Decision No. 671-AT-A-2002

December 17, 2002

File No. U3570/01-19

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Application

On January 24, 2001, Arleen Reinsborough filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. The Agency also received on that day a copy of a complaint that Mrs. Reinsborough had forwarded electronically to Transport Canada regarding her January 23, 2001 flight, which included copies of her correspondence previously provided to Air Canada Customer Relations regarding her need for accommodation and the difficulties that she had experienced in the past with the seating accommodation provided to her by Air Canada.

The Agency, by Decision No. LET-AT-A-93-2001 dated February 26, 2001, informed the parties that Mrs. Reinsborough's application raised similar issues to those already before the Agency in its consideration of another application, filed by Linda McKay-Panos against Air Canada. The Agency noted that, in the case of Ms. McKay-Panos, the Agency had already announced its intention to hold an oral hearing later that year to hear expert evidence to enable it to determine the preliminary jurisdictional issue of whether obesity is a disability for the purposes of the accessible transportation provisions contained in Part V of the Canada Transportation Act (hereinafter the CTA). In view of this, the Agency determined that its investigation of Mrs. Reinsborough's application would be stayed and the commencement of pleadings in her case would be deferred until the Agency rendered its decision on the preliminary jurisdictional issue in the case of Ms. McKay-Panos.

By letter dated February 28, 2001, Air Canada agreed to an indefinite extension of the statutory deadline and indicated that it believed that the flight in question took place on January 24, 2001.

By letter dated March 1, 2001, Mrs. Reinsborough confirmed that the flight took place on January 23, 2001 and provided additional information concerning her medical condition.

On May 4, 2001, the Agency issued Decision No. LET-AT-A-223-2001, in which it confirmed its intention to proceed with the case of Ms. McKay-Panos and stay the proceedings in Mrs. Reinsborough's case pending its decision on the preliminary jurisdictional issue.

On May 8, 2001, Mrs. Reinsborough submitted further comments regarding her medical condition.

Following the oral hearing held in Calgary, Alberta from September 24 to 27 and October 1 to 3, 2001 in the application of Linda McKay-Panos, the Agency issued Decision No. 646-AT-A-2001, on the preliminary jurisdictional issue of whether obesity is a disability for the purposes of the accessible transportation provisions of the CTA, on December 12, 2001 (hereinafter the Calgary Decision). In the Calgary Decision, the Agency, after analyzing the expert evidence heard and tested during the hearing, concluded that obesity, per se, is not a disability for the purposes of Part V of the CTA but that there may be persons who are obese who may have a disability for the same purposes because of their obesity. The Agency also indicated that it would therefore proceed on a case-by-case basis to decide whether a person who is obese is also a person with a disability for the purposes of the accessible transportation provisions of the CTA.

In accordance with the Calgary Decision, the Agency, by Decision No. LET-AT-A-488-2001 dated December 18, 2001, opened pleadings to assess whether Mrs. Reinsborough has a disability for the purposes of the accessible transportation provisions of the CTA. The Agency indicated at that time that if it then determined that she has a disability for the purposes of Part V of the CTA, it would commence pleadings in respect of whether she encountered an obstacle to her mobility and, if so, whether this obstacle was undue.

On February 1, 2002, Mrs. Reinsborough filed her submission with the Agency and the Agency accepted the late filing by Decision No. LET-AT-A-55-2002 on February 20, 2002.

On March 22, 2002, Air Canada filed its answer to both the original application and the submission filed by Mrs. Reinsborough on February 1, 2002. Mrs. Reinsborough filed her reply to the carrier's answer on April 4, 2002, which included medical reports regarding her condition.

By letter dated May 10, 2002, Air Canada sought the permission of the Agency to file a rebuttal to Mrs. Reinsborough's reply, which was granted by the Agency on May 14, 2002 by Decision No. LET-AT-A-147-2002.

On May 15, 2002, Air Canada filed its rebuttal, addressing the issues of disability, obstacle and undueness. Mrs. Reinsborough filed comments on Air Canada's rebuttal on May 21, 2002.

Preliminary issue

The Agency, in Decision No. LET-AT-A-488-2001, expressed its intention to open pleadings and make a determination on the issue of disability before it commenced pleadings on the original application. However, upon reviewing the pleadings filed by the parties in response to the Agency Decision No. LET-AT-A-488-2001 and, in particular, Air Canada's submission of March 22, 2002,wherein it claims to be responding to both Mrs. Reinsborough's complaint and Mrs. Reinsborough's subsequent submission on the issue of disability, and Air Canada's submission of May 15, 2002, wherein it specifically addresses the issues of obstacle and undueness, the Agency is of the view that the parties have filed substantive pleadings on both the issue of disability and the matters raised in Mrs. Reinsborough's original application. As such, the Agency is of the view that to open pleadings into the original application is now unnecessary and, accordingly, the Agency will proceed to consider Mrs. Reinsborough's application in its entirety at this time.

Issues

The issues to be addressed are whether Mrs. Reinsborough has a disability for the purposes of Part V of the CTA and, if so, whether she encountered an undue obstacle to her mobility.

Facts

Mrs. Reinsborough has osteo-arthritis throughout her spine, in both knees and elbows, as well as torn ligaments in her left knee. She has plantars fasciitis and spurs in both feet. In addition, she has ulcerative colitis and several other medical conditions, including chronic lower back pain from a degenerative disc disease and level 3 whiplash from a 1999 car accident. On March 29, 2000, she began taking a steroid, which she continued to take until and after January 23, 2001. One of the side effects of taking the steroid is weight gain, and Mrs. Reinsborough gained over 100 pounds in less than a year after she began to take this steroid. One of her doctors noted in a report dated July 25, 2000 that her colitis was being treated intermittently with steroids and that she is "grossly overweight".

Furthermore, Mrs. Reinsborough has a disabled parking permit from the Ministry of Transportation of the Province of Ontario based on her osteo-arthritis. She requires a neck brace when in moving vehicles and she uses a cane or a wheelchair for mobility.

Mrs. Reinsborough's husband made reservations directly with Air Canada for the couple to travel from Toronto, Ontario to St. John's, Newfoundland on Flight No. 630 on January 22, 2001. He requested and received bulkhead seating for the flight.

The flight was delayed by one day due to adverse weather conditions. On January 23, 2001, Mrs. Reinsborough realized, once she was on board the aircraft, that her seat was the centre seat in a row of three seats and that she could not fit in the seat without great discomfort to herself as well as to the passengers seated beside her. She requested to be moved either to two economy seats with a liftable armrest between them or to a business class seat. She was eventually moved to a business class seat for the flight.

Positions of the parties

Arleen Reinsborough

1. Disability

Although Mrs. Reinsborough believes that being obese, in itself, is a serious disability in many areas, including air travel, she also emphasizes that she was disabled before she became morbidly obese as a result of being required to take steroids for one of her medical conditions. She indicates that she gained over 100 pounds soon after starting to take a steroid in March 2000 and, after discontinuing the steroid use in October 2001, she lost 80 pounds (as of May 21, 2002). She indicates that she can now fit into an economy class seat; however, she will likely be required to resume steroid use in the future as her condition is chronic and, as a result, she will likely gain a similar amount of weight.

2. Obstacle

Mrs. Reinsborough submits that her husband made their reservations for travel directly with Air Canada, by telephone and in her presence. She indicates that he advised Air Canada of her disabilities and of her weight, and that he specifically advised the reservation agent that she had recently had difficulty fitting into an aircraft seat and wanted to avoid having that problem again. Mrs. Reinsborough states that the reservation agent suggested that she purchase two seats, but, in the end, they requested and received reservations for seats in the bulkhead seat row.

Mrs. Reinsborough explains that, on January 23, 2001, she boarded the flight and noted that the seat assigned to her in economy class was located in the middle of a row of three seats with a passenger seated on either side of her. Mrs. Reinsborough asserts that she did not fit into this seat and that she had to be pushed into the seat by three people; the person sitting next to her complained that Mrs. Reinsborough was taking her space, even with her arms crossed; the seat belt would not fasten even with an extension; and she had to be pushed out of the seat by two people. Mrs. Reinsborough submits that her legs hurt and that, as a result, she requested to be seated in the business class. A discussion then followed which caused the flight to be delayed by eight minutes. Mrs. Reinsborough states that other passengers refused to move to provide her with two seats with liftable armrests between them at the front of the aircraft. Mrs. Reinsborough advises that she is unable to sit at the rear of the aircraft due to a fear of travelling by air.

Mrs. Reinsborough submits that she was eventually provided with a seat in the business class section for the flight. She indicates, however, that she was treated very badly by the flight crew. She states that she was intimidated, embarrassed, treated rudely and made tearful by the experience. Mrs. Reinsborough advises that she was required by a flight attendant to sign a document stating that she was the cause of the late departure of the flight.

Mrs. Reinsborough states that once she advised a flight attendant of her many medical problems, the attendant was more sympathetic and understanding. In this regard, Mrs. Reinsborough indicates that she felt that her privacy had been invaded by having to detail all of her medical conditions to the crew in order to be treated with dignity.

Mrs. Reinsborough submits that she had previously complained to Air Canada about the same problem in 2000 and that she had received a response from Air Canada Customer Relations indicating that she could request and receive seating in the business class section if it is not full. Mrs. Reinsborough advises that she later lost this letter and that she tried to obtain a copy of it, or a replacement letter, from Air Canada in order to request seating in the business class section for her trip of January 23, 2001, but she received no response from Air Canada.

Air Canada

1. Disability

In its original answer filed on March 22, 2002, Air Canada argues that the Agency should be guided by its mandate found in section 170 of the CTA and that Mrs. Reinsborough failed to establish that she is a person with a disability for the purposes of Part V of the CTA. The carrier states that she had not provided medical documentation attesting that she has osteo-arthritis or that she was taking a steroid and at what frequency.

Further, Air Canada argues that the Agency cannot focus on the obstacle when assessing whether Mrs. Reinsborough has a disability nor can it consider Air Canada's fare structure at this stage as these elements are only relevant to the undueness analysis. Air Canada maintains that, if the Agency were to accept this approach, it would render nugatory the requirement of a disability in section 170 of the CTA.

However, in its rebuttal filed on May 15, 2002, Air Canada indicates that after considering the information provided by Mrs. Reinsborough with her reply of April 4, 2002, it "is prepared to admit that Mrs. Reinsborough had a disability in regards to her mobility caused by osteo-arthritis and her oedema in both legs."

2. Obstacle

Air Canada submits that when an obese person or someone of unusual stature meets an obstacle to his/her mobility in the transportation network, he/she does not become disabled and that, at best, that person has met an obstacle. Air Canada is prepared to admit that Mrs. Reinsborough "probably was uncomfortable in the economy class seat and absolutely needed a seatbelt extension.". Air Canada indicates that its records reflect that she did not request a seatbelt extension and, in fact, refused to use one. Air Canada adds that, according to its records, the economy class section was full and, as such, it could not reassign another seat in that section that would be adjacent to an empty seat. Air Canada states that, as a gesture of good will, Mrs. Reinsborough was offered a seat in the executive class section because one was available.

Analysis and findings

In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

An application must be filed by a person with a disability or on behalf of a person with a disability. Based on the evidence presented by Mrs. Reinsborough regarding her medical condition, the Agency is of the view that she is clearly a person with a disability for the purpose of applying the accessibility provisions of the CTA. The Agency notes that Air Canada has admitted that Mrs. Reinsborough has a disability. The Agency recognizes, however, that Air Canada's admission is specifically limited to her mobility impairment arising from two of her medical conditions, namely osteo-arthritis and oedema in her legs.

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

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 federally-regulated 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.

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 present case

While the Agency notes that Mrs. Reinsborough may have experienced some discomfort in her originally assigned seat, the Agency also notes that, in her case, Air Canada accommodated Mrs. Reinsborough's needs by permitting her to sit in an available business class seat at no additional charge. Thus, Air Canada ultimately took appropriate steps to meet Mrs. Reinsborough's needs. Therefore, the Agency finds that Mrs. Reinsborough's experience did not constitute an obstacle to her mobility.

Dissenting opinion of Gilles Dufault, member

I have carefully considered all of the evidence on this file and have read the decision of the majority in this case.

I concur with the members in their conclusion that Mrs. Reinsborough has a disability for the purposes of Part V of the CTA; however, (as I stated in my recent dissenting opinion in the application of Linda McKay-Panos - Decision No. 567-AT-A-2002, or as has been recognized by the Agency in the past) obesity is not an obvious disability. As such, I can only come to the conclusion that Mrs. Reinsborough has a disability for the purposes of Part V of the CTA after using the model of disability analysis contained in the World Health Organization's International Classification of Functioning, Disability and Health (hereinafter the ICF) in my consideration of Mrs. Reinsborough's case.

It should be noted that, while Mrs. Reinsborough has many health conditions and problems that could lead to her being viewed as a person with a disability, her complaint is with respect to her inability to use the seat that she was assigned on board an aircraft as a result of her obesity. As such, there needs to be a determination in her case that her obesity is a disability for the purposes of Part V of the CTA and, for this reason, Air Canada's admission that Mrs. Reinsborough is a person with a disability for limited purposes is of no assistance.

Finally, I cannot agree with the decision of the majority that Mrs. Reinsborough did not encounter an obstacle to her mobility.

1. Disability

On December 12, 2001, in the case of Ms. McKay-Panos, the Agency issued Decision No. 646-AT-A-2001 (hereinafter the Calgary Decision) on the preliminary question of whether obesity is a disability. The Agency issued this decision after hearing extensive expert evidence on the subject and the Calgary Decision set out a number of findings based on the ICF model of disability analysis that, in effect, provide a test for making a determination whether a person who is obese has a disability for the purposes of Part V of the CTA.

As I stated in my dissenting opinion in the application of Linda McKay-Panos, I am of the opinion that the ICF model provides a useful, appropriate and important analytical framework for the Agency, where we must assess whether or not physical conditions which are not obvious disabilities, such as obesity, are disabilities for the purposes of Part V of the CTA. I refer the reader to both Decision Nos. 646-AT-A-2001 and 567-AT-A-2002 for a fuller discussion of the analytical framework.

Consistent with my dissenting opinion in the case of Ms. McKay-Panos, I will take each aspect of the test set out in the Calgary Decision and apply it to the case of Mrs. Reinsborough.

(i) there must be an impairment in order to find that there is a disability for the purposes of Part V of the CTA;

The ICF, which the Agency, in the Calgary Decision, recognized could be useful in the analysis of disability issues, offers the following definitions:

...impairments are problems in body functions or structures such as a significant deviation or loss. The body being the human organism as a whole including the brain and its functions, body functions being the physiological functions of the body systems (including psychological functions) and body structures being anatomical parts of the body such as anatomical, limbs and their components.... Impairment represents a deviation from certain generally accepted population standards in the bio-medical stature of the body and its functions.(ICIDH, page 10).

In the ICF, weight problems are considered to be a body function and are classified under "Functions of the digestive, metabolic and endocrine systems." Under classification No. b530 "Weight maintenance functions", the ICF includes functions of maintenance of acceptable BMI [body mass index], impairment such as underweight, cachaxia, wasting, overweight, emaciation and such as in primary and secondary obesity." (ICIDH, page 63) Thus, according to the ICF, obese persons have an impairment.

Mrs. Reinsborough has a number of serious medical conditions and asserts that, as a result of taking a steroid, she gained over 100 pounds in one year. She filed a letter signed by her physician in July of 2000 confirming that she was "grossly overweight". Air Canada did not contradict this evidence.

The evidence heard by the Agency at the Calgary hearing clearly supports the assertion that gross overweight, or morbid obesity, results in a high level of functional difficulties. In the language of the ICF, it "represents a deviation from certain generally accepted population standards in the bio-medical stature of the body and its functions."

On the basis of this, I accept that Mrs. Reinsborough has an impairment.

(ii) impairment, alone, is insufficient to support the conclusion that obesity is a disability for the purposes of Part V of the CTA;

In view of my conclusion under (i) above, I will now consider the next steps of the analysis.

(iii) in order to find that an obese person is disabled for the purposes of the CTA, it is necessary to find that the person experiences activity limitations and/or participation restrictions in the context of the federal transportation network; and,

(iv) fact-based evidence of the presence of activity limitations and/or participation restrictions is necessary to support a conclusion that a person who is obese is a person with a disability.

The ICF defines activity limitations as difficulties an individual may have in executing activities as a result of an impairment, as assessed against a generally accepted population standard. The standard or norm against which an individual capacity or performance is compared is that of an individual without a similar health condition. The ICF makes it clear that disability analysis must consider the purpose that one has in mind and in accepting to use the model as a guide, one has to look at the activities of the individual.

Under the ICF, participation restrictions are problems an individual may experience in life situations as a result of activity limitations. The purpose of participation restrictions is to assess how activity limitations affect the capacity of an individual to participate in real life situations. As with activity limitations, the ICF assesses participation restrictions against a generally accepted population standard. In this way, if an individual, because of his/her activity limitations, experiences difficulties in travelling that the average person does not, it can be said that this individual experiences participation restrictions.

In air travel, a traveller buys a ticket to travel from point A to point B and that ticket entitles him or her to occupy a seat and access all of the features and amenities that go with it. An aircraft seat is the environment within which the passenger lives for the duration of the flight and the seat has been designed and constructed for that purpose. Because of the limited space on an aircraft and the air safety regulations requiring a passenger to sit in their seat with the seat belt fastened in prescribed circumstances, all of the activities and the well-being of the passenger are centred around the seat that the passenger is occupying.

Sitting in the seat and accessing the built-in features or amenities are the essential activities of an airline passenger during most of the trip and, consequently, the seat must be considered in relation to its design and the amenities it offers to the average passenger. The seats on aircraft such as the one on board which Mrs. Reinsborough travelled on January 23, 2001 have been designed so that the average passenger can perform the following functions:

1. Transfer to and from the seat easily for safety purposes;
2. Sit in the seat without experiencing discomfort or pain;
3. Plug in earphones and/or a computer;
4. Use the seat reclining device;
5. Use the chair table in order to read, write and/or eat;
6. Meet the safety regulations on board the aircraft which demand that passengers be seated and have their seat belt fastened under prescribed circumstances.

The test to determine whether a passenger with an impairment has experienced an activity limitation is therefore to find if the passenger can perform the above-mentioned functions. The evidence of Mrs. Reinsborough on the difficulties she experienced when using her assigned seat leads me to conclude that she could not perform most of the above enumerated functions. She could not use this aircraft seat like the average person for whom the seat is designed and she therefore experienced activity limitations.

Furthermore, the impact of these difficulties on the ability of Mrs. Reinsborough to travel are significant. She was unable to complete the flight in her assigned seat and, thus, she experienced participation restrictions as well.

Finding

For the above reasons, I conclude that Mrs. Reinsborough is an obese person with a disability for the purposes of Part V of the CTA

2. Obstacle

In my view, there are three issues to be examined:

1. the seat assignment provided to Mrs. Reinsborough;
2. the manner in which she was treated by Air Canada staff; and,
3. Air Canada's policy on the provision of additional seating space for passengers who require that space to accommodate a disability.

Mrs. Reinsborough's uncontroverted evidence was that she has had problems in the past fitting into an economy class seat on board aircraft. She filed with the Agency copies of her previous correspondence to Air Canada as evidence of her previous complaints.

As a result of her previous experiences on flights, Mrs. Reinsborough's husband identified the fact that she is obese when he made their reservations with Air Canada in an attempt to obtain seating that would accommodate her need for additional space and to avoid the embarrassment that had been caused to his wife in the past due to seating assignments that did not meet her needs. However, despite having a conversation with the reservation agent about his wife's needs, the couple was assigned bulkhead seating which, while providing more space in front of the seat for leg room, did not provide a more spacious seat than that provided in respect of other economy class seats. Furthermore, Mrs. Reinsborough was assigned a middle seat in a row of three seats and, as the economy class section of the flight was full, there were other passengers assigned to the seats on either side of her.

This seat clearly did not meet Mrs. Reinsborough's needs. The assistance of others was required to push Mrs. Reinsborough into and out of the seat. For the brief time that she was seated in the seat, she experienced pain in her legs and the passenger seated beside her complained about the extent to which Mrs. Reinsborough encroached on the passenger's own space. Mrs. Reinsborough found the entire experience to be embarrassing and humiliating. Based on this, I have no difficulty finding that the seat assigned to Mrs. Reinsborough constituted an obstacle to her mobility.

However, I recognize that Air Canada mitigated the problem by moving Mrs. Reinsborough to a seat in the business class section that did meet her needs. In light of this, I am of the view that the obstacle created by the seat assignment was not undue in this case. Having said this, I understand that this accommodation was only made at the very last minute and was only possible because there was a seat available in the business class section. As such, it does not provide Mrs. Reinsborough with any certainty that her travel arrangements will meet her needs and it has limited value as a solution to her problem on an ongoing basis.

Mrs. Reinsborough's discomfort was compounded by the insensitivity of Air Canada's flight crew to her situation. In addition to the embarrassment already caused to Mrs. Reinsborough when she attempted to sit in her assigned seat, including being the subject of a complaint by another passenger, Mrs. Reinsborough was not settled quickly in another, more appropriate seat; rather, a lengthy discussion ensued between Mrs. Reinsborough and members of the flight crew which apparently played a role in the delayed departure of the flight by eight minutes. Furthermore, despite the fact that it was later revealed that other factors contributed to the delayed departure, a flight attendant openly blamed the delay on Mrs. Reinsborough and required Mrs. Reinsborough to sign a document apparently acknowledging her role in the delayed departure. Mrs. Reinsborough acknowledged that the flight attendant treated her with more sympathy later during the flight, but only after Mrs. Reinsborough had divulged all of her medical information to the flight attendant. Air Canada did not specifically address the issue of how Mrs. Reinsborough was treated by the flight crew.

Undoubtedly it can be difficult for a flight crew to address last minute seating issues on board the aircraft; however, until such time as she revealed her other disabilities to the flight attendant, she was treated poorly as a result of her obesity. When she informed the flight attendant of her other medical conditions, the attitude of the flight crew changed; however, I accept Mrs. Reinsborough's assertion that she was humiliated and embarrassed when she was perceived simply as an obese person. In my view, this constituted an obstacle to her mobility. Furthermore, I am of the view that this obstacle was undue as it could easily have been avoided with more sensitivity and courtesy on the part of the flight crew.

Finally, I consider Air Canada's policy of imposing higher fares to accommodate passengers who require additional seating space due to their obesity to be relevant to this investigation as its application prevented Mrs. Reinsborough from getting the seating accommodation that she required at the time that her reservations were made.

Mrs. Reinsborough indicates that her husband was advised that she could purchase two seats to accommodate her needs; however, Mrs. Reinsborough states that she did not pursue this because she is of the view that the cost to purchase two seats is an unreasonable price to pay to accommodate her needs.

Contrary to the information that Mrs. Reinsborough's husband was provided with by the Air Canada reservation agent, Air Canada submits that its policy would have allowed Mrs. Reinsborough to purchase two seats at the cost of one-and-a-half fares at the time of booking.

In 1993, in the case of an application by Maureen Buchholz against Air Canada, a full panel of the National Transportation Agency, one of the Agency's predecessors, determined that persons with disabilities should be entitled to travel without paying a financial penalty arising from the accommodation of their disabilities. In that case, the panel applied the principle of "one-person, one-fare" in requiring Air Canada to permit a person with a disability who required three seats to pay one fare for their travel. In accordance with this principle, the fact that Mrs. Reinsborough would be required to pay one-and-a-half times the fare in order to obtain seating that would accommodate her needs would be, on the face of it, an obstacle to her mobility.

However, I am unable to perform the balancing that would be required to assess whether this obstacle constitutes an undue obstacle to her mobility based on the evidence on file.

Conclusion

For the above reasons, I conclude that Mrs. Reinsborough is a person with a disability for the purposes of Part V of the CTA who has experienced three obstacles to her mobility in the case presently before the Agency: the seating assignment provided, the manner in which she was treated by Air Canada staff, and the policy of Air Canada which would require her to pay one-and-a-half fares for seating which would accommodate her needs. Furthermore, while I also conclude that the obstacle posed by the manner in which she was treated by staff was undue, I find that the seat assignment was not undue and I am unable to make an undueness determination with respect to Air Canada's policy as I do not have sufficient evidence to do so. Accordingly, I would have sought further evidence from Air Canada in order to consider the remaining issue of whether the policy was undue.

Member

• Gilles Dufault