Decision No. 95-AT-A-2005

February 18, 2005

Follow-up - Decision No. 560-AT-A-2005

February 18, 2005

APPLICATION by Julie Hall pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, regarding the difficulties she experienced at the Vancouver International Airport on September 1, 2004, after checking in with Alaska Airlines, Inc. for a flight to Seattle, Washington, United States of America.

File No. U3570/04-48


APPLICATION

[1] On October 22, 2004, Julie Hall filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. On November 5, 2004, Mrs. Hall filed supporting documents, including copies of notes made in her personal diary and copies of correspondence between her and Alaska Airlines, Inc. (hereinafter Alaska Airlines).

[2] In response to correspondence from Alaska Airlines dated November 16, 2004, indicating that it had responded to Mrs. Hall, the Agency issued Decision No. LET-AT-A-324-2004 dated November 24, 2004, requiring Alaska Airlines to file its answer to Mrs. Hall's application no later than November 29, 2004. On November 29, 2004, Alaska Airlines filed its answer to the application. On December 6, 2004, Alaska Airlines filed further comments with respect to Mrs. Hall's application and included copies of her reservation record, a map of the main terminal at the Vancouver International Airport (hereinafter the Vancouver airport) and an excerpt from Alaska Airlines' Customer Services Manual-Volume II regarding services to persons with disabilities. On December 12, 2004, Mrs. Hall filed her reply to Alaska Airlines' answer.

ISSUE

[3] The issue to be addressed is whether the level of assistance provided by Alaska Airlines to Mrs. Hall after checking in at the Vancouver airport on September 1, 2004 for a flight to Seattle, Washington, United States of America constituted an undue obstacle to her mobility and, if so, what corrective measures should be taken.

FACTS

[4] Mrs. Hall has multiple sclerosis. She experiences severe fatigue and makes every effort to conserve her energy. If she overtires, she experiences weakness in her lower limbs, making walking difficult.

[5] Mrs. Hall made arrangements for a return trip from Vancouver, British Columbia, Canada to Seattle with Alaska Airlines departing on September 1, 2004, and returning on September 6, 2004.

[6] At check-in at the Vancouver airport, Mrs. Hall requested wheelchair assistance to the appropriate boarding gate. Mrs. Hall was assisted by an Alaska Airlines customer service agent through United States Customs and once beyond there, when she inquired regarding the location of a washroom, the agent assisting her informed her that a washroom was located at the boarding gate. The agent assisted Mrs. Hall to boarding gate E83. The washroom at that boarding gate was located in the secure area behind a locked security door. The agent assisting Mrs. Hall advised her that the security door would open shortly and helped her to a seat at the gate.

[7] The security door was opened 50 minutes later. As there was no wheelchair or agent available to assist Mrs. Hall, she proceeded to the washroom using her cane. The departure gate for Mrs. Hall's flight was changed from E83 to E84, and she made her way to the departure gate without assistance and boarded her flight.

[8] Alaska Airlines' reservation record for Mrs. Hall contains no notation of an advance request for wheelchair assistance.

[9] Alaska Airlines' policy is to comply with the provisions set forth in the United States Air Carrier Access Act, 49 U.S.C. § 41705 (1986) (hereinafter the ACAA) and detailed in 14CFR part 382.39a, which require, in part, that carriers provide assistance requested by or on behalf of qualified individuals with a disability in enplaning and deplaning and that carriers shall not leave a passenger with a disability unattended in a ground wheelchair, boarding wheelchair, or other device, in which the passenger is not independently mobile, for more than 30 minutes.

[10] Alaska Airlines' special assistance policy reads, in part, as follows:

Section 7.106 - Special Assistance

  • Customers with impairments or physical disabilities causing them to require special attention or assistance from airline personnel shall be accepted for transportation without an attendant, provided they meet the following conditions:...

- Advance Reservations

  • Reservations must be made 48 hours prior to travel advising the nature of the disability and assistance required.
  • Alaska Airlines shall make every effort to accommodate customers who fail to make reservations 48 hours in advance, although the Company is not obligated to do so.
    ...

- Boarding and Deplaning

  • Alaska Airlines shall provide or make arrangements necessary to assist customers in boarding and deplaning.
  • A wheelchair or lift shall be provided when necessary to board and deplane disabled customers.

POSITIONS OF THE PARTIES

[11] Mrs. Hall states that the symptoms she experiences as a result of her multiple sclerosis include lack of co-ordination; loss of balance; muscular weakness leading to bladder and bowel problems; numbness and tingling; and, extreme fatigue. Mrs. Hall explains that she makes every effort to be proactive in managing the effects of her condition, one of which is anxiety, by providing herself extra time when travelling to ensure a smooth check-in and time to use the airport facilities and to rest and relax before her flight.

[12] Mrs. Hall adds that she requested wheelchair assistance to the boarding gate when booking her travel arrangements and that at check-in with Alaska Airlines for her flight to Seattle, she reminded the agent of her request for wheelchair assistance. According to Mrs. Hall, the agent had no record of her request, but immediately arranged for the service to be provided to her.

[13] Mrs. Hall states that she was assisted through the airport to United States Customs after completing the visa waiver form that had been provided to her at the Alaska Airlines check-in counter. Mrs. Hall points out, however, that when she reached United States Customs she was advised that she must complete a customs declaration form. Mrs. Hall submits that neither she nor the agent assisting her were aware of where to obtain this form and that, when they asked another Alaska Airlines agent where the form could be found, she stated that it was the passenger's responsibility to collect one and that they could be found all over the airport. According to Mrs. Hall, this person was impolite and extremely unhelpful.

[14] Mrs. Hall submits that after passing through United States Customs, she advised the agent assisting her that she needed to use the washroom and was advised that there was a washroom at the gate. Mrs. Hall points out that when she reached the gate, the security door was locked and the washroom was located in the secure area. According to Mrs. Hall, the agent assisting her advised that the gate would be opened shortly and that he did not have time to assist her to the other washrooms as they were not close by. Mrs. Hall states that the agent then assisted her to a seat and proceeded to enter the secure area with the wheelchair, where he carried on a conversation with a colleague for 25 minutes and finally left the area through another door.

[15] Mrs. Hall submits that she waited 50 minutes before the security door was opened and she was able to use the washroom. A copy of a page from Mrs. Hall's personal diary which she provided to the Agency contains the notations: "Empl[oyee] told me that they were inside gate. left me, went into sec[ure] area knowing I need the washroom. Gate was opened after 50 min[ute]s". Mrs. Hall states that, as a wheelchair was no longer available and the agent assisting her had left, she proceeded to the washroom using her cane. She then made her own way to the departure gate, which had been changed, and boarded her flight without assistance. According to Mrs. Hall, when she spoke to another Alaska Airlines employee concerning her displeasure with the service she had received, the employee politely sympathized with her and offered the explanation that the agent assisting Mrs. Hall was probably summer staff.

[16] Mrs. Hall states that she would like all Alaska Airlines personnel to be fully trained in dealing with persons with disabilities who require assistance. In Mrs. Hall's opinion, waiting 50 minutes to use a washroom is not an option persons with disabilities can choose, and the fact that the agent assisting her was summer staff is not a valid explanation for the service she was provided but, rather, an extremely poor excuse. Mrs. Hall adds that check-in agents should ensure that persons who require assistance are provided with all the forms necessary to exit from an international airport and that Alaska Airlines should employ personnel with exceptional public relations skills, including empathy and knowledge of disabilities, to deal with its "special needs" passengers. Mrs. Hall states that everyone should be treated with respect and that she would like action taken against both the personnel who dealt with her and their employer.

[17] Alaska Airlines provided the Agency with a copy of Mrs. Hall's reservation record and notes that her trip was booked through a travel agent and that there was no notation of an advance request for wheelchair assistance.

[18] Alaska Airlines submits that departure gate E83 is the only secure gate in Vancouver located at the international terminal. Alaska Airlines explains that there was also an inbound flight from Seattle which had connecting passengers to Anchorage, Alaska and that these passengers would have deplaned into the secure holdroom until reboarding. Alaska Airlines notes that Mrs. Hall could not be taken to the washroom inside the secure area until all the connecting passengers had reboarded and the holdroom was opened. Alaska Airlines adds that Mrs. Hall's departure gate was changed from E83 to E84 because the flight to Anchorage was delayed.

[19] Alaska Airlines submits that the washroom inside the secure area was located approximately 50 to 60 feet from where Mrs. Hall was seated, while the next nearest washroom outside the secure area was located at gate E82, more than 100 metres away. Alaska Airlines notes that the agent assisting Mrs. Hall appears to have been a seasonal employee and that the timing of the incident would have been at the peak of the summer cruise ship season, during which a significant number of requests for wheelchair and other specific assistance are made.

[20] Alaska Airlines states that its policy is to comply with the provisions of the ACAA and that, accordingly, its policy is to provide assistance requested by or on behalf of qualified individuals with disabilities in enplaning and deplaning an aircraft. In its October 1, 2004 correspondence to Mrs. Hall, Alaska Airlines states that from the information received from her, it is unable to determine if a "violation of the ACAA" had occurred.

[21] Alaska Airlines recognizes that it could have done a much better job in assisting Mrs. Hall and acknowledges that after Mrs. Hall was escorted as far as possible at the time to the locked security door leading to the departure gates and restroom area, the wheelchair assistant should have returned to assist her further.

[22] Alaska Airlines apologizes to Mrs. Hall and advises that her comments have been forwarded to its Vancouver Station Manager for review and follow-up with employees and contract personnel. Alaska Airlines notes, however, that it has received no written documentation from its Vancouver personnel with respect to the incident. Furthermore, as a customer service gesture, Alaska Airlines provided Mrs. Hall with a $100 travel certificate toward future travel with Alaska Airlines or Horizon Air Industries, Inc. carrying on business as Horizon Air.

[23] In her reply, Mrs. Hall submits that, while her reservation record did not contain a request for wheelchair assistance, the ACAA does not require a person with a disability to provide advance notice of his/her requirement for enplaning and deplaning assistance. Mrs. Hall adds that the ACAA provides that a carrier should not leave a passenger with a disability unattended for more than 30 minutes.

[24] Mrs. Hall notes that while Alaska Airlines stated in its October 1, 2004 correspondence that it was unable to determine if a "violation of the ACAA" had occurred from the information she provided, the carrier later acknowledged in its November 29, 2004 answer to her application that, after she was brought to the locked security door leading to the departure gate and rest room area, the agent should have returned to assist her further. Mrs. Hall, therefore, questions whether Alaska Airlines did in fact "violate the ACAA".

[25] In Mrs. Hall's opinion, while she welcomes Alaska Airlines' apologies, the carrier does not seem to fully appreciate and understand the seriousness of her complaint. Mrs. Hall is of the view that the excuses offered by Alaska Airlines concerning the summer cruise ship season and seasonal staff are not valid reasons for the bad service she received. Mrs. Hall indicates her displeasure that Alaska Airlines has offered her a travel voucher instead of assurances that the experience she encountered will never happen again and she notes that the carrier does not seem to have made any attempt to follow up on her recommendations.

[26] In conclusion, Mrs. Hall states that on September 1, 2004, she was subjected to a significant amount of mental, emotional and physical stress and, months later, she still suffered from the effects of the difficulties she experienced.

ANALYSIS AND FINDINGS

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

[28] An application must be filed by a person with a disability or on behalf of a person with a disability. Mrs. Hall has multiple sclerosis and experiences severe fatigue. If she overtires, she experiences weakness in her lower limbs, making walking difficult. As such, she is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[29] To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.

Whether the applicant's mobility was restricted or limited by an obstacle

[30] The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.

[31] In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.

The case at hand

[32] The Agency notes that Mrs. Hall requires assistance in enplaning and deplaning and that she requested wheelchair assistance at check-in with Alaska Airlines at the Vancouver airport. The Agency also notes that Mrs. Hall was provided with wheelchair assistance to the boarding gate, but when she asked to use the washroom, the agent assisting her advised that it was located inside the locked security area, which would open shortly.

[33] The Agency has considered Mrs. Hall's submission that, when she was unable to use the washroom located inside the locked security area, the agent assisting her told her that he did not have time to take her to the other washrooms as they were not close by and that he then left Mrs. Hall at the gate unattended. The Agency accepts Mrs. Hall's submission that she waited 50 minutes to use the washroom and, as no one was available to assist her when the security door opened, she proceeded to the washroom using her cane. The Agency notes that Mrs. Hall's departure gate had changed from E83 to E84 and that she made her own way to the departure gate and boarded her flight without assistance.

[34] The Agency is of the opinion that the impact of the failure by the agent assisting Mrs. Hall to fully provide the assistance she requested and required, is very serious. Requiring a person with a disability to wait 50 minutes to use a washroom is unacceptable. In the case at hand, leaving Mrs. Hall unattended for 50 minutes waiting for the security door to open would have left her in a state of uncertainty and detracted from her travel experience. In addition, the fact that no one inquired periodically regarding Mrs. Hall's needs after she was left at the gate or returned to provide her with the assistance she had requested and required in order to proceed to the washroom and to board her flight, would have created a stressful situation for her. The Agency accepts Mrs. Hall's assertion that, as a result, she was subjected to a "large amount of mental, emotional and physical stress". The Agency also notes Mrs. Hall's statement that she continued to suffer from mental and emotional stress months later. The Agency is of the opinion that the situation experienced by Mrs. Hall could ultimately lead her to be disinclined from future travel.

[35] In light of the foregoing, the Agency finds that the level of assistance provided by Alaska Airlines to Mrs. Hall after checking in at the Vancouver airport on September 1, 2004, for a flight to Seattle constituted an obstacle to her mobility.

Whether the obstacle was undue

[36] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

[37] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.

The case at hand

[38] Having found that the level of assistance provided by Alaska Airlines to Mrs. Hall after checking in at the Vancouver airport on September 1, 2004, for a flight to Seattle constituted an obstacle to her mobility, the Agency must now determine whether that obstacle was undue.

[39] The Agency notes Mrs. Hall's evidence that she requested wheelchair assistance when booking her reservation. The Agency also notes Alaska Airlines' evidence that Mrs. Hall's reservation record contains no notation regarding an advance request for wheelchair assistance and that her booking was made through a travel agent. The Agency is of the opinion, however, that it is apparent that Alaska Airlines was, at the very least, made aware that Mrs. Hall required assistance when she requested wheelchair assistance at check-in at the Vancouver airport. The Agency further notes that Alaska Airlines has policies and procedures in place dealing with the provision of assistance to persons with disabilities, in addition to the provisions set out in the ACAA.

[40] In this regard, the Agency notes Alaska Airlines' submission that its policy is to comply with the ACAA, which requires that carriers provide assistance to persons with disabilities upon request and that persons with disabilities shall not be left unattended for more than 30 minutes. The Agency notes, however, that Alaska Airlines' own policy is silent regarding how long a passenger with a disability may be left unattended. The Agency further notes Mrs. Hall's submission that the ACAA provides that a carrier shall not require a qualified individual with a disability to provide advance notice of his or her requirement for assistance, while Alaska Airlines' own policy requires 48 hours notice of the requirement for assistance, although the carrier is expected, but not obligated, to make every effort to accommodate customers who fail to provide the 48-hour notice. The Agency is of the opinion that the inconsistencies between the ACAA and Alaska Airlines' own policy would create confusion and uncertainty for the carrier's personnel, and particularly for its seasonal personnel.

[41] The Agency notes that Alaska Airlines has acknowledged that it could have done a much better job in assisting Mrs. Hall on September 1, 2004, and that after she was escorted to the locked security area, the agent should have returned to assist her. Alaska Airlines' explanation for the level of assistance provided to Mrs. Hall was that the agent assisting her appeared to have been summer staff and that Mrs. Hall was travelling at the peak of the summer cruise ship season, during which time significant requests for wheelchair and other special assistance are made. Notwithstanding these assertions, in the Agency's opinion, Alaska Airlines' explanation is unacceptable. It is apparent that Alaska Airlines' personnel did not follow procedures which the carrier has in place to ensure that it responds to the needs of persons with disabilities. Furthermore, regardless of whether employees or contracted personnel hold a permanent or temporary, seasonal position with the carrier, the employee should have the requisite knowledge and training to provide the assistance required by a person with a disability in a safe and dignified manner.

[42] Despite Mrs. Hall's request for assistance and despite the carrier's policy, the level of assistance she received from Alaska Airlines did not meet her needs. Notwithstanding that the agent assisting Mrs. Hall may have been a seasonal employee, he should have ensured that her needs were met. This included ensuring that she was able to use the washroom in a timely manner as well as providing her with assistance to get to the washroom and to board her flight. The agent's refusal to assist Mrs. Hall to the other washrooms because they were not close by demonstrates a lack of concern for her specific needs. Furthermore, the agent should have been aware that Mrs. Hall should not have been left unattended for 50 minutes. The situation encountered by Mrs. Hall shows a lack of sensitivity on the part of the agent who assisted her regarding the needs of persons with disabilities and a lack of knowledge of Alaska Airlines' policies concerning the carriage of persons with disabilities. The Agency is concerned with situations such as this and notes that, in Mrs. Hall's case, it resulted in significant mental, emotional and physical stress, which continued months later.

[43] In light of the foregoing, the Agency finds that the level of assistance provided by Alaska Airlines to Mrs. Hall after checking in at the Vancouver airport on September 1, 2004, for a flight to Seattle constituted an undue obstacle to her mobility.

OTHER MATTERS

[44] The Agency notes the concerns raised by Mrs. Hall with respect to the difficulty she experienced in locating and obtaining the required documentation to proceed through United States Customs, and the attitude of Alaska Airlines' personnel towards her as she was attempting to locate the proper documentation. In this regard, Alaska Airlines may wish to consider the possibility of providing persons with disabilities who require assistance with all documentation required for their trip at the point of check-in, given that their mobility is restricted, making it more difficult to locate and obtain required documentation. Alaska Airlines customer service agents should also be encouraged to deal with customers with disabilities with a sensitive and caring attitude.

CONCLUSION

[45] In light of the Agency's findings, Alaska Airlines is required to take the following corrective measures within thirty (30) days from the date of this Decision:

  1. Examine its policy and take whatever steps are necessary to ensure that the inconsistencies which presently exist between its policy and the ACAA, particularly with respect to the issues surrounding advance notice of services required by persons with disabilities and leaving persons with disabilities unattended, are rectified, and ensure that its personnel are made aware of these changes. Alaska Airlines is to advise the Agency of the steps it has taken in this regard.
  2. Issue a bulletin to its employees including contractors, seasonal employees, consultants and service providers who interact with the public summarizing the incident experienced by Mrs. Hall, without identifying her, and highlighting that persons with disabilities have specific needs, the importance of being aware of and sensitive to the needs of persons with disabilities and stressing the fact that persons with disabilities should not be left unattended for a prolonged period of time. A copy of the bulletin should be provided to the Agency.
  3. Incorporate, into any training program Alaska Airlines may have, a description of the situation which developed with respect to Mrs. Hall, without identifying her, and the procedures that should have been followed; advise of the effective date of this amendment; and advise the Agency of the measures it has taken to ensure that the requisite level of training is provided to all its employees, including seasonal and contract employees.
  4. Provide a copy of this Decision to the supervisor at the Vancouver airport who is responsible for seasonal employees.

[46] Following its review of the measures taken by Alaska Airlines, the Agency will determine whether further action is required.

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