Decision No. 137-AT-A-2005

March 11, 2005

File No. U3570/03-39

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APPLICATION

[1] On October 22, 2003, Linda Garland filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] In its Decision No. LET-AT-A-225-2003 dated November 7, 2003, the Agency required clarifications from Mrs. Garland and required Jetsgo Corporation carrying on business as Jetsgo (hereinafter Jetsgo) to file its answer to the application within thirty (30) days of receipt of Mrs. Garland's submission.

[3] On November 19, 2003, Mrs. Garland filed the clarifications requested. Jetsgo filed its answer on January 17, 2004, and filed an additional submission on February 4, 2004. On February 25, 2004, the Agency received Mrs. Garland's reply.

[4] On April 8, 2004, in its Decision No. LET-AT-A-96-2004, the Agency required Jetsgo and Mrs. Garland to provide further information and clarifications. Mrs. Garland filed her submission on April 18, 2004. On April 22, 2004, Jetsgo requested an extension of time until June 1, 2004 to file its response and, in its Decision No. LET-AT-A-117-2004 dated April 27, 2004, the Agency granted Jetsgo an extension until May 14, 2004 to file its response, which it did on May 17, 2004.

[5] In its Decision No. LET-AT-A-273-2004 dated September 29, 2004, the Agency again requested certain information and clarifications from Jetsgo and Mrs. Garland, which were originally sought in Decision No. LET-AT-A-96-2004, but which were not provided by the parties in their responses thereto. Mrs. Garland filed her reply on October 4, 2004. In its Decision No. LET-AT-A-288-2004 dated October 21, 2004, the Agency granted Jetsgo an extension of time until November 8, 2004 to file its reply, which it did on November 8, 2004.

[6] 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

[7] Although Jetsgo and Mrs. Garland filed certain of their submissions after the prescribed deadlines, the Agency, pursuant to section 5 of the Canadian Transportation Agency General Rules, SOR/2005-35 accepts the submissions as being relevant and necessary to its consideration of this matter.

ISSUE

[8] The issue to be addressed is whether the following constituted undue obstacles to Mrs. Garland's mobility:

• the level of wheelchair assistance provided prior to boarding in Sydney;
• the lack of a moveable aisle armrest on the bulkhead seat;
• the level of assistance provided when Mrs. Garland was transferred from her seat to the boarding wheelchair upon her arrival in Toronto; and
• the level of wheelchair assistance provided to Mrs. Garland from the aircraft to the baggage claims area when she arrived in Toronto;

and, if so, what corrective measures should be taken.

FACTS

[9] Mrs. Garland uses a wheelchair. On May 6, 2003, one of Mrs. Garland's fellow travellers booked tickets with Jetsgo for Mrs. Garland, her husband and three other passengers to travel from Sydney to Toronto on August 23, 2003. During the reservation process, one of the fellow travellers informed Jetsgo that Mrs. Garland uses a wheelchair and would require boarding and deboarding assistance, and a request was made for bulkhead seating for Mrs. Garland.

[10] Mrs. Garland's reservation record includes a "WCHC" Special Service Request (hereinafter SSR) and identifies Seat 1C as having been assigned to her. The "WCHC" code is defined in the International Air Transport Association's (IATA) Reservations Services Manual (June 1, 1999) as "Wheelchair - C for Cabin Seat. Passenger completely immobile. Requires wheelchair to/from aircraft/mobile lounge and must be carried up/down steps and to/from cabin seat...".

[11] Jetsgo defines "WCHC" as:

(Wheel chair confined) Passenger cannot move by himself, must be escorted and moved into their seat. Passenger presents himself with their wheelchair, is transferred to a wheelchair from the airport and their personal wheelchair will be checked at the counter (the wheelchair of the passenger does not count as part of their luggage).

[12] When she arrived at the Sydney Airport on August 23, 2003, Mrs. Garland's husband pushed her wheelchair to the boarding area to await the boarding of Jetsgo MD83/300 aircraft. Once on board, Mrs. Garland's husband transferred her to Seat 1C, which is a bulkhead aisle seat in the front row of the aircraft. As Seat 1C did not have a moveable aisle armrest, Mrs. Garland's husband lifted her over the fixed armrest prior to departure.

[13] As private contractors are not available in Sydney, Jetsgo contracts Sydney Airport Authority personnel to provide all of its services at the Sydney Airport.

POSITIONS OF THE PARTIES

[14] Mrs. Garland submits that a station manager informed Mrs. Garland that she would escort her to the aircraft, following which the manager "went running around the terminal" until finally, her husband had to take her to the aircraft. In a subsequent submission, Mrs. Garland insists that it was her husband, and not the station manager, who pushed her wheelchair to the door of the aircraft. She states, however, that the station manager wheeled another passenger, ahead of them, to the aircraft.

[15] According to Mrs. Garland, Jetsgo onboard personnel were not trained to lift her from her seat to the boarding wheelchair, but they eventually did so carefully and with her guidance. However, in her April 18, 2004 submission, Mrs. Garland states that when she arrived in Toronto, onboard personnel were incapable of lifting her and, after a considerable wait, her husband transferred her from her seat to the boarding wheelchair. Mrs. Garland also emphasizes the fact that Jetsgo did not, at the time of Mrs. Garland's travel, have a training program in effect for its personnel concerning the assistance to persons with disabilities.

[16] Mrs. Garland states in her application that there were no personnel available to provide her with assistance in moving to the baggage claims area at the Toronto-Lester B. Pearson International Airport (hereinafter the Toronto airport). In her April 18, 2004 submission, however, Mrs. Garland states that an employee assisted her from the aircraft to the baggage claims area at the Toronto airport.

[17] In its answer to the application, Jetsgo states that Mrs. Garland was the only passenger on the flight in question with "special needs". However, the carrier later indicates, in its letter to Mrs. Garland dated May 14, 2004, that there were five requests for wheelchair assistance for that flight, including the request made for Mrs. Garland. Jetsgo explains that Mrs. Garland's request was for wheelchair and boarding and deboarding assistance, while the other four requests for wheelchairs were from individuals who could not walk long distances and needed a wheelchair to get to the boarding area.

[18] Jetsgo submits that a Sydney Airport Authority employee, who was, at the time, contracted by Jetsgo to provide certain services, including assistance to persons with disabilities, personally took Mrs. Garland and her husband to the door of the aircraft and waited with them until the ground crew carried Mrs. Garland into the aircraft. Jetsgo filed a report to this effect from the Sydney Airport Authority employee who states that when preboarding was announced, Mrs. Garland was informed that she and an attendant would be boarded first and the three other individuals travelling with them were asked to remain in the security area until general boarding was announced to avoid congestion on the stairs while Mrs. Garland was being boarded. The Sydney Airport Authority employee adds that "[w]e then proceeded to take Mrs. Garland and her husband to the aircraft."

[19] With respect to bulkhead seating, Jetsgo states that its aircraft do not have moveable aisle armrests for seats located in bulkhead rows because food trays are stored in the armrests of the seats. Jetsgo states that the only aircraft it was operating at the time of the incident was the MD-83 series 300 and that the configuration for moveable armrests was not standard on every aircraft such that the information concerning the location of aisle seats with moveable armrests was passed along to the check-in personnel on a case-by-case basis. Jetsgo expresses the opinion that the first row is the preferred seating assignment for passengers who use wheelchairs as it provides extra leg room. Jetsgo asserts that this extra space outweighs by far the absence of a moveable armrest. Jetsgo indicates that, at the present time, the first row is reserved for passengers who use wheelchairs and its Passenger Service Agent Manual-Training and Development (hereinafter Jetsgo's manual) states that such passengers must be seated in Row 1 Seat A or E.

[20] Jetsgo's Manual states, in part, that: "14) SSR passengers should be seated from rows 3 through 9 (CDE); 15) WCHC must be seated in row 1 (A or E)."

[21] With respect to the problems that Mrs. Garland alleges she encountered when she arrived in Toronto, Jetsgo submits that nothing unusual was reported by its Toronto airport personnel.

[22] Jetsgo states that the person responsible for the training of its agents who deal with passengers in Toronto confirmed that agents are informed of the ways to push a wheelchair and advised that they need to ensure that the passenger is comfortable but that the agents did not, at the time, receive specific training on assisting persons with disabilities. Jetsgo adds that some of its personnel have acquired related experience from their previous jobs.

[23] Jetsgo indicates that its agents who deal with passengers in Montréal and Toronto were not scheduled for disability awareness training until February 2004.

ANALYSIS AND FINDINGS

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

[25] An application must be filed by a person with a disability or on behalf of a person with a disability. Mrs. Garland is paraplegic and uses a wheelchair and, as such, is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

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

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

[27] 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 federal 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.

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

Whether the obstacle was undue

[29] 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 federal 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 federal 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, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

[30] 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 federal transportation network to adapt their services, as far as is 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 of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board 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 deboarding 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 various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.

The case at hand

Level of wheelchair assistance provided prior to boarding at Sydney Airport

[31] The Agency notes Mrs. Garland's statement that her husband pushed her in her wheelchair to the aircraft door, and that Jetsgo's station manager escorted another passenger using a wheelchair to the aircraft, ahead of Mrs. Garland and her husband.

[32] The Agency also notes Jetsgo's statement that the Sydney Airport Authority personnel contracted by Jetsgo claim to have taken Mrs. Garland to the aircraft and waited with Mrs. Garland and her husband until Mrs. Garland was carried on board by ramp personnel.

[33] In its correspondence to parties dated September 29, 2004, the Agency repeated an earlier request for further information and clarifications from Mrs. Garland and Jetsgo concerning the events that occurred at the Sydney Airport prior to boarding, which included:

• a description of Mrs. Garland's specific needs as they relate to assistance required to make her way through the Sydney Airport;
• details as to when and from whom Mrs. Garland requested this assistance;
• clarifications as to the events that followed Mrs. Garland's check-in at the Sydney Airport and leading to Mrs. Garland's arrival at the aircraft, as they apply to wheelchair assistance including an indication of whether such assistance was requested from Jetsgo personnel, and how long she waited for assistance from Jetsgo personnel before her husband assisted her; and,
• what impact on Mrs. Garland's mobility this had.

[34] In addition, Jetsgo was asked to address Mrs. Garland's assertion that the station manager at Sydney Airport wheeled another passenger to the aircraft while she was brought to the aircraft by her husband.

[35] The Agency notes that in her October 4, 2004 response, Mrs. Garland submitted that she had answered the Agency's questions on two occasions and advised that she had no further comments. In this respect, and contrary to Mrs. Garland's comments that she already answered these questions on two occasions, the Agency is of the opinion that Mrs. Garland did not provide the information requested.

[36] In its response to the Agency's request, Jetsgo advised that it was unable to provide additional information as the Sydney Airport Authority personnel involved in this incident was no longer contracted by Jetsgo.

[37] The Agency is of the opinion that there is insufficient evidence on file and moreover, that certain evidence is contradictory. Therefore, the Agency cannot make a determination as to whether Mrs. Garland encountered an obstacle with respect to the level of wheelchair assistance provided prior to boarding at the Sydney Airport.

Lack of a moveable aisle armrest on bulkhead seating

[38] The Agency notes Mrs. Garland's statement that the seat she was assigned did not have a moveable aisle armrest and, as a result, her husband had to lift her from the boarding wheelchair into the aircraft seat. The Agency also notes that Mrs. Garland had requested that she be assigned bulkhead seating. The Agency is aware that it is common in the industry for aircraft to not have moveable armrests for seats located in bulkhead rows because food trays are stored in the armrests of the seats.

[39] Notwithstanding, the Agency is of the opinion that fixed aisle armrests make the transfer of passengers with a mobility impairment to and from aisle seats very difficult in light of the limited space normally available around passenger seats and the resulting need to lift the passenger up and over the armrest to reach the passenger seat. As such, fixed aisle armrests subject these persons with disabilities to unnecessary risk of injury during a transfer.

[40] Ideally, transfers between persons' own wheelchairs or onboard wheelchairs and passenger seats take place by lateral movements between two surfaces that are of the same level with no obstruction between the two surfaces that would require persons with disabilities to be lifted up and over. In this way, moveable aisle armrests are an important component in facilitating transfers of persons who use wheelchairs as a raised aisle armrest reduces the height over which a person who uses a wheelchair must be lifted when transferring to and from a seat. Furthermore, moveable aisle armrests permit easier access by other persons with disabilities who require more manoeuvring room to reach their seats. For these reasons, the Agency has long encouraged carriers to provide moveable aisle armrests on board transportation equipment.

[41] In light of the foregoing, and in light of the fact that Mrs. Garland's husband had to lift her from the boarding wheelchair into her seat over a fixed aisle armrest, the Agency finds that the lack of a moveable aisle armrest constituted an obstacle to Mrs. Garland's mobility.

[42] The Agency notes that there is no indication on file that the issue of the bulkhead seats having fixed aisle armrests or Mrs. Garland's need for a moveable aisle armrest was raised by Jetsgo or by Mrs. Garland's travelling companion during the reservation process. While Mrs. Garland may have expected that the bulkhead aisle seat she had requested would have a moveable aisle armrest, she did not request it. Similarly, when it was determined that the aisle armrest was not moveable, there is no indication from either party that there was a discussion with respect to the lack of this feature or the possibility of transferring to a different seat on the aircraft; that any lifting assistance was sought; or that Jetsgo personnel would not have provided such assistance had it been requested.

[43] In its Decision No. LET-AT-A-96-2004 dated April 8, 2004, the Agency requested additional information and clarifications from the parties. The Agency requested that Mrs. Garland, in part, indicate whether there were discussions with Jetsgo with respect to a request for a seat with a moveable aisle armrest and, if so, to specify when such a request was made and with whom (that is, name and/or title of the person). Mrs. Garland did not provide any information in this regard.

[44] In light of the foregoing, the Agency finds that the obstacle constituted by the lack of a moveable aisle armrest on the bulkhead seat occupied by Mrs. Garland was not undue.

Level of assistance provided from aircraft seat to boarding wheelchair in Toronto

[45] Although Mrs. Garland initially indicated that the Jetsgo onboard personnel were not trained to transfer her from her seat to the boarding wheelchair, but that they eventually did so carefully and with her guidance, she subsequently indicated that they were physically incapable of lifting her, and that ultimately her husband transferred her from her seat to the boarding wheelchair after a considerable wait.

[46] As noted above, on September 29, 2004, the Agency repeated an earlier request for further information and clarification from Mrs. Garland and Jetsgo. Specifically, with respect to this issue, the Agency's request stated, in part, that:

Given the importance of the matters raised in the application and the Agency's desire to base its decision on information that is as complete as possible, however, Mrs. Garland is asked to ... clarify the apparent inconsistency regarding the manner in which she was transferred to her own wheelchair ... Similarly, Jetsgo is asked ... to provide any information it may have in relation to the transfer of Mrs. Garland from her seat to her wheelchair in Toronto.

[47] In this respect, the Agency notes Jetsgo's submission that nothing unusual was reported by its Toronto airport personnel. As noted above, Mrs. Garland stated that she had already provided the information requested by the Agency and, as a result, did not provide any additional information in response to the Agency's request.

[48] The Agency is of the opinion that there is insufficient evidence on file and moreover, certain evidence is contradictory. Therefore, the Agency cannot make a determination as to whether Mrs. Garland encountered an obstacle with respect to the level of assistance provided when she was transferred from her seat to the boarding wheelchair in Toronto.

Level of wheelchair assistance provided from aircraft to the baggage claims area

[49] Although Mrs. Garland initially stated in her October 22, 2003 submission that there were no personnel available to provide her assistance in moving to the baggage claims area upon deboarding at the Toronto airport, she subsequently advised in her April 19, 2004 submission that an employee assisted her to the baggage claims area.

[50] The Agency notes Jetsgo's submission that nothing unusual was reported by its Toronto airport personnel.

[51] The Agency is of the opinion that there is insufficient evidence on file and moreover, certain evidence is contradictory. Therefore, the Agency cannot make a determination as to whether Mrs. Garland encountered an obstacle with respect to the level of wheelchair assistance provided from the aircraft to the baggage claims area at the Toronto Airport.

OTHER MATTERS

[52] The Agency notes that during the pleadings, Jetsgo made an admission that "the agents, did not, at the time, receive specific training on assisting persons with disabilities." In this regard, carriers are required, pursuant to section 4 of the Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42 (hereinafter the Training Regulations) to "ensure that, consistent with its type of operation, all employees and contractors of the carrier or terminal operator who provide transportation-related services and who may be required to interact with the public or to make decisions in respect of the carriage of persons with disabilities receive a level of training appropriate to the requirements of their function ...".

[53] As a result of Jetsgo's admission, the Agency finds that Jetsgo contravened section 4 of the Training Regulations. The Agency notes, however, that Agency staff and Jetsgo personnel have co-ordinated efforts to review and develop Jetsgo's training program for assisting persons with disabilities since January 2004. In this regard, Jetsgo personnel who provide initial and refresher training are certified by COTA Comprehensive Rehabilitation and Mental Health Services (COTA), a Toronto-based rehabilitation agency. Further, on November 4, 2004, Agency staff reviewed Jetsgo's training program and found it to be consistent with the provisions contained in the Training Regulations. The Agency will therefore not take any action in this regard but reminds Jetsgo that the Agency finds contraventions of the CTA and the ATR to be serious and may impose sanctions if such contraventions occur in the future.

CONCLUSION

[54] Based on the foregoing, the Agency finds that, in light of the contradictory information on file and a lack of further clarifications from the parties, it is unable to make any determination with respect to the level of wheelchair assistance provided prior to boarding in Sydney; the level of assistance provided when Mrs. Garland was transferred from her seat to the boarding wheelchair when she arrived in Toronto; and the level of wheelchair assistance provided from the aircraft to the baggage claims area at the Toronto airport. With respect to the lack of a moveable aisle armrest on the bulkhead seat occupied by Mrs. Garland, the Agency finds that this constituted an obstacle to Mrs. Garland's mobility, but that the obstacle was not undue. Accordingly, the Agency contemplates no action in these matters.