Decision No. 54-AT-A-2021
APPLICATION by Karimabanu Murji and Azim Kassam Murji (applicants) against WestJet (respondent) pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA), regarding their disability-related needs.
SUMMARY
[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against WestJet claiming that their seats for Flight No. WS737 from London, Ontario, to Calgary, Alberta, on September 7, 2019, did not provide sufficient additional leg room for Karimabanu Murji. They claim that seating a person with mobility restrictions in the aisle seat next to them prevented Ms. Murji from getting up, walking around, stretching and accessing the lavatory during travel. They also claim that the service offered by WestJet personnel onboard the flight was inadequate and that they did not receive a proper safety briefing from WestJet’s personnel.
[2] The applicants ask for:
- Better communication between WestJet’s ground and on-board personnel to ensure that they all have the required information with regard to persons with disabilities;
- A review of WestJet’s customer service policy with personnel on board Flight No. WS737 along with training to identify passengers who may need assistance but are not able to ask for it for any reason;
- The implementation of a computer system that shows seat coding for persons with disabilities to ensure that if two persons with a disability are seated in the same row, the disability of one does not interfere with the disability of the other in the event of an emergency or in the event that one passenger has to move in and out from the inside seats;
- An apology from WestJet for demeaning the applicants’ characters and intentions and for providing untrue information;
- Reimbursement of Ms. Murji’s psychologist fees;
- Reimbursement of the applicants’ flight tickets;
- CAD 15,000 as compensation for pain and suffering incurred by Ms. Murji; and
- Between CAD 2,000 and 3,500 as compensation for pain and suffering incurred by Azim Kassam Murji.
[3] In this decision, the Agency will address the following issues:
- Is Ms. Murji a person with a disability?
- Did Ms. Murji face a barrier to her mobility?
- Are the applicants entitled to compensation due to a contravention of accessibility regulations made under the CTA?
[4] For the reasons set out below, the Agency finds that Ms. Murji is a person with a disability, but that she did not encounter a barrier to her mobility. The Agency also finds that WestJet did not contravene any applicable accessibility regulations. Accordingly, the Agency dismisses the application.
BACKGROUND
[5] Ms. Murji has fibromyalgia and arthritis, and has special needs while travelling. In August 2017, WestJet approved her for a seat in the Plus section of the aircraft, with an attendant, at a CAD 0 base fare for all flights within Canada.
[6] In May 2019, the applicants purchased round-trip tickets from WestJet to travel from Edmonton, Alberta, to London, via Toronto, Ontario, on August 27, 2019, returning on September 7, 2019, via Calgary.
[7] Specifically, the applicants were scheduled on the following itinerary:
- August 27, 2019, from Edmonton to Toronto on Flight No. WS436, and from Toronto to London on Flight No. WS3511.
- September 7, 2019, from London to Calgary on Flight No. WS737, and from Calgary to Edmonton on Flight No. WS3151.
[8] The applicants indicate that their seats were reserved by WestJet’s Medical and Accessibility team (Medical Desk) at the time they purchased their tickets. Mr. Murji was identified as Ms. Murji’s attendant for the itinerary.
[9] The applicants encountered no incident travelling to London. However, they claim that for Flight No. WS737 they were seated in a row which did not provide sufficient additional leg room for Ms. Murji, and that she was prevented from getting up, walking around, stretching and accessing the lavatory during travel. The applicants indicate that Ms. Murji’s pain escalated during the flight.
[10] Pleadings were opened on October 14, 2020. WestJet submitted its answer on November 4, 2020. The applicants filed their reply on November 12, 2020.
[11] On December 9, 2020, the Agency denied a request by WestJet pursuant to section 34 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Rules) to file a sur-reply in response to the applicants’ reply, and refused to place the applicants’ response to WestJet’s request on the record.
PRELIMINARY MATTERS
Apology
[12] The applicants seek an apology from WestJet for demeaning their characters and intentions and for providing untrue information. However, the Agency cannot address this issue, because it has no authority under the CTA to order a carrier to provide an apology.
Ticket reimbursement
[13] The applicants seek reimbursement for the cost of their tickets for the entire round-trip itinerary or, alternatively, for the cost of their return flights only.
[14] The Agency has authority under paragraphs 172(2)(b) and 172.1(2)(b) of the CTA to order compensation for an expense incurred either by a person with a disability arising out of an undue barrier to their mobility, or by an applicant arising out of a contravention of any regulations made under subsection 170(1) of the CTA. However, these provisions do not give the Agency authority to order the reimbursement of the cost of the flight tickets because it is not an expense “arising out of the barrier” or “arising out of a contravention”; rather, it is an expense incurred to travel with the carrier. The Agency will therefore not consider this request for reimbursement.
THE LAW
Accessibility
[15] The application was filed pursuant to subsection 172(1) of the CTA, which reads 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 barrier to the mobility of persons with disabilities.
[16] As stated in the Agency’s Decision No. 33-AT-A-2019 (Interpretive Decision) regarding accessibility-related applications, the Agency determines whether there is an undue barrier to the mobility of a person with a disability using a two-part approach:
Part 1: The onus is on the applicant to demonstrate, on a balance of probabilities, that:
- they have a disability. A disability is any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment—or a functional limitation—whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society;
and
- they faced a barrier. A barrier is anything—including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice—that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. There needs to be some connection between the applicant’s disability and the barrier.
Part 2: If it is determined that an applicant has a disability and faced a barrier, the onus shifts to the respondent to either:
- explain, taking into account any proposals from the applicant, how it proposes to remove the barrier through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or, if a general modification is not feasible, an individual accommodation measure;
or
- demonstrate, on a balance of probabilities, that it cannot remove the barrier without experiencing undue hardship.
[17] The Agency will address the first part of the above two-part approach in this decision.
Contravention of CTA accessibility regulations
[18] The Agency also has authority pursuant to subsection 172.1(1) to determine whether an applicant suffered harm or damage due to a contravention of accessibility regulations made under the CTA:
The Agency may, on application, inquire into a matter concerning any regulations made under subsection 170(1) to determine if the applicant has suffered physical or psychological harm, property damage or economic loss arising out of—or has otherwise been adversely affected by—a contravention of any provision of those regulations.
Air Transportation Regulations, SOR/88-58 (ATR)
[19] The following subsections of Part VII of the ATR, which were in force at the time of the incident, are relevant to this case:
147(1) Subject to section 151, an air carrier shall provide the following services to a person, if requested:
(k) inquiring periodically during the flight about the person’s needs, and attending to those needs where the services required are usually provided by the air carrier, or where the services are required to be provided by the air carrier under this Part.
153(1) Where a person identifies the nature of that person’s disability, an air carrier shall, before assigning a passenger seat to that person, inform the person of those passenger seats in the aircraft to be used that are most accessible for that person.
1. IS MS. MURJI A PERSON WITH A DISABILITY?
[20] Ms. Murji states that she has fibromyalgia and arthritis, that she needs additional leg room and that she must have the ability to get up, walk around or stretch during travel.
[21] Mr. Murji is identified as an applicant in the application, but does not claim to be a person with a disability for the purposes of part V of the CTA. He was Ms. Murji’s attendant for the entire itinerary, including Flight No. WS737.
[22] WestJet recognizes that Ms. Murji is a person with a disability. It confirms that on August 8, 2017, its Medical Desk approved her for a seat in the Plus section of the aircraft and a personal attendant at a CAD 0 base fare for domestic flights. The approval was effective until August 8, 2019.
[23] The Agency therefore finds that Ms. Murji is a person with a disability.
2. DID MS. MURIJI FACE A BARRIER TO HER MOBILITY?
Positions of the parties
MS. MURJI
Seat assignment
[24] Ms. Murji indicates that she purchases tickets to travel with WestJet within Canada through WestJet’s Medical Desk, as it has her medical information. It assigns a seat for her and her attendant at the time she purchases the flight tickets.
[25] She submits that it is clear from her WestJet medical form dated June 29, 2017 (2017 medical form) that she requires additional leg room and the ability to move around due to her medical condition. The 2017 medical form indicates that she needs additional leg room because: her legs shake; she experiences significant pain if her legs touch the seat back in front of her or her movements are restricted; and, she needs to be able to “move around in the seat”. She claims that WestJet’s Medical Desk did not advise her that additional information from her physician could affect the seating she was assigned.
[26] Ms. Murji states that for Flight No. WS737 she was assigned a seat in row 4, and that prior to her travel with WestJet in August and September 2019, she normally sat in row 1. She states that travel on this itinerary was her first experience with WestJet’s new seating arrangement. Ms. Murji states that she discussed her concern that she would not have enough additional leg room in the new seating arrangement with a WestJet agent over the phone a few days prior to travel. She disagrees that the new preferred seating is a reasonable accommodation. She claims that pictures she submitted show the lack of space between the seats. She also submits that the new seat pitch dimensions described in WestJet’s answer do not match information on WestJet’s website for any type of Boeing 737 aircraft.
[27] Ms. Murji submits that there was a lack of communication between the Medical Desk and the WestJet personnel onboard the flight. She submits that, as her seat was pre-booked with WestJet’s Medical Desk, she was supposed to obtain a seat that meets her needs as stated on her 2017 medical form. Ms. Murji also argues that WestJet personnel on board flights should be mindful of the needs of persons with disabilities and correct any error that occurs when seating is assigned.
Inability to exit the row during the flight
[28] Ms. Murji claims that a passenger with quadriplegia was seated next to her attendant in the aisle seat. She states that the passenger was brought into the aircraft in a wheelchair, that three WestJet personnel used a safety belt to help him transfer to the aircraft seat, and that the same process was followed at the end of the flight.
[29] Ms. Murji claims that, when she realized that this passenger would be sitting next to her attendant and her, she gave the two WestJet personnel a look of shock and fear, that she questioned them with her eyes and that she said softly “this is not possible, he can’t be seated here” but did not say anything out loud to avoid being rude. She claims that she was uncomfortable asking questions about whether the passenger could be moved in his presence. Nevertheless, she claims that a flight attendant later overheard her attendant ask this passenger if he could move so they could get out and his response, “no”.
[30] Ms. Murji claims that she could not get up to access the lavatory during the flight. She states that she was not comfortable asking to do so because of the behaviour of the WestJet personnel and because she did not know how they could help her. She indicates that when passengers were disembarking, she said very loudly in the presence of a flight attendant that she could not wait any longer to go to the lavatory. She states that she was in pain for the duration of the flight and that the inability to access the lavatory aggravated her condition. By the end of the flight, Ms. Murji states that she was in pain from her hips down.
[31] Ms. Murji provided a note from a physician dated October 29, 2019, which indicates that she had a significant “flare up of her musculoskeletal symptoms” as she could not get up and walk around during Flight No. WS737. The physician stated that Ms. Murji’s pain increased throughout the flight and lasted approximately 30 minutes after the time when she was able to get out, take her pain medication and walk around. The note also states that she experienced anxiety during the flight and continues to experience anxiety.
[32] Ms. Murji was finally able to get out of her seat after the other passengers had disembarked, including the passenger in the aisle seat next to her attendant. She claims that a flight attendant then told them, for the first time, that there was a wheelchair available on board that could have been used to move the passenger if she had needed to get up sooner.
Service by WestJet personnel
[33] Ms. Murji claims that when her pain escalated during the flight, she used the call button to ask a flight attendant to get her carry-on baggage. Ms. Murji claims that the flight attendant rushed her and her attendant with her body language and made them feel uncomfortable while retrieving items from the carry-on baggage. She states that she realized she had not retrieved her pain medication, only after returning her carry-on baggage to the flight attendant. She claims that she was stressed, felt uncomfortable with the flight attendant and therefore did not want to ask again to retrieve her pain medication.
[34] Ms. Murji indicates that she also asked the flight attendants on two occasions to fill her hot water bottle, which they did. Ms. Murji alleges that they could see that she was in pain, crying and squirming but did not ask if she needed anything else.
[35] Ms. Murji states that she found information online about training for WestJet personnel which states that, when serving customers with disabilities, they should: offer their help; ask how they can help and what to do; ask questions about the customer’s disability only when they are pertinent to their travel needs; ask the customer to tell them the best way to help; treat the customer with dignity; exercise patience and adaptability; listen; make the customer feel comfortable; and, deal with unfamiliar situations in a calm professional manner.
[36] She submits that WestJet personnel did not follow these customer service practices. She claims that the three WestJet personnel on board were “extremely cold”, and that for that reason, she found it difficult to ask them for help or assistance to get out of her seat. She alleges that they could see that she was struggling, trying to stand up, stretch, lean on the window, and put her legs up on her attendant, and that they ignored the situation. Ms. Murji adds that WestJet personnel only passed by their seats to offer water.
[37] Ms. Murji submits that the agent who was waiting for her with a wheelchair after Flight No. WS737 appeared concerned about her condition, that she advised the customer service agent about it, and that she was advised a note had been sent to the supervisor about her condition.
Safety briefing
[38] Ms. Murji submits that WestJet’s personnel were negligent in failing to inform her on how she could exit her seat, which could have constituted a safety issue in an emergency evacuation situation.
Renewal of WestJet’s Approval of Ms. Murji’s Travel Accommodations
[39] In an email dated September 10, 2019, Ms. Murji explained her travel experience to WestJet’s Medical Desk and asked if she needed to provide an additional form to make sure that she has additional leg room along with the ability to move on future flights. On September 13, 2019, WestJet’s Medical Desk informed her that her accommodation expired on August 8, 2019, and that she needed to submit a new medical form. The applicants submit that they did not receive an email that WestJet claims it sent on May 14, 2019, to inform them that the approval of Ms. Murji’s accommodation was expiring.
[40] Ms. Murji submitted a new WestJet medical form dated September 25, 2019 (2019 medical form), which indicates that she needs additional leg room for her musculoskeletal conditions and specifies that: her legs shake; her legs touching the seat back in front of her and restrictions in her movement cause her significant pain; and, she needs to be able to “move around in the seat”.
[41] Ms. Murji submits that on October 16, 2019, WestJet’s Medical Desk informed her by email that it had approved her for an aisle seat with additional leg room and for a personal attendant at a CAD 0 base fare for domestic flights. She subsequently received another email informing her that, as of October 22, 2019, she is approved for a window seat at the bulkhead. She submits that these approvals are effective until October 16, 2022.
[42] Ms. Murji submitted two notes from a physician, dated October 29, 2019, one of which states that she “needs extra room for body symptoms and extra room for leg room”.
[43] Ms. Murji points out that the 2017 and 2019 medical forms both indicate the same diagnosis. She claims that the 2017 medical form indicated why a bulkhead seat was important for her condition. She argues that, since WestJet approved a bulkhead seat for her on October 22, 2019, no additional medical information should have been required to obtain this type of seating for her travel in August and September 2019.
WESTJET
Seat assignment
[44] WestJet indicates that prior to 2019, Ms. Murji was provided with Premium bulkhead seating (formerly referred to as Plus seating), at no additional cost, based on the available aircraft seating configuration at that time.
[45] WestJet claims that during the booking of her flights, Ms. Murji was advised that her accommodations approved in August 2017 were expiring prior to the date of her travel and that a new medical form was required to renew them. WestJet adds that Ms. Murji was advised that seating would be provided for her in row 4, in accordance with her medical file. WestJet submits that at that time, Ms. Murji was provided with a full explanation of the difference between preferred seating and Premium (Plus) bulkhead seating and the reasons why the Premium (Plus) bulkhead seating was not required based on the medical information in her file. WestJet states that Ms. Murji was advised that she could supplement the information on her file if needed.
[46] WestJet explains that it reconfigured its aircraft in late 2017, so additional areas in the aircraft would provide additional leg room. WestJet indicates that the reconfiguration allows for preferred seating in rows 4 to 6 on most aircraft of its fleet. The new seat pitch is 34” in row 7, 35” in rows 5 to 6 and 40” in row 4. WestJet states that the new reconfigured seating no longer requires a passenger with accommodations for additional leg room to be placed in Premium (formerly Plus) seating. It also explains that the Premium seating has a seat pitch of approximately 38”. Therefore, it states that with the newly reconfigured aircraft, the preferred seating in row 4 allows for a seat pitch of 40” versus 38” in Premium seating.
[47] WestJet claims that Ms. Murji was upset during the booking process because in the past, she had received Premium bulkhead seating and that she did not understand the new reconfiguration of the aircraft. WestJet states that on May 14, 2019, Ms. Murji contacted the Medical Desk by email asking for assistance to extend her accommodations for additional leg room and the ability to put her legs up. The Medical Desk responded the same day by email to explain that in the past, WestJet provided seating accommodation within the first three rows of the aircraft because this was the only seating on the aircraft that provided additional leg room. It advised that for its reconfigured aircraft, there is additional‑leg‑room seating behind the first three rows. Further, it advised that Ms. Murji could submit additional medical information if needed. WestJet states that Ms. Murji did not submit a new medical form prior to her flights in August and September 2019, but given that she had made her booking in May 2019 prior to the expiration of the accommodation measures, the accommodations were still provided.
[48] WestJet states that Ms. Murji called WestJet’s Guest Support team on September 8, 2019, to report that she had been seated beside a passenger with quadriplegia for Flight No. WS737, which had restricted her movement and caused her severe pain. WestJet reports that the Guest Support agent asked Ms. Murji if she had asked the passenger to allow her to pass into the aisle, to which Ms. Murji responded that the passenger could not move and she did not want to ask. WestJet indicates that it explained to Ms. Murji that it cannot restrict who sits beside a passenger and that preferred seating areas may have passengers who have special accommodation needs.
[49] WestJet states that it is required to allow a passenger to select the seat of their choice, unless there is a safety concern or other restriction established by Transport Canada. WestJet submits that it followed the applicable guidelines and cannot be held responsible for the discomfort experienced by Ms. Murji.
[50] WestJet does not agree that the preferred seating is not a reasonable accommodation, as Ms. Murji travelled in the preferred seating in row 4 for Flight Nos. WS436 and WS3511 and there are no reports of incidents or concerns for these flights. WestJet indicates that Ms. Murji was also seated in preferred seating in row 5 for Flight No. WS3151 without incident.
Inability to exit the row during the flight
[51] WestJet states that the passenger seated in the same row as Ms. Murji was not coded as quadriplegic but rather as an “able-bodied, mobility impaired guest”. WestJet submits that if Ms. Murji had asked the passenger to allow her access to the aisle, assistance from WestJet personnel on board may have been needed, her discomfort could have been reduced.
Service by WestJet personnel
[52] WestJet indicates that there are no notes in Ms. Murji’s reservation that suggest that Ms. Murji spoke with WestJet’s personnel onboard about her concerns during Flight No. WS737, nor that she spoke to a customer service agent or any other ground agents about her experience upon landing in Calgary.
[53] WestJet argues that passengers have the responsibility to advise WestJet personnel if they require assistance. If the WestJet personnel onboard were not aware that Ms. Murji was uncomfortable or in pain, it was the duty of Ms. Murji or her attendant to notify them that assistance was required. It submits that either Ms. Murji or her attendant could have requested assistance from the WestJet personnel onboard to allow her access to walk around, if needed. However, WestJet submits that no such request was made by Ms. Murji or her attendant.
Renewal of WestJet’s Approval of Ms. Murji’s Travel Accommodations
[54] WestJet submits that it provided all of the required accessibility accommodations and followed all guidelines and regulations when assessing Ms. Murji’s request for accommodations. Further, it indicates that Ms. Murji was advised that if the accommodations did not correspond to her needs, she could provide additional information for consideration.
[55] WestJet states that on October 11, 2019, Ms. Murji submitted new medical forms to request accommodations. On October 16, 2019, the Medical Desk approved her for a personal attendant and extra leg room in an aisle seat until October 16, 2022.
Analysis and determinations
SEAT ASSIGNMENT
[56] The Agency finds, on a balance of probabilities, that WestJet’s Medical Desk informed Ms. Murji of where she would be seated and explained why that seating met her stated medical needs. Although Ms. Murji denies that WestJet told her before she travelled that she could supplement the medical information on her file if she thought additional accommodation was required, the Agency finds, on a balance of probabilities, that WestJet did inform her that she could do so.
[57] Ms. Murji travelled on three flights on her itinerary in WestJet’s preferred seating in rows 4 or 5 of the newly reconfigured aircraft, without incident. Based on this evidence, the Agency concludes that the issues she identified regarding Flight No. WS737 were not due to the preferred seating itself. The Agency accepts WestJet’s evidence that with the newly reconfigured aircraft, the preferred seating, specifically in row 4, allows for a seat pitch of 40” versus 38” in Premium seating and 35” in row 5, therefore providing extra leg room in comparison to a regular economy seat. The Agency finds that Ms. Murji did not face a barrier in regard to seat assignment.
[58] The Agency notes that on October 22, 2019, WestJet modified its initial approval of October 16, 2019, for extra leg room in an aisle and has approved Ms. Murji for a window seat in the bulkhead row for future travel, and she has accepted this accommodation measure as meeting her disability-related needs.
[59] Finally, as Ms. Murji pointed out, the information on the record about the seat pitch dimensions differs from that on WestJet’s website. The Agency encourages WestJet to ensure that its website contains accurate information on the seat pitch dimensions in its aircraft.
INABILITY TO EXIT THE ROW DURING THE FLIGHT
[60] There is no evidence on the record that indicates that the passenger next to the applicants was unable to move from his seat with the help of WestJet’s personnel. Ms. Murji did not request any assistance from them to leave her seat, whether to access the lavatory or to move about. The Agency finds that Ms. Murji could have left her row during the flight had she requested to do so.
[61] The Agency notes that the medical forms submitted by Ms. Murji do not describe the need to get up regularly and walk around in the aircraft. Ms. Murji did not communicate this need to the WestJet personnel onboard the flight. The applicants’ pleadings make reference to communication through facial expression or “looks”. In the absence of direct verbal communication with on-board personnel, the Agency does not find that this meets a reasonable expectation of communication. Consequently, the Agency does not find it reasonable to expect that on-board personnel would be aware of her need to get up and move about the cabin or her need to access the lavatory when these needs have not been effectively communicated.
[62] Persons with disabilities have a responsibility to communicate their disability-related needs to the personnel of the carrier. This gives an opportunity to the carrier to address the needs of passengers, and to rectify a situation when appropriate.
[63] The Agency therefore finds that Ms. Murji did not face a barrier due to the presence of the passenger with a disability in the aisle seat of her row.
SERVICE BY WESTJET’S PERSONNEL ONBOARD THE FLIGHT
[64] Although Ms. Murji claims that the WestJet personnel onboard her flight made her uncomfortable and did not inquire about her condition, she provided evidence that they helped with retrieving her carry-on baggage and filled her hot water bottle twice. The Agency finds that the on-board personnel were readily available to attend to Ms. Murji’s needs and did so when her needs were communicated to them.
[65] In addition, Ms. Murji was accompanied by her attendant; therefore, if she did not feel comfortable requesting assistance, her attendant could have made the requests on her behalf. The applicants had a responsibility to make Ms. Murji’s needs known and had the ability to ask for assistance, but did not do so.
[66] The evidence demonstrates that WestJet personnel responded in all circumstances where Ms. Murji’s needs were effectively communicated to them.
[67] The Agency therefore finds that WestJet complied with applicable accessibility regulations, and that Ms. Murji has not met her burden of proof to demonstrate that she faced a barrier in regard to the service offered by the WestJet personnel onboard the flight.
SAFETY BRIEFING
[68] While the Agency recognizes that being seated next to a passenger with mobility restrictions might have created concerns for Ms. Murji about what would happen in the event of an emergency evacuation, there is no indication that she conveyed her concerns to the WestJet personnel so that they could be addressed. As previously noted, there is no evidence that the passenger in the aisle seat could not move from his seat with the help of WestJet personnel.
[69] The Agency therefore finds that Ms. Murji did not face a barrier because she did not receive a safety briefing related to the passenger with a disability in the aisle seat.
3. ARE THE APPLICANTS ENTITLED TO COMPENSATION DUE TO A CONTRAVENTION OF ACCESSIBLITY REGULATIONS MADE UNDER THE CTA?
[70] The next question is whether the applicants are entitled to compensation as a result of WestJet’s alleged failure to comply with any applicable accessibility regulations.
[71] Subsection 172.1(2) authorizes the Agency to order compensation for any applicant who has suffered physical or psychological harm, property damage or economic loss arising out of a contravention of accessibility regulations made under subsection 170(1) of the CTA. The Agency has therefore considered whether the applicants are entitled to compensation under this provision.
[72] While WestJet did not identify any applicable accessibility-related regulations or provide its position as to whether it was in compliance with these regulations, as it had been requested to do, the Agency determined that paragraph 147(1)(k) and subsection 153(1) of Part VII of the ATR are relevant to this case and were in force at the time of the incident.
[73] Pursuant to subsection 153(1) of the ATR, WestJet is required to inform a person with a disability of the seats on an aircraft that are most accessible for them before assigning them a passenger seat. The Agency finds that WestJet complied with this requirement when its Medical Desk informed Ms. Murji of where she would be seated and explained why that seating met her stated medical needs.
[74] Paragraph 147(1)(k) of the ATR requires carriers to inquire periodically during the flight about the needs of a person with a disability, and to attend to those needs, if requested, where the services required are usually provided by the air carrier. The Agency has generally interpreted this provision to apply in situations where a person with a disability is left unassisted and without means of communication for a certain period. For example, when a person needs wheelchair assistance to navigate in the airport and is left on their own to wait for the departure of their flight, the carrier is expected to check on the person from time to time.
[75] While the Accessible Transportation for Persons with Disabilities Regulations, SOR/2019‑244 (ATPDR) were not in force at the time the incident occurred, they help to clarify the intent of this ATR provision. Section 38 of the ATPDR provides that, unless a person with a disability is able to request assistance from a carrier’s personnel by means of a call button, the carrier must ensure that its personnel periodically inquire about the person’s needs and attend to those needs.
[76] In this case, the evidence demonstrates that Ms. Murji had access to a call button at her seat, that it was used, and that she was not left unattended or without means of communication. The Agency therefore finds that WestJet complied with paragraph 147(1)(k) of the ATR.
[77] The Agency recognizes that both applicants were distressed while travelling on Flight No. WS737. However, because the Agency has found that WestJet complied with the applicable accessibility regulations made under subsection 170(1) of the CTA, it does not have authority to order compensation for the applicants.
CONCLUSION
[78] The Agency dismisses the application.
Member(s)
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