Decision No. 38-C-A-2018

June 1, 2018

APPLICATION by Hassan Salam against Air Canada also carrying on business as Air Canada rouge and as Air Canada cargo (Air Canada) pursuant to 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR).

Case number: 
18-00149

SUMMARY

[1] Hassan Salam filed an application with the Canadian Transportation Agency (Agency) on January 9, 2018. Pleadings opened on January 29, 2018. On February 19, 2018, Air Canada filed its answer. Mr. Salam filed a reply on February 26, 2018.

[2] Mr. Salam was scheduled to travel on Flight No. ZX1851 from Toronto, Ontario to Las Vegas, Nevada on November 15, 2016. Mr. Salam submits that he was denied boarding as Air Canada claimed that he arrived too late at the boarding gate. He submits that a confrontation ensued and that police were called. Mr. Salam was subsequently banned by Air Canada from future flights.

[3] Mr. Salam is seeking an explanation as to why he was treated “negatively” as well as an apology and compensation for damages. He also asks that the travel ban imposed by Air Canada be lifted.

[4] Air Canada requests that the application be “temporarily suspended” pending the determination of a Canadian Human Rights Commission (CHRC) investigation, initiated by Mr. Salam, into the same incident. Air Canada also submits that it correctly applied Rule 70, Check-in and boarding time limits, and Rule 75, Refusal to transport, of its International Passenger Rules and Fares Tariff NTA(A) No. 458 (Tariff). Air Canada further submits that Rule 90, Denied boarding, is not applicable as a person who misses their flight does not qualify as a denial of boarding.

[5] Air Canada advises that the ban will remain in effect until such time as Mr. Salam provides satisfactory assurances that he will not pose a risk on future flights.

[6] The Agency will address the following issues:

  • Did Air Canada properly apply the terms and conditions set out in Rules 70(B) and (C) and Rule 75(D)(4) of its Tariff as required by subsection 110(4) of the ATR? If not, what remedies, if any, are available to Mr. Salam?
  • Did Air Canada properly apply the terms and conditions set out in Rules 75(II)(A)(2) and (B)(3) of its Tariff as required by subsection 110(4) of the ATR? If not, what remedies, if any, are available to Mr. Salam?

[7] For the reasons set out below, the Agency denies Air Canada’s request to stay the application and finds that it properly applied its Tariff in respect of Rules 70(B) and (C) and Rules 75(II)(A)(2) and (B)(3).

PRELIMINARY MATTER

[8] On April 24, 2017, Mr. Salam filed an application with the CHRC. He subsequently filed an application with the Agency on January 9, 2018.

[9] Air Canada requests that the application before the Agency be stayed pending the CHRC’s investigation. According to Air Canada, having two tribunals simultaneously hear complaints arising from the same incident risks “… contradictory decisions or double jeopardy.”

[10] Mr. Salam requests that the Agency’s investigation proceed.

[11] Section 30 of the Canada Transportation Act, S.C., 1996, c. 10 (CTA) entitles the Agency to hear and determine the same question of fact pending in another court or tribunal. The Agency notes that while the issues before it and the CHRC arise from the same incident, they are not substantively similar. Whereas the Agency is investigating whether Air Canada correctly applied its Tariff, the CHRC is investigating whether Mr. Salam faced discrimination. The risk of contradictory decisions is therefore minimal. Given that the substantive issues to be determined by the Agency and those to be determined by the CHRC are largely non-overlapping, there is little justification to stay the application presently before the Agency. Accordingly, the Agency will exercise its power under section 30 of the CTA and proceed with the current application. The investigation will be limited to whether Air Canada correctly applied its Tariff and will not consider the allegations of discrimination in its findings.

THE LAW

[12] 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.

[13] 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 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.

[14] Rule 70(B) of Air Canada’s Tariff states that:

The passenger must be available for boarding at the boarding gate at least 15 minutes (exception for Tel Aviv 60 minutes and Casablanca: 30 minutes, for domestic flights and flights to/from the U.S.: 15 minutes) prior to scheduled departure time of the flight on which he/she holds a reservation.

[15] Rule 70(C) of Air Canada’s Tariff states that:

If passenger fails to meet any of these requirements, the carrier may reassign prereserved seat and/or cancel the reservation of such passenger(s) who arrives past the aforementioned time limits. Carrier is not liable to the passenger for loss or expense due to failure by a passenger to comply with this rule. Carrier’s liability shall be limited to providing a general refund, per rule 100.

[16] Rule 75(D)(4) of Air Canada’s Tariff states that it will refuse transport to a passenger if:

Such passenger fails or refuses to comply with the rules and regulations of the carrier, including check-in or boarding time-limits.

[17] Rule 75(II)(A)(2) of Air Canada’s Tariff states that a passenger may be refused transport if:

[T]he person’s conduct, or condition is or has been known to be abusive, offensive, threatening, intimidating, violent, or otherwise disorderly, and in 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 other passengers or carrier’s employees, interfere with crew member in the performance of his/her duties aboard carrier’s aircraft, or otherwise jeopardize safe and adequate flight operations.

[18] Rule 75(II)(B)(3) of Air Canada’s Tariff states that it may impose the following sanction:

[R]efuse 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. […]

[19] Rule 90(D) of Air Canada’s Tariff states that:

[…]

(1) A passenger will be considered to have been denied boarding when

(a) The passenger presented himself for carriage in accordance with this tariff: Having complied fully with AC applicable reservation, ticketing, Immigration formalities, check‑in and boarding with the time limits at the location set out in [N]Rule 70-check-in and boarding time limits; and

(b) It must not have been possible to accommodate the passenger on the flight on which he held confirmed reservations and the flight must have departed without him.

[…]

[20] Rule 105(C)(4)(a) of Air Canada’s Tariff states that:

Carrier is not liable for any death, injury, delay, loss, or other damage of whatsoever nature […] to passengers or unchecked baggage arising out of or in connection with carriage or other services performed by the carrier incidental thereto, unless such damage is caused by the negligence of carrier.

[21] Rule 105(C)(12) states that:

Carrier shall not be liable for punitive, non-compensatory, exemplary damages or for any damage with no sufficient causal link, arising from or connected in any way with any act or omission by the carrier, its employees or agents, whether or not such act or omission was negligent and whether or not the carrier had knowledge that such damages might be incurred.

DID AIR CANADA PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULES 70(B) AND (C) AND RULE 75(D)(4) OF ITS TARIFF AS REQUIRED BY SUBSECTION 110(4) OF THE ATR? IF NOT, WHAT REMEDIES, IF ANY, ARE AVAILABLE TO MR. SALAM.

Mr. Salam’s position

[22] According to Mr. Salam, he was not permitted to board Flight No. ZX1851, which was departing at 9:30 a.m., because Air Canada claimed that he was late at the boarding gate. Mr. Salam disputes that he was late and submits that he arrived at the boarding gate at 9:08 a.m. Mr. Salam acknowledges that he was delayed at check-in but submits that it was because the check-in counter was understaffed. He submits that were it not for this delay, he would have arrived at the boarding gate even earlier.

[23] Mr. Salam argues that he was denied boarding and is therefore entitled to the accommodation and compensation prescribed under Rule 90 of Air Canada’s Tariff, which governs the conditions under which Air Canada will compensate passengers for denied boarding. Mr. Salam submits that once he was denied boarding, Air Canada personnel provided no assistance and became “loud and argumentative”. Mr. Salam submits that he was then told to step aside and ignored while other passengers boarded the flight.

[24] Mr. Salam also argues that Air Canada is liable for damages under Rules 105(C)(4)(a) and (C)(12) of the Tariff. In general, Rule 105(C) sets out various limitations on Air Canada’s liability in connection with the international carriage of its passengers. More particularly, Rule 105(C)(4)(a) limits Air Canada’s liability in respect of any death, injury, delay, loss, or other damage to passengers or unchecked baggage. Rule 105(C)(12) limits Air Canada’s liability in respect of any damages related to acts or omissions of its employees or agents.

Air Canada’s position

[25] Air Canada submits that Mr. Salam was not denied boarding. Instead, Air Canada argues that Mr. Salam did not comply with Rule 70 of its Tariff, which outlines check-in and boarding times. According to Rule 70, for flights to or from the United States, passengers must be at the boarding gate at least 15 minutes in advance of departure. According to Air Canada, Mr. Salam failed to meet this requirement and, accordingly, was refused transport under Rule 75(D)(4), which states that a passenger can be refused transport if they fail to comply with check-in and boarding times.

[26] According to two witness statements made to police by Air Canada employees who were working at the gate from which Flight No. ZX1851 departed, Mr. Salam arrived at the boarding gate after 9:20 a.m. for a flight departing at 9:30 a.m. One witness statement indicates that he arrived at 9:22 a.m., by which time Air Canada was “processing the last few passengers that were waiting on standby.” The other witness statement indicates that Mr. Salam arrived at 9:25 a.m., at which time Air Canada was “almost finished boarding and ready to dispatch the flight.” According to one witness statement, Mr. Salam had not answered announcements for last call to board Flight No. ZX1851. The witness statement indicates that, in keeping with standard operating procedures, Mr. Salam’s assigned seat was released to another passenger on standby at 9:17 a.m. A Departure Control System (DCS) record submitted by Air Canada shows that Mr. Salam was “offloaded” from Flight No. ZX1851 at 9:17 a.m. and that his seat was given to another passenger.

[27] Air Canada submits that, because Mr. Salam was not denied boarding, he is not entitled to denied boarding compensation. Further, Air Canada advises that, because Mr. Salam’s ticket was non-refundable, he is not entitled to a refund.

[28] Air Canada submits that after missing Flight No. ZX1851, Mr. Salam became agitated and argumentative. One of the witnesses, in her statement, says that Mr. Salam threw coffee at her face. She submits that she avoided it but that the coffee landed on the counter and her hand. She submits that the coffee was “hot” as steam was rising from the coffee on the desk. The other witness statement indicates that Mr. Salam splashed coffee over the counter. Following the incident, personnel advised Mr. Salam that he would not be travelling at all.

Mr. Salam’s reply

[29] In reply to Air Canada, Mr. Salam included a receipt showing that he purchased a coffee at 9:06 a.m. Mr. Salam submits that the coffee shop is next to the boarding gate so he must have arrived at the gate within four minutes of purchasing the coffee (i.e. more than 15 minutes before the scheduled departure of Flight No. ZX1851).

[30] Mr. Salam submits that while he may have been “offloaded” from Flight No. ZX1851 at 9:17 a.m., it was only because personnel at the boarding gate ignored him while they processed other passengers.

[31] Finally, Mr. Salam states that in one witness statement, the Air Canada agent indicates that the coffee on the desk was steaming. Mr. Salam notes that according to this same witness statement, this would have been around 9:28 a.m. Mr. Salam provided a receipt showing that he purchased a coffee at 9:06 a.m. According to Mr. Salam, coffee cools in two to three minutes. He submits that the coffee either was steaming, in which case he was on time at the boarding gate, or the coffee was not steaming, in which case parts of the witness statement have been fabricated.

Findings of fact

[32] Mr. Salam submits that he was denied boarding. Air Canada submits that he was refused transport in accordance with Rule 75(D)(4) because he did not comply with Rule 70 of the Tariff. The onus is on Mr. Salam to establish, on the balance of probabilities, that he was denied boarding by demonstrating that he was at the boarding gate at least 15 minutes prior to the scheduled departure of Flight No. ZX1851.

[33] The Agency notes that the receipt showing that Mr. Salam purchased a coffee at 9:06 a.m. is the only evidence he has provided to demonstrate that he complied with applicable check-in and boarding times under Rule 70 of Air Canada’s Tariff. The receipt establishes that Mr. Salam was at a coffee shop at 9:06 a.m. but does not establish at what time he arrived at the boarding gate. Although a witness statement indicates that the coffee was still steaming at the time Air Canada personnel interacted with Mr. Salam, this also does not establish at what time Mr. Salam arrived at the boarding gate.

[34] Air Canada provided two witness statements taken by police shortly after the incident at the boarding gate as well as a copy of the DCS record for the flight. Both witness statements indicate that Mr. Salam arrived at the gate after 9:20 a.m. for a flight that was departing at 9:30 a.m. In its Tariff, Air Canada requires passengers on transborder flights such as this to arrive at the gate at least 15 minutes before departure. The DCS record shows that Mr. Salam was “offloaded” at 9:17 a.m. The two witness statements and the DCS record are compelling evidence that Mr. Salam was late at the boarding gate.

[35] The Agency considers Air Canada’s evidence to be stronger than that submitted by Mr. Salam. On a balance of probabilities, the Agency therefore finds that Mr. Salam arrived at the boarding gate sometime after 9:20 a.m. for a flight that was departing at 9:30 a.m. Stated another way, the Agency finds that Mr. Salam was refused transport on Flight No. ZX1851 in accordance with Rule 75(D)(4) because he did not comply with the boarding time requirements set out in Rule 70.

ANALYSIS AND DETERMINATIONS

[36] Rule 70(B) of Air Canada’s Tariff states that, for transborder flights, a passenger must arrive at the boarding gate at least 15 minutes in advance of the flight’s scheduled time of departure. Rule 70(C) states that the carrier may reassign a pre-reserved seat and/or cancel the reservation of a passenger who arrives past the aforementioned time limit. The Agency has already found that Mr. Salam was not denied boarding and instead refused transport on Flight No. ZX1851 because he was late at the boarding gate. Accordingly, the Agency finds that Air Canada properly applied the terms and conditions set out in Rules 70(B) and (C) and Rule 75(D)(4) of its Tariff by refusing Mr. Salam transport when it re-assigned his seat once the deadline to arrive at the boarding gate had expired. The Agency further finds that the Rules governing the denial of boarding in Air Canada’s Tariff are not applicable. This portion of Mr. Salam’s application is therefore dismissed.

[37] Finally, Mr. Salam argues that Air Canada is liable for damages under Rules 105(C)(4)(a) and 105(C)(12) of its Tariff. Rule 105(C)(4)(a) states that Air Canada is not liable for any death, injury, delay, loss, or other damage that is not covered by the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention). As the Montreal Convention does not address refusal to transport, Mr. Salam has no claim under 105(C)(4)(a). Rule 105(C)(12) states that Air Canada is not liable for punitive, non-compensatory, exemplary damages or for any damage with no sufficient causal link, arising from or connected in any way with any act or omission by the carrier, its employees or agents, whether or not such act or omission was negligent and whether or not the carrier had knowledge that such damages might be incurred. Given that the Rules cited by Mr. Salam limit Air Canada’s liability, Mr. Salam has not established the basis on which these rules entitle him to any form of compensation. Accordingly, the Agency dismisses Mr. Salam’s claims for compensation under Rules 105(C)(4)(a) and (C)(12).

DID AIR CANADA PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULES 75(II)(A) AND (B) OF ITS TARIFF AS REQUIRED BY SUBSECTION 110(4) OF THE ATR? IF NOT, WHAT REMEDIES, IF ANY, ARE AVAILABLE TO MR. SALAM?

Mr. Salam’s position

[38] Mr. Salam asks that the travel ban imposed by Air Canada be lifted.

Air Canada’s position

[39] Air Canada submits that after missing Flight No. ZX1851, Mr. Salam became agitated and argumentative. In her statement, one of the witnesses attests that Mr. Salam threw coffee at her face. She states that she avoided the coffee, but that it landed on the counter and her hand. The other witness statement indicates that Mr. Salam splashed coffee over the counter.

[40] Air Canada submits that Mr. Salam’s conduct “…jeopardized the security of Air Canada employees” and is the reason he was banned from future travel. The travel ban, Air Canada submits, is justified and consistent with the sanctions permitted under Rule 75 of its Tariff, which states that a passenger may be refused transport if, in the reasonable discretion of the airline, such refusal is necessary to ensure the physical comfort or safety of the person, other passengers (in the future and present) and/or carrier employees.

[41] Air Canada advises that the ban will remain in effect until such time as Mr. Salam provides satisfactory assurances that he will not pose a risk on future flights.

Mr. Salam’s reply

[42] Mr. Salam questions Air Canada’s evidence, including the credibility of the witness statements, which he submits were “fabricated,” “malicious”, and intended to result in his arrest.

[43] Mr. Salam submits that according to Air Canada, the witness statements that it provided were part of its internal investigation. Mr. Salam points out, however, that the witness statements were actually police reports.

[44] Mr. Salam points out Air Canada’s claim that he was late and that the flight was being dispatched by the time he arrived at the boarding gate. He submits that this claim is contradicted by the passengers he observed still boarding the flight.

[45] Mr. Salam also believes that there is a contradiction in the witness statements concerning what the agents were doing at the time he arrived at the boarding gate: whereas one statement indicates that the agents were processing the last passengers waiting on standby at 9:22 a.m., the other statement indicates that the flight was being dispatched at 9:25 a.m. Mr. Salam believes that this alleged contradiction warrants further investigation by the Agency.

[46] Mr. Salam identifies another alleged contradiction in relation to the incident involving the coffee. He submits that one witness statement claims that the coffee was thrown at the face of one of the agents, while the statement made by the other agent indicates that the coffee was splashed over the counter. Mr. Salam submits that these two accounts are inconsistent and claims that video surveillance footage would show that he did not throw coffee at the agents.

[47] Finally, with respect to the witness statement claiming that the coffee was steaming at the time of the alleged altercation, Mr. Salam submits that, as coffee cools in two to three minutes, this statement constitutes proof that either he was on time at the boarding gate or, if the alleged incident took place after 9:20 a.m. as claimed in the two statements, that the coffee could not have been steaming. Mr. Salam submits that this alleged contradiction strongly suggests that parts of the witness statements have been fabricated.

Findings of Fact

[48] The evidence on the record of these proceedings establishes that Mr. Salam was given an indefinite travel ban. Air Canada submits that the travel ban was administered in accordance with Rule 75 of its Tariff on the basis that Mr. Salam threatened the safety of its personnel, as reflected in two contemporaneous witness statements provided to police. Mr. Salam submits that the Agency should not attach much weight to Air Canada’s evidence and, in particular, to the witness statements it has adduced in light of the inconsistencies and contradictions that he has identified in his pleadings. Mr. Salam further submits that the witness statements were “fabricated”, “malicious”, and intended to result in his arrest. Given that Air Canada’s decision to ban Mr. Salam appears to be largely based on the accounts provided by its personnel, the Agency must assess the credibility of the witness statements before considering what facts the witness statements, along with Mr. Salam’s evidence, establish.

[49] The Agency has considered Mr. Salam’s arguments in support of his position but, for the reasons that follow, finds that the witness statements are credible and, along with Mr. Salam’s evidence, establish that he became agitated, argumentative, and that he splashed coffee over the counter at the boarding gate.

[50] The Agency notes that although Mr. Salam suggests that the witness statements were “fabricated”, “malicious”, and intended to result in his arrest, he never denies becoming agitated and argumentative with Air Canada personnel. The Agency finds that this supports the credibility of the witness statements.

[51] Mr. Salam also takes issue with Air Canada’s mischaracterization of the witness statements as internal documents when they were actually statements made to the police. However, if anything, the fact that these contemporaneous statements were provided to police enhances their credibility and, thereby, the weight they should be given.

[52] The Agency notes Mr. Salam’s argument that he must have been on time at the boarding gate because he observed other passengers still boarding the aircraft. The Agency notes, however, that this observation is consistent with the witness statements indicating that personnel were “processing the last few passengers that were on standby” or “almost finished boarding and ready to dispatch.” The consistency of the accounts provided in the witness statements as opposed to that of Mr. Salam’s observation adds to the credibility of these statements.

[53] Mr. Salam suggests that the two witness statements contradict one another in respect of what the agents were doing at the time Mr. Salam arrived at the boarding gate. One statement states that the agents were processing the last remaining passengers at 9:22 a.m. The other witness statement states that they were ready to dispatch the aircraft at 9:25 a.m.. Ultimately, both witness statements convey that the flight was imminently set to depart at the time Mr. Salam arrived at the boarding gate. The Agency finds that the differing descriptions to convey this point do not amount to an obvious or significant contradiction requiring further investigation.

[54] Mr. Salam submits that the amount of time it takes for coffee to cool, which he contends is two to three minutes, undercuts claims made in the two witness statements adduced by Air Canada. In particular, Mr. Salam argues that, if the coffee was steaming at the time he arrived at the boarding gate, as claimed in the witness statements, then he must have been on time given the receipt showing that he purchased a coffee at 9:06 a.m. However, if the alleged incident involving the coffee took place after 9:20 a.m., as stated in the witness statements, then the coffee could not have been steaming when he approached the gate. Mr. Salam argues that this alleged contradiction strongly suggests that the witness statements were fabricated. The Agency finds that this argument turns on a speculative claim about how long it takes for coffee to cool. In any event, the Agency has already found that Mr. Salam was late at the boarding gate. Moreover, the Agency notes that Mr. Salam never denied splashing coffee over the counter. To the contrary, Mr. Salam’s own account indicates that there was coffee on the counter, which at least partially corroborates the accounts in the witness statements, thereby enhancing their credibility.

[55] The arguments that Mr. Salam has advanced to show that the witness statements should be given little weight are unconvincing and, to the contrary, appear in some instances to corroborate Air Canada’s description of events. The Agency finds, therefore, that the witness statements from Air Canada are credible and, along with Mr. Salam’s evidence, establish that Mr. Salam became agitated, argumentative and splashed coffee over the counter at the boarding gate. Accordingly, the Agency finds that, after having missed his boarding time for Flight No. ZX1851, Mr. Salam became agitated, argumentative and eventually splashed coffee towards Air Canada personnel.

ANALYSIS AND DETERMINATIONS

[56] The facts establish that Mr. Salam became agitated, argumentative and that he eventually splashed his coffee towards Air Canada personnel. The Agency finds that this behaviour violates Rule 75 of Air Canada’s Tariff, which states that a person may be refused travel if 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 judgement of a responsible Air Canada employee, there is a possibility that such a passenger would cause disruption or serious impairment to the physical comfort or safety of other passengers or Air Canada employees, interfere with crew members in the performance of their duties aboard the aircraft, or otherwise jeopardize safe and adequate flight operations.

[57] Regarding the length of the ban, Air Canada advises that it will remain in effect until such time as Air Canada is satisfied that Mr. Salam no longer poses a risk to himself, Air Canada personnel or other passengers. The Agency finds that Air Canada’s position with respect to the length of Mr. Salam’s travel ban is in accordance with Rule 75 of Air Canada’s Tariff, which provides that the length of a refusal to transport may range from a one-time ban to an indefinite ban to a lifetime ban. The length of the refusal period is in Air Canada’s reasonable discretion, and will be for a period commensurate with the nature of the prohibited conduct and until Air Canada is satisfied that Mr. Salam no longer constitutes a threat to the safety or comfort of other passengers or Air Canada crew, the unhindered performance of Air Canada crew members in their duties aboard the aircraft or safe and adequate flight operations.

[58] In light of the above, the Agency finds that Air Canada properly applied Rule 75 of its Tariff in imposing the travel ban on Mr. Salam.

CONCLUSION

[59] Mr. Salam’s application is dismissed.

Member(s)

William G. McMurray
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