Decision No. 11-AT-C-A-2021

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against WestJet pursuant to:

• subsection 172(1) of the CTA, with respect to WestJet’s alleged failure to provide appropriate seating and wheelchair assistance; and
• subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR), regarding seat selection fees.

[2] On October 7, 2019, the Agency issued Decision No. LET-AT-C-A-69-2019 (Interim Decision), where it found that the applicant is a person with a disability and that she encountered obstacles to her mobility. The Agency also found that WestJet properly applied the terms and conditions set out in its International/Transborder Passenger Fares and Rules Tariff No. WS-1 Containing Local and Joint Rules, Fares and Charges on Behalf of WestJet Airlines, Ltd Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points in Area 1/2 and Between Points in the US and Points in Canada, NTA(A) No. 518 (Tariff) regarding seat selection fees.

[3] In this Decision, the Agency will address the issue of whether WestJet can remove the obstacles to the applicant’s mobility without experiencing undue hardship.

[4] For the reasons set out below, the Agency finds that:

• The obstacle encountered by the applicant in not being allowed to be seated in the front row of the aircraft without paying an extra fee for a higher class of service is not undue because the priority seating described by WestJet represents a reasonable balance between the applicant’s disability-related needs and WestJet’s obligation to accommodate those needs without experiencing undue hardship.
• The applicant encountered an undue obstacle to her mobility within the meaning of subsection 172(1) of the CTA when she was required to sit in a seat with no liftable armrest.

[5] The Agency orders WestJet to:

• amend its policy and procedures relating to seating accommodation; and
• issue a bulletin to its personnel.

BACKGROUND

[6] The applicant has paraplegia, independently uses a manual wheelchair, and does not require assistance with daily activities.

[7] The applicant booked flights with WestJet to travel with her husband, her two children and her sister from Calgary, Alberta, to Orlando, Florida, on January 22, 2017, returning to Saskatoon, Saskatchewan, via Toronto, Ontario, on January 31, 2017. After booking these flights, the applicant contacted WestJet’s “disability support group” to discuss seating arrangements. The applicant claims that she was not allowed to select a seat in the front row of the aircraft, which would have allowed her to use her own wheelchair to get to her seat, as she had not purchased a “business class ticket.”

[8] The applicant also claims that for the flight from Orlando to Toronto, the armrest of her assigned seat did not lift and that she had to perform a “risky transfer” from the onboard wheelchair to the passenger seat over the armrest. Lastly, the applicant claims that she had to wait 15 minutes before getting assistance to disembark the aircraft upon arrival in Toronto.

[9] In the Interim Decision, the Agency found that the applicant is a person with a disability and that she encountered obstacles to her mobility when she was not allowed to be seated in the front row of the aircraft without paying an extra fee for a higher class of service and when she was required to sit in a seat that did not meet her disability-related needs as it did not have a liftable armrest. The Agency also found that the 15 minutes that the applicant had to wait before disembarking the aircraft did not constitute an obstacle to her mobility. Finally, the Agency found that WestJet had properly applied Rule 70 of its Tariff by charging advance seat selection fees for the applicant’s husband and one of her children.

[10] The Agency directed WestJet to provide submissions on how it proposes to remove the obstacles identified by the Agency or to demonstrate that it cannot remove the obstacles without experiencing undue hardship. WestJet filed its answer on February 25, 2020. The applicant did not file a reply.

PRELIMINARY MATTER

[11] In its answer, WestJet disputes that, based on the available evidence, the applicant encountered an obstacle given that she was not prevented from accessing services that are normally available to other users of the federal transportation network. WestJet argues that the burden is on the applicant to demonstrate that WestJet’s application of its seating policy creates an obstacle to her mobility, which it submits she failed to do.

[12] The Agency has already made final determinations on disability and obstacle in the Interim Decision, and these issues will not be re-examined.

THE LAW

[13] The accessibility-related portion of the application was filed pursuant to subsection 172(1) of the CTA, which, at the time of the application, read 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.

[14] As outlined in the Agency’s letter opening pleadings on February 12, 2019, and amended by email on March 28, 2019, the first steps in this application are to consider whether the applicant is a person with a disability, and, if so, whether she encountered an obstacle. These steps were completed in the Interim Decision.

[15] As it was done in this case, once it is determined that the applicant encountered an obstacle, the Agency then provides the respondent with an opportunity to either:

• explain, taking into account any proposals from the applicant, how it proposes 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.

[16] In this Decision, the Agency will determine whether WestJet can remove the obstacles to the applicant’s mobility without experiencing undue hardship.

WESTJET’S POSITION

[17] WestJet reiterates that seating for persons with disabilities beyond the priority seats located in rows 4 to 9 is based on a determination made by its medical and accessibility team regarding the most appropriate seating for a passenger within the class of service that they purchased.

[18] WestJet submits that the bulkhead on its Boeing 737 aircraft is being reconfigured to a “2 x 2 business class seat” configuration with fixed armrests. Accordingly, WestJet submits that the most appropriate seats for the applicant in the future will be in rows 4 to 9, where there is a 34-inch seat pitch, which is the same amount of room as in the bulkhead, and movable armrests in all rows. WestJet adds that, in cases where a particular aircraft’s configuration differs from this configuration, it alters seating assignments to ensure that passengers with disabilities are “appropriately accommodated with respect to their mobility restrictions.”

[19] WestJet submits that requiring it to seat the applicant in the Premium seats, which are located in the first row of its aircraft, would cause WestJet undue hardship. WestJet relies on the United States’ seating accommodation legislation, which it submits does not require carriers to provide accommodation in a class of service other than the one purchased. WestJet also states that nothing in its Tariff or its programs for passengers with special needs requires that passengers be provided with a seat in the Premium seating area. WestJet also states that it is unaware of any airline that provides this type of “free” upgrade service, “particularly when the guest’s disability does not necessitate such an upgrade.”

[20] Further, WestJet submits that requiring it to provide the applicant and her family with complimentary seats in the Premium section would have a significant impact on its operations because many of WestJet’s aircraft have only eight seats in the Premium section and the applicant asks that four of those seats be assigned to her and her family at no extra charge. WestJet also submits that this would set a detrimental precedent that would create an undue burden on all carriers operating in Canada.

ANALYSIS AND DETERMINATIONS

First-row seating

[21] WestJet stated in general terms that it would cause undue hardship to provide the applicant and her family with first-row seating as many of its aircraft have only eight Premium seats. However, the Agency notes that the applicant did not request accommodation for all her family and that any accommodation measure ordered by the Agency would apply to the applicant only and not to her family.

[22] It is important though for the Agency to consider other seating requirements when assessing the potential implications of the corrective measure sought by the applicant. Specifically, certain provisions of the Air Passenger Protection Regulations, SOR/2019‑150 (APPR) and the Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-44 (ATPDR), both of which came into effect after this incident, set out the following seating requirements for air carriers:

• pursuant to section 22 of the APPR, children under the age of 14 years must be seated in close proximity to a parent; and
• pursuant to section 50 of the ATPDR, a support person who is required by a person with a disability must be seated in a seat adjacent to the person with a disability.

[23] In this case, the applicant indicates that she is able to travel independently and does not require a support person. In addition, her two children did not need to be seated with her on this trip because her husband was travelling as well and the children could be seated with him. However, it is clear that any requirement that persons with disabilities be accommodated in a higher class of service may carry with it additional obligations for carriers over and above the accommodation sought in this case. These obligations would increase the burden on carriers.

[24] Subsection 172(1) of the CTA is a complaint-driven mechanism. This application is only against WestJet and, as such, any remedy ordered by the Agency would only apply to WestJet. However, if the Agency were to order WestJet to provide a general or personal corrective measure for seating accommodation in a higher class of service without having to pay the additional fare or charge associated with that class of service, such a decision potentially creates a precedent that could be applied to other carriers. Although the Agency is not technically bound by its own decisions, the potential significance to the industry of ruling on these issues in this case must be considered.

[25] The Agency’s finding regarding the obstacles encountered by the applicant in this case was based, in large part, on her independence and the fact that by obtaining seating in the front row of WestJet’s aircraft, she could transfer independently and directly from her own wheelchair into her passenger seat. By doing so, she could avoid the loss of independence involved in using the onboard wheelchair that is necessary to move down the aircraft aisle to access a seat farther back in the cabin as well as the increased risk involved in executing the multiple transfers that this would entail, between her own wheelchair and the onboard wheelchair and between the onboard wheelchair and her passenger seat. However, it is important to recognize that front-row seats would generally be more accessible to a significant number of persons with disabilities, including persons with severe mobility impairments and persons travelling with a service animal. This is because these seats are closer to the door of the aircraft and often closer to the washroom and they provide more seating space and floor space for the passenger. In that context, while the cost of accommodating the applicant may not be excessive, the burden of accommodating persons with disabilities, and potentially their support person and service animal, by seating them in these seats if they were available at the same cost as economy seats is expected to be high. Therefore, the overall cost of this accommodation would be significant, especially given the premium fare charged for these seats that would be foregone by requiring carriers to provide them at the same cost as economy seats.

[26] In light of the above, the Agency finds that imposing such a measure on one transportation service provider would represent a very significant competitive disadvantage if not considered in the context of the industry at large. It would also potentially create a precedent in the industry for application in other cases, with the input of only one transportation service provider. A significant issue such as this one is best addressed with the involvement of other stakeholders so that a clear picture of the impact on industry can be established. For example, in Decision No. 6-AT-A-2008 (Accessible transportation complaint: Additional fares and charges – one person, one fare), the Agency addressed the question of whether persons with disabilities who require additional seating to accommodate their disabilities should be charged for that additional seating. The Agency addressed this important issue in the context of complaints against Air Canada, Air Canada Jazz and WestJet, which, at the time, represented 90 percent of the domestic air industry.

[27] In Decision No. 324-AT-A-2015 (Cheung v WestJet), the Agency recognized that some issues, by their nature, demand a more systemic approach. In this case, given the significant impact of imposing on a carrier the duty to accommodate a passenger with a disability by providing that passenger with a seat in a higher class of service without having to pay any additional fare or charge associated with that class of service, the Agency considers that it would be inappropriate to order such a corrective measure without a more systemic consideration of the issue.

[28] The ATPDR represent the most recent systemic analysis, having come into force on June 25, 2020, and reflect the Agency’s long-held position that a person with a disability is entitled to the most accessible seat in the class of service for which they pay. Section 55 provides:

If a person with a disability identifies the nature of their disability when making a reservation with a carrier, the carrier must

(a)  before assigning a passenger seat or cabin to a person with a disability, inform the person of the passenger seats and cabins that are available in the class of service that the person has requested and that have equipment and facilities that best meet the accessibility needs of that person, such as a wheelchair-accessible washroom or a passenger seat that has additional leg room, a larger seat pitch or movable armrests;

….

[29] Although the Agency recognized in the Interim Decision that the applicant demonstrated that the most appropriate seat for her is in the first row of the aircraft, this may not always be so as the first rows of the Boeing 737 aircraft on WestJet’s fleet are being reconfigured and will now have seats with fixed armrests, making them less accessible to persons who must transfer from a wheelchair or an onboard wheelchair to their passenger seat. WestJet submits that a seat in rows 4 to 9 would have the same amount of seating space and floor space as the bulkhead seats and would have a liftable armrest. WestJet states that when a particular aircraft’s configuration differs from this configuration, it alters seating assignments to ensure that passengers with disabilities are “appropriately accommodated with respect to their mobility restrictions.”

[30] Although the applicant wishes to sit in the front row in part to reduce the risk associated with the transfers that she must perform to sit in a passenger seat, the Agency has long held that transfers can be performed safely with appropriate training. For example, in Decision No. 78-AT-A-2003 (Zahara v Air Transat) the Agency stated that the onboard wheelchairs are specifically built to be handled, with the assistance of an attendant, in the confined space of the passenger cabin and that the onboard wheelchairs allow for a safe and appropriate transfer from the passenger seat to the door of the aircraft. Moreover, transfer training requirements have been in place since 1994 in the Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42. Therefore, it is expected that, with appropriate training, onboard wheelchairs can be used safely, including for the transfer of persons using wheelchairs into seats with liftable armrests.

[31] Based on the above, the Agency finds that it would constitute undue hardship to impose on WestJet the requirement to accommodate a passenger with a disability by providing that passenger with a seat in a higher class of service without having to pay any additional fare or charge associated with that class of service. Furthermore, the Agency finds that the priority seating described by WestJet represents a reasonable alternative to the applicant’s preferred accommodation in that she is able to travel, albeit without the enhanced level of independence that she would like. The Agency finds that the accommodation provided by WestJet in the form of the priority seating represents an appropriate balance between the applicant’s disability-related needs, WestJet’s obligation to accommodate those needs without experiencing undue hardship and the requirements of the ATPDR. The Agency, therefore, finds that the obstacle encountered by the applicant in not being allowed to be seated in the front row of the aircraft without paying an extra fee for a higher class of service is not undue.

Liftable armrest

[32] The Agency notes that WestJet remained vague and did not comment on how it proposes to remove the obstacle encountered by the applicant when she was required to sit in a seat, for the inbound flight, that did not meet her disability-related needs as it did not have a liftable armrest. Nor did WestJet argue that it cannot remove the obstacle without experiencing undue hardship. WestJet only stated that the most appropriate seat for the applicant in the future will be in rows 4 to 9, where there are liftable armrests.

[33] WestJet did not provide any evidence that demonstrates how it would cause it undue hardship to provide the applicant with a seat that has a liftable armrest so she can safely transfer from her wheelchair to the aircraft seat. Despite her request for a seat with a liftable armrest, the applicant was assigned a seat with an armrest that did not lift. Whether this was by design or by error or whether the armrest was simply broken, WestJet’s personnel should have immediately reassigned the applicant to a seat with an operational liftable armrest to ensure that she did not have to perform the risky manoeuvre of transferring over the armrest.

[34] Therefore, based on the above, the Agency finds that WestJet did not demonstrate how removing this obstacle would result in undue hardship. As such, the Agency finds that the applicant encountered an undue obstacle to her mobility within the meaning of subsection 172(1) of the CTA when she was required to sit in a seat on the inbound flight that did not meet her disability-related needs as it did not have a liftable armrest and, therefore, made the applicant perform the risky manoeuvre of transferring over the armrest.

CONCLUSION

[35] In light of the above, the Agency finds that the obstacle encountered by the applicant in not being allowed to be seated in the front row of the aircraft without paying an extra fee for a higher class of service is not undue because the priority seating described by WestJet represents a reasonable balance between the applicant’s disability-related needs and WestJet’s obligation to accommodate those needs without experiencing undue hardship. The Agency also finds that the applicant encountered an undue obstacle to her mobility within the meaning of subsection 172(1) of the CTA when she was required to sit in a seat with no liftable armrest.

ORDER

[36] The Agency orders WestJet to:

• amend its policy and procedures relating to seating accommodation to include that persons needing a transfer from a wheelchair to an aircraft seat be assigned a seat with a functional liftable armrest and, if the armrest of the assigned seat is found not to be functional, that its personnel shall immediately reassign the passenger to a seat with a functional liftable armrest; and
• issue a bulletin to its personnel advising them of the amended policy and procedures.

[37] WestJet must confirm to the Chief Compliance Officer that it amended its policy and sent the internal communication to its personnel no later than on June 25, 2021.