Decision No. 107-AT-A-2005

March 1, 2005

File No. U3570/00-67

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APPLICATION

[1] On October 28, 2004, WestJet requested that the Canadian Transportation Agency (hereinafter the Agency) review Decision No. 126-AT-A-2003 dated March 7, 2003, pursuant to section 32 of the Canada Transportation Act (hereinafter the CTA). Specifically, WestJet requested approval to modify its seating assignment policy so that the two bulkhead aisle seats (1D and 2C) for the Boeing 737-200 and 737-700 series aircraft that it operates, are reserved for "able-bodied passengers" in order to expedite any emergency procedures that may arise.

[2] A copy of the application was served on Marylin Mitchell, the other party to Decision No. 126-AT-A-2003. Mr. Mitchell advised the Agency that Mrs. Mitchell would not be replying to this application for variance.

[3] Upon review of WestJet's application, the Agency determined that the application raised safety-related issues that fall within the purview of Transport Canada. Accordingly, WestJet's application was also forwarded to Transport Canada for comments.

[4] On November 15, 2004, Transport Canada provided its comments on WestJet's application for variance.

[5] On November 25, 2004, WestJet filed a brief entitled "Application for Review of Agency Decision No. 126-AT-A-2003", in substitution for its original October 28, 2004 submission. The brief contained, among other things, the following documents: submissions of WestJet, seating diagram for the Boeing 737-200 aircraft, seating diagram for the Boeing 737-700 aircraft, air safety/incident reports by WestJet cabin crew regarding an incident on April 21, 2004, WestJet's Emergency Procedures as set out in its Operations Manual as well as extracts from its Initial Training Program.

[6] The Agency considered the application and the material filed in support thereof and, in its Decision No. LET-AT-A-360-2004 dated December 31, 2004, the Agency determined that it was satisfied that there had been a change in the facts or circumstances pertaining to Decision No. 126-AT-A-2003 since it issued and that it would next determine whether such a change was sufficient to warrant a variance of the said Decision.

[7] In Decision No. LET-AT-A-360-2004, the Agency also advised that it had decided to hold an information gathering session with the parties and Transport Canada in order to complete the record and to gather all the information necessary for its deliberations. Mr. Mitchell advised the Agency that Mrs. Mitchell did not intend to participate in this session.

[8] An information gathering session was held in Gatineau, Quebec on January 17, 2005. Representatives from WestJet and Transport Canada participated in the discussions.

BACKGROUND

[9] David Mitchell, on behalf of his wife, Marilyn Mitchell, filed an application with the Agency concerning the seating assignment provided by WestJet to Mrs. Mitchell while travelling from Hamilton, Ontario to Calgary, Alberta in May 2000. Pleadings were exchanged between the parties and on March 7, 2003, the Agency issued Decision No. 126-AT-A-2003. The Agency found that the seating assignment constituted an undue obstacle to Mrs. Mitchell's mobility and required WestJet to, among other things, take the following corrective measures:

1. WestJet is to amend its seating policy
   
   1. to ensure that the needs of persons with disabilities are discussed at the time of booking and check-in;
   2. to ensure that all persons with disabilities who require specific seating to accommodate a disability will be preassigned such a seat, provided that the seats have not already been assigned to other persons with a disability; and
   3. to make it clear that, for bulkhead seating, persons with disabilities get priority over able-bodied persons. [Emphasis added]

[10] On October 3, 2003, the Agency issued Decision No. 555-AT-A-2003 in which the Agency determined that it was satisfied that WestJet had met the requirements of Decision No. 126-AT-A-2003 and that, therefore, the Agency did not contemplate any further action in this matter.

ISSUE

[11] The issue to be addressed is whether the change in facts or circumstances since the issuance of Decision No. 126-AT-A-2003 is sufficient to warrant WestJet's requested variance of that Decision.

POSITIONS OF THE PARTIES

WestJet

[12] In its application, WestJet submits that the limited change it wishes to make to its seating policy is justified by safety considerations. To address the safety issues identified as a result of the April 21, 2004 incident, WestJet requests a variance to Decision No. 126-AT-A-2003 in that it proposes to reserve the aisle seats of the bulkhead row (1D and 2C) in the Boeing 737-200 and 737-700 series aircraft for able-bodied persons. WestJet states that the seats that it proposes to withdraw from the inventory of seats, currently held on a priority basis for persons with disabilities, will be replaced by seats that provide superior accommodation for certain persons with disabilities.

[13] WestJet requests that the Agency consider an incident that took place on April 21, 2004, shortly after the landing of WestJet Flight No. 210 at Regina. WestJet explains that following the landing, a fire was discovered at the location of the right wheel and an emergency evacuation was required. WestJet states that two flight attendants worked the rear of the cabin where there was a good flow of passengers and an orderly disembarkation. One noted that the presence of two able-bodied persons at the base of the slide "made a huge difference". WestJet notes that, at the forward position, evacuation was quite slow, one flight attendant blocked the right forward door because of the fire and one flight attendant worked the forward left door through which evacuation proceeded. WestJet explains that the flight attendant did not have the benefit of able-bodied persons to assist in the facilitation and control of the disembarkation. WestJet adds that the extent to which disembarkation was impeded by the absence of able-bodied persons near the exit is illustrated by the fact that some 20 passengers disembarked through the front door while some 80 to 85 passengers disembarked through the rear door. WestJet asserts that, by slowing down the process, the absence of able-bodied persons at the exits compromised the safety of passengers and, of course, of the flight attendants.

[14] WestJet states that a serious set of safety concerns which WestJet is most anxious to remedy would be addressed by placing able-bodied persons in the aisle seats in the bulkhead row. WestJet further states that the able-bodied persons at the front of the aircraft would be able to: assist the flight attendant with crowd control, especially when the flight attendant must open the aircraft door and deploy the slide; assist persons with disabilities in certain circumstances; and be sent down the slide at the beginning of the evacuation as their presence contributes to the emotional security of those who follow, including persons with disabilities, who are likely to feel comforted and emboldened by the presence of help at the end of what can appear to be a frightening slide. WestJet adds that the assistance provided by these able-bodied passengers will speed up disembarkation.

[15] WestJet states that it operates two types of aircraft, the B737-200 series and the B737-700 series. In both models, row one is the bulkhead row on the right side and row two is the bulkhead row on the left side.

[16] Concerning the B737-200 model aircraft, WestJet explains that in exchange for taking seats 1D and 2C out of the inventory of seats reserved for persons with disabilities, it would reserve seats 4C and 4D for persons with disabilities while also keeping seats 1E, 1F, 2A and 2B in the inventory of seats reserved for persons with disabilities on a priority basis.

[17] With respect to the B737-700 model aircraft, WestJet also explains that in exchange for taking seats 1D and 2C out of the inventory of seats reserved for persons with disabilities, it would reserve seats 6C and 7C for persons with disabilities while also keeping seats 1E, 1F, 2A and 2B in the inventory of seats reserved for persons with disabilities on a priority basis.

[18] WestJet submits that it has considered whether it could meet the safety objective by placing able-bodied persons in the aisle seats in the row or rows immediately behind the bulkhead row and has identified some problems with this option. WestJet submits that seating the able-bodied persons behind the bulkhead row increases the possibility of those persons being obstructed so that their ability to assist is compromised. WestJet further submits that reserving the aisle seats in the row behind the bulkhead row for able-bodied persons gives rise to another accessibility issue.

[19] WestJet states that seats in the rows close to, but behind the bulkhead row offer some positive benefits compared to the bulkhead seats for certain passengers and that when considering the adequacy of the accommodation proposed, the fact that all the bulkhead seats have characteristics that make them inappropriate for accommodating some persons with disabilities should be taken into account. WestJet explains that not every passenger with a disability is well served by a bulkhead seat. It adds that the armrests in the bulkhead seats are fixed and in the case of passengers who require transfer to and from a boarding chair to the aircraft seat, this presents a problem. WestJet further submits that these seats pose special difficulties and dangers for customer service agents who are required to assist in the transfer of passengers to these seats. WestJet submits that the aisle seats in the second row have moveable armrests, making passenger transfer much easier. WestJet also explains that the seat pan in the bulkhead row is narrower than that in the second row and that "there is of course no possibility of storing passenger effects under the seat in front of the passenger in the bulkhead row."

[20] WestJet indicates that the remaining seats in the bulkhead row will be dedicated, on a priority basis, to passengers with disabilities. WestJet also indicates that it would be prepared to adopt a formal policy to the effect that the aisle seats in forward positions, which have features such as movable armrests, drop down tables trays and under seat storage facility, would be assigned on a priority basis to persons with disabilities.

[21] WestJet states that there are two principles of great importance that come into a certain degree of conflict: the principle of accessibility and that of safety. WestJet recognizes that when that situation arises, it is necessary to give careful consideration to the balancing of the principles. WestJet submits that accessibility is a real and serious and always important consideration.

[22] WestJet explains that it operates a one-class service where there is no such thing as business class. It also explains that for those carriers that operate with a business class configuration, the business class will be at the front of the aircraft, typically, and in those cases, there has been no suggestion that air carriers should put aside a business class seat on a priority basis for persons with disabilities if they are buying economy.

[23] WestJet submits that it is not its intention to have the aisle bulkhead seats occupied by crew members. However, WestJet states that placing crew members in the aisle bulkhead seats may be mandated by safety regulations in certain circumstances. WestJet further explains that for observation and training purposes, a trainee could occupy the aisle bulkhead seats.

[24] WestJet states that the greater the distance between able-bodied persons and the exit, the greater the probability that they will be impeded in assisting the flight crew in an emergency situation.

Transport Canada

[25] Transport Canada submits that while there is no regulatory requirement under the Canadian Aviation Regulations (hereinafter the CAR) to seat able-bodied persons in a specific location in the passenger cabin, it supports any safety procedure that places able-bodied persons close to an exit to assist with the evacuation process from both inside and outside the aircraft during an emergency. Transport Canada further submits that while placing able-bodied persons in the second row past the bulkhead would be acceptable, reducing or eliminating any factors that could affect the ability of the able-bodied persons to reach the exit area unimpeded should be a serious consideration. Transport Canada adds that for this reason, WestJet's proposal to allocate seats for able-bodied persons closest to the emergency exit, in this case the aisle seats 1D and 2C on the B737 aircraft, is ideal from a safety perspective.

[26] Transport Canada explains that the seats in the bulkhead rows that WestJet proposes to reserve for able-bodied persons are not considered "emergency exits". Transport Canada also states that it supports WestJet's proposal as it reduces or eliminates any factors that could hinder the ability of an able-bodied person to reach the exit area. Transport Canada states that the closer an able-bodied person is to the exit, the more likely he/she will be ready to assist the flight attendant to ensure a quick and efficient evacuation. Transport Canada adds that one has to look at what would afford persons with disabilities the greatest chance of evacuation; the fact that there is someone near them to bring them to the exit and help to open it or the fact that they are closer to the exit but there is no one around who can assist them. Transport Canada also indicates that a carrier can designate seats as seats for able-bodied persons as part of its emergency procedure.

[27] Transport Canada also explains that the CAR are designed for the collective safety of all aircraft occupants. The CAR specify that the air operator and, ultimately, the pilot in command, is responsible for the safe operation of the aircraft and the safety of all persons on board.

LEGISLATIVE CONTEXT

[28] Pursuant to section 32 of the CTA, the Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing. The Agency's jurisdiction under this section is limited and only arises if there has been a change in facts or circumstances pertaining to the Decision since its issuance. The Agency must first determine whether there has been a change in facts or circumstances pertaining to its Decision and, if so, then determine whether such change is sufficient to warrant a review, rescission or variance of the Decision.

ANALYSIS AND FINDINGS

[29] As indicated, the Agency considered the application and the material filed in support thereof and was satisfied that there had been a change in the facts or circumstances pertaining to Decision No. 126-AT-A-2003 since it issued. The Agency must now determine whether such a change is sufficient to warrant WestJet's requested variance of the said decision.

[30] In making its findings, the Agency has analyzed and considered all of the evidence submitted by the parties during the pleadings, including the information submitted by WestJet and Transport Canada during the information gathering session.

[31] The Agency notes Transport Canada's submission that there are no specific regulations that require an operator to seat an able-bodied person in a specific location in the passenger cabin. The Agency further notes Transport Canada's submission that the regulations specify that air operators, such as WestJet, are responsible for the safe operation of the aircraft and the safety of all passengers on board. Finally, the Agency notes Transport Canada's position that reducing or eliminating any factors that could affect the ability of able-bodied persons to reach the exit area unimpeded in order to assist the flight crew during evacuations should be a serious consideration.

[32] The Agency further notes that Transport Canada supports WestJet's proposal as it reduces or eliminates any factors that could hinder the ability of an able-bodied person to reach the exit area. Transport Canada is therefore of the opinion that from a safety point of view, it is better that the aisle bulkhead seats (1D and 2C) be occupied by able-bodied persons.

[33] The Agency has long recognized the importance of accessibility and safety of air transportation. The Agency is of the opinion that the requested variance results in a reasonable limitation on the seats available to persons with disabilities on WestJet's Boeing 737-200 and 737-700 aircraft. The Agency also notes that WestJet will be reserving two other aisle seats for passengers with disabilities to compensate for the two aisle bulkhead seats and that the four other seats in the bulkhead row will remain available for passengers with disabilities on a priority basis. On balance, and given the fact that the bulkhead aisle seats are those closest to the forward exits on the Boeing 737-200 and 737-700 aircraft operated by WestJet and, in consideration of WestJet's evacuation procedures, the Agency is of the opinion that WestJet has demonstrated that, for safety reasons, seats 1C and 2D on the Boeing 737-200 and 737-700 aircraft need to be reserved for able-bodied persons.

CONCLUSION

[34] In light of the foregoing, the Agency is of the opinion that the change in facts or circumstances in this case is sufficient to warrant WestJet's requested variance.

[35] Consequently, the Agency, pursuant to section 32 of the CTA, hereby varies Decision No. 126-AT-A-2003 by amending the corrective measures with respect to WestJet's seating policy as follows:

(1) WestJet is to amend its seating policy for the Boeing 737-200 and Boeing 737-700 aircraft

(iii) to make it clear that, for bulkhead seating, except for the aisle seats, persons with disabilities get priority over able-bodied persons.

[36] As a result of the variance, WestJet is required: (1) to modify its seating policy in accordance with its submissions made during the course of this proceeding, notably with regard to alternative seating for persons with disabilities; and (2) to file with the Agency a copy of the amended seating policy reflecting the amendments approved herein.