Decision No. 444-AT-A-2005

July 11, 2005

File No. U3570/05-3

---

APPLICATION

[1] On January 10, 2005, Suzanne Corbeil filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. On January 17, 2005 the Agency provided American Airlines, Inc. (hereinafter American) with a copy of the application and requested that American provide specific information to the Agency.

[2] On February 17, 2005, American filed its answer to the application. On February 18, 2005, Ms. Corbeil filed her reply.

[3] In its Decision No. LET-AT-A-79-2005 dated March 10, 2005, the Agency required American to provide the information that had been requested and also required both parties to provide further information.

[4] On March 11, 2005, Ms. Corbeil provided the requested information to the Agency. On March 23, 2005, American requested an extension until March 31, 2005 to provide the information requested by the Agency. In its Decision No. LET-AT-A-92-2005 dated March 29, 2005, the Agency provided American with an extension until March 31, 2005 to respond to Decision No. LET-AT-A-79-2005. American provided the information to the Agency on April 1, 2005 and filed supporting documents on April 4, 2005.

[5] On April 7, 2005, Ms. Corbeil forwarded to the Agency a copy of a letter addressed to her from her travel agent, setting out the travel agent's interpretation of events in this case.

[6] On May 7, 2005, Ms. Corbeil provided her comments to the carrier's response to Decision No. LET-AT-A-79-2005.

[7] On May 17, 2005, the travel agent's submission and Ms. Corbeil's comments were forwarded to American.

[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 July 11, 2005.

PRELIMINARY MATTERS

[9] Although American's answer to the application and the information provided in response to Decision No. LET-AT-A-79-2005 were filed after the prescribed deadlines, the Agency, pursuant to sections 4 and 5 of the Canadian Transportation Agency General Rules, SOR/2005-35, respectively (hereinafter the Rules), accepts the submissions as being relevant and necessary to its consideration of this matter.

[10] In addition, pursuant to section 4 of the Rules, the Agency accepts the travel agent's letter as being relevant and necessary to its consideration of this matter.

ISSUE

[11] The issue to be addressed is whether the difficulties Ms. Corbeil encountered while making travel arrangements constituted an obstacle to her mobility and, if so, what corrective measures should be taken.

FACTS

[12] Ms. Corbeil has spina bifida, uses an electric wheelchair and has ostomy bags. She is 4 feet, 6 inches tall and her legs are 20 inches long. When travelling, an attendant addresses her personal needs. Ms. Corbeil booked a cruise package through a travel agency, Sears Travel, which made the reservation for the cruise and air travel with a cruise line. Ms. Corbeil was confirmed to travel on December 17, 2004 from Ottawa to Chicago with American Eagle Airlines, Inc. (hereinafter American Eagle), with a connecting flight with American to San Diego. She was booked to return with another carrier from Fort Lauderdale to Ottawa, after the cruise.

[13] Ms. Corbeil informed the travel agency at the time of reservation of her need for transfer assistance in the aircraft, as well as the need to use pillows and blankets to elevate her legs during travel.

[14] On December 15, 2004, Ms. Corbeil received a telephone call from American's special assistance co-ordinator who inquired about Ms. Corbeil's needs regarding her planned trip with American Eagle and American on December 17, 2004. Following this telephone conversation and a subsequent telephone conversation between the special assistance co-ordinator and the travel agent, at which time both issues were raised regarding Ms. Corbeil's needs and American's ability to board her on its American Eagle flight, arrangements were made by the travel agent for Ms. Corbeil to travel with another carrier, and Ms. Corbeil's flight was eventually cancelled by American as Ms. Corbeil did not present herself for the American flight on December 17, 2004.

POSITIONS OF THE PARTIES

Ms. Corbeil

[15] Ms. Corbeil indicates that her travel agent called American a number of times and e-mailed and faxed the carrier the details of the required services.

[16] Ms. Corbeil states that, on December 15, 2004, the special assistance co-ordinator requested information from her as to why her legs needed to be raised so that the special assistance co-ordinator could talk to American's doctor. Ms. Corbeil explained that she has ostomy bags and that her legs need to be elevated so that the ostomy bags do not leak. Ms. Corbeil alleges that the special assistance co-ordinator then became abusive and yelled at her, telling Ms. Corbeil that she could crash the plane and endanger the other passengers if the ostomy bags were to leak. Ms. Corbeil submits that she advised the special assistance co-ordinator that the only thing that could happen was that she would be uncomfortable, but the special assistance co-ordinator insisted that she purchase three seats for her legs and also advised her to stay home.

[17] Ms. Corbeil states that her conversation with the special assistance co-ordinator was very demeaning and adds that the special assistance co-ordinator was very condescending. Ms. Corbeil indicates that she was very embarrassed and did not want to go on with the vacation she had booked.

[18] Ms. Corbeil submits that the special assistance co-ordinator advised the travel agent that if Ms. Corbeil absolutely wanted to travel with American, she would need to provide American with a medical statement indicating that she was stable for air travel and that she would not need any extraordinary assistance. In this regard, Ms. Corbeil adds that she was advised by the special assistance co-ordinator that she could not guarantee anything and that she could still be denied boarding.

American

[19] American advises that, according to its records, a "wheelchair request" was made by Ms. Corbeil's travel agent on December 15, 2004. American states that the special assistance co-ordinator spoke to Ms. Corbeil on December 15, 2004, who stated that she needed two blankets and ten pillows in order to elevate her legs. American states that the special assistance co-ordinator informed Ms. Corbeil that pillows were not provided on flights, and advised that she could use her carry-on baggage to elevate her legs, but that it would need to be stowed during take-off and landing. American submits that, at this point, Ms. Corbeil indicated that her legs had to be elevated at all times, otherwise her ostomy bags would leak. The special assistance co-ordinator indicates that she advised Ms. Corbeil about the possibility of purchasing an additional seat in order to keep her legs elevated. She also made arrangements for an aisle seat and for connection assistance in Chicago.

[20] American advises that at that point in time, the special assistance co-ordinator was under the impression that Ms. Corbeil's legs were of average length and that, due to the size and configuration of the aircraft, there was concern that Ms. Corbeil would not be able to make the sharp corner into the seating area of the aircraft immediately upon boarding if her legs could not be lowered.

[21] American adds that it has great concern for safety, that it goes to great lengths to protect its customers and employees from potentially dangerous situations and, in this regard, considers bodily fluids to be a biohazard. American explains that, as Ms. Corbeil expressed the possibility of leakage from her ostomy bags if her legs were lowered, American consulted its doctor, who advised that Ms. Corbeil would have to provide a medical statement indicating that she was stable for air travel and that she would not need any extraordinary service or attention on board.

[22] American states that it never denied Ms. Corbeil travel on American Eagle and, in fact, as indicated by Ms. Corbeil's reservation record provided by American, it believed that Ms. Corbeil would be travelling on American Flight No. 4300 on December 17, 2004 operated by American Eagle. According to American, Ms. Corbeil's ticket was cancelled on December 17, 2004 by American Eagle agents in Ottawa after the aircraft had departed. American submits that the reason for the cancellation was that Ms. Corbeil had not presented herself for the flight.

[23] With respect to Ms. Corbeil's allegations that the special assistance co-ordinator yelled at her, American points out that the special assistance co-ordinator works with customers who have disabilities. American also advises that the special assistance co-ordinator has six years of experience in this area, which includes 90 days on-the-job training and 80 hours of recurrent training. American states that the special assistance co-ordinator is a person who is especially empathetic to customers with disabilities and alleges that she never yelled at Ms. Corbeil or her travel agent.

The travel agent

[24] Ms. Corbeil filed a letter from her travel agent providing a summary of events concerning Ms. Corbeil's booking. The travel agent advises that although the required services were mentioned to the air department of the cruise line at the time of booking, all arrangements for disability-related services also had to be made with the air carrier directly. In order to submit the disability-related service request, the travel agent alleges that she made a telephone call to American on October 21, 2004 to advise that Ms. Corbeil uses an electric wheelchair. At that time, she also requested a Washington boarding chair and advised that Ms. Corbeil would need to be lifted to and from her seat and that due to a medical condition, she would need pillows and blankets on board the aircraft to keep her legs elevated at all times. The travel agent submits that she was advised by American that these requests would be added to Ms. Corbeil's file.

[25] The travel agent states that, on December 15, 2004, she called American to verify that all was in order for Ms. Corbeil and to ensure that all the requests and required information were on file. She states that, at that time, American requested Ms. Corbeil's telephone number so that an agent could review all the service requirements directly with her.

[26] The travel agent states that later that afternoon she received a telephone call from American's special assistance co-ordinator who advised her that after having spoken to Ms. Corbeil, American had decided that it could not accept her on board and would have to deny boarding. The travel agent submits that the special assistance co-ordinator indicated that American no longer had pillows and blankets on board its flights. The travel agent states that she then indicated that this request had been made two months in advance and that no mention of American's inability to accommodate the request had been made at the time. The travel agent indicates that she reiterated that it was imperative, due to a medical condition, that Ms. Corbeil's legs be elevated while sitting and that special arrangements would have to be made for the blankets and pillows.

[27] The travel agent alleges that it was at this point that the special assistance co-ordinator became frustrated, trying to understand how Ms. Corbeil could elevate her legs as there was no space on the aircraft for her to do so, and allegedly asked the travel agent if Ms. Corbeil would be taking up three seats. The travel agent then explained that Ms. Corbeil's legs are short and not of average size and that she had travelled with her legs elevated before on flights with another carrier without any problems.

[28] According to the travel agent, the special assistance co-ordinator then advised her that the only way Ms. Corbeil could travel with American would be if she could provide a letter from her doctor stating that she was stable to travel and would not require any extraordinary service or attention during the flight. The travel agent adds, however, that the special assistance co-ordinator advised her that as Ms. Corbeil needs to have her legs elevated, this would require extraordinary assistance in-flight and, as a result, American would not accommodate Ms. Corbeil and would have to deny boarding. The travel agent adds that she advised the special assistance co-ordinator that this came as quite a shock to her and Ms. Corbeil as American had been notified two months earlier, but the special assistance co-ordinator advised her that American did not have any records of the initial telephone call and that its records indicated that American had only been notified of Ms. Corbeil's needs on that day, December 15, 2004.

[29] The travel agent states that she then advised American that she would be making alternate flight arrangements for Ms. Corbeil and inquired about a refund. She submits that she was told that if American denies boarding to a passenger, it provides a refund for the American portion of the ticket. The travel agent alleges that she was then told that as American was denying boarding, a note would be put on the file for the cruise line to see, as it had made the reservation as part of a cruise package. The travel agent submits that she then made alternate flight arrangements for Ms. Corbeil.

ANALYSIS AND FINDINGS

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

[31] An application must be filed by a person with a disability or on behalf of a person with a disability. In the case at hand, Ms. Corbeil uses an electric wheelchair and requires transfer assistance. As such, she is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[32] 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.

Whether the applicant's mobility was restricted or limited by an obstacle

[33] 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.

[34] 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

[35] The Agency is of the opinion that it is essential that the needs of persons with disabilities be clearly and accurately communicated to transportation service providers, either directly or indirectly through travel agents. The Agency is further of the opinion that it is essential that transportation service providers, when advised of disability-related needs, ensure that they gain a full understanding of these in order to make a proper assessment of their ability to accommodate them, and document this information in passenger reservation records. Finally, the Agency is of the opinion that written confirmation to persons with disabilities of disability-related services to be provided would be a useful tool that gives persons with disabilities an opportunity to take action to address any deficiencies.

[36] In the case at hand, it is unclear as to whether American was first informed of Ms. Corbeil's disability-related needs on October 21 or December 15, 2004. On the one hand, Ms. Corbeil's travel agent stated that American was notified on October 21, 2004 of Ms. Corbeil's needs, but American, on the other hand alleged that it only found out about Ms. Corbeil's needs on December 15, 2004. Although there may have been a brief exchange regarding Ms. Corbeil's disability needs on October 21, 2004, clearly a more detailed exchange occurred on December 15, 2004.

[37] With respect to the question of whether the refusal by American, alleged by Ms. Corbeil, to allow her to travel with the carrier constituted an obstacle to her mobility, the Agency notes that there is a lack of definitive evidence to indicate whether Ms. Corbeil was denied boarding by American or whether she or her travel agent simply made alternate travel arrangements such that Ms. Corbeil did not present herself for travel on December 17, 2004.

[38] Furthermore, with respect to the question of whether the special assistance co-ordinator's attitude towards Ms. Corbeil constituted an obstacle to her mobility, the Agency is of the opinion that the evidence on file is contradictory and inconclusive, as Ms. Corbeil stated that the special assistance co-ordinator had yelled at her, while American denied this, specifying that the individual in question is highly qualified and especially empathetic to persons with disabilities.

[39] In light of the above, the Agency finds that on a balance of probabilities, there is insufficient evidence as to whether Ms. Corbeil encountered an obstacle to her mobility.

[40] In light of the foregoing, the Agency hereby dismisses Ms. Corbeil's complaint.