Decision No. 640-AT-A-1999
November 16, 1999
APPLICATION by George S. Clark-Dunning pursuant to subsections 172(1) and 172(3) of the Canada Transportation Act, S.C., 1996, c. 10, regarding the non-provision of wheelchair assistance while travelling between Charlottetown, Prince Edward Island, and Victoria, British Columbia with Canadian Airlines International Ltd. carrying on business under the firm name and style of either Canadian Airlines International, Canadi*n Airlines or Canadi*n, and between Toronto, Ontario, and Raleigh-Durham, North Carolina with Canadian Regional Airlines 1998 Ltd. carrying on business as Canadian Regional, in April and May 1999.
File No. U 3570/99-34
APPLICATION
On July 19, 1999, George S. Clark-Dunning filed an application with the Canadian Transportation Agency (hereinafter the Agency) with respect to the matter set out in the title.
On July 26, 1999, Canadian Airlines International Ltd. carrying on business under the firm name and style of either Canadian Airlines International, Canadi*n Airlines or Canadi*n (hereinafter Canadi*n) requested an extension to file its answer. By Decision No. LET-AT-A-210-1999 dated August 3, 1999, the Agency granted Canadi*n's request and on August 30, 1999, Canadi*n filed its answer to the complaint. On September 16, 1999, Mr. Clark-Dunning filed his reply.
ISSUE
The issue to be addressed is whether the non-provision of wheelchair assistance as requested by Mr. Clark-Dunning constituted an undue obstacle to his mobility and, if so, what corrective measures should be taken.
FACTS
Mr. Clark-Dunning has a mobility impairment, uses a cane and also requires wheelchair assistance for long distances. He had requested wheelchair assistance through his travel agent for every leg of the trip as confirmed by the Special Services Request (SSR) on file. The SSR contains the code "WCHR" which indicates that the mobility impaired passenger requires wheelchair assistance for long distances but can ascend/descend steps and make his own way to the assigned aircraft seat.
On April 29, 1999, Mr. Clark-Dunning travelled from Charlottetown, Prince Edward Island to Victoria, British Columbia. His itinerary involved transiting through Halifax, Nova Scotia, Toronto, Ontario, and Vancouver, British Columbia.
Wheelchair assistance was provided to Mr. Clark-Dunning at the airports in Charlottetown and Halifax. However, he was left alone at the Halifax terminal and had to reach the gate for his flight to Toronto by himself. For the remainder of his journey, Mr. Clark-Dunning did not receive the assistance he had requested. In Toronto, he was the last to deplane and was left behind by the flight crew members. When the cleaning crew boarded the aircraft, he realized that no assistance would be provided. He was therefore required to walk to the next gate to await his flight to Vancouver. While at the departure gate, although he requested a wheelchair and was told that someone would assist him, no assistance was provided. Upon arrival in Vancouver, Mr. Clark-Dunning had to rush to the next gate which was quite a distance away. In Victoria, he again requested a wheelchair, but none was available.
On the return portion of his trip, during a stopover in Vancouver, Mr. Clark-Dunning contacted Canadi*n's customer service agent to report the incidents that had taken place. As compensation for the inconveniences, Mr. Clark-Dunning was offered an upgrade to Business Class for his return trip from Vancouver to Halifax.
On May 13, 1999, Mr. Clark-Dunning travelled from Vancouver to Toronto where he spent a few days. From Toronto, he travelled to Raleigh-Durham, North Carolina on May 15, 1999. In Toronto, he received wheelchair assistance only after strongly insisting that it be provided. On his return trip to Toronto on May 19, 1999, he travelled with Canadi*n's partner, Canadian Regional Airlines 1998 Ltd. doing business as Canadian Regional (hereinafter Canadian Regional). Mr. Clark-Dunning arrived one hour prior to departure for check-in at which time he requested wheelchair assistance. The check-in agent at the American Airlines counter was courteous, but wheelchair assistance was not provided as the agent deemed that Mr. Clark-Dunning was capable of walking with the aid of his cane. While making his way to the aircraft, Mr. Clark-Dunning stumbled and was not helped by anyone.
Mr. Clark-Dunning did not report any incidents with respect to his trip from Toronto to Charlottetown on May 22, 1999.
As a result of the above-noted incidents, Mr. Clark-Dunning requests appropriate financial compensation, such as a full refund of travel costs, travel in Business Class to Toronto or, at a bare minimum, a $200 travel voucher for future travel. He also requests that Canadi*n formally apologize for not providing the services he had requested, that corrective measures be taken with respect to the personnel involved, and that sensitivity training be provided to them.
POSITIONS OF THE PARTIES
Mr. Clark-Dunning feels that he was discriminated against and finds the treatment he received while travelling totally unacceptable. In his opinion, when a passenger requests a service, it should be provided unconditionally.
Canadi*n is at a loss to explain why the service failures occurred as its airport staff are fully aware of their responsibilities in the area of providing wheelchair and preboarding assistance. Furthermore, its systems are designed in such a way that personnel are alerted to passengers' needs based on the handling code contained in the Passenger Name Records (PNR). A preboarding message informing passengers to identify themselves if they need extra time to board also supports its systems. Canadi*n indicates that following Mr. Clark-Dunning's complaint, it issued a bulletin to all airports, and to its partners as a reminder of their obligations with respect to passengers with disabilities. The bulletin stresses the importance of treating these passengers with dignity and respect and of ensuring that their PNR contain the appropriate SSR and that the requested assistance is provided. Employees are also encouraged to enter into a dialogue with passengers requesting assistance in order that they may safely provide the appropriate assistance.
In its response dated August 30, 1999, Canadi*n states that Mr. Clark-Dunning's PNR contained one major irregularity in that the special handling code "WCHR" used by the travel agent indicates that the passenger does not require assistance to board aircraft or deplane. Canadi*n submits that this would explain why he did not receive assistance to deplane. Canadi*n is of the opinion that the code "WCHC" should have been used as the services to be provided were for assisting Mr. Clark-Dunning to and from his seat on the aircraft, and for boarding and deplaning. Staff would then have been aware that Mr. Clark-Dunning required a wheelchair to/from his seat on the aircraft. As a corrective measure, Canadi*n contacted Mr. Clark-Dunning's travel agent in Toronto to inform him of this requirement and requested that he use the "WCHC" code in all future bookings for Mr. Clark-Dunning.
With respect to the lack of wheelchair assistance in Victoria, Canadi*n can only speculate that the service failure resulted from a lack of personnel as there are in fact 13 wheelchairs available due to high demand at that terminal.
With respect to the incident in Raleigh-Durham, Canadi*n notes that its partner, Canadian Regional, which operated the return flight, has discussed it with its contracted American Airlines personnel and reminded them of their obligation to provide services based on passengers' requests and not on the airline personnel's opinions.
Canadi*n regrets that Mr. Clark-Dunning deemed inadequate as compensation the complimentary upgrade to Business Class for his return trip from Vancouver to Halifax. However, Canadi*n states that this is well within its compensation guidelines which it does not intend to review.
ANALYSIS AND FINDINGS
In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
On the issue of wheelchair assistance, the Agency notes that Mr. Clark-Dunning did receive wheelchair assistance in Charlottetown and in Halifax, although no assistance was provided at the Halifax terminal to wheel him to the boarding gate for the flight to Toronto. Furthermore, while Mr. Clark-Dunning was provided with wheelchair assistance in Toronto, prior to his flight to Raleigh-Durham, it was only after strongly insisting that it be provided. No mention was made during pleadings of any problem with respect to the provision of a wheelchair or assistance on the Victoria/Vancouver/Toronto return flights, nor during the last leg of the journey from Toronto to Charlottetown, after Mr. Dunning's return from Raleigh-Durham. Therefore, the Agency is of the view that the breakdown of services was not systemic, but consisted rather of isolated incidents. Canadi*n has itself acknowledged that there had been service failures and that the services were not provided as requested by Mr. Clark-Dunning.
Mr. Clark-Dunning's PNR contained the special handling code "WCHR" defined in the International Air Transport Association's (IATA) Reservations Services Manual (June 1, 1999) as "Wheelchair--R for Ramp. Passenger can ascend/descend steps and make own way to/from cabin seat, but requires wheelchair for distance to/from aircraft ..." [emphasis added]. The same definition is provided in the IATA's Reservations Interline Message Procedures--Passenger (AIRIMP), 21st Edition, effective March 1, 1997.
The Agency notes that, in Canadi*n's opinion, the appropriate code should have been "WCHC". The above-noted IATA references define "WCHC" as "Wheelchair--C for Cabin Seat. Passenger completely immobile. Requires wheelchair to/from aircraft/mobile lounge and must be carried up/down steps and to/from cabin seat...". Mr. Clark-Dunning clearly indicated that he was able to move about the aircraft and that he required assistance from check-in to boarding and upon arrival at the various airport terminals to the baggage claim areas.
The Agency finds that in the present case the "WCHR" code was indeed appropriate. Mr. Clark-Dunning's description of the incidents he experienced clearly shows that the problems he encountered were within the various terminals and not while he was onboard the aircraft. The Agency is of the opinion that the fact that Mr. Clark-Dunning was able to make his own way to the various aircraft as a result of not having received wheelchair assistance is sufficient indication that he is not "completely immobile". Mr. Clark-Dunning himself confirms this in his reply dated September 16, 1999.
The Agency further notes that Mr. Clark-Dunning reiterated his request for wheelchair assistance at the various check-in counters throughout his journey, but to no avail in Toronto, Vancouver and Victoria, as well as upon his return from Raleigh-Durham.
Subsection 151(1) of the Air Transportation Regulations, SOR/88-58 (hereinafter the ATR), states that "Where a person requests a service set out in this Part at least 48 hours before the scheduled time of departure of the person's flight, the air carrier shall provide the person with the service."
In accordance with subparagraphs 147(1)(b) and (i) of the ATR, ...an air carrier shall provide the following services to a person, if requested:
(b) assisting in proceeding to the boarding area;
(i) assisting in proceeding to the general public area or, where a person is changing to a flight of another carrier within the same terminal, to a representative of the receiving air carrier.
Furthermore, subsection 151(3) of the ATR states that "Where a request for a service [...] is not made within the time limit [...] the air carrier shall make a reasonable effort to provide the service."
The Agency finds that as a result of the failure to provide the assistance requested by Mr. Clark-Dunning, Canadi*n was in contravention of the above provisions of the ATR as, based on the evidence, Canadi*n was aware well in advance of the dates of Mr. Clark-Dunning's travel of the request for special services as noted in Mr. Clark-Dunning's PNR, notwithstanding which code was used. Furthermore, Mr. Clark-Dunning had reiterated his request when checking in at the various terminals.
The Agency finds that the non-provision of a wheelchair and assistance constituted an obstacle to Mr. Clark-Dunning's mobility as it caused him hardship in travelling distances between the various terminal gates. Furthermore, the obstacle is found to be undue as it could have been avoided if the carrier's personnel had made reasonable efforts to accommodate Mr. Clark-Dunning and discussed directly with him what specific services he required.
Concerning the issue of lack of sensitivity on the part of airline personnel, the Agency notes certain discrepancies in the treatment that was given to Mr. Clark-Dunning. Firstly, with respect to the incident in Toronto where Mr. Clark-Dunning was abandoned upon arriving from Halifax, the Agency questions why the flight crew would deplane and leave passengers behind unattended. Secondly, when Mr. Clark-Dunning was checking in for the flight to Raleigh-Durham on May 13, he had to insist in order to receive wheelchair assistance. The agent in Toronto should have verified the passenger manifest and been aware of the special service request. Obviously, this was not the case. The Agency finds that the incident resulted from a breakdown in communication, especially since, as indicated by Canadi*n, a preboarding announcement is normally made for boarding passengers travelling with infants or who require extra time to board. Thirdly, Mr. Clark-Dunning did not receive the requested assistance upon his return from Raleigh-Durham as the agent he contacted deemed that it was not required. The Agency finds that in these three instances, Mr. Clark-Dunning was confronted with undue obstacles which could have been avoided had the carrier's personnel followed proper procedures for deplaning, for checking in and preboarding passengers, made reasonable efforts to accommodate Mr. Clark-Dunning, and discussed directly with him what specific services he required.
In this regard, the Agency notes that following the incidents described above, Canadi*n issued a bulletin, on file with the Agency, to all airports reminding staff of their obligations to customers with disabilities and of the importance of communicating with them to provide the appropriate services. Moreover, with respect to the incident in Raleigh-Durham, as indicated by Canadi*n, the matter has been discussed with American Airlines personnel contracted by Canadian Regional which operated the flight on behalf of Canadi*n. They were reminded of their obligation to provide services to Canadi*n's customers based on their requirements and not the opinions of its personnel.
In light of the corrective measures already taken by Canadi*n in this respect, the Agency will not require any further corrective measures.
On the issue of compensation, the Agency notes that Canadi*n did offer Mr. Clark-Dunning an upgrade to Business Class for the return portion of his trip from Vancouver to Halifax. Pursuant to subsection 172(3) of the Canada Transportation Act, 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. However, in the present case, Mr. Clark-Dunning has not submitted any evidence that costs were incurred as a result of the undue obstacle. Therefore, the Agency does not contemplate any action with respect to further compensation.
CONCLUSION
In light of the above, the Agency finds Canadi*n to have contravened sections 147 and 151 of the ATR since it did not provide the prerequested services and failed to make reasonable efforts to accommodate Mr. Clark-Dunning, thereby creating undue obstacles to his mobility.
Canadi*n should be aware that the Agency considers contraventions of provisions of the ATR to be serious and will take appropriate punitive action should any such contraventions occur in the future.
Furthermore, the Agency finds that Canadi*n personnel's lack of awareness of proper procedures to be followed with regards to Mr. Clark-Dunning's check-in, preboarding and deplaning constituted undue obstacles to his mobility.
Given the fact that Canadi*n has issued a bulletin to its employees and partners regarding the importance of communicating with passengers with disabilities to determine what specific services are required, of treating them with respect and dignity, and of providing the requested services, the Agency is of the view that this corrective measure should prevent the recurrence of incidents similar to those experienced by Mr. Clark-Dunning. Consequently, the Agency finds that no further corrective measures are required at this time in this respect.
Regarding the wheelchair code used by the travel agent, the Agency has determined that the appropriate "WCHR" code had been noted in Mr. Clark-Dunning's SSR and that the "WCHC" code did not apply in the circumstances described above. The Agency therefore requires Canadi*n to contact the travel agent in Toronto who makes the arrangements for Mr. Clark-Dunning and advise him accordingly. Canadi*n is required to provide the Agency, within thirty (30) days from the date of this decision, with written confirmation that this corrective measure has been taken.
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