Decision No. 24-AT-C-A-2021
APPLICATION by Karl McKinnon against Air Canada, pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA), regarding his disability-related needs, and pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR), regarding class of service.
SUMMARY
[1] Karl McKinnon filed an application with the Canadian Transportation Agency (Agency) against Air Canada pursuant to subsection 172(1) of the CTA and subsection 110(4) of the ATR concerning his disability-related needs and class of service following a travel on August 13, 2018, from Montréal, Quebec, to Barcelona, Spain.
[2] In this decision, the Agency will address the following issues:
- Is Mr. McKinnon a person with a disability?
- Has Mr. McKinnon faced any obstacles to mobility?
- Did the respondent properly apply the terms and conditions set out in its Tariff entitled International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and between the USA and Canada, NTA(A) No. 458 (Tariff), relating to seat allocation and fare brands, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR)?
[3] For the reasons set out below, the Agency finds that:
- Mr. McKinnon is a person with a disability;
- Mr. McKinnon did not face any obstacles to his mobility when he was not assigned a sleeper seat; and
- Air Canada properly applied the conditions set out in its Tariff.
[4] The Agency therefore dismisses the application.
BACKGROUND
[5] On August 13, 2018, Mr. McKinnon travelled from Montréal to Barcelona. Mr. McKinnon claimed that he purchased a ticket with Air Canada to travel in business class in a sleeper seat. He stated that Air Canada changed the operator of the flight to Air Canada Rouge and that he travelled in “Premium Rouge” class on an aircraft that did not have sleeper seats. He also stated that the lack of sleeper seats caused him physical pain.
[6] Mr. McKinnon seeks compensation of CAD 15,000 plus interest, plus damages, plus punitive damages for the physical suffering that he endured throughout the trip. He states that he had to pay over CAD 1,000 in physiotherapy costs.
[7] On October 15, 2020, the Agency issued Decision No. LET-AT-C-A-64-2020 in which it found that Air Canada’s request to dismiss the application pursuant to section 42 of the Canadian Transportation Agency Rules (Dispute Proceedings at Certain Rules Applicable to All Proceedings), SOR/2014-104 (Rules) was dismissed. The Agency ordered that the application proceed in its normal course. The Agency also found that it did not have jurisdiction to order compensation for pain, suffering or loss of enjoyment.
PRELIMINARY MATTERS
Jurisdiction
[8] In his application, Mr. McKinnon refers to the Consumer Protection Act, CQLR c P-40.1. In addition, he files a copy of the formal notice he sent to Quebec’s Office de la protection du consommateur.
[9] However, the Agency is responsible for the administration of certain federal statutes and regulations, not provincial legislation. As a result, the Agency will not take these comments into account when considering the application.
Late filing by Air Canada
[10] On November 27, 2020, Mr. McKinnon filed his reply to Air Canada’s November 20, 2020, response, in the form of two identical emails sent separately to Air Canada and to the Agency. Mr. McKinnon’s reply contained a request that Air Canada respond to written questions under section 24 of the Rules. On December 9, 2020, Air Canada filed its objection to Mr. McKinnon’s request that Air Canada answer written questions.
[11] Section 24 of the Rules provides that a party wishing to object to a matter must file an objection within five business days of receiving a copy of the notice. Notwithstanding this, the Agency accepts Air Canada’s objection filed on December 9, 2020, pursuant to subsection 24(3) of the Rules and places it on the record.
[12] In this case, Air Canada argues in its objection that it could not have known that Mr. McKinnon’s email, which contained the request that Air Canada respond to written questions, was the reply, as Mr. McKinnon did not copy the Agency’s Secretariat when he sent it. Yet Mr. McKinnon indicated at the beginning of his email that it was his reply to Air Canada’s response, and section 8 of the Rules does not require a party filing a document by email to copy the other party in the same email transmission. Section 8 of the Rules only requires the person filing a document to send a copy of that document to each party on the same day.
Document filed after time limit by Mr. McKinnon
[13] On December 14, 2020, Mr. McKinnon filed a supplementary document, not otherwise provided for in the Rules, in response to Air Canada’s objection to his motion to have Air Canada answer written questions. Section 34 of the Rules provides that a person who wishes to file a document not otherwise provided for in the Rules must file a request to do so. Mr. McKinnon’s supplementary document was not accompanied by a request under section 34 of the Rules. Air Canada did not object to the filing of this supplementary document.
[14] In the interests of efficiency and because the Agency considers that the parties will not be prejudiced by the addition of the supplementary document to the record, the Agency accepts the supplementary document filed by Mr. McKinnon on December 14, 2020, and places it on the record. The Agency finds, pursuant to sections 4 and 5 of the Rules, that the pleadings regarding Mr. McKinnon’s request to require Air Canada to answer questions are hereby closed. The Agency will now consider the request.
Request by Mr. McKinnon to require Air Canada to respond
Positions of the Parties
Mr. McKinnon
[15] Mr. McKinnon requests that Air Canada provide information about the aircraft used to operate Flight No. AC1912 from Montréal to Barcelona on August 13, 2018. He also requests that Air Canada provide a description of the aircraft, the dates the aircraft entered and left service, its age, years of service, as well as its general condition and its maintenance log with a description of the interior condition of the aircraft, including the business class seats.
Air Canada
[16] Air Canada objects to Mr. McKinnon’s request for information. Air Canada argues that Mr. McKinnon’s questions are not relevant as they relate to, among other things, the date that the aircraft entered service, its age, years of service and the general maintenance of the aircraft. Air Canada argues that this information is not relevant to the fact that Mr. McKinnon booked his flight in a class without sleeper seats.
ANALYSIS AND DETERMINATION
[17] Section 32 of the Rules provides that a party who wishes to oppose an objection to their application may file a request to require the party to which the notice was directed to provide a complete response. In this case, Mr. McKinnon did not file such a request.
[18] In addition, the Agency does not consider the questions Mr. McKinnon asked Air Canada to be relevant to the Agency’s consideration of the issues in dispute. As described above, the Agency must determine whether Mr. McKinnon is a person with a disability; if so, whether he faced an obstacle to his mobility; and finally, whether Air Canada properly applied the conditions set out in its Tariff with respect to class of service. Information relating to the date of entry into service of the aircraft used to operate Flight No. AC1012, its age, years of service and general maintenance of the aircraft is not relevant to the Agency’s consideration of these issues.
[19] Accordingly, the Agency finds that it is not appropriate to require Air Canada to respond to Mr. McKinnon’s questions and dismisses Mr. McKinnon’s request. The pleadings on the first part of the proceedings, which are described in the opening pleadings letter, are closed. The Agency will now proceed to consider the application.
THE LAW AND RELEVANT TARIFF PROVISIONS
[20] Mr. McKinnon raises issues related to accessibility and the application of the Air Canada Tariff.
Accessibility
[21] The application was filed under subsection 172(1) of the CTA, which, at the time of the events in question, stated 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.
[22] The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a two-part approach.
Part 1: The burden of proof is on the applicant to show, on a balance of probabilities, that he or she:
- has a disability as defined in Part V of the CTA;
and
- faced 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 2: If the applicant is determined to be a person with a disability and has faced an obstacle, then it is the respondent’s responsibility to do either of the following:
- explain, taking into account any proposals from the applicant, how the respondent proposes to remove the barrier through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or, if a general modification is not feasible, an individual accommodation measure; or
- demonstrate, on a balance of probabilities, that it cannot remove the barrier without experiencing undue hardship.
[23] In this decision, the Agency will address the issues raised in the first part of the approach described above.
Tariffs
[24] Subsection 110(4) of the ATR requires that a carrier operating an international service properly apply the terms and conditions of carriage set out in its tariff.
[25] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct it to:
(a) take the corrective measures that the Agency considers appropriate; and
(b) pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions set out in the tariff.
[26] The relevant provisions of the Tariff are set out in the Appendix.
1. IS MR. McKINNON A PERSON WITH A DISABILITY?
Positions of the parties
MR. McKINNON
[27] Mr. McKinnon states that he is recognized as totally disabled by Veterans Affairs Canada. He further states that he is a senior citizen, has severe back problems, and had undergone two operations on his legs shortly before the trip, which required a 56-day hospital stay.
AIR CANADA
[28] Air Canada acknowledges that Mr. McKinnon suffers from osteoarthritis and severe osteoarthritis in his knees, but argues that such health problems are considered to be disabilities only if they result in a limitation of activities or a restriction of participation in the transportation system. Air Canada points out that the documents filed by Mr. McKinnon do not include any evidence that his medical condition prevented him from travelling in the same way as another person who does not have a disability. Air Canada also points out that these documents show, on the contrary, that his most recent knee surgery was four months prior to the flight, that his pain had greatly diminished since those procedures and that he was able to complete his trip. Air Canada therefore argues that Mr. McKinnon has not demonstrated that he is a person with a disability under Part V of the CTA.
Analysis and determinations
[29] Mr. McKinnon’s evidence shows that he has limited mobility because he has osteoarthritis and severe osteoarthritis in both knees. Although these health problems were raised after the Air Canada incident, the evidence Mr. McKinnon filed shows that they are chronic. The Agency therefore finds that Mr. McKinnon was a person with a disability under Part V of the CTA at the time of his travel.
2. HAS MR. McKINNON FACED ANY OBSTACLES TO MOBILITY?
Positions of the parties and findings of fact
MR. McKINNON
[30] Mr. McKinnon argues that he needed a sleeper seat for a trip of this distance because of his severe back problems and recent surgery. He explains that travelling in the Air Canada Rouge seat caused him to have “a night from Hell” physically and psychologically, to the point where he required medical treatment, which resulted in costs.
[31] Mr. McKinnon claims that he mentioned his disability to Aeroplan when he purchased his ticket and in his calls with Aeroplan and Air Canada regarding the designated class of service on his itinerary.
[32] Mr. McKinnon states that Air Canada did not request any medical documentation and there was no written correspondence regarding his disability.
AIR CANADA
[33] Air Canada argues that Mr. McKinnon failed to demonstrate a need for accommodation and that the accommodation was not provided by Air Canada.
[34] Air Canada argues that Mr. McKinnon did not contact Air Canada prior to his trip to discuss his accommodation needs and that its MEDA team does not have a file on him. Air Canada states that the telephone discussions with Mr. McKinnon related only to the class of service and the fact that there would be no sleeper seats on the aircraft operated for his chosen flight, as stated in the recordings of those discussions.
[35] Air Canada argues that Mr. McKinnon stated that after his travel he was inconvenienced by the lack of a sleeper seat due to his disability. Air Canada states that it offered him a 20 per cent promotional code as a gesture of goodwill.
[36] Moreover, Air Canada argues that the other passengers did not have access to sleeper seats. Air Canada argues that this absence did not affect Mr. McKinnon’s mobility and that this means that the lack of a sleeper seat cannot be an obstacle.
FINDINGS OF FACTS
[37] Mr. McKinnon’s version of the content of the telephone conversations between him and Aeroplan differs from that of Air Canada. In Decision No. 426-C-A-2013 (Gibbins v Société Air France), the Agency established that where conflicting versions of events are presented by the parties, it must determine which version is more likely, on a balance of probabilities.
[38] In this case, the parties agree that Mr. McKinnon contacted Aeroplan about the class of service designated on his itinerary prior to his travel, but they do not agree on the reason for his preference for a sleeper seat. The Agency finds no evidence to support Mr. McKinnon’s assertion that he mentioned during his calls that this was an accommodation rather than a comfort issue. Although Mr. McKinnon mentioned that he informed Air Canada officers that he was expecting a sleeper seat, Air Canada has no record of a request for accommodation. Furthermore, according to the emails Mr. McKinnon filed, it was only after his travel that he informed Air Canada of the impact of a regular seat on his physical condition. The Agency therefore finds that Mr. McKinnon did not identify himself as a person with a disability prior to his travel and did not request a sleeper seat to accommodate his disability-related needs.
Analysis and determinations
[39] 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 need, and were not provided with, accommodation, thereby being denied equal access to services available to others in the federal transportation network.
[40] The burden is on the applicant to provide sufficiently compelling evidence to establish the need for accommodation and to prove that the need has not been met, as well as to show that he or she faced an obstacle. The burden of proof in this case is on a balance of probabilities.
[41] If Mr. McKinnon requires a sleeper seat as an accommodation for his disability, he must explicitly inform the carrier of this need, and in sufficient time prior to the flight to be able to produce supporting medical documentation if required by the carrier. Because Mr. McKinnon did not make his disability-related needs known to Air Canada prior to travel, Air Canada did not have the opportunity to accommodate Mr. McKinnon’s disability-related needs and cannot be held responsible for any inconvenience he suffered.
[42] In light of the above, the Agency finds that Mr. McKinnon has not met his burden of proof to demonstrate that he has faced an obstacle to his mobility. Accordingly, the Agency denies this portion of the application.
3. DID AIR CANADA PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?
Positions of the parties
MR. McKINNON
[43] Mr. McKinnon states that he purchased business class tickets to enjoy the comfort of the sleeper seats advertised by Air Canada for long flights. He states that he called Aeroplan to correct his ticket after receiving a confirmation of his itinerary, which showed that the class of service for Flight No. AC1912 was “Premium Economy” and that the itinerary sent to him as a result of this call showed that the flight was operated by Air Canada Rouge and that his ticket was in “Premium Rouge” class.
[44] Mr. McKinnon argues that Air Canada and Air Canada Rouge are different legal entities offering different services. He also argues that he did not receive the same level of comfort when travelling with Air Canada Rouge as he paid for when he purchased a ticket for a flight with Air Canada. He claims that on the day of departure he was not given access to the Air Canada lounge, he was informed that he was not in business class and that there were no sleeper seats on the aircraft operated for his flight to Barcelona. Mr. McKinnon claims to be aggrieved by the confusion created by the names of the classes and services and the long-haul flights on which there are sleeper seats.
AIR CANADA
[45] Air Canada asserts that there was no change in class of service after the original booking. Flight No. AC1912 was operated by Air Canada Rouge and the ticket was in “Premium Economy” class, as indicated in the itinerary dated April 18, 2018, sent to Mr. McKinnon. Air Canada explains that Air Canada Rouge’s “Premium Economy” class does not offer sleeper seats, unlike Air Canada’s business class on some of its aircraft.
[46] Air Canada submits that this information was provided to Mr. McKinnon several times at the time of the initial reservation and during a telephone discussion prior to the flight, as indicated in the excerpt from the passenger name record filed by Air Canada in support of its response.
[47] Air Canada argues that Mr. McKinnon therefore made his reservation in a class with no sleeper seats, that he was informed that Flight No. AC1912 did not have sleeper seats and that he travelled in the “Premium Economy” seat that he purchased. Air Canada stated that it had nevertheless offered him a promotional code as a gesture of goodwill.
Analysis and determinations
[48] The onus is on the applicants to establish, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.
[49] Tariff Rule 25(G) provides that Air Canada tickets are valid for transportation between the departure and destination airports by the itinerary shown on the ticket, for the applicable class of service and for the period specified. According to Rule 30(B)(2), “Premium Economy” and “Premium Rouge” are a sub-category of business class.
[50] It is not disputed that Air Canada provided Mr. McKinnon with carriage in “Premium Economy” or “Premium Rouge” class. The Agency notes that Mr. McKinnon may have been disappointed to be travelling in a cabin without sleeper seats, but Tariff Rule 30(B)(2)(a) states that this type of seating is in service primarily in business class on certain aircraft generally used on North American and Caribbean routes. In addition, Tariff Rule 30(B) provides that the availability of certain products and services offered by class of service is not guaranteed and that no compensation will be provided for the unavailability of such products or services, which the Agency found reasonable in Decision No. 61-C-A-2020 (Borsato v Air Canada).
[51] As Air Canada’s Tariff does not guarantee a particular type of seat, the Agency finds that Air Canada complied with its Tariff when it carried Mr. McKinnon in “Premium Rouge” class, as stated on the ticket.
CONCLUSION
[52] The Agency finds that Mr. McKinnon was a person with a disability under Part V of the CTA at the time of his travel. However, the Agency finds that Mr. McKinnon has not met his burden of proof as he failed to demonstrate that he faced an obstacle to his mobility because he did not inform Air Canada that he is a person with a disability and that he required a sleeper seat to accommodate his disability. Accordingly, the Agency dismisses the portion of the application filed under subsection 172(1) of the CTA.
[53] The Agency also finds that Air Canada properly applied Tariff Rule 25(G) as required by subsection 110(4) of the ATR.
[54] The Agency therefore dismisses the application.
APPENDIX TO DECISION NO. 24-AT-C-A-2021
International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA Areas 1/2/3 and between the USA and Canada, NTA(A) No. 458
RULE 5 – APPLICATION OF TARIFF
(A) General
(1) This tariff shall apply to carriage of passengers and baggage, and to all services incidental thereto:
(a) Performed and marketed (carrying an AC flight number) by AC, including when flights are operated in conjunction with other participating carriers under joint fares, rates and charges contained in tariffs which make specific reference to this tariff for governing rules, regulations and conditions of carriage, and
(b) For carriage on flights marketed by AC but operated by another carrier, unless otherwise stated in this tariff.
....
RULE 25 – TICKETS
….
(G) Ticket validity
General
The ticket is good for carriage from the airport at the place of departure to the airport at the place of destination via the route shown therein and for the applicable class of service and is valid for the period of time specified or referred to below. Each flight coupon will be accepted for carriage on the date and flight for which a confirmed reservation has been made.
….
RULE 30 – FARE BRANDS, CLASSES OF SERVICE AND UPGRADES
….
(B) Class of service
Certain complimentary products and services are offered depending on class of service, or fare brand purchased, such as separate check-in, in-flight entertainment, use of headsets/player, reading material, meals, beverages (some alcoholic), etc. These products and services are amenities and their availability is not guaranteed. No compensation will be offered for their unavailability, including for unavailability of in-flight entertainment and choice of meal.
….
(2) Business class/Premium Economy/Premium Rouge
(a) Business class service is provided to passengers paying the Business Class fares for transportation in the Business Class cabin on certain flights operated by Air Canada and certain flights operated by Air Canada Express. Business class offer recliner seats available on aircraft usually used on routes between Canada and North America/Caribbean/Mexico.
(b) Passengers seated in the Business Class cabin will (when flight times permit) be afforded in-flight amenities such as complimentary meals and beverages (including cocktails, beer or wine) and complimentary use of headsets/player for audio/visual entertainment (where such feature is provided inflight).
(c) Premium Economy/Premium Rouge service is provided to passengers paying the Premium Economy/Premium Rouge fares for transportation on certain flights operated by Air Canada and Air Canada Rouge with a Premium Economy/Premium Rouge cabin.
(d) Passengers seated in the Premium Economy/Premium Rouge cabin will (when flight times permit) be afforded in-flight amenities such as complimentary meals and beverages (including cocktails, beer or wine) and complimentary use of headsets/player for audio/visual entertainment (where such feature is provided inflight).
….
Member(s)
- Date modified: