Decision No. 51-AT-C-A-2021
APPLICATION by Shirin Fayz against Austrian Airlines AG (Austrian Airlines), pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA), regarding her disability-related needs.
SUMMARY
[1] Shirin Fayz filed an application with the Canadian Transportation Agency (Agency) against Austrian Airlines, pursuant to subsection 172(1) of the CTA, with respect to Austrian Airlines’ alleged failure to provide wheelchair assistance and assistance with her piece of checked baggage that contained her medication; and pursuant to subsection 110(4) of the Air Transportation Regulations (ATR), with respect to the delayed delivery of her baggage.
[2] On October 22, 2020, the Agency issued Decision No. LET-AT-C-A-68-2020 (Decision) where it found that:
- Ms. Fayz is a person with a disability;
- Ms. Fayz encountered obstacles to her mobility when she was left unassisted without a wheelchair at the carrier’s baggage counter and not provided with the “front of queue” service, when she was not assisted by Lufthansa German Airlines’ (Lufthansa) staff at the carrier’s baggage counter and when she was not provided with assistance to exit the Toronto Pearson International Airport (Toronto airport);
- Ms. Fayz did not encounter an obstacle to her mobility when she was unable to access the medication that was in her checked baggage while it was delayed; and
- Austrian Airlines properly applied the terms and conditions relating to baggage delay set out in its International Passenger Rules and Fares Tariff No. IPR-2 Containing Local and Joint Rules, Regulations, Fares and Charges Applicable to the Transportation of Passengers and Baggage Between/Via Points in the United States/Canada and Points Throughout the World, NTA(A) No. 210 (Tariff).
[3] In this decision, the Agency will address the issue of whether Austrian Airlines can remove the obstacles to Ms. Fayz’s mobility without experiencing undue hardship.
[4] For the reasons set out below, the Agency finds that Ms. Fayz encountered undue obstacles to her mobility within the meaning of subsection 172(1) of the CTA. However, the Agency finds that no corrective measures are necessary in this case given that Austrian Airlines no longer operates in Toronto; the other members of the Lufthansa Group, of which Austrian Airlines is part, that still provide service in Toronto, have a new service provider for accessibility-related services; and the policies of this new service provider appear to be appropriate and would, if applied as described, prevent the situation faced by Ms. Fayz from reoccurring.
BACKGROUND
[5] On March 5, 2019, Ms. Fayz travelled from Tehran, Iran, to Toronto, Ontario, via Vienna, Austria, with Austrian Airlines. She requested wheelchair assistance prior to her departure. Ms. Fayz explains that once she disembarked in Toronto, she received the assistance that she requested up to the carrier’s baggage counter, where she was brought when her two pieces of checked baggage did not arrive. However, she was left unassisted from there and to exit the Toronto airport.
[6] In the Decision, the Agency found that Ms. Fayz is a person with a disability and that she encountered obstacles to her mobility. The Agency then provided Austrian Airlines with the opportunity to either:
- explain how it proposes to remove the obstacles; or
- demonstrate, on a balance of probabilities, that it cannot remove the obstacles without experiencing undue hardship.
[7] Austrian Airlines filed its answer to the Decision on November 12, 2020. Ms. Fayz filed a reply on November 16, 2020. The following day, Austrian Airlines filed an additional submission.
PRELIMINARY MATTERS
Documents filed outside of the pleadings
[8] On November 17, 2020, Austrian Airlines filed an additional submission following the receipt of Ms. Fayz’s reply to Austrian Airlines’ answer to the Decision. The filing of this additional submission is not provided for in the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Rules). Although a request to file such a submission can be made under section 34 of the Rules, no request was made by Austrian Airlines in this case. Ms. Fayz did not object to the filing of this additional submission.
[9] In its additional submission, Austrian Airlines reiterated a statement made in its answer to the Decision, namely that Aviation and Airport Services (AAS) was its new red cap provider since September 2020.
[10] The Agency does not accept the additional submission on the record. The Agency finds that the additional submission is not necessary to the matter as it repeats a statement already made in Austrian Airlines’ answer.
Compensation for pain and suffering
[11] Ms. Fayz seeks compensation under the Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244 (ATPDR) for pain and suffering. Ms. Fayz states that the pain and anguish resulting from the incident on March 5, 2019, impacted her mobility and well-being for “quite a while.” However, the Agency does not have the jurisdiction to order payment for pain and suffering in this case. Although the Agency was given this power in the Accessible Canada Act, SC 2019, c 10 (ACA), the ACA came into effect on July 11, 2019, and the incident occurred on March 5, 2019.
[12] As set out in subsection 172(3) of the CTA, as it was at the time the incident occurred, the Agency has the authority to order corrective measures and compensation for expenses incurred if it is determined that a person with a disability encountered an undue obstacle to their mobility. Therefore, the Agency’s statutory authority to award compensation to a person with a disability for incidents that occurred before July 11, 2019, is limited to out-of-pocket expenses.
THE LAW
[13] The application was filed pursuant to subsection 172(1) of the CTA, which, at the time of the application, read as follows:
The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.
[14] As outlined in the Agency’s letter which opened pleadings, the first steps in this application are to consider whether the applicant is a person with a disability and, if so, whether the applicant encountered an obstacle. These steps were completed in the Decision.
[15] As was done in this case, once it is determined that the applicant encountered an obstacle, the Agency, in the last step, then provides the respondent with an opportunity to either:
- explain, taking into account any proposals from the applicant, how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an individual accommodation measure; or
- demonstrate, on a balance of probabilities, that it cannot remove the obstacle without experiencing undue hardship.
[16] The Agency will now address this last step.
POSITIONS OF THE PARTIES
Austrian Airlines
[17] Austrian Airlines argues that many of the issues raised in the application are now moot as the Agency has already determined the appropriate remedy for passengers with mobility issues through the implementation of the ATPDR. Specifically, Austrian Airlines claims that the ATPDR require carriers, in conjunction with airport operators, to provide assistance to and from curbside locations upon arrival and departure, and that front of line service at check in, security and baggage claim is also assured.
[18] In addition, Austrian Airlines indicates that it ceased flight operations to Toronto in April 2019. However, Austrian Airlines claims that members of the Lufthansa Group of which it forms part, namely Lufthansa German Airlines, Swiss International Air Lines and Brussel Airlines, still provide service to Toronto and that they changed red cap/wheelchair service providers to AAS in September 2020.
[19] Austrian Airlines filed a letter from AAS’ “PRM Manager” which indicates that at the time of the incident, the Toronto Ground Airport Services (TGAS) were handling the “wheelchair pushing services” at the Toronto airport, but that AAS purchased all TGAS assets and air carrier contracts on September 1, 2019. The PRM Manager states that all AAS agents are taught on their first day of training that they never leave an arriving wheelchair guest unattended until they have been reunited with their family in the airport or at the curb, or escorted to a taxi or other means of transportation. The PRM Manager claims that there have been many occasions where the agents stayed for hours in immigration or secondary screening with passengers. The PRM Manager also asserts that they never abandon their guests and that an incident such as this one would never happen with AAS.
[20] In regard to the applicant’s treatment at the baggage office, Austrian Airlines claims that the Lufthansa Group Station Management for the Toronto airport has ensured that additional training of baggage staff employed by their third-party handling company, D’Nata, was accomplished. Austrian Airlines filed a letter from D’Nata in which D’Nata’s Director of Customer Services lists the areas covered by their regulatory training syllabus. Austrian Airlines also indicates that all Station Management from the Lufthansa Group at every Canadian airport location has been trained on the new ATPDR regulations.
[21] Finally, Austrian Airlines requests that the Agency consider the actions that have already been taken, exercise its discretion in light of the implementation of the ATPDR and the Lufthansa Group’s compliance therewith, and consider that the Agency’s intervention will have no practical effect on the rights of Ms. Fayz.
Ms. Fayz
[22] Ms. Fayz argues that regardless of the changes implemented after April 2019, when the incident occurred on March 5, 2019, Austrian Airlines was obligated to ensure that appropriate wheelchair assistance was provided to her from the gate and to the curbside of the airport, and that it failed to do so.
[23] Ms. Fayz claims that during her two trips between January and March 2019, the “boarding pass scanner tracking system” was in effect at the Toronto airport as the assistant scanned her boarding pass. Ms. Fayz claims that if the PRM Manager from AAS had monitored the system, “he would have noticed that her wheelchair assistance had scanned three boarding passes at the same time and if the front of queue service was provided, it should not have taken 47 minutes to file her irregularity report.” Ms. Fayz argues that the PRM Manager from AAS did not provide any update to improve services to passengers with disabilities.
[24] Ms. Fayz argues that Austrian Airlines and AAS did not acknowledge nor address the main obstacle which is the understaffing of the wheelchair assistance services. Ms. Fayz submits that “you could provide all the training and have pages of rules and regulations, but if you do not provide resources and pressure employees beyond their ability ultimately the system would break down.”
[25] Ms. Fayz also indicates that the assistant did not want to abandon her in the baggage claim area but she was pressured by her supervisor to go back with the wheelchair to assist other passengers who were waiting for a long time. Ms. Fayz argues that if Austrian Airlines had informed the Lufthansa baggage claim counter that about 46 pieces of baggage were offloaded at the Tehran airport and provided assistance to the agent, she probably would have paid attention to her request and assisted her.
ANALYSIS AND DETERMINATIONS
[26] Transportation service providers have an obligation to ensure that persons with disabilities have equal access to their services.
[27] In its answer to the Decision, Austrian Airlines claims that many of the issues raised in this proceeding have become moot with the coming into force of the ATPDR. The Agency notes that the ATPDR impose relevant requirements on carriers to ensure that incidents such as the one encountered by Ms. Fayz do not reoccur, including front of queue service for persons with a disability who are unable to use automated self-service kiosks (paragraph 35(b)), and, on the request of a person with a disability, assistance from carrier personnel after disembarkation to proceed to the general public area (paragraph 35(u)) and to proceed to a location where the person may receive assistance to proceed to the curbside zone from a member of the terminal operator’s personnel (paragraph 35(v)), without delay and in a manner that respects their dignity.
[28] The Agency finds that the coming into force of the ATPDR does not render the application before the Agency moot. While it appears that the new regulation will prevent recurrence of an incident such as that experienced by Ms. Fayz, the ATPDR did not exist at the time of the incident and, accordingly, the provisions impact the question of whether corrective measures are necessary, not whether the application is itself moot.
[29] Although Austrian Airlines indicates that it ceased providing service to Toronto in April 2019, it nevertheless described the measures taken there by the group of which it is a member, namely Lufthansa Group, and its new wheelchair service provider, AAS, to comply with the requirements of the ATPDR. As such, Austrian Airlines submits that the Agency’s intervention will have no practical effects on the rights of Ms. Fayz.
[30] While Austrian Airlines does not itself provide service at the Toronto airport at this time, it may resume operations in the future. Furthermore, this incident involved the personnel at the Lufthansa baggage claim desk. Currently, Lufthansa Group and AAS operate in Toronto. Accordingly, the Agency has reviewed the submissions made by Austrian Airlines regarding the Lufthansa Group, as well as the letters from AAS describing its policies, practices and training.
[31] The Agency recognizes that, as described by AAS, its training and practice is to never leave an arriving passenger who requires wheelchair assistance unattended until they are reunited with their family at the curb or escorted to a means of transportation that will take them home. It appears that this practice, if implemented as described, would meet the requirements of the ATPDR and would prevent recurrence of the situation faced by Ms. Fayz.
[32] In light of the practices developed by AAS, the Agency considers that the evidence on the record is sufficient to make a finding that the obstacles faced by Ms. Fayz are undue as they could have easily been eliminated with the adoption of appropriate practices such as the ones that the Lufthansa Group with AAS has now developed.
[33] After finding an undue obstacle, the Agency considers what corrective measures should be ordered. In this case, however, there have been several changes since the incident occurred that must be considered.
[34] First, Austrian Airlines ceased its flight operations to Toronto in April 2019. Second, the Agency accepts that the remaining members of the Lufthansa Group (Lufthansa German Airlines, Swiss International Air Lines and Brussel Airlines) that provide service to Toronto changed their wheelchair service provider to AAS subsequent to the incident experienced by Ms. Fayz. Finally, as set out above, the measures described by the Lufthansa Group and AAS for wheelchair assistance appear to be in line with the requirements of the ATPDR and address the undue obstacles faced by Ms. Fayz. In light of the above, the Agency finds it unnecessary to order corrective measures.
CONCLUSION
[35] The Agency finds that the obstacles faced by Ms. Fayz are undue within the meaning of subsection 172(1) of the CTA.
[36] However, under the circumstances, the Agency finds that no corrective measures are necessary.
Member(s)
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