Decision No. 359-AT-A-2004
June 30, 2004
File No. U3570/03-34
APPLICATION
[1] On September 29, 2003, Scott Holt filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. The application also included correspondence which was submitted in support of Mr. Holt's application by friends who travelled on the subject flights.
[2] On October 31, 2003, Air Transat A.T. Inc. carrying on business as Air Transat (hereinafter Air Transat) filed its answer to the application. Mr. Holt filed a reply to the carrier's answer on November 17, 2003.
[3] On December 10, 2003, the Agency requested that Air Transat provide clarifications on its answer by December 16, 2003. On December 12, 2003, Air Transat requested an extension until December 23, 2003 to submit the requested clarifications, and the Agency, by Decision No. LET-AT-A-251-2003 dated December 16, 2003, granted the requested extension.
[4] On December 23, 2003, Air Transat filed the clarifications requested by the Agency. Mr. Holt filed a response on December 30, 2003 and provided clarifications on January 12, 2004.
[5] By Decision Nos. LET-AT-A-50-2004 and LET-AT-A-49-2004, dated February 17, 2004, the Agency required Mr. Holt and the tour operator, Sunquest, which is part of MyTravel Canada Holidays Inc., to provide additional information. On February 23, 2004, Sunquest requested an extension until February 27, 2004 to file its response, and the Agency, by Decision No. LET-AT-A-56-2004 dated February 24, granted the requested extension. On February 24, 2004, Mr. Holt requested an extension until February 27, 2004 to file his response to Decision No. LET-AT-A-50-2004 and the Agency, by Decision No. LET-AT-A-59-2004 dated February 25, 2004, granted Mr. Holt's requested extension. On February 26, 2004, Sunquest filed its response to Decision No. LET-AT-A-49-2004; attachments were received on February 27, 2004. Mr. Holt filed his response to Decision No. LET-AT-A-50-2004 on February 27, 2004. Sunquest submitted further information on March 3, 2004.
[6] On March 5, 2004, Air Transat and Mr. Holt were provided five days to comment on Sunquest's submission. Air Transat was also provided five days to comment on Mr. Holt's additional information. On March 16, 2004, Air Transat requested an extension until March 22, 2004 to file its response to Sunquest's and Mr. Holt's submissions. By Decision No. LET-AT-A-77-2004 dated March 16, 2004, the Agency granted Air Transat the requested extension.
[7] On March 16, 2004, Ms. Stewart filed her comments on Sunquest's submission. On March 23, 2004, Air Transat filed its comments on Mr. Holt's February 27 submission and Sunquest's submissions of February 26 and 27, and March 3, 2004.
[8] 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 30, 2004.
PRELIMINARY MATTERS
[9] Although both Mr. Holt's and Air Transat's comments on Sunquest's submissions were received after the prescribed deadlines, the Agency, pursuant to section 8 of the National Transportation Agency General Rules, SOR/88-23 (hereinafter the General Rules) accepts them as being relevant and necessary to its consideration of this matter.
[10] The Agency notes that the application also raises miscommunication issues regarding Mr. Holt and Ms. Stewart's seating with Air Transat. The Agency recognizes that Mr. Holt and Ms. Stewart were under the impression that exit row seating was confirmed as their travel agent provided them a confirmation to this effect. However, the Agency notes that Air Transat provided evidence that exit row seats were not available at the time the travel agent made the original request as these particular seats were booked well in advance by other passengers. As this miscommunication occurred prior to May 3, 2003, the date of Mr. Holt's accident, it is not related to Mr. Holt's disability. Accordingly, the Agency will not deal with this issue in its consideration of this application pursuant to section 172 of the CTA.
[11] In addition, on March 23, 2004, Air Transat requested that the Agency consult the travel agent in order to obtain further clarifications on the circumstances surrounding Mr. Holt's travel arrangements. Given the circumstances of this case, and based on the information on file, the Agency is of the opinion that it is not necessary to conduct further inquiries with the travel agent.
ISSUE
[12] The issue to be addressed is whether the seating assignment by Air Transat constituted an undue obstacle to Mr. Holt's mobility and, if so, what corrective measures should be taken.
FACTS
[13] On April 4, 2003, through a travel agent, Scott Holt and his fiancée, Dawn Stewart, purchased all-inclusive vacation packages to Varadero, Cuba from Vancouver, British Columbia, Canada with Sunquest. Mr. Holt and Ms. Stewart planned to travel with Air Transat on Flight No. TS 220 on May 12, 2003, and be wed in Varadero, Cuba on May 16, 2003.
[14] On May 3, 2003, Mr. Holt was involved in an accident, he subsequently had surgery on his left leg.
[15] On May 5, 2003, Mr. Holt's physician gave him clearance to travel to Cuba, as planned, subject to the direction that he elevate his left leg for the duration of the flight to prevent deep vein thrombosis (DVT) and wear an "air cast" on his left leg during the flights. The physician also directed Mr. Holt to ensure that, during the flights, Ms. Stewart monitor his leg, administer his medicine and provide him with the physical comfort he required as a result of his condition. As directed by the physician, an "air cast" was purchased by Mr. Holt at a cost of $200.
[16] On May 12, 2003, Mr. Holt and Ms. Stewart did not travel to Varadero, Cuba as planned. Further, Mr. Holt and Ms. Stewart did not have travel insurance for their anticipated vacation and have not received any form of reimbursement for the trip.
[17] Prior to filing an application with the Agency, Mr. Holt and Ms. Stewart filed a complaint directly with Sunquest and Air Transat. On July 29, 2003, Sunquest provided its response to Mr. Holt's and Ms. Stewart's complaint and Air Transat did so on August 25, 2003. As Mr. Holt was not satisfied with these responses, he filed an application with the Agency.
[18] Air Transat operates most flights on a charter basis, meaning that Air Transat flights are contracted by tour operators that control the seat inventory and sell the seats on the aircraft. Tour operators purchase the seats from Air Transat and sell them to the general public via travel agencies. The seat selection service is an independent system that simply selects seats from a seat map for a specific flight and has no relation or connection with sales of actual seats for booking purposes.
[19] The aircraft operated on both flights in question was an Airbus A330-200, with a capacity of 363 passengers. The final passenger load was 334 passengers on the outbound flight and 356 on the inbound flight.
[20] Air Transat's "seat selection" policy states, in part, that:
For all special seat selection requests in Club Transat (e.g children, unaccompanied minors, medical cases), please contact the Seat Selection Centre at 1-877-TRANSAT.
Note: To select a seat in Economy class, please contact the Seat Selection Centre at 1-877-TRANSAT.
[21] Air Transat has provisions in place to ensure that a passenger who requires a specific seat due to a medical condition or a disability is able to receive this service whether the request is made in advance of travel or at the check-in counter.
POSITIONS OF THE PARTIES
Mr. Holt
[22] Mr. Holt submits that his surgeons assured him that many people bring mobility devices, including wheelchairs, when they travel and that a request could be made for an empty seat beside him or a bulkhead seat that would accommodate his need to elevate his leg, as the extra room would serve to protect his leg, provide room for the elevation of his left leg and prevent other passengers from tripping over his left leg during the flight.
[23] Mr. Holt submits that the travel agent from whom the vacation packages were purchased could not assist him and his fiancée to secure accessible seating for the flights after he injured his left leg, as the agent was, herself, on vacation at the relevant time.
[24] Mr. Holt submits that when Ms. Stewart contacted "Air Transat and/or the tour operator" by telephone on various occasions on May 5, 6, 7, 9, 10 and 11, 2003, she was consistently informed that nothing could be done to accommodate Mr. Holt's disability during the round trip between Vancouver and Cuba, as all seats on the flights had already been purchased and assigned to other passengers.
[25] Specifically, Mr. Holt submits that on May 5, 6 and 7, 2003, Ms. Stewart contacted Sunquest to advise it of Mr. Holt's injury and to make the necessary arrangements to accommodate his needs. Mr. Holt further submits that on each such occasion, the Sunquest representative indicated that nothing could be done to accommodate a person with a disability, and that it would therefore be advisable for Mr. Holt to cancel his trip if he in fact required such an accommodation. Finally, Mr. Holt asserts that although Ms. Stewart also requested to speak with a supervisor at Sunquest, she was consistently informed by the various agents that one was not available.
[26] Mr. Holt states that during Ms. Stewart's conversation with an Air Transat employee on May 6, 2003 regarding Mr. Holt's need for a seat with extra leg room, the only alternative suggested by the agent was that Mr. Holt be placed in a non-bulkhead aisle seat so that he could extend his left leg in the aisle. Mr. Holt advises that, in response to this suggestion offered by Air Transat's agent, Ms. Stewart stated that an aisle seat would not provide the body positioning required to accommodate Mr. Holt's needs and would place other passengers and air carrier personnel at risk of tripping over the leg and injuring themselves. According to Mr. Holt, the carrier's agent then informed Ms. Stewart that there was no other way of responding to his accessible seating needs.
[27] Mr. Holt submits that during the conversation with an Air Transat agent on May 7, 2003, Ms. Stewart restated Mr. Holt's seating needs and inquired about the possibility of paying an additional fee to upgrade Mr. Holt's seat to Club Class in order to secure a seat with extra leg room to accommodate him in light of his needs. Mr. Holt asserts that in response to Ms. Stewart's inquiry, the Air Transat agent informed her that all seats on the aircraft, including those in Club Class, had been purchased by and preassigned to other passengers and that there was no available seating on the flight for Mr. Holt.
[28] Mr. Holt submits that on May 9, 10, and 11, 2003, Ms. Stewart again contacted Air Transat and was told that nothing could be done to accommodate Mr. Holt's seating needs, including the upgrading of his ticket to Club Class which would have ensured that his seating needs would be met during the flight. Mr.Holt adds that he "had no choice but to cancel" their trip to Varadero, Cuba, as they could not obtain a confirmation, in advance of travel, for the necessary accessible seating arrangements for Mr. Holt's disability.
[29] Mr. Holt indicates that the last agent with whom Ms. Stewart spoke informed her that she and Mr. Holt should simply cancel their trip as there was nothing further that Air Transat could do for the couple. Mr. Holt adds that Ms. Stewart then inquired as to whether she should go to the airport on the morning of the flight and the same agent indicated that the couple would not get on the plane because there were no accessible seats available for Mr. Holt.
[30] Mr. Holt submits that he and Ms. Stewart had to cancel their trip at the last minute because neither Air Transat nor Sunquest would confirm that Mr. Holt's particular seating needs would be accommodated.
[31] Mr. Holt explains that he and Ms. Stewart were greatly surprised to discover the information contained in Air Transat's submissions that it has a "special booking desk" which handles seating requests for persons who are in need of assistance, and that all of its employees are aware of the internal procedures to be followed when a customer calls with accessibility questions or requests. Mr. Holt adds that if one of the calls Ms. Stewart made to Air Transat had been transferred to this "desk", maybe he and Ms. Stewart would not be in the position they are in today.
[32] Mr. Holt is of the opinion that it is not his responsibility, as the person who "received this maltreatment and denial of lawful access" to uncover why this happened or which Air Transat employees were involved in the matter. In addition, Mr. Holt maintains that he and Ms. Stewart were denied their seats on the flights in question, denied their wedding ceremony and had to cancel their trip all because of Air Transat's unwillingness to accommodate Mr. Holt as a "newly disabled" person.
[33] Mr. Holt notes that he is not surprised by Air Transat's submission that it has no record of Ms. Stewart's calls, as every time she called Air Transat, she had to explain the entire situation anew.
[34] Mr. Holt states that "if Air Transat's computer system is accurate" in recording agents' names when the seating file is accessed, then the agents Ms. Stewart spoke to "never even opened the file to do their jobs". Mr. Holt is therefore of the opinion that it was Air Transat who "cancelled" their trip by refusing to grant them access to their flights.
[35] Mr. Holt indicates that although he and Ms. Stewart have incurred a loss of approximately $7,000 in connection with the cancellation of their planned trip, they are only seeking to be reimbursed the $4,660 that they originally requested in their initial application.
[36] Mr. Holt submits that he called his phone company to request a copy of his phone bill detailing calls made from his line from May 3-11, 2003. Mr. Holt explains that, unfortunately, no calls to toll free numbers are listed on his bill. Further, Mr. Holt submits that he requested, from his phone company, clarification as to whether it is possible to trace the toll free calls and he was informed by the company that there would be no records of any calls made to toll free numbers, as tracking/recording residential calls is not "a platform for [the company]" unless specifically set up in advance, upon the request of a customer or law enforcement personnel.
Air Transat
[37] Air Transat submits that it was surprised to learn of the discontent expressed by Mr. Holt and Ms. Stewart with its services as it is Air Transat's mission to offer its clients the best possible service in all areas of its operation. Air Transat states that it has an extensive training program which aims to provide its passenger handling and in-flight personnel with the necessary skills to appropriately respond to the particular needs of all passengers.
[38] Air Transat submits that it does not have a reservation record, files or documents with respect to Mr. Holt's planned trip as tour operators maintain the information on passenger reservations in a system independent from that of Air Transat. The carrier explains that the tour operator only forwards the passenger list to the carrier forty-eight hours prior to the departure time of the relevant flight, then the carrier manually enters the passenger names into its own system to create a full passenger name list, which, although created and relied on by the carrier for the flight, is not thereafter retrievable by the carrier.
[39] Air Transat explains that in relation to Mr. Holt and Ms. Stewart's flights, Sunquest controlled the sale of all seats on the aircraft and as a result, it would be impossible for Air Transat to access, control or sell seats on either flight, or advise about the availability of seating in the Club Class of the aircraft. Further, it notes that the limited number of seats in Club Class might itself preclude the occurrence of an upgrade in any given situation.
[40] Air Transat confirms that it does not have particular criteria for its personnel to determine when all the seats of a particular flight have been purchased as its seat selection agents do not have access to information on the expected passenger load of a given flight to be able to comment on whether a flight is fully sold. Further, the carrier advises that its seat selection service has no relation to, nor any connection with, the sale of seats.
[41] Air Transat notes that it provides an advance seat selection service for all passengers three months to two days prior to the departure of their flights, via its call-centre in Montréal, Quebec. Air Transat explains that, while this service is usually provided by Air Transat for a nominal fee, generally the carrier provides this seat selection service free of charge to a passenger with a disability. Further, Air Transat suggests that a passenger with a disability who is incorrectly charged a fee for a seat selection by the carrier can advise its call centre of the circumstances and obtain a refund.
[42] Air Transat advises that its advance seat selection service was implemented to enable passengers to select their preferred seating arrangements prior to the departure date. Air Transat explains that this service is an independent system that selects seats from the seat map of a specific flight. Air Transat further explains that provisions are put in place to ensure that a passenger who requires a specific seat due to a medical condition or a disability is able to receive this service whether his/her request is made in advance of travel or at the check-in counter on the day of travel. Additionally, the carrier notes that a certain number of seats on its flights are always to be kept aside to accommodate passengers with accessibility needs. However, Air Transat points out that safety considerations preclude passengers with limited mobility from occupying exit row seats even though they offer greater leg room.
[43] Air Transat submits that its seat selection agents are only able to advise whether all seats available for pre-selection have been assigned. Most seats are available for pre-assignment, with the exception of the less desirable seating, such as seats that do not fully recline or window seats that do not allow a full window view. When a request for accessible seating is received from a passenger with a disability, the previously confirmed seating assignments of other passengers on the aircraft are reviewed by the Air Transat personnel in an attempt to accommodate the particular needs of the person with a disability. Air Transat adds that if the most-suitable seat is preassigned to another passenger with a disability, the client must select another available seat that will accommodate his/her specific disability. If no other suitable seat is available, Air Transat will take all possible measures to try to accommodate the request, including reassigning other passengers.
[44] Air Transat maintains that all agents in its call centre have been trained to transfer calls from passengers or travel agents to the specialized desk that handles seat selections made by or for passengers with disabilities as soon as the passenger self-identifies as someone who requires a seat due to a medical condition or a disability. Air Transat notes that it makes all efforts to accommodate particular requests made by or on behalf of a passenger with a disability, and, based on a discussion with the individual to determine his/her particular needs, the seat most suited to address the passenger's particular needs is selected.
[45] Air Transat notes that on the day that Mr. Holt alleges that Ms. Stewart was advised that the outbound flight was full, over 60 percent of the seats available for preassignment were still available. Therefore, it is unable to confirm whether or how this incorrect information was given to Ms. Stewart. Air Transat adds that it would be "happy to explore this area further" with Mr. Holt and Ms. Stewart in an attempt to determine with which Air Transat representative(s) they spoke, if further information is needed on this issue, as Air Transat is also concerned if erroneous information was provided by its representative(s) in this instance.
[46] Air Transat submits that it is at a loss to explain the conversations referenced by Mr. Holt with respect to his attempts to obtain advance confirmation of accessible seating, as his reservation file contains no further comments or requests in this regard. Air Transat adds that when a passenger calls to inquire about the possibility of changing a previously confirmed seat selection, the passenger's internal file is opened to review the current seating arrangements, and when the internal file is so accessed, the system automatically date-stamps the file with the agent's initials, even if no comments or changes are actually made to the passenger's seating assignment at that time. Air Transat insists, however, that there are no notations on Mr. Holt's file that would indicate that his original seating assignment was reviewed by anyone in its seat selection department, after the original request had been confirmed. As a result, Air Transat insists that it has no record of the referenced conversations between Air Transat personnel and Mr. Holt regarding the possibility of obtaining accessible seating. Nevertheless, Air Transat does add that it regrets any oversight that may have occurred on this occasion.
[47] Air Transat acknowledges the applicant's submission that Ms. Stewart called 1-877-872-6728 each time, which is in fact its toll free number. Air Transat indicates, however, that it is puzzled by some of the phone calls Ms. Stewart claims she made, particularly the call allegedly made to its call centre on Sunday, May 11, 2003. In this regard, Air Transat advises that its call centre is closed on Sundays, and this fact leads the carrier to wonder whether the calls referenced by the applicant were in fact calls Ms. Stewart made to Sunquest and not to Air Transat. Further, Air Transat asserts that any passenger requesting the assistance of a supervisor would automatically be transferred by the agent to a supervisor for further assistance.
[48] Air Transat notes that Ms. Stewart has indicated that an Air Transat agent advised her that Club Class upgrades were not possible as the outbound flight was fully booked. Air Transat maintains, however, that its agents are not privy to such information. Air Transat adds that Club Class upgrades would be handled through the tour operator. Air Transat notes that Sunquest did have a small allotment of Club Class seats on the flight in question.
[49] Air Transat indicates that it reviewed its records of personnel on duty on the other days noted by Ms. Stewart with no success of finding any agent matching the description given by the applicant who has any recollection of the conversations referenced in Mr. Holt and Ms. Stewart's submissions. Further, Air Transat notes that all of its agents replied that they would have transferred the call to the "specialized desk", or requested the assistance of a supervisor. Air Transat maintains that if one of its agents had opened the seat selection file of Mr. Holt or Ms. Stewart, the computer system would have date and time stamped the relevant file, and the files of Mr. Holt and Ms. Stewart only contain the information for their original booking.
[50] Air Transat submits that while there exists some discrepancy as to the communications that may have taken place regarding the attempts made to confirm the availability of accessible seating in advance of the travel date, it is of the opinion that an aisle seat would have indeed been the most accessible seat for Mr. Holt, as he would have been able to stretch his left leg either under the seat in front of him or, if required, toward the aisle. Air Transat explains that all seating on the aircraft that specifically provides extra leg room is located in a bulkhead row, which faces a fixed wall and would thus prohibit Mr. Holt from keeping his left leg fully extended in front of him during a flight. Further, any bulkhead seating without a wall directly in front of it is located in an emergency exit row, and Transport Canada regulations prohibit all persons with disabilities from sitting in these seats for safety reasons.
[51] Air Transat apologizes and states that it acknowledges that this must have been a difficult time for Mr. Holt and Ms. Stewart, and that it is sorry to learn that they had to cancel their original travel plans as it recognizes the significance of the trip, and regrets that the couple did not purchase any medical or cancellation insurance when they initially booked their package through Sunquest, which insurance might have allowed them to be eligible to receive compensation for the trip.
[52] Air Transat confirms that it is committed to providing quality services and accessible transportation. The carrier submits that, upon review of the file, it is unable to conclusively determine that there was any wrongdoing by its agents nor is it able to accept any responsibility for Mr. Holt's inability to travel.
Sunquest
[53] Sunquest submits that it does not confirm seat selections as this service must be done with the air carrier directly. Further, Sunquest indicates that calls made to the reservation department are randomly taped for training purposes only. Sunquest states that its alleged refusal to accommodate passengers on the aircraft is beyond the control of the tour operator as Sunquest "does not own or operate any airline".
[54] Sunquest explains that when a call is received from either a travel agent or a passenger, employees add a remark to the reservation file with the issues discussed and what has been advised. The computer system will automatically enter the employee's sign-in code and date whenever remarks are entered.
[55] Sunquest confirms that its allocation of 60 seats purchased from Air Transat for the flights in question was full. Sunquest adds that for the outbound flight, 58 economy and 2 business class seats were sold and for the in-bound flight, 56 economy and 4 business class seats were sold.
[56] Sunquest indicates that the information provided by Mr. Holt does not identify with whom they spoke at Sunquest on May 5, 6 or 7, 2003. Sunquest adds that the information also does not indicate that any voice mail messages were left. Sunquest submits that if a passenger or a travel agent contacts its office to discuss purchasing an additional seat, cancelling, etc., its personnel is trained to note such requests on the passenger's file for ease of reference and to obtain confirmation of any information, if required. Sunquest asserts that, in this case, had discussion taken place about cancelling the reservation, Mr. Holt would have been advised, as stated in its brochure, that cancellation charges would apply. Sunquest adds that its personnel will not discuss rates or dollar amounts with clients and that they would have been informed to have their travel agent contact its office to advise of their decision.
[57] Further, Sunquest submits that any request for a wheelchair or assistance would have been added to its flight manifest. Sunquest asserts that no requests were added to the flight manifest.
[58] Sunquest explains that when it receives a request from a client who wants to purchase another seat and it does not have one to sell, it enquires with other tour operators selling seats on the subject flight to attempt to purchase a seat. Sunquest further explains that the clients would have been advised to have their travel agent contact its office to request the additional seat. Sunquest adds that it is at the discretion of a tour operator to sell a seat from its allotment of seats to another tour operator. Sunquest submits that it has no record that such a request was made.
[59] Sunquest notes that on May 12, 2003, its Operation Department contacted the travel agent to advise her that Mr. Holt and Ms. Stewart did not travel and to enquire about their return flight. Sunquest explains that the travel agent advised it on May 14, 2003 that Mr. Holt and Ms. Stewart would not be travelling.
Ms. Stewart's response to Sunquest's submission
[60] Ms. Stewart states that the week of May 3, 2003 was a period of "intense crisis and stress" for both her and Mr. Holt. While Mr. Holt was in surgery and in hospital, Ms. Stewart continued with the final preparations for their trip, worked full time and spent each evening with Mr. Holt in his hospital room.
[61] Ms. Stewart adds that she called Sunquest first, and then Air Transat (upon recommendation of the Sunquest representative), in an attempt to obtain help for Mr. Holt with his new travelling requirements. Further, Ms. Stewart indicates that she did not know that it was her responsibility to ensure that the customer service representatives were opening their file and making notes therein as to their conversations. Ms. Stewart adds that, nearly a year later, she questions if it was her fault that no notes were made, that assistance was not provided for Mr. Holt's seating requirements and that they were denied access to travel.
[62] Ms. Stewart reiterates that all statements, recollections of conversations and information provided to Air Transat and the Agency are honest and accurate. Ms. Stewart states that all they have as support for their version of events are her own notes in her day timer during the week of May 5, 2003, the statements made by their friends, the conversations they had with her travel agent upon her return from vacation and their own statements of what they experienced.
Air Transat's response to Sunquest's submission
[63] Air Transat submits that it agrees with the information provided by Sunquest with respect to it only being able to comment on its own particular allotment of seats on the flight. Air Transat reaffirms that its agents in seat selection do not have access to information regarding how many passengers have booked a given flight.
ANALYSIS AND FINDINGS
[64] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
[65] To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first establish that the applicant is a person with a disability for the purpose of applying the accessibility provisions of the CTA.
[66] In this respect, the Agency has taken the view that it is appropriate to take a broad, functional approach to interpreting its mandate in Part V of the CTA. In Decision No. 482-AT-A-1998, the Agency considered the words "persons with disabilities" to include persons having both permanent and temporary disabilities, including temporary disabilities arising from medical conditions. In this case, Mr. Holt had surgery on his leg and required his leg to be elevated while he travelled. His mobility was thus restricted because of his medical condition. In view of the Agency's past decision and consistent with the manner in which it interprets its mandate, the Agency finds that Mr. Holt is a person with a disability within the meaning of subsection 172(1) of the CTA.
[67] The Agency must then determine whether the applicant's mobility was restricted or limited by an obstacle, and, if so, whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.
Whether the applicant's mobility was restricted or limited by an obstacle
[68] 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 federal 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.
[69] 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
[70] The Agency recognizes the importance of this trip to Mr. Holt and Ms. Stewart and notes the frustration they experienced while making arrangements for Mr. Holt's travel. The Agency also notes that Air Transat recognized that it must have been a difficult time for Mr. Holt and Ms. Stewart and extended its apologies. In this regard, and based on the information on file, Mr. Holt perceived that he could not obtain the type of seating accommodations he felt he needed in light of his temporary disability and, as a result, he felt compelled to cancel his trip. The Agency therefore finds that the seating assignment constituted an obstacle to Mr. Holt's mobility.
Whether the obstacle was undue
[71] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" 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 federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.
[72] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.
The case at hand
[73] Having found that the seating assignment constituted an obstacle to Mr. Holt's mobility, the Agency must now determine whether the obstacle was undue.
[74] The Agency recognizes that steps were taken by the applicant and his fiancée to facilitate Mr. Holt's travel, which included the purchase of an "air cast" to accommodate some of his travel needs. However, despite this, Air Transat and Sunquest have no records of any calls or requests made by Mr. Holt or Ms. Stewart. The Agency notes that Ms. Stewart is unsure of whom she spoke with at Air Transat or Sunquest about Mr. Holt's seating accommodations. In addition, Mr. Holt was not able to provide records of any phone calls as calls to toll free numbers are not listed on bills, unless specifically set up in advance. In light of the inconclusive evidence provided by Mr. Holt, Ms. Stewart, Air Transat and Sunquest, the Agency is unable to make a determination as to whether the seating assignment constituted an undue obstacle to Mr. Holt's mobility.
[75] Notwithstanding the foregoing, the Agency is of the opinion that there are important matters on which it should comment.
[76] The Agency is of the opinion that this incident highlights the importance of record keeping for both the person with a disability and the transportation provider. In particular, the Agency urges persons with disabilities, whether it be in the context of actually making a reservation, or in anticipation of doing so, or when making changes to a confirmed reservation/booking, to keep as complete records as possible, including records of conversations, contact names and dates.
[77] Further, the Agency is of the opinion that all services provided to persons with disabilities are unique and that in-depth dialogues are required between all parties, including travel agents, tour operators and carriers, to avoid miscommunication and to provide a clear understanding of the travel-related needs of persons with disabilities.
[78] In addition, the Agency is of the opinion that it is essential that air carriers ensure that the tour operators with which they do business are aware of their policies, procedures and services so that persons with disabilities can make informed decisions about their travel options. The Agency is also of the opinion that in cases where a carrier contracts with a tour operator for the sale of its seats, it is especially important that the relative responsibility of the carrier and the tour operator for the preassignment of seats and other services to accommodate passengers with disabilities be clearly established in a manner that enables a traveller with a disability to know who to contact to address accessibility concerns, including those pertaining to seating, and who is responsible for resolving such concerns.
COMPENSATION
[79] Subsection 172(3) of the CTA provides that:
On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.
[80] In this case, the Agency was unable to conclude that there was an undue obstacle to Mr. Holt's mobility and, as such, he is not entitled to compensation under subsection 172(3) of the CTA.
CONCLUSION
[81] Based on the above findings, the Agency has determined that while the seating assignment constituted an obstacle to Mr. Holt's mobility, the Agency is unable to make a determination as to whether the obstacle was undue. Consequently, the Agency contemplates no action in this matter.
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