Decision No. 476-AT-A-2006

September 1, 2006

September 1, 2006

APPLICATION by Ronald Rose against Air Canada pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10 regarding the difficulties he experienced while travelling from Vancouver, British Columbia, Canada to Milwaukee, Wisconsin, United States of America on July 31, 2002, and during his return trip on August 12, 2002.

File No. U3570/02-47


APPLICATION

[1] On August 7, 2002, Aaron Crowhurst, on behalf of Ronald Rose, filed with the Canadian Transportation Agency (hereinafter the Agency) an application with respect to the matter set out in the title. On October 10, 2002, Mr. Crowhurst filed further information with the Agency to complete the application.

[2] On October 29, 2002, Air Canada filed its answer to the application and included copies of Mr. Rose's Passenger Name Record (hereinafter PNR) and a copy of the policies and procedures that Air Canada has in place for dealing with the needs of passengers with disabilities, including its policy regarding Unaccompanied Minor service. On November 12 and December 3, 2002, Mr. Crowhurst filed documentation in reply to Air Canada's answer.

[3] In its Decision No. LET-AT-A-6-2003 dated January 17, 2003, the Agency determined that additional information was needed to pursue its consideration of this case and to render a decision and it therefore required Air Canada to provide answers to written questions.

[4] On February 7, 2003, Air Canada responded to the written questions and on March 3, 2003, Mr. Crowhurst provided his comments with respect to Air Canada's responses.

[5] Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.

[6] On April 1, 2003, Air Canada was placed under court-sanctioned bankruptcy protection in order to facilitate the air carrier's operational, commercial, financial and corporate restructuring. As part of this process, the Ontario Superior Court of Justice issued an order pursuant to the Companies' Creditors Arrangement Act, R.S.C., 1985, c. C-36 (hereinafter the CCAA) staying all proceedings against or in respect of Air Canada and certain of its subsidiaries. As a consequence, the Agency was unable to continue processing this file.

[7] On August 23, 2004, the Ontario Superior Court of Justice issued an Order pursuant to the CCAA (hereinafter the Sanction Order) which lifted the Stay Order as of September 30, 2004.

[8] In this regard, a letter was sent to all affected applicants, including Mr. Rose, on October 1, 2004, informing them that as of September 30, 2004, the Stay Order imposed by the Ontario Superior Court of Justice had been lifted and that the Agency had resumed its complaint adjudication process. The Sanction Order extinguished all claims of a financial nature against Air Canada on or before April 1, 2003.

[9] All accessible transportation applications before the Agency against Air Canada and its subsidiaries in relation to incidents that occurred on or before April 1, 2003 (hereinafter the affected applications), including this application, were put on hold for a second period of time as a result of a dispute between the Agency and Air Canada on the scope of the Sanction Order. However, the Agency subsequently determined that it would proceed with its processing of the affected applications, including this application.

ISSUE

[10] The issue to be addressed is whether:

  • the failure by Air Canada to provide the services requested and required by Mr. Rose on his outbound flight from Vancouver to Milwaukee on July 31, 2002
  • the failure by Air Canada to provide Adult Unaccompanied Minor service to Mr. Rose on his return flight from Milwaukee to Vancouver on August 12, 2002, and
  • the communication between Air Canada and Mr. Crowhurst regarding Mr. Rose's disability, the services he required and the services that the carrier would be providing to him

constituted undue obstacles to Mr. Rose's mobility.

FACTS

[11] Mr. Rose had chronic degenerative neuropathy, cognitive difficulties from two brain aneurysms and multiple level joint disease resulting in neurological symptoms in his legs and arms and, as a result, required medication to control his pain.

[12] Mr. Crowhurst made reservations through an Air Canada reservation agent for Mr. Rose to travel from Vancouver to Milwaukee, on July 31 and return on August 12, 2002. According to Mr. Rose's travel itinerary, his flight schedule at the time of booking his reservation was as follows:

 
Date Flight No. Departing City Time of Departure Destination Time of Arrival
July 31-August 1, 2002 Air Canada Flight No. 162 Vancouver 23:55 Toronto 07:21
July 31-August 1, 2002 Air Canada Flight No. 365 Toronto 08:35 Milwaukee 09:13
August 12, 2002 Air Canada Flight No. 366 Milwaukee 09:43 Toronto 12:10
August 12, 2002 Air Canada Flight No. 133 Toronto 13:15 Vancouver 15:13

[13] Mr. Rose's flight from Vancouver to Toronto was delayed and he was rebooked on a flight out of Toronto that was scheduled to arrive in Milwaukee at 11:00 a.m. Subsequently, Mr. Rose was rebooked on a later flight from Toronto to Milwaukee. Mr. Rose got lost at the airport in Milwaukee and his luggage containing his personal care items was lost by the carrier in transit.

[14] Air Canada has a computer system that generates a PNR which contains information about the passenger, including the passenger's specific needs. No notation was made in Mr. Rose's PNR at the time of reservation that he was a person with a disability requiring particular services. The PNR for Mr. Rose provided to the Agency by Air Canada contains notations made after his outbound flight to the effect that he required wheelchair assistance and assistance with his return flight connection. Mr. Rose's PNR also contains the name and telephone number of his physician along with the following notations: "THIS IS NOT A MEDA. PSGR WAS SIMPLY REQUESTING HELP WITH CONNECTION AS HE WAS WITH SOMEONE ON OUTBND FLIGHT AND THEY GOT LOST AT APT. HE HAS NO DEMENTIA OR ALZHEIMER OR ANY OTHER MEDICAL CONDITION. BRAIN INJURY OCCURRED MANY YEARS AGO."

[15] After completion of Mr. Rose's outbound flight, Mr. Crowhurst contacted Agency staff to determine what steps he could take to prevent a similar situation from happening on Mr. Rose's return flight and was advised of Air Canada's Adult Unaccompanied Minor service (hereinafter Adult UM service) that is available to persons with intellectual disabilities. Adult UM service ensures that a representative of the air carrier is responsible for the passenger during flights, at connection points and during prolonged en route delays and the service is provided free of charge upon medical approval by Air Canada's Meda Desk. Mr. Crowhurst contacted Air Canada on August 9, 2002 to make arrangements for Adult UM service for Mr. Rose for his return flight on August 12, 2002.

[16] Air Canada's policy requires that services requested 48 hours prior to departure be provided to persons with disabilities.

[17] Air Canada's reservation procedure states that when a reservation is being made, agents will, upon request:

  • describe the services provided to persons with disabilities as required by Regulations
  • describe any other service that Air Canada provides to customers with disabilities
  • offer and confirm special services if required by the customer
  • indicate in the PNR services that have been requested by the customer
  • furnish the customer with written confirmation (copy of the PNR) of services to be provided.

[18] Mr. Rose was not provided with Adult UM service on his return flight.

[19] Mr. Rose's return flight from Milwaukee was delayed and he was not provided with a wheelchair or general assistance at the Milwaukee airport. Mr. Rose was provided with a wheelchair at his connection in Toronto, but was left unattended at a gate and missed his flight to Vancouver. As a result of the flight delays, Mr. Rose ran out of medication on his return flight and arrived in Vancouver in pain, disoriented, confused and upset. Mr. Rose deplaned as quickly as possible in Vancouver without remaining on board and waiting for wheelchair assistance.

POSITIONS OF THE PARTIES

Outbound flight

[20] Mr. Crowhurst submits that at the time of booking Mr. Rose's trip, he advised Air Canada of Mr. Rose's cognitive difficulties as well as his requirement for a wheelchair and general assistance and he was assured that a notation would be made in Mr. Rose's reservation file to that effect.

[21] Mr. Crowhurst notes that upon check in at the airport in Vancouver, he discovered that information regarding Mr. Rose's travel needs was not recorded in his reservation file. Mr. Crowhurst states that he therefore repeated his request for a wheelchair and general assistance at the Air Canada special services desk and was again assured that Mr. Rose would be looked after by the carrier and that a notation would be made in his reservation file regarding the services he required.

[22] Mr. Crowhurst states that Mr. Rose's flight from Vancouver to Toronto was delayed, with the result that his connection in Toronto would be missed, and he was therefore advised by Air Canada that Mr. Rose was being rebooked on a flight out of Toronto that would arrive in Milwaukee almost two hours later than his originally scheduled flight. Mr. Crowhurst states that he advised the persons who were to meet Mr. Rose in Milwaukee of the schedule change.

[23] Mr. Crowhurst notes that after boarding the aircraft in Vancouver, Mr. Rose became aware of the flight delay and made two or three requests to be deplaned because of his fear of problematic flight connections, but was told that all would be fine and that he could not leave the aircraft. Mr. Crowhurst states that although he waited in the airport in Vancouver until Mr. Rose's flight departed, he was never advised of this developing situation by Air Canada personnel in the airport who were aware of his continued presence there.

[24] Mr. Crowhurst states that he received a call from an Air Canada agent in Toronto several hours after Mr. Rose's departure from Vancouver advising that Mr. Rose was being rebooked on a later flight out of Toronto, which would delay his arrival in Milwaukee by a further six hours. Mr. Crowhurst states that he gave the Air Canada agent the contact numbers for the persons meeting Mr. Rose's flight in Milwaukee on the assumption that Air Canada would advise them of the schedule change. Mr. Crowhurst further states that efforts by the people who were to meet Mr. Rose in Milwaukee to obtain information regarding him when they arrived at the airport to meet his flight were unsuccessful and they eventually contacted Mr. Crowhurst in Vancouver to obtain the latest information regarding Mr. Rose's arrival time.

[25] Mr. Crowhurst refers to the notation in Mr. Rose's PNR that Mr. Rose was with someone on his outbound flight and that they got lost at the airport. Mr. Crowhurst confirms that Mr. Rose was in fact travelling alone and that, if another passenger was lost in the airport, he/she was not Mr. Rose's travelling companion or attendant. Mr. Crowhurst adds that when Mr. Rose arrived in Milwaukee, his luggage containing his personal care items had been lost by the carrier in transit. Mr. Crowhurst states that Mr. Rose felt traumatized by the events that he experienced during his outbound flights and adds that Air Canada should apologize for his unfortunate travel experience.

[26] Mr. Crowhurst refers to a letter that he forwarded to Air Canada on August 1, 2002, prior to Mr. Rose's return flight and prior to filing this application with the Agency. The letter describes the difficulties experienced by Mr. Rose on his outbound flight. Mr. Crowhurst notes that Air Canada only contacted him by telephone in response to the letter several days after Mr. Rose's return to Vancouver on August 12, 2002. Mr. Crowhurst asserts that the conversation in question was "placating at best" and that he did not get a sense of apology or regret from the Air Canada representative for the events that occurred.

[27] Air Canada states that all of its customer service agents have access to its policies and procedures and that its team in Vancouver is fully trained in all aspects of dealing with the needs of persons with disabilities. Air Canada indicates, however, that there was no mention of an intellectual disability in Mr. Rose's reservation file at the time of booking, and therefore there was no information that might have indicated his possible suitability for its Adult UM Service.

[28] Air Canada states that it has various services designed to meet the needs of passengers with disabilities, including wheelchair assistance, Meet and Assist service and Adult UM service and explains that when wheelchair assistance is requested, passengers are asked upon landing to remain seated until all other passengers have deplaned so they may be assisted in a more efficient manner. Air Canada also comments that its Meet and Assist Service simply consists of an agent meeting a passenger's flight and pointing him/her in the right direction.

[29] Air Canada indicates that in the event of a missed flight, the carrier will accommodate a passenger on the next available flight according to a pre-established list of priorities. Air Canada further indicates that in a situation involving a person with a disability, it will ensure that it provides the services that are documented on a passenger's reservation file.

[30] Air Canada asserts that it is unable to explain the specific circumstances that led to the difficulties experienced by Mr. Rose on his outbound flight. Air Canada notes, however, that it only became aware of the situation when its agent at the Milwaukee airport made a call regarding the difficulties Mr. Rose experienced and added a note to his reservation file that he required assistance with connections as he and another passenger had become lost at the airport.

Return flight

[31] Mr. Crowhurst asserts that he only became aware of Air Canada's Adult UM service from his communications with Agency staff, after the completion of Mr. Rose's outbound flight and that he attempted to make arrangements with Air Canada on August 9, 2002 for this service to be provided to Mr. Rose during his return flight on August 12, 2002.

[32] Mr. Crowhurst submits that because Mr. Rose's return flight was imminent, and in order to save time, he asked the Meda Desk to contact Mr. Rose's physician by telephone regarding his disability and suitability for Adult UM service, but was advised that the physician would have to complete a medical form. Mr. Crowhurst adds that Mr. Rose's physician expected a telephone call from Air Canada's Meda Desk and was willing to forego the requirements of the signed releases of information normally required.

[33] Mr. Crowhurst states that despite the fact that he made Air Canada aware that he was the point of contact for Mr. Rose's travel arrangements and provided his contact numbers, he was not advised by Air Canada that Mr. Rose did not qualify for Adult UM service during his return flight. Mr. Crowhurst speculates that the notation in Mr. Rose's PNR that he was with someone on his outbound flight and that they got lost at the airport might have led the Meda Desk to the erroneous assumption that Mr. Rose was travelling with someone and he questions whether this assumption might have influenced its actions.

[34] According to Mr. Crowhurst, Mr. Rose's return flight was delayed and he was not provided with a wheelchair or boarding assistance at the airport in Milwaukee. Mr. Crowhurst confirms, however, that Mr. Rose was provided with a wheelchair at the airport in Toronto, but was left sitting at a gate for over an hour and missed his flight to Vancouver. Mr. Crowhurst states that he was not advised that Mr. Rose had missed his flight and, furthermore, that Air Canada personnel were rude and reluctant to provide him with any information when he arrived at the airport to meet Mr. Rose. Mr. Crowhurst indicates that Air Canada eventually provided him with Mr. Rose's new flight information and advised him that Mr. Rose did not receive Adult UM service while travelling.

[35] Mr. Crowhurst states that Mr. Rose had brought on board sufficient medication for the anticipated duration of the flight, but that as a result of the delays, he ran out of medication. Mr. Crowhurst adds that Mr. Rose was angry because of the delays and in "vast amounts of pain" and, consequently, deplaned in Vancouver as quickly as possible without waiting for wheelchair assistance, knowing that Mr. Crowhurst would have brought medication to ease his pain.

[36] Mr. Crowhurst asserts that Air Canada ignored his request for assistance for Mr. Rose on his return flight and that, as a result, Mr. Rose arrived in incredible pain, disoriented, confused and upset. Mr. Crowhurst adds that it took two to three days to get Mr. Rose's pain under control after his return to Vancouver.

[37] Air Canada indicates that Adult UM Service is provided free of charge to customers with disabilities upon medical approval from Air Canada's Meda Desk and ensures that a carrier's representative is responsible for the passenger during flights, at connection points and during prolonged en route delays. Air Canada further indicates that a permanent file may be set up with the Meda Desk upon receipt of medical information from a physician. Air Canada notes, however, that in order to be provided with Adult UM Service, a passenger must be diagnosed with an intellectual disability. Air Canada further notes that in cases involving an intellectual disability, Adult UM Service may not be appropriate to meet the specific needs of a passenger and that, depending on the severity of the disability, the Meda Desk may decide that an attendant is required to accompany a passenger at all times for safety reasons.

[38] Air Canada explains that when it is made aware of particular needs that require the involvement of the Meda Desk, a standard medical form is sent to the passenger's physician requesting information necessary to assess the type of assistance required. Air Canada asserts that it was not aware that Mr. Rose had a disability at the time of booking his reservation, and adds that its Meda Desk only became involved after completion of Mr. Rose's outbound flight, at which time a medical form was forwarded to his physician.

[39] In its answer, Air Canada states that Mr. Rose's reservation file indicates that the Meda Desk, after reviewing the medical information received from Mr. Rose's physician, established that he did not qualify for Adult UM service, but was simply requesting help with his connection. In its answers to written questions, however, Air Canada states that Mr. Rose's physician never completed and returned the medical form and the Meda Desk was therefore not in a position to assess if Mr. Rose was diagnosed with an intellectual disability and required particular assistance and, if so, what services would be appropriate for him.

[40] Air Canada asserts that where there is a mention of a disability on a passenger's reservation file, its agents will contact the individual indicated on the reservation file as responsible for the passenger. Air Canada further asserts that because Mr. Rose's reservation file did not indicate that he was a person with a disability, Mr. Crowhurst was not contacted regarding flight delays because he appeared on Mr. Rose's reservation record as the credit card holder only.

[41] According to Air Canada, when wheelchair assistance is requested the passenger is asked to remain seated until all other passengers have deplaned to allow the carrier to provide the necessary assistance in an efficient manner and if the service does not meet a passenger's particular needs, he/she is expected to seek assistance from carrier personnel. Air Canada states that Mr. Rose did not remain on board the aircraft for assistance according to the instructions provided in the announcement of the in-flight crew upon landing in Vancouver and they were therefore unable to identify him as a passenger who required deplaning assistance.

[42] Mr. Crowhurst expresses doubts about Air Canada's ability to provide assistance to persons with disabilities and states that, in his opinion, Air Canada's answer does not address the concerns raised in Mr. Rose's application.

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, Mr. Rose had chronic degenerative neuropathy, cognitive difficulties from two brain aneurysms and multiple level joint disease resulting in neurological symptoms in his legs and arms and, as such, was 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 present case

Failure to provide assistance required on the outbound flight

[48] It is clear from the evidence that Mr. Crowhurst was concerned about Mr. Rose travelling alone and made every effort to ensure that his needs would be met. The Agency therefore accepts that, at the time of booking Mr. Rose's reservation, Mr. Crowhurst advised Air Canada that Mr. Rose had cognitive difficulties and required assistance. In this regard, wheelchair as well as general assistance were requested at booking and again at the check-in counter in Vancouver when it was discovered that Mr. Rose's reservation file contained no notation regarding the services that had been requested for him.

[49] Despite these efforts, Air Canada failed to note Mr. Rose's disability and the services requested on his behalf in his PNR. As a result, Mr. Rose did not receive the assistance he required and experienced difficulties on his outbound flight from Vancouver to Milwaukee on July 31, 2002, including becoming lost at the Milwaukee airport, and he felt traumatized by the events that he experienced.

[50] The Agency therefore finds that the failure by Air Canada to provide the assistance requested and required by Mr. Rose on his outbound flight from Vancouver to Milwaukee on July 31, 2002 constituted an obstacle to his mobility.

Failure to provide Adult UM service on the return flight

[51] Following the problems Mr. Rose experienced on the outbound flight, Mr. Crowhurst contacted the Agency and became aware of Air Canada's Adult UM service. The Agency accepts that Mr. Crowhurst attempted to make arrangements with Air Canada on August 9, 2002 for this service to be provided to Mr. Rose during his return flight on August 12, 2002. The Agency notes that Air Canada does not deny that this contact occurred. The Agency also notes Air Canada's conflicting explanations that its decision that Mr. Rose did not qualify for Adult UM service was: (1) based on the medical information provided by his physician; and (2) because his physician never completed and returned the medical form to the Meda Desk. Regardless, Air Canada's decision was not communicated to Mr. Crowhurst.

[52] Despite Air Canada's decision that Mr. Rose did not qualify for Adult UM service, the Agency notes that there were notations made in Mr. Rose's PNR by an Air Canada agent at the Milwaukee airport regarding the difficulties he experienced on his outbound flight and his requirement for a wheelchair and Meet and Assist service on his return flight. Mr. Rose, however, received neither a wheelchair nor general assistance at the airport in Milwaukee and, while he did receive wheelchair assistance at the Toronto airport, he was left sitting at a gate for over an hour, missed his flight to Vancouver and ran out of the medication that he had brought with him for the trip. As a result, Mr. Rose arrived in Vancouver in pain, disoriented, confused and upset.

[53] The Agency, therefore, finds that the failure by Air Canada to provide Adult UM service to Mr. Rose on his return flight from Milwaukee to Vancouver on August 12, 2002 constituted an obstacle to his mobility.

Communication

[54] The Agency is of the opinion that in this case, Air Canada had opportunities to discuss Mr. Rose's disability, identify services that would meet his needs and advise Mr. Crowhurst of the services to expect. However, Air Canada failed, not only during the reservation process, but also at check-in, to enter into a dialogue with Mr. Crowhurst to confirm the nature or degree of Mr. Rose's cognitive disability and the particular services he required. Air Canada's personnel also failed to consider all possible alternatives that would satisfy Mr. Rose's travel needs, including Adult UM service, and convey such alternatives to Mr. Crowhurst to allow him to make an informed decision on the services to be provided. Similarly, the Agency is of the opinion that by failing to properly assess Mr. Rose's travel needs and discuss the available alternatives, Air Canada demonstrated a lack of awareness of, and sensitivity to, Mr. Rose's particular travel needs. As a direct result, Mr. Rose experienced difficulties on his outbound flight.

[55] The Agency is also of the opinion that when Mr. Rose became lost at the airport in Milwaukee, the agent who made notations in his PNR as a consequence of this incident missed the opportunity to rectify the situation at that time when he failed to seek clarification regarding Mr. Rose's disability and the services he required.

[56] For the return flight, Adult UM service was requested by Mr. Crowhurst. The Agency notes that Air Canada's Meda Desk failed at that time to have a comprehensive dialogue with Mr. Crowhurst to understand the nature of Mr. Rose's disability and to assess what services should be provided. The Agency further notes that, despite providing his name and contact information, Air Canada failed to communicate with Mr. Crowhurst regarding its decision that Mr. Rose did not qualify for Adult UM service. As a result, Mr. Crowhurst was not in a position to ensure that Mr. Rose received the services he required and, consequently, Mr. Rose arrived home in pain, disoriented, confused and upset.

[57] The Agency finds that the foregoing failure to have an appropriate dialogue with Mr. Crowhurst, as well as the lack of sensitivity to, and lack of awareness of, Mr. Rose's particular travel needs resulted in circumstances that seriously detracted from Mr. Rose's travel experience. In view of this, the Agency finds that the failure by Air Canada's personnel to communicate with Mr. Crowhurst regarding Mr. Rose's disability, the services he required and the services available to him constituted an obstacle to his mobility.

Whether the obstacle was undue

[58] 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" 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.

[59] 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 present case

Failure to provide assistance required on the outbound flight

[60] Having found that the failure by Air Canada to provide the services requested and required by Mr. Rose on his outbound flight from Vancouver to Milwaukee on July 31, 2002 constituted an obstacle to his mobility, the Agency will now consider whether the obstacle was undue.

[61] Despite Mr. Crowhurst's efforts to ensure that Mr. Rose's needs would be met during his travel by advising the carrier of his disability, Mr. Rose's PNR contained no notation regarding the nature of his disability or the services he required for his outbound flight. The Agency questions Air Canada's suggestion that it only became aware of the nature of Mr. Rose's disability when one of its agents at the Milwaukee airport made a call and added a note to Mr. Rose's reservation file to the effect that Mr. Rose and another passenger became lost at the airport and that he required assistance with connections. As previously noted, the Agency accepts that Mr. Crowhurst provided information regarding Mr. Rose's disability at the time of reservation and again at check-in. The Agency also questions how the agent in Milwaukee arrived at the conclusion that Mr. Rose did not have a medical condition when he noted in Mr. Rose's PNR that he "has no dementia or alzheimer or any other medical condition." The Agency is of the opinion that the circumstances of this case highlight the difference between a disability and a medical condition. A disability is often not indicative of an underlying medical condition. Specifically, a person with a disability may not be "diagnosed" as having a medical condition but may nonetheless experience limitations or restrictions in his/her use of the transportation network and be considered, for the purposes of Part V of the CTA, to be a person with a disability.

[62] The Agency notes that Air Canada's own policies and procedures provide that when a person with a disability requests a service 48 hours prior to departure, as was done in this case, the carrier must provide the service. Air Canada's reservation procedure provides that when a reservation is being made, agents are to describe, upon request, the services available to persons with disabilities, order and confirm these services, indicate in the PNR the services that have been requested and furnish the customer with written confirmation of the services to be provided. The Agency also notes that the policy only requires agents to indicate the services requested in the PNR and not the disability. The Agency is of the opinion that in order for agents to be better able to provide a service, more information regarding a person's needs, including the nature of the person's disability and the nature of the person's limitations, should be documented in the PNR. The Agency notes that such written comments would assist reservation or check-in agents in determining whether a particular service code is correct, which would allow an agent to seek clarification from the person with a disability before difficulties occur.

[63] The Agency notes that Air Canada's failure to accurately document the nature of Mr. Rose's disability and the services that had been prerequested for him resulted in its failure to provide those services. Air Canada's failure to confirm the services that would be provided to Mr. Rose further compounded the problem. The Agency is concerned with cases such as this where carriers do not follow policies and procedures that are in place to ensure that a carrier responds to the needs of persons with disabilities, such as entering into an appropriate dialogue regarding the passenger's particular needs and the available services offered by the carrier; determining the appropriate services to meet the passenger's needs; accurately recording the services chosen by or on behalf of the person with a disability in his/her reservation record; furnishing written confirmation of the services to be provided; and providing the services, as requested. The difficulties experienced by Mr. Rose on his outbound flight are indicative of the consequences of the failure of employees to observe a carrier's policies and procedures.

[64] Based on the foregoing, the Agency finds that the failure by Air Canada to provide the assistance requested and required by Mr. Rose on his outbound flight from Vancouver to Milwaukee on July 31, 2002, constituted an undue obstacle to his mobility.

Failure to provide Adult UM service on the return flight

[65] Having found that the failure by Air Canada to provide Adult UM service to Mr. Rose on his return flight from Milwaukee to Vancouver on August 12, 2002 constituted an obstacle to his mobility, the Agency will now consider whether the obstacle was undue.

[66] The Agency notes Air Canada's policy that approval from its Meda Desk is required for customers with disabilities who wish to receive Adult UM service. The Agency also notes that Air Canada submitted the following contradictory accounts concerning Mr. Rose's eligibility for Adult UM Service: (1) its Meda Desk established that Mr. Rose did not qualify for Adult UM Service after reviewing the medical information received from his physician; and (2) Mr. Rose's physician never completed and returned the medical form and its Meda Desk was therefore not in a position to assess what services would be appropriate for Mr. Rose.

[67] Air Canada failed to advise Mr. Crowhurst that Adult UM service would not be provided to Mr. Rose. The failure to communicate this critical information was compounded by the fact that while notations were made to Mr. Rose's reservation file after his outbound flight by an Air Canada agent in Milwaukee to the effect that he had no "dementia or Alzheimer or any other medical condition", but became lost at the airport and required a wheelchair and assistance with connections on his return flight, even these services were not fully provided to Mr. Rose, with the result that he missed his connection in Toronto.

[68] The Agency notes Air Canada's explanation that because Mr. Rose's reservation file did not indicate that he was a person with a disability, Mr. Crowhurst was not advised of the missed connection in Toronto because he appeared on Mr. Rose's reservation file as the credit card holder only. The Agency questions the inconsistency between Air Canada's explanation and the fact that Mr. Crowhurst contacted Air Canada on behalf of Mr. Rose on many occasions, such as at the time of reservation, at check in at the Vancouver airport for his outbound flight and when arranging for Adult UM service for Mr. Rose's return flight and, further, the fact that Mr. Crowhurst was contacted by Air Canada when Mr. Rose missed his connection in Toronto on his outbound flight. It is apparent, therefore, that Mr. Rose's PNR was not updated to reflect the information on his disability and the services that he required at various stages during his travel.

[69] Based on the foregoing, the Agency finds that the failure by Air Canada to provide Adult UM service to Mr. Rose on his return flight from Milwaukee to Vancouver on August 12, 2002 constituted an undue obstacle to his mobility.

Communication

[70] Having found that the failure by Air Canada to communicate with Mr. Crowhurst regarding Mr. Rose's disability, the services he required and the services that the carrier would be providing to him constituted an obstacle to his mobility, the Agency will now consider whether the obstacle was undue.

[71] The Agency finds that Air Canada's failure to enter into an appropriate dialogue with Mr. Crowhurst regarding Mr. Rose's travel needs and available service options is indicative of Air Canada's lack of awareness of, and sensitivity to, Mr. Rose's specific travel needs. The Agency is of the opinion that had Air Canada entered into an appropriate dialogue with Mr. Crowhurst regarding Mr. Rose's disability, his particular needs and the available service options when his reservation was being made, it would have become clear that Mr. Rose required assistance beyond the use of a wheelchair or Meet and Assist service which, according to Air Canada, consists only of a customer service agent meeting the flight and pointing the passenger in the right direction.

[72] The Agency notes that Mr. Crowhurst made considerable efforts, following the incidents experienced by Mr. Rose on his outbound flight, to ensure that he would be provided with the services he required during his return flight. In this regard, Mr. Crowhurst contacted Agency staff, who informed him of Adult UM service. Mr. Crowhurst then contacted Air Canada's Meda Desk to discuss the procedures for arranging for Adult UM service for Mr Rose. While the Agency recognizes that Air Canada needs medical information in order for it to understand the nature of the person's limitations and how best to meet his/her needs, the Agency is of the opinion that it is incumbent on the Meda Desk to have a comprehensive dialogue with the passenger with the disability or the person acting on his/her behalf to fully understand the nature of the person's disability in order to make a proper assessment of the services required. In its submission, Air Canada stated that in order to be provided with Adult UM service, a passenger must be "diagnosed with an intellectual disability". The Agency is concerned with Air Canada's requirement that persons with cognitive disabilities must be diagnosed with an intellectual disability. In this case, Air Canada's submissions on what steps its Meda Desk took with respect to Mr. Crowhurst's request for Adult UM service for Mr. Rose make it clear that the Meda Desk applied an inappropriately rigid policy in this case, especially in view of the problems that Mr. Rose experienced on his outbound flight.

[73] Furthermore, the Agency is of the opinion that an understanding of a person's abilities and limitations goes beyond the naming of a disability. While the information received from Mr. Rose's physician may not have characterized Mr. Rose's medical condition and cognitive difficulties in terms of an "intellectual disability", the Agency is of the opinion that had the Meda Desk made efforts to obtain further information and clarifications in this regard, it would have been clear that services such as wheelchair assistance and Meet and Assist service would not fully meet Mr. Rose's needs and that Adult UM service was required.

[74] In light of the foregoing, the Agency concludes that the Meda Desk failed to make a reasonable effort to correctly understand Mr. Rose's needs and the nature of his disability.

[75] Furthermore, the Agency is of the opinion that it was incumbent on the Meda Desk to have immediately advised Mr. Crowhurst that Adult UM service would not be provided to Mr. Rose so that alternate travel options could have been explored, and to fully document its decision. In the absence of an indication to the contrary by Air Canada, Mr. Crowhurst believed that Mr. Rose would be provided with Adult UM service and that his travel needs would be met on his return trip.

[76] The Agency points out that section 4 of the Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42 (hereinafter the Training Regulations), requires that training on the policies and procedures of the air carrier with respect to persons with disabilities be provided to employees and contractors who provide transportation-related services, interact with the public or make decisions with respect to the carriage of persons with disabilities to ensure that they are aware of, and sensitive to, the particular needs of persons with disabilities and are able to provide the necessary level of service to such travellers.

[77] The Agency is of the opinion that Mr. Rose's unfortunate travel experience emphasizes the need for proper personnel training regarding the provision of services to persons with disabilities. The Agency is also of the opinion that the situation experienced by Mr. Rose is indicative of a lack of training with respect to the services required by persons who have a cognitive disability. This case also highlights the need to adopt a broad, inclusive approach to the term "intellectual disability"; one that recognizes the broad spectrum of abilities and functional limitations of persons with cognitive disabilities. Therefore, the Agency finds it appropriate for Air Canada to provide refresher training to its reservations and Meda Desk personnel in respect of the services required by persons who have a cognitive disability and to expand its training module in this respect.

[78] The Agency is of the opinion that it is important for carriers to openly communicate with persons with disabilities to ensure that their needs are met during travel and in order that they can be provided with an increased sense of security, safety and confidence, both prior to and during their travel experience. In this case, the failure by Air Canada's personnel to communicate with Mr. Crowhurst at the time of reservation regarding Mr. Rose's disability the services he required and the services available to him and subsequently with the Meda Desk led to the provision of inadequate services that did not meet Mr. Rose's travel needs.

[79] Furthermore, the Agency is of the opinion that the Meda Desk has an obligation to contact the traveller, or the person responsible for making his/her travel arrangements, to fill in the gaps in information when it contemplates denying a request for a special service. The failure by Air Canada's Meda Desk to contact Mr. Crowhurst to advise him that Adult UM service would not be provided to Mr. Rose removed any possibility for whatever medical information was missing to be provided and for Mr. Crowhurst to be able to clarify the nature of Mr. Rose's disability and his particular needs. This failure by Air Canada's personnel to communicate with Mr. Crowhurst resulted in Mr. Rose experiencing significant difficulties on his return trip which could have been avoided.

[80] The Agency, therefore, finds that the failure by Air Canada's personnel to communicate with Mr. Crowhurst regarding Mr. Rose's disability, the services he required and the services available to him constituted an undue obstacle to his mobility.

CONCLUSION

[81] In light of the Agency's findings of undue obstacles to Mr. Rose's mobility, Air Canada is required to take the following corrective measures:

  • Amend its training module regarding the provision of services to persons with disabilities to incorporate this incident in order to ensure that similar incidents do not occur in the future. The training module should include a description of the situation that developed with respect to Mr. Rose, without naming him, as an example of what can happen when the lines of communication break down between its agents, including Meda Desk staff, and persons with disabilities, or persons making travel arrangements on their behalf, regarding the services that are available to them, and regarding the carrier's decisions as to the services that will be provided. The training module should also include information on cognitive/intellectual disabilities and a reminder of the services available to persons with disabilities, including Adult UM service, wheelchair assistance and Meet and Assist service, with an explanation of what each service entails, and should emphasize that it is the responsibility of carrier personnel to gain a comprehensive understanding of a person's disability by asking questions as required and providing a list of services available that are designed to meet the person's needs so that informed decisions can be made by passengers with disabilities regarding their travel choices.

    In this regard, agents should be encouraged to use the Agency's Reservation Checklist when making reservations for persons with disabilities. The module should also reflect the importance of noting the nature of a passenger's disability and the services to be provided in his/her PNR, updating the PNR as the need arises and the importance of furnishing written confirmation of the services to be provided. Air Canada must also submit to the Agency a copy of the amendment to its training module and the time frame for completion of training its reservations and Meda Desk personnel on the updated module. In this regard, as a minimum, the training on the updated module should coincide with the refresher training, following the approval of the amendments by the Agency.

  • Report to the Agency on what policies and procedures have been developed to prevent the recurrence of a situation similar to that experienced by Mr. Rose, including:

    • the policies and procedures to be followed by reservation agents where a person identifies an intellectual disability;
    • the policies and procedures to be followed by the Meda Desk to ensure that its assessment of which passengers have an "intellectual disability" and therefore qualify for Adult UM services will not be unnecessarily restrictive;
    • the policies and procedures to be followed by the Meda Desk where information is lacking or unclear or where the Meda Desk intends to deny a requested service;
    • the procedures for ensuring that a decision that a passenger does not qualify for a particular type of service is promptly communicated to the passenger or the person making travel arrangements on his/her behalf; and
    • the procedures for ensuring that its reservation agents initiate a dialogue in order to fully understand the nature of a person's disability and the services he/she requires, and that they furnish written confirmation of the services to be provided to the person.
  • Issue a bulletin to its employees who may be required to interact with the public and/or make decisions in respect of services to be provided to persons with disabilities, such as its reservation agents and Meda Desk, summarizing the difficulties experienced by Mr. Rose, without naming him, and emphasizing the importance of the awareness of, and sensitivity to, the particular needs of travellers with disabilities. The bulletin should emphasize the importance of complete and open communication with passengers with disabilities or persons making travel arrangements on their behalf to correctly understand the nature of a passenger's disability and the services required and to seek clarification in this regard if necessary and, in situations where the Meda Desk is contemplating denying a request for a specific service, to immediately advise the person with the disability or the person making the travel arrangements on his/her behalf, that the service will not be provided, as required by Air Canada's policies and procedures. This bulletin should reinforce the importance of following the carrier's policies and procedures with respect to persons with disabilities and outline all the services Air Canada offers to passengers with disabilities and highlight Adult UM service for adult passengers with intellectual disabilities, in order to prevent a recurrence of Mr. Rose's unfortunate travel experience. As well, the Agency's Reservation Checklist should be highlighted as a useful tool to assist in ensuring that persons with disabilities receive the services that they require.

[82] Air Canada is required to issue the bulletin within thirty (30) days from the date of this Decision, and provide a copy to the Agency. With respect to the remaining corrective measures, Air Canada is required to submit copies of the above-noted materials in draft form, within ninety (90) days from the date of this Decision and to obtain the Agency's written approval thereon, prior to Air Canada's finalization of the above-noted corrective measures. The Agency will review these materials and advise Air Canada as to whether they are satisfactory, as well as indicate the time frame within which the corrective measures must be finalized.

[83] Following a review by the Agency of the appropriateness of the measures taken by Air Canada to remove the undue obstacles, the Agency will determine whether further action is necessary in this matter.

Members

  • Beaton Tulk
  • George Proud
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