Lack of Accountability to Non-Commercial Users Remains Problematic for ICANN's Promise to Protect the Public Interest

[Robin Gross <robin@xxxxxxxxxxxxx>]

IP JUSTICE COMMENTS ON ACCOUNTABILITY AND TRANSPARENCY ISSUES AT ICANN
Submitted by Robin Gross, IP Justice Executive Director
20 July 2010

IP Justice appreciates this opportunity to provide comment to the  
ICANN Accountability and Transparency Review Team.  As a nonprofit  
public interest organization, IP Justice is concerned with the public  
interest aspects of ICANN policy and is a member of the Non- 
Commercial Users Stakeholders Group (NCSG).
IP Justice is deeply concerned that ICANN is insufficiently  
accountable to relevant non-commercial interests.  Certain interests,  
such as business interests (in particular the trademark and domain  
name industries) are over-represented at ICANN both in structure and  
in practice.  On the other hand, non-commercial interests and  
individual Internet users are not given the appropriate  
representation, although some improvements have been made in recent  
years.  There is a real worry that ICANN is an "industry  
organization" and works predominantly for trademark interests and the  
domain name industry.  Too often non-commercial concerns are ignored  
by ICANN; without any real "muscle" behind non-commercial interests,  
ICANN has little incentive to protect those interests in its policy  
development process.
Examples where ICANN insufficiently accounted for the concerns of non- 
commercial Internet users include the staff and board's handling of  
the new NCSG formation and its refusal to accept the charter drafted  
by global civil society and ultimate disenfranchisement of non- 
commercial users of 3 of its 6 GNSO Counsel seats (see IGP comment  
for specifics on this NCSG issue).  The Board and staff are not  
allowing the NCSG to develop in a true bottom-up fashion, but are  
instead directing resources and GNSO Council seats to those who will  
infuse commercial perspectives into the NCSG, particularly pro- 
trademark perspectives.
Another example is the creation of the 1-sided IRT Team, consisting  
almost exclusively of large trademark owners, which instituted rules  
forbidding IRT members from discussing IRT policy provisions with the  
community they represent, and proposed a "trademark wish list" of  
policy recommendations (see Komaitis comment for details on this IRT  
issue).    It is also worth noting that despite NCSG and At-Large  
communities' long standing opposition to the "morality and public  
order" objections to new gtlds, citing freedom of expression  
concerns, staff chose to make protecting trademarks an "over-arching  
issue" that needs addressing by an IRT, while ignoring the freedom of  
expression concerns expressed by NCSG and At-Large members.  Public  
comments submitted by parties lacking muscle seem to go straight into  
the trash bin at ICANN.  Civil society is not going to continue to  
participate in public comment periods where ICANN does not consider  
and respond to the substantive issues raised, as it is a complete  
waste of time and legitimizes an illegitimate system.  Unfortunately  
ICANN public comment periods seem to be little more than window- 
dressing and fodder for ICANN press releases.
Another example of ICANN not providing sufficient attention to the  
concerns of non-commercial users include the staff's refusal to  
follow-up on its promise to provide key legal research reported to  
support the staff's creation of legal standards for morality and  
public order objections to new domains.  Members of NCSG asked for  
this legal research a dozen times -- and it was promised by staff --  
but the research never materialized -- and the accuracy of staff's  
supposed legal standards remain in wide dispute.   One cannot help  
but wonder if staff's refusal to provide the promised research in  
dispute is a reflection of the lack of "muscle" in the ICANN  
community behind the party making the request.  There is no  
accountability mechanism - no check on the staff to actually respond  
to concerns from the community.   In the current environment, ICANN  
staff declares that "international law says x, y, and z", but there  
is no way to dispute that claim or to view the info that led ICANN  
staff to reach that (faulty) conclusion.  Staff's response of "just  
trust us" is not an acceptable form of accountability for a global  
governance organization charged with protecting the global public  
interest on matters of stability and security of the Internet.   
Transparency also provides a *quality control check* that is often  
over-looked given the other important values transparency also  
serves, but is nonetheless important.
ICANN is run too much like a large corporation and not enough like a  
genuine public interest organization. Besides the "corporate  
culture", the legal corporate governance structure of ICANN is a  
significant part of the problem in the organization's lack of  
accountability and transparency.  California law requires the ICANN  
Board of Directors to be the ultimate decision makers for ICANN  
policy and governance matters.  This is inherently at adds with  
providing an independent mechanism to check that decision making  
process, which is required for good public governance.  While "checks  
and balances" in governance matters may not be appropriate for  
private corporations, they are important for public governance  
institutions, so the "corporate governance model" falls far short of  
meeting the community's needs.
Under California law, which governs ICANN, the organization's board  
of directors is ultimately responsible and has the final say on  
decisions; but the reality is that the workload required to  
understand all the issues is unrealistic for a volunteer board.  The  
result is that staff "briefs" the board according to the staff's  
desires, ultimately managing the process that an over-extended board  
cannot.  The problem of "staff capture" creates a significant and  
growing problem for ICANN's accountability and transparency  
(particularly given the exploding budget and overpaid staff &  
consultants).  The staff's practice of providing secret briefing  
papers to the Board on matters of key policy or governance  
dramatically undermines their claims of transparency and openness.   
This practice must end, and past secret briefing papers should be  
made available to the community.
There must also be more openness and transparency in viewing board  
deliberations at ICANN.  Board decisions are made in secret without  
the community having an understanding of the reasoning behind the  
policy decisions and the specific positions taken by those chosen to  
represent them. The board should be less concerned with demonstrating  
a unified public front on policy decisions - a practice that  
encourages secretly negotiating unanimous votes with no public airing  
of the various views of the board.  The board owes -- and community  
needs to witness -- a substantive dialectic at the board level on  
public policy issues.  Each board member's individual vote should be  
recorded and published, as is done for legitimate public governance  
institutions in the interests of transparency and good governance.   
Board meetings should be recorded and also audio-cast live via the  
web so the Internet community can listen-in on the important policy  
discussions that impact their lives.  The Board email discussion  
lists of policy matters should be made viewable for the same  
reasons.  Obviously there are times for exceptions, but the default  
rule should be of transparency in Board deliberations.
Also, the GNSO's policy development process that works via  
"consensus" encourages a constant "chipping away" of the rights of  
Internet users with no fundamental principles (privacy, free  
expression) that can't be bargained away by the business interests at  
the negotiating table who vastly out-number non-commercial  
participants.   There seems to be a prevailing view that individual  
protections provided by public institutions in governance matters  
should not be extended at ICANN because ICANN is a "private  
corporation" (rather than a public institution or government actor).   
Yet any "private" governance model that leaves "public" guarantees of  
civil liberties, due process rights, and other public interest  
concerns in the past is a deeply flawed step backwards that must be  
immediately challenged.
The lack of funds to support meaningful participation in the ICANN  
policy process remains one of the biggest hurdles for noncommercial  
participation and magnifies the under-representation of noncommercial  
users in ICANN policy decisions.   Empowering the At-Large structures  
and providing Internet users a real and direct election for their  
board representation and other leadership positions would be a  
significant step to increase accountability with respect to  
individual Internet users.  Members of At-Large structures should be  
treated on an equal footing with the Government Advisory Council  
members with appropriate consideration given to the view of  
individual Internet users as expressed through the At-Large structures.
Another problem for ICANN's accountability is its current model for  
an "ombudsman".  Having an independent, neutral, ethical, and  
competent "third-party" to oversee certain governance decisions is a  
fine idea in principle.  But to work in practice, it requires an  
ombudsman that is not *really* a member of the ICANN staff; that  
remains neutral on pending matters; doesn't publicly take a position  
on a pending dispute and encourage the community to agree with that  
position on a public blog before the other side of the dispute has  
responded to the complaint, for example.  For an "ombudsman" to work,  
it would have to be a person who does not "pal around" with staff and  
come running to the defense of staff (or their agents) against the  
community every time a complaint is filed.  A real impartial  
*outsider* with genuine independence and neutrality would have to  
exist for that model to provide meaningful accountability.  A  
credible ombudsman would not be found by a legal tribunal to be  
"uncredible" for manipulation of evidence in a dispute proceeding.  A  
respectable ombudsman would not launch into a moral crusade imposing  
a personal view of "civility" at ICANN, while demeaning "little  
people" in other situations.  (See Canadian Transportation Authority  
Rulings below).  An ombudsman that does not value freedom of  
expression and the need for honest dialogue on important policy  
matters impacting the security and stability of the Internet is  
dangerous to the development of the Internet.  The ICANN ombudsman  
costs Internet users $410,000 per year (according to ICANN's budget),  
an unjustifiable waste of resources - especially considering it is  
mostly spent on his war on free expression.  So there are troubling  
implementation issues regarding ICANN's current ombudsman model that  
significantly undermines ICANN's legitimacy and ability to serve the  
public interest.
In conclusion, while some improvements have been made in recent  
years, ICANN should do more to promote meaningful accountability and  
transparency.  In particular, it must support and maintain a vibrant  
and welcoming space for truly non-commercial participation.  ICANN  
must live up to its promise to promote the global public interest and  
be more than just an industry organization concerned primarily with  
negotiating policies that serve entrenched commercial players.
Respectfully submitted,
Robin Gross
IP Justice

-----------------------

In the interests of accountability and transparency, the following  
relevant CTA rulings are provided:
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@xxxxxxxxxxxxx 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
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