Decision No. 167-AT-A-2013

INTRODUCTION

[1] Wayne Nesbit (applicant) filed an application with the Canadian Transportation Agency (Agency) on behalf of Leslie Willer pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), against Air Transat A.T. Inc. carrying on business as Air Transat (Air Transat) regarding the following issues as they relate to Ms. Willer’s flights between London, England and Toronto, Ontario, Canada in July and August 2012:

1. Air Transat’s request for medical documentation as it relates to Ms. Willer’s seating assignments;
2. the seating Ms. Willer was assigned on her flight from London to Toronto;
3. Air Transat’s policy to not change the name on a ticket for a person with a disability’s attendant when the attendant is no longer able to travel and the person wishes to use the ticket for a replacement attendant;
4. the seating Ms. Willer was assigned on her flight from Toronto to London;
5. the level of wheelchair service at the London Gatwick Airport (Gatwick airport); and
6. the level of wheelchair service at the Toronto - Lester B. Pearson International airport (Toronto airport).

THE LAW

[2] When adjudicating an application pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:

1. the person who is the subject of the application has a disability for the purposes of the CTA;
2. an obstacle exists because the person was not provided with appropriate accommodation to address their disability-related needs. An obstacle is a rule, policy, practice, physical barrier, etc. that has the effect of denying equal access to services offered by the transportation service provider that are available to others; and,
3. the obstacle is “undue”. An obstacle is undue unless the transportation service provider demonstrates that there are constraints that make the removal of the obstacle either unreasonable, impracticable or impossible, such that to provide any form of accommodation would cause the transportation service provider undue hardship. If the obstacle is found to be undue, the Agency may order corrective measures necessary to remove the undue obstacle.

BACKGROUND

[3] The Agency issued the following final determinations in Decision No. LET-AT-A-14-2013 regarding two of the six aforementioned issues:

The seating Ms. Willer was assigned on her flight from Toronto to London

[4] The Agency found that Ms. Willer did not encounter an obstacle concerning the seating provided to her for her return flight from Canada to the United Kingdom as she received the accommodation she requested. The Agency dismissed the application in respect of this issue.

Medical documentation

[5] The Agency found that, in respect of Air Transat’s requirement that Ms. Willer provide medical documentation relating to her seating assignments, the applicant did not demonstrate that this requirement is unnecessary in order to ensure that Ms. Willer’s disability-related needs would be met. Accordingly, the Agency found that the applicant did not establish a prima facie case for the existence of an obstacle to Ms. Willer’s mobility. As the burden to establish a prima facie case lies with the applicant, and this was not met, the Agency dismissed the application in respect of this issue.

[6] The remaining four matters raised in the application – i.e., those concerning name changes on attendant tickets, seating on the outbound flight and wheelchair assistance at the Gatwick and Toronto airports - are addressed in this Decision.

ISSUES

[7] Did the following constitute undue obstacles to the mobility of Ms. Willer and, if so, what corrective measures should be ordered, if any?

1. Air Transat’s policy to not change the name on a ticket for a person with a disability’s attendant when it is determined that the attendant is no longer able to travel and the person wishes to use the ticket for a replacement attendant;
2. the seating Ms. Willer was assigned on her flight from London to Toronto;
3. the level of wheelchair service at the Gatwick airport; and
4. the level of wheelchair service Ms. Willer received at the Toronto airport.

ANALYSIS AND FINDINGS

[8] In determining whether there is an obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first establish whether the application was filed by, or on behalf of, a person with a disability. In this case, Ms. Willer has muscular dystrophy and requires wheelchair assistance as well as an attendant when travelling by air. As such, Ms. Willer is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

The Agency’s approach to determining an obstacle

[9] The Agency views an obstacle in the federal transportation network as being a rule, policy, practice, physical barrier, etc. which is either:

• direct, i.e., applies to a person with a disability; OR

• indirect, i.e., while the same for everyone, has the result of withholding a benefit from a person with a disability; AND

• denies a person with a disability equal access to services that are available to others such that accommodation is required from the service provider.

[10] A service or measure that is required to meet a person’s disability-related needs is referred to as “appropriate accommodation.” If it is determined that the person was provided with appropriate accommodation, it cannot be said that they have encountered an obstacle.

[11] Service providers have a duty to accommodate persons with disabilities. A person with a disability will face an obstacle to their mobility if they demonstrate that they need – and were not provided with – accommodation, thereby being denied equal access to services available to others in the federal transportation network.

[12] It is the applicant’s responsibility to provide sufficiently persuasive evidence to establish their need for accommodation and to prove that this need was not met. The standard of evidence which applies to this burden of proof is the balance of probabilities.

The Agency’s approach to determining whether an obstacle is undue

[13] An obstacle is undue unless the service provider can justify its existence. Once the Agency has determined that a person with a disability has encountered an obstacle, the service provider may either:

• provide the appropriate accommodation or offer an alternative that is equally responsive in meeting the disability-related needs of the person. In such a case, the Agency will determine what corrective measures are required to ensure that the appropriate accommodation is provided; or,
• justify the existence of the obstacle by demonstrating that it can neither provide the appropriate accommodation nor provide any other form of accommodation without incurring undue hardship. The burden of proof is on the service provider to demonstrate that providing the accommodation would result in undue hardship. If it fails to do so, the Agency will find that the obstacle is undue and order corrective measures to ensure that accommodation is provided.

[14] In situations where the service provider is of the view that it cannot provide the accommodation that is responsive to the needs of the person with a disability, it must justify the existence of the obstacle. The test that a service provider must meet in order to justify the existence of an obstacle consists of three elements. The service provider must demonstrate that:

1. the source of the obstacle is rationally connected to the provision of the transportation service;
2. the source of the obstacle was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; and,
3. it cannot provide any form of accommodation without incurring undue hardship

[15] It is the responsibility of the service provider to provide sufficiently persuasive evidence to establish on a balance of probabilities that the obstacle is justified (i.e., that to provide any form of accommodation would result in undue hardship).

[16] If a service provider meets this burden of proof, the Agency will find that the obstacle is not undue and will not order any corrective measures.

Did Air Transat’s policy to not change the name on a ticket for a person with a disability’s attendant when it is determined that the attendant is no longer able to travel and the person wishes to use the ticket for a replacement attendant, constitute an undue obstacle to Ms. Willer’s mobility?

Facts, evidence, and submissions

[17] Ms. Willer indicates that for air travel, she requires an attendant to assist with rising from her seat as well as “[...] to get off the toilet.” In order to complete her travel between England and Canada, Ms. Willer reduced fluid consumption because she did not have an attendant to assist her to the washroom.

[18] Tickets were purchased for Ms. Willer and an attendant through Canadian Affair, a tour operator, for travel with Air Transat. The applicant states that, ultimately, the attendant was not eligible for travel to Canada and, beginning approximately six weeks prior to travel, attempts were made through a dialogue with Canadian Affair to have the name on the attendant ticket changed free of charge. Canadian Affair indicated that this was not possible and offered to charge a lower amount for a ticket for the replacement attendant. Subsequent to these discussions with Canadian Affair, Air Transat was informed, approximately two weeks in advance of Ms. Willer’s travel, of the need for a name change on the ticket purchased for the original attendant. Air Transat was, based on its records, under the impression that Ms. Willer intended to travel alone, and therefore sought clarification on this point. When it was confirmed four days in advance of travel that Ms. Willer wished to travel with an attendant, Air Transat determined that a name change was possible. The determination was made four days prior to Ms. Willer’s travel. However, by this time, the replacement attendant was no longer available and Ms. Willer travelled alone.

[19] Air Transat states that it does not have a policy to disallow name changes on tickets for attendants. Air Transat also states that Canadian Affair has been advised to forward future requests for name changes on attendant tickets to Air Transat so that such requests can be accommodated. However, with respect to the difficulties encountered by Ms. Willer, Air Transat submits that the terms and conditions of the tickets purchased for Ms. Willer and her attendant were those of Canadian Affair with respect to refunds, changes, etc. Air Transat has since offered to reimburse the cost of the attendant ticket and the applicant has accepted.

Analysis and findings

[20] Air Transat suggests that the terms and conditions of the ticket and its sale are those of the wholesaler (tour operator) with respect to refunds, changes, etc. However, the Agency is aware that there is nothing to prevent a carrier from amending its tariffs (which contain a carrier’s terms and conditions of carriage) to allow attendant name changes, which would then require tour operators to allow flight tickets to be transferrable.

[21] Ms. Willer requires an attendant to provide assistance in the washroom when travelling by air. When it was determined that her original attendant was not able to accompany her to Canada, Ms. Willer needed to change the name on the ticket purchased for the attendant. As noted above, the applicant first approached Canadian Affair about changing the name on the attendant ticket approximately six weeks in advance of travel. The decision to allow a name change was not made until four days prior to travel. By that time, the attendant was no longer available and Ms. Willer had to travel alone and reduce her consumption of fluids in order to avoid having to use the onboard washroom. Accordingly, the Agency finds that the difficulties encountered by Ms. Willer in having the name changed on the ticket for her attendant constituted an obstacle to Ms. Willer’s mobility.

[22] Air Transat, in having shown that a name change on the attendant ticket was possible, demonstrated that it was not an undue hardship to meet this particular disability-related need for Ms. Willer. Moreover, Air Transat submits that it has advised Canadian Affair to forward future requests for name changes on attendant tickets to Air Transat so that such requests can be accommodated. As Air Transat has not demonstrated that allowing name changes on attendant tickets constitutes an undue hardship, the Agency finds that the obstacle in respect of the difficulties Ms. Willer encountered in having the name changed on the ticket intended for an attendant was undue.

Did the seating Ms. Willer was assigned on her flight from London to Toronto constitute an undue obstacle to her mobility?

Facts, evidence, and submissions

[23] With respect to Ms. Willer’s seating assignment, the applicant states that she required additional leg room to avoid having to traverse other passenger seats to access her own seat and to allow her to keep her legs straight. The applicant adds that Ms. Willer required a seat that reclines and one which would not require her to get up to permit other passengers to access the lavatory.

[24] Ms. Willer was initially assigned seat 5F. This seat was a middle bulkhead seat in the middle row. Four days prior to travel, the applicant requested a seating upgrade for Ms. Willer. Air Transat upgraded Ms. Willer’s seat to one in “option plus premium economy.” This resulted in Ms. Willer’s seat being reassigned to 6G, an aisle seat in the middle bank of seats in the second row in this class of service.

[25] Ms. Willer submits that, on the day of departure from London, she was advised upon check-in of the upgrade, and, upon hearing this, asked if she had a window seat as she “cannot walk through the aisle seats, you know the 3 seats.” The result of this conversation at check-in was that Ms. Willer was assigned another seat, 15K which was a window seat. Ms. Willer indicates that upon boarding the aircraft and discovering that seat 15K was a window seat, she elected to switch seats with another passenger.

[26] A submission from Air Transat, which it states was from its representative in Gatwick indicates that Ms. Willer’s seating assignment was changed to a window seat as Ms. Willer requested such a seat. The carrier submits that there was perhaps a misunderstanding between Ms. Willer and the check-in agent which resulted in the agent interpreting Ms. Willer’s efforts to clarify whether she had a window seat as an actual request for a window seat.

Analysis and findings

[27] To ensure that disability-related needs are met, it is incumbent on persons with disabilities or their representatives to make these needs known to the transportation service provider. However, there is no evidence in this case that Canadian Affair or Air Transat were made aware prior to travel, at check-in, or during Ms. Willer’s flight of her need for a reclining seat or a seat which would not require her to get up to permit other passengers to access the lavatory. Although the applicant appears to have expressed the need for additional leg room early on, the need for a reclining seat only appears to have been communicated to the carrier once Ms. Willer had already arrived in Canada. Ms. Willer’s need for a seat which would not require her to get up to permit other passengers to access the lavatory does not appear to have ever been communicated to the carrier. The Agency therefore finds that in respect of these two seat features, the applicant has failed to make a prima facie case for the existence of an obstacle regarding the seat assigned to Ms. Willer, or in respect of the seat Ms. Willer eventually elected to travel in when she switched seats with another passenger. This is not a finding as to wether Ms. Willer did or did not need these two seat features to meet her disability‑related needs.

[28] The following analysis addresses the seat assigned to Ms. Willer on the day of travel and the seat she ultimately occupied in terms of her need for additional leg room to avoid having to traverse other passenger seats to access her own seat and her need to keep her legs straight.

[29] Concerning the seat she was ultimately assigned, seat 15K, Ms. Willer states that to access the seat, she would have had to climb over two seats. Ms. Willer submits that she informed a flight attendant of this but was told to “hang on.” Ms. Willer did not wait and instead took it upon herself to address her concerns by accepting another passenger’s offer to change seats. Ms. Willer states that the seat she occupied had some room for her left leg but none for her right leg. There is no evidence, however, that Ms. Willer spoke with in-flight personnel to address the lack of space.

[30] The seat Ms. Willer was assigned on the day of travel and the steps leading up to that assignment appear to be the result of a lack of communication. Four days prior to travel, the applicant requested a seating upgrade on behalf of Ms. Willer. There is no evidence, however, that the applicant referred to any type of seating accommodation that Ms. Willer would require. In failing to mention seating accommodation, the applicant missed an opportunity to communicate Ms. Willer’s disability-related needs as they relate to seating. Similarly, when Ms. Willer was reassigned seat 15K during check-in, there again appears to have been a missed opportunity to fully communicate her disability-related needs in respect of seating. More specifically, there is no evidence that Ms. Willer questioned whether seat 15K provided additional leg room that would have allowed her to avoid having to traverse a seat row and to keep her legs straight.

[31] In light of the above, the Agency finds that the applicant’s claim that the carrier refused to provide seating accommodation to meet Ms. Willer’s disability-related needs is unfounded. In fact, the evidence shows that Canadian Affair and Air Transat took repeated steps in an effort to provide the seating for Ms. Willer that was requested. The evidence also shows that the applicant and Ms. Willer missed opportunities to fully communicate the type of seating that was appropriate for her disability-related needs. The ability of a carrier to meet the disability-related needs of a passenger is necessarily dependent on the clear and complete communication by a passenger or their representative of the disability-related needs. In this case, communication was lacking in terms of clear and full explanations of what was needed, follow-up to ensure that what was needed would be provided, and multiple and inconsistent requests coming from Ms. Willer and the applicant.

[32] In light of the above, the Agency finds that the applicant has failed to make a prima facie case for the existence of an obstacle in respect of the difficulties Ms. Willer encountered with the seat she was assigned for her travel from England to Canada.

Did the level of wheelchair service at the Gatwick airport constitute an undue obstacle to the mobility of Ms. Willer?

Facts, evidence, and submissions

[33] Ms. Willer submits that she had been promised wheelchair assistance at check-in at the Gatwick airport. She asserts that she was not provided with this and had to walk approximately 800 yards to get to the “handicapped help desk.” Air Transat submits that it communicated Ms. Willer’s need for wheelchair assistance to “London.” Air Transat presumes that the lengthy walk encountered by Ms. Willer was the distance from the terminal entrance to Air Transat’s check-in area as, according to Air Transat, it is a short distance to then go to the “special assistance help point.” According to Ms. Willer, she was advised at the Gatwick airport check-in that she would be “[...] given a wheelchair after security.”

Analysis and determinations

[34] In Decision No. LET-AT-A-14-2013, the Agency explained that it can only assert its jurisdiction over Air Transat’s involvement in the provision of wheelchair service at the Gatwick airport as it relates to the communication of Ms. Willer’s need for wheelchair assistance to the appropriate airport personnel. The Agency’s analysis of this issue in this Decision is therefore limited to the communication of Ms. Willer’s need for wheelchair assistance to the appropriate airport personnel.

[35] The Agency notes that if there were procedures Ms. Willer should have followed to receive wheelchair assistance at the Gatwick airport, they were not, based on the evidence on file, communicated to Ms. Willer by Canadian Affair, the tour operator that made arrangements for Ms. Willer’s travel from England to Canada. Moreover, it appears that neither Ms. Willer nor the applicant took it upon themselves to become informed of the procedures at the Gatwick airport for securing wheelchair assistance upon arriving at the terminal. Instead, the evidence shows that Canadian Affair only advised Ms. Willer that wheelchair assistance had been booked and would be available upon her arrival through to the aircraft and again when she landed at each airport.

[36] As noted above, the Agency’s jurisdiction over the provision of wheelchair assistance by a foreign airport authority is limited to the communication, by the carrier over whom the Agency has jurisdiction, of the need for wheelchair assistance to the appropriate airport personnel. Although it is preferable that the carrier make the request prior to the passenger presenting themselves at check-in in order to avoid delays, there is still an expectation that the carrier will make an effort to arrange wheelchair assistance even when a request is made on the day of travel.

[37] Ms. Willer presented herself at check-in on the day of travel and enquired about wheelchair assistance. Based on the description of events by Ms. Willer, there does not appear to have been an attempt by personnel at check-in to arrange for wheelchair assistance. Rather, Ms. Willer was informed that a wheelchair would be made available after she had passed through security. For its part, Air Transat does not dispute that Ms. Willer proceeded beyond check-in without having been provided wheelchair assistance and gave no indication that efforts were made to avoid her having to do so. Instead, Air Transat notes that “the special assistance help point” was only a short distance from check-in. Air Transat does not, however, indicate if efforts were made to inform the special assistance help point that there was a passenger requiring wheelchair assistance at check-in.

[38] Air Transat has not provided any indication that staff at check-in explained to Ms. Willer that the “special assistance help point” was only a short walk away, as opposed to on the other side of security, as Ms. Willer submits was explained to her. Accordingly, the Agency finds that Air Transat personnel did not attempt to contact the “special assistance help point” or arrange for wheelchair assistance for Ms. Willer from check-in onwards. In light of the above, the Agency finds that the level of wheelchair service at the Gatwick airport constituted an obstacle to Ms. Willer’s mobility. Air Transat did not provide any arguments why an attempt to contact the “special assistance help point” was either not made or could not have been made, nor did it provide arguments why arranging wheelchair assistance from check-in onwards was not possible. As Air Transat did not establish undue hardship, the Agency finds that the obstacle is undue.

Did the level of wheelchair service at the Toronto airport constitute an undue obstacle to the mobility of Ms. Willer?

Facts, evidence, and submissions

[39] The applicant submits that at the Toronto airport, after having arrived in Canada, Ms. Willer was found by the applicant’s wife at the baggage collection area as opposed to a meeting area he and Ms. Willer had previously agreed upon. Ms. Willer clarified that she was brought to the baggage claim area where she submits that she was advised by the individual providing wheelchair assistance that this area was as far as they were allowed to go. Ms. Willer submits that someone assisted her with retrieving her luggage before she proceeded on her own to the arrivals area.

[40] Air Transat points out that the contracted company providing wheelchair assistance at the Toronto airport typically provides wheelchair assistance to the general “meet and greet” area. Air Transat adds that the contracted company also provides curb-side service upon request but clarifies that it would have no knowledge of any discussions that took place on the day of travel between Ms. Willer and the agent providing wheelchair assistance. Air Transat suggests that Ms. Willer having been provided wheelchair assistance is proof that Air Transat made the request to the appropriate individuals at the Toronto airport.

Analysis and findings

[41] With respect to the issue of wheelchair assistance at the Toronto Airport, Air Transat states that this service is provided through a third-party Airport Customer Assistance Program (ACAP), not the carrier. The Agency is of the opinion that, in such cases, the carrier’s responsibility with respect to wheelchair assistance is to communicate the need for wheelchair assistance to the appropriate ACAP personnel.

[42] Air Transat’s argument that the fact that Ms. Willer received wheelchair assistance proves that it made the request to the appropriate ACAP personnel is compelling. The Agency therefore finds that Air Transat, on a balance of probabilities, fulfilled its obligations in respect of communicating Ms. Willer’s need for wheelchair assistance to ACAP personnel at the Toronto airport. Accordingly, the Agency finds that the difficulties Ms. Willer encountered in respect of wheelchair assistance at the Toronto airport were not due to Air Transat and therefore contemplates no further action against the carrier.

CONCLUSION

[43] Regarding the issues raised by the applicant, the Agency finds that:

1. The difficulties Ms. Willer encountered in having the name changed on the ticket intended for her attendant when the attendant was no longer able to travel and Ms. Willer wanted to use the ticket for a replacement attendant, constituted an undue obstacle to her mobility.
2. The applicant has failed to make a prima facie case for the existence of an obstacle as it relates to the seating Ms. Willer was assigned for her travel from England to Canada.
3. In respect of wheelchair assistance at the Gatwick airport, Ms. Willer encountered an undue obstacle to her mobility.
4. The difficulties Ms. Willer encountered in respect of wheelchair assistance at the Toronto airport were not due to Air Transat and therefore contemplates no action against Air Transat.

ORDER

[44] In light of the above undue obstacle findings, the Agency requires Air Transat to undertake the following corrective measures within 30 days from the date of this Decision:

1. Implement a formal policy, that applies to all tickets sold by or on behalf of Air Transat, that permits, without charge, an attendant name change with respect to a passenger who is a person with a disability requiring an attendant, when such a request is made in advance of travel from the original point of origin;
2. File a copy of the above-noted policy with the Agency;
3. Reimburse the applicant for the cost of the unused attendant ticket, if the carrier has not already done so; and
4. Issue a bulletin to Air Transat personnel reminding them that in all situations where wheelchair assistance is provided by a third party, if a passenger with a disability presents themselves at check-in and requests wheelchair assistance, personnel are to communicate the need for the assistance to the appropriate personnel of the third party. Further, Air Transat is to file a copy of the bulletin with the Agency.