Decision No. 211-AT-A-2012

INTRODUCTION

[1] Sandra and Ronald Boyko filed an application, on behalf of Frances Bassarab, with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), against Air Canada.

[2] The Boykos and Mrs. Bassarab travelled from Calgary, Alberta, Canada, to London, United Kingdom, on May 22, 2010 and were scheduled to return 20 days later. On May 25, Mrs. Bassarab had a stroke and was hospitalized for 10 days in London. On June 2, the Boykos booked a flight with Air Canada to return to Calgary on June 4, as they were told that Mrs. Bassarab could be discharged from the hospital and would be well enough to travel on that date.

[3] The Boykos’ application relates to the process followed by Air Canada in assessing Mrs. Bassarab’s fitness to travel, the level of wheelchair assistance at the London Heathrow Airport (Heathrow) and the Calgary International Airport (Calgary airport), the failure to pre‑board Mrs. Bassarab and the seating location on the flight.

PRELIMINARY MATTERS

(1) WHEELCHAIR ASSISTANCE AT HEATHROW – JURISDICTION

[4] Air Canada explains that the provision of wheelchair assistance in the European Union is governed by Regulation (EC) No 1107/2006, of the European Parliament and Council, concerning the rights of disabled persons and persons with reduced mobility when travelling by air (Regulation). The Regulation calls upon the airport authority and not the carrier to provide wheelchair assistance to persons with disabilities. In the United Kingdom, the British Airport Authority has contracted with OCS Group UK Limited (OCS) to provide wheelchair assistance.

[5] The Boykos submit that, while wheelchair assistance is provided by OCS at Heathrow, Air Canada is responsible for ensuring that passengers receive a level of service that ensures that no undue obstacles are encountered.

Analysis and finding

[6] The Agency has jurisdiction over international transportation-related matters arising in Canada, as well as over activity taking place outside of Canada involving Canadian carriers. The Agency does not, however, have jurisdiction over services offered by a foreign company that is under contract with a foreign airport authority. As such, the Agency cannot assert jurisdiction over OCS in this case as it relates to the provision of wheelchair assistance. However, the Agency can assert its jurisdiction over Air Canada’s involvement in the process to ensure the provision of the service; i.e., the communication of Mrs. Bassarab’s need for wheelchair assistance to OCS. The Agency will therefore limit its determination to this aspect of the application.

(2) SEATING ASSIGNMENT

[7] The Boykos state that Mrs. Boyko was not assigned a seat adjacent to Mr. Boyko on the London to Calgary flight such that she had to tend to Mrs. Bassarab’s needs by herself.

Analysis and finding

[8] The Boykos did not demonstrate that Mrs. Bassarab’s disability-related needs required the assistance of both Mrs. and Mr. Boyko. Accordingly, the Boykos’ concern as it relates to Mrs. Boyko not being seated adjacent to Mr. Boyko is not a matter that can be considered pursuant to subsection 172(1) of the CTA as it does not involve a disability-related issue. The Agency will therefore not address this matter in this Decision.

(3) REMEDY SOUGHT BY THE BOYKOS

[9] The Boykos ask that Mrs. Bassarab receive a written apology from Air Canada regarding the treatment she received.

Analysis and finding

[10] The Agency will not address the Boykos’ request for an apology as it does not have jurisdiction to direct a carrier to apologize or to award compensation in matters of this nature.

ISSUE

[11] The Agency will determine whether the following constituted an undue obstacle to Mrs. Bassarab’s mobility and, if so, what corrective measures should be ordered, if any:

• The process followed by Air Canada in assessing Mrs. Bassarab’s fitness to travel as it relates to:
• the inability of Mrs. Bassarab’s attending doctor to speak directly with an Air Canada doctor; and,
• the communication of Air Canada’s decision concerning Mrs. Bassarab’s need for oxygen to the Boykos.
• The level of wheelchair assistance provided to Mrs. Bassarab at both Heathrow on June 4 and 5 and the Calgary airport on June 5;
• The failure to pre-board Mrs. Bassarab for the London to Calgary flight; and,
• The location of Mrs. Bassarab’s seating on the London to Calgary flight.

THE LAW

[12] The Agency’s legislative mandate with respect to persons with disabilities is found in Part V of the CTA, which contains a regulation-making authority [subsection 170(1)] and a complaint adjudication authority [subsection 172(1)], both for the express purpose of removing undue obstacles to the mobility of persons with disabilities from the federal transportation network.

[13] The Agency applies a specific three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. It must determine:

1. whether the person has a disability for the purposes of the CTA;
2. whether that person encountered an “obstacle” (a rule, policy, practice, physical barrier, etc. that directly or indirectly discriminates against a person with a disability and has the effect of denying the person equal access to services that are available to others in the federal transportation network); and,
3. whether the obstacle was “undue”. This requires the Agency to decide whether the service provider has done all it could have done to accommodate the person with a disability without facing undue hardship.

DISABILITY DETERMINATION

[14] Mrs. Bassarab, who is 81 years old, had a stroke while visiting London and was diagnosed with a lower respiratory tract infection and underlying chronic obstructive pulmonary disease (COPD). Subsequent to her 10-day stay in the hospital, Mrs. Bassarab used a catheter, was weak and had difficulty walking. Mrs. Bassarab’s treating doctor in London advised that she was medically fit to travel back to Canada by air for hospital admission for further investigation and rehabilitation. The doctor also indicated that she required an attendant to take care of her needs on board the aircraft, including those relating to meals, using the washroom and administering medication. Air Canada did not contest that Mrs. Bassarab is a person with a disability for the purposes of the CTA. The Agency therefore finds that Mrs. Bassarab is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

OBSTACLE AND UNDUE OBSTACLE DETERMINATIONS

OBSTACLE DETERMINATION

[15] 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 require and were not provided with accommodation, thereby being denied equal access to services available to others in the federal transportation network. When determining if an obstacle to the mobility of a person with a disability exists, the Agency is, in essence, establishing whether their disability-related needs were met.

UNDUE OBSTACLE DETERMINATION

[16] An obstacle is undue unless the service provider can justify its existence by demonstrating that it cannot reasonably provide the appropriate accommodation or any other form of reasonable accommodation without incurring undue hardship. Once the Agency has determined that a person with a disability has encountered an obstacle, the service provider may either:

• provide the appropriate accommodation or offer an alternative that is equally responsive in meeting the disability-related needs of the person. In such a case, the Agency will determine what corrective measures are required to ensure that the appropriate accommodation is provided; or,
• justify the existence of the obstacle by demonstrating that it cannot reasonably provide the appropriate accommodation or any other form of reasonable accommodation without incurring undue hardship. If it fails to do so, the Agency will order corrective measures to ensure that accommodation is provided.

[17] The test that a service provider must meet to justify the existence of an obstacle consists of three elements. The service provider must demonstrate that:

1. the source of the obstacle is rationally connected to the provision of the transportation service;
2. the source of the obstacle was adopted based on an honest and good faith belief that it was necessary to provide the transportation service; and,
3. it cannot provide any form of accommodation without incurring undue hardship.

THE CASE AT HAND

Did the process followed by Air Canada in assessing Mrs. Bassarab’s need for onboard medical oxygen as it relates to the inability of Mrs. Bassarab’s attending doctor to speak with an Air Canada doctor constitute an undue obstacle to Mrs. Bassarab’s mobility?

Facts, evidence and submissions of the parties

The Boykos and Dr. Rice (doctor at Guy’s and St Thomas’ NHS Foundation Trust hospital in London)

[18] On June 2, Mrs. Bassarab was informed that she could be discharged from the hospital and was well enough to travel by air on June 4. As a result, the Boykos booked three seats to travel on June 4 from London to Calgary with Air Canada. Mr. Boyko also requested the use of a wheelchair for Mrs. Bassarab, at which time Air Canada advised that Mrs. Bassarab had to be medically cleared to travel by its Meda Desk and that her attending doctor had to complete the Air Canada Fitness for Air Travel (FFT) form.

[19] Mrs. Bassarab was under Dr. Ernst’s care at Guy’s and St Thomas’ NHS Foundation Trust hospital in London. Dr. Rice, who was the resident assisting Dr. Ernst, was asked to assist with completing the FFT form as part of Mrs. Bassarab’s discharge process. Dr. Rice states that one of the difficulties in completing the FFT form was the restrictive nature of the questions which required a “Yes/No” answer, particularly as these relate to possibilities that may arise during the transatlantic flight. Dr. Rice states that he and Dr. Ernst felt that it would be appropriate to discuss these questions with an aviation doctor at Air Canada to assess the precise nature of the information needed and to have a professional discussion regarding Mrs. Bassarab’s condition and subsequent progress.

[20] The Boykos submit that the main questions Dr. Rice had difficulty answering were No. 5h) on the FFT form which asked if oxygen was needed on the flight and no. 4 which asked whether a 25 to 30 percent reduction in the ambient partial pressure of oxygen would affect the passenger’s medical condition and if such reduction in pressure would result in hypoxemia. The Boykos further submit that while Dr. Rice had to answer “Yes” to the latter, he had explained that half of the other passengers on the aircraft would be similarly affected, whether they had a stroke or not. The Boykos state that Dr. Rice wanted to speak to an Air Canada doctor to clarify these questions and his answers.

[21] Dr. Rice submits that over the course of three days, he made several unsuccessful calls to “various departments in both the UK and Canada”. He indicates that he eventually spoke to a representative at Air Canada’s head office in Canada who informed him that it was not possible to discuss the case with a doctor or other healthcare professional and that he should complete the form to the best of his ability. Dr. Rice adds that, further to subsequent discussions with Dr. Ernst and the Boykos, he called Air Canada’s head office again, but that he was unable to speak to anyone who was prepared to give advice or assistance. He submits that Air Canada made it clear that it would only correspond by fax and that no case-specific reply would be offered.

[22] The Boykos allege that Ms. Ramnani, Senior Customer Associate with Air Canada’s Meda Desk at Heathrow, was involved in the conversation where Mrs. Bassarab’s doctor was denied the possibility to speak to an Air Canada doctor.

[23] Dr. Rice returned the completed FFT form to Air Canada with a copy of Mrs. Bassarab’s hospital discharge form, which reflected Mrs. Bassarab’s medical condition and the opinion that she was “medically fit to fly back to Canada for hospital admission for further investigation and rehabilitation”.

[24] On the FFT form, Dr. Rice answered “Yes” to the question “Has his/her condition deteriorated recently?” and indicated that, on May 26, Mrs. Bassarab’s saturation level was at 91 percent. Air Canada noted next to his response that Mrs. Boyko “says that she is now at 95 percent”. Dr. Rice noted on the FFT form that, while Mrs. Bassarab was no longer using oxygen, she might need it during the flight depending on her clinical condition.

Air Canada

[25] Air Canada’s Medical Approval (MEDA) or Special Needs Booking Reservation Procedures set out that Air Canada’s Occupational Health Services may discuss a passenger’s condition with the attending doctor but that the attending doctor is not required to respond. Air Canada states that while its doctors do not communicate directly with passengers, they “do make themselves available” to passengers’ attending doctors. Air Canada submits that Dr. Ernst was never refused the right to speak to an Air Canada doctor, and adds that if a request to speak with one of its doctors had been made, the “contact would have been facilitated”.

[26] Air Canada explains that while one may not need oxygen on the ground, the situation can be different in the cabin environment. Air Canada further explains that although the cabin is pressurized, a person’s oxygenation may be affected, particularly in cases where a person recently experienced “medical events”.

[27] Ms. Ramnani asserts that she would not refuse a passenger’s request for their doctor to speak to an Air Canada doctor and would “facilitate” such a request. She states that she does not recall such a request and there is no record of one from the Boykos in Air Canada’s Historic Passenger Name Record (HPNR), a computer record which contains reservations information for passengers.

[28] Air Canada’s HPNR contains entries of three discussions between Air Canada personnel and Mrs. Bassarab’s doctor(s):

• On June 2, Ms. Ramnani called Dr. Ernst to confirm that he had received the FFT form, which he had not.
• On June 3, Dr. Ernst called Ms. Ramnani, who was busy on another call, and Dr. Ernst was told by a colleague of Ms. Ramnani that Air Canada had received Mrs. Bassarab’s discharge forms and that Ms. Ramnani would call him back once Air Canada reviewed the forms.
• On June 3, Mrs. Bassarab’s doctor contacted Ms. Ramnani further to messages she had left and was asked to provide additional information in response to questions from Air Canada’s Meda Desk. Mrs. Bassarab’s doctor provided responses to the questions and indicated that while Mrs. Bassarab was no longer on oxygen, she may require it on board. Ms. Ramnani, in turn, conveyed this information to Ms. Verreault, a nurse at Air Canada’s Montréal Medical Clinic.

[29] Dr. Rohan, who is a consultant with Air Canada at the Montréal Medical Clinic, provides medical expertise with respect to health regulatory requirements including the licensing of pilots and assessments of passengers’ fitness to travel by air. He reviewed Mrs. Bassarab’s file, including her FFT form, and assessed whether she required medical oxygen to travel on the flight from London to Calgary. Dr. Rohan noted, upon review of this matter, that Mrs. Bassarab presented on May 26 with a left occipital infarction (CVA), lower respiratory infection and chronic obstructive pulmonary disease (COPD). In addition, Dr. Rohan noted that Dr. Ernst answered on the FFT form that Mrs. Bassarab would be affected by a 30 percent reduction of partial pressure of oxygen, that oxygen was needed in-flight, that Mrs. Bassarab’s arterial blood gases “on 4 liters of O2” saturation was at 91 percent and that she could not walk 100 metres or climb 10-12 stairs at a normal pace.

[30] Dr. Rohan states that Mrs. Bassarab’s flight was scheduled 8 days post CVA. Dr. Rohan further states that, according to Air Canada’s Guidelines for Passenger Medical Clearances and the International Air Transport Association (IATA) Medical Manual (Jan 2011 – 4th edition), passengers travelling in the first two weeks post CVA should receive supplemental oxygen.

[31] Dr. Rohan also considered Mrs. Bassarab’s age and other medical conditions such as COPD and the facts that she was recovering from a lower respiratory infection, that she could not walk 100 metres or climb 10-12 stairs and that she needed wheelchair assistance, and found that Mrs. Bassarab required oxygen for her nine-hour flight.

Analysis and findings

[32] Dr. Rice’s statement indicates that he was told by an Air Canada representative at the carrier’s head office in Canada that he could not speak to an Air Canada doctor. However, Air Canada’s response is that Dr. Ernst was never refused the right to speak to an Air Canada doctor. The evidence filed by Air Canada contains no records of the calls referred to by Dr. Rice. The only discussion recorded in Air Canada’s HPNR in which Dr. Rice could have been involved is on June 3, when it is noted that “Mrs. Bassarab’s doctor”, without specifying if it was Dr. Rice or Dr. Ernst, contacted Ms. Ramnani and provided additional information in response to questions from the Meda Desk.

[33] Air Canada does not specifically comment on Dr. Rice’s alleged requests to speak with an Air Canada doctor and Ms. Ramnani does not recall any such requests. The Boykos allege that Ms. Ramnani was involved in the conversation in which Mrs. Bassarab’s doctor was denied the possibility to speak to an Air Canada doctor, without specifying if it was Dr. Rice or Dr. Ernst. However, according to Dr. Rice, he would have been denied the right to speak to an Air Canada doctor by the carrier’s Canadian head office, such that Ms. Ramnani, who works at Heathrow, could not have been involved. Consequently, based on the evidence, the Agency finds that Ms. Ramnani was not involved in that conversation.

[34] The manner in which Dr. Rice responded to question 5h) on the FFT form supports his claim that he wanted to speak to an Air Canada doctor to assess the precise nature of the information needed and to have a professional discussion regarding Mrs. Bassarab’s condition and subsequent progress. While Dr. Rice answered “Yes” to the question regarding the need for oxygen in flight, he did not answer the second part of the question regarding the liters per minute (LPM) that would be required in respect of the flow of oxygen for Mrs. Bassarab. Furthermore, Dr. Rice added a note next to his partial answer, i.e., “possibly, depending on clinical condition – No O2 currently”.

[35] There appears to be no reason to doubt Dr. Rice’s claim that he spoke to an Air Canada representative in Montréal who denied his request to speak to an Air Canada doctor. The Agency finds, on a balance of probabilities, that Dr. Rice was not provided with the opportunity to speak with an Air Canada doctor to clarify the nature of the information needed and to have a professional discussion regarding Mrs. Bassarab’s condition.

[36] While Dr. Rice did not get the opportunity to speak with an Air Canada doctor regarding questions on the FFT form, the Agency finds that Dr. Rohan’s assessment of whether Mrs. Bassarab needed medical oxygen in flight was well informed based on accepted practices as referred to in the IATA medical manual, such that it was not necessary, in this case, that the two doctors speak to each other to allow Dr. Rohan to complete his assessment. The factors considered by Dr. Rohan included the information provided by Dr. Rice, Mrs. Bassarab’s medical condition and significant guidance appropriate in the context of air transportation, which indicates that oxygen should be used if a passenger travels within two weeks of a stroke. The Agency therefore finds that Dr. Rohan’s medical assessment in this case was adequately informed and reasonable such that it did not necessitate a dialogue with Dr. Rice, notwithstanding that the treating doctors were not certain whether Mrs. Bassarab would need in-flight medical oxygen. Consequently, the Agency finds that the assessment process used in this case to reach a decision on whether Mrs. Bassarab needed medical oxygen in flight did not constitute an obstacle to her mobility. Having found no obstacle, there is no need for the Agency to consider the aspect of undueness.

Did the process followed by Air Canada in assessing Mrs. Bassarab’s need for onboard medical oxygen as it relates to the communication of Air Canada’s decision concerning Mrs. Bassarab’s need for oxygen constitute an undue obstacle to her mobility?

Facts, evidence and submissions of the parties

The Boykos and Mr. Bearham (Head Concierge at the Park Plaza Victoria London hotel)

[37] The Boykos submit that they were told late on June 3 that they were not allowed to travel the following day as it had been decided that Mrs. Bassarab required onboard medical oxygen and that it would take 48 hours for the oxygen to be ordered and delivered. The Boykos submit that they subsequently contacted Air Canada’s Montréal Meda Desk to “clarify this situation”. The Boykos further submit that they called the Montréal office following a call from Ms. Ramnani, who informed Mr. Boyko that “she was awaiting approval for travel and that she would phone Mr. and Mrs. Boyko by 8:00 a.m., Friday, June 4, 2010.” The Boykos submit that Mr. Boyko informed Ms. Ramnani of the arrangements they had made for Mrs. Bassarab’s hospital discharge. The Boykos state that, in light of this call, and “as the arrangements for Mrs. Bassarab’s hospital discharge and transportation to the airport had been carefully choreographed to begin at 8:00” the next morning, Mr. Boyko called the Montréal Meda Desk during the evening of June 3.

[38] The Boykos specify that Mr. Boyko, Mrs. Boyko and Mr. Bearham spent over two hours at 7:00 p.m. on the evening of June 3 discussing the situation with two Air Canada representatives: Ms. Verreault, nurse at the Montréal Medical Clinic, and Ms. Gravel, Customer Service Agent at Air Canada’s Montréal Meda Desk.

[39] The Boykos indicate that it was Ms. Verreault who finally told them that they had clearance to travel on June 4, without mentioning that Mrs. Bassarab required oxygen. The Boykos assert that Mr. Boyko repeated Ms. Verreault’s statement that they had clearance to travel without oxygen, to which Ms. Verreault answered “Yes”. According to the Boykos, Ms. Verreault also indicated that she would send an e‑mail to this effect to London and if they experienced any problems at check-in, they could tell the manager to check the file. The Boykos state that “Mr. Boyko has 2 witnesses to this conversation.” The Boykos clarify that Mr. Bearham and Mrs. Boyko were beside Mr. Boyko during the entire telephone conversation with Ms. Verreault and Ms. Gravel. The Boykos refer to the statement from Mr. Bearham to this effect and to the piece of paper on which Mr. Bearham “wrote the names of the office staff Mr. Boyko and the concierge spoke to”. In a subsequent submission, the Boykos submit that on the evening of June 3, both Ms. Verreault and Ms. Gravel stated, “after two repetitions”, that Mrs. Bassarab was cleared to travel on June 4 without oxygen and that “3 witnesses […] heard this”.

[40] Mr. Bearham states that he remembers the incident but not the names of those involved. However, he refers to the piece of paper on which he submits he wrote the names. The Boykos clarify that the names indicated are the first names of Ms. Verreault and Ms. Gravel. The piece of paper also notes the following: “Medical desk Mont”, “Montreal”, “sent email to London clearing”, an Air Canada number in London and “Air Canada ask Manager to file”.

[41] Mr. Bearham states that, starting at about 6:00 p.m. on June 3, he and the Boykos made two calls and spent almost one hour on hold each time to reach the Canadian office “as the British office was closed at that time or were overly obtuse in their assistance”. Mr. Bearham states that, “if [he] remember[s] rightly the doctor at the hospital had passed [Mrs. Bassarab] as fit to fly and wanted her out of the hospital as she was recovering [and] the whole issue for Air Canada was about an oxygen supply that would take 2 days to organise before they would let her fly, despite her not requiring oxygen as her breathing was ok.” Mr. Bearham submits that, after communicating all the relevant information to the Air Canada representative, “[he] believe[s] that she went to seek advice from the medical team and returned saying that it would be ok” and the Boykos should proceed with their flight the next day. Mr. Bearham submits that notes to this effect were to be made in the reservation system. He states that he asked the representative for her name and with whom the Boykos should speak at the airport if there were issues and that the representative indicated that there should be no issues but to ask for the check-in supervisor who would have all the notes regarding the booking. Mr. Bearham states that he then made arrangements for the Boykos to collect Mrs. Bassarab from the hospital and go to the airport.

[42] The Boykos submit that on the morning of June 4, Ms. Ramnani called at 9:30 a.m. while they were enroute to the airport and informed Mr. Boyko that Mrs. Bassarab would not be able to travel without oxygen. The Boykos state that Mr. Boyko advised Ms. Ramnani that “he had been cleared” by the Montréal office the previous evening and that he would deal with the matter when he arrived at the airport. The Boykos question why Ms. Ramnani did not call them as planned, i.e., by 8:00 a.m. on June 4. The Boykos submit that Ms. Ramnani was aware that they had a taxi arriving at 9:00 a.m. to take them to the hospital to pick up Mrs. Bassarab. The Boykos further submit that they would not have made arrangements to have Mrs. Bassarab discharged from the hospital on the morning of June 4 if she had not been cleared to travel without oxygen.

[43] The Boykos ask that they be reimbursed by Air Canada for the expenses incurred during the time they had to stay in London as a result of the one-day delay for their return flight on June 5. The Boykos submit that if Dr. Rice, one of Mrs. Bassarab’s attending doctors at the London hospital, had been able to discuss Mrs. Bassarab’s medical condition with an Air Canada doctor, they would have agreed with “his final decisions” and remained at the hotel for the duration of Mrs. Bassarab’s hospitalization, and Mrs. Bassarab would have remained in the hospital until final travel arrangements were agreed upon.

[44] The Boykos further submit that as Air Canada ordered the oxygen, it should have been responsible for the Medipak (Air Canada’s medical oxygen supply) costs. In addition, the Boykos ask that Air Canada be required to reimburse the following expenses as a result of the flight change:

• 123.85 pounds for one night of accommodation on June 4;
• 21.90 pounds for food at the hotel on June 4; and,
• 17.00 pounds for the taxi fare to Heathrow on June 5.

[45] The Boykos also ask that the Aeroplan points offered by Air Canada as a gesture of goodwill be exchanged to Air Miles points.

Air Canada

[46] Air Canada submits that personnel of its Montréal clinic are adamant that they did not approve Mrs. Bassarab to travel without oxygen and that this is consistent with what is indicated in its records. Air Canada submits that there was constant communication between the London Meda Desk, the hospital at which Mrs. Bassarab was staying and the Montréal Medical Clinic. Air Canada denies that there was any confusion on its part and submits that, although Mr. Boyko was being kept informed by Ms. Ramnani during the whole process, it appears that the Boykos refused to acknowledge or accept the information that was relayed, and refused to accept that Mrs. Bassarab would require oxygen on board the flight. Air Canada submits that the only confusion, if there was confusion, was caused by the Boykos’ “refusal to acknowledge the process” and their insistence on challenging Air Canada’s finding that Mrs. Bassarab had to travel with oxygen.

[47] Air Canada submits that despite having been informed that Mrs. Bassarab needed medical clearance and having been advised before departing for the airport on June 4 that Mrs. Bassarab had to travel with oxygen, the Boykos took it upon themselves to go to the airport to try to “work it out”, such that Air Canada is not responsible for the Boykos’ hotel fees.

Air Canada’s witnesses

[48] Ms. Ramnani indicates that Mr. Boyko called the London Meda Desk on June 3 to “check if a reply was received” and was informed by one of her colleagues that a reply was received from the Montréal office, but that certain details had to be verified and that Air Canada would call Mr. Boyko back.

[49] Ms. Ramnani states that after receiving a call from Mrs. Bassarab’s doctor, she called Ms. Verreault at the Montréal clinic to transfer the information that she had just obtained regarding Mrs. Bassarab’s condition. Ms. Ramnani asked Ms. Verreault whether Mrs. Bassarab would be able to travel the next day. Ms. Verreault responded that she would have to check with the Meda Desk doctor, which would take another half hour, to which Ms. Ramnani responded that the London office was closing in 10 minutes.

[50] Ms. Ramnani states that she then contacted Mr. Boyko to advise him that Air Canada had obtained the additional information it needed from Mrs. Bassarab’s doctor, and that this information had been forwarded to Air Canada’s doctors for their assessment. Ms. Ramnani submits that she advised Mr. Boyko that if oxygen were to be required on the flight, Mrs. Bassarab would not be able to travel the next day (June 4). A note in the HPNR indicates that the Boykos were very upset and advised Ms. Ramnani that Mrs. Bassarab did not need oxygen. Ms. Ramnani states that she then conveyed this information to Ms. Verreault, who confirmed that she would advise the London office of the Air Canada doctor’s decision.

[51] Ms. Ramnani states that on June 4, further to receiving the Montréal Medical Clinic decision that Mrs. Bassarab could travel with oxygen, she called Mr. Boyko to advise him that oxygen would be required. Ms. Ramnani states that Mr. Boyko advised her that they were leaving for the airport and that she reiterated that Mrs. Bassarab would not be able to travel without oxygen, to which Mr. Boyko replied that he would deal with the matter at the airport.

[52] Ms. Ramnani’s above statements are also set out in Air Canada’s HPNR.

[53] Ms. Ramnani submits that only the Air Canada doctors can provide medical approvals regarding oxygen use such that she could not have advised Mr. Boyko that oxygen would not be required.

[54] Ms. Gravel states that based on the HPNR, she was not involved in Mrs. Bassarab’s booking or medical clearance. She submits that if she had been involved, the HPNR would have been documented with her entries and comments, as this is standard procedure. She submits that, as a Customer Service Agent, she would never overrule Air Canada doctors’ decisions regarding the conditions of travel for a passenger with a medical condition. Ms. Gravel explains that her role is to liaise between the passengers and the Air Canada doctors, as well as with passengers’ doctors, if required, to “institute requirements mandated” by the Air Canada doctors.

[55] Ms. Verreault submits that she did not make independent decisions regarding Mrs. Bassarab’s condition or the requirements for her travel and that this was done by the medical doctor on duty. Ms. Verreault explains that her role was to gather additional information. She submits that she would not have advised the Boykos or Mrs. Bassarab that Mrs. Bassarab would not need oxygen for travel. Ms. Verreault explains that there was no information on the FFT form indicating that there was no need for oxygen; on the contrary, she states that the FFT form indicated that Mrs. Bassarab had to travel with oxygen. Ms. Verreault states that “this assessment and requirement was done by the Air Canada medical doctors” to safeguard Mrs. Bassarab’s health and safety.

Analysis and findings

[56] As the evidence of the parties concerning the issues raised by the Boykos is contradictory, the Agency must decide whether the Boykos have provided sufficient evidence to support their position that, on June 3, they received clearance for Mrs. Bassarab to travel without oxygen on June 4, to outweigh the opposing evidence presented by Air Canada.

[57] In weighing this opposing evidence, as it is with 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 their version adequately represents the facts in dispute or that their position is the correct one. This principle is equally applicable to allegations of obstacles under Part V of the CTA.

[58] The onus is therefore on the Boykos to satisfy the Agency that their version with respect to the alleged clearance for Mrs. Bassarab to travel without oxygen is more probable than Air Canada’s version. As the Agency is faced with different versions of events, to the point of being irreconcilable, it must determine if the Boykos have proved their allegations of obstacle against Air Canada.

[59] 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, the burden of proof 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 to determine which of the different versions is more probable.

[60] The Boykos allege that Air Canada’s personnel in Montréal cleared Mrs. Bassarab to travel on June 4 without medical oxygen, which Air Canada refutes. While Ms. Gravel states that it is standard procedure to document discussions in the HPNR, it contains no notes of the call(s) Mr. Boyko and/or Mr. Bearham would have made to the Montréal office on June 3. Air Canada and its witnesses do not deny that calls were made. However, of the two employees identified by the Boykos as being involved in the discussion(s) of June 3, one, Ms. Gravel, denies being involved, and the second, Ms. Verreault, alleges that she would not have advised that Mrs. Bassarab would not need oxygen to travel.

[61] In addition to these disagreements between the parties, the Agency finds that there are inconsistencies and a lack of clarity in the Boykos’ and Mr. Bearham’s statements. While the Boykos make reference to one lengthy call to the Montréal office, Mr. Bearham submits that two calls were made, with no indication as to why a second call would have been made. It is also unclear which Air Canada personnel would have given clearance for Mrs. Bassarab to travel without oxygen on June 4; while the Boykos initially submitted that it was Ms. Verreault, they subsequently stated that it was Ms. Verreault and Ms. Gravel.

[62] The Boykos also cite two reasons for contacting the Montréal office on June 3. The first reason they submit is that they wanted to “clarify the situation” concerning the finding by the London Meda Desk that Mrs. Bassarab would have to travel with medical oxygen, which is contrary to Ms. Ramnani’s statement and notes in the HPNR. According to this evidence, during her last discussion with Mr. Boyko on June 3, Ms. Ramnani would have indicated that they were awaiting approval from Air Canada’s doctor and advised that, in the event that medical oxygen would be required, Mrs. Bassarab would not be able to travel the next day. The second reason cited by the Boykos for the call to the Montréal office was because travel approval was pending and they did not want to wait until the next morning for the decision on this matter.

[63] According to Mr. Bearham, it would seem that the call made on the evening of June 3 would have been made to try to convince Air Canada that oxygen was not required as he seems to recall that the issue was that Air Canada required medical oxygen, which would take two days to organize, despite Mrs. Bassarab not requiring it. Similarly, when Ms. Ramnani reached Mr. Boyko on his phone on the morning of June 4 to indicate that oxygen was a requirement to travel and that travel would therefore not be possible that day, his response was to continue making their way to the airport and deal with the matter at the airport. It therefore seems that, despite Air Canada’s finding that Mrs. Bassarab had to travel with oxygen, the Boykos insisted that their travel take place as early as possible.

[64] Furthermore, the Agency notes Ms. Ramnani’s statement that it is only the Air Canada doctors who can provide medical approvals regarding oxygen use. In addition, Ms. Verreault states that Mrs. Bassarab’s assessment and requirement for oxygen was done by the Air Canada medical doctors. The Agency is of the opinion that, given the critical nature of medical assessments regarding persons’ fitness to travel and the risks associated with a person travelling without clearance, and given that the FFT form indicated the need for Mrs. Bassarab to have onboard oxygen, it is unlikely that either Ms. Ramnani or Ms. Verreault would have told the Boykos that Mrs. Bassarab could travel without oxygen.

[65] As set out above, the onus is on the Boykos to satisfy the Agency that their version with respect to Mrs. Bassarab being cleared to travel without oxygen is more probable than Air Canada’s version. However, in light of the lack of clarity and inconsistencies in the Boykos’ submissions, including Mr. Bearham’s statement, and the parties’ contradictory versions of events, the Agency is not satisfied that the Boykos’ version of events is sufficiently convincing or that their version is more probable than Air Canada’s version.

[66] The Agency finds that the Boykos have not proven a sufficient degree of probability to warrant a conclusion that the process followed by Air Canada to communicate Mrs. Bassarab’s need for onboard medical oxygen constituted an obstacle to her mobility. Having found no obstacle, there is no need for the Agency to consider the aspect of undueness.

[67] The Agency’s power, pursuant to subsection 172(3) of the CTA, is to require the taking of appropriate corrective measures and/or direct that expenses incurred by a person with a disability arising out of the undue obstacle be reimbursed. The Agency’s power exists only if it finds the existence of an undue obstacle to the mobility of a person with a disability. Having found that the Boykos have not met their burden of proof to demonstrate the existence of an obstacle, the matter relating to the Boykos’ request for the reimbursement of expenses for medical oxygen, lodging, meals and ground transportation, as well as the requested Air Miles points (which is not an incurred expense), will not be further addressed by the Agency.

Did the level of wheelchair assistance provided to Mrs. Bassarab at Heathrow on June 4 and 5 and at the Calgary airport on June 5 constitute an undue obstacle to her mobility?

[68] The level of wheelchair assistance is assessed in terms of:

• whether Air Canada followed proper procedures by conveying the need for assistance to OCS to ensure that the wheelchair assistance at Heathrow was provided:
  • on June 4 and 5 from the drop-off area;
  • to exit Heathrow on June 4;
  • from the boarding gate area to the door of the aircraft on June 5.
  • the level of wheelchair assistance at the Calgary airport.

Conveying the need for wheelchair assistance at Heathrow on June 4 and 5 from the drop‑off area

Facts, evidence and submissions of the parties

i. June 4

The Boykos

[69] On June 2, Mr. Boyko contacted Air Canada to request a wheelchair for Mrs. Bassarab upon arrival at Heathrow on June 4. The Boykos and Mrs. Bassarab arrived at the Air Canada’s drop‑off area at Heathrow at 10:30 a.m. on June 4. Mrs. Boyko and Mrs. Bassarab waited in the taxi for someone to arrive with the wheelchair. The Boykos submit that it took Mr. Boyko and the taxi driver 30 minutes to find a wheelchair to transport Mrs. Bassarab to the check-in counter. According to the Boykos, they “were told no one could be found to bring the wheelchair to [them]” and there was no record of their wheelchair booking.

Air Canada and its witnesses

[70] OCS provides wheelchair assistance at Heathrow pursuant to a contract with the British Airport Authority. The Regulation requires carriers to provide a 36-hour advance notice to the Airport Authority. The Regulation specifies that this requirement applies when an air carrier receives notification of the need for wheelchair assistance at least 48 hours before the published departure time of the flight. The Regulation also sets out that, in all other cases, the carrier shall transmit the request for wheelchair assistance “as soon as possible”.

[71] Air Canada submits that it advised OCS of the requirement for Mrs. Bassarab to have wheelchair assistance on June 4, and an OCS agent was dispatched at 11:11 a.m. to assist her from the drop‑off area. Air Canada states that, apparently, based on “their statement”, the Boykos and Mrs. Bassarab did not wait for the OCS agent and made their way on their own to the Air Canada check-in counter.

[72] Mr. Green, Air Canada’s Airport Manager for Passenger Services at Heathrow, explains that the process for wheelchair handling at Heathrow is that the carrier normally makes a request for a wheelchair at the point of booking a flight but also when a passenger arrives at check-in on the day of departure. Mr. Windebank, Area Director with OCS, confirms that OCS was pre-notified by Air Canada of Mrs. Bassarab’s need for wheelchair assistance for travel on June 4. Mr. Windebank also states that, on June 4, OCS was advised that Mrs. Bassarab required assistance at the drop-off area. Mr. Windebank explains that the normal procedure is for the carrier to advise OCS when a passenger is “within the drop off zone for collection”. Mr. Windebank states, consistent with an OCS service record, that an agent was dispatched at 11:11 a.m. to assist Mrs. Bassarab from the drop-off area.

ii. June 5

The Boykos

[73] As the Boykos and Mrs. Bassarab were not able to travel on June 4 due to Air Canada’s requirement that Mrs. Bassarab travel with a Medipak, which required 48 hours for delivery, they were scheduled to travel on June 6. On June 5, however, Air Canada informed them that the Medipak had arrived, such that they could travel that day.

[74] The Boykos state that they again requested a wheelchair and, upon arrival at Heathrow, “there was no response” to their request. In a subsequent submission, the Boykos specify that they requested a wheelchair when they and Mrs. Bassarab were dropped off by a taxi at the drop-off area for Air Canada flight departures on June 5. The Boykos submit that, as no request was made by Air Canada to OCS for a wheelchair for Mrs. Bassarab for June 5, Mr. Boyko was unable to secure one and Mrs. Bassarab was forced to walk to the Air Canada check-in counter, after having sat on an outside bench for a considerable length of time.

Air Canada

[75] Air Canada advises that “as it was the last minute” when it contacted the Boykos to advise them that the Medipak was available for travel on June 5 and the Boykos indicated their willingness to travel as soon as possible, it did not relay the request for wheelchair assistance to OCS.

[76] Air Canada points out that the Boykos and Mrs. Bassarab checked in at 1:19 p.m.; Air Canada verbally requested assistance for Mrs. Bassarab from the check-in counter at 1:24 p.m.; and OCS provided the wheelchair assistance at 1:31 p.m. Air Canada states that it was indicated “at that time” that Mrs. Bassarab could walk short distances on her own.

Analysis and findings

[77] With respect to the June 4 incident, it is clear from the evidence that Air Canada informed OCS that Mrs. Bassarab required wheelchair assistance at the drop-off area prior to Mr. Boyko finding a wheelchair. The request for assistance was already transmitted by Air Canada and an OCS agent was dispatched at 11:11 a.m. The Boykos and Mrs. Bassarab, however, did not wait for the assistance. They instead took it upon themselves to make it on their own to the check-in counter using the wheelchair that Mr. Boyko had found.

[78] With respect to June 5, the Agency accepts that Mr. Boyko did not advise the Air Canada personnel at the check-in counter of the need for assistance and chose to try to find a wheelchair himself and, when that failed, the Boykos and Mrs. Bassarab walked to the check-in counter. As Air Canada was only made aware of their arrival at the airport when they presented themselves for check-in, Air Canada was not provided with an opportunity to convey a request to OCS to provide wheelchair assistance from the drop-off area. However, Air Canada did inform OCS of the need to provide wheelchair assistance to Mrs. Bassarab from the check-in counter to the boarding gate.

[79] In light of the evidence filed, the Agency finds that Air Canada followed proper procedures by conveying Mrs. Bassarab’s need for wheelchair assistance to OCS on June 4 and 5. The Agency also finds that the Boykos failed to provide sufficient evidence to outweigh the evidence of Air Canada such that the Boykos did not meet their burden of proof to demonstrate that Air Canada failed to convey a request for wheelchair assistance to OCS on June 4 and 5 in accordance with proper procedures. The Agency therefore finds that the Boykos failed to demonstrate that the lack of wheelchair assistance at the drop-off area constituted an obstacle to Mrs. Bassarab’s mobility. Having found no obstacle, there is no need for the Agency to consider the aspect of undueness.

[80] Nevertheless, it would appear, based on the fact that Mr. Boyko and the taxi driver searched for a wheelchair, that the Boykos were not aware on June 4 that someone needed to present themselves at the Air Canada check-in counter to advise that Mrs. Bassarab had arrived at the drop-off area so the carrier could notify OCS, which would provide the necessary assistance. In this regard, the Agency notes that there is no indication in Air Canada’s policies and procedures as to the communication of information to either OCS or Air Canada’s passengers with respect to wheelchair assistance at Heathrow.

Conveying the need for wheelchair assistance to exit Heathrow on June 4

Facts, evidence and submissions of the parties

The Boykos

[81] The Boykos explain that, following initial discussions at the Air Canada check-in counter, they were told to move to another desk around the corner to speak to Ms. Matthars, who is the Heathrow Customer Sales and Service Co-ordinator with Air Canada. The Boykos state that during their discussion about Air Canada’s refusal to allow Mrs. Bassarab to travel that day without medical oxygen, the wheelchair porter who was waiting for Mrs. Bassarab told the Boykos that she needed to use the wheelchair for someone else. Mrs. Bassarab was assisted to a bench away from the check-in counter.

[82] The Boykos submit that there was no effort made by Ms. Matthars to find another wheelchair so that Mrs. Bassarab could be assisted out of the airport to the taxi stand, even though, at the end of the discussion, Mr. Boyko searched, to no avail, for a wheelchair and Ms. Matthars “was aware of the situation”. The Boykos state that Mrs. Bassarab had to walk a long distance to the taxi stand in a great deal of pain due to her catheter.

Air Canada

[83] Ms. Matthars did not address wheelchair assistance in her statement.

Analysis and findings

[84] The Boykos did not state that they asked Air Canada for wheelchair assistance for Mrs. Bassarab to exit the airport. The Boykos chose to search for a wheelchair on their own and, when one could not be found, they decided to exit the airport without inquiring whether wheelchair assistance could be provided.

[85] It is critical that disability-related needs are clearly conveyed to transportation service providers. Assumptions cannot be made that the transportation service provider will know what a person’s disability-related needs are as the need for accommodation can be different from one situation to the next.

[86] The Boykos should not have assumed that Ms. Matthars was “aware of the situation” and should have requested the wheelchair assistance that was needed to meet Mrs. Bassarab’s needs. While Air Canada’s submissions did not address the Boykos’ concern regarding the lack of wheelchair assistance for Mrs. Bassarab to exit the airport on June 4, the Agency is of the opinion that had the Boykos made a request for such assistance, Air Canada would have been in a position to ensure that the assistance was provided.

[87] The fact that Mrs. Bassarab walked to exit Heathrow on June 4 was the result of a decision by the Boykos. As such, the Agency finds that the lack of wheelchair assistance to exit Heathrow on June 4 did not constitute an obstacle to Mrs. Bassarab’s mobility. Having found no obstacle, there is no need for the Agency to consider the aspect of undueness.

Conveying the need for wheelchair assistance from the boarding gate to the door of the aircraft on June 5

Facts, evidence and submissions of the parties

The Boykos

[88] The Boykos explain that they and Mrs. Bassarab were dropped off from the “buggy” outside the boarding gate where Mrs. Bassarab was then seated while waiting to board the aircraft. The Boykos submit that “no wheelchair could be found” to board Mrs. Bassarab. They explain that as soon as they arrived at the gate, Mrs. Boyko informed an Air Canada employee, who was taking boarding passes from the queue, about their “situation”. The Boykos state that they were told to remain seated and wait for a wheelchair to assist Mrs. Bassarab to the door of the aircraft. The Boykos also state that the Air Canada employee assured them that a wheelchair would be forthcoming to assist Mrs. Bassarab to the door of the aircraft. The Boykos add that they and Mrs. Bassarab sat on the bench until all the passengers were boarded and still no wheelchair was provided, at which time they made their way to the aircraft.

Air Canada and OCS

[89] Mr. Windebank of OCS states that an OCS agent assisted Mrs. Bassarab from the Air Canada check-in counter at 1:31 p.m. The OCS form for this assistance reflects that a “Category R” was assigned, which means that the passenger can walk short distances unaided and walk up steps. Air Canada understands from OCS’s statement that, as Air Canada was advised that Mrs. Bassarab could walk some distance and that information was relayed to OCS, no wheelchair assistance was provided for her between the gate and the aircraft.

Analysis and findings

[90] There is no evidence that Air Canada made any effort to ensure that Mrs. Boyko’s request had been conveyed to OCS for the wheelchair assistance from the boarding area to the aircraft. It is Air Canada’s responsibility to ensure that, at each step of the transportation process at Heathrow, it makes its best effort to communicate information to OCS regarding passengers’ requests for wheelchair assistance.

[91] Regardless of the manner in which Mrs. Bassarab’s need for wheelchair assistance was categorized and interpreted, Mrs. Boyko made it known to an Air Canada employee at the boarding gate that Mrs. Bassarab needed wheelchair assistance to make her way to the aircraft. Although this employee told the Boykos to wait for the wheelchair assistance, it was never provided. As a result, Mrs. Bassarab had to walk to the aircraft. The Agency therefore finds that Air Canada’s failure to ensure that wheelchair assistance was forthcoming and to communicate the need for wheelchair assistance to OCS after being advised of that need at the gate constituted an obstacle to Mrs. Bassarab’s mobility.

[92] Furthermore, there is no evidence that there were any constraints that would have prevented Air Canada from ensuring that it had already communicated the need for the wheelchair assistance and, if not, to do so. As such, the Agency finds that the lack of wheelchair assistance to board the aircraft constituted an undue obstacle to Mrs. Bassarab’s mobility.

Level of wheelchair assistance upon arrival at the Calgary airport on June 5

Facts, evidence and submissions of the parties

The Boykos

[93] The Boykos submit that upon arrival at the Calgary airport, there was no wheelchair assistance provided and Mrs. Bassarab had to walk the length of the airport in tremendous pain due to her catheter.

[94] The Boykos question why they would have had to advise Air Canada of the need for a wheelchair upon arrival in Calgary when it was the Boykos’ understanding that this request had already been processed.

Air Canada

[95] The Special Service Request “WCHR” was added to Mrs. Bassarab’s passenger name record. Air Canada explains that WCHR is the code for passengers needing wheelchair assistance for distance within the terminal, but who are able to board the aircraft and get to their seat by themselves.

[96] Air Canada explains that during the reservation change from June 6 to June 5, the request for wheelchair assistance at the Calgary airport was not re-entered in the reservation system as it was mistakenly assumed that the system would automatically make the adjustment. Consequently, no agent was waiting with a wheelchair upon Mrs. Bassarab’s arrival. Notwithstanding, Air Canada states that there is no indication that the Boykos advised the crew of the need for wheelchair assistance. Air Canada explains that upon arrival, service directors always make an announcement that passengers who require assistance in leaving the aircraft should stay in their seats until all other passengers have disembarked. Air Canada states that flight crew will stay on board until the last passenger has disembarked. In the event that a wheelchair was not forthcoming, the crew would have called the gate to have a wheelchair delivered. Air Canada also points out that, in addition to the specific wheelchair service, the Calgary Airport Authority provides transportation using carts, similar to the “buggy” at Heathrow.

Analysis and findings

[97] Air Canada admits that the lack of wheelchair assistance at the Calgary airport was the result of an error on its part. However, the Boykos did not know about this error on the day of travel. It was their understanding that the wheelchair request had been processed. Regardless, when the Boykos realized that a wheelchair for Mrs. Bassarab was not available at the gate upon their arrival, the Boykos decided to not wait for wheelchair assistance nor did they raise the matter with Air Canada’s personnel. In the event that the wheelchair assistance was not forthcoming, the Boykos should have raised the matter with Air Canada personnel, providing the opportunity to Air Canada to rectify the situation. As noted above, it is critical that disability-related needs are clearly conveyed to transportation service providers. In addition, assumptions should not be made that the transportation service provider will not provide the required service.

[98] The fact that Mrs. Bassarab walked the length of the Calgary airport was the result of a decision by the Boykos. As such, the Agency finds that the lack of wheelchair assistance upon the Boykos’ and Mrs. Bassarab’s arrival at the Calgary airport did not constitute an obstacle to Mrs. Bassarab’s mobility. Having found no obstacle, there is no need for the Agency to consider the aspect of undueness.

Did the failure to pre-board Mrs. Bassarab for the London to Calgary flight constitute an undue obstacle to her mobility?

Facts, evidence and submissions of the parties

The Boykos

[99] The Boykos submit that as they proceeded to the aircraft, an Air Canada employee seated at a desk/table next to the boarding gate “yelled out” that they had not paid the fee for oxygen, which the Boykos then paid before hurrying to the aircraft. The Boykos submit that they should have been made aware of the required payment for the oxygen earlier, for example, during check-in.

[100] The Boykos submit that it has been their experience that persons needing additional time or assistance when boarding are pre-boarded. They are of the view that if a person with a disability requires pre-boarding, such a person should be brought to the gate before any queue starts for regular boarding. However, they submit that for the London to Calgary flight with Air Canada, Mrs. Bassarab and the Boykos were the last to board such that they had difficulty finding space to store their carry-on luggage in the overhead bins.

[101] The Boykos question why Mrs. Bassarab, as a person with a disability who required extra time and assistance boarding the aircraft, was the last passenger to board.

Air Canada

[102] Air Canada’s Baggage Procedures – Checked and Carry-on for POC set out that its employees are to ensure the pre-boarding of a customer who requires oxygen. Air Canada indicates that passengers needing assistance or travelling with small children are first invited to pre-board 45 minutes prior to departure.

[103] Air Canada explains that at Heathrow, the boarding gate is normally assigned one hour prior to the flight’s departure. In the case at hand, OCS brought Mrs. Bassarab to the boarding gate with a “buggy” within 15 minutes of the gate announcement, such that she arrived at the boarding gate at 3:30 p.m. for the 4:15 p.m. flight departure, which would have coincided with the invitation to pre-board. As such, Air Canada submits that if there was an obstacle to Mrs. Bassarab’s mobility in that process, this obstacle was not within Air Canada’s control and cannot therefore be deemed to be undue.

[104] Air Canada’s Meda Desk procedures – Medipak Oxygen set out that oxygen fees are to be collected by the Meda Desk. Air Canada explains, however, that at the departure gate, passengers’ passports are checked before passing by a counter manned by Air Canada agents who scan the boarding passes and address any outstanding issues, and that it is at this point that it was noticed that payment for the oxygen for Mrs. Bassarab had not been received.

Analysis and findings

[105] The only impact raised by the Boykos as a result of being the last to board was the difficulty that the Boykos had in finding space for their carry-on luggage in the overhead bins. This inconvenience is not a disability-related matter. The Boykos have not demonstrated that Air Canada’s failure to pre-board Mrs. Bassarab had an impact on Mrs. Bassarab’s mobility, such that they did not meet their burden of proof to demonstrate the existence of a related obstacle. Having found no obstacle, there is no need for the Agency to consider the aspect of undueness.

Did the location of Mrs. Bassarab’s seating on the London to Calgary flight constitute an undue obstacle to her mobility?

[106] The Boykos raise two issues concerning Mrs. Bassarab’s seating on the London to Calgary flight; namely, her seating not being close to the washroom and the positioning of the Medipak.

Seating close to the washroom

Facts, evidence and submissions of the parties

The Boykos

[107] The Boykos submit that they “had been assured earlier that any extra accommodations that needed to be made for Mrs. Bassarab’s comfort and safety would be made”, and if there was room she could be placed in first class and at the least she would be seated closer to the washroom for ease in emptying her catheter bag. However, Mrs. Boyko and Mrs. Bassarab were seated 19 rows from the washroom and the Boykos submit that the flight attendants did not try to re-seat Mrs. Bassarab closer to the washroom by asking passengers seated near a washroom if they would consider changing seats for a passenger with a medical condition.

[108] The Boykos state that, as the flight was fully booked, they did not expect Mrs. Bassarab to be seated in the first class section. However, they did expect that they would be seated close to a washroom.

[109] The Boykos further submit that a seat closer to the washroom would have been the accommodation needed to address Mrs. Bassarab’s disability and her related medical needs. The Boykos explain that Mrs. Bassarab’s catheter bag was not to be removed as a tube was connected to the catheter bag which was taped to Mrs. Bassarab’s leg and it was through this tube that the bag was to be emptied. The Boykos state that Mrs. Boyko had to bend down several times to empty the catheter bag into a bottle provided by a flight attendant.

[110] Mrs. Bassarab’s attending doctor in London had indicated on Air Canada’s FFT form that she was using a catheter as a measure for “bladder control”.

Air Canada

[111] Air Canada states that the accommodation to allow the Boykos to travel on June 5 was made at the last minute and that the flight was fully booked (210 passengers for a capacity of 211 seats). Air Canada submits that there was no indication that Mrs. Bassarab was using a catheter or that she needed to be seated near a washroom. Air Canada states that Mrs. Bassarab had been allowed to travel with an attendant, namely Mrs. Boyko, and that the sanitary emptying of a catheter is to be performed by the attendant in the washroom. Air Canada explains that this is not a service provided by flight attendants. Air Canada suggests that, if required, the Boykos could have asked for an on-board wheelchair, along with portable oxygen, to assist Mrs. Bassarab to the washroom.

Analysis and findings

[112] While the Boykos submit that a seat closer to the washroom would have been the accommodation needed to address Mrs. Bassarab’s medical-related needs, it is not clear how this would have addressed her needs. Rather, the Boykos state that Mrs. Boyko had to bend down several times to empty Mrs. Bassarab’s catheter. Any impact on Mrs. Boyko is not a consideration that can be taken into account in the determination of whether the seating proximity to the washroom constituted an obstacle to Mrs. Bassarab’s mobility. The Agency therefore finds that the Boykos did not meet their burden of proof to demonstrate the existence of an obstacle to Mrs. Bassarab’s mobility as a result of Mrs. Bassarab’s seat on the London to Calgary flight not being close to the washroom. Having found no obstacle, there is no need for the Agency to consider the aspect of undueness.

Positioning of the Medipak

Facts, evidence and submissions of the parties

The Boykos

[113] The Boykos submit that the Medipak was placed on the floor in front of Mrs. Bassarab’s feet, impeding on the available floor space, which resulted in Mrs. Bassarab not being able to place her feet on the floor in a comfortable position. The Boykos further submit that Mrs. Bassarab had to sit with her feet on top of the Medipak box and her knees were raised, causing more pressure on her catheter. The Boykos state that they argued with a flight attendant who reluctantly moved the Medipak into what appeared to be a kitchen area close to their seats.

Air Canada

[114] Air Canada states that the positioning of the Medipak was according to its “Medical Oxygen and POC Policy and Procedure” which sets out that the Medipak must be stowed under the forward seat. Air Canada adds that the positioning of the Medipak at the passenger’s feet allows for the mandatory monitoring and adjustment of the flow during the flight. Air Canada explains that because of the size of the container, and the need to keep the monitor visible at all times, the Medipak cannot be hidden completely under the forward seat, but that it is narrow enough for a passenger to place their feet on the side of the Medipak.

[115] Air Canada submits that there was no obstacle to Mrs. Bassarab’s mobility on board the flight and that if there was, such obstacle was not undue.

Analysis and findings

[116] The Boykos submit that Mrs. Bassarab was unable to place her feet on the floor in a comfortable position as a result of the placement of the Medipak. While Air Canada submits that the width of the Medipak allows a passenger to place their feet on the side of the Medipak, the Agency finds that it is unlikely that Mrs. Bassarab would have chosen to sit with her feet on the Medipak, causing more pressure on her catheter if, in fact, she felt that she had sufficient floor space to sit comfortably with her feet next to the Medipak. The Agency therefore accepts the Boykos’ statement in this regard.

[117] The Agency finds that, in the circumstances, the positioning of the Medipak had an impact on Mrs. Bassarab due to her need to use a catheter. Consequently, the Agency finds that the seating assignment for Mrs. Bassarab, as it relates to the location of the Medipak, constituted an obstacle to her mobility.

[118] Although Air Canada states that the flight from London to Calgary was fully booked, it clarifies that there were 210 passengers for a capacity of 211 seats, indicating that there would have been one vacant seat. However, there is no indication that an effort was made by the in-flight personnel to ask passengers to change seats to allow Mrs. Bassarab to be seated adjacent to the vacant seat. The extra floor space that would have been available by seating Mrs. Bassarab adjacent to a vacant seat would have permitted her to sit with her feet placed in a normal position as the Medipak could have been placed on the floor in front of the adjacent seat.

[119] There is no evidence to indicate that there were constraints that prevented Air Canada from making an effort to move passengers to allow Mrs. Bassarab and Mrs. Boyko to be seated next to the vacant seat, thereby ensuring that the Medipak would not encroach on the space for Mrs. Bassarab’s feet and cause increased pressure on her catheter. Accordingly, the Agency finds that the obstacle to Mrs. Bassarab’s mobility caused by the seating assignment for Mrs. Bassarab, as it relates to the location of the Medipak, was undue.

CONCLUSION

[120] The Agency finds that the assessment process used by Air Canada to reach a decision on whether Mrs. Bassarab needed medical oxygen in flight and the lack of wheelchair assistance to exit Heathrow on June 4 and upon arrival at the Calgary airport did not constitute undue obstacles to Mrs. Bassarab’s mobility.

[121] The Agency further finds that the Boykos have not met their burden of proof to demonstrate that the following constituted obstacles to Mrs. Bassarab’s mobility:

• the communication by Air Canada of its decision that Mrs. Bassarab needed medical oxygen to travel;
• the lack of wheelchair assistance upon the Boykos’ and Mrs. Bassarab’s arrival at the drop‑off area at Heathrow on June 4 and 5 as it relates to Air Canada’s responsibility to convey a request for wheelchair assistance to OCS;
• Air Canada’s failure to pre-board Mrs. Bassarab on June 5; and,
• Mrs. Bassarab’s seat on the London to Calgary flight not being close to the washroom.

[122] The Agency finds that the following constituted undue obstacles to Mrs. Bassarab’s mobility:

• the lack of wheelchair assistance to board the aircraft on June 5; and,
• the seating assignment for Mrs. Bassarab on the London to Calgary flight as it relates to the location of the Medipak.

ORDER

[123] In light of the above undue obstacle findings, the Agency requires Air Canada to undertake the following corrective measures within 30 days from the date of this Decision:

1. Issue a bulletin to its personnel involved in the processing of requests for wheelchair assistance to remind them of their obligation to ensure that, at each step of the transportation process at Heathrow, they promptly relay requests for wheelchair assistance to OCS; and,
2. Issue a bulletin to its in-flight personnel advising that, with respect to the positioning of the Medipak, best efforts should be made to accommodate passengers with a disability in situations such as that experienced by Mrs. Bassarab, i.e., where the person requires a Medipak and has another condition that requires additional seating space, by asking passengers to change seats.