Decision No. 211-AT-A-2014

INTRODUCTION

[1] Kathryn Woodcock filed an application 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 with respect to the provision of information regarding a change in her gate for her return flight to Toronto, Ontario, Canada on December 15, 2013.

ISSUES

1. Is Dr. Woodcock a person with a disability for the purposes of Part V of the CTA?
2. What measures provide appropriate accommodation to persons who are deaf or hard of hearing, including Dr. Woodcock, who require information about gate changes in an airport?
3. Did the manner in which information was provided by Air Canada in respect of the gate change for Dr. Woodcock’s flight constitute an undue obstacle to her mobility? If so, what corrective measures should be taken?

THE LAW

[2] When adjudicating an application pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:

1. the person who is the subject of the application has a disability for the purposes of the CTA;
2. an obstacle exists because a person was not provided with appropriate accommodation to address their disability-related needs. An obstacle is a rule, policy, practice, physical barrier, etc. that has the effect of denying equal access to services offered by the transportation service provider that are available to others; and,
3. the obstacle is “undue.” An obstacle is undue unless the transportation service provider demonstrates that there are constraints that make the removal of the obstacle either unreasonable, impracticable or impossible, such that to provide any form of accommodation would cause the transportation service provider undue hardship. If the obstacle is found to be undue, the Agency will order corrective measures necessary to remove the undue obstacle.

IS DR. WOODCOCK A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?

[3] In determining whether there is an obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first establish whether the application was filed by, or on behalf of, a person with a disability.

[4] In this case, Dr. Woodcock is deaf.

[5] In light of the foregoing, the Agency finds that Dr. Woodcock is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

WHAT MEASURES PROVIDE APPROPRIATE ACCOMMODATION TO PERSONS WHO ARE DEAF OR HARD OF HEARING, INCLUDING DR. WOODCOCK, WHO REQUIRE INFORMATION ABOUT GATE CHANGES IN AN AIRPORT?

The Agency’s approach to determining appropriate accommodation

[6] A service or measure that is required to meet a person’s disability-related needs is referred to as “appropriate accommodation”. Appropriate accommodation is accommodation measures that are provided in a dignified manner and are responsive to a person’s disability-related needs, resulting in an equal opportunity for the person with a disability to attain the level of transportation services experienced by others in the federal transportation network.

[7] If it is determined that the person was provided with appropriate accommodation, it cannot be said that they have encountered an obstacle.

[8] There are situations in which a variety of accommodation measures may meet a person’s disability-related needs. The accommodation measure does not have to be exactly what the person requests, but it must be effective.

[9] Service providers meet their duty to accommodate if they provide accommodation that allows a person with a disability to benefit from the same level of transportation services afforded to others.

[10] Service providers are entitled to choose the least costly, disruptive or burdensome means of accommodation when it is equally responsive to the person’s disability-related needs.

[11] However, in situations where different means of accommodation are equally responsive and are neither less costly, disruptive or burdensome for the service provider, the person with a disability should be entitled to choose their preferred means of accommodation.

THIS CASE

Facts, evidence and submissions

Dr. Woodcock

[12] Dr. Woodcock submits that, to make its “critical communication channels” accessible at a level comparable to that provided to other passengers, Air Canada should implement the following measures:

1. make reasonable efforts to provide information using all communication media, including announcing important travel information (such as delays and gate changes) in an accessible manner whenever a person who is deaf has checked in for the flight, regardless of whether the carrier knows which of the waiting passengers is deaf. Dr. Woodcock acknowledges that there are limits to what accessible communication efforts are reasonable, but submits that the “minimum standard” must include using all communication media readily available to Air Canada, including, but not be limited to text message notification to the passenger(s) identified as deaf (if this contact information has been provided) and the Air Canada “app”. Dr. Woodcock also submits that the data serving the “app” must be updated in a timely manner;
2. leave a visual notice - printed and/or digital - on the abandoned gate indicating the new gate location, which would remain for a reasonable time after a departure has been relocated to a different gate, and work with the airport authority as required to accomplish this aim; and,
3. display the information on the video display screen of the departure gate.

[13] Dr. Woodcock expresses the view that the foregoing measures would result in Air Canada potentially over-accommodating some passengers who are deaf and hard of hearing but that they would provide more assurance that everyone would be adequately informed about critical information pertaining to their flight. She submits that her assumptions require few additional steps and minimal additional cost and explains that these are described as “additional” only because they require the performance of existing capabilities that are unused. Dr. Woodcock expresses the opinion that it is reasonable to expect Air Canada to perform a more reliable procedure than a less reliable one when the burden of doing so is minimal.

[14] Dr. Woodcock also makes the following comments on self-identification:

• Deaf passengers should reasonably be able to rely on airline personnel to attend to the existing self-identifications made via online interface to implement accessibility procedures based on this information without further requests; and,
• self-identification at the boarding gate will not result in proper notification for the following reasons:
  • during flight delays, gate agents are likely to change, and the initial agent may not pass on the information to the next agent;
  • the person who is deaf may have left the gate for a short period, while the announcement was made; and,
  • gate agents may find it difficult to recall the person’s face, despite their best intentions, given all of the cognitive workload being performed by carrier personnel in preparation for a departure.

[15] Dr. Woodcock states that she self-identifies at the gate prior to every flight and would have self‑identified at this flight as well, once she perceived it to be “time to do so”, i.e., when the gate personnel began to make announcements. Dr. Woodcock is of the view that the determination of when to self-identify hinges on what one perceives to be the aim of self-identification. Her perception of the purpose of self-identification is that it makes the agents aware that she cannot hear their boarding announcements, and that she needs them to scrutinize her boarding pass more carefully than those of others to ensure the destination on her boarding pass matches the flight being boarded, and that if they do not pre-board her, they will have the additional responsibility to ensure that she does not miss the last boarding call.

[16] Dr. Woodcock expresses the opinion that it is not common sense to self-identify at the gate earlier than the point when boarding is about to begin as self-identification can lead to an immediate action, such as pre-boarding her or directing her to the boarding agent. She asserts that she would never consider it “common sense” to self-identify at the gate to be notified of gate changes, due to her past experience with “multiple failures” subsequent to self-identification.

[17] Dr. Woodcock submits that, if Air Canada relies on self-identification as the sole cue to deliver accessible information, even when it knows that a passenger who is deaf has checked in, it must explicitly disclose this expectation to the passenger. Dr. Woodcock further submits that given that it is accommodating persons who are deaf, the carrier must disclose this expectation in writing at the check-in/bag-drop desk, so that the passenger is reminded immediately before “performance is required”. She states that there is no reference to a duty to self-identify disabilities at the boarding gate in Air Canada’s terms and conditions of carriage, or in the pdf document sent to her along with her confirmation/itinerary, or on the to-do list found on the hyperlink included in her confirmation/itinerary.

[18] Dr. Woodcock argues that providing accessible information to passengers who are deaf, only if they are visibly recognizable at the departure gate, as a result of the passenger’s self‑identification, falls short of providing reasonable efforts. Dr. Woodcock is of the impression that Air Canada envisions accommodating passengers who are deaf in a “condescending special needs manner”, where its personnel would recognize them individually on sight and go to “help” them when required. Dr. Woodcock contends that this is not only “beyond outdated on the social level”, but it is unreasonable as well given all of the other cognitive workload being performed by carrier personnel in preparation for a departure. Dr. Woodcock submits that this would burden them with carrying “in short term memory” the visual appearance of four percent of passengers at any given time, as this is the population prevalence of persons who are deaf and severely hard of hearing in Canada.

Air Canada

[19] Air Canada submits that its policies and procedures, as set out below, enable it to provide appropriate accommodation for customers with hearing impairments who travel alone:

• Customers with hearing impairments are considered self-reliant and, therefore, do not require medical approval. In cases where they state otherwise, they may request that an attendant accompany them.
• Airport agents who assist a customer who has a hearing impairment or who is deaf are instructed to inquire if the customer can read lips, and if not, ask in writing; advise in a timely manner all information that is provided to other customers; communicate directly with the customer, unless advised otherwise. Cabin crew follow the same instructions and provide an individual pre-flight safety briefing.
• When passengers indicate that they are hard of hearing or deaf, the “DEAF” SSR code is placed on their passenger name record, on the departure control system record, and beside the passenger’s name on the passenger list used by gate agents and flight crew.
• In an aircraft environment, crew are able to identify the person through their name, seat number and the “DEAF” SSR code.
• In an airport environment, all relevant information is communicated to passengers who voluntarily disclose their presence to the gate agent; in the absence of self-identification by the passenger, the gate agent cannot know who the passenger is out of all the people at the gate and in the airport.
• In the case of gate changes, persons who do not identify themselves to the gate agent can:

1. follow the movement of other passengers waiting for the flight;
2. approach any available agent;
3. rely on the flight information display screens throughout the airport to determine the gate number; or
4. use other alternatives including contact through social media outlets.

[20] Air Canada further submits that communicating gate changes through mobile applications or text messages would not be feasible as these changes are airport decisions that are not communicated to Air Canada’s reservation system.

Analysis and findings

[21] Communication of transportation-related information in multiple formats is fundamental in meeting the needs of persons with disabilities, to ensure that they can access the federal transportation system in the same way as other passengers. With respect to the communication of gate changes to persons with hearing impairments, information must be provided in a visual format and not be limited to audio announcements given that these may not be clearly heard by persons with severe hearing impairments. This is consistent with subsection 2.3 of the Agency’s Code of Practice – Removing Communication Barriers for Travellers with Disabilities (Communications Code), which sets out that “Public announcements related to the successful execution of a trip are to be provided in both audio and visual formats in all passenger service areas inside terminals. These announcements include, but are not limited to: information concerning departure delays, gate or track assignments and schedule or connection changes”.

[22] In this case, gate-change information about Air Canada’s flights is posted on flight information display screens throughout airports. The Agency notes that this is consistent with the Communications Code and is of the opinion that this clearly meets the needs of persons who are deaf or hard of hearing. The Agency therefore finds that this constitutes appropriate accommodation.

[23] Air Canada also ensures that its passengers who are deaf or hard of hearing are made aware of gate changes through its policy that requires its boarding gate personnel, subject to self‑identification by a passenger who is deaf or hard of hearing, to inform the person of gate changes.

[24] Dr. Woodcock expresses doubt about the effectiveness of self-identification for various reasons such as a change of personnel at the gate or an agent not recalling the face of the person who has self-identified. However, her views on self-identification appear to be contradictory. On the one hand, she is of the opinion that, having identified her needs during the reservation process, and when she checked her bags, she should not be expected to self-identify again at the gate. On the other hand, Dr. Woodcock contends that she would self-identify once she perceives it to be the right time to do so, for example when the gate personnel begin to make announcements about the boarding.

[25] Dr. Woodcock argues that if Air Canada relies on self-identification as the sole cue to convey information, it must explicitly disclose this expectation to the passenger in writing. The Agency disagrees with Dr. Woodcock’s view on the basis that, irrespective of a written notice from the carrier, it is intuitively obvious that a person must communicate their need for any service to the appropriate personnel and at the appropriate time at various stages of travel. This is necessary to ensure that the required disability-related service is provided, as is reflected in the Communications Code which sets out that persons with disabilities may need to self-identify at various stages of their trip so that personnel are aware of their particular needs. This need for self-identification is widely recognized and is a usual practice by most persons with disabilities who need accommodation.

[26] In addition to the need to self-identify at the gate to receive information about gate changes, whenever a person who is deaf or hard of hearing leaves the area in front of a gate for whatever reason, it is the responsibility of the person to advise the gate agents of where they will be, and for approximately how long, so that an agent can locate them if there is a need to advise them of a change regarding their flight. Should they choose not to self-identify at the gate, as in the case of Dr. Woodcock, they must rely on the display screens for information about their flight.

[27] As set out above, there are situations in which a variety of accommodation measures may meet a person’s disability-related needs. The Agency also recognizes that in such situations, persons with disabilities who require accommodation may prefer one measure that meets their needs over another equally responsive measure. In this case, while some persons who are deaf or hard of hearing may prefer relying on electronic display boards for gate-change information, others may prefer to be informed in person by air carrier personnel, subject to self-identification as discussed above. The Agency notes that this is consistent with the Communications Code which recognizes that many people feel comfortable using pen and paper and some also lip or speech read. As such, transportation service providers are expected to repeat, rephrase or provide information in writing when necessary and upon self-identification by a person with a disability.

[28] In light of the above, despite Dr. Woodcock’s concerns with self-identification, the Agency is of the opinion that visually providing information about gate changes by departure gate personnel (e.g. using pen and paper), subject to self-identification by persons who are deaf or hard of hearing, is equally responsive, in certain cases, to meeting their needs as providing information on flight information display screens. The Agency further notes that this is consistent with the Communications Code and is of the opinion that this clearly meets the needs of persons who are deaf or hard of hearing.

[29] Concerning the measures described above that Dr. Woodcock suggests are necessary to meet her needs as they relate to information concerning gate changes, the Agency notes that these would be in addition to measures that are already in place, which have been deemed by the Agency to provide appropriate accommodation. In this regard, the Agency recognizes that a variety of accommodation measures may be equally responsive to a person’s disability-related needs and that the appropriate accommodation need not be what the individual requests, but it must be effective. Moreover, although an individual’s preference should be considered, the transportation service provider is entitled to choose a means of accommodation that is less costly, disruptive or burdensome, provided the chosen means is equally responsive to the disability-related needs of a person. In this case, the Agency is of the opinion that the measures suggested by Dr. Woodcock would result in an unnecessary burden on Air Canada and go beyond its duty to accommodate.

[30] In light of the above, the Agency finds that the following are equally responsive measures that represent appropriate accommodation that are required to meet the disability-related needs of passengers who are deaf or hard of hearing, including Dr. Woodcock:

• providing visual information on gate changes on flight information display screens in the airport; and
• providing visual information (e.g. using pen and paper) about gate changes by carrier personnel, subject to self-identification at the departure gate by persons who are deaf or hard of hearing.

DID THE MANNER IN WHICH INFORMATION WAS PROVIDED BY AIR CANADA IN RESPECT OF THE GATE CHANGE FOR DR. WOODCOCK’S FLIGHT CONSTITUTE AN UNDUE OBSTACLE TO HER MOBILITY? IF SO, WHAT CORRECTIVE MEASURES SHOULD BE TAKEN?

The Agency’s approach to determining an obstacle

[31] The Agency views an obstacle in the federal transportation network as being a rule, policy, practice, physical barrier, etc. which is either:

• direct, i.e., applies to a person with a disability; or
• indirect, i.e., while the same for everyone, has the result of withholding a benefit from a person with a disability; and,
• denies a person with a disability equal access to services that are available to others such that accommodation is required from the service provider.

Facts, evidence and submissions

Dr. Woodcock

[32] Dr. Woodcock submits that she self-identified in every manner, as directed by Air Canada, while making her reservation online, in her customer profile and during the purchase of her ticket. Dr. Woodcock also notes that her boarding pass indicated “DEAF”, which led her to believe that Air Canada was aware of her disability and acknowledged its accessibility obligations. Dr. Woodcock states that nothing on the boarding pass indicated that any further notification was required. She states that she has always read this as “relax, we know you are deaf. We have put our plan into action.” In addition, Dr. Woodcock states that when she checked her bag, she showed the agent her boarding pass and pointed to the word “DEAF”. She submits that she arrived at the boarding gate in a timely manner and recognized “the same personnel at the gate as had worked at the check-in desk”.

[33] Dr. Woodcock states that she knew the aircraft had not arrived because she was watching the inbound flight on Flightstats.com and, therefore, had no need for “special attention” at that time. She indicates that she had decided that she would self-identify prior to the need to pre-board. She states that she has taken the same flight perhaps three to five times a year for several years, and although the exact departure time varied by season, it was always the same gate. She states that, based on her past experiences, she suspects that if she had self-identified on arriving at the gate 90 minutes before the flight, and then Air Canada changed its staff or forgot about her, Air Canada would still blame her for not “re-self-identifying”.

[34] Dr. Woodcock states that when she returned to her gate after having stretched her legs and used the washroom, it was “abandoned”. Dr. Woodcock further states that, on discovering the gate unattended, her immediate reaction was to panic that somehow the aircraft had arrived, unloaded, boarded, and departed the last departure of the day, all while she was in the washroom. Dr. Woodcock explains that, after collecting herself and realizing that she could not have been in the washroom that long, she improvised a means to locate the new gate, which was in another pier of the terminal.

[35] Dr. Woodcock submits that there was no gate information on the Air Canada “app” on her mobile phone. She states that, as a person who is deaf, she could not call Air Canada. In addition, she submits that she could not ask anyone for assistance, as it would be difficult for her to understand a stranger. Dr. Woodcock further submits that the departure screen was not immediately visible to her and she states that, initially in her alarm, she forgot about it. Dr. Woodcock notes that she contacted Air Canada’s “twitter team”, which responded with an offer to help her but by that time she had located the new gate herself.

[36] Dr. Woodcock submits that there would have been no operational imposition on Air Canada to leave a notice on the abandoned gate indicating the new gate location, as it appeared that the old gate was closed for the night.

[37] Dr. Woodcock states that, although she did not sustain “tangible loss or damages of large magnitude” on this occasion, she sustained a loss of confidence in future travel. She indicates that she was disoriented and worried for five minutes and expresses the view that under different circumstances using the same assumptions and practices, passengers who are deaf could “sustain harm as significant as being left behind at a strange airport”.

[38] Dr. Woodcock submits that, by not informing her of the gate change through carrier personnel, and not providing her gate-change information through alternate means such as text messages or updates to its mobile “app”, Air Canada failed to meet its obligation to provide accessible information and created obstacles to her mobility.

Air Canada

[39] Air Canada submits that 20 minutes prior to the arrival of the aircraft, the Orlando international airport authority changed the departure gate from Gate 20 to Gate 11. Air Canada notes that the airport flight information display screens, which were located in a centric location near Gate 20, were updated, until the flight departed, to reflect the change in gate number.

[40] Air Canada states that, contrary to Dr. Woodcock’s assertion, the agent who assisted her to check in her baggage was not servicing the gate.

[41] Air Canada submits that at no time did Dr. Woodcock make her presence known to the agents at Gate 20; had she done so, the agents would have known to directly inform her of the gate change.

[42] Air Canada explains that once the gate change occurred, it was reasonably concluded that Dr. Woodcock knew of the change either through the movement of passengers, the updating of the flight information display screens located near Gate 20 or the availability of agents who remained at Gate 20 for 10 to 15 minutes after the change had occurred to gather paperwork and retrieve carry-on baggage. Air Canada submits that the manner in which Dr. Woodcock was “handled” at the Orlando airport in the context of a gate change should not be considered to be an obstacle to her mobility.

Analysis and findings

[43] Although Dr. Woodcock did not receive the gate change information in person, through text messages or mobile “apps” on her cell phone, or through a note posted at the gate, as would have been her preference, the information was available on the flight information display screens near her original gate. Dr. Woodcock does not deny that the information was available on the display screen; rather, she acknowledges that she forgot about it in her panic.

[44] Dr. Woodcock submits that the gate agent was the same person from the check-in desk, to whom she had pointed out the “DEAF” note on her boarding pass. Air Canada submits that it was not the same person. Notwithstanding this disagreement, the Agency is of the opinion that, even if the agent had been the same, it would be unreasonable to expect the agent to recall which passenger had self-identified as being deaf while checking in their baggage, given the possibility that they would have processed hundreds of passengers at the baggage check. For this reason, the Agency is of the opinion that it is imperative that persons with disabilities identify themselves and communicate their needs throughout their journey in order to receive the disability-related services that they require. In this case, considering the fact that Dr. Woodcock chose not to identify herself to the gate agents, she could not have been personally advised of the gate change. As such, the Agency finds that there was no obstacle to Dr. Woodcock’s mobility when she was not personally advised of the change in gate by Air Canada.

[45] In light of the fact that there were two equally responsive measures of appropriate accommodation available to Dr. Woodcock that would have met her disability-related needs, the Agency finds that Dr. Woodcock did not encounter an obstacle to her mobility.

CONCLUSION

[46] Having found no obstacle, there is no need for the Agency to consider the aspect of undueness. The Agency will therefore not take any action in this matter.

OTHER MATTERS

[47] The Agency notes that Air Canada has proactively taken positive measures to specifically advise passengers who are deaf or hard of hearing that they should self-identify, by adding the following sentence to its online reservation page where disability-related information is collected:

We recommend that passengers who indicate that they are deaf or blind identify themselves to the gate agents to ensure that all relevant information is communicated to them in a timely fashion.

[48] The Agency also takes note of the fact that on the day of travel, in addition to the two above‑noted appropriate accommodation measures to visually provide information about gate changes, Air Canada was prepared to provide the information about the gate change to Dr. Woodcock via twitter. Dr. Woodcock reached Air Canada through twitter and received a response within three minutes offering to check gate information for her. Dr. Woodcock responded within the next two minutes that she had already found the new gate.

[49] As such, the Agency recognizes that, by taking these additional measures to advise passengers who are deaf or hard of hearing of the need to self-identify at the gate, and by responding promptly through alternate means of electronic communication such as twitter, Air Canada took the initiative to provide accommodation beyond that which the Agency considers necessary in this case.