Decision No. 16-AT-A-2020

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the CTA against WestJet regarding the availability of closed captioning content on its WestJet Connect In-flight Entertainment System (WestJet Connect IFE).

[2] The issue to be determined, as set out in Agency Decision No. LET-AT-A-55-2019 (Decision), is whether the applicant can identify any remaining obstacles or additional measures required to accommodate her disability-related needs, taking into account the Accessible Transportation for Persons with Disabilities Regulations (ATPDR).

[3] For the reasons set out below, the Agency finds that the obstacles faced by the applicant, which were identified by the Agency in Decision No. LET-AT-A-54-2018, will be addressed by the ATPDR such that no additional measures are required to accommodate her disability-related needs. While the complaint is well-founded, there is no need to order any relief given the new regulatory requirements. Therefore, the Agency finds that no further action is required in respect of the obstacles encountered by the applicant.

BACKGROUND

[4] The applicant travelled on WestJet flights on three different occasions in December 2016, and June and December 2017. On this last occasion, the applicant travelled on December 12, 2017, to Toronto, Ontario, from Winnipeg, Manitoba, and returned on December 18, 2017.

[5] During those three trips, the WestJet Connect IFE was available, but without the closed captioning functionalities.

[6] The applicant subsequently travelled with WestJet in May 2018. At that time, the closed captioning was available, but the content was much more limited than the regular offerings on WestJet Connect IFE.

[7] The applicant, who has a hearing impairment, asks that closed captioning content be made available to persons with hearing impairments.

[8] On August 13, 2018, the Agency issued Decision No. LET-AT-A-54-2018, in which the Agency found that the applicant is a person with a disability and that she encountered the following obstacles to her mobility:

- the absence of closed captioning on WestJet Connect IFE on three occasions (December 2016, and June and December 2017) and on the
  aircraft that did not offer WestJet Connect IFE, as well as the lack of closed captioning for all content on her May 2018 trip;

- WestJet’s failure to ensure that on-board announcements are communicated in a format that addresses the needs of passengers whose
   hearing impairment requires an alternative to audio format.

[9] In light of these findings, the Agency would have normally proceeded to the third step in its three-part approach to accessibility cases, that is, determining whether the obstacles encountered by the applicant are undue and, if so, ordering corrective measures to eliminate them. However, the Agency found it appropriate at that time to stay this proceeding as the Agency was developing new accessibility regulations that were expected to address the obstacles raised in the application. In the meantime, the Agency ordered WestJet to implement the following interim measures:

(a)  continue to expand its offering of closed captioned content so that its closed captioned in-flight entertainment content is comparable to
       that available to passengers that are not hearing impaired; and

(b)  ensure that all information is communicated in a manner that is able to be understood by passengers who are deaf and/or hard of
       hearing, including ensuring that all information that is provided to passengers in the onboard safety presentation in an audible format is
       also presented visually. Conventional print and video materials that convey transportation-related information are to be provided in
       alternate formats so that they may be accessible to other similarly placed passengers with hearing impairments.

[10] On July 10, 2019, the Agency published the new ATPDR in Part II of the Canada Gazette. In particular, sections 4, 57, 80, and 81 of the ATPDR address closed captioning and the accessibility of on-board announcements. The ATPDR will come into force on June 25, 2020.

[11] On August 15, 2019, the Agency issued the Decision, in which the Agency asked the applicant to provide additional submissions to identify which obstacles remained or what additional measures are required to accommodate her disability-related needs, taking into account the ATPDR.

[12] On September 13, 2019, the applicant filed a response to the Decision. WestJet did not reply to the applicant’s response.

THE LAW

[13] The application was filed pursuant to subsection 172(1) of the CTA, which, at the time the application was filed, 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.

[14] Sections 4, 57, 80, and 81 of the ATPDR provide that:

General information — alternative formats

4 (1) If a transportation service provider makes available to the public information about any transportation-related service or facility, the transportation service provider must ensure that

(a)  if the information is made available in an electronic format, the format is compatible with adaptive technology that is intended to
       assist persons with disabilities;

(b)  if the information is made available only in a paper format, it is made available, on request, in large print, in Braille or in an
       electronic format;

(c)  if the information is made available in an audio format, it is made available, on request, in a visual format; and

(d)  if the information is made available in a visual format, it is made available, on request, in an audio format.

Timing

(2) If a person with a disability makes a request referred to in any of paragraphs (1)(b) to (d), the transportation service provider must provide the information in the requested format as soon as feasible.

On-board announcements

57 A carrier must, on the request of a person with a disability, ensure that any public announcement that is made on board is made in an audio format or a visual format.

On-board entertainment system

80 An on-board entertainment system on an aircraft must be equipped to permit a person with a disability to

(a)  access entertainment content that offers closed captioning and audio description and that is the same entertainment content that
       is offered to the other passengers or, if that is not possible, that is comparable entertainment content; and

(b)  start, stop and pause the entertainment content, turn on and off the closed captioning and audio description, change the
       language of choice, control the volume and select channels

(i) through an interface that meets the requirements for an interface that are set out in Web Content Accessibility Guidelines, or

(ii)  if the interface has not been designed to be used with the on-board entertainment system, through a tactile template
       overlay affixed to the interface.

Pre-existing aircraft

81 (1) If a pre-existing aircraft referred to in subsection 66(4) has an on-board entertainment system that does not offer closed captioning and audio description, the aircraft must be equipped with personal electronic devices in a number that is sufficient to accommodate the number of persons with disabilities who have made a request for such a device.

Personal electronic devices

(2) The personal electronic devices must be pre-loaded with—or the aircraft must provide wireless streaming of—entertainment content that offers closed captioning and audio description and that is the same entertainment content that is offered to the other passengers or, if that is not possible, that is comparable entertainment content.

DID THE APPLICANT IDENTIFY ANY REMAINING OBSTACLES OR ADDITIONAL MEASURES REQUIRED TO ACCOMMODATE HER DISABILITY-RELATED NEEDS?

Position of the parties

[15] In her response to the Decision, the applicant indicates being concerned “that the ATPDR should address the obstacle that hearing impaired people face when they travel”. The applicant asks what would happen if someone with a hearing disability does not understand even a simple request such as ordering food or a beverage. The applicant also inquires as to whether the ATPDR only deal with visual/hearing impairments.

[16] WestJet did not file any reply to the applicant’s response.

Analysis and determinations

[17] The applicant was provided with an opportunity to identify which obstacles will remain or what additional measures will be required to accommodate her disability-related needs following the coming into force of the ATPDR. While the applicant raised questions in her response to the Decision, she did not provide any evidence or submissions to demonstrate that the relevant regulatory requirements contained in the ATPDR will not address the obstacles identified in Decision No. LET-AT-A-54-2018.

[18] The concerns raised by the applicant in the original application are clearly valid, which is supported by the fact that they are addressed in the ATPDR. Notwithstanding the important issues raised in the application, the Agency finds that the obstacles faced by the applicant will be addressed by the ATPDR such that no additional measures are required to accommodate her disability-related needs.

[19] Pending the coming into force of the ATPDR, the Agency encourages WestJet to continue to expand its offer of closed captioned content and ensure that all information is communicated in a manner that is able to be understood by passengers who are deaf and/or hard of hearing, as had been previously ordered in Decision No. LET‑AT‑A‑54‑2018.

CONCLUSION

In these circumstances, the Agency takes no further action and the file will be closed.