Decision No. 194-AT-A-2007

April 20, 2007

File No. U3570/06-22

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APPLICATION

[1] On July 13, 2006, Ben Abdellah filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] In Decision No. LET-AT-A-222-2006 dated August 11, 2006, the Agency directed Air Transat A.T. Inc. carrying on business as Air Transat (hereinafter Air Transat), Robert Q Airbus (hereinafter Robert Q) and the Greater Toronto Airports Authority (hereinafter the GTAA) to provide their answers to the application, including copies of any relevant documentation.

[3] In Decision No. LET-AT-A-220-2006 dated August 11, 2006, the Agency required CTH Travel to provide information to assist the Agency in its investigation of the application.

[4] The Agency informed Carecor Health Services Ltd. (hereinafter Carecor), in Decision No. LET-AT-A-221-2006 dated August 11, 2006, that the Agency's jurisdiction over it was being considered and, in this regard, the Agency requested the GTAA to file a copy of any contract it may have involving Carecor service at the Toronto - Lester B. Pearson International Airport (hereinafter the Toronto airport). Carecor was also required to provide information to assist the Agency in its investigation of the application.

[5] Further submissions were filed by Mr. Abdellah, in addition to submissions by Air Transat, Robert Q, the GTAA, Carecor and CTH Travel to assist the Agency in its investigation of the application.

[6] Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until April 20, 2007.

PRELIMINARY MATTERS

Late filing

[7] Although Mr. Abdellah filed comments after the prescribed deadline, the Agency, pursuant to section 5 of the Canadian Transportation Agency General Rules, SOR/2005-35 (hereinafter the General Rules), accepts the submission as being relevant and necessary to its consideration of this matter. Additionally, although a submission by Robert Q was filed outside of pleadings, the Agency, pursuant to section 4 of the General Rules, accepts the submission as being relevant and necessary to its consideration of the matter.

Jurisdiction

[8] In Decision No. LET-AT-A-221-2006 dated August 11, 2006, the Agency noted that its jurisdiction over Carecor, a local health care provider, was being considered as Mr. Abdellah's application raised incidents that occurred in relation to Carecor.

[9] The Agency's jurisdiction is confined to the transportation network under the legislative authority of Parliament. The fact that Carecor, a provincially-regulated entity, has a contract with the GTAA is not sufficient for it to be brought under federal jurisdiction.

[10] The Agency has reviewed Carecor's contract with the GTAA and finds that the services offered by Carecor are medical clinic services provided as a convenience to all persons who use the terminal, whether they be travellers, employees, etc. The Agency also finds that these services are not vital to the operation of the airport. As such, the Agency does not have jurisdiction over Carecor and therefore will not address the incidents related to Carecor.

Supreme Court Decision

[11] The Agency notes the recent issuance, on March 23, 2007, by the Supreme Court of Canada of its decision in Council of Canadians with Disabilities v. Via Rail Canada Inc. 2007 SCC 15 [hereinafter the CCD-VIA Decision]. The CCD-VIA Decision is the first consideration by that Court of the Agency's jurisdiction under the accessible transportation provisions in Part V of the CTA and it provides significant direction to the Agency in the execution of this mandate. The Agency is presently assessing the implications of the CCD-VIA Decision and may make changes to its process in the future as a consequence of this review. In this case, the Agency notes that as a result of the impending expiry of Mr. Gill's term, it is critical that this case be dealt with on an expedited basis as failure to do so may result in a loss of quorum. Accordingly, the Agency will issue its decision in Mr. Abdellah's case at this time, prior to this comprehensive review being completed; however, in making this decision to proceed with this case, the Agency has carefully considered the CCD-VIA Decision and finds that the final decision in Mr. Abdellah's case is consistent with the CCD-VIA Decision.

ISSUE

[12] The issue to be addressed is whether the level of wheelchair and baggage assistance at the curb of the Toronto airport, the level of wheelchair and baggage assistance provided to Mr. Abdellah from the entrance of the Toronto airport to the Air Transat check-in counter, and Mr. Abdellah's inability to travel on Air Transat Flight No. 130 on June 19, 2006 from Toronto to Frankfurt constituted undue obstacles to his mobility and, if so, what corrective measures should be taken.

FACTS

[13] Mr. Abdellah has Mitral Stenosis; Regional Pain Syndrome Type 2 (left lower leg); Peroneal Nerve Entrapment Syndrome (left leg); Bilateral Carpel Tunnel Syndrome; Bilateral Epicondolytis (both elbows); Bilateral Tendonitis (both shoulders); and a Contusion Laceration (right knee). In January of 1989, Mr. Abdellah developed the condition of Reflex Sympathetic Dystrophe in his left leg, which is a condition of severe pain arising from reduced circulation in the affected limb. As a result of weakening of the muscles of his leg, Mr. Abdellah requires the use of canes and braces. He has fallen many times resulting in back and neck pain and is currently using a wheelchair in his home for mobilization and to avoid further injury from falling.

[14] Mr. Abdellah filed a copy of a letter from his family physician, dated June 16, 2006, that he brought with him when he travelled. The letter outlines Mr. Abdellah's medical conditions, medications, and the fact that he experienced atrial fibrillation on June 1, 2006 and received cardioversion on June 5, 2006 in order to restore sinus rhythm. The letter sets out that atrial fibrillation recurred on June 10, 2006 and that Mr. Abdellah's cardiologist, after consultation with Mr. Abdellah's family physician, decided not to proceed with another cardioversion and indicates that after further consultation, both doctors believed that it was not medically advisable to do so. Both doctors advised Mr. Abdellah that he was safe to travel to Europe for a period of three months despite the atrial fibrillation.

[15] On May 31, 2006, Mr. Abdellah purchased a round-trip ticket from CTH Travel for travel with Air Transat between Toronto and Frankfurt departing on June 19, 2006 and returning on September 13, 2006. Mr. Abdellah also purchased round-trip transportation from CTH Travel for the same dates to travel with Robert Q, a transportation service provider, between Windsor and the Toronto airport. Mr. Abdellah requested wheelchair assistance for his Air Transat flight, which was received by Air Transat.

[16] CTH Travel and Robert Q confirm that they did not convey a request to the GTAA for wheelchair and baggage assistance at the curb and/or from the entrance of the Toronto airport in advance of travel. The Robert Q bus driver was made aware of Mr. Abdellah's need for assistance as they arrived at the Toronto airport.

[17] Mr. Abdellah did not receive wheelchair assistance at the curb upon his arrival at the Toronto airport. While Mr. Abdellah was inside the terminal, an Airport Customer Assistance Program (hereinafter ACAP) agent arrived to provide Mr. Abdellah with wheelchair assistance. Shortly after the agent arrived with a wheelchair, Mr. Abdellah fell and injured his leg. He was brought to Air Transat's check-in area, and then to the Carecor medical clinic. He was assessed by a nurse who advised him to apply ice to his leg due to swelling. Mr. Abdellah was then brought to the Air Transat check-in counter. Shortly thereafter, the nurse was called to the Air Transat counter to attend to Mr. Abdellah as he was experiencing heart palpitations. He did not travel with Air Transat as planned.

[18] The ACAP service at the Toronto airport is provided by Penauille Servisair Inc. (formerly GlobeGround North America Inc.) which is under contract with the GTAA.

[19] Section 3-3 of the ACAP Plan of Operations Manual, entitled Baggage, sets out, inter alia:

• At no time is an ACAP agent permitted to push a wheelchair and carry/pull a carry-on. ACAP agents are also not permitted to push or carry checked luggage... When presented with a passenger with checked luggage the ACAP agent will offer the passenger porter services (at the current porter rates) or seek assistance from an airline representative. If the passenger cannot or will not pay for porter services, and they are clearly required, the "destitute passenger protocol" can be implemented, in order to avoid injury to either party.

[20] Section 3-2 of the Penauille Servisair Inc. ACAP training manual, entitled Scope of Services, sets out, inter alia:

• Porter service is to be facilitated for baggage, if required.

[21] Section 3-3 of the Penauille Servisair Inc. ACAP training manual, entitled Job Description sets out, inter alia:

• Assist embarking passengers and personal effects from the parking facility or curb through the port facility including the aircraft
• Attend to wheelchair (carry on/carry off/Stretcher) passengers and personal effects and any passenger requiring assistance
• Assist special needs passengers and personal effects to ensure a seamless/stress free airport experience while using all facilities at the port
• Assist passengers with personal effects and hand baggage as required.

ANALYSIS AND FINDINGS

[22] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

[23] An application must be filed by a person with a disability or on behalf of a person with a disability. Based on Mr. Abdellah's medical information as set out in the Facts section of this Decision, he is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[24] 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. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.

Whether the applicant's mobility was restricted or limited by an obstacle

[25] The word "obstacle" is usually understood to mean something that impedes progress or achievement. As the word "obstacle" is not defined in the CTA, it must be read in its immediate legislative context which is, for the purposes of Part V of the CTA, the mobility of persons with disabilities, such mobility being achieved by having proper access to federal transportation services. In this way, the obstacle must be directly related to a person's disability such that an issue cannot be considered to be an obstacle simply because it is experienced by a person with a disability.

[26] In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found 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 may find obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience call into question whether the person had proper access to effective transportation services.

Whether the obstacle was undue

[27] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

[28] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as 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 impediments 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. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments 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 concept of undueness.

The case at hand

Level of wheelchair and baggage assistance at the curb of the Toronto airport

[29] Although Mr. Abdellah originally stated in his application that CTH Travel did everything in its power to ensure that he had wheelchair and baggage assistance once he arrived at the Toronto airport, he subsequently stated that when he made his reservation with CTH Travel, he requested wheelchair assistance for his flight and because CTH Travel was also booking his ticket with Robert Q, he made the assumption that it requested assistance from Robert Q as well. Notwithstanding these submissions from Mr. Abdellah, it is not contested that the GTAA and Robert Q were not advised prior to Mr. Abdellah's departure date of his need for wheelchair and baggage assistance from the curb of the Toronto airport to the check-in counter, a service that is provided by ACAP with the help of porters.

[30] There are differences in the versions of events submitted by Mr. Abdellah and Robert Q regarding the discussions on the day of travel with respect to Mr. Abdellah's need for wheelchair or baggage assistance at the curb of the Toronto airport and the extent to which Robert Q facilitated such assistance. In particular, while Mr. Abdellah initially stated that when he asked the bus driver for help, the driver ignored him and continued on his way, he subsequently stated that the driver told him that if he had made a request for help, someone would be coming shortly. The bus driver, on the other hand, submits that while he was unloading luggage, Mr. Abdellah inquired about his wheelchair and baggage assistance. The driver adds that "After I loaded off all my passenger's luggage and loading this gentleman's luggage onto his cart, he walked away. This after I told him, I could not leave my bus, but I was looking for anyone close. Which there was nobody. I may have directed him to his airline desk to seek further assistance before he walked away." Notwithstanding the different versions of events, it is clear that after being advised by the bus driver that he was unable to provide assistance, Mr. Abdellah made his way from the curb into the terminal. The Agency concludes that the Robert Q bus driver left Mr. Abdellah with the impression that the assistance would not be provided, with the result that he undertook to make his way into the terminal.

[31] In light of the foregoing, the Agency finds that the level of wheelchair and baggage assistance at the curb of the Toronto airport constituted an obstacle to Mr. Abdellah's mobility.

[32] The Agency will now consider whether the obstacle is undue.

[33] Although Robert Q submits that its drivers are not permitted to leave their vehicles, the Agency notes that in this case, the driver did leave his bus to ask a porter for wheelchair assistance for another passenger. According to the bus driver's statement, he ran inside the terminal a few minutes after Mr. Abdellah had walked away after he had advised Mr. Abdellah that he could not leave the bus but was looking for anyone close; the driver indicates that he however left the bus in this instance to find someone to assist an elderly lady. While the GTAA filed a signed statement from its Terminal 3 Passenger Information Representative (hereinafter the PIR) who indicates that a bus driver approached her just inside the terminal to advise her that two passengers, one male and one female, required wheelchair assistance and help with their bags, it is clear, as set out above, that the bus driver on the curb left Mr. Abdellah with the impression that no assistance was forthcoming as the bus driver had advised him he was not in a position to request assistance. Given that Mr. Abdellah walked away after his discussion with the bus driver, due to the impression he was left with, any subsequent request for assistance that may have been made by the bus driver would have been unknown to Mr. Abdellah.

[34] Robert Q advised the Agency that its past practice has been for its drivers to contact the Terminal 1 representative as they approach the airport when wheelchair requests are made in advance. As such, the Agency is of the opinion that although the driver had to leave the terminal, he could have used his radio as he was leaving the terminal to request that assistance be provided to Mr. Abdellah and informed him of this action.

[35] Based on the foregoing, the Agency finds that the level of wheelchair and baggage assistance at the curb of the Toronto airport constituted an undue obstacle to Mr. Abdellah's mobility.

[36] The Agency notes that since Mr. Abdellah's application was filed with the Agency, Robert Q became aware of the ACAP service offered by the GTAA and has implemented the following new procedures to assist passengers who make a request for wheelchair and baggage assistance:

• if its Windsor staff receives a last minute request for wheelchair assistance in Toronto, not only will the Windsor staff inform the driver, they will advise the customer to inform the driver of the request as well;
• when a request for wheelchair assistance is made while in transit to the Toronto airport, the driver will contact the Robert Q representative at Terminal 1 when closer to the airport; and,
• the driver will apprise the representative of the request and will provide his vehicle number and estimated time of arrival at the airport curb. The terminal representative will then contact the ACAP dispatcher for wheelchair and luggage assistance.

[37] The Agency is satisfied that the measures that have been put in place by Robert Q will assist in eliminating future problems for any passenger who requests wheelchair and baggage assistance, whether at the last minute or otherwise, and the Agency finds that no further corrective measures are required.

The level of wheelchair and baggage assistance provided to Mr. Abdellah within the terminal

[38] The Agency recognizes that there are conflicting submissions from Mr. Abdellah and the GTAA regarding the level of wheelchair and baggage assistance provided to Mr. Abdellah upon entering the terminal. On the one hand, Mr. Abdellah submits that two ACAP agents arrived with two wheelchairs, at which time he was leaning on his luggage cart as there was nowhere to sit, and one agent asked him to sit in a wheelchair while the other one left. Mr. Abdellah states that as the ACAP agent proceeded to push the wheelchair to bring him to the Air Transat counter, he asked about his baggage as he did not want to leave it unattended. Mr. Abdellah sets out in his application that the agent stated that it was not her job to move his baggage and there was nothing she could do. Mr. Abdellah further submits that while he suggested options to address the situation, including pleading that the agent call for extra help, there was a continued refusal on her part to help and an indication that it was not possible to get in touch with anyone else. This, according to Mr. Abdellah, led him to get out of the wheelchair to try to move the cart out of the way to be picked up later and, in the process, he lost his balance and fell on the left side of his hip, hurting his left leg on the footrest of the wheelchair. Mr. Abdellah adds that he was able to sit in the wheelchair by himself and that the ACAP agent was the only one present at that time.

[39] On the other hand, the ACAP agent who assisted Mr. Abdellah stated that the wheelchair was closed as she approached Mr. Abdellah, who was standing with his hand on the luggage cart and he fell suddenly, on his right side. The GTAA explains that its agents are advised to move the wheelchair in a closed position for their safety and that of the travelling public, noting that this allows for easier manoeuvring of the wheelchair in a crowded area. The ACAP agent submits that the wheelchair was not the cause of Mr. Abdellah's fall and no part of his body touched the wheelchair when he fell. According to the ACAP agent, the Terminal Support Specialist helped Mr. Abdellah up and she then opened the wheelchair for him.

[40] The ACAP agent states that although she was the only one who approached Mr. Abdellah, a second ACAP agent was assigned to help another passenger and that as they made their way to their meeting points, it may have been perceived that the two agents were together. Although the ACAP agent states that the second agent may have passed by as she was assisting Mr. Abdellah, the second agent confirmed in a signed statement that she did not assist Mr. Abdellah. Finally, the GTAA submits that the ACAP agent has confirmed that Mr. Abdellah was not sitting in the wheelchair prior to falling and that, with respect to the baggage assistance, she did not refuse to help Mr. Abdellah in this regard. In a written statement submitted to the Agency, the ACAP agent indicates that as it is not safe to push his luggage and the wheelchair, she asked Mr. Abdellah if he would like a porter, but he declined. In this regard, the Agency notes that this is in keeping with ACAP policy pursuant to Section 3-3 of the ACAP Plan of Operations Manual, entitled Baggage, which sets out the following: At no time is an ACAP agent permitted to push a wheelchair and carry/pull a carry-on. ACAP agents are also not permitted to push or carry checked luggage... When presented with a passenger with checked luggage the ACAP agent will offer the passenger porter services (at the current porter rates)... The GTAA also filed a summary of a discussion between the ACAP agent and her employer which confirms that the agent acted as per protocol when she asked whether she could arrange a porter to push Mr. Abdellah's baggage. The GTAA further states in the summary that before any other discussion could take place, Mr. Abdellah had fallen.

[41] The Agency must decide the case on the basis of a weighing of the evidence of Mr. Abdellah against the evidence of the GTAA. In any dispute, it is important to determine which party has the obligation to prove a point in contention. In civil matters, the general rule is that the applicant bears a legal burden of persuasion and is therefore required to establish, on the balance of probabilities, that is, on the preponderance of the evidence, that his/her version adequately represents the facts in dispute or that his/her position is the correct one. This principle is equally applicable to allegations of obstacles under Part V of the CTA.

[42] The onus is therefore on Mr. Abdellah to satisfy the Agency that his version with respect to the level of wheelchair and baggage assistance provided to him within the terminal is more probable than the GTAA's version. The Agency is faced with different versions of events, to the point of being irreconcilable on some aspects, and must determine if Mr. Abdellah has proved allegations of obstacle against the GTAA by carefully weighing the evidence filed in this case.

[43] In approaching the burden of proof, it is the responsibility of the applicant to provide sufficient evidence of obstacle that outweighs the evidence of the respondent, otherwise the applicant will have failed to meet this burden. In other words, it requires the evidence of the applicant to be more convincing than the evidence offered in opposition to it. In considering the evidence, the Agency has employed the usual test to determine which of the different versions is more probable. As the versions can be said to be equally probable, the Agency finds that the evidence of Mr. Abdellah is insufficient to support an inference that the situation occurred as described in his application.

[44] Therefore, the Agency finds that Mr. Abdellah has not proven a sufficient degree of probability to warrant a conclusion that the level of wheelchair and baggage assistance provided to him within the terminal constituted an obstacle to his mobility. The Agency finds that Mr. Abdellah has not met the burden of proof with respect to his allegations regarding the level of wheelchair and baggage assistance provided to him within the terminal. Therefore, the Agency finds that Mr. Abdellah has not demonstrated that he faced an obstacle.

Mr. Abdellah's inability to travel on Air Transat Flight No. 130 on June 19, 2006

[45] Mr. Abdellah planned to travel on Air Transat Flight No. 130 from Toronto to Frankfurt on June 19, 2006, to visit his mother who was to undergo major surgery in July of 2006 in Europe and for therapeutic reasons as advised by his doctor.

[46] Mr. Abdellah had medical clearance to travel from his family physician and provided a letter from his physician in this regard. The letter sets out that Mr. Abdellah experienced atrial fibrillation on June 1, 2006 and received cardioversion on June 5, 2006 in order to restore sinus rhythm. The letter further sets out that after consultation with Mr. Abdellah's cardiologist, both physicians advised Mr. Abdellah that he was safe to travel to Europe for a period of three months despite the atrial fibrillation.

[47] At the airport prior to Mr. Abdellah's departure, events took place which resulted in Air Transat making the decision to deny him boarding. The result of Air Transat's decision was that Mr. Abdellah was unable to travel as planned, despite the medical clearance.

[48] In light of the foregoing, the Agency finds that Mr. Abdellah's inability to travel on Air Transat Flight No. 130 on June 19, 2006 constituted an obstacle to his mobility.

[49] The Agency will now consider whether the obstacle is undue.

[50] Mr. Abdellah argues that he was travelling with letters from his family physician and his cardiologist indicating that he was able to travel by air and that Air Transat had no right to prevent him from boarding the aircraft.

[51] With respect to the situation at the airport on June 19, 2006, the Agency notes the discrepancies between Mr. Abdellah's and the Carecor nurse's versions of events that led to Mr. Abdellah's inability to travel on the day in question. Mr. Abdellah initially submitted that when he refused to go to the hospital, the nurse changed her mind about him not being able to travel but was unsuccessful in her attempt to get an extra seat from Air Transat that would have allowed him to elevate his leg. Mr. Abdellah subsequently indicated, however, that when he was brought to the Air Transat counter, he was prevented from travelling by the Carecor nurse, even though he had all his necessary doctors' reports. The Agency notes that the latter submission is supported by the evidence filed by Carecor, in that the nurse states in her report that Mr. Abdellah was denied boarding after she was called to the Air Transat check-in counter because Mr. Abdellah, who had just left the clinic, was complaining of chest pains and palpitations and, as such, it was not safe for him to travel by air. Furthermore, the report indicates that Mr. Abdellah stated that he would go home, and that he was advised to seek medical attention.

[52] Air Transat also refers to Mr. Abdellah's complaint of chest pains at check-in, which resulted in Air Transat calling the local nurse to assist. Furthermore, Air Transat confirmed that, following the medical assessment, Mr. Abdellah was advised by the nurse that he was unfit for travel as he was displaying signs of having a heart attack and that he asked to be taken back to the Robert Q bus to return home.

[53] The Agency recognizes that Mr. Abdellah had received written medical clearance in preparation for his planned trip. However, the events that took place immediately prior to travel changed the situation. Had these events not occurred, it is likely that Air Transat would have allowed Mr. Abdellah to travel based on the medical clearance he provided.

[54] Air Transat denied boarding to Mr. Abdellah based on the advice of the Carecor nurse. In this regard, the Agency notes Air Transat's procedure of ensuring a person's fitness to travel when he/she exhibits signs of illness before a flight by either contacting a local health provider, such as the nurse in this case, or a medical assistance service. The Agency accepts that Air Transat relies on the decisions and recommendations of experienced medical authorities. In Mr. Abdellah's case, it was recommended by the local nurse that he not travel on the flight, an opinion that Air Transat supported.

[55] In addition, the Agency notes subsection 7.1 of Air Transat's International Charter Tariff entitled "Refusal to transport-Removal of passengers" which sets out the following:

The Carrier may refuse to carry or cancel the reserved space of, or may remove en route from any flight any passenger when:

1. Such action is necessary for reasons of safety.

[56] Notwithstanding the medical documents that Mr. Abdellah presented to the Carecor nurse, which outlined his condition prior to travel, the evidence clearly demonstrates that, on the day of travel, Mr. Abdellah exhibited symptoms at check-in that are associated with heart problems and, for these reasons, and on the informed advice of the Carecor nurse, Air Transat refused Mr. Abdellah travel.

[57] The Agency must balance the rights of a person with a disability to access the federal transportation network without encountering undue obstacles with the rights and obligations of a service provider.

[58] The Agency is of the opinion that the appropriate balance in the present case requires taking into account the carrier's obligation to provide a safe environment for its travellers.

[59] Although there is no direct evidence of the justification of the impugned standard it may be reasonably inferred that there is a sound reason for the implementation of the above-noted procedure when there is a potential safety risk for the traveller as well as that of others. Providing emergency medical aid to a passenger in-flight can not only be an extremely challenging task for the carrier, with very limited resources available once in the air, but also a risk to the passenger. Therefore, the Agency accepts that, given the circumstances, the carrier's decision that Mr. Abdellah not be allowed to travel on the flight in question, is objectively justifiable and that there was no other reasonable alternative.

[60] Based on the foregoing, the Agency finds that Mr. Abdellah's inability to travel on Air Transat Flight No. 130 on June 19, 2006 did not constitute an undue obstacle to his mobility.

CONCLUSION

[61] The Agency has determined that the level of wheelchair and baggage assistance at the curb of the Toronto airport by Robert Q constituted an undue obstacle to Mr. Abdellah's mobility. However, in light of the measures taken, no corrective measures will be ordered. With respect to the level of wheelchair and baggage assistance provided to him within the terminal, the Agency has determined that Mr. Abdellah did not demonstrate that he encountered an obstacle.

[62] The Agency has also determined that Mr. Abdellah's inability to travel on Air Transat Flight No. 130 on June 19, 2006 did not constitute an undue obstacle to his mobility.

Members

• Baljinder Gill
• Guy Delisle

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DISSENTING OPINION OF MARY-JANE BENNETT

[63] This Member agrees with the Facts and Issues sections as outlined in the majority ruling.

[64] This Member dissents on the preliminary matters and on the first and third issues. While agreeing with the finding on the second issue, this Member provides her own reasons thereto.

[65] On the issue of jurisdiction and without any request for pleadings on the issue, the majority found Carecor to be not under the legislative authority of Parliament. This finding ignores the fact that the GTAA has contracted with Carecor for the provision of services essential to the operation of an airport. This Member finds that a sufficient nexus exists between Carecor and the GTAA to have required pleadings on the issue and would not have denied jurisdiction without a full examination of the issue.

Level of wheelchair and baggage assistance at the curb of the Toronto airport

[66] As to the first issue and specifically, the level of wheelchair and baggage assistance at the curb of the Toronto airport, this Member disagrees with the facts as outlined by the majority in support of their finding of an undue obstacle to Mr. Abdellah's mobility.

[67] First, whereas Mr. Abdellah maintains that he informed the Travel Agent, CTH Travel, of his need for a wheelchair and for baggage assistance upon disembarking from the Robert Q bus and in fact maintains that CTH Travel "did everything in their power" to ensure this assistance would be put in place, this Member notes that this information was denied by CTH Travel, by the GTAA and by Robert Q.

[68] CTH Travel indicates that "Our office did not receive any information from Mr. Abdellah requesting assistance for Robert Q bus to the Air Transat check in." For its part, Robert Q advises that they "did not receive at any time from anyone any request to assist in obtaining a wheelchair for Mr. Abdellah prior to his arrival at the Toronto Airport." The GTAA indicates that "we have no information that CTH Travel, Robert Q or Air Transat contacted the GTAA to request wheelchair assistance in advance of his arrival at the airport. While ACAP was not notified in advance of Mr. Abdellah's arrival at the airport on June 19, 2006, ACAP in fact responded to a request for wheelchair assistance for Mr. Abdellah shortly after he disembarked from the Robert Q bus at Terminal 3."

[69] Secondly, Mr. Abdellah initially claimed that, upon disembarking from the bus, the Robert Q bus driver ignored his request for wheelchair assistance. In later pleadings, Mr. Abdellah changed this version of events and claimed that the Robert Q bus driver advised him that "someone would be coming shortly".

[70] Robert Q advised that it first became aware of Mr. Abdellah's need for a wheelchair upon arrival at the Toronto Airport. At this point, the Robert Q bus driver ran into the terminal to seek help for a female passenger. The facts subsequently provided by the Passenger Information Representative (hereinafter PIR) indicate that "The driver of a bus approached me just inside the Terminal and advised me that two passengers, one male and one female, required wheelchair assistance and help with their bags. I proceeded toward the doors and Mr. Abdellah was already pushing a cart with his bags on it through the doors."

[71] Although Mr. Abdellah claimed that as a consequence of the failure to provide assistance into the airport, he had to sit on the curb of the Toronto airport "twenty five minutes", this Member notes that as pleadings progressed, Mr. Abdellah claimed to have sat on the curb for "thirty five minutes", "quot;, ", "quot;forty minutes" and finally, for "forty to forty five minutes." This Member accepts as reasonable the query of the GTAA as to why Mr. Abdellah would sit on the curb rather than seek assistance from one of the Corp of Commissionaires who are stationed on the curb.

[72] Mr. Abdellah claimed in his initial pleadings that once inside the airport, he waited a "few minutes" before receiving wheelchair assistance. In later pleadings, he claimed to have waited "ten to fifteen minutes" before receiving wheelchair assistance. The Robert Q bus driver advises that after Mr. Abdellah requested a wheelchair, Mr. Abdellah walked away and he last saw Mr. Abdellah entering the airport. This sequence of events and time is borne out by the PIR who indicated that upon being alerted by the Robert Q bus service to the fact that Mr. Abdellah required wheelchair assistance, she immediately dispatched an agent who located Mr. Abdellah entering the airport.

[73] The majority found that an obstacle to Mr. Abdellah's mobility was encountered. Yet this finding ignores Mr. Abdellah's own statement that the bus driver advised him that "help would be coming shortly" and ignores the fact that help was promptly received. In past Agency decisions, the Agency has accepted that when a last minute request for assistance is made by a person with a disability, confusion may result and the transportation provider may be ill equipped to provide the best possible service. The transportation provider cannot ignore the request for help but any lacuna in a seamless travel experience for a person with a disability is avoided by alerting the transportation provider of the need for assistance at an early stage. This Member finds that the last minute request for assistance was not overlooked but was dealt with as best as could be done under the circumstances. Although this Member finds that Mr. Abdellah walked away from the bus and did not encounter a wait either at the curbside or in the airport, this did not relieve the driver from ensuring that the ACAP agents in the airport were aware of Mr. Abdellah. The driver ran into the airport and advised the appropriate personnel and Mr. Abdellah was thereafter given immediate attention. I therefore find that Mr. Abdellah did not encounter an obstacle to his mobility.

The level of wheelchair and baggage assistance provided to Mr. Abdellah within the terminal

[74] As to the second issue, namely, the level of wheelchair and baggage assistance provided to Mr. Abdellah within the terminal, the question central to a determination of this issue is whether the ACAP agent refused to handle Mr. Abdellah's baggage. The ACAP agent advised that she asked Mr. Abdellah whether he would like a porter to push his considerable amount of luggage, later found to be overweight, as she could not push a wheelchair and carry the luggage at the same time. In fact, the ACAP agent is unable by the terms of contract to provide porter and wheelchair assistance simultaneously. This fact seems to have been misunderstood by Mr. Abdellah.

[75] As two ACAP agents were dispatched at the same time to attend to two different clients (one male and one female) and despite the fact that they both seemed to approach Mr. Abdellah, this was not the intended destination of the second ACAP agent. Mr. Abdellah erroneously believed that one of the ACAP agents was a porter and maintains that this second agent who left should have helped with the baggage. In his pleadings of August 30, 2006, Mr. Abdellah describes the incident as follows: "I believe that one porter was assigned to help me with my wheelchair and the other to take care of my luggage. There would have been no need to argue with the porter or get hurt, especially after having sat outside on the curb for twenty five minutes, if the porter who left had taken care of my luggage." As this was not the case and as the ACAP agent advises that she was discussing retaining a porter with Mr. Abdellah, this Member finds that on a balance of probabilities, the wheelchair and baggage assistance provided within the airport to Mr. Abdellah did not constitute an obstacle to his mobility. Whether Mr. Abdellah subsequently fell because he caught his foot on the wheelchair's footplate as Mr. Abdellah's doctor advises or whether he fell because he was upset and tired, as Mr. Abdellah himself explains, the facts point to Mr. Abdellah having received wheelchair assistance with arrangements for baggage assistance under discussion. This Member does not find the recitation of the events "irreconcilable" as found by the majority. Rather, upon being apprised during pleadings that the second agent was not a porter as Mr. Abdellah originally thought, Mr. Abdellah changed his pleadings to indicate that the ACAP agent refused to assist in arranging for a porter.

Mr. Abdellah's inability to travel on Air Transat Flight No. 130 on June 19, 2006

[76] In order to bring into play section 172 of the CTA, the Agency must find a relationship between the disability and the obstacle. In the instant case, Mr. Abdellah was not denied boarding due to a previous heart condition and Mr. Abdellah's inability to travel on the relevant flight cannot be analyzed by reference to whether this amounted to an obstacle. Rather, the question is whether there is a sound application of Air Transat's International Tariff.

[77] Mr. Abdellah presented himself at check-in with chest pains and palpitations, was taken to the nurse at the airport where he again complained of chest pains, presented a Doctor's report which confirmed atrial fibrillation some two weeks and one week prior to travel and was advised that he should leave the airport in an ambulance. With concern for all passengers on Flight No. 130, including Mr. Abdellah, Air Transat made the wise decision to refuse transportation to Mr. Abdellah. It should be noted that Mr. Abdellah agreed with the decision and it was undertaken in a discreet and tactful manner.

Member

• Mary-Jane Bennett