Decision No. 148-AT-A-2021

December 29, 2021

APPLICATION by Patrick Shortreed against WestJet pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA), regarding his disability-related needs.

Case number: 
19-04581

SUMMARY

[1] Patrick Shortreed travelled three times with WestJet between Puerto Vallarta, Mexico, and Saskatoon, Saskatchewan, for medical procedures between December 2016 and February 2018. Mr. Shortreed claims that he faced multiple obstacles related to wheelchair assistance and assistance with placing baggage in the overhead compartments.

[2] In his application, Mr. Shortreed sought an acknowledgement from WestJet for its shortcomings and compensation in the amount of CAD 804,984.77 plus USD 664.00.

[3] The Agency issued Decision No. LET-AT-A-38-2021 (Obstacle Decision) on May 6, 2021, in which it dismissed Mr. Shortreed’s request for compensation. The Agency found, however, that Mr. Shortreed was a person with a disability at the time of travel and that he encountered obstacles related to booking wheelchair assistance prior to each trip, when WestJet did not provide wheelchair assistance in airports on seven separate occasions, and when WestJet did not provide assistance with placing overhead baggage on one occasion (collectively, obstacles).

[4] In this decision, the Agency will address whether the respondent can remove the obstacles that Mr. Shortreed faced without experiencing undue hardship.

[5] For the reasons set out below, the Agency finds that WestJet can remove the obstacles without experiencing undue hardship. The Agency orders WestJet to implement corrective measures with regard to its policies and procedures on wheelchair assistance, as set out in the Order. WestJet is to confirm its compliance with the Agency’s orders to the Agency’s Chief Compliance Officer, through the Agency’s Secretariat, as soon as possible and no later than February 10, 2022.

BACKGROUND

[6] Mr. Shortreed travelled between Puerto Vallarta and Saskatoon three times between December 2016 and February 2018. These three trips were spread out over four itineraries involving nine flights, as follows:

  • one-way from Puerto Vallarta to Saskatoon via Calgary, Alberta, on December 16, 2016 (2016 outbound trip);
  • one-way from Saskatoon to Puerto Vallarta on December 26, 2016 (2016 inbound trip);
  • from Puerto Vallarta to Saskatoon on February 13, 2017, and return on March 6, 2017 (2017 trip); and
  • from Puerto Vallarta to Saskatoon via Calgary on January 31, 2018, and return on February 5, 2018 (2018 trip).

[7] Mr. Shortreed filed an application with the Agency claiming the following:

  • that he encountered difficulty in booking wheelchair assistance with WestJet;
  • that seating was not available in the Licenciado Gustavo Díaz Ordaz International Airport (Puerto Vallarta airport) while he waited for a wheelchair to arrive prior to departure on December 16, 2016, and February 13, 2017;
  • that he was treated poorly while passing through security and customs in the Puerto Vallarta airport;
  • that WestJet did not provide him with wheelchair assistance upon request in the Saskatoon John G. Diefenbaker International Airport (Saskatoon airport), the Calgary International Airport (Calgary airport) and the Puerto Vallarta airport on multiple occasions;
  • that WestJet did not provide him with assistance embarking or disembarking the aircraft in Saskatoon, Calgary and Puerto Vallarta on multiple occasions;
  • that the angle and unevenness of the ramp to the aircraft combined with a lack of assistance from WestJet caused him to fall and become injured while disembarking the aircraft in Puerto Vallarta on March 6, 2017; and
  • that WestJet did not provide him with help placing carry-on baggage in, nor retrieving carry-on baggage from, the overhead compartments on multiple occasions.

[8] In the Obstacle Decision, the Agency dismissed Mr. Shortreed’s claim for compensation related to pain and suffering and his request for an apology as being outside of its jurisdiction to order. The Agency clarified that the incidents occurred prior to the amendment of the CTA when the Agency did not have the authority to order damages for pain and suffering.

[9] Similarly, the Agency found that it did not have the jurisdiction to address Mr. Shortreed’s assertions involving a foreign airport, including foreign airport security or customs agents, seating in the Puerto Vallarta airport, and the placement of the bridge and ramp at the Puerto Vallarta airport.

[10] The Agency addressed the alleged obstacles over which it has jurisdiction. The Agency first found that Mr. Shortreed faced an obstacle in booking wheelchair assistance for all four trips: the 2016 outbound trip, the 2016 inbound trip, the 2017 trip and the 2018 trip (booking obstacle).

[11] The Agency then found that Mr. Shortreed did not meet his burden of proof to demonstrate that he faced an obstacle in not being assisted in embarking and disembarking the aircraft and it dismissed that portion of the application.

[12] The Agency also found that Mr. Shortreed faced an obstacle when WestJet did not provide wheelchair assistance upon request on the following seven occasions:

  • prior to departure in the Puerto Vallarta airport on December 16, 2016;
  • prior to departure in the Saskatoon airport on December 26, 2016;
  • prior to departure in the Puerto Vallarta airport on February 13, 2017;
  • prior to departure in the Saskatoon airport on March 6, 2017;
  • prior to departure in the Puerto Vallarta airport on January 31, 2018;
  • during a transfer in the Calgary airport on January 31, 2018; and
  • upon arrival in the Saskatoon airport on February 1, 2018 (wheelchair assistance obstacle).

[13] Lastly, the Agency found that Mr. Shortreed faced an obstacle when WestJet did not provide him with assistance in placing carry-on baggage in the overhead compartment upon request on December 16, 2016 (carry-on baggage obstacle).

[14] The Agency then provided WestJet with an opportunity to explain how it would propose to remove the obstacles, or to demonstrate that it could not do so without experiencing undue hardship. WestJet submitted its answer on May 18, 2021, and Mr. Shortreed submitted a reply on May 25, 2021, in which he expressed dissatisfaction with the Obstacle Decision.

PRELIMINARY MATTER

[15] The Agency notes that Mr. Shortreed takes issue with many of the Agency’s findings in the Obstacle Decision. The Agency is a quasi-judicial tribunal. The decision-making process of the Agency is governed by the rules of procedural fairness, which ensures that all parties to a complaint or an application are dealt with in a fair and equitable manner. When decisions are issued as a part of this process they speak for themselves, and the Agency does not provide additional explanations or rationale for those decisions.

[16] According to section 32 of the CTA, the Agency may review, rescind or vary its decisions if, in the Agency’s opinion, there has been a change in the facts or circumstances related to the decision since the decision was issued. The Agency is not aware of any changes in the facts or circumstances related to the Obstacle Decision that have occurred since it issued the decision, nor has Mr. Shortreed presented such an argument. The Agency will therefore not review the Obstacle Decision.

THE LAW

[17] The application was filed pursuant to subsection 172(1) of the CTA, which, at the time of the incidents that are the subject of this application, read as follows:

The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

[18] The Agency determines whether there is an undue obstacle to the mobility of a person with a disability using a two-part approach:

Part 1: The onus is on the applicant to demonstrate, on a balance of probabilities, that:

- they have a disability, for the purposes of Part V of the CTA;

and

- they faced an obstacle. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.

Part 2: If it is determined that the applicant has a disability and faced an obstacle, the onus shifts to the respondent to either:

- explain, taking into account any proposals from the applicant, how it proposes to remove the obstacle through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting an obstacle, or, if a general modification is not feasible, an individual accommodation measure;

or

- demonstrate, on a balance of probabilities, that it cannot remove the obstacle without experiencing undue hardship.

[19] The Agency will address the second part of the above two-part approach in this decision.

POSITIONS OF THE PARTIES

WestJet

[20] WestJet submits that its existing policies and practices are sufficient to address mobility‑related and other accommodation requests.

[21] WestJet proposes that it can remove the specific obstacles that Mr. Shortreed faced without experiencing undue hardship by providing further education to its staff and crew about their responsibilities for providing assistance to passengers with mobility issues. This education would include:

  • a communication to all contact centre airport staff, inflight crew members and contract staff outside of Canada regarding policies about providing wheelchair assistance and assistance with placing carry-on baggage on board;
  • the above communication being added to recurrent training materials; and
  • department-wide communication requiring staff to sign off that they have read and understood WestJet’s responsibilities regarding mobility and medical accommodation.

[22] WestJet also proposes an individual accommodation to Mr. Shortreed that would include an individualized review of all bookings made by Mr. Shortreed (either by him or through a travel agency) to ensure that WestJet has all the pertinent information for accommodating his needs. WestJet states that this individual review will ensure proper equipment is available, and that staff and crew are aware of Mr. Shortreed’s needs.

[23] WestJet commits to a continued review of Mr. Shortreed’s medical information to accommodate him properly and to make sure he is able to travel safely. For instance, WestJet points out that Mr. Shortreed was eligible to travel domestically with a companion but that this eligibility has expired. WestJet asks that Mr. Shortreed provide up-to-date medical information so that WestJet can evaluate and update the accommodation(s) that Mr. Shortreed requires to ensure that he can travel safely.

Mr. Shortreed

[24] Mr. Shortreed does not specifically address whether or how WestJet can remove the obstacles without experiencing undue hardship. Mr. Shortreed replies to WestJet’s answer by pointing out that his eligibility to fly with a companion is unrelated to this case as the policy applies to flights only within Canada. He goes on to state that he does not want to renew his eligibility to fly with a companion, because doing so requires his neurosurgeon to fill out a 15-page document every year.

ANALYSIS AND DETERMINATION

[25] At this stage of the proceedings, the onus is on the carrier to explain how it proposes to remove the obstacles, or to demonstrate that it cannot remove the obstacles without experiencing undue hardship.

[26] In its submission, WestJet proposes various measures to remove the obstacles, which suggests that it can do so without undue hardship. Mr. Shortreed did not reply specifically to WestJet’s proposals nor did he provide proposals of his own for how WestJet could remove the obstacles without experiencing undue hardship. The Agency, therefore, finds that WestJet can remove the obstacles without experiencing undue hardship and that appropriate corrective measures should be ordered to ensure that WestJet provides accessible transportation to persons with disabilities.

[27] WestJet proposes to issue an internal communication to remind its personnel about its obligation to provide wheelchair assistance and assistance with placing carry-on baggage in the overhead compartment. WestJet also proposes to update its recurrent training materials with the same information. The Agency is satisfied that the corrective measures WestJet proposes will address the wheelchair assistance obstacle and carry-on baggage obstacle. WestJet’s proposals are included in the Agency’s orders below.

[28] WestJet’s proposal to eliminate the booking obstacle is to review Mr. Shortreed’s bookings. Although WestJet indicates that its contact centre staff will receive the memorandum and training on wheelchair assistance and placing carry-on baggage, by contrast, the carrier does not address whether any communication or training will be provided to resolve the booking obstacle.

[29] The Agency finds that further corrective measures are needed to address the booking obstacle, particularly since the booking obstacle caused some issues resulting in the wheelchair assistance obstacle.

ORDER

[30] The Agency orders WestJet to:

  1. issue an internal memorandum to all personnel who interact with passengers, including contract personnel, about its policy regarding its obligations to provide wheelchair assistance to passengers;
  2. issue an internal memorandum to all on-board personnel about its policy regarding its obligation to provide assistance with placing carry-on baggage in the overhead compartments upon request;
  3. issue an internal memorandum to its personnel involved in making reservations regarding its procedures for recording a request for wheelchair assistance;
  4. include the above policies and procedures in its recurrent training materials; and
  5. implement the individualized corrective measure it proposed to accommodate Mr. Shortreed, namely to review all his future bookings to ensure that accommodation requests and related information—including the level of assistance required—are properly recorded.

[31] WestJet must confirm to the Agency’s Chief Compliance Officer through its Secretariat as soon as possible and no later than February 10, 2022 that it sent the internal memoranda and amended its training as per the Agency’s orders set out above.

Member(s)

Mark MacKeigan
Mary Tobin Oates
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