Decision No. 504-AT-A-2006
September 20, 2006
APPLICATION by Brenda Linstead on behalf of her daughter, Candice Linstead, pursuant to subsections 172(1) and (3) of the Canada Transportation Act, S.C., 1996, c. 10, regarding the difficulties encountered while attempting to travel with Air Canada from Fredericton, New Brunswick to Goose Bay, Newfoundland and Labrador, via Halifax, Nova Scotia, on March 30, 2006.
File No. U3570/06-13
APPLICATION
[1] On April 7, 2006, Brenda Linstead, on behalf of Candice Linstead, filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. On April 13, 2006, Mrs. Linstead filed further information to complete the application.
[2] In Decision No. LET-AT-A-102-2006 dated April 21, 2006, Air Canada was required to provide its answer to the application, and include in its answer certain documentation in effect at the time Candice Linstead travelled. In the same Decision, the occupational therapist who treated Candice Linstead and the applicant were required to file specific information with the Agency. The occupational therapist provided the information required by the Agency on April 28, 2006.
[3] On May 5, 2006, Air Canada requested an extension of time to June 5, 2006 to file its answer to the application, and in its Decision No. LET-AT-A-123-2006 dated May 9, 2006, the Agency granted the extension. The Agency also received the specific information required from Mrs. Linstead on May 9, 2006.
[4] On June 5, 2006, Air Canada requested a second extension of time to file its submission, 15 days following the receipt of Candice Linstead's written consent that Brenda Linstead could act on her behalf in the application, stating that it had concerns with respect to the disclosure of Candice Linstead's personal information. The Agency provided Candice Linstead's written consent and granted the requested extension in its Decision No. LET-AT-A-142-2006 dated June 12, 2006.
[5] Air Canada filed its partial answer to the application on June 27, 2006 and completed its submission on July 11, 2006. On July 19, 2006, Mrs. Linstead filed her reply to Air Canada's answer.
[6] 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 extension of the deadline until October 11, 2006.
PRELIMINARY MATTER
[7] Although Mrs. Linstead's May 9, 2006 and Air Canada's July 11, 2006 submissions were filed after the prescribed deadlines, the Agency, pursuant to section 5 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts these as being relevant and necessary to its consideration of this matter.
ISSUE
[8] The issue to be addressed is whether the refusal to transport Candice Linstead from Fredericton to Goose Bay, including on March 30, 2006 on Air Canada Flight Nos. AC7474 and AC8746 constituted an undue obstacle to Candice Linstead's mobility and, if so, what corrective measures should be taken.
FACTS
[9] Candice Linstead broke her left knee and fractured her collarbone in a pedestrian accident on March 22, 2006. She underwent knee surgery a few days later and had to wear a knee immobilizer to keep her left knee and leg straight.
[10] Brenda Linstead's co-worker made arrangements through Air Canada's Web site on March 27, 2006, for Mrs. Linstead and Candice to travel on March 30, 2006, departing on Air Canada Flight No. AC7474 from Fredericton to Halifax, with a same day connection to Air Canada Flight No. AC8746 from Halifax to Goose Bay. These code-sharing flights were respectively operated by Air Georgian Limited also carrying on business as Air Alliance (hereinafter Air Georgian) with a Beechcraft 1900D (hereinafter BEH) and by Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc. (hereinafter Air Canada Jazz) with a Canadair regional jet (hereinafter CRJ). As the transportation was sold under Air Canada's code, it is the respondent in this matter.
[11] The electronic ticket for the above-noted flights includes the notation "Special Needs Wheelchair within terminal" which, according to the International Air Transport Association's Reservation Services Manual and Air Canada's policies, means a wheelchair for distance within the airport.
[12] On approximately March 29, 2006, Candice Linstead's occupational therapist contacted Air Canada who advised her that the carrier-owned airport wheelchairs do not have elevated leg rests.
[13] The Air Canada MEDA Desk was not contacted when making reservations nor at the time inquiries were made for Candice Linstead to travel on Air Canada.
[14] When Candice Linstead checked in at the Fredericton airport on March 30, 2006, she was wearing the knee immobilizer to keep her knee and leg straight. She did not have a doctor's letter and was refused transportation.
[15] A note from Candice Linstead's doctor dated April 3, 2006 indicates that she has no health problems and is able to travel by air provided that her left knee is immobilized.
[16] Candice Linstead took a taxi from Fredericton to Moncton on April 4, 2006, then travelled the same day from Moncton to Goose Bay on I.M.P. Group Limited carrying on business as, among others, CanJet Airlines, a Division of I.M.P. Group Limited (hereinafter CanJet) Flight No. C6550 and Labrador Airways Limited carrying on business as Air Labrador (hereinafter Air Labrador) Flight No. WJ8315, operated with a Boeing 737-500 (hereinafter B737) and a DeHavilland DHC-8-100 (hereinafter Dash 8) aircraft, respectively.
[17] Seat pitch is defined in the Encyclopedia of International Civil Aviation as follows:
The distance between the front edge of one seat in an aircraft and the front edge of the seat immediately in front when both are in an upright position (IATA RP 1008). First class seats have a greater pitch than ones in business class, and, in turn, business class seats have a greater pitch than the ones in economy/tourist class.
[18] Paragraph 705.40(1)(d) of the Canadian Aviation Regulations (hereinafter the CAR) states that an air operator shall establish procedures to ensure that:
seats located at emergency exits and seats that are not located on the main deck of an aircraft are not occupied by passengers whose presence in those seats could adversely affect the safety of passengers or crew members during an emergency evacuation.
[19] Subsection 705.42(5) of the CAR states that:
All carry-on baggage shall be stowed so that it does not obstruct access to safety equipment, exits or aisles of the aircraft.
[20] The following is noted concerning the Air Canada flights in the case at hand:
- The BEH has one seat on either side of the aircraft, with an average seat pitch of 32 inches; there is no middle seat in the row at the rear of the aircraft.
- The CRJ has two seats on each side of the aircraft; the seat pitch is 31 inches in the regular row and 32 inches in emergency exit rows; the width of each seat is 17 inches; there is no middle seat in the row at the rear of the aircraft.
POSITIONS OF THE PARTIES
Mrs. Brenda Linstead
[21] Mrs. Linstead advises that in making the reservation on Air Canada's Web site, her co-worker selected a requirement for a wheelchair to assist Candice Linstead in boarding and deplaning the aircraft. Mrs. Linstead states that her co-worker was not directed to contact the MEDA Desk when completing the booking on Air Canada's Web site.
[22] Mrs. Linstead submits that Candice's occupational therapist contacted Air Canada to discuss the leg room available between seats and was informed by the carrier that this space measured three feet. Mrs. Linstead indicates that the occupational therapist also inquired about the wheelchair selected, requesting one with full leg extension, and was told that Air Canada did not have this type of wheelchair. Mrs. Linstead states that the occupational therapist then instructed Candice to put her foot under the heel of her injured leg to elevate it and that this would be sufficient to travel. According to Mrs. Linstead, Air Canada did not advise the occupational therapist to contact its MEDA Desk.
[23] Mrs. Linstead points out that when she and Candice arrived at the Air Canada ticket counter at the Fredericton airport on March 30, 2006, the Air Canada agent advised that Candice was not allowed to travel because she could not bend her knee at a 45-degree angle. Furthermore, the agent informed Mrs. Linstead that her daughter would not be allowed to travel without clearance from Air Canada's MEDA Desk and, as such, advised her to contact her daughter's doctor who would have to speak with personnel at the MEDA Desk to complete a medical form.
[24] Mrs. Linstead states that she contacted Candice's doctor while at the Fredericton airport, and asked him to contact Air Canada's MEDA Desk and submit the required medical form, which he did the same day. Mrs. Linstead advises that in the process of waiting for the information to be exchanged between the doctor and the MEDA Desk, the Air Canada supervisor at the Fredericton airport booked them on a flight leaving Fredericton the next morning, via Toronto and Halifax to Goose Bay, pending approval from the MEDA Desk. Mrs. Linstead advises that later that evening, both Candice's doctor and a representative from the MEDA Desk advised her, by telephone, that Candice was not approved for travel on Air Canada. Mrs. Linstead adds that they were told that the aircraft was too small to accommodate Candice Linstead's leg requirements. According to Mrs. Linstead, an Air Canada MEDA Desk representative informed her that bending the knee at a 45-degree angle was a requirement to travel on any Air Canada flight, including the Air Georgian flight from Fredericton, and that Air Canada could not reverse this requirement even with the purchase of two seats for Candice. Mrs. Linstead states that Candice's doctor was also informed of this policy, which had come into effect two weeks earlier, and that anyone unable to bend their knee at a 45-degree angle was not allowed on board because this posed a "safety hazard".
[25] Mrs. Linstead points out that after six days of contacting Air Canada, the media, her Member of Parliament, "and anyone else (she) thought might be able to get Air Canada to reverse (its) decision", she made further contact with Candice's doctor, following which he wrote a note (dated April 3, 2006) which indicated Candice's condition and that she was cleared for travel.
[26] Mrs. Linstead states that with the doctor's letter in hand, she and Candice drove to Moncton, by taxi, to travel with CanJet from Moncton to St. John's on April 4, 2006, before continuing the same day with Air Labrador from St. John's to Goose Bay via Deer Lake.
[27] According to Mrs. Linstead, CanJet did not have safety concerns with respect to Candice's medical condition, in allowing her to sit in the front row on the right side of the aircraft and have her leg extended. Air Labrador for its part, provided Candice with the "last row, middle seat which is in the aisle" and Candice was able to extend her leg. Mrs. Linstead states that these carriers did not ask for the letter from Candice's doctor.
[28] Mrs. Linstead explains that the experience was upsetting and stressful and could have been avoided had she and Candice been able to travel on Air Canada, a four-hour journey, rather than drive to Moncton, then travel with CanJet and Air Labrador, which took thirteen hours in all. Mrs. Linstead adds that all of this unnecessary travel caused her daughter more pain and discomfort, in addition to being "held up" in a room waiting for Air Canada to reverse its decision. Mrs. Linstead is seeking $3,658.55 in compensation for expenses, which include in part, the cost of alternate transportation on CanJet and Air Labrador, charges for ground transportation, accommodation, meals, and incidentals. She is also seeking $20,000 in compensation for unnecessary emotional and physical stress.
Occupational therapist
[29] The occupational therapist advises that after meeting with Brenda and Candice Linstead on March 28 and March 29, 2006, and being informed of the travel arrangements on Air Canada, as well as the request for a wheelchair to reach the aircraft, she volunteered to contact the Fredericton airport, was directed to a commissionaire and then a "phone number for Air Canada" to seek information on wheelchairs. The occupational therapist submits that she then explained to a male representative, whose name or position she does not know, that Candice would need a wheelchair with elevating leg rests as she was wearing a knee immobilizer to keep her knee straight. The occupational therapist states that she was advised by the representative that such wheelchairs were not available and that Candice might have difficulty in getting into the aircraft seat, as there was only three feet of "sitting space in the seat (from front to back)".
[30] The occupational therapist submits that the representative did not mention the MEDA Desk service provided by Air Canada. She mentions that in fact the first she heard of the desk was when an Air Canada supervisor at the Fredericton airport called her on the morning of March 30, 2006, when Candice was refused transport.
Air Canada
[31] Air Canada states that it will not challenge the fact that when Candice Linstead presented herself at the Fredericton airport on March 30, 2006, she was a person with a disability as determined under Part V of the CTA, and that it was noted when she arrived that she was wearing a knee immobilizer. However, Air Canada states that it was not aware of Candice Linstead's medical condition prior to her arrival at the Fredericton airport as she had never travelled with such a medical condition in the past, and its Reservation Centre had not been advised of her condition at the time of booking.
[32] Air Canada points out that pursuant to section 151 of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR), carriers require a 48-hour notice concerning the needs of persons with disabilities, and this is intended to provide carriers with enough time to take the appropriate measures and assess whether accommodation is possible. However, Air Canada submits that it will deploy its best efforts to meet requests made within that 48 hours. Air Canada states that the contact information to provide notice or obtain assistance with respect to "special travel needs" is posted on Air Canada's Web site under http://www.aircanada.com/en/customercare/#.
[33] Air Canada submits that Candice Linstead's occupational therapist did not call Air Canada to advise of Candice Linstead's medical condition, but rather inquired about the type of wheelchairs available with Air Canada. Air Canada maintains that Candice Linstead therefore failed, either directly or through persons acting on her behalf, to advise Air Canada of her medical condition and, as such, the carrier was unable to refer her to the MEDA Desk prior to her date of travel. Air Canada states that it strives to meet the needs of passengers with disabilities within the confines of the means of transportation and the considerable regulations pertaining to safety and airworthiness, and that Candice Linstead's physical condition was considered in light of the aircraft involved and safety requirements.
[34] Air Canada submits that the configuration of the aircraft on which Candice Linstead was scheduled to travel on March 30, 2006 was not compatible with her medical requirements, "namely to keep her leg straight and elevated", and that given this incompatibility, Air Canada, through its agents at Air Canada Jazz, was unable to accommodate her while respecting the applicable safety requirements for take-off and landing without creating an unsafe environment for her as well as other passengers and crew members on board both her flights, considering that the CAR require that the aircraft's aisle must remain clear at all times. Air Canada states that subsection 705.42(5) of the CAR sets out that carry-on baggage must be stowed so that it does not obstruct access to safety equipment, exits or aisles of the aircraft. Air Canada submits that the same logic applies to anything else that would obstruct the aisle or access to safety equipment, including passengers.
[35] Air Canada advises that Air Canada Flight No. AC7474 from Fredericton to Halifax on March 30, 2006 was operated with a BEH aircraft, and states that all seats are in economy class, measuring 17 inches with a seat pitch of 32 inches, including the exit emergency rows. Air Canada points out that this is insufficient to allow a full-leg extension or keep a leg elevated when sitting front facing and would not permit a passenger to sit across the seat with a leg extended without obstructing the aisle, which has only one seat on either side of it. Therefore, Air Canada states that transporting Candice Linstead on Air Canada Flight No. 7474 was not possible without creating an unsafe environment on board the aircraft as would also have been the case had she travelled on Air Canada Flight No. 8746 from Halifax to Goose Bay on the same day, which was operated with a CRJ. Air Canada states that the CRJ has a seat pitch of 31 inches, with 32 inches for the emergency exit rows, therefore not providing sufficient leg room for a full leg extension or elevation. Air Canada submits that although it is possible to join two seats, each measuring 17 inches, the resulting width would not allow most adults enough room to fully extend the leg without aisle obstruction.
[36] Moreover, Air Canada submits that pursuant to paragraph 705.40(1)(d) of the CAR, emergency exit rows cannot be occupied by passengers whose presence in those seats would adversely affect the safety of other passengers or crew members during an emergency evacuation. As such, Air Canada states that persons with disabilities cannot sit in an emergency exit row. Air Canada maintains that this would have been the case for Candice Linstead on March 30, 2006.
[37] Air Canada submits that it attempted to accommodate Candice Linstead on other flights by making changes to her original itinerary, and Candice Linstead was in fact rescheduled to travel to her destination on March 31, 2006 via Toronto and Halifax; however, even this revised itinerary would not have allowed Air Canada to accommodate her as the CRJ was used on two segments of her reservation, namely the Fredericton-Toronto and Halifax-Goose Bay segments. Air Canada explains that the requirements of Candice Linstead's medical condition would have created an unsafe environment on the CRJ for the reasons mentioned above. Air Canada states that the fact that the configuration of both aircraft in question did not allow Air Canada to accommodate her without creating an unsafe environment explains why Candice Linstead might have been told by Air Canada's personnel that she could not travel as she could not bend her leg. Air Canada submits that the fact that a passenger cannot bend a leg is not, in and of itself, an "impossibility to travel" but that the decision to carry such a passenger is made on a case-by-case basis and will vary depending on circumstances, including the type of aircraft on which the passenger is scheduled to travel, the seat pitch and width, the passenger's height, and the presence of Executive Class seats. Air Canada apologizes that this was not fully explained to Candice Linstead or her travelling companion.
[38] Air Canada recognizes that Candice Linstead could not travel on the itinerary booked and that this could constitute an obstacle; however, Air Canada states that the obstacle was not undue as the aircraft did not allow her to be accommodated on board without creating an unsafe environment for herself, other passengers and crew, and the obstacle could have been avoided had Candice Linstead or those acting on her behalf contacted Air Canada in advance of travel and stated her condition correctly. Air Canada submits that it would have been able to explore alternate routings or would have been able to confirm at that time that the aircraft configuration could not accommodate her condition.
[39] With respect to the compensation requested, Air Canada states that the Agency's authority is limited to ordering payment of out-of-pocket expenses incurred by the passenger, and that in this case most claims for such expenses are not substantiated with appropriate receipts. Air Canada points out that it fully reimbursed Candice and Brenda Linstead's unused tickets. As for the difference in cost with the CanJet and Air Labrador tickets, estimated by Air Canada at $38, Air Canada submits that Candice Linstead did not prove that she is the holder of the credit card used to purchase these tickets and, therefore failed to prove that she incurred the expense. Air Canada states that pursuant to subsection 172(3) of the CTA, the Agency does not have jurisdiction over other damages claimed in the application.
Mrs. Linstead's reply
[40] Mrs. Linstead states that she agrees with Air Canada that Candice Linstead had a disability when she presented herself for travel on March 30, 2006 as she was wearing a knee immobilizer that would allow her to keep her knee straight without bending it. She states that she also agrees with Air Canada regarding the events surrounding the booking of the reservation and aircraft types operated on the day of attempted travel, namely the BEH and CRJ. However, Mrs. Linstead challenges Air Canada's statement that Candice Linstead should keep her leg elevated as well as the carrier's decision to refuse her daughter travel because "it was a safety hazard for Candice to fly on either of these aircraft". She also challenges Air Canada's position concerning reimbursement, including the difference in cost between the Air Canada tickets and replacement tickets on CanJet and Air Labrador.
[41] Mrs. Linstead states that Air Canada was not aware of her daughter's medical condition prior to March 30 as her daughter was not aware of the carrier's MEDA Desk. Mrs. Linstead adds that at no time after selecting the wheelchair requirement on Air Canada's Web site was her co-worker directed to contact the MEDA Desk. Mrs. Linstead therefore submits that neither she, her daughter nor her co-worker were aware of this requirement. Notwithstanding, Mrs. Linstead states that as the only need for assistance for her daughter was boarding and embarking the aircraft, it was felt that her ability to stand and walk with a crutch, combined with the fact that she was travelling with her mother as an escort, would have alleviated any concern for Air Canada.
[42] Mrs. Linstead submits that Candice did not need to have her leg elevated and, as such, if Air Canada had permitted her to travel on the BEH and seated her in the right side front row, Candice's left foot may not have extended into the aisle. Mrs. Linstead maintains that as the seat pitch is 32 inches and Candice is 5 feet 3 inches, weighs 139 pounds with a leg measurement of 28 inches, there was sufficient space for Candice to have her leg extended. Mrs. Linstead states that on March 30 a request was made that Air Canada allow Candice Linstead to sit in the front row seat to determine if her leg would extend into the aisle, but this request was denied.
[43] Mrs. Linstead states that the CRJ has a seat pitch of 31 inches in regular rows, as confirmed in the seating chart, and as Candice did not require her leg to be elevated, she would not have posed a safety hazard to herself or other passengers; however, Mrs. Linstead states that her daughter was not given the opportunity to sit in the right front row with her leg extended to determine the safety hazard or whether the aisle would be clear.
[44] With respect to the aircraft on which Candice travelled on April 4, 2006, Mrs. Linstead maintains that CanJet's Director of Community Relations had stated that there was no issue with Candice's injury and the carrier "...viewed (her) as being very ambulatory and posed no problem or no safety threat whatsoever to the other customers or the crew in the event that we would have to evacuate the aircraft". As for the Air Labrador Dash 8 aircraft, Mrs. Linstead submits that it has a seat pitch of 31 inches, as confirmed by an Air Labrador Dash 8 seating chart. Mrs. Linstead explains that there was no safety hazard for Candice or other passengers, and Candice could stand to allow other passengers to disembark first. With respect to the 48-hour advance notice to the carrier of a passenger's "special needs", Mrs. Linstead states that the wheelchair requirement was noted on March 27, 2006, when reservations were made on Air Canada's Web site, as confirmed on Candice's itinerary. Mrs. Linstead submits that certainly Air Canada and its MEDA Desk had the 48-hour notice after March 30th, yet Candice remained stranded in Fredericton until April 4, 2006 when she travelled on CanJet and Air Labrador from Moncton to her destination.
[45] Mrs. Linstead advises that she is reluctant to make future travel arrangements with Air Canada, which offers the most economic service from Goose Bay to the rest of Canada. Mrs. Linstead submits that the requirement for medical clearance from Air Canada's MEDA Desk is not well known in her isolated community; therefore, she hopes that the attention drawn to the difficulties experienced by Candice, through the media and otherwise, will prevent others from encountering a similar ordeal in the future.
ANALYSIS AND FINDINGS
[46] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
[47] 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 establish that the application is with respect to a person with a disability for the purpose of applying the accessibility provisions of the CTA. In this respect, the Agency has taken the view that it is appropriate to take a broad, functional approach to interpreting its mandate under Part V of the CTA. The Agency accepts that "persons with disabilities" include persons having both permanent and temporary disabilities, including temporary disabilities arising from medical conditions. In this case, Candice Linstead broke her left knee and fractured her collarbone in a pedestrian accident, underwent knee surgery, and was wearing a knee immobilizer to keep left knee and leg straight. Her mobility was thus restricted because of her medical condition. The Agency finds that Candice Linstead is a person with a disability within the meaning of subsection 172(1) of the CTA.
[48] The Agency must then determine whether Candice Linstead's mobility was restricted or limited by an obstacle and, if so, 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
[49] 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.
[50] 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.
Whether the obstacle was undue
[51] 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.
[52] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.
The case at hand
[53] The Agency notes the difficult circumstances that the Linsteads experienced in trying to travel home, following Candice Linstead's involvement in an accident and undergoing surgery for her injuries. To be refused transport from Fredericton to Goose Bay, including the refusal at the airport on the original day of travel, March 30, and to have to make alternate travel arrangements to return home five days later, clearly constituted an obstacle to Candice Linstead's mobility. However, the Agency must now consider Air Canada's submissions about why and how this incident occurred in order to determine if this obstacle constituted an undue obstacle to Candice Linstead's mobility.
[54] The Agency notes Air Canada's submission that safety regulations require that aisles must remain clear at all times pursuant to subsection 705.42(5) of the CAR. While subsection 705.42(5) is specific to carry-on baggage, the Agency accepts that the provision would apply equally to other obstructions which limit access to the aisle. Moreover, the Agency recognizes that unobstructed aisles are important from a safety perspective for both the passenger in question and the safety of others, particularly in the event of an emergency evacuation, and that Air Canada safety requirements which provide that aisles must be clear must be adhered to at all times by the carrier.
[55] The Agency accepts that Air Canada's refusal to transport Candice Linstead was made because of its need to comply with safety requirements. The Agency notes Air Canada's evidence that it reaches decisions to carry passengers on a case-by-case basis, which decisions will vary depending on circumstances, including the type of aircraft on which the passenger is scheduled to travel, the seat pitch and width, the passenger's height, and the presence of Executive Class seats. The Agency further notes that upon receipt of specific information from Candice Linstead's doctor concerning her need for accommodation on board the aircraft, the MEDA Desk informed Mrs. Linstead that her daughter was not approved for travel on Air Canada to Goose Bay because the aircraft used to reach this destination, the BEH and CRJ, do not have seats to provide sufficient space to accommodate Candice Linstead's need to keep her knee and leg straight, without obstructing the aisle.
[56] The Agency notes that Candice Linstead was ultimately accommodated by CanJet on a B737 aircraft and by Air Labrador on a Dash 8 aircraft. Although not a determining factor in the present case, the Agency notes that it would appear that both of these aircraft had seats which provided sufficient space to accommodate Candice Linstead's need.
[57] In light of the above, although recognizing the considerable difficulty experienced by Candice Linstead and her mother, the Agency finds that Air Canada's refusal to transport Candice Linstead from Fredericton to Goose Bay, including on March 30, 2006 from Fredericton to Halifax on Air Canada Flight No. AC7474 using a BEH aircraft and from Halifax to Goose Bay on Flight No. 8746 using a CRJ aircraft, was not an undue obstacle to Candice Linstead's mobility.
[58] Notwithstanding the foregoing, there are communication issues on which the Agency will now comment. The Agency is of the opinion that it is essential that the needs of persons with disabilities are clearly and accurately communicated to transportation service providers, either directly by the person with a disability or indirectly through other persons acting on their behalf in making reservations, so that the service providers can fully understand the needs of persons with disabilities and can properly advise whether and how their needs can best be met.
[59] The Agency notes that Part VII of the ATR, as reflected by Air Canada's policy, requires that services requested at least 48 hours in advance of domestic travel be provided to persons with disabilities and that reasonable efforts be made to accommodate requests for services received within that time period. Unfortunately, while Candice Linstead's need for a wheelchair within the terminal was communicated to the carrier by Mrs. Linstead's co-worker approximately 72 hours prior to travel, Air Canada was not informed of Candice Linstead's requirement that her left knee and leg remain straight at all times while on board her flights until she arrived for check-in at the airport on March 30, 2006. Furthermore, the Agency notes that while Candice Linstead's occupational therapist did contact Air Canada approximately 24 hours prior to departure, the occupational therapist only asked whether the carrier's wheelchairs have elevating leg rests and she did not pursue a discussion with the Air Canada employee on Candice Linstead's in-flight needs, despite the employee specifically raising this issue with her.
[60] While it is unfortunate that Candice Linstead did not find out about Air Canada's inability to accommodate her needs and to transport her until she arrived for check-in at the airport on March 30, the Agency is of the opinion that Air Canada was not provided with sufficient information, either at reservation or at any time prior to the day in question, to permit it to understand Candice Linstead's needs and properly advise Candice Linstead and her mother as to whether or not it could accommodate those needs. The Agency finds that although the occupational therapist did speak to Air Canada concerning Candice Linstead's needs within the terminal, and the Air Canada employee that she spoke to did flag the possibility that the services required by Candice in the terminal could result in difficulties on the aircraft, the occupational therapist did not pursue this nor did she apparently pass the information onto her patient.
[61] The Agency notes Mrs. Linstead's comments concerning Air Canada's Web site not directing travellers to contact the MEDA Desk when making reservations for persons with disabilities who have requested wheelchair assistance. However, the Agency notes that most persons whose needs are limited to wheelchair assistance in the terminal have no need to contact the MEDA Desk. Candice Linstead's disability-related travel needs were clearly not limited to wheelchair assistance for distances within the terminal and a telephone conversation with a reservation agent when the reservation was being made would have resulted in the dialogue necessary to permit the carrier to understand the extent of Candice Linstead's needs and then to advise of the carrier's ability to meet those needs.
COMPENSATION
[62] Pursuant to subsection 172(3) of the CTA, on determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle.
[63] With respect to the applicant's claim for $20,000.00 in compensation for unnecessary emotional and physical stress, this does not fall within the purview of subsection 172(3) of the CTA and the Agency does not have the jurisdiction to award such damages.
[64] The jurisdiction of the Agency to order compensation is limited to situations where a person with a disability incurs expenses as a result of an undue obstacle. With respect to the applicant's claim for $3,658.55 in compensation for expenses, which include, in part, costs for alternate transportation on CanJet and Air Labrador, charges for ground transportation, accommodation, meals, and incidentals, the Agency has found that there was no undue obstacle to Candice Linstead's mobility and, as such, the Agency cannot order compensation for these expenses pursuant to subsection 172(3) of the CTA.
CONCLUSION
[65] In light of the above findings, the Agency has determined that the refusal to transport Candice Linstead from Fredericton to Goose Bay, including on March 30, 2006 on Air Canada Flight No. AC7474 and Air Canada Flight No. AC8746, did not constitute an undue obstacle to Candice Linstead's mobility. Consequently, no corrective measures or compensation will be ordered.
Members
- Baljinder Gill
- Guy Delisle
- Date modified: