Decision No. 40-AT-A-2008

January 30, 2008

Follow-up - Decision No. 190-AT-A-2008

January 30, 2008

APPLICATION by Leandra Giancola on behalf of Vincenzo Falabella pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended, regarding the level of boarding assistance provided by Air Canada at the Newark Liberty International Airport while travelling to Ottawa, Ontario, Canada on January 8, 2007 and the manner in which Mr. Falabella was treated by the carrier at the Newark Airport.

File No. U3570/07-5


APPLICATION

[1] On February 23, 2007, Leandra Giancola on behalf of Vincenzo Falabella filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. On March 23, 2007, Ms. Giancola filed a letter that provided Mr. Falabella's consent to act on his behalf in the proceedings with the Agency.

[2] Air Canada requested and was granted, by Agency Decision No. LET-AT-A-76-2007 dated April 12, 2007, an extension until April 17, 2007 to file its answer, which was received on April 17, 2007.

[3] The Supreme Court of Canada issued a Judgement on March 23, 2007 in respect of the matter Council of Canadians with Disabilities v. Via Rail Canada Inc. 2007, SCC 15 (hereinafter the Judgement) which relates to the Agency's adjudication of complaints under the accessible transportation provisions in Part V of the Canada Transportation Act (hereinafter the CTA). This Judgement has implications for the Agency in its consideration of this case, as a reverse onus of proof has now been imposed on respondent transportation service providers to prove, on a balance of probabilities, that any obstacle that is established in the application is not undue.

[4] In light of these changes in the Agency's analytical framework and the respondent's onus of proof, the Agency issued Decision No. LET-AT-A-142-2007 on July 31, 2007. In that Decision, the Agency found that before rendering its decision in the above-noted application, it would be appropriate to give Air Canada an opportunity to submit such further evidence as it deems appropriate to meet its onus of proof. In addition, the Agency determined that further information and clarifications were required from Air Canada. Accordingly, Air Canada was provided with thirty (30) days to produce further evidence and to respond to the Agency's interrogatories. In response to Decision No. LET-AT-A-142-2007, Air Canada requested a 30-day extension to file its answer, which was granted by the Agency. Air Canada filed its answer on September 28, 2007 and Ms. Giancola filed her reply on October 9, 2007.

[5] Pursuant to subsection 29(1) of 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 January 31, 2008.

ISSUE

[6] The issue to be addressed is whether the following constituted undue obstacles to Mr. Falabella's mobility and, if so, what corrective measures should be taken:

  1. The level of boarding assistance provided when attempting to travel with Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc. carrying on business as Air Canada Jazz (hereinafter Air Canada Jazz) on Flight No. AC8643 from the Newark Liberty International Airport (hereinafter the Newark airport) to Toronto on January 8, 2007.
  2. The manner in which Mr. Falabella was treated by Air Canada at the Newark airport.

FACTS

[7] Mr. Falabella has paraplegia. He uses a wheelchair and requires assistance when travelling.

[8] Mr. Falabella was scheduled to travel with his relatives, including one acting as his attendant, from Newark to Toronto on Air Canada Jazz Flight No. AC8643 on January 8, 2007. Shortly prior to departure, the jet bridge experienced a short circuit which rendered it inoperable. Consequently, all passengers were required to proceed outside to the tarmac to board the aircraft.

[9] Air Canada personnel escorted Mr. Falabella, who was accompanied by one of his cousins, to the ground level by elevator and onto the tarmac. The ramp agents tried to board Mr. Falabella using Air Canada's Passenger Access Lift unit (hereinafter the PAL unit), a lift device that raises a passenger in a wheelchair to the aircraft door and allows for level-entry boarding. However, the PAL unit was inoperable. Consequently, Air Canada personnel offered to board Mr. Falabella using a Washington chair, a type of boarding chair that requires manual lifting of the passenger up the aircraft staircase. Mr. Falabella refused this method of boarding. As a result, the travel party elected not to travel on Flight No. AC8643. Air Canada offered to accommodate Mr. Falabella and his attendant in a hotel room for the night and rebooked everyone on a flight departing at 6:20 a.m. the following morning. Due to the late hour at which the hotel accommodations were confirmed, Mr. Falabella did not accept the hotel booking and he and his relatives decided to spend the night in the airport and they returned to Toronto the next morning.

ANALYSIS AND FINDINGS

[10] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

[11] An application must be filed by a person with a disability or on behalf of a person with a disability. In the present case, the Agency is satisfied, based on Mr. Falabella's personal information, as set out in the Facts section of this Decision, that he is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[12] 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 determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide 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.

The Agency's approach to the determination of obstacles

[13] Under Part V of the CTA, the mandate of the Agency is to eliminate undue obstacles to the mobility of persons with disabilities from 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. Obstacles or barriers to the mobility of persons with disabilities may result from, for example, federal transportation service providers' facilities; equipment; and/or policies, procedures, or practices; or a failure by transportation service providers to comply with such and/or to take positive action to enforce compliance with policies, procedures and practices, including a failure to provide appropriate training to employees and contractors.

[14] In considering whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency generally will look to 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.

[15] An individual is not required to have experienced difficulties in travel in order to make an application to the Agency under Part V of the CTA such that the design of facilities and equipment or the proposed application of a policy in the future may trigger its jurisdiction.

[16] 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 and, thus, have a negative impact on the mobility of the person.

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

[17] Should the Agency make a finding that a feature of the federal transportation network represents an obstacle to some persons with disabilities, it must then proceed to make a determination of whether that obstacle is undue as it is only upon finding that an obstacle is undue that a transportation service provider may be ordered to take corrective measures to address the obstacle.

[18] In this way, once the applicant has established in the application 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 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;
  • 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,
  • 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.

[19] The transportation service provider must show that reasonable accommodation has been provided, meaning up to the point of undue hardship. What constitutes "reasonable accommodation" in each case is a matter of degree and depends on a balancing of the interests of persons with disabilities with those of the transportation service provider in the circumstances of the case, including the significance and recurrence or continuing nature of the obstacle and the impact of the obstacle on persons with disabilities as well as the transportation service provider's commercial and operational considerations and responsibilities.

[20] In most cases, there will be a range of alternatives available to address the needs of a person with a disability or a group sharing the same characteristics and, in each case, the most appropriate accommodation will be one that respects the dignity of the individual, meets individual needs, and promotes the independence, integration and full participation of persons with disabilities within the federal transportation network. In the end, reasonable accommodation will be the most appropriate accommodation which would not cause undue hardship to the transportation service provider.

[21] In order to establish undue hardship, a transportation service provider must show that it has considered and determined that there are no reasonable alternatives to better accommodate the person with a disability affected by the obstacle and that there are constraints that make the removal of the obstacle unreasonable, impracticable or, in some cases, impossible. Examples of constraints on respondent transportation service providers which the Agency may consider in its determination of undue hardship are those related to structural issues, safety issues, operational issues and financial/economic issues and include 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 constraints 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.

[22] It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the constraints 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 concepts of undueness and undue hardship.

[23] The Agency will next determine whether the situations encountered by Mr. Falabella constituted obstacles to his mobility and if so whether the obstacles were undue.

The case at hand

1. Did the level of boarding assistance constitute an obstacle to Mr. Falabella's mobility?

[24] There is no dispute that prior to travel Ms. Giancola conveyed Mr. Falabella's disability-related needs to Air Canada to ensure that he would receive the assistance he required when boarding and deplaning. The Agency also accepts that Air Canada assured Ms. Giancola that the services required would be in place to accommodate Mr. Falabella's needs.

[25] Upon arriving at the Newark airport, Mr. Falabella expected to board the aircraft using the jet bridge with the rest of the passengers. There is also no dispute that when both the jet bridge and the PAL unit malfunctioned, Air Canada offered to board Mr. Falabella using a Washington chair. Mr. Falabella found this method undignified and refused to be boarded in this manner, stating that he did not wish to be treated like "a sack of potatoes." Ms. Giancola submits that Air Canada's proposal to manually lift Mr. Falabella up a staircase onto the aircraft using a Washington chair in cold windy weather was preposterous and asserts that this is a dangerous method of boarding which would entail unacceptable risk to Mr. Falabella.

[26] In response, Air Canada indicates that the jet bridge is the property of Newark's Port Authority and its failure was beyond Air Canada's control. Air Canada is of the opinion that the absence of the jet bridge and the PAL unit did not constitute an obstacle to Mr. Falabella's mobility as he was offered an alternate method of boarding the aircraft. Air Canada maintains that standard procedures were followed and Mr. Falabella could have safely boarded the aircraft using the Washington Chair and completed his travel.

[27] The Agency is of the opinion that persons with disabilities should be able to access aircraft in a dignified and safe manner and that bodily lifting persons with disabilities should be done only when other boarding methods are not available or serviceable and when the passenger agrees to be boarded in this manner. The Agency accepts that the failure of the airport's jet bridge created a barrier to Mr. Falabella's mobility as he was unable to board the aircraft in the manner he had expected. Although Mr. Falabella agreed to board the aircraft using Air Canada's PAL unit, its failure created a further barrier to his mobility.

[28] The Agency is satisfied that Ms. Giancola acting on behalf of Mr. Falabella has established that the level of boarding assistance provided by Air Canada constituted an obstacle to his mobility.

Did the level of boarding assistance constitute an undue obstacle to Mr. Falabella's mobility?

[29] Having found that the level of boarding assistance constituted an obstacle to Mr. Falabella's mobility, the Agency will now determine whether this obstacle was undue. The onus now shifts to Air Canada to prove on a balance of probabilities that it could not have accommodated Mr. Falabella without incurring undue hardship.

[30] The first question to be answered is whether the source of the obstacle is rationally connected to a legitimate objective. In the present case, the source of the obstacle can be identified as the boarding equipment used by Air Canada. The Agency accepts that due to the failure of the mechanical boarding equipment, Mr. Falabella, unlike the other passengers, was unable to board his intended flight in a manner that he considered safe and dignified. The Agency recognizes that Air Canada has policies, procedures and specialized equipment in place to provide greater accessibility to all of its passengers, including those with disabilities. Therefore, the Agency accepts that Air Canada's objective to provide accessibility is rationally connected to its public function as an air transportation service provider.

[31] The second question is whether Air Canada's policy of providing accessible services and equipment were adopted in good faith. Based on common sense, the Agency finds that there can be no doubt that the carrier has satisfied this requirement and accepts that Air Canada had no other motive than to ensure that passengers with disabilities have access to the aircraft.

[32] The third question is whether the standard of accessibility chosen by Air Canada was reasonably necessary to accomplish its objective. To meet this requirement, Air Canada must show that it could not provide the requisite level of boarding assistance that the situation required and that it was impossible to further accommodate Mr. Falabella without incurring undue hardship.

The best accommodation available

[33] The Agency is of the opinion that the best accommodation available to Mr. Falabella was to board the aircraft using the jet bridge. The Agency is of the opinion that carriers should use mechanical boarding devices such as jet bridges, where possible, to board and deplane aircraft.

[34] The Newark airport, a relatively large airport, has adopted the preferred standard of accessibility and uses jet bridges that allow all passengers safe and easy access to board and disembark an aircraft without having to go outside. Jet bridges also provide passengers with disabilities, such as Mr. Falabella, the ability to board the aircraft along with other passengers by offering a safe, level-entry boarding option.

[35] In the present case, the evidence demonstrates that at the time of Mr. Falabella's scheduled departure, there was a jet bridge malfunction. The nearest gate was already occupied by another aircraft so it was not possible to use an alternate jet bridge. Air Canada submits that the jet bridges are the property of the Newark Port Authority and that the maintenance and repair of this equipment are not within Air Canada's control. Based on the evidence provided, the Agency accepts that the jet bridge had been operational until shortly before it short-circuited and that the failure of this equipment was unforeseen. Although the jet bridge offered the best accommodation, the Agency finds that, due to unforeseen circumstances, it was impossible for Air Canada to provide this service at the time it was required by Mr. Falabella.

[36] Having found that providing the best accommodation would have created undue hardship on Air Canada, the next step is to determine if Air Canada demonstrated that it provided the next best accommodation available up to the point of undue hardship.

Next best accommodation

[37] Given the fact that the jet bridge was not functioning, the Agency finds that the PAL unit offered the next best form of accommodation. PAL units provide passengers with disabilities the ability to board an aircraft in an autonomous, safe manner and permit level-entry boarding by elevating the passenger in a wheelchair from ground level to a height that is level with the aircraft entrance. This method of boarding removes any requirements for manually lifting a passenger up a staircase. The Agency notes that this method of boarding would have been acceptable to Mr. Falabella. Air Canada states that although it offered this method of boarding to Mr. Falabella, when its agents attempted to use this equipment it would not start. Air Canada describes the failure of the PAL unit as momentary and unforeseen.

[38] Contrary to Air Canada's position, Ms. Giancola submits that maintenance crew advised the travel party that the PAL unit had been broken for two months prior to the incident and that this matter had been brought to Air Canada's attention. Ms. Giancola asserts that Air Canada could have avoided the incident by ensuring that its equipment was kept in working order.

[39] Notwithstanding the above-noted divergence in the parties' positions, the evidence on file demonstrates that Air Canada was aware that the PAL unit was malfunctioning a few days before Mr. Falabella's scheduled departure. The Agency notes that in a submission dated September 28, 2007, Air Canada states that one of its Customer Service agents found the PAL unit inoperable a few days before the incident. This submission also included a statement from its agent who explained that a few days before the incident took place he had seen maintenance people around the PAL unit and based on his observation he assumed that the PAL unit was undergoing repair.

[40] During its investigation, to establish the onset and length of time that the PAL unit was inoperable, the Agency required Air Canada to file as evidence its policies, procedures and maintenance records concerning the PAL unit at the Newark airport. Initially, Air Canada stated that no log book or maintenance records were kept. However, in a later submission, Air Canada confirmed that it owns the PAL unit in question. Air Canada filed maintenance records and explained that the unit is maintained by a third party, Oxford Technologies.

[41] In reviewing the maintenance reports filed, the Agency concludes that the PAL unit was in working order two months prior to Mr. Falabella's incident and that the equipment was also in a serviceable condition six weeks following the incident. However, it is evident that the PAL unit was inoperable on the day of Mr. Falabella's travel and Air Canada's submission dated September 28, 2007 confirms that there was a problem with the PAL unit a few days before Mr. Falabella's travel date. The Agency notes that although it was provided with a full opportunity to file documentation to support its position of the events that transpired, Air Canada has not demonstrated that it promptly contacted Oxford Technologies to repair the PAL unit when it first became aware of the equipment malfunction, nor has it explained why a prompt repair of the PAL unit would have caused Air Canada undue hardship.

[42] Based on the foregoing, the Agency does not accept Air Canada's position that the failure of the PAL unit was momentary and unforeseen. The Agency concludes that Air Canada lacks adequate policies and procedures to ensure the immediate reporting and prompt repair of equipment malfunctions such as that which occurred with the PAL unit. Had such policies and procedures been in place at the time of Mr. Falabella's travel, the situation he experienced might have been avoided.

[43] With respect to the second best accommodation available, the Agency finds that, on a balance of probabilities, Air Canada has not demonstrated that it carried out due diligence with respect to the maintenance and repair of its PAL unit at the Newark airport, nor has it provided any evidence to show that it would have incurred undue hardship had it done so. Therefore, the Agency finds that Air Canada has not demonstrated that it was impossible to further accommodate Mr. Falabella with the next best accommodation without incurring undue hardship. Had Air Canada satisfied the Agency that the failure of the PAL unit was momentary, unforeseen and beyond its control, the Agency might have been satisfied that it was impossible for Air Canada up to the point of undue hardship to provide this service at that time.

[44] The Agency recognizes that following the failure of the PAL unit, Air Canada acted properly in offering to board Mr. Falabella using a Washington chair. While boarding an aircraft using a Washington chair may not be considered the preferred method of boarding, the Agency recognizes that it is commonly used where other facilities are not available. The Agency notes that Air Canada's own policy advises its personnel that the use of a Washington chair is dangerous for all involved and should only be considered if it is the only option available. Air Canada's training manual further advises that the customer must be asked if he/she agrees to manual lifting before performing it. The Agency notes that Air Canada's training manual does not provide procedures to be followed in cases where the passenger does not agree to be boarded in this manner.

[45] The Agency also acknowledges that, in the present case, when Mr. Falabella refused to be boarded using a Washington Chair, Air Canada personnel acted appropriately by rebooking him and his attendant on the next available flight and offering hotel accommodation.

[46] In light of the above, the Agency finds that Air Canada has failed to prove on a balance of probabilities that it was impossible to further accommodate Mr. Falabella without incurring undue hardship. Therefore, the Agency finds that the level of boarding assistance provided to Mr. Falabella constituted an undue obstacle to his mobility.

[47] The Agency will now consider the second issue raised by the applicant.

2. Did the manner in which Mr. Falabella was treated by Air Canada constitute an obstacle to his mobility?

[48] As the evidence of the parties concerning the events that occurred on January 8, 2007 is often contradictory, the Agency must decide whether Ms. Giancola acting on behalf of Mr. Falabella has provided sufficient evidence to outweigh the opposing evidence presented by Air Canada.

[49] In any dispute, it is important to determine which party has the obligation to prove a point in contention. In civil matters, the general rule is that the applicant bears a legal burden of persuasion and is therefore required to establish, on the balance of probabilities, that is, on the preponderance of the evidence, that his/her version is the correct one. This principle is equally applicable to allegations of obstacles under Part V of the CTA. The onus is therefore on Ms. Giancola to satisfy the Agency that her version of events is more probable than Air Canada's version.

[50] With respect to the manner in which Mr. Falabella was treated, Ms. Giancola alleges that rude comments were made to Mr. Falabella by an Air Canada agent. Ms. Giancola further asserts that Air Canada did not arrange hotel accommodations for Mr. Falabella in a timely and respectful manner and that these actions caused Mr. Falabella unnecessary stress which negatively impacted on his travel experience.

[51] According to Ms. Giancola, after refusing to board the aircraft using a Washington Chair, Mr. Falabella was exposed to cold weather on the tarmac. Ms. Giancola explains that due to the cold and stress of the situation, Mr. Falabella experienced leg convulsions. Ms. Giancola alleges that at the time of the incident, an Air Canada agent made insensitive remarks and accused Mr. Falabella of lying about his condition. Ms. Giancola submits that the agent told Mr. Falabella to stand and walk up the flight of stairs as he could obviously move his legs. Ms Giancola states that she found the agent's remarks, which she characterized as an "act of rudeness," beyond comprehension and extremely insensitive.

[52] Air Canada vigorously denies that Mr. Falabella was treated with any disrespect or that the alleged words were said by its personnel. The carrier further submits that the three passenger agents who interacted with Mr. Falabella had all received Air Canada's Serving Customers with Disabilities training which its personnel must undertake every two years. Air Canada filed a copy of its training manual entitled The Way to Go which includes in its objectives, respectful attitudes and appropriate communication.

[53] Regarding Air Canada's statement pertaining to its staff having undergone the appropriate training, training is not in itself a guarantee and the Agency recognizes that agents may act contrary to how they have been trained. However, faced with different versions of events, the Agency finds that there is insufficient evidence to conclude that the alleged comments were made. Without supporting evidence, the Agency is not prepared to accept those comments as fact. As a result, the Agency finds that, on a balance of probabilities, Ms. Giancola has not discharged the burden of proof regarding the alleged comments made to Mr. Falabella by an Air Canada agent.

[54] With respect to the carrier's approach to arranging hotel accommodations for Mr. Falabella in a timely and respectful manner, Ms. Giancola submits that this process took approximately one hour and that a hotel and shuttle were not secured until 11:00 p.m. Ms. Giancola submits that Air Canada only offered hotel accommodations to Mr. Falabella and his attendant and she expressed frustration that the carrier had not offered to accommodate everyone in their travelling party. Ms. Giancola adds that the Air Canada agent assisting them would have been more efficient had she not been preoccupied with finding accommodations that offered a free shuttle service. Ms. Giancola states that by the time a hotel was offered, Mr. Falabella and her relatives were exhausted and extremely fed up. She explains that the long wait was very tiring for Mr. Falabella and she is of the view that Air Canada should review its treatment of disabled passengers in this respect.

[55] In response, Air Canada confirms that following Mr. Falabella's refusal to board the aircraft using the Washington Chair, Mr. Falabella and his attendant were rebooked on a flight departing the next morning, and offered hotel accommodations with round-trip shuttle service for the forced overnight. Air Canada states that it had no legal obligation to provide accommodation to Mr. Falabella's relatives as they voluntarily elected not to travel. However, as a gesture of goodwill, Mr. Falabella's relatives were rebooked for travel on the same flight the next morning.

[56] Air Canada acknowledges that it "took some time" to secure the "specialized services" of booking an accessible hotel room and shuttle. Air Canada submits that on the evening of the incident, January 8, 2007, due to major disruptions in flights to and from the United States of America, many of the hotels around the Newark airport were already booked. Air Canada also explains that its agents at the Newark airport are provided with a list of hotels around the airport. While certain hotels indicate that they offer accessible rooms, an advance inquiry is necessary to ensure that an accessible room is available. According to Air Canada, its representative deployed her best efforts to find a wheelchair-accessible hotel room to accommodate Mr. Falabella.

[57] Air Canada submits that the booking process was further delayed due to the actions of the Giancola group. The carrier states that the group engaged its telephone line and also submits that because the Giancola group expressed dissatisfaction by being loud and using unacceptable language toward Air Canada personnel, its agents called the authorities on two occasions to diffuse the situation. Air Canada supported this position with a witness statement from one of its Customer Service agents. In this statement, the agent described how an Air Canada agent worked tirelessly to find the passengers an accessible hotel room. The agent also described the behaviour and language of the Giancola group as appalling.

[58] While Ms. Giancola agrees that her group had engaged the telephone lines, she questions why one of the three agents accompanying her party at gate 12 could not have left to use a nearby telephone while she called her family in Toronto to explain that they would not be arriving on the intended flight. Ms. Giancola denies that her party used unacceptable language towards Air Canada personnel and indicates that on one of the two occasions the authorities were called at her party's request.

[59] Ms. Giancola states that due to the late hour at which Air Canada was able to confirm the hotel and shuttle, it did not make sense to make the journey to the hotel to get only a few hours of sleep and then return to the airport at 4:00 a.m. to catch the 6:20 a.m. flight. Therefore, Mr. Falabella spent an uncomfortable night in the airport. Ms. Giancola asserts that, had the situation been dealt with in a more efficient and courteous manner, it would not have been so late and a hotel room would have been fine.

[60] Notwithstanding the different versions of events, the Agency acknowledges that the delay in finding an accessible hotel created an unfortunate travel experience for Mr. Falabella. The Agency acknowledges that spending the night in the Newark airport must have been very tiring and uncomfortable for Mr. Falabella, however, the group chose to stay in the airport rather than go to the hotel. While the Agency is of the opinion that air carriers have a responsibility to accommodate and meet the needs of passengers with disabilities in a respectful and timely manner, in weighing the evidence in the present case, the Agency finds it reasonable to accept Air Canada's explanation that the specialized service of securing an accessible hotel booking and shuttle took some time.

[61] While Ms. Giancola raises concerns with respect to the carrier's efficiency in this endeavour, the Agency is of the opinion that due to the circumstances, Air Canada's responsibility to provide hotel assistance began only once Mr. Falabella refused to board the aircraft. The Agency accepts Air Canada's explanation that due to a combination of factors including the late hour, the disruption of flights and the engagement of its telephone line by the applicant's party, the process took some time. In considering the evidence filed, the Agency is of the opinion that the actions of Air Canada's reservations agent were consistent with Air Canada's policy and were reasonable given the circumstances.

[62] Although Ms. Giancola asserts that Air Canada's personnel treated Mr. Falabella with a lack of sensitivity and was unaccommodating, Air Canada has filed evidence to the contrary. As a result, the Agency finds that Air Canada provided Mr. Falabella and his attendant with the offer of an accessible hotel accommodation in an adequate manner.

[63] In light of the above, the Agency finds that the manner in which Mr. Falabella was treated did not constitute an obstacle to his mobility and as a result the Agency will not further investigate this matter.

CONCLUSION

[64] In light of the Agency's finding that Air Canada's failure to provide an adequate level of boarding assistance constituted an undue obstacle to Mr. Falabella's mobility, Air Canada is required to take the following corrective measures within thirty (30) days from the date of this Decision:

  • Provide confirmation to the Agency that it has revised its policies and procedures regarding the maintenance of its PAL unit at the Newark airport to ensure that the PAL unit is kept in working order by ensuring that regular maintenance checks are performed and that its personnel promptly report equipment malfunctions and schedule prompt repairs.
  • Issue a bulletin to all of Air Canada personnel at the Newark airport who deal either directly or indirectly with the provision of services to passengers with disabilities. The bulletin shall highlight the incident experienced by Mr. Falabella, without identifying his name, and emphasize the importance of reporting equipment failures to avoid similar incidents in the future.

[65] Air Canada must provide a copy of its amended policies and procedures along with a copy of the bulletin to the Agency within the above-noted thirty (30) days.

Members

  • Beaton Tulk
  • Raymon J. Kaduck
Date modified: