Decision No. 111-AT-C-A-2023

July 5, 2023

Application by Maryam Rashidian against Air Canada and Lufthansa regarding barriers to mobility

Case number: 
23-09010

Summary

[1] Maryam Rashidian filed an application with the Canadian Transportation Agency (Agency) against Air Canada and Lufthansa regarding the lack of wheelchair assistance when transiting through the airport in Frankfurt.

[2] Ms. Rashidian seeks a refund of the CAD 8,649.03 cost of her and her family members’ tickets, as compensation for ruining their family trip.

[3] For the reasons set out below, the Agency finds that, irrespective of whether Ms. Rashidian is a person with a disability, she did not demonstrate that she faced a barrier attributable to Air Canada. Therefore, the Agency dismisses the application against Air Canada. The Agency also dismisses the application against Lufthansa because it was not responsible for providing wheelchair assistance to Ms. Rashidian and was not involved in the incident.

Background

[4] Ms. Rashidian travelled from Toronto, Ontario, to Tehran, Iran, via Frankfurt, Germany, on August 13, 2022. The flight segment from Toronto to Frankfurt was operated by Air Canada and the flight segment from Frankfurt to Tehran was operated by Lufthansa. At the airport in Toronto, Ms. Rashidian asked Air Canada for wheelchair assistance or transportation for her transit through the Frankfurt airport, but claims that she did not receive it.

Preliminary matters

Air Canada’s request to dismiss

[5] Air Canada requests that the Agency dismiss the application on a procedural basis under section 42 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) (Rules), for lack of jurisdiction. If the application is not dismissed, Air Canada requests that the Agency require Ms. Rashidian to demonstrate that she has a disability or functional limitation which, in interaction with a barrier, affects her full and equal participation in society.

[6] As the Agency determined previously in Decision LET-C-A-10-2021 (Milovac v Air Canada), section 42 of the Rules allows the Agency to address a specific defect in an application without requiring the respondent to file an answer on the merits. However, it represents an additional step in the proceeding in the sense that the applicant is required to justify why the Agency should not dismiss the application before addressing the merits of the case. Such an additional step is neither necessary nor desirable in cases where the respondent simply wishes to argue that the application should be dismissed on the merits. This question is best addressed in the pleadings on the main application, rather than by a separate request.

[7] Considering the extent of the information provided in Air Canada’s and Lufthansa’s submissions and Ms. Rashidian’s further submission in response, the Agency finds that it has all the information needed to come to a decision on the merits of the application. Therefore, the Agency rejects Air Canada’s request and finds that it is unnecessary to receive a supplemental answer from Air Canada.

Jurisdiction

Air Canada

[8] Air Canada submits that the Agency does not have jurisdiction over the application considering that Regulation (EC) 1107/2006 of the European Parliament and of the Council calls upon the airport authority and not the carrier to provide wheelchair assistance to persons with disabilities. In Germany, the Frankfurt airport is responsible for providing wheelchair assistance to persons with disabilities outside the aircraft and has contracted with FRACareServices to provide these services.

[9] The Agency has jurisdiction over accessibility issues that arise in the international air transportation context, both within Canada as well as outside Canada, involving air carriers providing transportation to or from Canada. However, as set out in Decision 211-AT-A-2012 (Ronald and Sandra Boyko, on behalf of Frances Bassarab v Air Canada), the Agency does not have jurisdiction over services offered by a foreign company that is under contract with a foreign airport authority. As such, the Agency cannot assert jurisdiction over FRACareServices and, thus, over the incident that arose between FRACareServices and Ms. Rashidian in this case. However, the Agency does have jurisdiction over Air Canada’s involvement in the process to ensure the provision of the service; that is, the communication of the Ms. Rashidian’s need for disability-related assistance to FRACareServices.

Lufthansa

[10] Lufthansa argues that the application against it should be dismissed because its employees were not involved in the incident. Lufthansa indicates that the incident took place at the Air Canada gate of the Frankfurt airport and involved a FRACareServices employee. Lufthansa submits that the photos provided by Ms. Rashidian of the person whom she alleges insisted she get out of the wheelchair are of a FRACareServices employee. Lufthansa also explains that it could not have taken any steps in relation to Ms. Rashidian’s wheelchair request, as it was made through Air Canada and provided by FRACareServices, over which it has no control.

[11] The Agency agrees that Lufthansa was not responsible for providing wheelchair assistance to Ms. Rashidian upon her arrival at Frankfurt airport or for transmitting Ms. Rashidian’s request for wheelchair assistance to FRACareServices. Therefore, the Agency dismisses the application against Lufthansa.

The law

[12] The Agency has authority to decide applications that claim the existence of an undue barrier to the mobility of persons with disabilities within the federal transportation network.

[13] The Agency determines whether there is an undue barrier to the mobility of a person with a disability using a two-part approach:

Part 1: The onus is on the applicant to demonstrate, on a balance of probabilities, that:

  • they have a disability. A disability is any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment—or a functional limitation—whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society;

and

  • they faced a barrier. A barrier is anything—including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice—that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation.

There needs to be some connection between the applicant’s disability and the barrier.

Part 2: If it is determined that an applicant has a disability and faced a barrier, the onus shifts to the respondent to either:

  • explain, taking into account any proposals from the applicant, how it proposes to remove the barrier through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or, if a general modification is not feasible, an individual accommodation measure;
  • or
  • demonstrate, on a balance of probabilities, that it cannot remove the barrier without experiencing undue hardship.

Positions of the parties

Ms. Rashidian

[14] Ms. Rashidian states that she has fibromyalgia, which causes pain and tenderness throughout her body, fatigue and trouble sleeping. Ms. Rashidian states that she also had a knee surgery which has reduced her mobility, caused pain and limited her ability to walk properly and stand on her feet for long. She also indicates that the muscle pain throughout her body has affected her interaction and communication with people.

[15] Ms. Rashidian explains that, once at the airport in Toronto and upon arrival at Air Canada’s gate at the airport in Frankfurt, she requested wheelchair assistance or transportation from Air Canada for her transit in the Frankfurt airport. Upon arrival at the gate at the Frankfurt airport, Ms. Rashidian asked for her wheelchair. She states that an employee forcefully took the wheelchair from her and shouted, threatened, insulted, and pointed their finger at her. Ms. Rashidian submits that this employee ruined her and her family’s vacation as she cried throughout the vacation. She claims that her symptoms worsened and she had to take pain killers and sleeping pills.

Air Canada

[16] Air Canada claims that it has no record of Ms. Rashidian requesting wheelchair assistance prior to travel and its Medical Desk does not have a file for Ms. Rashidian. Air Canada submits that Ms. Rashidian requested wheelchair assistance (WCHR) at the airport in Toronto on August 13, 2022, for her arrival at the airport in Frankfurt. Air Canada provides evidence in the form of the Ms. Rashidian’s Passenger Name Record (PNR) which shows that the request for WCHR was added in the system by Air Canada for the flights from Toronto to Frankfurt and Frankfurt to Tehran. As explained in Lufthansa’s answer, WCHR means wheelchair assistance that includes a wheelchair or electric cart provided by an employee from FRACareServices waiting at the gate area for passengers who can walk short distances and up or down stairs. As evidenced by an email from FRACareServices, Air Canada explains that the Ms. Rashidian, without asking, took and sat in a wheelchair that was reserved for another passenger at the gate and refused to relinquish the wheelchair when the situation was explained to her. Ms. Rashidian’s tone was aggressive and the federal police were called.

[17] The email Air Canada received from FRACareServices indicates that Ms. Rashidian was ultimately assisted to their connecting flight via electric cart. Air Canada submits that this information confirms that it communicated Ms. Rashidian’s need for WCHR assistance to FRACareServices. In addition, Air Canada submits that any arguments between Ms. Rashidian and FRACareServices employees are not related to Air Canada. As such, it states that Ms. Rashidian did not face a barrier attributable to Air Canada.

Analysis and determination

[18] As stated above, the Agency cannot assert jurisdiction over FRACareServices and, thus, over the incident between FRACareServices and Ms. Rashidian. However, the Agency finds that Air Canada was responsible for transmitting Ms. Rashidian’s request for wheelchair assistance to FRACareServices, and can assert jurisdiction over Air Canada’s involvement in the process to ensure the provision of the service.

[19] It is undisputed that Air Canada received Ms. Rashidian’s request at the airport in Toronto on the day of travel. The Accessible Transportation for Persons with Disabilities Regulations (ATPDR) provide that when a request for service is made by a person with a disability 48 hours before the scheduled time of departure, the carrier must provide the service and when the request is made less than 48 hours in advance, the carrier must make every reasonable effort to provide the service. The Agency notes that although Ms. Rashidian did not give 48 hours’ advance notice, Air Canada properly handled the last minute request for accommodation by making every reasonable effort to relay Ms. Rashidian’s request for WCHR assistance to FRACareServices by adding the WCHR code to Ms. Rashidian’s PNR. That its efforts were successful is evidenced by the fact that FRACareServices provided Ms. Rashidian with the electric cart service.

[20] The Agency therefore finds that Ms. Rashidian did not meet her burden to demonstrate that she faced a barrier attributable to Air Canada, hindering her full and equal participation in the federal transportation network. As a result, there is no need to consider whether Ms. Rashidian has demonstrated that she is a person with a disability.

Conclusion

[21] The Agency dismisses the application.

Legislation and Tariff cited Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10 172(1); 169.5
Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244 32(1); 32(4)
Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 42
Regulation (EC) 1107/2006 of the European Parliament and of the Council  7

Member(s)

France Pégeot
Elizabeth C. Barker
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