Letter Decision No. LET-AT-A-17-2022

SUMMARY

[1] The applicant, a minor child represented by Ms. Browne, filed an application with the Canadian Transportation Agency (Agency) against WestJet, claiming that persons with disabilities who are approved by WestJet for its one-person, one-fare (OPOF) program should be able to book their flight tickets through the online booking system. WestJet currently requires passengers to call its Special Care Desk to make a reservation through the OPOF program.

[2] The applicant seeks an order that WestJet make the online booking system accessible for all. In the alternative, the applicant seeks an order that WestJet provide a dedicated line for booking for persons with disabilities.

[3] On December 1, 2021, the Agency issued Decision LET-AT-A-62-2021 (Interim Decision), in which it found that the applicant is a person with a disability and that he encountered barriers to his mobility when his ability to make a reservation with the OPOF program was restricted by the limited business hours of the Special Care Desk, and when he waited an unreasonable amount of time on the telephone to reach the Special Care desk. In this decision, the Agency will address the issue of whether WestJet can remove these barriers without experiencing undue hardship and, if so, whether remedies are necessary.

[4] For the reasons set out below, the Agency finds that WestJet has not demonstrated that removing these barriers to the applicant’s mobility would cause WestJet undue hardship. Therefore, the Agency finds that the applicant faced undue barriers to his mobility within the meaning of subsection 172(1) of the CTA.

[5] With regard to the unreasonable amount of time that the applicant waited on the telephone to reach the Special Care Desk, the Agency recognizes that the implementation of a direct line to the Special Care Desk has significantly reduced the average wait time. The Agency, therefore, finds that no further corrective measure is necessary.

[6] However, in order to remedy the limited business hours of the Special Care Desk, the Agency orders WestJet to implement one of the corrective measures identified in the Interim Decision, or a combination of them, to enable passengers with an approval number for the OPOF program to:

- use the online booking system;

- email the Special Care Desk to make a reservation; or

- book 24 hours a day, 7 days a week, by telephone, as other passengers do.

BACKGROUND

[7] On June 29, 2021, Ms. Browne waited five hours on hold on the telephone, and then nine hours the next day to book round-trip tickets for the applicant and his attendant to travel. The applicant had previously been approved by WestJet for its OPOF program. He filed an application against WestJet, claiming that persons with disabilities who are approved by WestJet for its OPOF program should be able to book their flight tickets through the online booking system.

[8] In the Interim Decision, the Agency identified the two above-noted barriers and directed WestJet to provide submissions on how it proposes to remove these barriers or to demonstrate that it cannot remove them without experiencing undue hardship. The Agency also provided WestJet with an opportunity to address the feasibility of potential corrective measures identified in the Interim Decision.

[9] The Agency found that it has authority to order any of the remedies listed under subsection 172(2) of the CTA if it concludes that a barrier is undue because no accessibility regulations made under the CTA are applicable to this incident. Finally, the Agency ordered WestJet to provide statistics on the average amount of time passengers waited to access the Special Care Desk during the months of August, September, October and November 2021.

THE LAW

Accessibility

[10] The application was filed pursuant to subsection 172(1) of the CTA, which reads as follow:

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 barrier to the mobility of persons with disabilities.

[11] As stated in Decision 33-AT-A-2019 (Interpretive Decision) regarding accessibility-related applications, the Agency determines whether there is an undue barrier 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. A disability is any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment—or a functional limitation—whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society;

and

- they faced a barrier. A barrier is anything—including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice—that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. There needs to be some connection between the applicant’s disability and the barrier.

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

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

or

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

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

Remedies

[13] Pursuant to subsection 172(2) of the CTA, when the Agency finds that there is an undue barrier, it has the power to do one or more of the following:

(a) require the taking of appropriate corrective measures;

(b) direct that compensation be paid for any expense incurred by a person with a disability arising out of the barrier, including for any costs of obtaining alternative goods, services or accommodation;

(c) direct that compensation be paid for any wages that a person with a disability was deprived of as a result of the barrier;

(d) direct that compensation be paid up to a maximum amount of — subject to the annual adjustments made under section 172.2 — $20,000, for any pain and suffering experienced by a person with a disability arising out of the barrier;

(e) direct that compensation be paid up to a maximum amount of — subject to the annual adjustments made under section 172.2 — $20,000, if the Agency determines that the barrier is the result of a willful or reckless practice.

POSITIONS OF THE PARTIES

WestJet

[14] WestJet indicates that, while many persons with disabilities can make bookings either through its website or by telephone through its contact centre, it is not possible to use its website to book two seats for a passenger travelling with an attendant on a single fare. In the past, OPOF bookings were handled through WestJet’s contact centre but, due to the complex nature of these bookings, regular contact centre agents often had difficulty completing bookings correctly. WestJet established the Special Care Desk to ensure that OPOF bookings receive specialized attention and are handled properly to provide a smooth travel experience. Agents receive specific training to perform manual inputs using multiple computer software programs in order to access specific fare types and classes, to book seating that is typically blocked off, and to manage seats that cannot be filled by other passengers.

[15] WestJet submits that passengers who want to make an OPOF reservation through the Special Care Desk are not uniquely impacted by long call wait times because many complex bookings cannot be performed on its website and must be done through its contact centre. It cites bookings for unaccompanied minor children, passengers travelling with pets or service animals, and passengers travelling using promotional codes as examples.

[16] WestJet submits that, in order to extend the hours of the Special Care Desk, it would have to hire additional agents who would need basic contact centre training and specific training for the Special Care Desk. WestJet estimates that this measure would cost approximately CAD 1,000,000 in the first year, and approximately CAD 750,000 each subsequent year. WestJet submits that with the current financial difficulties facing the air travel industry, these costs represent undue hardship.

[17] WestJet indicates that it implemented a direct telephone line to the Special Care Desk on August 16, 2021, which reduced the call wait time for OPOF passengers by placing them directly in the queue for the Special Care Desk. It indicates that from August to November 2021, the Special Care Desk received an average of 3,198 calls per month for OPOF and other types of complex bookings. WestJet submits that the average hold time over the period from August to November 2021 was approximately four minutes. The average hold time broken down per month was:

- August 2021: 260 seconds;

- September 2021: 94 seconds;

- October 2021: 169 seconds; and

- November 2021: 427 seconds.

[18] WestJet submits that significant changes to its website and to its Cority and Sabre software systems would be required to permit passengers with an OPOF number to use its online booking system. It states that it cannot change its software systems unilaterally. Sabre is a third-party Passenger Service System used by many carriers to manage bookings and flight itineraries. WestJet uses Cority to store the medical information of OPOF passengers. This software cannot be connected with WestJet’s website or Sabre to permit bookings to be made by inputting an OPOF number, as there are no software intermediaries that permit this exchange of information. As an additional security measure, only Special Care Desk agents have access to Cority, using an Electronic Patient Record security clearance code. WestJet therefore submits that it has demonstrated on a balance of probabilities that it cannot allow OPOF passengers to make reservations using the online booking system without experiencing undue hardship.

[19] WestJet states that it must take payment information for OPOF bookings in a manner compliant with industry security standards to accept, process, store or transmit credit card information. It can accept credit card information by telephone, for example, but not via email. WestJet submits that it is therefore not possible for OPOF passengers to send an email to the Special Care Desk to complete a reservation.

[20] WestJet states that the COVID-19 pandemic has had an unprecedented effect on the air travel industry. It indicates that there have been massive downturns and upswings, due to the implementation and removal of travel restrictions by government authorities, resulting in fluctuations of demand for air travel. The unpredictability of emerging variants has made it difficult for carriers to forecast travel demand. WestJet submits that the Agency should not make decisions that will have a significant impact on carriers during these unprecedented times and should wait to order significant changes until the air travel industry is operating normally.

The applicant

[21] The applicant submits that increasing the ability for OPOF passengers and other passengers to book online would reduce the need to train Special Care Desk agents and mitigate the associated cost for WestJet.

[22] The applicant questions WestJet’s claim that it would cost CAD 1,000,000 in the first year and CAD 750,000 in subsequent years to expand the business hours of the Special Care Desk. He wonders why some contact centre agents could not be trained to answer the Special Care Desk telephone line outside its current business hours, which would bridge the gap for passengers who need to book outside of those hours. The applicant also suggests that the number of calls received by the Special Care Desk during its working hours would be reduced if some flexibility was built into the off-hours period.

[23] The applicant argues that booking online should not require access to a passenger’s medical information; rather, the reservation system should only verify that the OPOF number is active and belongs to the passenger making the booking. Once this has been done, it should not be necessary to speak to an agent to make a booking as all pertinent information, including the medical information, has already been gathered. If necessary, WestJet could follow up with a phone call to the passenger after they have completed their booking online. 

[24] The applicant suggests that passengers could provide their credit card information online or when WestJet creates an OPOF file. Once associated with the OPOF number, the booking could take place without having to call the Special Care Desk. The applicant argues that the requirement for more agents would therefore not exist. The applicant compares this situation to purchasing clothing online where your credit information is already saved for future use.

[25] As an alternative, the applicant suggests that with a dedicated email address managed by Special Care Desk agents, OPOF passengers could book two seats online and pay for both, and then email the Special Care Desk to request a credit for the second seat.

ANALYSIS AND DETERMINATIONS

Barrier 1: When the applicant’s ability to make a reservation with the OPOF program was restricted by the limited business hours of the Special Care Desk

[26] In the Interim Decision, the Agency provided WestJet with the opportunity to address the feasibility of enabling passengers with an approval number for the OPOF program to:

1. use the online booking system;
2. email the Special Care Desk to make a reservation; or
3. book 24 hours a day, 7 days a week, by telephone, as other passengers can do in order to remove this barrier to the applicant’s mobility.

[27] The actions required to remove barriers to accessibility usually entail some burden for transportation service providers; however, the point of undue hardship is reached only when there are constraints, whether they be economic, operational or safety-related, that make the removal of the barrier impossible, impracticable or unreasonable. Mere statements of hardship are not sufficient to establish the existence of undue hardship; in accordance with the Supreme Court of Canada decision in Council of Canadians with Disabilities v VIA Rail Canada Inc, 2007 SCC 15, at paragraph 226, concrete evidence must be provided to establish undue hardship.

[28] The Agency finds that WestJet has not fully considered options to implement the proposed corrective measures or demonstrated that it would suffer undue hardship to implement one or more of these measures. Regarding the first proposed measure, WestJet argues that technical software limitations might limit the ability of passengers with an OPOF number to use the online booking system (i.e. impossibility to book two seats for one passenger on a single fare through WestJet’s website). However, it does not indicate why it is impossible to make some changes to its systems, how much it would cost to modify the systems or the impact of such changes on its operating budget. In light of the above, the Agency finds that WestJet has not met its burden to demonstrate that the implementation of the first corrective measure would constitute undue hardship.

[29] WestJet argues that it is not possible to allow persons with a disability to send an email to the Special Services Desk to book travel because credit card information cannot be taken by email. It does not indicate why it would not be possible to safely store passenger credit card information for future use, as other companies do. Similarly, WestJet did not address or consider any other use of email, such as creating a dedicated Special Care Desk email address to allow passengers to provide their OPOF number, the information about the itinerary they want to book and their telephone number so that a Special Care Desk agent could call them back to complete the transaction and take their credit card information. The Agency therefore finds that WestJet has not met its burden to demonstrate that it would suffer undue hardship to implement the second proposed measure. While the applicant also suggested the possibility of booking two seats online, and then sending an email to the Special Care Desk to request a reimbursement of the second seat once an OPOF request is approved, the Agency notes that this could create an unintended financial burden for some persons with disabilities.

[30] As for the option of allowing passengers with an OPOF approval number to book by telephone 24 hours a day, 7 days a week, WestJet did not provide any rationale to support its claim that extending the hours of the Special Care Desk would cost approximately CAD 1,000,000 in the first year, and approximately CAD 750,000 each subsequent year, nor did it indicate the impact of these costs on its operating budget. WestJet also did not address or consider other possible options to implement this corrective measure. For example, as suggested by the applicant, WestJet could train some agents in the contact centre to respond to OPOF passengers during the off-hours of the Special Care Desk. The Agency therefore finds that WestJet has not met its burden to demonstrate that the implementation of this corrective measure would cause it undue hardship.

[31] In light of the above, the Agency finds that WestJet did not demonstrate that removing this barrier would cause it undue hardship. The Agency therefore finds that the applicant faced an undue barrier to his mobility within the meaning of subsection 172(1) of the CTA when his ability to make a reservation through the OPOF program was restricted by the limited business hours of the Special Care Desk.

Barrier 2: When he waited an unreasonable amount of time on the telephone to reach the Special Care Desk

[32] In the Interim Decision, the Agency provided WestJet with the opportunity to address the feasibility of reducing the wait time to reach the Special Care Desk by telephone in order to remove this barrier. WestJet indicates that it implemented a direct telephone line to the Special Care Desk on August 16, 2021, which significantly reduced the wait time for OPOF passengers in comparison to the wait time experienced by the applicant’s representative in June 2021. The Agency finds that hold times averaging up to seven minutes are reasonable, and that WestJet has demonstrated it can remove this barrier without experiencing undue hardship. As a result, the Agency finds that the applicant faced an undue barrier to his mobility, but that no further action is necessary because WestJet has already put in place an appropriate corrective measure.

COMPENSATION

Positions of the parties

WESTJET

[33] WestJet argues that it has complied with all of its obligations under Parts 1, 2 and 3 of the ATPDR such that, if the Agency determines that there is an undue barrier, it can only require WestJet to take appropriate corrective measures and cannot award compensation.

[34] WestJet adds that the COVID-19 pandemic has brought challenges to the air industry and has affected every facet of operations. WestJet submits that the issues identified in this case are temporary and that when it returns to normal operations, it will hire and retain more employees, which should decrease call volume and wait time. WestJet argues that, because the applicant was able to book an itinerary and was accommodated, no compensation should be payable.

THE APPLICANT

[35] The applicant states that on June 29, 2021, Ms. Browne had to wait on the telephone on hold for five hours, then nine hours the next day and had to take a day off work to book the tickets. However, the applicant did not request compensation nor did he commented the issue.

Analysis and determination

[36] In the Interim Decision, the Agency determined that no accessibility regulations made under the CTA are applicable to this case and advised the parties that if the Agency finds that the applicant faced an undue barrier to his mobility, the Agency may order any of the remedies listed under subsection 172(2) of the CTA. Therefore, the Agency may order compensation for pain and suffering in this case pursuant to paragraph 172(2)(d).

ORDER

[37] In order to remedy the undue barrier to the applicant’s mobility created by the limited business hours of the Special Care Desk, the Agency orders WestJet to implement one of the following corrective measures, or a combination of them, to enable passengers with an approval number for the OPOF program to:

- use the online booking system;

- email the Special Care Desk to make a reservation; or

- book 24 hours a day, 7 days a week, by telephone, as other passengers do.

[38] The Agency also opens pleadings on possible compensation for pain and suffering.

[39] As a first step, the Agency provides the applicant with the opportunity to request compensation for pain and suffering, including the amount requested and the rationale supporting this amount. The rationale must be in relation to the pain and suffering experienced by the applicant himself, and not by any other person, such as his representative. The applicant has until 5:00 p.m. Gatineau local time on April 26, 2022 to provide this information to the Agency and copy WestJet.

[40] WestJet will then have until 5:00 p.m. Gatineau local time 15 business days from the date of receipt of the applicant’s information to submit its answer to the Agency and provide a copy to the applicant. In its answer, WestJet is required to advise the Agency of what corrective measure(s) it will take to remedy the barrier, and the expected implementation date for the corrective measure(s) it has chosen and provide a copy to the applicant. WestJet may also respond to the applicant’s request for compensation for pain and suffering.

[41] The applicant will then have until 5:00 p.m. Gatineau local time on the fifth business day after the date of receipt of WestJet’s answer to submit a reply to the Agency and provide a copy to WestJet.

[42] All correspondence and pleadings should refer to Case No. 21-50245 and be filed through the Agency’s Secretariat email address: secretariat@otc-cta.gc.ca.