Decision No. 521-AT-A-2008

October 16, 2008

File No. U3570/00-59

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INTRODUCTION

[1] On September 13, 2000, the Canadian Transportation Agency (the Agency) received an application filed by Marie Laporte-Stark regarding several problems that she experienced when travelling with Air Canada on August 4 and 11, 2000, between Ottawa, Ontario and Halifax, Nova Scotia.

ISSUES

[2] Did the following issues constitute undue obstacles to Ms. Laporte-Stark's mobility, and, if so, what corrective measures should be taken?

1. The lack of travel itineraries in alternative formats;
2. The inaccessibility of the self-service check-in kiosks at the Ottawa Macdonald-Cartier International Airport (the Ottawa airport);
3. Air Canada's level of disability-related services provided upon check-in at the Ottawa airport;
4. Issues of wayfinding at the Ottawa airport and the Halifax Robert L. Stanfield International airport (the Halifax airport);
5. Air Canada's reassignment of seats on the Halifax to Ottawa flight.

PRELIMINARY MATTER

Air Canada's proceedings under the Companies' Creditors Arrangement Act (the CCAA) and extinguishment of claims

[3] On April 1, 2003, Air Canada was placed under court-sanctioned protection from its creditors to facilitate the carrier's operational, commercial, financial and corporate restructuring. As part of this process, the Ontario Superior Court of Justice (the Court) issued an Order pursuant to the CCAA staying all proceedings against or in respect of Air Canada and certain of its subsidiaries (the Stay Order). As a consequence, the Agency was unable to continue processing this file. On August 23, 2004, the Court issued an Order pursuant to the CCAA (the Sanction Order) which lifted the Stay Order as of September 30, 2004. The Sanction Order also extinguished all claims of a financial nature against Air Canada which arose on or before April 1, 2003.

[4] Subsequent to its emergence from protection under the CCAA, Air Canada filed a submission stating that individual applications for compensation or for a finding that an undue obstacle existed in the transportation of a passenger with a disability for events that occurred on or prior to April 1, 2003 are "Claims" against Air Canada and thus extinguished. The Agency disagreed and sought clarification from the Court which governed Air Canada's emergence from protection from its creditors. Air Canada requested that the Agency stay all affected applications pending the Court's decision. The Agency granted Air Canada's request.

[5] The Agency subsequently determined that the best way to deal with the affected applications was to proceed with its consideration of the applications. On June 30, 2005, the Agency determined that it would not continue with its motion before the Court for an interpretation of the Sanction Order. The Agency took the position that although the financial aspect of a claim is extinguished, the investigation and remedial measures of a claim relating to an undue obstacle made on or predating April 1, 2003 were not. As a result, the stay with respect to this application, among others, was lifted by the Agency.

[6] In 2006, Air Canada sought a declaration by the Court with respect to monetary penalties imposed by the Minister of Transport prior to April 1, 2003. The Court rendered a decision stating that monetary penalties were "claims" for the purposes of the CCAA, the claims procedures, and the Sanction Order. Air Canada's interpretation of the Court's decision is that all applications involving incidents predating April 1, 2003 are extinguished in their entirety.

[7] The Agency disagrees with Air Canada's interpretation, and has set out its position in this regard in Decision No. 299-AT-A-2008. In this case, the Agency maintains its position that it views the Court's decision as being limited strictly to monetary penalties.

[8] The Agency is therefore of the opinion that Ms. Laporte-Stark's application is not extinguished by the Sanction Order because Part V of the Canada Transportation Act, S.C., 1996, c. 10, as amended (the CTA), is human rights legislation aimed at removing undue obstacles to the mobility of persons with disabilities in Canada's transportation system. As human rights legislation is quasi-constitutional and is the manifestation of public policy concerning matters of general concern, it is fundamental to capture the spirit of protecting human rights and preventing discrimination. Accordingly, while the Agency concedes that orders made pursuant to subsection 172(3) of the CTA - which directed Air Canada to reimburse applicants who incurred costs associated with undue obstacles to their mobility — were covered by the definition of "claims," and are thus extinguished, the Agency maintains its opinion that Air Canada is not relieved from its legal obligations to comply with regulatory requirements, particularly in respect of human rights protection afforded to persons with disabilities.

FACTS, EVIDENCE, AND SUBMISSIONS

[9] Ms. Laporte-Stark is blind and travels with a service animal. She travelled on Air Canada Flight No. 646 on August 4, 2000 from Ottawa to Halifax. Her inbound flight on Air Canada Flight No. 645 was on August 11, 2000.

[10] Ms. Laporte-Stark completed her travel arrangements through Air Canada's Aeroplan office. She informed the Aeroplan agent that she was blind and would be travelling with a service animal. She indicated that she would require an aisle seat that would provide sufficient space for the service animal. Ms. Laporte-Stark informed the agent that the bulkhead seats on the aircraft she was going to travel on, the Canadair CRJ (CL65), would not be able to accommodate her service animal and should not be assigned to her.

[11] Air Canada points out that Passenger Name Records (PNR) contain reservations information for passengers, including identification of disability-related needs. The PNR for Ms. Laporte-Stark reflects that she is visually impaired, that she is travelling with a service animal and that, prior to departure, she was assigned seat 08C for the outbound flight and seat 04C for the inbound flight, travelling on a CL65 aircraft. Seat 08C is located in the exit row of the economy class section, while seat 04C is considered standard seating in the economy class section. Air Canada's Central Information Chapter (CIC), which sets out policies and procedures for Air Canada personnel, confirms that on the CL65 aircraft "all seats...other than bulkhead seats, are appropriate for passengers travelling with a service animal."

[12] Ms. Laporte-Stark requested that Air Canada send her travel itinerary to her either by e-mail or make it available on Air Canada's Web site, as both these formats are accessible to her. The Aeroplan agent responded that it was not possible to provide travel itineraries to passengers electronically, since its reservation agents did not have access to an e-mail account.

[13] Ms. Laporte-Stark was unable to access the self-service check-in kiosks at the Ottawa airport. As a result, she initially missed the opportunity to collect a bonus incentive offer of 250 Aeroplan miles. She was informed of the offer only after a customer told her about it. Air Canada stated that, after Ms. Laporte-Stark filed her application with the Agency, it had credited her account with the equivalent amount of AeroPlan miles that she would have received had she used the kiosk.

[14] Ms. Laporte-Stark states that, while communicating with the check-in agent at the Ottawa airport, she felt that the agent was not speaking directly to her and was only addressing her daughter, who had accompanied Ms. Laporte-Stark to the airport. As a result, she asked the agent whether she had received any disability training, to which the agent replied "I don't feel comfortable talking to people who don't look at me directly in the eye." In a later submission to the Agency, Ms. Laporte-Stark's daughter wrote a letter corroborating her mother's recounting of events. Finally, Ms. Laporte-Stark states that she did not receive assistance to make her way from the check-in area to the departure gate.

[15] Air Canada submits that the check-in agent in question felt uncomfortable talking with Ms. Laporte-Stark because she was facing in another direction. Air Canada clarified that the agent did not say that she felt uncomfortable talking to people who do not look at her directly in the eye, as suggested by Ms. Laporte-Stark, but rather that she felt uncomfortable "...with people facing another direction...". Moreover, Air Canada submits in a later filing that the agent is hard of hearing and, as a result, found it difficult to communicate with Ms. Laporte-Stark when she was not facing her directly.

[16] Upon arrival for check-in at the Ottawa and Halifax airports, Ms. Laporte-Stark had difficulty finding the check-in counter and getting assistance to find it. Ms. Laporte-Stark described her experience navigating through the ropes and defined the queue as "...practically impossible [...] for persons who are blind, whether they use a cane or a guide dog."

[17] On her inbound flight from Halifax to Ottawa, Ms. Laporte-Stark was informed during the pre-boarding stage that her preselected seat had been changed and that she had been reassigned to a bulkhead seat. Ms. Laporte-Stark informed the flight attendant that this seat could not accommodate her service animal, and asked that her original seat be reassigned, which it subsequently was, without incident.

[18] In a submission dated October 19, 2000, Air Canada states that the last minute seat change was not consistent with its own rules concerning the assignment of bulkhead seats on a CL65 aircraft to people travelling with service animals.

ANALYSIS AND FINDINGS

[19] An application under section 172 of the CTA must be filed by a person with a disability or on behalf of a person with a disability. In this case, Ms. Laporte-Stark is blind and uses the services of a guide dog to assist her. As such, Ms. Laporte-Stark is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[20] 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.

The Agency's approach to the determination of obstacles

[21] Under Part V of the CTA, the mandate of the Agency is to eliminate undue obstacles to the mobility of persons with disabilities from the federal transportation network. The word "obstacle" is not defined in the CTA, but lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement. Obstacles or barriers to the mobility of persons with disabilities may result from, for example, federal transportation service providers' facilities; equipment; and/or policies, procedures, or practices; or a failure by transportation service providers to comply with, and/or to take positive action to enforce compliance with, policies, procedures and practices.

[22] In considering whether a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency generally will look to the incident described in the application to determine whether the applicant has established in the application (that is, on a prima facie basis) that:

• a distinction, exclusion or preference resulted in an obstacle to the mobility of a person with a disability;
• the obstacle was related to the person's disability; and,
• the obstacle discriminates by imposing a burden upon, or withholding a benefit from a person with a disability.

The Agency's approach to the determination of the undueness of obstacles and accommodation

[23] Should the Agency make a finding that a feature of the federal transportation network represents an obstacle to some persons with disabilities, it must then proceed to make a determination of whether that obstacle is undue as it is only upon finding that an obstacle is undue that a transportation service provider may be ordered to take corrective measures to address the obstacle.

[24] In this way, once the applicant has established in the application the existence of an obstacle to the mobility of a person with a disability in the federal transportation network, the onus of proof then shifts to the respondent transportation service provider to prove, on a balance of probabilities, that the obstacle is not undue. To this end, the respondent must demonstrate that the source of the obstacle:

• is rationally connected to a legitimate objective, such as those objectives found in the national transportation policy contained in section 5 of the CTA;
• was adopted by the transportation service provider with an honest and good faith belief that it was necessary to the fulfilment of that legitimate objective; and,
• is reasonably necessary for the accomplishment of its objective, such that it is impossible for the transportation service provider to accommodate the person with a disability without imposing undue hardship on the service provider.

[25] The transportation service provider must show that reasonable accommodation has been provided. What constitutes reasonable accommodation in each case is a matter of degree and depends on a balancing of the interests of persons with disabilities with those of the transportation service provider in the circumstances of the case, including the significance and recurrence or continuing nature of the obstacle and the impact of the obstacle on persons with disabilities as well as the transportation service providers' commercial and operational considerations and responsibilities.

[26] In most cases, there will be a range of alternatives available to address the needs of a person with a disability or a group sharing the same characteristics and, in each case, the reasonable accommodation will be the most appropriate accommodation that respects the dignity of the individual, meets individual needs, and promotes the independence, integration and full participation of persons with disabilities within the federal transportation network while not causing undue hardship to the transportation service provider.

[27] In order to establish undue hardship, a transportation service provider must show that it has considered and determined that there are no reasonable alternatives to better accommodate the person with a disability affected by the obstacle and that there are constraints that make the removal of the obstacle unreasonable, impracticable or, in some cases, impossible.

[28] It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the constraints 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 concepts of undueness and undue hardship.

The case at hand

1. The lack of travel itineraries in alternative formats

Obstacle analysis

[29] Ms. Laporte-Stark made her reservations directly with Air Canada, and wanted access to her travel itinerary in a format that she could access independently, such as e-mail or an Internet site.

[30] Air Canada indicates that it is not possible to provide travel itineraries in an electronic format as its reservation agents do not have access to an e-mail account. At the same time, Air Canada states that it would forward Ms. Laporte-Stark's suggestion, to have accessible travel itineraries, to its Customer Service Innovation group for review.

[31] In the Agency's Code of Practice: Removing Communication Barriers for Travellers with Disabilities (the Communication Code), that was issued in 2004, section 1.1 states that "Transportation service providers are to develop and follow their own Multiple Format Policy to ensure that information related to the successful execution of a trip is available to all travellers in a format that is accessible to them." The failure of carriers to provide individual travel documents in a format independently accessible to persons who are blind can result in such persons being unaware of the details of their travel plans. This puts them at a significant disadvantage, in that they must rely on someone else to inform them of these details, thereby limiting their mobility and independence. The Agency finds that Air Canada's failure to provide Ms. Laporte-Stark with travel itineraries in an accessible format constituted an obstacle to her mobility.

[32] It is important to note that Ms. Laporte-Stark's application was filed in 2000, and electronic resources were not as prevalent as they are today. Technology has evolved, and the Agency is aware that Air Canada now offers alternative/accessible itinerary formats. When booking a ticket on its Web site, Air Canada now offers accessible itineraries (HTML and text formats) as an option.

[33] As travel itineraries in an accessible format are now available from Air Canada, the Agency contemplates no action in this matter.

2. The inaccessibility of the self-service check-in kiosks at the Ottawa airport

Obstacle analysis

[34] The Agency accepts that Ms. Laporte-Stark could not access the self-service check-in kiosks at the Ottawa airport, as they were not designed to accommodate persons who are visually impaired. As a result, Ms. Laporte-Stark missed the opportunity to collect 250 Aeroplan miles, which were credited to accounts as an incentive to use the service kiosks.

[35] Air Canada submits that its self check-in kiosks are specifically designed to be accessible for a larger number of customers, but that the touch screen technology installed on the machines is not accessible to people who are blind. Moreover, Air Canada maintains that the primary means of checking in is still with the check-in counter, which Air Canada describes as, "...the most convenient and efficient way to register for a flight."

[36] The Agency has already considered the issue of the accessibility of self check-in kiosks. In Decision No. 263-AT-A-2000, the Agency considered the accessibility of Air Canada's self-service check-in kiosks at the Ottawa airport, and found that, at the time, their inaccessibility was an inconvenience, but not an obstacle for persons who are blind. The Agency based its finding on the fact that while inconvenient, the purpose of the kiosks was to enhance the existing check-in service, not to replace it, such that the most appropriate accommodation was considered to be Air Canada's existing check-in service.

[37] Since the time of Ms. Laporte-Stark's application, self check-in kiosks have become increasingly important features of the transportation network. This importance is reflected in the Agency's Communication Code, which provides in section 1.3 that, "where dispensing machines or computerized information kiosks are used [...] at least one of those machines [which includes check-in kiosks] should allow a person who uses a wheelchair, is blind or visually impaired, has a speech impairment or is Deaf or hard of hearing, to use the machine independently and securely", no later than June 1, 2009.

[38] The Agency expects that where Air Canada uses dispensing machines, it will have at least one accessible automated check-in kiosk in each service area by June 1, 2009.

[39] The incident addressed in the above decision and the incident in this case occurred at or around the same time, at the same airport. At that time, the self-service check-in kiosks were newer services that were not considered the most appropriate accommodation insofar as the principal means for check-in was still at the check-in counter. The Agency therefore finds that the inaccessibility of the self-service check-in kiosks at the Ottawa airport did not constitute an obstacle to Ms. Laporte-Stark's mobility at that time.

[40] Accordingly, the Agency contemplates no corrective measures in this matter.

3. Air Canada's level of disability-related services provided upon check-in at the Ottawa airport

Obstacle analysis

[41] The level of disability-related services received by Ms. Laporte-Stark at the check-in counter raise concerns regarding disability sensitivity training and effective communication between parties.

[42] The breakdown in communication between Ms. Laporte-Stark and the check-in agent resulted in an exchange that left Ms. Laporte-Stark upset and negatively impacted on the provision of the assistance that Ms. Laporte-Stark required. It is also apparent that the agent and Ms. Laporte-Stark have different perceptions of the same conversation. This highlights the need for clear and effective communication, and for parties to be clear about expressing their needs. The Agency finds that the check-in agent in question displayed a lack of awareness of the needs of persons with disabilities which exacerbated the breakdown in both communication and service.

[43] In light of the above, the Agency finds that the level of disability-related services received by Ms. Laporte-Stark at the Ottawa airport, as they relate specifically to the Air Canada check-in agent, constituted an obstacle to her mobility.

Undueness analysis

[44] Air Canada does not provide any explanation as to the reason why the check-in agent did not identify her own disability to Ms. Laporte-Stark. While Air Canada made reference to changes made to its training program on how to get the attention of passengers who are blind, the breakdown in communication at hand was influenced by the fact that the Air Canada employee was hard of hearing. In this regard, Air Canada did not indicate any steps taken to ensure that this employee received any training or guidance specific to her own disability and how it may affect communication with passengers who are blind or who have low vision.

[45] In the case of the check-in agent, training on how to meet the needs of persons with disabilities as required by the Agency's Personnel Training for the Assistance of Persons With Disabilities Regulations, SOR/94-42 would have helped to ensure that Ms. Laporte-Stark's needs were addressed in an appropriate manner. At the same time, the agent should have informed Ms. Laporte-Stark of her own disability so that she could better understand the conversation, and facilitate an open dialogue. Air Canada did not demonstrate that such training for this agent would have constituted undue hardship. The Agency, therefore, finds that the obstacle constituted by the level of disability-related services provided by Air Canada upon check-in at the Ottawa airport was undue.

[46] The Agency recognizes that this is an isolated incident. As a result, the Agency finds it appropriate to issue a corrective measure specific to the Air Canada check-in agent that served Ms. Laporte-Stark at the Ottawa airport. That is, if the check-in agent has not received training since the time of Ms. Laporte-Stark's travel to ensure that she can effectively communicate with persons with disabilities given her own hearing impairment, Air Canada is required to ensure that she receives such training.

4. Issues of wayfinding at the Ottawa and Halifax airports

Obstacle analysis

[47] It is clear from Ms. Laporte-Stark's submissions that she experienced difficulties wayfinding in both the Ottawa and Halifax airports. In this sense, the Agency recognizes that Ms. Laporte-Stark may have experienced an obstacle.

[48] While the Agency is concerned about the adequacy of wayfinding in airports, this issue is primarily a terminal responsibility. Therefore, the Agency contemplates no action against Air Canada in this matter.

[49] In addition, since this incident occurred, the Agency issued its Code of Practice: Passenger Terminal Accessibility (the Terminal Code).

[50] It is stated in section 2.1.2 of the Agency's Terminal Code that:

During the design phase of new construction and renovations, terminal operators are to incorporate wayfinding methods that allow a person to find his or her way to a given destination.

Buildings should be designed to minimize reliance on directional signage. Wayfinding considerations include, among other things, the positioning of entrances and exits, the use of colour contrasting, pattern direction on floors or walls, tactile markings, the arrangement of architectural features such as walls or columns, acoustics, and lighting. These features can help direct people to their intended destination.

[51] The Agency encourages airport authorities to hire wayfinding consultants whenever they are considering renovations or expansions. Wayfinding consultants provide useful and insightful advice concerning the appropriate installation of building fixtures, signage, and even proper lighting conditions within airport terminals.

5. Air Canada's reassignment of seats on the Halifax to Ottawa flight

Obstacle analysis

[52] The Agency is of the opinion that the reassignment of Ms. Laporte-Stark's seat on the inbound flight from Halifax to Ottawa was inappropriate, and that it occurred contrary to both the carrier's policy and the passenger's wishes. In this particular case and, in general, whenever seats are preselected by a person with a disability, carrier staff should never make changes to that seating assignment without first consulting the passenger.

[53] Air Canada acknowledges that the seating reassignment on board the CL65 aircraft was not standard practice and, in fact, goes against the carrier's policy. Air Canada's CIC 59/8, instructions to its staff indicate that "...the bulkhead position in the CL65 is not large enough to accommodate a service animal." In light of the fact that Ms. Laporte-Stark's seat was changed without prior consultation, and that Air Canada recognized that such a reassignment should not have occurred, the Agency finds that the seat reassignment constituted an obstacle to Ms. Laporte-Stark's mobility.

Undue obstacle analysis

[54] Although the seating arrangement was an inconvenience to Ms. Laporte-Stark, the in-flight crew recognized the problem and immediately provided the appropriate seating once Ms. Laporte-Stark pointed out the error. Air Canada also stated that all Halifax agents have been briefed about the incident and have been reminded "...not to assign the bulkhead seat on a CL65 to customers travelling with a service animal." Additionally, Ms. Laporte-Stark had been pre-boarded onto the aircraft, such that both the seating reassignment and subsequent solution were completed before the other passengers boarded the aircraft.

[55] In light of the measures taken by Air Canada to remedy the situation — both onboard the aircraft and through its staff briefing — the Agency finds that such measures will help to prevent the recurrence of similar incidents and, therefore, contemplates no action in this matter.

CONCLUSION

[56] The Agency finds that:

• while the lack of travel itineraries in an alternative format constituted an obstacle to Ms. Laporte-Stark's mobility, in light of the fact that Air Canada has since introduced alternative travel itinerary formats, the Agency contemplates no further action regarding this matter;
• the inaccessibility of the self-service check-in kiosks at the Ottawa airport at the time of Ms. Laporte-Stark's travel did not constitute an obstacle, as checking in at the check-in counter was, at that time, the most appropriate accommodation;
• the level of disability-related services received upon check-in at the Ottawa airport constituted an undue obstacle to Ms. Laporte-Stark's mobility. If the check-in agent in question has not, since the time of Ms. Laporte-Stark's travel, received training to ensure that she can effectively communicate with persons with disabilities given her own hearing impairment, Air Canada is required to ensure that she receives such training;
• in the matter of wayfinding and the difficulties navigating the check-in areas at the Ottawa and Halifax airports, as this issue is primarily a terminal responsibility, no action will be taken against Air Canada; and,
• although the Agency finds that the seat reassignment on the inbound flight from Halifax to Ottawa was an undue obstacle to Ms. Laporte-Stark's mobility, given that the actions taken by Air Canada adequately addressed Ms. Laporte-Stark's concerns, the Agency contemplates no action against Air Canada.

Members

• J. Mark MacKeigan
• John Scott