Decision No. 305-AT-A-2005

May 13, 2005

File No. U3570/05-4

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APPLICATION

[1] On July 14, 2004, Jean-Frédéric Nazon filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] On July 16, 2004, a letter acknowledging receipt of the application was sent to the parties. The letter also advised that the Ontario Superior Court of Justice had issued an order staying all proceedings involving Air Canada, including some of its subsidiaries. Consequently, the Agency was limited in its ability to process applications involving Air Canada.

[3] On October 1, 2004, Mr. Nazon was advised that the stay order issued by the Ontario Superior Court of Justice had been lifted on September 30, 2004, and that the Agency was able to process applications or pursue its investigations with respect to Air Canada. Mr. Nazon was requested to confirm whether he wanted the Agency to pursue its investigation into his application or whether he wished to withdraw the application.

[4] Having received no response from Mr. Nazon, the Agency, in its Decision No. LET-AT-A-322-2004 dated November 22, 2004, required that he advise the Agency by December 6, 2004, at the latest, of his intentions with respect to his application; if not, the case would be closed. As Mr. Nazon failed to file a response, the Agency, on December 14, 2004, informed Mr. Nazon that the case was closed.

[5] On January 13, 2005, Mr. Nazon advised that he had not responded to the above referenced decision due to an extended absence and that he wished to reactivate his file.

[6] In Decision No. LET-AT-A-40-2005 dated January 28, 2005, the Agency agreed to reopen the case and to pursue its investigation into Mr. Nazon's application. The Agency advised the parties that it would examine only the issue related to the level of wheelchair assistance as the other issues raised in the application fell either under the jurisdiction of the Air Travel Complaints Commissioner or of Transport Canada.

[7] On February 23, 2005, Air Canada requested an extension until March 15, 2005 to file its answer, and by Decision No. LET-AT-A-64-2005 dated February 25, 2005, the Agency granted the requested extension. On March 11, 2005, Air Canada filed its answer, including Mr. Nazon's Passenger Name Record (hereinafter the PNR). On March 16, 2005, Mr. Nazon filed his reply.

PRELIMINARY ISSUE

[8] In his application, Mr. Nazon indicates that he should have been given access to Air Canada's "Feuille d'érable" Lounge. Such areas provide for a more comfortable wait for the carrier's passengers. However, as the seating capacity in these lounges is limited, they are not accessible to all passengers. This service was not part of the services to be provided in accordance with the ticket purchased by Mr. Nazon. The Agency accepts Air Canada's argument that access to the "Feuille d'érable" Lounge is not part of the transportation contract with Mr. Nazon. Consequently, it will not consider this issue as part of its review of the case at hand.

ISSUE

[9] The issue to be addressed is whether the level of wheelchair assistance provided to Mr. Nazon by Air Canada upon arrival of his flight at the London airport, and during his return flight from Geneva to Frankfurt and from that point on to Toronto constituted an undue obstacle to his mobility and, if so, what corrective measures should be taken.

FACTS

[10] Mr. Nazon is legally blind. His travel arrangements had been made through a travel agent. Wheelchair assistance had been requested for Mr. Nazon.

[11] Mr. Nazon boarded the following flights:

Toronto to London (Heathrow)	April 20, 2004	AC 856	1815	625
London (Heathrow) to Brussels	April 21, 2004	AC 6600	825	1035
Geneva to Frankfurt	April 27, 2004	LH3677	1500	1615
Frankfurt to Toronto	April 27, 2004	AC 877	1705	1945

[12] Following the arrival of his flight at the London airport on April 21, 2004, Mr. Nazon waited approximately 30 minutes before receiving wheelchair assistance.

[13] Upon the arrival of his flight at the Toronto airport on April 27, 2004, Mr. Nazon was left alone in what is referred to as the "in-field" terminal and after approximately an hour's wait he asked an employee for assistance.

[14] Air Canada has an automated system that generates PNRs containing information on passengers, including those who have specific needs. In the present case, Mr. Nazon's need for assistance is indicated in his PNR which includes many entries for special services requests (SSR) along with the following codes and comment:

• SSRWCHRACKK1
• SSRWCHRACHK1
• SSRMAASACPN1 LOWER VISION

[15] Based on the Passenger Services Conference Resolutions Manual published by the International Air Transport Association (hereinafter the IATA), the "WCHR" code means that the passenger is able to ascend/descend steps and make his/her own way to and from the cabin seat, but requires wheelchair assistance to and from the aircraft, i.e., across a ramp, a fingerdock or to a mobile lounge, as applicable. The "MAAS" code means, again according to IATA, that the passenger must be met and assisted (the assistance required must be specified).

POSITIONS OF THE PARTIES

[16] Mr. Nazon indicates that at the time of reservation he requested wheelchair assistance. He maintains that he always indicates when making his reservations and prior to each flight that he requires wheelchair assistance at destination.

[17] Mr. Nazon adds that upon the arrival of his flight at the London airport, he was annoyed by the fact that only one employee had been assigned to provide assistance to the 7 or 8 passengers who had requested it. Consequently, in his opinion he did not receive the assistance he had requested when making his reservations. In his reply, Mr. Nazon specifies that he agreed to forego his wheelchair for the sake of an elderly passenger. While the agent took care of the needs of the other passengers, he had to wait 30 minutes in the terminal.

[18] As for his return trip, Mr. Nazon submits that there was no agent when the shuttle that provides transportation at the Frankfurt airport arrived, and that this constituted a serious shortcoming.

[19] Mr. Nazon also submits that at the Toronto airport, he was abandoned for almost one hour in the "in-field" terminal. In his opinion, this wait was unacceptable. Mr. Nazon indicates that in order to avoid spending the night in the terminal in question, he asked for assistance from an employee who was passing by.

[20] Air Canada submits that the reservation file that was completed by the travel agent indicates that Mr. Nazon's eyesight is weak and that he requires wheelchair assistance for long distances.

[21] Air Canada indicates that its passenger agents are assigned for each flight in order to meet passengers requiring assistance and that, for longer distances, small carts are often used. Air Canada specifies that this is the case in London for certain routes. Air Canada adds that it assigns the necessary personnel to provide the requested assistance or services and that an agent is not necessarily assigned to each passenger. Further, it is possible that passengers who request wheelchair assistance for long distances may have to wait awhile.

[22] Air Canada points out that it did not operate the leg of the return trip between Geneva and Frankfurt.

[23] With respect to the arrival in Toronto, Air Canada states that all international flights must land at the "in-field" terminal. Air Canada submits that passenger agents are assigned for each flight to provide wheelchair assistance to transfer passengers who require this service, from the arrival gate to the shuttlebuses. Air Canada adds that other agents meet passengers when they arrive by shuttlebus. Finally, Air Canada notes, judging from M. Nazon's comments, that he had chosen not to wait for the agent.

[24] Air Canada indicates that the time of arrival of Mr. Nazon's flight was during the peak rush hour at the "in-field" terminal with the arrival and departure of numerous international flights.

ANALYSIS AND FINDINGS

[25] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

[26] An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. Nazon is legally blind and requires wheelchair assistance when travelling. As such, he is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[27] 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. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.

Whether the applicant's mobility was restricted or limited by an obstacle

[28] The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.

[29] In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. 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. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.

The case at hand

Level of assistance at the London airport

[30] Mr. Nazon's request for wheelchair assistance was made in advance of travel and is indicated in his PNR. Air Canada was therefore aware of his request. Upon arrival of his flight at the London airport, Mr. Nazon voluntarily agreed to let an elderly passenger be assisted with the use of the wheelchair that was intended for him. As a result, and because there was only one agent assigned to meet the 7 or 8 passengers that required assistance, Mr. Nazon had to wait approximately 30 minutes before receiving the assistance he had requested. The Agency is therefore of the opinion that Mr. Nazon is, for the most part, responsible for this wait and that he cannot hold the carrier responsible for it.

[31] In light of the above, the Agency finds that the level of assistance provided to Mr. Nazon at the London airport did not constitute an obstacle to his mobility.

Level of assistance in Frankfurt

[32] With respect to the flight between Geneva and Frankfurt, it appears from the information contained in the document entitled Official Airline Guide that the flight was operated by Lufthansa Cityline Gmbh on behalf of Lufthansa German Airlines. The flight was therefore not Air Canada's responsibility, but rather the responsibility of Lufthansa German Airlines. Consequently, the Agency dismisses this portion of the application.

Level of assistance in Toronto

[33] Mr. Nazon's request for wheelchair assistance was made in advance of travel and noted in his PNR. Air Canada was therefore aware of his request. In his application, Mr. Nazon indicated that following the arrival of his flight at the Toronto airport, he was left alone in the "in-field" terminal for almost an hour.

[34] Air Canada indicated that it has procedures in place for the arrival of international flights and that passenger agents are assigned for each flight to provide wheelchair assistance to transfer passengers who require this service, from the arrival gate to the shuttlebuses. Air Canada added that other agents meet passengers when they arrive by shuttlebus. In addition, according to Air Canada, the time at which Mr. Nazon's flight arrived at the Toronto airport was during the peak rush hour at the "in-field" terminal with the numerous international arrivals and departures. Finally, the Agency notes that Air Canada concluded from Mr. Nazon's comments that it appeared that he had chosen not to wait for an agent. In his reply, Mr. Nazon did not refute this allegation, simply stating that he had been abandoned after his arrival in the shuttlebus at the "in-field" terminal.

[35] In light of the above, and on the balance of the evidence with respect to Mr. Nazon's comings and goings when he arrived in Toronto, the Agency finds that the level of assistance provided to Mr. Nazon in Toronto did not constitute an obstacle to his mobility.

CONCLUSION

[36] Based on the above findings, the Agency has determined that the level of wheelchair assistance provided to Mr. Nazon by Air Canada did not constitute an obstacle to his mobility. Consequently, the Agency does not contemplate any corrective measures with respect to this matter.