Decision No. 675-AT-A-1999

December 2, 1999

Follow-up - Decision No. 639-AT-A-2000

December 2, 1999

APPLICATION by Anna McLeod pursuant to subsections 172(1) and (3) of the Canada Transportation Act, S.C., 1996, c. 10, regarding the reassignment of seats and level of boarding assistance provided on a flight operated by Royal Aviation Inc. from Puerto Vallarta, Mexico to Vancouver, British Columbia on March 6, 1999.

File No. U 3570/99-33


APPLICATION

On July 15, 1999, Anna McLeod filed an application with the Canadian Transportation Agency (hereinafter the Agency) with respect to the matter set out in the title.

Royal Aviation Inc. (hereinafter Royal) filed its answer on August 4, 1999, and Mrs. McLeod filed her reply on August 25, 1999. Agency staff subsequently requested further clarification from Royal and the requested information was submitted on September 24, 1999. On October 6, 1999, Mrs. McLeod provided her comments.

Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the statutory deadline until December 3, 1999.

ISSUES

The issues to be addressed are whether the reassignment of seats and the level of boarding assistance provided by Royal constituted undue obstacles to Mrs. McLeod's mobility and, if so, what corrective measures should be taken.

FACTS

Mrs. McLeod uses a wheelchair and requires boarding assistance when travelling. On February 20 and March 6, 1999, Mrs. McLeod, accompanied by her husband and her care nurse, travelled with Royal between Vancouver, British Columbia, and Puerto Vallarta, Mexico. At the time of booking, Mrs. McLeod advised her travel agent that she would be travelling with a manual wheelchair, and she requested and paid for advance seat selection.

The flight from Vancouver on February 20 was operated with a B757/200 aircraft and the passengers were preassigned seats A, B and C in row 14, a row where the aisle seat is equipped with a liftable armrest. The flight from Puerto Vallarta on March 6 was operated with an Airbus 310/300. The passengers were preassigned seats in row 13, an emergency exit row. The Canadian Aviation Regulations, SOR/96-433 (hereinafter the Aviation Regulations) prohibit persons with disabilities from sitting in emergency exit row seats and, when the error in seat assignment was noticed by the carrier's personnel during a preflight check in Puerto Vallarta, the passengers were reassigned seats D, E and F in row 11, a row where the aisle seat is also equipped with a liftable armrest.

The return flight was delayed for nearly eight hours due to technical reasons. Mrs. McLeod requested a room at the hotel to rest as she would be unable to remain in her wheelchair for that additional length of time.

At the time of departure from Puerto Vallarta, Royal did not have access to gate facilities and all passengers had to board the aircraft with a stair ramp. As the only aircraft boarding chair at the airport was unavailable, Mrs. McLeod was lifted up the stairs to the aircraft door in her personal wheelchair and was then manually carried by personnel to her assigned seat by her arms and legs.

Royal later reimbursed Mrs. McLeod for the advance seat selection charges and the cost of the hotel accommodation required during the delay. Additionally, Royal offered $300 in credit vouchers as a gesture of goodwill and as compensation for the inconvenience caused by the delay.

As a result of the incidents described above, Mrs. McLeod is seeking financial compensation for the discomfort and humiliation she suffered as a result of her experience, and assurance that she and persons in a similar condition will not receive the same treatment in the future.

POSITIONS OF THE PARTIES

Mrs. McLeod submits that, although she now understands that the seat reassignment from row 13 to row 11 on the Airbus 310/300 from Puerto Vallarta was required for safety reasons, when she checked in at Puerto Vallarta, she was advised that her seats had been assigned to other passengers. Mrs. McLeod states that when she made her reservations, she had specified that she uses a wheelchair and that she wanted seats closest to the entrance of the aircraft. She submits that the travel agent should have informed her that the prereserved seats were in an exit row.

With respect to boarding, Mrs. McLeod submits that she should have been informed that a stair ramp would be used in Puerto Vallarta. She qualifies the experience of being carried up the stair ramp as "very scary" and adds that her husband assisted in carrying her up the stairs to the aircraft as the ground handlers did not seem to know how to handle the situation.

Mrs. McLeod questions the training received by the carrier's personnel with respect to passenger transfer techniques. She submits that her main concern was that there was no aisle chair onboard the aircraft to get her to her seat. In her opinion, being carried by her hands and legs is not a proper technique and the experience was "utterly disgusting and humiliating."

On the issue of the seat reassignment at Puerto Vallarta, Royal states that during a preflight check, its personnel noticed that Mrs. McLeod and her party had been inadvertently assigned seats 13A, B and H. Because of her disability, she should not have been assigned seats in that row as it is an exit row. Therefore, the passengers' seats were reassigned. Royal states that the change was made to correct a human error and to comply with safety regulations.

Royal explains that in Puerto Vallarta, gate positions are limited and are generally used by the scheduled carriers. Royal's aircraft are parked on the tarmac and passengers are boarded using aircraft stairs. It submits that immobile passengers are preboarded; the gate agent takes the passenger in his or her wheelchair to the aircraft; the passenger is transferred to a boarding chair by two ramp agents under the supervision of the gate agent; and the person is then taken to his or her assigned seat. The passenger wheelchair is then removed to the cargo section.

Royal submits that its ground handling services are provided at Puerto Vallarta by R.T.R. Servicios de Mexico S.A. de C.V. (hereinafter R.T.R.). The ground handler indicates that the request for wheelchair assistance had been received and conveyed to S.E.A.T, a contractor who provides services for R.T.R. at the airport. Royal adds that at the time of the departure for Vancouver, the only boarding chair at this airport was unavailable. As a result of this incident, R.T.R. submits that it has communicated with S.E.A.T., urging them to get new equipment or at least keep R.T.R. better informed of problems with availability of equipment.

Royal indicates that all of its Airbus aircraft are equipped with an onboard chair. However, the onboard chair had been removed from the aircraft used on this flight as it was found to be in need of repair during the preflight check. Royal reiterates, however, that the passenger was preboarded by crew members who are fully trained in this lifting technique and that the manual lifting was not witnessed by the majority of other passengers.

Additionally, Royal submits that its flight crews and its ground handlers are sensitive to the needs of passengers and that Mrs. McLeod was at all times treated with courtesy and respect by its staff. With respect to Mrs. McLeod's husband assisting with the lifting, Royal adds that "we cannot stop family members if they choose to intervene in this process."

ANALYSIS AND FINDINGS

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

With respect to the reassignment of seats in Puerto Vallarta, the Agency is of the opinion that the reassignment was required to conform with the Aviation Regulations which prohibit passengers with disabilities from sitting in emergency exit row seats. The Agency notes that Royal's personnel took appropriate corrective measures and reassigned a seat with a liftable armrest. In light of these measures, the Agency finds that the seat reassignment did not constitute an undue obstacle to Mrs. McLeod's mobility. The Agency recognizes the frustration that may result from not occupying seats which had been reserved in advance, particularly when passengers' expectations of occupying those seats have been heightened by the requirement to pay for the preselection, but safety must take precedence over this type of consumer concern.

The Agency is concerned, however, with the apparent lack of knowledge of the carrier's reservation personnel of aircraft configurations and the appropriate seating for passengers who use wheelchairs, including safety rules and regulations. The Agency notes that the seating configuration charts submitted by the carrier clearly identify the seats in row 13 on the A-310/300 aircraft as exit seats which "must not be assigned to incapacitated or handicapped passengers...". Furthermore, the Agency is of the view that check-in personnel should have taken the time to explain to the passenger why the seats were being reassigned.

In this respect, the Agency is of the opinion that Royal should issue a bulletin to its check-in personnel and its reservation agents, reminding them of the importance of communicating with passengers with disabilities and of determining what seating arrangements onboard the carrier's aircraft would best meet their needs.

With respect to the level of boarding assistance provided, the Agency notes Royal's submission that gate facilities at Puerto Vallarta are limited and are not usually provided for charter flights. The Agency is of the view that this emphasizes the responsibility that Royal has to ensure that the ground handlers contracted to provide its enplaning and deplaning assistance at this airport have the proper training and equipment necessary to carry out this function safely and appropriately.

In this case, the Agency is of the opinion that had a boarding (Washington-type) chair been available at the airport, it could have been used to carry Mrs. McLeod safely and appropriately from the ground, up the aircraft stairs and to her seat. The Agency finds that the lack of a boarding chair for enplaning Mrs. McLeod constituted an obstacle to her mobility as it resulted in her having to be manually carried to her aircraft seat. While manual lifting can be performed safely using appropriate techniques, it is an undignified means of transferring a person and should only be used in very limited circumstances where absolutely necessary, such as very small aircraft with no boarding equipment. The Agency is of the opinion that it is unacceptable that a carrier such as Royal using large aircraft like the A310/300 Airbus at a destination such as Puerto Vallarta must resort to manual lifting. The Agency finds the obstacle to be undue in that it could easily have been avoided had the carrier's ground handling contractor had sufficient resources at its disposal to effectively and properly provide Royal's enplaning service for passengers who cannot ascend stairs.

The Agency has reviewed Royal's procedures for boarding wheelchair passengers where there is no boarding bridge and is of the opinion that the procedures are appropriate when implemented with proper equipment. The Agency is of the opinion, however, that one boarding chair at the airport in Puerto Vallarta is not sufficient to provide an appropriate level of service in accordance with these procedures. The Agency is of the view that Royal should ensure that the contractor it uses to provide these services has more boarding chairs at its disposal to avoid similar incidents in the future and should report back to the Agency within thirty (30) days from the date of this Decision on the outcome of the consultations it has conducted with its ground handlers and the extent of the corrective measures taken.

The Agency notes Royal's submission that, as a contingency plan when no boarding chair is available, its personnel will lift the passenger in his or her personal wheelchair to the door of the aircraft, and then use the onboard chair to access the passenger seat.

The Agency is concerned with the practice of lifting a person in his or her personal wheelchair as, in general, personal wheelchairs are not designed for this type of use and this would not be practical in some circumstances, such as where a passenger's mobility aid is an electric wheelchair or a scooter. With respect to the use of the onboard chair from the door of the aircraft to the passenger seat, the Agency recognizes that some carriers do provide onboard chairs for use in-flight and while these are not generally used for boarding wheelchair passengers from the ground to the door of the aircraft, they do allow for a safe and appropriate transfer from the door of the aircraft to the passenger seat. In this case, however, the onboard chair was removed from the aircraft during a preflight check and no arrangements were made at that time for a replacement onboard chair even though personnel were aware the carrier had a passenger with a disability for the return flight. Had Royal's onboard chair been available on the date that Mrs. McLeod was travelling, it could have alleviated her situation. The Agency stresses the importance of a contingency plan being ready to implement on an "as needed" basis and it is clear that the provision of an onboard wheelchair is an important component of this contingency plan.

The Agency therefore finds the failure of Royal's contingency plan constituted an undue obstacle to Mrs. McLeod's mobility. In this respect, the Agency requires Royal to provide it with a copy of its procedures for the temporary replacement of onboard wheelchairs to ensure that such devices are available to properly implement the above-noted contingency plan.

On the issue of compensation, subsection 172(3) of the CTA provides that:

On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.

In the present case, while the Agency has determined that Mrs. McLeod was confronted with an undue obstacle, no evidence was provided during pleadings that expenses had been incurred as a direct result of that undue obstacle. The Agency does not have the jurisdiction to award damages for humiliation suffered.

CONCLUSION

Based on the above, the Agency finds that the seating reassignment on the flight from Puerto Vallarta to Vancouver did not constitute an undue obstacle to Mrs. McLeod's mobility.

The Agency does, however, find that the lack of an aircraft boarding chair for enplaning Mrs. McLeod and the failure of Royal's contingency plan constituted undue obstacles to her mobility.

The Agency hereby directs Royal to take the following measures:

  • ensure that its ground handling contractor in Puerto Vallarta provides sufficient boarding chairs to offer an appropriate level of service at that airport;
  • provide the Agency with a report describing the consultations it has undertaken with its ground handlers in view of securing additional aircraft boarding chairs and the extent of the correctives measures taken in this respect;
  • provide the Agency with a copy of its procedures for the temporary replacement of onboard wheelchairs to ensure that such devices are available to properly implement the above-noted contingency plan.

Royal is to provide the above information within thirty (30) days from the date of this Decision. Upon receipt of this information, and following a review thereof, the Agency will determine whether any further corrective measures are required.

Royal is also required to provide the Agency, for information purposes, with a copy of a bulletin issued to its check-in personnel and its reservation agents, reminding them of the importance of communicating with passengers with disabilities and of determining what seating arrangements onboard the carrier's aircraft would best meet their needs.

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