Decision No. 24-AT-A-2019
APPLICATION by Bianca Lucin (applicant) against Air Transat A.T. Inc. (Air Transat).
SUMMARY
[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Air Transat pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), concerning the carrier’s alleged failure to provide both general assistance to accommodate her medical condition and adequate wheelchair assistance at the Toronto Pearson International Airport (Toronto Airport).
[2] In Decision No. LET-AT-A-21-2019 (Lucin v. Air Transat) [Lucin], the Agency found that the applicant is a person with a disability who encountered an obstacle at the Toronto Airport. In this decision, the Agency will address the following issue:
Can Air Transat remove the obstacle to the applicant’s mobility through a general modification to its policies and practices (and the application thereof), without experiencing undue hardship?
[3] For the reasons set out below, the Agency finds that Air Transat has demonstrated that it can remove the obstacle to the applicant’s mobility without experiencing undue hardship and therefore, that the applicant encountered an undue obstacle to her mobility within the meaning of subsection 172(1) of the CTA. The Agency orders Air Transat to issue a bulletin to all personnel handling special assistance requests by May 28, 2019, instructing them, whenever a passenger requests wheelchair assistance, to:
- advise the passenger of the range of wheelchair features available to them for their itinerary through the carrier or the service provider;
- note requests for available wheelchair features in the passenger’s file; and
- communicate those requests to the service provider.
[4] Further, the Agency encourages Air Transat to take into account the demand for specific wheelchair features as new equipment is purchased and when negotiating service level agreements with third-party providers at air terminals.
BACKGROUND
[5] On June 27, 2018, the applicant travelled from Zagreb, Croatia, to Montréal, Quebec, via Toronto, Ontario. While the applicant generally requires wheelchair assistance to travel by air, for this trip she needed to keep her knee straight in the chair because she had an accident shortly before her departure, cracked her knee cap and was required to wear a leg brace.
[6] The applicant sought compensation from Air Transat for that trip, alleging that it failed to provide adequate assistance to accommodate her medical condition, that its staff treated her aggressively and in a humiliating manner, and that two of its flights were delayed.
[7] In Lucin, the Agency held that it does not have jurisdiction to order compensation to the applicant for pain and suffering, or loss of enjoyment.
[8] The Agency also dismissed the portion of her application filed under subsection 110(4) of the Air Transportation Regulations,SOR/88-58, as amended (ATR), concerning flight delays. In Lucin, the Agency found that Air Transat properly applied the terms and conditions set out in Rule 5 of its Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada (Except the United States) on the Other Hand, CTA(A) No. 4 (Tariff) in relation to the flight delays she experienced, and that no compensation should be awarded.
[9] The Agency further found that the applicant is a person with a disability and that she has encountered an obstacle to her mobility, as the wheelchair used to accommodate her at the Toronto Airport was not adapted to her disability-related needs and caused her pain.
[10] The Agency asked the applicant to describe the assistance she received at the Montréal–Pierre Elliott Trudeau International Airport (Montréal Airport), which, in her application, she qualified as being adequate. She responded on February 1, 2019.
[11] Air Transat was required to either:
- explain how it proposes to remove the obstacle through a general modification to a rule, policy, practice, technology, or physical structure or, if a general modification is not feasible, an individual accommodation measure; or
- demonstrate that it cannot remove the obstacle without experiencing undue hardship.
[12] On February 12, 2019, Air Transat filed its answer, which also responded to Agency questions about how wheelchair assistance is provided at the Toronto Airport and at the Montréal Airport, including:
- who owns the wheelchairs;
- who maintains the wheelchairs;
- whether all wheelchairs have the same features; and
- whether special requests for specific wheelchair features are accepted, and, if so, how these special requests are processed.
[13] The applicant did not file a reply.
THE LAW
[14] The accessibility-related portion of the application was filed pursuant to subsection 172(1) of the CTA, which reads as follows:
The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.
[15] The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a three-part approach.
Part 1: The Agency considers whether the applicant is a person with a disability for the purposes of Part V of the CTA.
Part 2: If it is determined that the applicant is a person with a disability for the purposes of Part V of the CTA, the Agency determines whether they encountered an obstacle. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.
Part 3: If it is determined that the applicant is a person with a disability and that they encountered an obstacle, the Agency provides the respondent with an opportunity to either:
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- explain how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or
- demonstrate that it cannot remove the obstacle without experiencing undue hardship.
[16] In this decision, the Agency will address the third part of the approach.
POSITIONS OF THE PARTIES
The applicant
[17] In her application, the applicant indicated that at the Toronto Airport, she was given a wheelchair that did not have a support for her leg. She claims that she had to hold her leg, her carry-on baggage, and her medical supply bag while an agent pushed her wheelchair to the departure gate. The applicant submits that she was in pain and exhausted.
[18] The applicant further states that she received help from the airport employees at the Montréal Airport, but did not receive any assistance from Air Transat personnel. The applicant also submits that in Montréal, the airport employees were waiting for her when she exited the aircraft and helped her until she entered the car to go home.
Air Transat
[19] Air Transat states that at the Montréal Airport, the contracted service provider assists passengers with disabilities using equipment owned and maintained by Air Transat. None of its wheelchairs at that airport are equipped with a leg support. It also indicates that a surrey/golf cart service is provided by the airport authority.
[20] Air Transatstates that at the Toronto Airport, the contracted service provider assists passengers with disabilities using equipment supplied and maintained by the airport authority. Air Transat claims that it has recently been informed that there is one wheelchair equipped with a leg support available per terminal upon request. It submits that in future, it will request this particular wheelchair when requested by a passenger. It also indicates that a surrey/golf cart service is provided by the airport authority.
[21] Air Transat submits that there is no industry standard special services code to request wheelchairs with specific features. However, it states that it can communicate requests for special wheelchair features to airports and service providers.
[22] Air Transat undertakes that its Seat Selection and Information Centre will add a request for a special wheelchair feature to its existing pre-advise process and that it will ask for the equipment the day prior to the need where available.
[23] Air Transat indicates that in most airports and countries, it “cannot dictate what equipment is supplied by the airport” and its contracted service provider. Therefore, Air Transat submits that it cannot guarantee that a wheelchair equipped with leg supports will be available on the date and time needed, but that all efforts will be made to use it where possible.
ANALYSIS AND DETERMINATIONS
[24] Air Transat acknowledges that wheelchairs equipped with a leg support are available upon request at some airports, including the Toronto Airport, and that it has the ability to add a special service request for a wheelchair with specific features in its system and communicate the request to airports and service providers.
[25] In light of the above, the Agency finds that Air Transat has demonstrated that it can remove the obstacle without experiencing undue hardship; therefore, the applicant encountered an undue obstacle to her mobility within the meaning of subsection 172(1) of the CTA at the Toronto Airport.
[26] The Agency recognizes that Air Transat cannot guarantee that wheelchairs with special features will be available in all of the airports, countries and common use environments in which it operates. However, the Agency encourages Air Transat to take into account the demand for specific wheelchair features as new equipment is purchased, and when negotiating service level agreements with third-party service providers at air terminals.
ORDER
[27] The Agency orders Air Transat to issue a bulletin to all personnel handling special assistance requests by May 28, 2019, instructing them, whenever a passenger requests wheelchair assistance, to:
- advise the passenger of the range of wheelchair features available to them for their itinerary through the carrier or the service provider;
- note requests for available wheelchair features in the passenger’s file; and
- communicate those requests to the service provider.
Member(s)
- Date modified: