Decision No. 90-AT-C-A-2019

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against KLM and the GTAA regarding the level of assistance she received at the Toronto Pearson International Airport (Toronto airport), and against KLM regarding her lost baggage.

[2] The applicant is seeking to retrieve her lost carry-on baggage or, alternatively, to receive full compensation for it.

[3] This Decision addresses the following issues:

• • Is the applicant a person with a disability for the purposes of Part V of the CTA?
  • Did the applicant encounter an obstacle to her mobility?
  • Did KLM properly apply the terms and conditions set out in Rule 55 of its International Passenger Rules and Fares Tariff No. KL-2 Containing Local and Joint Rules, Fares and Charges on Behalf of K.L.M. Royal Dutch Airlines Applicable to the Transportation of Passengers and Baggage Between Points in Canada/U.S. and Points in Areas 2/3, NTA(A) No. 311 (Tariff), which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), as required by subsection 110(4) of the ATR?
  • If KLM did not properly apply the terms and conditions set out in Rule 55 of its Tariff, what remedy, if any, is available to the applicant?

[4] For the reasons set out below, the Agency finds that:

• • The applicant is a person with a disability for the purposes of Part V of the CTA;
  • The applicant did not encounter an obstacle to her mobility;
  • KLM properly applied the terms and conditions set out in Rule 55 of its Tariff, which incorporates by reference the Montreal Convention, as required by subsection 110(4) of the ATR; and
  • No remedy is available to the applicant.

BACKGROUND

[5] On September 17, 2018, the applicant travelled alone from Toronto, Ontario, to Lagos, Nigeria, via Amsterdam, Netherlands. The applicant states that she requested wheelchair assistance “from check-in point to the flight”, and claims that she did not get any assistance after the security check point in the Toronto airport, that she “got confused and disoriented”, and that her two pieces of carry-on baggage “failed to come through the security scanning conveyor” and were subsequently lost or stolen.

PRELIMINARY MATTERS

Evidence provided in the representative’s submissions

[6] KLM submits that the allegations and submissions made by Sabur Akinade, who is representing the applicant, are hearsay and were “made in the context of the stated allegation that Mrs. Akinade was, at the time of the circumstances alleged, mentally impaired/disoriented/confused to the extent that she was incapable of understanding her situation or obtain/understand instructions or direction.” As such, KLM submits that the reliability of any information Sabur Akinade obtained from the applicant is “suspect”.

[7] Section 16 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR-2014-104 explicitly allows applicants to authorize a representative for Agency proceedings. As the Agency recognized in Decision No. LET-AT-A-25-2019 (Robinson v. Air Canada):

The assertion that a representative’s submissions are to be ignored or discounted would, if accepted, result in a diminution of access to justice and potential remedy for those who appoint representatives. The rules of evidence as they apply to administrative tribunals are more flexible than those which apply to the courts.

[8] In light of the above, the Agency accepts the evidence of the applicant as presented by her representative and will weigh it accordingly.

THE LAW AND RELEVANT TARIFF PROVISIONS

[9] The application raises issues related to both accessibility and the application of KLM’s Tariff.

Accessibility

[10] The application was filed pursuant to subsection 172(1) of the CTA, which, at the time of the 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.

[11] As outlined in the letter that opened pleadings, the first steps in dealing with this application are to consider whether the applicant is a person with a disability for the purposes of Part V of the CTA, and if it is determined that she is, whether she encountered an obstacle.

[12] If it is determined that the applicant encountered an obstacle, the Agency provides the respondents with an opportunity to either:

• • explain how they propose 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 they cannot remove the obstacle without experiencing undue hardship.

[13] In this Decision, the Agency will address the first steps, disability and obstacle.

Application of the Tariff

[14] 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.

[15] 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 the carrier 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.

[16] The relevant rules of KLM’s Tariff are set out in the Appendix.

IS THE APPLICANT A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?

Positions of the parties

THE APPLICANT

[17] The applicant states that she has arthritis, experiences difficulties walking and requires wheelchair assistance when travelling. She also claims that she is bipolar, can easily become disoriented, and cannot “comfortably” communicate in English.

[18] The applicant claims that her son told KLM, both during a telephone conversation to change her ticket and during the check-in at the Toronto airport, that she could get easily disoriented and cannot communicate in English. She argues that if KLM would “have taken the disabilities and language barrier into consideration, it would have been obvious to them that the applicant in addition to physical challenges would be unable to read any instruction or understand any conversation in English Language to know what’s expected of her at the security points”.

GTAA

[19] The GTAA acknowledges that the applicant requires mobility assistance based on the information contained in the application.

KLM

[20] KLM states that the only information that it received prior to travel relates to the applicant’s inability to walk long distances. KLM indicates that the applicant’s Passenger Name Record (PNR) contains no details or mention of any physical or mental incapacity, nor does it set out that she is easily disoriented or has difficulty communicating in English.

[21] KLM argues that the language barrier described by the applicant does not rise to the level of a disability within the meaning of the CTA.

[22] KLM argues that the applicant should be required to provide “evidence of at least the mental health condition” that precluded her from inquiring about her missing carry‑on baggage after security screening and about the “SURI cart” at the seating/waiting area after the security screening.

Analysis and determinations

[23] The Agency accepts that the applicant experiences difficulties walking and requires wheelchair assistance when travelling, and, as such, finds that the applicant is a person with a disability on this basis.

[24] Despite KLM’s comment that she should provide evidence of her mental health condition, the applicant did not provide evidence to corroborate her assertion that she has a mental health disability or that disorientation is a symptom of this condition. It is clear that the applicant’s disability-related needs were discussed with KLM staff over the telephone and at check-in, because the type of wheelchair assistance requested was changed two hours prior to the flight. As there is no mention in her PNR that the applicant has a mental health disability and could get easily disoriented, the Agency finds that it is likely that KLM was not specifically informed of this as a disability‑related concern, and that appropriate accommodation was not requested. The Agency, therefore, finds that the applicant has not satisfied her burden to establish that she is a person with a disability on this basis.

[25] The Agency recognizes that difficulty communicating in English could have caused or exacerbated problems that she encountered during her travel. Although she indicates that she cannot “comfortably” communicate in English, there is no evidence that her difficulty in communicating is linked to a health impairment. Consequently, it is not a “disability” within the meaning of the CTA.

[26] The Agency does not accept the applicant’s assertion that a mental health disability and language difficulties would have been obvious to KLM, and that the carrier ought to have known that the applicant would be unable to read instructions or understand English well enough to understand what was happening at the security check point. In a busy airport setting, KLM personnel would have limited opportunity to observe the applicant. It was reasonable for them to assume that she was competent to travel alone and that she understood their instructions. KLM’s stated policy is to accept the disabled person’s determination as to self-reliance. The applicant’s unfortunate experience at the Toronto airport highlights the importance of clear, frank and timely communication of specific accommodation needs with carriers, because additional accommodation services, such as KLM’s meet and assist service, could have been requested up to 48 hours in advance of the flight and might have better met the applicant’s needs than simply wheelchair assistance.

DID THE APPLICANT ENCOUNTER AN OBSTACLE TO HER MOBILITY?

Lack of wheelchair assistance

POSITIONS OF THE PARTIES 

The applicant

[27] The applicant states that her son requested wheelchair assistance for her from a KLM customer service officer over the phone on September 2, 2018, and at the KLM check-in counter at the Toronto airport on the day of travel. The applicant’s son was advised that someone would be assigned to assist the applicant from the check-in point to the “flight entrance”.

[28] The applicant indicates that she was provided with wheelchair assistance from check-in to the security check point, after which she was left by herself without assistance. The applicant states that “after waiting for a while”, she left the security check point in order not to miss her flight.

[29] The applicant submits that there was “neither a message/email from KLM to provide any instructions on the process nor was there any information on their website with clarity on wheelchair assistance”.

[30] The applicant submits that walking from the security check point to the gate, coupled with the loss of her bags, was difficult for her and led to the relapse of her bipolar condition.

GTAA

[31] The GTAA states that each air carrier operating at the Toronto airport is individually responsible for ensuring that assistance is available to facilitate their passengers’ mobility through the different terminals. The GTAA further states that it is not responsible for nor involved “in day-of-flight arrangements to assist passengers with disabilities.”

KLM

[32] KLM indicates that wheelchair assistance “suitable for clients who can walk over short distances and who can climb stairs” (WCHR) was requested in advance for the applicant, and was changed to wheelchair assistance “suitable for clients who can walk over short distances and who cannot climb stairs” (WCHS) two hours prior to the flight.

[33] KLM explains that wheelchair services at the Toronto airport are provided by Global Aviation Service (Global), with which it has a ground handling agreement. KLM explains that Global’s procedure for passengers requiring wheelchair assistance from check-in through security and on to the departure gate at the Toronto airport is as follows:

- Two Global agents are present at all times at the security screening area to assist passengers who have requested wheelchair assistance.

- Before the security check point, the passenger is informed that they will be handed to one of the two Global agents once they are cleared
  from security.

- One of these post-security agents then assists the passenger to the post‑security seating/waiting area, which is located a few metres from
   the security processing area, to wait for a golf cart (SURI cart) which is provided by the Aviation and Airport Service, another ground
   handling company at the Toronto airport.

- At that point, the post-security agent advises the passenger of the process to get to the gate:

• • the passenger will be placed/seated at the post-security seating/waiting area to wait for the arrival of a SURI cart;
  • the agent will assist the passenger onto the SURI cart which will transport the passenger to the gate of their departing flight;
  • during the wait time at the post-security seating/waiting area, if the passenger requires to use the bathroom or wants to go to a shop, the agent will assist the passenger as requested; and
  • at the gate, another Global agent will meet and assist the passenger to the seating area at the gate.

- While the passenger is seated and waiting for the SURI cart to arrive, the agent who assisted the passenger may be attending to other
   passengers requiring wheelchair assistance who are clearing security.

[34] KLM indicates that Global advised that after the security check point, the applicant was seated in the “post-security SURI seating/waiting area” and that when its agent returned to the area, the applicant had left. The agent assumed that the applicant had left with the SURI cart service without assistance or had chosen to walk to the gate on her own.

[35] KLM adds that it has no record of any complaint made by the applicant to its crew or check‑in agents on the day of travel.

ANALYSIS AND DETERMINATIONS 

[36] Transportation service providers have a duty to accommodate persons with disabilities. A person with a disability will face an obstacle to their mobility if they demonstrate that they need—and were not provided with—accommodation to meet their disability-related needs, thereby being denied equal access to services available to others in the federal transportation network.

[37] Applicants have the onus of demonstrating, on a balance of probabilities, that they have a disability and faced a disability-related barrier, balance of probabilities meaning that each element must be demonstrated to be “more likely than not”.

[38] It is undisputed that the applicant requested wheelchair assistance from KLM and received it from check-in to the security check point. The parties agree that, after security, the applicant was brought to the “SURI seating/waiting area” to wait for the cart service. It is unclear how long the applicant waited at the security check point before she left the area. It is likely that, as set out in Global’s procedure, while the applicant was waiting for the SURI cart to arrive, the agent who had assisted her was attending to other passengers requiring wheelchair assistance who were clearing security. Unfortunately, the applicant thought that she was left unattended and needed to continue toward her boarding gate alone.

[39] The evidence submitted by the applicant to demonstrate that wheelchair assistance was not provided is insufficient. In fact, it appears that wheelchair assistance was available, but that the applicant did not wait for it and left the security check point on her own. Based on the applicant’s evidence, it is likely that the applicant did not understand the instructions to wait given to her by Global personnel; however, this appears to be related to her inability to understand English and not to her disability.

[40] In light of the above, the Agency finds that the applicant did not meet her burden to demonstrate that she faced an obstacle to her mobility in relation to the wheelchair assistance she requested.

Lack of assistance with carry-on baggage

POSITIONS OF THE PARTIES 

The applicant

[41] The applicant indicates that her two pieces of carry-on baggage “failed to come through the security scanning conveyor” and were not handed to her by the wheelchair assistant. The applicant states that she asked for help from “staff” to look for her luggage, but no one was able to communicate with her when she enquired about the baggage and “no one was able to assist her”. The applicant indicates that she left the area assuming that it would be brought to her or checked in for the flight, but notes that this could have been a misunderstanding due to the language barrier.

GTAA

[42] The GTAA explains that security screening at the Toronto airport is performed by the Canadian Air Transport Security Authority (CATSA) and that GTAA employees are not involved in security screening of passengers and their carry-on baggage.

[43] The GTAA states that passengers are responsible for their carry-on baggage when they move from check-in to the aircraft and that it is their responsibility to retrieve it after security screening.

KLM

[44] KLM submits that Global agents are not present and do not assist passengers during the security screening, that “they are precluded from doing so” and only meet passengers after security screening.

[45] KLM adds that Global did not mention that its agents had any issues with the carry-on baggage of the applicant.

ANALYSIS AND DETERMINATIONS 

[46] There is no evidence that the applicant asked KLM to handle her carry-on baggage as a disability-related accommodation, either before or during her travel. She retained possession of her carry-on baggage.

[47] The applicant indicates that she requested assistance from staff when her carry-on baggage failed to come through the security scanner. Based on the applicant’s own account, it seems probable that they did not understand the request due to a language barrier, or were busy assisting other passengers up until the point when she left the security area. Unfortunately, due to her misunderstanding, she left the security area without her carry-on baggage.

[48] Therefore, as it did in Robinson v. Air Canada, the Agency determines that this issue, namely the applicant leaving her carry-on baggage behind—in this case, at security—cannot be found to be an obstacle to her mobility.

DID KLM PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULE 55 OF ITS TARIFF, WHICH INCORPORATES BY REFERENCE THE MONTREAL CONVENTION, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

Positions of the parties

THE APPLICANT 

[49] The applicant’s son submitted a lost and found complaint to KLM and to the GTAA on September 18, 2018, reporting the applicant’s two pieces of carry-on baggage as missing. These included a black roller holdall bag which the applicant submits is worth over CAD 5000 and which contained clothes, chocolates, and other wrapped items with names on them, and a Michael Kors “store bag” containing “another wrapped item”, a small purse and some food items. Further, the applicant asserts that she reported the loss of her carry-on baggage before boarding her flight at the Toronto airport and was told that it would have been taken in the aircraft. However, the applicant also recognizes that it “could have been a misunderstanding due to language barriers”.

[50] On October 6, 2018, the Michael Kors bag was found by the GTAA and returned to the applicant. The applicant states that the black roller holdall bag is still missing. The applicant is seeking to retrieve her lost carry-on baggage or to receive full compensation for it.

[51] The applicant is of the opinion that, as a carrier, KLM is “required to ensure the safety of their passengers and their properties”, in particular when it was informed that a passenger has a disability.

KLM

[52] KLM indicates that it did not issue a baggage check tag and did not take charge of the applicant’s carry-on baggage. It states that carry-on baggage is at all times within the control of the passenger except when handed over to CATSA’s security officers for screening.

[53] KLM indicates that the carry-on baggage was reported missing on September 18, 2018, at which time it opened a “World Tracing file” in an effort to locate the baggage. KLM states that as the carry-on baggage had not been found as of September 24, 2018, it closed its investigation.

Finding of fact

[54] It is uncontested by the parties that the applicant’s carry-on baggage was not checked and was never in the possession nor under the control of KLM.

Analysis and determinations

[55] The Montreal Convention, referenced in Rule 55(A)(1) of KLM’s Tariff, assigns the responsibility for lost baggage to a carrier only for checked baggage, and only when the loss took place on board the aircraft or when the carrier was in charge of the baggage.

[56] Rule 55(A)(2)(c)(iii) of KLM’s Tariff provides that the carrier will be liable for loss of or damage to unchecked baggage allowed on board the aircraft if it is proven that the carrier, its servants or agents are at fault. As KLM was never in possession of the applicant’s baggage, it cannot be found at fault or held responsible for the loss.

[57] In light of the above, the Agency finds that KLM properly applied the terms and conditions set out in its Tariff and cannot be found liable for the loss of the applicant’s carry-on baggage.

OTHER MATTER

[58] The applicant questions the lost and found procedures in place at the Toronto airport. She considers it absurd that her two pieces of carry-on baggage that were together and processed through security at the same time became separated from each other. The applicant states that it is “disturbing” that despite the number of security cameras at the security check point, the second carry-on baggage could not be traced and concludes that the GTAA or KLM staff “intentionally released the less valuable items and hold on to the precious and costly items”.

[59] The GTAA explains that when passengers do not retrieve their carry-on baggage from the security screening area, CATSA will deliver the items to the GTAA’s Lost and Found Office. The GTAA states that its Lost and Found Office has a system to log, track and store all the lost items that it receives. If there is a tag or contact information on the item, the procedure is to attempt to contact the owner. If there is no identification on the item, attempts will be made to match the item to the description found in a lost report.

[60] The GTAA indicates that it received from CATSA a carry-on baggage with a description that closely matched the applicant’s lost report. However, the carry-on baggage did not have a name tag indicating the owner, the air carrier, or any contact information. As the Lost and Found Office could not match the item to the applicant’s or any other lost report, the item was “disposed of in accordance with standard procedures”.

[61] The Agency does not have jurisdiction over the GTAA and CATSA in relation to lost baggage matters. As such, the Agency cannot look further into this matter.

CONCLUSION

[62] The Agency finds that:

• • The applicant is a person with a disability for the purposes of Part V of the CTA;
  • The applicant did not encounter an obstacle to her mobility;
  • KLM properly applied the terms and conditions set out in Rule 55 of its Tariff, which incorporates by reference the Montreal Convention, as required by subsection 110(4) of the ATR; and
  • No remedy is available to the applicant.

[63] The Agency therefore dismisses the application.

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APPENDIX TO DECISION NO. 90-AT-C-A-2019

KLM’s International Passenger Rules and Fares Tariff No. KL-2 Containing Local and Joint Rules, Fares and Charges on Behalf of K.L.M. Royal Dutch Airlines Applicable to the Transportation of Passengers and Baggage Between Points in Canada/U.S. and Points in Areas 2/3, NTA(A) No. 311

Rule 1 – DEFINITIONS

CHECKED BAGGAGE means Baggage of which the Carrier has agreed to take custody and for which a Baggage identification Form has been issued.

UNCHECKED BAGGAGE OR “CABIN BAGGAGE” means all Baggage, including personal items, other than Checked Baggage. This Unchecked Baggage remains in the custody of the Passenger.

Rule 55 – LIABILITY OF CARRIERS

(A) GENERAL

(1)  Carriage hereunder is subject to the rules and limitations relating to liability established by the Convention, even where such carriage is not international carriage to which the Convention mandatory applies.

….

(A)  LIABILITY

(2)  Provisions applicable to International and Interior Flights

….

(c) Damage to Baggage

(i) In accordance with Article 17 of the Montreal Convention, the Carrier is liable for Damage caused by loss of, or damage to Checked Baggage, upon condition only that the event which caused the loss or damage took place on board the aircraft or during any period during which the Carrier has custody of the Checked Baggage.

….
(iii) Amount of the Compensable Damage:

- The Carrier’s liability in the event of destruction or loss of or damage to Baggage shall be limited to 1,131 SDR per
   Passenger. If a higher value was declared in accordance with Rule 115 (A) (8)(a), the Carrier shall be limited to
   the value declared, unless the Carrier can provide proof that said value is higher than the Passenger’s genuine
   interest at the time of delivery.
- For Unchecked Baggage allowed on board, the Carrier shall only be held liable in the event of a proven fault by the
  Carrier, its servants or agents.

Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention

Article 17 – Death and injury of passengers – damage to baggage

….

2 The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.

….

4 Unless otherwise specified, in this Convention the term “baggage” means both checked baggage and unchecked baggage.