Decision No. 450-AT-A-2005

July 13, 2005

July 13, 2005

APPLICATION by Wilfred Legault pursuant to subsection 172(1) and 172(3) of the Canada Transportation Act, S.C., 1996, c. 10, regarding the difficulties he experienced at the Winnipeg International Airport on November 8, 2004, after checking in with Air Canada for a flight departing from Winnipeg, Manitoba, Canada to Phoenix, Arizona, United States of America, with a connection in Denver, Colorado, United States of America.

File No. U3570/05-5


APPLICATION

[1] On February 22, 2005, Wayne Wolanski, on behalf of Wilfred Legault, filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. On March 16, 2005, Mr. Wolanski filed further information to complete the application.

[2] On April 25, 2005, Air Canada filed its answer to Mr. Legault's application. On April 26, 2005, Air Canada filed further documentation. On May 13, 2005, Mr. Wolanski filed a reply to Air Canada's answer.

ISSUES

[3] The issues to be addressed are whether:

  1. Air Canada's on-line reservation system constituted an undue obstacle to Mr. Legault's mobility and constitutes an undue obstacle to the mobility of other persons with disabilities, in general, who use on-line reservation systems and, if so, what corrective measures should be taken.
  2. the lack of assistance provided by Air Canada to Mr. Legault at the Winnipeg International Airport (hereinafter Winnipeg airport) to board his flight constituted an undue obstacle to his mobility and, if so, what corrective measures should be taken.
  3. Air Canada's failure to inform Mr. Legault that a smaller aircraft with no loading bridge would be used for his Winnipeg-Denver flight constituted an undue obstacle to his mobility and, if so, what corrective measures should be taken.

FACTS

[4] Wilfred Legault has multiple sclerosis and experiences difficulty walking and climbing stairs and he requested wheelchair assistance when making his travel arrangements.

[5] Arrangements were made through Air Canada's on-line reservation system for Mr. Legault to travel from Winnipeg to Phoenix with a connection in Denver on November 8, 2004.

[6] Air Canada's on-line reservation system permits passengers to book their trip through the Internet and to select trip preferences, such as meals and seating and to enter frequent flyer program information and information regarding their « special » needs. When reserving a flight on line with Air Canada, a scroll down menu is presented for passengers with disability-related needs which lists the following: None; Assistance Climbing Steps; Assistance within the Plane; Blind Passenger; Hearing Impaired; and Wheelchair within Terminal. The service requested for Mr. Legault at the time of booking was "Wheelchair within Terminal".

[7] Air Canada has a computer system that generates a Passenger Name Record (hereinafter the PNR) which contains information about the passenger, including the passenger's specific needs. The PNR for Mr. Legault contains the code "WCHR" which identifies customers who are able to walk and ascend or descend steps, but who require wheelchair assistance for long distances within the airport.

[8] The Winnipeg-Denver flight taken by Mr. Legault was a code-share flight operated by United Air Lines, Inc. (hereinafter United Air Lines) using a Canadair Regional Jet (hereinafter CRJ). The aircraft was parked away from the main terminal at position 24 with passengers boarding the aircraft from the tarmac.

[9] After checking in at the Winnipeg airport, Mr. Legault walked without assistance from the boarding gate, across the tarmac and climbed the steps into the aircraft.

[10] Air Canada's policies and procedures provide, in part, as follows:

GENERAL **

Passengers requiring the use of a wheelchair differ in their disabilities and will therefore be offered a variety of specialized handling based on their specific needs.

...

Reservation agent must determine with customer the type of wheelchair assistance required and enter proper apfax on PNR.

STATIONS WITHOUT LOAD BRIDGE **

At stations without loading bridges, wheelchair customers may request to be carried on due to the number of stairs.

...

When a passenger requests walk on/off (WCHR) wheelchair service assistance for [stations without loading bridges], ask if he/she is able to negotiate aircraft stairs as no loading bridge is available. When passenger can negotiate stairs, enter WCHR apfax, when passenger cannot negotiate stairs, enter WCHS apfax.

POSITIONS OF THE PARTIES

[11] Mr. Wolanski submits that wheelchair assistance was requested for Mr. Legault when the on-line reservation was made. Mr. Wolanski notes, however, that Mr. Legault had to walk from the boarding gate, across the tarmac and climb the steps to the aircraft without assistance when boarding his flight in Winnipeg. Mr. Wolanski submits that Mr. Legault has multiple sclerosis and has difficulty walking and climbing stairs and that he requested wheelchair assistance when making his travel arrangements.

[12] Mr. Wolanski expresses his dissatisfaction with Air Canada using small jets for its flights and comments that Mr. Legault was not informed of the type of aircraft that would be used for his flight. Furthermore, Mr. Wolanski states that the situation faced by Mr. Legault as a result is not acceptable.

[13] Mr. Legault seeks the following remedies for the difficulties he experienced: change in air carrier policy, an apology, compensation, consideration for future travel in the form of points or vouchers, an explanation and regulatory change.

[14] Air Canada states that it understands from the limited description in Mr. Legault's application that what is alleged is that, although Mr. Legault did receive wheelchair assistance within the terminal, he did not receive assistance from the gate to the aircraft.

[15] Air Canada states that the PNR for Mr. Legault reveals that the reservation was made on line through either aircanada.ca or aircanada.com and that it contains a request for WCHR service for Mr. Legault. According to Air Canada, this code indicates a requirement for wheelchair assistance within the terminal and is used for passengers who can walk short distances and can enter and leave the aircraft without assistance, but are not able to walk long distances.

[16] Air Canada submits that when the WCHR code appears on a reservation, it is transmitted in advance to the airport and a wheelchair is made available with the assistance of a Customer Sales and Service Agent to push it within the terminal. Air Canada notes that if assistance is requested to bring the passenger on board, two attendants, namely Station Attendants (ramp personnel), are required and that a request for this service must be made 48 hours in advance for the service to be guaranteed, although it will do its best to meet requests made within that timeframe.

[17] Air Canada explains that the procedure in Winnipeg for passengers requiring boarding assistance on an aircraft parked at position 24, where the aircraft in question was positioned, is that a Customer Sales and Service agent would take the passenger in a wheelchair to the elevator which would bring them down to the steps of the aircraft. Air Canada further explains that if a passenger requests assistance up the steps to the aircraft, it would be provided by Station Attendants, or a passenger-assist lifting device would be used to board the passenger. Air Canada adds that the passenger would then be transferred to a Washington wheelchair to bring him/her to the assigned seat.

[18] Air Canada refers to the limitations of technology with respect to the scroll down menu for disability-related services for on-line reservations. Air Canada notes, however, that once an on-line reservation is made, a passenger can at any time contact its call centre to specify his or her particular needs or advise of additional ones.

[19] Air Canada points out that both flights taken by Mr. Legault were code-share flights operated by United Air Lines. Air Canada maintains that because these flights were not operated with Air Canada aircraft, any complaint regarding the type of aircraft used should be directed to United Air Lines.

[20] Air Canada submits that the "Wheelchair Within Terminal" service requested for Mr. Legault at the time of the on-line booking was either provided or available to be provided to him and that the difficulties which he experienced with getting on the aircraft from the gate did not arise due to the services requested.

[21] Air Canada states that it offers a multitude of services to passengers with disabilities and that it will provide these services when requested 48 hours in advance. Air Canada submits that, in this case, it is unfortunate that the services Mr. Legault required were not correctly identified in advance. Air Canada also stresses the fact that complete communication is essential for it to meet the needs of its passengers with disabilities.

[22] Air Canada concludes by stating that although Mr. Legault may appear to have encountered difficulties as a result of his disability, his needs were not communicated in advance to Air Canada and, as such, any obstacle that he may have encountered was not undue because Air Canada was not told of his needs and could not plan to meet them.

[23] In his reply, Mr. Wolanski submits that he and Mr. Legault were not aware that they would have to board a small aircraft from ground level, but rather believed that they would board a larger aircraft normally through the covered walkway from the terminal building. Mr. Wolanski adds that, for this reason, wheelchair assistance was requested for Mr. Legault.

[24] Mr. Wolanski advises that had Mr. Legault been informed that a small aircraft would be used for his flight, another air carrier would have been chosen for his trip. Mr. Wolanski maintains that the onus is on Air Canada to inform passengers of unusual boarding procedures.

ANALYSIS AND FINDINGS

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

[26] An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. Legault experiences difficulty walking and climbing stairs and needs wheelchair assistance when making his way through airport terminal. As such, he is a person with a disability for the purpose of applying the accessibility provisions of the Canada Transportation Act (hereinafter the CTA).

[27] 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

[28] 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.

[29] 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

Air Canada's on-line reservation system

[30] The Agency notes that Air Canada offers an on-line reservation service to its passengers, including passengers with disabilities, which permits passengers to book their trip through the Internet and to select trip preferences, such as meals and seating and to enter frequent flyer program information and information regarding their disability-related needs. The Agency is of the opinion that this service lacks essential information for persons with disabilities booking on line. The choice of services available in the scroll down menu for disability-related services is very limited and, in fact, does not include all of the services offered by Air Canada to persons with disabilities when they travel, nor many of the fundamental services that a carrier is required to provide pursuant to the provisions of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR).

[31] The Agency is also concerned that persons with disabilities requiring multiple services listed in the scroll down menu for disability-related services are not able to make more than one choice and therefore cannot specify all of the services that they require. For example, a person such as Mr. Legault who requires wheelchair assistance for distances and assistance climbing stairs cannot indicate his or her need for both of these services when making an on-line reservation.

[32] Further, the Agency is of the opinion that Air Canada's on-line reservation system contains limited information regarding the services that Air Canada provides to persons with disabilities, with the result that persons with disabilities making an on-line reservation are not fully aware of the services available to them when they travel. As a result, the Agency is of the opinion that Air Canada's on-line reservation system, as it is currently configured, will likely result in inadequate and possibly incorrect information about the accessibility needs of persons with disabilities, with the result that the needs of those persons may not be met. The Agency is of the opinion that, in Mr. Legault's case, in particular, the limitations of Air Canada's on-line reservation system resulted in him not receiving the services necessary to meet his travel needs.

[33] Based on the foregoing, the Agency finds that Air Canada's on-line reservation system constituted an obstacle to Mr. Legault's mobility and constitutes an obstacle to the mobility of other persons with disabilities, in general, who use on-line reservation systems.

Lack of assistance at the Winnipeg airport

[34] The Agency notes that for Mr. Legault's Winnipeg-Denver flight, the aircraft used was a CRJ parked at position 24, and that passengers must board this aircraft from the tarmac level, using stairs.

[35] The Agency further notes that Mr. Legault did not receive the assistance he required to board his flight, given the boarding circumstances, and he had to walk without assistance from the boarding gate, across the tarmac and to climb the steps into the aircraft. In this regard, the Agency notes that Mr. Legault has difficulty walking and climbing stairs as a result of his multiple sclerosis.

[36] Based on the foregoing, the Agency finds that the lack of assistance provided by Air Canada to Mr. Legault at the Winnipeg airport to board his flight constituted an obstacle to his mobility.

Failure to inform Mr. Legault that a smaller aircraft would be used

[37] The Agency notes that Air Canada's CRJ aircraft operated out of Winnipeg are boarded from the tarmac, as opposed to through a loading bridge. Consequently, Mr. Legault had to board his flight using the aircraft steps. As a result of Mr. Legault's accessibility-related needs having been recorded in his PNR as wheelchair assistance within the terminal, and the need for 48 hours advance notice for assistance using stairs, Mr. Legault was not provided with boarding assistance. In this regard, the Agency again notes that Mr. Legault experiences difficulty walking and climbing stairs as a result of his multiple sclerosis.

[38] The Agency accepts Mr. Wolanski's submission that another air carrier would have been chosen for their trip had they known that Mr. Legault would have had to walk across the tarmac and to climb the steps to board the aircraft.

[39] The Agency rejects Air Canada's submission that any complaint regarding the type of aircraft used should be directed to United Air Lines as Mr. Legault's flight was a code-share flight operated by United Air Lines. Regardless of the fact that the subject flight was operated by its code-share partner, United Air Lines, Air Canada is responsible to ensure that its policies and procedures are followed on all of the flights it operates, including code-share flights.

[40] Based on the foregoing, the Agency finds that Air Canada's failure to inform Mr. Legault that a smaller aircraft with no loading bridge would be used for his Winnipeg-Denver flight constituted an obstacle to his mobility.

Whether the obstacle was undue

[41] 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.

[42] 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

Air Canada's on-line reservation system

[43] Having found that Air Canada's on-line reservation system constituted an obstacle to Mr. Legault's mobility and constitutes an undue obstacle to the mobility of other persons with disabilities, in general, who use on-line reservation systems, the Agency will now consider whether the obstacle is undue.

[44] The Agency notes that Air Canada's on-line reservation system is offered to all passengers, including passengers with disabilities. Like other carriers that offer on-line reservation services, Air Canada promotes its service by making it a more affordable means of making reservations as opposed to booking through Air Canada's reservation agents. The Agency is aware that on-line booking is often the method of choice for frequent travellers, including those with disabilities who are aware of their travel needs. As such, the Agency is of the opinion that, in order to function properly, the system must be complete and efficient. Furthermore, the Agency is aware that, like the general population, persons with disabilities increasingly rely on the Internet to access services and information. In this regard, the ability of certain persons with disabilities, including those with sight and hearing impairments, to effectively use transportation service providers' on-line reservation systems is especially important.

[45] The Agency is of the opinion that because Air Canada's on-line reservation system does not allow persons with disabilities to indicate basic types of assistance, including boarding assistance, its usefulness is very limited and will likely result in miscommunication and further difficulties.

[46] While the Agency notes Air Canada's submission that once a reservation is made on line, passengers can contact its call centre at any time to add or specify their disability-related needs, the Agency also notes that the system contains no warning to passengers to confirm the services they require by telephone. Furthermore, the Agency is concerned with the fact that, relative to on-line bookings, making reservations by telephone with call centre reservation agents can be time-consuming, especially when there are significant delays in being connected to call centre agents. Additionally, the Agency is of the opinion that a follow-up call to an Air Canada reservation agent should be an option for those who choose to do so and not a requirement necessitated by inherent limitations of the on-line reservation system. Finally, the need to follow up by telephone with a reservation agent significantly reduces the advantages of on-line reservations to certain persons with disabilities, including those with hearing impairments.

[47] The Agency is aware that customers booking reservations on line with Air Canada are typically rewarded with no booking fees and a greater number of fare options, whereas customers booking through an agent are often subject to a $25 booking fee. Persons with disabilities who are unable to book their reservation on line because this service does not meet their needs could, therefore, be penalized with an additional booking fee and less fare options.

[48] While Air Canada submits that due to technical limitations, its scroll down menu for accessibility-related services lists five in total, the Agency is aware that there are other carriers, including a relatively small charter carrier namely I.M.P. Group Limited carrying on business as, among others, CanJet Airlines, A Division of I.M.P. Group Limited (hereinafter CanJet), which have on-line reservation systems containing more comprehensive lists of available services. In the case of CanJet, a person with a disability requiring multiple services when making an on-line reservation may select as many services as are required for each leg of the journey. Additionally, the Agency has examined Air Canada's on-line reservation system and notes that it offers 17 choices for meal preferences and 15 choices for frequent flyer program information, but only 5 for disability-related services. In terms of choices for disability-related services, the Agency notes that the majority of such services provided by Air Canada are reflected in subsection 147(1) of the ATR which requires that carriers provide the following services to persons with disabilities when requested 48 hours in advance:

  1. assisting with registration at the check-in counter;
  2. assisting in proceeding to the boarding area;
  3. assisting in boarding and deplaning;
  4. assisting in stowing and retrieving the person's carry-on baggage;
  5. transferring the person between the person's own wheelchair, scooter or other mobility aid and a wheelchair, boarding chair or other mobility aid provided by the air carrier;
  6. transferring the person between a wheelchair, boarding chair or other mobility aid and the person's passenger seat;
  7. assisting the person, other than by carrying the person, in moving to and from an aircraft washroom, including assisting the person in using an on-board wheelchair where one is available;
  8. assisting in retrieving the person's checked baggage;
  9. assisting in proceeding to the general public area or, where a person is changing to a flight of another air carrier within the same terminal, to a representative of the receiving air carrier;
  10. serving special meals, where available, and providing limited assistance with meals such as opening packages, identifying items and cutting large food portions; and
  11. inquiring periodically during the flight about the person's needs, and attending to those needs where the services required are usually provided by the air carrier, or where the services are required to be provided by the air carrier under this Part.

[49] The Agency is aware that transportation service providers in the federal transportation network use specific codes to denote particular services required by persons with disabilities. The Agency notes Air Canada's submission that the service requested by Mr. Legault was "Wheelchair within Terminal" and that his PNR reveals that the reservation contains a request for WCHR service. According to Air Canada, when the WCHR code is indicated for a reservation, it is transmitted in advance to the airport and a wheelchair is made available with the assistance of a customer sales and service agent to push it within the terminal.

[50] The Agency notes that specific service request codes can provide an effective tool to transportation service personnel in providing appropriate services to persons with disabilities. However, the Agency is concerned that when a person with a disability makes an on-line reservation with Air Canada and indicates a need for disability-related services, a service request code is transmitted to the airport without any review by reservation agents of the service requested. The Agency is of the opinion that the system is inadequate because it does not prompt an Air Canada reservation agent to review the service requests made by persons with disabilities and follow up with them to discuss their travel needs, as required by Air Canada's policies and procedures. The Agency adds that when using Air Canada's on-line reservation system, persons with disabilities cannot select more than one disability-related service and therefore cannot ensure that all of their travel needs will be met, nor does the system provide a description of what is provided for each service selected. The Agency is aware that miscommunication has been the source of many complaints and therefore the Agency is very concerned that Air Canada would implement a system specifically designed for persons with disabilities that has an inherent problem, such that miscommunication is almost inevitable, particularly if more than one disability-related service is required. Air Canada stated that complete communication is essential for it to meet the needs of its passengers with disabilities and submitted that Mr. Legault's needs were not communicated to it in advance. The Agency questions, however, how persons with disabilities booking on-line reservations are expected to achieve this when the necessary tools are not available to them. The Agency is of the opinion that an adequate level of communication is only possible if persons are provided with sufficient choices and a detailed description of what is provided when a particular service is selected.

[51] Based on the foregoing, the Agency's preliminary finding is that the obstacle posed by Air Canada's on-line reservation system constituted an undue obstacle to Mr. Legault's mobility and constitutes an undue obstacle to the mobility of other persons with disabilities, in general, who use on-line reservation systems.

[52] However, the Agency recognizes that there may be specific arguments that Air Canada might wish to bring forward in light of the Agency's preliminary finding of an undue obstacle and that there may be costs and technical feasibility implications to addressing this obstacle. The Agency is therefore providing Air Canada with the opportunity, by way of a direction to show cause, to address its preliminary finding of an undue obstacle.

Lack of assistance at the Winnipeg airport

[53] Having found that the lack of assistance provided by Air Canada to Mr. Legault at the Winnipeg airport to board his flight constituted an obstacle to his mobility, the Agency will now consider whether the obstacle is undue.

[54] The Agency notes that efforts were made by Mr. Legault to ensure that he received the assistance he required. When booking the on-line reservation, a selection was made from the disability-related services scroll down menu indicating his requirement for wheelchair assistance within the terminal.

[55] The Agency further notes that Mr. Legault's PNR contains a notation that he requires WCHR service, a code which Air Canada uses to denote the ability to walk and ascend or descend steps, but the need for wheelchair assistance for long distances within the airport. It is apparent that the WCHR service was not the only type of assistance required by Mr. Legault as he has difficulty walking and climbing stairs. However, the Agency is of the opinion that in choosing "Wheelchair within Terminal", it was reasonable for Mr. Legault to expect that he would receive wheelchair assistance up to the point of boarding. The Agency also recognizes that Mr. Legault was limited in the choices he could make for disability-related services when booking his on-line reservation.

[56] The Agency notes that Air Canada's policies and procedures provide that its reservation agents must determine with the customer the type of wheelchair assistance required and enter the proper code in his or her PNR. The Agency further notes that after making the on-line reservation and requesting wheelchair assistance, Air Canada never contacted Mr. Legault to determine the type of wheelchair assistance required. Rather, Air Canada proceeded to enter a WCHR code in his reservation file without consulting him as to his specific needs.

[57] The Agency is of the opinion that the difficulties experienced by Mr. Legault are indicative of the consequences of the failure by Air Canada to observe its policies and procedures. Based on the foregoing, the Agency's preliminary finding is that the lack of assistance provided by Air Canada to Mr. Legault at the Winnipeg airport to board his flight constituted an undue obstacle to his mobility.

[58] However, the Agency recognizes that there may be specific arguments that Air Canada might wish to bring forward in light of the Agency's preliminary finding of an undue obstacle and that there may be on-line reservation policy implications to addressing this obstacle. The Agency is therefore providing Air Canada with the opportunity, by way of a direction to show cause, to address its preliminary finding of an undue obstacle.

Failure to inform Mr. Legault that a smaller aircraft would be used

[59] Having found that Air Canada's failure to inform Mr. Legault that a smaller aircraft with no loading bridge would be used for his Winnipeg-Denver flight constituted an obstacle to his mobility, the Agency will now consider whether the obstacle is undue.

[60] The Agency notes that Air Canada's policies and procedures require that when a passenger requests walk on and off WCHR wheelchair service assistance for stations without loading bridges, the carrier's personnel are to ask if he or she is able to negotiate aircraft steps as no loading bridge is available. The policy further requires that when a passenger can negotiate stairs, the WCHR code is to be used and, when a passenger cannot negotiate stairs, the WCHS code is to be used.

[61] The Agency is of the opinion that Air Canada would have been aware of the boarding situation for the smaller aircraft on which Mr. Legault was scheduled to travel. The Agency notes that Mr. Legault's PNR contained the WCHR code and, therefore, given the limited choices available to passengers with disabilities who book on line, it would be reasonable to expect that Air Canada would have inquired whether he was able to negotiate aircraft steps as no loading bridge was available. Had this dialogue occurred, Air Canada would have correctly entered the WCHS code in Mr. Legault's reservation file, indicating a passenger who cannot ascend or descend stairs, but who is able to make his or her own way to and from the cabin seat, and requires a wheelchair for the distance to and from the aircraft.

[62] The Agency notes that while information regarding aircraft type is available to persons making on-line reservations, this is limited to 3-letter codes which are very cryptic and not easily decipherable by someone who is not familiar with the aircraft industry. Furthermore, it is unlikely that a passenger would necessarily know that a particular aircraft type would not be boarded with a loading bridge.

[63] The Agency finds there is an inconsistency in approach for reservations at Air Canada. The on-line option does not provide the benefit of clearly indicating the type of aircraft to be used and whether the service will meet a passenger's needs, whereas reservations made by telephone require the reservation agent, consistent with Air Canada's policy, to confirm with the passenger whether the passenger can negotiate stairs. It also appears that there is no flagging system in the on-line reservation system that identifies those cases where there is a station without a loading bridge and passengers that have requested walk on and off wheelchair assistance.

[64] The Agency is of the opinion that the difficulties experienced by Mr. Legault are indicative of the failure by Air Canada to observe its policies and procedures. Based on the foregoing, the Agency's preliminary finding is that Air Canada's failure to inform Mr. Legault that a smaller aircraft with no loading bridge would be used for his Winnipeg-Denver flight constituted an undue obstacle to his mobility.

[65] However, the Agency recognizes that there may be specific arguments that Air Canada might wish to bring forward in light of the Agency's preliminary finding of an undue obstacle and that there may be on-line reservation policy implications of addressing this obstacle. The Agency is therefore providing Air Canada with the opportunity, by way of a direction to show cause, to address its preliminary finding of an undue obstacle.

Direction to show cause

[66] The Agency has made preliminary findings that Air Canada's on-line reservation system constituted an undue obstacle to the mobility of Mr. Legault and constitutes an undue obstacle to the mobility of other persons with disabilities, in general, who use on-line reservation systems and that the lack of assistance provided by Air Canada to Mr. Legault at the Winnipeg airport to board his flight and Air Canada's failure to inform Mr. Legault that a smaller aircraft with no loading bridge would be used for his Winnipeg-Denver flight constituted undue obstacles to his mobility. Air Canada is therefore required to provide specific evidence and related argument to show cause to the Agency why these obstacles are not undue.

[67] As set out above, 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. In reaching a final decision, the Agency considers impediments that transportation service providers may encounter in trying to meet the needs of persons with disabilities, such as the financial and operational, including technical impacts of adapting services. 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.

[68] As part of its response to the show cause, the Agency directs Air Canada to respond to the following within thirty (30) days from the date of this Decision.

  1. Air Canada is required to provide a complete description of how an on-line reservation is made including, but not limited to, how requests for disability-related services are made, who is notified of such requests and what confirmation, if any, is provided. Air Canada is also required to submit any policies and procedures it may have that are specific to its on-line reservation system.
  2. Air Canada is required to explain its reservation policy as it relates to on-line reservations, and provide a copy of this policy to the Agency.
  3. Air Canada is required to provide a detailed report with supporting documentation setting out the implications of modifying its on-line reservation system to remedy the obstacles, for example, by the means identified in a) to c) below, or by any other means that Air Canada considers would address the preliminary undue obstacles:
    1. expanding the disability-related services drop down list to specify all available services to persons with disabilities, including all eleven services required by the ATR;
    2. allowing a person with a disability to choose a combination of services, if required, for each flight segment; and
    3. adding an information dialogue box, such that when a service is highlighted, an explanation of what the service covers is provided.
  4. If Air Canada is limited in the services it can add to the drop down list, it is to provide a detailed explanation as to why this is so.
  5. Air Canada is required to provide submissions as to whether its policy requiring its agents to determine with a customer the type of wheelchair assistance required and enter the proper code in the PNR applies to reservations which have been booked on line.
  6. Air Canada is required to provide a complete description of the service provided when the WCHR code appears on a PNR and specifically describe the venues where this service begins and ends, i.e. whether assistance is provided from check-in to the door of the aircraft.
  7. Air Canada is required to provide submissions as to whether its policy that passengers requesting WCHR assistance for stations without loading bridges are to be asked whether they are able to negotiate aircraft stairs and, if not, a WCHS code is entered in their PNR, also applies to reservations which have been booked on line.

[69] Upon receipt of the information required to be filed, the Agency will assess the information and finalize its findings. However, before doing so, the Agency may require further information from Air Canada. In addition to the information to be filed with the Agency as set out above, Air Canada may file any other information with the Agency that it considers relevant.

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