Decision No. 66-AT-A-2021

July 6, 2021

APPLICATION by Angela Recine and Rico Recine (applicants) against WestJet (respondent), pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA), regarding their disability-related needs.

Case number: 
20-08754

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent, alleging that their seats for Flight No. WS2651 from Puerto Vallarta, Mexico, to Toronto, Ontario, did not provide them sufficient additional legroom. They also submit that they were not adequately informed of the accommodation they would be receiving and that they were bullied and threatened by the respondent’s personnel on board the aircraft when Angela Recine expressed concern about the seats provided.

[2] The applicants seek a refund of the cost of their family’s vacation package and a written apology from a flight attendant on Flight No. WS2651.

[3] In this decision, the Agency will address the following issues:

  1. Are the applicants persons with a disability?
  2. Did the applicants face a barrier to their mobility?

[4] For the reasons set out below, the Agency finds that the applicants are persons with a disability but that they did not encounter a barrier to their mobility. Accordingly, the Agency dismisses the application.

BACKGROUND

[5] Ms. Recine has peripheral arterial disease and severe venous insufficiency. In July 2018, the respondent approved her for a seat with additional legroom, effective from July 30, 2018, to July 30, 2020.

[6] Rico Recine, Ms. Recine’s son, is legally blind and has moderate venous insufficiency. In June 2019, the respondent approved him for a seat with additional legroom, with an attendant, effective from July 28, 2019, to July 28, 2022.

[7] On June 12, 2019, the applicants purchased a vacation package including round-trip tickets with the respondent to travel from Toronto to Puerto Vallarta on August 24, 2019, and to return on August 31, 2019.

[8] The applicants indicate that Mr. Recine contacted the respondent’s Medical and Accessibility team (Medical Desk) shortly after they purchased their tickets in order to arrange the accommodation they required. Ms. Recine was identified as Mr. Recine’s attendant for the itinerary. The respondent told both applicants that they would be provided additional legroom to accommodate their disabilities. They were told that they needed to provide more medical information regarding the need for “Premium” seats before such accommodation would be granted and that, if they wanted, they could pay more for “Premium” seats. The respondent advised the applicants that their seats would be in row no. 4 or higher.

[9] At the start of the outbound flight, the applicants requested “Premium” seats and were told that their need for additional legroom would be accommodated in row no. 4. The applicants encountered no incident travelling to Puerto Vallarta while seated in row no. 4. On the inbound flight, the applicants were unhappy to see that they were again seated in row no. 4, requested “Premium” seats and were told that none were available as the flight was full. The applicants claim that their seats in row no. 4 in the inbound flight did not provide enough legroom to accommodate their disabilities.

[10] On April 12, 2021, the Agency issued Decision No. LET-AT-A-28-2021, in which the Agency required that the respondent specify the seat pitch in row no. 4 of the aircraft used for Flight No. WS2651 on August 31, 2019. The respondent provided its answer and supporting documents on April 14, 2021.

PRELIMINARY MATTERS

Apology

[11] The applicants seek an apology from a flight attendant on board Flight No. WS2651. However, the Agency has no authority under the CTA to order a carrier to provide an apology. Therefore, consistent with the Federal Court’s decision in Canada (Attorney General) v Stevenson, 2003 FCT 341, the Agency will not address this issue.

Refund

[12] The applicants seek reimbursement for the cost of their family’s vacation packages; that is, for the round-trip flight tickets and hotel accommodation applicable to their own vacation package and to those of other family members travelling on a separate reservation with the same itinerary. These other family members are not named as applicants and have not been identified as persons with disabilities.

[13] The Agency does not have authority to award compensation to persons who are not party to an application, nor does it have jurisdiction over the hotel accommodation included in an applicant’s vacation package. Therefore, the Agency will not consider these issues.

[14] Similarly, paragraphs 172(2)(b) and 172.1(2)(b) of the CTA empower the Agency to order compensation for an expense incurred either by a person with a disability arising out of an undue barrier to their mobility or by an applicant arising out of a contravention of any regulations made under subsection 170(1) of the CTA. These provisions do not give the Agency the authority to order the reimbursement of the cost of the flight tickets, because it is not an expense “arising out of the barrier” nor “arising out of a contravention”; rather, it is an expense incurred to travel with the carrier. Therefore, the Agency will not consider the applicants’ request for a refund.

THE LAW

[15] 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 barrier to the mobility of persons with disabilities.

[16] As stated in Decision No. 33-AT-A-2019 (Interpretive Decision) regarding accessibility‑related applications, the Agency determines whether there is an undue barrier to the mobility of a person with a disability using a two-part approach:

Part 1: The onus is on the applicant to demonstrate, on a balance of probabilities, that:

- they have a disability. A disability is any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment—or a functional limitation—whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society;

and

- they faced a barrier. A barrier is anything—including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice—that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. There needs to be some connection between the applicant’s disability and the barrier.

Part 2: If it is determined that an applicant has a disability and faced a barrier, the onus shifts to the respondent to either:

- explain, taking into account any proposals from the applicant, how it proposes to remove the barrier through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or, if a general modification is not feasible, an individual accommodation measure;

or

- demonstrate, on a balance of probabilities, that it cannot remove the barrier without experiencing undue hardship.

[17] The Agency will address the first part of the above two-part approach in this decision.

1. ARE THE APPLICANTS PERSONS WITH A DISABILITY?

[18] The applicants state that Ms. Recine has peripheral arterial disease and severe venous insufficiency, and that she needs additional room to elevate her leg during travel.

[19] The applicants state that Mr. Recine is legally blind, has moderate venous insufficiency, and needs an attendant and additional legroom during travel.

[20] The respondent recognizes that the applicants are persons with a disability. It confirms that its Medical Desk approved Ms. Recine for a seat with additional legroom on July 30, 2018, effective until July 30, 2020. It confirms that its Medical Desk approved Mr. Recine for a seat with additional legroom, with an attendant, on June 28, 2019, effective until June 28, 2022.

[21] The Agency, therefore, finds that the applicants are persons with a disability.

2. DID THE APPLICANTS FACE A BARRIER TO THEIR MOBILITY?

Positions of the parties and findings of fact

THE APPLICANTS

Seat assignment

[22] The applicants state that Mr. Recine spoke with the respondent’s special care team shortly after they booked their tickets and that they were assigned seats in row no. 4 throughout their itinerary, consistent with the accommodations for which they were approved by the respondent’s Medical Desk.

[23] The applicants confirm that their seats on their outbound flight met their expectations but argue that the smaller, older aircraft used for their inbound flight could not accommodate their need for additional legroom. The applicants state that Ms. Recine was required to travel with her leg on Mr. Recine’s lap, even when accommodated with the aisle seat of row no. 4. They submit that this is due to the aircraft change for the flight and that the respondent should have informed them in advance of this change and its effect on their accommodations.

Onboard service

[24] The applicants submit that they were bullied by the flight crew after Ms. Recine voiced her concerns that her seat would not accommodate her medical condition, including being threatened with removal from the flight.

[25] The applicants submit that this treatment was unjust, as they were neither disruptive nor argumentative, and that Ms. Recine suffered emotionally and mentally as a result of such interactions.

THE RESPONDENT

Seat assignment

[26] The respondent states that the applicants were advised in June 2019 of the difference between “Preferred” and “Premium” seats, that they were approved for “Preferred” seats but not bulkhead or “Premium” seats, and that they could submit further medical information if they thought the approved accommodations would be insufficient. Specifically, the applicants were told that the seat pitch of the “Preferred” seats in the economy class for which they were approved was the same as that of “Premium” seats. The respondent states that the applicants did not provide more medical information.

[27] The respondent argues that the applicants’ seats in row no. 4 of a Boeing 737-600 aircraft met the requirements for additional legroom for which they had been approved. In support of its position, the respondent explains that it reconfigured all of its Boeing 737-600 aircraft by the end of June 2019 to create “Preferred” seats in rows nos. 4 to 6 of the economy cabin. The respondent provided the aircraft seat map and seating detail chart to demonstrate that the “Preferred” seats in row no. 4 have a 34-inch pitch, while the other seats in the economy cabin have a seat pitch of 31 to 33 inches.

[28] The respondent further submits that the applicants had travelled in similar “Preferred” seats in row no. 4 on their outbound flight, without incident, and that “Preferred” seats differ from the “Premium” seats requested upon boarding their inbound flight only in the onboard amenities that are provided. 

Onboard service

[29] The respondent submits that the crew felt that Ms. Recine may be unfit to travel as she was aggravated, raised her voice and refused to be seated so the respondent could continue boarding passengers. In light of this behaviour, documented in incident reports filed by the lead flight attendant and the customer service agent in Puerto Vallarta, the crew discussed offloading her to another flight for the safety of everyone on board.

[30] The respondent states that the captain nevertheless allowed Mrs. Recine to remain on board, on condition that there were no further incidents and she agreed to follow the instructions of the flight crew, as the next flight to Toronto was the following week.

FINDINGS OF FACT

[31] It is undisputed by the parties that the applicants travelled in row no. 4 on both flights and that they travelled on the outbound flight without incident.

[32] However, the applicants’ version of the events that occurred on board their inbound flight differs from that of the respondent. In Decision No. 426-C-A-2013 (Gibbins v Société Air France), the Agency set out that when contradictory versions of events are presented by the parties, the Agency must determine which version is more probable, based on the preponderance of evidence.

[33] In this case, the parties disagree about whether the applicants’ seats on their inbound flight had additional legroom and whether Ms. Recine was disruptive and argumentative when expressing concerns about her seating accommodation.

[34] Evidence submitted by both parties shows the aircraft used for the inbound flight to be a Boeing 737-600 aircraft. When the Agency asked for further information about the legroom in row no. 4 on that specific aircraft used for that flight, the respondent stated that the seats had a seat pitch of 34 inches. Based on the seat map and seat attribute charts provided by the respondent, the Agency accepts that row no. 4 of the respondent’s reconfigured Boeing 737-600 aircraft offers “Preferred” seats with a seat pitch of 34 inches, compared to 31 to 33 inches elsewhere in the economy cabin. The Agency, therefore, finds that the applicants’ seats provided additional legroom in comparison to other seats in the regular economy class.

[35] That the customer service agent and lead flight attendant prepared “Interference with crew/unruly passenger” reports contemporaneously with the incident on August 31, 2019, and that the flight attendant’s report was also mentioned in the gate events tracker for the flight, lends credence to the respondent’s version of events. The Agency, therefore, finds that Ms. Recine was argumentative and failed to follow the flight crew’s instructions.

ANALYSIS AND DETERMINATIONS

[36] The unfortunate events at issue in this application are anchored, to a large extent, in misperception and misunderstanding. In particular, this case involves an apparent misunderstanding by the applicants as to why the respondent’s crew acted as it did in the circumstances.

[37] To Ms. Recine, as set out in the applicants’ submissions, it appeared as though she was being denied the accommodation for her disability for which she was approved, which caused her anxiety.

[38] To the respondent, Ms. Recine had no justification for her protestations and non‑compliance.

SEAT ASSIGNMENT

[39] The applicants travelled in row no. 4 on both the outbound and inbound flights. The respondent submits that the seat pitch of “Premium” seats and that of seats in row no. 4 is the same, specifically 34 inches. These seats provide additional legroom as required to accommodate the applicants’ disabilities. The respondent points out that the difference between the seats in row no. 4 and “Premium” seats is the class of service (the amenities provided). The Agency finds that the applicants’ disability needs were accommodated with the seats in row no. 4. The Agency finds that the applicants did not encounter a barrier when they were assigned “Preferred” seats in row no. 4.

[40] The Agency has repeatedly held that passengers are to be accommodated in the class of service for which they paid, as stated in Decision No. 670‑AT‑A‑2001 (Laporte‑Stark v Air Canada) and Decision No. 11-AT-C-A-2021 (Martens-Funk v WestJet). In this instance, the respondent had increased the legroom in row no. 4 to the equivalent to that available in the “Premium” seats. The use of “Premium” seats is not necessary when additional legroom is available in the main cabin.

ONBOARD SERVICE

[41] Based on the fact that Ms. Recine was argumentative and failed to follow the flight crew’s instructions, the Agency accepts that the respondent’s flight crew considered removing her from the aircraft as a matter of the safety and comfort of the passengers and crew. As Mr. Recine is required to travel with an attendant and Ms. Recine was acting as his attendant, offloading her would require that Mr. Recine be offloaded as well. Notwithstanding the motivation behind Ms. Recine’s protestations, and however sympathetic the Agency may be to her distress, the nature of the applicants’ interactions with the crew resulted from Ms. Recine’s conduct rather than the applicants’ disabilities. Therefore, the Agency finds that the applicants did not encounter a barrier in regard to the service offered onboard by the respondent’s personnel.

CONCLUSION

[42] As the applicants’ disabilities were accommodated with additional legroom, the Agency finds that the applicants did not face a barrier and, as a result of this finding, that there is no reason to consider Part 2 of the two-part approach. For these reasons, the Agency dismisses the application.

Member(s)

J. Mark MacKeigan
Mary Tobin Oates
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