Decision No. 563-AT-A-2004
Follow-up - Decision No. 567-AT-A-2007
October 25, 2004
File No. U 3570/00-41
APPLICATION
[1] On July 12, 2000, Theresa Ducharme filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.
[2] On August 3, 2000 and September 8, 2000, Air Canada requested extensions of time in which to file its answer to the application, and the Agency by Decision Nos. LET-AT-A-229-2000 dated August 9, 2000 and LET-AT-A-266-2000 dated September 12, 2000, granted Air Canada until September 13, 2000 to file its answer. On September 12, 2000, Air Canada filed its answer.
[3] On September 26, 2000, Mrs. Ducharme requested an extension of time to file her reply. The Agency, in Decision No. LET-AT-A-306-2000 dated October 16, 2000, granted Mrs. Ducharme until October 31, 2000 to file her reply which was filed on October 17, 2000.
[4] On October 27, 2000, Air Canada requested additional time to file further comments. By Decision No. LET-AT-A-321-2000, the Agency granted Air Canada until November 3, 2000 to file additional comments which it did.
[5] By Decision No. LET-AT-A-12-2001 dated January 11, 2001, the Agency informed the parties as to the extent of its jurisdiction with respect to the corrective measures or compensation it might require or direct a carrier to take or pay pursuant to subsection 172(3) of the Canada Transportation Act (hereinafter the CTA).
[6] Pursuant to subsection 29(1) of 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.
ISSUE
[7] The issue to be addressed is whether the refusal by Air Canada to allow the carriage of the gel-cell battery required to operate Mrs. Ducharme's respirator inflight, the seating arrangements provided to her and her five personal care attendants and the flight delays constituted undue obstacles to her mobility and, if so, what corrective measures should be taken.
FACTS
[8] Mrs. Ducharme was travelling to Ottawa to participate in a Supreme Court of Canada hearing scheduled for June 14, 2000. Following her application to the carrier for financial support, Air Canada provided Mrs. Ducharme with a promotional ticket in recognition of her contributions to accessible travel on Air Canada in the early 1980's. Mrs. Ducharme travelled with five personal care attendants which included her spouse who acted as the attendants' supervisor.
[9] Air Canada completed the travel arrangements on behalf of Mrs. Ducharme and her travelling group. During the reservation process, Mrs. Ducharme had conversations with carrier officials and the MedaDesk on her specific needs. A fitness for Air Travel form was completed by her doctor and the MedaDesk subsequently approved her for travel. A Passenger Name Record (hereinafter the PNR) was created and reflected that Mrs. Ducharme was non-self reliant and would be accompanied, and that she was travelling with a wet-cell battery-powered electric wheelchair and a gel-cell battery-powered respirator.
[10] Mrs. Ducharme and her attendants travelled from Winnipeg to Ottawa on June 10, 2000 and returned to Winnipeg on June 16, 2000. At the time of booking, Mr. and Mrs. Ducharme were assigned seats 15D and 15E on Flight No. AC1180 on June 10 and seats 23A and 23C on Flight No. AC179 on June 16. The additional four attendants were assigned seats further back in the aircraft.
[11] At the time of departure of Flight No. AC1180 from Winnipeg, Mrs. Ducharme was informed that the Captain would not allow the gel-cell battery required for her respirator in the passenger cabin. After consulting with her group of attendants, Mrs. Ducharme decided to continue with her travel plans because of her commitment in Ottawa the following day. Her additional attendants were moved to the row in front of her and her husband and together the attendants provided the constant assistance needed to operate the manual respirator during the course of the two and one-half-hour flight.
[12] In order to prevent a recurrence of this situation on the return flight, Mr. Ducharme contacted Air Canada's Medical Services office while in Ottawa, and obtained a letter from an Air Canada doctor confirming that Mrs. Ducharme could carry and use the gel-cell battery onboard the aircraft. However, just prior to departure of the return flight, again the Captain advised that he would not allow the carriage and the use of the gel-cell battery in the aircraft passenger cabin. After some discussion and review of documentation, the Captain did allow the carriage and use of the battery for the return trip.
[13] With respect to flight delays, Flight No. AC1180 from Winnipeg was delayed for approximately an hour-and-one-half. A 45-minute delay occurred because of the late arrival of the Captain from a connecting flight, and another 45-minute delay due to the discussions that took place with respect to the non-acceptance of the gel-cell battery in the aircraft passenger cabin and the handling of another customer unsatisfied with a seating assignment.
[14] Return Flight No. AC179 experienced a 4-hour delay in its scheduled departure due to the late arrival of the inbound aircraft and a subsequent mechanical malfunctioning. Passengers spent part of this time in the terminal where they were offered meal vouchers. Mrs. Ducharme and her party did not hear the announcement about the meal vouchers and consequently did not receive any. The mechanical malfunction was noted only after the all passengers were boarded and the aircraft was pushed back from the gate. Passengers remained on the aircraft until the malfunction was corrected.
POSITIONS OF THE PARTIES
[15] Mrs. Ducharme submitted that her travel arrangements were made and approved by Air Canada two months prior to her travel date. She added that nobody questioned the acceptance of the gel-cell battery until she was ready to board Flight No. AC1180 in Winnipeg on June 10, 2000. According to Mrs. Ducharme, she was stopped and advised of the refusal, at boarding. As a result, her attendants had to give her artificial resuscitation using an ambu bag, which she considered dangerous to her health, both physically and emotionally. She added that her attendants were not seated near her in the aircraft and they were only allowed to move to seats close to her after the aircraft had reached cruising altitude.
[16] She stated that even though her husband called and explained her medical situation to an Air Canada doctor while they were in Ottawa, she encountered the same problems on June 16, 2000. According to Mrs. Ducharme, at the time of boarding, the Captain of the flight informed her that it was his decision not to allow her to use her gel-cell battery or to bring it in the cabin as it was considered hazardous material and "high risk". Mrs. Ducharme advised that she informed him that the battery was "DOT" approved and that she had been travelling with Air Canada for many years without problems. According to Mrs. Ducharme, the Captain checked his manual and then subsequently informed her that he would let her use her gel-cell battery this time. Mrs. Ducharme stressed that this lengthy exchange was very upsetting and depressing for her and maintained that the other passengers were very angry at her because of the delay.
[17] Furthermore, she submitted that when the flight was delayed, all customers received food vouchers except herself and her attendants.
[18] Mrs. Ducharme maintained that the flight delay and the length of time it took the Captain to make his decision caused her further health problems and constituted a lack of respect for her medical needs. Most of the blood vessels in her legs burst because she had to sit in the aircraft for too long. As a result, her legs were swollen, blistered and she suffered first degree burns. Mrs. Ducharme stated that because of her quadriplegia, her attendants had to manoeuver her legs manually and this caused intense pain. She added that the artificial resuscitation caused damage to her lungs and resulted in a lack of sleep.
[19] Mrs. Ducharme submitted that she suffered physical, emotional and psychological problems as a result of the incidents which occurred on both flights and financial compensation was sought for life long medical expenses, as well as full reimbursement for tickets for herself and her attendants, hotel accommodation, doctors' fees, long distance charges, overtime for her attendants, wheelchair transportation charges and all future expenses resulting from this experience, i.e., lawyer fees.
[20] Air Canada apologizes for the inadequate service Mrs. Ducharme received on her flights, which it acknowledges was well below its standards. It adds that the difficulties encountered by Mrs. Ducharme with respect to the carriage of the gel-cell battery were due to the fact that the carrier did not have an internal policy on the carriage of battery-powered medical equipment. The battery required for the life-support respirator, as any other battery, is considered hazardous equipment and requests to carry such equipment must be communicated to the Captain who has the final authority to approve its carriage.
[21] Air Canada states that in an effort to determine whether the carriage of the battery was in compliance with safety regulations, the Captain responsible for Flight No. AC1180 researched internal instructions and then referred to the International Air Transport Association (hereinafter IATA) Dangerous Good Regulations for guidance. As a result of the lack of reference to that type of equipment, the Captain decided not to allow the carriage of the equipment in the cabin.
[22] Air Canada submits that to avoid the recurrence of this incident for the return flight, its Meda Desk consulted with Air Canada's dangerous goods expert who confirmed that the use of a gel-cell battery-powered medical equipment was allowed in the aircraft. A note to that effect was subsequently recorded in the PNR, a note was sent to Ottawa, and a written confirmation was sent to Mrs. Ducharme.
[23] When the Captain of Flight AC179 on June 16 became aware of the situation, he made a few verifications before he accepted the carriage of the gel-cell battery. Air Canada points out, however, that the Captain insisted that the battery be securely strapped to a seat. According to Air Canada, despite the safety precautions taken by the crew, a flight attendant noticed that someone had unbuckled the battery and put in on the floor, and that it remained unattached during final descent despite the flight attendant's remark to Mrs. Ducharme.
[24] Air Canada states that its investigation revealed that the instructions relating to the application of the International Civil Aviation Organization and IATA Dangerous Goods Regulations are unclear. Accordingly, Air Canada is in the process of developing appropriate procedures concerning the carriage and installation of the gel-cell battery supplying a life-support equipment as well as the installation of the equipment and the battery in the passenger cabin, and will provide a copy of the new policy to the Agency as soon as it becomes available which is estimated to be in December 2000.
[25] With respect to seating assignment, Air Canada is only able to confirm the seats assigned to Mr. and Mrs. Ducharme on both flights, as the information on the seat numbers that were actually assigned to customers is no longer available. Air Canada states that it discussed Mrs. Ducharme's travel needs with her on a few occasions and that it was Air Canada's understanding that she required one attendant seated beside her. Air Canada adds that when it became necessary to have all of Mrs. Ducharme's attendants nearby to assist with the manual respirator, its agents promptly reassigned seats to allow all of her attendants to be seated in front of her.
[26] Air Canada confirms that Flight No. AC1180 was delayed by approximately an hour-and-one-half and that Flight No. AC179 experienced a 4-hour delay due to the late arrival of the inbound aircraft.
[27] Air Canada states that the initial delay of Flight No. AC179 was explained to Mrs. Ducharme at check in. Air Canada points out that Flight No. AC179 was then further delayed when the aircraft had to return to the gate due to a mechanical malfunction. As it was difficult to predict the resulting delay, it was decided that passengers would remain onboard to be ready for an immediate departure once the necessary repairs had been completed.
[28] Air Canada states that while an announcement to passengers in the boarding lounge that vouchers were available for those who wished to avail themselves of a snack, it apologizes that this message was not broadcast throughout the terminal. Air Canada advises that it offered Mrs. Ducharme a cheque for the value of six unclaimed vouchers (at $15 each).
[29] Air Canada states that it is extremely concerned about the incident experienced by Mrs. Ducharme, but it is confident that the prompt action it has taken to develop comprehensive instructions to its staff will assist in offering an improved and consistent level of service to customers who require their medical equipment on the aircraft.
ANALYSIS AND FINDINGS
[30] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
[31] An application must be filed by a person with a disability or on behalf of a person with a disability. In the present case, the Agency is of the opinion that Mrs. Ducharme was a person with a disability for the purpose of applying the accessibility provisions of the CTA.
[32] 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
[33] 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.
[34] 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 refusal of carriage of the gel-cell battery
[35] Air Canada confirmed that it was indeed well aware in advance of Mrs. Ducharme's special needs and particularly her need to use the gel-cell-powered respirator inflight and that all the necessary approvals had been sought and confirmed.
[36] The evidence indicates, however, that on Flight No. AC1180 from Winnipeg to Ottawa on June 10, 2000, Air Canada's flight crew had not been pre-informed of the acceptance of this battery. The Agency has reviewed the PNR and while it notes that she was travelling with an electric wheelchair with a wet-cell battery and a respirator with a gel-cell battery, the information contained therein did not identify that the carriage and use of the gel-cell battery while inflight had been considered and approved by its own experts. This lack of exchange of information between carrier personnel resulted in the Captain overruling the authorization.
[37] Air Canada stated that the difficulties encountered by Mrs. Ducharme were due to the fact the it has no internal policy on the carriage of battery-powered medical equipment. In the absence of such policy and given that the IATA Dangerous Good Regulations made no reference to this type of equipment, the Captain decided not to allow the carriage of the equipment in the cabin.
[38] The Agency is concerned with Air Canada's statement. As mentioned above, Air Canada knew well in advance of Mrs. Ducharme's travel date that she required the gel-cell battery to power her artificial respirator and its use had been internally approved. To that extent, it is somewhat surprising that Air Canada, knowing the nonexistence of a policy concerning the acceptance of gel-cell battery, made no effort to ensure that such equipment would not be a cause of concern for its flight crew.
[39] The Agency also notes that following the outbound flight, the carrier initiated internal corrective measures in an effort to avoid the recurrence of the incident: the Meda Desk consulted with the dangerous goods expert who confirmed the use of the equipment in the aircraft; the following note was added to the PNR "..pax can travel in cabin with gel-cell and respirator/ can also have an extra battery in cabin/... advised to advise crew:" and was sent to the Ottawa airport; and, a written confirmation was sent to Mrs. Ducharme.
[40] Yet, in spite of all these steps, Mrs. Ducharme was informed, at boarding, that the carriage of the gel-cell battery in the cabin was in question. Although the Agency acknowledges that the gel-cell battery was ultimately accepted by the Captain, this decision only came after a lengthy discussion. The Agency accepts that the initial refusal of the gel-cell battery combined with the discussion with the flight crew caused her to be upset and depressed as the other passengers were becoming angry because of the delay. In light of the foregoing, the Agency finds that the refusal by Air Canada to allow the gel-cell battery on June 10, 2000 as well as the initial refusal of the gel-cell battery on June 16, 2000 constituted an obstacle to the mobility of Mrs. Ducharme.
The seating assignment of Mrs. Ducharme and her attendants
[41] Mr. and Mrs. Ducharme were assigned seats 15D and 15E on Flight No. AC1180 on June 10, 2000 and seats 23A and 23C on Flight No. AC179 on June 16, 2000. Mrs. Ducharme's other attendants (other than her husband) were not assigned seats ahead of time.
[42] Onboard No. Flight AC1180 on June 10, 2000, Mrs. Ducharme's attendants were not initially seated with Mr. and Mrs. Ducharme. However, following the refusal of the gel-cell battery and given that the presence of all of Mrs. Ducharme attendants became necessary to provide her with artificial resuscitation, Air Canada cleared the row in front of Mrs. Ducharme so that they could be seated together. On Flight No. AC179 on June 16, 2000, Mrs. Ducharme's attendants were not seated with her and Mr. Ducharme as the gel-cell battery was allowed in the cabin.
[43] The Agency notes that Air Canada ensured, upon booking, that Mrs. Ducharme would be seated with at least one of her attendants (her husband). When the use of the other attendants became necessary on June 10, 2000, Air Canada took appropriate action to ensure that they be seated just in front of Mrs. Ducharme. The Agency finds that the seating assignment of Mrs. Ducharme and her attendants did not constitute an obstacle to her mobility.
The flight delay on June 16, 2000 and the effect on Mrs. Ducharme
[44] Mrs. Ducharme stated that the flight delay on June 16, 2000 caused most of the blood vessels in her legs to burst because she was forced to sit in the aircraft for a longer period. Mrs. Ducharme stated that, as a result, her legs were swollen, blistered and she suffered first degree burns. Mrs. Ducharme noted that because she is quadriplegic, her attendants needed to manoeuver her legs manually.
[45] Flight No. AC179 on June 16, 2000 experienced a 4-hour delay in its scheduled departure due to the late arrival of the inbound aircraft and a subsequent mechanical malfunctioning, which was noted only after all passengers were boarded and the aircraft was pushed back from the gate. As the length of the delay was difficult to predict, Air Canada decided to leave the passengers on board to be ready for an immediate departure. The evidence is unclear however as to the amount of time passengers spent in the aircraft prior to departure.
[46] Although the Agency acknowledges that the delay in departure of Flight AC179 on June 16, 2000 may have caused a higher level of discomfort to Mrs. Ducharme than other passengers because of her disability, the Agency is of the opinion that this delay did not create an obstacle to her mobility. Delays resulting from mechanical malfunctions are unfortunate, however they are part of the ongoing operation of air carriers. As a carrier is the best suited to assess the nature of the mechanical problem and the length of any associated delay, it is up to the carrier to decide whether the passengers should be deplaned in these circumstances.
[47] There is no evidence to suggest that during the delay caused by the mechanical problem, Mrs. Ducharme requested to deplane in view of her personal health reasons and was refused or that her attendants were prevented in any way from providing her with the care required. In the absence of such evidence, the Agency finds that this did not constitute an obstacle to her mobility.
Whether the obstacle was undue
[48] 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.
[49] 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
The refusal of carriage of the gel-cell battery
[50] Having found that the refusal to carry the gel-cell battery constituted an obstacle to Mrs. Ducharme's mobility, the Agency will now consider whether it also constituted an undue obstacle.
[51] In this case, Air Canada was fully aware of the medical needs of Mrs. Ducharme prior to travel and recognized the complexities of the carriage of the battery as it had to secure the required operational approvals before confirming Mrs. Ducharme's travel plans. Air Canada was also aware of the lack of a specific internal policy on the carriage of such batteries in the passenger cabin and therefore of the importance of ensuring that this information and approvals were communicated to the appropriate areas and personnel. The Agency is of the opinion that Air Canada failed to take appropriate action internally to inform its employees of the carrier's own pre-approval granted for the carriage and use of the gel-cell battery in the passenger cabin. The Agency, therefore, finds the obstacle experienced by Mrs. Ducharme to be undue.
COMPENSATION
[52] Pursuant to subsection 172(3) of the CTA, on determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle.
[53] In this case, compensation was being sought for life long medical expenses as well as full reimbursement for airline tickets for herself and staff and other expenses; i.e., hotel, doctors, long distance charges, overtime for staff, wheelchair transportation and all future expenses resulting from this experience.
[54] As for medical expenses sought by Mrs. Ducharme, the Agency recognizes two grounds for such a request: the medical expenses incurred as a result of the alleged damage to her lungs on June 10, 2000 and the medical expenses incurred as a result of the alleged damage to her legs on June 16, 2000.
[55] With respect to the medical expenses resulting from the alleged damage inflicted upon Mrs. Ducharme, the Agency notes that no evidence was filed substantiating any expenses incurred as a result of any damages to Mrs. Ducharme's lungs. In the absence of any evidence supporting Mrs. Ducharme's claim, the Agency dismisses this claim.
[56] The jurisdiction of the Agency to award compensation is limited to situations where a person with a disability incurs expenses as a result of one or more undue obstacles. With respect to the medical expenses resulting from the alleged damage to her legs, as any expense incurred did not arise out of an undue obstacle, the Agency dismisses this claim.
[57] With respect to the other compensation being sought, including lack of sleep, airline tickets, hotel, long distance charges, overtime for her staff, wheelchair transportation and all future expenses resulting from this experience, the Agency finds that this does not fall within the purview of subsection 172(3) of the CTA. Such claims are sought as compensation for the physical or psychological damages caused by Air Canada's actions on June 10 and 16, 2000 and, in this regard, the Agency does not have the jurisdiction to award such damages.
[58] In any event, as a result of Air Canada's recent reorganization, all claims of a financial nature arising from incidents which occurred on or before April 1, 2003 have been extinguished for purposes of the Agency as well as other courts of law.
CORRECTIVE MEASURES
[59] Pursuant to subsection 172(3) of the CTA, on determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures.
[60] In this case, the problems encountered by Mrs. Ducharme on June 10 and June 16, 2000 can largely be explained by the fact that Air Canada, at the time of the incident, did not have any policy in place on acceptance of gel-cell battery. Air Canada indicated that it was in the process of developing such a policy. Pursuant to subsection 172(3) of the CTA, the Agency therefore requires Air Canada to provide a copy of said policy and an explanation of the steps taken to ensure that all employees, and particularly the flight crews, are aware of the policy.
CONCLUSION
[61] In light of the foregoing, the Agency finds that the seating assignment and the flight delays experienced when Mrs. Ducharme travelled with Air Canada on June 10 and June 16, 2000 did not constitute obstacles to her mobility.
[62] The Agency does find, however, that Air Canada's refusal to accept the carriage and use of her gel-cell battery inflight on June 10, and the initial refusal on June 16, 2000, did constitute undue obstacles to her mobility.
[63] Pursuant to subsection 172(3) of the CTA, the Agency hereby directs Air Canada, within thirty (30) days of the date of this Decision, to provide the Agency with:
- a copy of its policy with respect to the acceptance of gel-cell batteries for medical equipment, and
- a summary of steps taken by Air Canada to ensure that its employees and particularly its flight crews are aware of the new policy.
[64] Following its review of the requested information, the Agency will determine whether further action is required.
- Date modified: