Decision No. 631-AT-A-2005
October 19, 2005
File No. U3570/03-2
APPLICATION
[1] On January 8, 2003, David Rankin, on behalf of his mother, Janet Rankin, filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. Included with the application are copies of the boarding passes issued to Mrs. Rankin on July 25, 2002 and the responses Mr. Rankin received from Air Canada Vacations (hereinafter ACV), Air Canada and the Air Canada Ombudsman in previous attempts made to have the matter resolved.
[2] On February 17, 2003, Air Canada filed its answer to the application. On March 3, 2003, Mr. Rankin filed a reply to the carrier's answer.
PRELIMINARY MATTERS
[3] The statutory deadline for the rendering of the Agency's decision with respect to this application was May 8, 2003. However, on April 1, 2003, the Ontario Superior Court of Justice issued a stay order in respect of Air Canada and its subsidiaries under subsection 11(3) of the Companies' Creditors Arrangement Act. The stay order had the effect of stopping all proceedings against Air Canada before the Agency.
[4] On January 6, 2005, Air Canada filed a submission with the Agency wherein it stated its position that all accessible transportation applications before the Agency against Air Canada and its subsidiaries in relation to incidents which occurred on or before April 1, 2003 (the affected applications), including this application, are extinguished by an Order, issued on August 23, 2004 by Mr. Justice Farley of the Ontario Superior Court of Justice and which governs Air Canada's emergence from bankruptcy protection (the Sanction Order).
[5] In Decision No. LET-AT-A-34-2005 dated January 26, 2005, the Agency stated its opinion that Air Canada's position is incorrect and indicated that the Agency has taken action to have the issue resolved by Mr. Justice Farley as expeditiously as possible by seeking an interpretation of the Sanction Order as to whether the affected applications are extinguished, as argued by Air Canada. In Decision No. LET-AT-A-123-2005 dated April 19, 2005, the Agency granted Air Canada's request to stay Mrs. Rankin's application based on its view that, given its intention to seek Mr. Justice Farley's interpretation of his Sanction Order, it would not be appropriate for the Agency to continue to process the affected applications.
[6] The Agency subsequently decided that the best way to deal with the affected applications is for the Agency to proceed with its consideration of the applications and, as such, on June 30, 2005, the Agency determined that it would not continue with its motion before Mr. Justice Farley for an interpretation of the Sanction Order. Consequently, the Agency finds it appropriate to lift the stay of the application filed by Mrs. Rankin imposed by Decision No. LET-AT-A-123-2005 and to proceed with its consideration of this application.
ISSUE
[7] The issue to be addressed is whether the fact that Air Canada gate personnel initially advised Mrs. Rankin that she was on standby status and did not assign her priority seating on Air Canada Flight No. AC 291 operated on July 25, 2002 constituted an undue obstacle to her mobility and, if so, what corrective measures should be taken.
FACTS
[8] Mrs. Rankin is 76 years old and requires a wheelchair for distances and cannot ascend or descend stairs. On May 18, 2002, David Rankin booked a round trip vacation package with ACV for himself and his mother to travel between Toronto and Las Vegas. The vacation package included transportation on Air Canada Flight No. AC 291 from Toronto to Las Vegas on July 25, 2002, and return from Las Vegas to Toronto on August 1, 2002, on Air Canada Flight No. AC 292.
[9] Air Canada has a computer system that generates a passenger name record (hereinafter PNR) which provides information about passengers, including passengers with specific needs. The PNR for Mrs. Rankin reflects the code "WCHS", which, as defined in the International Air Transport Association Passenger Services Conference Resolutions Manual, means that the "passenger cannot ascend/descend steps, but is able to make own way to/from cabin seat; requires wheelchair for distance to/from aircraft or mobile lounge and must be carried up/down steps."
[10] At the time of booking, Mrs. Rankin and her son were preassigned seats on Flight No. AC 291 near the rear of the aircraft. No seats could be preassigned to them on Flight No. AC 292 as the booking date was too far in advance of the August 1, 2002 return flight.
[11] On May 20, 2002, Mr. Rankin made a written request to ACV for more acceptable seats on Flight No. AC 291. On June 6, 2002, ACV advised Mr. Rankin that it was able to assign them seats 17E and 17F on Flight No. AC 291. ACV further advised Mr. Rankin that it was able to preselect seats 13E and 13F for their return on Flight No. AC 292 on August 1, 2002. Finally, ACV indicated that seating assignments are however not guaranteed as the final decision rests with the air carrier.
[12] On July 25, 2002, i.e., the day of the Toronto-Las Vegas Flight, Mrs. Rankin and her son were each provided with two boarding passes: one at initial check-in, without seating assignment; and a second at the gate prior to the departure of the flight, assigning them seats 12D and 12E. Mrs. Rankin and her son travelled on Air Canada Flight No. AC 291, as planned, and were provided seating in the bulkhead row.
POSITIONS OF THE PARTIES
Janet Rankin
[13] Mr. Rankin submits that upon their arrival at the Toronto - Lester B. Pearson International Airport on the morning of July 25, 2002, he and his mother were directed to the special assistance check-in counter, and advised that they had been assigned standby status and would be ticketed at the gate. Mr. Rankin indicates that while in the departure area, he made an enquiry about their seats. He maintains that the Air Canada attendant was arrogant, impudent and insulting to him and his mother and told them that they would have to wait until check-in closed before a check could be made on seating availability. Mr. Rankin adds that they were informed that if it were not possible for them to be accommodated on Flight No. AC 291, they would be rerouted either through Chicago or Los Angeles. Mr. Rankin submits that the fact that they might have to change flights and claim and re-check luggage at the airport in Chicago or Los Angeles created anxiety, considering that Mrs. Rankin is a person with a disability. Mr. Rankin advises that he was also told that the flight was overbooked, as Air Canada always overbooks flights by 20 percent.
[14] Mr. Rankin states that the advertised package purchased provided for a direct flight from Toronto to Las Vegas, with seat selection. He submits that in response to his complaint to ACV, he was advised that there was no indication in ACV's report evidencing that the flight was overbooked, and that, given that all ACV bookings are guaranteed, ACV could not understand why Mr. Rankin may have been informed otherwise. Mr. Rankin indicates that in a subsequent attempt to contact ACV, he was informed that the matter had been forwarded to Air Canada.
[15] Mr. Rankin submits that in its response to his complaint, Air Canada acknowledged that the flight was overbooked. Mr. Rankin finds Air Canada's explanation for its failure to honor his mother's seating assignment lacking in that the carrier indicated that, amongst other reasons, the seat might have been required by a "special needs customer". In this respect, Mr. Rankin emphasizes that his mother's reservation file and her boarding pass show that she is such a passenger. Mr. Rankin adds that had Air Canada checked his mother's reservation file, it would have realized that Mrs. Rankin was a "special needs" passenger.
[16] Mr. Rankin states that the response he received from the Air Canada Ombudsman was unacceptable. Mr. Rankin explains that the fact that he and his mother travelled on the subject flight, as scheduled, or that the proper procedures for overbookings were followed is irrelevant. Mr. Rankin further explains that the fact that they were ultimately assigned seats in the bulkhead row is also irrelevant, especially considering that they normally avoid such seating given that, in many cases, hand luggage must be stowed in the overhead compartment, which is extremely inconvenient for Mrs. Rankin should she need to obtain something during the flight. According to Mr. Rankin, the fact that there is no acknowledgment that the bookings they made with ACV were not honored and that no apologies were provided for the behavior of the Air Canada agent in Toronto or for the inconvenience to his mother is what is relevant.
[17] Mr. Rankin requests an admission from Air Canada or ACV that the air portion of the vacation package purchased was not as advertised and that the reservations were not guaranteed in this instance given that the seating assignments were not honored. He further requests an apology from Air Canada for the treatment he and his mother received and for inconveniencing his mother and failing to initially meet her needs. Finally, Mr. Rankin requests that Air Canada provide them with two $50 travel certificates which he asserts were offered to passengers travelling through Toronto who were not satisfied customers.
[18] In his reply to Air Canada's answer to this application, Mr. Rankin asserts that it fails to address the complaint in any material fashion. Mr. Rankin advises that ". . . there was never any reference in the application to a 'special seating request for a disabled passenger', yet, this represents the substance of their reply."
[19] Mr. Rankin reiterates that the salient and tangible issues arising from the complaint are:
- an Air Canada representative at the gate at the Toronto - Lester B. Pearson International Airport was rude and conducted herself in an inappropriate and objectionable manner, informing a 76-year old passenger with a disability and her travelling companion that they were on standby due to the fact that Air Canada always overbooks by 20 percent but that it would get them to their destination even if they had to be routed through Chicago or Los Angeles, causing considerable anxiety to the passenger, who naturally was concerned about navigation through unfamiliar airports;
- Air Canada failing to honor, according to ACV, a "guaranteed reservation" by placing the passenger and companion on standby, despite having preselected seating for over a month prior to departure, and having checked in at the "Special Needs Counter" three hours prior to departure; and
- Air Canada failing to recognize a "special needs passenger" at the gate, and accord appropriate treatment.
Submissions attached to the application
[20] In a letter dated August 16, 2002, ACV advised Mr. Rankin that, according to its records, the departure of Flight No. AC 291 on July 25, 2002 was delayed 37 minutes. Further, ACV indicates that preassignment of seats is not guaranteed as the air carrier reserves the right to alter the aircraft being used and/or modify the seating assignments. ACV adds that there was no indication that the flight was overbooked and explains that it "only sells confirmed tickets". Finally, ACV advises Mr. Rankin that his concerns were forwarded to the relevant parties for internal review.
[21] In a letter dated October 22, 2002, Air Canada apologizes for the inconvenience caused by the overbooking of Flight No. AC 291 from Toronto to Las Vegas on July 25, explaining that its reservation system, in line with most major air carriers, is programmed to accept a limited number of reservations in excess of aircraft capacity. The air carrier adds that it cannot guarantee advance seat selection for many reasons such as, for example, a change in aircraft.
[22] In a letter dated November 18, 2002, the Air Canada Ombudsman confirmed to Mr. Rankin that he and Mrs. Rankin were not subject to an overbooked flight, nor were they rerouted, and that they were provided with bulkhead seats on Flight No. AC 291, which provide more leg room and, as such, were more convenient for Mrs. Rankin.
Air Canada
[23] In its February 17, 2003 answer to the application, Air Canada expresses its regret for any inconvenience experienced by Mrs. Rankin. Air Canada notes that a request for wheelchair assistance was made for Mrs. Rankin at the time of booking, but the carrier points out that her reservation file does not contain any indication of a specific seating request for a passenger with a disability.
ANALYSIS AND FINDINGS
[24] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
[25] An application must be filed by a person with a disability or on behalf of a person with a disability. In the present case, Mrs. Rankin requires a wheelchair for distances and cannot ascend or descend stairs. As such, she is a person with a disability for the purpose of applying the accessibility provisions of the Canada Transportation Act (hereinafter the CTA).
[26] 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
[27] 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.
[28] 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
[29] Mrs. Rankin and her son were initially advised by Air Canada personnel at the departure gate that their flight was overbooked, that they were on standby status, and that, in the event that they were not accommodated on their scheduled flight, they would be re-routed through Chicago or Los Angeles. The Agency notes that, in fact, the flight had not been overbooked and that Mrs. Rankin and her son were ultimately accommodated on their scheduled flight.
[30] While the Agency recognizes that Mrs. Rankin experienced some anxiety from not knowing whether she was going to be accommodated on her scheduled flight, the Agency notes that flight delays and the resulting uncertainties about travel times result in inconvenience and stress to all passengers. In this case, it is noted that Mrs. Rankin ultimately travelled as planned.
[31] In light of the foregoing, the Agency finds that the fact that Air Canada gate personnel initially advised Mrs. Rankin that she was on standby status and did not assign her priority seating did not constitute an obstacle to her mobility.
[32] Having determined that the fact that Air Canada gate personnel initially advised Mrs. Rankin that she was on standby status and did not assign her priority seating did not constitute an obstacle to her mobility, there is no need to determine whether this resulted in an undue obstacle to Mrs. Rankin's mobility.
COMPENSATION
[33] In the application, Mr. Rankin is requesting that Air Canada provide him and his mother with two $50 travel certificates. Pursuant to subsection 172(3) of the CTA, the Agency may, on determining that there is an undue obstacle to the mobility of a person with a disability, direct that compensation be paid for any expense incurred by that person arising out of the undue obstacle. In view of the Agency's determination that Mrs. Rankin did not encounter an obstacle to her mobility, it is not necessary to consider whether compensation should be paid to Mrs. Rankin and her son.
OTHER MATTER
[34] Notwithstanding the above, the Agency encourages personnel of transportation service providers who interact with the public to be aware of the needs of persons with disabilities and to be sensitive to their concerns. In the case at hand, the Agency notes that Air Canada offered an apology for the inconvenience caused to Mrs. Rankin and her son and, while bulkhead seating had actually not been requested by Mrs. Rankin, nor is it considered by her to be ideal for her needs, the Agency acknowledges the efforts made by Air Canada to accommodate Mrs. Rankin's needs by providing her with what is often considered to be preferred seating by persons who use wheelchairs.
CONCLUSION
[35] Based on the above findings, the Agency concludes that the fact that Air Canada gate personnel initially advised Janet Rankin that she was on standby status and did not assign her priority seating on Air Canada Flight No. AC 291 operated between Toronto, Ontario, Canada and Las Vegas, Nevada, United States of America on July 25, 2002 did not constitute an obstacle to her mobility.
Members
- Gilles Dufault
- Guy Delisle
- Beaton Tulk
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