Decision No. 20-AT-C-A-2019
APPLICATION by Mankajee Shrestha against China Eastern Airlines Corporation Limited (China Eastern).
SUMMARY
[1] Mr. Shrestha filed an application with the Canadian Transportation Agency (Agency) against China Eastern pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), concerning the carrier’s refusal to transport him, and subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), concerning the carrier’s alleged failure to provide different services and wheelchair assistance at the Kunming Changshui International Airport (Kunming Airport).
[2] Mr. Shrestha seeks compensation in the amount of CAN$668.11 for a replacement ticket that he purchased.
[3] The Agency will address the following issues:
- Did China Eastern properly apply the terms and conditions set out in Rules 25 and 45 of its International Passenger Rules and Fares Tariff, NTA(A) No. 505 (Tariff)?
- Is Mr. Shrestha a person with a disability for the purposes of Part V of the CTA?
- Did Mr. Shrestha encounter an obstacle to his mobility?
[4] For the reasons outlined below, the Agency finds that:
- China Eastern properly applied the terms and conditions set out in Rules 25 and 45 of its Tariff, and no compensation is ordered.
- Mr. Shrestha is a person with a disability for the purposes of Part V of the CTA.
- Mr. Shrestha did not encounter an obstacle to his mobility for which China Eastern should be responsible in the circumstances.
BACKGROUND
[5] On December 12, 2017, Mr. Shrestha was scheduled to travel from Vancouver, British Columbia to Kathmandu, Nepal via Nanjing, China and Kunming, China. He was, however, refused transportation by China Eastern at the Vancouver International Airport (Vancouver Airport) because it alleges that he lacked the required visa to enter China.
[6] Mr. Shrestha returned home and purchased a replacement ticket to travel to Kathmandu on December 14, 2017. This ticket cost him an additional CAN$668.11.
[7] Mr. Shrestha returned to Vancouver from Kathmandu on May 14, 2018, via Kunming and Nanjing.
[8] Mr. Shrestha submits that on May 14, 2018, upon arrival at the Kunming Airport, China Eastern did not provide him with the accessibility-related services he required.
PRELIMINARY MATTER
[9] One of the remedies sought by Mr. Shrestha is an unspecified amount of compensation from China Eastern for mental suffering.
[10] The Agency does not have the jurisdiction to order payment of compensation for pain and suffering or loss of enjoyment as stated in previous decisions, such as Decision No. 18-C-A-2015 (Enisz v. Air Canada) and Decision No. 55‑C‑A‑2014 (Brines v. Air Canada). As such, the Agency cannot consider this aspect of the application further.
THE LAW AND RELEVANT TARIFF PROVISIONS
[11] Mr. Shrestha’s complaint raises issues related to both the application of China Eastern’s Tariff with respect to its refusal to transport him, and accessibility. The applicable tariff provisions and statutory extracts relevant to this matter are set out in the Appendix.
[12] The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a three-part approach.
Part 1: The Agency considers whether the applicant is a person with a disability for the purposes of Part V of the CTA.
Part 2: If it is determined that the applicant is a person with a disability for the purposes of Part V of the CTA, the Agency determines whether they encountered an obstacle. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.
Part 3: If it is determined that the applicant is a person with a disability and that they encountered an obstacle, the Agency provides the respondent with an opportunity to either:
- explain how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or
- demonstrate that it cannot remove the obstacle without experiencing undue hardship.
[13] In this Decision, the Agency will address the first two parts when considering the accessibility‑related portion of the application.
1. DID CHINA EASTERN PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULES 25 AND 45 OF ITS TARIFF?
Positions of the parties
MR. SHRESTHA
[14] Mr. Shrestha submits that upon arrival at the Vancouver Airport on December 12, 2017, China Eastern refused to transport him as he did not hold the required visa to enter China. Mr. Shrestha indicates that he was advised by China Eastern that his transit in China was over the visa‑free transit period of 24 hours based on its calculation, which included both the stopover and the “in‑air flight” time between Nanjing and Kunming. Mr. Shrestha claims that he was not informed of this requirement by China Eastern or Expedia before his arrival at the airport.
[15] Mr. Shrestha states that he was not successful in purchasing another ticket for travel on the same day that would not include a stopover in Nanjing. He adds that he ultimately travelled on December 14, 2017, after purchasing another ticket for which he paid an additional CAN$668.11.
[16] He submits that the Visa Central web page indicates that there is no visa required to enter China if the stay is less than 24 hours. Mr. Shrestha also claims that a 72-hour visa-free transit period is also mentioned on this page.
CHINA EASTERN
[17] China Eastern indicates that it refused to transport Mr. Shrestha because his transit time in China exceeded the 24-hour visa-free period.
Analysis and determination
[18] Based on Mr. Shrestha’s initial itinerary, his minimum scheduled stay in China would have exceeded the 24-hour limit for visa-free transit time as follows:
- stopover in Nanjing, before leaving for Kunming, 1 hour and 40 minutes;
- domestic flight from Nanjing to Kunming, 3 hours and 10 minutes;
- stopover in Kunming, before leaving for Kathmandu, 19 hours and 50 minutes.
[19] The evidence indicates that Mr. Shrestha relied on Expedia’s website to inform himself of his travel documentation requirements. While he may have believed that no visa is required for a Canadian citizen to connect in or transit through China, the website also contains clear statements that “you must confirm the transit regulations with your airline carrier prior to traveling” and “Visa Central recommends that travelers obtain a visa in advance to minimize the risk of denial of entry”.
[20] Mr. Shrestha claims that his documentation proves that he was entitled to a 72-hour visa‑free transit period; however, the Visa Central document clearly indicates that this must be applied for and received in advance. In this regard, Visa Central advises the passenger to “Please contact your carrier or the local consulate to determine if your travel plans qualify”. The evidence indicates that he did not do so.
[21] Rule 45 of China Eastern’s Tariff is clear that it is the passenger’s responsibility to ensure that they have the correct documentation to comply with applicable laws and travel requirements. It also stipulates that when a passenger is refused transportation because their travel documentation is lacking, China Eastern is not liable for the passenger’s resulting losses or expenses. This is a standard approach among airline carriers. In Decision No. 90-C-A-2017 (Boily v. Air Canada) and Decision No. 212‑C‑A-2015 (Sivilotti v. Air Transat), the Agency held that it is the responsibility of passengers to inquire about the requirements applicable to foreign countries and that it would be unreasonable to impose this responsibility on carriers for each of their passengers. Therefore, as Mr. Shrestha required a Chinese visa and had not obtained it, China Eastern was entitled to refuse him transportation.
[22] China Eastern applied the refund value of the unused portion of Mr. Shrestha’s ticket towards the cost of his December 14, 2017 replacement ticket, in accordance with Rule 25 of its Tariff. His original itinerary cost CAN$923.29, and his replacement itinerary cost CAN$1591.40. Mr. Shrestha paid CAN$668.11, which represents the fare difference between the two itineraries and a change fee of CAN$200.
[23] In light of the above, the Agency finds that China Eastern properly applied the terms and conditions set out in Rules 25 and 45 of its Tariff, and no compensation is ordered.
2. IS MR. SHRESTHA A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?
[24] Mr. Shrestha submits that he is a senior citizen who requires wheelchair assistance when travelling and that he holds a British Columbia disabled parking permit. China Eastern does not contest that Mr. Shrestha is a person with a disability.
[25] In light of the above, the Agency finds that Mr. Shrestha is a person with a disability for the purposes of Part V of the CTA.
3. DID MR. SHRESTHA ENCOUNTER AN OBSTACLE TO HIS MOBILITY?
Positions of the parties
MR. SHRESTHA
[26] Mr. Shrestha submits that on May 14, 2018, upon arrival at the Kunming Airport, China Eastern did not provide him with wheelchair assistance, and did not provide him with “assistance in processing docs at the counter after landing”, with his luggage, to transfer to and from the hotel, and “with food for that night”.
[27] Mr. Shrestha indicates that he was left unassisted at the Kunming Airport even though he had confirmed his itinerary and requested wheelchair assistance at the Kathmandu Airport before leaving. Mr. Shrestha also submits that he made the request upon arrival at the Kunming Airport to “the airport officials, immigration officer at the airport counter right after landing, to the on‑duty attendants and the security guards”.
CHINA EASTERN
[28] China Eastern submits that it requires 72 hours’ advance notice through its reservation office to accommodate passengers with special needs. It specifies that this information is available on its website. Furthermore, it indicates that its reservation office did not receive a special needs assistance request 72 hours before Mr. Shrestha’s return trip.
Analysis and determinations
[29] Transportation 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.
[30] It is the applicant’s responsibility to provide sufficient evidence to establish their disability‑related need for accommodation. The applicant must also prove that it is more likely than unlikely that the carrier did not meet their need and that they have faced an obstacle.
[31] Mr. Shrestha provided little information about his disability-related needs. Specifically, there is no evidence that his complaints regarding services at the Kunming Airport are related to these needs with regard to:
- assistance with documentation upon arrival;
- providing food and drink during his layover;
- arranging hotel transfers; or
- arranging hotel accommodation for the layover night.
[32] There is no suggestion that Mr. Shrestha encountered a flight disruption, where a carrier might owe these types of amenities to passengers if they are stranded overnight. Based on the itinerary that he booked, this layover was planned. The Agency therefore finds that these elements of his complaint are not obstacles to his mobility for the purposes of Part V of the CTA. As the Federal Court of Appeal indicated in VIA Rail Canada Inc. v. Canada (Transportation Agency), 2006 FCA 45, the fact that a situation is experienced by a person with a disability does not make it accessibility‑related; it must involve a disability-related need. Any passenger travelling on Mr. Shrestha’s itinerary would have similar needs and would be responsible for making plans to suit their needs and travel budget.
[33] With respect to the alleged failure to provide wheelchair assistance, China Eastern’s evidence is that it requires 72 hours’ advance notice for special service requests, including wheelchair assistance. This information can be found on China Eastern’s website. In addition, the first Expedia itinerary provided to Mr. Shrestha makes no reference to any request for wheelchair assistance and instructs the passenger, under the subtitle “Before you go”, to “Contact the airline to confirm: […] Special assistance requests”. It also clearly states, later in the document, that “special assistance requests should be confirmed directly with the airline”. While the second Expedia itinerary, which shows the December 14, 2017 and May 14, 2018 flights, also sets out that “special assistance requests should be confirmed directly with the airline”, it also refers to “Special assistance requestswheel chair” and “11h 55m stop Kunming (KMG) : baggage handling help& Apply for complimentary Accommodation”. However, it appears that some references along with other information was added by the applicant to the document, such that the document cannot be relied on as evidence of a request for assistance being made to the carrier. The Agency accepts China Eastern’s evidence that no special needs assistance request was made with its reservation office in advance.
[34] While Mr. Shrestha indicates that he repeatedly confirmed his wheelchair assistance request at the beginning of his return trip at the Kathmandu Airport, he also alleges that the airport and carrier staff at Kunming Airport “pretended not to understand English & not to know what the disable[d] card sign meant ”. He goes on to state that he communicated his request for assistance right after landing at the Kunming Airport to airport, immigration and security staff as well as “on-duty attendants”. The evidence is clear that no request for assistance was made 72 hours in advance of travel, but it is not clear, when he did make his request at either the Kathmandu Airport or the Kunming Airport, whether he actually made the request to airline staff who understood him.
[35] There is no doubt that Mr. Shrestha experienced difficulties at the Kunming Airport that may have constituted obstacles to his mobility. In the absence of a request for wheelchair assistance, made to the carrier more than 72 hours in advance of the flight, the Agency nevertheless expects air carriers to make reasonable efforts to meet the needs of persons with disabilities upon request. However, in this case, it is unclear whether a request was ever made to the air carrier itself such that the Agency is unable to find that Mr. Shrestha’s difficult experience was the result of carrier action or, in this case, inaction. This situation was compounded by the fact that Mr. Shrestha’s flight arrived late at night and there was a language barrier between Mr. Shrestha and China Eastern staff. These problems underscore the importance of requesting special services in advance directly from the air carrier, so that it has an opportunity to know and meet the passenger’s needs.
CONCLUSION
[36] The Agency dismisses the application.
APPENDIX TO DECISION NO. 20-AT-C-A-2019
REFUSAL TO TRANSPORT
Air Transportation Regulations, SOR/88-58, as amended
Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff.
If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to:
(a) take the corrective measures that the Agency considers appropriate; and
(b) pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions set out in the tariff.
International Passenger Rules and Fares Tariff, NTA(A) No. 505
The relevant portions of Rule 25 of China Eastern’s Tariff read as follows:
Refusal to transport – Limitation of Carriage
(A) Refusal, cancellation or removal
(1) MU [China Eastern]will refuse to carry, cancel the reserved space of, or remove en route any passenger:
[…]
(b) When such action is necessary to prevent violation of any applicable laws, regulations, or orders of any state or country to be flown from, into or over;
[…]
(3) The sole recource [sic] of any person who is refused carriage or removed en route for any reason specified above, shall be recovery of the refund value of the unused portion of his/her ticket as described in Rule 90 (REFUNDS).
Rule 45 of China Eastern’s Tariff reads as follows:
Administration formalities, passports, visas and tourist cards
(A) Compliance with regulations
The passenger shall comply with all laws, regulations, orders, demands or travel requirements of countries to be flown from, into or over, and with all rules, regulations and instructions of the carrier. The carrier shall not be liable for any aid or information given by any agent or employee of the carrier to any passengers in connections [sic] with obtaining necessary documents or complying with such laws, regulations, orders, demands, requirements or instructions whether given orally or in writing; or for the consequences to any passenger resulting from his/her failure to obtain such documents or to comply with such laws, regulations, orders, demands, requirements or instructions.
(B) Passports and visas
(1) The passenger must present all exit, entry and other documents required by laws, regulations, orders, demands or requirements of the countries concerned. The carrier will refuse carriage to any passenger whose documents are incomplete or who has not complied with applicable laws, regulations, orders, demands or requirements. Furthermore, the carrier is not liable to the passenger for loss or expense due to the passenger’s failure to comply with this provision.
ACCESSIBILITY
Canada Transportation Act, S.C., 1996, c. 10, as amended
The accessibility-related portion of the application was filed pursuant to subsection 172(1) of the CTA, which reads as follows:
The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.
Member(s)
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