Decision No. 70-AT-C-A-2017
APPLICATION by Sajid Anjum against Emirates Airlines Ltd. (Emirates).
Sajid Anjum filed an application with the Canadian Transportation Agency (Agency) pursuant to subsections 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), and 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), concerning: Emirates’ alleged failure to provide him with a diabetic meal on Flight No. EK 867 while travelling from Muscat, Oman to Dubai, United Arab Emirates (UAE) on March 14, 2016; its alleged insensitivity to his needs, being a person with a disability; and, its alleged refusal to transport him on Flight No. EK 241 between Dubai and Toronto, Canada on March 14, 2016.
Emirates denies that Mr. Anjum was not provided with diabetic meals and claims that it was justified when refusing to transport him on Flight No. EK 241.
The Agency will address the following issues:
- Did Mr. Anjum encounter an undue obstacle to his mobility pursuant to subsection 172(1) of the CTA?
- Did Emirates properly apply the terms and conditions set out in Rule 25 of its International Passenger Rules and Fares Tariff NTA(A) No. 503 (Tariff), as required by subsection 110(4) of the ATR?
For the reasons set out below, the Agency makes the following findings:
- Mr. Anjum, as a person with a disability, did not encounter an undue obstacle to his mobility.
- Emirates properly applied the terms and conditions set out in its Rule 25 of its Tariff.
Mr. Anjum was scheduled to travel on March 14, 2016 from Muscat to Dubai on Emirates Flight No. EK 867, and then on to Toronto on Emirates Flight No. EK 241.
Mr. Anjum states that he is diabetic, has gastro esophageal reflux disease (GERD), and high blood pressure.
Agency jurisdiction over compensation for pain and suffering or loss of enjoyment
In his application, Mr. Anjum makes several references to what he perceives to be poor customer service on the part of Emirates and the manner in which he was treated by the carrier’s staff. Mr. Anjum submits that as a result of being refused transportation by the carrier on March 14, 2016, his health declined, resulting in his inability to fulfil familial obligations.
Mr. Anjum is seeking $10,000 in compensation.
The Agency does not have the jurisdiction to order compensation for pain and suffering or loss of enjoyment, as stated in previous decisions, such as Decision No. 18‑C‑A‑2015 (Enisz v. Air Canada) and Decision No. 55-C-A-2014 (Brine v. Air Canada).
In its answer to the application, Emirates addresses Mr. Anjum’s claim of not being provided with a diabetic meal on Flight No. EK 867 between Muscat and Dubai on March 14, 2016. However, for reasons unknown, the carrier also addresses two issues not raised by Mr. Anjum in his application; specifically, Mr. Anjum not receiving a diabetic meal between Dubai to Kolkata, India on a February 19, 2016 flight, and Mr. Anjum’s dissatisfaction that mashed potatoes represented a component of his diabetic meal when it was served to him between Mumbai, India to Dubai on March 11, 2016. As these two specific issues were not raised by the applicant in the adjudication process, they will not be addressed by the Agency in these proceedings.
Subsection 170(1) of the CTA empowers the Agency to make regulations for the purpose of eliminating undue obstacles in the transportation network to the mobility of persons with disabilities.
Subsection 172(1) of the CTA allows the Agency to inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.
When applications are made pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:
- the person who is the subject of the application has a disability for the purposes of the CTA;
- an obstacle exists because the person was not provided with appropriate accommodation to address their disability-related needs; and,
- the obstacle is “undue”. An obstacle is undue unless the transportation service provider demonstrates that there are constraints that make the removal of the obstacle either unreasonable, impracticable, or impossible, such that to provide any form of accommodation would cause the transportation service provider undue hardship.
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.
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
(a) take the corrective measures that the Agency considers appropriate; and
(b) 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.
The relevant Tariff provisions are set out in the Appendix.
DID MR. ANJUM ENCOUNTER AN UNDUE OBSTACLE TO HIS MOBILITY PURSUANT TO SUBSECTION 172(1) OF THE CTA?
Mr. Anjum’s position
Mr. Anjum claims that he is diabetic and has GERD and high blood pressure. With respect to these latter two conditions, Mr. Anjum does not explain what accommodation he was not provided, but generally states that the his experience with Emirates aggravated these conditions.
With respect to his diabetes, Mr. Anjum states that he was not provided with a diabetic meal on Flight No. EK 867 from Muscat to Dubai.
In his reply, Mr. Anjum does not specifically address the evidence submitted by Emirates, but maintains that he requested a diabetic meal for his entire return trip.
Emirates does not deny that Mr. Anjum is a person with a disability, but maintains that he was in fact accommodated with a diabetic meal. In support of its answer, Emirates submitted its catering manifest that indicates that a diabetic meal was ordered and assigned to Mr. Anjum. Emirates also states that it has no record of Mr. Anjum complaining to the flight crew that he did not receive his diabetic meal, and there is no record from the cabin crew indicating any inconsistencies between the number of meals ordered and the number of meals delivered by the catering company.
Findings of facts
It is undisputed by the parties that Mr. Anjum, being diabetic, is a person with a disability for the purposes of Part V of the CTA.
With respect to Mr. Anjum’s GERD and high blood pressure, Mr. Anjum has not demonstrated that he needed and was not provided accommodation regarding these conditions.
With respect to Mr. Anjum’s diabetes, while he maintains that he did not receive a diabetic meal; Emirates’ records indicate that one was available for him. Mr. Anjum does not describe complaining to the flight crew, nor does he describe the meal that he received in place of his diabetic meal, if any, and how it did not meet his needs. Emirates also has no record of a complaint. Based on this evidence the Agency finds that Mr. Anjum has failed to establish that he was not provided with the requested accommodation on Flight No. EK 867.
Mr. Anjum also states that Emirates’ staff was insensitive to his needs; yet, he did not submit any evidence demonstrating how Emirates’ perceived lack of sensitivity resulted in an obstacle to his mobility.
Further, Mr. Anjum states that upon his arrival home in Toronto, he experienced increased glucose levels and acidity as a result of his travel experience with Emirates; however, there is no evidence to suggest that these symptoms were the result of Emirates’ failure to accommodate him.
Analysis and determinations
Based on the foregoing, the Agency finds that Mr. Anjum did not encounter an undue obstacle to his mobility.
DID EMIRATES PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULE 25 OF ITS TARIFF, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?
Mr. Anjum’s position
Mr. Anjum states that while boarding Flight No. EK 241 at the Dubai airport on March 14, 2016, he was unjustly pulled aside by Emirates staff because his carry-on baggage was deemed too large. Mr. Anjum argues that other passengers were permitted to board the aircraft with heavier and larger carry-on baggage than his own.
Mr. Anjum submits that Emirates staff created a bigger issue of his carry-on baggage than appropriate, and he was refused transportation on what he deems a very “trivial issue”.
Mr. Anjum states that upon being refused transportation on Flight No. EK 241, he was told that he would be carried to Toronto on a later Emirates flight via New York, John. F. Kennedy airport (JFK). Mr. Anjum submits that he was left waiting for hours with no communication on what was being done for him or without any assistance or means to contact his family for help.
Mr. Anjum further states that when it was time to board the JFK flight, he asked for his reservation details and was told he did not have a reservation. He was then informed that the next Emirates flight would be in two days, for which there were no available seats. Mr. Anjum submits that he was told that he could wait another two days to see whether he could get a seat on this later flight, otherwise he could book a flight to Toronto with another airline. Mr. Anjum submits that he had no other choice than to take another flight to Toronto with a different carrier.
Mr. Anjum affirms that he contacted his wife who subsequently booked him on a KLM flight that arrived into Toronto the next day.
Mr. Anjum argues that Emirates does not have a policy to assist passengers who are refused transportation.
Emirates maintains that Mr. Anjum’s carry-on baggage was too big to carry into the cabin, and that it therefore needed to be checked and placed in the aircraft hold. Emirates states that Mr. Anjum refused to check his carry-on baggage because it contained his medication.
Emirates submits that a member of its cabin crew explained to Mr. Anjum that for passengers safety on the full flight, overweight or oversized baggage could not be placed in the overhead bins and would have to be placed in the hold instead.
Emirates further submits that the cabin crew provided Mr. Anjum with multiple opportunities to remove his medication from his baggage so his medication could be carried on board with him, but he refused.
Emirates states that Mr. Anjum then threatened action against the carrier if he was to become ill on the flight. At this point, the cabin crew conferred with the captain, and Mr. Anjum was off‑loaded for refusing to comply with crew instructions and because he was becoming aggressive and threatening.
In support of its answer, Emirates filed statements from its personnel: Neilashish Guha, gate ground crew member, Leandi Schoonraad, purser, Jayandi Perera, gate supervisor; and, Craig Undemans, customer relations; regarding their respective interactions with Mr. Anjum on March 14, 2015.
Emirates submits that when Mr. Anjum was refused transportation, it attempted to rebook him on another one of its flights destined to Toronto, via New York, but there was no available space on the flight. Emirates further submits that Mr. Anjum’s ticket had a ticketing restriction prohibiting its endorsement to another carrier and that Mr. Undemans made arrangements for Mr. Anjum to contact his family.
Emirates states that it only operates three direct flights per week from Dubai to Toronto and that Mr. Anjum chose to book a flight with another carrier, rather than wait for the next available Emirates flight to Toronto.
Findings of facts
When an application is filed with the Agency, the applicant must, on a balance of probabilities, establish that the air carrier has failed to apply the terms and conditions of carriage appearing in the applicable tariff.
Rule 25 of Emirates’ Tariff, entitled Refusal to Transport, states that the carrier may refuse to transport a person, or remove any person from its aircraft when it is deemed necessary for the person’s safety, the safety of other passengers, or members of the crew. The Rule also lists specific circumstances under which a passenger will be so refused or removed. This includes, but is not limited to: persons whose conduct is disorderly, abusive, or violent; persons who contravene any instructions or direction of the crew; and, persons whose carriage of their baggage has endangered or affected the safety of the aircraft or anyone in the aircraft.
The evidence of Ms. Perera, the gate supervisor, Ms. Schoonraad, purser, and Mr. Guha, who was a member of the ground crew for flight EK 241, is largely consistent. Each explains that Mr. Anjum was advised that his baggage was too large to be carried as carry-on baggage. They each state that Mr. Anjum refused to give his baggage to the crew so that it could be placed in the hold because it contained his medication, and that he refused to remove his medication from his baggage so that he could travel with it. They also state that he was not feeling well, made threats that if anything happened to him he would sue the carrier, and otherwise was becoming aggressive.
Mr. Anjum concedes in his application that he was told that his bag was too big, but he asks why he was singled out, as other passengers were allowed to board with large bags. In his reply, Mr. Anjum does not address the statements made by the employees. Rather, he states that Emirates in providing the names of the individuals and the specific terms used by them, makes for a “dramatic read”, but the facts are distorted. He maintains that his version is the same as submitted in his application.
Given the consistency of the statements from Emirates’ employees, and the fact that Mr. Anjum does not deny that he became upset and refused to follow the crew’s instructions, the Agency finds as a fact that he refused to follow instructions and was unruly.
Analysis and determinations
Rule 25 of Emirates’ Tariff provides Emirates with the discretion to refuse to transport a person whose conduct is disorderly, or persons who contravene any instructions or direction of the crew. The Agency finds that Mr. Anjum’s refusal, despite repeated demands, to hand his bag to the crew so that it could be stored in the hold, and his unruly behaviour, entitled Emirates to refuse to transport him.
With respect to Mr. Anjum’s statement regarding the carrier not having a policy to assist passengers who are refused transportation, Rule 25 of Emirates’ Tariff sets out the carrier’s policy regarding its authority and the conditions under which it will refuse to transport a person, as well as its obligations to that person.
The Agency notes that Emirates’ only obligation to a passenger it has refused to transport is that, at that passenger’s request, it may provide a refund of the unused portion of that passenger’s ticket in accordance with its Refund Rule. Emirates’ lack of assistance to Mr. Anjum, once he was refused transportation, relates to a question of customer service and does not raise a tariff issue over which the Agency has jurisdiction.
The Agency finds that Mr. Anjum failed to establish, on a balance of probabilities, that Emirates did not properly apply the terms and conditions set out in its Tariff when it refused to transport him on Flight No. EK 241.
Consequently, the Agency will not require that Emirates reimburse Mr. Anjum for the cost of his replacement ticket with KLM.
The Agency dismisses the application.
RULE 25 – REFUSAL TO TRANSPORT, LIMITATION OF CARRIAGE AND CONDUCT ABOARD AIRCRAFT
EK shall have the right to refuse to transport or shall have the right to remove from the aircraft at any point, any passenger for the following reasons:
Breach of Contract of Carriage - Failure of passenger to comply with the Rules of the Contract of Carriage.
Government Request or Regulations - whenever such action is necessary to comply with any government regulations, security directive, or any governmental request for emergency transportation in connection with national defense.
Force Majeure and Other Conditions - whenever such action is necessary or advisable by reason of weather or other conditions beyond EK’s control including, but not limited to acts of God, force majeure, strikes, civil carnations, embargoes, wars, hostilities, terrorist activities or disturbances, whether actual, threatened or reported.
Search of Passenger or Property - whenever a passenger refuses to submit to electronic surveillance or to permit search of his/her person or property.
Proof of Identity - whenever a passenger refuses on request to produce identification satisfactory to EK, or who presents a ticket to board and whose identification does not match the name on the ticket, EK will require identification of persons purchasing tickets and/or presenting a ticket for boarding the aircraft.
Failure to Pay - whenever a passenger has not paid the appropriate fare for a ticket, baggage or applicable service charges for services required for travel, or produced satisfactory proof to EK that the passenger is an authorized non-revenue passenger or has engaged in a prohibited practice as specified in Rule 65 (TICKETS).
(G) Across International Boundaries - whenever a passenger is crossing any international boundary, if:
(l) The government required travel documents of such passenger appear not to be in order according to EK’s reasonable belief; or,
(2) The passenger destroys his/her travel documentation during flight or between check-in and boarding, or refuses to allow EK to copy the travel documentation or refuses to surrender travel documentation to flight crew against receipt when requested;
(3) Such passenger’s embarkation from, transit through, or entry into any country from, through, or to which such passenger desires transportation would be unlawful or denied for any reason;
(4) EK has been informed by immigration or other governmental authorities of any country, through which or to which the passenger desires transportation, that the passenger will not be permitted entry to such country, even if the passenger has valid documents;
(5) The passenger has failed to give EK information in his/her possession that a governmental authority has lawfully asked EK to provide.
(H) Safety - whenever refusal or removal of a passenger may be necessary for the safety of such passenger or other passengers or members of the crew including, but not limited to:
(1) Persons whose conduct is disorderly, abusive or violent;
(2) Persons who fail to comply with or interfere with the duties of the members of the flight crew or any EK passenger;
(3) Persons contravene any instructions or direction of the crew issued for the purpose of securing the safety or security of the aircraft and for the comfort and convenience of passengers, including but not limited to, instructions concerning security, seating, smoking, consumption of alcohol or use of drugs, use of electronic equipment, including but not limited to cellular phones, laptop computers, POAs, portable recorders, portable radios, CD, DVD and MPS players, electronic games or transmitting devices, such as radio controlled toys and walkie talkies.
(4) Persons who consume alcohol which is not provided by ER as part of its in‑flight service.
(5) Persons who assault any employees of EK, including the gate agents and flight crew and any EK passenger;
(6) Persons who have made a bomb threat or any other security threat;
(7) Persons whose carriage, or carriage of their baggage, has endangered or affected the safety of the aircraft or anyone in the aircraft or may do so;
(8) Persons who, through and as the result of their conduct, cause a disturbance such that the captain or a member of the cockpit crew must leave the cockpit in order to attend to the disturbance;
(9) Persons who are barefoot or not properly clothed;
(10) Persons who are unable to sit in a single seat with a seat belt properly secured, unless they comply with Rule 65 (TICKETS).
(11) Persons who appear to be intoxicated or under the influence of drugs unless the appearance of such condition is solely due to the person being a Qualified Individual with a Disability and in the case of the latter boarding will not be denied;
(12) Persons who wear or have on or about their person concealed or unconcealed deadly or dangerous weapons; persons who have committed a criminal offence during embarkation to their flight or disembarkation for another flight, or aboard the aircraft;
(13) Persons who are manacled;
(14) Persons who have resisted or may reasonably be believed to be capable of resisting custodial supervision;
(15) Pregnant passengers expecting over 28 weeks gestation unless they present a medical certificate from a qualified obstetrician or gynecologist dated within ten days of date of travel, stating 34 weeks of expected confinement, unless such passenger provides a doctor’s certificate dated no more than 10 days prior to departure of the originating flight stating that the doctor has examined and found the passenger to be physically fit for air travel to and from the destination requested on the date of the flight and that the estimated date of delivery is after the date of the last flight. Special clearance is required from EK for pregnant passengers over 36 weeks gestation seeking to travel on flights of up to 4 hours in duration and 35 weeks gestation for flights over 4 hours in duration;
(16) Persons with a communicable disease or infection known or reasonably believed by EK to pose a direct threat to the health or safety of others in the course of the flight. If a Qualified Individual with a Disability with such communicable disease or infection presents a medical certificate (dated within 10 days of the date of the flight for which it is being presented to EK with specific conditions under which such person can travel and not pose a threat to the health and safety of other persons, transportation will be provided to such individual unless it is not feasible for EK to implement the conditions set forth in the medical certificate as necessary to prevent the transmission of the disease or infection to other persons in the normal course of the flight.
(17) Persons who fail to travel with the required attendant(s) pursuant to Rules 21 (TRANSPORT OF PERSON WITH DISABILITIES) and 22 (MEDICAL SERVICES).
(18) Persons who do not qualify as acceptable Qualified Persons with a Disability. See Rule 21.
Weight or Seating Limitations - If the aircraft’s weight limitations or seating capacity would otherwise be exceeded, carrier shall decide in its reasonable discretion which passengers or articles shall not be carried.
Refunds - EK may, at the request of a passenger who is removed or refused transportation in accordance with this Rule, provide a refund of the unused portion of his/her ticket in accordance with Rule 90 (REFUNDS)