Decision No. 114-AT-A-2022

September 20, 2022

APPLICATION by Elaine Browne on behalf of the minor applicant against WestJet, pursuant to subsection 172(1) of the Canadian Transportation Act, SC 1996, c 10 (CTA).

 

Case number: 
21-50245

SUMMARY

[1] The applicant, a minor child represented by Ms. Browne, filed an application with the Canadian Transportation Agency (Agency) against WestJet, claiming that persons with disabilities who are approved by WestJet for its One Person, One Fare (1P1F) program should be able to book their flight tickets through the online booking system. WestJet currently requires passengers to call its Special Care Desk to make a reservation through the 1P1F program.

[2] The applicant seeks an order that WestJet make the online booking system accessible for all. In the alternative, the applicant seeks an order that WestJet provide a dedicated line for booking for persons with disabilities.

[3] On December 1, 2021, the Agency issued Decision LET-AT-A-62-2021, in which it found that the applicant is a person with a disability and that he encountered barriers to his mobility.

[4] On April 19, 2022, the Agency issued Decision LET-AT-A-17-2022, in which it found that the applicant faced undue barriers to his mobility within the meaning of subsection 172(1) of the CTA. The Agency recognized that WestJet had already addressed the unreasonable amount of time that 1P1F program passengers had to wait on the telephone to reach the Special Care Desk and that no further corrective measure was necessary. WestJet was required to inform the Agency of what corrective measure(s) it would take to remedy the limited business hours of the Special Care Desk and the expected implementation date. The Agency also opened pleadings on possible compensation for pain and suffering.

[5] On June 23, 2022, the Agency decided, with reasons to follow, that it was satisfied that WestJet’s proposal to implement a process by July 1, 2022, to allow passengers with an approval number for the 1P1F program to book an itinerary outside of the business hours of the Special Care Desk through its website will remedy the remaining barrier identified in Decision LET-AT-A-17-2022. The Agency also ordered WestJet to change its procedures to ensure that starting July 1, 2022, WestJet’s Special Care Desk issues confirmation in writing to the 1P1F program passenger, or their representative, that their request has been processed immediately after processing such request.

[6] In this decision, the Agency provides the reasons for the decision and order it rendered on June 23, 2022, and it addresses compensation for pain and suffering.

[7] The Agency orders WestJet to compensate the applicant for pain and suffering, in the amount of CAD 500.

THE LAW

Accessibility

[8] The application was filed pursuant to subsection 172(1) of the CTA, which reads 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 barrier to the mobility of persons with disabilities.

[9] As stated in Decision 33-AT-A-2019 (Interpretive Decision) regarding accessibility-related applications, 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.

Remedies

[10] The Agency determined in LET-AT-A-62-2021 that no regulations relevant to this case were in force at the time of the incident that would limit its remedial powers under subsection 172(3) of the CTA. Because the Agency found in LET-AT-A-17-2022 that there is an undue barrier, it may order any of the remedies listed under subsection 172(2) of the CTA:

(a) require the taking of appropriate corrective measures;

(b) direct that compensation be paid for any expense incurred by a person with a disability arising out of the barrier, including for any costs of obtaining alternative goods, services or accommodation;

(c) direct that compensation be paid for any wages that a person with a disability was deprived of as a result of the barrier;

(d) direct that compensation be paid up to a maximum amount of — subject to the annual adjustments made under section 172.2 — $20,000, for any pain and suffering experienced by a person with a disability arising out of the barrier;

(e) direct that compensation be paid up to a maximum amount of — subject to the annual adjustments made under section 172.2 — $20,000, if the Agency determines that the barrier is the result of a willful or reckless practice.

Confirmation of services

[11] Section 58 of the Accessible Transportation for Persons with Disabilities RegulationsNote 1 (ATPDR) provides that:

If a carrier is required by this Part to provide a service to a person with a disability, the carrier must, without delay, indicate in the record of a person’s travel reservation the services that the carrier will provide to the person and include a written confirmation of the services in the itinerary that is issued to the person and, if a service is confirmed only after the itinerary is issued, the carrier must, without delay, provide a written confirmation of the service.

REASONS FOR THE AGENCY’S DECISION AND ORDER DATED JUNE 23, 2022

Positions of the parties

WESTJET

[12] WestJet proposes that, during the business hours of the Special Care Desk, 1P1F program passengers continue to call the Special Care Desk to book their itineraries.

[13] When the Special Care Desk is closed, WestJet proposes to implement a measure allowing 1P1F program passengers to book their itinerary and pay for one seat through WestJet’s website. Once they have received the confirmation number for their itinerary, they could complete and submit a form on WestJet’s website providing that confirmation number, their 1P1F program number, and other information about the accommodation they require in relation to the itinerary. The Special Care Desk would then make best efforts to review the form and adjust their reservation as required within 24 hours—for example, assigning a specific seat, adding an extra seat, or adding a booking for an attendant. WestJet submits that this measure would ensure that 1P1F program passengers are able to book a fare through WestJet’s website at any time at the price seen on the website.

[14] WestJet indicated that it was in the process of creating the new form and that this new measure could be implemented by July 1, 2022.

THE APPLICANT

[15] The applicant asks what the expected turnaround time would be if 1P1F program passengers could email to book a flight, expressing concern that the flight could book up while awaiting a response from WestJet.

Analysis and determination

[16] The Agency finds that the process proposed by WestJet removes the remaining undue barrier identified in Decision LET-AT-A-17-2022 because it allows 1P1F program passengers to book an itinerary 24 hours a day, 7 days a week, by using the online booking system when the Special Care Desk is closed.

[17] The Agency ordered WestJet’s Special Care Desk to issue confirmation in writing to the 1P1F program passenger, or their representative, that their request has been processed immediately after processing such request. This condition reflects WestJet’s obligation pursuant to section 58 of the ATPDR to provide written confirmation, without delay, of the services that it will provide to the 1P1F program passenger. The Agency takes note of WestJet’s undertaking to make best efforts for the Special Care Desk to respond within 24 hours.

COMPENSATION FOR PAIN AND SUFFERING

Positions of the parties

THE APPLICANT

[18] The applicant submits that he was not treated fairly and with respect. He feels that the barriers encountered by persons with disabilities when they use WestJet’s 1P1F program are unjust and unfair. He is sad about the inequity for those who need to travel with an attendant. He states that he experienced distress about the difficulties and frustration that Ms. Browne endured to successfully book a flight with WestJet for him. He also states that he is offended by WestJet’s submissions, claiming that WestJet minimizes the burden on, and inconvenience to, him and his family, and that it does not acknowledge that the level of service was unacceptable or apologize.

[19] The applicant says that the 14 hours that Ms. Browne spent on hold was very boring and long for him because he needs help with all activities of daily life.

[20] The applicant also argues that the many hours that Ms. Browne spent on this proceeding is time that could have been spent entertaining and caring for him. He submits that, during the pleadings process, Ms. Browne put a lot of thought and effort into her submissions, and suggested possible solutions on how to improve the situation for passengers using the 1P1F program.

[21] The applicant states that he did not incur any expenses. He would accept any compensation based on the inequity and the barriers to his mobility that he experienced.

WESTJET

[22] WestJet points out that the applicant did not initially seek compensation for pain and suffering in his application. It argues that the applicant’s most recent submissions are not sufficient to establish that he experienced pain and suffering, as those terms are used in the CTA, that would entitle him to compensation.

[23] WestJet points to the Agency’s statement on its website that the Accessible Canada ActNote 2 (ACA)aligns the Agency’s power to award compensation with that of the Canadian Human Rights Tribunal (CHRT) under the Canadian Human Rights ActNote 3 (CHRA).

[24] WestJet relies on Lebeau,Note 4 where the Federal Court upheld an adjudicator’s decision not to award compensation for claimed pain and suffering as a result of alleged discrimination by the employer. In that case, the applicant did not provide any medical evidence to support her claims that she had suffered from stress, humiliation, loss of self-esteem, irritable bowel syndrome, insomnia and depression as a result of the alleged discrimination. The court found that the adjudicator’s decision to not award any compensation under the CHRA was reasonable. WestJet also submits that the Agency should not consider any allegations of pain and suffering related to the Agency’s pleadings process or steps taken by WestJet or the Agency with regard to proceeding.

ANALYSIS AND DETERMINATION

[25] The Agency has authority under paragraph 172(2)(d) of the CTA to order compensation for the pain and suffering experienced by a person with a disability arising out of an undue barrier to their mobility. Pain and suffering can be expressed in various forms, including stress, anxiety, depression, physical pain or suffering, humiliation or loss of dignity, and any combination of these factors. Every complaint is unique; therefore, the Agency assesses compensation on a case-by-case basis.

[26] The Agency accepts that the applicant experienced feelings of injustice and distress due to the difficulties Ms. Browne experienced in booking an 1P1F program itinerary for him with WestJet. The Agency is also satisfied that this incident had a negative impact on his daily life because he was deprived of Ms. Browne’s care, assistance with his daily activities and companionship during the 14-hour period that she remained on hold.

[27] The Agency finds that this evidence is sufficient to base an award for compensation for the pain and suffering he describes. While more severe instances of pain and suffering may be corroborated with medical records, reports or other evidence, the Agency finds that it is not reasonable to expect corroborating evidence in this type of case.

[28] Although the Agency is not bound by CHRT decisions, applicable case law provides helpful guidance. In Alizadeh-Ebadi,Note 5 the CHRT stated, “When evidence establishes pain and suffering, an attempt to compensate for it must be made”.

[29] To determine the amount of compensation, the Agency must weigh the evidence before it, taking into account considerations such as the extent and duration of the pain and suffering experienced by the applicant. The award must be fair and reasonable, but compensation for pain and suffering is difficult to quantify—it is essentially an attempt to put a price on happiness. As the Supreme Court of Canada recognized in Andrews,Note 6 placing a value on non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one because money cannot provide true restitution.

[30] In CHRT case law, the amount of compensation awarded depends on the seriousness of the impact on the victim, and the maximum amount is only typically awarded in “the most blatant, striking, or even the worst cases of complaints” (HugieNote 7), or the “most egregious of circumstances” (GrantNote 8).

[31] The evidence in this case does not demonstrate an impact that would warrant compensation at or approaching the maximum amount allowed by the CTA. The Agency therefore finds that compensation in the amount of CAD 500 would be appropriate in the circumstances.

[32] The Agency also recognizes the frustration that Ms. Browne experienced while trying to book an 1P1F program itinerary with WestJet, and the time and effort that she put into the applicant’s submissions in this proceeding. As noted in LET-AT-A-17-2022, the Agency has authority to compensate for the pain and suffering experienced by a person with a disability due to the barrier to his mobility. The Agency has no authority under paragraph 172(2)(d) of the CTA to compensate for the pain and suffering of other persons, nor for the time and effort spent on its adjudication process.

ORDER

[33] The Agency orders WestJet to compensate the applicant for pain and suffering, in the amount of CAD 500. WestJet is to pay this amount to the applicant as soon as possible and no later than November 3, 2022.

 


 

Member(s)

Heather Smith
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