Fowlie's Follies: The Latest Adventures of Frank Fowlie, ICANN Ombudsman & Civility Policeman

[Avri Doria]

Hi,

It is up to the Board to renew his contract or not.  They did last year even though they knew better.

But the problem is that he is supposed to be this independent review mechanism, so it is difficult to just remove him.  I have not seen the contract so I don't know under what basis he can be removed.

The bylaws, should have a term limit to get by this, especially since most of the literature I have seen on ombudsmen seems to indicate a few year fixed term is better than an open ended term of forever - you can't remain objective that long.

a.

On 19 Jul 2010, at 16:52, Dan Krimm wrote:

> Are there any formal procedures that would allow petition for his removal
> and replacement?  (Does ICANN have an equivalent to "impeachment"?)
> 
> Or does this rely on Rod to decide unilaterally it's time for him to move
> on?  I assume the Board can weigh-in to Rod about it, but can it act
> directly on its own accord to remove him?  Is there any provision for a
> public-input procedure?
> 
> Is there *any* ICANN-defined "rule of law" surrounding such circumstances,
> or is it purely the rule of humans?
> 
> Dan
> 
> 
> -- 
> Any opinions expressed in this message are those of the author alone and
> do not necessarily reflect any position of the author's employer.
> 
> 
> 
> On Mon, July 19, 2010 1:42 pm, Avri Doria wrote:
>> Hi,
>> 
>> One would think that if he had any professional honor, he would have
>> resigned from ICANN a while back.
>> 
>> a.
>> 
>> On 19 Jul 2010, at 16:21, Robin Gross wrote:
>> 
>>> Unfortunately, ICANN's Ombudsman continues to embarrass the organization
>>> and discredit its accountability mechanisms.  A few days ago, the
>>> Canadian Transportation Authority denied ICANN Ombudsman Frank Fowlie's
>>> request to remove his name from the Feb 2010 panel decision in which
>>> Fowlie was found to engage in "abusive and offensive" conduct  and
>>> manipulate evidence before the tribunal authority.
>>> 
>>> Not only is the public stuck with the $410,000 per year expense in the
>>> ICANN budget for Fowlie's war on free expression at ICANN in the name
>>> "civility", he doesn't think the public should be allowed to hear just
>>> how uncivil and manipulative he can be.
>>> 
>>> And the ombudsman is supposed to be some kind of pillar upon which
>>> accountability and transparency can depend at ICANN?  Yikes....
>>> 
>>> Robin
>>> 
>>> -------------------------
>>> 
>>> http://www.otc-cta.gc.ca/decision-ruling/decision-ruling.php?id=29891&lang=eng
>>> 
>>> AGENCY RULINGS
>>> 
>>> Decision No. 289-C-A-2010
>>> 
>>> July 7, 2010
>>> 
>>> APPLICATION by Dr. Frank Fowlie for non‑publication of his name in
>>> Decision No. 57-C-A-2010.
>>> 
>>> File No. M4120-3/10-01812
>>> 
>>> 
>>> INTRODUCTION
>>> 
>>> [1] In Decision No. 57‑C‑A-2010 dated February 18, 2010, the
>>> Canadian Transportation Agency (Agency) dismissed Dr. Frank Fowlie's
>>> complaint with respect to Air Canada's refusal to transport him on
>>> Flight AC195 from Montréal, Quebec to Vancouver, British Columbia on
>>> March 22, 2009. The Agency found that Dr. Fowlie engaged in abusive and
>>> offensive behaviour during Flight AC871 and that he failed to discharge
>>> the burden of proving that Air Canada did not properly apply the terms
>>> and conditions set out in Rule 25 of its Tariff.
>>> 
>>> [2] On March 1, 2010, Dr. Fowlie filed an application under section 32
>>> of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)
>>> for review of Decision No. 57‑C‑A‑2010. On March 9, 2010, the
>>> Agency received a request from Dr. Fowlie for non‑publication of his
>>> name in Decision No. 57-C-A-2010, which had been issued and posted on
>>> the Agency's Web site on February 18, 2010. He essentially alleges that
>>> the decision has created an adverse and likely unintended impact by
>>> making him the target of media scrutiny.
>>> 
>>> BACKGROUND
>>> 
>>> [3] On April 16, 2010, Dr. Fowlie was requested to complete his
>>> application for non-publication by providing evidence and arguments on
>>> the open court principle. He was also advised of the evidentiary burden
>>> of proof and the test he had to meet for the Agency to depart from the
>>> open court principle and make an exception.
>>> 
>>> [4] On May 7, 2010, the Agency received further submissions from Dr.
>>> Fowlie which completed the application.
>>> 
>>> [5] On May 19, 2010, the completed application for non-publication was
>>> forwarded to Air Canada as a party to this proceeding and Air Canada was
>>> provided an opportunity to comment, which it did on June 4, 2010. Dr.
>>> Fowlie did not reply to Air Canada's answer.
>>> 
>>> ISSUE
>>> 
>>> [6] Has Dr. Fowlie met the burden of proof that a non-publication order
>>> is necessary to prevent a serious risk to an important public interest,
>>> and that the salutary effects of non-publication outweigh the
>>> deleterious effects on the freedom of expression of those affected by
>>> the order?
>>> 
>>> SUBMISSIONS
>>> 
>>> Dr. Fowlie
>>> 
>>> [7] Dr. Fowlie claims that by treating him in a manner different than
>>> previous applicants to the Agency (namely, Decision No. 383-C-A-2008 in
>>> the matter of a complaint filed by "K" against Air Canada), the Agency
>>> has been unfair and has damaged his professional reputation. Dr. Fowlie
>>> requests that the Agency publish the decision in the same generic manner
>>> as in the "K" matter.
>>> 
>>> [8] Dr. Fowlie claims that the publication of the decision has had an
>>> adverse impact on his livelihood and that since the publication of the
>>> decision and the reporting of it in online journals relating to his
>>> profession, he has become a target of media scrutiny.
>>> 
>>> Evidence of harm
>>> 
>>> [9] Dr. Fowlie claims that a non-publication order is necessary to
>>> prevent a serious risk to an important interest which in this case is
>>> Dr. Fowlie's employment as an ombudsman that carries an emphasis on
>>> public perception of impartiality and neutrality. Dr. Fowlie claims that
>>> the ruling in Decision No. 57-C-A-2010 has a direct and highly
>>> detrimental impact on that perception that goes beyond the scope of mere
>>> embarrassment and undermines public confidence in the Office of the
>>> Ombudsman. He alleges that this impact directly interferes with his
>>> ability to perform his job.
>>> 
>>> [10] Dr. Fowlie states that the scope and nature of his employment is
>>> uniquely sensitive to matters such as the present case, and the threat
>>> to that employment posed by publication is real. According to Dr.
>>> Fowlie, this goes beyond mere embarrassment. Dr. Fowlie expressed
>>> concerns about his ability to retain his current employment or obtain
>>> similar employment in the future, but presented no supporting evidence
>>> to that effect. Dr. Fowlie further states that he could not have
>>> reasonably foreseen that his initial complaint filed with the Agency
>>> could have been denied and gone so far as to ultimately impair his
>>> ability to maintain employment as an ombudsman.
>>> 
>>> [11] Dr. Fowlie submits that there would be little or no deleterious
>>> effect to the public at large in imposing a confidentiality order in
>>> this case, and that when the prejudice to his livelihood resulting from
>>> publication is weighed against the minimal prejudice to the public that
>>> would result from non-publication, the balance strongly militates in
>>> favour of the non-publication order.
>>> 
>>> Timing of request
>>> 
>>> [12] In his reply to the Agency's request to explain why non-publication
>>> was not sought in the course of the complaint procedure, Dr. Fowlie
>>> submits that at the time that the complaint process was in progress, he
>>> had no reasonable apprehension of the negative impact of the Agency's
>>> findings on his ability to maintain or obtain employment as an ombudsman
>>> or similar public official position.
>>> 
>>> Mootness of request
>>> 
>>> [13] Dr. Fowlie affirms that the Internet contains both primary and
>>> secondary sources of information. Dr. Fowlie submits that the Agency's
>>> published decisions are the primary source and are maintained in
>>> perpetuity; and third-party commentators constitute secondary sources.
>>> Dr. Fowlie also submits that the present secondary sources would
>>> disappear over time and newer secondary sources would pick up the new,
>>> anonymously attributed decision. According to Dr. Fowlie, there is much
>>> to be gained by imposing the request order now.
>>> 
>>> Air Canada
>>> 
>>> [14] Air Canada submits that there is a strong public interest in open
>>> and accessible proceedings that should be curtailed only where there is
>>> a need to protect social values of superordinate importance. The open
>>> court principle must prevail except in limited circumstances. The
>>> Supreme Court of Canada has articulated a test to determine when the
>>> open court principle should be set aside (see Dagenais v. Canadian
>>> Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, [2001] 3 S.C.R.
>>> 442, and Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2
>>> S.C.R. 522).
>>> 
>>> [15] Air Canada further submits that Dr. Fowlie has not met the burden
>>> of proof required when making an application for non-publication of his
>>> name and has not proven, through fact-based evidence, that the test was
>>> met.
>>> 
>>> Necessity stage: Dr. Fowlie's alleged risk is speculative
>>> 
>>> [16] Air Canada relies on the Sierra Club decision where the Supreme
>>> Court of Canada ruled that the "real and substantial" criterion of the
>>> test must be well grounded in evidence. Air Canada also refers to
>>> Fairview Donut Inc. v. The TDL Group Corp. and Tim Hortons Inc., [2010]
>>> O.J. No. 502 (QL); and Pfizer Canada Inc. v. Novopharm Ltd., [2010]
>>> F.C.J. No. 478 (QL), in respect of the "real and substantial risk"
>>> criterion. Air Canada asserts that in order to meet the test, the risk
>>> must be real and substantial and the principle of an open judicial
>>> process must not be compromised in the case where the alleged risk is
>>> speculative. Dr. Fowlie's allegation that he will lose his employment is
>>> speculative and not proven by evidence.
>>> 
>>> [17] In addition, Air Canada maintains that Dr. Fowlie has essentially
>>> contributed to creating the aforementioned public perception by giving
>>> an interview to the Ottawa Citizen newspaper resulting in the
>>> publication of an article, following the publication of the Decision.
>>> Air Canada asserts that Dr. Fowlie has publicly criticized Air Canada,
>>> as well as the administrative process before the Agency, and has himself
>>> brought the matter in the public forum.
>>> 
>>> Necessity stage: Dr. Fowlie's interest cannot be characterized as a
>>> general public interest
>>> 
>>> [18] Air Canada submits that embarrassment and threats to Dr. Fowlie's
>>> employment and livelihood constitute personal interests that are
>>> specific to Dr. Fowlie. Air Canada relies on the Sierra Club decision
>>> where the Supreme Court recognized that the interest at issue must be
>>> one which can be expressed in terms of public interest in
>>> confidentiality.
>>> 
>>> [19] Air Canada also cites the Fairview Donut decision where the Ontario
>>> Court of Justice concluded that the interest in question must go beyond
>>> harm to the private commercial interests of a person or business and
>>> must be one that can be expressed in terms of a public interest in
>>> confidentiality. Air Canada argues that Dr. Fowlie's interest in issue
>>> is purely a personal interest which is not sufficient to obtain the
>>> non-publication sought.
>>> 
>>> Dr. Fowlie's failure to meet the proportionality stage
>>> 
>>> [20] In the event that the Agency finds that there is a real and
>>> substantial risk to publish Dr. Fowlie's name, Air Canada submits that
>>> there are no salutary effects to granting the application, except for
>>> Dr. Fowlie's personal benefit. In addition, Air Canada submits that
>>> there is no evidence that the non‑publication will have the effect of
>>> removing the alleged threat to Dr. Fowlie's employment.
>>> 
>>> [21] Finally, Air Canada argues that judicial and quasi-judicial
>>> proceedings introduced by Dr. Fowlie should be made available to the
>>> public, given his own admission that the public perception as to his
>>> impartiality is important for his employment.
>>> 
>>> ANALYSIS AND DETERMINATION
>>> 
>>> Legal test for non-publication
>>> 
>>> Open court principle
>>> 
>>> [22] The Agency is a quasi-judicial tribunal and fulfills its
>>> adjudicative function in accordance with the fundamental principles of
>>> the Canadian legal system, among which is the "open court principle."
>>> This principle presupposes that, apart from exceptional cases,
>>> proceedings before courts and administrative tribunals are public.
>>> 
>>> [23] It is recognized, however, that the constitutionally protected open
>>> court principle may come into conflict with privacy interests, which
>>> also have been granted constitutional protection. In determining whether
>>> there are privacy interests to be protected, the Agency must conduct a
>>> balancing exercise within the general framework of the test formulated
>>> by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting
>>> Corp., [1994] 3 S.C.R. 835, and in R. v. Mentuck, [2001] 3 S.C.R. 442,
>>> which is referred to as the Dagenais/Mentuck analysis.
>>> 
>>> [24] The Dagenais/Mentuck analysis, developed in the context of a
>>> criminal matter, was later adapted for the issuance of confidentiality
>>> orders in a civil matter in Sierra Club of Canada v. Canada (Minister of
>>> Finance), [2002] 2 S.C.R. 522. At pages 543 and 544 of its decision, the
>>> Supreme Court of Canada determined that a party seeking a departure from
>>> the open court principle bears the burden of establishing, on a balance
>>> of probabilities, that:
>>> 
>>> […]
>>> 
>>> such an order is necessary in order to prevent a serious risk to an
>>> important interest, including a commercial interest, in the context of
>>> litigation because reasonably alternative measures will not prevent the
>>> risk; and
>>> 
>>> the salutary effects of the confidentiality order, including the effects
>>> on the right of civil litigants to a fair trial, outweigh its
>>> deleterious effects, including the effects on the right to free
>>> expression, which in this context includes the public interest in open
>>> and accessible court proceedings.
>>> 
>>> [25] The Supreme Court then indicated that three important elements are
>>> subsumed under the first branch of the test. First, the risk must be
>>> real and substantial. Second, the important commercial interest must be
>>> one which can be expressed in terms of a public interest in
>>> confidentiality, where there is a general principle at stake. Finally,
>>> the decision-maker is required to consider not only whether reasonable
>>> alternatives are available to such an order but also to restrict the
>>> order as much as is reasonably possible while preserving the commercial
>>> interest in question.
>>> 
>>> [26] The Agency has dealt with a similar issue in Decision No.
>>> 219-A-2009, in the matter of a motion by Leslie Tenenbaum for
>>> Non-Publication of His Name. In the Tenenbaum decision, the Agency
>>> applied the test outlined above. The Agency will apply this test in the
>>> present matter.
>>> 
>>> Analysis
>>> 
>>> [27] Dr. Fowlie alleges that the Decision interferes with his ability to
>>> perform his job but provides no evidentiary basis beyond his statement.
>>> The Agency received no evidence as to the serious risk to which Dr.
>>> Fowlie may be subject and therefore is not satisfied that the
>>> non-publication will remove the potential harm. Dr. Fowlie's allegation
>>> that he will lose his employment is merely speculative and not proven by
>>> evidence.
>>> 
>>> [28] Dr. Fowlie states that the scope and nature of his employment is
>>> uniquely sensitive to matters such as the present case. As stated at
>>> paragraph 32 of the Tenenbaum decision, "[u]nder the "open court
>>> principle", parties cannot expect, as a right, that the details of their
>>> dispute remain private." Embarrassment does not constitute an exception
>>> according to the Supreme Court of Canada decision in A.G. (Nova Scotia)
>>> v. MacIntyre, [1982] 1 S.C.R. 175, at page 185:
>>> 
>>> […] Many times it has been urged that the "privacy" of litigants
>>> requires that the public be excluded from court proceedings. It is now
>>> well established, however, that covertness is the exception and openness
>>> the rule. Public confidence in the integrity of the court system and
>>> understanding of the administration of justice are thereby fostered. As
>>> a general rule the sensibilities of the individuals involved are no
>>> basis for exclusion of the public from judicial proceedings. [...]
>>> 
>>> (Emphasis added)
>>> 
>>> [29] The Agency finds that the scope and nature of Dr. Fowlie's
>>> employment is not uniquely sensitive. Even if the Agency found that Dr.
>>> Fowlie's employment was uniquely sensitive, Dr. Fowlie presented
>>> evidence that he voluntarily chose to engage in a public debate and
>>> discussion of the Agency's decision, namely in an interview with the
>>> Ottawa Citizen, that led to the publication of an article in that
>>> newspaper. Dr. Fowlie has contributed to his own exposure to media
>>> scrutiny.
>>> 
>>> [30] Dr. Fowlie raised an issue concerning the Agency being a primary
>>> source of information and that the decisions would be maintained in
>>> perpetuity on the Web site. In the letter sent on September 22, 2009,
>>> Dr. Fowlie was advised that in an effort to establish a fair balance
>>> between public access to decisions and the individual's right to
>>> privacy, the Agency has taken measures to block Internet searching of
>>> full-text versions of decisions posted on its Web site. This is done by
>>> applying instructions using the "web robot exclusion protocol" which is
>>> recognized by Internet search engines (e.g. Google and Yahoo).
>>> Therefore, the only decision-related information on the Agency's Web
>>> site available to Internet search engines are decision summaries and
>>> comments contained in the Agency's annual reports and releases. The
>>> full-text version of decisions is posted on the Agency's Web site, but
>>> is not accessible by Internet search engines. As a result, an Internet
>>> search of a person's name set out in a decision will not provide any
>>> information from the full‑text version of decisions posted on the
>>> Agency's Web site. Accordingly, there is no real and substantial risk
>>> that the publication of the Agency's Decision on its Web site will
>>> interfere with Dr. Fowlie's ability to perform his job.
>>> 
>>> [31] The Agency must also determine whether Dr. Fowlie has shown an
>>> important interest which can be expressed in terms of a public interest.
>>> In this case, Dr. Fowlie's important interest would be his employment as
>>> an ombudsman that carries an emphasis on public perception of
>>> impartiality and neutrality.
>>> 
>>> [32] In Sierra Club, paragraph 55, the Supreme Court of Canada made it
>>> clear that "[i]n order to qualify as an "important commercial interest"
>>> the interest in question cannot merely be specific to the party
>>> requesting the order; the interest must be one which can be expressed in
>>> terms of a public interest in confidentiality." Furthermore, at
>>> paragraph 48 in Fairview Donut Inc., the Ontario Superior Court of
>>> Justice observed that "[…] litigation frequently involves disclosure
>>> of sensitive, embarrassing and sometimes prejudicial information, but
>>> the principle of open justice admits of limited exceptions […]." This
>>> is a necessary consequence of maintaining an open and public judicial
>>> system. The Agency finds that the interest under consideration is one
>>> that relates to Dr. Fowlie's personal interest only and does not
>>> constitute a legitimate public (including commercial) interest in need
>>> of protection.
>>> 
>>> [33] As Dr. Fowlie has not provided evidence that there is a real and
>>> substantive risk, nor did he provide evidence that there is an important
>>> interest which can be expressed in terms of a public interest in the
>>> order sought, the Agency does not have to determine whether there is a
>>> need to preserve the interest in question.
>>> 
>>> [34] Finally, Dr. Fowlie claims that he has been treated differently
>>> than previous applicants to the Agency (namely, Decision No.
>>> 383-C-A-2008 in the matter of a complaint filed by "K" against Air
>>> Canada).
>>> 
>>> [35] The circumstances surrounding the "K" decision and this decision
>>> are very different. When the "K" decision was issued, the Agency had no
>>> policy on the non-publication of names in decisions. Applicants were not
>>> advised that their names would appear in a decision and on the Web site.
>>> Furthermore, the "web robot exclusion protocol" was not applied at the
>>> time of the "K" decision.
>>> 
>>> [36] The information regarding the Agency's privacy policy can now be
>>> found on its Web site. Each applicant is also made aware at the outset
>>> that the Agency applies the open court principle and that its
>>> proceedings are public.
>>> 
>>> [37] In this case, in response to his complaint filed with the Agency, a
>>> letter opening pleadings was issued on September 22, 2009 to Dr. Fowlie
>>> and Air Canada. In an attachment to that letter, entitled "Important
>>> privacy information", the open court principle was clearly defined. In
>>> fact, Dr. Fowlie was advised at that time that a decision in his case
>>> would be published, that a copy would be posted on the Agency's Web site
>>> and that his name would appear in the decision. He was also clearly
>>> advised, at that time, how to proceed if he did not want his name to
>>> appear in the decision:
>>> 
>>> There may be exceptional cases to warrant the omission of certain
>>> identifying information from the Agency decision. Such omission may be
>>> considered where minor children or innocent third parties will be
>>> harmed, where the ends of justice will be undermined by disclosure or
>>> the information will be used for an improper purpose. In such
>>> situations, the Agency may consider requests, supported by proper
>>> evidence, to prevent the use of information which identifies the parties
>>> or witnesses involved. Any individual who has concerns with respect to
>>> the publication of his/her name should contact the Agency's Secretariat
>>> by e-mail at NDN-NPN at otc-cta.gc.ca or by calling at (819) 997-0099.
>>> 
>>> [38] Dr. Fowlie states that the reason why he did not seek a
>>> non-publication order during his initial complaint is because he could
>>> not reasonably have anticipated that his complaint could be dismissed
>>> and the effect the Agency's decision would have on his interests. The
>>> Agency finds this argument implausible as a reasonable person in Dr.
>>> Fowlie's position should have anticipated the possibility that his
>>> application could be denied. The Agency clearly indicated that, in any
>>> event, the decision would be published outlining the details of such
>>> application, including the name of Dr. Fowlie and the circumstances
>>> leading to the application.
>>> 
>>> [39] Considering that the Agency has put in place measures to balance
>>> the open court principle and the privacy interests of applicants and
>>> considering that the Agency considers these matters on a case by case
>>> basis, the Agency rejects this argument.
>>> 
>>> Section 32 application
>>> 
>>> [40] Following the Agency's examination of the application, a decision,
>>> containing Dr. Fowlie's name, will be issued and posted on the Agency's
>>> Web site. Dr. Fowlie is requested to advise within five days from the
>>> date of this Decision whether he wishes to pursue his section 32
>>> application. The Agency will apply the open court principle when it
>>> publishes its decision on Dr. Fowlie's section 32 application.
>>> 
>>> CONCLUSION
>>> 
>>> The Agency finds that Dr. Fowlie did not meet the evidentiary threshold
>>> and did not establish, on a balance of probabilities, the need for a
>>> non-publication order. Therefore, the Agency dismisses Dr. Fowlie's
>>> application.
>>> 
>>> Members
>>> 
>>> 	• Raymon J. Kaduck
>>> 	• J. Mark MacKeigan
>>> ---------------------------------------------
>>> 
>>> http://www.otc-cta.gc.ca/decision-ruling/drv.php?type=d&no-num=57-C-A-2010&lang=eng
>>> 
>>> Decision No. 57-C-A-2010
>>> 
>>> February 18, 2010
>>> 
>>> COMPLAINT by Dr. Frank Fowlie against Air Canada.
>>> 
>>> File No. M4120-3/09-50202
>>> 
>>> 
>>> INTRODUCTION AND ISSUE
>>> 
>>> [1] Dr. Frank Fowlie filed a complaint with the Canadian Transportation
>>> Agency (Agency) with respect to Air Canada's refusal to transport him on
>>> Flight AC195 from Montréal, Quebec to Vancouver, British Columbia on
>>> March 22, 2009. This refusal resulted from his alleged unruly behaviour
>>> on Flight AC871 from Paris, France, to Montréal earlier that day.
>>> 
>>> [2] The issue before the Agency in this complaint is as follows:
>>> 
>>> Did Air Canada properly apply the terms and conditions of carriage as
>>> set out in its International Passenger Rules and Fares Tariff NTA(A) No.
>>> 458 (Tariff) by refusing to transport Dr. Fowlie on his connecting
>>> Flight AC195 because of his alleged unruly behaviour on Flight AC871?
>>> 
>>> [3] As indicated in the reasons that follow, the Agency finds that Dr.
>>> Fowlie failed to discharge his burden of proof that Air Canada did not
>>> properly apply the terms and conditions of carriage set out in its
>>> Tariff when its personnel refused to transport Dr. Fowlie. The Agency
>>> therefore dismisses the complaint.
>>> 
>>> BACKGROUND
>>> 
>>> [4] On March 22, 2009, Dr. Fowlie travelled from Paris to Montréal on
>>> Flight AC871, and was scheduled to continue his itinerary on Flight
>>> AC195, from Montréal to Vancouver.
>>> 
>>> [5] During Flight AC871, Dr. Fowlie did not get his meal choice and he
>>> complained to the flight attendant. A dispute between Dr. Fowlie and the
>>> flight attendant ensued. The flight attendant reported the problem to
>>> the service director. Another dispute resulted from the exchange between
>>> the service director and Dr. Fowlie. The service director then reported
>>> the incident to the captain and a warning card was issued to Dr. Fowlie
>>> for unruly behaviour.
>>> 
>>> [6] Upon arrival in Montréal, the crew of the connecting Flight AC195
>>> was informed of the incident and the captain determined that there was a
>>> risk of further disruption and refused to transport Dr. Fowlie.
>>> 
>>> [7] Subsequently, Dr. Fowlie was not allowed to board any Air Canada
>>> flight that night. The next day, Dr. Fowlie was allowed to travel on the
>>> same ticket.
>>> 
>>> POSITIONS OF THE PARTIES
>>> 
>>> [8] Dr. Fowlie claims that after he complained to the flight attendant
>>> about not getting his meal choice, the flight crew ignored him for the
>>> 35-40 minutes it took to prepare his meal and the crew did not offer him
>>> any snacks during the wait.
>>> 
>>> [9] In a written statement, the flight attendant indicates that when he
>>> realized that there was a mix up over Dr. Fowlie's meal, he apologized
>>> to him and began preparing the correct meal. He states that Dr. Fowlie
>>> was informed that it would take about 30 minutes to prepare. The flight
>>> attendant submits that he gave Dr. Fowlie bread and wine while he waited
>>> for his meal. He also indicates that during the wait, Dr. Fowlie began
>>> ringing the call button and became very agitated.
>>> 
>>> [10] Both Air Canada staff and Dr. Fowlie indicate that a verbal dispute
>>> arose when Dr. Fowlie was served his meal. Dr. Fowlie claims that he
>>> "grumbled" a comment about the poor service under his breath. The flight
>>> attendant documented in his signed statement that Dr. Fowlie swore at
>>> him and shouted at him twice regarding the bad service. The flight
>>> attendant states that he told Dr. Fowlie to be quiet and in an attempt
>>> to control Dr. Fowlie's behaviour, he then told him that if he did not
>>> calm down, he would be moved to a different area of the aircraft. Dr.
>>> Fowlie submits that the flight attendant lectured him and threatened to
>>> move him to coach class.
>>> 
>>> [11] According to the flight attendant, he later informed his service
>>> director of Dr. Fowlie's disruptions. The service director then asked
>>> Dr. Fowlie to follow her to the galley for a discussion. Both parties
>>> agree that there was an aggressive exchange of words. In a written
>>> statement, the service director states that Dr. Fowlie was physically
>>> imposing through his tone of voice, his body language and the use of his
>>> finger in her face. She also states that Dr. Fowlie referred to the
>>> flight attendant as "the little man" or "the little nothing".
>>> 
>>> [12] Dr. Fowlie claims that he and the service director had an animated
>>> conversation but that, contrary to the service director's allegations,
>>> he did not point his finger in her face. Further, while he admits to
>>> referring to the flight attendant as "the little man", he submits that
>>> the expression was not at all derogatory, but rather narrative or
>>> descriptive in nature. According to Dr. Fowlie, at the time of the
>>> incident, he had no idea of the flight attendant's name and thus, he
>>> used this expression to identify him in particular during conversation.
>>> He contends that describing the flight attendant as "the little man" was
>>> no more derogatory than someone calling him a big man.
>>> 
>>> [13] To avoid further confrontation, the flight attendant was reassigned
>>> to another area of the aircraft. Dr. Fowlie admits that he tried to view
>>> the flight attendant's name tag, which the flight attendant reported as
>>> a physical altercation. Dr. Fowlie also admits that while going to the
>>> washroom, he tried to take a picture of the flight attendant.
>>> 
>>> [14] The service director states that after the discussion in the galley
>>> area, she reported the incident to the captain, at which time a decision
>>> was made to give Dr. Fowlie a warning card. According to the service
>>> director, Dr. Fowlie complained that the warning card was vague and he
>>> continued to argue with her.
>>> 
>>> [15] Air Canada indicates that upon landing in Montréal, an Air Canada
>>> ground manager met with the flight crew and was informed of the
>>> incident. The ground manager also met with Dr. Fowlie who had insisted
>>> on meeting with a manager to complain about the poor service. The ground
>>> manager describes Dr. Fowlie's behaviour as intimidating and aggressive.
>>> The ground manager indicates that she informed Dr. Fowlie that his
>>> behaviour was unacceptable and that he could have put the safety of the
>>> crew and the operation of the aircraft at risk.
>>> 
>>> [16] The ground manager was later assigned to assist with the boarding
>>> of Dr. Fowlie's connecting Flight AC195. She indicates that at that
>>> time, she briefed the flight crew on the incident that occurred on
>>> Flight AC871. The captain of Flight AC195 determined that there was a
>>> risk of further disruption and denied boarding to Dr. Fowlie. Air Canada
>>> submits that the captain is the final authority for boarding and safety
>>> on the carrier's aircraft.
>>> 
>>> [17] After Dr. Fowlie was refused transportation by the captain, the
>>> ground manager spoke to Dr. Fowlie and informed him that he would not be
>>> allowed to board Flight AC195. According to the ground manager, Dr.
>>> Fowlie became so aggressive that it was necessary to contact airport
>>> security.
>>> 
>>> [18] Dr. Fowlie submits that the ground manager contacted an Air Canada
>>> security officer with whom Dr. Fowlie spoke directly. Dr. Fowlie
>>> indicates that the security officer approved his request to board the
>>> connecting flight, but that the ground manager refused him
>>> transportation for the rest of the day.
>>> 
>>> [19] Dr. Fowlie states that he remained in the gate area for several
>>> hours after being denied boarding as he hoped to travel on another
>>> flight. Dr. Fowlie indicates that other passengers on standby were
>>> allowed to board subsequent flights but that he was not allowed to
>>> travel.
>>> 
>>> [20] Dr. Fowlie submits that the gate agent asked security to order him
>>> to leave the gate area. According to Dr. Fowlie, he then left the
>>> airport, took a taxi to downtown Montréal, rented a hotel room and
>>> returned to the airport the next morning, at which point he was allowed
>>> to travel using his original ticket.
>>> 
>>> [21] Dr. Fowlie maintains that the evidence provided by Air Canada does
>>> not justify the carrier's decision to refuse him transportation. Dr.
>>> Fowlie also maintains that Air Canada staff filed false and misleading
>>> statements with the Agency.
>>> 
>>> [22] Air Canada states that Dr. Fowlie was verbally and physically
>>> aggressive, and he exhibited abusive and intimidating behaviour towards
>>> its employees. Air Canada submits that given the situation, refusing
>>> transportation to Dr. Fowlie was justified based on the risk of further
>>> disruption that could put the safety of the crew, the passengers and the
>>> operation of the flight at risk.
>>> 
>>> ANALYSIS AND FINDINGS
>>> 
>>> [23] When a complaint is filed with the Agency, the onus is on the
>>> complainant to establish that, on a balance of probabilities, the
>>> carrier failed to properly apply the terms and conditions of carriage
>>> set out in its tariff.
>>> 
>>> [24] The Agency notes that Air Canada's Tariff provides that the air
>>> carrier may refuse to transport or can remove a passenger if it
>>> considers, while exercising reasonable discretion, that the passenger
>>> has engaged in unacceptable behaviour. More specifically, Rule
>>> 25II(A)(2) of Air Canada's Tariff reads as follows:
>>> 
>>> (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.
>>> 
>>> [25] In this case, even though the parties agree that two disputes took
>>> place on the aircraft resulting in the issuance of a warning card to Dr.
>>> Fowlie for unruly behaviour, details of the events are contradictory in
>>> several aspects. When contradictory versions of events are presented by
>>> parties, the burden falls on the complainant to establish that his
>>> version is the most likely to have occurred.
>>> 
>>> [26] Dr. Fowlie submits that there was no disruption to other passengers
>>> on Flight AC871, that Air Canada's personnel are solely responsible for
>>> escalating the dispute and that Air Canada's staff filed false and
>>> misleading statements with the Agency. However, Dr. Fowlie did not file
>>> any evidence with the Agency to independently substantiate his
>>> contentions. Moreover, Dr. Fowlie admits that he told the flight
>>> attendant to "shut up", he followed the flight attendant in an attempt
>>> to see his name tag and he subsequently photographed him. Dr. Fowlie
>>> also acknowledges that he referred to him as "the little man" in his
>>> conversation with the flight service director. In spite of Dr. Fowlie's
>>> position, this comment could very well be perceived as derogatory. Dr.
>>> Fowlie also describes that he engaged in an animated conversation with
>>> the service director but that, contrary to the service director's
>>> allegations, he did not point his finger in her face.
>>> 
>>> [27] In light of this evidence, the Agency finds that Dr. Fowlie engaged
>>> in abusive and offensive behaviour during Flight AC871.
>>> 
>>> [28] In addition, Dr. Fowlie provided the Agency with two versions of
>>> the notes he had taken at the time of the incident. Several
>>> discrepancies exist within those two versions. For example, Dr. Fowlie
>>> removed from one set of notes particularly derogatory comments
>>> pertaining to one member of Air Canada's personnel. Another noteworthy
>>> change was the replacement of the following paragraph where Dr. Fowlie
>>> describes his state of mind after the events:
>>> 
>>> It is evident to me that the airline has taken a very sophomoric
>>> approach to this. They want me to have a "time out" and are doing
>>> whatever can be done to frustrate my movements home. I am agitated,
>>> angry, frustrated, and sense that Air Canada, [...] is doing whatever
>>> possible to ensure that I not get home tonight. I believe that Air
>>> Canada is being as purposefully difficult as possible, [...] as
>>> clearance have already been given by security.
>>> 
>>> with the following where Dr. Fowlie softened the description of his
>>> state of mind:
>>> 
>>> I am embarrassed and upset and sense that Air Canada, especially the
>>> gate agent, was doing whatever possible to ensure that I not get home.
>>> 
>>> [29] The submission of a modified version of notes allegedly taken at
>>> the time of the incident but clearly changed to present Dr. Fowlie's
>>> behaviour and state of mind in better light challenges the credibility
>>> of Dr. Fowlie's version of events.
>>> 
>>> [30] On the other hand, Air Canada provided detailed and consistent
>>> signed submissions from the flight attendant and the flight service
>>> director involved in the incident, from the ground manager for flight
>>> services who met with the flight crew to report on the incident and who
>>> spoke to Dr. Fowlie, as well as from the captain of Flight AC195 who
>>> refused to transport Dr. Fowlie.
>>> 
>>> [31] The Agency, in considering the evidence, must determine which of
>>> the different versions is more probable, based on the preponderance of
>>> evidence. In light of the Agency's finding as to Dr. Fowlie's behaviour
>>> and the credibility of his version of events, the Agency cannot conclude
>>> that Dr. Fowlie met his burden of proof that Air Canada failed to
>>> exercise reasonable discretion, as required by its Tariff, when its
>>> personnel refused to transport Dr. Fowlie on Flight AC195.
>>> 
>>> CONCLUSION
>>> 
>>> [32] Based on the evidence submitted by both parties, the Agency finds
>>> that Dr. Fowlie failed to discharge the burden of proving that Air
>>> Canada did not properly apply the terms and conditions set out in Rule
>>> 25 of its Tariff. As a result, the Agency dismisses Dr. Fowlie's
>>> complaint.
>>> 
>>> 
>>> Members
>>> 
>>> 	• Jean-Denis Pelletier, ing.
>>> 	• Geoffrey C. Hare
>>> 
>>> 
>>> 
>>> 
>>> 
>>> 
>>> 
>>> 
>>> IP JUSTICE
>>> Robin Gross, Executive Director
>>> 1192 Haight Street, San Francisco, CA  94117  USA
>>> p: +1-415-553-6261    f: +1-415-462-6451
>>> w: http://www.ipjustice.org     e: robin at ipjustice.org
>>> 
>>> 
>>> 
>> 
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