Decision No. 638-C-A-2006
November 20, 2006
IN THE MATTER OF a complaint filed by Cathy Hershkovitz on behalf of her mother, Rivka Draiblat, with respect to Air Canada's issuance of a warning letter to Mrs. Draiblat regarding her alleged prohibited behaviour on Flight No. AC 875 from Frankfurt, Germany to Montréal, Quebec, Canada on October 2, 2005.
File No. M4370/06-03228
 On March 16, 2006, Cathy Hershkovitz, on behalf of her mother, Rivka Draiblat, filed with the Canadian Transportation Agency (hereinafter the Agency) the complaint set out in the title.
 On May 25, 2006, Mrs. Draiblat submitted a letter authorizing Miss Hershkovitz to act on her behalf and to access all information and details of her file with the Agency and with Air Canada. The parties then filed their respective pleadings, and pleadings closed on August 31, 2006.
 Pursuant to subsection 29(1) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until November 23, 2006.
 The issue to be addressed is whether Air Canada properly applied the terms and conditions of carriage relating to its refusal to transport a passenger specified in its International Passenger Rules and Fares Tariff, CTA(A) No. 458 (hereinafter the tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR).
 On October 2, 2005, Mrs. Draiblat travelled with Air Canada from Tel Aviv, Israel to Montréal, Quebec, Canada, via Frankfurt, Germany. The incident which prompted the issuance of the warning letter by Air Canada on October 19, 2005 occurred on Flight No. AC 875 operated from Frankfurt to Montréal on October 2, 2005. On October 19, 2005, Mrs. Draiblat returned to Tel Aviv from Montréal, via Frankfurt, on Air Canada.
 Air Canada issued a hand-delivered warning letter to Mrs. Draiblat prior to her boarding the aircraft in Montréal for her return flight to Tel Aviv on October 19, 2005. The warning letter drew Mrs. Draiblat's attention to the carrier's tariff, more specifically to Air Canada's provisions respecting "Prohibited Conduct", and advised her that if she exhibits unruly behaviour again on an Air Canada flight or on one of its partners' flights, Air Canada will take appropriate action against her.
POSITIONS OF THE PARTIES
 Miss Hershkovitz submits that her mother's problems while on board Air Canada Flight No. AC 875 on October 2, 2005 began the moment the meals were served. Miss Hershkovitz states that her mother advised one of the flight attendants that she could not eat the meal she was served because she was allergic to broccoli, which she contends was in her meal. According to Miss Hershkovitz, the flight attendant informed her mother that if she could not eat what she was given, she would not eat at all for the remainder of the flight. Miss Hershkovitz states that her mother was so surprised by this reply that she got up and walked to the First Class section and asked to speak with the Manager. Miss Hershkovitz maintains that when her mother briefed the Manager as to what had happened, the Manager yelled at her, ordering her to go back to her seat and advising her that nothing could be done. Miss Hershkovitz adds that, a little while later, the Manager literally threw two bags of nuts at her mother.
 With respect to the warning letter that was handed to Mrs. Draiblat before she boarded the aircraft in Montréal for her return flight to Tel Aviv, Miss Hershkovitz states that it was given to her mother because the flight attendants were afraid that her mother would file a complaint or, in the alternative, because of racism.
 Air Canada submits that Miss Hershkovitz's version of the events surrounding her mother's travel on Air Canada's Flight No. AC 875 on October 2, 2005 differs from that reported by the crew members. Air Canada contends that Mrs. Draiblat was served the vegetarian meal that she specifically ordered, as evidenced by the note contained in the Passenger Name Record (PNR), and that, when served, she refused it and ordered the flight attendant, in a loud voice, to "take it away". When the flight attendant asked what Mrs. Draiblat could not eat, she replied that there was broccoli and meat in the meal. According to the Special Meal Report (SPML) filed by Air Canada, there was no broccoli in the meal served on that date. Air Canada further submits that Mrs. Draiblat then asked for a kosher meal, but such a meal was not available as it had not been requested in advance. Air Canada adds that the flight attendant tried to accommodate Mrs. Draiblat by suggesting another meal, but Mrs. Draiblat refused.
 With respect to the claim that crew members yelled at Mrs. Draiblat, Air Canada refers to Miss Hershkovitz's own admission in her letter of October 24, 2005 to Air Canada that her mother does not hear very well, and adds that it is surprising, therefore, that Mrs. Draiblat can comment on the alleged high tone used by the crew members. Air Canada submits that crew members may have adjusted their tone in order to ensure that Mrs. Draiblat could hear them.
 Air Canada adds that Mrs. Draiblat failed to respect the seatbelt sign instructions and stood in the aisle of the aircraft while it was taxiing. Air Canada asserts that both actions constitute an infraction under the Canadian Aviation Regulations, SOR/96-433.
APPLICABLE LEGISLATIVE AND REGULATORY PROVISIONS
 The Agency's jurisdiction over the present complaint is set out in subsection 110(4) and section 113.1 of the ATR, which read as follows:
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.
113.1 Where a licensee fails to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs, the Agency may
(a) direct the licensee to take corrective measures that the Agency considers appropriate; and
(b) direct the licensee to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges, terms or conditions of carriage applicable to the international service it offers that were set out in its tariffs.
APPLICABLE PROVISIONS OF THE TARIFF
 The following rules of Air Canada's tariff governing the terms and conditions of carriage in effect on the date of the incident are relevant to the matter at hand.
Rule 25 Refusal to Transport - Limitations of Carrier
II Passenger's Conduct - Refusal to Transport - Prohibited Conduct and Sanctions
(A) 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 operations:
(2) the person's conduct, or condition is or has been known to be abusive, offensive, threatening, intimidating, violent, or otherwise disorderly, and in the 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 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;
(4) the person fails to observe the instructions of carrier and its employees, including instructions to cease prohibited conduct;
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;
(1) removal of the passenger at any point;
(2) 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
(3) 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.
ANALYSIS AND FINDINGS
 In making its findings, the Agency has carefully considered all of the evidence submitted by the parties during the pleadings, and has examined Air Canada's terms and conditions of carriage governing passenger conduct.
 When a complaint is filed with the Agency, the complainant has the burden to satisfy the Agency, on a balance of probabilities, that the air carrier has failed to apply, or has inconsistently applied, the terms and conditions of carriage found in the applicable tariff.
 While the version of the events put forward by each party in this case is irreconcilable, it is uncontested that the meal that was served to Mrs. Draiblat is the event that sparked the whole issue with respect to Mrs. Draiblat's behaviour, which in turn led to the issuance of Air Canada's warning letter of October 19, 2005. Air Canada filed independent evidence to show that the complainant ordered a vegetarian meal (as evidenced by the PNR) and that the meal did not contain any broccoli (as evidenced by the SPML report).
 Even if the Agency were to accept the evidence of Mrs. Draiblat that there was broccoli in the meal, Mrs. Draiblat did not advise Air Canada in advance that she was allergic to broccoli, as she claimed when the meal was served to her, despite the fact that she had ordered a vegetarian meal.
 The weighing of the credible evidence put forward in this case does not favour the complainant, who had the burden of convincing the Agency that Air Canada acted in an inappropriate manner. Given the applicable rule on the burden of evidence, the complainant has not raised any evidence to support her claim or, alternatively, has failed to demonstrate that Air Canada acted improperly in issuing her a warning letter.
 In light of the foregoing, the Agency finds that by issuing a warning letter to Mrs. Draiblat, Air Canada has complied with its terms and conditions of carriage and, as such, has not contravened subsection 110(4) of the ATR.
 Based on the above findings, the Agency hereby dismisses the complaint.
- Gilles Dufault
- Baljinder Gill
- Beaton Tulk