Decision No. 126-AT-A-2009

March 31, 2009

File No. U3570/06-05

BACKGROUND

[1] In its Decision No. 492-AT-A-2006 (2006 Decision), the Canadian Transportation Agency (Agency) made a determination with respect to an application filed by Lina Di Carlo regarding the difficulties she encountered while travelling with Air Canada between Toronto, Ontario and Victoria, British Columbia on February 8, 2006.

[2] The Agency found that Air Canada's policy and procedures for assessing and confirming whether it can transport the mobility aids of persons with disabilities on its aircraft, as well as Air Canada's inability to guarantee that a wheelchair with swing-away footrests would be made available to Ms. Di Carlo during her connection at the Vancouver International Airport (Vancouver airport), constituted undue obstacles to her mobility.

[3] The Agency ordered the two following corrective measures:

1. Revise Air Canada's existing policy and procedures and related training material for assessing and confirming that a person's mobility aid can be carried on the aircraft of the flight reserved, to clearly and specifically require agents to perform the verification and confirmation at the time of reservation and to inform the passenger immediately. In the case of an aircraft change where the new aircraft cannot accommodate the passenger's mobility aid, ensure that the passenger is informed immediately of the fact and that alternate arrangements are made in a timely manner. Provide the Agency with a copy of these changes and a statement as to how they have been communicated to relevant personnel.
2. Establish procedures to ensure that where passengers request a specific type of airport wheelchair to accommodate a disability, they are provided with the specific type of wheelchair when available at the particular airport, and to clearly and specifically require agents to perform the verification and confirmation at the time the request is made. Provide the Agency with a copy of these procedures, and a statement as to how they have been communicated to relevant personnel.

[4] The Agency found, in Decision No. LET-AT-A-39-2007, that Air Canada met the requirements of the first corrective measure. However, the second corrective measure remained outstanding as Air Canada advised that it was unable to meet the requirements of that corrective measure.

ISSUE

[5] Has there been a change in facts or circumstances since the issuance of the 2006 Decision which would warrant the Agency varying the second corrective measure, as set above, which required that Air Canada establish procedures regarding requests for and the providing of its specific types of airport wheelchairs?

The use of wheelchairs with flip-up footrests

[6] Ms. Di Carlo provided a detailed explanation as to why she requires a wheelchair with swing-away footrests in order to be able to access airport washroom facilities during connecting flights.

[7] Air Canada explains that, while a swing-away footrest allows a person to position the wheelchair three inches from the toilet to facilitate the transfer from the wheelchair to the toilet, Air Canada's other airport wheelchairs, which have flip-up footrests, can be positioned approximately six to eight inches from the toilet, taking into consideration the position of the person's legs. Air Canada submits that this is a reasonable alternative and, although it understands that it is not the preferred and more comfortable type of wheelchair, it argues that "this is not the test". Rather, Air Canada contends that the test is whether the alternative provided is reasonable. Air Canada submits that its wheelchairs, which have flip-up footrests, provide a reasonable alternative.

[8] Ms. Di Carlo states that it is not a matter of comfort to have a wheelchair with swing-away footrests and asserts that Air Canada is trivializing her request by not acknowledging the serious health repercussions she might suffer if she is unable to use airport washroom facilities while travelling with Air Canada.

Operational concerns

[9] Air Canada has raised the following operational concerns regarding its ability to confirm a specific type of wheelchair through its current reservation system:

• considerable staffing at airports would be required to ensure inventory control of the wheelchairs, delivery to the correct person, and follow-up with individuals who are using the wheelchairs;
• searching of airport facilities for the specific type of wheelchairs that may be inadvertently taken, as they are usually left in areas where employees and passengers can help themselves to generic types of wheelchairs;
• impossibility to allow customers to stay in a specific type of wheelchair if another reservation was made for that same specific type;
• non-availability due to the specific type of wheelchair being out for repair;
• potential delay in wheelchair service to other passengers when confirming a specific wheelchair for one passenger;
• at certain airports, non-ownership of the wheelchairs and use of a wheelchair pool with other carriers; and
• restriction on Air Canada's ability to outsource wheelchair inventory service and control due to existing union agreements.

Other alternative

[10] Air Canada submits that it is considering a policy change to reunite passengers with their own powered wheelchairs during connections when there is sufficient time. Air Canada advises that it is assessing what the minimum connection time would be on a general basis, taking into consideration potential international connections requiring "timely formalities". Air Canada states that for the time being, this solution does not appear feasible for connections of less than four hours and there are risks of misconnections for the passenger or their mobility aid in case of delays.

[11] Ms. Di Carlo submits that reuniting passengers with their personal wheelchair would be the optimum solution. She adds that the issue to be resolved only involves journeys with connecting flights with an overall time span of more than five hours from the point of initial boarding to the disembarkment at final destination.

The unique nature of Ms. Di Carlo's situation and complaint

[12] Air Canada submits that Ms. Di Carlo's situation and complaint are unique. Air Canada states that, to the best of its assessment, the non-availability of a specific wheelchair type at an airport has not been raised in any other complaint. As such, Air Canada submits that an individual corrective measure is warranted for a single incident. In this case, Air Canada suggests that the corrective measure should be the refund of the rental charge paid by Ms. Di Carlo for the wheelchair with swing-away footrests that she rented for use at the Vancouver airport.

[13] Ms. Di Carlo acknowledges that the number of people with disabilities who are in her situation is extremely limited. She explains that there is a small minority like herself who fall between two groups, i.e., those persons with quadriplegia who use urine collective devices and those who are mobile enough to adapt easily to any type of wheelchair. With respect to Air Canada's refund suggestion, Ms. Di Carlo indicates that there is no need for reimbursement as the company that rented her a wheelchair did not charge for it.

ANALYSIS AND FINDINGS

[14] Pursuant to section 32 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), the Agency may review, rescind, or vary any decision if new facts or circumstances have arisen since the issuance of the decision.

[15] The Agency agrees with Ms. Di Carlo that access to a specific type of wheelchair provided by Air Canada is not a matter of comfort. Rather, such accessibility is necessary to accommodate individuals who require specific wheelchairs for using washroom facilities during connections. Accordingly, Air Canada's supply of generic wheelchairs that do not meet Ms. Di Carlo's specific requirements does not provide reasonable accommodation.

[16] The Agency notes the operational concerns raised by Air Canada of setting up a system that would ensure specific types of wheelchairs, when required, are available from Air Canada's inventory or at its disposal through a sharing arrangement. More importantly in this case, the Agency accepts Air Canada's assertion that Ms. Di Carlo's situation and complaint are unique.

[17] The Agency is satisfied that there has been a change in the facts or circumstances pertaining to the 2006 Decision since it was issued, namely that the remedy required to be made in this case relates to a unique situation. This change is sufficient to warrant the variance of the corrective measure in question.

[18] In light of the above, the Agency finds that an individual corrective measure should address Ms. Di Carlo's situation. Pursuant to section 32 of the CTA, the Agency varies Decision No. 492-AT-A-2006 by amending the corrective measure with respect to Air Canada's specific types of airport wheelchairs by replacing it with the following corrective measure.

[19] At the time of future flight bookings and upon request from Ms. Di Carlo for a specific type of wheelchair that would meet her needs and would be at Air Canada's disposal, either from its own inventory or through a sharing arrangement, Air Canada is required to explore direct flight options with Ms. Di Carlo. If no direct flight is available or a direct flight is not satisfactory to Ms. Di Carlo, Air Canada is to then explore with Ms. Di Carlo flights involving connections which have a total duration of no more than five hours from initial boarding to final disembarkment. If that option is not available, Air Canada must provide Ms. Di Carlo, at the time of reservation, with a guarantee that her needs will be met in one of the following ways:

1. the specific type of wheelchair Ms. Di Carlo requires will be provided to her during connections, from Air Canada's inventory or at its disposal through a sharing arrangement;
2. where connection times permit, Ms. Di Carlo will be reunited with her own wheelchair; or
3. when neither of the above can be met, Air Canada shall reimburse Ms. Di Carlo the charges incurred to rent the specific type of wheelchair she requires or arrange for the rental and provision to Ms. Di Carlo of such wheelchair.

Members

• Geoffrey C. Hare
• John Scott