Decision No. 316-AT-A-2006

May 31, 2006

File No. U3570/04-2

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APPLICATION

[1] On January 15, 2004, Joanne Mayo, on behalf of Kenneth Larmon, filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] In its letter dated January 20, 2004, the Agency acknowledged receipt of the application and advised Mr. Larmon that the Ontario Superior Court of Justice had issued an order, pursuant to the Companies' Creditors Arrangement Act, staying all proceedings involving Air Canada, pending the air carrier's corporate and financial reorganization, and that as a result, the Agency was unable to process the application.

[3] In a letter dated October 1, 2004, Mr. Larmon 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 and pursue its investigations with respect to Air Canada. Mr. Larmon 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] On October 12, 2004, Mr. Larmon confirmed that he wanted the Agency to proceed with its investigation into his application against Air Canada. Following this, the parties also agreed to attempt to resolve the issues raised in the application through mediation. Following mediation, Mr. Larmon advised the Agency, on May 27, 2005, that he wanted to proceed with his application.

[5] By letter dated June 9, 2005, Air Canada was required to provide its answer to the application and to file documents pertaining to Mr. Larmon's reservation. The Agency also requested further information from Mr. Larmon and the travel agency. In this regard, on June 29, 2005, Ms. Mayo provided the additional information requested by the Agency and Air Canada provided a partial answer to the application on July 13, 2005. On July 22, 2005, Ms. Mayo provided her reply, and in a letter dated July 28, 2005, Air Canada filed further documents to complete its answer to the application and made a claim for confidentiality with respect to some of the documents.

[6] On August 4, 2005, the Agency provided the travel agency with a further opportunity to file any comments it may have regarding the application, particularly in light of the comments made by Air Canada in its answer of July 13, 2005.

[7] In its Decision No. LET-AT-A-222-2005 dated August 8, 2005, the Agency found that the documents for which the claim for confidentiality was made were not relevant to the case, returned the documents to Air Canada and did not rule on the claim for confidentiality. In the same Decision, the Agency accepted the late submissions from Air Canada, pursuant to sections 4 and 5 of the Canadian Transportation Agency General Rules, SOR/2005-35, as being relevant and necessary to its consideration of the matter. The Agency also provided Air Canada with an opportunity to comment on the additional information that was disclosed in Ms. Mayo's reply.

[8] In a letter dated August 12, 2005, Air Canada provided its response to Decision No. LET-AT-A-222-2005 and requested further information from Mr. Larmon and Ms. Mayo. In this regard, in its Decision No. LET-AT-A-234-2005 dated August 19, 2005, the Agency directed Mr. Larmon and Ms. Mayo to provide Air Canada with the information it had requested, and Ms. Mayo provided information on August 22, 2005.

[9] Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.

ISSUE

[10] The issue to be addressed is whether: Air Canada's failure to provide wheelchair assistance at the Dorval airport on December 27, 2003; the seat assigned to Mr. Larmon on that same date; and the assistance provided to Mr. Larmon while deplaning on January 3, 2004 constituted undue obstacles to Mr. Larmon's mobility and, if so, what corrective measures should be taken.

FACTS

[11] Mr. Larmon made reservations on August 22, 2003 to travel with Air Canada as part of a group, between Montréal and Puerto Plata, leaving on December 27, 2003 and returning on January 3, 2004. However, Mr. Larmon broke his hip on December 3, 2003 and had a hip replacement on December 5, 2003. Because of this, Mr. Larmon's surgeon advised him, on December 10, 2003, that he could proceed with his planned trip on the condition that he make "special arrangements". Ms. Mayo, Mr. Larmon's wife, therefore made arrangements with their travel agent to ensure that Mr. Larmon would receive wheelchair assistance at the airports and would be assigned specific seating on the aircraft. Ms. Mayo provided copies of e-mail correspondence between her and her travel agent wherein she requested assistance and specific seating for Mr. Larmon.

[12] In this regard, in an e-mail exchange dated December 12, 2003, the travel agent informed Ms. Mayo that she would make arrangements for wheelchair assistance for Mr. Larmon in Montréal and Puerto Plata and she would also see if she could confirm a bulkhead seat, or at least an aisle seat, to provide for more leg room for Mr. Larmon. In a subsequent e-mail dated December 18, 2003, the travel agent advised Ms. Mayo that she had requested the wheelchair assistance but that bulkhead seating could only be requested at the time of check-in.

[13] A note from Mr. Larmon's physician, dated December 22, 2003, was also provided. The doctor indicates that Mr. Larmon had a total hip replacement approximately December 4, 2003. He requires a wheelchair and medically requires an aisle seat, preferably near an exit where there might be some additional space to accommodate both his wheelchair and the fact that he is unable to move his hip as he normally would.

[14] Air Canada has a computer system that generates a Passenger Name Record (hereinafter PNR) which contains information about the passenger, including the passengers' specific needs. The PNR for Mr. Larmon contains the code "WCHR" which identifies passengers who are able to ascend or descend steps, but who require assistance for long distances within the airport. The PNR indicates seat assignment for Mr. Larmon and Ms. Mayo in rows 22 and 23. The PNR does not, however, reflect Mr. Larmon's requirement for additional leg room.

[15] Mr. Larmon travelled on Air Canada Flight No. AC1808 from Montréal to Puerto Plata, which operated with an Airbus A-320 aircraft on December 27, 2003. According to the Airbus A-320 aircraft seating configuration chart filed by Air Canada, rows 22 and 23 are located in the middle of the economy class cabin with washrooms at the rear.

[16] Mr. Larmon returned to Montréal from Puerto Plata on Air Canada Flight No. AC1809 on January 3, 2004. He waited about 30 minutes to disembark and access his wheelchair.

POSITIONS OF THE PARTIES

Mr. Larmon

[17] Ms. Mayo advises that she consulted with her travel agent, and also Air Canada's Web site, regarding Mr. Larmon's medical condition and she was assured at every step that there would be no problems with their travel. She states that they would not have undertaken the trip had they felt that there would be obstacles.

[18] Ms. Mayo explains that they were advised in correspondence to obtain a doctor's letter and provide it at the check-in counter when they registered for their flight. Ms. Mayo states however, that when they presented the letter at check-in, no one gave it any consideration, they did not appear to care, and Mr. Larmon was given a seat in the middle of the aircraft, in row 23. Ms. Mayo adds that it was extremely frustrating and painful for Mr. Larmon to get from his seat in row 23 to the washrooms. According to Ms. Mayo, no assistance was offered by either the check-in personnel or the cabin crew, and when she informed the cabin crew that Mr. Larmon could not walk to the middle of the aircraft, no alternative was offered.

[19] Ms. Mayo indicates that on the return trip, once she and Mr. Larmon arrived in Montréal, they were told that Mr. Larmon's wheelchair had been lost. Ms. Mayo advises that they had to wait for half an hour for the wheelchair to arrive, and that the boarding lift to deplane Mr. Larmon was inoperable.

[20] Ms. Mayo states that she and Mr. Larmon did everything they were told to do in making "special arrangements" for travel. Ms. Mayo explains that had they been informed that the carrier required 48 hours notice to pre-request seating to accommodate Mr. Larmon's needs, they would have followed these directions as well. Ms. Mayo notes that there should be clear cut instructions on Air Canada's Web site and with travel agents on to how to proceed with such bookings.

Travel agency

[21] Carlson Marketing Group indicates that after several attempts to check its files from 2003, it has been unable to locate this particular file, and also advises that the travel agent involved in this file no longer works for the travel agency, making it difficult to obtain information.

Air Canada

[22] Air Canada states that the PNR shows that the travel agent made a "special service" request for Mr. Larmon with the code WCHR, indicating that Mr. Larmon needed a wheelchair for long distances within the terminal. Air Canada advises that this code is for passengers who require assistance with long distances but who can walk on the aircraft and do not require assistance with stairs. Air Canada notes in this regard that from the description of Mr. Larmon's medical condition, it appears that what should have been requested was either the WCHS code which would have provided assistance with climbing stairs or WCHC which would have meant that attendants would have been made available to carry Mr. Larmon to his seat in the aircraft.

[23] With respect to seating within the aircraft, Air Canada states that seats 22A and 23C were confirmed by the travel agency at the time of booking. However, when the request for wheelchair assistance was made, the PNR was separated from the bigger PNR comprising the entire group. Air Canada states that no communication was made by either the travel agent or the passengers to Air Canada's MEDA desk. Air Canada also indicates that, based on the PNR and the comments from the travel agent at that time, there was no mention of nor a request for a specific seat, nor was there any indication of which seating was appropriate for Mr. Larmon. Air Canada submits that it was only at the time of check-in that Mr. Larmon presented the letter from his doctor. Air Canada asserts that there was no indication of a requirement for extra leg room in this letter, and adds that there is no indication in either the first complaint or the doctor's letter that Mr. Larmon could not walk at all.

[24] Air Canada submits that Mr. Larmon and Ms. Mayo were the 97th and 98th passengers to have checked in for the flight on December 27, 2003. The Airbus A-320 aircraft used for the flight had a capacity of 140 passengers and was "near-full capacity", with 139 passengers on board. Air Canada states that, as a result, by the time Mr. Larmon and Ms. Mayo arrived at the check-in counter, all six bulkhead seats had already been assigned. It also notes that exit row seats are restricted seats that cannot be assigned to certain passengers, customers with disabilities being among these, including customers with temporary disabilities.

[25] Air Canada notes that, as a result, Mr. Larmon was assigned the seat he had booked, namely a window seat in row 22, while Ms. Mayo had seat 23C which is an aisle seat. Air Canada notes that Mr. Larmon's seat was not near an exit, but was closer to the washrooms. Air Canada states that no indication was given at the check-in counter that Mr. Larmon could not walk short distances or that he required assistance on the aircraft.

[26] Air Canada asserts that while it may reassign seats at the airport on the day of departure to accommodate certain passengers, the flight in question was "completely full" and that most seats had already been assigned when Mr. Larmon and Ms. Mayo checked in. Air Canada therefore submits that the travel agent or the doctor should have discussed such arrangements in advance with the MEDA desk and that leaving this accommodation request until the day of travel during the busy holiday season did not allow Air Canada's airport personnel to change the seats.

[27] Regarding Ms. Mayo's statement that she informed the cabin crew that Mr. Larmon could not walk to the middle of the aircraft, but that no alternative was offered by the crew, Air Canada notes that no crew member can verify this statement, the events having occurred more than 18 months ago. Nevertheless, Air Canada points out that seat assignment is not done by the cabin crew and submits that Mr. Larmon and Ms. Mayo were being assisted by a travel agency at all relevant times for the purposes of their reservations, and that it is a long standing professional agency that knows the existence of the MEDA Desk. Air Canada submits that the travel agent chose not to make inquiries or have notes put on the reservation record. In this regard, Air Canada advises that its MEDA desk has no file for Mr. Larmon.

[28] Air Canada points out that, in accordance with the applicable regulations, it requests an advance notice of 48 hours for "special services" for passengers with a disability, and adds that if the request is made within the 48 hours, it will do its utmost to provide the service. Air Canada notes that, in this case, the seating needs of Mr. Larmon were only discovered at the time of check-in and that, furthermore, at no time were his specific needs identified to the carrier.

[29] While Air Canada admits that Mr. Larmon had a temporary disability, it submits that there is no indication that the seat that was assigned to him did not meet his needs. With respect to the request for bulkhead seating, Air Canada submits that such seats would not have been more comfortable as the bulkhead on these aircraft do not provide additional leg room as these are the soft bulkheads made of a drape, not a wall, and, moreover, the armrest is not liftable as it contains the chairtable or mealtray.

[30] With respect to seats located in the exit row, Air Canada reiterates that even if they had been requested in advance, such seats could not have been assigned to Mr. Larmon as they cannot be assigned to someone with a mobility impairment.

[31] Air Canada also notes that while the two types of seats suggested by Mr. Larmon's doctor could not be provided to Mr. Larmon, Mr. Larmon was able to exchange seats with a member of his travelling party so that he was seated in an aisle seat on the side he preferred. Air Canada submits that as neither Mr. Larmon nor his travel agent provided any advance notice to Air Canada regarding "special needs" for seating, the seats that were assigned were not obstacles but even if they did constitute obstacles, these obstacles were not undue.

[32] Air Canada states that after check-in, Mr. Larmon, who was using his own wheelchair, and Ms. Mayo were directed to the "special care room" where they could wait and have Mr. Larmon's wheelchair pushed to the gate. Air Canada indicates that Mr. Larmon and Ms. Mayo chose not to wait and proceeded directly to the gate. Air Canada states that Mr. Larmon was pushed in his wheelchair to the aircraft door where his wheelchair was tagged and brought to the baggage hold by an Air Canada attendant. Air Canada submits that neither Mr. Larmon nor Ms. Mayo mentioned to the check-in agents, the gate agents or the cabin crew that Mr. Larmon needed assistance to his seat.

[33] Air Canada notes Ms. Mayo's comment that "trying to get to the bathroom was extremely frustrating and painful". Air Canada states, however, that no request for assistance was made, and that the aircraft was equipped with an on-board wheelchair that could have been used, had the proper assistance been requested.

[34] With respect to the return flight, Air Canada submits that upon Mr. Larmon's arrival in Montréal, his wheelchair was made available to him at the aircraft after all passengers had disembarked. Air Canada submits that, while it may have taken some time to ensure that all passengers had left the aircraft, as January 3, 2004 was an extremely busy day, the 30-minute wait referred to by Ms. Mayo was not an inordinate amount of time. Air Canada also indicates that 30 minutes is the approximate time for delivery of the bags to the baggage belts for this type of flight.

[35] Air Canada submits that the alleged delay in getting Mr. Larmon's wheelchair was not excessive and that the wheelchair was provided within a reasonable time. Air Canada adds that persons needing assistance have to remain in their seats until all other passengers have disembarked. Although this may mean that the passenger needing assistance does not immediately leave the aircraft, it ensures that the assistance can be provided without impeding or hindering passage. Regarding Ms. Mayo's comment that they were advised that the wheelchair had been lost, Air Canada submits that there is no indication in its records that Mr. Larmon did not receive his wheelchair, nor is there any claim that the wheelchair was lost.

[36] With respect to the wheelchair lift that was not operational, Air Canada submits that the lift is owned and maintained by Aéroports de Montréal and Air Canada has no control over that equipment.

[37] Finally, Air Canada indicates that although the inoperable wheelchair lift was not its responsibility, had Mr. Larmon's booking correctly reflected the fact that he could not use stairs or needed assistance to and from his seat within the aircraft, attendants would have been available to either carry Mr. Larmon down the stairs or to have a transporter carry him off.

[38] Air Canada points out that in order for the carrier to provide the services needed by passengers with a disability, it is essential that the needs of those passengers be properly communicated to the carrier at the time of booking or at least 48 hours in advance so that the carrier can ensure that the required personnel are planned for and are ready to provide the services. Air Canada adds that even with the assistance of an experienced travel agent who had access to Air Canada's applicable policies, no such contact was made in the present case other than to indicate that Mr. Larmon needed assistance within the terminal for long distances. As to the comments made by Ms. Mayo regarding Air Canada's Web site, Air Canada submits that its Web site does contain a section for passengers with "special needs" and that this section contains a subsection for passengers with a disability where there is a clear mention of the 48-hour notice required for services.

[39] Air Canada therefore submits that there were no obstacles to Mr. Larmon's mobility. Nonetheless, should the Agency find that there was an obstacle to Mr. Larmon's mobility, Air Canada submits that the obstacle was not undue.

ANALYSIS AND FINDINGS

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

[41] 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 establish that the applicant is a person with a disability for the purpose of applying the accessibility provisions of the CTA. In this respect, the Agency has taken the view that it is appropriate to take a broad, functional approach to interpreting its mandate under Part V of the CTA. The Agency accepts that "persons with disabilities" include persons having both permanent and temporary disabilities, including temporary disabilities arising from medical conditions. In this case, Mr. Larmon had total hip replacement surgery and his doctor stated that he needed a wheelchair as a result. His mobility was thus restricted because of his medical condition. The Agency finds that Mr. Larmon is a person with a disability within the meaning of subsection 172(1) of the CTA.

[42] The Agency must then determine whether the applicant's mobility was restricted or limited by an obstacle and, if so, 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

[43] The word "obstacle" is usually understood to mean something that impedes progress or achievement. As the word "obstacle" is not defined in the CTA, it must be read in its immediate legislative context which is, for the purposes of Part V of the CTA, the mobility of persons with disabilities, such mobility being achieved by having proper access to federal transportation services. In this way, the obstacle must be directly related to a person's disability such that an issue cannot be considered to be an obstacle simply because it is experienced by a person with a disability.

[44] 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 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 may find obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience call into question whether the person had proper access to effective transportation services.

The case at hand

1. Failure to provide wheelchair assistance at Dorval airport

[45] The Agency notes that Mr. Larmon had undergone hip replacement surgery, was dependent on a wheelchair for his mobility, and therefore needed wheelchair assistance when travelling. The Agency also notes that Ms. Mayo requested wheelchair assistance for Mr. Larmon, through her travel agent, on December 12, 2003, and that the request is reflected in Mr. Larmon's PNR. Ms. Mayo stated that Mr. Larmon was not provided with assistance at the Dorval airport on December 27, 2003.

[46] In this regard, the PNR shows that a request was made by the travel agent for Mr. Larmon, with the code WCHR, indicating that Mr. Larmon needed a wheelchair for long distances within the terminal. The Agency notes that the WCHS code for climbing the aircraft stairs, or the WCHC code for assistance on the aircraft, which may have been more appropriate to meet Mr. Larmon's needs, were not used.

[47] According to Air Canada, at the time of check-in, Mr. Larmon was directed to the "special care room" where he could wait and be assisted to have his wheelchair pushed to the gate, but Mr. Larmon decided not to wait and proceeded directly to the gate, where his wheelchair was tagged and brought to the baggage hold by an Air Canada attendant. In reply, Mr. Larmon and Ms. Mayo did not refute Air Canada's statements.

[48] In this regard, the Agency notes that Mr. Larmon was directed to an area where he would receive assistance from Air Canada. The Agency also notes that Mr. Larmon decided to proceed to the gate without seeking assistance from the carrier. In light of the evidence on file, the Agency finds that the failure to provide wheelchair assistance to Mr. Larmon at Dorval airport did not constitute an obstacle to his mobility.

2. Seating

[49] The Agency notes that in an exchange of e-mails between Ms. Mayo and her travel agent, dated December 12 and 18, 2003, various seating with more leg room is mentioned, including aisle and bulkhead seating. The Agency also notes that the PNR for Mr. Larmon and Ms. Mayo indicates that they were assigned seating in rows 22 and 23, although the specific seating is unclear; Air Canada stated that Mr. Larmon was assigned a window seat in row 22 when he travelled with the carrier on December 27, 2003.

[50] The Agency notes that Mr. Larmon presented a doctor's note at the time of check-in which indicated that Mr. Larmon required an aisle seat, preferably near an exit where there might be additional space to accommodate Mr. Larmon because he was unable to move his hip as he normally would. The note also mentioned that Mr. Larmon needed a wheelchair because of his recent surgery. Ms. Mayo stated that no one at the check-in counter gave the letter any consideration. Ms. Mayo also indicates that she expressed concerns to the cabin staff that Mr. Larmon could not walk and that the seat assigned to him, which was in the middle of the aircraft, made it extremely frustrating and painful for Mr. Larmon to get to the washrooms.

[51] The Agency notes that according to the seating chart provided by Air Canada, the window seat in row 22, which Air Canada stated was Mr. Larmon's assigned seat, provided no additional leg room to Mr. Larmon. Further, the seat was some distance from the washrooms as it was located in the middle of the economy class cabin while the washrooms were at the rear. The Agency therefore finds that the window seat in row 22 did not meet Mr. Larmon's needs. The Agency accepts that because Mr. Larmon was assigned the window seat in row 22, it was extremely frustrating and painful for him to get to the washrooms.

[52] In light of the above, the Agency finds that the seat provided to Mr. Larmon by Air Canada constituted an obstacle to his mobility.

3. Assistance provided to Mr. Larmon while deplaning at the Dorval airport on January 3, 2004

[53] The Agency acknowledges that on the return flight, once Mr. Larmon and Ms. Mayo had arrived at Dorval airport, they had to wait approximately 30 minutes inside the aircraft for other passengers to disembark and for Air Canada to locate the wheelchair and bring it to Mr. Larmon. Furthermore, the wheelchair lift that was to be used to deplane Mr. Larmon was inoperable.

[54] The Agency is of the opinion that the approximate 30 minutes involved for Mr. Larmon to disembark and access his wheelchair is not unreasonable given the high demand on January 3, 2004, a busy holiday period. The Agency also notes that there is no evidence on file to indicate that the delay in receiving assistance had a negative impact on Mr. Larmon's mobility.

[55] The Agency therefore finds that the assistance provided to Mr. Larmon while deplaning at Dorval airport on January 3, 2004 did not constitute an obstacle to his mobility.

Whether the obstacle was undue

[56] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers, commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

[57] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. 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 concept of undueness.

The case at hand

1. Failure to provide wheelchair assistance at Dorval airport

[58] As the Agency has concluded that the failure to provide wheelchair assistance to Mr. Larmon at Dorval airport did not constitute an obstacle to his mobility, there is no need to determine whether the obstacle was undue.

2. Seating

[59] Having found that the seating provided to Mr. Larmon constituted an obstacle to his mobility, the Agency must now determine whether the obstacle was undue.

[60] Ms. Mayo indicated that she consulted Air Canada's Web site, as well as her travel agent, and was advised to obtain a doctor's note and to present it at the time of check-in. The travel agent did make arrangements for wheelchair assistance for Mr. Larmon in Montréal and Puerto Plata, with more than 48 hours notice to Air Canada through the booking agent; however, the travel agent advised Ms. Mayo that seating should be requested at the time of check-in.

[61] In this regard, the Agency notes that the wheelchair code, which was used by the travel agent and appeared in Mr. Larmon's PNR, is for passengers who require wheelchair assistance for long distances. It therefore appears that the wrong code was used by the travel agency as Mr. Larmon would have required assistance with stairs as well as assistance to get to his seat in the aircraft. The Agency also notes that although the travel agent advised that seating for Mr. Larmon could not be pre-requested, the window seat in row 22 was assigned to Mr. Larmon. The Agency recognizes that Mr. Larmon needed an aisle seat or a seat with additional leg room, in a row that would accommodate his restricted mobility, but instead was preassigned a window seat, some distance from the washrooms. The Agency also notes that Air Canada's MEDA desk was never contacted by the travel agent, Mr. Larmon or Ms. Mayo to obtain assistance for Mr. Larmon. As a result, Air Canada was only advised of the requirements to accommodate Mr. Larmon's disability when he presented himself at the check-in counter and showed his doctor's note. Notwithstanding, the Agency notes that Mr. Larmon was able to exchange his seat with a member of his party so that he had an aisle seat, as requested by his doctor.

[62] Air Canada advised that Mr. Larmon and Ms. Mayo were the 97th and 98th passengers to have checked in, while the capacity of the aircraft was 140 passengers and that it operated at near-full capacity, namely 139 passengers. Air Canada added that as a result, at the time Mr. Larmon presented himself at the check-in counter, all the bulkhead seats had already been assigned. Nevertheless, Air Canada indicated that even if the bulkhead seats had been available they would not have constituted adequate seating for Mr. Larmon as the armrests are not liftable, and while they may have been closer to the exit, they would not have been closer to the washrooms.

[63] The Agency finds that for Air Canada to ensure that Mr. Larmon's specific needs were met, it was essential that it receive adequate notification of his disability-related needs prior to the date of travel. In this case, it appears that the travel agent failed to confirm to the carrier, through the booking agent, the appropriate wheelchair assistance and seating required for Mr. Larmon.

[64] While the Agency does not have jurisdiction over travel agents, it recognizes their importance to the accessibility of the federal transportation network as the intermediaries between passengers with a disability and transportation service providers. They must be aware of carriers' policies and procedures with respect to the carriage of passengers with a disability and ensure that the information is conveyed accurately to the passengers with a disability in order that appropriate decisions can be made about the services that the person requires in order to accommodate his/her needs. Furthermore, there should be simple procedures for relaying information between travel agents and carriers to ensure that carriers are made aware of the passengers' disabilities and any needs that arise therefrom and to enable them to apply their policies and procedures to ensure that the passengers' needs are met during travel. These procedures should require that travel agents confirm passengers' needs with the carrier and that the carrier in turn provide confirmation to the travel agent of the measures it intends to take to ensure the persons' needs are met during travel.

[65] In light of the above, the Agency finds that the seat provided to Mr. Larmon by Air Canada did not constitute an undue obstacle to his mobility.

[66] The Agency points out that, had the proper wheelchair code and seating requirements been entered in the PNR and had the MEDA desk been contacted by the travel agency, then Mr. Larmon would most likely have been provided with a different seating arrangement as there would have been time for Air Canada to prepare for his arrival. Mr. Larmon's problems at the airport were also exacerbated by the fact that it was the busy holiday season.

[67] The Agency notes that Part VII of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) and Air Canada's own policy require that services requested at least 48 hours in advance of travel must be provided to persons with a disability, and that while the ATR are only applicable to domestic travel, the principles embodied therein are equally applicable to international travel. The Agency recognizes that Air Canada did not receive 48 hours notice concerning Mr. Larmon's disability-related needs and is aware of the difficulties involved when carriers do not receive advance notice. Nevertheless, the Agency would encourage Air Canada to initiate a dialogue with passengers to ensure that their needs are met as much as possible. Air Canada could have asked other passengers who were not included in Mr. Larmon's group to exchange their seat with Mr. Larmon so that he could have a seat better suited to his needs.

[68] The Agency also notes that Mr. Larmon provided a medical certificate at the time of check-in, before the scheduled departure of his flight, thereby making the Air Canada agent aware that he was a person with a disability who required particular seating accommodations. The Agency questions whether Air Canada may have been able to assign Mr. Larmon better seating by reacting in a more sensitive manner once made aware of his needs and investigating options to meet those needs.

[69] In this regard, the Agency notes that the ATR also require that accessible seats should be the last seats assigned to passengers without a disability. According to Air Canada, Mr. Larmon and Ms. Mayo were the 97th and 98th passengers to have checked in for a flight booked to near-full capacity at 139 seats, with all bulkhead seats already assigned. Although Air Canada argues that bulkhead seats would not have offered Mr. Larmon additional leg room, the Agency questions whether other seating, namely an aisle seat close to the washrooms, may have been available and more appropriate for Mr. Larmon and his disability-related needs than the window seat in row 22 to which he was assigned by Air Canada.

[70] The Agency also disagrees with Air Canada's assertion that the doctor's note did not indicate that Mr. Larmon needed extra leg room. The Agency finds that the letter clearly states that Mr. Larmon needed additional space, preferably aisle seating, as he was unable to move his hip as he normally would.

[71] The Agency also notes the lack of evidence regarding what was said between the cabin crew and Mr. Larmon and Ms. Mayo regarding Mr. Larmon's ability to walk to his seat. Nevertheless, the Agency is of the opinion that in circumstances where it is clear that a passenger requires help to reach his/her seat, Air Canada should offer to provide this assistance even if the passenger has not made this request ahead of time.

3. Assistance provided to Mr. Larmon while deplaning at Dorval airport on January 3, 2004

[72] As the Agency has concluded that the assistance provided to Mr. Larmon while deplaning at Dorval airport on January 3, 2004 did not constitute an obstacle to his mobility, there is no need to determine whether the obstacle was undue.

CONCLUSION

[73] In light of the above findings, the Agency has determined that the failure by Air Canada to provide wheelchair assistance at Dorval airport on December 27, 2003, the seat assigned to Mr. Larmon on that same date, and the assistance provided to him while deplaning on January 3, 2004, did not constitute undue obstacles to his mobility. Consequently, no corrective measures will be ordered.

Members

• Gilles Dufault
• George Proud
• Beaton Tulk