Decision No. 136-AT-A-2005

March 11, 2005

March 11, 2005

IN THE MATTER OF Decision No. 706-AT-A-2003 dated December 22, 2003 - Hugh Brazell vs. Skyservice Airlines Inc. carrying on business as Skyservice.

File No. U3570/03-4


BACKGROUND

[1] In its Decision No. 706-AT-A-2003 dated December 22, 2003 (hereinafter the Decision), the Canadian Transportation Agency (hereinafter the Agency) made a determination with respect to an application filed by Cheryl Brazell on behalf of her husband, Hugh Brazell, concerning the seating assignment and level of service provided by Skyservice Airlines Inc. carrying on business as Skyservice (hereinafter Skyservice) in the course of his round trip between Calgary, Alberta, Canada and Holguin, Cuba, departing on December 21, 2002 and returning on January 4, 2003.

[2] The Agency determined that the seating assignment and the level of service that Skyservice provided to Mr. Brazell on his round trip between Calgary and Holguin constituted undue obstacles to his mobility. Pursuant to the Decision, the Agency directed Skyservice to take four corrective measures within 30 days from the date of the Decision. Further, the Agency specified in the Decision that following its review of the required material, the Agency will determine whether further action is required in this matter.

[3] On January 19, 2004, Skyservice requested an extension until February 10, 2004 to comply with the requirements set out in the Decision. In its Decision No. LET-AT-A-13-2003 dated January 22, 2004, the Agency granted the requested extension. On February 10, 2004, Skyservice filed its response to the Decision, including its training programs. Following Skyservice's response and subsequent Agency staff requests to clarify certain matters, further submissions were received from Skyservice on March 8, 12 and 17, 2004, June 21, 2004 and July 6, 2004.

[4] On July 15, 2004, Skyservice advised that it intended to invite a person with a disability to provide sensitivity training as part of the carrier's regular fall refresher training course. Skyservice indicated that it planned to continue reviewing its training program and to finalize it before November 1, 2004. On November 2 and 8, 2004, Skyservice provided copies of the revised sections of its Ground Handling Manual that apply to persons with disabilities.

[5] On November 9 and 10, 2004, Skyservice provided copies of its completed Schedule (Section 11) of thePersonnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42 (hereinafter the Training Regulations).

ISSUE

[6] The issue to be addressed is whether the measures taken by Skyservice meet the requirements of the Decision.

ANALYSIS AND FINDINGS

[7] In making its findings, the Agency has considered all of the information and material submitted by Skyservice.

First corrective measure

[8] The first corrective measure set out in the Decision required Skyservice to provide the Agency with a copy of its personnel training program, including the information set out in the Schedule (Section 11) of the Training Regulations. In addition, the Agency noted that, as part of this corrective measure, of particular interest to the Agency are provisions in Skyservice's program that address the concerns raised in Mrs. Brazell's submission with respect to

  1. its personnel's awareness of its policies and procedures, as well as the terms and conditions of carriage of persons with disabilities; and
  2. the need for its personnel to have a dialogue with a passenger with a disability on his/her needs, so as to determine the passenger's choice of the available service/seating options.

Facts

[9] Skyservice submitted two training programs: one for its cabin crews and one for its ground handling agents, station managers and airport personnel (including contracted agents). These training programs include the information specified in the Schedule (Section 11) of the Training Regulations. It is noted in both training programs that a person with a disability assisted with the training programs. Further, the training program provided to Skyservice's ground handling agents, station managers and airport personnel, including contracted agents, comprises a question and answer period in Spanish for personnel working at destinations where Spanish is the first language.

[10] Skyservice provided a copy of its manual on Sensitivity Training for Outstations (Providing Services to Persons with Disabilities), which contains specific information on Skyservice's services for passengers with disabilities, in addition to a section on the importance of having a dialogue when assisting persons with disabilities.

[11] The Ground Handling Manual (hereinafter the Manual) provided to Skyservice personnel and agents is the main tool for guiding its front-line employees in the provision of services to passengers. Skyservice's policies and procedures with respect to the provision of services to passengers with disabilities, particularly with respect to seating, and including those specifying that bulkhead seats are reserved for passengers with disabilities, are set out in Skyservice's Manual as follows:

5.9.2 Pre-Assignment for Persons with Special Needs

Pre-assignment requests for persons with disabilities will be accepted on a first come, first serve basis up to 48 hours prior to departure, through the Tour Operator. Where a request is not made at least 48 hours in advance, a reasonable effort to satisfy the request shall be made. A medical certificate may be requested from those passengers with a disability that is not evident, although providing the same is at the passenger's discretion.

Row 1 or Bulkhead is reserved for passengers with medical conditions.

In addition to the bulkhead seats, a reasonable effort is to be made to ensure that accessible passenger seats are saved until the end of check-in, in the event that a passenger with a disability may need them. A disabled person is to be informed of those passenger seats in the aircraft to be used that are most accessible for that person. The disabled person is to be permitted to choose the seat they consider most appropriate for them, subject to the rule that persons who are not independently mobile are not permitted to be seated in emergency exit rows.

4.8.3 Advanced Seating

Requests for pre-selected seats are granted through the tour operators at a nominal fee. Emergency Exit row seats cannot be pre-booked. Likewise, bulkhead row seats cannot be pre-booked with the exception of passengers with disabilities. Passengers with disabilities may choose seats, with the exception of the emergency exits, that they consider most appropriate for themselves in light of their special needs. The advanced seating fee is to be waived in the case of passengers with disabilities. Tour Operators who book advanced seating for passengers should be sensitive to the needs of passengers with disabilities and should communicate with these passengers to ensure that their needs are understood and met.

9.2.5 Bulkhead Seats

Any passengers may occupy these seats. There are very few bulkhead seats available with extra leg room, and therefore priority is to be offered to those passengers with medical requirements.

A blind passenger who is travelling with a seeing eye dog is best seated at the front row bulkhead by the window, to provide room for the service animal to lie down.

Position of Skyservice

[12] Skyservice explains that it has procedures and standards in place for providing services to passengers with disabilities. Specifically, Skyservice advises that the Manual includes its policies and procedures for dealing with persons with disabilities and provides guidance on preboarding and deplaning assistance, wheelchair assistance, preassignment of seats for persons with disabilities, the importance of having a dialogue with persons with disabilities when providing assistance, handling or assisting with mobility devices, transferring techniques, and assistance with guide dogs.

[13] Skyservice submits that it endeavours to minimize, if not eliminate, incidents where employees do not apply its policies and procedures, and hopes to achieve this through constant reminders, refresher training for employees and follow-up actions wherever needed. Skyservice points out that where there is a lapse, it has always taken up any issues brought to its attention through the respective managers responsible for the employee(s).

Analysis

[14] The Agency has examined Skyservice's personnel training programs, including the information contained therein, as specified in the Schedule (Section 11) of the Training Regulations, particularly with respect to the provisions that address the concerns raised in Mr. Brazell's application. The Agency notes that Skyservice's training program for ground handling agents, station managers and airport personnel (including contracted agents) indicates that a person with a disability will be involved with the training programs, as contemplated in the Schedule (Section 11) of the Training Regulations. Further, the Agency notes that Skyservice's amended Manual, which is used as its front-line tool for all Skyservice's personnel and contracted agents, addresses the concerns raised in Mr. Brazell's application in so far as it specifies Skyservice's policies and procedures for dealing with persons with disabilities; its policies regarding seating, including a provision that the bulkhead row is reserved for passengers with disabilities; and provisions which stress the importance of having a dialogue when assisting persons with disabilities in order to ensure that passengers' needs are clearly understood.

Findings

[15] The Agency is satisfied that Skyservice's Manual and training programs address the concerns raised in Mrs. Brazell's submission with respect to

  1. its personnel's awareness of its policies and procedures, as well as the terms and conditions of carriage; and
  2. the need for its personnel to have a dialogue with a passenger with a disability on his/her needs, so as to determine the passenger's choice of the available service/seating options.

Accordingly, the Agency finds that Skyservice has satisfied the first corrective measure.

Second corrective measure

[16] The second corrective measure set out in the Decision required Skyservice to submit the training records of the personnel involved, including the check-in agents at the Calgary and Holguin airports and the flight attendants who interacted with the Brazells indicating the dates on which they received initial and refresher training.

Facts

[17] Skyservice provided copies of its training records for the check-in agents and flight attendants (Calgary airport). These records include the dates on which these employees received their initial and refresher training. Skyservice also provided copies of its training records dated January 29, 2004 for the Holguin airport employees.

Position of Skyservice

[18] Skyservice notes that sensitivity training for the check-in agents and flight attendants (Calgary airport) is included in the personnel's annual training and advises that any delay in a 12-month annual training is due to the fact that the crew member was off-line or on a lay-off status.

[19] Skyservice indicates that it is unable to provide detailed training information for its personnel (Holguin airport) in Cuba prior to November 2003. Skyservice explains that subsequent to an inspection by an enforcement officer designated by the Agency pursuant to paragraph 178(1)(a) of the Canada Transportation Act, S.C., 1996, c. 10, as of November 2003, all check-in agents at destination stations now sign a form to acknowledge that they have received the training. Skyservice adds that while it has always had training in place for its own personnel and the contracted ground handling agents, it has established a formal procedure whereby its Ground Operations Department provides a paper trail of training that has been undertaken. Further, Skyservice notes that the check-in agents and ramp attendants (Holguin airport) receive annual training from Skyservice, and notes that all station agents are provided refresher operational training and sensitivity training whereby they are informed about the needs of persons with disabilities.

[20] Although the Agency did not request Skyservice to do so in the Decision, Skyservice provided copies of internal e-mails between its departments which, in part, request that stations be reminded of the advance seating processes for persons with disabilities and which remind stations that its advance seating policies and procedures should be identified as an item for refresher training.

Analysis

[21] The Agency notes that Skyservice was unable to provide detailed information concerning the training of the employees (Holguin airport) in Cuba prior to November 2003. The Agency reminds Skyservice that the Training Regulations require a carrier to record and monitor the completion of the initial and refresher training sessions. The Agency acknowledges, however, that as of November 2003, all Skyservice agents at destination stations are now required to sign a form to acknowledge that they have received their initial and/or refresher training. In this regard, the Agency is satisfied that the completion of the initial and refresher training sessions for the Holguin check-in agents and flight attendants are now recorded and monitored. Further, the Agency notes that Skyservice has provided training records for check-in agents and flight attendants currently working at the Holguin and Calgary airports. The Agency notes Skyservice's intention to focus on its advance seating policies and procedures during its next refresher training sessions for all of its personnel, including Skyservice's contracted employees, and commends the carrier for this initiative.

Findings

[22] In light of the above, the Agency is satisfied that all of Skyservice's check-in agents and flight attendants (Calgary and Holguin airports) have received initial and refresher training. Accordingly, the Agency finds that Skyservice has satisfied the second corrective measure.

Third corrective measure

[23] The third corrective measure set out in the Decision required Skyservice to issue a bulletin to all of the carrier's representatives who deal either directly or indirectly with the provision of services to passengers with disabilities, whether the representatives be employees or contracted agents of the carrier.

[24] The corrective measure required that the bulletin highlight the incident experienced by Mr. Brazell, without identifying his name, and emphasize the importance of maintaining appropriate levels of awareness and sensitivity to the particular needs of travellers with disabilities. In addition, the bulletin was required to reinforce the importance of

  1. following the carrier's policies and procedures with respect to the provision of services to a passenger with a disability;
  2. initiating discussions with a person with a disability to ensure that his/her needs and abilities are clearly understood and taken into account by the representatives; and
  3. being sensitive and constantly alert to the needs of a traveller with a disability so as to allow the passenger to determine the appropriate level and form of assistance required in a particular situation.

[25] The bulletin was also required to clarify that, in accordance with the carrier's policy on seating assignments, Row 1 or Bulkhead is reserved for passengers with medical conditions and can be assigned through the advance seating selection service or at check-in; and remind the carrier's representatives that a person with a disability shall receive priority over a person without a disability for the pre-booking of bulkhead seating, and that a person with a disability is to be permitted to choose the seat he/she considers most appropriate for him/her in light of his/her needs.

[26] Finally, the corrective measure also required Skyservice to provide the Agency with a copy of the bulletin, as issued.

Facts

[27] Skyservice provided a copy of a memorandum dated February 10, 2004 sent to all of its front-line employees, Skyservice representatives/ground handling agents, and tour operator front-line personnel. The memorandum and the attachments to it:

  1. provide a summary of the incident experienced by Mr. Brazell, without naming him, and of the Agency's findings in the Decision;
  2. indicate that in light of Mr. Brazell's experience, it appears that Skyservice's procedures with respect to seating assignment for passengers with disabilities were not properly followed;
  3. emphasize that Skyservice has clear processes in place that specifically address assistance to passengers with disabilities and note that these are set out in Skyservice's Manual and form a part of the agenda for training sessions for ground handling agents and in-flight crew members. It is also noted that the Manual specifies the carrier's policies and procedures on seating assignments for persons with disabilities which indicate that bulkhead seating can be assigned through Skyservice's advance seat selection service or at check-in. Skyservice explains that at check-in, those bulkhead seats that have not been preassigned must also be held for any passengers with medical conditions;
  4. stress the importance of passengers with disabilities receiving priority over other passengers for bulkhead seats, and specify that passengers with disabilities may choose seats that they consider to be the most appropriate in light of their specific needs;
  5. provide a copy of the Air Travel Accessibility Regulations (a guide which explains accessibility regulations) and an Air Travel Reservation Check-list (a checklist to identify specific service requests made by travellers with disabilities), and explain that the documents were prepared and published by the Agency in an effort to ensure that the needs of passengers with disabilities are met;
  6. emphasize that it is important to communicate with passengers with disabilities to ensure that the passengers' needs are clearly understood; and
  7. request all Skyservice employees and representatives to be aware of and sensitive to the needs of passengers with disabilities, so as to deliver the assistance required.

Analysis

[28] The Agency has reviewed the information filed in response to the third corrective measure of the Decision. The Agency notes that Skyservice has emphasized the importance of communicating with passengers with disabilities in order to deliver the assistance required and giving priority to passengers with disabilities over other passengers when assigning bulkhead seats. In addition, Skyservice specifies that passengers with disabilities may choose seats that they consider to be the most appropriate in light of their specific needs. Accordingly, the Agency finds that the memorandum and attachments sent to all of Skyservice's front-line employees, Skyservice representatives/ground handling agents and tour operator front-line personnel should help prevent the recurrence of situations similar to the one experienced by Mr. Brazell.

Findings

[29] In light of the information filed, the Agency finds that Skyservice has satisfied the third corrective measure.

Fourth corrective measure

[30] The fourth corrective measure set out in the Decision required Skyservice to describe, in detail, the procedures in place to ensure that requests for specific services made by passengers with disabilities, as communicated to the tour operators with which Skyservice deals, are completely and accurately reflected in Skyservice's records in order that its check-in agents and ground personnel are in a position to know the specifics of such requests to ensure that the needs of passengers with disabilities will be met.

Facts

[31] Skyservice describes, in part, the process that is currently in place between tour operators and/or travel agents and Skyservice as follows:

  1. 48 hours prior to the scheduled departure of the flight, all necessary passenger details such as the passenger's name and any special requests are automatically transmitted from the tour operator to Skyservice;
  2. from the information received, the Skyservice system automatically compiles a preliminary Advance Passenger Load Manifest (hereinafter the Advance Manifest);
  3. the Advance Manifest is sent out 48 hours prior to the scheduled departure of the flight, for the purpose of providing advance notice to all departments involved with the operation of the flight;
  4. the Advance Manifest informs the departure and arrival stations of the number of passengers as well as any special services that may be required, such as wheelchair services, special meals, etc.; and
  5. an updated/final Advance Manifest is prepared and resent (24 hours prior to the scheduled departure of the flight) to the relevant departments and, at the same time, a Passenger Name List (hereinafter PNL) is automatically prepared, based on the updated information.

Position of Skyservice

[32] Skyservice notes that its tour operators offer advance seating, which allows passengers the option to request seats of their choice and, just as importantly, allows passengers with disabilities to select seats that would best suit their needs. Further, Skyservice submits that its tour operators which book advance seats for customers have been notified of the Agency's expectations with respect to providing services to passengers with disabilities. Skyservice adds that all "special requests" are to be listed appropriately in the passenger reservation file held by the tour operator. Skyservice states that, to be able to deliver the services it offers, it is imperative that the information received by the tour operators is in the proper International Air Transport Association (hereinafter IATA) designated code/format. Further, Skyservice adds that it works together with the tour operators to ensure that staff is aware of the need and importance of inserting the appropriate IATA codes in the proper format, so that information is received by the air carrier and, in turn, the service is delivered to the passenger. Skyservice notes that a passenger whose "special request" has been received by the air carrier can be identified by the check-in agents through the PNL and by the crew through the Advance Manifest.

Analysis

[33] The Agency has reviewed all of the material filed by Skyservice, and is concerned that services requested by persons with disabilities may not be accurately recorded by tour operators and communicated to Skyservice and that the lack of confirmation of services provided to persons with disabilities may lead to obstacles to their mobility. The Agency notes Skyservice's submission that all disability-related requests are "listed appropriately" in the passenger reservation files held by the tour operators. The Agency recognizes that Skyservice relies on the information provided by the tour operators/travel agents regarding service requests. However, the Agency is of the opinion that there is a risk that persons with disabilities may experience undue obstacles when travelling if the only mechanism for recording a service request is using an IATA code, especially given that not all required services necessarily have a corresponding IATA code.

[34] The Agency is of the opinion that the ability to record written comments on a reservation file regarding persons with disabilities' service requests increases the likelihood that the needs of persons with disabilities are properly understood, thereby reducing the risk that the appropriate service will not be provided. In this regard, the Agency is of the opinion that extra written comments assist reservation or check-in agents in assessing the appropriateness of an IATA code, thereby affording agents an opportunity to seek clarification from the person with a disability before difficulties occur.

[35] Further, the Agency notes that neither Skyservice nor the tour operators with which it deals have procedures in place to provide persons with disabilities with written confirmation that the carrier has been made aware of their service request and that the service will be provided. The Agency is of the opinion that some form of written confirmation should be provided to persons with disabilities acknowledging that the carrier is aware of their service request. In this regard, Skyservice is referred to Part VII of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter ATR). The Agency notes that section 152 of the ATR requires, in part, that an air carrier shall provide a person with a written confirmation of the services that the air carrier will provide to the person. While the ATR do not apply to the operation of international services, the Agency notes that the principles embodied therein are equally important in international travel. The Agency notes that providing written confirmation to persons with disabilities allows the person a sense of security, in that, the person is aware that the service provider has been informed by the tour operator of the services that are required on the day of travel. It also affords the person an opportunity to take appropriate action to correct a situation where a service has been misidentified or where the carrier has not been advised of a service request.

Findings

[36] In light of the above, the Agency is of the preliminary view that Skyservice's reservation process should be modified to ensure that requests for specific services made by passengers with disabilities, as communicated to the tour operators with which Skyservice deals, are completely and accurately reflected in Skyservice's records in order that its check-in agents and ground personnel are in a position to know the specifics of such requests to ensure that the needs of passengers with disabilities will be met. The Agency is of the preliminary view that this can be achieved by including written comments, in addition to IATA codes, in the passenger reservation files.

[37] Furthermore, the Agency is of the preliminary view that Skyservice should ensure that all service requests are confirmed in writing to passengers with disabilities.

[38] In this regard, the Agency recognizes, however, that there may be specific arguments that Skyservice might wish to bring forward in light of the Agency's preliminary views. Therefore, the Agency shall provide Skyservice with an opportunity, by way of a direction to show cause, to address why the Agency should not require Skyservice to amend its reservation process to provide a mechanism whereby, in addition to IATA codes, requests for specific services made by passengers with disabilities, as communicated to tour operators, can be reflected in Skyservices' records, including the Advance Manifest, by way of written comments. The Agency notes that the purpose of such a mechanism is to ensure that requests for specific services made by passengers with disabilities are completely and accurately reflected in Skyservice's records in order that its check-in agents and ground personnel are in a position to know the specifics of such requests to ensure that the needs of passengers with disabilities will be met. Skyservice should also show cause why the Agency should not order Skyservice to ensure that all service requests are confirmed in writing to passengers with disabilities.

CONCLUSION

[39] In light of the foregoing, the Agency is satisfied that Skyservice has provided the information required by the Agency in the Decision and has complied with corrective measures 1, 2 and 3. Accordingly, the Agency does not contemplate any further action with respect to these corrective measures.

[40] However, as set out above, the Agency, following its review of the required material, has made preliminary findings with respect to corrective measure 4 and determined that further action is required.

[41] In this regard, Skyservice is provided an opportunity to show cause, within thirty (30) days from the date of this Decision, why the Agency should not:

  1. order Skyservice to amend its reservation process to provide a mechanism whereby, in addition to IATA codes, requests for specific services made by passengers with disabilities, as communicated to tour operators/travel agents, can be reflected in Skyservices' records, including the Advance Manifest, by way of written comments. The Agency notes that the purpose of such a mechanism is to ensure that requests for specific services made by passengers with disabilities are completely and accurately reflected in Skyservice's records in order that its check-in agents and ground personnel are in a position to know the specifics of such requests to ensure that the needs of passengers with disabilities will be met.
  2. order Skyservice to confirm all service requests in writing to passengers with disabilities.

[42] In its response to the show cause, Skyservice may identify other alternative measures which would address the Agency's concerns with respect to items 1. and 2. above. Should Skyservice choose alternative measures, it must clearly demonstrate how such measures would address the Agency's concerns. Skyservice may also file with the Agency any other information it considers relevant to the resolution of this matter.

[43] Upon receipt of Skyservice's response to the show cause, and of any additional information the Agency may request from Skyservice through interrogatories, the Agency will make a determination on the show cause matter, and will determine whether further action is required in this matter.

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