Decision No. 87-AT-C-A-2020
APPLICATION by Butros Morcos (applicant) against Air Canada (respondent) pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10(CTA), regarding the applicant’s disability-related needs and subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR), regarding tarmac delay.
SUMMARY
[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against the respondent concerning a tarmac delay and the accommodation of their health issues during this delay.
[2] The applicant is seeking compensation in the amount of USD 479 for the cost of one night in a hotel and CAD 30 for the cost of parking, in addition to an unspecified amount of compensation for a missed meeting and loss of enjoyment.
[3] The Agency will address the following issues:
- Is the applicant a person with a disability?
- Did the applicant encounter an obstacle?
- Did the respondent properly apply the terms and conditions set out in Rules 80(C)(5)(a) and 80(C)(5)(c) of its International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada,NTA(A) No. 458 (Tariff) regarding delay and tarmac delay respectively, as required by subsection 110(4) of theATR?
[4] For the reasons below, the Agency finds that:
- The applicant is a person with a disability.
- The applicant did not encounter an obstacle.
- The respondent properly applied Rules 80(C)(5)(a) and 80(C)(5)(c) of its Tariff regarding delay and tarmac delay.
[5] Accordingly, the Agency dismisses the application.
BACKGROUND
[6] The applicant bought Air Canada tickets to travel from Toronto, Ontario, to Fort Lauderdale, Florida, US, on March 4, 2019. The flight was initially scheduled to depart at 10:40 a.m. and arrive at 1:46 p.m. However, the flight was rescheduled to depart at 12:30 p.m. and then was delayed on the tarmac in Toronto. The flight arrived in Fort Lauderdale at 6:58 p.m.
PRELIMINARY MATTERS
Undue obstacle
[7] The Agency’s letter opening pleadings outlined that if the Agency determined that the applicant was a person with a disability, it would then determine whether they encountered a “barrier.” However, at the time the incident occurred, subsection 172(1) of the CTA used the term “obstacle” instead of “barrier.” Therefore, the Agency will use “obstacle” throughout this decision.
Compensation for loss of enjoyment
[8] The remedies sought by the applicant include:
- “whatever [the Agency] deems reasonable” for a lost day of a trip and a missed meeting; and
- loss of enjoyment.
[9] As set out above, the incident described in the application happened on March 4, 2019. With respect to incidents that occurred before the Accessible Canada Act, SC 2019, c 10, came into force on July 11, 2019, the Agency does not have the jurisdiction to order the payment of compensation for inconvenience, pain and suffering, or loss of enjoyment.
[10] Instead, subsection 172(3) of the CTA as it then was and as is applicable in this case empowers the Agency to order corrective measures and/or compensation for expenses incurred if it is determined that a person with a disability encountered an undue obstacle to their mobility. Therefore, the Agency’s statutory authority to award compensation in this case is limited to out-of-pocket expenses.
[11] The Agency, accordingly, will consider the issues of disability, undue obstacle, and whether the respondent properly applied its Tariff but, as set out above, has no jurisdiction to address the applicant’s claim for loss of enjoyment.
[12] In conclusion, the Agency will not consider these requested remedies.
THE LAW AND RELEVANT TARIFF PROVISIONS
[13] The application raises issues related to both accessibility and the application of Air Canada’s Tariff.
Accessibility
[14] The Agency notes that subsection 172(1) of the CTA, in effect at the time of the incident, reads 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.
[15] 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 establish, 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 an 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.
[16] The Agency will address the first part of the above two-part approach in this decision.
Application of the Tariff
[17] Subsection 110(4) of the ATR requires that an air carrier operating an international service apply the terms and conditions of carriage set out in its tariff.
[18] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct it to:
(a) take the corrective measures that the Agency considers appropriate; and
(b) pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions set out in the tariff.
[19] The provisions of the Tariff relevant to this matter are set out in the Appendix. In particular, Rule 5(A)(2) of the Tariff incorporates the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention)
[20] Article 19 of the Montreal Convention sets out the carrier’s liability in case of delay and states:
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
1. IS THE APPLICANT A PERSON WITH A DISABILITY?
Position of the parties
THE APPLICANT
[21] The applicant states that they need “handicap assistance due to mobility,” and that they have “health issues as an elderly person” and “leg pains.” The applicant further states that they need wheelchair assistance, which they requested from the respondent upon booking their tickets online. The applicant provided a copy of the booking confirmation, which sets out in the travel options: “Wheelchair – Not able to walk up or down steps.”
[22] The applicant filed a medical certificate dated March 20, 2019, which states that they suffered from a bronchial infection preventing them from travelling by plane on February 25, 2019. The applicant submits that this document shows that they suffer “from health issues as an elderly person.”
[23] When filing their reply on January 6, 2020, the applicant submits that they have a handicap permit and always request wheelchair assistance when travelling. The applicant further adds that they “had knee surgery one month ago.”
THE RESPONDENT
[24] The respondent argues that the applicant has not met the burden of proof in regard to their disability because:
- the evidence filed – in particular, the medical certificate – does not confirm or identify a disability, “particularly one which is relevant to the Complaint”;
- when requested to answer questions from the Agency, the applicant mentioned, months after the flight in question, that they had leg pains after the delay; and
- the bronchial infection referred to by the applicant is unrelated and irrelevant to the events in question and does not qualify as a disability.
Analysis and determination
[25] The applicant indicates that they are an elderly person who has reduced mobility, “leg pains” and a handicap pass. The applicant also mentions having a bronchial infection just before the trip and knee surgery after it.
[26] While the respondent does not recognize the applicant’s disability, it provided them with the requested wheelchair assistance at both airports and, thus, accepted to accommodate the applicant’s disability-related needs associated with their mobility limitations.
[27] The Agency finds that the applicant is a person with a disability with respect to their mobility limitations and need for wheelchair assistance.
2. DID THE APPLICANT FACE AN OBSTACLE?
Position of the parties
THE APPLICANT
[28] The applicant submits that they have disability-related needs and that the respondent did not accommodate them during the tarmac delay. The applicant argues that the five-hour delay during which they had to sit in the aircraft was very upsetting and caused them discomfort and severe leg pain.
[29] The applicant indicates that, during the tarmac delay, they notified the respondent’s onboard agents that they had disability-related needs. The applicant submits that it was “very uncomfortable and problematic” to sit in their seat during the tarmac delay.
THE RESPONDENT
[30] The respondent states that the applicant has not provided any explanation of “what the alleged barrier is, how it was caused by Air Canada, or even informing Air Canada of any unmet disability-related need at the time the event took place.”
[31] The respondent submits that the applicant did not advise its medical desk of any need for assistance or accommodation other than wheelchair assistance. The respondent points to the fact that, while the applicant indicates having advised its onboard agents that they had disability-related needs during the tarmac delay, they did not provide information about whom they advised, what information was provided, the answer they received and the accommodation that was allegedly needed.
Analysis and determination
[32] Transportation service providers have a duty to accommodate persons with disabilities. To determine whether there is an undue obstacle to the mobility of a person with a disability within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether that person’s mobility is restricted or limited by an obstacle.
[33] A person with a disability will face an obstacle to their mobility if they demonstrate that they were not provided with an accommodation to meet their disability‑related needs, thereby being denied equal access to services available to others in the federal transportation network. It is the applicant’s responsibility to provide sufficiently persuasive evidence to establish their need for accommodation and to prove that this need was not met. The standard of evidence that applies to this burden of proof is the balance of probabilities.
[34] In the present case, the applicant states that their experience during the tarmac delay was unpleasant and unsatisfactory. The applicant mentions having notified the respondent’s onboard agents that they had disability-related needs and that those needs were not met. When asked to clarify what they requested from the onboard agent to accommodate their disability-related needs, the applicant answered that they experienced a “5.5 hour delay stuck in chair which was very uncomfortable and problematic.”
[35] As set out above, at this stage, the burden of proof is on the applicant to demonstrate that they faced an obstacle. To do so, the applicant must establish that an accommodation measure was required (for example, if they needed additional space to stretch their legs, if they needed to stand up to move or if they needed to disembark the aircraft during the delay because they could not sit for any longer) and that such measure was not provided. The applicant alleges that their needs were not met by the respondent during the tarmac delay but does not detail any specific accommodation measures that were needed or requested.
[36] Although the Agency understands that the delay was a difficult experience for the applicant, after reviewing the parties’ submissions, the Agency finds that the applicant has not met their burden to demonstrate that they faced an obstacle and, therefore, dismisses this portion of the application.
3. DID THE RESPONDENT PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULES 80(C)(5)(A) AND 80(C)(5)(C) OF ITS TARIFF REGARDING TARMAC DELAY?
Position of the parties
The APPLICANT
[37] The applicant alleges that they faced a five-hour delay inside the aircraft.
THE RESPONDENT
[38] The respondent submits that Flight No. AC1624, originally scheduled to depart at 10:40 a.m., was rescheduled to depart at 12:30 p.m. due to a mechanical issue. Passengers were informed of this rescheduling at 6:00 a.m. This rescheduling caused a delayed departure of approximately 2 hours.
[39] According to the respondent, passengers were boarded and the aircraft left the gate at 1:23 p.m.; however, the aircraft returned to the gate at 2:25 p.m. for maintenance work. As the estimated time to conduct this maintenance work was short, passengers were kept onboard the aircraft. The flight departed at 3:53 p.m. and arrived in Fort Lauderdale at 6:58 p.m. the same day.
[40] With respect to the compensation sought by the applicant for a hotel (USD 479) and parking (CAD 30), the respondent argues that as the applicant arrived on the same day as originally scheduled, these expenses were not caused by the delay. The respondent further argues that the applicant has not established that they missed a meeting or, if so, that missing it resulted in “quantifiable financial damages.”
Findings of fact
[41] Based on the evidence filed by the respondent, the Agency finds that the initial delay in departure, from 10:40 a.m. to 12:30 p.m., was 1 hour and 50 minutes.
[42] With respect to the second delay in departure, the Agency finds that, consistent with previous decisions, as in Decision No. 68-C-A-2019 (Despres v Air Canada), a tarmac delay starts after the door to the aircraft closes. In this case, the time that the door closed is unavailable; however, evidence shows that the aircraft departed from the gate at 1:23 p.m. and that it took off at 3:53 p.m. In absence of any evidence of a delay at the
gate, the Agency finds that the tarmac delay lasted for 2 hours and 30 minutes. The flight arrived in Fort Lauderdale at 6:58 p.m., a total delay of 5 hours and 12 minutes (from 1:46 p.m. to 6:58 p.m.) in arrival at destination.
Analysis and determination
[43] Subsection 110(4) of the ATR requires that an air carrier apply the terms and conditions of carriage set out in its tariff. If the Agency finds that the air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct it to take corrective measures or pay compensation for any expense incurred by its failure to apply the fares, rates, charges or terms and conditions set out in the tariff that was in effect at the time the event took place.
[44] The onus is on the applicant to establish, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.
[45] When requested by the Agency to describe exactly what happened during the tarmac delay, the applicant answered: “5.5 hour delay stuck in chair which was very uncomfortable and problematic.” The Agency has found, based on the evidence filed, that the applicant encountered an initial delay of 1 hour and 50 minutes, which happened when the scheduled flight time changed and then encountered a second delay on the tarmac, which lasted 2 hours and 30 minutes.
[46] Concerning the initial delay, Rule 80(C)(5)(a) of the respondent’s Tariff provides that for a schedule irregularity lasting more than 4 hours, the respondent will provide a meal voucher. As the delay in the airport was less than 2 hours, the respondent was not required to provide a meal voucher at the airport.
[47] Regarding the second delay, Rule 80(C)(5)(c) of the respondent’s Tariff states that when a tarmac delay lasts longer than 2 hours, the respondent must provide drinks and snacks and that before a tarmac delay reaches 4 hours, the carrier must offer passengers the opportunity to disembark.
[48] In this case, the Agency has found that the tarmac delay lasted 2 hours and 30 minutes; therefore, the carrier was not required to offer passengers the opportunity to disembark. The applicant did not provide information on how the respondent’s crew members handled the tarmac delay that would indicate that the respondent did not properly apply the terms and conditions in its Tariff during the tarmac delay.
[49] The Agency notes that the Montreal Convention is incorporated by reference in Rule 5(A)(2) of the Tariff such that the respondent may be liable to reimburse the applicant for any expenses incurred as a result of the delay. However, the applicant did not claim any expenses incurred as a result of the delay.
CONCLUSION
[50] In light of the above, the Agency finds that the applicant is a person with a disability and that they did not face an obstacle. The Agency also finds that the respondent properly applied the terms and conditions of Rules 80(C)(5)(a) and 80(C)(5)(c) of its Tariff regarding the schedule irregularities. Therefore, the Agency dismisses the application.
APPENDIX TO DECISION NO. 87-AT-C-A-2020
International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458
RULE 5 – APPLICATION OF TARIFF
(A) GENERAL
….
(2) International transportation shall be subject to the rules relating to liability established by, and to all other provisions of the Convention for Unification of Certain Rules Relating to International Transportation by Air, signed at Warsaw, October 12, 1929, or the Convention for the Unification of Certain Rules International Carriage by Air (Montreal Convention of 1999) or such convention as amended, whichever may be applicable to the transportation hereunder. Any provision of these rules which is inconsistent with any provision of said Convention shall, to that extent, but only to that extent, be inapplicable to international transportation.
RULE 80 – SCHEDULE IRREGULARITIES
….
(C) SCHEDULE IRREGULARITY
….
(5) Except as otherwise provided in applicable local law, in addition to the provisions of this rule, in case of scheduled irregularity within its control (and outside its control, for On My Way customers) Air Canada will offer:
(a) For a schedule irregularity lasting longer than 4 hours, a meal voucher for use, where available, at an airport restaurant or our on board café, of an amount dependent on the time of day.
….
(c) If passengers are already on the aircraft when a delay occurs, Air Canada will offer drinks and snacks no later than two (2) hours after the aircraft leaves the gate (in the case of departure) or touches down (in the case of arrival and diversions) if the aircraft remains on the tarmac, unless the pilot-in-command determines that safety or security considerations preclude such service. Air Canada will not permit an aircraft to remain on the tarmac at a Canadian or US airport for more than four (4) hours.
Prior to reaching four (4) hours, Air Canada will return the aircraft to the gate or another suitable disembarkation point, where passengers will be given an opportunity to deplane. Delays longer that 4 hours may be necessary if:
(i) The pilot-in-command determines there is a safety-related or security related reason why the aircraft cannot leave its position on the tarmac to deplane passengers; or
(ii) Air Traffic Control advises the pilot-in-command that returning to the gate or another disembarkation point elsewhere in order to deplane passengers would significantly disrupt operations.
….
Member(s)
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