Decision No. 221-AT-A-2004

April 30, 2004

Follow-up - Decision No. 519-AT-A-2004

Follow-up - Decision No. 323-AT-A-2007

April 30, 2004

APPLICATION by Tracey Marcinov pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, with respect to the difficulties she experienced while travelling from Montréal, Canada to Prague, Czech Republic on September 27, 2003, and returning from Prague to Montréal on November 8, 2003, with Ceske Aerolinie A.S. carrying on business as Czech Airlines CSA.

File No. U3570/03-40

APPLICATION

[1] On November 10, 2003, Paul Marcinov, on behalf of his daughter, Tracey Marcinov, filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] On December 19, 2003, Ceske Aerolinie A.S., carrying on business as Czech Airlines CSA (hereinafter CSA), filed its answer to the application. On January 7, 2004, CSA filed further submissions and on January 9, 2004, Mr. Marcinov filed his submission in response to CSA's answer.

[3] By Decision No. LET-AT-A-20-2004 dated January 22, 2004, the Agency requested comments from Global Travel Alliance Inc. (hereinafter Global Travel), the travel agency from which Mr. Marcinov purchased tickets for the above-noted flights. On February 3, 2004, Global Travel filed its submission in response to Decision No. LET-AT-A-20-2004 and, on February 7, 2004, Mr. Marcinov filed his comments in response to Global Travel's submission. CSA did not file any further comments.

[4] Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until April 30, 2004.

PRELIMINARY MATTERS

[5] Although CSA filed submissions after the prescribed deadlines, the Agency, pursuant to section 6 of the National Transportation Agency General Rules, SOR/88-23, accepts such submissions as being relevant and necessary to its consideration of this matter.

[6] In his application, Mr. Marcinov raises the issue of the cleanliness of the lavatories on the return flight from Prague to Montréal. The Agency notes that such an issue is related to customer service and not to Ms. Marcinov's disability. Accordingly, the Agency will not address this issue under section 172 of the CTA.

[7] The application also raises the issue of the non-provision of an individual safety briefing and orientation of the aircraft prior to take-off. The Agency notes that some safety issues, such as those concerning the physical safety of passengers and transportation features like equipment and facilities, properly fall within the purview of Transport Canada. However, the Agency does consider the safety implications to persons with disabilities in the provision of transportation-related services in the federal transportation network. For example, the Agency has always considered that a person with a disability's sense of safety and security is a relevant factor in its undue obstacle determination. Furthermore, while the Agency does not establish safety regulations and rules, it will consider the failure by transportation service providers to apply existing regulations, rules and related policies and procedures in its determination of the existence of undue obstacles. The Agency will therefore contemplate the issue of the non-provision of an orientation of the aircraft, including the areas surrounding the seat and washroom and amenities, and an individual safety briefing as it relates to Ms. Marcinov's travel experience.

[8] The application also raises safety-related issues, including the stowage of carry-on baggage, the chaining of service animals and the safety briefing, that, in the Agency's opinion, are within the purview of Transport Canada. Accordingly, Ms. Marcinov's application will also be forwarded to Transport Canada for its review and appropriate action.

ISSUE

[9] The issue to be addressed is whether the following constituted undue obstacles to Ms. Marcinov's mobility and, if so, what corrective measures should be taken: CSA's policies that require guide dogs to be chained and muzzled; the seating assignment provided to Ms. Marcinov; and CSA's failure to provide Ms. Marcinov with an orientation of the aircraft and an individual safety briefing.

FACTS

[10] Ms. Marcinov is blind and uses a certified guide dog for assistance. Mr. Marcinov, his wife and his daughter Tracey (hereinafter the Marcinovs) travelled from Montréal to Prague on September 27, 2003, and from Prague to Montréal on November 8, 2003. The aircraft used for both flights was an Airbus A310-300. Mr. Marcinov purchased tickets for these flights from Global Travel. At the time of booking, Mr. Marcinov requested seats with extra leg room to accommodate Ms. Marcinov and her guide dog.

[11] On August 26, 2003, seats 11C, D and E were confirmed by Global Travel for both segments of the round-trip. Row 11 is a "cross-over" row (to get from one aisle to the other) and seats 11A, B, G and H are designated as emergency exit seats. On September 27, 2003, at the check-in counter in Montréal, the Marcinovs were reassigned seats 5C, D and F. Seat 5E was left empty for Ms. Marcinov's guide dog. The Marcinov's Passenger Name Record (hereinafter PNR), created by CSA at the time of booking, states that Ms. Marcinov is blind and that she would be travelling with her guide dog.

[12] On November 8, 2003, prior to the return flight from Prague to Montréal, the Captain of the flight permitted Ms. Marcinov to board the aircraft without muzzling her guide dog provided she was seated in Row 29 and, as a result, the Marcinovs were reassigned seats in Rows 28 and 29. Ms. Marcinov occupied seat 28A and her guide dog occupied the spare seat beside her. Ms. Marcinov's guide dog could not fit into the space on the floor and as a result, the guide dog sat with its hind legs on the spare seat beside Ms. Marcinov and its front legs and head rested on carry-on baggage stacked on the floor in the space between the two rows of seats.

[13] Ms. Marcinov was not given an individual safety briefing or orientation of the aircraft on either flight.

[14] CSA's International Passengers Regulations Manual states, in part:

BLND - a blind passenger. If accompanied by a seeing eye dog, it is carried free of charge in the cabin (provided that the passenger is fully dependent on it). The dog must have a confirmed reservation and is accommodated at the same place as the special seats for disabled passengers - see the aircraft configurations. If the space is not sufficient on some aircraft types (A310, B735 and B734 Y class, ATR Y class and C class), a seat next to the passenger may be blocked free of charge to place the dog under that seat. The dog must wear a muzzle and must be chained. The passenger must have a certificate that it is a trained seeing eye dog.

Note: a dog accompanying a blind, a deaf or a disabled passenger, a rescuer, or a police dog accompanied by members of certain professions on duty can be transported in [business] class too.

[15] CSA's Cabin Crew Operations Manual states, in part:

All these disabled passengers are individually informed how to use emergency exits, rescue means, about the location of toilets and how to use them. How to call CC.

[16] CSA's policy regarding special seating availability and restrictions, entitled Special Passenger Seats: A/C Type A310-300, states, in part:

  • Infants Preference - Rows row 5, 6AB
  • Leg Space Seats - row 11
  • Seat To Be Offered Last - row 10, 11AH, 28GH, 29AB
  • Pet/Cabin 29AB - Emergency Exits 11ABGH

[17] Subsequent to the filing of this application, CSA modified its policies to include recommended seating for persons with service animals. CSA's recommended seats for persons with service animals are now, depending on the aircraft configuration, 7A, 8A, 9A and 10A or 9A, 12H and 25H.

[18] Section 21(f)(3) of CSA's International Passenger Rules and Fares Tariff states that "Service animals do not require a muzzle". Section 21(c)(2) of CSA's International Passenger Rules and Fares Tariff states: "Persons with disabilities will not be permitted to occupy seats in designated emergency exit rows on any aircraft".

[19] Section 4.2.11 of the International Civil Aviation Organization's (hereinafter ICAO) Annex 6, Part I to the Convention on International Civil Aviation entitled Operation of Aircraft, provides that:

4.2.11.1 An operator shall ensure that passengers are made familiar with the location and use of:

  1. seat belts;
  2. emergency exits;
  3. life jackets, if the carriage of life jackets is prescribed;
  4. oxygen dispensing equipment, if the provision of oxygen for the use of passengers is prescribed; and
  5. other emergency equipment provided for individual use, including passenger emergency briefing cards.

4.2.11.2 The operator shall inform the passengers of the location and general manner of use of the principal emergency equipment carried for collective use.

[20] Section 4.2.2 of ICAO document 7192 - AN/857, Part E-1, entitled Cabin Attendants Safety Training deals with required knowledge, skill and attitude of airline personnel, including:

  • Pre-take-off passenger safety briefings, knowledge and understanding of practical importance of mandatory announcements and when they must be performed; knowledge and operation of equipment used in passenger safety briefings;
  • briefing requirements for passengers requiring special handling;
  • procedures for handling special passengers including safety briefings and seating restrictions (e.g. the disabled, prisoners,...);
  • procedures associated with the seating of passengers including seating restrictions, proper selection of passengers seated at emergency exit row seats, and relocation of passengers in compliance with seating procedures;... and
  • ... importance of, and techniques for, gaining total passenger attention for safety briefing during boarding and taxiing;...

POSITIONS OF THE PARTIES

[21] According to the Marcinovs, they chose to fly with CSA because it appeared to be the only air carrier with direct flights between Montréal and Prague. The Marcinovs felt that this would be better for Ms. Marcinov's guide dog as other multiple-leg flights would result in more time spent in cramped quarters.

[22] Mr. Marcinov maintains that when he inquired about the possibility of purchasing business class tickets in order to ensure that Ms. Marcinov and her guide dog would have sufficient space, Global Travel responded that CSA would not sell business class tickets to Ms. Marcinov because her guide dog would bother business class passengers. Once Mr. Marcinov was assured by Global Travel that sufficient space could be provided for Ms. Marcinov and her guide dog in Row 11 in the economy cabin, he decided not to pursue the possibility of purchasing a business class ticket for Ms. Marcinov.

[23] Global Travel states that, initially, it did inform Mr. Marcinov that CSA would not sell Ms. Marcinov business class tickets because of her guide dog. However, Global Travel further states that it contacted Mr. Marcinov soon thereafter to inform him that CSA would, in fact, sell business class tickets, in this case, but that Mr. Marcinov elected to purchase tickets for the seats in Row 11 with extra leg room as previously contemplated. Mr. Marcinov maintains, however, that he was not subsequently informed that CSA would sell Ms. Marcinov a business class ticket.

[24] Mr. Marcinov submits that while at the check-in counter in Montréal prior to the flight to Prague on September 27, 2003, CSA personnel determined that Row 11 could not be obstructed in an emergency and, consequently, the Marcinovs were reassigned seats in Row 5. Mr. Marcinov notes that although his family was not provided seating in Row 11, which had been pre-requested, they were satisfied with the seating actually provided in Row 5.

[25] In light of the fact that the Marcinovs were not permitted to occupy seats in Row 11 on the flight from Montréal to Prague, Mr. Marcinov contacted Global Travel prior to the Marcinovs' return flight from Prague to Montréal to confirm that Row 5 seating would be available for the return flight. Global Travel informed him that it would attempt to secure the same seats for the return flight from Prague to Montréal.

[26] On November 8, 2003, while at the check-in counter in Prague prior to the return flight to Montréal, Mr. Marcinov inquired with CSA personnel about the availability of seating in Row 5. Mr. Marcinov was told that seating in Row 5 was reserved for passengers with infants and, as such, the Marcinovs would not be permitted to sit in Row 5 as Ms. Marcinov's guide dog could not be seated next to infants.

[27] Mr. Marcinov asserts that CSA personnel instructed Ms. Marcinov to muzzle her guide dog before it could board the aircraft, and that CSA personnel used insensitive language regarding her needs and her guide dog. Mr. Marcinov states that, at this point, Ms. Marcinov broke into tears due to CSA personnel's lack of sensitivity and insistence on muzzling her guide dog.

[28] Mr. Marcinov submits that Ms. Marcinov had a veterinary certificate stating that her guide dog was a working animal and a badge from the guide dog school that trained the dog and that Ms. Marcinov's guide dog was properly harnessed at all times.

[29] Mr. Marcinov states that despite the fact that CSA in-flight and ground personnel recognized that, due to the limited space surrounding the seating in Row 29 provided to Ms. Marcinov, this seating was not suitable for her and her guide dog, no action was taken to remedy the situation, nor was Mr. Marcinov permitted to pay for Ms. Marcinov to be upgraded to business class. Ms. Marcinov broke down again due to CSA personnel's lack of sensitivity and to the inadequacy of the "seating provided" for her guide dog.

[30] CSA states that its internal policies specifically allow for the transportation of persons with disabilities, including passengers with visual impairments, in business class. CSA points out that it is very much interested in selling these seats.

[31] CSA admits that a regrettable error occurred when CSA personnel changed the Marcinov's seating for both flights. CSA adds that Ms. Marcinov was permitted to board the aircraft even though she refused to "harness" her dog and that she did not have a valid certification for her guide dog.

[32] CSA notes that safety audio/video instructions are given in English and in French before each flight. These instructions provide information about oxygen masks and life preservers. As for exits and toilets, CSA states that in-flight attendants are informed before each flight about seating of persons with disabilities and are required to assist them in the event of an emergency or on demand at any time.

[33] According to CSA, its in-flight personnel were courteous and attentive to the Marcinovs, and the personnel complained about the language used by the Marcinovs towards personnel.

ANALYSIS AND FINDINGS

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

[35] An application must be filed by a person with a disability or on behalf of a person with a disability. Ms. Marcinov is blind and uses the services of a guide dog to assist her and, as such, she is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[36] To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.

Whether the applicant's mobility was restricted or limited by an obstacle

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

[38] In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.

The case at hand

Policies that require service animals to be chained and muzzled

[39] The Agency is of the opinion that the right of a person with a disability who uses a service animal to be accompanied by the service animal in the passenger cabin of the aircraft is fundamental. In this regard, the Agency recognizes the important role that service animals play in helping persons with disabilities be more independent. Furthermore, persons with disabilities want as much independence in life as possible and their use of transportation services is no exception. The Agency is of the opinion that one important aspect of the principle of independence is the recognition of the importance of a person's service animal to his/her independence, dignity, and safety.

[40] The Agency is aware that a service animal is trained to wear a harness to better guide and assist the person using the service animal and that it is not trained to perform its duties with a chain or muzzle. The Agency recognizes that a service animal that is muzzled may be hindered from performing its duties, which may have a negative impact on the mobility and independence of the person using the service animal.

[41] The Agency notes from the Marcinovs' PNR that CSA was made aware, at the time of booking, that Ms. Marcinov would be travelling with a guide dog, yet the Marcinovs were only informed by CSA personnel in Prague prior to the Prague-Montréal flight that Ms. Marcinov's guide dog had to be muzzled. While, in this case, Ms. Marcinov was eventually permitted to board the aircraft without being required to muzzle her guide dog, it was at the discretion of the Captain, provided she was seated in Row 29 at the rear of the aircraft.

[42] The Agency notes that CSA's initial insistence that Ms. Marcinov muzzle her guide dog caused considerable distress to Ms. Marcinov. In this case, CSA's requirement that Ms. Marcinov's guide dog be muzzled no doubt resulted in uncertainty as to whether Ms. Marcinov would be permitted to board the aircraft and caused Ms. Marcinov considerable stress and apprehension about her guide dog's ability to assist her.

[43] In light of the foregoing, the Agency finds that CSA's policies that require service animals to be chained and muzzled constituted an obstacle to Ms. Marcinov's mobility.

Seating assignment

[44] The Agency is of the opinion that persons with disabilities who travel with service animals must be able to obtain seating in the aircraft that allows them to keep their service animal with them at their seat. The Agency notes that the foregoing is reflected in the Code of Practice: Aircraft Accessibility for Persons with Disabilities (hereinafter the Air Code of Practice). The Air Code of Practice addresses the physical accessibility of equipment used in air transportation and sets out the features necessary to make aircraft more accessible to persons with disabilities. The Air Code of Practice states, in part: "Each class section of the passenger cabin of an aircraft, e.g. first class, business class, economy class, should have a number of passenger seats, other than exit row seats, that each provides enough floor space for a service animal to lie down".

[45] The Agency notes that the Marcinovs pre-requested seating with extra leg room for both flights; that seats 11C, D and E were confirmed with Global Travel; and that according to the Marcinovs' PNR, CSA was aware that Ms. Marcinov was blind and that she would be travelling with a guide dog on both flights. The Agency also notes that CSA personnel did not permit the Marcinovs to sit in Row 11 for safety-related reasons.

[46] The Agency accepts Mr. Marcinov's statement that the seats in Row 5 that were reassigned to the Marcinovs on the Montréal-Prague flight were suitable. In contrast, the seats in Rows 28 and 29 that were reassigned to the Marcinovs on the Prague-Montréal flight did not have sufficient space for Ms. Marcinov's guide dog to lie down and were clearly inappropriate. Specifically, Ms. Marcinov's guide dog was unable to fit into the space between Row 28, in which Ms. Marcinov was seated, and the row in front of her. The Agency notes that, as a result, Ms. Marcinov's guide dog sat with its hind legs on the spare seat beside Ms. Marcinov and its front legs and head resting on carry-on baggage stacked on the floor in the space between the two rows of seats for the duration of the eight-hour flight. While it made the journey more comfortable, it is contrary to the ICAO Standard which states that the carrier shall ensure that all baggage carried onto an airplane and taken into the passenger cabin is adequately and securely stowed.

[47] The Agency finds that given Ms. Marcinov's experience, and the discomfort caused to her and her guide dog, the seating assigned to her on the Prague-Montréal flight constituted an obstacle to her mobility.

Failure to provide an orientation of the aircraft and an individual safety briefing

[48] The Agency is of the opinion that an individual safety briefing and orientation are fundamental to the mobility and safety of persons with disabilities. Moreover, the Agency notes that such issues have been contemplated in the context of international civil aviation and, in particular, ICAO has considered the issue of aircraft orientation and safety briefings. Specifically, the Agency notes that Section 4.2.11 of ICAO's Annex 6, Part I to the Convention on International Civil Aviation, entitled Operation of Aircraft, requires an aircraft operator to ensure that passengers are familiar with the location and use of seat belts, emergency exits, life jackets and any other emergency equipment provided for individual or collective use. The Agency further notes that this safety-related requirement is an ICAO "standard" to which "Contracting States will conform" in accordance with the Convention on International Civil Aviation, as opposed to an ICAO "recommended practice" with which aircraft operators will "endeavour" to comply.

[49] Furthermore, ICAO has also considered the provision of information to passengers, including training for cabin attendants. Section 4.2.2 of ICAO document 7192 - AN/857, Part E-1, entitled Cabin Attendants Safety Training, emphasizes the importance of required knowledge, skill and attitude of airline personnel, including pre-take-off passenger safety briefings; knowledge and understanding of practical importance of mandatory announcements and when they must be performed; procedures for handling special passengers including safety briefings and seating restrictions (e.g. persons with disabilities, prisoners...); and procedures associated with the seating of passengers including seating restrictions.

[50] The Agency notes that Ms. Marcinov was not given an orientation of the aircraft on either flight and, as a result, the Agency is of the opinion that Ms. Marcinov was denied the same level of access to the aircraft as other passengers. In this regard, the failure by cabin crew to provide an orientation of the aircraft can result in persons with disabilities being unaware of the features and areas of the passenger cabin, which may result in a need to rely on someone else to locate these for them, thereby depriving them of their independence.

[51] The Agency is also of the opinion that the lack of an individual safety briefing creates a situation where a blind or visually impaired person's ability to remain aware of his/her surroundings in an abnormal situation is compromised.

[52] The Agency therefore finds that CSA's failure to provide Ms. Marcinov with an orientation of the aircraft and an individual safety briefing on both flights created a situation in which her ability to remain cognizant of her surroundings was compromised and may thereby have detracted from her independence, dignity and sense of security and, as such, constituted an obstacle to her mobility.

Whether the obstacle was undue

[53] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

[54] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.

The case at hand

[55] Having found that the policies that require service animals to be chained and muzzled, the seating assignment and the failure to provide an orientation of the aircraft and an individual safety briefing constituted obstacles to Ms. Marcinov's mobility, the Agency will now consider whether these obstacles were undue.

Policies that require service animals to be chained and muzzled

[56] As previously stated, the Agency recognizes that a chain or a muzzle may hinder a service animal's ability to perform its duties and to assist its owner because a service animal is not trained to perform its duties with a chain or a muzzle. A muzzle on a service animal may, therefore, have a negative impact on the mobility and independence of the person with a disability who relies on that service animal. In this case, Ms. Marcinov's mobility and independence could have been negatively impacted had her guide dog been muzzled. Furthermore, the Agency finds that policies that can negatively impact the mobility and independence of a person with a disability, may also detract from the individual's sense of security and dissuade him/her from future travel.

[57] The requirement to muzzle animals travelling in the passenger cabin stems from a safety-related concern--that an unmuzzled animal may bite or harm a passenger. However, certified guide dogs are bred and trained for their temperament, capabilities and behaviour and are tested thoroughly to detect signs of aggression, such that the risk of injury to another passenger is practically non-existent. The Agency is aware that guide dogs are trained to behave properly in public and are not used to being muzzled. The Agency is also aware that certified guide dogs are harnessed when on duty which enhances their ability to guide persons who are visually impaired.

[58] The Agency is concerned that although the Marcinovs' PNR states that Ms. Marcinov would be travelling with a guide dog, CSA did not inform Ms. Marcinov prior to her travel of any requirement to muzzle her guide dog. The Agency is concerned with this lack of communication to Ms. Marcinov of CSA's policies, and with the inconsistent application of its policies. Moreover, the Agency is of the opinion that CSA's personnel showed a lack of sensitivity and understanding of Ms. Marcinov's needs and circumstances when they initially required Ms. Marcinov's guide dog to be muzzled. The Agency recognizes that this caused Ms. Marcinov unnecessary stress and uncertainty. In this regard, the Agency is of the opinion that CSA personnel should be sensitive to the needs of persons with disabilities and assist them in a dignified manner.

[59] As part of its review of the matter, the Agency also reviewed the terms and conditions of travel for persons with disabilities filed in CSA's tariff which contains limited information compared to that set out in its policies. The Agency notes that section 21(f)(3) of CSA's International Passenger Rules and Fares Tariff states that "Service animals do not require a muzzle", yet CSA's policies require service animals to be chained and muzzled.

[60] The Agency is concerned that CSA's policies that require service animals to be chained and muzzled are inconsistent with CSA's tariff. The Agency is of the opinion that when terms and conditions of carriage set out in policies are inconsistent with those set out in the tariff, there is the potential for misinterpretation and misapplication of the guidelines contained therein. The Agency therefore finds it reasonable to require CSA to amend its tariff to ensure that its terms and conditions of carriage of persons with disabilities are adequately specified and, concerning the matter at hand, contain all terms with respect to the carriage of service animals and clearly state that service animals are not required to be chained or muzzled. Furthermore, the Agency finds it reasonable for CSA to amend its policies to ensure that its tariff and policies regarding flights to and from Canada are consistent. In this regard, the Agency notes the use of the term "chained" in CSA's policies relating to service animals. The Agency is of the opinion that the term "chained" is unclear and could be interpreted as meaning chained or fastened directly to a passenger's seat onboard the aircraft, which would restrict the mobility and safety of the person requiring the services of the service animal. Therefore, the Agency finds it appropriate for CSA to remove the word "chained" from its policies relating to service animals.

[61] In light of the foregoing, the Agency finds that CSA's policies that require service animals to be chained and muzzled constituted an undue obstacle to Ms. Marcinov's mobility.

Seating assignment

[62] The Agency notes that Mr. Marcinov specifically requested seating with extra leg room in order to accommodate Ms. Marcinov and her guide dog. As seats in Row 11 of the Airbus A310/300 provide extra leg room, the Marcinovs understood that they had reserved seats 11C, D and E for both flights. The Agency also notes that according to CSA's International Passengers Regulations Manual, seats in Row 11 are designated as having extra leg room; that Row 5 is an "infant preference row"; that seats 11A, B, G and H are designated as being at emergency exits; and that seats 29A and B are designated for "pets".

[63] The Agency notes that on the Montréal-Prague flight prior to take-off, CSA personnel onboard the aircraft reassigned the Marcinovs seats from Row 11 to Row 5 and prior to boarding the return flight from Prague to Montréal, CSA personnel in Prague reassigned the Marcinovs seats from Row 11 to Rows 28 and 29. In this regard, the Agency acknowledges CSA's statement that it did not have definite or recommended seating for persons who use service animals prior to Ms. Marcinov's application and that a regrettable error occurred when CSA personnel misinterpreted its policies and changed the seats assigned to the Marcinovs from Row 11 for both flights. Similarly, the Agency notes that the reassignment of the seats for the Marcinovs from Row 11 due to safety reasons was incorrect because the seating designated by CSA for emergency exits (seats 11A, B, G and H) was not the seating that the Marcinovs were originally assigned. This being said, the Agency is of the opinion that the main reason why Ms. Marcinov was not provided the seating that had been pre-confirmed for her on the flight from Prague to Montréal was that CSA did not have a seating policy for persons with disabilities travelling with service animals. Due to the lack of such a policy, CSA personnel made their decisions regarding the suitability of seating for Ms. Marcinov by relying on policies intended to address unrelated matters, such as those pertaining to seating in infant preference or emergency exit rows, without a proper understanding of the needs of persons who use service animals. As persons with disabilities who use service animals are contemplated in CSA's policies, the Agency is of the opinion that it is unreasonable that CSA's policies would not further contemplate the needs of persons with disabilities who use service animals; seating appropriate to their needs; and adequate guidance or training for CSA personnel relating to persons with disabilities, including persons with disabilities who use service animals.

[64] The Agency also notes that section 21(c)(2) of CSA's International Passenger Rules and Fares Tariff states: "Persons with disabilities will not be permitted to occupy seats in designated emergency exit rows on any aircraft". The Agency is concerned that this provision is unclear as it does not differentiate between aircraft with one or two aisles. The provision does not clearly specify that all seats in an emergency exit row may not, in fact, be restricted such that persons with disabilities could sit in certain seats in that row. For example, on the Airbus 310-300 aircraft, seats 11C, D, E and F, while in the cross-over row, are not in fact emergency exit seats.

[65] The Agency is therefore of the opinion that CSA should amend its tariff to clearly indicate which seats are restricted for safety-related purposes.

[66] The Agency is also concerned that the lack of a clear and appropriate seating policy for persons who use service animals and a lack of training for personnel concerning the needs of persons who use service animals, may precipitate the recurrence of difficulties similar to those experienced by Ms. Marcinov and, as a result, cause unnecessary stress and uncertainty and dissuade them from future travel.

[67] The Agency therefore finds that the seating assignment provided to Ms. Marcinov on the flight from Prague to Montréal constituted an undue obstacle to her mobility.

Failure to provide an orientation of the aircraft and an individual safety briefing

[68] As noted previously, the Agency is of the opinion that an individual safety briefing and orientation are fundamental to the independent mobility and safety of persons with disabilities.

[69] In the case at hand, Ms. Marcinov was not provided with an orientation of the aircraft, which, as previously stated, denied Ms. Marcinov the same access to the aircraft as other passengers. The Agency is of the opinion that where a person with a disability is unaware of the orientation of the aircraft, including the location of features and areas in the passenger cabin, such that the person may be put into a position where he/she must rely on the assistance from another passenger, the person's ability to independently access essential onboard services may be compromised. Furthermore, the Agency notes that while CSA's Cabin Crew Operations Manual requires personnel to indicate the location of washrooms during individual safety briefings, there is no requirement for personnel to provide an orientation of the aircraft. As such, the Agency finds it appropriate for CSA to modify its Cabin Crew Operations Manual to include a requirement for personnel to provide an orientation of the aircraft as well as an individual safety briefing to persons with disabilities.

[70] The Agency is also of the opinion that CSA's failure to provide Ms. Marcinov with an individual safety briefing could have compromised her ability to react appropriately in the event of an emergency and thereby detract from Ms. Marcinov's safety, sense of security and well-being. Additionally, CSA's failure to provide Ms. Marcinov with an individual safety briefing could diminish her confidence in the safety of this mode of travel and dissuade her from future travel.

[71] The Agency further notes that CSA's Cabin Crew Operations Manual states that individual safety briefings are given to all passengers with disabilities. The Agency is concerned with CSA's answer in respect of safety briefings. In its answer, CSA stated that safety audio-video instructions are given in French and in English before each flight; that those instructions provide information about the location of oxygen masks and life preservers; and that, as for exits and toilets, in-flight attendants are briefed before each flight about seating of disabled persons and are required to assist them in the event of an emergency or on demand at any time. As such, it is apparent that, in this case, CSA personnel did not follow CSA's Cabin Crew Operations Manual, and did not give an individual safety briefing or orientation of the aircraft to Ms. Marcinov. In this regard, the Agency notes that CSA did not provide any evidence as to why Ms. Marcinov was not provided with an orientation of the aircraft or an individual safety briefing.

[72] The Agency therefore finds that CSA's failure to provide Ms. Marcinov with an orientation of the aircraft and an individual safety briefing constituted an undue obstacle to her mobility.

CONCLUSION

[73] Based on the foregoing, the Agency finds that CSA's policies that require guide dogs to be chained and muzzled; the seating assignment provided to Ms. Marcinov; and CSA's failure to provide Ms. Marcinov with an orientation of the aircraft and an individual safety briefing constituted undue obstacles to her mobility.

[74] With respect to the seating assignment provided by CSA to Ms. Marcinov, the Agency notes that since the filing of this application, CSA has revised its seating policy to include recommended seating for persons who use service animals onboard its A310/300 Airbus aircraft. The Agency also notes from CSA's policies that CSA will provide a seat next to a passenger travelling with a service animal, free of charge, to provide adequate space for the service animal. The Agency commends CSA for this policy.

[75] While tour operators and travel agents do not fall within its jurisdiction, the Agency is particularly concerned with the lack of communication between CSA, Global Travel and Mr. Marcinov with respect to the availability of business class seating and the lack of awareness of CSA's policies regarding the acceptance of service animals and appropriate seating for persons travelling with service animals. The Agency is of the opinion that the miscommunication that occurred between CSA, Global Travel and Mr. Marcinov was a significant contributing factor to the difficulties experienced by Ms. Marcinov.

[76] The Agency also finds that it is important for travel agents and tour operators to obtain a clear understanding of the travel-related needs of persons with disabilities and the accessibility features and services that they require through open and clear communication to ensure that proper identification of their needs is provided to carrier personnel. Travel agents and tour operators should be aware of carriers' policies and procedures with respect to the carriage of passengers with disabilities and ensure that this information is conveyed accurately to passengers with disabilities so that they can make informed decisions about their travel options. Additionally, travel agents and tour operators should confirm a passenger's disability-related service requests with the carrier, request written confirmation of the measures the carrier intends to take to ensure, as far as possible, that the person's needs are met during travel and provide a copy of the confirmation to the passenger so that he/she can be certain of the services that will be provided.

[77] Consistent with the foregoing undue obstacle findings, the Agency hereby requires CSA, with respect to its operations to and from Canada, to take the following corrective measures within thirty (30) days from the date of this Decision:

  1. CSA must provide Ms. Marcinov with a written apology, in electronic format, for the difficulties she experienced while travelling with CSA;
  2. CSA is to provide a copy of this Decision to the pilots and in-flight personnel of the flights on which Ms. Marcinov travelled; to the check-in and boarding personnel at the Prague and Montréal airports; and to CSA's Director, Montréal Office. CSA must confirm with the Agency that it has provided such copies as required.
  3. CSA must amend its policies to:
    1. clearly indicate that a service animal requires neither a chain nor a muzzle under any circumstances;
    2. indicate the seats that provide added accessibility for persons with disabilities, including persons who use service animals;
    3. indicate exactly which seats may not be occupied by persons with disabilities, including persons who use service animals, with reasons for such restrictions;
    4. ensure that all persons with disabilities who require specific seating to accommodate a disability will be assigned such seats, provided that they have not already been assigned to other persons with disabilities;
    5. reflect the importance of initiating discussions with persons with disabilities, or their representatives, to ensure that the seat requested by the passenger or suggested by the air carrier is compatible with the person's needs;
  4. CSA must provide a copy of the amended policies to the Agency;
  5. CSA must amend its International Passenger Rules and Fares Tariff to ensure consistency with its amended policy with respect to the carriage of service animals; to clearly state that service animals are not required to be chained; and, in respect of seating for persons with disabilities, to specify which seats are restricted.
  6. CSA must modify its Cabin Crew Operations Manual to include a requirement for personnel to provide an orientation of the aircraft to persons with disabilities in addition to the existing requirement to provide an individual safety briefing to persons with disabilities.
  7. CSA must provide the Agency with a detailed description of the measures CSA will take to ensure that, according to its Cabin Crew Operations Manual, persons with disabilities, including persons who use service animals, are provided with an orientation of the aircraft and an individual safety briefing prior to take-off;
  8. CSA must provide the Agency with a detailed description of the measures CSA will take to ensure that persons with disabilities, including persons who use service animals, will be informed of any requirements or restrictions relating to their travel;
  9. CSA must reflect the difficulties experienced by Ms. Marcinov in its training program for all of its personnel who interact with the public, including its pilots, to address:
    1. the concerns raised in Ms. Marcinov's application regarding the awareness of personnel of the carrier's policies and procedures and CSA's terms and conditions of carriage pertaining to the carriage of persons with disabilities;
    2. appropriate seating for persons with disabilities;
    3. the acceptance of certified and properly harnessed service animals without the need to chain or muzzle the service animals;
    4. the measures to be taken to ensure that an orientation of the aircraft and an individual safety briefing are provided to persons with disabilities, including persons who use service animals;
    5. the need to have a dialogue on the person's needs at the time of reservation and during check-in; and
    6. personnel sensitivity regarding persons with disabilities and persons who use service animals.
  10. CSA is required to issue to all CSA personnel who interact with the public, including the carrier's pilots, a bulletin that:
    1. summarizes the incident experienced by Ms. Marcinov without providing her name;
    2. describes the amended policies noted in part 3 above;
    3. describes the amendments to CSA's training program for assistance to persons with disabilities;
    4. stresses the importance of trying to resolve such situations through discussions with the person with a disability; and
  11. CSA must provide a copy of this bulletin to the Agency.

[78] Following a review of the measures taken by CSA, the Agency will determine whether further corrective measures are required.

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