Decision No. 719-AT-A-2005

December 12, 2005

File No. U3570/05-7

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APPLICATION

[1] On August 15, 2005, Barry Growe on behalf of Lindsey Cook filed an application requesting that the Canadian Transportation Agency (hereinafter the Agency) review Decision No. 348-AT-A-2005 dated June 1, 2005 (hereinafter the Decision).

[2] On September 15, 2005, Air Canada filed its answer to the application, and on October 24, 2005, Mr. Growe filed his reply to Air Canada's answer.

BACKGROUND

[3] In its Decision, the Agency made a determination with respect to an application filed by Mr. Growe on behalf of Ms. Cook concerning Air Canada's policy on stretcher service. In that same Decision, the Agency determined that Air Canada's policy on stretcher service did not constitute an undue obstacle to Ms. Cook's mobility. The Decision states, in part, that:

...The Agency has reviewed the evidence of the Chief Engineer and accepts that Air Canada's stretcher was designed, tested and certified based on the transportation of a person who is non-ambulatory and who would remain on his/her back on the stretcher for the duration of the flight using the restraint system. Furthermore, the Agency accepts that it was never the intent of the stretcher design to allow someone to get on or off the stretcher except by transfer from another stretcher. There could, therefore, be significant safety implications associated with the aforementioned accommodations as requested by Mr. Growe and Ms. Cook in that the stretcher would be used in a way for which it was not intended.

...

...in balancing the right of Ms. Cook to travel by air without encountering undue obstacles to her mobility and Air Canada's commercial and operational considerations and responsibilities, the Agency is of the opinion that the implications to Air Canada of modifying its policy on stretcher service and making modifications to the Flight Attendant Manual as well as providing training to its flight attendants on any such modifications are such that they are not considered justified given the uniqueness of Ms. Cook's situation.

Furthermore, while the Agency recognizes that Air Canada's policy on stretcher service does not allow Ms. Cook to travel under ideal conditions, Mr. Jones [Ms. Cook's physiotherapist], Dr. Ong-Lam [Ms. Cook's physician], Mr. Growe and Ms. Cook all acknowledge that it would, however, be possible for Ms. Cook to travel from Vancouver to Toronto in accordance with Air Canada's current policy on stretcher service.

PRELIMINARY MATTERS

[4] Mr. Growe notes Air Canada's proposal to cancel its stretcher service and requests that the Agency require Air Canada and all Canadian air carriers that operate Airbus aircraft to provide, at a reasonable cost, stretcher service for persons with disabilities who are unable to sit for prolonged periods of time. Further, Mr. Growe states that he supports the principle of "one passenger-one fare" proposed by the Council of Canadians with Disabilities, or an equivalent.

[5] Air Canada indicates that some of the points raised in Mr. Growe's application are being addressed in the file known as "One Passenger-One Fare" presently being considered by another panel of the Agency.

[6] The Agency notes that the matter of providing a stretcher service and related cost, including Air Canada's notice that it will be cancelling its stretcher service has been addressed in Decision No. LET-AT-A-319-2005 dated December 8, 2005. Accordingly, the Agency will not consider these matters in this Decision.

[7] Although Mr. Growe's October 24, 2005 reply to Air Canada's answer was filed after the prescribed deadline, the Agency, pursuant to section 5 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts the submission as being relevant and necessary to its consideration of this matter.

ISSUE

[8] The issue to be addressed is whether there has been a change in the facts or circumstances within the meaning of section 32 of the Canada Transportation Act (hereinafter the CTA) since the issuance of the Decision and, if so, whether such change is sufficient to warrant a review, rescission or variance of the Decision.

POSITIONS OF THE PARTIES

Mr. Growe

[9] Following the issuance of the Decision, Mr. Growe asked Air Canada's Meda Desk to arrange for Ms. Cook and himself to view an Air Canada stretcher so that they could decide whether to risk a flight from Winnipeg to Toronto. As the Meda Desk was unable to accommodate them on this matter, Mr. Growe attempted to determine who handled the stretchers for Air Canada. In the course of this research, he learned of Noorduyn Norseman Inc. (hereinafter Noorduyn Norseman) that manufactures stretchers for Airbus aircraft such as those operated by Air Canada and other air carriers in Canada. Mr. Growe notes that these stretchers are 42 inches wide and, therefore, 23 inches wider than the stretchers used by Air Canada.

[10] Mr. Growe states that information from the Noorduyn Norseman's Web site emphasizes that the stretcher is comfortable and explicitly designed for "incapacitated passengers" who cannot be seated on board an aircraft. Further, Mr. Growe points out that the Web site indicates that the stretcher can be installed without removing seats, enabling the quick turn-around time that air carriers require. He adds that the Web site photograph shows that the stretcher is well padded.

[11] Mr. Growe submits that, as the stretcher is 16 inches wider than the benches he has custom built for Ms. Cook's use at home, there is no risk that she would fall off the stretcher while moving to get down from it or while shifting from lying on one side to another.

[12] Mr. Growe adds that the purpose of the original application was to reduce the risk of back injury, i.e., muscle spasms and pain that can last for days or weeks if due care is not taken. Although under questioning from Air Canada, Dr. Ong-Lam and Mr. Jones stated that it was possible for Ms. Cook to travel on her back, they have also made it clear that, for the past 20 years, remaining immobile for long periods of time can exacerbate Ms. Cook's pain. Mr. Growe indicates that they could produce medical literature on the subject, if required.

[13] Mr. Growe also notes that they travelled using Cathay Pacific Airways Limited (hereinafter Cathay Pacific) and that Cathay Pacific was able to accommodate Ms. Cook as its First-class seats can be converted into a horizontal "bed". Mr. Growe points out that Cathay Pacific's assistance and the preflight consultations went far beyond the service provided to other First-class passengers. He adds that Cathay Pacific customized its services in order to support the travel of a person with a disability.

[14] In addition, Mr. Growe requests that the Agency determine how research might be done to assess if this type of stretcher service would benefit Ms. Cook alone or if it would be a significant contribution to the quality of life for a much larger number of Canadians with severe back problems. Mr. Growe states that it is his expectation that research will show that there are a significant number of people who cannot travel by air because they cannot sit for extended periods of time.

[15] Mr. Growe is of the opinion that the Agency may allow for a review of a decision if, following its issuance, new information comes to light that would be relevant to the Agency's decision. He points out that he and Ms. Cook did not have the information about the Noorduyn Norseman stretcher at the time of the hearing and, if Air Canada had the information, it did not provide it. As such, Mr. Growe indicates that the Agency could not have considered this information when reaching its decision.

[16] Mr. Growe concludes that, as the Decision was predicated on there being only one stretcher, and there is at least one alternative stretcher available, "there has been a change in the facts or circumstances pertaining to the decision, order or hearing."

Air Canada

[17] Air Canada submits that the applicant's request for a review should be declined by the Agency as it does not meet the conditions set out in section 32 of the CTA.

[18] Air Canada is of the opinion that Mr. Growe's request for a review of the Decision is not a request for review at all, rather it is an application to address the stretcher issue, not only with Air Canada, but with all Canadian carriers.

[19] Further, Air Canada states that Mr. Growe submits as alleged new facts or circumstances his and Ms. Cook's experience travelling in a regular Business or First-class seat with another carrier as an example that customized service is possible. Air Canada submits that Ms. Cook's experience with another carrier is not relevant to the question that was put before the Agency as to whether Ms. Cook should be allowed to lie on her side on the stretcher and whether she could get on or off by herself upon boarding, deplaning, and during the flight.

[20] Air Canada adds that Mr. Growe wishes to adduce evidence of a type of stretcher manufactured by Noorduyn Norseman that he believes would meet the needs of Ms. Cook. In this regard, the existence of this stretcher is not a new fact as the stretcher existed before the hearing in this matter.

[21] Further, Air Canada states that the existence of the Noorduyn Norseman's stretcher or its production in evidence was not likely to modify the Agency's decision for the following reasons:

1. the stretcher in question, by Noorduyn Norseman, is not approved and certified to fit on Air Canada's aircraft;
2. the crux of the debate was whether Ms. Cook could be allowed to travel on her side and to get on or off the stretcher in flight; the conclusion that this was not possible as the stretcher procedures in the Flight Attendant Manual did not provide for this would not have been changed; and
3. Mr. Growe erroneously concludes that the Noorduyn Norseman stretcher is 42 inches wide and would have allowed Ms. Cook to travel on her side. The diagram on the manufacturer's Web site refers to 42 inches as the measurement of the outer curtain from the fuselage. No measurement is provided for the stretcher.

[22] Air Canada is, therefore, of the opinion that many of the items contained in the applicant's letter of August 15, 2005 are not new facts, but rather new requests that were not previously before the Agency. Thus, the panel of the Agency that rendered the Decision is now functus in determining new requests under this file and its jurisdiction is limited to considering whether it should review, rescind or vary the Decision.

ANALYSIS AND FINDINGS

[23] In making its findings, the Agency has considered the submissions filed by Mr. Growe and Air Canada during the pleadings.

[24] Section 32 of the CTA states:

The Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or the hearing.

[25] It is important to stress at the outset that the review contemplated by section 32 of the CTA is not an open-ended authority for the Agency to review its decisions. The Agency's jurisdiction under this section is limited and only arises if there has been a change in facts or circumstances pertaining to the decision since its issuance. The Agency must first determine whether there has been a change in facts or circumstances pertaining to the decision and, if so, then determine whether such change is sufficient to warrant a review, rescission or variance of the decision.

[26] In this case, the Agency notes that while Mr. Growe was not aware that the Noorduyn Norseman stretcher existed or that Cathay Pacific had reclining seats that could accommodate Ms. Cook during the Agency's consideration of Mr. Growe's application, this information was available prior to the issuance of the Agency's Decision and, therefore, the evidence provided by Mr. Growe is not a new fact or circumstance as it existed at the time the Agency made its determination on the matter.

[27] With respect to Mr. Growe's comments on the evidence provided by Dr. Ong-Lam and Mr. Jones and on the number of people who cannot travel by air because they cannot sit for extended periods of time, this is not a new fact or circumstance as it was referred to in both the obstacle and undueness analysis of the Decision.

[28] In light of the above, the Agency finds that the information provided by Mr. Growe does not constitute a change in facts or circumstances, as contemplated by section 32 of the CTA, since the issuance of the Decision.

[29] Accordingly, the Agency hereby dismisses Mr. Growe's application for the review of Decision No. 348-AT-A-2005.

Members

• George Proud
• Baljinder Gill
• Guy Delisle