Decision No. 465-AT-A-2006

August 30, 2006

August 30, 2006

APPLICATION by Nina Jurschewsky pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, regarding the meet and assist service provided to her by Air Canada at the Toronto-Lester B. Pearson International Airport on June 11, 2005.

File No. U3570/05-45


APPLICATION

[1] On August 23, 2005, Nina Jurschewsky filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] In its Decision No. LET-AT-A-328-2005 dated December 28, 2005, the Agency required Air Canada to provide its answer to the application and to file affidavits from the agents who assisted Mrs. Jurschewsky as well as copies of documentation in effect at the time of her travel. The Agency also requested further information from Mrs. Jurschewsky, which was provided on January 8, 2006.

[3] Following an unsuccessful attempt by the parties to resolve the issue through mediation, Air Canada was requested to provide its answer to the application, as required by Decision No. LET-AT-A-328-2005.

[4] On March 30, 2006, Air Canada filed its answer to the application in which it requested that the Agency review the requirement that it include with its answer affidavits from the agents who assisted Mrs. Jurschewsky. Air Canada requests that the Agency either request an affidavit from Mrs. Jurschewsky or not impose an affidavit from Air Canada's witnesses. On April 11, 2006, Air Canada provided the Agency with copies of its policies and procedures with respect to wheelchair assistance and the handling of mobility aids, but advised that it no longer offers meet and assist service in the form that existed at the time of the incident, that it is in the process of reviewing this service and that the former procedures are no longer available. Air Canada also raised an issue of confidentiality with respect to its policies and procedures.

[5] In its Decision No. LET-AT-A-118-2006 dated May 1, 2006, the Agency informed Air Canada that no document can be treated as confidential unless a claim for confidentiality is made and upheld by the Agency and that, in the absence of a claim for confidentiality, all documents filed are to be copied to the other party.

[6] In its Decision No. LET-AT-A-119-2006 dated May 2, 2006, the Agency determined that in order to clarify the facts of this case, it is necessary and desirable to hear the parties. In this regard, the parties were asked to confirm their availability for a hearing in Toronto, Ontario, on June 12, 2006.

[7] On May 4, 2006, Mr. Jurshevski, Mrs. Jurschewsky's son, requested that the Agency grant leniency regarding the need for Mrs. Jurschewsky, who had just had major surgery, to attend in person, but stated that he and his wife, who have Power of Attorney, could act as her agents.

[8] On May 10, 2006, a reply to Air Canada's answer was filed, which included submissions from Mrs. Jurschewsky dated April 17, 2006, and from Mr. Jurshevski dated May 10, 2006.

[9] In its May 13, 2006 response to Decision No. LET-AT-A-119-2006, Air Canada stated that it cannot accept Mr. Jurshevski and his wife testifying on behalf of Mrs. Jurschewsky and, as such, if Mrs. Jurschewsky is unable to testify at this time, the hearing should either be postponed until she is able to attend or should not be held at all.

[10] In a further submission dated May 29, 2006, Mr. Jurshevski reiterated that he and his wife and two children, who were all witnesses to the events, could attend the hearing, but that his mother, due to her medical condition and need to regain her strength, could not. This fact was corroborated by a letter from Mrs. Jurschewsky's physician dated June 1, 2006, to the effect that she was not medically fit to attend a hearing indefinitely for the time being.

[11] In its Decision No. LET-AT-A-179-2006 dated July 5, 2006, the Agency acknowledged that Mrs. Jurschewsky was not medically fit to attend a hearing and, as such, informed the parties that it would not hold a hearing for this reason, but would make a determination in this application based on the pleadings on the record, accepting that they represent the official positions of the parties. Furthermore, the Agency provided the applicant with an opportunity to comment on Air Canada's CIC with respect to wheelchairs and handling.

[12] In a submission dated July 23, 2006, Mr. Jurshevski provided comments with respect to Air Canada's CIC and his final arguments.

PRELIMINARY MATTERS

Late submission

[13] On August 11, 2006, Mr. Jurshevski submitted further documentation with respect to Mrs. Jurschewsky's application, including an errata list to his submission dated July 23, 2006. The Agency is of the opinion that the submission does not provide any additional information related directly to the situation experienced by Mrs. Jurschewsky, and as such, is not necessary to the Agency's consideration of the application. Accordingly, the Agency does not accept the submission as it was filed after pleadings closed. The aforementioned comments have been returned to the applicant and do not form part of the record. The Agency accepts, however, the errata to the July 23, 2006 correspondence.

Reimbursement

[14] Mrs. Jurschewsky was reimbursed for the cost of the ticket to Montréal and, therefore, no determination by the Agency is required with respect to this issue of compensation.

ISSUE

[15] The issue to be addressed is whether the level of meet and assist service provided by Air Canada to Mrs. Jurschewsky at the Toronto-Lester B. Pearson International Airport (hereinafter the Toronto airport) on June 11, 2005 constituted an undue obstacle to her mobility and, if so, what corrective measures should be taken.

FACTS

[16] Mrs. Jurschewsky is an elderly person who has had two hip replacements and a back operation and she experiences chronic back pain that causes difficulties with her mobility. A ticket was purchased online through Expedia.ca for Mrs. Jurschewsky to travel in Business Class from Toronto, Ontario to Vienna, Austria on April 16, 2005, on Air Canada Flight No. 9616 and return on June 11, 2005, on Air Canada Flight No. 9617, which was scheduled to arrive in Toronto at 8:40 p.m. Mrs. Jurschewsky's Passenger Name Record (hereinafter PNR) contains the code WCOB, which is defined in the International Air Transport Association (IATA) Reservation Services Manual as "On-board Wheelchair - provided by airline ...". Mrs. Jurschewsky's PNR also contains the code MAAS with the notation "elderly lady", an indication that she requires meet and assist service. Furthermore, Mrs. Jurschewsky's PNR contains contact information for her daughter-in-law, Teresa Cowan.

[17] Following her arrival in Toronto, Mrs. Jurschewsky was assisted by an Air Canada agent through Customs and Immigration and to the baggage carrousel and then to the Inter-Terminal Transfer Desk and to the ticket counter where she made a credit card purchase for a one-way ticket to Montréal. Thereafter, Mrs. Jurschewsky was assisted through security screening and to the gate for her departing flight while her son and two grandchildren were waiting to meet her in the Arrivals Hall in Terminal 1 at the common exit for all deplaning passengers.

[18] Following inquiries made by Mrs. Jurschewsky's son regarding her whereabouts after waiting for some time to meet her, Mrs. Jurschewsky was reunited with her son and grandchildren. The charge on Mrs. Jurschewsky's credit card for her flight from Toronto to Montréal was refunded by Air Canada.

Policies and procedures

[19] Air Canada's policies and procedures with respect to meet and assist service and to wheelchairs and handling read in part as follows:

  • Airport agents must ensure that a customer requiring wheelchair assistance is attended to at all times, including at transfer points, security and through customs and immigration (where local authorities permit).
  • The customer must be kept informed of any delays that may occur in providing the assistance they have requested.
  • The customer must always be kept informed of any prospect of missing their connecting flights.

...

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.

...

To better understand the type of assistance required by a customer with a disability:

  • initiate discussions
  • be attentive when customers communicate their needs
  • ask questions to ensure needs and abilities are clearly understood
  • be alert and proactive to their needs

[20] Air Canada's brochure "The Way to Go", which is a training module for handling passengers with disabilities, reads in part as follows:

IMPORTANT POINTS TO REMEMBER WHEN PROVIDING TRAVEL SERVICES TO SENIORS

  1. Don't assume they need extra help – Ask!
  2. Respect the customer's dignity by not being patronising or overprotective.
  3. Allow the customer to make his/her own decisions once you have provided the necessary information.
  4. If the customer seems anxious or uncertain, reassure him/her by providing additional explanation or instructions.
  5. Remain patient – sometimes the process may take a little longer.

...

REMEMBER

The key is communication. Customers with disabilities are there to take advantage of your expertise in the transportation industry, and you must in turn take advantage of their knowledge of their own needs. To do this you should not hesitate to ask questions whenever you are uncertain. Asking is preferable to making unfounded assumptions that may lead to unnecessary complications. Here is a little acronym to help you remember the key points in your serving customers with disabilities:

  • Take the time
  • Ask, don't assume
  • Listen attentively
  • Know the customer's needs

POSITIONS OF THE PARTIES

[21] Mrs. Jurschewsky states that she is a frequent traveller and in the last ten years has visited Japan, New Zealand, United Kingdom and many countries in Europe. With respect to the trip in question, Mrs. Jurschewsky states that her son and daughter-in-law left clear and specific instructions on her passenger file detailing that she required wheelchair assistance at all times in the airport.

[22] Mrs. Cowan, Mrs. Jurschewsky's daughter-in-law, states that on June 11, 2005, she telephoned ground staff at the Toronto airport to confirm the wheelchair instructions and to determine where and approximately what time Mrs. Jurschewsky would meet her arrival party in Terminal 1. Mrs. Cowan indicates that she was advised to wait in the Arrivals Hall at the common exit for all deplaning passengers and to be there at about 9:15 p.m.

[23] Mrs. Jurschewsky states that her flight landed on time in Toronto on June 11, 2005, and that she was assisted with deplaning and brought to the departures level by a young woman, who was 30 to 40 years of age with strawberry blond hair, and that the woman appeared anxious and agitated and was not friendly at all. Mrs. Jurschewsky states that she was expecting to be greeted by her son and grandchildren when she arrived in Toronto, but they were not there, and she adds that she was very tired and in pain.

[24] Mrs. Jurschewsky states that the female agent who assisted her with deplaning was tense and uncommunicative and that, when she asked if they were waiting in the proper area, the agent appeared to ignore her and it seemed that she was anxious to get away. Mrs. Jurschewsky states that she and the agent continued to wait and after some time, she asked the agent if they could call the house to see if someone was coming to pick her up. Mrs. Jurschewsky states that she looked for the paper with her son's telephone numbers on it, but could not find it, and that the agent asked if there was somewhere else she could go as it appeared that no one was in Toronto to pick her up. Mrs. Jurschewsky states that she was in pain, groggy and tired, and that she told the agent she still had a condo in Ottawa, whereupon the agent suggested that she fly to Montréal and then make her way to Ottawa as "it was clear that no one was picking her up in Toronto".

[25] Mr. Jurshevski states that he and his children waited until approximately 9:30 p.m. and then had Mrs. Jurschewsky paged, but received no response. They had her paged again at 9:50 p.m., but received no response. Mrs. Cowan states that she called the Terminal 1 ground crew and was told there was no way they could find out where Mrs. Jurschewsky was using the systems Air Canada has in place.

[26] Mr. Jurshevski states that at 9:38 p.m. and again at 9:41 p.m. he called Air Canada from his cell phone, but could not make headway in finding out where his mother was, and that he left his contact number and asked them to call in case she turned up. Mr. Jurshevski's wife again called Air Canada and spoke to a gentleman who confirmed that his mother's plane had landed. Mr. Jurshevski indicates that his wife advised the gentleman that her mother-in-law had not been brought to the prearranged spot and that she inquired how she could get in touch with the "meet and assist" people and was advised by the gentleman that he had no means of communication with them.

[27] Mrs. Jurschewsky states that at one point she thought she heard her name being called, but that the agent assisting her did not appear to listen or hear anything. Mrs. Jurschewsky remarks that the agent was "antsy" and appeared eager to get away and strongly encouraged her to decide to leave or "otherwise she might be spending the night alone in the terminal".

[28] Mrs. Jurschewsky states that the female agent assisted her to the ticket counter, demanded her credit card and obtained a one-way ticket to Montréal using the credit card for her, and then departed hurriedly and left her waiting with another agent who took her over to the departures gate.

[29] Mr. Jurshevski states that at approximately 10:10 p.m., he and his and daughter went to a check-in desk on the Departures level to inquire about Mrs. Jurschewsky while his son watched the arrivals gate. Mr. Jurshevski asserts that the first agent he dealt with was unfamiliar with the flight schedules and ground procedures and insisted that Air Canada was not responsible for deplaning passengers requiring assistance. Mrs. Cowan states that, finally, another female employee arrived and inquired whether her husband was looking for the lady going to Montréal and that the agent then described his mother to him and said she had been waiting with Mrs. Jurschewsky across from the departure gate for over an hour. Mrs. Cowan notes that this was on a different floor and in an area separate from the area where they were told to wait by Air Canada. Mrs. Cowan states that when her husband inquired where his mother was and why she was being put on a plane to Montréal, the agent became indignant and asked him to thank her for waiting with his mother for over an hour.

[30] Mrs. Cowan expresses her view that her mother-in-law, all of eighty-five, groggy and disoriented after fifteen hours of travel, should have expected that Air Canada's duty of care governing her safe arrival in Toronto would include having an Air Canada agent assist her to meet her arrival party at the location where they were told to wait for her and if something went amiss, Air Canada consulting her passenger file. Mrs. Cowan notes, however, instead her husband was berated by one of Air Canada's agents while his mother was apparently being "shipped" to Montréal.

[31] Mrs. Cowan submits that as the exchange became heated, one of Air Canada's customer service managers advised that they were going to get his mother and her luggage off the plane.

[32] Air Canada notes that the special services requested for Mrs. Jurschewsky were wheelchair within terminal and "meet and assist" with an indication that the passenger is an elderly lady, but that there was no indication on the record to the effect that Mrs. Jurschewsky had any cognitive disability.

[33] Air Canada states that Mrs. Jurschewsky's PNR contained a telephone number for Teresa Cowan as a contact, but that this is not the same telephone number that appears in correspondence filed during the course of this proceeding.

[34] Air Canada states that upon Mrs. Jurschewsky's arrival in Toronto, a male passenger agent met the flight and Mrs. Jurschewsky sat in the wheelchair and was assisted through Customs and Immigration and brought to the baggage hall to identify and obtain her luggage.

[35] Air Canada states that while in the baggage hall, Mrs. Jurschewsky insisted that she was to go to Montréal and that she wanted to go to Montréal. Air Canada adds that Mrs. Jurschewsky was asked for her ticket to Montréal, but as she did not have one with her, she was brought to the Inter-Terminal Transfer Desk in order to verify if there was any reservation for Montréal in her name. During the verification, the agent assisting Mrs. Jurschewsky as well as another female agent questioned her on how she had arrived in Toronto when she took her outbound flight from Toronto to Vienna and she initially indicated that she did not remember, but after a discussion she stated she had arrived in Toronto by car.

[36] Air Canada states that one of the agents assisting Mrs. Jurschewsky asked permission to look through her personal belongings to either find the ticket to Montréal or a contact number, but that this was refused, and that when asked about the telephone number appearing on her bag, Mrs. Jurschewsky advised that it was an old number and no longer valid. Air Canada contends that Mrs. Jurschewsky was clearly able to communicate and respond coherently.

[37] Air Canada states that as Mrs. Jurschewsky continued to insist on going to Montréal, the male agent assisting her brought her to the ticket counter with her bags, where she was sold a ticket for the last flight departing from Toronto to Montréal that evening.

[38] Air Canada advises that it will use the information in the PNR to contact a passenger or to notify of a schedule change and that, in the case of passengers with disclosed cognitive disabilities, or in the case of a medical emergency, Air Canada will call the number in the PNR. Air Canada notes, however, that as Mrs. Jurschewsky was adamant that she wanted to go to Montréal, there was no need to call the number in her reservation record.

[39] Air Canada explains that its agents presume that all passengers are of sound mind and that, unless the person's behaviour is erratic or there is a notation on his/her file, its agents will assume that the passenger is not suffering from dementia, Alzheimer's disease or any other cognitive deficiency. Air Canada maintains, therefore, that when Mrs. Jurschewsky adamantly insisted on going to Montréal, its agents abided by her request and that it would have been unacceptable to do otherwise or to call a third party to verify whether she should be permitted to go to Montréal. In this regard, Air Canada notes that being a senior citizen or having a mobility impairment is not an indication of any mental deficiency and that presuming otherwise is demeaning to the passenger and contrary to Air Canada's teaching to its agents on how to deal with passengers.

[40] Air Canada states that shortly after Mrs. Jurschewsky was brought to the departure gate for her flight to Montréal, the female agent who had assisted her, and who was now at level 3 of the terminal for another matter, was approached by another agent who asked if anyone knew anything about a woman in a wheelchair from Austria. According to Air Canada, the female agent quicky approached the gentleman making the inquiry and advised him that Mrs. Jurschewsky had just purchased a ticket to Montréal departing that evening. Air Canada notes that the gentleman became agitated, started speaking very loudly and indicated that his mother was incompetent and that Air Canada should not have sold her a ticket.

[41] Air Canada submits that the wheelchair service requested in Mrs. Jurschewsky's PNR, namely for movement within the airport, was provided. Air Canada also submits that meet and assist service consists of providing the passenger with assistance in processing through the various steps at the airport, including assistance in connecting to another flight. Air Canada maintains that in this case these services were provided as Mrs. Jurschewsky was accompanied by an agent through Customs and Immigration, brought to the baggage carrousel to identify her bags and, when she indicated to the agent that she was to travel to Montréal and could not produce a ticket, she was brought to the Inter-Terminal Transfer Desk to verify the reservation records. When no record could be found and Mrs. Jurschewsky still insisted on going to Montréal, she was brought to the Ticket Counter to make the reservation, assisted through check-in, assisted through the security check-point and brought to the gate for her flight to Montréal. Air Canada maintains that it provided the service requested for Mrs. Jurschewsky in her PNR and also provided the additional service verbally requested by Mrs. Jurschewsky after landing in Toronto.

[42] Air Canada states that after the message was sent to the departure gate to bring Mrs. Jurschewsky back to the meeting area, the female agent who had assisted Mrs. Jurschewsky tried to explain to Mr. Jurshevski what had transpired, but he did not want to listen. Air Canada submits that the attitude of Mr. Jurshevski was deplorable and totally abusive.

ANALYSIS AND FINDINGS

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

[44] An application must be filed by a person with a disability or on behalf of a person with a disability. In the present case, Mrs. Jurschewsky has had two hip replacements and a back operation and she experiences chronic back pain that causes difficulties with her mobility. As such, Mrs. Jurschewsky is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[45] 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

[46] The word "obstacle" is usually understood to mean something that impedes progress or achievement. As the word "obstacle" is not defined in the CTA, it must be read in its immediate legislative context which is, for the purposes of Part V of the CTA, the mobility of persons with disabilities, such mobility being achieved by having proper access to federal transportation services. In this way, the obstacle must be directly related to a person's disability such that an issue cannot be considered to be an obstacle simply because it is experienced by a person with a disability.

[47] 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 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 may find obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience call into question whether the person had proper access to effective transportation services.

The case at hand

[48] Much of the evidence provided by the parties was conflicting to the point of being irreconcilable; however, there is no dispute as to the following facts:

  • Wheelchair assistance and meet and assist service were requested for Mrs. Jurschewsky due to her mobility impairment.
  • Wheelchair assistance was provided to Mrs. Jurschewsky from the time of deplaning in Toronto up to and including the time she was reunited with her son.
  • The meet and assist service was requested in order for Mrs. Jurschewsky to be attended to at all times upon deplaning and to bring her to the Arrivals Hall in Terminal 1 at the common exit for all deplaning passengers.
  • The meet and assist service provided to Mrs. Jurschewsky was modified such that she was assisted in purchasing a ticket to Montréal and brought to the Departures area for a flight to Montréal; however, she was finally reunited with her son.

[49] There are apparent discrepancies between Mrs. Jurschewsky's and Air Canada's descriptions of the events that transpired and in order to respond to an essential portion of the issue, the Agency finds it appropriate to first identify the circumstances which resulted in a modification of the meet and assist service provided to Mrs. Jurschewsky. An appropriate question to ask is whether there were circumstances that may be said to have vitiated or negated Mrs. Jurschewsky's consent to the change in service or, to the contrary, if the service was provided upon the instructions of Mrs. Jurschewsky.

[50] Mrs. Jurschewsky alleged that she felt "forced" to purchase a ticket to Montréal, given the attitude of the Air Canada agent. She provided the following description of the event: "She [agent] was very antsy and appeared eager to get away and strongly encouraged me to decide to leave as otherwise I might be spending the night alone in the terminal". Mrs. Jurschewsky added that: "Weakened, tired and in great pain, and against my better judgment in the face of her [agent] bullying, I agreed to her [agent] suggested change of plans, hoping against hope that my family would soon find me".

[51] Mrs. Jurschewsky's position is that Air Canada failed to exercise an acceptable duty of care. She blames Air Canada for not having attempted to determine her exact situation (i.e., that she was in fact living in Toronto and not in Ottawa, as she had told the agent assisting her). Mrs. Jurschewsky expressed the view that the Air Canada agent should have tried to contact her "son ... her home ... or family" before taking her to "a location different from that which her son was told to wait".

[52] Air Canada presented a different scenario. First, Air Canada submitted that unless a passenger's demeanor suggests otherwise, all of its passengers are presumed to be of sound mind and its agents will try to abide by a passenger's request when feasible. In this regard, the Agency notes that Air Canada's training module instructs its agents to respect a customer's dignity and to allow a customer to make his/her own decisions. In the present case, Air Canada explained that Mrs. Jurschewsky was adamant that she wanted to go to Montréal and that she was living in Montréal and that she said that she also has a condo in Ottawa. Air Canada maintained that Mrs. Jurschewsky insisted on going to Montréal as all her family was living there. As she could not produce a ticket, she was brought to the Inter-Terminal Transfer Desk to verify the reservation records as passengers may hold more than one ticket for a given itinerary. Air Canada submitted that its personnel took steps to verify that Mrs. Jurschewsky wanted this service, which included questioning her as to whether she held a ticket to Montréal and as to how she had arrived in Toronto for her outbound flight. An agent sought permission to look through Mrs. Jurschewsky's belongings to either find a ticket to Montréal or a contact number, but this request was refused. Following these failed attempts, an agent assisted Mrs. Jurschewsky in purchasing a one-way ticket to Montréal. Air Canada also stated that there was no reason for the agent to verify with a third party whether Mrs. Jurschewsky should be permitted to travel to Montréal.

[53] The Agency's investigation with respect to the change in service originally arose from Air Canada's statement that Mrs. Jurschewsky's son had indicated that his mother "was incompetent". However, during the course of pleadings, Mrs. Jurschewsky firmly and repeatedly provided submissions to the contrary. Mrs. Jurschewsky describes herself as a frequent traveller, a person whose language skills span five oral and seven written languages and the holder of a valid Ontario Driver's License, having recently completed the written and practical exams in November 2005. This was further corroborated by Mrs. Jurschewsky's son and daughter-in-law. When Air Canada first characterized the difficulties Mrs. Jurschewsky encountered as being the result of her apparent cognitive disability, Mrs. Jurschewsky demanded an apology for what she considered its "scandalous and ill-advised comments". Air Canada's evidence confirms that during the exchange with the agents, Mrs. Jurschewsky communicated clearly and coherently. As well, the Agency notes that the submissions filed by Mrs. Jurschewsky are written in a clear and coherent manner. Consequently, the Agency accepts Mrs. Jurschewsky's submission that she does not have a cognitive disability.

[54] The Agency accepts that Mrs. Jurschewsky was weak and in a painful and tired state, which was exacerbated by her having travelled for over fifteen hours. While sympathetic to Mrs. Jurschewsky's plight, the Agency is nevertheless bound by its jurisdictional parameters. As mentioned above, an issue cannot be considered to be an obstacle within the meaning of subsection 172(1) of the CTA simply because it is experienced by a person with a disability. The issue must be directly related to a person's disability.

[55] There is nothing in the documentation on file to suggest that Mrs. Jurschewsky's consent to the service was void on the basis of a lack of capacity attributable to a cognitive disability. To the contrary, the evidence in this case supports a finding that the change in service was the result of Mrs. Jurschewsky's instructions.

[56] In light of the foregoing, the Agency finds that the circumstances surrounding the change in service provided to Mrs. Jurschewsky did not constitute an obstacle to her mobility.

[57] The Agency points out, however, that its decision in this regard could have been different for a person with a cognitive disability facing a similar situation. In the latter situation, the Agency would have expected Air Canada to take further steps to verify the passenger's expressed desire to change his/her service and to make every effort to find a contact number for the passenger and that an in-depth verification be made in order to seek a third party consent.

[58] The Agency now turns its comments to the manner in which wheelchair assistance was provided to Mrs. Jurschewsky.

[59] The Agency is faced with irreconcilable versions of events. The Agency made every effort to ensure that each side had an opportunity to make its case. In order to clarify the facts, questions were directed to the parties and a hearing was scheduled. As it was impossible for Mrs. Jurschewsky to attend an oral hearing due to her poor health, the Agency must make its determination without the benefit of the parties' oral testimony.

[60] In any dispute, it is important to determine which party has the obligation to prove a point in contention. In civil matters, the general rule is that the complainant bears a legal burden of persuasion and is therefore required to establish, on the balance of probabilities, that is, on the preponderance of the evidence, that his/her version adequately represents the facts in dispute or that his/her position is the correct one. This threshold can be conveniently recast by asking if it is more probable than not that a fact occurred as described by the complainant. It should be noted that the use of the words "required to establish" places the burden of persuasion on a complainant. On several occasions, the courts have acknowledged that there are degrees of probability within the standard itself. This principle was referred to by the Supreme Court of Canada in Smith v. Smith, [1952] 2 S.C.R. 312 at pp. 331-32: "(...) in every civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonably satisfied, and that whether or not it will be so satisfied must depend upon the totality of the circumstances on which its judgment is formed including the gravity of the consequences ..."

[61] That being said, the onus is therefore on Mrs. Jurschewsky to satisfy the Agency, on the balance of probabilities, that her version with respect to the way the service was provided is more probable than Air Canada's version. The law of evidence in this proceeding remains the same, even if the evidence were tendered in writing instead of orally. The Agency must determine if the allegations against Air Canada have been proven by carefully weighing the evidence filed in this case.

[62] The following examples illustrate some of the inconsistencies in the evidence:

  • Mrs. Jurschewsky submitted that from the time of deplaning she was assisted by a female agent whom she describes as having a poor and unacceptable attitude. Mrs. Jurschewsky submitted that this agent was a "young woman (30-40 years of age, strawberry blond hair)". Air Canada maintained, that "In fact, the person that accompanied Mrs. Jurschewski from deplanement to the baggage belt and then to the Inter Terminal Transfer desk was a man."
  • Regarding the events in the baggage hall, on the one hand Air Canada mentioned that Mrs. Jurschewsky insisted that she had to go to Montréal and wanted to go to Montréal as all of her family were living there. Mrs. Jurschewsky stated that she "categorically disagree[s] with the account of what transpired in the baggage hall. The Air Canada account is a cover-up fantasy." Contrary to Air Canada, Mrs. Jurschewsky stated that she did not insist that she had to go to Montréal. The Agency notes, however, that Mrs. Jurschewsky has confirmed saying to the agent that she still has a condo in Ottawa.
  • According to Air Canada, an agent asked Mrs. Jurschewsky how she had arrived in Toronto for the outbound flight. Initially, she said that she did not remember and after discussion she stated she arrived in Toronto by car. Mrs. Jurschewsky stated that "I did not insist that I go to Montréal and I did not say that I arrived at the Toronto airport by car."
  • According to Air Canada, Mrs. Jurschewsky stated that she had no family in Toronto and that they all lived in Montréal and when questioned if she had children, she said she did not have a son. Mrs. Jurschewsky denied having said that.
  • On the one hand Mrs. Jurschewsky said that she asked if her son's house could be called but the agent did not appear to pay any attention. On the other hand, she mentioned to the Agency that she looked for the paper with the telephone numbers on it, but could not find it.
  • Air Canada noted that the telephone number for Mrs. Cowan is different in the PNR than that in the correspondence. Mrs. Jurschewsky agreed that the telephone number is different and suggested that had Air Canada personnel contacted that number it would have heard a voice recording from Bell Canada informing them of the change in telephone number.
  • Mrs. Jurschewsky submitted that the Air Canada agent demanded her credit card to pay for the ticket to Montréal. Air Canada submitted that after having inquired about the price of a ticket to Montréal, she produced a credit card to pay for it.

[63] In considering the evidence, the Agency has employed the usual test to determine which of the two very different versions is more probable. A probability is a likelihood of more than 50 percent while a possibility is 50 percent or less. The evidence submitted is, to say the least, controverted and consideration has been given to the onus. In approaching the burden of proof, it is the responsibility of the complainant to provide sufficient evidence that outweighs the evidence of the respondent, otherwise the complainant will have failed to meet this burden.

[64] The Agency finds that although Mrs. Jurschewsky's version with respect to the way the service was provided could be said to be probable, Air Canada's version is equally probable. Therefore, the Agency finds that Mrs. Jurschewsky has not discharged the burden of proof with respect to the manner in which she was treated by Air Canada personnel.

CONCLUSION

[65] In light of the above, the Agency has determined that the circumstances surrounding the change in service provided to Mrs. Jurschewsky did not constitute an obstacle to her mobility.

[66] The Agency has also determined that Mrs. Jurschewsky failed to demonstrate that she encountered obstacles to her mobility with respect to the wheelchair assistance provided to her at the Toronto airport on June 11, 2005.

[67] Accordingly, the Agency contemplates no action in this matter.

Members

  • Guy Delisle
  • Baljinder Gill
  • Beaton Tulk
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