Decision No. 685-AT-A-2005
November 15, 2005
File No. U3570/05-27
APPLICATION
[1] On June 4, 2005, Donna Mattson filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.
[2] On July 8, 2005, Air Canada requested an extension until July 22, 2005, to file its answer to the application. In its Decision No. LET-AT-A-199-2005 dated July 12, 2005, the Agency granted Air Canada the requested extension of time.
[3] On July 12, 2005, Air Canada filed its answer to the application and indicated that certain referred documents would follow by mail. These documents were received by the Agency on July 14, 2005. On August 3, 2005, Mrs. Mattson filed her reply to the carrier's answer.
[4] On August 3, 2005, Air Canada filed a response to Mrs. Mattson's reply. On August 4, 2005, Mrs. Mattson filed additional information.
[5] 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 deadline until November 15, 2005.
ISSUE
[6] The issue to be addressed is whether the reassigned seat provided by Air Canada to Mrs. Mattson on the Los Angeles to Calgary flight constituted an undue obstacle to her mobility, and if so, what corrective measures should be taken.
FACTS
[7] Mrs. Mattson has Piriformis Syndrome. Piriformis Syndrome is a rare neuromuscular disorder that occurs when the piriformis muscle compresses or irritates the sciatic nerve. Sitting and walking causes her severe sciatic pain in her right leg and hip. Mrs. Mattson has difficulty walking more than 100 metres.
[8] Mrs. Mattson booked her trip on February 7, 2005 through Merit Travel. At the time of booking, seats 1A and 1C in the executive class cabin were requested and confirmed by Merit Travel for Mrs. Mattson and her husband on Flight No. AC 571 operated on February 8, 2005 with an Airbus 319 aircraft.
[9] Mrs. Mattson and her husband had boarding passes for seats 1A and 1C; however, at the boarding gate they were told that they were reassigned seats 1D and 1F on Flight No. AC 571. Mrs. Mattson travelled from Los Angeles to Calgary in the executive class cabin on February 8, 2005, and experienced difficulties as a result of the seating assignment provided to her by Air Canada.
[10] Air Canada has a computer system that records passenger reservations, flight information as well as any service request to accommodate a passenger's disability. The passenger name record for the Mattsons' travel (hereinafter the PNR) indicates that seats 1A and 1C were confirmed. The PNR does not, however, reflect that Mrs. Mattson has a disability or that she requires seating that allows for extra leg room. Bulkhead seats in the business class cabin are assigned as part of the general reservation system.
[11] According to the Airbus 319 aircraft seating configuration chart filed with the Agency by Air Canada, the space between the bulkhead and seats 1A and 1C is greater than that between the bulkhead and seats 1D and 1F. There are no seats in the executive class cabin that are marked as accessible seating. The seating chart also indicates that while seats 1A and 1C are those that provide the greatest amount of leg room, seats 1D and 1F are those that provide the next greatest amount of leg room on the subject aircraft.
POSITIONS OF THE PARTIES
Position of Mrs. Mattson
[12] Mrs. Mattson indicates that she requires extra leg room in order to turn onto her side to stretch out her right leg in front of her when she travels. Mrs. Mattson states that she told her travel agent that she required seat 1C so that she could stretch her right leg during the flight. Mrs. Mattson explains that upon boarding the aircraft she and her husband were informed that they could no longer sit in seats 1A and 1C as those seats had been reassigned by the carrier to other passengers. Mrs. Mattson states that they were then told, rather than asked, to sit in seats 1D and 1F.
[13] Mrs. Mattson submits that she informed the agent at the boarding gate that she had specifically requested assignment of seats 1A and 1C as she has a very painful right leg and hip, to which the Air Canada agent replied that she could "fight it out" when she got on the plane.
[14] Mrs. Mattson submits that, once on board the aircraft, she reiterated to the business class flight attendant the reasons why seat 1D was not suitable for her. She states that the flight attendant told her that seat 1C had been reassigned to another passenger who needed it more than she did and she adds that the flight attendant then proceeded to talk with other passengers.
[15] Mrs. Mattson notes that at this point she had no choice but to sit in seat 1D. Mrs. Mattson points out that the person in seat 1C had considerably shorter legs than she does and, in her view, the woman would not have had any trouble stretching her legs in seat 1D or 1F.
[16] Mrs. Mattson explains that she required seat 1C as this seat provides enough space to allow her to slide down in her seat, turn to the side, and using pillows (to lay against), stretch out her right hip and leg in a more horizontal position. Mrs. Mattson points out that she knows this position is possible without stretching her leg into the aisle of the aircraft as she has done so many times before while travelling.
[17] Mrs. Mattson notes that although she informed Merit Travel of her medical condition, she did not request that it be noted in her PNR as she felt that, as she and her husband were confirmed in seats 1A and 1C, it was not necessary to do so. In this regard, Mrs. Mattson states that she was not aware of Air Canada's policy that allows it to make changes to seating assignments except in cases where the carrier has been notified 48 hours in advance of a passenger's requirement for a specific seat in light of a medical condition. Mrs. Mattson adds that she was also not aware that persons with disabilities are given priority for seating assignments and she indicates that had she been aware of the carrier's policies and procedures she would have made sure that her travel agent noted her medical condition in the PNR.
[18] Mrs. Mattson submits that a letter was sent to Air Canada's Customer Solutions and Robert Milton at the Air Canada Centre on February 9, 2005, and that in the reply she received, while Air Canada stated that it was sorry for her inconvenience, it did not offer any form of compensation for the pain and discomfort that she experienced.
[19] Mrs. Mattson requests a refund for both the price of her airline ticket and that of her husband as they were not able to sit in the seats that they specifically requested and paid for in executive class.
Position of Air Canada
[20] Air Canada expresses the view that Piriformis Syndrome is not a disability per se. Air Canada notes that while the medical documentation available attributes prolonged sitting as a cause of aggravated pain, there is no indication that sitting with the leg extended alleviates in any way the alleged pain. Air Canada states that as Piriformis Syndrome is an inflammation of the sciatic nerve that travels along the buttocks, sitting is what causes pain.
[21] It is Air Canada's opinion that the Agency must first determine whether Mrs. Mattson experiences activity limitations and/or participation restrictions in the context of the federal transportation network. This being said, Air Canada indicates that in the case at hand, the evidence on file is insufficient to allow the Agency to come to this conclusion.
[22] Air Canada expresses its opinion that the McKay-Panos Decision (Decision No. 646-AT-A-2001 dated December 12, 2001. In the matter of the jurisdictional question arising in the context of an application received by the Canadian Transportation Agency from Linda McKay-Panos against Air Canada, as to whether obesity is a disability for the purposes of Part V of the Canada Transportation Act) has established legal principles on the determination of whether a person is a person with a disability under Part V of the CTA. Air Canada submits that these legal principles have application in many other situations and have been used, for example, in analyzing complaints by persons who allege they have an allergy.
[23] In this regard, Air Canada submits that Mrs. Mattson's alleged condition does not in and of itself make Mrs. Mattson a person with a disability and that the legal principles in the McKay-Panos Decision (i.e., the model of disability analysis used by the Agency in Decision No. 646-AT-A-2001) should apply in determining whether such condition, if any, means that Mrs. Mattson is a person with a disability.
[24] Air Canada asserts that unless the Agency finds that Mrs. Mattson is a person with a disability by applying the test established in Decision No. 646-AT-A-2001 (hereinafter the Calgary Decision), the Agency cannot consider the rest of the evidence.
[25] Air Canada points out that Mrs. Mattson's travel was booked through Merit Travel, a travel agency retained by Mrs. Mattson and her husband. Air Canada notes that the reservation was made on February 7, 2005, that is the day before the scheduled departure of the subject flight.
[26] Air Canada points out that there is no mention in the PNR that Mrs. Mattson has a medical condition, or that she requires seating that provides additional leg room or any other "special service". Air Canada submits that seats may be reassigned at airports to accommodate certain passengers.
[27] In this regard, Air Canada explains that on the subject flight a passenger with a disability was assigned seat 1C and Mr. and Mrs. Mattson were provided with the mirror seats they would have been otherwise provided, namely an aisle and a window seat in the first row of the executive cabin.
[28] Further, Air Canada states that the distance from the seat anchor post (on the floor) to the bulkhead for seats 1A and 1C is 36 inches and the distance for seats 1D and 1F is 26 inches; both sets of seats have a seat pitch of 48 inches, being the distance from the back of the seat to the front of the seat. Air Canada adds that all other seats in the executive class cabin have a pitch of 38 inches.
[29] Air Canada states that there are no seats in the executive class cabin that are specifically marked as accessible and that none have liftable armrests. Air Canada notes, however, that all of the seats in the executive class cabin provide very generous leg room (minimum seat pitch is 38 inches).
[30] Air Canada asserts that it expects its airport personnel to reassign seats in order to comply with its obligations to persons with disabilities, provided that it is advised that the person is a passenger with a disability. Specifically, Air Canada notes that cabin personnel will only assist in reassigning passengers with the consent of all involved (i.e., families travelling together but not in adjacent seats).
[31] Air Canada submits that while privacy legislation prohibits it from disclosing the name of the passenger who was provided with seat 1C on the subject flight, it can confirm that the passenger was elderly, was non-self-reliant, was travelling with a nurse and was not mobile. Air Canada notes that this passenger required full assistance to board the aircraft and required seat 1C to facilitate the passenger's transfer.
[32] Air Canada points out that, as required, passengers with mobility impairments are boarded first. In the case at hand, the passenger assigned to seat 1C was carried onto the aircraft by attendants and transferred to that seat. Further, Air Canada explains that when the Mattsons arrived for boarding, it was not possible to transfer the other passenger with a disability out of seat 1C into another seat.
[33] Air Canada is of the view that had Mrs. Mattson's travel agent indicated the requirement for the right aisle seat on the reservation record, this would have been taken into consideration when assessing the seating requirements of the other passenger with a disability.
[34] Air Canada states that in accordance with the applicable regulations, it requires a 48-hour advance notice for services for passengers with disabilities; when requests are received within 48 hours, the carrier will do its utmost to provide the service. In the case at hand, Air Canada notes that it was not until the boarding gate that Mrs. Mattson advised its personnel of any disability.
[35] Air Canada submits that should the Agency accept that Mrs. Mattson is a person with a disability, the Agency must then proceed to determine whether having Mrs. Mattson sit in seat 1D, instead of 1C, constituted an obstacle to her mobility. In this regard, Air Canada asserts that there is no evidence on file which demonstrates that seat 1D did not provide the leg room needed by Mrs. Mattson.
[36] Air Canada points out that the aisle of the aircraft must remain free and unhindered to allow safe movement of the crew and other passengers; as such, a person sitting in an aisle seat cannot stretch his/her leg into the aisle. Further, Air Canada is of the view that seat 1D provides as much comfort as seat 1C and, therefore, the reassignment of seats, as permitted in Air Canada's tariffs, did not constitute an obstacle to Mrs. Mattson's mobility.
[37] Finally, Air Canada submits that if the Agency were to find that the seat change constituted an obstacle to Mrs. Mattson's mobility, the obstacle was not undue as another passenger with a disability was sitting in seat 1C and this passenger had made a request more than 48 hours before the scheduled departure of the subject flight.
[38] Air Canada advises that if required to decide between accommodating a passenger that has made a request more than 48 hours in advance and accommodating a passenger that mentions a disability at the boarding gate, it will accommodate the passenger who has disclosed his/her disability in advance of travel.
Reply of Mrs. Mattson
[39] Mrs. Mattson states that seating that allows her to stretch out her right hip and leg makes air travel more comfortable for her. Further, Mrs. Mattson points out that the information on Piriformis Syndrome provided by Air Canada supports the fact that it is very painful for someone with this condition to sit.
[40] With respect to Air Canada's allegation that there is no mention in the medical information it filed with the Agency on Piriformis Syndrome indicating that sitting with the leg extended alleviates in any way the pain associated with Piriformis Syndrome, Mrs. Mattson clarifies that she does not try to just sit with her leg extended, she also sits with her hip stretched out as much as possible. Mrs. Mattson adds that even if the documentation provided by Air Canada makes no reference to the fact that sitting with the leg extended (and the hip stretched out) alleviates the pain of Piriformis Syndrome, this does not mean that sitting in this position does not help to reduce her pain. Mrs. Mattson questions how Air Canada is able to determine what is comfortable for her and what is not.
[41] Mrs. Mattson provided copies of the following documentation: clinical notes from her doctors dated February 3, 2004 and October 4, 2004, which indicate that she used to walk as her regular activity, and that she is now unable to walk more than 100 metres; an injection operative report dated February 15, 2005, which indicates Mrs. Mattson's postoperative diagnosis as right Piriformis Syndrome; and an operative report dated April 4, 2005, which confirms that she has right Piriformis Syndrome (right buttock and leg pain) and that she underwent surgery to have her piriformis muscle removed. Mrs. Mattson maintains that these documents are evidence that she is experiencing activity limitations and/or participation restrictions and, therefore, that she is a person with a disability.
[42] In addition, Mrs. Mattson states that the leg room at seat 1C is considerably greater than that at seat 1D. In this regard, Mrs. Mattson notes that while she could not fully stretch her hip and leg in seat 1D, she can do so in seat 1C. She adds that she has done so on previous and subsequent flights with no difficulty.
[43] Further, Mrs. Mattson is of the view that the passenger who was assigned to seat 1C could just as easily have been transferred to seat 1D. Mrs. Mattson submits that the other passenger's legs were considerably shorter than hers and seat 1D would not have posed any problems for the passenger to stretch out her legs. Mrs. Mattson adds that the other passenger "obviously had booked seats 1D and 1F", while she and her husband had booked and confirmed seats 1A and 1C.
[44] Mrs. Mattson is of the view that reassigning her to seat 1D from her confirmed seat 1C constituted an obstacle to her mobility, and that the obstacle was in fact undue as Air Canada could have accommodated the other passenger with a disability just as well in seat 1D as in seat 1C, thereby rendering her own reassignment to seat 1D not necessary.
Response of Air Canada
[45] Air Canada explains that the passenger to whom seat 1C was assigned had to be carried on board during the preboarding and it is of the opinion that a transfer after boarding would not have been possible as it required personnel to perform the transfer.
[46] Air Canada submits that while it may be true that Mrs. Mattson did disclose to the travel agent the reason why she was seeking a specific seat, this same information was never disclosed to Air Canada. In this regard, Air Canada notes that the applicable regulations recognize the right for the air carrier to request a 48-hour advance notice for any specific service required by a passenger.
ANALYSIS AND FINDINGS
[47] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
[48] An application must be filed by a person with a disability or on behalf of a person with a disability. The Agency accepts Mrs. Mattson's evidence that she has Piriformis Syndrome and that, as a result, she has limited mobility in that she is unable to walk more than 100 metres, and sitting and walking cause her severe sciatic pain in her right leg and hip. As such, the Agency considers that Mrs. Mattson is a person with a disability for the purpose of applying the accessibility provisions of the CTA.
[49] Air Canada has submitted that, in this case, even if it were to admit that Mrs. Mattson has Piriformis Syndrome, such diagnosis is insufficient to amount to a conclusion that Mrs. Mattson is a person with a disability. Air Canada submits that, as a first step, the Agency must determine whether Mrs. Mattson experiences activity limitations and/or participation restrictions in the context of the federal transportation network.
[50] The Agency notes that the concepts of impairment and activity limitation underlie its determination of "disability". In determining whether a person has an "impairment\ and \activity limitations", the Agency has long supported the individual's right to self-determination and has taken a liberal approach to accept self-determination evidence. Depending on the situation, the Agency may identify impairment and limitation through one of, or some combination of:
- common sense observation
- the person's evidence or account of his/her condition (e.g. self determination);
- other evidence, including expert evidence
[51] The issue of what evidence needs to be produced is something that the Agency determines on a case by case basis. Typically, the Agency accepts the evidence of the applicant with respect to the impairment and the activity limitation and/or participation restriction. As such, the fact that a respondent contests the existence of a disability does not automatically require the Agency to seek more or different evidence.
[52] In the case at hand, the Agency is of the opinion that Mrs. Mattson's evidence provides adequate evidence of her impairment and activity limitations. Further, the evidence filed by Air Canada supports this. Specifically, Mrs. Mattson's inability to walk more than 100 metres and sit and walk without experiencing severe sciatic pain in her leg and hip will necessarily result in restrictions in accessing air transportation which will require accommodation, given that walking and sitting are integral to accessing the federal air transportation network.
[53] 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
[54] 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 federal 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.
[55] 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 case at hand
[56] Mrs. Mattson has Piriformis Syndrome which is a rare neuromuscular disorder that occurs when the piriformis muscle compresses or irritates the sciatic nerve, causing pain. This pain is, in turn, aggravated by sitting and walking. Mrs. Mattson cannot walk more than 100 metres and has severe sciatic pain in her right leg and hip. As a result, while seating in an aircraft seat, she requires extra leg room to turn onto her side to stretch her right leg and hip.
[57] The Agency notes that in advance of travel, seats 1A and 1C were requested and confirmed for Mrs. Mattson and her husband by Merit Travel. Upon boarding, Mrs. Mattson was informed that she and her husband had been reassigned to seats 1D and 1F. Further, the Agency notes that Mrs. Mattson told the agent at the boarding gate that she required seat 1C so that she could stretch her right leg during the flight as she has a very painful right leg and hip.
[58] Although Air Canada asserted that there is no evidence on file which demonstrates that seat 1D did not allow for the leg room needed by Mrs. Mattson, the Agency notes that seats 1A and 1C had 10 inches more leg room than seats 1D and 1F. In this regard, the Agency accepts Mrs. Mattson's assertion that seat 1D did not meet her seating needs as it did not provide enough space for her to turn onto her side in order to stretch out her right leg and hip. As a result, Mrs. Mattson experienced pain and discomfort sitting in seat 1D. Further, the Agency accepts Mrs. Mattson's assertion that seat 1C met her needs on previous and subsequent flights.
[59] The Agency notes that while Mrs. Mattson was able to complete her flight in her reassigned seat, she experienced pain and discomfort. As a result of the difficulties she experienced, Mrs. Mattson may be disinclined from future air travel. Based on the evidence, the Agency concludes that Mrs. Mattson could not use seat 1D like the average traveller for whom the seat is designed as she was unable to use seat 1D without experiencing discomfort and severe pain.
[60] In light of the foregoing, the Agency finds that the reassigned seat provided by Air Canada to Mrs. Mattson for the Los Angeles to Calgary flight did not meet Mrs. Mattson's needs as it caused her pain and discomfort. Accordingly, the Agency finds that the seating reassignment constituted an obstacle to her mobility.
Whether the obstacle was undue
[61] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.
[62] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.
The case at hand
[63] Having determined that the seating reassignment provided by Air Canada to Mrs. Mattson for the Los Angeles to Calgary flight constituted an obstacle to her mobility, the Agency must now determine whether the obstacle was undue.
[64] The Agency notes that Mrs. Mattson booked her trip the day prior to travel and that at that time Merit Travel confirmed that she could sit in seat 1C. At the boarding gate, Air Canada's personnel informed Mrs. Mattson that she had been reassigned to seat 1D.
[65] The Agency has long recognized the importance of services to persons with disabilities when travelling by air and, since 1994, air carriers providing domestic services have been required to provide uniform services to persons with disabilities. Part VII of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) sets out the terms and conditions of carriage of persons with disabilities and requires air carriers, if requested at least 48 hours in advance of travel, to provide services to persons with disabilities. The ATR also require air carriers to make a reasonable effort to provide such services where they are requested less than 48 hours in advance of travel.
[66] While the Agency recognizes that these regulations are only applicable to domestic travel, the principles embodied therein are equally applicable to international travel especially with respect to that part of the international travel that occurs at Canadian air terminals. Air Canada clearly recognizes through its service policy, which includes seating, that seats will be reassigned to passengers with disabilities who have reserved at least 48 hours in advance.
[67] In this regard, the Agency is of the opinion that, in cases where two passengers with disabilities desire the same seat, regardless of when the requests were made, Air Canada should, through dialogue, determine how the seating needs of both passengers can be best accommodated. Although Mrs. Mattson informed Air Canada's personnel at the boarding gate that she needed additional leg room to accommodate her piriformis condition, she was told to "fight it out on the plane". The Agency finds that the Air Canada personnel could have taken this opportunity to enter into a dialogue with Mrs. Mattson to determine her specific seating needs and explain to her the reason her seat was reassigned to another passenger with a disability.
[68] The Agency recognizes that notes are made in passengers' PNRs for the purpose of informing the carrier, before the trip, that a passenger needs specific services or assistance. In this respect, the Agency notes that although Mrs. Mattson's PNR indicated that seats 1A and 1C were confirmed, the PNR does not mention that Mrs. Mattson is a person with a disability and requires specific seating to accommodate her disability. Thus, the carrier did not receive the information it required to be able to meet Mrs. Mattson's needs as it was unaware at the time of reassigning her seat to the other passenger with a disability that Mrs. Mattson required seat 1C to accommodate her needs in light of her disability.
[69] Furthermore, the Agency recognizes that it is the responsibility of a person with a disability to identify himself or herself as such and clearly indicate his or her needs to a carrier so that the carrier can respond to that person's needs. In this regard, the Agency notes that Mrs. Mattson did not inform Air Canada that she is a person with a disability until boarding, at which time her confirmed seating assignment (seat 1C) had already been reassigned to a person with a disability who had informed the carrier of her specific needs more than 48 hours before the departure of the subject flight.
[70] The Agency accepts Air Canada's operational concern that it was not possible to move the passenger to whom seat 1C was reassigned as the passenger had to be carried on the aircraft by attendants during preboarding and it would have required the attendants to return to the aircraft and transfer the passenger to another seat. Furthermore, the Agency notes that transferring can cause pain and the preference for some passengers with disabilities is that it be done before general boarding, for reasons of personal dignity and privacy. The Agency is of the opinion that transferring the passenger who was reassigned seat 1C would not have been a practical or reasonable solution in light of the fact that this would have caused this passenger discomfort and it would not have been operationally feasible to recall the attendant crew to perform the transfer again.
[71] In light of the above, the Agency finds that the seating reassignment provided by Air Canada to Mrs. Mattson for the Los Angeles to Calgary flight did not constitute an undue obstacle to her mobility.
COMPENSATION
[72] 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.
[73] In this case, the Agency has concluded that there was no undue obstacle to Mrs. Mattson's mobility and, as such, she is not entitled to compensation under subsection 172(3) of the CTA.
CONCLUSION
[74] Based on the above findings, the Agency has determined that although the reassigned seat provided by Air Canada to Mrs. Mattson for the Los Angeles to Calgary flight constituted an obstacle to her mobility, the obstacle was not undue.
[75] Consequently, the Agency contemplates no action in this matter.
Members
- George Proud
- Baljinder Gill
- Gilles Dufault
- Date modified: