Decision No. 328-AT-A-1998

June 30, 1998

File No. U 3570/98-1

---

APPLICATION

On March 2, 1998, Sandra Emery filed an application with the Canadian Transportation Agency (hereinafter the Agency) regarding the difficulties she experienced during a trip with Canada 3000 Airlines Limited (hereinafter Canada 3000) between Toronto, Ontario and Fort Lauderdale, Florida.

ISSUE

The issue to be addressed is whether or not the actions of Canada 3000 with respect to the signing of a liability waiver for the carriage of Mrs. Emery's wheelchair, her seat assignment and the failure to provide an individual safety briefing constituted undue obstacles to her mobility and, if so, what corrective measures should be taken.

FACTS

Mrs. Emery has a mobility impairment and uses a manual wheelchair. She travelled with her husband on Canada 3000 Flight No. 347 from Toronto to Fort Lauderdale on January 19, 1998 and on Flight No. 348 from Fort Lauderdale to Toronto on February 5, 1998.

In Toronto, Canada 3000 airport personnel asked Mrs. Emery to sign a Limited Release Tag before departure, waiving the carrier's liability in the event of damage to her wheelchair during carriage. Although Mrs. Emery refused to sign the Limited Release Tag, her wheelchair was accepted for carriage. Upon departure of the return flight from Fort Lauderdale, Mrs. Emery was again asked to sign a Limited Release Tag, which she refused to do. Her wheelchair was however accepted for carriage.

One week prior to departure, Mrs. Emery's travel agent notified Canada 3000 of the passenger's disability and requested that her client be assigned an aisle seat in the bulkhead row or a seat which she could transfer to by herself as she does not want to be lifted by anyone. On the B-757 aircraft used by Canada 3000 for the January 19 and February 5, 1998 flights, the bulkhead row seats, although providing extra leg room, do not have movable armrests because the tray tables are stowed in the armrests. Mrs. Emery was assigned seat 35C (rear cabin) on the southbound flight and 12C (forward cabin) on the return flight. These aisle seats are not equipped with movable armrests on the aisle side and are not designated as "accessible seats" on Canada 3000 B-757 aircraft. On the southbound flight, Mrs. Emery was reassigned bulkhead window seat 2A but, even with assistance, could not transfer from the boarding chair to that seat. She ultimately travelled in seat 2B. Her request for the bulkhead aisle seat 2C on the southbound and northbound flights was denied by Canada 3000 personnel.

On board the aircraft, Mrs. Emery was not provided with an individual safety briefing on evacuation and access to the nearest exit in case of emergency.

POSITION OF THE PARTIES

Mrs. Emery alleges that the check-in personnel in Toronto were "extremely rude" when they insisted that she sign a Limited Release Tag and asks whether the waiver practice is legal. She advises that, on the return flight from Fort Lauderdale, the airport personnel insisted that she sign a Limited Release Tag and refused to give her a baggage tag for the wheelchair.

Canada 3000 states that it regrets the inconvenience experienced by Mrs. Emery in Toronto and in Fort Lauderdale and that the carrier generally accepts mobility aids without a signed Limited Release Tag. The carrier also advises that airport personnel are trained to tag passengers' wheelchair with a regular baggage tag and submits that they should not have asked Mrs. Emery to sign the form prior to travel. While it spoke to the Toronto and Fort Lauderdale personnel to prevent a recurrence of the errors, Canada 3000 advises that the employees involved in the incidents do not agree that Mrs. Emery was treated rudely.

As to her seat assignment, Mrs. Emery states that the bulkhead seat was requested by her travel agent as it provides additional room and enables an easy transfer from the boarding chair to the passenger seat. She questions why she was not assigned bulkhead aisle seat 2C since, in her opinion, this seat is near a washroom and not an emergency exit.

Mrs. Emery states that, on the return flight, although she had requested a seat that would enable her to transfer on her own, she had to be lifted by the ground crew to a passenger seat which was not accessible and did not have movable armrests. She adds that her request for a more accessible seat (2C) was denied and that neither her special needs nor her safety concerns were addressed on the flight.

Canada 3000 is of the opinion that the seat assignment problem stems from the fact that Mrs. Emery's travel agent requested bulkhead seating which would allow her to transfer on her own to and from the boarding chair. Unfortunately, bulkhead seats do not have movable armrests to facilitate such transfers. The carrier also advises that, due to safety reasons, Mrs Emery's request for seats next to an emergency exit could not be accommodated. Although these situations might have been factors, the carrier cannot explain why non-accessible seats were assigned to Mrs. Emery.

Canada 3000 recognizes that individual safety briefings should be given by flight attendants to passengers with mobility impairments, according to a policy which is outlined in the carrier's Flight Attendant Safety Manual. Canada 3000 advises that its flight attendants are trained to give individual safety briefings, that it is committed to passenger safety and service and regrets Mrs. Emery's experience. The carrier expresses its intention to discuss the incidents with Mrs. Emery in order to prevent a recurrence of similar situations.

ANALYSIS AND FINDINGS

In previous cases dealing with the requirement to sign a liability waiver for the carriage of wheelchairs as checked baggage, the Agency determined that such a practice by air carriers constitutes an undue obstacle to the mobility of persons with disabilities. In the present case, while the Agency recognizes that Canada 3000 accepts wheelchairs for carriage without a signed Limited Release Tag, it finds that the personnel who dealt with Mrs. Emery at the Toronto and Fort Lauderdale airports failed to follow the carrier's procedures when, on both occasions, they requested that she sign a Limited Release Tag.

The Agency is aware that the check-in and tagging procedure for wheelchairs contained in Canada 3000's Disability Awareness Training Program states that a Limited Release Tag is not required. Although Canada 3000 advised that the incidents were the result of errors and that the procedure in question is indeed part of personnel training, the Agency is of the opinion that Canada 3000 should ensure that similar incidents do not recur. While noting that Canada 3000 has taken some corrective measures in Toronto and in Fort Lauderdale by way of discussions with personnel, the Agency is of the view that further action should be taken by the carrier such as refresher training or distribution of an advisory bulletin, formally reminding customer services personnel of its policy on the carriage of wheelchair as checked baggage.

With respect to the seat assignment, and according to the information submitted during the pleadings, the Canada 3000 B-757 aircraft on which Mrs. Emery travelled contains a number of aisle seats equipped with movable armrests on the aisle side (rows 36, 37, 38). Furthermore, several other passenger seats are designated as "accessible seats" because they usually provide additional leg room, although they are not equipped with movable armrests on the aisle side and may not always permit easy transfer from a boarding chair. The Agency is also aware that Canada 3000's Disability Awareness Training Program for assistance to passengers with disabilities states the following:

For seat selection, ask where the passenger would be most comfortable. If they are listed on the Special Sheet, ensure that they are given their requested seat. If not, find the best seat available that will meet their needs.

The Agency understands that persons with a mobility impairment may have preferences as to which seat in the aircraft passenger cabin would best accommodate their disability. For some of these persons, additional leg room is preferable; others prefer the ability to transfer to another seat by themselves or to be in close proximity to the washrooms. The Agency is of the opinion that the Canada 3000 training program addresses these situations and the need to communicate with the passenger in order to assess how best to accommodate the person's needs and preferences.

The Agency finds that the failure by Canada 3000 personnel to assign Mrs. Emery aisle seats with movable armrests (in row 36, 37 or 38) to facilitate her transfer constituted an undue obstacle to her mobility. The obstacle is undue in that it could have been easily avoided, had personnel taken into consideration the request made by Mrs. Emery's travel agent and responded to the concerns later raised by the passenger and her request for an accessible seat. The Agency is of the opinion that the request made at the time of booking clearly indicated Mrs. Emery's special needs and the seating options. Furthermore, the Agency is of the opinion that Canada 3000 personnel should have demonstrated better awareness by discussing with the passenger the seating options that would best meet her special needs, in accordance with Canada 3000's training program.

With respect to bulkhead row aisle seat 2C which was preferred by Mrs. Emery but denied by Canada 3000 for safety reasons, it is noted that Canada 3000's seat assignment procedure for passengers with disabilities is subject to safety standards and must take into consideration access to emergency exits for all passengers in the passenger cabin. Thus, its safety procedures provide that passengers with special needs may not be seated in a row that is next to, or immediately in front of, an emergency exit.

According to the passenger cabin seat chart of its B-757 aircraft (CFOON) Mrs. Emery travelled on, left bulkhead row aisle seat 2C is in a row adjacent to and in the path of a door (emergency exit). Although seat 2C is not specifically identified as an emergency exit seat, it is stated that door rows are restricted with respect to infants, children or persons with disabilities, which is consistent with the content of the carrier's training program as it relates to safety procedures.

While the Agency recognizes that cabin safety requirements may restrict seat assignment for passengers with special needs and that Canada 3000's cabin safety procedures have been approved by Transport Canada, it finds that other information regarding seat 2C on aircraft CFOON provided by Canada 3000 during the pleadings conflicts with the aforementioned seat restriction issue. The carrier states that seats 2A, 2B and 2C are "non-emergency exit seats" and are designated "accessible" in that they are recommended for passengers who use a wheelchair since these seats have extra space in front of them. Therefore, the Agency requires clarification in order to avoid any future confusion on Canada 3000's interpretation on "restricted" as opposed to "emergency exit" row seats.

With respect to the issue of individual safety briefings raised by Mrs. Emery in her complaint, this matter is one of passenger cabin safety and, as such, falls within the jurisdiction of Transport Canada. The Agency notes that Canada 3000 recognized that individual safety briefings should be given to passengers with a mobility impairment.

CONCLUSION

Based on the above findings, Canada 3000 is required to advise the Agency, within 30 days from the date of this Decision, of the corrective measures it will take, through either refresher training or an advisory bulletin,

• to prevent the recurrence of the unfortunate situation experienced by Mrs. Emery with respect to the signing of a Limited Release Tag and the seat assignment and
• to remind its personnel of the seat selection procedure for passengers with special needs and to emphasize the importance of a dialogue with the passenger.

Canada 3000 is required to provide the Agency, within 30 days from this Decision, with a copy of either the refresher course module or the advisory bulletin, depending on which of these corrective measures is chosen.

As well, Canada 3000 is required to provide the Agency, within 30 days from the date of this Decision, with a written clarification on the conflicting information which appears to exist with regard to "restricted" and "accessible" seating for passengers with disabilities on its B-757 aircraft.

Following its review of the requested information, the Agency will determine whether further action is required.