Decision No. 85-MV-1998

March 3, 1998

March 3, 1998

APPLICATION by Howard McLaren pursuant to section 172 of the Canada Transportation Act, S.C., 1996, c. 10.

File No. U 3570/97-20


Application

On November 3, 1997, Howard McLaren filed an application with the Canadian Transportation Agency (hereinafter the Agency) concerning the refusal by DeNure Tours Ltd. (hereinafter DeNure) to carry his electric scooter on a motor coach tour between the province of Ontario and the region of New England, United States of America.

Issue

The issue to be addressed is whether or not the refusal by DeNure to carry Mr. McLaren's scooter constituted an undue obstacle to his mobility and, if so, what corrective measures should be taken.

Facts

Mr. McLaren has reduced mobility and uses a scooter. At his request, his travel agent enquired with several motor coach tour companies as to the conditions applying to tours to New England. While other operators accept passengers' scooters for carriage, DeNure advised Mr. McLaren that it does not allow scooters on its multi-stop tours because of the weight of each mobility aid and the physical hardship on the driver for loading and unloading on multi-stop sightseeing tours.

DeNure accepts collapsible manual wheelchairs on all motor coach tours and it would have carried Mr. McLaren's scooter on a one destination trip if the scooter did not have to be repeatedly off-loaded and loaded at each stop of the sightseeing tour. Mr. McLaren was prepared to sign a waiver releasing the company and the driver of any responsibility as he and his wife are both adept in handling his scooter, which is designed for travelling and can be dismantled for loading. DeNure did not reverse its policy and Mr. McLaren ultimately booked his motor coach tour to New England with another operator.

DeNure has handled wheelchairs and scooters which are heavier than the one used by Mr. McLaren. Mr. McLaren's scooter was not accepted because of the shape of the storage areas of the MCI 102 A3 (hereinafter MCI) motor coach used on the tour, the position of the door in the open mode, and the physical strain that the loading and unloading of scooters and luggage imposes on the drivers. The motor coach used by the tour operator with which Mr. McLaren ultimately travelled to New England has a significantly larger storage compartment than the MCI motor coach used by DeNure. The volume space occupied by a scooter in the limited luggage compartment of the MCI motor coach can reduce the number of passengers on the tour and could result in the cancellation of a trip. The operator advises that its fleet is being replaced with a larger Prevost H3-45 (hereinafter Prevost) motor coach that has 48 percent more luggage storage and a much better door opening configuration than the MCI vehicle.

DeNure's drivers are required to assist passengers with boarding and disembarking and are responsible for all logistics surrounding the trip, e.g. handling of luggage and general maintenance of the motor coach. In the course of sightseeing trips (between four and eight stops a day), the driver must balance the needs of all passengers with the need to unload and load a scooter at each stop while maintaining an often demanding schedule. DeNure states that it was not prepared to permit Mr. McLaren and his wife to travel and handle the scooter themselves since, on other occasions, passengers have scolded the driver for not handling the scooter of a passenger with reduced mobility.

Positions of the parties

Mr. McLaren is requesting that mobility devices such as electric wheelchairs and scooters be accepted for transportation on motor coach tours. He is of the opinion that, if these mobility aids are too heavy to be handled by operators' personnel, the vehicles used on the tours should be equipped to facilitate their handling, e.g. a small ramp. Further, Mr. McLaren asks that transportation personnel engaged in dealing with the public receive awareness training regarding various type of mobility aids and their use.

DeNure submits that, as an integrated motor coach and tour operator, it has a vast expertise in the transportation of seniors and persons with disabilities. Although it refused to carry Mr. McLaren's scooter mainly to avoid generating a potentially unsolvable situation, it should have accepted Mr. McLaren's scooter for carriage despite the extreme operational difficulties. The refusal to accommodate the mobility device is a blemish on its excellent record. DeNure is, however, of the opinion that the tour services it provides are non-essential, that Mr. McLaren had other options for his holiday trip, and that another motor coach tour operator ultimately accommodated him with his scooter.

DeNure advises that Mr. McLaren's complaint has provided it with the basis for the development of conditions of carriage applying to scooters. It will follow these conditions and will recommend them to the charter and tour industry through the Ontario Motor Coach Association (hereinafter the OMCA) under the form of a voluntary code of conduct for tour operators. In summary, the proposed conditions contain the following provisions:

Only one scooter may be handled on a particular departure. Where a trip operates at less than capacity, more than one scooter could be accommodated, meaning that additional space would be available and that the crew would have, at times, the capacity to assist with loading and unloading.

The scooter user must be prepared to handle the mobility device as the crew cannot be expected to carry it at all times. The crew on charter and tour operations must cater to all passengers and be prepared to assist other persons with disabilities.

The mobility aid must disassemble into manageable part, as some crew members might not be able to physically handle the mobility aid or heavy parts.

There must be a clause in the travel contract whereby the operator will not be held liable for the handling of the mobility device by the crew. Like other luggage, the mobility aid must be in condition to withstand "the delivery process associated with loading and unloading".

The carrier will not be required to unload and load the mobility device at every stop in the case of a multi-stop sightseeing tour.

DeNure indicates that the solution sought by Mr. McLaren with respect to training of its personnel is well beyond its financial resources. Although DeNure's motor coach crews already understand the issue of transportation and assistance to persons with disabilities, they cannot be expected to be familiar with all types of mobility aids. While the operator should be prepared to assist passengers using mobility aids, it is these persons' responsibility to be prepared to handle their mobility aid themselves because, on certain occasions, the crew might not be physically able or have the time to assist, or not know how to assemble and disassemble each unit. In the case of a passenger with a scooter, DeNure will be advising the crew in advance about the mobility device and the sensitivities associated with handling a passenger with a disability.

While Mr. McLaren recognizes that the consultation process is not a simple matter, he recommends that consultations be held between the public and the industry to resolve the problem. Although DeNure and the OMCA can play a leading role, "a favourable consensus applicable to all Canadians will be impossible to achieve without input of persons with disabilities and the authority of the Agency". Mr. McLaren states that the setting and acceptance of suitable nationwide standards cannot begin soon enough and, where possible and within reason, those who can be accommodated have the right to be accommodated.

Mr. McLaren is of the opinion that it does not matter whether a service is essential or not. Canadians should have the right to be accommodated by all public carriers, where possible. The option of joining another tour adds further expense, difficulty and frustration for persons with disabilities. However, Mr. McLaren agrees that some conditions and restrictions should be applied to those with scooters and other mobility aids, and that passengers cannot expect to have their scooter loaded and unloaded at every stop during a multi-stop sightseeing tour. With regard to the handling of the mobility aid, Mr. McLaren is of the opinion that, although the motor coach crew would have to provide assistance where necessary, mobility aid users should be fully familiar with the dismantling and assembly procedures of the aid. Also, it is proper to give operator and personnel prior notice of the service needed.

Analysis and findings

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

While DeNure advised that its refusal to carry Mr. McLaren's scooter was justified by past experiences and operational concerns, including the well-being of all passengers on the trip, the Agency finds that the situation created an undue obstacle to Mr. McLaren's mobility. The obstacle was undue in that, in this case, it could have been easily avoided if proper procedures, such as the ones subsequently developed by DeNure, had been in place at the time of the incident. The Agency notes that DeNure, in retrospect, admits that it should have accommodated Mr. McLaren's scooter.

The Agency is of the opinion that the new equipment to be used by DeNure will enhance the accessibility of the operator's services to persons with disabilities by being able to better accommodate mobility aids in their storage area. This is substantiated by the fact that Mr. McLaren ultimately travelled without difficulty on a larger motor coach used by another operator. With respect to the conditions of carriage proposed by DeNure for multi-stop sightseeing tours, the Agency considers that the provisions therein should provide for a better understanding by the operator and the passenger of each other's limitations. It is noted that Mr. McLaren agrees with DeNure's proposal.

The Agency commends DeNure's commitment to making its services accessible to persons with disabilities and the measures undertaken by the operator to prevent the recurrence of the situation experienced by Mr. McLaren. The Agency notes that DeNure will recommend its proposed conditions regarding the carriage of electric scooters on multi-stop sightseeing tours to the motor coach charter and tour industry as a "code of conduct", and encourages the operator to include persons with disabilities in the consultation process.

Conclusion

In light of the measures undertaken by DeNure to prevent the recurrence of the situation experienced by Mr. McLaren, the Agency is of the opinion that no further corrective action is required at this time. DeNure is required to provide the Agency, within sixty (60) days from the date of this Decision, with a progress report on the development and the implementation of its proposed conditions of carriage as well as a report on the progress made to adopt this code of conduct for motor coach tour operators. After reviewing the requested information, the Agency will determine whether further action is required.

Members

  • Marian L. Robson
  • Jean Patenaude
  • Keith Penner
  • Richard Cashin
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