Decision No. 35-AT-A-2023

Summary

[1] Dwija Nitin Soman filed an application with the Agency, claiming that WestJet contravened sections 35, 58 and 59 of the Accessible Transportation for Persons with Disabilities Regulations (ATPDR). Ms. Soman submits that neither WestJet nor Delta provided her with mobility assistance as requested at the Vancouver International Airport (Vancouver airport).

[2] Ms. Soman seeks CAD 20,000 for pain and suffering, and CAD 20,000 for a contravention that was the result of a wilful and reckless practice.

[3] In this decision, the Agency will address the following issues:

1. Is Ms. Soman a person with a disability?
2. Did Ms. Soman encounter a barrier?
3. Did WestJet or Delta contravene the ATDPR?

For the reasons set out below, the Agency finds that:

1. Ms. Soman is a person with a disability;
2. Ms. Soman did not face a barrier to her mobility; and
3. neither WestJet nor Delta contravened the ATPDR.

Background

[4] Ms. Soman had a ticket to travel from Edmonton, Alberta, to Seattle, Washington, via Vancouver, British Columbia, on December 17, 2021, with her husband and daughter. The flight was a code-share marketed by Delta: WestJet operated the flight from Edmonton to Vancouver and Delta operated the flight from Vancouver to Seattle.

[5] During pleadings on the application, WestJet filed an answer; however, Delta did not. Ms. Soman filed a reply to WestJet’s answer.

The law

[6] The Agency has authority under the Canadian Transportation Act (CTA) to address applications that claim the existence of an undue barrier to the mobility of persons with disabilities within the federal transportation network.

[7] As stated in Decision 33-AT-A-2019 (Interpretive Decision), the Agency determines whether there is an undue barrier to the mobility of a person with a disability using a two-part approach:

Part 1: The onus is on the applicant to demonstrate, on a balance of probabilities, that:

• • they have a disability. A disability is any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society;

and

• • they faced a barrier. A barrier is anything — including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice — that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. There needs to be some connection between the applicant’s disability and the barrier.

Part 2: If it is determined that an applicant has a disability and faced a barrier, the onus shifts to the respondent to either:

• • explain, taking into account any proposals from the applicant, how it proposes to remove the barrier through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or, if a general modification is not feasible, an individual accommodation measure;
  • or
  • demonstrate, on a balance of probabilities, that it cannot remove the barrier without experiencing undue hardship.

[8] Similarly, the Agency also has the authority under the CTA to decide whether a person with a disability has been adversely impacted by a contravention of any regulation made by the Agency related to the removal or prevention of barriers in the transportation network to persons with a disability.

Issue 1: Is Ms. Soman a person with a disability?

Ms. Soman’s position

[9] Ms. Soman submits that she has multiple disabilities including several fractures in her legs, a ligament tear in her right knee, multiple lacerations on the right side of her body, cancer with two visible protruding hernia in the stomach, arthritis and fibromyalgia. She also submits that her left leg is shorter by two inches because of osteomyelitis and multiple surgeries. Ms. Soman states that these disabilities cause her constant back, knee and ankle pain, and gluteal muscle aches. She submits that she cannot use stairs.

WestJet’s position

[10] WestJet did not address whether Ms. Soman is a person with a disability in its answer.

Analysis and determination

[11] The Agency finds that Ms. Soman is a person with a disability because the disabilities she listed in her application impact her ability to travel within the federal transportation network.

Issue 2: Did Ms. Soman encounter a barrier?

Ms. Soman’s position

[12] Ms. Soman submits that she requested wheelchair assistance first while booking with Expedia online and then at the Edmonton International Airport (Edmonton airport) ticket counter. The need for a wheelchair is noted on her Expedia itinerary which she filed in support of her application.

[13] Ms. Soman submits that when she got to the Edmonton airport, she requested that she be provided with transportation on a golf cart in the Vancouver airport. She explains that she clearly indicated that she did not want mobility assistance in Edmonton because the airport is small and she was able to rely on her cane. She clarifies in her reply that this assertion did not mean that she refused wheelchair assistance for the entire trip. She submits that she knew that her condition would deteriorate the longer she travelled and that customs in the Vancouver airport would be too far for her to walk.

[14] Ms. Soman submits that the check-in agent in Edmonton explained to her that the golf cart provider had recently changed in Vancouver and that WestJet could not guarantee the provision of a golf cart to transport Ms. Soman in the Vancouver airport. She states that her husband then asked the check-in agent on her behalf for wheelchair assistance in Vancouver and that the representative told them that they put a notation on her file.

[15] Ms. Soman specifically sets out in her application that she did not want to be transported with a wheelchair while in the Vancouver airport because she could not stand back up on her own once seated in a wheelchair and did not want an assistant to lift her out of the wheelchair. She explains that she did not want anyone other than her husband lifting her during the COVID-19 pandemic. In her reply, Ms. Soman clarifies that she was willing for her husband to help her in and out of a wheelchair if needed, although she also argues that she wanted to be self-reliant in opting for a golf cart rather than be assisted out of a wheelchair. She submits that she should have been provided with that option, especially in the context of the COVID-19 pandemic.

[16] Ms. Soman submits that when she landed in Vancouver, she and her family faced multiple difficulties. They first learned that because their flight from Edmonton had been delayed by an hour, they missed their connecting flight to Seattle. They then learned that they had to pick up their baggage at the baggage claim area and take it through United States’ Customs (US Customs), a procedure that had not been in place when they had travelled through the Vancouver airport before. The baggage did not arrive in the baggage claim area because it had been placed on the flight to Seattle that they missed.

[17] Ms. Soman submits that in addition, there were no wheelchairs available for her. Her husband asked a staff member for assistance and was directed to the golf cart. The golf cart driver took Ms. Soman from the arrival area to the baggage pick-up area. Ms. Soman submits that the golf cart driver said that they would return to take her to the Delta ticketing counter to get new tickets to Seattle; however, they did not. Ms. Soman asked her husband to go on ahead while she made her way slowly to the Delta ticketing counter with her daughter. Her daughter flagged down a golf cart going in the opposite direction, and with some convincing, was able to get a ride for Ms. Soman to the Delta ticketing counter.

[18] Ms. Soman claims that the Delta ticketing agent was not kind. Ms. Soman explained she needed to sit, but there were no seats available. Eventually, they were provided with tickets on a flight to Seattle that evening, but no mobility transportation was offered. Ms. Soman and her family did not have much time before their next flight, so Ms. Soman claims that she persevered to get through US Customs. Her husband tried to flag down another golf cart, but they were unable to bring Ms. Soman to her gate. She eventually made it there on her own.

WestJet’s position

[19] WestJet submits that it did not receive Ms. Soman’s request for wheelchair assistance from either Expedia or Delta; however, it submits that it did note the request on her file when she requested assistance upon check-in in Edmonton. It maintains that this was the only time Ms. Soman interacted with WestJet about her disability-related needs; in all other instances, she interacted directly with a third party.

[20] WestJet submits that it offered Ms. Soman Persons with Reduced Mobility (PRM) assistance with its third-party service provider; however, Ms. Soman declined wheelchair assistance, stating that she would prefer assistance in the form of a golf cart. The check-in agent explained that while PRM wheelchair assistance was guaranteed through the addition of a specific code to her file, assistance in the form of golf cart transportation would not be guaranteed. WestJet submits that Ms. Soman declined the guaranteed assistance and opted for the golf cart even with no guarantee of assistance. WestJet submits that even though Ms. Soman chose the golf cart transportation, the agent nonetheless recorded the necessary wheelchair assistance code on Ms. Soman’s file in case she changed her mind upon arrival in Vancouver.

[21] WestJet submits that once Ms. Soman arrived in Vancouver, she opted to “self-manage” the golf cart assistance on her own. Because of this, the provider had no knowledge of Ms. Soman’s needs or flight information. WestJet argues that, nonetheless, the PRM assistance provided WestJet’s best effort by bringing Ms. Soman to the baggage claim area. WestJet submits that had Ms. Soman accepted PRM service, PRM would have had the full information about Ms. Soman’s itinerary, including that baggage pickup was not required. PRM would have transported Ms. Soman to US Customs and handed her over to a Delta agent or would have brought her to the Delta gate themselves.

[22] WestJet submits that golf carts are one of several tools used by PRM service to provide assistance; however, the method of assistance provided is based on a combination of factors, including the time of day, urgency, available personnel and distance in the airport. Opting out of certain methods provided by PRM assistance is not realistic because it does not allow WestJet to efficiently coordinate passengers’ schedules. WestJet also points out that because Ms. Soman’s husband was travelling with her, Ms. Soman could have accepted the guaranteed wheelchair assistance and her husband could have helped her in and out of the wheelchair if needed.

Analysis and determination

[23] The Agency acknowledges that Ms. Soman had a difficult travel experience with a missed connection. However, as the Agency clarified in the Interpretive Decision, not all difficulties encountered during travel by persons with disabilities are barriers. In order to be a barrier, the barrier must be related to the person’s disability: in this case, Ms. Soman’s mobility impairment.

[24] WestJet submits that it did not have advance notice of Ms. Soman’s request for mobility assistance. Although Ms. Soman’s reservation noted a request for wheelchair assistance, the reservation was made through Expedia. The Agency has long held that it does not have jurisdiction over travel agents when it comes to communicating a request for accommodation to the air carrier, as set out in Decision 256-AT-A-2002 (Sullivan v Air France).

[25] Regardless, the parties agree that Ms. Soman told WestJet of her disability-related needs when she checked in at the Edmonton airport. While the Agency has also consistently found that the best practice for persons with a disability is to communicate their disability-related needs to the carrier in advance of travel, as in Decision 77-AT-A-2020 (Medicoff v Porter), it has also long noted that carriers are expected to make reasonable efforts to accommodate disability-related requests on short notice.

[26] The Agency finds that WestJet was willing to provide Ms. Soman with mobility assistance through wheelchair assistance at that time. Carriers have an obligation in law to meet their passengers’ disability-related needs. However, as set out in Decision 11-AT-C-A-2011 (Martens-Funk v WestJet), carriers need not do so in the exact way requested by the passenger, so long as the accommodation provided meets the passenger’s disability-related needs.

[27] By Ms. Soman’s own admission in her application, she declined the wheelchair assistance offered by WestJet in favour of golf cart assistance because she did not want to be lifted by anyone other than her husband, without explaining why he could not do so as he was travelling with her. Although Ms. Soman clarifies in her reply that she was, in fact, willing for her husband to lift her out of a wheelchair, the Agency finds that given Ms. Soman’s statements in her application, this position was not made clear to WestJet. The Agency finds that Ms. Soman has not met her burden to demonstrate that WestJet did not meet her disability-related needs because it was willing to provide her with wheelchair assistance.

Issue 3: Did WestJet or Delta contravene the ATPDR?

Ms. Soman’s position

[28] Ms. Soman points out that she had travelled on this same itinerary before. She claims that under the ATPDR, WestJet had an obligation to keep a record of her accessibility-related needs. She claims that because WestJet did not do so, it contravened the ATPDR.

[29] Ms. Soman submits that WestJet contravened the ATPDR because it did not provide her with mobility assistance upon request even though she requested the assistance more than 48 hours prior to departure.

[30] Ms. Soman also argues that if WestJet did not have advance notice, it nonetheless contravened subsection 32(4) of the ATPDR by not making every reasonable effort to provide her with assistance.

WestJet’s position

[31] WestJet submits that it is in compliance with all regulations. It submits that it did not contravene the ATPDR in not providing Ms. Soman with mobility assistance because it did not have prior notice.

[32] Regardless, it argues that it provided “reasonable effort” to provide Ms. Soman with assistance by offering her PRM assistance and by indicating that she required wheelchair assistance on her file should that be the case once she reached Vancouver. WestJet also points out that its third-party service provider brought Ms. Soman to the baggage claim area despite not having a record of her needs.

[33] WestJet also states that it did not contravene the ATPDR in not retaining a record of Ms. Soman’s disability-related needs without elaborating on its position.

Analysis and determination

[34] Ms. Soman alleges that WestJet contravened the ATPDR by not providing her with wheelchair assistance. However, the section she alleges that WestJet contravened speaks to a carrier’s obligation to provide written confirmation of the services requested by a person with a disability. Because Ms. Soman made her reservation with a third party and does not submit that she contacted either carrier in advance of her travel to request an accommodation, the Agency finds that section 58 does not apply to either WestJet or Delta in this case. As a result, the Agency finds neither WestJet nor Delta contravened this provision.

[35] Notwithstanding, the ATPDR requires carriers to provide wheelchair assistance when they have advance notice. WestJet submitted evidence in the form of Ms. Soman’s file where the notation for wheelchair assistance is dated the same day as Ms. Soman’s travel. Because of this evidence, the Agency accepts WestJet’s submission that Expedia did not communicate Ms. Soman’s request to WestJet. Because Ms. Soman did not submit that she requested assistance from either carrier directly prior to travel, the Agency finds that neither WestJet nor Delta contravened this provision of the ATPDR.

[36] The ATPDR requires carriers to make a reasonable effort to provide accommodation even when no advance notice is given. As set out above, however, the Agency finds that, in this case, WestJet met its obligation to make a reasonable effort in offering wheelchair assistance to Ms. Soman.

[37] Additionally, the Agency finds that there is not enough evidence to find that Delta contravened this provision of the ATPDR because Ms. Soman did not establish whether Delta was aware of Ms. Soman’s request for mobility assistance.

[38] Finally, the ATPDR requires a carrier to retain health-related information in relation to a request for accommodation for three years. The Agency finds that this provision does not require a carrier to retain the details of how it provides accommodation for each trip, as Ms. Soman appears to allege. The Agency therefore finds that this provision also does not apply to this case and neither WestJet nor Delta are in contravention of it.

Conclusion

[39] For the reasons set out above, the Agency finds that while Ms. Soman is a person with a disability, she did not encounter a barrier to her mobility. Further, the Agency finds that neither WestJet nor Delta contravened regulations.

[40] Accordingly, the Agency dismisses the application.

Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	169.5; 172(1); 172.1(1)
Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244	32(4); 35; 58; 59