Decision No. 547-AT-A-2004
October 18, 2004
File No. U3570/02-26
APPLICATION
On February 7, 2002, Lee Ann Dalling filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. A copy of her travel itinerary and airline ticket was submitted under separate cover on April 8, 2002.
Notwithstanding a request to Air Canada on June 17, 2002 for an answer to the application and additional information regarding the application, no response was received. By Decision Nos. LET-AT-A-268-2002 dated September 16, 2002 and LET-AT-A-283-2002 dated October 1, 2002, the Agency required Air Canada to file the required information by no later than October 3, 2002. Air Canada filed its answer on October 3, 2002. Ms. Dalling provided her reply on January 30, 2003.
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 MATTER
In its response to the application, Air Canada submitted that it has no jurisdiction over other air carriers' seating assignments. Air Canada advised that in code-share situations, it is the operating carrier's policy and procedures that apply.
As a result, the Agency, as a first step in its review and consideration of this application, must determine which carrier, Air Canada or Air New Zealand Limited (hereinafter Air New Zealand), was responsible for ensuring that appropriate seating was assigned to Ms. Dalling on the Air Canada flight segments operated by Air New Zealand from Los Angeles to Auckland and from Auckland to Honolulu.
In this respect, the Agency refers to Decision No. 471-A-2001 dated August 31, 2001, whereby the Agency granted an approval allowing Air Canada and Air New Zealand to code share on each other's flights, subject to the condition, inter alia, that they apply their published tariffs, on file with the Agency and in effect, to the carriage of their traffic. In addition, both carriers were advised in that same Decision that the approval granted therein does not exempt them from the requirements of other legislative acts or regulations, including those of Transport Canada.
In the present case, the Agency notes that all flights were booked with Air Canada and are all identified as "AC" designated flights. Consequently, and notwithstanding the fact that Air New Zealand was the operator of the subject flights, the Agency finds that Air Canada, as the carrier that sold the transportation to Ms. Dalling, was required to apply its published tariff provisions to all flight segments of her round trip, including those operated on its behalf by its code-share partner.
Accordingly, the Agency will consider this application as it applies to transportation sold by Air Canada.
ISSUE
The issue to be addressed is whether Air Canada's failure to secure appropriate seating for Ms. Dalling on the Air Canada flight segments operated by Air New Zealand from Los Angeles to Auckland and from Auckland to Honolulu constituted an undue obstacle to Ms. Dalling's mobility and, if so, what corrective measures should be taken.
FACTS
Ms. Dalling has a mobility impairment and uses crutches and leg braces. When travelling by air, she requires seating assignments which provide extra leg room. She has a medical file with Air Canada with supporting documentation regarding her disability and needs.
A round trip was booked through her travel agent to travel from Halifax, Nova Scotia, Canada to Auckland, New Zealand. The flights in question were booked with Air Canada and were operated by it and its Star Alliance partner, Air New Zealand. The Passenger Name Record (hereinafter the PNR) created at booking confirms Ms. Dalling as a customer with a disability requiring special seating and that the Meda Desk approved bulkhead seating. The PNR also shows the International Air Transport Association code "WCHP", which indicates that the passenger is completely immobile. The itinerary was confirmed as follows:
November 29/01 | Halifax-Montréal | AC Flight No. 177 |
---|---|---|
Montréal-Los Angeles | AC Flight No. 797 | |
Los Angeles-Auckland | AC Flight No. 9500 (operated by Air New Zealand) | |
December 17/01 | Auckland-Honolulu | AC Flight No. 9503 (operated by Air New Zealand) |
December 20/01 | Honolulu-Toronto | AC Flight No. 3128 |
Toronto-Halifax | AC Flight No. 3626 |
The travel agent requested seats in the bulkhead row for all flights. Air Canada confirmed the seating requested at booking and Ms. Dalling was assigned the aisle bulkhead seat on all of the flights operated by Air Canada. The travel agent then contacted Air New Zealand on several occasions and Air New Zealand advised that it would not preassign seating and that the passenger should arrive early for check-in to try and secure the required seating.
When Ms. Dalling arrived at check-in for the Los Angeles-Auckland flight, she was advised by an Air New Zealand agent that bulkhead seats were not available and that these seats are kept aside for people travelling with babies. She was, however, assigned a bulkhead seat once on the aircraft. At check-in for the return Auckland-Honolulu flight, Ms. Dalling was again advised that there were no bulkhead seats available. No seat reassignment was performed on board the aircraft for that flight.
POSITIONS OF THE PARTIES
Before the filing of this application with the Agency, Ms. Dalling addressed her concern directly with Air New Zealand. In its reply to Ms. Dalling, the carrier advised that it does try to accommodate all seating requests, although it acknowledged that there are times when it is just not possible to meet the demand. It also advised that it does not guarantee advance seat selections on its flights.
Ms. Dalling's main concern, as expressed in her application, is that she was forced to sit "uncomfortably" on a 13-hour flight as a result of Air New Zealand's failure to assign her a seat compatible with her needs. Ms. Dalling submits that she had expected in response to her letter to Air New Zealand that this carrier would have reviewed its policy in light of her experiences. She wants the Agency's intervention as she is of the view that Air Canada has some responsibility to ensure that its code-share partners, such as Air New Zealand, embrace the same principles of accessibility as those required in Canada.
Air Canada submits that, in accordance with the Air Transportation Regulations, SOR/88-58, as amended, on its flights its policy is to preassign accessible seating to a person with a disability upon request, up to 48 hours prior to departure. Its review of this case revealed that bulkhead seats were requested, were approved by its Meda Desk and were allocated to Ms. Dalling on the flights operated by Air Canada. The carrier concluded that it could not preassign seats on the flights operated by Air New Zealand as Air Canada did not have jurisdiction over Air New Zealand's seating assignments.
ANALYSIS AND FINDINGS
In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
An application must be filed by a person with a disability or on behalf of a person with a disability. Ms. Dalling has a mobility impairment and uses crutches and leg braces. As such, she 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
The Agency notes that all of the flights were booked by Ms. Dalling's travel agent with Air Canada. Bulkhead seating was requested on all flight segments of her round trip between Halifax and Auckland, as she requires additional space because of the leg braces that she wears. Her PNR clearly reflects her need for bulkhead seating and, in fact, Air Canada's Meda Desk was involved in the approval and seating preassignment process. Notwithstanding the Meda Desk involvement, advance seat selections were made and confirmed for the Air Canada operated flights only. The travel agent was then left with the responsibility to contact Air New Zealand to secure bulkhead seating on the subject AC designated flights operated by Air New Zealand, as she was told that Air Canada does not have control over its code-share partner's seating assignments. The travel agent could not get confirmation of the required bulkhead seating and Ms. Dalling was instructed to arrive at check-in as early as possible.
The Agency also notes Air Canada's policy with respect to accessible seating and, particularly, the following statements as found in the CIC*36/13:
- Customers with disabilities travelling on Air Canada Flights have various seating needs. For instance, one may require a bulkhead seat (if travelling with a service animal), another may need a liftable armrest if he has a mobility impairment. Whatever the impairment, it is up to the customer to assess his special seating needs.
- Air Canada must preassign accessible seats to customers with disabilities upon request, up to 48 hours prior departure, to extend good customer service, as well as to comply with Canadian Transportation Agency Regulations. [emphasis added]
The Agency is of the opinion that Ms. Dalling's needs were fully understood by Air Canada. This is confirmed by the fact that she has a permanent medical file with Air Canada and, upon booking a trip, her needs are reiterated to the carrier. The Agency is aware that Air Canada, by its own policy, recognizes that the importance of being accommodated in an appropriate seat can be the deciding factor for a person with a disability as to whether he or she will in fact travel, with which carrier and on which flight. Ms. Dalling was never assured that she would get the seats she required on the flights operated on Air Canada's behalf by Air New Zealand. Rather, she was left with the responsibility to get to check-in as early as possible. She did manage, through her own efforts on board the aircraft, to secure appropriate seating on the Los Angeles-Auckland flight segment operated by Air New Zealand. She was however unable to do so on the Auckland-Honolulu flight segment. In this case, Air Canada provided no evidence that its Meda Desk personnel or other reservation personnel took the initiative to contact Air New Zealand to secure the required seating on board the designated Air Canada flights. The Agency finds that this lack of action on the part of Air Canada created a level of distress and eventual discomfort on the Auckland-Honolulu flight segment resulting in an obstacle to Ms. Dalling's 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
Having found that the failure by Air Canada to contact Air New Zealand to secure appropriate seating for Ms. Dalling on the Air Canada designated flights operated by Air New Zealand constituted an obstacle to Ms. Dalling's mobility, the Agency must now determine whether the obstacle was undue.
The Agency notes that Air Canada has a policy which recognizes the particular needs of persons with disabilities, as set out in its tariff on file with the Agency. Rule C21 of Air Canada's International Passenger Rules and Fares Tariff No. NTA (A) 458 addresses the transportation of passengers with disabilities. The Agency notes, however, that this rule does not set out the provisions applicable to the preassignment of seats by Air Canada in accordance with its policy. The tariff, as published, is silent on the accommodation, with notice, of specific seating to passengers who identify their accessibility seating needs. Consequently, the Agency finds that Air Canada should revisit its tariff provisions to ensure that its policy on the preassignment of seats is clearly reflected in its tariff.
Accordingly, the Agency finds that Air Canada does have a policy in place that allow for the preassignment of accessible seating. In addition, and as previously determined in this Decision, the Agency is also of the opinion that, regardless of the fact that the subject flights were operated on behalf of Air Canada by its code-share partner, namely Air New Zealand, Air Canada is responsible to ensure that its policy on the preassignment of accessible seating is applied on all of the flights it operates, including code-share flights. While the Agency understands that Air Canada may not be able to electronically override or assign certain seating in its code-share partners' seat allotments, Air Canada must develop procedures to ensure that when taking a booking, such as Ms. Dalling's in this case, its reservation personnel or its Meda Desk contact the code-share carrier to secure and confirm the required seating.
The Agency reiterates that accommodation of a person with a disability's needs is in some cases critical as how they will be accommodated will determine whether the person will or can travel at all. Accordingly, a full understanding by the service provider of the needs of the person with a disability is an essential factor. In code-share situations, an informed dialogue between the service providers, Air Canada and Air New Zealand in this case, is also necessary to convey the person's needs, as well as the service provider's ability to provide the required service.
In light of the foregoing, the Agency finds that the lack of action on the part of the Air Canada personnel constituted an undue obstacle to Ms. Dalling's mobility in that the obstacle she encountered could have been avoided had the reservation carrier, namely Air Canada, contacted its code-share partner, namely Air New Zealand, and reserved the required bulkhead seating for her in advance of travel.
CONCLUSION
Based on the above findings, the Agency has determined that the lack of appropriate booking action by Air Canada personnel resulted in an undue obstacle to Ms. Dalling's mobility.
The Agency hereby directs Air Canada to take the following corrective measures, within ninety (90) days of the date of this Decision:
- Develop procedures with respect to bookings made by passengers with disabilities concerning their seating accommodations on code-share flights, and provide a copy of these procedures to the Agency, as well as a plan for ensuring that these new procedures are disseminated to those involved in the reservation process. These procedures should ensure that accessible seating requests are conveyed to its code-share partners and confirmations are secured prior to the passenger's travel.
- Review and amend its International Passenger Rules and Fares Tariff No. NTA (A) 458, on file with the Agency, to clearly reflect its policy with respect to advance seat selection for persons with disabilities.
Following its review of the required material and tariff provision, the Agency will determine whether further action is required in this matter.
Members
- Beaton Tulk
- Gilles Dufault
- George Proud
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