Decision No. 21-AT-A-2021

March 23, 2021

APPLICATION by Naima Iskander (applicant) against Compagnie Nationale Royal Air Maroc (Royal Air Maroc) pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA), regarding her disability-related needs.

Case number: 
18-50117

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Royal Air Maroc pursuant to subsection 172(1) of the CTA, with respect to Royal Air Maroc’s alleged failure to provide her with wheelchair assistance.

[2] On February 21, 2020, the Agency issued Decision No. LET-AT-A-10-2020 (Interim Decision), where it found that the applicant is a person with a disability and that she encountered obstacles to her mobility when she was not provided with the wheelchair assistance she requested from the aircraft to the airport waiting area in Casablanca, Morocco, and at her arrival in Cairo, Egypt.

[3] The Agency also found that the applicant did not encounter obstacles to her mobility while in transit between the waiting area and the exit of the Casablanca airport, at her arrival in Montréal, Quebec, and when she was denied access to the economy lounge.

[4] In this Decision, the Agency will address the issue of whether Royal Air Maroc can remove the obstacles to the applicant’s mobility without experiencing undue hardship. The Agency will also address claims for compensation raised by the applicant.

[5] For the reasons set out below, the Agency finds that the applicant encountered undue obstacles to her mobility within the meaning of subsection 172(1) of the CTA when she was not provided with the wheelchair assistance she requested from the aircraft to the waiting area in Casablanca and at her arrival in Cairo.

[6] The Agency orders Royal Air Maroc to:

  • Ensure that the “mode opératoire 2019” procedure set out in Royal Air Maroc’s submission to the Agency dated July 15, 2020, or a procedure offering an equal or a better level of wheelchair service to passengers with disabilities, remains in place and is applied by its personnel.

[7] As it relates to the applicant’s request to be compensated for the physical therapy treatments she received while in Cairo, the Agency finds that no compensation is owed to her.

BACKGROUND

[8] On July 11, 2018, the applicant travelled from Montréal to Cairo, via Casablanca, and on October 1, 2018, she returned to Montréal via Casablanca. The applicant requested wheelchair assistance before her departure from Montréal. EgyptAir operated the flight from Cairo to Casablanca. Royal Air Maroc was responsible for the other segments of the applicant’s travel.

[9] The applicant explains that EgyptAir provided the wheelchair assistance that she requested.

[10] The applicant asserts that she did not receive wheelchair assistance for all the flight segments operated by Royal Air Maroc. The applicant claims that the lack of wheelchair assistance resulted in three months of pain for which she required physical therapy. The applicant seeks monetary compensation for treatments she received while in Cairo.

[11] The applicant also asserts that she did not get access to the economy lounge in Casablanca upon her arrival from Cairo.

THE LAW

[12] The application was filed pursuant to subsection 172(1) of the CTA, which at the time of the application, read 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.

[13] As outlined in the Agency’s letter opening pleadings, the first steps in this application are to consider whether the applicant is a person with a disability and, if so, whether the applicant encountered an obstacle. These steps were completed in the Interim Decision.

[14] As was done in this case, if it is determined that the applicant encountered an obstacle, the Agency then provides the respondent with an opportunity to either:

  • explain, taking into account any proposals from the applicant, 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.

POSITIONS OF THE PARTIES

Royal Air Maroc

[15] Royal Air Maroc claims that at the time the incident occurred, it was applying the procedures reviewed in June 2013 by the Direction Opération Sol et Cargo – Département Support Métier. Royal Air Maroc indicates that on March 6, 2019, the Direction Opération Sol de Royal Air Maroc replaced the procedures with a new procedure referred to as the “mode opératoire 2019.”

[16] Royal Air Maroc asserts that this new procedure defines three types of passengers with disabilities who require wheelchairs, based on the needs specified while booking, as follows:

[Translation]

  1. WCHR (wheelchair – R for ramp): Passenger who can move slowly, ascend and descend stairs, move about the cabin, get to their seat with no assistance but who requires a wheelchair for distances in the terminal.
  2. WCHS (wheelchair – S for stairs): Passenger who can take a few steps but who is unable to ascend and descend stairs or work is way about. This passenger requires a wheelchair to move towards or from the aircraft door and must be lifted with an ambulift to gain access to the cabin.
  3. WCHC (wheelchair – C for cabin): Passenger who cannot walk and requires assistance throughout their travel. They require a wheelchair to move about the terminal, towards or from the aircraft door, and must be lifted with an ambulift to gain access to the cabin.

[17] Royal Air Maroc claims that the new procedure also provides for assistance to passengers upon arrival and during connections based on the type of assistance requested.

[18] Upon arrival:

[Translation]

  1. WCHR (wheelchair + ramp) passenger: The passenger disembarks from the aircraft without assistance along with the other passengers and continues on via bus or ramp. The commercial operations agent picks up the passenger with reduced mobility (PRM) at arrivals and escorts them to the baggage carousel, passing through immigration services.
  2. WCHS (wheelchair + stairs) passenger: The commercial operations agent picks up the PRM from the purser once disembarkment is complete and escorts them from the aircraft door to the baggage carousel, passing through immigration services.

For “remote stand” flights, the commercial operations agent assists the PRM using an ambulift at the foot of the aircraft.

3. WCHC (wheelchair + cabin) passenger: The commercial operations agent picks up the PRM from the purser once disembarkment is complete and escorts them from the foot of the aircraft to the public arrivals hall, passing through immigration services.

For “remote stand” flights, the commercial operations agent assists the PRM using an ambulift at the foot of the aircraft.

[19] In transit:

[Translation]

  • Short transit: The commercial operations agent escorts the PRM from arrival to the end of the transit service, according to the reservation category (R, C or S).
  • Long transit: The commercial operations agent escorts the PRM, according to the reservation category (R, C or S), from arrival to the waiting lounge or hotel. The PRM is then picked up by another commercial operations agent to finalize the transit process.

[20] Royal Air Maroc indicates that it now applies the “mode opératoire 2019” procedure to all of its passengers around the world, taking into account the local practices of airport authorities.

[21] Royal Air Maroc also claims that its procedures for assistance to passengers with disabilities are currently being reviewed to determine whether they need to be updated to reflect the requirements set out in the Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244.

[22] Finally, Royal Air Maroc argues that, without admitting the existence of any failure in the assistance provided to the applicant, the “mode opératoire 2019” procedure addresses the issues outlined by the Agency in the Interim Decision.

The applicant

[23] The applicant draws attention to the fact that the old procedure has been in place since 2013 and indicates that she travelled in 2018, under the old procedure.

[24] The applicant claims that Royal Air Maroc’s answer is “just to let Transport Canada know that they change[d] the old policy.” She wonders why the procedure was changed and suggests that it would not have been changed unless it was inadequate and had generated other complaints.

[25] The applicant claims that “it shows they [Royal Air Maroc] have nothing to add or provide to explain why they do not furnish assistance to [an] old lady with limited mobility who has been labelled by the Quebec health department as handicap[ped].”

[26] Finally, the applicant argues that she “believe[s] that they [Royal Air Maroc] have nothing to present or to defend the negligence occurred during [her] travel in 2018.”

ANALYSIS AND DETERMINATIONS

Wheelchair assistance

[27] Transportation service providers have an obligation to ensure that persons with disabilities have equal access to their services.

[28] As outlined in the Interim Decision, the evidence demonstrates that the applicant requested wheelchair assistance from Royal Air Maroc and that she was not provided with wheelchair assistance from the aircraft to the waiting area in Casablanca, and upon her arrival in Cairo, which constituted obstacles to her mobility.

[29] At this point in the proceedings, the onus is on the respondent to demonstrate how it proposes to remove the obstacles identified by the Agency or to demonstrate that it cannot remove the obstacles without experiencing undue hardship.

[30] Royal Air Maroc does not take the position that removing the obstacles would constitute an undue hardship. Rather, Royal Air Maroc demonstrates that it can remove the obstacles identified by the Agency. The “mode opératoire 2019” procedure that was implemented after the applicant travelled addresses the obstacles she faced. Indeed, according to the “mode opératoire 2019” procedure, the applicant would now receive wheelchair assistance from the aircraft to the waiting area if Royal Air Maroc assigns her the “WCHS assistance” designation upon receiving her request for assistance. Pursuant to the “mode opératoire 2019” procedure, [translation] “the commercial operations agent picks up the PRM from the purser once disembarkment is complete and escorts them from the aircraft door to the baggage carousel, passing through immigration services.”

[31] The new procedure has been in place since March 6, 2019, and Royal Air Maroc explained that it is applied to all of its passengers around the world taking into account the local practices of airport authorities.

[32] As Royal Air Maroc has demonstrated that it has implemented a new procedure that addresses the obstacles encountered by the applicant, namely the “mode opératoire 2019,” the Agency finds that it would not cause Royal Air Maroc undue hardship to remove the obstacles encountered by the applicant.

[33] Therefore, the Agency finds that the applicant encountered undue obstacles to her mobility when Royal Air Maroc did not provide the wheelchair assistance that she requested from the aircraft to the waiting area in Casablanca and upon her arrival in Cairo.

Compensation

[34] The applicant seeks monetary compensation for the treatment she received while in Cairo.

[35] Subsection 172(3) of the CTA in force at the time of the application states:

On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.

[36] The applicant states in general terms that the lack of wheelchair assistance resulted in three months of pain for which she required physical therapy. The applicant filed a list of the expenses that she incurred that includes fees for the following services: hospital, physiotherapy, medication, injection, home assistance and medical blood and urine tests. The documents submitted by the applicant, however, do not clearly show that the tests that she underwent were related to the lack of assistance she experienced during her travels in July of 2018. While the applicant appears to have undergone a series of tests on August 7, 2018, there is no evidence that these tests arose out of the undue obstacles she faced during her travels. The applicant also filed a letter from a foreign rheumatology clinic that she visited on September 17, 2018. This letter does not support her claim that expenses were incurred arising out of the undue obstacles, as the letter indicates that “the patient presented to our center complaining of acute [low back pain] and swelling of her right knee following sudden movement.”

[37] Although the Agency recognizes that the lack of wheelchair assistance from Royal Air Maroc may have been difficult for the applicant, the Agency finds that the evidence submitted does not demonstrate that the expenses for which she filed receipts with the Agency have been incurred arising out of the undue obstacles. Accordingly, the Agency denies the request for compensation.

ORDER

[38] The Agency orders Royal Air Maroc to:

  • ensure that the “mode opératoire 2019” procedure set out in Royal Air Maroc’s submission to the Agency dated March 6, 2019, or a similar procedure offering an equal or better level of wheelchair service to passengers with disabilities remains in effect and is applied by its personnel.

Member(s)

J. Mark MacKeigan
Mary Tobin Oates
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