Decision No. 57-AT-A-2019

September 13, 2019

APPLICATION by Deborah Battrum (applicant) against WestJet pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) regarding their disability-related needs.

Case number: 
19-00376

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against WestJet pursuant to subsection 172(1) of the CTA, concerning the carrier’s alleged failure to provide appropriate seating.

[2] The applicant seeks a full refund of their ticket as well as apologies from WestJet and the gate supervisor who handled their complaint after their flight.

[3] The Agency will address the following issues:

  1. Is the applicant a person with a disability for the purpose of Part V of the CTA?
  2. Did the applicant encounter an obstacle to their mobility?

[4] For the reasons outlined below, the Agency finds that the applicant is a person with a disability for the purposes of Part V of the CTA, but that they did not encounter an obstacle to their mobility.

BACKGROUND

[5] On November 30, 2018, the applicant travelled from Kelowna to Vancouver, British Columbia, and back. They state that they paid for upgraded seating in order to have extra arm and leg room.

[6] For their inbound flight, the applicant claims that they were seated next to an obese passenger who took up more than half of their seat. The applicant states that this made it impossible for them to move and use the washroom, which they say they must access frequently due to their disability.

[7] Upon arrival in Kelowna, the applicant complained to a flight attendant about their seat allocation and was referred to a WestJet gate supervisor. The applicant felt that they were mistreated by the WestJet gate supervisor.

PRELIMINARY MATTER

Agency jurisdiction over pain and suffering

[8] In their application, the applicant makes reference to poor customer service and mistreatment by WestJet personnel, for which they are seeking a full refund of their flight ticket. The Agency’s powers are expressly defined in the CTA, which does not give the Agency jurisdiction to order payment of compensation for pain and suffering and loss of enjoyment, as stated in previous decisions, such as Decision No. 18‑C‑A‑2015 (Enisz v. Air Canada) and Decision No. 55‑C‑A‑2014 (Brines v. Air Canada).

Agency jurisdiction to order an apology

[9] The applicant also requests an apology from WestJet. The CTA does not give the Agency the power to order apologies. Accordingly, and consistent with the Federal Court’s decision in Canada (Attorney General) v. Stevenson, 2003 FCT 341, the Agency does not have jurisdiction to order a carrier to apologize to the applicant.

THE LAW

[10] 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 obstacle to the mobility of persons with disabilities.

[11] The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a three-part approach:

Part 1: The Agency considers whether the applicant is a person with a disability for the purposes of Part V of the CTA.

Part 2: If it is determined that the applicant is a person with a disability for the purposes of Part V of the CTA, the Agency determines whether they encountered an obstacle. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.

Part 3: If it is determined that the applicant is a person with a disability and that they encountered an obstacle, the Agency provides the respondent with an opportunity to either:

    • explain how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or
    • demonstrate that it cannot remove the obstacle without experiencing undue hardship.

[12] In this Decision, the Agency will address the issues in the first two parts of the above approach.

1. IS THE APPLICANT A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?

[13] The applicant has permanent neurological damage and cannot move without the use of crutches or other mobility devices. WestJet agrees that the applicant is a person with a disability.

[14] In light of the above, the Agency finds that the applicant is a person with a disability for the purposes of Part V of the CTA.

2. DID THE APPLICANTENCOUNTER AN OBSTACLE TO THEIR MOBILITY?

Position of parties

THE APPLICANT

[15] The applicant paid for a seat upgrade in order to have extra arm and leg room. They claim that an obese passenger was seated beside them, who was moved from an exit row. The applicant states that the woman “actually sat on me as well as in her own seat”. As a result, they claim that they spent 90 minutes pinned against the inner wall of the fuselage. They add that they would have asked to be relocated, but the flight was full.

[16] They claim that they were unable to move in their seat or go to the bathroom, which they must access frequently due to their disability. The applicant also feared that they would fall over even if they managed to make it out to the aisle.

[17] The applicant states that when referred to a WestJet gate supervisor to complain about their situation, they expected an apology for their bad experience with WestJet. Instead, the gate supervisor berated them for calling the passenger seated next to them a “baby whale”.

[18] According to the applicant, they were so upset following the discussion with the WestJet gate supervisor that the front wheels of their mobility device got caught in the carpet causing them to fall. The applicant blames this incident on WestJet due to, what they refer to as, the supervisor’s abusive behaviour.

WESTJET

[19] WestJet indicates that, at the time of booking, the applicant requested wheelchair assistance (WCHR) for both segments, but did not request any other special services.

[20] WestJet states that its general practice is for passengers seated in middle or window seats to ask those seated beside them to kindly allow them to pass in order to access the lavatory. If a passenger was asked and refused or ignored the request, the passenger making the request would be welcome to engage carrier personnel to assist in that regard. WestJet has no evidence that the applicant made such a request to the passenger seated next to them, nor a request for assistance from the flight attendants during their flight.

[21] WestJet does not currently provide special consideration for seating for any passengers who have the aisle restricted or blocked by another guest, and it says that it would be discriminatory behaviour to compensate a disabled passenger, but not an “able-bodied guest”, under the same circumstances.

[22] WestJet explains that, despite its senior guest support agent’s offer of compensation for a negative experience, WestJet indicates that the applicant should not qualify for compensation or further apologies under the circumstances, given that all services purchased were received.

[23] WestJet is of the opinion that it has met the obligations within its tariff and satisfied the accommodations and services that the applicant purchased and, consequently, requests that the complaint be dismissed.

Analysis and determinations

[24] Transportation service providers have a duty to accommodate persons with disabilities. A person with a disability will face an obstacle to their mobility if they demonstrate that they need—and were not provided with—accommodation, thereby being denied equal access to services available to others in the federal transportation network.

[25] It is the applicant’s responsibility to provide sufficiently persuasive evidence to establish their need for accommodation, to prove that this need was not met, and to demonstrate that they have faced an obstacle. The burden of proof that applies to this is the balance of probabilities, meaning that the applicant must establish that their position is more probable than that of the opposing party.

[26] It is undisputed that the applicant paid for a seat with additional space and that this space was partially taken up by an obese person, who appears not to have been provided with accommodation (an additional seat) for their disability. Payment for the seat upgrade indicates that it was booked as a personal preference for additional space and not to accommodate their disability. If it was to accommodate a disability-related need, they would not have had to pay for the required space or a seat selection fee. While the applicant requested wheelchair assistance at the time of booking their flight, they did not ask for other disability-related accommodations.

[27] As such, the Agency finds that, in respect of the lack of space at their seat, the applicant is like any other passenger who has paid for upgraded seating. The Agency has consistently held that, for an obstacle to exist, the problem must be related to the person’s disability. A customer service issue does not become an obstacle merely because it is experienced by a person with a disability.

[28] The applicant also claims that they were unable to access the washroom during the flight because they could not get by the passenger seated next to them. They also expressed a concern that they might fall if and when they got to the aisle as a result of their disability. The Agency notes that it is very rare to have easy access in and out of a window seat on an aircraft. Almost all passengers in window seats must ask the passenger(s) seated next to them to shift or move in order to gain access to the aisle. There is no evidence that the applicant made such a request to the passenger seated next to them. There is also no evidence indicating that they asked any of the flight crew for assistance or that such assistance would have been refused to them.

[29] Lastly, the applicant claims that they were verbally abused by the WestJet supervisor in the terminal, that this incident caused them to fall while going into the washroom, and that they were offered no assistance by WestJet personnel. However, it is not reasonable to expect that disrespectful behaviour in calling their seatmate names would go unchallenged by the service provider; and while the applicant’s fall was unfortunate, the Agency finds that it was not caused by the actions or inactions of WestJet personnel. The Agency also accepts WestJet’s evidence in the passenger record that they were offered assistance by WestJet personnel, but declined.

[30] Based on the above, the Agency finds that, although the applicant had an unpleasant travel experience, they have not encountered an obstacle to their mobility as a result of their seating or their treatment by WestJet staff. The Agency considers the lack of space at their seat to be a customer service issue. As stated in previous decisions, the Agency has no jurisdiction to order compensation for customer service issues. The Agency therefore dismisses the application. In light of the needs they identified in this proceeding, the Agency encourages the applicant to consider asking for other accommodations in addition to wheelchair assistance when they travel by air, such as preselecting an aisle seat.

CONCLUSION

The Agency dismisses the application.

Member(s)

Elizabeth C. Barker
Heather Smith
Date modified: