Decision No. 299-AT-A-2008

May 30, 2008

APPLICATIONS by Georgie A. Davis regarding difficulties she experienced with Air Canada.

File Nos. U3570/02-44
U3570/02-46

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INTRODUCTION

[1] In letters dated September 19, 2002 and October 9, 2002, Georgie A. Davis filed with the Canadian Transportation Agency (the Agency) two applications concerning difficulties she experienced while travelling with Air Canada between Saskatoon and Ottawa in September and October of 2002. When Ms. Davis made her travel arrangements, she requested that wheelchairs with moveable armrests and footrests be provided in airports; they were not made available to her in the Toronto-Lester B. Pearson International Airport (Toronto airport) and the Ottawa Macdonald-Cartier International Airport (Ottawa airport). Further, her electric wheelchair was disassembled for travel, and reassembled improperly, and the batteries were removed from the wheelchair for travel. As well, upon arriving in Ottawa, Ms. Davis found that one of the iron footrests had been broken in half. Ms. Davis was also not satisfied with the space provided for her service animal, or with the assistance provided by Air Canada in transferring her from her wheelchair to wheelchairs used at the airports and for boarding purposes.

[2] The issues to be addressed, therefore, are whether the following constituted undue obstacles to Ms. Davis' mobility and, if so, what corrective measures should be taken:

• the accessibility of the airport wheelchairs that Air Canada provided to Ms. Davis in the Toronto airport and the Ottawa airport;
• Air Canada's handling of Ms. Davis' wheelchair, including the iron footrest broken in transit;
• the lack of adequate space for Ms. Davis' service animal on board Air Canada's aircraft; and,
• the assistance Air Canada provided to Ms. Davis in transferring her from her wheelchair to wheelchairs used at the airports and for boarding purposes.

BACKGROUND

Air Canada's proceedings under the Companies' Creditors Arrangement Act (CCAA)

[3] On April 1, 2003, Air Canada was placed under court-sanctioned protection from its creditors to facilitate the carrier's operational, commercial, financial and corporate restructuring. As part of this process, the Ontario Superior Court of Justice issued an Order pursuant to the CCAA staying all proceedings against or in respect of Air Canada and certain of its subsidiaries (Stay Order). As a consequence, the Agency was unable to continue processing this file.

[4] On August 23, 2004, the Court issued an Order pursuant to the CCAA (the Sanction Order) which lifted the Stay Order as of September 30, 2004. The Sanction Order also extinguished all claims of a financial nature against Air Canada which arose on or before April 1, 2003.

[5] All accessible transportation applications before the Agency against Air Canada and its subsidiaries in relation to incidents that occurred on or before April 1, 2003, including this application, were put on hold for a second period of time as a result of a dispute between the Agency and Air Canada on the scope of the Sanction Order. However, the Agency later determined that it would proceed with its processing/monitoring of the affected applications.

Extinguishment of claims

[6] On January 6, 2005, Air Canada filed a submission with respect to Ms. Davis' application wherein the carrier submitted that individual applications for compensation or for a finding that an undue obstacle existed in the transportation of a passenger with a disability for events that occurred prior to April 1, 2003 are "Claims" against Air Canada, and thus were extinguished. The Agency disagreed and sought clarification from Justice Farley of the Ontario Superior Court of Justice which governed Air Canada's re-emergence from protection under the CCAA. Air Canada requested that the Agency stay all affected applications, including that of Ms. Davis, pending Justice Farley's decision; the Agency granted Air Canada's request.

[7] The Agency subsequently determined that the best way to deal with the affected applications was to proceed with its consideration of the applications and, as such, on June 30, 2005, the Agency determined that it would not continue with its motion before Justice Farley for an interpretation of the Sanction Order, and subsequently found it appropriate to lift the stay. The Agency took the position that although the financial aspect of a claim is extinguished, the investigation and remedial measures of a claim predating April 1, 2003 were not.

[8] In 2006, Air Canada sought a declaration by the Ontario Superior Court of Justice with respect to monetary penalties imposed by the Minister of Transport prior to April 1, 2003. Justice Cummings rendered a decision stating that monetary penalties were "claims" for the purposes of the CCAA, the claims procedures and the Sanction Order. Air Canada's interpretation of Justice Cummings' decision is that all applications involving incidents predating April 1, 2003 are extinguished in their entirety.

[9] The Agency disagrees with Air Canada's interpretation. It views Justice Cummings' decision as being limited strictly to monetary penalties. The Agency remains of the opinion that Ms. Davis' applications are not extinguished by the Sanction Order because Part V of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) is human rights legislation aimed at removing undue obstacles to the mobility of persons with disabilities in Canada's transportation system. As human rights legislation is quasi-constitutional and is the manifestation of public policy concerning matters of general concern, it is fundamental to capture the spirit of protecting human rights and preventing discrimination. Accordingly, while the Agency concedes that orders made pursuant to subsection 172(3) of the CTA—which directed Air Canada to reimburse applicants who incurred costs associated with undue obstacles to their mobility—were covered by the definition of "claims", and are thus extinguished, the Agency maintains its view that Air Canada is not relieved from its legal obligations to comply with regulatory requirements, particularly in respect of human rights protection afforded to persons with disabilities.

[10] One of the implications of the lengthy period of Air Canada's protection under the CCAA and all subsequent legal requests for clarifications from the Court is a delay in the processing of Ms. Davis' applications. In its letter to the Agency dated January 21, 2007, Air Canada claims that the Agency's inaction for a period of more than two years means that its mandate with respect to Ms. Davis' applications has expired. The Agency disagrees. In a letter to the parties dated April 19, 2005, the Agency stayed Ms. Davis' applications and on December 6, 2006, the Agency sought further information from Air Canada with respect to the applications. On December 19, 2006, the Agency granted Air Canada's request dated December 17, 2006, for an extension of time to file its reply. As a result of such activity during the two-year period preceding Air Canada's request, the carrier's claim that the Agency's mandate has expired on the basis of two years of inactivity is without merit. Further, there is no provision in the CTA having the effect of making matters before the Agency moot after a period of time. Therefore, the Agency has determined that it will continue with these applications.

[11] In respect of potential claims of a financial nature against the carrier, the Agency notes that there is no evidence to indicate that Air Canada did not assume the responsibility and cost for having the broken footrest on Ms. Davis' wheelchair repaired. In any event, a claim arising from such repairs is financial in nature and would have been extinguished by the Sanction Order, as the incident pre-dated April 1, 2003 when Air Canada entered protection under the CCAA. In light of the above, any claim related to repairs to Ms. Davis' wheelchair will not be addressed.

FACTS

[12] Ms. Davis uses an electric wheelchair with a dry-cell battery. She travels with an attendant and her service dog, which weighs approximately 65 pounds.

[13] In September and October of 2002, Ms. Davis, her attendant and her service dog travelled round-trip from Saskatoon to Ottawa, with a connecting flight in Toronto. She booked both trips through travel agents more than two weeks in advance of travelling and advised them of her need for the following accommodations:

• airport wheelchairs with movable armrests and footrests to enable her to independently transfer herself;
• aircraft seating with liftable armrests, to enable her to independently transfer herself from the wheelchair used for boarding into her seat; and,
• bulkhead seating, to accommodate her service animal.

[14] Air Canada's Passenger Name Record (PNR) for each of Ms. Davis' trips indicates that she travels with an attendant and a service dog, and contains a WCHC code (indicating that the passenger requires a wheelchair to/from the aircraft and to/from the cabin seat and that the passenger must be carried up/down stairs); each PNR also identifies that bulkhead seating was requested. Prior to leaving Saskatoon in October, Ms. Davis contacted Air Canada's medical desk to ensure that her accessibility requirements were identified, reinforcing her need for airport wheelchairs with moveable armrests and footrests.

[15] Ms. Davis is able to transfer herself from her wheelchair to an airport wheelchair that has moveable armrests and footrests and from a boarding wheelchair to an aisle seat in the aircraft that has liftable armrests. She was, however, unable to perform these transfers independently at the Toronto and Ottawa airports as the wheelchairs that Air Canada provided to her in these airports did not have movable armrests and footrests. Further, she was unable to transfer herself to her seat onboard the flights in question as her assigned aisle seat in the bulkhead row on each flight did not have a movable armrest. As a result, Air Canada employees performed all the transfers which, for transfers to and from the aircraft seats, involved lifting Ms. Davis over the fixed armrests.

[16] Air Canada operated Airbus 319 (A319) and Airbus 320 (A320) aircraft on the routes in question. Ms. Davis and her attendant were assigned seats in the bulkhead rows on each flight. Bulkhead seats do not have moveable armrests.

[17] It is Air Canada's practice to remove dry-cell batteries from electric wheelchairs and to reassemble them after landing. When in Ottawa, Air Canada staff did not correctly reconnect the batteries to Ms. Davis' wheelchair, and her attendant had to reconnect them himself. When Ms. Davis returned home to Saskatoon at the end of her September trip, she discovered that the batteries, which once again had been removed from her wheelchair, had been separated from it; she subsequently found them on the baggage carousel. In addition, a small cap covering a screw was missing from the wheelchair.

[18] Air Canada's tariff, which sets out the terms and conditions of carriage, provides that certified and professionally trained service animals will be carried free of charge when accompanying a passenger on board, but that the animal must be harnessed and must remain at the passenger's feet. Often, when Ms. Davis travelled, the window seat in the row where she and her attendant sat was left unoccupied and her service dog was able to remain on the floor under that third seat. On the Regina-Toronto, Toronto-Ottawa and Ottawa-Toronto flights, however, Ms. Davis and her attendant were required to share the row with a third passenger, so her service dog was forced to remain under her feet in the bulkhead row where she and her attendant were seated.

ANALYSIS AND FINDINGS

[19] 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. Davis uses an electric wheelchair, and travels with a service animal and an attendant. As such, Ms. Davis is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[20] 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. To answer these questions, the Agency must take into consideration the particular facts of the case before it.

The Agency's approach to the determination of obstacles

[21] Under Part V of the CTA, the mandate of the Agency is to eliminate undue obstacles to the mobility of persons with disabilities from the federal transportation network. The word "obstacle" is not defined in the CTA, but lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement. Obstacles or barriers to the mobility of persons with disabilities may result from, for example, federal transportation service providers' facilities; equipment; and/or policies, procedures, or practices; or a failure by transportation service providers to comply with such and/or to take positive action to enforce compliance with policies, procedures and practices, including a failure to provide appropriate training to employees and contractors.

[22] 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 is, on a prima facie basis) 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.

[23] 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.

This case

[24] Each of the above-noted issues is now examined to determine whether it constituted an obstacle to Ms. Davis' mobility.

Was the accessibility of the airport wheelchairs that Air Canada provided to Ms. Davis in the Toronto airport and the Ottawa airport an obstacle to her mobility?

[25] The evidence shows that when travelling in September, Ms. Davis was not provided with a wheelchair with moveable armrests and footrests at either the Toronto airport or the Ottawa airport. Further, despite having reinforced her need for airport wheelchairs with moveable armrests and footrests to Air Canada's medical desk prior to leaving Saskatoon in October, the requisite equipment was not provided to her at either of these airports. As a result, Ms. Davis was unable to transfer from her wheelchair to the airport wheelchairs independently and was unable to transfer to her seat on board the flights in question as her assigned aisle seat in the bulkhead row on each flight did not have a movable armrest.

[26] The evidence also shows that Air Canada employees performed all the transfers that, for transfers to and from the aircraft seats, involved lifting Ms. Davis over the fixed armrests. Ms. Davis states that the experience was painful and left her with bruises.

[27] Ms. Davis' attendant submitted a witness statement confirming Ms. Davis' claims and her portrayal of her travel experiences.

[28] Air Canada advises that it has a Special Assistance Team (SPAT) at the Toronto airport which is trained to look after the needs of its passengers with disabilities. To this, Ms. Davis responds that a SPAT team in Toronto was of no use to her at the Ottawa airport.

[29] Air Canada also advises that at both the Toronto and Ottawa airports the agents who provide assistance to passengers with disabilities have the option of using the Washington wheelchair (which has shoulder, lap and leg belts to secure the passenger) or the Manten wheelchair (which has removable armrests and pivoting footplates). The carrier describes the Washington chair as a "narrow rigid high back chair which is normally used at transfer points". Air Canada says the Manten chair "has a rigid but low back with two sets of wheels. They are both used when a customer reservation profile indicates the WCHC code, as in Ms. Davis' reservation."

[30] In Air Canada's documentation, the standard wheelchairs are described as rigid, non-collapsible and non-foldable, most of which are equipped with detachable armrests and leg/heel straps. Ms. Davis says this is the type of wheelchair she was provided with in the Toronto and Ottawa airports, but adds that they lacked moveable armrests and footrests. When she asked Air Canada staff if they had any manual wheelchairs with moveable armrests and footrests, she was told they did not. Ms. Davis contends that had the airports been equipped with such wheelchairs, she would have been able to transfer herself, avoid pain and bruising, and would not have been "subjected to the humiliating and degrading spectacle of being hauled around like a sack of potatoes".

[31] Air Canada's policy with respect to passengers with disabilities states that it "will make every reasonable effort to accommodate requests made within 48 hours"; however, Ms. Davis was not provided with the requisite type of wheelchair, despite her travel agents having conveyed her needs two to three weeks prior to travel. Air Canada does not dispute that Ms. Davis was not provided with a manual wheelchair with moveable armrests and footrests in the Toronto and Ottawa airports, nor does the carrier offer any explanation as to why the requisite wheelchair was not provided. Ms. Davis' difficulties resulted from her not having access to the necessary equipment, which caused her physical pain and humiliation.

[32] The Agency therefore finds that the accessibility of the airport wheelchairs that Air Canada provided to Ms. Davis in the Toronto and the Ottawa airports was an obstacle to her mobility.

[33] Upon finding that an obstacle to the mobility of a person with a disability exists, the Agency would typically make a further determination as to whether the obstacle was undue and possibly order corrective measures. In this instance, any corrective measures would relate to the carrier's responsibility for making available to a person with a disability the requisite type of wheelchair.

[34] In Decision No. 492-AT-A-2006 addressing the availability of specific wheelchair types, the Agency ordered Air Canada to "establish procedures to ensure that where passengers request a specific type of airport wheelchair to accommodate a disability, they are provided with the specific type of wheelchair when available at the particular airport, and to clearly and specifically require agents to perform the verification and confirmation at the time the request is made." Air Canada's reply to the Agency's order is under review.

[35] Therefore, as the Agency is currently examining Air Canada's obligations to accommodate the transfer needs of persons who require specific types of wheelchairs, this portion of Ms. Davis' applications will not be further addressed in this Decision.

Was Air Canada's handling of Ms. Davis' wheelchair an obstacle to her mobility?

[36] The evidence shows that it is Air Canada's practice to remove dry-cell batteries from an electric wheelchair and to reassemble the device after landing. When in Ottawa, Air Canada staff did not correctly reconnect the batteries to Ms. Davis' wheelchair; her attendant had to do so. Once back in Saskatoon at the end of her September trip, Ms. Davis discovered that the batteries had once again been separated from her wheelchair and she subsequently found them on the baggage carousel.

[37] Ms. Davis states that, unlike a wet-cell battery, a dry-cell battery is "sealed, is leak-proof and is non-spillable" and does not have the cables or leads that a wet-cell battery would normally have. She states that she has been advised that there is no need to remove the batteries from her wheelchair before storing it, but that Air Canada continues to do so. Ms. Davis adds that this practice could result in something being broken or in Air Canada staff being unable to reassemble the wheelchair properly upon arrival at her destination.

[38] Air Canada's tariff states that non-spillable wheelchair batteries must be disconnected and taped, and that if wheelchairs with spillable batteries can be carried in an upright position, then the battery need not be removed; however, if the wheelchair cannot be carried in a completely upright position, or if there is an online connection and upright carriage cannot be guaranteed, then the battery must be removed. Air Canada states that gel-cell batteries, such as those used by Ms. Davis, are supplied with "six fix caps pierced with six small orifices similar to those found on wet-cell batteries". The carrier states that, on the ground, the gel-cell batteries could be considered as insulated, but at high altitude the gel becomes more liquid, thus presenting a serious risk of leaking.

[39] Air Canada states that its personnel carefully follow prescribed steps for dismantling a wheelchair and that they work with the owner of a mobility aid to "disconnect/remove/reassemble" the battery and/or cable to avoid damage to the wheelchair. Ms. Davis declares that she was not consulted at any time.

[40] Air Canada states that where any wheelchair has been stored, the ‘load' agent is so advised to ensure priority handling on arrival at the passenger's destination. Air Canada's tariff states that its personnel will provide assistance in disassembling and packaging the mobility aid, unpacking and reassembling the aid, and returning it to the passenger promptly on arrival.

[41] The Agency acknowledges that air carriers may need to remove batteries from wheelchairs for safety reasons and to prevent damage during transit. Part VII of the Air Transportation Regulations, SOR/88-58, as amended (the ATR) which sets out the terms and conditions of carriage of persons with disabilities on domestic flights, requires air carriers that operate aircraft with 30 or more passenger seats to carry mobility aids, and where mobility aids cannot be carried in the passenger cabin, to disassemble them for carriage and promptly reassemble and return them at the person's destination.

[42] In this case, Air Canada staff determined that Ms. Davis' wheelchair needed to be disassembled for transportation. As this is a practice recognized by the ATR, the Agency finds that the disassembling of Ms. Davis' wheelchair was not, in and of itself, an obstacle to her mobility.

[43] Air Canada notes that its policy provides that a battery and its case should be secured to the wheelchair to ensure the timely reassembly of the wheelchair by its agents upon arrival, but offers no explanation as to why the batteries became separated from Ms. Davis' wheelchair. Further, Air Canada did not contest Ms. Davis' contention that the wheelchair batteries had been incorrectly reconnected to her wheelchair upon her arrival in Ottawa.

[44] The Agency therefore finds that Air Canada's handling of Ms. Davis' wheelchair constituted an obstacle to her mobility.

[45] In Decision No. 534-AT-A-2004, the Agency found that Air Canada's failure to return a properly reassembled wheelchair to a passenger with a disability constituted an undue obstacle to his mobility. In that Decision, the Agency directed Air Canada to undertake measures to remedy the situation. In follow-up Decision No. 715-AT-A-2005, the Agency determined that it was satisfied that the measures undertaken by Air Canada would ensure that it properly reassembles wheelchairs prior to returning them to passengers. As Ms. Davis' concerns regarding Air Canada's failure to properly reassemble her wheelchair have been addressed through measures undertaken by Air Canada – subsequent to the filing of her applications – which are designed to prevent similar problems from occurring in the future, this portion of Ms. Davis' applications will not be further addressed in this Decision.

[46] However, Air Canada is reminded that section 6 of the Personnel Training for the Assistance of Persons with Disabilities Regulations (PTR) requires that:

Every carrier shall ensure that, consistent with its type of operation, all employees and contractors of the carrier who may be required to handle mobility aids receive ... a level of training appropriate to the requirements of their function in the following areas:

(a) different types of mobility aids;

[ ... ]

(c) proper methods of carrying and stowing mobility aids in the baggage compartment ... including the disassembling, packaging, unpackaging and assembling of the mobility aids.

[47] The Agency also notes that the Agency's Enforcement Division reviews the personnel training policies of all carriers at all airports and monitors such training.

Was the lack of adequate space for Ms. Davis' service animal on board Air Canada's aircraft an obstacle to her mobility?

[48] The evidence shows that Ms. Davis has a service animal, a Golden Retriever weighing approximately 65 pounds. In specifying her travel requirements, Ms. Davis says she advised her travel agents that she uses a service animal, which was reflected in copies of the PNR submitted by Air Canada. Ms. Davis submits that on all previous Air Canada flights on which she has flown she has been able to sit in an aisle seat with her attendant in the middle seat; the window seat in the row would be left empty and her service dog would lie on the floor below that seat. Ms. Davis advises that on three legs of her September/October trips however, there was a third passenger in the row in which Ms. Davis and her attendant sat. As a result, her dog had to remain at her feet during the entire flight in a very cramped position. At the Toronto airport during her September travel, when Ms. Davis was told that the window seat in her assigned row would be occupied, she advised the gate attendant that it would be very cramped and that there would not be enough room for her service dog. Ms. Davis advises that, as there "apparently was a no-show passenger", the window seat in her row was left free, and consequently there was enough room for her dog on that flight.

[49] Air Canada states that on the A319 and A320 aircraft, aisle seats C and D - other than those located in the emergency rows - have been identified as the most appropriate for service animal users. The carrier adds that passengers may also choose to sit in the bulkhead aisle where footwells "are of 11.75 inches high x 19 inches wide". Ms. Davis responds that Air Canada's idea of "appropriate" for service animal users is "ludicrous and grossly inadequate". She adds that most service animals are large; hers weighs about 65 pounds, is approximately 40 inches in length and stands roughly 24-inches high at the shoulder. She asks how something as important as a service animal, and one of such size, is supposed to fit into an 11.75 x 19 inch space, which does not allow for the fact that her legs occupy some of that space.

[50] The Agency finds that on those flights where a passenger occupied the third seat in the row in which Ms. Davis, her attendant and her service animal were located, the evidence supports the conclusion that the space provided to Ms. Davis and her service animal was insufficient.

[51] In Robin East v. Air Canada and Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc. carrying on business as Air Canada Jazz (Air Canada Jazz), the Agency considered, on a preliminary basis, the issue of sufficient space for service animals on board Air Canada's and Air Canada Jazz's aircraft and issued Decision No. LET-AT-A-30-2008. In that Decision, the Agency found, on a preliminary basis, that the carriers contravened section 149 of the ATR as the floor space provided at the seats in question was insufficient and, therefore, did not provide an appropriate level of accommodation. As such, the Agency found, on a preliminary basis, that the floor space at the seats in question constituted undue obstacles to Mr. East's mobility. Consequently, the Agency set out its preliminary finding regarding the corrective measure applicable to Air Canada's and Air Canada Jazz's domestic air services.

[52] The Agency required Air Canada and Air Canada Jazz to show cause why they should not be found to have contravened section 149 of the ATR, why the obstacles were not undue and why they should not be required to implement the corrective measure identified. The carriers' response to the show cause order was filed on March 25, 2008 and is under consideration by the Agency. As this issue is being fully addressed in that case, it will not be further addressed in this Decision.

Was the assistance that Air Canada provided to Ms. Davis in transferring from her wheelchair to wheelchairs used at the airports and for boarding purposes an obstacle to her mobility?

[53] In respect of Ms. Davis' September and October trips, the travel agencies with which she dealt requested bulkhead seating for her, and Air Canada's PNR for each trip reflects that request. Ms. Davis states that on all flights, she was in an aisle seat in the bulkhead row. She submits that there were no liftable armrests on all the aircraft on which she travelled, and that the seats around her had armrests that contained the fold-out meal trays and thus were not liftable.

[54] Air Canada states that only a number of liftable armrest seats are identified and allocated to passengers with disabilities; however, other liftable armrest seats may be available depending on the aircraft type. Documents provided by Air Canada show that on the A319 aircraft, all aisle seats except those in the bulkhead row in the economy class cabin have moveable armrests, while on the A320 aircraft five aisle seats in rows near the rear of the aircraft are equipped with liftable armrests. Air Canada advises that travel agents are "aware that the bulkhead seats never have liftable armrests" as the meal trays are stowed in the arms of the seat.

[55] Air Canada notes that for both of Ms. Davis' trips, it unseated other passengers who had previously requested bulkhead seats and allocated those seats to Ms. Davis, as per her travel agents' instructions, given that she was travelling with a service animal.

[56] Ms. Davis advises that, as the armrests on the aircraft were not liftable, maintenance workers and flight crew members had to lift her out of the boarding wheelchair, over the armrest and into her aircraft seat. Ms. Davis submits that the transfers were quite painful; she states that when preparing to deplane in Ottawa, one of the staff lifting her lost his grip and she was "dropped on the boarding chair with [her] tailbone striking it's front edge." She submits that had the aircraft armrests been liftable, she would have been able to transfer herself.

[57] The Agency is of the opinion that while it is not unreasonable for Air Canada to rely on the instructions of a travel agent when arranging travel for persons with disabilities, in cases where travel involves a passenger with a disability, there is a shared responsibility for clear communication on the part of the traveller (or his or her representative) and the air carrier.

[58] In this case, Ms. Davis made every effort to communicate her needs, both through her travel agents and in following up with Air Canada's medical desk herself. The Agency finds, however, that there is no evidence to indicate that Air Canada personnel spoke to Ms. Davis either at check-in or prior thereto, to apprise her of the fact that her requests for a bulkhead seat and for liftable armrests were mutually exclusive, or to explore alternative accommodation with her.

[59] The difficulties that Ms. Davis encountered with respect to her experience in transferring to and from her assigned seats caused her distress, and were a result of the manner in which her transfers were effected.

[60] The Agency therefore finds that the assistance Air Canada provided to Ms. Davis in transferring her from her wheelchair to wheelchairs used at the airports and for boarding purposes was an obstacle to her mobility.

[61] Upon finding that an obstacle to the mobility of a person with a disability exists, the Agency would typically make a further determination as to whether the obstacle was undue and possibly order corrective measures. In this instance, any corrective measures would relate to personnel training on Air Canada's policies and procedures with respect to persons with disabilities to ensure that its personnel are aware of, and sensitive to, the particular needs of persons with disabilities and are able to provide the requisite level of service. However, in past proceedings before the Agency, Air Canada has submitted evidence of training sessions, training material and procedures in place for its personnel assisting passengers with disabilities, and some of these specifically cover the provision of assistance with transfers into and out of wheelchairs and seats. The Agency will therefore take no action with respect to Ms. Davis' concern regarding the adequacy of transfer assistance provided by Air Canada personnel. The Agency also notes that its Enforcement Division inspects carriers' training records on a regular basis to ensure that carriers' personnel receive initial and recurring training in accordance with the PTR.

[62] It is also noted that section 5 of the PTR states:

Every carrier shall ensure that, consistent with its type of operation, all employees and contractors of the carrier who may be required to provide physical assistance to a person with a disability receive ... a level of training appropriate to the requirements of their function in the following areas:

[ ... ]

(b) transferring a person with a disability between the person's own mobility aid and a mobility aid provided by a carrier and between a mobility aid and the person's passenger seat, including

1. seeking information from a person with a disability with respect to the person's preferred method of transfer and information with respect to any other special measures required to ensure the safety and comfort of the person with a disability, and
2. performing appropriate lifting techniques to
   
   1. execute various types of transfer with maximum consideration for the dignity, safety and comfort of the person with a disability, and
   2. avoid injury to the employee or contractor making the transfer;

[ ... ]

[63] Further, section 9 of the PTR states:

Every carrier and terminal operator shall ensure that all employees and contractors of the carrier or terminal operator receive periodic refresher training sessions appropriate to the requirements of their function.

[64] In compliance with these requirements of the PTR, Air Canada is required not only to train its employees on assistance for persons with disabilities, but to maintain the level of competence of its employees who offer assistance to persons with disabilities by providing ongoing training in the form of refresher sessions.

CONCLUSION

[65] The Agency concludes that the accessibility of the airport wheelchairs that Air Canada provided to Ms. Davis in the Toronto airport and the Ottawa airport, and the handling of her wheelchair constituted obstacles to Ms. Davis' mobility. However, as the Agency has already addressed or is addressing these issues in other decisions, no further action will be taken.

[66] The Agency also concludes that, as the issue pertaining to adequate space for service animals is currently being addressed by the Agency, it will not be considered further in this Decision.

[67] As the Agency finds that the assistance Air Canada provided to Ms. Davis in transferring from her wheelchair to wheelchairs used at the airports and for boarding purposes constituted an obstacle to her mobility, any finding of undueness would likely result in the Agency ordering measures pertaining to training. Since the incident occurred, Air Canada has provided sufficient evidence that it has a comprehensive training program designed to ensure that its personnel provide the assistance needed by persons with disabilities and in a manner that is appropriate, including transfer assistance. Therefore, the Agency is of the opinion that this obstacle has already been remedied and therefore contemplates no further action in this regard.

[68] Finally, Air Canada is reminded that it must be vigilant with respect to the implementation and follow-up of its personnel training regarding the provision of assistance to passengers with disabilities who rely on wheelchairs, especially in respect of the physical transfer of such passengers.

Members

• John Scott
• J. Mark MacKeigan