Letter Decision No. 124-AT-C-A-2022

October 13, 2022

Application by Tom McKenna against WestJet regarding barriers to mobility

Case number: 
21-01770

Summary

[1] Tom McKenna filed an application with the Canadian Transportation Agency (Agency) against WestJet concerning its policy that prevents passengers who miss one flight segment of an itinerary from using the remaining portions of the ticket when they are able to present themselves for check-in for the subsequent flight segments.

[2] Mr. McKenna seeks an order from the Agency that:      

  • persons with disabilities, including passengers travelling with them, who cannot travel on one flight segment of their itinerary because of their disability, be able to use the remaining portion(s) of their ticket when they are able to present themselves for check-in for subsequent flight segments;
  • this accommodation applies to domestic and international flights, excluding code-share agreements unless the carrier has control over the code-share or remaining flight segments;
  • persons with disabilities provide medical information indicating the reason for missing the flight segment upon request, but that access to prior medical history or anything not directly related to the reason why the passenger missed the flight segment not be required; and
  • all medical information be kept confidential and not be disclosed to third parties.

[3] In its answer to Decision LET-AT-C-A-14-2022 (Interim Decision) filed on June 13, 2022, WestJet claims that Mr. McKenna sought an order in his “initial complaint” that a carrier reimburse the full cost of the remaining segments of an itinerary, including all taxes, charges, surcharges, etc., if a passenger misses a segment due to a disability. However, this remedy is not on the Agency’s record of these proceedings as part of Mr. McKenna’s application. 

[4] In the Interim Decision, the Agency found that, in some circumstances, persons with a disability may face a barrier to their mobility because WestJet’s Domestic Tariff and International Tariff do not allow them and their support persons, as defined in the Accessible Transportation for Persons with Disabilities Regulations (ATPDR), to preserve the remaining portions of their tickets, regardless of the fare type purchased, when they miss an earlier flight segment because of their disability and are able to present themselves for check-in for subsequent flight segments. The Agency also found, on a preliminary basis, that the barrier is undue, and ordered WestJet to:

  • show cause why it could not include a policy in its Domestic Tariff and International Tariff enabling persons with disabilities and their support persons, regardless of the fare type they have purchased, to preserve the remaining portions of their tickets if they have missed a flight segment because of their disability and are able to present themselves for check-in for subsequent flight segments; or
  • propose other means to remove the undue barrier.

[5] In this decision, the Agency will address whether it should finalize its preliminary finding that the barrier is undue and order corrective measures.

[6] For the reasons set out below, the Agency finalizes its preliminary finding that the barrier is undue because WestJet has not demonstrated that it would suffer undue hardship to remove the barrier. The Agency orders WestJet to implement the corrective measure set out in the Order below.

Preliminary matters

Request to stay and extension request

[7] On April 25, 2022, WestJet filed a Motion for Leave to Appeal the Interim Decision (Motion) with the Federal Court of Appeal (FCA). The FCA denied WestJet leave to appeal on June 3, 2022.

[8] On May 16, 2022, the Agency denied WestJet’s request to stay these proceedings pending the FCA’s decision. Although the Agency indicated that reasons for this decision would follow at a later date, they are unnecessary because the FCA’s decision rendered the issue moot.

[9] On May 16, 2022, the Agency also granted WestJet’s request to extend the time limit to file its answer until June 13, 2022. WestJet filed its answer accordingly, and Mr. McKenna filed a reply on June 16, 2022.

The law

[10] The Agency has authority to decide applications that claim the existence of an undue barrier to the mobility of persons with disabilities related to tariffs, rates, fares and terms and conditions of carriage applicable within the federal transportation network.

[11] As stated in Decision 33-AT-A-2019 (Interpretive Decision), 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.

In this decision, the Agency will address Part 2 of the approach cited above.

Positions of the parties

WestJet

[12] WestJet indicates that, since Mr. McKenna filed his application with the Agency, it changed its no-show policy (Policy) on March 17, 2022, in response to Decision 107-C-A-2021 (Hutt v WestJet).

[13] WestJet explains that its Policy now provides that, where a passenger misses a flight segment on an outbound itinerary, subsequent flight segments on that outbound itinerary are forfeited. However, any “remaining fares” associated with the inbound itinerary are available for credit or refund depending on the fare rules of the ticket purchased. Passengers must contact WestJet within 13 months of the departure date of the missed flight to claim the credit or refund.

[14] The Policy applies to all passengers, not only those with a disability. WestJet indicates that passengers are allowed to use the credit or refund received to rebook their originally scheduled inbound flight, subject to seat and space availability. Passengers also have the flexibility to use the credit or refund towards a future flight on a different day or different itinerary.

[15] WestJet submits that it would be nearly impossible for a passenger who has a multi-segment outbound itinerary to “catch-up” to subsequent segments of the outbound itinerary if the passenger was prevented from taking the initial flight due to a disability. WestJet suggests that there is no evidence that this situation occurs regularly. It therefore submits that forfeiting subsequent flight segments on the same outbound route in the case of a no-show “poses no real risk” to that passenger.

[16] WestJet argues that the Policy provides flexibility to its passengers, directly addresses the alleged harm identified in Mr. McKenna’s “initial application” and strikes an appropriate balance between the carrier’s business interests and the interest of passengers to use the fares they have paid towards a return flight.

[17] In order to clarify the Policy, WestJet proposes further modifications to its Flight Terms and Conditions, to address the inbound portion of an itinerary as follows:

Please note, if you fail to check in or board before the cut-off time or to request a same-day change to your flight before it departs, you will be considered a no-show for your flight. Any fare associated with the original flight and any connecting flight(s) shall be forfeit. If your itinerary included a return flight, any remaining fares shall be available as a credit or refund (based on the original fare rules), provided that you contact WestJet within 21 days of the scheduled departure date of the no-show flight. In any such circumstance, if you contact WestJet at least 24 hours before the scheduled departure time of the first flight on your return leg, you may use the remaining fare credit towards the purchase of a seat on your originally scheduled return flight segments (subject to seat and space availability).

[18] WestJet argues that the Policy fully addresses all of the hypothetical harms identified by Mr. McKenna in his application. It also submits that the application of the Policy to all passengers avoids the need for WestJet to conduct individual assessments of passengers’ disabilities.

[19] WestJet argues that it would be difficult to make disability determinations based on Mr. McKenna’s hypothetical examples because a passenger would have to obtain medical evidence and WestJet would have to analyze that evidence in the time between missing an outbound flight and the scheduled departure time of an inbound flight. WestJet points out that the time between these dates could be brief. WestJet submits that any policy requiring it to assess a passenger’s disability could be extremely complex because WestJet would have to implement different collection and retention policies for the medical information it collects in order to implement the remedy in each jurisdiction in which it operates.

Mr. McKenna

[20] Mr. McKenna argues that WestJet’s proposal does not remove the barrier found by the Agency. He submits that WestJet is attempting to preserve the status quo by making small changes to its Policy that do not make any real, meaningful changes to address the barrier.

Cancellation of flight segments

[21] Mr. McKenna argues that a passenger who is able to make it on time for the connecting segments of an itinerary should be able to use them. For example, a passenger travelling on an itinerary with a short initial flight—such as Victoria to Vancouver—followed by a long connection time may be able to catch their connecting flight even if they are a no-show for the initial segment. He argues that it is possible to get from Victoria to Vancouver—on another flight or by ground transportation—in time for another segment. Mr. McKenna agrees with WestJet that such situations are rare and therefore submits that WestJet would not suffer hardship by permitting such passengers to travel on the subsequent segment.

Credit or refund based on original fare rules

[22] Mr. McKenna argues that the statement in the Policy that no-show passengers would be entitled to a credit or refund for any remaining inbound flight segments, based on the original fare rules,is misleading and does not address the differences between fare rules.

[23] He points out that WestJet’s Tariff does not allow passengers to make changes to a Basic fare. Unless the changes are made within 24 hours of booking, all amounts paid are forfeited. Mr. McKenna submits that, according to WestJet’s Policy, a person with a disability travelling on a Basic fare who is a no-show for a flight would therefore receive no refund or credit for their remaining flight segment(s), thereby perpetuating the undue barrier. He also observes that some of WestJet’s other fares are subject to change or cancellation fees of up to CAD 100 plus taxes.

Requiring passengers to repurchase their seats on inbound flights

[24] Mr. McKenna disagrees with WestJet’s proposal to require no-show passengers to repurchase their seats on their inbound flights subject to seat and space availability. Mr. McKenna submits that, because fares change over time and typically rise closer to the travel date, any credit or refund provided to a no-show passenger for their inbound flights would be unlikely to cover the cost of repurchasing seats on those flights.

[25] He argues that WestJet provided no rationale for cancelling a no-show passenger’s reservation for inbound flights. Given that these seats have already been paid for, there is no evidence that WestJet would suffer any hardship by maintaining the passenger’s reservation on the inbound flights. He submits that, permitting WestJet to sell the same seats a second time would be a windfall for WestJet.

21-day notification rule

[26] Mr. McKenna disagrees with WestJet’s proposal to require no-show passengers to notify WestJet within 21 days of the scheduled departure date of the no-show flight to benefit from its policy. He submits that it would have an adverse impact on persons with disabilities, who may not be able to comply with the 21-day rule because of their disability, if they were hospitalized during that time, for example.

Undue hardship

[27] Mr. McKenna states that WestJet did not provide any evidence to support its argument that it would be extremely complex to implement the policy proposed by the Agency because it would require an individual assessment of persons with disabilities.

[28] Mr. McKenna submits that, as WestJet does not dispute the finding of undue barrier, the Agency should finalize its preliminary finding that the barrier is undue and direct WestJet to allow persons with disabilities and their support persons, regardless of the fare type they have purchased, to preserve the remaining portions of their tickets if they have missed a flight segment because of their disability and are able to present themselves for check-in for subsequent flight segments.

Analysis and determination

[29] The question before the Agency is whether it should finalize its preliminary finding, as set out in the Interim Decision, that the barrier is undue.

[30] As stated in the Interpretive Decision, transportation service providers have a positive obligation to ensure that persons with disabilities have equal access to their services. The respondent is only relieved of the duty to remove the barrier if all options for doing so would cause it undue hardship. In the Interim Decision, the Agency presented one option for removing the barrier—and made a preliminary finding that WestJet had not demonstrated that implementing it would cause it undue hardship—but allowed WestJet the opportunity to present an alternative means for removing the barrier.

[31] WestJet claims that its proposal to amend its Policy responds to a remedy requested in Mr. McKenna’s “initial complaint”. As previously noted, this requested remedy does not form part of the Agency’s record of these formal proceedings, other than in WestJet’s submission on June 13, 2022.

[32] The Agency’s direction to WestJet was to propose alternative means for removing the barrier, defined in the Interim Decision as follows:

… in some circumstances, persons with a disability may face a barrier to their mobility because WestJet’s Domestic Tariff and International Tariff do not allow them and their support persons, as defined in the ATPDR, to preserve the remaining portions of their tickets, regardless of the fare type purchased, when they miss an earlier flight segment because of their disability and are able to present themselves for check-in for subsequent flight segments.

[33] Notably, this barrier does not speak to a lack of refund. WestJet’s proposal to amend its Policy does not remove this barrier because all segments of the itinerary—both outbound and inbound—would still be cancelled for both the person with a disability and any support person, if the person with a disability misses a flight segment because of a disability.

[34] WestJet argues that a person with a disability could still theoretically travel with the refunded amount and would have more flexibility to do so. The Agency finds, however, that WestJet’s proposal to amend its Policy does not address the identified barrier for several reasons.

[35] First, as Mr. McKenna points out, subsequent segments of an outbound itinerary that a person with a disability might otherwise be able to use would be unavailable because the reservation would be cancelled and credit for the flight would be forfeited.

[36] Second, WestJet’s proposal to amend its Policy would still be limited by its Domestic Tariff and International Tariff, which state that changes and cancellations may incur a fee, depending on the fare, and that Basic fares are not eligible for a refund or travel credits unless a passenger changes or cancels their reservation within 24 hours of booking. Thus, persons with disabilities who purchased a Basic fare would receive no refund or credit, while others would incur a fee for flight changes, which should not be the case where accommodations for persons with disabilities are concerned.

[37] Third, WestJet’s proposal to amend its Policy states that, subject to seat and space availability, passengers may use the remaining fare credit towards the purchase of a seat on their originally scheduled inbound flight segments. However, as Mr. McKenna points out, WestJet could resell those seats once they are cancelled, meaning that the seats may not be available to the person with a disability who paid for them but was unable to take a previous flight segment.

[38] Finally, WestJet fails to address the risk that the credit or refund may be insufficient to repurchase the passenger’s seats because fares may change over time.

[39] For the reasons set out above, the Agency finds that WestJet’s proposal to amend its Policy does not remove the barrier identified in the Interim Decision.

Undue barrier

[40] Having found that the alternative means proposed by WestJet would not address the identified barrier, the Agency now considers whether to finalize its preliminary finding that the barrier is undue.

[41] As the Agency stated in the Interim Decision, the actions required to remove barriers to accessibility usually entail some burden for transportation service providers; however, the point of undue hardship is reached only when there are constraints, whether they be economic, operational or safety-related, that make the removal of the barrier impossible, impracticable or unreasonable. Mere statements are not sufficient to establish undue hardship; in accordance with the Supreme Court of Canada decision in Council of Canadians with Disabilities v VIA Rail Canada Inc, 2007 SCC 15 at paragraph 226, concrete evidence must be provided to establish undue hardship.

[42] In the Interim Decision, the Agency found that WestJet had not presented evidence that demonstrated undue hardship. Although it claims that it would be difficult to change a standard feature in Sabre, its third-party software, to prevent subsequent flight segments of an itinerary from being cancelled when a passenger does not take an earlier flight, it does not present any supporting evidence to demonstrate the difficulty. It also does not explain why an itinerary could not be restored through manual intervention in the Sabre system, particularly if the situation at issue is rare. WestJet also cited cost and economic viability concerns, but did not provide any data to back up its claims. When arguing undue hardship based on cost, the Agency would expect to see quantifiable data.

[43] WestJet argues that providing the remedy requested by Mr. McKenna would be difficult because there may only be a brief period of time to complete an individual disability assessment before the subsequent flight; and these assessments can be complex, particularly because collection and retention requirements for medical information vary by jurisdiction.

[44] The Agency finds that these reasons do not demonstrate undue hardship. WestJet is already responsible for determining what information it can collect about a disability based on the jurisdictions it serves and does so frequently to fulfil its obligations under the ATPDR. The Agency has consistently found that a carrier must make a reasonable effort to provide an accommodation requested at the last-minute, a position corroborated by the ATPDR. In addition, the ATPDR more generally sets out that carriers must provide an accommodation where they receive notice at least 48 hours before departure, barring certain exceptions. The Agency therefore finalizes its finding that WestJet has not demonstrated that it cannot remove the barrier without undue hardship. Accordingly, the Agency finds that the barrier is undue.

Order

[45] The Agency directs WestJet to propose for the Agency’s approval clear wording for its Domestic Tariff and its International Tariff that will allow persons with disabilities and their support persons, as defined in the ATPDR, to preserve the remaining portions of their tickets, regardless of the fare type purchased, when they miss an earlier flight segment because of their disability and are able to present themselves for check-in for subsequent flight segments. The wording must encompass subsequent flight segments on both the outbound and inbound portions of itineraries, address when and how a person with a disability should advise WestJet of their inability to travel and whether a support person would also be affected, and identify the medical information that WestJet requires to support a claim that the person with a disability cannot travel, as well as any other information that WestJet considers necessary.

[46] WestJet shall file the proposed wording for its Domestic Tariff and International Tariff and provide a copy to Mr. McKenna no later than 5:00 pm Gatineau local time on January 10, 2023. Mr. McKenna shall have 10 business days following receipt of WestJet’s proposed wording to file comments, if any, with the Agency and to provide a copy to WestJet.


Legislation or Tariff cited Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10 172(1)
Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244 1(1); 32(1); 32(4)
Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 30(1); 41(1)(d); 41(2)(c)
Domestic Tariff General Rules Applicable to the Transportation of Passengers and Baggage Between Points in Canada, CTA(A) WS2 1; 40(C); 40(D); 40(E); 90(D)5
International Passenger Rules and Fares Tariff No. WS1 Containing Local Rules, Fares & Charges on behalf of WestJet applicable to the Transportation of passengers and baggage between points in United States/Canada and points in Area 1/2/3 and between points in the US and points in Canada, CTA No. 518 15(B); 70

Member(s)

Elizabeth C. Barker
Heather Smith
Mary Tobin Oates
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