Decision No. 523-AT-A-2005
Follow-up - Decision No. 128-AT-A-2006
August 19, 2005
File No. U3570/05-10
APPLICATION
[1] On March 21, 2005, James Swaffield, on behalf of Edna Swaffield, filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.
[2] On April 22, 2005, Air Canada filed its answer to the application. Mr. Swaffield filed his reply on April 26, 2005.
[3] In Decision No. LET-AT-A-186-2005 dated June 23, 2005, the Agency granted Air Canada an opportunity to file comments on the additional information provided by Mr. Swaffield in his reply. Air Canada filed its response on June 30, 2005.
[4] 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 August 19, 2005.
PRELIMINARY MATTER
[5] In addition to the accessibility matters referred to in the application, Mr. Swaffield raised concerns regarding difficulties he and Mrs. Swaffield encountered with respect to the gate number for their connecting flight at the Vancouver International Airport (hereinafter the Vancouver airport) on January 5, 2005. As this matter is not related to Mrs. Swaffield's disability, it is outside of the jurisdiction of the Agency under section 172 of the CTA, and, as such, it will not be addressed in this Decision.
[6] Nonetheless, the Agency acknowledges the impact on Mr. and Mrs. Swaffield and their grandchildren of being incorrectly advised, on three occasions, of the gate number for their flight. The Agency notes the importance of receiving accurate and timely information regarding gate locations so as to provide trouble-free travel to passengers. The Agency also notes, however, that there is no indication that it was Air Canada's personnel who provided the wrong gate information to the Swaffields.
ISSUE
[7] The issue to be addressed is whether the level of assistance provided by Air Canada to Mrs. Swaffield in getting through the Vancouver airport constituted an undue obstacle to Mrs. Swaffield's mobility and, if so, what corrective measures should be taken.
FACTS
[8] Mrs. Swaffield has had two hip replacements and needs two knee replacements, one of which was scheduled to be done in April 2005. On January 5, 2005, Mr. and Mrs. Swaffield, along with their two grandchildren, travelled from Edmonton to Vancouver on Flight No. AC235 and from Vancouver to Los Angeles on Flight No. AC552 with a return on January 10, 2005.
[9] Upon checking in at the Edmonton International Airport (hereinafter the Edmonton airport), Mr. Swaffield was advised by an Air Canada agent that as Mrs. Swaffield uses a wheelchair, they would be met at the Vancouver airport with a wheelchair and taken to the Air Canada departure area for the United States. The Passenger Name Record (hereinafter the PNR) for the Swaffields' reservation includes a "special service request" for Mrs. Swaffield, for only two of the four segments of the trip, with the code WCHS. This code is defined in the International Air Transportation Association's Passenger Services Conferences Resolutions Manual as follows: "(Wheelchair - S for Steps) - passenger cannot ascend/descend steps, but is able to make own way to/from cabin seat; requires wheelchair for distance to/from aircraft or mobile lounge and must be carried up/down steps".
[10] Air Canada's policies and procedures in effect on January 5, 2005 were provided by the carrier in its central information chapter (hereinafter CIC) documents CIC840/49 and CIC57/4. These documents set out that passengers who require the use of a wheelchair differ in their disabilities and will therefore be offered a variety of specialized handling based on their specific needs. As part of its policy, Air Canada offers, without charge, wheelchair service to and from the aircraft, at all stages of a customer's trip, including the transfer to a connecting flight. The policy also provides that reservation agents must determine with the customer the type of wheelchair assistance and enter the proper code in the PNR.
[11] On January 5, 2005, Air Canada had both a lead and a rover agent at the United States departure area of the Vancouver airport. The duties to be performed by these agents are as set out in Air Canada's CIC620/362 and CIC620/818 documents. The lead agent, among other duties, notes arrival times and gate assignments; checks passenger service messages for each flight; prepares for "special needs passengers"; notes connection information with gate assignments for connecting customers; contacts other cart drivers for assistance and co-ordinates arrivals if needed; ensures that the exit avenue is open and clear for deboarding; consults with flight attendants regarding "special needs" customers; remains at the aircraft until all customers have deboarded; and assists "special needs" customers to baggage or connection gate.
[12] The rover agent must liaise with the gate agents to locate and account for checked in passengers who are processing through United States Customs and Immigration, where the agent will assess the situation regarding the passengers and baggage making the flight and will advise the gate. The rover agent must also help re-tag baggage for customers who have cleared immigration and customs but have missed their flight; provide assistance to persons who use wheelchairs and to unaccompanied minors from check-in through United States Customs and Immigration if other agents are too busy; and locate and return wheelchairs to transborder check-in area.
[13] Upon deboarding in Vancouver on January 5, 2005, one of Air Canada's flight crew advised the Swaffields that he could call for a wheelchair or that, alternatively, if Mrs. Swaffield felt she could walk the length of the ramp with the assistance of Mr. Swaffield, they would find a cart waiting to take her to the United States departure area. Mrs. Swaffield, therefore, walked up the ramp, which turned out to be a bit further than she had expected. The driver told her to sit and wait and that he would be back for her, and also indicated that Mr. Swaffield and his grandchildren could walk. After waiting for a short time, Mrs. Swaffield got a ride to the United States departure area, while Mr. Swaffield and his grandchildren walked to this area where they found Mrs. Swaffield standing alone, waiting for their arrival.
[14] Mr. Swaffield proceeded to inquire about where he could pick up his luggage and was directed to go behind the United States departure counter. However, he found a long line of people waiting for customs. He then asked an Air Canada agent where he could find a wheelchair and he was told to go behind the United States departure counter and through the lineup, which he did. However, the wheelchairs were all chained together and consequently, he had to approach another Air Canada agent to have the wheelchairs unlocked.
[15] Although Air Canada's personnel in Edmonton had informed Mr. Swaffield that he and his family would be taken directly through customs because his wife was using a wheelchair, when he inquired in Vancouver as to where he needed to go to clear customs, Air Canada's personnel advised him to stand in line like everyone else. Mr. Swaffield was eventually advised by a security agent that he could take his wife through a different area, but that his grandchildren would have to remain in the lineup. As Mr. Swaffield did not feel he could do this, they all remained in the lineup.
[16] After clearing customs, which took approximately 45 minutes, the Swaffields found their luggage but as there was a claim tag missing on one of the suitcases, Mr. Swaffield was not able to transfer it and had to carry it. Mr. Swaffield asked for the location of their departure gate as the gate number was not indicated on their boarding passes and they did not know to look at the monitor. Mr. Swaffield was given the wrong gate location three times and, as a result, he ended up running to find the correct gate and made it to the plane with only four minutes to spare. Mr. Swaffield was exhausted as a result of having to push Mrs. Swaffield in the wheelchair and carry the luggage, with his grandchildren in tow.
POSITIONS OF THE PARTIES
[17] With respect to the offer made by the security agent that he could take his wife through a different area, Mr. Swaffield advises that although he could not do that without their grandchildren, this was more service than any member of Air Canada's personnel had offered.
[18] Mr. Swaffield states that Air Canada provided the requested assistance throughout their trip except at the United States departure area at the Vancouver airport where he found Air Canada's personnel rude and unhelpful.
[19] Air Canada advises that although it could not recreate the events of January 5, 2005 in Vancouver, it can outline the procedures for handling passengers with wheelchair requests at the Vancouver airport.
[20] Air Canada notes that when passengers make reservations on its Web site, they have options available for "special needs". Air Canada states that it appears that Mr. Swaffield did not indicate the need for wheelchair assistance when he made the booking on the Air Canada Web site on November 11, 2004, but rather did so when checking in for Air Canada Flight No. AC 235 on January 5, 2005. Air Canada adds that this appears to be consistent with the WCHS Special Service Request code for the outbound portion of the Swaffields' trip, which appears in their PNR. In this regard, Air Canada notes that a request for wheelchair assistance must be made to the air carrier at least 48 hours in advance of the intended travel in order for Air Canada to meet the passenger's needs but that, if the request is made within the 48 hours, Air Canada will do its best to accommodate the passenger's request.
[21] In this regard, Mr. Swaffield states that while he did make the booking on November 11, 2004 on Air Canada's Web site, it was noted on his wife's itinerary that she would need assistance with any stairs. Furthermore, Mr. Swaffield states that approximately one week after making the reservations he drove to the Edmonton airport and spoke with an Air Canada agent at the check-in counter to confirm that he had booked the flight properly. Mr. Swaffield indicates that, at that time, they discussed the need for a wheelchair for Mrs. Swaffield, which the agent noted on his computer, and the agent showed Mr. Swaffield where he could find the wheelchairs in the airport.
[22] Air Canada states that Mr. Swaffield would have been directed to wait in a seating area behind the United States check-in counters and from that point an agent would have brought a wheelchair and would have assisted Mr. Swaffield and his family through as a group. Air Canada further explains that once through United States Customs and Immigration and security screening, that same agent would radio for a cart to pick them up from that point and drive them to the departure gate. Air Canada notes that it was not clear from Mr. Swaffield's correspondence if he advised any agents that he spoke with at the United States check-in counter that he needed assistance to take the wheelchair through as he was also travelling with his grandchildren.
[23] In this regard, Mr. Swaffield states that the information provided by Air Canada in its answer is what should have happened and what he was told would happen by Air Canada agents in Edmonton. He also notes that while Air Canada states that the Swaffields should have been directed to wait in a seating area behind the United States check-in counters, he did not see any seating. Regarding Air Canada's statement that it was not clear if he had advised any agents that he spoke with that he needed assistance, Mr. Swaffield notes that his request for assistance was made at the start of the flight.
[24] Air Canada states that it would not have abandoned the Swaffields and wishes to assure them that its employees strive to provide good customer service to all of its passengers.
[25] Air Canada also notes that in order for a carrier to be able to properly assist persons with disabilities, clear communication of the needs of those persons must be made at the time of booking and throughout the process. Air Canada asserts that the wheelchair service was not requested 48 hours in advance of the intended travel, but that it was nevertheless provided to Mrs. Swaffield when she arrived in Vancouver, and adds that she was transported by motorized cart to the United States departure area. It also notes that Mr. Swaffield did obtain a wheelchair and that had he told an Air Canada agent that he needed assistance, such assistance would have been provided to him. Air Canada notes that it appears that Mr. Swaffield did not make his situation known to an Air Canada agent, that the Swaffields did not wait for the Air Canada agent to take Mrs. Swaffield to the departure gate for the Air Canada flight to Los Angeles and that Mr. Swaffield decided to obtain a wheelchair and push Mrs. Swaffield himself.
ANALYSIS AND FINDINGS
[26] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
[27] An application must be filed by a person with a disability or on behalf of a person with a disability. In the case at hand, Mrs. Swaffield has difficulty climbing steps and needs wheelchair assistance to make her way through airport terminals and, as such, is a person with a disability for the purpose of applying the accessibility provisions of the CTA.
[28] To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.
Whether the applicant's mobility was restricted or limited by an obstacle
[29] The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.
[30] 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 in the past. For example, there are cases of 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 has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.
The case at hand
[31] Mrs. Swaffield has had two hip replacements and needs two knee replacements. Therefore, she required wheelchair assistance at the Vancouver airport to deboard, get through customs and through the terminal to her boarding gate, and board her connecting flight.
[32] At the time of deboarding in Vancouver on January 5, there was no wheelchair service waiting for Mrs. Swaffield. A member of Air Canada's flight crew offered Mrs. Swaffield the choice of either walking the length of the ramp with the help of her husband to take a cart or waiting for a wheelchair; she decided on the former. However, she discovered that the walk was longer than what she had expected. Once she reached the end of the ramp, contrary to Air Canada's assertion that the Swaffields would find a cart waiting to take her to the United States departure area, Mrs. Swaffield was told to sit and wait.
[33] Mrs. Swaffield received the cart assistance after a short wait. The cart driver brought her to the United States Customs and Immigration area where she was left standing alone to wait for her family. Mr. Swaffield approached two members of Air Canada's personnel to inquire about the location of the wheelchairs and to have them unlocked, following which he pushed the wheelchair from the customs area to the gate for their connecting flight. At the same time as Mr. Swaffield pushed the wheelchair he continued to tend to his grandchildren and, once they had cleared customs, also to their luggage. This, combined with the confusion about the gate change, resulted in Mr. Swaffield reaching the correct boarding gate with only a few minutes to spare, feeling exhausted. At no point did Air Canada's personnel offer to push the wheelchair.
[34] In light of the foregoing, the Agency finds that the level of assistance provided by Air Canada to Mrs. Swaffield in getting through the Vancouver airport on January 5, 2005, constituted an obstacle to Mrs. Swaffield's mobility.
Whether the obstacle was undue
[35] 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" also 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.
[36] 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
[37] Having found that the level of assistance provided by Air Canada to Mrs. Swaffield in getting through the Vancouver airport on January 5, 2005 constituted an obstacle to Mrs. Swaffield's mobility, the Agency must now determine whether the obstacle was undue.
[38] The Agency notes Mr. Swaffield's assertion that Mrs. Swaffield's need for wheelchair assistance was noted in their reservation file when he went to the Edmonton airport in November 2004 to confirm that he had properly booked their flight. Air Canada, for its part, expressed its opinion that the request for wheelchair assistance may have been made at the time of check-in on January 5, 2005, although the Agency notes that Mrs. Swaffield's complaint form did not make reference to a specific date; rather, it is simply noted that wheelchair assistance was requested at the Edmonton airport.
[39] Notwithstanding the lack of clear evidence as to when the request for wheelchair assistance was made, the Agency notes that this request was included in Mrs. Swaffield's PNR and that Air Canada's personnel at the Edmonton airport were aware of Mrs. Swaffield's need for wheelchair assistance and advised that she would be met at the Vancouver airport with a wheelchair and taken from the aircraft and assisted to her connecting flight.
[40] The Agency is of the opinion that the Swaffields, having been told in Edmonton that Mrs. Swaffield would receive wheelchair assistance, would have had every expectation that upon deboarding, Mrs. Swaffield would receive assistance from Air Canada's personnel who would provide a wheelchair and push it through the airport to their connecting flight.
[41] The Agency has long recognized the importance of services to persons with disabilities when travelling by air and, since 1994, air carriers providing domestic services have been required to provide uniform services to persons with disabilities. Part VII of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) sets out the terms and conditions of carriage of persons with disabilities and requires air carriers, if requested at least 48 hours in advance of travel, to provide services to persons with disabilities, which include providing assistance in proceeding to the boarding area. The ATR also require air carriers to make a reasonable effort to provide such services where they are requested less than 48 hours in advance of travel, which the Agency notes forms part of Air Canada's policies.
[42] While the Agency recognizes that these regulations are only applicable to domestic travel, the principles embodied therein are equally applicable to international travel, especially with respect to that part of the international travel that occurs at Canadian air terminals.
[43] The Agency notes that Air Canada's policy in this regard indicates that the carrier offers wheelchair service to and from the aircraft, "at all stages of a customer's trip, including the transfer to a connecting flight." This service was clearly not provided to Mrs. Swaffield. The Agency further notes the carrier's procedures for the lead and rover agents regarding the provision of services to persons who require wheelchair assistance. These services were also not provided to the Swaffields.
[44] Although Air Canada has procedures in place, the wheelchair assistance, as recorded in Mrs. Swaffield's PNR, was not awaiting Mrs. Swaffield upon her arrival at the Vancouver airport. Furthermore, with respect to the cart service, the Agency notes that, contrary to the assertions made by Air Canada about the level of service the Swaffields would have received, Mrs. Swaffield was not directed to wait in a seating area behind the United States check-in counters; no agent brought a wheelchair at that point to assist Mrs. Swaffield and her family through as a group; and no agent radioed for a cart to pick them up once through United States Customs and Immigration and security screening to drive them to the departure gate.
[45] The Agency notes Air Canada's claim that assistance would have been provided if Mr. Swaffield had made his situation known to an Air Canada agent and that the Swaffields did not wait for an Air Canada agent but that, rather, Mr. Swaffield decided to obtain a wheelchair and push Mrs. Swaffield himself. In light of Air Canada's policies and procedures that place the onus on the carrier's personnel to provide wheelchair assistance, and the fact that such assistance was not provided, it would seem reasonable to have expected that one of the Air Canada personnel approached by Mr. Swaffield, who was looking for a wheelchair, would have questioned his need for assistance. The two members of Air Canada's personnel with whom Mr. Swaffield spoke did not offer assistance nor did they inquire as to whether he needed any.
[46] No explanation was provided by Air Canada as to why the lead or rover agent did not offer wheelchair assistance as set out in Air Canada's procedures, both in its CICs and its letter dated April 22, 2005. The Agency notes that Air Canada has not raised any operational reasons as to why it was not prepared to provide Mrs. Swaffield with wheelchair assistance upon deboarding. In addition, although Air Canada noted the presence of a lead and a rover agent at the United States departure area, those agents did not intervene to provide the wheelchair assistance requested by Mr. Swaffield once Mrs. Swaffield arrived at the United States departure area on the cart.
[47] With respect to the service options offered when the Swaffields were deboarding in Vancouver, the Agency notes that the flight crew member failed to fully explain to Mrs. Swaffield how the cart service differs from the wheelchair assistance she had requested. In this regard, the Agency is of the opinion that had Air Canada made proper inquiries about Mrs. Swaffield's needs and explained to her the limitations of the cart assistance, it would have been apparent that this service would not have met her needs.
[48] The Agency points out that carriers cannot assume that transportation by cart within the terminal will be adequate for all persons with disabilities who require wheelchair assistance. The provision of cart assistance should be thoroughly discussed with the person requiring assistance, or someone on their behalf, and the needs and functional limitations of that person should be evaluated before concluding that cart assistance is a reasonable and adequate way for a carrier to provide transportation within the terminal.
[49] The Agency also notes that although the CICs set out, in general terms, that the rover agent is to provide assistance to persons who use wheelchairs from check-in and through United States Customs and Immigration if other agents are too busy, it is not clear from the written procedures to what extent the wheelchair assistance is provided to persons with disabilities who require this assistance once they disembark from the cart, in particular in light of the different policies and procedures set out by Air Canada in its submissions dated April 22, 2005 and June 30, 2005.
[50] According to Air Canada's letter dated April 22, 2005, once the Swaffields had made it through customs, an agent would radio for a cart to pick them up and drive them to the departure gate, however, it advised in its letter dated June 30, 2005 that once through customs, Mrs. Swaffield would have been taken to her departure gate in a wheelchair. The Agency is therefore unsure as to what procedure should have been explained to the Swaffields and followed by Air Canada's personnel as the written policies and procedures provided by Air Canada do not contain the same level of detail provided by the carrier in the two above-noted submissions. The Agency therefore questions the ability of Air Canada's personnel to fully explain what assistance persons with disabilities will receive with the cart service, as well as its limitations, and how this assistance differs from wheelchair assistance. As such, the Agency finds that this lack of clarity in Air Canada's policies and procedures was likely a contributing factor to Air Canada's failure to provide the assistance that Mrs. Swaffield needed throughout the Vancouver airport.
[51] The Agency is therefore of the opinion that Air Canada did not make a reasonable effort to provide the wheelchair assistance that was noted in the PNR. That is, had Air Canada made proper enquiries about Mrs. Swaffield's needs and explained the limitations of the cart assistance, it would have been apparent that this would not have met her needs.
[52] In light of the above, the Agency finds that the level of assistance at the Vancouver airport on January 5, 2005 constituted an undue obstacle to Mrs. Swaffield's mobility.
CONCLUSION
[53] Based on the above findings, the Agency hereby directs Air Canada to take the following measures within thirty (30) days from the date of this Decision:
- Provide the Agency with a copy of the policies and procedures regarding cart assistance. If these policies and procedures do not, at present, clearly set out the nature and extent of the assistance provided to persons with disabilities who use Air Canada's electric cart service, when and how this information is conveyed by Air Canada's personnel to passengers with disabilities, and the dialogue that Air Canada's personnel is required to have with passengers who request wheelchair assistance when electric cart assistance is offered as an alternative, Air Canada is required to accordingly amend the policies and procedures and to provide the Agency with a copy of any such amendments.
- Air Canada is to also indicate how and when it will ensure that its flight crew and ground personnel and those who are contracted to provide wheelchair and cart assistance are made aware of these policies and procedures.
[54] With respect to the level of wheelchair assistance provided by Air Canada, the Agency has already required Air Canada, in Decision No. 361-AT-A-2005 dated June 10, 2005, to provide the Agency with a copy of its policies and procedures that have been put in place to provide wheelchair assistance to persons with disabilities at the Vancouver airport. As such, the Agency will address these policies and procedures in that case.
[55] Following a review by the Agency of the appropriateness of the measures taken by Air Canada to remove the undue obstacle, the Agency will determine whether further action is required.
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