Decision No. 482-AT-A-1998

Follow-up Decision No. 216-AT-A-1999

October 6, 1998

File No. U 3570/98-10

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APPLICATION

Sherry Nornberg filed an application with the Canadian Transportation Agency (hereinafter the Agency) with respect to the matter set out in the title. The application was received on June 8, 1998.

ISSUE

The issues to be addressed are whether or not the level of assistance provided to Ms. Nornberg and the non-provision by Canadian Regional Airlines (1998) Ltd. carrying on business as Canadian Regional (hereinafter Canadian Regional) of the services requested constituted undue obstacles to her mobility, and, if so, what corrective measures should be taken.

FACTS

Ms. Nornberg travelled with Canadian Regional from Edmonton to Fort St. John on March 26, 1998. As a result of surgery, she wore an abductor brace which prevented her from sitting in an upright position. Her mobility was also limited and she was unable to stand on her own. Rider Travel, who made the travel arrangements, advised the air carrier of Ms. Nornberg's special needs.

Upon arrival at the Edmonton International Airport, Ms. Nornberg was requested to pay a $10.00 "airport improvement fee" which she was unable to pay as she had not been previously notified. She was, however, allowed to travel without the payment of this fee.

Although Ms. Nornberg was provided with a wheelchair for her use in the Edmonton International Airport, it was not adjustable and could not accommodate her inability to sit upright.

At the airport security screening point, Ms. Nornberg was subjected to a manual body search as she could not go through the metal detector due to the abductor brace. However, she was not escorted to a private room prior to this screening.

Although a request was transmitted to Canadian Regional that Ms. Nornberg would need to be carried on to the plane, she walked with her crutches up the aircraft stairs and to her seat in the third row. Once seated on the aircraft, Ms. Nornberg requested a device to support her right leg. The flight attendant was unable to accommodate her request. Consequently, she had to support her leg by holding it up with her hands for the two hour flight.

Upon arrival in Fort St. John, Ms. Nornberg deplaned the aircraft by climbing down the stairs with her crutches.

POSITIONS OF THE PARTIES

Ms. Nornberg provided a copy of Rider Travel's itinerary information sheet, which she indicates having received at the hospital. Along with the flight details, it contains hand-written notes which she understood to be the arrangements that were made for her. Two of these notes indicate "wheelchair assistance requested" and "carry on to plane".

Ms. Nornberg also provided a copy of a letter she received from the Medical Services Branch at Health Canada. The Health Centre clerk assured Ms. Nornberg that she had confirmed the "carry on to plane" request with Rider Travel, which, in return, confirmed that the message had been passed on to the carrier.

With regard to the security search, Ms. Nornberg states that she did not object to being manually searched, but expected that such a search would be performed in a private room. She indicates that the search was done in front of the assembled group of security employees and the person who escorted her at the airport. Ms. Nornberg states that the manner in which the search was performed caused her extreme embarrassment. In addition, Ms. Nornberg explains that she was required to raise herself in the wheelchair to assist the female security agent in carrying out this search, which Ms. Nornberg believes jeopardized her surgery.

She is also concerned that the assistance she had understood to have been requested for her was not provided by Canadian Regional, namely assistance to board and deplane the aircraft. With arrangements for services having been made in advance, Ms. Nornberg expresses the view that the services should have been provided and the carrier's personnel should have been aware of her situation. Where an air carrier is not equipped to deal with individuals such as herself, nor able to accommodate a person's disability, Ms. Nornberg suggests that the carrier should consider refusing to carry them.

It is Ms. Nornberg's hope that her complaint will result in those involved with arranging services, from the travel agent to the flight attendant, taking greater care and informing all those involved of what is available or not available.

Canadian Airlines International Ltd. carrying on business as either Canadian International or Canadi*n (hereinafter Canadi*n) responded to the application on behalf of Canadian Regional. Canadi*n regrets the discomfort experienced by Ms. Nornberg, but it objects to this complaint being investigated pursuant to the provisions of the Canada Transportation Act (hereinafter CTA) applicable to the transportation of persons with disabilities. According to Canadi*n, a person that is recovering from surgery is not a "person with a disability" for the purposes of the legislation, as the reduction in mobility is of a temporary nature. Consequently, Canadi*n is of the view that the subject complaint involves a consumer who did not receive the customer service she expected.

Canadi*n provided a copy of Ms. Nornberg's passenger name record (hereinafter the PNR), which contains the special handling request "passenger nn to be carried up stairs high seat nn" and a request appended by the travel agency for an onboard wheelchair. Canadi*n explains that the Dash 8 Turboprop aircraft used in this case does not have an onboard chair, and that the request for a "high seat" could not be honoured as all seats in aircraft are at a fixed height. A bulletin was issued by Canadi*n to remind all travel agents that not all aircraft have onboard wheelchairs. In addition, the carrier has asked that its area sales manager bring this matter to the attention of Rider Travel.

With respect to the matter of the security search, Canadi*n advises that the security screening services at the Edmonton International Airport are administered by Air Canada. Nevertheless, Canadi*n states that it was assured by the manager of the security firm that its normal procedure is to offer the passenger the choice of being screened in a public or a private area. In response to this statement, Ms. Nornberg submits that she was not offered such a choice. The carrier also provided, for the Agency's confidential information, a copy of the training program for security screening used by the security firm, as authored by Transport Canada. That training addresses the privacy and professionalism aspects of manual searches. It indicates that such searches should be conducted in a private screening area, and that tact, courtesy, discretion and caution must be used when conducting the search. In addition, this function must be performed in a thorough and professional manner, in order to not embarrass the passenger.

On the issue of the airport wheelchair, Canadi*n advises that, according to the PNR, a request was not made for an adjustable wheelchair. Furthermore, Canadi*n would not have been able to honour such a request as airport wheelchairs are basic units and are not adjustable.

With respect to Ms. Nornberg's boarding, Canadi*n advises that the staff handling the flight does not remember any problem with the boarding. Nevertheless, it did issue a bulletin to its employees in Edmonton reminding them to interact with a customer who may need services. The July 17, 1998 bulletin stipulates that, when dealing with persons with disabilities, employees should "discuss with them as to what exactly their requirements are, i.e. wheelchair, carry-on etc.".

With respect to deplaning in Fort St. John, Canadi*n states that there is no incident report on file. The flight attendant did, however, remember requesting that a wheelchair be available for Ms. Nornberg upon arrival in Fort St. John. In response, Ms. Nornberg states that she did complain and mention to Canadi*n's staff and flight attendant that she was to be carried on to the aircraft.

AIR CANADA'S COMMENTS ON THE SECURITY SCREENING ISSUE

In view of Canadi*n's response concerning the security screening services at the Edmonton International Airport, the Agency sought Air Canada's comments on this matter.

Air Canada advises that the certification of security officers is subject to the completion of an extended training program provided by Transport Canada, which includes a module on serving customers with disabilities. According to Air Canada, this module fully complies with the Agency's Personnel Training for the Assistance of Persons with Disabilities Regulations.

Air Canada has provided a copy of the Security Guard Certification records of the four security officers who were on duty at the time of the incident and a copy of a Transport Canada instructor letter, which provides additional information on the security officers' training. The re-certification of two of the four officers in question were conducted on a yearly basis until 1996. This is now done every two years. The other two officers are still within their first two years of employment. Re-certification is conducted by written theoretical testing and by monitoring the officer while on duty.

Air Canada states that it was informed by the security firm that Ms. Nornberg's unfortunate experience has been thoroughly reviewed with the security officers concerned to prevent the recurrence of such an incident.

ANALYSIS AND FINDINGS

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

The Agency's mandate under Part V of the CTA is to eliminate undue obstacles to the mobility of persons with disabilities from the federal transportation network. While the CTA does not define "persons with disabilities", the Agency is of the opinion that a broad interpretation of the term is appropriate given the purpose of the provisions. As such, the Agency considers the term "persons with disabilities" to include both permanent and temporary disabilities, including temporary disabilities arising from medical conditions, and it will address Ms. Nornberg's complaint pursuant to subsection 172(1) of the CTA.

With respect to the manner in which Ms. Nornberg's security check was carried out at the Edmonton International Airport, the security officer clearly did not comply with the security firm's normal procedure of offering a choice of locations for a manual security screening to the passenger, and this caused the passenger extreme embarrassment. While the security officers at the Edmonton International Airport receive training on how to deal with persons with disabilities and that training stipulates that manual searches should be conducted in a private screening area, it is not known why Ms. Nornberg was not offered a private room for the manual search. The Agency finds that this impropriety in conducting a manual search in public without offering a private room constituted an undue obstacle to Ms. Nornberg's mobility in that being manually searched in public caused Ms. Nornberg extreme embarrassment and the prospect of undergoing the process again could discourage her from travelling again. In addition, Ms. Nornberg's embarrassment could have been easily avoided had the security officers simply applied the appropriate procedures. The Agency has taken into consideration the content of the training program with respect to the location of a manual search, the up-to-date training records of the security officers concerned, and the action taken by the security firm in reviewing Ms. Nornberg's experience with them. The Agency is of the opinion that these factors will help to prevent the recurrence of such an incident and, as such, contemplates no action in this matter.

The Agency finds that, contrary to paragraph 147(1)(c) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR), the assistance during boarding and deplaning that was requested for this passenger over 48 hours prior to the flight's departure was not provided by Canadian Regional.

Further, with respect to the non-provision of the boarding and deplaning assistance, the carrier's comments focus on the confusion by what was meant by a "high chair" in the PNR message "passenger nn to be carried up stairs high seat nn" and the unavailability of an on-board wheelchair on the aircraft. However, the Agency is of the view that the requests for service clearly stated that she needed to be carried up stairs. By implication, this information should alert the carrier to the likelihood that she must also be carried down stairs, especially given the fact that the carrier was made aware of the reason for her request for services. If, for some reason, the carrier's staff was confused by other parts of the message, the obligation was on that staff to contact either the travel agent or the passenger's representative to clarify what, exactly, is required to meet the passenger's needs.

For the reasons set out above, the Agency also finds that Canadian Regional's failure to provide Ms. Nornberg with assistance in boarding and deplaning was an obstacle to her mobility. It is the Agency's opinion that this obstacle was undue as it could have been avoided had Canadian Regional acted on the messages inputted in the passenger's PNR by providing the requested carry-on assistance and by making further inquiries to clarify those parts of the messages which were considered unclear. Canadian Regional's representatives also failed to take advantage of the several opportunities they would have had to communicate with the passenger, for example, upon check-in and at the boarding gate, to clarify any confusion surrounding her travel needs, and to make arrangements to provide her with the requested assistance.

With respect to the wheelchair provided for Ms. Nornberg's use at the Edmonton International Airport, the Agency recognizes that the standard manual wheelchairs, which are normally used by air carriers to assist passengers with mobility impairments at airports, are not equipped with a feature that would have allowed Ms. Nornberg to sit in a reclined position. It is the Agency's opinion that, while the absence of such a feature on the airport wheelchair did create an obstacle to her mobility, it is not an undue obstacle in this case as it would be unreasonable to expect that such wheelchairs would be equipped with this and the many other features that might be needed to accommodate each person's individual needs. However, the Agency plans to study the broader issue of full terminal accessibility. As part of that study, the Agency intends to further review the matter of airport wheelchairs.

It is the Agency's opinion that the level of communication between all parties involved was insufficient to ensure that everyone was well informed of what was expected on the day of travel and that this resulted in the described difficulties regarding not only the type of airport wheelchair used, but also the lack of leg support available on the aircraft.

Had a dialogue taken place between the carrier and the passenger or her representative prior to the day of departure, they could have discussed the wheelchair features required by the passenger and the carrier would have had an opportunity to advise of the limitations of its own wheelchairs. Alternate arrangements could have been made by one of the parties, if necessary, to accommodate her needs.

They could have also discussed the need to provide support for Ms. Nornberg's leg during the flight and either more appropriate seating could have been assigned or the parties could have been better prepared to take other measures which may have made her flight more comfortable.

The Agency is of the opinion that the inadequate communications at the time of booking between Ms. Nornberg's representative, the travel agent and the carrier, and the absence of consultation and discussion at the airport between Ms. Nornberg and all employees concerned as to Ms. Nornberg's individual needs, collectively contributed to the incidents she experienced.

While many factors contributed to this lack of communication, in light of the information that was transmitted to the carrier, it is the Agency's opinion that it was ultimately the carrier's obligation in this case to ensure that each party clearly understood the needs of the passenger and the carrier's ability to meet those needs. The Agency finds that the lack of communication and initiative demonstrated by the carrier in this case and the effects thereof constituted an undue obstacle to Ms. Nornberg's mobility as it could have been easily avoided through dialogue with the travel agent, the passenger representative or the passenger.

With respect to the requirement to pay the $10.00 airport improvement fee, the Agency notes that Ms. Nornberg was allowed to travel without paying that fee.

CONCLUSION

While the Agency finds that the lack of privacy during the security search constituted an undue obstacle to Ms. Nornberg's mobility, the Agency finds that the measures taken by the security firm will help to prevent the recurrence of such an incident and, as such, contemplates no further action in this matter.

With respect to the wheelchair provided for Ms. Nornberg's use at the Edmonton International Airport, the Agency finds that the absence of a reclining feature on the wheelchair did not constitute an undue obstacle to her mobility. However, when the Agency begins its study of the broader issue of full terminal accessibility, it intends to further review the matter of airport wheelchairs.

The Agency also finds that Canadian Regional's failure to provide Ms. Nornberg with assistance in boarding and deplaning constituted both a contravention of paragraph 147(1)(c) of the ATR and an undue obstacle to her mobility.

In addition, the Agency finds that the lack of communication and initiative demonstrated by the carrier in this case and the effects thereof constituted an undue obstacle to Ms. Nornberg's mobility. Canadian Regional is therefore required to send a bulletin to its travel agents, employees and contracted personnel reminding them of the importance of exchanging information concerning the transportation needs of persons with disabilities, not only when the passenger arrives at the airport, but also when the travel arrangements are being made.

Canadian Regional is also requested to submit a copy of this reminder to the Agency within thirty (30) days of the date of this Decision.

Members

• Gilles Dufault
• Michael Sutton, ing. - P. Eng.