Decision No. 448-AT-A-2005

July 12, 2005

Follow-up - Decision No. 673-AT-A-2005

July 12, 2005

APPLICATION by Elliott Richman pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, concerning the absence of TTY (telephone-teletype device for persons who are deaf or hard of hearing) access to British Airways Plc carrying on business as British Airways' Canadian reservation system.

File No. 3570/99-53


APPLICATION

[1] On October 24, 1999, Elliott Richman filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] In its Decision No. LET-AT-A-329-1999 dated December 20, 1999, the Agency granted British Airways Plc carrying on business as British Airways (hereinafter British Airways) until January 31, 2000 to file its answer to the application.

[3] British Airways filed its answer on January 25, 2000 and Mr. Richman provided his reply on January 27, 2000. At the request of Agency staff, additional information was filed by British Airways on January 27 and 31, 2000. Following a period during which the Agency's investigation of the application was adjourned, as discussed below, Agency staff, on September 30, 2004, requested an update as to whether circumstances had changed since the proceedings were adjourned. British Airways provided the Agency with an update on October 7, 2004. Mr. Richman provided no further comments.

BACKGROUND

[4] Pursuant to section 172 of the Canada Transportation Act (hereinafter the CTA), the Agency may, on application, inquire into a matter to determine whether there is an undue obstacle to the mobility of persons with disabilities. The Agency's determination in each case is based on the merits of the individual case before it.

[5] Following a preliminary review of this application, the Agency determined that any decision rendered in this application might have broad implications for foreign carriers operating in the Canadian transportation network. In addition, at that point in time, the Agency concluded that it was unable to determine whether an undue obstacle existed to the mobility of persons with disabilities in this application without first considering the foreign air industry in general, as well as the implications of any Agency decision on foreign air carriers. Consequently, the Agency found it necessary to conduct consultations with foreign air carriers who operate to and from Canada in order to gather sufficient information prior to determining what constituted an appropriate level of service with respect to communications for the community of persons with hearing impairments and on March 9, 2000, the Agency adjourned proceedings in this application.

[6] On June 3, 2004, the Agency released a Communications Code of Practice entitled Removing Communication Barriers for Travellers with Disabilities (hereinafter the Code of Practice). The release of the Code of Practice followed extensive consultations on communication barriers faced by travellers with disabilities, including such matters as telecommunication systems for reservations and information used by transportation service providers. In developing the Code of Practice, the Agency also considered the comments submitted by the foreign air carriers who were consulted when proceedings were adjourned in this and other applications. Although the provisions of the Code of Practice do not specifically apply to foreign carriers, they reflect the Agency's views on TTYs to the accessibility of travel by persons with disabilities and the general principle, applicable to all operations into and out of Canada, that persons with disabilities should have equal access to transportation services.

ISSUE

[7] The issue to be addressed is whether the absence of TTY access to British Airways' Canadian reservation system constituted an undue obstacle to Mr. Richman and, if so, what corrective measures should be taken.

FACTS

[8] Mr. Richman is deaf and uses a TTY to communicate by telephone. In an October 16, 1999 advertisement in the Globe and Mail newspaper, British Airways promoted fares between Toronto, Ontario and different international destinations. Mr. Richman noted that British Airways had placed two reservation numbers, namely (1-800-AIRWAYS) and (416) 250-0880 in the advertisement, however, there was no equivalent TTY reservation number.

[9] British Airways did not have a TTY reservation number in Canada at the time of the filing of Mr. Richman's application. After being advised of Mr. Richman's application, British Airways installed a TTY. Personnel members received training and TTY access was fully operational on February 4, 2000. The TTY service and toll-free reservation number were promoted on British Airways' Web site and print advertisements. Usage of the service was monitored by British Airways until September 2001, during which time no calls were received. In September 2001, the carrier deactivated the TTY service.

POSITIONS OF THE PARTIES

[10] Mr. Richman submits that as all of his telecommunications take place only through TTYs, the advertisement by British Airways of a 1 800 "hearing" line but no equivalent 1 800 TTY reservation number poses an undue hardship for him.

[11] Mr. Richman indicates that this issue has been dealt with in previous Agency decisions and that British Airways is not complying with these decisions.

[12] British Airways states that TTY service was not available in Canada at the time of the complaint; however, it was its intention to install a TTY as soon as possible and to subsequently include the number for this service in any future advertisements. British Airways notes that it did install a TTY and subsequently trained a small group of personnel on how to use this device. British Airways also notes that it promoted the service on its Web site and in print advertisements effective February 4, 2000. British Airways submits, however, that it monitored TTY usage from February 4, 2000 until September 2001 and, during this time, no TTY calls were received. British Airways states that as a result, the TTY service was discontinued in September 2001. British Airways explains that the Message Relay Service (hereinafter the MRC) of Bell Canada/BC Tel (now Telus Corporation) is available and that most of British Airways' services requiring telephone access are now available on its Web site and, further, e-mail service is also available to its customers.

ANALYSIS AND FINDINGS

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

[14] 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, Mr. Richman is deaf and, as such, is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[15] 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

[16] 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.

[17] 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

[18] Mr. Richman submitted that all his telecommunications take place only through TTYs, and that British Airways' advertising its 1 800 "hearing" line, but no equivalent 1 800 TTY number posed and still poses an undue hardship for him.

[19] The Agency is of the opinion that the ability to communicate independently by telephone is essential for all travellers, including persons who are deaf or hard of hearing. Although British Airways does provide alternate ways to communicate with the carrier, such as through its Web site, the Agency finds that these alternatives are not necessarily accessible to all persons with disabilities and do not allow for "real-time" communication, which is afforded through the use of telephones and TTYs. The Agency notes that, in many cases, persons who are deaf or hard of hearing consider the use of TTYs to be the most effective way to communicate. Similarly, the Agency notes that all of Mr. Richman's telecommunications take place only through TTYs.

[20] In light of the foregoing, the Agency finds that British Airways' failure to provide access to its Canadian reservation system through the provision of TTY service constituted an obstacle to Mr. Richman, and to persons who are deaf or hard of hearing in general.

Whether the obstacle was undue

[21] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

[22] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.

The case at hand

[23] Having found that British Airways' failure to provide access to its Canadian reservation system through the provision of TTY service constituted an obstacle to Mr. Richman and to persons who are deaf or hard of hearing, the Agency must now determine whether the obstacle was undue.

[24] The Agency notes that at the time of the filing of the application, British Airways did not have a TTY, but it was proposing to implement this service as soon as possible. British Airways did install a TTY on February 4, 2000; however, due to lack of usage, it was discontinued in September 2001. British Airways expressed its opinion that TTY service is available through the MRC and that most services requiring telephone access are available on British Airways' Web site. The MRC provides teletypewriters or TTY users and others with the ability to communicate with one another by phone with the help of specially-trained operators. Further, British Airways indicated that e-mail is also available to its customers.

[25] The Agency finds that although telecommunication relay services provide a method for persons who are deaf or hard of hearing to communicate with all others, they do not provide these persons with an independent means of communication. Additionally, the Agency notes that, given that telecommunication relay services rely on operator assistance, not only do they not provide an independent means of communication, they do not afford users any privacy in their conversations. While for most persons making travel arrangements the exchange of information is not personal in nature, persons with disabilities often need to discuss matters of a private and personal nature when making their travel reservations in order to ensure that their accessibility needs are met. The Agency is also aware that, as a result of the need for the relay services operator to verbally "translate" what is being communicated by the person using the TTY and convey this to the other party and to then "translate" the party's response into the teletype text before the message can be conveyed to the person using the TTY, this method of communication can be very slow due to delays in converting messages from one medium to the other.

[26] Although the Agency notes that there were no calls to British Airways' TTY during the time it was in place, the Agency is of the opinion that persons with disabilities should have the same options as other travellers and, in this case, they should have the option of booking directly with the carrier. Persons with disabilities have the same rights as others to full participation in all aspects of society and there can be no doubt that equal access to transportation services is critical to the ability of persons with disabilities to exercise that right. Persons with disabilities want as much independence in life as possible and their use of transportation services is no exception. In this case, these principles can be respected through the provision of TTY service.

[27] The Agency notes that the foregoing is consistent with the Code of Practice which, under the heading "Telecommunication Systems for Reservations and Information", provides that:

Transportation service providers who use telephone lines for reservations, information or any services related to the successful execution of a trip are to provide an equal level of service to passengers with disabilities through the use of alternative communication systems, such as a TTY line.

[28] The Agency is aware that the provisions of the Code of Practice do not specifically apply to foreign carriers. However, the Code of Practice does reflect the Agency's opinion on the importance of TTYs to the accessibility of travel by persons with disabilities and the general principle, applicable to all operations into and out of Canada, that persons with disabilities should have equal access to transportation services.

[29] In terms of costs, the Agency is aware, through the research and consultations that it undertook in developing the Code of Practice and as a result of the operation of its own TTY service, that the cost to acquire TTY equipment and the associated monthly operating charges are not significant.

[30] Accordingly, the Agency finds that British Airways' failure to provide access to its Canadian reservation system through the provision of TTY service constituted an undue obstacle Mr. Richman and to persons who are deaf or hard of hearing in general.

CONCLUSION

[31] Based on the above findings, the Agency finds that the absence of TTY access to British Airways' Canadian reservation system at the time of Mr. Richman's application constituted an undue obstacle to Mr. Richman and to persons who are deaf or hard of hearing in general. Accordingly, the Agency hereby requires British Airways to implement the following measures within sixty (60) days from the date of this Decision:

  • install a TTY, and provide the Agency with a written confirmation that the TTY service is operational; and
  • include the TTY number on its Web site, in all advertisements, and in all future publications providing information about the air carrier that is otherwise available to the general public.

[32] Following its review of British Airways' submission with respect to compliance with the Agency's directive, the Agency will determine whether further action is required.

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