Decision No. 127-AT-A-2002

Follow-up - Decision No. 665-AT-A-2006

March 20, 2002

File No. U 3570/00-65

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APPLICATION

On October 3, 2000, Melvyn Martin, on behalf of himself, Corinne Mandseth, Linda MacMullen and Adina Monson (hereinafter the applicants), filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. Included with the application were letters from each of the applicants as well as a statement prepared by Mr. Martin, a letter from the travel agent who made the applicants' reservations, and copies of various documentation supporting the application, such as the completed Claim and Authorization Form for the damaged mobility aid, receipts documenting the lost baggage claim, and the applicants' flight coupons, flight itineraries, boarding passes, and baggage claim checks. Agency staff sought clarification regarding the application by telephone from both Mr. Martin and Ms. Mandseth, and the information obtained was conveyed to Air Canada in a letter dated November 20, 2000.

Air Canada requested and, by Agency Decision No. LET-AT-A-409-2000 dated December 27, 2000, was granted an extension until January 19, 2001 to file its answer. Air Canada's answer was received on January 19, 2001, and included a copy of its Passenger Name Records (hereinafter PNRs) for the applicants as well as the carrier's policies on wheelchair assistance, transportation of mobility aids and damage caused to mobility aids.

The applicants requested and, by Agency Decision No. LET-AT-A-41-2001 dated January 29, 2001, were granted an extension until February 12, 2001 to file their reply to Air Canada's answer. The applicants' reply was received by the Agency on February 12, 2001 and included letters from two of the applicants and a letter from the applicants' travel agent responding to Air Canada's answer.

By Decision No. LET-AT-A-104-2001 dated March 5, 2001, the Agency gave Air Canada an opportunity to comment on the letter from the travel agent. By letter dated March 8, 2001, Air Canada stated that it had no additional comments regarding the application.

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 MATTER

While the application also sets out problems which one of the applicants experienced with lost baggage, the Agency notes that the lost baggage was eventually returned to Mr. Martin. As such, the Agency does not intend to deal with this aspect of the application.

Furthermore, while Canadian Airlines International Ltd. carrying on business under the firm name and style of either Canadian Airlines International or Canadi*n and Air BC Limited carrying on business as AirBC were initially provided with copies of the application for comment, Air Canada's answer, filed on January 19, 2001, addresses all aspects of the application that the Agency is determining and, as such, the Agency will proceed with the application against Air Canada.

ISSUE

The issue to be addressed is whether the following constituted undue obstacles to the applicants' mobility and, if so, what corrective measures should be taken:

1. the applicants' seating assignment;
2. the level of wheelchair assistance provided to the applicants at the Toronto and Vancouver airports;
3. the level of service received by the applicants in retrieving their baggage at the Toronto airport; and,
4. the damage caused to Corinne Mandseth's mobility aid in transit and the manner in which the damage claim was handled by Air Canada.

FACTS

The applicants all have Reflex Sympathetic Dystrophy Syndrome, which causes pain and affects their ability to walk for long periods. As a result, they all require wheelchair assistance at airport terminals. In addition, Corinne Mandseth has a rebuilt spine and relies on a walker to assist in her mobility.

In April 2000, the applicants made reservations, through the Above and Beyond travel agency of Courtney, British Columbia, to travel with Air Canada from Comox to Toronto via Vancouver on July 25, 2000, returning on July 30, 2000. At the time the reservations were made, the applicants identified themselves as persons with disabilities and requested that wheelchair assistance be provided to them at the airports in Vancouver and in Toronto.

This need for assistance was reflected in the applicants' PNRs, wherein the applicants were each assigned the code WCHR. This 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. This is consistent with Air Canada's policy.

On July 25, 2000, the applicants travelled from Comox to Vancouver where wheelchair assistance was provided at the Vancouver airport as requested to get to their connecting flight, Flight No. AC 3982, to Toronto. The applicants were not seated together on this flight.

On July 30, 2000, the applicants' flight from Toronto to Vancouver, Flight No. AC 101, was delayed in departing by approximately one hour. Again, the applicants were not seated together on the flight. Upon arrival in Vancouver, wheelchair assistance was not available for deplaning and the applicants were asked to wait in the aircraft until wheelchairs could be obtained. It took some time to obtain wheelchairs for the group.

Due to the delay in being provided with wheelchair assistance, the applicants missed their flight to Comox. The applicants took the next flight to Campbell River, British Columbia, a community which is 45 minutes north of Comox by vehicle.

The applicants' baggage was routed to Comox, but was late in arriving. The left handle and brake of Ms. Mandseth's walker were broken off. The other applicants and, later, Ms. Mandseth, tried to file a claim for the damage at the Comox airport, but they were unable to do so as the staff at the airport did not have the appropriate forms. Ms. Mandseth was advised to call Montréal to file the claim.

Ms. Mandseth arranged to take her walker for repair on July 31, 2000 and it was returned to her on August 4, 2000 with the cost of repair borne by the carrier.

Air Canada's policy provides, as part of the services that are extended to persons with disabilities, for the provision of assistance to persons with disabilities in retrieving checked baggage. Air Canada's customer service agents are instructed to extend or arrange for assistance with the baggage of persons with disabilities.

Furthermore, Air Canada's policy regarding damage caused to mobility aids states that airport personnel are to make arrangements with local mobility aid rental agencies to provide suitable replacements, at Air Canada's expense, for lost or damaged mobility aids. The policy also provides that Air Canada must advise the passenger of this arrangement within one hour of being notified of the problem.

POSITIONS OF THE PARTIES

The applicants indicate that they were travelling to attend the Canadian Reflex Sympathetic Dystrophy convention in Toronto and they chose to travel with Air Canada to take advantage of a convention discount provided by the carrier. The applicants assert that, at the time of booking their trip, they requested to be seated together in the aircraft so that they could provide mutual support and assistance to each other. They also requested wheelchair assistance for deplaning, including baggage assistance at both the Vancouver and the Toronto airports.

The travel agent supports the applicants' claim that they pre-requested these services. The travel agent indicates that she went to great lengths to ensure that her clients' needs were met and she was extremely disappointed with the service they received from Air Canada.

The travel agent states that she gave the carrier the appropriate information, and that she did not only rely on the PNRs to alert the carrier to her clients' needs. She asserts that on two occasions, April 26 and May 30, 2000, she spoke to two separate and identifiable Air Canada reservations agents and specifically confirmed the applicants' service requests. She also indicates that she spoke to Air Canada reservations agents on several other occasions to confirm the requests, at various times when the applicants came to her office to discuss their travel arrangements. Finally, the travel agent states that she advised the applicants to call the carrier 48 to 72 hours in advance of travel and to confirm the requested services with the check-in agent.

The applicants state that on July 25, 2000, they were not seated together on the flight from Vancouver to Toronto and were not provided with wheelchair assistance immediately upon arrival at the Toronto airport. They indicate that they had to wait for a long time to receive this assistance. The applicants state that carrier's personnel offered to carry two persons in an electric cart that already had children in it and then return for the others in the party, but the applicants refused this offer as they were not comfortable being separated in an unfamiliar airport. The applicants add that an electric cart finally arrived to take them all to the baggage retrieval area; however, they claim that the driver of the cart refused to provide them with assistance in retrieving their baggage indicating that it was not his job and provided them with only minimal assistance in showing them where to locate their baggage and where to catch the hotel shuttle bus. The applicants indicate that they had difficulty retrieving the baggage themselves and one of the applicants states that two of the carrier's employees that they came in contact with at the Toronto airport were unpleasant to them.

The applicants state that both Air Canada's delay in providing wheelchair assistance and its failure to provide assistance in retrieving their luggage created unnecessary stress for each of them which, in some cases, aggravated their medical conditions.

One of the applicants explains that on the return trip on July 30, 2000, they were not permitted to take their carry-on baggage with them into the aircraft, even after she advised carrier personnel that it was important to them and contained medication. She indicates that Air Canada stated that this was "due to lack of support staff". The applicants checked their baggage through to their ultimate destination, Comox. The applicants state that they were not seated together on this flight, although one applicant acknowledges that, with the exception of Ms. Mandseth who was seated apart from them, they were seated close together.

The applicants submit that they had limited time to reach their connecting flight to Comox due to their late arrival in Vancouver. Despite this, the applicants advise that they waited in the aircraft for approximately 20 to 30 minutes for wheelchairs to be located and assistance to be provided.

The applicants add that by the time they received this assistance, they had missed their connecting flight. They state that because the carrier could not guarantee them seats on the next flight to Comox, they agreed to travel on the next flight to Campbell River. They made arrangements for their pre-arranged ground transportation to drive from Comox to Campbell River to pick them up at the airport. Upon arrival in Campbell River, Ms. Mandseth was driven directly home while the other applicants went to the Comox airport to wait for their baggage, which finally arrived on the 8:30 p.m. flight.

As per the applicants, they noted that Ms. Mandseth's walker had been broken in transit and they attempted to file a claim with the carrier at the Comox airport, but they maintain that they were unable to obtain information on how to do so. The broken walker was returned to Ms. Mandseth later that evening and she states that Air Canada made no offer for a temporary replacement to her. Ms. Mandseth asserts that, when she telephoned the Comox airport later that evening to try to file a damage claim, she, too, was unable to obtain information on how to do so and was told that there were no forms available. She states that she was given a telephone number in Montréal by the carrier's personnel to call to make the claim and that she would require a claim number from Montréal before she could take her walker to be repaired. She indicates that, while she did not have a claim number prior to having the walker repaired, the carrier did pay for the repair.

Ms. Mandseth states that she should not have been left without the use of her walker for five days. One of the other applicants submits that, as a result of the stress and anxiety associated with the return trip from Toronto to Comox, she had to go to the hospital for treatment. The applicants submit that they were treated as "second class citizens" by not being given the wheelchair assistance and other assistance that had been requested ahead of time.

Air Canada states that the applicants' need for wheelchair assistance was correctly reflected in the PNRs by their travel agent and that its personnel in both Toronto and Vancouver were alerted, ahead of time, of the applicants' need for wheelchair assistance.

Air Canada indicates that, in Toronto, the children on the cart referred to by the applicants were unaccompanied minors requiring the constant attention of a member of its personnel. The fact that the applicants declined assistance for part of the group may have, in Air Canada's opinion, affected the ability of the carrier to provide assistance as promptly as expected.

Regarding the flight from Toronto to Vancouver, Air Canada notes that, as a result of the delay in the arrival of the flight, the agent assigned to provide assistance to the applicants in Vancouver was moved to another position. Air Canada states that, regretfully, no other agent was assigned to meet the Toronto flight due to miscommunication.

Air Canada notes that, on arrival in Vancouver, the applicants were informed of the delay in providing wheelchair assistance and that they were asked to make themselves comfortable in Business Class seats in the aircraft. Air Canada asserts that crew members were with the applicants at all times. Wheelchairs were obtained and the applicants were deplaned with assistance.

Air Canada advises that the situation has been reviewed with its Vancouver staff members, who were reminded of the procedures and coached to ensure that there is adequate staff receiving flights at all times.

Regarding the problems encountered by Corinne Mandseth in trying to file a damaged baggage claim at the Comox airport, Air Canada states that it is reviewing its procedures on the mishandling of mobility devices with the agents in Comox.

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. The applicants have Reflex Sympathetic Dystrophy Syndrome, a medical condition which affects their ability to walk, and, as such, are persons with disabilities 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 applicants' 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.

The present case

1. Seating assignment

According to the applicants, they pre-requested that they be seated together in the aircraft. The travel agent also acknowledged that the applicants made this request and that she conveyed the request to the carrier on many occasions, including two specific occasions when she spoke to Air Canada reservations agents about her clients' needs. However, despite this, the carrier has no record of this request in the applicants' PNRs and the applicants were not all seated together on the two flights between Vancouver and Toronto. The applicants advised that they wanted to sit together to provide mutual assistance and support to each other throughout the flight; however, there was no indication from the applicants that they required to sit together to meet specific needs.

The Agency accepts the evidence of the applicants and the travel agent that this request was made to the carrier. The Agency is concerned with the failure by Air Canada to both record the request and provide the appropriate seating on the two flights. However, in view of the lack of evidence from the applicants about their needs for this seating assignment, the Agency is unable to conclude that it constituted an obstacle to their mobility.

2. Level of wheelchair assistance

Based on the evidence presented by the parties, the applicants did receive assistance in moving through the Toronto and Vancouver airports, although there were delays in the provision of such assistance on both occasions and, in the case of Toronto, the assistance was provided by electric cart and not by wheelchair.

In Toronto, on July 25, 2000, the applicants objected to the delay in getting assistance to move from the deplaning gate to the baggage retrieval area. The applicants declined an offer of assistance for two of the group to travel on an electric cart that already had children in it, with the others to be assisted when the cart returned.

Air Canada maintained that the applicants' decision to not travel to the baggage retrieval area in two groups had an impact on the time needed to provide assistance to the party as the applicants then had to wait until another cart with sufficient empty seats could be found for their use. However, the Agency notes that the requested wheelchair assistance was not provided and understands the wish of the applicants to remain together in the Toronto airport. The Agency acknowledges that this delay created a very stressful situation for the applicants which was then exacerbated by the failure by Air Canada's personnel to provide them with assistance in retrieving their baggage.

On July 30, 2000, the late arrival of the flight from Toronto resulted in wheelchair assistance not being immediately available to the applicants and the delay in providing this assistance had more serious consequences on that day. The applicants knew that their flight had arrived late in Vancouver and that, therefore, the time available to make their connecting flight to Comox was reduced. The applicants were understandably anxious during the wait, but by the time that assistance was provided, they discovered that the flight to Comox had departed without them. When the applicants could not be guaranteed seats on the next flight to Comox, they agreed to take a flight to Campbell River and they had to change their arrangements with their ground transportation service provider.

The Agency accepts the comments of the applicants that they were subjected to unnecessary frustration, anxiety and stress by the delay in receiving the needed assistance in both Toronto and Vancouver airports as well as by the fact that they missed their connecting flight and had to make alternate arrangements to get back to Comox on July 30, 2000. As such, the Agency finds that the delay in providing wheelchair assistance in Toronto and Vancouver airports constituted an obstacle to the applicants' mobility.

3. Level of service received by the applicants in retrieving their baggage

As was the case with wheelchair assistance, a request was made in advance of travel that the applicants be provided with assistance to retrieve their baggage at the Toronto airport. Although the applicants received verbal confirmation from the carrier's personnel in Toronto that once they were taken by electric cart to the baggage retrieval area they would receive this assistance, the driver of the electric cart indicated that it was not his job to assist with baggage retrieval and the applicants were forced to retrieve their own baggage.

The Agency accepts the evidence of the applicants that their retrieval of their own baggage was very difficult and created unnecessary stress for them and, as such, the Agency finds that the failure by Air Canada to provide the required baggage assistance to the applicants in Toronto on July 25, 2000, constituted an obstacle to their mobility.

4. Damage to Corinne Mandseth's walker

Ms. Mandseth's walker was returned to her in Comox with the left handle and brake broken off. Furthermore, although the walker was subsequently repaired at the carrier's expense, Ms. Mandseth had to arrange for the repair herself and she was without her mobility aid for a five-day period.

The Agency is of the view that mobility aids are critical to the mobility of persons with disabilities who rely on them and, as such, must be treated as priority baggage by carrier personnel. Having said this, the Agency recognizes that mobility aids are sometimes damaged in transit while entrusted to the care of a carrier and, when this occurs, the Agency is of the opinion that repairs must be made in a manner that results in the least inconvenience and cost to the persons with disabilities who rely on them. To this end, the Agency promulgated regulations, Part VII - Terms and Conditions of Carriage of Persons by Air - of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR), that, among other things, require carriers to arrange and pay for the repair of mobility aids that are damaged in transit and to provide temporary replacement aids to persons while their own aids are being repaired.

In this case, although the carrier ultimately paid for the repair of Ms. Mandseth's walker, it did not offer to make arrangements for the repair or to provide her with a temporary replacement aid while her own aid was being repaired. The Agency recognizes that Ms. Mandseth's walker is essential for her mobility and is of the opinion that it is unacceptable that she be without an independent means of mobility for a five-day period. Furthermore, the manner in which her damage claim was handled was inappropriate and resulted in considerable inconvenience to her. As such, the Agency finds that both the damage caused to Ms. Mandseth's walker while being transported by Air Canada and the manner in which the damage claim was handled by Air Canada's personnel constituted obstacles to her mobility.

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 present case

1. Seating Assignment

As the Agency was unable to conclude that the seating assignment of the applicants constituted an obstacle to their mobility, there is no need to determine whether it was undue.

2. Level of wheelchair assistance

Having found that the delay in the provision of wheelchair assistance to the applicants in the Toronto and Vancouver airports constituted an obstacle to the applicants' mobility, the Agency must determine whether that obstacle was undue.

At the Toronto airport, the situation that occurred on that day illustrates that the responsibilities that Air Canada has to many passengers, including other persons with disabilities and unaccompanied minors, will create competing priorities for the carrier. While carrier personnel were clearly faced with competing priorities on July 25, 2000, this will be true of most days at a busy terminal and carrier personnel must have means of reasonably meeting the needs of all persons with disabilities where the carrier is aware in advance of the nature of those needs and the accommodation required.

The Agency also notes that the applicants' decision to remain together as a group prevented Air Canada from providing more prompt assistance to part of the group with assistance to be provided to the rest of the group later. However, this does not relieve Air Canada from its responsibility to provide prompt assistance to persons with disabilities, especially when such assistance has been requested in advance.

Air Canada's explanation for the delay in the provision of wheelchair assistance at the Vancouver airport, was that the agent assigned to the flight to provide assistance to the applicants was moved to another position because of the late arrival of the flight and that no other agent was assigned to the flight as a result of miscommunication.

The fact that wheelchair assistance was not provided promptly to the applicants reflects a breakdown of Air Canada's established procedures for providing assistance to passengers with mobility impairments. The Agency is concerned with cases such as this where procedures that are in place to ensure that the carrier responds to the needs of persons with disabilities, such as a PNR and a carrier's internal policies, are not properly utilized.

On both occasions, Air Canada was well aware of the applicants' need for wheelchair assistance, through the PNRs, the various confirmations prior to the flight and, in the case of the July 30^th flight, through requests made by the applicants to flight attendants on the flight to Vancouver.

While the delay in providing wheelchair assistance in both instances appears to be the result of difficulties for the carrier in meeting competing priorities, the Agency is of the view that the carrier had advance notice of the applicants' need for wheelchair assistance and should have been able to provide such service in a timely fashion. It is foreseeable that when advance requests for required services by passengers with disabilities are not met in a timely fashion, it creates stress and anxiety for those passengers which may disincline them from travel in the future.

Based on the foregoing, the Agency finds that the delay in providing wheelchair assistance to the applicants at both the Toronto airport on July 25, 2000 and the Vancouver airport on July 30, 2000 constituted an undue obstacle to the applicants' mobility.

3. Level of service received by the applicants in retrieving their baggage

Air Canada's policy provides that all Customer Service agents are to extend or arrange for baggage assistance for persons with disabilities.

Although the Agency notes that wheelchair assistance was not made available to the applicants and that they were taken to the baggage retrieval area in an electric cart, the fact remains that, contrary to Air Canada's policy, the applicants were not provided with assistance in retrieving their baggage at the Toronto airport on July 25, 2000. The Agency is of the view that Air Canada should ensure that its personnel understand that, even in situations where there is a change in the method of transporting persons with disabilities, this does not mean that all expected further assistance is terminated.

The Agency is of the view that baggage assistance is an essential feature of an accessible transportation network and that carrier personnel must be prepared to provide such assistance to all persons with disabilities who request it, even during peak times.

In the absence of a compelling reason why this assistance was not provided in this case, the Agency is of the opinion that the failure by Air Canada's personnel to provide assistance to the applicants to retrieve their baggage constituted an undue obstacle to their mobility.

4. Damage caused to Corinne Mandseth's walker

Section 155 of the ATR, which is applicable to Air Canada in this circumstance, reads, in part, as follows:

1. Subject to subsections (2) and (3), where an air carrier accepts a person's aid referred to in paragraph 148(1)(a), (b) or (c) for carriage and the aid is damaged during carriage or is not available to the person upon the person's arrival at the person's destination, the air carrier shall, without charge, immediately provide the person with a suitable temporary replacement at the person's destination.
2. Where an air carrier accepts a person's aid referred to in paragraph 148(1)(a), (b) or (c) for carriage and the aid is damaged during carriage and can be repaired promptly and adequately, the carrier shall, in addition to complying with subsection (1), forthwith arrange for the prompt and adequate repair of the aid at the air carrier's expense and shall return it to the person at the air carrier's expense as soon as possible.

Air Canada's policy reflects this regulatory requirement and further requires that a person's mobility aid travel on the same flight as the person.

Ms. Mandseth's walker was not transported on her flight and it arrived late at the Comox airport on July 30, 2000. It was found to be damaged upon arrival, but neither the travelling party nor Ms. Mandseth were able to file a damaged baggage claim at the Comox airport as they were advised that the appropriate forms were not available. Ms. Mandseth was also advised that she required a claim number from Montréal to be able to have her mobility aid repaired. Not only was Ms. Mandseth not told about Air Canada's temporary replacement policy, but Air Canada also did not assume responsibility to arrange for the repair of the walker.

The provisions in the ATR as well as Air Canada's policy regarding damage caused to mobility aids of passengers clearly indicate that a passenger is to be provided with a replacement mobility aid immediately after the air carrier has been informed that a mobility aid has been damaged. The failure by Air Canada's personnel to act in accordance with applicable regulatory requirements and Air Canada's established policy resulted in a loss of Ms. Mandseth's independent means of mobility for a five-day period, which was an obvious and serious inconvenience for her.

Furthermore, both the ATR and Air Canada's policy require the carrier to assume responsibility to arrange for the repair of mobility aids. In this case, Ms. Mandseth had to arrange for the repair of her walker, which, again, was an obvious inconvenience for her.

Based on the foregoing, the Agency finds that both the damage caused to Ms. Mandseth's walker and the manner in which Air Canada handled the damage claim were undue obstacles to her mobility.

Furthermore, the failure by Air Canada to immediately provide Ms. Mandseth with a suitable temporary replacement walker while her damaged walker was being repaired represents a failure by Air Canada to comply with subsection 155(1) of the ATR. In addition, the failure by Air Canada to arrange for the repair of the damaged walker is a contravention of subsection 155(2) of the ATR.

Air Canada's attention is drawn to Part VI of the CTA which authorizes the Agency to establish regulations in respect of an administrative monetary penalties (hereinafter AMP) program. The Canadian Transportation Agency Designated Provisions Regulations, SOR/99-244 (hereinafter the DPR) have been promulgated and they set out the provisions of the CTA and associated regulations which are designated provisions for the purposes of the application of the AMP program.

A contravention of any provision of subsections 155(1) and (2) of the ATR may be proceeded with as a violation under the AMP program because they are designated provisions listed in the DPR. A first violation would normally be subject to a warning under the AMP program. Subsequent violations of the same designated provisions within a six year period would normally be subject to monetary penalties.

CONCLUSION

With respect to seating assignment, the Agency was unable to conclude that it constituted an obstacle to the applicants' mobility.

The Agency concludes that the delay in providing wheelchair assistance to the applicants at the Toronto airport on July 25, 2000 and at the Vancouver airport on July 30, 2000 and the failure by Air Canada's personnel to provide or arrange for baggage assistance for the applicants on July 25, 2000 constituted undue obstacles to the applicants' mobility.

The Agency concludes that both the damage caused to Corinne Mandseth's walker and Air Canada's handling of the damage claim were undue obstacles to her mobility.

The Agency also concludes that Air Canada contravened subsections 155(1) and (2) of the ATR in that its personnel in Comox did not provide Corinne Mandseth with a suitable temporary replacement walker when she reported that her walker was damaged, and it did not offer to arrange for the repair of the walker.

Based on the above findings, the Agency hereby directs Air Canada to carry out the following measures within 30 days from the date of this Decision:

1. Submit a report on the corrective measures taken by Air Canada to ensure that its employees in Toronto and Vancouver are aware of the situation described herein to avoid the recurrence of such incidents.
2. Submit the training records of Air Canada's employees in Toronto and Vancouver who interacted with the applicants on July 25 and 30, 2000. Include records of refresher courses taken since that time.
3. Submit a report on the measures taken to ensure that employees at the Comox airport are made aware of their responsibilities to passengers whose mobility aids were damaged while being transported by Air Canada as well as measures taken to ensure that passengers are able to file claims for damaged mobility aids at the airport.
4. Submit the training records of the employees in Comox who interacted with the applicants on July 30, 2000. Include records of refresher courses taken since that time.

Following its review of the required information, the Agency will determine whether further action is required in this matter.