Decision No. 41-AT-A-2008

January 31, 2008

January 31, 2008

IN THE MATTER OF Decision No. 555-AT-A-2004 dated October 20, 2004 – Florence Fineberg vs Air Canada.

File No. U3570/01-25


BACKGROUND

[1] In its Decision No. 555-AT-A-2004 dated October 20, 2004 (hereinafter the Decision), the Canadian Transportation Agency (hereinafter the Agency) made a determination with respect to an application filed by Florence Fineberg concerning the level of wheelchair assistance and the seating provided when she and her husband travelled with Air Canada from Toronto, Ontario, Canada, to Fort Lauderdale, Florida, United States of America, on February 8, 2001, and from Miami, Florida, to Toronto, Ontario, on March 1, 2001.

[2] As a result of issues arising from Air Canada's corporate restructuring under the Companies' Creditors Arrangement Act, the Agency was unable to process this file from January to August 2005.

[3] On January 30, February 23, and March 16, 2007, Air Canada filed responses to the Decision.

[4] 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, S.C., 1996, c. 10, as amended (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. In view of these changes in the Agency's analytical framework and the respondent's onus of proof, the Agency issued Decision No. LET-AT-A-154-2007 on August 16, 2007, which provided Air Canada an opportunity to submit such further evidence as it deems appropriate to meet its onus of proof concerning the show cause aspects of the Decision, as noted below. In response, Air Canada filed a further submission on September 17, 2007.

[5] In the Decision, the Agency found that the level of wheelchair assistance provided to Mrs. Fineberg at the Toronto Lester B. Pearson International Airport (hereinafter the Toronto airport) on February 8 and March 1, 2001, constituted undue obstacles to her mobility. As such, the Agency directed Air Canada to take the following corrective measures, as set out in the Decision, within thirty (30) days from the date of the Decision, and indicated that it would review the appropriateness of the measures taken:

  • amend its policies to clarify that the use of the "WCHR" code signifies the requirement to provide wheelchair assistance to and from an aircraft at all stages of a passenger's trip, including the transfer to a connecting flight;
  • send a memorandum to its personnel highlighting the experience of Mrs. Fineberg, without including her name or any other information that would permit her to be identified, emphasizing the importance of delivering services, as requested, to persons with disabilities and advising them of the meaning of the "WCHR" code. In addition, the memorandum should: remind booking agents and other personnel who deal with persons with disabilities to enter into a dialogue with passengers who have disabilities to ensure that they understand their customers' particular service needs; urge booking agents to advise persons with disabilities who have requested wheelchair assistance at the time of reservation that a motor cart may be used instead; and, highlight that some persons who use wheelchairs may not be able to use a motor cart safely and comfortably as a result of their disability and, in the event that a passenger indicates that a motor cart would not be suitable, encourage personnel to have this fact noted on the passenger's PNR; and
  • provide a copy of its amended policies and the memorandum to the Agency.

[6] In the Decision, the Agency also made a preliminary finding that Air Canada's policy to not reseat passengers without a disability when passengers with a disability present themselves in time to make use of the seats originally assigned to them constitutes an undue obstacle. In this regard, the Agency directed Air Canada to respond to the following measures within sixty (60) days from the date of the Decision:

  • amend its seating policy to reflect that:
    • that accessible seats, in particular seats specifically assigned to persons to accommodate a disability, should be the last seats released; and
    • that when passengers with a disability present themselves in time to make use of the seats originally assigned to them, passengers without a disability who have been allocated those seats are to be reseated.

[7] If Air Canada was of the opinion that such an amendment was not feasible, it was to clearly explain its reasons why it was of this opinion and identify in detail other proposed methods of remedying the obstacle. The Agency further set out that Air Canada could file with the Agency any other information it considered relevant. The Agency advised that it would finalize its findings upon receipt of Air Canada's response to the direction to show cause and any additional information the Agency may require from Air Canada.

ISSUES

[8] In this Decision, the Agency will address whether:

  • Air Canada has met the three (3) corrective measures ordered in the Decision with respect to the level of wheelchair assistance provided to Mrs. Fineberg at the Toronto airport; and
  • Air Canada has shown cause why the Agency should not find its policy to not reseat passengers without a disability when passengers with a disability present themselves in time to make use of the seats originally assigned to them constituted an undue obstacle to Mrs. Fineberg's mobility.

ANALYSIS AND FINDINGS

Corrective measures

[9] With respect to the above mentioned corrective measures regarding the difficulties Mrs. Fineberg experienced in obtaining wheelchair assistance at Terminal 2 in the Toronto airport, the Agency has considered Air Canada's submissions and the measures taken. The Agency notes that with respect to notations in a traveller's Passenger Name Record (hereinafter PNR), the record which contains information about the passenger, including his or her specific needs, Air Canada has provided evidence regarding the communication of wheelchair requests; implications for PNR use and operations; and how these requests are transmitted to its various personnel actioning the requests.

[10] The Agency also notes that issues raised by Mrs. Fineberg regarding the level of wheelchair assistance provided by Air Canada were addressed by the Agency in decisions issued subsequent to the original Decision in this case, including Decision Nos. 249-AT-A-2007, 128-AT-A-2006, and 663-AT-A-2006.

[11] The Agency is of the opinion that the evidence submitted by Air Canada in response to the corrective measures regarding the level of wheelchair assistance provided to Mrs. Fineberg, in conjunction with measures undertaken by Air Canada, should assist in preventing the recurrence of situations similar to the one experienced by Mrs. Fineberg. As such, the Agency contemplates no further action with respect to this matter.

Show cause

[12] With respect to the direction to show cause regarding the seat assignment on Air Canada Flight No. 908 from Toronto to Fort Lauderdale, the Agency will consider Air Canada's response to the show cause and the undueness of the obstacle finding made by the Agency in the Decision. When making a determination pursuant to section 172 of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle and, if so, whether that obstacle was undue. The following summarizes what the Agency may consider when determining the undueness of obstacles.

Whether the obstacle was undue

[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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.

[18] 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.

Last seats released

[19] Air Canada advises that its current reservation and operations system dates back to the 1980s. As it no longer meets Air Canada's needs, the carrier is developing a new computer reservation system which will provide more flexibility. The first phase of this new system is not expected to be completed until the spring of 2008.

[20] Air Canada states that under the current system, domestic flights are automatically closed for check-in on the check-in side (prior to going through security), at kiosks and on the Web site thirty (30) minutes "before flight". This precludes the possibility of any passenger checking in after that point in time. At the same time, the system goes into "gated" mode where only gate agents can check in passengers without baggage. While in gated mode, all seats remain allocated as booked; however, five minutes later all seats allocated to passengers who have not checked in are released as the flight goes into "closed" mode, at which point standby passengers are checked in. For those passengers who have checked in, but have not shown up at the gate to board the flight within 12 minutes prior to departure, their seats will be manually released. Air Canada states that this "12-minute rule" has been adopted since Mrs. Fineberg's travel in 2001, and that this is the latest it can wait to release seats due to security measures adopted pursuant to the Canadian Aviation Regulations (hereinafter the CAR).

[21] The Agency acknowledges Air Canada's "12-minute rule" and accepts that this is the latest it can wait to release requested seating for all of its passengers who have, at that point, not presented themselves for boarding. However, the Agency notes that this "12-minute rule" is not clearly set out in its Central Information Chapters (i.e., its internal record of policies and procedures; hereinafter CIC). As such, Air Canada is hereby required to clearly reflect its "12-minute rule" in its CIC and file a copy with the Agency within thirty (30) days of the date of this Decision.

Reseating

[22] The Agency recognizes that Air Canada's check-in closure policies and procedures are designed to facilitate the timely departure of its aircraft and, as submitted by Air Canada, to ensure on time performance essential to operating a network schedule. The Agency accepts that Air Canada's check-in closure policies are rationally connected to this legitimate objective, and that they were adopted in good faith with a view to achieving this objective.

[23] Air Canada explains that, consistent with its policy, it did not reseat the passengers who had been assigned the Finebergs' seats as reseating passengers in such situations would cause delays that would snowball if passengers were continually reseated once onboard the aircraft.

[24] Air Canada submits that when lengthy, "creeping" delays are experienced, decisions must be made to best accommodate its passengers. Air Canada explains that during irregular flight operations, there is often a "trickle run" of passengers arriving at the gate, and at some point a decision is made not to accept any additional passengers so the flight can depart; the remaining passengers are then rebooked on the next available flights. The carrier adds that moving passengers at the last minute who have already been seated can be extremely disruptive. Air Canada states that the CAR require passengers to be seated with their baggage stowed, seat-belt fastened and chair and table in the upright position prior to taxiing. Air Canada further submits that, in the case at hand, because the aircraft was waiting for permission to proceed to the deicing bay, "every minute counted". In addition, Air Canada notes that the Finebergs had confirmed seats meeting their needs on their rebooked flight and, had their original flight not been delayed, their needs would have been met. Air Canada submits that as the Finebergs' situation is an isolated incident occurring in unusual circumstances, it should not serve as a basis for changing procedures which "otherwise appear to be adequate".

[25] Regarding the amount of time available to reseat passengers in the case at hand, as noted by the Agency in the Decision, Mrs. Fineberg sat in her seat for four and a half hours prior to deicing and departure, while numerous other aircraft were deiced, during which time passengers stood up and waited in line to use the lavatories.

Best accommodation

[26] The Agency is of the opinion that the best accommodation for Mrs. Fineberg is the seat that best suits her individual needs; namely that which she requested, was preassigned by Air Canada, but did not receive because it was released just prior to boarding due to the late arrival of her previous flight. The best accommodation in this case remains the seat that Mrs. Fineberg prerequested. Notwithstanding, the Agency notes that Canadian safety regulations require passengers to be seated with their baggage stowed prior to departure. Furthermore, the Agency accepts Air Canada's position that reseating passengers during the few minutes prior to departure may be disruptive and may have a snowball effect when passengers appear for their flight at the last minute. The Agency also notes Air Canada's position that, in the Fineberg's case, every minute counted because the aircraft was waiting for permission to taxi to the deicing bay. In light of these operational and safety considerations, the Agency finds, in the case at hand, that it would have been unreasonable, to the point of undue hardship, to have expected Air Canada to reseat Mrs. Fineberg as she was boarding the flight.

[27] Having found that providing the best accommodation, as identified above, would have constituted undue hardship on Air Canada, the next step is to determine if Air Canada demonstrated that it provided the next best accommodation up to the point of undue hardship.

Next best accommodation

[28] As noted in the Decision, the evidence on file showed that, after boarding, there was a delay of over four hours prior to takeoff, and that, during this time, passengers were not required to remain seated, as many passengers stood in line to use the aircraft lavatories. In light of this, the Agency is of the opinion that the next best accommodation would have been to have reseated Mrs. Fineberg in a seat that would have met her needs. However, Air Canada filed no evidence to indicate that any such effort was made. As such, the Agency is of the opinion that Air Canada has not demonstrated that to have reseated Mrs. Fineberg after boarding would have been unreasonable or impracticable to the point of undue hardship. The Agency, therefore, finds that the obstacle posed by Air Canada's policy not to reseat passengers without a disability when passengers with a disability present themselves in time to make use of the seats originally assigned to them is undue.

CONCLUSION

[29] In light of the foregoing, with respect to the corrective measures regarding the level of wheelchair assistance provided to Mrs. Fineberg at the Toronto airport on February 8, and March 1, 2001, the Agency contemplates no further action in this matter.

[30] With respect to the seating assigned to Mrs. Fineberg for her flight from Toronto to Fort Lauderdale, the Agency finds that the obstacle posed by Air Canada's policy not to reseat passengers without a disability when passengers with a disability present themselves in time to make use of the seats originally assigned to them is undue. As a result, Air Canada is hereby required, within thirty (30) days from the date of this Decision, to:

  • clearly reflect its "12-minute rule" in its CIC and file a copy with the Agency; and
  • develop a policy for inclusion in its CIC which requires its personnel to undertake an assessment, on a case-by-case basis, with a view to remedying situations where a passenger with a disability is not assigned the seat that would best accommodate his/her needs, by reseating another passenger, either prior to or after take-off, at a time when it would be safe to do so as in the deicing delay experienced during this flight, and with an acceptable level of disruption to other passengers and in-flight operations. Air Canada must file with the Agency confirmation that it has done so and informed its personnel accordingly.

Members

  • Gilles Dufault
  • Beaton Tulk
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