Decision No. 20-AT-A-2024

Summary

[1] Fatima Ayoub filed an application with the Canadian Transportation Agency (Agency) against Air Canada alleging that she was not provided with accommodation to meet her disability-related needs on board Flight AC0337 from Montréal, Quebec, to Edmonton, Alberta, on September 4, 2023.

[2] Ms. Ayoub seeks compensation for pain and suffering in the amount of CAD 25,000 and compensation for willful and reckless practice in the amount of CAD 25,000.

[3] Air Canada says that it was not informed of Ms. Ayoub’s disability-related needs with respect to bladder control and therefore was unable to accommodate her.

[4] For the reasons set out below, the Agency finds that:

1. Ms. Ayoub is a person with a disability;
2. Ms. Ayoub did not meet her burden to demonstrate that she faced a barrier to her mobility attributable to Air Canada; and
3. Air Canada did not contravene any provision of the Accessible Transportation for Persons with Disabilities Regulations (ATPDR) applicable to this matter.

[5] Therefore, the Agency dismisses the application.

Background

[6] Ms. Ayoub purchased a round-trip ticket to travel from Edmonton to Amman, Jordan, with connecting flights in Montréal and Vienna, Austria, departing on July 3, 2023, and returning on September 4, 2023. Her reservation included a request for wheelchair assistance and specifies that she cannot walk long distances without assistance.

[7] According to Ms. Ayoub, she purchased business class tickets in order to be close to a washroom, which she was able to access on all her flights, except for her return flight on September 4, 2023, from Montréal to Edmonton. Ms Ayoub states that, when she inquired about the washroom, Air Canada’s representatives advised that the one closest to her seat was out of order.

[8] A few hours into the flight, Ms. Ayoub needed to use the washroom urgently. She attempted to walk to another washroom located at the back of the aircraft, but she did not make it in time.

Analysis and determinations

[9] In this decision, the Agency first determines whether Ms. Ayoub is a person with a disability and, if so, whether she faced a barrier. Then, the Agency determines whether Air Canada contravened any applicable accessibility regulations made under the CTA.

[10] The Agency has the authority under the Canada Transportation Act (CTA) to address applications that claim the existence of an undue barrier to the mobility of persons with disabilities within the federal transportation network.

[11] The Agency also has the authority, on application, to inquire into a matter concerning any accessibility regulations made under the CTA to determine whether applicants have suffered physical or psychological harm, property damage or economic loss arising out of — or has otherwise been adversely affected by — a contravention of any provision of those regulations.

Issue 1: Ms. Ayoub is a person with a disability

[12] Ms. Ayoub provided evidence, and Air Canada does not contest, that she is a person with a disability. She cannot walk long distances without assistance due to weight and mobility issues. Ms. Ayoub also indicates, and Air Canada does not dispute, that she needs to use a washroom frequently.

[13] Therefore, the Agency finds that Ms. Ayoub is a person with a disability with respect to mobility and her need to use a washroom frequently.

Issue 2: Ms. Ayoub did not meet her burden to demonstrate that she faced a barrier to her mobility attributable to Air Canada

[14] Ms. Ayoub has not shown that she faced a disability-related barrier caused by Air Canada.

[15] The burden of proof is on the applicant to demonstrate, on a balance of probabilities, that they faced a barrier. A barrier is anything — including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice — that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. The barrier must have some connection to the applicant’s disability.

[16] Ms. Ayoub states that she needs to use the washroom frequently and expected to be seated close to a washroom when travelling in business class. However, she admits that she did not inform Air Canada in advance of her needs other than the need for a wheelchair. Air Canada submits that it was never informed of her specific needs. Given the admission of Ms. Ayoub, the Agency accepts that Air Canada was never informed of her disability-related needs.

[17] The Agency notes that Ms. Ayoub’s reservation only specifies that she needs wheelchair assistance because she cannot walk long distances. Air Canada’s evidence demonstrates that the Special Service Request Code “WCHR” appears on Ms. Ayoub’s Passenger Name Record and that indicates that she requires wheelchair assistance within the airport but does not require such assistance during the flight.

[18] Further, Ms. Ayoub does not claim that she asked for accommodation when she was informed that the washroom close to her seat was out of order. There is also no evidence that Ms. Ayoub asked for assistance to reach the washroom located at the back of the aircraft when she needed to use it.

[19] Therefore, the Agency finds that Ms. Ayoub did not inform Air Canada of her needs related to proximity to a washroom or her disability-related needs.

[20] Although service providers have a duty to accommodate, persons with disabilities who require accommodation are expected to make their disability-related needs known to the service provider, give adequate notice of their disability-related needs and give the service provider a reasonable opportunity to provide the required accommodation.

[21] Air Canada was not aware of Ms. Ayoub’s needs, therefore it was not in a position to accommodate her. The Agency finds, therefore, that Ms. Ayoub did not meet her burden of proof to demonstrate that she faced a disability-related barrier that is attributable to Air Canada.

Issue 3: Air Canada did not contravene any applicable accessibility regulations

[22] The Agency finds that Air Canada did not contravene any accessibility regulations.

[23] Subsection 32(1) of the ATPDR requires carriers to provide services to persons with disabilities if the person requests it at least 48 hours before departure. Air Canada asserts that had Ms. Ayoub made a request for services in advance such as, onboard wheelchair assistance and transportation to the washroom under subsection 35(n) and 35(m) of the Accessible Transportation for Persons with Disabilities Regulations (ATPDR), it would have provided those services.

[24] Nonetheless, the Agency notes that if a person with a disability makes a request for these services less than 48 hours prior to departure, the carrier must still provide the service, in accordance with subsection 32(2) of the ATPDR.

[25] Ms. Ayoub did not specifically identify in her application any accessibility regulations that Air Canada contravened. As detailed above, there is also no evidence that Ms. Ayoub asked for assistance to reach the washroom located at the back of the aircraft when she needed to use it.

[26] The Agency finds that Air Canada did not violate the ATPDR as it was not made aware of Ms. Ayoub’s disability-related needs with respect to washroom access.

Conclusion

[27] In light of the above, the Agency dismisses the application.

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Legislation and Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	169.5; 170(1); 172; 172.1; 172.2
Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244	32(1); 32(2); 35(m); 35(n)