Decision No. 635-C-A-2005

October 20, 2005

October 20, 2005

IN THE MATTER OF a complaint filed by David Jenkins against Air Canada concerning a warning issued to Mr. Jenkins regarding prohibited behaviour on flights with Air Canada.

File No. M4370/04-02497


On April 22, 2004, David Jenkins filed with the Air Travel Complaints Commissioner the complaint set out in the title.

The matter was referred to the Canadian Transportation Agency (hereinafter the Agency) for its consideration on July 27, 2004 and brought before the Agency panel for consideration on September 13, 2005.

Between April 1, 2003 and September 30, 2004, Air Canada was under court-sanctioned protection from its creditors under the Companies' Creditors Arrangement Act. As part of that process, the Ontario Superior Court of Justice issued an order suspending all proceedings against Air Canada and certain of its subsidiaries. The Agency was, therefore, prohibited from dealing with any complaints or investigations involving Air Canada during that 18-month period.

Mr. Jenkins travelled with Air Canada on Flight No. AC37 between Toronto and Vancouver on January 14, 2004. Mr. Jenkins' complaint deals with his concerns as to the conduct of Air Canada's personnel on that flight and the ensuing letter from Air Canada dated January 31, 2004 regarding his behaviour on the subject flight. In that letter, Air Canada noted that Mr. Jenkins' behaviour was conduct that the carrier prohibited under its governing tariffs and Mr. Jenkins was also given a warning regarding prohibited behaviour on future travel with Air Canada. Mr. Jenkins has requested an apology from Air Canada.

In this regard, the Agency notes that the redress requested by Mr. Jenkins is an apology, however, the Agency is not a court of inherent jurisdiction and as such, cannot coerce an expression of opinion or more specifically a letter of apology. The Agency is a creature of statute and the authority to order that letters of apology be provided would have to be expressly provided for in the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA). There is nothing in the CTA that empowers the Agency to order such an apology.

The Agency's prescribed jurisdiction in this matter is solely to determine whether Air Canada respected its terms and conditions of carriage as set out in its tariff. In this regard, the CTA states:

67.1 If, on complaint in writing to the Agency by any person or on its own motion, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

(a) apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;

(b) 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

(c) take any other appropriate corrective measures.

Rule 35 of Air Canada's tariff provides, in part, that:

...

II Passenger's Conduct - Refusal to Transport Prohibited Conduct and Sanctions

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 operation:

...

(B) The person's conduct, or condition is or has been known to be abusive, offensive, threating(sic), intimidating, violent, or otherwise disorderly, and in the reasonable judgement 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 the 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;

Sanctions:

...

(II) Probation. The carrier may stipulate that the passenger is to follow certain probationary conditions, such as to not engage in prohibited conduct, in order for the carrier to provide transport to said passenger. Such probationary conditions may be imposed for any length of time, which, in the exercise of the carrier's reasonable discretion, is necessary to ensure the passenger's continued compliance in continued avoidance of prohibited conduct, and ...

The Agency has reviewed the letter issued to Mr. Jenkins and notes that this sanction is provided for in Air Canada's tariff. The Agency finds that Air Canada did comply with the terms and conditions of its tariff and the file is therefore closed.

Members

  • Mary-Jane Bennett
  • George Proud
  • Beaton Tulk
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