Decision No. 251-AT-A-2010
June 15, 2010
APPLICATION by Sharon Orrey, on behalf of Ashleigh Dukoff, against Air Canada.
File No. U3570/09-21
BACKGROUND
[1] Sharon Orrey filed an application with the Canadian Transportation Agency (Agency) against Air Canada, on behalf of her daughter Ashleigh Dukoff. Mrs. Orrey seeks a change in Air Canada's policy whereby the name on an attendant's ticket in respect of international travel could be changed, at no additional cost, if circumstances require a change in attendants. In response to the application, Air Canada changed its policy to allow attendant name changes on international tickets, however, with certain conditions.
ISSUE
[2] Does Air Canada's revised policy which allows attendant name changes on international tickets, with conditions, constitute an undue obstacle to the mobility of Ms. Dukoff?
[3] The Agency notes that Mrs. Orrey's request for a policy change relates to past experiences where an attendant, who was to travel with Ms. Dukoff, was not able to do so and had to cancel their arrangements with Ms. Dukoff prior to the commencement of the trip. The Agency will limit the scope of this Decision to the matter of attendant name changes on international tickets for which the need arises prior to the commencement of travel from the original point of origin.
[4] Furthermore, as the application does not call into question the reasonableness of the requirement that a person with a disability who requires an attendant to travel by air complete Air Canada's Fitness for Air Travel form, this requirement, which is one of Air Canada's conditions, will not be addressed in this Decision.
PRELIMINARY MATTER
[5] Air Canada refers to the Agency's authority pursuant to section 172 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA). Air Canada notes that the Agency may inquire into matters to determine whether there is an undue obstacle to the mobility of a person with a disability in the transportation network under the Agency's jurisdiction. In this regard, Air Canada submits that Mrs. Orrey must first demonstrate that Ms. Dukoff is a person with a disability and that she has encountered an obstacle to her mobility. Air Canada adds that, once this is established, the onus is on the carrier to demonstrate that the obstacle is not undue or that it would cause the carrier undue hardship to remove the obstacle. Air Canada states that it concedes that Ms. Dukoff is a person with a disability, which is the first determination to be made by the Agency. Air Canada submits that, in this case, the analysis stops at the second step, which is the Agency's obstacle determination, as Ms. Dukoff has not encountered an obstacle to her mobility.
[6] Air Canada characterizes the situation described by Mrs. Orrey as being hypothetical. It states that if a reservation was made, which it does not confirm, there is no indication that an attendant who held a booking and ticket for the same itinerary could not travel and that the ticket had to be changed, nor that Air Canada refused to offer accommodation. Air Canada adds that such an actual situation has yet to be brought to the attention of its call center.
[7] "Absent the evidence of a real obstacle, not a remote possibility", Air Canada argues that Mrs. Orrey's application should be dismissed.
[8] The Agency finds Air Canada's arguments to be without merit. The Supreme Court of Canada, in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, 1 S.C.R. 650, clearly stated that:
[...] the planned existence of an obstacle to mobility can be sufficient to trigger the Agency's jurisdiction to inquire into matters relating to design, construction, or modification of the means of transportation. The applicant is not required to establish that the obstacle is already part of the federal transportation system, or that someone has actually experienced an incident relating to the obstacle. (118)
[9] The Supreme Court of Canada's interpretation of the Agency's jurisdiction to investigate and eliminate undue obstacles to the mobility of persons with disabilities, including instances where an incident has not yet occurred but the removal of a potential obstacle could eliminate its future occurrence, confirms that the Agency has jurisdiction to investigate Mrs. Orrey's application as mandated under subsection 172(1) of the CTA, without the need for evidence of a specific incident.
[10] Therefore, the Agency rejects Air Canada's argument that Mrs. Orrey's application should be dismissed on these grounds.
FACTS, EVIDENCE AND SUBMISSIONS
[11] Ms. Dukoff has cerebral palsy and requires an attendant at all times to assist her with her disability-related needs.
[12] Air Canada's tariff in respect of international travel requires that non-self-reliant passengers travel with an attendant to provide them with assistance regarding personal care (i.e., assistance on board with meals, using the washroom or administering medication) and in cases of emergency evacuation and decompression.
[13] Mrs. Orrey states that, on several occasions in the past, attendants who have agreed to accompany Ms. Dukoff on a trip have either quit or personal situations have arisen and have prevented them from accompanying her, which leaves Ms. Dukoff in a distressing situation. Mrs. Orrey indicates that a new attendant has to be found, which would occur shortly before the planned trip, and an additional ticket needs to be purchased.
[14] Air Canada's revised policy allows for name changes on international tickets issued for attendants, subject to certain conditions respecting advance notice and ticketing, which are examined below:
- advance notice of 48 hours is required, although Air Canada will make reasonable efforts to accommodate requests made between 24 and 48 hours in advance of departure. Name changes are not permitted on a less than 24-hour advance notice;
- name changes are permitted only on tickets printed on Air Canada ticket stock and comprising solely of transportation on Air Canada-operated flights such that they are not permitted in respect of flights involving codeshares and other air carriers; and
- name changes are not permitted in respect of tickets sold through consolidators and as part of a tour package.
ANALYSIS AND FINDINGS
[15] An application under section 172 of the CTA must be filed by a person with a disability or on behalf of a person with a disability. In this case, Ms. Dukoff has cerebral palsy and needs an attendant at all times. The Agency therefore finds that Ms. Dukoff is a person with a disability.
[16] To determine whether there is an undue obstacle to the mobility of a person with a disability within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether that person's mobility is restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle is undue.
The Agency's approach to the determination of obstacles
[17] In making a determination as to whether an individual encountered an obstacle to their mobility, the Agency must first determine whether their disability-related needs were met, which means determining what service is required. The service responsive to a person's disability-related needs is referred to as "appropriate accommodation". However, this is not necessarily the accommodation that the individual may prefer. Moreover, sometimes the accommodation sought by an applicant exceeds the transportation service provider's duty to accommodate. In determining what constitutes the appropriate accommodation, the principal test is that of effectiveness.
[18] The service provider will meet its duty to accommodate if the accommodation provided results in an equal opportunity for the person with a disability to attain the same level of transportation services and privileges experienced by others in the federal transportation network. In assessing whether the appropriate accommodation has been provided based on the facts of the case before it, the Agency does not consider the ability of the service provider to provide accommodation. Any constraints which may affect the service provider's ability to provide the service will only be assessed at the undueness stage, which only arises if the Agency finds that an individual encountered an obstacle. If it is determined that the individual was provided with appropriate accommodation, they cannot be said to have encountered an obstacle.
[19] In considering whether a situation constituted an obstacle to the mobility of a person with a disability in a particular case, the Agency generally will look to the incident described in the application to determine whether the applicant has established in the application that:
- a distinction, exclusion or preference resulted in an obstacle to the mobility of a person with a disability;
- the obstacle was related to the person's disability; and
- the obstacle discriminates by imposing a burden upon, or withholding a benefit from a person with a disability.
[20] Should an applicant fail to satisfy one of these three elements, the Agency will find that the applicant has not made a case of obstacle.
Determination of an obstacle
[21] To determine whether an obstacle exists, the Agency must first consider what services provide the appropriate accommodation to meet the disability-related needs of Ms. Dukoff, who requires the assistance of an attendant to travel by air. The Agency does so by applying its industry expertise, legal precedents and human rights principles in its examination of the facts and arguments before it.
[22] In order for Ms. Dukoff to be provided with the disability-related services she requires, i.e., the appropriate accommodation, Air Canada's attendant name change policy for international tickets must be such that it effectively enables Ms. Dukoff to travel with an attendant as opposed to imposing impediments.
[23] The Agency finds that the appropriate accommodation for Ms. Dukoff is for her to be allowed to make attendant name changes prior to commencement of travel, if required, for all Air Canada international flights, at no additional cost.
[24] In those instances where an attendant for Ms. Dukoff cannot travel with her as planned and the name of the attendant cannot be changed on an international ticket as a result of the above-noted conditions in Air Canada's international policy, Ms. Dukoff may have to cancel her trip and forfeit her ticket and that of the attendant, resulting in a distinction from other passengers who are not required to travel with an attendant. Alternatively, Ms. Dukoff may have to incur the cost of another ticket for a different attendant, which may often be at a higher price than the original ticket as it is purchased closer to the date of travel, therefore imposing an additional burden on her due to her disability.
[25] The conditions imposed by Air Canada's attendant name change policy are such that they can result in Ms. Dukoff not being able to travel as planned and prevent her from having an attendant to provide the disability-related services required by Air Canada's international tariff. In light of the fact that Air Canada's policy does not allow attendant name changes in all instances, the Agency finds that Air Canada's policy does not provide the appropriate accommodation.
[26] In addition, the Agency finds that Mrs. Orrey has satisfied the three-part test to establish an obstacle and, consequently, finds that Air Canada's policy regarding attendant name changes on international tickets and, more particularly, the above-noted conditions imposed by Air Canada, constitute an obstacle to Ms. Dukoff's mobility.
The Agency's approach to the determination of the undueness of obstacles
[27] Once the applicant has established the existence of an obstacle to the mobility of a person with a disability in the federal transportation network, the onus of proof shifts to the respondent transportation service provider to prove, on a balance of probabilities, that the obstacle is not undue. To this end, the respondent must demonstrate that it meets the following three-part test:
- the source of the obstacle is rationally connected to a legitimate objective, such as those objectives found in the national transportation policy contained in section 5 of the CTA;
- the source of the obstacle was adopted by the transportation service provider with an honest and good faith belief that it was necessary to the fulfillment of that legitimate objective; and
- the source of the obstacle is reasonably necessary for the accomplishment of its objective, such that it is impossible for the transportation service provider to accommodate the person with a disability without imposing undue hardship on the service provider.
[28] The transportation service provider must show that reasonable accommodation has been provided. What constitutes reasonable accommodation in each case is a matter of degree and depends on a balancing of the interests of persons with disabilities with those of the transportation service provider in the circumstances of the case.
[29] Reasonable accommodation will be the accommodation that respects the dignity of the individual, meets individual needs and promotes the independence, integration and full participation of persons with disabilities within the federal transportation network, while not causing undue hardship to the transportation service provider.
[30] To establish undue hardship, a transportation service provider must show that it has considered and determined that there are no reasonable alternatives to better accommodate the person with a disability affected by the obstacle and that there are constraints that make the removal of the obstacle unreasonable, impracticable or impossible.
[31] 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 concepts of undueness and undue hardship.
This case
[32] The Agency has found that the appropriate accommodation for Ms. Dukoff is the ability to make attendant name changes prior to commencement of travel, if required, for all Air Canada international flights, at no additional cost. Air Canada must therefore show that the requirement to provide this appropriate accommodation would impose undue hardship and that there is no other reasonable form of accommodation.
[33] Air Canada's policy of allowing attendant name changes on international tickets for persons with disabilities contains conditions that are designed to address operational concerns relating to such matters as documentation review, the assessment of new attendants and the time required for the issuance of tickets. The Agency finds that the first and second elements described in the above-noted three-part test with respect to the undueness of obstacles have been met. The following examines the third element in respect of the three conditions.
[34] The Agency required Air Canada to provide additional information with respect to the conditions.
[35] In response, Air Canada states that it has yet to be presented with an actual situation where accommodation is required. Therefore, Air Canada submits that it is not able to speculate as to what would be the reasonable accommodation other than the offer it has already put forward, i.e., it will change the attendant's name on the ticket if:
- the request is made before any coupon is used and at least 48 hours in advance of travel;
- the ticket is on Air Canada ticket stock and comprises solely flight segments operated by Air Canada; and
- the ticket is not sold through a consolidator or tour package.
Advance notice
[36] The appropriate accommodation would allow for attendant name changes on international tickets at any time prior to departure. However, Air Canada submits that a 48-hour advance notice is required and that it cannot make a name change on an attendant's international ticket on a less than 24-hour advance notice. If requests for attendant name changes are made between 24 and 48 hours prior to departure, Air Canada indicates that it will make reasonable efforts to make the change. Air Canada states that this condition is due to immigration concerns and in order that its Meda Desk agents have sufficient time to verify that the new person meets the criteria to be an attendant.
[37] More specifically, Air Canada explains that it has imposed a minimum 24-hour advance notice requirement for international destinations to address the time difference between various international destinations and its Meda Desk located in Canada, and to ensure that it can arrange for the issuance of another ticket. Air Canada notes that electronic tickets are not accepted everywhere and that tickets subject to the Warsaw Convention must be delivered either by hand, by mail or by fax.
[38] In addition, Air Canada states that, like all carriers, it is responsible to verify the passengers' travel documents before they are allowed to board the aircraft. The documents and immigration requirements vary depending on various factors including, but not limited to, a person's nationality, the point of embarkation, the destination, the purpose of the trip and, in certain cases, whether the person holds a return ticket. Furthermore, Air Canada submits that medical attendants are working and travelling for work purposes, adding an additional layer of verification.
[39] In light of the above, the Agency finds that a policy that provides for attendant name changes on international tickets without advance notice would create an undue hardship as Air Canada needs time to address the above-noted operational matters.
[40] However, while Air Canada must verify immigration-related documents, there is no evidence that it verifies this documentation in advance of the day of travel. Rather, Air Canada states that documents are verified before the passenger is allowed to board the aircraft. The Agency therefore finds that Air Canada has not demonstrated that it requires an advance notice period, for immigration reasons, prior to the day of departure.
[41] In terms of the amount of time it needs to meet the above-noted other operational requirements, the Agency finds that while Air Canada has justified the minimum advance notice period of 24 hours, it has not justified that it would need more than a 24-hour advance notice to effect attendant name changes on international tickets.
[42] The Agency therefore finds that a 24-hour advance notice for changes would not result in an undue hardship for the carrier.
[43] Consequently, the Agency finds that Air Canada's advance notice requirement of 48 hours prior to departure (with reasonable efforts to accommodate requests made between 24 and 48 hours prior to departure) constitutes an undue obstacle to the mobility of Ms. Dukoff.
Air Canada ticket stock and transportation solely on Air Canada-operated flights
[44] Air Canada submits that, as it often interlines with other carriers on international routes and flight segments on other carriers may appear on its tickets, it must restrict name changes to tickets printed only on Air Canada ticket stock and comprised of flights solely operated by Air Canada. The carrier's policy also sets out that attendant name changes do not apply to code-share flights and other air carriers.
[45] Air Canada explains that transportation on Air Canada can be booked or ticketed in various ways. Air Canada notes that although interline transportation (more than one flight segment operated by more than one carrier) may take place domestically or on transborder routes, the more complex itineraries involving interline transportation are predominantly on international routes.
[46] Air Canada states that it has contracted with many other International Air Transport Association (IATA) carriers through Mutual Interline Ticketing Agreements (MITA) to permit the issuance of tickets with segments operated by the other carrier. Air Canada argues that these are not code-share agreements and that by issuing a ticket on Air Canada ticket stock, it is acting only as an agent of the other carrier and the other carrier's terms and conditions apply for this travel.
[47] Air Canada notes that it has also entered into various Special Pro-Rate Agreements with carriers with which it has MITA, where the service is provided in part by Air Canada and partly by the other carrier, but bears a single price. Air Canada adds that more often than not, this single price is cheaper and travel is more seamless than if the passenger had bought the segment operated by Air Canada and the remaining segment(s) operated by the other air carrier separately.
[48] Air Canada indicates that its flights can be booked either directly through its call centres or airport ticket offices, on its Web site, through accredited travel agencies or through another air carrier. Air Canada explains that when a booking on an Air Canada flight is made through another carrier or a travel agency and the ticketing carrier is not Air Canada, the issuing or ticketing carrier will "hold the complete itinerary in their system", whereas Air Canada may only have the portion of the itinerary that it operates in its reservation system. Air Canada adds that when the ticket is issued by another carrier on that carrier's ticket stock, Air Canada does not have the authority to change, cancel or refund the ticket.
[49] Air Canada notes that, for tickets issued on its ticket stock which comprise transportation on another carrier for certain segments of the journey, Air Canada cannot change the name of the passenger on the portion pertaining to the other carrier if that particular carrier's terms and conditions do not allow for name changes. Air Canada adds that most IATA carriers do not allow name changes on tickets.
[50] While Air Canada has provided information concerning various arrangements for travel options involving more than one carrier, it has only specifically identified the following operational constraints with respect to attendant name changes, all of which involve terms and conditions applicable to other carriers:
- MITA tickets, where Air Canada is only acting as an agent of the other carrier and the other carrier's terms and conditions apply for this travel;
- tickets issued by another carrier on that carrier's ticket stock, where Air Canada does not have the authority to change, cancel or refund the ticket; and
- the portion of a ticket pertaining to another carrier if that particular carrier's terms and conditions do not allow for name changes.
[51] As the scope of the Agency's investigation of this case does not involve tickets, or portions thereof, for which the terms and conditions do not apply to Air Canada, the Agency will not require any change to policies other than to those of Air Canada being the named respondent in this case.
[52] With respect to tickets for which Air Canada's terms and conditions apply and for which Air Canada is the marketing carrier, including code-share flights, Air Canada has not provided any evidence to demonstrate why it cannot allow attendant name changes on such tickets.
[53] The Agency finds that Air Canada has not provided sufficient evidence to demonstrate that it would impose undue hardship to allow attendant name changes on international tickets on code-share flights for which Air Canada's terms and conditions apply and where Air Canada is the marketing carrier. The refusal by Air Canada to allow attendant name changes on tickets for such flights constitutes an undue obstacle to the mobility of Ms. Dukoff.
Tickets sold through consolidators and tour operators
[54] Air Canada submits that name changes are not possible on net fare tickets sold through a consolidator (an agent that purchases seats from a carrier and sells them to the consumer and issues the tickets), nor on inclusive tour tickets, which are sold as part of a tour package.
[55] The Agency required Air Canada to explain why such name changes are not possible.
[56] Air Canada did not specifically address the question as it relates to tickets sold through a consolidator, and has not demonstrated that attendant name changes on international tickets sold through consolidators would result in undue hardship.
[57] Air Canada provides the following reasons for the non-application of its attendant name change policy on tickets sold through tour operators, as part of a package:
- tour packages are a provincial matter and are not subject to federal jurisdiction;
- fares that form part of a tour package must be sold to a passenger by a tour operator only if it is in conjunction with another component, such as a hotel, an excursion, a cruise or a car rental;
- once the ticket is sold, it forms part of the tour package and cannot be "dissociated there from"; and
- changing the name on the ticket will not result in changing the name on the tour package or the land portion of a package.
[58] The Agency's jurisdiction in accessible transportation matters is limited by the CTA to eliminating undue obstacles in the transportation network under the legislative authority of the Parliament. While services that form part of a tour package, such as hotel services and ground transportation from airports outside of Canada, clearly fall outside of the federal transportation network, the air transportation provided by Air Canada as part of such vacation packages does form part of the federal transportation network and, as such, falls within the Agency's jurisdiction.
[59] While the Agency acknowledges that it may not be possible to change attendant names with respect to the ground portion elements of a tour operator package, the issue being examined relates to the air portion of the tour operator package.
[60] Moreover, the Agency is of the opinion that Air Canada made general operational arguments regarding international tickets sold as part of a tour package and did not explain constraints that might be related to attendant name changes on international tickets sold through consolidators. With respect to this particular matter, the Agency finds that, on a preliminary basis, the evidence provided by Air Canada is not persuasive and that Air Canada has not adequately demonstrated that allowing attendant name changes on international tickets in respect of tickets sold through consolidators or as part of a tour package will create undue hardship on Air Canada.
[61] The Agency, however, recognizes that there could be possible ramifications on third-party companies with which Air Canada does business. Therefore, Air Canada is provided with the opportunity to show cause why the Agency should not find that changing attendant names on international tickets in respect of tickets sold through consolidators or as part of a tour package does not cause undue hardship on Air Canada.
CONCLUSION
[62] The Agency finds that the following conditions related to Air Canada's attendant name change policy for international travel constitute an undue obstacle to the mobility of Ms. Dukoff:
- the advance notice requirement of 48 hours prior to departure (with reasonable efforts to accommodate requests made between 24 and 48 hours prior to departure); and
- not permitting a change of attendant names on international tickets in respect of code-share flights where Air Canada is the marketing carrier.
[63] Air Canada is required to modify, within 30 days from the date of this Decision, its policy with respect to attendant name changes on international tickets to reduce the advance notice requirement to 24 hours and to allow attendant name changes in respect of tickets involving Air Canada as the marketing carrier where its terms and conditions apply, including code-share tickets where Air Canada is the marketing carrier.
DIRECTION TO SHOW CAUSE
[64] The Agency has made a preliminary finding that Air Canada has not adequately demonstrated that allowing attendant name changes on international tickets in respect of tickets sold through consolidators or as part of a tour package will create undue hardship on Air Canada. As such, Air Canada is provided with the opportunity to show cause, within 30 days from the date of this Decision, why the Agency should not find that changing attendant names on international tickets in respect of tickets sold through consolidators and as part of a tour package does not cause undue hardship on Air Canada.
Mrs. Orrey will then have 15 days to file her reply. Should Air Canada wish to respond at that point, it will have 15 days to do so. Parties are required to provide a copy of their submissions to the other party at the same time as they are filed with the Agency.
Members
- Raymon J. Kaduck
- John Scott
Member(s)
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