Decision No. 667-AT-A-2006
December 4, 2006
APPLICATION by Marie White pursuant to subsections 172(1) and (3) of the Canada Transportation Act, S.C. 1996, c. 10, regarding the difficulties she encountered while travelling with Air Canada between St. John's, Newfoundland and Winnipeg, Manitoba, on June 8 and 11, 2006.
File No. U3570/06-24
APPLICATION
[1] On July 20, 2006, Marie White filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title and filed further information to complete her application on August 7, 2006.
[2] On August 10, 2006, Air Canada was requested to provide its answer to the application and include in its answer certain documentation. In that same letter, Galaxy Travel Inc. was required to file specific information with the Agency because of its involvement in Ms. White's reservation. Galaxy Travel Inc. provided the information requested by the Agency on August 11, 2006.
[3] The Agency granted Air Canada an extension to file its answer to the application, which it did on September 21, 2006. Air Canada submitted further information on September 22, 2006. On October 13, 2006, Ms. White filed her reply and Air Canada responded to Ms. White's reply on October 19, 2006.
PRELIMINARY MATTER
[4] Although Ms. White's reply was received by the Agency after the prescribed deadline, the Agency, pursuant to section 5 of the Canadian Transportation Agency General Rules, SOR/2005-35 (hereinafter the General Rules), accepts it as being relevant and necessary to its consideration of this matter. Further, the Agency, pursuant to section 4 of the General Rules, accepts Air Canada's October 19, 2006 submission even though it was filed after the close of pleadings.
ISSUE
[5] The issue to be addressed is whether the treatment of and damage to Ms. White's walker, the level of wheelchair assistance provided to her during her connection at the Toronto - Lester B. Pearson International Airport (hereinafter the Toronto airport) on her return flights, and Air Canada's refusal to change Ms. White's reservation to an earlier return flight at no additional cost, constituted undue obstacles to Ms. White's mobility, and if so, what corrective measures should be taken.
FACTS
[6] Ms. White uses a cane for short distances and a walker for longer distances.
[7] Ms. White made arrangements with her travel agency, Galaxy Travel Inc., to travel with her two children and their babysitter between St. John's and Winnipeg departing on June 8, 2006 on Flight No. AC627 from St. John's to Montréal and Flight No. AC8565 from Montréal to Winnipeg, and returning on June 11, 2006 on Flight No. AC264 from Winnipeg to Toronto and Flight No. AC696 from Toronto, which arrived in St. John's at 3:25 a.m. on June 12, 2006.
[8] There are no "special service requirements" noted on Ms. White's reservation record, and her travel agent confirmed that she did not provide Air Canada with any information concerning Ms. White's disability or request a wheelchair for Ms. White at the time of booking.
[9] Ms. White's electronic ticket indicates that she was travelling on an E3VTGC type fare. The terms and conditions of the E3VTGC fare set out, in part, that E fare class type changes in reservations are subject to a fee of $40, and are based on availability, which is limited; other fare class type changes, including Y fare class changes, can be made at the higher applicable fare.
[10] When Ms. White travelled from St. John's to Winnipeg on June 8, 2006, she had left her cane at home, and was using her walker which, because of its size, was carried as checked baggage rather than cabin baggage.
[11] On June 11, 2006, the day of her return from Winnipeg, Ms. White called the Air Canada Call Centre to report damages to her walker and to request an earlier return flight; she did not change her ticketed reservations after being told that it would cost her $1,004 to change her booking.
[12] Ms. White filed a claim for damage to her walker with Air Canada immediately before her scheduled departure from Winnipeg on June 11, 2006; the claim was resolved by Air Canada in St. John's. Air Canada paid Ms. White $280 after receiving the invoice for a purchase of a new walker.
[13] When Ms. White travelled from Winnipeg to St. John's via Toronto on June 11, 2006, she waited on the bridge for wheelchair assistance at the Toronto airport, then proceeded into the terminal where an Air Canada agent was waiting with a wheelchair.
[14] Ms. White arrived in St. John's on her scheduled flight on June 12, 2006 at around 3:25 a.m. and she was offered assistance by agents at the airport.
POSITIONS OF THE PARTIES
Ms. White
[15] Ms. White explains that she did not request any disability-related services at the time of her reservation and that she uses a walker for her frequent travelling. She states that because her walker is quite tall and does not fold compactly enough to be stored in the cabin, it is carried in the cargo hold, then returned to her at the door of the aircraft upon her arrival at destination.
[16] Ms. White states that upon her arrival at the airport in Winnipeg on June 8, 2006, she thought her walker "seemed different", but she did not check it thoroughly and instead proceeded to her hotel. Ms. White explains that as she attended meetings in Winnipeg from June 9 to 11, 2006, she had not walked far with her walker until the morning of June 11, 2006, when she "noticed that [her] walker did not seem to be quite level and [she] adjusted the handles - one of which had also been bent on the flight from Montréal to Winnipeg", and that about 15 minutes into her walk, the walker "gave way" on one side and she also noticed a crack in the main frame, and it finally cracked completely, rendering it useless.
[17] Ms. White assumes that Air Canada cracked the frame of her walker on her June 8, 2006 outbound flight and that, as a result, the frame continued to bend over the course of a couple of days in Winnipeg. Ms. White submits that Air Canada also damaged her walker on two previous occasions: in July 2004 when it was beyond repair and replaced; and in January 2006 when it was broken and fixed.
[18] Ms. White explains that because of the state of her walker, she returned to her hotel, with difficulty, trying to balance herself and the walker without putting any pressure on the front side of the walker and one of the wheels. Ms. White advises that once back at her hotel she contacted Air Canada in an attempt to make changes to her reservations and those of her children, changes that Ms. White argues only became necessary because of the damage to her walker. Ms. White advises that she explained to the Air Canada representative that she did not want to arrive at 3:30 on the morning of June 12, 2006 with a broken walker as she was worried about carrying her luggage as well as helping her children with their bags. Furthermore, the babysitter was going on to her own home and therefore could not help; she could not expect her brothers or parents to come at that time in the morning; and her car was parked at the airport.
[19] According to Ms. White, the Air Canada agent insinuated that Ms. White was using the situation to get home earlier and advised her that there would be a cost in excess of $1,000 for changes in her reservations and her children's Aeroplan tickets would have to be co-ordinated separately. The agent also suggested that she go to the airport to inquire about possible flight changes. Ms. White notes, however, that she could not get to the airport any earlier as she had work commitments, difficulty walking, and in any event, there was no guarantee that anything would be changed by Air Canada.
[20] Ms. White maintains that because of her damaged walker, she was unable to spend time "out around Winnipeg" with her children on June 11, 2006, as she could only walk short distances with the cane that a colleague had purchased for her the same day.
[21] Ms. White submits that she filed a claim with Air Canada for the damage to her walker one hour before her departure from Winnipeg on June 11, 2006, which sets out that her walker was beyond repair, the frame and handle bent, and the main bar cracked.
[22] With respect to the wheelchair assistance, Ms. White states that she requested wheelchair assistance for her connection at the Toronto airport, and that once she arrived at the Toronto airport, she "waited at the bridge" but could not stand there for any length of time and her children were impatient to move from the bridge to the terminal and put down their carry-on luggage. Ms. White submits that she therefore "climbed the bridge" to reach the terminal without waiting any further for the wheelchair, and an agent was waiting with a wheelchair when she arrived at the other end of the bridge but was speaking to a customer from another flight.
[23] With respect to her arrival at the St. John's airport at around 3:25 a.m., Ms. White advises that she was offered assistance by agents who know her as a frequent flyer and that, at their suggestion, she left her walker at the airport as they felt that she would not be able to get it home by herself in the middle of the night.
[24] Ms. White states that she ended up in great muscular pain and, in fact, visited the doctor, had an ultrasound approximately one month later to determine if she had a blood clot because the pain had become unbearable. Ms. White advises that she continues to suffer leg pain, which she attributes to the incident, as in the past, pain has never been an issue due to the nature of her disability.
[25] Ms. White asserts that her mobility aid is an integral part of her life and that she cannot be inconvenienced by Air Canada accidentally destroying it. She adds that repairing or replacing her walker does not make the situation right as it puts her physical health at risk and interrupts her life. She states that she is seeking an apology from Air Canada; recognition that the carrier will not treat a person's disability-related equipment with disregard; a plan for protecting her walker on future travels, including policies that speak to its safe storage and care; and the implementation of a process for the immediate accommodation of requests from persons with disabilities whose mobility aids have been damaged or destroyed in transit.
[26] Ms. White is also seeking monetary compensation for the pain and suffering that she endured.
Galaxy Travel Inc.
[27] Ms. White's travel agent states that she did not provide Air Canada with any information regarding Ms. White's disability or request wheelchair assistance for her as Ms. White uses her walker when travelling and makes her own arrangements at the airport in this regard.
Air Canada
[28] Air Canada submits that it understands that Ms. White's outbound flight was uneventful and that she received her walker upon deplaning in Winnipeg. Air Canada explains that as a general practice, its station attendants will take a passenger's mobility aid to the door of the aircraft, place it in a special compartment in the cargo hold, and then deliver it to the passenger upon deplaning. Air Canada provided a bulletin sent to all airport personnel, as well as excerpts from its ramp handling manual regarding the handling of mobility aids, and submits that Air Canada carries a great number of mobility aids and strollers, with seldom a complaint. Air Canada explains that its employees are aware that the mobility aids of persons with disabilities are essential to them.
[29] Air Canada states that according to Ms. White, her walker broke on June 11, 2006, which is three days after her travel with Air Canada. Air Canada submits that there is no evidence that Ms. White's walker was damaged during its carriage by Air Canada.
[30] Air Canada advises that Ms. White reported the damage to her walker on her return to St. John's and indicated that the walker was one year old. Air Canada states that it sent Ms. White's walker to AIM Services, a recognized supplier and repair centre for mobility aids, which advised that the walker was more than ten years old and had previously been repaired in the same place as the break that occurred on June 11, 2006. Air Canada states that it nonetheless accepted to pay for a new walker for Ms. White, as a goodwill gesture.
[31] Air Canada submits that although Ms. White alleges that there were two other incidents where her walker was damaged, it was able to obtain the records for the 2004 claim but could not find the details pertaining to or establish the existence of the other incident.
[32] Air Canada provided documents with respect to the 2004 claim and states that Ms. White reported damage to her walker on the day following her arrival from an overseas trip which involved multiple connections and carriers in 2004. Air Canada submits that the 2004 claim also involved a cracked frame, and that after a report from Eastern Medical stated that the walker was beyond repair, Air Canada paid for a new one. Air Canada explains that in correspondence from Ms. White to Air Canada dated August 3, 2004, in support of the 2004 claim, Ms. White stated that "this is the third walker I have purchased in the last number of years". Air Canada submits that as it replaced Ms. White's walker with a new walker in 2004, and as the walker that was allegedly damaged in the June 2006 claim was at least ten years old and had been repaired previously for the same type of damage as the 2006 claim, the walker for the June trip could not have been the replacement walker that Air Canada paid for in 2004.
[33] With respect to the level of wheelchair assistance at the Toronto airport, Air Canada notes that Ms. White stated that after waiting for the wheelchair to be delivered to the door of the aircraft, she decided to walk up the bridge, only to find the Air Canada agent with the wheelchair responding to a question from another passenger. Air Canada explains that there is always a certain waiting period for passengers who have requested wheelchair assistance as they are requested to remain seated in the cabin until all passengers have deplaned. Air Canada indicates that having the wheelchair brought to the bridge before all other passengers have deplaned would cause an obstruction or obstacle to the flow of passengers leaving the aircraft and that, for reasons of safety, procedures call for agents to ensure that all passengers have left the bridge before bringing a wheelchair. Air Canada points out that in the case at hand, it appears that the wheelchair was at the top of the bridge and that an agent was about to bring it down to the aircraft when the agent was stopped by a customer who had a question. Air Canada respectfully submits that the service was provided and in a timely fashion.
[34] As for Ms. White's attempts to change her reservations for earlier flights, Air Canada advises that Ms. White held a E3VTGC fare type ticket, which allows for changes at a cost of $40 but only in the E fare class type inventory, if available. Air Canada comments that when Ms. White called on June 11, 2006 to request changes for earlier same day flights, there were no seats available at the E fare type, only the Y fare type, which is subject to the one way YOLPC fare, namely $1,268. Air Canada states that as the fare associated with the unused portion of Ms. White's ticket was $264, the $1,004 quoted by Air Canada to change her reservation was in compliance with its tariff. Further, Air Canada points out that had a change in reservations in fact been made, Ms. White would have arrived in St. John's only three hours earlier, at 00:03 a.m., on June 12, 2006, which is still during the night.
[35] With respect to the change in Ms. White's children's tickets, Air Canada points out that as these bookings and those of their babysitter were made through the Aeroplan Reward Program, and the miles used for these reward tickets were deducted from a third party's Aeroplan account, the airport agents correctly advised Ms. White that modifications to schedules had to be done through the Aeroplan Call Centre.
[36] Air Canada states that it does not contest that Ms. White is a person with a disability, but adds that she has failed to demonstrate that her walker was broken as a result of carriage or handling by Air Canada on June 8, 2006, and that documents and information provided show that the walker had been previously damaged. Therefore, Air Canada submits that the damage to Ms. White's walker was not an obstacle to the mobility of a person with a disability within the transportation network. Air Canada respectfully submits that should the Agency determine that there was an obstacle, such obstacle was not undue given the previous damage to the walker. Air Canada further submits that the wait for wheelchair assistance at the Toronto airport while an Air Canada agent answered another passenger's question is not an obstacle as it was Ms. White's decision to walk up the bridge, and certainly not an undue obstacle because of the short wait. Finally, Air Canada submits that applying its tariff cannot constitute an obstacle, and cannot be considered undue given that changes in Ms. White's reservations would only have allowed her to arrive in St. John's three hours earlier, still during the night, and would not have changed her children's reservations.
Ms. White's reply
[37] Ms. White advises that she takes issue with certain statements made by Air Canada, including that her June 2006 claim was paid by the carrier as a gesture of goodwill. Ms. White explains that she has had three walkers since 1997, and none have been purchased or repaired by AIM Services. Further, Ms. White submits that she had an opportunity to speak to an AIM Services representative, who indicated that she had not advised that Ms. White's walker was ten years old.
[38] Ms. White asserts that Air Canada destroyed her walker in 2004 and that the walker involved in the June 2006 claim was the one provided by the carrier in 2004. She points out that failure to properly store her mobility aid and a total disregard for its importance in her daily life were undue obstacles, and that Air Canada should examine the extent to which its policies are followed rather than discredit her claim.
Air Canada's additional submission
[39] In reply, Air Canada submits that it has never alleged that any of Ms. White's walkers were purchased through AIM Services, simply that Air Canada had paid her claim after AIM Services' assessment and further to an invoice for a replacement walker provided by Ms. White. As for the statement by the AIM Services' representative to Ms. White concerning the age of the walker, Air Canada filed the statement of an Air Canada Baggage Claims agent concerning the claim. In the statement, the agent confirms that she inscribed the following handwritten comments on the claim form "repaired previously - 20 years" after a conversation with a representative from AIM Services who indicated that the walker was very old, "at least 20 years old", and that the walker had been previously repaired.
ANALYSIS AND FINDINGS
[40] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
[41] An application must be filed by a person with a disability or on behalf of a person with a disability. Ms. White uses a cane for short distances and a walker for longer distances. As such, Ms. White is a person with a disability for the purpose of applying the accessibility provisions of the CTA.
[42] 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
[43] The word "obstacle" is usually understood to mean something that impedes progress or achievement. As the word "obstacle" is not defined in the CTA, it must be read in its immediate legislative context which is, for the purposes of Part V of the CTA, the mobility of persons with disabilities, such mobility being achieved by having proper access to federal transportation services. In this way, the obstacle must be directly related to a person's disability such that an issue cannot be considered to be an obstacle simply because it is experienced by a person with a disability.
[44] 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 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 may find obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience call into question whether the person had proper access to effective transportation services.
The case at hand
The treatment of and damage to Ms. White's walker
[45] Ms. White uses her walker for longer distances and her walker was carried as checked baggage when she travelled from St. John's to Winnipeg on June 8, 2006. Although Ms. White noticed that her walker "seemed different" when it was returned to her on arrival in Winnipeg on June 8, 2006, she did not report this matter to Air Canada prior to leaving the airport. Rather, she reported damage to her walker three days later, on June 11, 2006, when, as she maintained, the walker"gave way" on one side and she also noticed a crack in the main frame after her first extended walk since her arrival at destination. Ms. White assumes that Air Canada damaged her walker on her June 8, 2006 outbound flights and that the frame continued to bend over the course of her first three days in Winnipeg, to finally crack completely. Air Canada submitted that Ms. White has failed to demonstrate that the mobility aid was broken as a result of carriage or handling by Air Canada on June 8.
[46] Although Ms. White and Air Canada do not agree on certain points concerning the claim in question, i.e., the age of the walker and previous damage to it, the Agency notes that the fact that damage to the walker was not reported until June 11, 2006, three days after its carriage by Air Canada, is not contested. Moreover, the evidence does not support Ms. White's allegation that her walker was damaged during its transportation with Air Canada on June 8, 2006. The Agency cannot therefore conclude that the walker was damaged while in the care of Air Canada.
[47] In considering the evidence and approaching the burden of proof, it is the responsibility of the applicant to provide sufficient evidence to support her claim, thereby outweighing the evidence of the respondent; otherwise the applicant fails to meet the burden of proof. The Agency is of the opinion that Ms. White has not discharged the burden of proof that damage occurred while her walker was in the care of Air Canada as set out above.
[48] The Agency finds that Ms. White failed to demonstrate that Air Canada was responsible for the damage to her walker and therefore that the treatment of and damage to her walker was an obstacle to her mobility.
The level of wheelchair assistance at the Toronto airport
[49] Although Galaxy Travel Inc. did not provide Air Canada with any information regarding Ms. White's disability or her need for wheelchair assistance, and Ms. White's reservation record does not indicate a need for such assistance, it is not contested that, at some point, Ms. White requested a wheelchair for her connection in Toronto on June 11, 2006.
[50] Ms. White raised concerns about having to wait for the wheelchair assistance at the end of the bridge. The Agency notes, however, that Ms. White chose to not stand for any length of time and, as a result, and as her children were impatient to reach the terminal, she decided to make her way on her own. When Ms. White reached the top of the bridge, the Air Canada agent who had the wheelchair was speaking to another passenger. According to Air Canada, the other passenger had asked a question of the agent who was about to bring the wheelchair to Ms. White. The Agency notes Air Canada's submission that service was provided to Ms. White in a timely fashion, to which Ms. White did not respond. In light of the foregoing, the Agency accepts that Air Canada was in a position to provide Ms. White with the wheelchair service in a timely fashion.
[51] In light of the above, the Agency finds that the level of wheelchair assistance provided to Ms. White during her connection at the Toronto airport on her return flights did not constitute an obstacle to her mobility.
Changes in reservations
[52] As set out above, the evidence does not support that the damage to Ms. White's walker is attributable to Air Canada, nor does it demonstrate that the alleged lack of accommodation on earlier Air Canada flights had a negative impact on Ms. White upon her return to St. John's. The Agency finds that had Air Canada made a change to Ms. White's reservation at no additional cost, she would still have had to deal with luggage and children on her arrival at the St. John's airport. Further, had Air Canada made the mentioned change in her reservation, i.e., for a 00:03 a.m. arrival instead of 03:25 a.m. at St. John's airport on June 12, 2006, there is no evidence that the availability of services and people, including family members, would have been different and would have minimized the impact on Ms. White. Furthermore, the Agency notes that Ms. White was offered assistance by agents on her arrival at the St. John's airport.
[53] The Agency therefore finds that Ms. White failed to demonstrate that Air Canada's refusal to change her reservation to an earlier return flight at no additional cost was an obstacle to her mobility.
COMPENSATION
[54] 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. The Agency cannot however award damages for pain or suffering.
CONCLUSION
[55] In light of the above, the Agency has determined that the treatment of and damage to Ms. White's walker, the level of wheelchair assistance provided to her during her connection at the Toronto airport on her return flights, and Air Canada's refusal to change her reservation to an earlier return flight at no additional cost, did not constitute obstacles to Ms. White's mobility.
[56] Accordingly, the Agency contemplates no further action in this matter.
Members
- Guy Delisle
- Baljinder Gill
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