Decision No. 86-AT-C-A-2021

August 26, 2021

APPLICATION by Khalil Ahmad, Waqar Khalil and Raheela Anjum Butt (applicants) against Pakistan International Airlines Corporation (respondent), pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA), regarding Khalil Ahmad’s disability-related needs, and pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58, regarding the cancellation of the applicants’ reservation.

Case number: 
19-04819

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent, claiming that the respondent did not provide wheelchair assistance to Khalil Ahmad in advance of the applicants’ flight departing from Toronto, Ontario. The applicants also allege that they were denied boarding without compensation for their return trip from Islamabad, Pakistan, and subsequently experienced a delay of two days.

[2] The applicants seek denied boarding compensation and an acknowledgement that the respondent is not in compliance with its obligations to provide accessible transportation to persons with disabilities.

[3] On December 23, 2020, the Agency issued Decision No. LET-AT-C-A-88-2020 (Decision), in which it found that the respondent properly applied Rule 60 of its Tariff when it cancelled the applicants’ reservation and, therefore, dismissed the portion of the application relating to the alleged denied boarding and delay. The Agency further found that Mr. Ahmad is a person with a disability and that he faced an obstacle when the respondent did not provide him with wheelchair assistance at the Toronto Pearson International Airport (Toronto airport) prior to the applicants’ flight on March 7, 2019.

[4] The Agency will address in this decision whether the respondent can remove the obstacle that Mr. Ahmad faced without experiencing undue hardship.

[5] For the reasons set out below, the Agency finds that there is no basis to conclude that the respondent cannot remove the obstacle without experiencing undue hardship. The Agency orders the respondent to implement corrective measures with regard to its policy and procedures on wheelchair assistance and to provide related documentation to the Agency’s Chief Compliance Officer, through the Agency’s Secretariat, as soon as possible and no later than January 10, 2022.

BACKGROUND

[6] Mr. Ahmad has stage 4 lung cancer and has difficulty with mobility for which he requires a wheelchair. The applicants purchased round-trip tickets to travel with the respondent from Toronto to Islamabad. Mr. Khalil requested wheelchair assistance on behalf of his father, Mr. Ahmad, several days prior to their departure and again upon arrival at the Toronto airport for their flight on March 7, 2019.

[7] In the Decision, the Agency found that, on a balance of probabilities, the respondent did not provide wheelchair assistance to Mr. Ahmad at the Toronto airport and that, as a result, Mr. Ahmad encountered an obstacle to his mobility. The Agency then directed the respondent to either explain how it proposed to remove the obstacle or demonstrate that it could not do so without experiencing undue hardship. In addition, the Agency also directed the respondent to provide information related to its current procedures for providing wheelchair assistance at the Toronto airport. Although the Agency extended the time limit twice, the respondent did not file an answer to the Decision and, accordingly, the Agency makes this decision based on the evidence on the record, consisting of the application, the respondent’s original answer to the application and the applicants’ reply, and supporting documents filed with these pleadings.

THE LAW

[8] The accessibility-related portion of the application was filed pursuant to subsection 172(1) of the CTA, which, at the time of the incident that is the subject of this 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.

[9] The Agency determines whether there is an undue obstacle to the mobility of a person with a disability using a two-part approach:

Part 1: The onus is on the applicant to demonstrate, on a balance of probabilities, that:

- they have a disability, for the purposes of Part V of the CTA;

and

- they faced 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 2: If it is determined that the applicant has a disability and faced an obstacle, the onus shifts to the respondent to either:

- explain, taking into account any proposals from the applicant, how it proposes to remove the obstacle through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting an obstacle, or, if a general modification is not feasible, an individual accommodation measure;

or

- demonstrate, on a balance of probabilities, that it cannot remove the obstacle without experiencing undue hardship.

[10] The Agency will address the second part of the above two-part approach in this decision.

POSITION OF THE PARTIES

The applicants

[11] The applicants provided proposals for how the respondent could remove the obstacle in submissions made in Part 1 of the proceedings. For instance, the applicants propose in their application that the respondent provide wheelchair assistance or state on its website that it does not do so. Also, in their reply to the respondent’s answer to their application, the applicants suggest a separate check-in counter for persons with disabilities as a remedy and request that the respondent be given the “max penalty under the law.”

The respondent

[12] Although the respondent did not file an answer during Part 2 of the proceedings, it submitted, in its answer in Part 1, that its policy is to always provide wheelchair assistance, regardless of whether the request is made in advance.

ANALYSIS AND DETERMINATIONS

[13] The onus at this stage of the proceedings is on the carrier to explain how it proposes to remove the obstacle or to demonstrate that it cannot remove the obstacle without experiencing undue hardship. The respondent did not file an answer to the Agency’s direction in the Decision with its position on this issue. As a result, the Agency finds, based on the record before it, that there is no basis to conclude that the removal of the obstacle to Mr. Ahmad’s mobility by the respondent would cause it undue hardship. The Agency, therefore, finds that the obstacle Mr. Ahmad experienced is undue.

[14] As the Agency noted in the Decision, the respondent did not confirm Mr. Khalil’s written requests made on Mr. Ahmad’s behalf for wheelchair assistance prior to the flight in March 2019. Under section 58 of the Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244 (ATPDR), which came into force in December 2019, large carriers are now required to provide a written confirmation of the service it will provide to a person with a disability in the itinerary it issues or separately if the service is confirmed after the itinerary is issued. Section 58 of the ATPDR will therefore address this issue, such that no further specific corrective measure is needed.

[15] The Agency also noted in the Decision that the respondent did not follow up with the applicants’ request for wheelchair assistance. The carrier had submitted that it was uncertain for whom the request was made as Mr. Khalil had requested wheelchair assistance for his father and had not communicated his father’s name. The Agency indicated in the Decision that, in previous decisions, it has placed the burden on the carrier to clarify requests for assistance because it recognizes that passengers might not be familiar with the level of detail they need to provide to the carrier in order to receive the assistance they require.

[16] Finally, the respondent has claimed that it already has a policy in place to ensure that persons with mobility-related disabilities are provided with wheelchair assistance at the Toronto airport. The respondent did not respond to the Agency’s direction to give information about its procedures for providing wheelchair assistance at the Toronto airport. While having a policy in place is a good step toward accessible transportation services, the Agency found that the respondent has failed in this case to successfully provide wheelchair assistance to Mr. Ahmad. The Agency’s statement in Decision No. 47‑AT-A-2020 (Liland v Air Canada) applies equally in this case: “a policy is only effective insofar as employees are aware of it and give it the attention that it deserves.”

[17] The Agency, therefore, finds that appropriate corrective measures should be ordered to ensure that the respondent provides accessible transportation to persons with disabilities.

ORDER

[18] The Agency orders the respondent to:

  1. update its written policy and procedures on wheelchair assistance to include the following:

(a) a statement that when the respondent is of the view that a person with a disability has not provided enough information with a request for accommodation, the respondent must follow up with the person with a disability, or the person making the request on their behalf, in order to obtain the necessary information;

(b) a statement that a request for a wheelchair generally includes assistance with the wheelchair;

(c) a statement that when a person with a disability asks for wheelchair assistance within 48 hours of travel, including a request made at the airport, the respondent must make every reasonable effort to accommodate the request and the procedure for doing so; and

(d) procedures to ensure that all requests for wheelchair assistance are sent to the appropriate service provider at the Toronto airport and that the service is effectively delivered;

2. send a bulletin to its personnel to inform them of its policies and procedures on wheelchair assistance, including specific notice on the changes listed above;

    3. make the required modifications to its tariff and its website to take into account the changes to its policies related to persons with disabilities; and

    4. provide a copy of its written policy and procedures on wheelchair assistance and the bulletin that it has sent to its employees to the Agency’s Chief Compliance Officer, through the Agency’s Secretariat, as soon as possible and no later than January 10, 2022.

     

      Member(s)

      Elizabeth C. Barker
      Mary Tobin Oates
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