Decision No. 102-AT-A-2002

March 1, 2002

File No. U3570/00-77

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APPLICATION

On November 20, 2000, Ellen R. Judd, on behalf of her parents, D. Allan Judd and Ruth Judd, filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

On December 19, 2000, Air Canada requested an extension until January 19, 2001 to file its answer to the application, and, by Decision No. LET-AT-A-413-2000 dated December 28, 2000, the Agency granted Air Canada the requested extension.

On January 19, 2001, Air Canada filed its answer to the application, including a copy of Mr. and Mrs. Judd's Passenger Name Record. On January 28, 2001, Ms. Judd filed a reply to the answer. At the request of Agency staff, Air Canada submitted additional comments on February 19, 2001.

Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.

ISSUE

The issue to be addressed is whether the level of wheelchair and baggage assistance provided to Mr. and Mrs. Judd constituted an undue obstacle to their mobility, and, if so, what corrective measures should be taken.

FACTS

Mrs. Judd has arthritis in her ankles. Mr. Judd broke his leg in the year prior to his travelling and lives with the complications of this incident. As a result, Mr. and Mrs. Judd both have limited mobility and cannot walk long distances. Even short walks cause them pain.

Ms. Judd made reservations for her parents to travel from Kingston, Ontario, Canada, to Minneapolis, Minnesota, United States of America, via Toronto, Ontario, on Air Canada flights operated with aircraft and flight crew provided by other carriers, including Canadian Airlines International Ltd. carrying on business under the firm name and style of Canadian Airlines International or Canadi*n Airlines or Canadi*n (hereinafter Canadi*n). In making the travel arrangements, Ms. Judd advised both Air Canada and Canadi*n that her parents were elderly and had limited mobility. She requested in advance that the carriers provide the usual assistance provided to seniors and persons with disabilities to her parents, including wheelchair assistance at Toronto's Lester B. Pearson International Airport (hereinafter the Toronto airport) to make their connecting flight.

This need for assistance was reflected in the passengers' PNR in Air Canada's computer reservation system by the use of the WCHR code, along with the following Special Service Request (SSR): "Pls assist and guide elderly to gates". The WCHR code, as defined in the Passenger Services Conference Resolutions Manual of the International Air Transportation Association, is used to describe a passenger who can ascend/descend steps and make his/her way to/from the cabin seat, but requires wheelchair assistance for the distance to/from the aircraft. This is consistent with Air Canada's policy.

On October 3, 2000, Mr. and Mrs. Judd travelled with their daughter on Air Canada Flight No. 1915, operated by Air Ontario Inc. (hereinafter Air Ontario), from Kingston to Toronto and on Canadi*n Flight No. 1683/Air Canada Flight No. 8685, operated by Canadi*n, from Toronto to Minneapolis. Upon check-in at the Kingston Norman Rogers Airport (hereinafter the Kingston airport), Mr. and Mrs. Judd were issued boarding passes with the word "wheelchair" printed on them. However, Mr. and Mrs. Judd were offered no assistance to board the aircraft nor were they provided wheelchair assistance at the arrival gate at the Toronto airport. They received some assistance with their baggage and to move through customs within the U.S. Customs and Immigration area. Following clearance, they had to wait while their daughter sought wheelchair and baggage assistance to move from the U.S. Customs and Immigration area to the departure gate of their flight.

POSITIONS OF THE PARTIES

Ms. Judd submits that she booked her parents seats in business class to provide them with additional leg room and to reduce their discomfort. She indicates that she spoke to both Air Canada and Canadi*n representatives on several occasions and at great length to ensure that her parents' needs were understood and would be met, particularly for the connection at the Toronto airport.

Ms. Judd advises that, at the Kingston airport, her mother observed that the stairs to the small commuter aircraft were ones that Mr. Judd could not manage on his own and she requested assistance for him. The co-pilot assisted Mr. Judd in boarding the plane and in deplaning in Toronto.

Ms. Judd submits that when her parents arrived at the Toronto airport, not only were there no wheelchairs, there was nobody to ask for help. Ms. Judd explains that a fellow passenger directed her parents to the shuttle bus to the right terminal. Once at the terminal, Mr. and Mrs. Judd had to walk to the U.S. Customs and Immigration area, which was "not a short distance". Ms. Judd submits that this walk must have been difficult for her parents. Ms. Judd reports that her sister found someone in an office who helped her parents with their baggage and through the U.S. Customs and Immigration area, but no further.

Ms. Judd explains that her parents sat down while her sister went to find help from Canadi*n. It took 45 minutes before she returned with two people and two wheelchairs, by which time her parents thought she was lost. Ms. Judd explains that they would all have missed their flight by that time, but the flight to Minneapolis had been cancelled. She adds that there were no problems with the later flight to Minneapolis.

Ms. Judd submits that her parents "...experienced avoidable pain, distress and exhaustion. They will not attempt air travel again, nor will I again encourage them to do so.".

As part of her application, Ms. Judd filed a letter she received from Air Canada's Customer Relations in answer to a letter she had addressed to Air Canada prior to filing her application with the Agency. In that letter, Air Canada explains that its policy is to facilitate travel with the provision of additional special services when it has been advised of such requests. Air Canada has also recognized that the situation experienced by Mr. and Mrs. Judd was unacceptable.

In its answer to the application, Air Canada indicates that the PNR contained the appropriate SSR for wheelchair assistance for long distances, which information was correctly communicated to the airport. Air Canada submits, however, that at the time Mr. and Mrs. Judd travelled, Air Ontario was experiencing a "momentary staff shortage", which impacted its ability to extend the wheelchair assistance requested by the two passengers.

Air Canada asserts that it did receive confirmation from Air Ontario that the situation has since been stabilized and that the air carrier now has sufficient staff to consistently provide wheelchair assistance, as per its normal procedures. Air Canada adds that airport agents are expected to meet customers requiring assistance for a transborder connection at the arrival gate, assist with their baggage and escort them to the Transborder SPAT (Special attention) desk. From there, another agent will assist the customers through the U.S. Customs and Immigration area and bring them to the departure gate. Air Canada regrets that it was unable to extend such services to Mr. and Mrs. Judd on the day they travelled.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. and Mrs. Judd both have limited mobility. Mrs. Judd has arthritis in her ankles and Mr. Judd has complications from a broken leg. They cannot walk long distances and even short walks cause them pain. As such, Mr. and Mrs. Judd are persons with disabilities for the purpose of applying the accessibility provisions of the CTA.

To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.

Whether the applicant's mobility was restricted or limited by an obstacle

The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federally-regulated transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.

In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.

Whether the obstacle was undue

As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federally-regulated transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federally-regulated transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, so far as practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federally-regulated transportation network to adapt their services, so far as practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact to adopt services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board a plane in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deplaning assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.

The case at hand

In the present case, Air Canada and Air Ontario were well aware of Mr. and Mrs. Judd's need for assistance. Ms. Judd requested in advance the special assistance Air Canada usually offers to seniors and persons with disabilities and, thus, acted pursuant to the carrier's policy. The passengers' PNR reflected the appropriate code, WCHR, and shows that a special request for wheelchair assistance for long distances was made. The Agency notes that, where passengers are connecting to another flight, the WCHR code also normally signals to the carrier the need to provide wheelchair assistance for passengers from the arriving flight to the departing flight.

Despite the fact that the request for services was made in advance of travel, Mr. and Mrs. Judd were not provided with appropriate assistance. In the present case, this meant that Mr. and Mrs. Judd had to walk long distances in an unfamiliar environment. The Agency recognizes that this walk must have been difficult for them given their limited mobility. While they managed to get someone to assist them with their baggage through the U.S. Customs and Immigration area, they were left alone just beyond this area for a long period of time while their daughter was looking for help to get to the departure gate of their connecting flight, not knowing when she would be back and whether she was lost.

As a result of all of this, the Agency accepts Ms. Judd's assertion that they suffered avoidable pain, distress and exhaustion, and notes Ms. Judd's statement that they will not attempt air travel again. The Agency therefore finds that the failure by the carrier to provide wheelchair and baggage assistance to both Mr. and Mrs. Judd constituted an obstacle to their mobility.

Ms. Judd made reservations for her parents to travel on an Air Canada flight from Kingston to Toronto on October 3, 2000, and she believed that Air Canada would provide the assistance required by her parents to move through the terminal and retrieve their baggage in order to make their connecting flight. While another carrier provided to Air Canada the aircraft and flight crew for the flight in question, the Agency is of the view that Air Canada is ultimately responsible to these passengers for the provision of the required services.

Air Canada provided an answer to this application on behalf of the other carriers involved and the Agency notes Air Canada's assertion that a "momentary staff shortage" prevented Air Ontario from providing the requested service. Air Canada did not offer any reason to explain what caused this shortage of personnel and did not indicate why these passengers were not provided with the required assistance by its own airport agents from the transborder SPAT desk.

The Agency is also concerned with cases such as this where procedures which are put in place to ensure that the carriers respond to the needs of persons with disabilities, such as a PNR and a carrier's internal policies, are not properly followed. The Agency is of the view that policies designed to ensure that the needs of persons with disabilities are met must be applied in a consistent manner to ensure that persons with disabilities have access to services that address their needs, even where a carrier experiences shortages of personnel. Furthermore, the Agency is of the view that, in the absence of evidence of special operational considerations, it is the responsibility of carriers to ensure that they have sufficient staff available to meet the needs of persons with disabilities, particularly, as in this case, when the carriers are aware of the need for assistance in advance of travel. When services are not offered and policies are not applied consistently, persons with disabilities have no assurance that their needs will be met and are more likely to be disinclined from travelling.

Accordingly, in the circumstances of this case, the Agency finds that the failure of Air Canada to provide wheelchair and baggage assistance to Mr. and Mrs. Judd constituted an undue obstacle to their mobility.

CONCLUSION

Based on the above finding, the Agency hereby directs Air Canada to take the following measures within thirty (30) days from the date of this Decision:

• Provide a report to the Agency on the contingency plans or other specific measures that will be taken to prevent the recurrence of the situation experienced by Mr. and Mrs. Judd at the Toronto airport, highlighting Air Canada's plans for wheelchair assistance in situations where there is a shortage of personnel; and
• Issue an advisory bulletin to its employees at the Toronto airport, as well as the Toronto employees of Air Ontario Inc. at the same airport, highlighting the importance of delivering services, as requested, to persons with disabilities in light of the incident experienced by Mr. and Mrs. Judd, and provide the Agency with a copy of this bulletin.

Following its review of the required documents, the Agency will determine whether further action is required.