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24 February 2021
The British Columbia Civil Resolution Tribunal (BCCRT) recently ruled on a dispute involving an air carrier which had refused to transport a disruptive passenger.
In Serbinenko v Air Canada (2020 BCCRT 1330), the BCCRT found that the carrier, Air Canada, had presented sufficient evidence – a contemporaneous report, a passenger name record and a witness statement from the lead flight attendant – to demonstrate that the passenger had been disruptive, and that Air Canada was therefore justified in refusing to transport her.
The applicant had a valid ticket and boarding pass for an Air Canada flight on 13 December 2019 from Las Vegas, Nevada to Vancouver, British Columbia.
The respondent, Air Canada, refused to let the applicant board the flight due to her allegedly "abusive or disorderly behaviour" when a dispute arose about the size and number of carry-on bags permitted. The applicant was escorted away by security and prevented from flying with Air Canada for 24 hours.
The applicant claimed that she was entitled to C$1,831.93, which covered:
Rule 75(B)(2)(c) of Air Canada's tariff (the contract between Air Canada and its passengers) states that Air Canada may refuse to transport passengers where it reasonably decides that they have engaged in prohibited conduct. Rule 75(B)(1) sets out various types of prohibited conduct, including abusive, offensive and otherwise disorderly conduct, as well as failing to observe the instructions of Air Canada and its employees.
The issue before the BCCRT was whether the applicant had engaged in prohibited conduct in breach of the tariff and, if not, how much Air Canada owed in damages for the return air fare and lost income, if anything.
Air Canada submitted as evidence a disruptive passenger report prepared on the date of the incident. The report described how the applicant had become rude and demanded to speak to the aircraft's captain after she was told that she had exceeded her carry-on allowance and must gate check her remaining luggage. The report further stated that the applicant had grabbed her passport from gate staff and tried to proceed down the jetway before she was stopped. According to the report, the applicant had continued to cause a scene, so gate staff had called security and denied her boarding. She had also been barred from flying with Air Canada for 24 hours. Air Canada submitted a passenger name record to substantiate this series of events.
Air Canada also submitted a witness statement from the lead flight attendant which described the incident with the applicant. The lead flight attendant had not personally witnessed the applicant's disruptive behaviour, so the BCCRT accepted the statement only for the proposition that the lead flight attendant considered the applicant's behaviour as described by gate staff to be a safety risk.
The applicant denied engaging in any inappropriate behaviour and accused Air Canada's gate staff of "discriminatory, racist behaviour". The applicant stated that she was Caucasian and had an eastern European accent. She further stated that the gate staff had belonged to a different visible minority group. The applicant had advanced claims for moral damages and apologies for discrimination which she withdrew before the hearing.
The applicant relied on her status as a well-known pilot to ground her argument that her behaviour had been reasonable. She also stated that she had been able to gate check one bag and that the gate staff had been rude to her. She did not submit documentary evidence created around the time of the incident.
The BCCRT denied the applicant's claims.
The BCCRT noted at the outset that applicants in civil proceedings have the onus of proving their cases on a balance of probabilities (ie, more likely than not). The tribunal was persuaded by the documentary evidence submitted by Air Canada and accepted the carrier's version of events.
The BCCRT found that under Rule 75(B)(3) of Air Canada's tariff, its liability was limited to the refund value of the unused portion of the ticket. However, the applicant had not claimed a refund for the unused portion of her ticket.
The tribunal further found that the applicant was not entitled to recover replacement flight costs or lost income, up to the refund value of her ticket, relating to the missed flight.
The BCCRT referred to Article 20 of the Montreal Convention, an international agreement that governs international carriage by air to which Canada and the United States are state parties. The Montreal Convention is incorporated into Canadian law at Schedule VI of the Carriage by Air Act (RSC 1985, c C-26), Article 20 of which states as follows:
If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage.
In this case, the BCCRT found that "Air Canada's refusal to transport [the applicant] was entirely due to her own prohibited conduct". As such, Air Canada could rely on the exoneration provision in Article 20 of the Montreal Convention. The tribunal also found that the applicant had not presented any documentary evidence to support her lost income claim.
This decision is instructive for air carriers faced with a disruptive passenger. It lays out the type of evidence which a carrier should be prepared to present to avoid liability, such as contemporaneous reports and witness statements. It also serves as a reminder to passengers that they have an obligation to be respectful while travelling.
For further information on this topic please contact Carlos P Martins or Emma Romano at WeirFoulds by telephone (+1 416 982 3800) or email (email@example.com or firstname.lastname@example.org). The WeirFoulds website can be accessed at www.weirfoulds.com.
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Carlos P Martins