Decision No. 154-AT-A-2008

April 4, 2008

APPLICATION by Faith Shumak-Dantowitz regarding the difficulties she and her sister, Barbara Tator, experienced with Air Transat A.T. Inc. carrying business as Air Transat.

File No. U3570/01-39

---

APPLICATION

[1] On May 2, 2001, the Canadian Transportation Agency (the Agency) received an application filed by Faith Shumak-Dantowitz in respect of difficulties experienced by herself and her sister, Barbara Tator, while travelling with Air Transat A.T. Inc. carrying on business as Air Transat (Air Transat) in February, 2000, between Toronto, Ontario, Canada and Fort Lauderdale, Florida, United States of America.

PRELIMINARY MATTERS

Difficulties identified by Ms. Shumak-Dantowitz with respect to her own travel experience

[2] Ms. Shumak-Dantowitz takes issue with the many difficulties that she says she experienced with Air Transat.

[3] An application under section 172 of the Canada Transportation Act (the CTA) must be filed by a person with a disability or on behalf of a person with a disability. Although Ms. Shumak-Dantowitz filed the application, there is no evidence to indicate that she is a person with a disability; in fact, she expressly identified her sister, Barbara Tator, as the passenger with a disability.

[4] The Agency finds that Ms. Shumak-Dantowitz is not a person with a disability, and therefore cannot address the issues with respect to her own travel experience.

Meal provided to Ms.Tator

[5] Ms. Shumak-Dantowitz submits that Ms. Tator was not provided with the vegetarian meal that she requested at the time of booking. When considering whether a person with a disability encountered an obstacle, that obstacle must be directly related to the person's disability such that an issue cannot be considered to be an obstacle simply because it was experienced by a person with a disability. In the case at hand, there is no evidence indicating that the meal request was related to Ms. Tator's disability; rather, it appears to have been a matter of preference. The Agency therefore finds that the matter cannot be considered pursuant to section 172 of the CTA.

Compensation

[6] Mr. Shumak-Dantowitz is seeking an apology from Air Transat as well as payment of both her and her sister's tickets in full, and a full fare voucher for any flight to travel with Air Transat for both herself and her sister.

[7] Pursuant to subsection 172(3) of the CTA, the Agency may, on determining that there is an undue obstacle to the mobility of a person with a disability, direct that compensation be paid for any expense incurred by that person arising out of the undue obstacle. The Agency cannot award damages for pain or suffering. As such, the Agency is unable to address the issue of compensation raised by Ms. Shumak-Dantowitz. However, in light of the difficulties experienced by Ms. Tator and Ms. Shumak-Dantowitz, Air Transat provided a full refund of the $372.93 fare paid by Ms. Tator and a $100.00 credit voucher to Ms. Shumak-Dantowitz.

ISSUES

[8] Is Ms. Tator a person with a disability according to section 172 of the CTA? In the case at hand, Ms. Tator required medical oxygen, assistance with walking and assistance with carrying her oxygen. As such, the Agency finds that Ms. Tator is a person with a disability for the purposes of applying the accessibility provisions of the CTA.

[9] Did the following constitute undue obstacles to Ms. Tator's mobility, and, if so, what corrective measures should be taken?

1. the seat assigned to Ms. Tator on the Toronto to Fort Lauderdale flight;
2. the level of assistance Air Transat provided Ms. Tator with her portable oxygen at the Toronto - Lester B. Pearson International Airport (the Toronto airport) and at the Fort Lauderdale International Airport (the Fort Lauderdale airport), as well as on board the aircraft on the Toronto to Fort Lauderdale flight; and
3. the lack of wheelchair assistance when Ms. Tator disembarked at the Fort Lauderdale airport.

FACTS

[10] Ms. Tator made reservations with a travel agent for a return trip from Toronto to Fort Lauderdale. A week prior to her travel, Ms. Tator sustained a rapid and unexpected decline in her health, such that she required assistance with walking and with carrying her oxygen.

[11] Two days prior to Ms. Tator's scheduled date of departure, her sister, Faith Shumak-Dantowitz, informed Air Transat that during Ms. Tator's upcoming travels, she would need medical attention and oxygen.

[12] Ms. Shumak-Dantowitz attempted to make a reservation to travel on the same flight as her sister. As the flight was fully booked, she was advised to arrive at the Toronto airport three hours prior to the flight to purchase a standby ticket for herself and to arrange for assistance for her sister. Ms. Tator was assigned a seat in row 40 near the rear of the aircraft; Air Transat initially directed Ms. Tator with her oxygen to security without an airline escort in both the Toronto and the Fort Lauderdale airports; Air Transat did not provide on board assistance to Ms. Tator with her oxygen; and, no wheelchair assistance was provided to her at the Fort Lauderdale airport. Ms. Tator was provided with wheelchair assistance at the Toronto airport from the gate to the entrance of the aircraft.

[13] Ms. Shumak-Dantowitz, although initially on standby status, was able to travel on the same flight as her sister. A notation on the flight manifest filed by Air Transat indicates that Ms. Shumak-Dantowitz was seated in row 43, seat F.

ANALYSIS AND FINDINGS

[14] 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. To answer these questions, the Agency must take into consideration the particular facts of the case before it.

The Agency's approach to the determination of obstacles

[15] Under Part V of the CTA, the mandate of the Agency is to eliminate undue obstacles to the mobility of persons with disabilities from the federal transportation network. The word "obstacle" is not defined in the CTA, but lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement. Obstacles or barriers to the mobility of persons with disabilities may result from, for example, federal transportation service providers' facilities; equipment; and/or policies, procedures, or practices; or a failure by transportation service providers to comply with such and/or to take positive action to enforce compliance with policies, procedures and practices, including a failure to provide appropriate training to employees and contractors.

[16] In considering whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency generally will look to the incident described in the application to determine whether the applicant has established in the application (that is, on a prima facie basis) that:

• a distinction, exclusion or preference resulted in an obstacle to the mobility of a person with a disability;
• the obstacle was related to the person's disability; and,
• the obstacle discriminates by imposing a burden upon, or withholding a benefit from a person with a disability.

[17] An individual is not required to have experienced difficulties in travel in order to make an application to the Agency under Part V of the CTA such that the design of facilities and equipment or the proposed application of a policy in the future may trigger its jurisdiction.

[18] 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 and, thus, have a negative impact on the mobility of the person.

The case at hand

[19] The Agency will now consider each of the issues to determine whether they constituted obstacles to Ms. Tator's mobility.

1. Was the seat assigned to Ms. Tator by Air Transat an obstacle to her mobility?

[20] The Agency accepts that Ms. Shumak-Dantowitz attempted to make Air Transat aware in advance that her sister had accessibility related needs and that she required assistance while travelling between Toronto and Fort Lauderdale. While this is not contested by the carrier, Air Transat submits that the information it would have required to accommodate Ms. Tator's needs was sent to incorrect facsimile numbers at Air Transat and that a special needs request, which should have been made at the time of making the arrangements with the travel agent, was not provided to Air Transat.

[21] Upon checking in at the Toronto airport more than three hours prior to the flight, Ms. Tator requested an easily accessible seat that would accommodate her and her oxygen. The seat assigned to Ms. Tator was in row 40 - almost at the rear of the passenger cabin, thus requiring Ms. Tator to manoeuvre, unassisted, down most of the aisle while her sister remained in the airport awaiting confirmation regarding her standby status. Ms. Shumak-Dantowitz submits that her sister's seat was too far for her to walk without oxygen, resulting in severe distress for her. As a result, by the time Ms. Tator found her seat, she was physically ill from the lack of oxygen. Ms. Shumak-Dantowitz contends that there is no justifiable excuse for seating a physically weakened individual at the very rear of the aircraft and that a seat near the front of the aircraft would have been easier for her to reach and would have afforded ready access to the business class lavatories.

[22] The carrier submits that when Ms. Tator checked in and Air Transat was made aware that she was a person with particular needs, it assigned to Ms. Tator a seat which had enhanced features that the carrier felt would be of benefit to her in her individual circumstances, i.e., it was close to lavatories; it provided room for the storage of her oxygen cylinders under the seats in front of her; and, in row 40, Ms. Tator would be closer to the seats in row 43 where standby passengers are usually assigned seats.

[23] The Agency accepts that the difficulties Ms. Shumak-Dantowitz described with respect to Ms. Tator's experience in accessing her assigned seat caused Ms. Tator physical and emotional distress, and that this was a result of the distance between her seat and the entrance into the passenger cabin. The Agency therefore finds that the seat assigned to Ms. Tator by Air Transat constituted an obstacle to her mobility.

2. Was the level of assistance provided to Ms. Tator by Air Transat in the airports and on board the aircraft an obstacle to her mobility?

[24] Regarding this issue, Ms. Shumak-Dantowitz identified two problems: the level of assistance Air Transat provided to Ms. Tator in conveying her oxygen through security in both the Toronto and Fort Lauderdale airports, and the level of assistance provided to Ms. Tator with her oxygen on board the aircraft.

[25] With respect to the level of assistance in the Toronto airport, Ms. Shumak-Dantowitz submits that when she and Ms. Tator proceeded, unescorted, through customs to airport security for the Toronto to Fort Lauderdale flight, Ms. Tator was very upset when she was told to return to the Air Transat counter as all passengers with oxygen must be escorted through security by carrier personnel. Ms. Shumak-Dantowitz further states that at the Fort Lauderdale airport prior to the return flight, they experienced similar problems.

[26] Air Transat does not directly address Ms. Shumak-Dantowitz's point that Air Transat personnel failed to escort them through security even though, she states, "according to the Airport authorities in both US and Canada, any person travelling with oxygen MUST be escorted through security". Air Transat advises that Transport Canada regulations allow passengers only one carry-on bag each and that a passenger requiring oxygen on board is normally allowed to carry only one cylinder, as any more would exceed prescribed carry-on dimension restrictions. Air Transat further advises that the regulations state that passengers requiring multiple cylinders would need to be accompanied by one passenger for each additional cylinder. Air Transat speculates that Ms. Tator was stopped from proceeding through security airport because she had three cylinders. The carrier did not comment on the similar incident at the Fort Lauderdale airport. However, Air Transat states that its procedures and training will be reviewed in this regard and adjusted accordingly to ensure that Transport Canada safety regulations are properly applied.

[27] The Agency recognizes that Ms. Shumak-Dantowitz believed that because Ms. Tator was carrying oxygen she required an escort through security. The Agency also recognizes that the carrier is under the impression that security at the Toronto airport directed Ms. Tator back to the Air Transat counter because she did not comply with Transport Canada's regulations. Thus, there is a disagreement as to the reason why security required Ms. Tator to return to Air Transat's counter.

[28] Air Transat, in setting out its position with respect to this issue, states that there were regulations which governed the passage of carry-on luggage through security. Given the carrier's knowledge that Ms. Tator was carrying oxygen and that there were restrictions concerning carry-on baggage which may have applied in this case, Air Transat should have spoken with Ms. Tator at check-in to ensure that she was in compliance with Transport Canada's regulations so that she could pass through security without incident.

[29] Regarding the level of assistance on board the aircraft, Ms. Shumak-Dantowitz claims that in addition to her facsimile to Air Transat dated February 15, 2000, describing her sister's need for support, she discussed her sister's needs during a telephone conversation with an Air Transat employee. Ms. Shumak-Dantowitz submits that the employee advised her that the flight attendants would be able to assist her sister if Ms. Shumak-Dantowitz did not get a seat on the aircraft. The employee further advised Ms. Shumak-Dantowitz to arrive at the airport in Toronto three hours prior to the flight to get on a standby list and to advise airport staff at that time of her sister's health issues and needs. Moreover, the information sent by Ms. Shumak-Dantowitz by facsimile to the carrier was sent to an incorrect facsimile number, and the evidence presented by Ms. Shumak-Dantowitz does not provide details of the type of assistance that the flight attendants were requested or expected to provide.

[30] Ms. Shumak-Dantowitz asserts that the flight attendants should have assisted her sister to her seat and offered to carry the bags containing her oxygen. However, no offer was made and her sister was left to manage on her own. Ms. Shumak-Dantowitz maintains that, upon settling in her seat, Ms. Tator was desperate for oxygen but before her sister could begin to self administer it, a crew member prevented her, saying the pilot had to be notified first. Ms. Shumak-Dantowitz states that a crew member then asked Ms. Tator who would be assisting her and advised her that there was no way the crew could help her. Ms. Shumak-Dantowitz submits that the level of assistance provided to her sister by Air Transat and its personnel was inadequate. According to Ms. Shumak-Dantowitz, Ms. Tator was left feeling distressed, emotionally and physically upset, and with a tremendous fear of approaching people with respect to her particular needs.

[31] Air Transat points out that cabin crews are neither trained nor required under law to assist passengers with their own oxygen equipment or to provide any chronic care assistance throughout a flight. Air Transat explains that crews are trained to provide aircraft supplied emergency oxygen, to administer first aid, and to provide onboard assistance to passengers with disabilities per federal regulations. The carrier adds that any suggestion made by its personnel that assistance would be provided by cabin crews in administering chronic care oxygen was erroneous. The carrier advises that it will deal with the matter internally and ensure that personnel are properly apprised of procedures with respect to the use of personal oxygen equipment on board. Air Transat states that it genuinely regrets the difficulties encountered by Ms. Shumak-Dantowitz and Ms. Tator and apologizes for the confusion created by the misinformation.

[32] Ms. Shumak-Dantowitz made several attempts to advise Air Transat that her sister had accessibility related needs. The Agency accepts that an Air Transat employee gave Ms. Shumak-Dantowitz the impression that the carrier would provide the assistance required by her sister. The Agency also accepts that, despite this reassurance, initial assistance was not provided with respect to the escort through security nor was it provided in helping Ms. Tator with her oxygen on board the aircraft.

[33] Based on the foregoing, the Agency finds that Air Transat's failure to provide assistance to Ms. Tator, both in the airports and on board the aircraft on the flight from Toronto to Fort Lauderdale, constituted an obstacle to her mobility.

3. Was the lack of wheelchair assistance an obstacle to Ms. Tator's mobility?

[34] The Agency accepts the evidence of Ms. Shumak-Dantowitz that she advised the flight attendant prior to their arrival in Fort Lauderdale that Ms. Tator would need wheelchair assistance and that Ms. Shumak-Dantowitz was assured that it would be "no problem." Ms. Shumak-Dantowitz states that, upon disembarking, there was no wheelchair for Ms. Tator.

[35] Air Transat does not contest the fact that a wheelchair was not made available to Ms. Tator upon her arrival in Fort Lauderdale and the carrier agrees that the lack of proper wheelchair assistance upon arrival in Fort Lauderdale by ground personnel is not acceptable.

[36] The Agency finds that the lack of wheelchair assistance provided by Air Transat constituted an obstacle to Ms. Tator's mobility.

The Agency's approach to the determination of the undueness of obstacles

[37] Should the Agency make a finding that a feature of the federal transportation network represents an obstacle to some persons with disabilities, it must then proceed to make a determination of whether that obstacle is undue as it is only upon finding that an obstacle is undue that a transportation service provider may be ordered to take corrective measures to address the obstacle.

[38] In this way, once the applicant has established in the application the existence of an obstacle to the mobility of a person with a disability in the federal transportation network, the onus of proof then shifts to the respondent transportation service provider to prove, on a balance of probabilities, that the obstacle is not undue. To this end, the respondent must demonstrate that the source of the obstacle:

• is rationally connected to a legitimate objective, such as those objectives found in the national transportation policy contained in section 5 of the CTA;
• was adopted by the transportation service provider with an honest and good faith belief that it was necessary to the fulfilment of that legitimate objective; and,
• is reasonably necessary for the accomplishment of its objective, such that it is impossible for the transportation service provider to accommodate the person with a disability without imposing undue hardship on the service provider.

[39] The transportation service provider must show that reasonable accommodation has been provided, meaning up to the point of undue hardship. What constitutes "reasonable accommodation" in each case is a matter of degree and depends on a balancing of the interests of persons with disabilities with those of the transportation service provider in the circumstances of the case, including the significance and recurrence or continuing nature of the obstacle and the impact of the obstacle on persons with disabilities as well as the transportation service provider's commercial and operational considerations and responsibilities.

[40] In most cases, there will be a range of alternatives available to address the needs of a person with a disability or a group sharing the same characteristics and, in each case, the most appropriate accommodation will be one that respects the dignity of the individual, meets individual needs, and promotes the independence, integration and full participation of persons with disabilities within the federal transportation network. In the end, reasonable accommodation will be the most appropriate accommodation which would not cause undue hardship to the transportation service provider.

[41] In order to establish undue hardship, a transportation service provider must show that it has considered and determined that there are no reasonable alternatives to better accommodate the person with a disability affected by the obstacle and that there are constraints that make the removal of the obstacle unreasonable, impracticable or, in some cases, impossible. Examples of constraints on respondent transportation service providers which the Agency may consider in its determination of undue hardship are those related to structural issues, safety issues, operational issues and financial/economic issues and include 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 constraints 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.

[42] It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the constraints 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 concepts of undueness and undue hardship.

The case at hand

1. Was the seat assigned to Ms. Tator by Air Transat an undue obstacle to her mobility?

[43] Having found that the seat assigned to Ms. Tator constituted an obstacle to her mobility, the Agency must now determine whether the obstacle was undue. The onus now shifts to Air Transat to prove on a balance of probabilities that it could not have accommodated Ms. Tator without incurring undue hardship.

[44] The accessibility of the federal transportation network means that each phase of the transportation cycle, which involves many relevant components, is accessible and allows a person with a disability to travel between point A and point B in a public transportation mode without encountering undue obstacles. The exchange of clear and accurate accessibility related information during booking and on the day of travel by each party involved, including information regarding the carrier's policies and procedures and provision of an appropriate level of assistance during the boarding and deplaning of an aircraft, are important elements that are central to the transportation experience for persons with disabilities and integral parts of the federal transportation network.

[45] The first question to be answered is whether the source of the obstacle is rationally connected to a legitimate objective. The Agency recognizes that Air Transat has policies and procedures in place to provide greater accessibility to its passengers with disabilities. Therefore, the Agency accepts that Air Transat's objective to provide accessible transportation is rationally connected to the carrier's public function as an air transportation provider.

[46] The second question is whether Air Transat's policy of providing accessible services and equipment was adopted in good faith. The Agency is satisfied that Air Transat had no motive other than to offer accessible transportation to its passengers and, thus, finds that Air Transat has adopted these policies and procedures in good faith.

[47] The third question is whether the standard of accessibility chosen by Air Transat was reasonably necessary to accomplish its objective. To meet this requirement, Air Transat must show that it could not accommodate Ms. Tator without incurring undue hardship. In its answer to the application, Air Transat advised that a "special needs service request" form should have been completed by the travel agent when Ms. Tator's travel arrangements were made. The carrier stated that "The travel professional knows that such service requests must be forwarded to [the] Passenger Support Services department in Mirabel, Quebec." While Ms. Tator had made her reservations through a travel agent, there is no evidence on file to indicate that Ms. Tator was advised when she made her travel arrangements that such a written request was required or that the appropriate form had been submitted to the carrier on her behalf.

[48] Ms. Shumak-Dantowitz submitted that the letter referencing her sister's medical condition was sent to at least two different facsimile numbers given to her by Air Transat customer service representatives and that she made several telephone calls and sent e-mails; she questions why the form was not mentioned to her in all her communications with Air Transat personnel. However, there is no evidence on file to indicate that Ms. Tator's needs were clearly communicated to Air Transat prior to the date of travel. Ms. Shumak-Dantowitz's letter to Air Transat indicated only that her sister "requires medical Attention, oxygen and has an obstruction in her lung due to terminal cancer." The letter contained no further information regarding her sister's requirements, nor did it include a request for any specific type of assistance including particular seating arrangements.

[49] Both Ms. Shumak-Dantowitz and her sister are frequent travellers. In fact, Ms. Shumak-Dantowitz stated that she travelled as frequently as eight times per year and that her sister visited Florida annually. In this situation where a) the seat assigned to Ms. Tator was in row 40; b) Ms. Tator's respiratory condition was well known to Ms. Shumak-Dantowitz; and c) Ms. Shumak-Dantowitz travelled frequently, Ms. Tator and Ms. Shumak-Dantowitz each bore some responsibility for, at a minimum, questioning the assignment of a seat in row 40 which, by virtue of its high number, would not be close to the passenger cabin entrance. Only Ms. Shumak-Dantowitz and Ms. Tator would be in a position to determine whether that distance would be too taxing for Ms. Tator. There is no indication that either Ms. Tator or Ms. Shumak-Dantowitz advised Air Transat that a seat in row 40 could cause difficulties for Ms. Tator. Furthermore, there is no evidence that once on board Ms. Tator expressed any concerns to carrier personnel about the distance to her seat prior to, or while, making her way to it.

[50] The Agency recognizes that to Ms. Shumak-Dantowitz, Air Transat's choice of seats for her sister may have been inappropriate. On the other hand, the Agency accepts that Air Transat's seat assignment was not arbitrary and was based on an evaluation of the information the carrier had at the time of making that assignment. Air Transat explains that the seat in row 40 afforded numerous enhanced features for Ms. Tator as: a) it was close to the lavatories, thus requiring less physical exertion should Ms. Tator require their use during the flight; b) it provided more room for the storage of Ms. Tator's oxygen cylinders under the seats in front of her, as there were only two seats in the section of the row in question; and c) in row 40, Ms. Tator would be closer to the seats in row 43 where standby passengers are usually assigned seats and would therefore be close to her sister, which actually turned out to be the case.

[51] The Agency recognizes that the ideal accommodation for Ms. Tator would have been a seat close enough to the passenger cabin entrance to have minimized the amount of effort and energy required by Ms. Tator to reach her seat. However, as noted above, Air Transat had not been made aware of any issues Ms. Tator might have regarding the distance from the aircraft cabin entrance to the seat she had been assigned near the rear of the cabin, nor did Ms. Tator, at the time of the incident, raise any objections as to the location of her seat. The Agency therefore finds that Air Transat offered Ms. Tator the most appropriate accommodation that the situation required. In making the seat assignment, Air Transat a) respected Ms. Tator's dignity; b) reasonably deferred to her ability to verbalize her own requirements; c) met her needs (as itemized above) by providing the accommodation Air Transat felt was best for her; and d) promoted her independence by locating her close to the lavatories and to her sister during travel. Furthermore, Air Transat received no objection from Ms. Tator regarding the location of her seat either prior to or during boarding.

[52] The Agency therefore finds that the seat assigned to Ms. Tator did not constitute an undue obstacle to her mobility.

2. Was the level of assistance provided to Ms. Tator by Air Transat in the airports and on board the aircraft an undue obstacle to her mobility?

[53] In light of the Agency's finding that the level of assistance provided to Ms. Tator by Air Transat constituted an obstacle to her mobility, the Agency will now consider whether the obstacle is undue.

[54] As discussed in the preceding section concerning the first issue, the Agency accepts that Air Transat's objective to provide accessible transportation is rationally connected to the carrier's public function as an air transportation provider and that the carrier's related policies and procedures were adopted in good faith.

[55] The final question with respect to this issue, therefore, is whether Air Transat's standard of accessibility was reasonably necessary to accomplish its objective. Air Transat must show that it could not have provided Ms. Tator with the most appropriate accommodation that the situation required without incurring undue hardship.

[56] As discussed above, the exchange of clear and accurate accessibility related information during booking and on the day of travel by each party involved, including information regarding the carrier's policies and procedures and provision of an appropriate level of assistance during the boarding and deplaning of an aircraft, are important elements that are central to the transportation experience for persons with disabilities and integral parts of the federal transportation network.

[57] The Agency concludes from the evidence that there was a significant breakdown in communication between the parties which directly contributed to Ms. Tator's distress and emotional upset both at the airports and on her flight from Toronto to Fort Lauderdale.

[58] With respect to the issue of assistance at the Toronto airport, reasonable accommodation for Ms. Tator would have been a combination of a dialogue initiated by Air Transat with Ms. Tator to ensure she complied with Transport Canada's regulations concerning carry-on baggage as it related to her oxygen, and the offer of prompt assistance by Air Transat personnel at both the Toronto and the Fort Lauderdale airports to expedite Ms. Tator through customs and security with her oxygen cylinders. However, this was not the case, and it is clear to the Agency that such lack of service contributed significantly to Ms. Tator's discomfort and distress. The Agency therefore finds that Air Transat did not offer Ms. Tator the most appropriate accommodation that the situation required, and did not demonstrate that to have provided such accommodation would have caused it undue hardship.

[59] Regarding the level of assistance provided to Ms. Tator by Air Transat personnel on board the aircraft, the carrier did not contest Ms. Shumak-Dantowitz's statement that no assistance was provided to assist Ms. Tator with her oxygen once she had boarded the aircraft; in fact, Air Transat advises that the "cabin crews are not trained nor required under law to assist passengers with their own oxygen equipment or provide any chronic care assistance throughout the flight. They are trained to provide emergency oxygen from the aircraft's own equipment".

[60] Despite evidence suggesting that prior to the flight Air Transat personnel indicated that assistance would be provided, once on board Ms. Tator was advised by the flight crew that they could not help her. On the other hand, Ms. Shumak-Dantowitz did not provide details of the type of assistance that the flight attendants were requested or expected to provide and, as such, it is not clear that Air Transat personnel indicated that assistance with Ms. Tator's oxygen would be provided. Further, Air Transat pointed out that any indication that may have been made by its personnel that assistance would be provided by its cabin crew in administering chronic care oxygen was in error. As a result, Air Transat advised that it will deal with the matter internally and ensure that personnel are properly apprised of procedures with respect to the use of personal oxygen equipment on-board. Air Transat also apologized for the confusion that this may have created for Ms. Shumak-Dantowitz and her sister.

[61] With respect to the issue of assistance while boarding the aircraft, the Agency acknowledges that the ideal accommodation for Ms. Tator would have been for the flight crew to have carried her oxygen for her. Air Transat pointed out that its flight crews are neither trained nor prepared to offer assistance with administering a passenger's own oxygen. However, according to Ms. Shumak-Dantowitz it was not with the administration of the oxygen that Ms. Tator required assistance. She contended that the flight attendants should have assisted her sister to her seat and offered to carry the bags containing her oxygen. Despite being advised of Ms. Tator's situation prior to departure as reflected in the factors the carrier said it considered in assigning her a seat in row 40, and despite evidence indicating that prior to the flight Air Transat personnel indicated that assistance would be provided, Air Transat neither clearly communicated what assistance it would provide, nor did it provide any assistance to Ms. Tator with her oxygen while she was boarding. The Agency, therefore, finds that Air Transat did not offer to Ms. Tator the accommodation that the situation required, and further finds that Air Transat did not provide any evidence that to have provided Ms. Tator such accommodation would have caused it undue hardship.

[62] The Agency finds therefore that the lack of assistance to Ms. Tator at the Toronto and Fort Lauderdale airports and on the Toronto to Fort Lauderdale flight constituted an undue obstacle to Ms. Tator's mobility.

3. Was the lack of wheelchair assistance an undue obstacle to Ms. Tator's mobility?

[63] In light of the Agency's finding that the lack of wheelchair assistance was an obstacle to Ms. Tator's mobility, the Agency will now consider whether the obstacle is undue.

[64] As discussed in the preceding sections concerning the first and second issues, the Agency accepts that Air Transat's objective to provide accessible transportation is rationally connected to the carrier's public function as an air transportation provider and that the carrier's related policies and procedures were adopted in good faith.

[65] The final question with respect to this third issue, therefore, is whether Air Transat's standard of accessibility was reasonably necessary to accomplish its objective. To meet this requirement, Air Transat must show that it could not have accommodated Ms. Tator without incurring undue hardship.

[66] The Agency has long recognized the importance of services to persons with disabilities when travelling by air and, since 1994, air carriers providing domestic services have been required to provide uniform services to persons with disabilities. Part VII of the Air Transportation Regulations, SOR/88-58, as modified, (the ATR) sets out the terms and conditions of carriage of persons with disabilities and requires air carriers, if requested at least 48 hours in advance of travel, to provide services to persons with disabilities, which include providing assistance in proceeding to the boarding area. The ATR also require air carriers to make a reasonable effort to provide such services where they are requested less than 48 hours in advance of travel.

[67] While the Agency recognizes that these regulations are only applicable to domestic travel, the principles are equally applicable to international travel.

[68] The Agency recognizes that the request for wheelchair assistance at the Fort Lauderdale airport was made only during the flight from Toronto to Fort Lauderdale. However, the Agency also recognizes that, two days prior to travelling, Ms. Shumak-Dantowitz attempted to alert Air Transat that her sister had accessibility related needs. Additionally, as wheelchairs are normally available in airports, the provision of wheelchair assistance would not likely require a large amount of preparation time.

[69] While Air Transat agrees that the lack of wheelchair assistance is unacceptable, the carrier explains that such services at many destinations outside Canada are provided on behalf of Air Transat by contracted handling companies.

[70] The Agency recognizes that reasonable accommodation for Ms. Tator would have been for Air Transat to have a wheelchair waiting for Ms. Tator at the Fort Lauderdale airport; however, this was not the case, and the carrier acknowledges that this is unacceptable. The Agency finds that Air Transat did not offer Ms. Tator reasonable accommodation that the situation required and further finds that Air Transat did not demonstrate that to have done so would have caused it undue hardship.

[71] The Agency finds therefore that the lack of wheelchair assistance provided to Ms. Tator at the Fort Lauderdale airport constituted an undue obstacle to her mobility.

CONCLUSION

[72] The Agency has determined that, while the seat assignment provided to Ms. Tator on the Toronto to Fort Lauderdale flight constituted an obstacle to her mobility, the obstacle was not undue.

[73] The Agency finds that the level of assistance Air Transat provided to Ms. Tator in conveying her oxygen through security and with her oxygen on board the aircraft constituted an undue obstacle to her mobility. However, in light of Air Transat's assurances that the matter would be dealt with internally and that personnel would be properly apprised of the procedures with respect to the carrying and use of personal oxygen equipment, the Agency will not order corrective measures.

[74] Similarly, the Agency finds that the lack of wheelchair assistance provided to Ms. Tator at the Fort Lauderdale airport constituted an undue obstacle to her mobility. Air Transat submitted that companies who provide such services are bound contractually to ensure that Air Transat's service standards are respected in all cases. Air Transat stated that it has made the company that provided the service aware of the problems in this case, and that it will seek substantial improvements in service quality. The Agency accepts that Air Transat has taken the appropriate steps to seek improvements in the future; therefore, it will order no corrective measures.

Members

• Beaton Tulk
• Raymon J. Kaduck