Decision No. 349-AT-A-2013

INTRODUCTION

[1] James Glasbergen filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) against Air Canada, with respect to the accessibility of Air Canada’s Executive First Class seats (lie-flat seats surrounded by a privacy wall) [pod seats] for persons with disabilities who require a two-person transfer to and from these seats. Mr. Glasbergen submits that the design and diagonal configuration of the pod seats prevent a person with a disability who requires transfer assistance to and from these seats from sitting in Executive First Class.

[2] As part of the adjudication of this case, the Agency organized a demonstration at Air Canada’s training facility in Toronto to gain an understanding of how a person with a disability such as Mr. Glasbergen could be transferred to and from a pod seat. Agency staff and the parties attended the demonstration and two Air Canada in-flight training specialists transferred Mr. Glasbergen between a cabin wheelchair and a pod seat.

ISSUES

1. Is Mr. Glasbergen a person with a disability for the purposes of Part V of the CTA?
2. What measures provide appropriate accommodation/reasonable accommodation to persons with disabilities, including Mr. Glasbergen, who require a two-person transfer to and from the pod seats?
3. Does the design and configuration of the pod seats in Air Canada’s aircraft constitute an undue obstacle to the mobility of Mr. Glasbergen and persons with disabilities who require a two‑person transfer to and from the pod seats? If so, what corrective measures should be ordered?
4. Does Air Canada’s transfer assistance policy constitute an undue obstacle to the mobility of Mr. Glasbergen and persons with disabilities who require a two-person transfer to and from the pod seats? If so, what corrective measures should be ordered?

THE LAW

[3] When adjudicating an application pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:

1. the person who is the subject of the application has a disability for the purposes of the CTA;
2. an obstacle exists because the person was not provided with appropriate accommodation to address their disability-related needs. An obstacle is a rule, policy, practice, physical barrier, etc. that has the effect of denying equal access to services offered by the transportation service provider that are available to others; and,
3. the obstacle is “undue.” An obstacle is undue unless the transportation service provider demonstrates that there are constraints that make the removal of the obstacle either unreasonable, impracticable or impossible, such that to provide any form of accommodation would cause the transportation service provider undue hardship. If the obstacle is found to be undue, the Agency may order corrective measures necessary to remove the undue obstacle.

[4] The foregoing is explained in more detail in 178-AT-R-2013">Decision No.178-AT-R-2013.

QUESTION 1: IS MR. GLASBERGEN A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?

[5] Mr. Glasbergen has quadriplegia and has no mobility from the chest down. He travels with an attendant and requires a two-person transfer from a wheelchair to an aircraft seat. Air Canada did not argue that Mr. Glasbergen is not a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[6] In light of the foregoing, the Agency finds that Mr. Glasbergen is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

QUESTION 2: WHAT MEASURES PROVIDE APPROPRIATE ACCOMMODATION/ REASONABLE ACCOMMODATION TO PERSONS WITH DISABILITIES, INCLUDING MR. GLASBERGEN, WHO REQUIRE A TWO-PERSON TRANSFER TO AND FROM THE POD SEATS?

The Agency’s approach to determining appropriate accommodation

[7] A service or measure that is required to meet a person’s disability-related needs is referred to as “appropriate accommodation.” If it is determined that the person was provided with appropriate accommodation, it cannot be said that they have encountered an obstacle.

[8] There are situations in which a variety of accommodation measures may meet a person’s disability-related needs. The accommodation measure does not have to be exactly what the person requests, but it must be effective.

[9] Service providers meet their duty to accommodate if they provide accommodation that allows a person with a disability to benefit from the same level of transportation services afforded to others.

This case

[10] The Agency must determine whether the design and configuration of Air Canada’s pod seats and its policy regarding assistance for persons with disabilities who require a two-person transfer to and from the pod seats constitute obstacles to the mobility of such persons, including Mr. Glasbergen. To do so, the Agency must first determine the measures needed to provide appropriate accommodation. The Agency looks broadly at the needs of persons with disabilities similarly affected by an issue to identify the measures required to ensure equal access.

[11] While the parties have argued extensively on what accommodations are appropriate or preferred, the Panel has concerned itself primarily with a factual matter, which is whether persons with disabilities who require a two-person transfer to and from the pod seat, including Mr. Glasbergen, can be transferred to and from the pod seats. The Agency orders accommodation measures only after a finding that a person’s disability-related needs are not met, i.e., that they face an obstacle to their mobility which the service provider cannot justify. Consistent with the Supreme Court of Canada in Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SSC 15 (CCD-VIA), the burden of proof that Air Canada’s pod seats and its transfer assistance policy constitute obstacles lies with Mr. Glasbergen.

Facts, evidence and submissions

[12] Mr. Glasbergen asks Air Canada to modify a “limited number” of pod seats on the aircraft that only offer economy and pod seating options in order to provide at least some pod seats that are accessible to persons with disabilities who require the assistance of two people to transfer to and from the seats. He states that “even if [Air Canada] were only to modify one row of seats to something more reminiscent of the old-style business class seating which allowed much better access, it would make a world of difference for travelers like [him]”. In this regard, he submits that First/Executive Class seating is a necessity for many passengers with disabilities who are “unable to sit in economy seating for comfort/personal reasons.”

[13] Air Canada is of the view that the accessibility of a seat does not mean that it needs to be accessible to “passengers with any combination of disability.” Air Canada submits that Mr. Glasbergen’s height and weight - which are, according to Air Canada, 6 foot 2 inches and 200 pounds - in combination with his disability and his refusal to have his attendant assist in the transfer at the demonstration made the use of the pod seats “challenging.” Air Canada contends that Economy Class or Premium Economy Class seating may better meet Mr. Glasbergen’s “rare needs.” Air Canada describes the Premium Economy seating as front-facing seats similar to the North American Executive Class product, and explains that these seats will be on the B767 aircraft to be used on Air Canada’s low cost airline, Air Canada rouge, as of July 1, 2013. Air Canada adds that its international routes will either be served by only Air Canada rouge, or concurrently by Air Canada mainline and Air Canada rouge. Air Canada explains that, as a result, some of these routes will no longer offer pod seats, while other routes will be served by aircraft that will offer either pod seating or Premium Economy seating.

[14] Mr. Glasbergen states that he looks forward to having another alternative to economy class by way of the Premium Economy seating, and that it is important for persons with a mobility disability like him to have an alternative because Economy Class seats can be very restrictive and uncomfortable for them. Mr. Glasbergen explains that he is used to sitting in his wheelchair all day on a daily basis and that being taken out of that environment and having to sit in an aircraft seat can be a “draining experience.” He adds that while he usually purchases Economy Class seats, he prefers Executive Class seats for reasons of comfort, especially on long‑haul flights at the end of which he is often sore.

[15] While Mr. Glasbergen is of the view that the introduction of Premium Economy seats on a limited number of aircraft is a positive step, he submits that it is not much help if there are still 80 to 90 aircraft in the Air Canada fleet that offer only pod seating or Economy seating options.

Analysis and findings

[16] While the Agency recognizes that there is no “one-size-fits-all solution” as it relates to seating and that certain passengers with disabilities can be more easily transferred to and from some seating designs and/or configurations versus others, given that Mr. Glasbergen’s application does not raise issues in terms of the pod seating not accommodating his stature, the Agency will assess the appropriate accommodation in this case in terms of the measures needed to accommodate those passengers who require a two-person transfer and whose stature permits them to fit in the pod seats (persons who require a two-person transfer).

[17] The principle of the right to equal access to transportation reflects a recognition that persons with disabilities have the same needs to travel as others – for business, for pleasure, for medical reasons, and the like – and want to have the same travel options that are provided to others, such as those respecting mode of transportation, departure times, cost, and the ability to travel with friends, family or colleagues.

[18] Appropriate accommodation is accommodation measures that are provided in a dignified manner and are responsive to a person’s disability-related needs, resulting in an equal opportunity for the person with a disability to attain the level of transportation services experienced by others in the federal transportation network. Accommodation measures that do not achieve this do not constitute appropriate accommodation. However, as the concept is explained in Decision No. 178-AT-R-2013, they may provide reasonable (next best) accommodation.

[19] In this case, the appropriate accommodation to meet the disability-related needs of Mr. Glasbergen and persons who require a two-person transfer is the measure required to transfer to and from the pod seat. Air Canada suggests that Mr. Glasbergen be accommodated in Economy or Premium Economy seating and Mr. Glasbergen suggests replacing some pod seats with “old style Business Class seating.” However, neither of these measures would provide an equal opportunity for Mr. Glasbergen and other persons who require a two-person transfer to sit in the pod seats. As such, these proposed measures do not constitute appropriate accommodation for Mr. Glasbergen and persons who require a two-person transfer to and from the pod seats.

[20] The Agency has considered the submissions of the parties, including videos of a live demonstration provided by Air Canada and a transfer assistance demonstration that took place on March 12, 2013 at Air Canada’s training facility. These videos demonstrate a two-person transfer to and from the pod seat, and the Agency finds that “effective transfer assistance” constitutes appropriate accommodation for Mr. Glasbergen and persons who require a two-person transfer. The Agency is of the opinion that the following represents “effective transfer assistance”:

“Effective transfer assistance” consists of transfer assistance to and from a pod seat, which is provided by station attendants or ground handlers under the instruction of the carrier or airport authority personnel during boarding and deplaning, and by carrier personnel providing assistance to the passenger’s attendant where needed during the flight. This transfer assistance:

1. must be provided in a dignified manner;
2. must not impose an unreasonable degree of risk of injury or accident;
3. must be performed by personnel who have received adequate training on transferring persons with disabilities;
4. must be performed using a wheelchair and/or device (e.g. transfer board, sling) that remains stable during the transfer; and,
5. must be performed by appropriate personnel who have been assigned to effect the transfer at the point of boarding and deplaning having due regard to the height and weight of the passenger and the nature of their disability.

QUESTION 3: DO THE DESIGN AND CONFIGURATION OF THE POD SEATS IN AIR CANADA’S AIRCRAFT CONSTITUTE AN UNDUE OBSTACLE TO THE MOBILITY OF MR. GLASBERGEN AND PERSONS WITH DISABILITIES WHO REQUIRE A TWO-PERSON TRANSFER TO AND FROM THE POD SEATS?

Facts, evidence and submissions

[21] The pod seats have been on Air Canada’s wide-body fleet (18 Boeing B777, 8 Airbus A330 and 27 Boeing B767) since 2006. These aircraft are used for long-range international flights such as to Europe, Asia, Australia and South America. The pod seats, manufactured by Premium Aircraft Interiors UK Ltd (now Zodiac Aircraft Seating) and sold to Air Canada under the name “Solar Eclipse,” are positioned diagonally in rows, compared to traditional front-facing seats.

Transfer assistance demonstration

[22] During the demonstration that took place on March 12, 2013 at Air Canada’s training facility in Toronto, two Air Canada in-flight training specialists transferred Mr. Glasbergen between a cabin wheelchair and a pod seat. One of the two Air Canada employees transferred Mr. Glasbergen’s upper body by wrapping his arms around Mr. Glasbergen from behind, and the second employee transferred Mr. Glasbergen’s legs.

[23] Air Canada personnel initiated the transfer of Mr. Glasbergen from the wheelchair to the pod seat without lifting the wheelchair armrest, which destabilized the wheelchair. After the employees lifted the wheelchair armrest, Mr. Glasbergen was transferred onto the edge of the pod seat. The employees repositioned themselves and the wheelchair to reposition Mr. Glasbergen in the pod seat. Air Canada employees then partially reclined the seat in order to reposition Mr. Glasbergen. For the transfer from the pod seat to the wheelchair, Air Canada employees first positioned Mr. Glasbergen’s legs out of the pod, in the entrance space, to allow employees to initiate the transfer. During the first lift, Mr. Glasbergen’s lower body did not clear the back of the wheelchair, which destabilized it. A third Air Canada employee intervened to stabilize the wheelchair and the transfer was then completed.

[24] While the transfer demonstration was performed using an onboard wheelchair, Air Canada clarifies that the embarking and disembarking would be done with a Washington wheelchair (a wheelchair used to board and deplane passengers), which Air Canada submits is sturdier than an onboard wheelchair. Furthermore, Air Canada submits that there would no risk of toppling of the chair in an aircraft, as occurred in the demonstration, as there would be an opposing set of seats or a half wall to prevent this from happening. Mr. Glasbergen responds that these statements may or may not be true.

[25] Mr. Glasbergen disagrees that transferring into the pod seat would be easier when performed from a Washington wheelchair; he submits that the design of the pod seat would still be the same, resulting in the transfer being “equally awkward.” In addition, he submits that the high back of a Washington wheelchair, which he explains rises above the head of the person being transferred, would force the person doing the lift from the back to “grab” the passenger almost from the side rather than being able to get right behind the passenger and put their arms completely around the passenger for leverage.

[26] Mr. Glasbergen states that during the transfers performed during the demonstration, a third person intervened to stabilize and reposition the onboard wheelchair, which he submits could not be the case in an actual cabin due to the limited space. Mr. Glasbergen also states that once in the pod seat, his body was initially “barely on the seat at all,” which he submits was due to the design of the seat. He also points out that he was slouching considerably. Mr. Glasbergen further states that one of the Air Canada employees performing the transfer had to hold his legs to prevent him from falling out of the seat, while pushing the onboard chair out of the “aisle” to allow for a repositioning of his body.

[27] Mr. Glasbergen submits that the Air Canada employees attempted four lifts to correctly position him in the pod seat (two lifts to transfer him and two to adjust him in the seat) and that two lifts are typically required to transfer him into a regular seat (one for the transfer and one to adjust him in his seat).

[28] Mr. Glasbergen concludes that the transfer performed during the demonstration was “clearly unsafe.” He expresses the view that such transfer is a danger to: 1) the people transferring him due to the significant amount of “awkward manoeuvring,” which could easily cause a back injury, especially for the person lifting from the back; and 2) to him, due to the potential for dropping him, which he claims is based on the difficulty to get his body reasonably far into the seat on the initial transfer into the seat.

[29] Air Canada states that, for passengers with disabilities who are non self-reliant by reason of mobility impairments, a two-person transfer technique from a Washington wheelchair to a pod seat has been developed, which is demonstrated in the video filed by the carrier. Air Canada submits that this video shows that this transfer can be done with a passenger “of average weight.” As it relates to Mr. Glasbergen, Air Canada is of the view that his height and weight, in combination with his disability and his refusal to have his attendant assist in the transfer, make the use of the pod seats “challenging.” Air Canada submits that the pod seats are accessible to the “overwhelming majority of passengers,” including passengers with a variety of disabilities, for example those who have mobility restrictions but are self-reliant as they “remain able to do a transfer on their own,” or passengers who have paraplegia and travel with an attendant who can do the transfers.

[30] Mr. Glasbergen explains that he always travels with a personal attendant, but he submits that due to his weight (approximately 200 pounds), his attendant would not be able to transfer him without assistance from another person. In response to Air Canada, Mr. Glasbergen explains that he refused to have the attendant who accompanied him to the demonstration to assist with the transfer because that particular attendant works for an organization that does not permit manual transfers for people like himself who cannot bear weight. It is also Mr. Glasbergen’s opinion that the transfer would be unsafe and he did not want to put his attendant at risk of a back injury.

[31] Mr. Glasbergen expresses the view that there are far more persons with quadriplegia who will not be able to get into the pod seats than there are who will be able to do so. He adds that most of the passengers who are not self-reliant and who will not be able to sit in these seats are the very passengers who most need to sit in these seats for “comfort/personal reasons.”

Analysis and findings

[32] Air Canada acknowledges that the transfer of Mr. Glasbergen to and from the pod seat was challenging and attributes this to Mr. Glasbergen’s height and weight in combination with his disability and his refusal to allow his attendant to assist in the transfer.

[33] In the absence of evidence to the contrary, the Agency does not accept that Mr. Glasbergen’s height and weight are not within the normal range for an adult male. Moreover, as previously set out, the Agency is of the opinion that passengers whose stature permits them to fit in the pod seats should be accommodated in those seats. Finally, carriers must provide transfer assistance regardless of the nature of a person’s disability or size, unless they have demonstrated that to do so would cause undue hardship.

[34] The Personnel Training for the Assistance of Persons with Disabilities Regulations (PTRs) require that Canadian carriers provide employees and contractors with a level of training appropriate to the requirements of their function for transferring a person with a disability between the person’s own mobility aid and a mobility aid provided by a carrier and between that mobility aid and the passenger seat. This includes using appropriate lifting techniques to execute the transfers with maximum consideration for the dignity, safety and comfort of the person with a disability while avoiding injury to the employee or contractor making the transfer.

[35] Carriers are expected to inform themselves in advance of a person’s travel as to the nature of their disability and, in respect of transfer assistance, the person’s size. This information is necessary to determine whether an aid such as a sling or a sliding board is needed and to ensure that the personnel assigned to affect the transfer have the necessary training.

[36] As it relates to the wheelchair used for the transfers to and from the pod seats, appropriate accommodation in this case requires that the transfer be performed using a wheelchair and/or device (e.g., transfer board, sling) that remains stable during the transfer. The Agency expects that Air Canada would have the choice of the wheelchair to be used to achieve stability, provided it enables “effective transfer assistance” to and from the pod seat.

[37] With respect to the concerns raised by Mr. Glasbergen that the use of a Washington wheelchair will make it more difficult for the person performing the transfer to execute the lift by holding the passenger under the arms, the Agency is of the opinion that the manoeuvring around the higher back can be addressed through adequate training on transfer techniques.

[38] Regarding the number of repositioning manoeuvres required to place Mr. Glasbergen comfortably in the pod seat, although the Agency recognizes that it is desirable to minimize these as they may cause discomfort and even pain for some persons with disabilities, the Agency is of the opinion that it is not unreasonable that a limited number of additional repositioning manoeuvres are required for a transfer into a pod seat compared to a regular seat.

[39] Both parties agree that the transfer of Mr. Glasbergen was not without problems. Notwithstanding, the video filed by Air Canada depicts a problem-free transfer to and from a pod seat performed by two persons. The Agency is of the opinion that the video demonstrates that a problem-free transfer to and from the pod seat can be performed by appropriately trained and assigned personnel. The Agency is of the opinion that “effective transfer assistance” could have been provided to Mr. Glasbergen during the demonstration had the Air Canada personnel been properly trained and appropriately assigned to perform the task.

[40] In light of the foregoing, the Agency finds that the design and configuration of the pod seats do not constitute an obstacle to the mobility of Mr. Glasbergen and persons with disabilities who require a two-person transfer to and from the pod seats. Having found no obstacle, there is no need to consider the aspect of undueness.

QUESTION 4: DOES AIR CANADA’S TRANSFER ASSISTANCE POLICY CONSTITUTE AN UNDUE OBSTACLE TO THE MOBILITY OF MR. GLASBERGEN AND PERSONS WITH DISABILITIES WHO REQUIRE A TWO-PERSON TRANSFER TO AND FROM THE POD SEATS?

Facts, evidence and submissions

[41] At the time of Mr. Glasbergen’s application, Air Canada’s policy was that only self-reliant passengers were accepted in the pod seats. Air Canada subsequently modified its policy to allow persons who have quadriplegia, paraplegia or who are non‑ambulatory and non self-reliant and travelling with an attendant to be seated in the pod seats, subject to review on a case-by-case basis by its MEDA Desk. Air Canada informed Mr. Glasbergen that eligibility to sit in the pod seats is subject to the attendant being physically capable of handling all of the customer’s transfers in and out of the seats and agreeing to take full responsibility for these. Air Canada explains that an attendant is expected to be able to provide the assistance necessary at all critical stages of the flight, including in case of an emergency, such that an attendant who is “not able to proceed to the transfer” would not qualify as a “proper attendant” due to their inability to assist in case of an emergency.

[42] Air Canada states that it is assessing the feasibility of implementing the two-person transfer procedure depicted in the video that it provided to the Agency across its system and the possibility of imposing it on airport authorities and their service providers. Air Canada specifies that such technique is limited to airports and is not approved for use during flight by flight attendants due to the risk of injury. Air Canada submits that, until this can be achieved, it cannot implement “full access” to the pod seats by passengers with mobility impairments who are not self-reliant and whose attendant “cannot proceed to the transfer.”

[43] Air Canada explains that at its main Canadian airports, with the exception of Toronto, transfers of passengers with disabilities from their own wheelchair or an onboard wheelchair to the seat and vice versa are performed by station attendants. Air Canada adds that, in Toronto, a special team called the “SPAT team” performs this duty. Air Canada comments that the level of service provided to persons with disabilities varies considerably at foreign destinations. It states that pursuant to the European Union Regulation 1007/2006 on assistance to Persons with Reduced Mobility (EU Regulation), assistance at the airport must be performed by agents retained by the airport authorities. In Asia, some airports control this process, and others require the carrier to secure the proper service provider while in Latin America, this duty is performed by the ground handling company. Air Canada asserts that because the service at its destinations is not always under its control, it is presently unable to provide the two-person transfer assistance depicted in the video that it provided to the Agency, and cannot implement it as a procedure at this time. Air Canada explains that implementation of a procedure to provide the two-person transfer assistance to and from the pod seats in Canada could result in passengers being left without assistance upon arrival at their destination.

[44] Air Canada states that passengers who are non self-reliant who travelled in the pod seats were of smaller stature than Mr. Glasbergen and their transfer was performed by their attendant using a one-person frontal technique holding on to the passenger’s belt and back. Air Canada expresses the view that Economy or Premium Economy Class seating may “better meet Mr. Glasbergen’s rare needs.”

[45] In response, Mr. Glasbergen submits that it is untrue that his “special needs are rare.” Rather, Mr. Glasbergen states that many travellers with disabilities require assistance transferring into aircraft seats. To illustrate his point, Mr. Glasbergen states that many of the clients of his travel agency who have disabilities require a full, two-person lift to transfer into their seat.

Analysis and findings

[46] The appropriate accommodation in this case requires that “effective transfer assistance” to and from a pod seat be provided by station attendants or ground handlers under the instruction of the carrier or airport authority personnel during boarding and deplaning, and by carrier personnel providing assistance to the passenger’s attendant where needed during the flight.

[47] As Air Canada’s policy is to not provide transfer assistance to and from the pod seats for persons with disabilities, whether it be during boarding and deplaning or during flight, its policy constitutes an obstacle to the mobility of Mr. Glasbergen and persons who require a two-person transfer.

[48] Having determined that Air Canada’s transfer assistance policy constitutes an obstacle, the Agency will now assess whether this obstacle is undue.

[49] Air Canada states that the provision of disability-related services at its destinations is not always under its control. Air Canada asserts that, for this reason, it is presently unable to implement the two-person transfer technique demonstrated in the video that it provided to the Agency, such that it limits access to its pod seats to persons who can do a transfer on their own and those who have quadriplegia, paraplegia or who are non‑ambulatory and non self-reliant and travelling with an attendant who can provide the transfer assistance.

[50] As indicated by Air Canada, European airport authorities are required to provide assistance to persons with disabilities who use a wheelchair during boarding and deplaning, pursuant to Annex 1 of the EU Regulation. This Regulation states that:

Assistance and arrangements necessary to enable disabled persons and persons with reduced mobility to board/deboard the aircraft, with the provision of lifts, wheelchairs or other assistance needed, as appropriate are under the responsibility of the managing bodies of airports.

[51] Accordingly, the airport authorities at Air Canada’s European destinations have the responsibility to provide transfer assistance to persons with disabilities during boarding and deplaning the aircraft, which would include transfer assistance to and from aircraft seats without being limited to regular seats. In addition, the Agency is aware that the EU Regulation requires air carriers and airport managing bodies to ensure that their personnel, including those employed by sub-contractors, who provide direct assistance to persons with disabilities are knowledgeable on how to meet their needs.

[52] In terms of the role of carriers in ensuring that their passengers receive the disability-related services they need in respect of boarding and deplaning the aircraft, as Air Canada is aware, and as set out in Decision No. 211-AT-A-2012 (Boyko v. Air Canada), carriers are responsible for communicating these needs to foreign airport authorities and collaborating with them to ensure that the requisite assistance is provided. This applies in respect of its European destinations and any other destinations in respect of which the airport authority is responsible for the provision of disability-related assistance. Accordingly, in situations where Air Canada is not responsible for providing transfer assistance during boarding and deplaning, it is nonetheless responsible for communicating a passenger’s needs for “effective transfer assistance” to the station attendants or ground handlers under the instruction of airport authority.

[53] Air Canada has provided no evidence to indicate that European airport authorities or any of the airport authorities or designated parties at its foreign destinations would not provide “effective transfer assistance” to and from its pod seats. In fact, Air Canada has not indicated whether it has made any enquiries with foreign airport authorities regarding the matter. It may be the case that transfer assistance to and from pod seats is already being provided by foreign airport authorities.

[54] In light of the above, the Agency finds that Air Canada has not demonstrated that the fact that the direct responsibility for providing transfer assistance at some or all of its foreign destinations lies with the airport authority or another designated party constitutes undue hardship. Similarly, Air Canada has not demonstrated that the fact that it would have to communicate a passenger’s need for transfer assistance to the airport authority or another designated party constitutes undue hardship. The Agency therefore finds that Air Canada’s transfer assistance policy constitutes an undue obstacle to the mobility of Mr. Glasbergen and persons who require a two-person transfer.

CONCLUSION

[55] The Agency does not find that the design and configuration of the pod seats in Air Canada’s aircraft constitute an obstacle to the mobility of Mr. Glasbergen and persons who require a two‑person transfer to and from the seats.

[56] The Agency does find, however, that Air Canada’s transfer assistance policy constitutes an undue obstacle to the mobility of Mr. Glasbergen and persons who require a two-person transfer.

ORDER

[57] In light of the above undue obstacle finding, Air Canada is ordered, for situations where it is responsible for providing transfer assistance during boarding and deplaning, to develop and implement a policy and related procedures necessary to provide the following appropriate accommodation and to provide the necessary training to its staff to ensure the provision of the appropriate accommodation:

“Effective transfer assistance” consists of transfer assistance to and from a pod seat, which is provided by station attendants or ground handlers under the instruction of the carrier or airport authority personnel during boarding and deplaning, and by carrier personnel providing assistance to the passenger’s attendant where needed during the flight. This transfer assistance:

1. must be provided in a dignified manner;
2. must not impose an unreasonable degree of risk of injury or accident;
3. must be performed by personnel who have received adequate training on transferring persons with disabilities;
4. is performed using a wheelchair and/or device (e.g., transfer board, sling) that remains stable during the transfer; and,
5. must be performed by appropriate personnel who have been assigned to effect the transfer at the point of boarding and deplaning having due regard to the height and weight of the passenger and the nature of their disability.

[58] In situations where transfer assistance during boarding and deplaning for Air Canada’s passengers is provided by station attendants or ground handlers under the instruction of an airport authority or another designated party, Air Canada is ordered to develop and implement a policy and related procedures necessary to communicate its passengers’ needs for “effective transfer assistance” to the appropriate personnel.

[59] The Agency requires Air Canada to file a copy of the above-noted policies and related procedures with the Agency, in addition to reflecting this policy on its Web site. Air Canada has until October 21, 2013 to comply with this Order.