Decision No. 184-AT-A-2011

May 17, 2011

APPLICATION by Jennifer Nolan, on behalf of Taya Nolan, against Thomas Cook Airlines Limited.

File No. U3570/10-23

---

INTRODUCTION

[1] Jennifer Nolan filed an application on behalf of her daughter, Taya Nolan, with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), against Thomas Cook Airlines Limited (Thomas Cook), regarding the unavailability of Taya's mobility aid, a stroller, at the arrival gates upon arrival in Manchester, United Kingdom and Calgary, Alberta, Canada, as well as the communication of Thomas Cook's policy related to the provision of a person's mobility aid and wheelchair assistance at the arrival gates.

[2] Mrs. Nolan, her husband and their two children travelled with Thomas Cook from Calgary to Manchester on May 2, 2010 (the outbound flight) and returned from Glasgow, United Kingdom, to Calgary on May 19, 2010 (the inbound flight). The Nolans booked their flights through Canadian Affair, a tour operator. Taya, who was two years old at the time of travel, uses a stroller as a mobility aid due to her inability to walk caused by the chromosomal disorder Trisomy 9, which has resulted in generalized hypotonia, hyperextensibility which required foot and ankle splinting, and an extreme delay of gross motor skills. The Nolans expected that the stroller, which was carried in the cargo hold, would be returned to them at the arrival gates of the outbound and inbound flights.

[3] The Nolans were denied access to Taya's stroller at the arrival gate in Manchester and were told by carrier personnel that it would be delivered to the baggage reclaim area as per Thomas Cook's policy. In Calgary, after initially being told that Taya's stroller could not be brought to the arrival gate, a Thomas Cook employee eventually delivered it to the Nolans at the gate.

ISSUES

[4] Did the unavailability of Taya Nolan's stroller and of wheelchair assistance upon arrival at the Manchester and Calgary airports constitute undue obstacles to her mobility?

[5] Did the communication of information regarding Thomas Cook's policy related to the provision of a person's mobility aid and wheelchair assistance at the arrival gates constitute an undue obstacle to the mobility of Taya Nolan?

THE LAW

[6] The Agency's legislative mandate with respect to persons with disabilities is found in Part V of the CTA, which contains a regulation-making authority [subsection 170(1)] and a complaint adjudication authority [subsection 172(1)], both for the express purpose of removing undue obstacles to the mobility of persons with disabilities from the federal transportation network. The scope of the Agency's jurisdiction to eliminate undue obstacles by both regulation and adjudication is partly defined by an inclusive list of matters contained in subsection 170(1), which is incorporated by reference in subsection 172(1).

[7] The Supreme Court of Canada, in Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SCC 15, provided significant direction to the Agency on the execution of this mandate. In particular, the Supreme Court clarified that 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 by demonstrating that reasonable accommodation has been provided, meaning up to the point of undue hardship.

THE POSITIONS OF THE PARTIES AND THE AGENCY'S FINDINGS OF FACT

Thomas Cook's policy and procedures regarding the carriage of personal mobility aids

[8] Thomas Cook submits that it is not always possible to store strollers, wheelchairs and other mobility aids in the aircraft cabin. The carrier explains that once mobility aids are unloaded from the hold, they are normally sent to the baggage reclaim areas for collection by the passenger because this enables much quicker delivery of the items. Thomas Cook submits that in the past, unloading mobility aids from the hold to the arrival gates has resulted in lengthy delays for passengers and that this is not always possible to do as procedures vary from airport to airport.

[9] Thomas Cook states that to avoid confusion, it has the same baggage collection policy regardless of the arrival location.

[10] According to Thomas Cook, it asks passengers who may need help when travelling to contact it no later than 48 hours before departure to allow it to make the necessary arrangements for passengers with reduced mobility. It states that without advance notification, it is obliged by law to make all reasonable efforts to provide assistance and to ensure that passengers with reduced mobility are able to take their flights as planned.

Booking process

Positions of the parties

[11] Mrs. Nolan states that, at the time of booking, she could not find information regarding special needs, mobility issues or travelling with a mobility device on either the Thomas Cook Web site or the Canadian Affair Web site. Mrs. Nolan submits that these Web sites do not state that strollers and mobility aids will not be delivered to customers until the baggage reclaim area.

[12] Thomas Cook indicates that it notifies passengers on its Web site, under the section "Before You Go/Special Assistance" that wheelchairs are stored in the hold and collected in the baggage reclaim areas. In addition, it notes that the "Special Assistance" section of its Web site asks passengers who may need help when travelling to contact the carrier no later than 48 hours before departure.

[13] Thomas Cook states that its Special Assistance team is able to answer queries from passengers who are concerned about their journey and that the phone number for this team is published on its Web site. The carrier adds that had Mrs. Nolan contacted its Special Assistance team, it is confident that it would have been able to provide Mrs. Nolan's daughter with a mobility aid, such as a wheelchair, between the gate and the aircraft, and between the aircraft and the baggage reclaim area.

[14] In response, Mrs. Nolan submits that the carrier's Canadian Web site has no information regarding passengers with disabilities, no mention of a "Special Assistance Team" and no phone number. Mrs. Nolan submits that while the carrier's UK Web site contains information about a "Special Assistance team" and provides a phone number, when she tried to call the number she found out that it cannot be reached from Canada. Mrs. Nolan states that with no other number provided, her only other option was to contact Canadian Affair.

[15] Mrs. Nolan submits that when she made their reservation via telephone with Canadian Affair, she informed it that her child requires a mobility aid. She adds that she informed the tour operator that her daughter is "mobility-impaired as a result of disability" and asked if they could receive their mobility aid at the arrival gate in Manchester. Mrs. Nolan submits that she was assured by the Canadian Affair agent that they would have full access to Taya's mobility aid and, as such, Mrs. Nolan did not request special assistance from the carrier.

[16] Thomas Cook states that it was not made aware in advance of the Nolans' travel that Taya Nolan would need assistance at the airport. It states that it has been informed by Canadian Affair that "there was mention that her child has special needs but not any particular mobility issues."

[17] Thomas Cook explains that the passenger reservation record is maintained by Canadian Affair and that it receives information electronically from Canadian Affair, which is then uploaded into a system called \Paxport\ in preparation for the flight. The Paxport record for the Nolans' roundtrip shows three special service requests (SSR) codes for Taya, i.e. a child's meal (CHML), group seating (GPST) and the code TKNE, which denotes an Internet booking. Thomas Cook submits that this Paxport record confirms that it was not informed of any special service requests regarding Taya's mobility needs. Thomas Cook also notes that there is no record that Mrs. Nolan contacted the carrier separately to discuss the options available to her and her daughter before the flight.

[18] Thomas Cook indicates that its General Operating Manual is to be updated to include instructions for all contracted baggage handlers to only deliver checked baggage to the baggage reclaim area. It also states that an updated version of the Thomas Cook Web site will be available shortly and will display information regarding its baggage delivery policy under its conditions of contract. Thomas Cook advises that it will provide copies of its updated baggage policy to both Canadian Affair and Air Transat Holidays so that they may consider sharing this information with their customers.

[19] However, Thomas Cook submits that as Canadian Affair is independent of Thomas Cook, it cannot guarantee that Canadian Affair will make this information available to its customers. Thomas Cook apologizes for any erroneous information given to Mrs. Nolan both at the airport and "throughout the course of the claim."

Findings of fact

[20] The Paxport record indicates that Canadian Affair provided passenger details and additional notes about Taya Nolan's meals and seating requests to Thomas Cook, which would have been provided by Mrs. Nolan to the tour operator. While this appears to be consistent with Thomas Cook's statement that there was mention to Canadian Affair of Taya's special needs, the parties disagree on whether Mrs. Nolan communicated Taya's mobility-related needs in advance of travel.

[21] It is clear that Mrs. Nolan did not specifically request wheelchair assistance, which she asserts is due to the assurance she received from Canadian Affair that Taya's stroller would be available at the arrival gates. At question is whether Mrs. Nolan conveyed the request to Canadian Affair that Taya's mobility aid be delivered to the arrival gates for her use through the airports; whether Mrs. Nolan was provided with complete and accurate information from Canadian Affair about Thomas Cook's policy in this regard; and, whether the carrier was advised in advance of travel of Mrs. Nolan's request that Taya's stroller be delivered to the arrival gates.

[22] The evidence shows that Mrs. Nolan made requests to address Taya's needs regarding seating and meals and that these requests were transmitted by Canadian Affair to Thomas Cook. Notwithstanding that the Paxport does not note any mobility-related services for Taya, the Agency is of the opinion that it is unlikely that Mrs. Nolan would not have made inquiries about the delivery of Taya's stroller to the arrival gates but would have discussed seating and meal requirements for her daughter, given the importance of ensuring that Taya would have a mobility aid to get through the airports. The Agency therefore finds, on a balance of probabilities, that Mrs. Nolan did advise Canadian Affair in advance of travel of Taya's need to have her stroller brought to the arrival gates.

[23] However, the list of services identified on the Nolans' Paxport record, which was uploaded from information provided electronically by Canadian Affair, does not show that this requested service was transmitted to Thomas Cook by Canadian Affair. As such, the Agency finds that Thomas Cook was not informed by Canadian Affair in advance of the Nolans' travel of Taya's need for her stroller to be delivered to the arrival gates.

[24] In light of the above and given Mrs. Nolan's statement that she would have made alternate arrangements if she had been informed of Thomas Cook's policy of not delivering mobility aids to the arrival gates, the Agency accepts, on a balance of probabilities, that Mrs. Nolan was not provided with complete and accurate information about Thomas Cook's policy. The Agency also accepts that Mrs. Nolan was not informed that wheelchair assistance could have been arranged to ensure that Taya would have a mobility aid at the arrival gates.

Services upon arrival at the Manchester and Calgary airports

Positions of the parties

[25] Mrs. Nolan states that she informed Thomas Cook's check-in agents at the Calgary and Glasgow airports that they were travelling with a child with a disability and a mobility aid. Mrs. Nolan also indicates that she requested and received assurances at both airport check-in counters that Taya's stroller would be made available at the gates upon landing. Mrs. Nolan adds that the check-in agent in Glasgow repeatedly provided the same assurance even after she explained what had transpired upon arrival in Manchester. Mrs. Nolan submits that had they been informed that Taya's mobility aid would not be provided until the baggage reclaim areas, they would have requested additional assistance from Thomas Cook.

i) Calgary-Manchester

[26] Mrs. Nolan submits that upon landing in Manchester and discovering that Taya's stroller had not been delivered to the arrival gate, she was informed by Thomas Cook's arrival gate agent that Taya's stroller would be available at the baggage reclaim area. Mrs. Nolan states that this was upsetting as they had not requested a wheelchair nor made arrangements for other assistance, believing that they would be given Taya's mobility aid at the arrival gate. She adds that she informed the Thomas Cook employee of the reason for Taya's need for her stroller and that they had been assured that it would be provided at the gate upon deplaning. Mrs. Nolan states that the employee advised her that it was "airline policy" and offered no further information or assistance.

[27] Mrs. Nolan explains that, as a result, they carried Taya until they were able to find an available wheelchair in the customs area.

ii) Glasgow-Calgary

[28] Mrs. Nolan states that upon arrival in Calgary, she enquired about Taya's stroller with a Thomas Cook employee, who advised her that Taya's stroller could be retrieved from the baggage area.

[29] Mrs. Nolan further states that after she became visibly upset, the Thomas Cook employee returned with the stroller a short time later, explaining that a baggage handler was able to get it from the aircraft. Mrs. Nolan submits that the employee blamed the Nolans for the fact that the stroller was not waiting for them at the gate because it did not have a "gate check tag", which Mrs. Nolan suggests was the responsibility of the Thomas Cook employees at the Glasgow airport.

[30] Thomas Cook states that it is pleased that in Calgary, a Thomas Cook employee was able to locate the stroller from the hold for Mrs. Nolan. In response, Mrs. Nolan submits that the employee took this action only because she had become visibly upset after being told that Taya's mobility aid would not be provided.

[31] Thomas Cook submits that the collection of mobility aids from the baggage reclaim areas does not constitute an undue obstacle to passengers with reduced mobility as it makes arrangements to ensure that an airport mobility aid is made available until the person is in possession of their own aid, subject to the carrier receiving prior notice that the person requires assistance.

Findings of fact

[32] The evidence shows that, even after travel began, Thomas Cook's Paxport record for the Nolans was not amended to reflect Taya's need for her stroller at the arrival gates, notwithstanding the multiple discussions with carrier personnel at the check-in or arrival points. Thomas Cook does not dispute Mrs. Nolan's assertions that she discussed with its personnel Taya's disability and her need for her stroller to be delivered to the gates, nor that she was misinformed by Thomas Cook check-in and arrival gate agents of its policy regarding delivery of personal mobility aids to the arrival gates and of providing wheelchair assistance to its passengers.

[33] On a balance of probabilities, the Agency finds that check-in agents at the Calgary and Glasgow airports assured Mrs. Nolan that they would receive Taya's mobility aid at the arrival gates upon arrival in Manchester and Calgary. The arrival agents informed the Nolans that Taya's mobility aid would be delivered to the baggage reclaim areas of the Manchester and Calgary airports; however, the Agency finds that none of Thomas Cook's arrival gate or check-in agents informed the Nolans of the wheelchair assistance that could have been arranged.

[34] The Agency finds that Mrs. Nolan was misinformed by Thomas Cook's check-in agents at the Calgary and Glasgow airports regarding Thomas Cook's policy to deliver personal mobility aids to the arrival gates. The Agency also finds that Thomas Cook's check-in and arrival gate agents failed to advise Mrs. Nolan about its policy to provide wheelchair assistance to passengers with reduced mobility.

ANALYSIS AND FINDINGS

[35] An application under section 172 of the CTA must be filed by a person with a disability or on behalf of a person with a disability. In this case, Taya Nolan is unable to walk due to Trisomy 9 and, as such, relies on a stroller as her mobility aid. The Agency therefore finds that Taya Nolan is a person with a disability.

The Agency's approach to the determination of obstacles

Determination of the appropriate accommodation

[36] In making a determination as to whether an individual encountered an obstacle to their mobility, it must be determined whether their disability-related needs were met. To determine whether an individual's disability-related needs were met, the Agency must first establish what services or measures are required to meet their disability-related needs, thereby providing the person with equal access. The services or measures responsive to a person's disability-related needs are referred to as "appropriate accommodation". However, this is not necessarily the accommodation that the individual may prefer. Moreover, sometimes the accommodation sought by an applicant exceeds the transportation service provider's duty to accommodate.

[37] The determination of what is the "appropriate accommodation" is made by the Agency, and is separate and distinct from whether the accommodation would result in "undue hardship" for the transportation service provider. In determining what constitutes the appropriate accommodation, the Agency's principal test is that of effectiveness.

[38] The service provider will meet its duty to accommodate if the accommodation provided results in an opportunity for the person with a disability to obtain the same level of transportation services and privileges experienced by others in the federal transportation network. In assessing whether the appropriate accommodation has been provided based on the facts of the case before it, the Agency does not consider the ability of the service provider to provide accommodation. Any constraints which may affect the service provider's ability to provide the service will only be assessed at the undueness stage, which only arises if the Agency finds that an individual encountered an obstacle.

[39] In considering whether 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.

[40] If it is determined by the Agency that the transportation service provider offered or provided the appropriate accommodation that the situation required, the Agency will find that the person with a disability did not face an obstacle to their mobility.

The case at hand

[41] In the case at hand, Taya Nolan cannot walk and so needs a mobility aid. While Mrs. Nolan had requested that Taya's stroller be provided for this purpose, Thomas Cook failed to provide Taya's stroller at the arrival gate in Manchester. A wheelchair that the Nolans found in the customs area was ultimately used as a substitute mobility aid. The Agency therefore finds that while the stroller might be Taya's preferred means of accommodation, a wheelchair is equally responsive in meeting Taya's disability-related mobility needs.

[42] Integral to meeting Taya's mobility-related needs during travel is having complete and accurate information regarding a carrier's terms and conditions related to the transportation of persons with disabilities' mobility aids. To meet this end, such information needs to be made available to the public by reservation/booking agents, carriers' Web sites and airport agents.

[43] In light of the above, the Agency finds that the appropriate accommodation required to meet Taya's disability-related needs is a mobility aid, i.e. her stroller or wheelchair assistance, upon deplaning, and the provision of complete and accurate information concerning a carrier's policy relating to the availability of a person's mobility aid and wheelchair assistance at the arrival gates.

Determination of obstacle: Unavailability of Taya Nolan's stroller or wheelchair assistance upon arrival

Manchester airport

[44] While Mrs. Nolan conveyed Taya's need for her stroller upon arrival in Manchester to Thomas Cook employees at the check-in counter in Calgary and at the arrival gate in Manchester, not only was Taya not provided with her stroller, but no offer was made for alternate wheelchair assistance.

[45] Taya was therefore not provided with the appropriate accommodation at the Manchester arrival gate, such that the Agency finds that the unavailability of Taya Nolan's stroller and of wheelchair assistance upon arrival at the Manchester airport constituted an obstacle to her mobility.

Calgary airport

[46] Although it would have been desirable for Mrs. Nolan to have verified prior to the departure of the inbound flight whether it would be possible to have Taya's stroller brought to the arrival gate in Calgary, Thomas Cook had been made aware previously of Taya's need for a mobility aid when the Nolans checked in for the outbound flight and again upon arrival in Manchester. While Thomas Cook could have noted this need in the Nolans' Paxport record, or otherwise, it did not, resulting in neither Taya's stroller nor wheelchair assistance being provided upon the Nolans' arrival in Calgary.

[47] At the Glasgow airport, Mrs. Nolan once again informed Thomas Cook's check-in personnel of Taya's need for her mobility aid at the arrival gate. The check-in agent provided the same assurance that Taya's mobility device would be at the gate upon arrival in Calgary, even after Mrs. Nolan explained what had transpired upon arrival in Manchester.

[48] The Nolans waited some time at the arrival gate in Calgary until a Thomas Cook employee arrived. The Thomas Cook employee initially advised them that Taya's stroller would be delivered to the baggage area and did not offer alternative wheelchair assistance. Ultimately, however, the employee had a baggage handler retrieve the stroller from the aircraft and then brought it to the arrival gate for Taya's use, after Mrs. Nolan became upset.

[49] While Taya's stroller was eventually produced, it was done after Mrs. Nolan became upset and after a delay, with no certainty that it would be provided and no offer of a wheelchair to address the situation. Therefore, the Agency finds that the initial unavailability of Taya Nolan's stroller and the failure to provide wheelchair assistance as an alternative upon arrival at the Calgary airport both constituted an obstacle to her mobility.

Determination of obstacle: Communication of Thomas Cook's policy

[50] As Thomas Cook's Web site has been or is in the process of being updated, it is not possible to determine what aspects of the carrier's policy regarding the availability of passengers' mobility aids and wheelchair assistance may have been posted at the time of the incident and whether the Web site contained accurate or complete information. Therefore, the Agency will restrict its findings to the information provided to Mrs. Nolan.

[51] During the booking process and at every stage of the Nolans' travel, Mrs. Nolan received incomplete or inaccurate information regarding Thomas Cook's policy. Canadian Affair at the time of booking and Thomas Cook's check-in agents at the Calgary and Glasgow airports assured Mrs. Nolan that it was possible to make Taya's mobility aid available upon arrival, despite this being contrary to the carrier's policy.

[52] Additionally, although the Thomas Cook employees at the Manchester and Calgary arrival gates informed Mrs. Nolan that Taya's mobility aid could not be brought to the gates in accordance with the carrier's policy, the employees offered no information about wheelchair assistance as an alternative to Taya's stroller. This is contrary to Thomas Cook's policy which requires it to make all reasonable efforts to provide assistance in situations where it has not been advised prior to travel of a person's needs.

[53] As Mrs. Nolan points out, when a service provider does not disclose information, a person cannot plan properly. Had they known that Taya's stroller would not be available upon arrival, the Nolans would have requested appropriate assistance.

[54] Mrs. Nolan was never provided with complete and accurate information concerning Thomas Cook's policy regarding the availability of a person's mobility aid and the provision of alternative wheelchair assistance at the arrival gates. Consequently, Taya was not provided the appropriate accommodation in terms of the communication of Thomas Cook's policy.

[55] The Agency therefore finds that the communication of information regarding Thomas Cook's policy related to the provision of a person's mobility aid and wheelchair assistance at the arrival gates constituted an obstacle to the mobility of Taya Nolan.

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

[56] Once the applicant has established the existence of an obstacle to the mobility of a person with a disability in the federal transportation network, the burden of proof 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 it meets the following three-part test:

1. 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;
2. the source of the obstacle was adopted by the transportation service provider with an honest and good faith belief that it was necessary to the fulfillment of that legitimate objective; and
3. the source of the obstacle 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.

[57] To justify the existence of an obstacle, the transportation service provider must show that reasonable accommodation has been provided. 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.

[58] Reasonable accommodation will be the accommodation 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, while not causing undue hardship to the transportation service provider.

[59] 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 impossible.

[60] 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.

Undueness of obstacle: Mobility aid in Manchester and Calgary

[61] Taya's need for her mobility aid upon deplaning was not conveyed by Canadian Affair to Thomas Cook in advance of travel. While recognizing that it might be difficult on the day of travel to make arrangements for certain services to be provided to persons with disabilities, Thomas Cook's policy stipulates that reasonable efforts will be made in situations where less than 48 hours of notice is provided.

[62] Thomas Cook provides no evidence that any constraints existed on the days of travel that made it unreasonable, impracticable or impossible for its employees to ensure that Taya would be promptly provided a mobility aid, either in the form of her own stroller or a wheelchair. While Thomas Cook's arrival gate agent at the Calgary airport eventually had Taya's mobility aid delivered to the arrival gate, there is no evidence that Thomas Cook could not have done so without delay upon the Nolans' arrival.

[63] The Agency finds that Thomas Cook has not demonstrated that to have provided appropriate accommodation in this case would have caused undue hardship such that its failure to provide Taya Nolan's stroller or wheelchair assistance upon arrival at the Manchester and Calgary airports constituted undue obstacles to her mobility.

Undueness of obstacle: Communication of Thomas Cook's policy

[64] Mrs. Nolan informed the tour operator at the time of booking and Thomas Cook at both check-in points and arrival gates of Taya's inability to walk and the need to have her mobility aid delivered to the arrival gates. Despite these efforts, there were breakdowns in communication that resulted in Taya's disability-related needs not being met. While booking her travel, Mrs. Nolan did not receive complete and accurate information regarding Thomas Cook's policy to deliver personal mobility aids to the baggage reclaim areas and to arrange for an airport wheelchair until a passenger is in possession of their own mobility aid. Had she been informed completely and accurately of this policy, she could have made arrangements for wheelchair assistance and Taya would not have encountered obstacles to her mobility.

[65] Furthermore, Mrs. Nolan was not properly informed by Thomas Cook's check-in and arrival gate agents of Thomas Cook's policy relating to the delivery of personal mobility aids to the baggage areas and the availability of wheelchair assistance at the arrival gates. However, Thomas Cook provided no evidence that any constraints existed on the days of travel that made it unreasonable, impracticable or impossible for its employees to accurately and fully inform the Nolans of the carrier's policy.

[66] Thomas Cook indicates that the next update of its General Operating Manual will include instructions that contracted baggage handling agents are to only deliver checked baggage to the baggage reclaim areas. Thomas Cook also advises that its Web site will reflect its updated baggage policy under its conditions of contract. Additionally, Thomas Cook states that it plans to forward copies of its updated policy to Canadian Affair and Air Transat Holidays so that they are in a position to share this information with their customers.

[67] The Agency finds that Thomas Cook has not provided sufficient evidence to explain why Canadian Affair and its own personnel could not have properly communicated Thomas Cook's policy as it relates to the delivery of personal mobility aids to the baggage areas and the provision of wheelchair assistance at the arrival gate, although the miscommunication of the policy appears to be the result of a lack of information from Thomas Cook to Canadian Affair and its check-in and arrival gate agents.

[68] The Agency finds that Thomas Cook has not demonstrated that to have provided the appropriate accommodation in terms of the communication of its policy in this case would have caused undue hardship.

[69] Therefore, the Agency finds that the communication of information regarding Thomas Cook's policy relating to the availability of a person's mobility aid and wheelchair assistance at the arrival gates constituted an undue obstacle to the mobility of Taya Nolan.

CONCLUSION

[70] The Agency finds that the unavailability of Taya Nolan's stroller and wheelchair assistance upon arrival at the Manchester airport constituted an undue obstacle to Taya's mobility. Similarly, the Agency finds that the delay in providing Taya Nolan's stroller and not offering wheelchair assistance upon arrival at the Calgary airport constituted an undue obstacle to Taya's mobility.

[71] The Agency also finds that Thomas Cook's failure to completely and accurately inform the Nolans of its policy relating to the provision of a person's mobility aid and wheelchair assistance at the arrival gates constituted an undue obstacle to Taya Nolan's mobility.

ORDER

[72] The Agency requires Thomas Cook to undertake the following corrective measures within 30 days from the date of receipt of this Decision:

• File a copy with the Agency of its policy, as it relates to travel to/from Canada, regarding the delivery of personal mobility aids and the provision of wheelchair assistance at the arrival gates that is available for reference by the carrier's check-in and arrival gate agents and by Canadian Affair and other tour operators with whom Thomas Cook conducts business.
• Send a communiqué to the carrier's check-in and arrival gate agents and to Canadian Affair and other tour operators with whom Thomas Cook conducts business to remind them of the importance of properly communicating its policy, as it relates to travel to/from Canada, regarding the delivery of personal mobility aids and the provision of wheelchair assistance at arrival. This communiqué will refer to the incidents, without naming the Nolans.
• Incorporate the incidents experienced by the Nolans, without naming them, in its personnel training program for check-in and arrival gate agents.

Members

• Jean-Denis Pelletier, P. Eng.
• J. Mark MacKeigan