Decision No. 526-AT-A-2005
August 22, 2005
File No. U3570/01-58
BACKGROUND
In its Decision No. 426-AT-A-2003 dated July 23, 2003 (hereinafter the Decision), the Canadian Transportation Agency (hereinafter the Agency) made a determination with respect to an application filed by Judith Walsh on behalf of her mother, Joan Farnon, concerning the level of assistance Ms. Farnon received from British Airways Plc carrying on business as British Airways (hereinafter British Airways), when she travelled on a round trip between Vancouver, British Columbia, Canada, and London, England, departing April 1, 2000 and returning April 30, 2000.
The Agency determined that the level of assistance that British Airways provided to Ms. Farnon at the Vancouver International Airport on April 1 and 30, 2000 constituted an undue obstacle to her mobility. Pursuant to the Decision, the Agency directed British Airways to take the following corrective measures within thirty (30) days from the date of the Decision:
- send a memorandum to its agents in Canada and its in-flight personnel who work on aircraft operating to or from Canada highlighting the experience of Ms. Farnon, emphasizing the requirement for personnel to be sensitive to the needs of persons with disabilities and advising them of the changes to British Airways' policies (as referenced below).
- amend its policies to reflect that personnel are to assist persons with disabilities with proceeding to the general public area at Canadian airports; and
- amend its policies, including section 5.5 of its General Conditions of Carriage (hereinafter Conditions of Carriage), to delete all inferences that any specific services requested by persons with disabilities to be provided at Canadian airports or on flights to/from Canada are not guaranteed;
Further, the Agency also required British Airways to provide the Agency with a copy of the policies, as amended, and the memorandum within thirty (30) days from the date of issuance of the Decision.
Following its consideration of the information submitted by British Airways in response to the Decision, the Agency in its Decision No. 261-AT-A-2004 dated May 21, 2004 determined that no further corrective action was required with respect to the first two corrective measures outlined above. With respect to the third corrective measure, British Airways advised the Agency that it was in the process of reviewing its Conditions of Carriage and expected to implement new provisions within six months (fall 2004). Further, British Airways filed an amended Scheduled International Tariff, NTA(A) No. 306 (hereinafter the tariff) and confirmed that its tariff overrides any provision in its Conditions of Carriage, concerning services requested by passengers with disabilities travelling to and from Canada. In this regard, the Agency determined that British Airways' amended tariff clearly sets out the services that are required to be provided to passengers with disabilities at Canadian airports and on flights to/from Canada.
However, the Agency determined that in light of the significance of the Conditions of Carriage, it was necessary for the Agency to review the proposed Conditions of Carriage involving flights to/from Canada before they are implemented. The Agency, therefore, required British Airways to file a copy of the draft amendment of the Conditions of Carriage with the Agency as soon as possible but no later than six months from the date of Decision No. 261-AT-A-2004. British Airways was also required, when amending its Conditions of Carriage, to delete any conditions that infer that specific services requested by persons with disabilities to be provided at Canadian airports or on flights to/from Canada are not guaranteed. In addition, the Agency reminded British Airways that its Conditions of Carriage involving flights to/from Canada are to be consistent with its tariff.
The Agency also advised that following its review of the required material, the Agency would determine whether further action was required in this matter.
ISSUE
The issue to be addressed is whether the corrective measures taken by British Airways meet the requirements of Decision No. 261-AT-A-2004 dated May 21, 2004.
FACTS
On November 22, 2004, British Airways requested an extension until January 4, 2005 to comply with the requirements of Decision No. 261-AT-A-2004. In its Decision No. LET-AT-A-317-2004 dated November 24, 2004, the Agency granted the extension as requested.
On January 14, 2005, British Airways requested an additional extension until February 11, 2005, which the Agency granted in its Decision No. LET-AT-A-19-2005 dated January 19, 2005. Between January 28, 2005 and March 8, 2005, discussions were held between Agency staff and British Airways with respect to the requirements of Decision No. 261-AT-A-2004. On March 24, 2005, British Airways filed its response to Decision No. 261-AT-A-2004.
British Airways' tariff, effective January 26, 2005, regarding requests for assistance from passengers with disabilities states that:
Rule 27(C) For passengers with disabilities travelling to or from Canada BA will provide assistance, including wheelchair assistance and other assistance in boarding, deplaning, transferring, retrieving baggage and travelling to the general public area of the airport upon request if the request is made at least 48 hours before departure and will use all reasonable endeavors to provide such service if the request is made within 48 hours of departure. Passengers with disabilities will be provided seating in accordance with their request within the class of service on the ticket except that the bulkhead seat may have to be reassigned to accommodate another passenger with a disability.
...
A copy of British Airways' draft Conditions of Carriage that cover services for passengers who travel with British Airways, including passengers with disabilities, was provided.
With respect to passengers with disabilities, the draft Conditions of Carriage provide that:
18a1 If you are a passenger with a disability and you require any special assistance, you should inform us at the time of booking of your special needs.
18a2 If you are a passenger with a disability we will carry you where arrangements have been made to provide for your special needs. If you do not inform us at the time of booking of your special needs, we will nevertheless use reasonable efforts to accommodate your special needs.
ANALYSIS AND FINDINGS
The Agency has reviewed all of the information filed with respect to whether British Airways' draft Conditions of Carriage meet the requirements of Decision No. 261-AT-A-2004 dated May 21, 2004.
The Agency notes that British Airways has amended its Conditions of Carriage to indicate that services requested by persons with disabilities at the time of booking will be provided; however, if services are not requested at the time of booking, British Airways will nevertheless use reasonable efforts to accommodate the person's service request.
The Agency is of the opinion that it is desirable for persons with disabilities to identify any service or assistance they may require at the time of booking. However, a request for disability-related assistance may be made subsequent to a person making his/her reservation, and British Airways is still required to provide the service. For example, if a passenger with a disability books a flight 30 days in advance, but only makes his/her request for assistance 48 hours in advance of his/her flight, British Airways is required to provide the assistance requested in accordance with the provisions of its tariff.
In this regard, the Agency finds that British Airways' tariff is more definitive and leaves no doubt that the carrier is required to provide assistance to persons with disabilities, requested at least 48 hours prior to travel. Therefore, in order that British Airways' reservation agents provide services to person with disabilities in compliance with the carrier's tariff, the Agency recommends that British Airways give some consideration to creating a link in its Conditions of Carriage to its tariff provisions concerning assistance to/from Canada for persons with disabilities. Another option would be to incorporate the tariff rule concerning assistance to/from Canada for persons with disabilities in its Conditions of Carriage.
Notwithstanding, given that British Airways' tariff with respect to passengers with disabilities travelling to/from Canada overrides any provision in its Conditions of Carriage, as previously noted in Decision No. 261-AT-A-2004, the Agency finds that British Airways' amendment to its Conditions of Carriage satisfies the corrective measure of No. 261-AT-A-2004.
In light of the foregoing, the Agency is satisfied that the corrective measures taken by British Airways meet the requirements of Decision No. 261-AT-A-2004 dated May 21, 2004.
Accordingly, the Agency does not contemplate any further action in this matter.
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