Decision No. 534-AT-A-2004

Follow-up - Decision No. 715-AT-A-2005

October 6, 2004

File No. U3570/00-82

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APPLICATION

On December 11, 2000, Joseph Dawson filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. In its Decision No. LET-AT-A-83-2001 dated February 22, 2001, the Agency required Mr. Dawson to provide further information to complete his application. On October 14, 2001 and November 15, 2001, Mr. Dawson filed additional information.

In response to a request by Air Canada, the Agency, by Decision No. LET-AT-A-96-2002, granted Air Canada an extension of time until April 21, 2002 to file its answer to the application. On April 25, 2002, Air Canada filed its answer to the application and on May 7, 2002, Mr. Dawson filed his reply to the carrier's answer.

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 indefinite extension of the deadline.

PRELIMINARY MATTERS

In his application, Mr. Dawson stated that he had encountered problems pre-boarding Air Canada flights as staff are not always available to assist with boarding. In its Decision No. LET-AT-A-83-2001, the Agency requested additional information with respect to, inter alia, the matter of the pre-boarding assistance. Mr. Dawson provided general information with respect to this matter on October 14, 2001 and further information on November 15, 2001. In its Decision No. LET-AT-A-58-2002 dated February 25, 2002, the Agency determined that due to the absence of specific information regarding the lack of pre-boarding assistance, the Agency's investigation would be limited to the disassembling and reassembling of Mr. Dawson's electric wheelchair.

Although both Air Canada's answer to the application and Mr. Dawson's reply to the carrier's answer were received after the prescribed deadlines, the Agency, pursuant to section 8 of the National Transportation Agency General Rules, SOR/88-23, accepts these submissions as being relevant and necessary to its consideration of this matter.

ISSUE

The issue to be addressed is whether the manner in which Mr. Dawson's wheelchair was transported and the state in which it was returned to him constituted an undue obstacle to his mobility and, if so, what corrective measures should be taken.

FACTS

On December 8, 2000, Mr. Dawson travelled on Air Canada Flight Nos. AC 8886 and AC 8894 from Ottawa, Ontario to St. John's, Newfoundland, via Halifax, Nova Scotia. The aircraft used for the flights was a British Aerospace BAE-146-200. Prior to boarding, Mr. Dawson provided verbal instructions to Air Canada staff responsible for the loading of his wheelchair onto the aircraft. He informed Air Canada staff that the batteries for his electric wheelchair were dry cell and had been approved for air transportation. Upon arrival of his flight at the St. John's airport, Mr. Dawson discovered that his wheelchair had been disassembled and not reassembled.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

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 the case at hand, Mr. Dawson uses an electric wheelchair for mobility and, as such, he is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

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

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.

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

Disassembling of the electric wheelchair

In his application, Mr. Dawson submitted that it was unnecessary for Air Canada to disassemble his electric wheelchair in order to store it in the hold of the British Aerospace BAE-146-200 aircraft. Mr. Dawson explained that the dimensions of his Quickie P-525 electric wheelchair (22.25 inches wide by 20 inches high) allow for it to be placed intact through the front loading door or by tilting it to fit into the rear loading door of the aircraft. Mr. Dawson indicated that his electric wheelchair weighs approximately 105 pounds without the batteries. Mr. Dawson stated that there was no requirement for Air Canada to remove the batteries as they were of the dry cell type, which are approved for air travel. In subsequent pleadings, Mr. Dawson explained that when travelling on similar aircraft, his wheelchair was not disassembled nor were the batteries removed.

In its answer, Air Canada indicated that, although it strives to load wheelchairs onto aircraft in an upright position, it is not always possible to do so. With respect to the removal of batteries, Air Canada's procedures for the disassembling of wheelchairs provide that all types of batteries are considered as dangerous goods and need to be disconnected from electric wheelchairs and that precautionary measures must be taken when doing so. The disconnection of batteries is reflected in Air Canada's procedures as a step in the disassembling of wheelchairs.

The Agency acknowledges that air carriers may need to disassemble wheelchairs in order to fit the device in the hold of the aircraft, to prevent damage to it while in the hold and to minimize the risk of injury to personnel loading the device. In this regard, the Agency has established regulations, applicable to air carriers operating domestic flights, to ensure that passengers with disabilities receive essential services, such as the proper handling and carriage of their mobility aids. In particular, Part VII of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR), which sets out the terms and conditions of carriage of persons with disabilities, came into effect in 1994. This Part requires, in most cases, air carriers that operate aircraft with 30 or more passenger seats to carry mobility aids and other devices free of charge as priority baggage. It also requires that, where mobility aids cannot be carried in the passenger cabin, carriers must disassemble them for carriage and promptly reassemble and return the aid at the person's destination.

The Agency notes that Part VII of the ATR, which is applicable to Air Canada, provides in paragraph 148(4)(a) that an air carrier shall, "disassemble and package the aid". This provision contemplates an air carrier disassembling a mobility aid when required to do so in order to facilitate its carriage on an aircraft without charge to the traveller. In the case at hand, Air Canada staff determined that the wheelchair needed to be disassembled for transportation and did not charge Mr. Dawson to do so. Although Mr. Dawson claims that his wheelchair has been carried intact on aircraft similar to the British Aerospace BAE-146-200, the Agency is of the opinion that air carriers are best suited to determine if and when a wheelchair should be disassembled based on their operational and personnel requirements and notes that, in this case, Air Canada made the determination that Mr. Dawson's wheelchair needed to be disassembled in order to be transported. Accordingly, the Agency finds that the disassembling of Mr. Dawson's wheelchair was not, in and of itself, an obstacle to his mobility.

Notwithstanding this finding, the Agency notes that Air Canada's policies and procedures relating to the transportation of electric wheelchairs provide that when a wheelchair is to be disassembled, the passenger should be so informed and that, when necessary or possible to do so, certain procedures pertaining to the disassembling of the wheelchair should be clarified with the passenger. In his reply, Mr. Dawson stated that Air Canada did not advise him that his wheelchair would be disassembled for transportation and that, in fact, Air Canada had indicated to him that his wheelchair would not be disassembled. Although Air Canada is not required pursuant to the terms and conditions of carriage to inform passengers that their wheelchair will be disassembled and may determine to disassemble such devices based on operational or other requirements, even after informing the passenger otherwise, the Agency stresses the importance of communication between carriers and persons with disabilities.

Reassembling of the electric wheelchair

In his application, Mr. Dawson stated that, upon his arrival in St. John's, his wheelchair had not been reassembled. He further stated that when it was returned to him, the batteries had not been reconnected, the armrests had been removed, the back seat was folded down, the screws holding the battery box in place had been removed, and the control stick was unattached and hanging by a single wire. Mr. Dawson indicated that, with the assistance of his friends and family, it took approximately 30 minutes to reassemble his wheelchair.

Air Canada did not dispute the fact that the wheelchair had not been reassembled when it was returned to Mr. Dawson in St. John's and the carrier submitted that in order to prevent a recurrence of the situation encountered by Mr. Dawson, it was reviewing the procedures used at the Ottawa and Halifax airports. Accordingly, the Agency accepts the fact that the wheelchair had been disassembled and not reassembled.

As stated previously, air carriers may need to disassemble wheelchairs. However, they also need to reassemble them prior to returning them to their owner. In the case at hand, Air Canada did not reassemble Mr. Dawson's wheelchair. As a result, Mr. Dawson was forced to reassemble his wheelchair at the airport, which took approximately 30 minutes. During that time, Mr. Dawson was deprived of his wheelchair and his independence. Accordingly, the Agency finds that the failure by Air Canada to reassemble Mr. Dawson's wheelchair constituted an obstacle to his mobility.

Whether the obstacle was undue

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.

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

Reassembling of the electric wheelchair

Having found that the failure by Air Canada to reassemble Mr. Dawson's wheelchair constituted an obstacle to his mobility, the Agency will now consider whether the obstacle was undue.

As noted previously, the Agency has established regulations applicable to air carriers operating domestic flights to ensure, amongst other matters, that passengers with disabilities receive essential services such as the proper handling and carriage of their mobility aids. These regulations also provide that, where mobility aids cannot be carried in the passenger cabin, carriers must disassemble them for carriage and promptly reassemble and return the aid at the person's destination. In particular, the Agency notes that, pursuant to subparagraph 148(4)(c) of the ATR, air carriers are required to "unpackage and reassemble the aid".

In this case, Air Canada did not reassemble Mr. Dawson's wheelchair in St. John's. Upon examination of the pleadings submitted by both parties, the Agency does not find that Air Canada took any steps to prevent the situation from occurring nor did the carrier provide any justification, based on either operational or other requirements, as to why the wheelchair was not reassembled. In light of the foregoing, the Agency finds that, although Air Canada has acknowledged that it was reviewing its procedures, it has not provided a reasonable explanation as to why the wheelchair was not reassembled. Accordingly, the Agency finds that the failure by Air Canada to reassemble Mr. Dawson's wheelchair constituted an undue obstacle to his mobility.

Furthermore, the failure by Air Canada to reassemble Mr. Dawson's electric wheelchair represents a failure by the carrier to comply with subsection 148(4) of the ATR.

Air Canada's attention is drawn to the Canadian Transportation Agency Designated Provisions Regulations, SOR/99-244, which designate provisions of the CTA and associated regulations for which a fine may be levied. A contravention of subsection 148(4) of the ATR is designated as a Level 3 infraction which carries a maximum financial penalty of $10,000. A first violation would normally be subject to a warning by an Enforcement Officer under the Administrative Monetary Penalty program.

CONCLUSION

Based on the above findings, the Agency concludes that the disassembling of Mr. Dawson's wheelchair was not an obstacle to his mobility but the failure by the personnel of the air carrier to reassemble Mr. Dawson's wheelchair upon arrival of his flight at St. John's airport constituted an undue obstacle to his mobility.

The Agency also concludes that Air Canada contravened subsection 148(4) of the ATR.

Consequently, the Agency hereby directs Air Canada to take the following measures within thirty (30) days from the date of this Decision:

• issue a memorandum to all employees responsible for the handling of mobility aids, highlighting the difficulties experienced by persons whose mobility aids are not reassembled and emphasizing the importance of ensuring that wheelchairs are handled and stowed properly and reassembled in a timely fashion; and provide the Agency with a copy of that memorandum within thirty (30) days from the date of this Decision.
• review with its St. John's employees Air Canada's internal policy with respect to the disassembling and reassembling of mobility aids and the importance of reassembling mobility aids in a timely fashion; and provide the Agency with a written confirmation of how and when this was done.
• submit to the Agency the training module and all material related to the disassembling, handling, stowing and reassembling of wheelchairs.

With respect to the contravention set out above, the issuance of this Decision does not in any way preclude any actions that may be taken against Air Canada pursuant to the Canadian Transportation Agency Designated Provisions Regulations.

Following its review of the required material, the Agency will determine whether further action is required in this matter.