Decision No. 317-AT-A-2002

June 10, 2002

File No. U3570//02-1

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APPLICATION

On January 18, 2002, Eric C. Norman filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

On February 28, 2002, Air Canada filed its answer to the application and included a copy of Mr. Norman's Passenger Name Record (hereinafter PNR) as well as its policy and procedures on the transportation of wheelchairs. On March 12, 2002, Mr. Norman filed his reply to Air Canada's answer.

On March 25, 2002, Air Canada filed additional comments. Mr. Norman also filed further comments on May 16, 2002.

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 extension of the deadline until June 14, 2002.

PRELIMINARY MATTER

The Agency notes that both Air Canada and Mr. Norman provided additional comments. The Agency, pursuant to section 6 of the National Transportation Agency General Rules, SOR/88-23, accepts the submissions as being relevant and necessary to its consideration of this matter.

ISSUE

The issue to be addressed is whether the following constituted undue obstacles to Mr. Norman's mobility and, if so, what corrective measures should be taken:

• the non-delivery of Mr. Norman's personal wheelchair at the aircraft door upon deplaning in Toronto, as pre-requested by him;
• the level of deplaning assistance provided to Mr. Norman upon his arrival in Toronto and the confusion surrounding his connecting flight to Vancouver; and
• the fact that Mr. Norman was unable to use the Toronto terminal washroom facilities before boarding his flight to Vancouver.

FACTS

Mr. Norman has a mobility impairment and uses a manual wheelchair.

On December 16, 2001, Mr. Norman, his wife and his daughter made arrangements to travel with Air Canada on December 17, 2001 from their home in Gander to Vancouver.

At the time of booking his flights, Mr. Norman requested accessible seating and the delivery of his wheelchair at the aircraft door in Toronto to enable him to take a planned washroom break at the Toronto terminal before departing for Vancouver.

This need for assistance was reflected in the passenger's PNR in Air Canada's computer reservation system by the use of the WCOB code. This code, as defined in the Passenger Services Conference Resolutions Manual of the International Air Transportation Association, is used to describe a passenger who requests a wheelchair on board.

On December 17, 2001, Mr. Norman travelled on Air Nova Flight No. 8238 from Gander to St. John's, Newfoundland where he connected with Air Canada Flight No. 141 departing for Toronto, which was late leaving St. John's, due in part to deicing.

Because of this delay, Flight No. 141 arrived 68 minutes late in Toronto and Mr. Norman's wheelchair was not delivered at the aircraft door. As the departure for Air Canada Flight No. 011 from Toronto to Vancouver was imminent, Mr. Norman was unable to use the terminal washroom facilities and was taken to the gate in a boarding chair. Subsequently, after some discussion at the gate, Mr. Norman, his wife and his daughter boarded the aircraft and Mr. Norman's wheelchair was transferred from Flight No. 141 to Flight No. 011. Flight No. 011 to Vancouver was delayed 63 minutes. Upon arrival in Vancouver, Mr. Norman was able to use the washroom facilities in the terminal.

Air Canada's policy and procedures with respect to the transportation of wheelchairs provide, in part, that a customer's wheelchair can be made available to him/her at a transfer point as long as planned connection times are available and the customer can get to the connecting departure gate on his/her own. In addition, the policy requires airport personnel to make arrangements via local retail agencies to provide suitable replacement of mobility aids that have been lost, damaged or delayed in delivery and advise the passenger of the arrangement within one hour of being notified of the problem.

POSITIONS OF THE PARTIES

Mr. Norman submits that he received news late on December 16, 2001 about his daughter and her family, which required that he make urgent plans to travel to Vancouver. Mr. Norman states that he has travelled on this route several times and is familiar with accessibility procedures.

Flight No. 141 was late leaving St. John's, due in part to deicing, and when he expressed concerns regarding his connecting Flight No. 011 to Vancouver, Mr. Norman was assured that this would not be a problem as several other passengers on the flight were making the same connection.

Upon arrival in Toronto, Mr. Norman's wife and daughter proceeded immediately to the gate for the Vancouver flight. Mr. Norman states that he was forced to wait an unduly long time for deplaning assistance in Toronto and notes that while he was waiting, the crew was changing and the plane was being groomed. While waiting for assistance, Mr. Norman received confirmation that his wheelchair would be delivered to him at the aircraft door. Mr. Norman states that when he was told upon deplaning that his wheelchair was still in the hold of the flight from St. John's, he was given the choice of proceeding to the gate for the Vancouver flight in the boarding chair or waiting for someone to eventually bring his wheelchair up from the hold. He chose to proceed given that the departure of the flight to Vancouver was imminent.

Mr. Norman indicates that, concurrent with his deplaning, his wife and daughter were being advised that the flight to Vancouver had already departed. However, after checking a computer, the agent subsequently advised them that the aircraft was still at the bridge, but that the seats assigned to the Norman family had been reassigned to other passengers. Mr. Norman adds that when he arrived at the gate, he was also told that they could not board because they were late.

Mr. Norman states that several passengers from the St. John's flight proceeded onboard the flight departing for Vancouver while his wife and his daughter were told that their seats had been reassigned. Mr. Norman adds that he was advised that the decision to reassign their seats was made before they left St. John's and he expresses his disbelief. Mr. Norman acknowledges that Flight No. 141 from St. John's was late arriving in Toronto and asserts that denying him access to Flight No. 011 to Vancouver was discriminatory.

Mr. Norman states that the agent he dealt with at the gate for the Vancouver flight initially told him that his only option was to stay overnight in Toronto without his wheelchair. Mr. Norman indicates that after he pointed out to her the urgency of getting to Vancouver, she repeated, while gesturing towards him, that nothing would be removed from the hold of Flight No. 141 and that he would not be boarding Flight No. 011 to Vancouver. Mr. Norman adds that when the decision was finally made to board the Norman family, he was unable to secure confirmation that a wheelchair would be made available to him upon his arrival in Vancouver. Mr. Norman states that when he advised the agent that he intended to file a formal complaint with the Agency, the agent did not reply.

Mr. Norman submits that he then inquired as to the status of his wheelchair and was advised that it was still in the hold of Flight No. 141, that the hold would not be reopened that night and, further, that the aircraft would be departing for Calgary the next day. Finally, he was given the option of staying overnight in Toronto or continuing on to Vancouver as planned, but without his wheelchair. Mr. Norman chose to continue on to Vancouver and inquired whether a wheelchair would be made available to him upon arrival. He was told that there was no certainty that one would be available.

Mr. Norman states that although he had planned to take a 15-minute washroom break upon arrival at the Toronto terminal before departing for Vancouver, the agent providing boarding assistance advised him that there was not enough time, but that there was a washroom onboard the aircraft that he could use. He adds that when he explained that he could not access the onboard washroom, he was advised that there was not enough time for him to use the terminal washroom before departure for Vancouver. Mr. Norman states that after being advised of this, the aircraft sat for a further 40 minutes before departure. He adds that he managed to reach a washroom in the Vancouver terminal, but not without unnecessary anxiety and discomfort.

Air Canada maintains that the group of agents in Toronto who provide services to passengers with special needs (called passenger SPAT agents) are fully trained in all aspects of dealing with the needs of customers with disabilities. Air Canada adds that it investigated the matter and states that the group of agents followed the appropriate guideline procedures.

Air Canada points out that a customer's wheelchair can be made available to him/her at a transfer point only if planned connection times are available and the customer can get to the connecting departure gate on his/her own. Air Canada states that Flight No. 141 from St. John's was delayed a total of 68 minutes, finally arriving in Toronto at 9:38 p.m. instead of 8:30 p.m.; that staff availability at that time of night is limited; and that there was only a short time left to board the connecting flight to Vancouver. Air Canada states that due to these factors, it informed Mr. Norman that it was not possible to offload the luggage and return his wheelchair.

Air Canada advises that the decision to not transfer baggage from one aircraft to the other was made by Station Operation Control (STOC) and that the in-flight staff onboard the flight from St. John's would not have been aware of this decision. Air Canada offers its apologies to Mr. Norman for any misinformation provided to him onboard that flight.

Air Canada clarifies that because the Norman family was not at the gate for the Vancouver flight prior to departure time, the computer automatically released and reassigned their seats. Air Canada notes, however, that two of its best SPAT agents were present to assist Mr. Norman with boarding.

Air Canada refers to its policy which provides that a passenger and his/her wheelchair must travel on the same flight. Air Canada states that it offered Mr. Norman hotel accommodation in Toronto or a replacement wheelchair through a local mobility aid retail agency in Vancouver at Air Canada's cost until his own wheelchair was returned to him. Air Canada indicates that Mr. Norman declined both of these options.

Air Canada clarifies that considering the circumstances of Mr. Norman's travel, the gate agent requested and received authorization on an exceptional basis from STOC that Mr. Norman be allowed to travel without his wheelchair. According to Air Canada, STOC then made the decision to transfer Mr. Norman's wheelchair onboard the flight destined for Vancouver and this contributed to the delay in departure because of the lack of manpower to make the transfer.

Air Canada explains that Flight No. 011 to Vancouver was delayed for 63 minutes to allow ramp agents to transfer Mr. Norman's wheelchair from Flight No. 141 to the Vancouver flight to permit him to travel with his own wheelchair.

Mr. Norman submits that Air Canada's general statement with respect to the SPAT agents in Toronto has exceptions and that the agents obviously require refresher training. Mr. Norman further notes that had guidelines and regulations been followed, he would have had no reason to file a complaint.

Mr. Norman advises that while he was waiting to deplane in Toronto, he was informed that his wheelchair would be delivered to him. He states that he was quite prepared to proceed to the gate for the Vancouver flight in the boarding chair, given the short connecting time, but that he also wanted to ensure that his wheelchair would be loaded onto that flight.

Mr. Norman questions the rationale of Air Canada's statement that a passenger and his/her wheelchair must travel on the same flight, when his wheelchair was in the hold of a flight which was scheduled to proceed to Calgary.

Mr. Norman states that he was never offered hotel accommodation in Toronto and, further, that he would not have accepted the offer as he was travelling on an urgent basis to be with his daughter and her family in Vancouver. Mr. Norman also states that he was not offered a replacement wheelchair at Air Canada's expense and that as neither of these offers were made, he never had the opportunity to decline them.

Mr. Norman takes issue with what he describes as Air Canada's characterization of the personnel involved as being considerate and courteous in dealing with a difficult situation and passenger and states that the opposite is true. He asserts that his experience with the agent at the gate for the Vancouver flight was confrontational and coercive, beginning with his wife and daughter being told initially that the flight for Vancouver had already departed and then that their seats had been reassigned to other passengers, notwithstanding that they were among the first to reach the gate. Mr. Norman states that he had no intention of being difficult, but he tried his best to be cooperative in accepting almost any arrangement that would allow him to board the flight to Vancouver.

Mr. Norman takes issue with Air Canada's inference that the 63-minute delay in departure from Toronto was attributable to the decision to transfer his wheelchair. He states that he was advised that his wheelchair was being placed onboard as he was boarding the flight and understood that this was being done simultaneously. Mr. Norman therefore questions why he was not permitted to take a washroom break at the Toronto terminal before boarding if personnel were aware that it would take an hour to transfer his wheelchair. Mr. Norman asserts that the long delay cannot be attributed to his situation and was not so attributed by the announcements onboard the flight.

In Mr. Norman's opinion, Air Canada's answer to his application is not a true accounting of the events that took place and it fails to address points raised in his application such as the assurance he received that they would not miss the connecting flight to Vancouver; the fact that other passengers were boarded on the flight while his family was told that the flight had departed and then that their seats had been reassigned; and the fact that he was told that his wheelchair would not be removed from the hold of Flight No. 141, thereby implying that it would go on to Calgary while Mr. Norman remained in Toronto without it.

Mr. Norman asserts that if he had not been insistent and knowledgeable about the Agency's regulations, he would have been forced to stay in Toronto overnight without his wheelchair and that sometime the next day he would have arrived in Vancouver without his wheelchair, therefore unable to visit his daughter and her family in the Intensive Care Unit.

Mr. Norman refers to the lack of human understanding, the misrepresentations, and the blatant ignorance of guidelines and regulations exhibited by Air Canada personnel and states that this is not a situation that can be properly addressed by requiring Air Canada to issue a memo to its employees or update its training procedures or manual. According to Mr. Norman, the recurrence of a similar situation can only be prevented by applying negative consequences to the personnel involved in the incident.

Mr. Norman expresses the belief that there is nothing that Air Canada can do to ease or eliminate the anxiety he feels regarding future flights with Air Canada and concludes that Air Canada's answer to his application is neither accurate nor satisfactory.

ANALYSIS AND FINDINGS

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

An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. Norman is a person who has a mobility impairment and uses a wheelchair and, as such, is a person with a disability for the purposes of applying the accessibility provisions of the CTA.

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.

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 federally-regulated 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.

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

Non-delivery of Mr. Norman's personal wheelchair at the at the aircraft door

Based on the record, Mr. Norman has a mobility impairment and uses a wheelchair. At the time of booking his flight, he requested that his wheelchair be delivered to him at the aircraft door upon arrival in Toronto. The flight departing from St. John's was delayed and arrived 68 minutes late in Toronto. Despite Mr. Norman's request, the wheelchair was not delivered to him in Toronto. The Agency recognizes that, as a result, Mr. Norman was unable to proceed independently within the terminal to take a planned washroom break before continuing on to Vancouver. The Agency therefore finds that the non-provision of his wheelchair upon deplaning in Toronto constituted an obstacle to his mobility.

Assistance in Toronto

According to Mr. Norman, he was forced to wait a long time for deplaning assistance in Toronto and he received unsatisfactory service from the agent whom he dealt with at the gate for the Vancouver flight. Due to the conflicting information provided to Mr. Norman by Air Canada personnel, Mr. Norman was left to wonder whether he would be permitted to board the flight to Vancouver and whether his wheelchair would be removed from the hold of the flight from St. John's and either delivered to him or loaded on the flight to Vancouver in the event that he received confirmation that he would be permitted to board that flight. The Agency recognizes that the situation would have created uncertainty and confusion. Further, the Agency notes the difficulties that Mr. Norman experienced and his loss of faith in Air Canada's ability to provide the service he requires and expects. The Agency therefore finds that the delayed deplaning assistance in Toronto and the level of service provided to Mr. Norman by the agent at the gate for the Vancouver flight constituted an obstacle to Mr. Norman's mobility.

Use of washroom facilities in Toronto

When Mr. Norman was being assisted with boarding the flight to Vancouver, he inquired whether he could use the accessible terminal washroom before boarding and was told that there was not enough time to do so. Mr. Norman was not ultimately able to use the washroom facilities in Toronto before boarding and it was only upon arrival in Vancouver that he was able to use a terminal washroom. The Agency notes Mr. Norman's statement that he experienced unnecessary anxiety and discomfort as a result of the failure to provide this service. The Agency therefore finds that the fact that Mr. Norman was unable to use the Toronto terminal washroom facilities before boarding his flight to Vancouver constituted an obstacle to his mobility.

Whether the obstacle was undue

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 federally-regulated transportation network. The word "undue" also 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 federally-regulated 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, so far as practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

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 federally-regulated transportation network to adapt their services, so far as 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 to adopt services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board a plane 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 deplaning 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 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

Non-delivery of Mr. Norman's personal wheelchair at the aircraft door

Having found that the non-provision by Air Canada of Mr. Norman's wheelchair upon deplaning in Toronto constituted an obstacle to his mobility, the Agency will now consider whether it also constituted an undue obstacle.

Subsection 151(1) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) provides that where a person requests a service at least 48 hours before the scheduled time of departure of the person's flight, the air carrier shall provide the person with the service. The Agency notes that Mr. Norman's request was made only 24 hours in advance of the departure time and, as such, Air Canada was only required to make a reasonable effort to provide the service pursuant to subsection 151(3) of the ATR. Air Canada's policy provides that a customer's wheelchair can be made available to him/her at a transfer point only if planned connection times are available. The Agency notes the circumstances of this case, where Mr. Norman's flight from St. John's was late arriving in Toronto due in part to weather conditions, thereby shortening the connection time for his flight to Vancouver, and the fact that there was limited staff in Toronto available to offload the wheelchair at that time. There is no evidence on file to lead the Agency to conclude that Air Canada's actions were inconsistent with the requirements of the ATR. Therefore, the non-provision of Mr. Norman's wheelchair at the transfer point did not constitute an undue obstacle to his mobility.

Assistance in Toronto

Having found that the delayed deplaning assistance in Toronto and the level of service provided to Mr. Norman by the agent at the gate for the Vancouver flight constituted an obstacle to his mobility, the Agency will now consider whether it also constituted an undue obstacle.

The Agency notes the contradictory information filed by the parties and acknowledges the difficult circumstances under which the Norman family were travelling. The Agency recognizes, however, that the circumstances that prevailed at the Toronto airport were compounded by adverse weather conditions in St. John's, which caused the late arrival in Toronto, and the short connection time between flights. Flight No. 141 was scheduled to arrive at 8:30 p.m. but instead arrived 68 minutes late at 9:38 p.m. and Flight No. 011 was scheduled to leave at 9:30 p.m. before the actual arrival time of Flight No. 141. Nonetheless, Air Canada managed to board Mr. Norman and transfer his wheelchair. The Agency recognizes that flight delays are an inconvenience and a source of frustration, stress and exhaustion; however, the situation was one with which all passengers were faced at that particular time of year. In light of this, the Agency finds that the delay in deplaning assistance in Toronto and the level of service provided to Mr. Norman at the gate for the Vancouver flight did not constitute an undue obstacle to his mobility.

Use of washroom facilities in Toronto

Having found that the fact that Mr. Norman was unable to use the Toronto terminal washroom facilities before boarding his flight to Vancouver constituted an obstacle to his mobility, the Agency will now consider whether it also constituted an undue obstacle.

The Agency is of the view that it is regrettable that Mr. Norman was not afforded the opportunity to use a washroom in the terminal prior to boarding Flight No. 011 to Vancouver. In hindsight, the agent who provided Mr. Norman with boarding assistance should have made every effort to accommodate his need to use the washroom in Toronto. The Agency recognizes, however, in the circumstances of this case, that several factors contributed to a departure from the regular service provided by the air carrier. The inclement weather conditions, the resulting delays in Toronto, and the imminent departure of Flight No. 011 to Vancouver created a situation where established procedures could not be adhered to. The Agency has also noted Mr. Norman's repeated communication to Air Canada staff on his need to proceed to Vancouver as quickly as possible and the fact that Air Canada did make considerable effort to accommodate Mr. Norman's request. Therefore, the Agency does not find that Mr. Norman encountered an undue obstacle to his mobility, given the circumstances in this case.

CONCLUSION

In light of the above findings, the Agency has determined that the non-provision of Mr. Norman's wheelchair at the transfer point in Toronto, the delay in deplaning assistance and the unsatisfactory level of service provided to him while in Toronto, and the fact that Mr. Norman was unable to use the terminal washroom before boarding his flight to Vancouver did not constitute undue obstacles to his mobility. Consequently, no corrective measures will be ordered.