Decision No. 596-A-1991

November 29, 1991

File Nos. D 2360/91-1
D 2350

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BACKGROUND

On April 11, 1990, Ms. Rachelle Halpenny (hereinafter the applicant) filed a complaint with the National Transportation Agency (hereinafter the Agency) regarding incidents which occurred while travelling with Air Canada and requested that an investigation be undertaken into the procedures followed by Air Canada to ensure the safe and timely arrival of wheelchairs. The applicant also requested that the Agency look into the quickness and the reliability of repairs to damaged wheelchairs. The Agency received the reply of Air Canada dated April 25, 1990 and the comments to the reply by the applicant dated October 9th, 1990.

The applicant has Cerebral Palsy and noted that as President of the Ontario Cerebral Palsy Sports Association she travels frequently with Air Canada.

The applicant complained that her wheelchair had been left behind when she took an Air Canada flight from Ottawa to Toronto on April 6, 1990. Attachments to her letter detailed other problems she had experienced concerning repairs to her wheelchair when it was damaged on an Air Canada flight on November 10, 1989.

Air Canada acknowledged the incident of November 10, 1989, where the applicant's wheelchair was damaged and subsequently poorly repaired and the April 6, 1990 case of mishandling where the applicant's wheelchair did not travel on the same flight and was delivered seven hours later. Air Canada further acknowledged that its failure to deliver the wheelchair on time caused her hardship and strain.

On August 16, 1991, following further consultation with the interested parties, the Agency submitted a staff report to Air Canada and the applicant for comments. Air Canada responded with an update on the systems currently in place and a proposed course of action regarding procedures on the handling of wheelchairs. The applicant did not reply.

POSITION OF THE APPLICANT

The applicant maintains that Air Canada has not established procedures to ensure the safe and timely arrival of her wheelchair on Air Canada flights. She holds that establishing such procedures is extremely important to passengers who need such devices for their personal mobility.

In her complaint to the Agency, the applicant referred to her wheelchair as her "legs" and she used the same term in her letters to Air Canada on April 9, 1990, and to a lawyer on March 6, 1990, which were attached to the application. An additional letter dated November 29, 1989 from the Executive Director of Sport For Disabled Ontario addressed to Air Canada was also attached which noted "her wheelchair is as important to her as your legs are to you.".

POSITION OF AIR CANADA

Air Canada contended that they had a checklist for ensuring that a wheelchair would travel on the same flight as the passenger using it, and that this was a case of "human error". Air Canada apologized in writing to the applicant and offered a $100 travel voucher as a token of sincerity and concern.

In its comments on the Agency staff report transmitted on August 16, 1991, Air Canada indicated that several systems were either already in place, being implemented or contemplated in order to improve the procedures for the handling of wheelchairs. The carrier also stated that it has hired a consultant to advise on improvements in the various aspects of its operations with respect to the transportation of persons with disabilities.

INVESTIGATION BY AGENCY STAFF

In a letter to the Air Canada Regulatory Affairs Manager dated July 5, 1990, Agency staff requested information on Air Canada policies, practices, and procedures for the transportation of wheelchairs of passengers, as well as statistical information on the performance of Air Canada of such transportation. Air Canada supplied copies of its written policies and procedures, but could only supply estimates of the number of wheelchairs transported and the number lost or damaged annually because it does not maintain actual figures. The lack of statistics concerning the mishandling of wheelchairs was also confirmed in the response by Air Canada to the Agency staff report.

However, the Agency has found that other elements presented by Air Canada, such as the possible tracing of wheelchair incidents and the production of more specific statistics in the existing BAHAMAS computerized baggage system, a study of the storage of passenger-owned wheelchairs on board the aircraft, new baggage identification tags for wheelchairs and evaluation of communication systems are positive steps in improving the handling of wheelchairs.

RELEVANT LEGISLATION AND REGULATIONS

The jurisdiction of the Agency in this matter is set out in subsection 63.3 of the National Transportation Act, 1987 (hereinafter the NTA, 1987) which states, in part:

63.3 (1) The Agency may, of its own motion or on application, inquire into a matter in relation to which a regulation could be made under subsection 63.1(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of disabled persons.

(3) On determining that there is an undue obstacle to the mobility of disabled persons, the Agency may order either or both of the taking of appropriate corrective measures or the payment of compensation for any expense incurred by a disabled person arising out of the undue obstacle.

ANALYSIS OF THE ISSUES

Air Canada has acknowledged that its failure to deliver the wheelchair belonging to the applicant on time and intact caused her hardship and strain and that wheelchairs should be given a much higher priority than baggage. Air Canada estimated that one to two percent of wheelchairs it carries are damaged or delayed. However, Air Canada also noted that it does not maintain statistics on its transportation of wheelchairs or difficulties arising in their transportation. It cannot determine with precision, therefore, whether the procedures and practices are consistently put into effect or the consistency of results they actually produce.

The failure of Air Canada to deliver the wheelchair of the applicant on time and in good condition seems clearly to be an obstacle to the mobility of the applicant. Air Canada suggests, however, that its failures result not from an absence of procedures or policies -- Air Canada produced examples when Agency staff requested them -- but from "human error". The question of whether such "human error" is avoidable, however, is relevant to the question of whether the obstacle it produces is undue. The Agency is of the opinion that the breakdown of procedures and communications, which often results in human errors, could have been eliminated in this case by implementing a more stringent control without compromising the integrity or the safety of the service of the air carrier to persons with disabilities. Concerning the quickness and the reliability of the repairs to the wheelchair of the applicant after the incident of November 10, 1989, it is recognized that the quality of such repairs was beyond the control of Air Canada. However, the carrier should ensure that any organization contracted to repair this type of equipment is reminded of its importance to the users.

The subsections of the NTA, 1987 quoted on page 2, which give the Agency its authority to act, are all directed to the removal of undue obstacles. Subsection 63.3(3) states specifically that the Agency "may order either or both of the taking of appropriate corrective measures or the payment of compensation for any expense incurred." If no reasonable corrective measure could be taken or if the obstacle were unavoidable, it would be difficult to find that an obstacle is "undue".

In certain cases, the Agency prefers to leave the initiative to implement changes with the air carriers. However, it remains the responsibility of the Agency to monitor the process and to ensure that the changes translate into improvements in all facets of the transportation of persons with disabilities.

FINDINGS

In consideration of all the facts and submissions on file, the Agency finds that:

1) The unreliability of the Air Canada system for ensuring that wheelchairs travel without damage on the same flight as the using passenger was an undue obstacle to the mobility of the applicant. The handling and the carriage of wheelchairs should be given a higher priority than for baggage.

2) Accurate information on the failure of the system and a plan to improve the reliability of the procedures and policies, including the efficiency of repairs to damaged wheelchairs, is needed by Air Canada to remove the obstacle.

3) In light of the current undertakings by Air Canada and their corrective strategy regarding improvement to the transportation of persons with disabilities, there is no need at this time for the Agency to order further remedial measures.

4) A monitoring system, through a progress report from Air Canada and the analysis by the Agency of any future complaints, regarding the matter, is required in order to ensure further improvements to the handling of wheelchairs.

CONCLUSION

In conclusion, the Agency finds that Air Canada has acted to remove an undue obstacle in its transportation system. The Agency requires Air Canada to submit, one year following the date of this Decision, a progress report on the corrective measures and the proposed changes undertaken regarding the handling of wheelchairs, including contemplated changes in the BAHAMAS baggage system and the Access Task Force project.