Decision No. 386-AT-A-2009

September 10, 2009

COMPLAINT by Roderick Scott against Air Canada.

File No. U3570/08-43

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Introduction

[1] On September 26, 2008, Roderick Scott 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) regarding difficulties he experienced when travelling with Air Canada on Flight AC1250 on September 30, 2007 from Montréal, Quebec, Canada, to Cancun, Mexico. These are:

• The seating arrangements for Mr. Scott and his son and the purser's behaviour in respect of Mr. Scott's need for assistance from his son.
• Air Canada's refusal to carry Mr. Scott's wheelchair in the onboard storage compartment on Flight AC1250, from Montréal to Cancun.
• Damage to Mr. Scott's wheelchair.
• Damage to Mr. Scott's luggage.

[2] As indicated in the reasons that follow, the Agency finds that the following issues did not constitute undue obstacles to Mr. Scott's mobility:

• The seating arrangements for Mr. Scott and his son, as well as the purser's behaviour in respect of Mr. Scott's need for assistance from his son on Flight AC1250.
• Air Canada's refusal to carry Mr. Scott's wheelchair in the onboard storage compartment on Flight AC1250.

[3] However, the Agency finds that the following issue constituted an undue obstacle to Mr. Scott's mobility:

• The damage to Mr. Scott's wheelchair.

Preliminary matter

[4] With respect to Mr. Scott's concerns regarding damage to his wheelchair and his luggage, Air Canada argues that Mr. Scott's rights to compensation regarding damage were extinguished and that the Agency should dismiss these aspects of his application. The decision addresses Air Canada's argument as a preliminary matter and establishes which issues the Agency will consider.

[5] In discussing the damages to Mr. Scott's wheelchair and luggage, Air Canada argues that the Convention for the Unification of Certain Rules for International Carriage by Air, incorporated into the laws of Canada by the Carriage by Air Act, R.S.C., 1985, c. C-26, provides the sole cause of action and the only remedy in the circumstances pleaded. Article 31 of the Convention provides, in part, that a claim for damages must be submitted, in writing, to the carrier within seven days of receiving the damaged goods in question. It is important to note that damage to a wheelchair is considered a disability-related issue. Conversely, the evidence on file relating to the alleged damage to the luggage does not indicate that it is a disability-related issue.

[6] With respect to the claim for damages to Mr. Scott's wheelchair, Air Canada argues that Mr. Scott had until October 8, 2007 to file a written notification within the required seven-day time frame. Although Air Canada acknowledges that a Damaged Baggage/Lost Property Report was completed by Mr. Scott upon his arrival in Cancun, the air carrier states that this constitutes a verbal notice and that it did not receive a written notification until July 3, 2008, ten months after the alleged damage to his wheelchair. Air Canada asserts that because of this delayed filing, the portion of Mr. Scott's application pertaining to this issue must be dismissed.

[7] In considering Mr. Scott's claim regarding damage to his luggage, the Agency accepts Air Canada's argument that Mr. Scott failed to provide a written notice within the required seven-day time frame. Although Mr. Scott suggests that all the damages, including those to the luggage, were shown to Air Canada staff at the Cancun airport, there is nothing to indicate that Air Canada received a written notification within seven days of Mr. Scott receiving his luggage. As such, the Agency dismisses this portion of Mr. Scott's application.

[8] In reviewing Air Canada's arguments pertaining to damage to Mr. Scott's wheelchair, the Agency is of the opinion that the Damaged Baggage/Lost Property Report provides sufficient written notice to the carrier. Indeed, if Air Canada was of the view that its own Damaged Baggage/Lost Property Report was insufficient to serve as a claim in writing, its personnel had the duty to inform Mr. Scott. The Agency will therefore consider this portion of Mr. Scott's application.

Facts and submissions

[9] Mr. Scott, a person with quadriplegia who uses a wheelchair and a catheter, travelled with his son, Richard Scott, on September 30, 2007 with Air Canada, from Edmonton, Alberta, Canada to Cancun, with a connection in Montréal, on Flights AC1138 and AC1250, respectively.

[10] Mr. Scott purchased adjoining seats for himself and his son. From Edmonton to Montréal, Mr. Scott was permitted to store his collapsible wheelchair in the onboard storage compartment.

[11] While economy class seats 19D and E were originally assigned to Mr. Scott and his son on the Montréal to Cancun flight, Air Canada states that it upgraded Mr. Scott to business class as a gesture of good will. His son's ticket was not upgraded.

[12] Mr. Scott and his son were the last to board the Montréal to Cancun flight. Upon boarding, the in-flight service director informed Mr. Scott that his wheelchair would not be stowed in the onboard storage compartment, but in the baggage hold instead. Mr. Scott was taken to seat 1A in business class while his son was seated in economy class.

[13] Mr. Scott states that he was assured by a flight attendant that if he needed assistance from his son during the flight, his son would be permitted to come and help him. At a point during the flight, Mr. Scott required assistance. Mr. Scott claims that the flight attendant attempted to bring his son to Mr. Scott, but she was prevented from doing so by the purser. Mr. Scott submits that the purser did eventually bring his son to him, but only after several requests and only after he had wet himself. Mr. Scott's son assisted him with this situation using a catheter. For the rest of the flight, Mr. Scott's son sat next to him in business class. Mr. Scott argues that the purser with whom he dealt was unsympathetic, rude and unhelpful. Air Canada contests the majority of Mr. Scott's description of events.

[14] Mr. Scott states that, upon his arrival in Cancun, he noticed that his wheelchair was damaged. An Air Canada Damaged Baggage/Lost Property Report was completed, indicating that the wheelchair was torn and scratched. Mr. Scott submits that there was also damage to his luggage.

[15] He further submits that when he and his son left the airport, they took a taxi to their hotel and that evening one of his wheelchair tires blew. Both tires were replaced the next day.

[16] After six days of a planned six-week vacation, Mr. Scott's son returned to Edmonton with a different air carrier. Mr. Scott travelled unaccompanied for his return flight on November 2, 2007. To avoid the problems he experienced on the flight to Cancun, Mr. Scott wore an internal catheter for his return flight.

Analysis and findings

[17] An application under section 172 of the CTA must be filed by a person with a disability or on behalf of a person with a disability. In this case, Mr. Scott is a person with quadriplegia and uses a wheelchair. As such, Mr. Scott is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[18] To determine whether there is an undue obstacle to the mobility of a person with a disability within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether that person's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue.

The Agency's approach to the determination of obstacles

[19] Under Part V of the CTA, the mandate of the Agency is to eliminate undue obstacles to the mobility of persons with disabilities in the federal transportation network. The word "obstacle" is not defined in the CTA, but lends itself to a broad meaning, as it is usually understood to mean something that impedes progress or achievement.

[20] In considering whether a situation constitutes an "obstacle" to the mobility of a person with a disability in a particular case, the Agency will look at the incident described in the application to determine whether the applicant has established in the application (that is, on a prima facie basis) that:

• a distinction, exclusion or preference resulted in an obstacle to the mobility of a person with a disability;
• the obstacle was related to the person's disability; and
• the obstacle discriminates by imposing a burden upon, or withholding a benefit from a person with a disability.

[21] Should an applicant fail to establish one of these three elements, the Agency will find that the applicant has not made a prima facie case of obstacle.

The Agency's approach to the determination of the undueness of obstacles and accommodation

[22] Once the applicant has established the existence of an obstacle to the mobility of a person with a disability in the federal transportation network, the onus of proof then shifts to the respondent transportation service provider to prove, on a balance of probabilities, that the obstacle is not undue. To this end, the respondent must demonstrate that it meets the following three-part test:

• the source of the obstacle is rationally connected to a legitimate objective, such as those objectives found in the national transportation policy contained in section 5 of the CTA;
• the source of the obstacle was adopted by the transportation service provider with an honest and good faith belief that it was necessary to the fulfilment of that legitimate objective; and
• the source of the obstacle is reasonably necessary for the accomplishment of its objective, such that it is impossible for the transportation service provider to accommodate the person with a disability without imposing undue hardship on the service provider.

The case at hand

Did the seating arrangements for Mr. Scott and his son, and the purser's behaviour in respect of Mr. Scott's need for assistance from his son on Flight AC1250 constitute obstacles to Mr. Scott's mobility?

[23] To meet the first part of the three-part test with respect to the issues at hand, Mr. Scott must demonstrate that he was excluded from having equal access to the transportation network because he was not provided with services to meet his disability-related needs. The question is, therefore, whether seating next to his son on Flight AC1250 was required to meet Mr. Scott's disability-related needs. If so, did the seating arrangements for Mr. Scott and his son as well as the purser's behaviour in respect of Mr. Scott's need for assistance from his son amount to an obstacle?

[24] In executing its mandate under the accessible transportation provisions of the CTA, the Agency, as well as its predecessor, the National Transportation Agency, has recognized and considered a number of long-standing principles of accessibility, some of which are captured in the following passage taken from Decision No. 6-AT-A-2008.

[25] Transportation service providers are required to provide the same services to persons with disabilities as they do to other passengers, although the notion of equivalent access may require the transportation service provider's personnel to provide a different, and sometimes higher, level of assistance to persons with disabilities than is provided to other passengers. This assistance often permits many persons with disabilities to travel independently and others to travel as independently as possible.

[26] Notwithstanding, there are persons with disabilities who are unable by reason of their disability to meet their own personal care needs and these persons use attendants to assist them with these functions in their daily lives. Where such persons with disabilities travel and cannot feed themselves, take medication or use the toilet unassisted in-flight, those persons may be required to travel with an attendant as transportation service providers' personnel are not expected to meet these personal care needs for any passenger in-flight. In addition, transportation service providers may require certain persons with disabilities to travel with attendants where, for safety reasons, they may require assistance in the event of an emergency evacuation or decompression. These attendants are notionally viewed as extensions of the person with a disability in that they travel with the person with a disability in order to fulfill their personal care and other mobility-related needs.

[27] If a carrier denies the use of an attendant when one is required, it is essentially excluding the person who requires an attendant from having the same access to the transportation network as other travellers have. Whether this is the case is dependent on the applicant demonstrating that they require services from an attendant that are not provided by carrier personnel, e.g. services of a personal nature.

[28] Air Canada contests Mr. Scott's claim that he requires an attendant to travel. Air Canada notes that Mr. Scott's Passenger Name Record (PNR) contains no indication that he requires an attendant. Air Canada makes reference to the WCBD code in Mr. Scott's PNR, which means "Dry cell battery wheelchair as checked luggage", commenting that this is the only reference in the PNR to special services requested by Mr. Scott. However, Mr. Scott asserts that he never referred to his wheelchair as being of the dry cell battery type. Further, Air Canada suggests that if Mr. Scott was not self-reliant, the WCBD code should have been accompanied by another code to indicate Mr. Scott's degree of mobility such as "WCHC" (paraplegic/quadriplegic may be self-reliant or not), "WCHR" (requiring wheelchair for distance) or "WCHS" (cannot ascend or descend stairs).

[29] Additionally, Air Canada indicates that, if Mr. Scott had been identified by himself or by his travel agent as not self-reliant and requiring an attendant, he would have been requested to have a medical practitioner complete and sign Air Canada's Fitness for Air Travel Form (FFT form). Air Canada states that its records do not indicate that an FFT form was received or processed. Indeed, according to Air Canada, there is no record in the PNR of a request for additional services by Mr. Scott on Flight AC1250 or that his travel agent had made such a request.

[30] In response, Mr. Scott submits that the carrier's booking agent asked many questions, which he truthfully answered, and therefore, if improper codes were listed, or forms were not requested, it was as a result of Air Canada staff's failure to do so.

[31] According to Mr. Scott, his son was acting as his medical attendant and they requested adjoining seats to accommodate Mr. Scott's medical needs. He maintains that, while making the travel arrangements, he informed Air Canada's reservations and special services desk that his son would be acting as his medical attendant. He claims that he made the same seating request at the Edmonton and Montréal airports. Mr. Scott is not clear on what services he requires from an attendant but indicates that he needed his son on Flight AC1250 for assistance with using the toilet.

[32] Air Canada refers to a PNR for another reservation made by Mr. Scott in 2006 and states that, also at that time, Mr. Scott did not identify himself as requiring an attendant. Mr. Scott states that regarding that trip, for which he paid full fare, he had indicated his medical needs and requested to be seated with the three other members of his travelling party. He submits that, at the time of that booking, he was fully independent, which was no longer the case following an injury in January 2006 involving inexperienced airline staff.

[33] While Mr. Scott indicated that he would submit a letter from his family doctor of 32 years, the Agency received an unsigned letter from Dr. Paul Kivi of the Patricia Heights Clinic, who indicates that Mr. Scott has been his patient since March 2008. The doctor stated his belief that Mr. Scott requires an attendant to assist with transferring to and from an airline seat as well as assistance with travelling in an immobilized state to the washroom. The doctor also confirms that Mr. Scott typically uses an "in and out catheter" for his washroom needs.

[34] Air Canada points out that Dr. Kivi was not Mr. Scott's doctor at the time of his travel on September 30, 2007. Air Canada further states that in accordance with its tariffs, a person who is not self-reliant must provide an FFT form completed by their physician. Air Canada notes that this was not done at the time of travel and is still not done today as the letter from the doctor would not suffice.

[35] Mr. Scott submits that he did not withhold information from Air Canada reservation, check-in, in-flight and customer service personnel. He suggests that if there were errors in Air Canada's records, it was not because he hid any information; rather, it was because it was not requested of him. Mr. Scott states that, if asked, it would have been provided, whether it was medical or other information.

[36] The evidence Mr. Scott has provided with respect to the disability-related services he needed on Flight AC1250 suggests that he requires assistance transferring to and from his seat and to make his way to the washroom. This type of assistance, however, is not generally considered to be services of a personal nature and do not demonstrate a need for an attendant. Rather, these services are expected to be provided by air carrier personnel regardless of whether the carrier is operating internationally or domestically.

[37] Although this transfer assistance is typically provided by airline personnel, the Agency accepts that in specific situations, it may not satisfy the disability-related needs of an individual. In such situations, a person with a disability may require an attendant to provide services that would otherwise be provided by the carrier.

[38] This is dependent, however, on the applicant demonstrating that the service offered by the carrier is not equally responsive to the disability-related needs of the applicant, as would be the case were the same services provided by a personal attendant. In the absence of evidence demonstrating the uniqueness of the situation, an applicant will be found to have not demonstrated that they require an attendant or that the services provided by the carrier are insufficient to meet their disability-related needs.

[39] While Mr. Scott's son assisted him with using his catheter on Flight AC1250, the Agency notes, as Air Canada points out, that Mr. Scott neither required nor requested an attendant for his return trip from Cancun on November 2, 2007 as his son returned home early. Air Canada suggests that this early return to Canada is incompatible with what is required of an attendant. Mr. Scott comments that he is offended by Air Canada's statement as he was left in the capable hands of two attendants during his stay in Belize.

[40] The Agency notes that, in order to avoid the problems he encountered on the flight to Cancun, Mr. Scott used an internal catheter on the flight home and his daughter, who lives in Toronto, was contacted in case he encountered any problems. This allowed Mr. Scott to travel unattended on the return flight from Cancun. Moreover, the Agency notes that neither Mr. Scott nor his doctor filed evidence that would suggest that different catheters would adversely affect Mr. Scott's travel. Furthermore, notwithstanding Mr. Scott's position that he was not aware of his upgraded ticket until he boarded the Montréal to Cancun flight, the fact remains that Mr. Scott did not object to being seated in business class, knowing that he would be separated from his son.

[41] There are many factors that detract from Mr. Scott's claim that he required an attendant. The Agency therefore finds that Mr. Scott has failed to demonstrate that he was excluded from equal access to the transportation network because he was not provided with services that met his disability-related needs. More specifically, Mr. Scott has not demonstrated that travel with his son on Flight AC1250 was required to meet his disability-related needs. As such, the Agency will not consider the seating arrangements for Mr. Scott and his son or the purser's behaviour in respect of Mr. Scott's need for assistance from his son. Accordingly, the portion of Mr. Scott's application pertaining to these particular matters is dismissed.

Did Air Canada's refusal to carry Mr. Scott's wheelchair in the onboard storage compartment on Flight AC1250 from Montréal to Cancun constitute an obstacle to his mobility?

[42] Mr. Scott states that because his wheelchair had previously been damaged during air travel when carried as checked luggage, he should have had his wheelchair stowed in the onboard storage compartment on Flight AC1250. Mr. Scott suggests that he made arrangements to have his wheelchair stowed on board when booking his flight, as well as when checking in at both the Edmonton and Montréal airports. Air Canada, however, submits that there was no indication during Mr. Scott's reservation or at any time prior to check-in at the Edmonton airport that he required the stowage of his wheelchair in the cabin. Furthermore, Air Canada submits that having the wheelchair in the cabin is a question of convenience to transfer out of the aircraft and not an absolute requirement.

[43] Air Canada explains that it will accept small mobility aids to be stowed in the cabin when space is available. If a mobility aid is required in flight (e.g. cane, crutches, walker), Air Canada gives priority to the stowage of such aids in the cabin. Air Canada adds that it will accept small manually-operated folding wheelchairs as carry-on baggage, if space permits. Otherwise, they will be stowed in the baggage hold and removed first.

[44] On Mr. Scott's flight from Edmonton to Montréal, Air Canada did stow his wheelchair in the cabin. Air Canada points out that very little sundries were carried on that flight. Air Canada submits that on Flight AC1250 to Cancun, there was very limited space as it was "double catered", meaning that supplies for the flight to Cancun and the return flight from Cancun were loaded in Montréal. Air Canada states that at the time Mr. Scott and his son boarded Flight AC1250, closets and overhead bins were full.

[45] In order to make a prima facie case of obstacle, Mr. Scott must show that he was not provided with a service to meet his disability-related needs.

[46] The Agency recognizes that persons with disabilities who use mobility aids need these aids to access the federal transportation network and require that their mobility aid travel on the same flight to ensure it will be available to them upon arrival at destination.

[47] The Agency has long recognized the importance of services to persons with disabilities when travelling by air and, since 1994, air carriers providing domestic services have been required to provide uniform services to persons with disabilities. Part VII of the Air Transportation Regulations, SOR/88-58, as amended (ATR) sets out the terms and conditions of carriage of persons with disabilities and requires air carriers, if requested at least 48 hours in advance of travel, to provide services to persons with disabilities, which include services related to the transportation of mobility aids. The ATR also require air carriers to make a reasonable effort to provide such services where they are requested less than 48 hours in advance of travel.

[48] While the Agency recognizes that these regulations are only applicable to domestic travel, the underlying principles are equally applicable to international travel.

[49] As reflected in subsection 148(5) of the ATR, the Agency expects that, where space permits, an air carrier will store certain mobility aids, including a manually operated folding wheelchair, in the aircraft cabin. Where this is not possible, as set out in subsection 148(1) of the ATR, the Agency expects air carriers to accept for carriage as priority baggage, without charge and in addition to the free baggage allowance permitted to a passenger, mobility aids, which include manually operated folding wheelchairs. As such, the Agency has recognized in the ATR that there are two reasonable alternatives to meet the accessibility-related needs of persons who travel with mobility aids, i.e., either carrying their mobility aid in the baggage hold as priority baggage or carrying it in the cabin, if space permits. The Agency accepts both these means as providing equal access to the transportation network for persons with disabilities.

[50] The Agency recognizes Mr. Scott's preference to have his wheelchair carried in the cabin and his concerns regarding possible damage to his wheelchair as a result of it being carried in the cargo hold. However, for the international flight in question, contrary to Mr. Scott's assertion, stowage of the wheelchair in the cabin is not a requirement mandated by regulation.

[51] The Agency notes that the Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42, as amended, require Canadian air carriers to ensure that its employees and contractors who may be required to handle mobility aids receive a level of training appropriate to the requirements of their functions with respect to:

1. different types of mobility aids;
2. requirements, limitations and procedures for securing, carrying and stowing mobility aids in the passenger compartment of a vehicle; and
3. proper methods of carrying and stowing mobility aids in the baggage compartment of a vehicle, including the disassembling, packaging, unpackaging and assembling of the mobility aids.

[52] In addition, as reflected in the ATR, the Agency expects that in cases of damaged or lost mobility aids, air carriers will make arrangements to repair or replace them.

[53] In light of the above, the Agency is of the view that, in recognition of space constraints, an air carrier can equally meet the needs of persons with disabilities by carrying their mobility aids in the baggage hold or by carrying them in the cabin. As such, the Agency finds that Air Canada's failure to store Mr. Scott's wheelchair in the cabin on Flight AC1250 due to the lack of space in the cabin did not constitute an obstacle to Mr. Scott's mobility.

Did the damage to Mr. Scott's wheelchair constitute an obstacle to his mobility?

[54] In his application, Mr. Scott suggests that, upon arrival in Cancun, he discovered that his wheelchair had substantial damage and could not be repaired outside Canada and the United States. While Air Canada acknowledges that certain damages to Mr. Scott's wheelchair were noticed, the damage was described in the Damaged Baggage/Lost Property Report as "WHCR torn and scratched" with a further indication that "passenger will continue" and "repair in Canada".

[55] Mr. Scott suggests that, after leaving the airport, he travelled to Playa del Carmen, Mexico, and before 6 p.m., one of the specialty tires had blown out the entire side. His son states that it exploded due to the damage it received on Flight AC1250.

[56] Mr. Scott describes some of the damage: the push rims were "visibly torn", the new wheel bearings were "wobbly", the front casters damaged, and the aforementioned specialty tire torn. He also makes reference to break tips, the plastic coverings over the metal break handle. Regarding the damage to the bearings, Mr. Scott suggests that the bearings can be damaged when the wheelchair is laid on its side and items are placed on top, not allowing the wheels to turn evenly. Regarding the break tips, Mr. Scott states that these were broken. Finally, the removable side guard was missing, which Mr. Scott submits fell off during the time the wheelchair was in the baggage hold.

[57] According to Mr. Scott, the total cost to repair the wheelchair was CAD$606.62, which was incurred following his return to Canada, plus two tires costing US$120 in total, which he replaced in Playa del Carmen. Mr. Scott provided two invoices from Shoppers Home Health Care showing the cost of repairs done to his wheelchair.

[58] Air Canada points out that the invoices indicate repairs to bearings and brake tips and argues that none of these repairs seem to be for "torn and scratched" parts as indicated in the Damaged Baggage/Lost Property Report. Air Canada also notes that one of the invoices is marked with the words "Client has" and questions whether some of the repairs listed in the invoices were actually done by the repair shop. Air Canada also comments on the second invoice, noting that the removable side guard was replaced but with no indication of the type of wheelchair repaired. Lastly, Air Canada states that it will not accept these invoices as proof of repair to the wheelchair used by Mr. Scott on September 30, 2007, without worksheets stating the work done and a confirmation by the repair shop of the parts replaced and the reasons for replacing them. While Mr. Scott has indicated that a submission was to be provided by the repair shop, none was filed with the Agency. According to the invoices supplied by Mr. Scott, Shoppers Home Health Care replaced the wheel, stem, and caster bearings, the break tips, the handrails, two 24" by 1.75" tires, and a removable side guard.

[59] In considering the evidence and assessing whether the applicant has met his burden of proof, the Agency must determine whether the applicant has provided sufficient evidence to support his claim, thereby outweighing the evidence of the respondent. Where an applicant fails to do so, he also fails to meet the burden of proof. With respect to the blown tire and related repairs and replacement parts, the evidence does not conclusively support Mr. Scott's allegation that those parts were damaged during the wheelchair's transportation by Air Canada. Indeed, there is a lapse between the time Mr. Scott received the wheelchair and the time the tire exploded. Similarly, there is no evidence that the missing side guard was caused by the wheelchair being transported by Air Canada. Moreover, there is no mention in the Damaged Baggage/Lost Property Report that a removable side guard was missing. Similarly, regarding the various types of bearings that were replaced, the Agency notes that none of these replacements are linked to scratching and tearing as described in the Damaged Baggage/Lost Property Report. Rather, the labour description on the invoice indicates that the bearings were replaced because they were dry. As such, the Agency finds that Mr. Scott has failed to demonstrate on a prima facie basis that the alleged damage to his wheelchair, as it relates to the blown tire, the missing side guard, and the wheel, stem, and caster bearings, constituted obstacles to his mobility.

[60] Conversely, the invoice's labour description indicates that the handrails were torn. The Agency notes that this is consistent with the Damaged Baggage/Lost Property Report completed by the air carrier's personnel in Cancun on September 30, 2007, which describes the damage to Mr. Scott's wheelchair as "torn and scratched". As such, the Agency finds that the damage to the wheelchair's handrails resulted from its carriage by Air Canada, and that it therefore constitutes an obstacle to Mr. Scott's mobility.

Was the obstacle undue?

[61] Air Canada states that damage to wheelchairs is a rare occurrence; it carries thousands of wheelchairs every year without damage. In this case, Air Canada submits that Mr. Scott has failed to demonstrate that the repairs for which he seeks reimbursement resulted from the alleged damages.

[62] The Agency has long held the view that it is the carrier's obligation to ensure that a mobility aid that is damaged while under its care and custody is promptly repaired. When the person with a disability has the damage repaired, the carrier must reimburse the person for the cost of the repairs to address the damage caused by the carrier.

[63] Air Canada has not provided any evidence to explain how Mr. Scott's wheelchair was scratched and torn, nor did it present any constraints that may have prevented the carrier from addressing this obstacle upon his arrival in Cancun. However, by Mr. Scott's own admission, the wheelchair could not be repaired outside of Canada or the United States. Nonetheless, the Agency finds that Air Canada has not demonstrated that the prevention of the scratching and tearing of Mr. Scott's wheelchair would have resulted in an undue hardship to the carrier. As such, the Agency finds that the scratches and tearing of Mr. Scott's wheelchair constitute an undue obstacle to his mobility.

[64] Consequently, the Agency finds that the handrails are eligible for reimbursement and directs Air Canada to reimburse Mr. Scott the replacement of the handrails, which cost a total of CAD$211.10, as well as two thirds of the labour costs, which amount to CAD$75. As such, the Agency orders Air Canada to pay Mr. Scott a total of CAD$286.10.

Conclusion

[65] In light of the foregoing, the Agency finds that the seating arrangements for Mr. Scott and his son and the purser's behaviour in respect of Mr. Scott's need for assistance from his son did not constitute an obstacle to his mobility. Similarly, the Agency finds that Air Canada's refusal to carry Mr. Scott's wheelchair in the cabin on Flight AC1250 from Montréal to Cancun did not constitute an obstacle. With respect to these issues, the Agency will take no further action.

[66] Regarding the damage to Mr. Scott's wheelchair, the Agency finds that Mr. Scott did encounter an undue obstacle to his mobility. Consequently, the Agency directs Air Canada to reimburse Mr. Scott CAD$286.10 within thirty (30) days from the date of issuance of this decision.

Members

• J. Mark MacKeigan
• Jean-Denis Pelletier, ing./P. Eng.