Decision No. 78-AT-C-A-2019
APPLICATION by Tanveer Akhtar (applicant) against Saudi Arabian Airlines Corporation (Saudi Arabian Airlines).
SUMMARY
[1] The applicant filed an application with the Canadian Transportation Agency (Agency), against Saudi Arabian Airlines pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), concerning the carrier’s alleged failure to provide wheelchair assistance at the Islamabad International Airport (Islamabad airport).
[2] On April 1, 2019, the Agency issued Decision No. LET‑AT‑C‑A‑32‑2019 (Decision), in which it found that the applicant is a person with a disability and that she encountered an obstacle to her mobility at the Islamabad airport. In this Decision, the Agency will address the following issue:
- Can Saudi Arabian Airlines remove the obstacle to the applicant’s mobility through a general modification to its policies and practices (and the application thereof), without experiencing undue hardship?
[3] For the reasons set out below, the Agency finds that Saudi Arabian Airlines has not demonstrated that it would experience undue hardship in removing the obstacle to the applicant’s mobility. Therefore, the applicant encountered an undue obstacle to her mobility within the meaning of subsection 172(1) of the CTA. The Agency orders Saudi Arabian Airlines to issue a bulletin to all customer service agents representing the carrier at the Islamabad airport:
- reminding them of the importance of accommodating accessibility‑related needs, such as wheelchair assistance, when passengers present themselves at check‑in; and
- advising them that they must send requests for wheelchair assistance to the Islamabad airport authority in a timely manner when passengers present themselves at check‑in.
BACKGROUND
[4] The applicant purchased tickets with Saudi Arabian Airlines through a travel agency to travel from Islamabad, Pakistan, to Toronto, Ontario, via Jeddah, Saudi Arabia, on May 31, 2018.
[5] When the applicant presented herself at the Islamabad airport on May 31, 2018, for Flight No. SV0889 to Jeddah, she was refused transportation. The flight to Jeddah was delayed, and Saudi Arabian Airlines claims that the applicant would have arrived after the scheduled departure of her flight to Toronto. Saudi Arabian Airlines therefore automatically rebooked her on a flight to Jeddah on June 1, 2018.
[6] The applicant was not provided with the wheelchair assistance that she had requested after presenting herself to Saudi Arabian Airlines staff at the Islamabad airport, including during the five‑hour waiting period at the airport before she was informed that her flight had been changed. Saudi Arabian Airlines paid for her hotel accommodation and her meals during the one‑day delay, but did not assist her in getting to and from the hotel with her baggage.
[7] The applicant sought compensation from Saudi Arabian Airlines for her suffering related to the failure to provide wheelchair assistance and the delay of her travel on May 31, 2018. For incidents that occurred before the Accessible Canada Act, S.C. 2019, c. 10, which came into force on July 11, 2019, the Agency does not have jurisdiction to order compensation for matters such as inconvenience, treatment perceived as lacking in dignity, or pain and suffering. In the Decision, however, the Agency found that Saudi Arabian Airlines did not properly apply Rule 55(B) of its International Passenger Rules and Fares Tariff, NTA(A) No. 324 (Tariff) and ordered it to compensate the applicant for the expenses that she incurred as a result of the delay, namely the porter fees that she had to pay to transport her baggage to and from the hotel.
[8] The Agency further found that the applicant is a person with a disability and that she encountered an obstacle to her mobility when she was not provided with the wheelchair assistance that she requested at the Islamabad airport.
[9] Saudi Arabian Airlines was required to either:
- explain how it proposes to remove the obstacle through a general modification to the rule, policy, practice, technology, or physical structure or, if a general modification is not feasible, an individual accommodation measure; or
- demonstrate that it cannot remove the obstacle without experiencing undue hardship.
[10] On May 7, 2019, Saudi Arabian Airlines filed written questions under subsection 24(1) of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules) to which the applicant responded on June 6, 2019. Saudi Arabian Airlines then filed its answer to the Decision on June 19, 2019, and the applicant did not file a reply.
PRELIMINARY MATTER
[11] In its response to the Decision, Saudi Arabian Airlines reiterates its position that the Agency’s inquiry pursuant to subsection 172(1) of the CTA, in this case, is beyond the Agency’s jurisdiction and, therefore, ultra vires.
[12] The question of jurisdiction was fully addressed in the Decision. The Agency has already determined that it has jurisdiction to inquire into the wheelchair service provided to the applicant with respect to her flight from Islamabad to Toronto, via Jeddah. This issue will not be revisited.
THE LAW
[13] The accessibility‑related portion of the application was filed pursuant to subsection 172(1) of the CTA, which read, at the time of the application, 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.
[14] The Agency indicated its approach to determining whether there is an undue obstacle to the mobility of persons with disabilities in the opening pleadings letter, dated October 15, 2018, which involves a three-part approach.
Part 1: The Agency considers whether the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA.
Part 2: If it is determined that the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA, the Agency determines whether they encountered an obstacle. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.
Part 3: If it is determined that the applicant, or the person on whose behalf the application is being filed, is a person with a disability and that they encountered an obstacle, the Agency provides the respondent with an opportunity to either:
- explain how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or
- demonstrate that it cannot remove the obstacle without experiencing undue hardship.
[15] In this Decision, the Agency will address the third part of the approach.
POSITION OF THE RESPONDENT
[16] Saudi Arabian Airlines argues that it is unclear what the Agency has determined to have been the obstacle to the applicant’s mobility. It questions whether the Agency expects Saudi Arabian Airlines to provide wheelchair assistance before passengers present themselves to its agents, or after they are advised that their flight is delayed until the next day, especially when the assistance request is coded as “WCHR” and passengers arrive at the airport by their own means and without assistance.
[17] Saudi Arabian Airlines indicates that the applicant requested “Wheel Chair Ramp” (WCHR) assistance, which is defined as a “Passenger able to walk by him/herself inside the plane as well as walk down and up stairs, but who requires a wheelchair or other means of transport to move long distances inside the airport.” It states that this assistance request is for passengers who are “mostly self-sufficient”. Saudi Arabian Airlines adds that when a passenger is going from the check‑in counter to the aircraft and they have a “minimum WCHR notation on their PNR”, wheelchair services are provided by its contracted agents.
[18] Saudi Arabian Airlines claims that it is not unusual or inappropriate that wheelchair services were not provided on May 31, 2018, and it disputes the Agency’s previous finding that the failure to do so was an obstacle to the applicant’s mobility. It argues that because the applicant’s flight was delayed on May 31, 2018, she was not checked‑in and, as a result, she did not proceed to the boarding area of the airport, for which wheelchair services would have been provided. Saudi Arabian Airlines submits that it has no obligation pursuant to its tariff or international law to provide wheelchair services from the curb of the airport to the check‑in counter. Rather, it claims that this obligation rests with the Islamabad airport authority or the local government.
[19] Saudi Arabian Airlines submits that it cannot remove the obstacle, as the situation arose outside of its hub airports. Given that all accessibility‑related services are provided by a contracted agent at the Islamabad airport, it argues that the expense of hiring additional employees to oversee the implementation of new policies would be undue considering that it does not have significant operations at that airport. Further, Saudi Arabian Airlines indicates that accessibility services are governed by Pakistani laws and that it would face undue hardship if it had to attempt to have such laws amended.
[20] Finally, Saudi Arabian Airlines maintains that it did provide wheelchair assistance to the applicant from the check‑in counter to the aircraft on June 1, 2018.
ANALYSIS AND DETERMINATIONS
[21] The Agency found in the Decision that the applicant encountered an obstacle to her mobility on May 31, 2018, at the Islamabad airport when Saudi Arabian Airlines failed to provide her with the wheelchair assistance that she had requested as it sent her to a hotel to wait for a new flight the following day.
[22] Saudi Arabian Airlines indicated that wheelchair assistance at the Islamabad airport is provided by a contracted agent, on its instructions, but provided no evidence that it requested wheelchair assistance from that agent for the applicant on May 31, 2018, or that it would have faced undue hardship to make such a request. Given that this service is provided by an agent, it is doubtful that the carrier would need to hire additional staff to make the request. The Agency therefore finds that Saudi Arabian Airlines has not demonstrated that it cannot remove the obstacle without experiencing undue hardship. Accordingly, the Agency finds that the applicant encountered an undue obstacle to her mobility within the meaning of subsection 172(1) of the CTA when she presented herself to Saudi Arabian Airlines staff at check‑in at the Islamabad airport on May 31, 2018, and was not provided with wheelchair assistance.
[23] Saudi Arabian Airlines argues that it is only responsible for providing wheelchair services from the check-in desk to the boarding gate. However, when it causes travel delays for passengers, its responsibilities go beyond what is owed during uneventful travel. As the Agency held in the Decision, when the applicant’s travel was delayed at check-in in Islamabad on May 31, 2018, Saudi Arabian Airlines became liable for damage under Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) and the terms of its Tariff, and it knew from her passenger name record that she needed mobility assistance to move long distances.
[24] Under Article 19 of the Montreal Convention, Saudi Arabian Airlines must prove that it took all measures that could reasonably be required to prevent the damage in order to avoid liability. For passengers with accessibility-related needs, such as wheelchair assistance, this includes demonstrating that the passengers’ accessibility‑related needs are accommodated while they wait for alternative travel to complete their journey. To meet the standard of Article 19, the Agency expects Saudi Arabian Airlines to assess, in consultation with passengers with accessibility-related needs, what accommodation they require while they wait for alternative travel and to make all reasonable efforts to ensure that their accessibility‑related needs are met.
ORDER
[25] The Agency orders Saudi Arabian Airlines to issue a bulletin to all customer service agents representing the carrier at the Islamabad airport by December 6, 2019:
- reminding them of the importance of accommodating accessibility‑related needs, such as wheelchair assistance, when passengers present themselves at check‑in; and
- advising them that they must send requests for wheelchair assistance to the Islamabad airport authority in a timely manner when passengers present themselves at check‑in.
Member(s)
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