Decision No. 101-AT-A-2020

November 10, 2020

APPLICATION by Francine Leduc, Michèle Blais and Arlette Meunier (applicants) against Air Canada, pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA).

Case number: 
18-04029

SUMMARY

[1] The applicants have filed an application with the Canadian Transportation Agency (Agency) against Air Canada concerning the handling of their electric wheelchairs. In Decision No. LET-AT-A-70-2019, the Agency determined that Arlette Meunier had not encountered an obstacle to her mobility. Meanwhile, the Agency was recently informed that Michèle Blais died on April 20, 2020. The Agency would like to extend its condolences to her family. The application therefore continued with Francine Leduc. This decision will thus refer to the “applicant” instead of the “applicants”, unless reference is made to decisions rendered or measures taken before April 20, 2020.

[2] On October 8, 2019, the Agency issued Decision No. LET-AT-A-70-2019 in which it found that the applicants were persons with disabilities and that Francine Leduc and Michèle Blais had encountered an obstacle to their mobility.

[3] On March 5, 2020, the Agency issued Decision No. LET-AT-A-16-2020, in which it found that there had been an undue obstacle to the mobility of Francine Leduc and Michèle Blais within the meaning of subsection 172(1) of the CTA.

[4] In this decision, the Agency ordered Air Canada to take the following preliminary corrective measures:

- Issue a notice to cargo handlers at Fort Lauderdale–Hollywood International Airport reminding them how to properly handle mobility aids, including the importance of re-activating batteries for a mobility aid before it is returned to its owner; and

- At the time of the travel, if Air Canada finds that its Powered Mobility Aid Information Form has not been submitted or attached to an electric wheelchair when the passenger arrives at the airport, Air Canada must make sure to obtain the required information or have the form filled out by the passenger, if need be.

[5] In this decision, the Agency will consider whether it should make a final determination with respect to the corrective measures established in Decision No. LET-AT-A-16-2020.

[6] For the reasons set out below, the Agency recognizes that issuing a final order for the first corrective measure is no longer necessary, as Air Canada has already implemented this corrective measure. As a result, the Agency is issuing a final order to the effect that Air Canada implement the second corrective measure and ensure that this measure is kept in place. The Agency also orders Air Canada to ensure it obtains the required information or has its Powered Mobility Aid Information Form filled out by the passenger, if need be, if at the time of the travel it sees that the form has not been submitted or attached to the electric wheelchair when the passenger arrives at the airport. The Agency further orders Air Canada to provide the Agency’s Chief Compliance Officer with evidence that the procedure concerning the second corrective measure has been put in place. Air Canada has until December 23, 2020, to provide this evidence.

BACKGROUND

[7] On November 26, 2017, the applicants, who used electric wheelchairs, took a flight from Montréal, Quebec, to Fort Lauderdale, Florida, USA, to take a cruise. When the applicants were seated in the aircraft, three members of the cargo handling crew entered and asked the passengers to whom the electric wheelchairs belonged. The cargo handlers also said that they were looking for specific instructions on how to handle the wheelchairs. The applicants informed the cargo handlers that their wheelchairs had gel batteries and that they had sent the required information to Air Canada. The applicants then offered their instruction manuals.

[8] The applicants retrieved their electric wheelchairs after their flight. Francine Leduc and Michèle Blais had difficulties with the batteries for their electric wheelchairs, and Arlette Meunier had to ask an Air Canada agent for help to reinstall a battery in her electric wheelchair.

[9] In Decision No. LET-AT-A-70-2019, the Agency determined that the applicants were persons with a disability and that Francine Leduc and Michèle Blais had encountered an obstacle to their mobility because the batteries for their electric wheelchairs had not been re‑activated by Air Canada and because Air Canada had not informed them, in a timely manner, of the missing information needed to ensure proper handling of the electric wheelchairs, which caused them inconvenience and worry.

[10] In Decision No. LET-AT-A-16-2020, the Agency determined that Air Canada had not demonstrated that it was unable to remove obstacles to the mobility of Francine Leduc and Michèle Blais without experiencing undue hardship. The Agency therefore found that the obstacles to the mobility of Francine Leduc and Michèle Blais were undue within the meaning of subsection 172(1) of the CTA.

[11] The Agency also gave Air Canada an opportunity to submit arguments as to why it should not issue a final decision regarding the corrective measures in this decision.

[12] On March 18, 2020, the Agency issued Order No. 2020-A-32, in which it ordered that all dispute proceedings before the Agency involving air carriers be stayed until April 30, 2020, because of the COVID-19 pandemic. Then, on March 25, 2020, the Agency issued Order No. 2020-A-37, in which it extended the stay of all dispute proceedings to June 30, 2020.

[13] On July 2, 2020, the Agency informed the parties that the proceedings were resuming and provided new details related to the pleadings.

[14] Air Canada submitted its response on August 12, 2020, and Francine Leduc submitted her reply on August 20, 2020.

PRELIMINARY MATTERS

Agency jurisdiction with respect to compensation claimed and request for an apology

[15] Francine Leduc claims that she has a visceral fear of travelling since the incident. She is proposing two options to Air Canada to settle this matter and states that she will turn to the Canadian Human Rights Commission if they are refused. The first option is monetary compensation and the second is recognition by Air Canada that it discriminated against her and that it issue a press release to this effect.

[16] The Agency already made a determination with respect to the issue of psychological harm in Decision No. LET‑AT‑A-70-2019 and Decision No. LET-AT-A-16-2020, which were issued as part of this matter. With respect to the incidents that occurred before the Accessible Canada Act, SC 2019, c 10 (ACA) came into force on July 11, 2019, the Agency has no jurisdiction to order the payment of compensation for pain and suffering or loss of enjoyment.

[17] The Agency also already made a determination with respect to the matter of requesting an apology in Decision No. LET-AT-A-70-2019. The Agency repeats that it is not a court of inherent jurisdiction and, accordingly, it cannot force anyone to express an opinion or issue a letter of apology.

THE LAW

[18] The application was filed pursuant to subsection 172(1) of the CTA, which, at the time of the incident, provided as follows:

The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

[19] As indicated in the opening pleadings letter, the first two steps in dealing with this application involve determining whether the applicant, or the person on whose behalf an application is filed, is a person with a disability within the meaning of Part V of the CTA and, if so, whether that person encountered an obstacle.

[20] If the Agency determines that the applicant encountered an obstacle, it gives the respondent the opportunity to:

  • explain how they propose to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or,
  • demonstrate that it cannot remove the obstacle without experiencing undue hardship.

[21] In this decision, the Agency will consider the corrective measures.

POSITIONS OF THE PARTIES

[22] Generally speaking, Air Canada stated that after the Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244 (ATPDR), came into force on June 25, 2020, it drafted a memo to all staff and sub-contractors concerning their accessible transportation obligations, including the carriage of mobility aids.

[23] In addition, Air Canada stated that the arrangements it made after the ATPDR came into force complied with the corrective measures in Decision No. LET-AT-A-16-2020 and that, as a result, no other measures were required.

Corrective measure No. 1: Send a notice to the cargo handlers at Fort Lauderdale-Hollywood International Airport concerning the proper handling of mobility aids, including the importance of re-activating a mobility aid’s batteries before returning it to its owner.

AIR CANADA

[24] Air Canada stated that it had informed all staff and sub-contractors, including cargo handlers at Fort Lauderdale-Hollywood International Airport, that mobility aids always had to be given handling priority, including disassembly, assembly, disconnection and connection of the batteries and returning of the mobility aid to its original condition.

FRANCINE LEDUC

[25] The applicant stated that she agreed with the measure ordered by the Agency and its implementation by Air Canada and hoped that Air Canada would apply it at all airports that receive flights from Canada.

Corrective measure No. 2: If, at the time of travel, Air Canada finds that its Powered Mobility Aid Information Form has not been submitted or attached to the electric wheelchair when the passenger arrives at the airport, Air Canada must make sure to obtain the required information or have the form filled out by the passenger, if need be.

AIR CANADA

[26] According to Air Canada, it has informed its employees and sub-contractors that if a passenger comes with a mobility aid without having first filled out a Powered Mobility Aid Information Form or any other form or document deemed necessary to transport the mobility aid, printed copies are made available to passengers at the check-in counters and departure gates and an Air Canada agent will be available to inform them and help them fill out the form.

FRANCINE LEDUC

[27] The applicant stated that she agreed with the measure ordered by the Agency and with the implementation of this measure to this effect by Air Canada.

ANALYSIS AND DETERMINATIONS

[28] Air Canada does not challenge the corrective measures ordered by the Agency and confirmed that it has already put them in place. The applicant is also in agreement with the corrective measures that were ordered and their implementation by Air Canada.

[29] According to Air Canada, it has informed all staff and sub-contractors of the importance of handling mobility aids in general, but also specifically that the batteries need to be connected and the mobility aid has to be put back in its original condition, in keeping with the first corrective measure. Consequently, the Agency recognizes that the final order for the first corrective measure is no longer necessary, since Air Canada has already done what is required in this corrective measure by sending a notice to the cargo handlers at Fort Lauderdale-Hollywood International Airport.

[30] Air Canada stated that it had made the form required to ensure proper handling of mobility aids available to passengers at check-in counters and departure gates, in keeping with the second corrective measure, and that staff had been informed.

ORDER

[31] Consequently, the Agency issues a final order to the effect that Air Canada implement the second corrective measure and make sure that it remains in place. The Agency also orders Air Canada to ensure that it obtains the required information from the passenger or has its Powered Mobility Aid Information Form filled out by the passenger if, at the time of travel, it finds that the form has not been submitted or is not attached to the electric wheelchair when the passenger arrives at the airport. Furthermore, the Agency orders Air Canada to provide the Agency’s Chief Compliance Officer with evidence that the procedure concerning the second corrective measure has been put in place. Air Canada has until December 23, 2020, to file this evidence.

Member(s)

Elizabeth C. Barker
J. Mark MacKeigan
Mary Tobin Oates
Date modified: