Decision No. 70-AT-A-2019

October 24, 2019

APPLICATION by Dale Marsden (applicant) against Air Canada pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) regarding his disability-related needs.

Case number: 
18-06255

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Air Canada pursuant to subsection 172(1) of the CTA, concerning the carrier’s refusal to provide him with a free ticket for his attendant under the One-Person, One-Fare (1P1F) program.

[2] The applicant seeks a round-trip ticket for his attendant, a written acknowledgement from Air Canada that its 1P1F program applies to all persons with disabilities, regardless of whether they are travelling with a child, and a description of the steps Air Canada will take to ensure that all Medical Assistance Desk (Meda Desk) agents are aware of this policy. During the course of the pleadings, the applicant also requested a ruling from the Agency to the effect that, under some circumstances, a passenger requiring an attendant may be able to travel with a child under their care. In the alternative, he requested that, under certain circumstances, a passenger and their attendant might jointly travel with a single child. Finally, he requested that the fare he paid for his attendant to travel in November 2018 be refunded.

[3] The Agency will address the following issues:

  1. Is the applicant a person with disability for the purposes of Part V of the CTA?
  2. Did the applicant encounter an obstacle to his mobility?

[4] For the reasons set out below, the Agency finds that the applicant is a person with a disability for the purposes of Part V of the CTA, but that he did not encounter an obstacle to his mobility.

BACKGROUND

[5] After booking flights from Toronto, Ontario, to Québec, Quebec, for himself and his infant child to travel on November 9 and November 12, 2018, the applicant contacted Air Canada to request a ticket for his attendant. He was informed that, because he was travelling with his infant child for whom he cares during travel, he would not be provided with a free ticket for his attendant pursuant to the 1P1F program. The Air Canada agent explained that the applicant’s attendant was expected to support him, and not the child, and that if he was capable of caring for his child, he did not need an attendant.

THE LAW

[6] The application was filed pursuant to subsection 172(1) of the CTA, which at the time of the application read as follows:

The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

[7] As outlined in the letter that opened pleadings, the first steps in dealing with this application are to consider whether the applicant is a person with a disability for the purposes of Part V of the CTA and, if it is determined that he is, whether he encountered an obstacle. Both those questions are addressed in this decision. In cases where the Agency finds that an applicant is a person with a disability who encountered an obstacle, it then opens pleadings on whether and how that obstacle can be removed without the respondent experiencing undue hardship.

IS THE APPLICANT A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?

[8] The applicant has a visual impairment. Air Canada does not contest that the applicant is a person with a disability.

[9] In light of the above, the Agency finds that the applicant is a person with a disability for the purposes of Part V of the CTA.

DID THE APPLICANTENCOUNTER AN OBSTACLE TO HIS MOBILITY?

Position of the parties

THE APPLICANT

[10] The applicant indicates that he has travelled with an attendant on Air Canada flights in the past. When he contacted Air Canada to reserve his attendant’s ticket for his November 2018 trip, he was told that regulations prevented Air Canada from allowing him to travel with an infant and an attendant. The applicant submits that the Air Canada agent was not able to identify such regulations.

[11] The applicant further states that there is no basis in Air Canada’s terms and conditions for precluding a non-self-reliant passenger from travelling with a child. He submits that Air Canada relies on a vague reference to what self-reliance entails, and insists that it includes the inability to bear the responsibility for the needs of another person.

[12] The applicant explains that, when travelling by air, he relies on his attendant to provide many of the services identified by Air Canada as “additional services” provided by its personnel because, he submits, none of these services were offered by Air Canada at the time he booked, nor were these services identified on the page “Travelling with an attendant” of Air Canada’s website. The applicant explains that he requires assistance to locate personal items, including medication, and that it would not be appropriate for a member of the cabin crew to have access to those items. Further, he indicates that, in the event of an emergency, he would rely on his attendant for navigation within and beyond the aircraft. More specifically, he would need his attendant to be close by and, in unlit conditions, within arm’s reach. The applicant submits that it is unlikely that such assistance would be provided by the cabin crew.

[13] The applicant argues that there is no legitimate evidence before the Agency with respect to his self-reliance. He is of the view that the question at issue is whether a passenger with a disability who requires any special or unusual onboard attention is necessarily unable to be responsible for the care of a child during a flight.

AIR CANADA

[14] Air Canada submits that the applicant did not experience an obstacle to his mobility as “Air Canada correctly applied its policy and the [a]pplicant successfully travelled with his infant”.

[15] Air Canada states that it previously approved the applicant’s request to have an attendant travel without charge under the 1P1F program, as he declared that he was non-self-reliant due to a visual impairment; namely, that he “did not meet the requirements of independence, self-sufficiency and capacity of taking care of all his physical needs during flight and that he required special or unusual onboard attention beyond that afforded to the general public.”

[16] Subsequently, Air Canada refused to allow the applicant’s attendant to travel without charge under the 1P1F program, given that the applicant indicated he was able to care for his infant child during travel, which is inconsistent with the previous assessment that he was non-self-reliant. Air Canada states that the applicant cannot be responsible for an infant while simultaneously requiring the assistance of an attendant during travel. Air Canada submits that responsibility for an infant during a flight encompasses more than holding or accompanying the infant; it extends to ensuring the safety of the infant throughout the flight and in all situations where rapid reactions are crucial such as depressurization, emergency preparation, life vest donning and evacuations.

[17] Air Canada explains that its personnel provides, on request, the following additional services to assist passengers with visual impairments:

- discreetly offering individual safety briefings;

- inquiring periodically as to the passenger’s needs and attending to them;

- assisting in unwrapping foods and beverage, as well as describing the food and their location on the tray;

- assisting in moving between the seat and the lavatory;

- providing safety cards in Braille (available in the seat pockets in the last row of the economy cabin) and reviewing the items covered on 
  the card with the passenger;

- providing a Tactile Audio Selection Template (a Braille template available in the seat pockets in the last row of the economy cabin) and
  fixing it on the audio entertainment; and

- advising in a timely manner all information that is provided to other passengers (safety, procedures for take-off and landing, delays,
  schedule or aircraft changes, airport diversions, boarding information, weather, meal and beverages services, connections, check-in, gate
  assignments, baggage claim, individuals being paged, emergencies).

[18] In response to the applicant’s comment about the non-availability of the above information on Air Canada’s website, Air Canada points to the page “Visual and/or hearing impairment“ of its website.

[19] In respect of the services needed by the applicant, Air Canada responds that they can be addressed by its cabin crew. More specifically, Air Canada submits that cabin crew can locate items, given that they make periodic enquiries about passengers’ needs, and medication can easily be kept on the passenger’s person or in their bag. Also, Air Canada submits that, given that there is no indication that the applicant has mobility issues (for example, difficulties reaching the lavatory), he could evacuate an aircraft with a level of assistance from cabin crew comparable to that provided to all passengers during an emergency.

[20] Air Canada states that the 1P1F program applies to passengers who require an attendant to provide care over and above the care offered by its personnel, as established in the Agency’s Decision No. 6-AT-A-2008 (Estate of Eric Norman, Joanne Neubauer and the Council of Canadians with Disabilities against Air Canada, Air Canada Jazz, WestJet, the Gander International Airport Authority and the Air Transport Association of Canada) (1P1F Decision) and Decision No. 80-AT-A-2017 (Langford v. WestJet). Air Canada notes that in the latter decision, a passenger who is completely blind was refused transport with an attendant pursuant to the 1P1F program since it was determined that cabin crew members could meet his inflight needs. Air Canada also refers to Decision No. 52-AT-A-2018 (Bruzual v. WestJet) where the applicant made a request to have an attendant which was denied because the accommodation requested was already provided by the carrier’s cabin crew.

[21] Air Canada submits that, notwithstanding the applicant’s disability, the evidence points to the fact that the applicant is self-reliant and capable of caring for his personal needs during a flight and that he does not require any assistance beyond the additional services provided by the carrier to passengers who are visually impaired. As such, Air Canada takes the position that, based on the information provided, the applicant was not entitled to an attendant under the 1P1F program.

Analysis and determinations

[22] Transportation service providers have a duty to accommodate persons with disabilities. A person with a disability will face an obstacle to their mobility if they demonstrate that they need—and were not provided with—accommodation, thereby being denied equal access to services available to others in the federal transportation network.

[23] The applicant has the onus of demonstrating, on a balance of probabilities, that they have a disability and faced a disability-related barrier. Balance of probabilities means that each element must be demonstrated to be “more likely than not”.

[24] Air Canada’s 1P1F program only applies when a passenger’s disability-related needs cannot be met without the presence of an attendant. The purpose of the attendant is to meet the needs of the person with a disability where those needs demand services over those provided by the carrier. An attendant has been defined in the 1P1F Decisionas a person required to travel with a person with a disability for specific and clearly defined reasons related to self-care and/or safety.

[25] Air Canada has listed the additional services that it provides to passengers with visual impairments, and the applicant does not indicate why he could not take advantage of these services. For example, Air Canada cabin crew provides assistance to locate personal items, and the Agency has recognized in Bruzual v. WestJet that assistance in obtaining medication, assistance with overhead luggage, and assistance to and from the washroom are services that the cabin crew provides, and that the need for such accommodations does not support a requirement that a carrier allow an attendant to accompany a passenger at no cost. While the applicant indicates being uncomfortable having a member of Air Canada’s cabin crew accessing his medication, this is a standard service provided by the cabin crew and he could keep the items he needs to access with him to facilitate their retrieval.

[26] As another example, the applicant submits that it is unlikely that a member of the cabin crew would provide the assistance he requires in the event of an emergency. However, nothing indicates that the applicant cannot move around the cabin independently, including to and from the washroom, which suggests that he could evacuate an aircraft with the degree of assistance that the cabin crew provides to all passengers during an emergency. This is consistent with the Agency’s findings in Bruzual v. WestJet, where the Agency reviewed Ms. Bruzual’s MEDIF form, which stated that she required assistance in the event of an evacuation, but gave no indication that Ms. Bruzual could not move to the washroom on her own. The Agency concluded, in that case, that the record did not establish that Ms. Bruzual faced an obstacle because her request for an attendant to accompany her at no cost was denied, as the evidence suggested that she could evacuate an aircraft with a level of assistance from the cabin crew comparable to that given to all passengers during an emergency.

[27] In light of the above, the Agency finds that the applicant has not demonstrated that he needs assistance that goes beyond that provided by Air Canada personnel. Consequently, the Agency finds that the applicant did not face an obstacle to his mobility when he was not permitted to travel with an attendant free of charge pursuant to the 1P1F program.

CONCLUSION

[28] The Agency dismisses the application.

Member(s)

Scott Streiner
Elizabeth C. Barker
Mary Tobin Oates
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