Decision No. 26-AT-A-2023

Summary

[1] Mr. Abbasi filed an application with the Canadian Transportation Agency (Agency) against Air France alleging that Air France refused to accommodate his request for a seating accommodation.

[2] Mr. Abbasi seeks the following:

• changes to Air France’s policy on seating accommodation;
• an assurance that Mr. Abbasi will be able to engage in dialogue with Air France about his disability-related needs in the future;
• CAD 20,000 as compensation for the pain and suffering he endured; and
• CAD 20,000 for a contravention of regulations that was the result of wilful or reckless practice.

[3] On September 28, 2022, the Agency issued Decision LET-AT-A-41-2022 (Contravention Decision), in which it found that:

• Mr. Abbasi is a person with a disability because he suffers from fibrodysplasia ossificans progressiva;
• Air France was in contravention of the Accessible Transportation for Persons with Disabilities Regulations (ATPDR) because its medical desk did not engage in any dialogue with Mr. Abbasi when he requested a class upgrade, and then a seat with extra leg room, to accommodate his disability (contravention); and
• Mr. Abbasi was adversely affected by Air France’s failure to apply the regulation because its actions led Mr. Abbasi to believe that he could not travel with Air France.

[4] The Agency then opened pleadings on potential corrective measures, compensation for pain and suffering and compensation for a contravention that resulted from wilful or reckless practice. The parties each submitted their positions on the above issues before pleadings closed.

[5] In this decision, the Agency will address the following issues:

1. Should the Agency award corrective measures and, if so, what corrective measures should the Agency order?
2. Should the Agency award compensation for pain and suffering to Mr. Abbasi?
3. Should the Agency find that the contravention was the result of a wilful or reckless practice and award compensation to Mr. Abbasi?

[6] For the reasons set out below, the Agency orders the following:

1. Air France must design a new training program as detailed in the Order section at the end of this decision;
2. Air France must train the employees as identified in the Order section at the end of this decision; and
3. Air France must compensate Mr. Abbasi for pain and suffering in the amount of CAD 2,000 and for a contravention of regulations that was the result of a reckless practice in the amount of CAD 1,000.

The law

[7] A carrier has the obligation under the ATPDR to engage in dialogue with a person with a disability who identifies the nature of their disability. This conversation is to be about their disability-related needs and the services offered by the carrier to address those needs.

[8] If the Agency finds that an applicant has been adversely affected by a contravention of the regulations, it has the authority under the Canada Transportation Act to require the contravener to take appropriate corrective measures. The Agency may order that the applicant be compensated for their pain and suffering resulting from the contravention and also if the Agency finds the contravention is the result of a wilful or reckless practice.

Issue 1: Should the Agency award corrective measures, and if so, what corrective measures should the Agency order?

Air France’s position

[9] Air France proposes to develop an e-learning program for its Saphir medical desk agents; its Canadian reservations department; its managers, supervisors, and check-in personnel in its stations in Canada; and its managers, supervisors, and check-in personnel at the Paris-Charles de Gaulle Airport who provide service to routes to Canada. The e-learning program would emphasize Air France’s obligation to engage in dialogue with persons with disabilities, even in the absence of a pre-existing reservation.

[10] Air France’s e-learning program would involve three core points that personnel would have to address if a passenger makes it known that they have disability-related needs related to seating:

• passengers with a disability should be given the opportunity to describe their needs;
• employees should share information with passengers with a disability about possible seating options, including the waiver of fees for a paid seating option if that seating is needed to accommodate a disability; and
• passengers with a disability should be given an opportunity to share their opinion about the accommodation needed to address their disability-related needs.

[11] The e-learning program would also highlight the importance of personnel documenting the options offered and considered with passengers with disabilities so that Air France personnel may access this information in the future.

Mr. Abbasi’s position

[12] Mr. Abbasi submits that Air France’s e-learning program should also include the following policies:

• Air France should refund tickets to passengers needing an accommodation to the original form of payment, irrespective of the fare conditions, if no suitable seating options are available;
• Air France should waive fees for suitable seat options for the passenger and their travel companion to sit next to them; and
• Air France should accommodate a passenger irrespective of their reason for travel.

Analysis and determination

[13] The Agency finds that Air France’s proposal addresses the contravention and is in line with the requirements set out in the ATPDR. Indeed, Air France’s proposal addresses the issues Mr. Abbasi faced relating to seating, including reminding employees that persons with disabilities should not be charged extra for a seating accommodation related to their disability. The Agency notes that Air France’s proposed training program will include instruction that passengers should be provided with the opportunity to share their opinion about the accommodation needed to address their needs. In order to comply with the ATPDR, the Agency notes that the training program must ensure that the passenger’s opinion be taken into account when seating is assigned.

[14] Although Mr. Abbasi proposed additional points to be included, the Agency finds that they are not necessary for the reasons below.

[15] First, Air France’s suggested training would also include instruction for its personnel to engage with passengers even if they had not yet made a reservation. In this way, a passenger could request seating information before making the reservation, negating the need for a passenger to request a refund after booking a ticket. Additionally, Mr. Abbasi’s request for a refund irrespective of fare rules is not related to the contravention because the cost of cancelling a reservation was not identified as a barrier or a contravention of regulations in the application or in the Contravention Decision.

[16] Second, in the Contravention Decision, the Agency dismissed Mr. Abbasi’s request for an order related to the costs associated with a travel companion as a preliminary matter and, as such, it is not an appropriate corrective measure.

[17] Finally, the Agency finds that an order requiring Air France to address the reason for travel in its training program is unnecessary as all persons with disabilities are entitled to accommodation irrespective of their reasons for travel.

Issue 2: Should the Agency award compensation for pain and suffering to Mr. Abbasi?

Mr. Abbasi’s position

[18] Mr. Abbasi submits that the discrimination he faced affected both his mental and physical health. He states that as a result of the incident, he does not feel comfortable booking or taking a flight and, consequently, has missed several important hospital appointments in France. He provides evidence of these appointments in the form of screenshots of communication with the hospital about appointments, which he alleges he missed because of Air France’s contravention. He says that his physical health has suffered as a result.

[19] He submits that the incident has left him feeling insulted, humiliated, angry, hurt, worthless and full of despair. He declares that he is now suffering from panic attacks, depression, anxiety and insomnia. He provides evidence in the form of a photo of his antidepressant medication.

Air France’s position

[20] Air France acknowledges that its agents could have done more to initiate a dialogue with the applicant about his disability-related need but argues that the evidence does not establish that the applicant’s alleged pain or suffering arises out of the contravention. It points out that the applicant did not provide any clinician’s notes about his mental health diagnosis to show when his symptoms began in order to determine if they arose or worsened as a result of the contravention.

[21] Air France similarly argues that there is no evidence on the record that the medical appointments the applicant claims to have missed are a result of Air France’s contravention. It argues that Mr. Abbasi does not provide evidence that he required the medical treatment, that the treatment is available only in France or that he could not travel there by some other means. It also points out that the evidence does not show which institution Mr. Abbasi was to have attended in France for medical treatment.

Analysis and determination

[22] In Decision 114-AT-A-2022 (Browne v WestJet), the Agency found the following:

Pain and suffering can be expressed in various forms, including stress, anxiety, depression, physical pain or suffering, humiliation or loss of dignity, and any combination of these factors. Every complaint is unique; therefore, the Agency assesses compensation on a case-by-case basis.

…

To determine the amount of compensation, the Agency must weigh the evidence before it, taking into account considerations such as the extent and duration of the pain and suffering experienced by the applicant. The award must be fair and reasonable, but compensation for pain and suffering is difficult to quantify—it is essentially an attempt to put a price on happiness. As the Supreme Court of Canada recognized in Andrews, placing a value on non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one because money cannot provide true restitution.

[23] The Agency found in the Contravention Decision that Mr. Abbasi had been adversely affected by Air France’s contravention of the regulation because it led him to believe he could not travel, which he claims was necessary to receive medical treatment. The evidence corroborating this assertion is limited, consisting primarily of correspondence with medical professionals at an institution in France. However, there is no evidence on the record that causes the Agency to question the veracity of his claim that this medical treatment was required in order to help manage his condition.

[24] He also claims that having missed several important hospital appointments in France, his health has suffered badly. Mr. Abbasi does not provide details about how his condition has deteriorated due to his inability to obtain these treatments. The Agency accepts that this would have caused Mr. Abbasi a degree of physical harm, although the extent of the harm is unknown based on the record.

[25] The Agency also accepts Mr. Abbasi’s statements that this has had an emotional and psychological impact on him. The Agency accepts Mr. Abbasi’s testimony that the incident has also left him feeling insulted, humiliated, angry, hurt, worthless, and desperate, and contributed to his mental illness. The Agency acknowledges that these types of impacts are difficult to corroborate.

[26] The Agency finds that the evidence provided is sufficient to base an award for compensation for the pain and suffering Mr. Abbasi describes. The Agency therefore finds it appropriate to order compensation in the amount of CAD 2,000. The Agency awards this amount to reflect the seriousness of Air France’s contravention while also recognizing that Mr. Abbasi’s evidence consists largely of anecdotal evidence that is uncorroborated with respect to the physical and psychological impacts of his inability to travel.

Issue 3: Should the Agency find that the contravention was the result of a wilful or reckless practice and award compensation to Mr. Abbasi?

Mr. Abbasi’s position

[27] Mr. Abbasi submits that Air France wilfully and recklessly engaged in discrimination against him, even though it knew that it would mean he could not travel. He points out that when both he and his friend emailed Air France, they clearly noted Air France’s human rights obligations to provide accommodation, and yet, Air France refused to do so without charging a fee. Mr. Abbasi points out that the behaviour continued, even after this case had been brought before the Agency.

Air France’s position

[28] Air France submits that there is no evidence that it or its agents engaged in wilful or reckless practice by not engaging with Mr. Abbasi in dialogue about his disability-related needs. It submits that the Federal Court recently found that a similar provision in the Canadian Human Rights Act “is a punitive provision, intended to provide a deterrent and to discourage those who deliberately discriminate. To be wilful, the discriminatory action must be intentional. Reckless discriminatory acts ‘disregard or show indifference for the consequences such that the conduct is done wantonly or heedlessly.’”

Analysis and determination

[29] Unlike awards of compensation for pain and suffering, compensation for wilful or reckless practice is intended to deter and discourage those who deliberately or carelessly disregard their legal obligations. In the context of discrimination cases, Canadian appellate courts have generally found that willfulness requires that the discriminatory act and the infringement of the person’s rights be intentional, whereas recklessness usually denotes acts that disregard or show indifference for the consequences such that the conduct is done wantonly or heedlessly. In Hughes v Canada (Attorney General), the Federal Court clarified that “a finding of recklessness does not require proof of intention to discriminate.” The focus of this analysis is on the respondent’s conduct—in this case, Air France’s failure to engage in a dialogue with Mr. Abbasi about his disability-related needs—not the effect of the conduct on the applicant. For this reason, the applicant is not required to furnish evidence of loss.

[30] In determining whether such compensation is appropriate and the quantum of any such compensation, the Agency may take into account considerations such as the nature and gravity of the act and the duration of the discriminatory conduct, including whether it was repeated or sustained.

[31] The Agency accepts that Air France’s failure to engage in a dialogue with Mr. Abbasi about his disability-related needs was not an intentional infringement of Mr. Abbasi’s rights, nor was there any evidence of bad faith on the part of Air France or any of its agents.

[32] However, Air France is a large international air carrier that one would expect to be well versed in its legal obligations whether these obligations arise from Canadian law or otherwise. The evidence shows that Air France’s medical desk personnel behaved as though they were unaware of its obligations under the ATPDR, even though Mr. Abbasi reminded them that Air France had human rights obligations to provide him with accommodation. As was the case in Hanna v Treasury Board (Department of the Environment), ignorance of one’s legal obligations can constitute a reckless practice. The Agency finds this case is similarly demonstrative of ignorance being a reckless practice. The Agency notes that the ignorance in this case is especially concerning because the medical desk employees with whom Mr. Abbasi and his representative communicated should be those most equipped with knowledge of the carrier’s obligations toward and impact on persons with disabilities.

[33] Furthermore, the Agency notes that this failure to engage in a dialogue was not a one-time occurrence. Air France failed to engage in a dialogue with Mr. Abbasi even after he filed his application with the Agency.

[34] The fact that Air France’s practice was not to engage in a discussion about seating options unless and until a passenger made a reservation was reckless. It ought to have known that if passengers were left with the impression that the requested accommodation was not a possibility, they would not take the next step to book a ticket. In doing so, Air France failed to consider the impact of its actions on Mr. Abbasi.

[35] For the reasons set out above, the Agency finds that the contravention was a result of a reckless practice and orders Air France to pay Mr. Abbasi CAD 1,000 as compensation.

Order

Corrective measures

[36] The Agency orders Air France to develop an e-learning program that emphasizes Air France’s obligation to engage in dialogue with persons with disabilities even if those persons do not have a pre-existing reservation. The training should include instruction that if a passenger makes known that they have a disability-related need, personnel should ensure the following points are addressed during the conversation:

(a) passengers with a disability are encouraged to describe their needs and asked for documentation, if necessary;

(b) personnel must share information with the passenger with a disability about relevant services that may be available to address the needs identified, including the possibility of waiving fees normally required in order to reserve a particular seating option if that seating is needed to accommodate a disability; and

(c) passengers with a disability should be encouraged to share their opinion about the accommodation needed to address their disability-related needs and this opinion shall be taken into account when seating is assigned.

[37] Furthermore, Air France must provide a copy of the new training program to the Agency’s Chief Compliance Officer through its Secretariat as soon as possible and no later than May 11, 2023.

[38] The Agency also orders Air France to provide the training to the following personnel:

(a) Saphir medical desk agents;

(b) its Canadian reservations department;

(c) its managers, supervisors, and check-in personnel in its stations in Canada; and

(d) its managers, supervisors, and check-in personnel at the Paris-Charles de Gaulle Airport who provide service to routes to Canada.

[39] In addition, Air France must confirm with the Agency’s Chief Compliance Officer through its Secretariat as soon as possible and no later than 40 business days after providing a copy of the e-learning program to the Agency that the e-learning program has been completed by the above-named personnel.

Compensation

[40] The Agency also orders Air France to compensate Mr. Abbasi as follows:

(a) CAD 2,000 for pain and suffering, and

(b) CAD 1,000 for a contravention of regulations that was the result of a reckless practice.

[41] Air France is to compensate Mr. Abbasi for a total of CAD 3,000 as soon as possible and no later than April 13, 2023.

Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	172.1(1); 172.1(2)
Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244	54(1); 55(b)