Decision No. 211-AT-A-2005

April 12, 2005

File No. U3570/99-61

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APPLICATION

[1] On November 28, 1999, Elliott Richman filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] On January 5, 2000, Cathay Pacific Airways Limited (hereinafter Cathay Pacific) filed its answer to the application. On January 11, 2000, Mr. Richman filed his reply to Cathay Pacific's answer.

BACKGROUND

[3] Pursuant to section 172 of the Canada Transportation Act (hereinafter the CTA), the Agency may, on application, inquire into a matter to determine whether there is an undue obstacle to the mobility of persons with disabilities. The Agency's determination in each case is based on the merits of the individual case before it.

[4] Following a preliminary review of this application, however, the Agency determined that any decision rendered in this application might have broad implications for foreign carriers operating in the Canadian transportation network. In addition, at that point in time, the Agency concluded that it was unable to determine whether an undue obstacle existed to persons with disabilities in this application without first considering the foreign air transport industry in general, as well as the implications of any Agency decision on foreign air carriers. Consequently, the Agency found it necessary to conduct consultations with foreign carriers who operate to and from Canada in order to gather sufficient information prior to determining what constituted an appropriate level of service with respect to communications for the community of persons with hearing impairments, and on March 9, 2000, the Agency adjourned proceedings in this application.

[5] On June 3, 2004, the Agency released a Communications Code of Practice, Removing Communication Barriers for Travellers with Disabilities (hereinafter the Code of Practice). The release of the Code of Practice followed extensive consultations on communication barriers faced by travellers with disabilities, including such matters as telecommunication systems for reservations and information used by transportation service providers. In developing the Code of Practice, the Agency also considered the comments submitted by the foreign carriers who were consulted when proceedings were adjourned in this and other applications. Although the provisions of the Code of Practice do not specifically apply to foreign carriers, they reflect the Agency's views on the importance of TTYs to the accessibility of travel by persons with disabilities and the general principle, applicable to all operations into and out of Canada, that persons with disabilities should have equal access to transportation services.

ISSUE

[6] The issue to be addressed is whether the absence of a TTY access to Cathay Pacific's Canadian reservation system constituted an undue obstacle to Mr. Richman and, if so, what corrective measures should be taken.

FACTS

[7] Mr. Richman is deaf and uses a TTY to communicate by telephone. Upon consulting Cathay Pacific's Web site in November 1999, Mr. Richman noted that the carrier is listing reservation numbers for Toronto and Vancouver; however, there were no equivalent TTY numbers.

[8] At the time of the filing of the application, Cathay Pacific did not have a TTY reservation line in its North American Reservations Office, which serves both Canada and the United States of America. Service to its clients who have a hearing impairment was provided through the use of the telecommunication relay services provided at no cost by Canada's local phone companies.

POSITIONS OF THE PARTIES

[9] Mr. Richman submits that as all of his telecommunications take place only through TTYs, Cathay Pacific's advertisement of its "hearing" reservation numbers, but no equivalent TTY reservation numbers, poses an undue hardship for him.

[10] Mr. Richman asserts that it is unsatisfactory for Cathay Pacific, and any other air carrier, to expect passengers who are deaf or hard of hearing to use telecommunication relay services or telefax machines to communicate with the carrier.

[11] Cathay Pacific states that in its over 16 years of operating scheduled services to Canada , the "non-hearing impaired community" has been able to obtain the same services available to the "hearing impaired community" through the use of the telecommunication relay services described above.

[12] Cathay Pacific submits that, considering the frequency of their TTY duties, the telephone company relay operators are inherently more proficient in TTY communications than an air carrier employee can be, because of the infrequent need to use such a device. This being said, Cathay Pacific advises that, effective April 1, 2000, it would have a TTY installed in its North American Reservations Office and would ensure that the TTY number is listed on its Canadian Web site and included in all advertising and sales materials that feature its regular telephone reservations numbers.

ANALYSIS AND FINDINGS

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

[14] An application must be filed by a person with a disability or on behalf of a person with a disability. In the case at hand, Mr. Richman is deaf and, as such, is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[15] 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

[16] The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.

[17] 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 in the past. For example, there are cases of 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 has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.

The case at hand

[18] Mr. Richman submitted that as all of his telecommunications take place only through TTYs, Cathay Pacific's advertisement of its "hearing" reservation numbers, but no equivalent TTY reservation numbers, poses an undue hardship for him.

[19] The Agency is of the opinion that the ability to communicate independently by telephone is essential for all travellers, including persons who are deaf or hard of hearing. Although Cathay Pacific does provide alternate ways to communicate with the carrier, such as by facsimile, e-mail, and through Web sites, the Agency finds that these alternatives are not necessarily accessible to all persons with disabilities and do not allow for "real-time" communication, which is afforded through the use of telephones and TTYs. The Agency also notes that, in many cases, persons who are deaf or hard of hearing consider the use of a TTY to be the most effective way to communicate.

[20] In light of the foregoing, the Agency finds that, at the time of the filing of the application, Cathay Pacific's failure to provide access to its Canadian reservation system through the provision of TTY service constituted an obstacle to Mr. Richman, and to persons who are deaf or hard of hearing in general.

Whether the obstacle was undue

[21] 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" also 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.

[22] 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

[23] Having found that, at the time of the filing of the application, Cathay Pacific's failure to provide access to its Canadian reservation system through the provision of TTY service constituted an obstacle to Mr. Richman, and to persons who are deaf or hard of hearing in general, the Agency must now determine whether the obstacle was undue.

[24] The Agency is of the opinion that persons with disabilities should have the same options as other travellers and, in this case, they should have the option of booking directly with the carrier. Persons with disabilities have the same rights as others to full participation in all aspects of society and there can be no doubt that equal access to transportation and services is critical to the ability of persons with disabilities to exercise that right. Persons with disabilities want as much independence in life as possible and their use of transportation services is no exception. In this case, these principles can be respected through the provision of TTY service with the associated limited cost.

[25] The Agency notes that the foregoing is consistent with the Code of Practice which, under the heading "Telecommunication Systems for Reservations and Information", provides that:

Transportation service providers who use telephone lines for reservations, information or any services related to the successful execution of a trip are to provide an equal level of service to passengers with disabilities through the use of alternative communication systems, such as a TTY line.

[26] The Agency is aware that the provisions of the Code of Practice do not specifically apply to foreign carriers. However, the Code of Practice does reflect the Agency's views on the importance of TTYs to the accessibility of travel by persons with disabilities and the general principle, applicable to all operations into and out of Canada, that persons with disabilities should have equal access to transportation services.

[27] Accordingly, the Agency finds that, at the time of the filing of the application, Cathay Pacific's failure to provide access to its Canadian reservation system through the provision of TTY service constituted an undue obstacle to Mr. Richman and to persons who are deaf or hard of hearing in general.

MEASURES TAKEN OR TO BE TAKEN

[28] In its answer to the application, Cathay Pacific advised of its plans to have a TTY installed in its North American Reservations Office and its employees trained on the use of that device by March 31, 2000; it also indicated that, effective April 1, 2000, the TTY number would be included in all publications and advertising materials produced on or after that date and distributed in Canada that provide its reservation numbers. On March 10, 2000, Cathay Pacific reiterated its plans to implement TTY service in its North American Reservations Office; and on July 28, 2000, Cathay Pacific confirmed that, effective April 1, 2000, all of the above measures have been carried out and are in place.

[29] Agency staff has verified that Cathay Pacific has installed a TTY in its North American Reservations Office, and that the TTY number is listed on its Canadian Web site and included in its advertising and sales literature. The Agency is, therefore, of the opinion that the measures undertaken by Cathay Pacific will provide an independent means of access to its Canadian reservation system for persons who are deaf or hard of hearing.

CONCLUSION

[30] Based on the above findings, the Agency finds that, at the time of the filing of the application, Cathay Pacific's failure to provide access to its Canadian reservation system through the provision of TTY service constituted an undue obstacle to Mr. Richman and to persons who are deaf or hard of hearing in general.

[31] However, in light of the measures undertaken by Cathay Pacific, the Agency contemplates no action in this matter.