Decision No. 116-AT-A-2023

July 26, 2023

Application by Manjit Kaur Masoun against Lufthansa regarding barriers to mobility

Case number: 
22-50204

Summary

[1] Manjit Kaur Masoun filed an application with the Canadian Transportation Agency (Agency) against Lufthansa regarding the lack of wheelchair assistance and special assistance when transiting through the airport in Frankfurt.

[2] Ms. Masoun seeks compensation in the amount of CAD 20,000 for pain and suffering, CAD 20,000 for wilful and reckless practice and CAD 2,000 to CAD 2,500 for treatment by medical doctors due to the mental stress she experienced.

[3] In Decision LET-AT-A-14-2023 (Interim Decision), the Agency found that Ms. Masoun is a person with a disability with respect to mobility and that she faced a barrier when Lufthansa employees did not connect her with FRACareServices when another passenger approached them about wheelchair assistance service for Ms. Masoun at the airport in Frankfurt. In this decision, the Agency will address whether Lufthansa can remove the barrier without experiencing undue hardship and, if so, whether remedies should be ordered.

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

  1. finds that the barrier Ms. Masoun faced is undue;
  2. orders Lufthansa to implement corrective measures to address the barrier; and
  3. orders Lufthansa to compensate Ms. Masoun for pain and suffering in the amount of CAD 2,000 and for reckless practice in the amount of CAD 1,000.

Background

[5] Ms. Masoun purchased tickets to travel from New Delhi, India, to Calgary, Alberta, via Frankfurt, Germany, on August 29, 2022. Prior to travel, Ms. Masoun requested wheelchair assistance, and her request was approved by Lufthansa. Furthermore, at the airport in New Delhi and during her flight from New Delhi to Frankfurt, family members called Lufthansa’s call centre to request special assistance for Ms. Masoun due to her mental state. Ms. Masoun states that she did not receive wheelchair assistance or special assistance while transiting through the airport in Frankfurt.

[6] In the Interim Decision, the Agency found that it has authority to order any of the remedies provided for under the Canada Transportation Act (CTA) if it concludes that the barrier is undue because no accessibility regulations made under the CTA are applicable to this incident.

[7] The Agency identified the above-noted barrier and directed Lufthansa to provide submissions on how it proposes to remove the barrier or to demonstrate that it cannot remove the barrier without experiencing undue hardship. The Agency also provided Ms. Masoun with an opportunity to provide submissions on her request for compensation and Lufthansa with an opportunity to respond to the request.

Preliminary matters

Finality of Agency’s findings

[8] Lufthansa argues that it was a FRACareServices agent waiting for Ms. Masoun on the other side of the jet bridge at the airport in Frankfurt, and contests the Agency’s finding that the passenger helping Ms. Masoun spoke to a Lufthansa employee. The Agency’s findings are final and it will not consider Lufthansa’s arguments relating to the matter.

Montreal Convention

[9] Lufthansa raised an objection to the Agency’s jurisdiction on the basis that the rights and obligations for international carriage by air are governed exclusively by the Montreal Convention. Therefore, it argues that the Agency does not have jurisdiction to award compensation for psychological injuries such as pain and suffering not connected to a bodily injury suffered during international carriage by air. Lufthansa also argues that the Agency does not have jurisdiction to award compensation for wilful or reckless practice, as this amounts to punitive, exemplary or any other non-compensatory damages under the Montreal Convention.

[10] The Montreal Convention provides for the liability of carriers when an accident occurs onboard the aircraft or while a passenger is in the course of embarking or disembarking, where the consequence of such an accident is the death or bodily injury of the passenger. As the facts in this case occurred at the airport in Frankfurt after disembarking was completed, the situation falls outside the scope of the Montreal Convention. Accordingly, the Agency dismisses Lufthansa’s objection and will assess Ms. Masoun’s request for compensation for pain and suffering and for compensation for wilful and reckless practice.

The Law

[11] 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.

[12] 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.

[13] In this Decision, the Agency will address Part 2 of this approach.

[14] If the Agency finds that a person with a disability faced an undue barrier or has been adversely affected by a contravention of regulations, it may order the carrier to take appropriate corrective measures, to reimburse the person for expenses incurred and wages lost as a result of the contravention or undue barrier, to compensate the person for their pain and suffering and to compensate the person if the undue barrier or contravention of regulations is the result of a wilful or reckless practice.

Undue hardship and corrective measures

Positions of the parties

[15] Lufthansa provides no arguments in respect of undue hardship. However, it proposes the following corrective measures and implementation timelines:

  1. circulate a bulletin to Lufthansa gate agents located at the airport in Frankfurt, within two weeks from the date of the Agency’s order, specifying that, when a passenger approaches a Lufthansa gate agent regarding a request for wheelchair assistance upon landing at the airport, Lufthansa gate agents ought to explain that FRACareServices is the service provider at the airport that provides wheelchair services, and make all reasonable efforts to attempt to connect that passenger with FRACareServices agents for assistance; and
  2. include the above-noted information in its regular training sessions for all Lufthansa employees located at the airport in Frankfurt within one month from the date of the Agency’s order.

[16] Ms. Masoun did not comment on undue hardship or corrective measures.

Analysis and determination

[17] Lufthansa did not provide any arguments in respect of undue hardship and proposes two corrective measures to address the barrier. Therefore, the Agency finds that Lufthansa did not demonstrate that it cannot remove the barrier without experiencing undue hardship.

[18] In order for the corrective measures and timelines proposed by Lufthansa to remove the barrier, the Agency finds that the bulletin must be circulated to all Lufthansa employees located at the airport in Frankfurt, and not only to gate agents. Any Lufthansa employee should be aware of how to address requests for assistance and know where to refer them.

[19] The Agency orders Lufthansa to implement the two corrective measures within the timelines noted above.

Compensation for pain and suffering

Positions of the parties

Ms. Masoun

[20] Ms. Masoun seeks CAD 20,000 as compensation for her pain and suffering, which she describes as severe mental trauma and emotional and physical pain. She claims that the trauma was so severe that she had trouble sleeping and could not walk for many days due to the physical and mental fatigue. She states that she needed medication for sleep and anxiety which she developed because of the incident. She states that she has been treated for the last seven to eight months for mental trauma and post-traumatic stress disorder (PTSD) and needs long-term treatment, rehabilitation, love and care from her family. She indicates that she is now scared to travel by air, believing that she has no rights as a passenger and that all carriers will treat her as Lufthansa did.

Lufthansa

[21] Lufthansa submits that Ms. Masoun’s medical note indicates that she was already suffering from mental trauma and PTSD prior to the incident and that only one sentence in the note relates to the incident: “If she was subjected to stress during her recent flight, it could well have added into the severity of her delirium condition.”

Analysis and determination

[22] 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. The Agency assesses pain and suffering on a case-by-case basis.

[23] To determine the amount of compensation that it will award for pain and suffering, the Agency must weigh the evidence before it, taking into account considerations such as the extent and duration of the distress experienced by the applicant. The award must be fair and reasonable, but compensation for pain and suffering is difficult to quantify. As the Supreme Court of Canada recognized in Andrews, 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.

[24] The Agency recognizes that many factors appear to have contributed to Ms. Masoun’s overall medical situation. Most importantly, the stress of having to walk long distances, with strangers having to hold her and go through her purse to identify her, seems to have had an important impact on Ms. Masoun. The Agency notes that it took three hours for Ms. Masoun to reach her designated terminal, including an inter-terminal transit. Therefore, the Agency accepts Ms. Masoun’s claim that she suffered mental trauma and emotional and physical pain further to the lack of wheelchair assistance when transiting through the airport in Frankfurt and that this incident left her scared to travel by air. However, the Agency also notes that Ms. Masoun’s medical note indicates that she had underlying PTSD and depression prior to the incident.

[25] Therefore, the Agency finds that the evidence in this case does not demonstrate an impact so extreme as to warrant compensation at or approaching the maximum amount allowed by the CTA. The Agency finds it appropriate to award compensation for pain and suffering to Ms. Masoun in the amount of CAD 2,000.

Compensation for medical treatments

Positions of the parties

Ms. Masoun

[26] Ms. Masoun seeks CAD 2,500 as compensation for medical treatments. She states that she is a visitor in Canada whose medical treatments are not covered by the Canadian medical system and submits receipts for medical expenses amounting to CAD 1,224.87.

[27] Ms. Masoun’s son indicates that he has to accompany Ms. Masoun for her appointments and that he already took 40 to 50 hours off work to do so.

Lufthansa

[28] Lufthansa states that it should not be required to compensate Ms. Masoun for all medical treatments she received while in Canada, particularly when that care is unrelated to the nature of the injuries she alleges to have suffered.

Analysis and determination

[29] Ms. Masoun provides various receipts for medications, blood tests, doctors’ visits, and medical treatments such as ultrasound and fluoroscopy. However, she does not explain how any of these expenses relate to the mental trauma and emotional and physical pain she claims to have sustained because of the undue barrier. Therefore, the evidence on file is insufficient to determine that the nature of Ms. Masoun’s medical expenses are directly related to the undue barrier. Consequently, the Agency will not award compensation in that regard.

[30] The Agency notes that Ms. Masoun’s son indicates having spent time away from work to accompany her to appointments. While the Agency has authority to compensate a person with a disability who faced an undue barrier to their mobility, it does not have the authority to compensate persons that have not been directly affected by such barrier.

Compensation for wilful and reckless practice

Positions of the parties

Ms. Masoun

[31] Ms. Masoun seeks CAD 20,000 as compensation for wilful and reckless practice. She states that Lufthansa willingly, knowingly and blatantly failed to provide wheelchair assistance while she was mentally frazzled. She finds it malicious and reckless that Lufthansa employees, who should be trained for these situations, could not locate her when another passenger could tell with one look that she was confused and mentally upset.

[32] Ms. Masoun submits that the Lufthansa employees’ refusal to provide her with wheelchair assistance and their failure to check their records to see if a passenger was missing from the list of passengers needing wheelchair assistance, when approached by the passenger who was assisting her, proves that the employees acted recklessly. Further, she states that the employees’ inability to locate her, despite her difficulty walking and communicating, shows Lufthansa’s unwillingness and careless behaviour.

Lufthansa

[33] Lufthansa argues that Ms. Masoun has not supported her claim for compensation for wilful or reckless practice because she consistently confuses Lufthansa employees with FRACareServices agents. Therefore, Lufthansa submits that her submissions are unreliable.

Analysis and determination

[34] Unlike awards of compensation for pain and suffering, compensation for wilful or reckless practice is intended to discourage those who deliberately or carelessly disregard their legal obligations. In the context of discrimination cases, Canadian appellate courts have generally found that wilfulness requires that the discriminatory act and the infringement of the person’s rights be intentional, whereas recklessness usually denotes acts that disregard or show indifference for the consequences such that the conduct is done wantonly or heedlessly. In Hughes, the Federal Court clarified that a finding of recklessness does not require proof of intention to discriminate. The focus of this analysis is on the respondent’s conduct and not the effect of the conduct on the applicant. For this reason, the applicant is not required to provide evidence of loss.

[35] In determining whether such compensation is appropriate and the amount of any such compensation, the Agency may take into account considerations such as the nature and gravity of the act and the duration of the discriminatory conduct, including whether it was repeated or sustained.

[36] Lufthansa’s failure to connect Ms. Masoun with FRACareServices when another passenger approached them about wheelchair assistance service does not appear to be an intentional infringement of her rights, nor is there any evidence of bad faith on the part of Lufthansa or any of its agents. The Agency therefore finds that Lufthansa’s conduct was not wilful.

[37] However, Lufthansa’s employees should have taken the necessary steps to connect Ms. Masoun to FRACareServices when approached by the other passenger. In disregarding the request, Lufthansa’s employees acted recklessly. The Agency therefore finds that Lufthansa’s conduct was reckless.

[38] In light of the above, the Agency finds it appropriate to award compensation for reckless practice in the amount of CAD 1,000.

Order

[39] The Agency orders Lufthansa to:

  1. circulate a bulletin to all Lufthansa employees located at the airport in Frankfurt specifying that, when a passenger approaches a Lufthansa gate agent regarding a request for wheelchair assistance upon landing at the airport, Lufthansa gate agents must explain that FRACareServices is the service provider at the airport that provides wheelchair services and make all reasonable efforts to attempt to connect that passenger with FRACareServices agents for assistance;
  2. include the above-noted information in its regular training sessions for all Lufthansa employees located at the airport in Frankfurt; and
  3. compensate Ms. Masoun for pain and suffering in the amount of CAD 2,000 and CAD 1,000 for reckless practice.

[40] Lufthansa is to provide a copy of the bulletin to the Agency’s Director General, Determinations and Compliance Branch, through the Agency’s Secretariat, by no later than August 9, 2023, and a copy of the changes made to its training material by no later than August 25, 2023.

[41] Lufthansa is to pay the amounts of compensation for pain and suffering and reckless practice as soon as possible and no later than  September 7, 2023 and to confirm with the Agency’s Director General, Determinations and Compliance Branch, through the Agency’s Secretariat, that the payment has been made.


Legislation or Tariff referenced Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10 169.5; 172(1); 172(2); 172(3); 172.1(2)
Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention 17; 17(1); 29
Andrews v Grand & Toy Alberta Ltd., [1978] 2 SCR 229 261
Hughes v Canada (Attorney General), 2019 FC 1026 89

Member(s)

France Pégeot
Elizabeth C. Barker
Date modified: