions, her words were a statement intended to diffuse an awkward situation.

[44] However, this case turns on the information available to the flight attendant and crew in the circumstances of boarding, immediately prior to departure, and the reasonability of crew actions in accordance with the terms and conditions set out in Air Canada’s Tariff and the statutory and other obligations of the carrier with respect to security.

[45] It was reasonable, in the circumstances, for the flight attendant to inform the captain, via the service director, to seek his direction. The captain gave the final instruction that Dr. Brighouse be removed from the aircraft in accordance with the provisions of Rules 75(B)(1) and 75(B)(2) of Air Canada’s Tariff regarding prohibited conduct. The statutory obligations cited do not require certainty on the part of the crew with respect to the decision to disembark the passenger nor does the Tariff.

[46] There is no indication in the evidence before the Agency that the flight attendant acted unreasonably based on the limited knowledge she had in a set of circumstances that included the boarding of the aircraft immediately before departure. On the contrary, it would be unreasonable to expect the aircraft’s crew to respond to such a situation by searching baggage and by performing detailed interrogations of passengers to confirm whether a person represents an actual threat before taking any actions in accordance with the applicable tariff.

[47] On the other hand, disembarking a seated passenger, coupled with a travel ban, leads to serious consequences for the passenger as it terminates the purchased carriage and impacts future travel. This decision should not be made in an arbitrary manner or be based on irrelevant considerations. The evidence does not establish that the decision to disembark Dr. Brighouse, while in retrospect unfortunate, was arbitrary or based on irrelevant considerations.

[48] Accordingly, the Agency finds that the captain’s instruction to remove Dr. Brighouse from the aircraft were in accordance with Rule 75(B)(2) of Air Canada’s Tariff.

[49] With respect to the 24-hour travel suspension, the Agency finds that Air Canada was justified to impose a temporary travel suspension to Dr. Brighouse as per Rule 75(B)(2) of its Tariff and that the length of the suspension was necessary for an investigation to take place. 

[50] The Agency also finds that Air Canada acted in accordance with Rules 75(B)(3) and 100 of its Tariff when it refunded Dr. Brighouse the unused portion of her Air Canada ticket.

[51] Given that the Agency finds that Air Canada properly applied the terms and conditions of carriage set out in its Tariff relating to the refusal to transport and refunds, as required by subsection 67(3) of the CTA, Dr. Brighouse is not entitled to any other compensation pursuant to paragraph 67.1(b) of the CTA.

[52] The circumstances of this case, based on the evidence available to the Agency, turn on what would appear to be a misunderstanding of the intent of the applicant’s statement. Notwithstanding the issue of intent of the statement, however sympathetic the Agency may be to the applicant’s situation, Air Canada acted in accordance with its Tariff.

[53] Dr. Brighouse has inquired as to the absence of a passenger’s code of conduct. The Air Transportation Regulations, SOR/88-58, as amended, do not require that a carrier have a code of conduct nor require that one be included in a carrier’s tariff.

[54] Regarding the issue as to whether Air Canada’s terms and conditions of carriage are published on any Internet site used by it for selling the domestic service offered in accordance with paragraph 67(1)(a.1) of the CTA, paragraph 67(1)(a.1) requires that the holder of a domestic licence publish the terms and conditions of carriage on any Internet site used by it for selling the domestic service that it offers. There is no evidence to support that Air Canada is not compliant with this requirement.

CONCLUSION

[55] The Agency dismisses the application.

Member(s)

J. Mark MacKeigan
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