Decision No. 124-AT-A-2002

March 19, 2002

File No. 3570/00-60

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APPLICATION

On September 11, 2000, Margaret Oakman filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

On October 26, 2000, United Air Lines, Inc. (hereinafter United) filed its answer to the application, including a copy of Mrs. Oakman's Passenger Name Record, a letter from United addressed to Mrs. Oakman dated October 10, 2000, and a document entitled Air Travel Tips for Passengers with Disabilities. On November 27, 2000, Mrs. Oakman filed her reply to the carrier's answer.

Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.

PRELIMINARY MATTERS

Although both United's answer and Mrs. Oakman's reply were received after the prescribed deadlines set out in the National Transportation Agency General Rules, SOR/88-23 (hereinafter the General Rules), the Agency, pursuant to section 6 of the General Rules, accepts the submissions as being relevant and necessary to its consideration of this matter.

As Air Canada and Air BC Limited carrying on business as AirBC (hereinafter AirBC) operated some of the flights taken by Mrs. Oakman on her trip, these carriers were initially provided with copies of Mrs. Oakman's application for comment. On October 19, 2000, Air Canada responded on behalf of both itself and AirBC, indicating that Mrs. Oakman's concerns were fully addressed by United. In this respect, the Agency notes that United had the necessary information regarding Mrs. Oakman's disability and her need for services, and that United was responsible for providing the requested services. As such, the Agency will only proceed with the application against United.

ISSUE

The issue to be addressed is whether the failure by United to provide wheelchair assistance to Mrs. Oakman at the Vancouver International Airport (hereinafter the Vancouver airport) constituted an undue obstacle to her mobility and, if so, what corrective measures should be taken.

FACTS

Mrs. Oakman has a severe visual impairment and uses a white cane.

Mrs. Oakman and her husband made arrangements to travel from Victoria, British Columbia, Canada, to Grand Island, Nebraska, United States of America, via Vancouver, British Columbia, Canada and Denver, Colorado, United States of America, on July 27, 2000, returning on July 31, 2000. The flights between Victoria and Vancouver were Air Canada flights operated by AirBC, while United operated the Vancouver to Grand Island flights.

At the time of booking, Mrs. Oakman advised her travel agent of her disability and that she and her husband both required assistance to move between the gates in the airports. As a result, the travel agent requested that two wheelchairs be provided to and from the gates for all flights.

United's computer system generates a Passenger Name Record (hereinafter PNR) which contains information about passengers, including passengers who have specific needs. In this case, Mrs. Oakman's need for assistance was reflected in her PNR by the use of the WCHR code and the following Special Service Request (hereinafter SSR): "PASSENGER LEGALLY BLIND PLEASE ASSIST". The WCHR code, as defined in the Passenger Services Conference Resolutions Manual of the International Air Transportation Association, is used to describe a passenger who can ascend/descend steps and make his/her way to/from the cabin seat, but requires wheelchair assistance for the distance to/from the aircraft.

On July 31, 2000, Mrs. Oakman travelled on United's Flight No. 1429 from Denver to Vancouver. The flight was delayed and it arrived in Vancouver four and one half hours later than scheduled. Upon arrival in Vancouver, Mrs. Oakman did not receive assistance from United's personnel to get to the Air Canada gate to make her connecting flight to Victoria.

Without assistance, Mrs. Oakman made her own way through the Vancouver airport with great difficulty in an effort to reach the Air Canada gate. Furthermore, as a result of the late arrival of the United flight in Vancouver, Mrs. Oakman missed her connecting flight and had to take the last available flight to Victoria. Upon arrival in Victoria, the friend who had agreed to meet Mrs. Oakman was no longer waiting for her at the airport and she therefore had to take a taxi which cost her $35.00. United reimbursed Mrs. Oakman for the cost of the taxi fare.

POSITIONS OF THE PARTIES

Mrs. Oakman submits that at the time of making reservations and purchasing the airline tickets, she was assured that assistance would be available between gates at the airport terminals. However, upon arrival in Vancouver, she discovered that no assistance was available to her. Mrs. Oakman states that, in fact, she was refused assistance by United's personnel to reach the Air Canada gate. Mrs. Oakman asserts that after she was refused assistance, she stumbled about the airport, bumping into other people, for some time before reaching the gate.

Mrs. Oakman maintains that this lack of assistance on the part of an air carrier is not acceptable. She adds that if the carrier is not prepared to offer assistance to persons with disabilities, travellers should be advised at the time of the ticket purchase to enable them to make informed choices regarding their travel plans.

In its submission, United states that its policy for wheelchairs at the Vancouver Airport is as follows:

the passenger is met and transported into Canada Customs & Immigration where she is assisted through the primary immigration screening. From there, the passenger is taken to the baggage carousels and then through Customs screening. After this the passenger is assisted into the IRL where the domestic airline connection desks are located. A passenger connecting to Air Canada would be taken to that carrier to recheck her bags and obtain assistance to her connecting flight in the domestic terminal.

With respect to Mrs. Oakman's claim that she was refused assistance to reach the Air Canada gate at the Vancouver airport, United submits that, as Mrs. Oakman provided neither names nor descriptions, it is unable to validate her report. Its own internal investigation into Mrs. Oakman's claim did not result in anyone recalling the incident in question. United adds that, although it surmises that Mrs. Oakman may have approached someone other than a United employee to provide assistance, it is "concerned by her impression of being refused assistance by United".

United is disturbed by Mrs. Oakman's account of moving unassisted to her connecting flight by stumbling and bumping into people at the airport. The carrier also adds that it hopes that the passenger's husband, Mr. Oakman, was of some help to her in making their way through the airport terminal as it must otherwise have been an extremely disconcerting experience for her.

United provided a copy of its Air Travel Tips for Passengers with Disabilities as a guide on what to expect when travelling with United and a letter dated October 10, 2000 from United's Vancouver station manager addressed to Mrs. Oakman. In that letter, the station manager indicates that he was at a loss to explain why this incident occurred and he apologizes to Mrs. Oakman for not receiving the assistance she requested. He also states that he will use Mrs. Oakman's experience as a learning tool for his staff to prevent a recurrence of similar incidents.

In reply to United's answer, Mrs. Oakman submits that while she does not expect busy airline employees to remember every passenger they speak to in the course of a busy day, she specifically asked agents on two occasions if they were United employees. In addition, she points out that her husband also required wheelchair assistance to move between the gates and, without that assistance, he could be of minimal assistance to her as they were both struggling.

Mrs. Oakman states that while she is not interested in assigning blame or asking for punitive action, she would like to see improved reliable access to services for persons with disabilities.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

An application must be filed by a person with a disability or on behalf of a person with a disability. Mrs. Oakman has a severe visual impairment and uses a white cane and, as such, is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.

Whether the applicant's mobility was restricted or limited by an obstacle

The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federally-regulated transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.

In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.

Whether the obstacle was undue

As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federally-regulated transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federally-regulated transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, so far as practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federally-regulated transportation network to adapt their services, so far as practicable, to the needs of persons with disabilities. There are, however, some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact to adopt services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board a plane in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deplaning assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.

The case at hand

Mrs. Oakman's PNR confirms the fact that, at the time of making her reservations, Mrs. Oakman self-identified as a person with a disability who required specific services to travel, specifically, wheelchair assistance to travel between gates in airport terminals. Furthermore, Mrs. Oakman approached United employees at the Vancouver airport on two occasions to attempt to get the required assistance, to no avail.

As a result of not receiving the required assistance, Mrs. Oakman was forced to make her way through the airport terminal on her own and the Agency accepts Mrs. Oakman's assertion that she stumbled about the terminal, bumping into other people, to reach the Air Canada gate. In light of this, the Agency finds that the failure by United to provide wheelchair assistance caused Mrs. Oakman distress and discomfort and constituted an obstacle to her mobility.

The Agency notes that United's policies and procedures with respect to the carriage of persons with a visual impairment or who use a wheelchair clearly state that: "if assistance is requested by or on behalf of a blind/elderly/developmentally disabled or otherwise disabled customer in making flight connections - United will provide such assistance without charge"; for wheelchair assistance, the appropriate SSR code must be added to the PNR. In the case at hand, Mrs. Oakman's PNR accurately reflected the code SSRWCHR indicating her need for wheelchair assistance. The Agency further notes that United's policies regarding wheelchair assistance at the Vancouver airport for connections with domestic flights require that a passenger with a disability be met and escorted by wheelchair through Customs, to the baggage carousels and then taken to a representative of the domestic carrier for assistance to reach the connecting flight.

Despite the fact that United was unable to ascertain whether Mrs. Oakman did in fact approach United employees for help, it was nonetheless aware of her need for assistance as this information was accurately reflected in her PNR . However, despite this information and despite the carrier's policies and procedures, no wheelchair assistance was made available to her upon arrival of her flight at the Vancouver airport.

The Agency is concerned with cases such as this where measures in place to ensure that the carriers respond to the needs of persons with disabilities, such as a PNR and internal policies and procedures, are not properly followed.

The Agency is of the opinion that, given Mrs. Oakman's disability and her specific requests for wheelchair assistance, it was reasonable for her to expect to receive this assistance upon arrival of her flight at the Vancouver airport. Accordingly, the Agency finds that the failure by United to provide wheelchair assistance to Mrs. Oakman constituted an undue obstacle to her mobility.

Measures taken by United

The Agency notes that the United Vancouver Station Manager indicated that he intends to use Mrs. Oakman's experience as a learning tool for his staff to prevent the recurrence of similar incidents.

CONCLUSION

The Agency, having found that the failure by United to provide wheelchair assistance to Mrs. Oakman constituted an undue obstacle to her mobility, hereby directs United to take the following corrective measures within thirty (30) days from the date of this Decision:

• Provide the Agency with a report reflecting revised procedures to be followed by United's personnel to ensure that services requested by persons with disabilities, including the provision of wheelchair assistance, are provided even in the event of flight delays; and
• Issue an advisory bulletin to its employees at the Vancouver airport outlining the importance of delivering services, as requested, to persons with disabilities in light of the incident experienced by Mrs. Oakman, and provide the Agency with a copy of this bulletin.

Following its review of the required documents, the Agency will determine whether further action is required.