Letter Decision No. LET-AT-A-30-2008

February 11, 2008

Application by Robin East against Air Canada and Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc. carrying on business as Air Canada Jazz

File No.: 
U3570/06-17

By Decision No. LET-AT-A-8-2007 dated January 17, 2008, the Canadian Transportation Agency (the Agency) addressed the July 4, 2007 request by Air Canada and Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc. carrying on business as Air Canada Jazz (the carriers) for a stay of Mr. East's application until the issuance of the Agency's decision in the AFC case (an application filed by the Council of Canadians with Disabilities, Joanne Neubauer and the late Eric Norman regarding the fares and charges required by Air Canada, Air Canada Jazz, WestJet, the Gander International Airport Authority and the Air Transport Association of Canada from passengers who require additional seating in order to accommodate their disabilities, either for themselves or for their attendants).

The Agency indicated in Decision No. LET-AT-A-8-2007 that, in light of the issuance of its decision in the AFC case on January 10, 2008, the carriers' stay request was moot and, as such, the Agency would be continuing its investigation of Mr. East's application and would render its Decision as expeditiously as possible. The parties were also reminded that, as set out in Decision Nos. LET-AT-A-289-2006 dated November 9, 2006, LET-AT-A-103-2007 dated June 1, 2007 and LET-AT-A-109-2007 dated June 11, 2007, the issue under investigation in Mr. East's case is being addressed in the context of section 149 of the Air Transportation Regulations (ATR).

In a submission dated January 28, 2008, the carriers indicate that they were reviewing the file with a view to determining whether there are any other issues they wish the Agency to have in mind before it renders its final decision on Mr. East's application. In addition, the carriers requested that the Agency set a timetable for the completion of its investigation of this matter.

The carriers filed a second submission on January 30, 2008, in which they set out the steps they propose to take and the time they need to accomplish those steps in an adequate fashion in light of constraints they face. The carriers indicate that, while it is too early for their counsel to comment on the particular steps he may recommend following his review of a chronological summary of the proceedings to date, they confirmed that he was of the view that the factual record is not complete and they do contemplate the probability of adducing further evidence. In light of constraints they face, the carriers request that the Agency fix a date of not earlier than March 21, 2008 for the filing of additional evidence.

The Agency has considered the request by Air Canada and Air Canada Jazz and, in light of the reasons given, hereby grants the carriers the opportunity to file additional evidence which is to be filed by March 21, 2008, following which Mr. East will have 10 days to file his reply.

However, in the meantime, in order to process Mr. East's application as expeditiously as possible, the Agency will, at this time, set out its preliminary findings based on the evidence filed to date. In this way, parties are required to address, as part of their submissions, the Agency's show-cause direction as set out below.

Preliminary ruling

Issue

1. The issue to be addressed is whether the following constituted undue obstacles to Mr. East's mobility and, if so, what corrective measures should be taken:

  • the floor space provided for Mr. East's service animal at the seat initially assigned to Mr. East and the difficulties he experienced upon boarding and before the commencement of Air Canada Flight No. AC137 resulting from the carriers' practice of attempting to provide accommodation at no additional charge, only immediately prior to departure, to persons with disabilities who travel with service animals for which the floor space at the assigned seat is insufficient; and
  • the floor space provided for Mr. East's service animal at the seat assigned to Mr. East on Air Canada Jazz Flight No. AC8576.

Facts

2. Mr. East is blind and uses a service animal, a guide dog that weighs 85 pounds, for his mobility and safety. Mr. East conveyed this information to those making his outbound and inbound travel arrangements.

3. Mr. East travelled from Saskatoon to Toronto on Air Canada Jazz Flight No. AC8830 on April 29, 2006, from Toronto to Kelowna via Vancouver on Air Canada Flight No. AC137 and Air Canada Jazz Flight No. AC8424 on May 5, 2006, and from Kelowna to Saskatoon via Vancouver on Air Canada Jazz Flight Nos. AC8415 and AC8576 on May 7, 2006.

4. Mr. East's reservations were made more than 48 hours prior to departure. A notation on Mr. East's reservation record, the Passenger Name Record (hereinafter the PNR), for Flight No. AC137 indicates that Mr. East is blind and requires sufficient space on board for his 85-pound guide dog. The PNR also confirms that he received prior approval from Air Canada's MEDA Desk for his outbound travel, that he was pre-assigned bulkhead seat 12K, and that the advance seat selection fee was waived for this assignment.

5. The following notation appears on Mr. East's inbound PNR for Flight No. AC8576: "SSRBLNDCPN1 working dog". The International Air Transportation Association (IATA) Reservations Services Manual sets out that the BLND code is used to denote that a passenger is blind.

6. Mr. East was seated in bulkhead seat 12K on Air Canada Flight No. AC137 from Toronto to Vancouver, on an Airbus 330 aircraft (hereinafter A330) with a capacity of 274 passengers, which departed with 32 open Economy Class seats. As the passenger originally seated next to Mr. East did not travel on that flight, Mr. East and his service animal had use of the floor space at seat 12H on Flight No. AC137. On his return from Kelowna to Saskatoon on May 7, 2006, Mr. East was seated at the bulkhead on Air Canada Jazz Flight No. AC8576 from Vancouver to Saskatoon, on a Canadair Regional Jet 200 (hereinafter CRJ) with a capacity of 50 seats, which departed with all seats occupied. Mr. East and his service animal had use of the floor space at only one seat on Flight No. AC8576.

Applicable policies and procedures of the carriers

7. The carriers provided policies and procedures with respect to seating persons with disabilities who travel with service animals.

8. Chapter 57-MEDA Impaired Vision-Hearing submitted by the carriers provides the following text under "Definition of Service Animals":

  • an animal (i.e., a dog or monkey) that is certified and professionally trained to assist a person with a disability.
  • must be harnessed and seated at the passenger's feet.
  • are carried free of charge when accompanying a passenger in the cabin or when carried in the baggage compartment even if the customer happens to have a travelling companion.

...

9. Chapter 57-MEDA Impaired Vision-Hearing sets out the following concerning, in part, passengers travelling with service animals:

  • these passengers may be seated anywhere, except in emergency exit rows and in row 12 of A319 & A320 and A321.
  • hospitality class seats that have more surrounding floor and/or are considered to be the most appropriate for travel with a service animal have been identified on each aircraft type.
  • all seats located in the executive/executive first cabin are adequate for service animals.
  • determination of appropriate seat should be done in consultation with the passenger.

10. The carriers submitted that Air Canada's policy does not guarantee two seats for a passenger unless the passenger pays for the second seat at 50 percent of the price of the first seat, except if the passenger pays a Tango fare, the most discounted fare offered, in which case the 50-percent reduction for the second seat is not available.

11. In their submission filed on November 14, 2006, the carriers explained that there is no "one document" relating to the assignment of seats for persons with disabilities, as seat assignment will depend on the aircraft and type of ticket purchased. Should the ticketed fare not allow advance seat selection, the carriers will note the seating requirement (e.g. a liftable armrest) and will advise the passenger that a seat meeting his/her needs will be provided. If, however, there is a very limited number of seats that meet the passenger's requirements and the only means of ensuring that the seat is assigned to the passenger is to pre-select the seat, the agent will assign a seat to the passenger. The carriers added that certain seats, such as the bulkhead seats on the A330 aircraft, are kept for airport assignment and are assigned last. Furthermore, if regulations impose certain restrictions on who can sit in a specific seat (e.g. the exit row), these seats will only be assigned at the airport so that the agent can appropriately assign them.

12. The carriers further advised that although many seats are designated for passengers with disabilities, disabilities may vary and no seats are specifically designated seats for persons with disabilities accompanied by service animals. The carriers stated that the bulkhead in the Economy Class cabin on the A330 is used, generally with satisfaction, by passengers with disabilities travelling with a service animal.

Analysis and findings

13. In making its preliminary findings, the Agency has considered the evidence submitted by the parties during the pleadings to date.

14. An application must be filed by a person with a disability or on behalf of a person with a disability. In the present case, Mr. East is blind and uses a service animal for his mobility and safety. As such, Mr. East is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

Background

15. It is widely recognized and accepted that people who are blind and rely on service animals for their mobility, such as Mr. East, need to be able to travel with their animals and keep those animals within their control at all times to have as much independence as possible in their travels.

16. This principle has long been recognized by the Agency in its complaint adjudication work under section 172 of the CTA. Furthermore, Part VII of the ATR, Terms and Conditions of Carriage of Persons with Disabilities Regulations, was promulgated on January 1, 1994 to establish service standards to ensure that air carriers subject to the regulations provide uniform services to passengers with disabilities. Under these Regulations, which are applicable in the case at hand, Canadian air carriers providing domestic air services using aircraft with 30 or more seats are required to accommodate persons travelling with service animals. Specifically, section 149 of the ATR provides as follows:

  1. Subject to section 151, an air carrier shall accept a service animal for carriage without charge if the animal is:
    1. required by a person for assistance; and
    2. certified, in writing, as having been trained to assist a person by a professional service animal institution.
  2. Where an air carrier accepts a service animal for carriage pursuant to subsection (1), the air carrier shall permit the animal, if the animal is properly harnessed in accordance with standards established by a professional service animal institution, to accompany the person on board the aircraft and to remain on the floor at the person's passenger seat.

Subsection 151(1) of the ATR provides as follows:

1) Where a person requests a service set out in this Part at least 48 hours before the scheduled time of departure of the person's flight, the air carrier shall provide the person with the service.

...

3) Where a request for a service referred to in subsection (1) or (2) is not made within the time limit provided thereunder, the air carrier shall make a reasonable effort to provide the service.

...

17. The Agency subsequently issued the Code of Practice for Aircraft Accessibility for Persons with Disabilities (the Air Code) Air Code in 1997, which offers practical, functional, operations- oriented solutions to problems faced by persons with disabilities who travel by air and avoids precise measurements and rigid descriptions of exact procedures to follow.

18. The Air Code addresses seats with floor space to accommodate a service animal. In this regard, the Agency sets out at subsection 2.6 of the Air Code that air carriers should provide a number of such passenger seats, other than exit row seats, in each class section in passenger cabins, e.g. first, business and economy classes. The Air Code also addresses the positioning of the animal in the aircraft, i.e. that there should be enough floor space for a service animal to lie down.

19. The Agency considered the issue of sufficient space for service animals in a case involving international air travel with Air Canada. In that case, the applicant was travelling with her service animal as well as a travelling companion who also had a service animal, and they asked to be seated together. The passengers were assigned three seats to accommodate themselves and their two service animals. In this way, the applicant was provided with additional floor space to accommodate her service animal albeit one half of the floor space at the adjacent seat as the space was shared by two service animals. In Decision No. 670-AT-A-2001 dated December 27, 2001, the Agency found that, given the applicant's "...experience and the discomfort...as a result of the limited space for her guide dog, the seating assigned to her constituted an obstacle to her mobility." However, that Panel of the Agency found that the space did not constitute an undue obstacle as "the assigned seats were the most accessible seats for her in the economy class section of the aircraft." The Panel in that case went on to comment that the Air Code should be revisited to "determine whether more precision is needed in the provision that asks air carriers to provide enough floor space for a service animal to lie down" which, the Panel noted, "will require further consultations with carriers and guide dog users."

20. Although the Agency, following the issuance of that decision, did not specifically consult on this provision of the Air Code, consultations took place through the then Minister of Transport's Advisory Committee on Accessible Transportation and a workshop on "Travelling with a Service Animal in the Federal Transportation System" was held by Transport Canada in October 2003. However, the Agency understands that no recommendations on space requirements were made and the issue remains unresolved.

21. An important factor distinguishing the previous international air case from the case at hand is that the ATR apply to the flights taken by Mr. East.

22. The Agency has long taken the approach that transportation service providers should be left with as much flexibility as possible in determining how best to meet the needs of persons with disabilities in consideration of each service provider's different operations, equipment and practices. Fleet composition and aircraft configuration can vary widely between carriers and can change significantly over time for each carrier, and the Agency encourages carriers to continually revisit and revise their practices, policies and procedures to ensure that persons with disabilities are being provided with appropriate accommodation in the provision of transportation services.

Approach to determining the undueness of obstacles

23. With respect to domestic air services, in order 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 adopts one of the two following approaches:

1) Regulatory compliance: where a regulation applies to the situation, the Agency may determine the existence of an undue obstacle based in part on the carrier's compliance with the regulation. Subsection 172(2) of the CTA sets out the following:

Where the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.

If the evidence supports a finding that a carrier has not contravened the applicable regulation, the Agency has no alternative but to find that the situation does not constitute an undue obstacle to the mobility of persons with disability. Equally, if the Agency concludes that there has been a regulatory contravention, it will necessarily result in a finding that the situation constitutes an undue obstacle, including a determination of appropriate corrective measures pursuant to subsection 172(3) of the CTA. To determine otherwise will undermine the regulatory scheme that promotes accessibility for persons with disabilities.

2) Undue obstacle analysis: where regulations made under subsection 170(1) of the CTA do not apply to the situation, the Agency first determines whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency then decides whether that obstacle was undue. In order to answer these questions, the Agency takes into consideration the particular facts of the case before it.

Once the applicant has established in the application the existence of an obstacle to the mobility of a person with a disability in the federal transportation network, the onus of proof then shifts to the respondent transportation service provider to prove, on a balance of probabilities, that the obstacle is not undue. To this end, the respondent must demonstrate that the source of the obstacle:

  • is rationally connected to a legitimate objective, such as those objectives found in the national transportation policy contained in section 5 of the CTA;
  • was adopted by the transportation service provider with an honest and good faith belief that it was necessary to the fulfilment of that legitimate objective; and
  • is reasonably necessary for the accomplishment of its objective, such that it is impossible for the transportation service provider to accommodate the person with a disability without imposing undue hardship on the service provider.

The transportation service provider must show that reasonable accommodation has been provided, meaning up to the point of undue hardship. What constitutes reasonable accommodation in each case is a matter of degree and depends on a balancing of the interests of persons with disabilities with those of the transportation service provider in the circumstances of the case. In the end, reasonable accommodation will be the most appropriate accommodation which would not cause undue hardship to the transportation service provider.

The undue obstacle approach applicable to Mr. East's case

24. In this case, given that the issues raised in Mr. East's application are covered by provisions in the ATR, the Agency's investigation is based on a determination of whether the carriers complied with the applicable regulations.

25. On October 16, 2006, the carriers requested that part of Mr. East's application be stayed (i.e., the question of whether an air carrier should leave the seat free next to a passenger with a disability travelling with a service animal) until the final outcome of an oral hearing on the matter of persons with disabilities requiring extra seating in another case before the Agency. Although the Agency in Decision No. LET-AT-A-289-2006 dated November 9, 2006, the Agency noted that the question of whether an air carrier should leave the seat free next to a passenger with a disability travelling with a service animal has been raised by Mr. East as a corrective measure to address the difficulties which form part of his application, the Agency explicitly stated that it is addressing Mr. East's application in the context of section 149 of the ATR.

26. By Decision No. LET-AT-A-103-2007 dated June 1, 2007, the Agency reiterated that it was addressing Mr. East's application in the context of section 149 of the ATR, which provides that an air carrier shall accept a service animal without charge, and, as such, the Agency had determined that an adjournment is neither required nor appropriate.

27. In light of a request from counsel for the carriers, the Agency, in Decision No. LET-AT-A-109-2007 dated June 11, 2007, provided the following clarification of the issue under investigation, as it relates to the ATR.

Subsection 149(1) of the ATR requires that service animals be carried free of charge if they are required by a person with a disability for assistance and certified, in writing, as having been trained to assist a person with a disability by a professional service animal institution. Subsection 149(2) of the same regulations provides that when a carrier accepts a service animal for carriage pursuant to subsection (1), the air carrier shall permit the animal, if properly harnessed in accordance with standards established by a professional service animal institution, to accompany the person on board the aircraft and to remain on the floor at the person's seat.

While the Agency recognizes that the carriers accepted Mr. East's service animal for travel at no additional cost, the Agency will review Mr. East's application to determine whether the carriers have fully complied with subsection 149(2) of the ATR, by providing sufficient floor space to permit Mr. East and his service animal to travel safely and to permit Mr. East's service animal to remain on the floor at his seat. In addition, the Agency will determine whether the application of the carriers' policy to persons with disabilities who travel with service animals on domestic flights, which guarantees the adjacent floor space in front of the second seat for the exclusive use of their service animal at a cost, in those cases where this is necessary to adequately accommodate the person and their service animal, constitutes a contravention of subsection 149(1) of the ATR.

28. The parties were further reminded in Decision No. LET-AT-A-8-2008 dated January 17, 2008 that the issue under investigation is being addressed in the context of section 149 of the ATR.

29. The Agency notes that subsection 149(1) of the ATR, subject to the 48-hour advance notice requirements of section 151 of the ATR, requires that service animals be carried free of charge if they are required by a person with a disability for assistance and are certified, in writing, as having been trained to assist a person with a disability by a professional service animal institute.

30. Subsection 149(2) of the ATR provides that when a carrier accepts a service animal for carriage pursuant to subsection (1), the air carrier shall permit the animal, if properly harnessed in accordance with standards established by a professional service animal institution, to accompany the person on board the aircraft and to remain on the floor at the person's seat. The Agency is of the opinion that this right is not to be construed narrowly; rather, it must be interpreted in a manner that is purposive and functional to give meaning to the rights of the persons it is intended to protect.

31. While in some cases the space available at the person's seat will be adequate to accommodate both the person and the person's service animal, there will be situations where additional space is required due to (a) the configuration of the aircraft, (b) the size of the animal, (c) the duration of the flight, etc.

32. It goes without saying that in order for a level of accommodation to be appropriate, it must meet a basic standard of safety, such that the person is not exposed to unreasonable risk of injury. In the case of persons who are blind and travel with service animals, this principle is equally applicable to the service animals on which they rely for their mobility and independence, such that the conditions under which the service animal is transported should not negatively impact on its well-being and safety to the point that its ability to perform its functions and provide the assistance to the person with a disability for which it is trained, may be compromised.

33. The Agency is of the opinion that it is implicit in subsection 149(2) of the ATR that, in order for subsection 149(2) to be interpreted purposively, carriers must provide "sufficient floor space" to permit the service animal to remain on the floor at the person's seat while ensuring that both the person with a disability and the service animal can travel safely. The wording of the regulation would not reasonably support any other construction. It would not be reasonable to interpret the regulation such that a carrier could be found to have complied with it where the space provided to the person and his/her service animal may result in injury and/or extreme discomfort with the resulting negative impact on the person's well-being and/or on the animal's ability to adequately complete the duties which it is trained to perform.

34. Given that the issues raised in Mr. East's application are covered by section 149 of the ATR, the Agency will apply the regulatory compliance approach to determine whether, on a preliminary basis, the following constituted undue obstacles to Mr. East's mobility:

  • the floor space provided for Mr. East's service animal at the seat initially assigned to Mr. East and the difficulties he experienced upon boarding and before the commencement of Air Canada Flight No. AC137 resulting from the carriers' practice of attempting to provide accommodation at no additional charge, only immediately prior to departure, to persons with disabilities who travel with service animals for which the floor space at the assigned seat is insufficient; and
  • the floor space provided for Mr. East's service animal at the seat assigned to Mr. East on Air Canada Jazz Flight No. AC8576.

The case at hand

35. The carriers received the request for sufficient space for Mr. East and his service animal on the domestic flights in question more than 48 hours prior to his departure. As such, pursuant to subsection 151(1) of the ATR, the carriers were required to provide the services set out in section 149 of the ATR to accommodate Mr. East, who was travelling with his service animal which the carriers accepted for carriage. Mr. East did everything he could to notify the carriers of his requirements during travel and his reservation records accurately reflect his disability and the accommodation required. The Agency notes that Mr. East is an experienced traveller, that he anticipated having insufficient space for his service animal at his assigned seat on the aircraft being used for his flights, and that he made suggestions on how he could best be accommodated on the flights, such as leaving the seat beside him empty.

36. While the carriers have indicated that the bulkhead seats in the Hospitality or Economy Class cabin on the A330 and the CRJ aircraft on which Mr. East travelled provide the most leg room and space for a service animal and that there was sufficient space for Mr. East's service animal to lie down, given Mr. East's experience, the Agency will review the sufficiency of this space for Mr. East's service animal with respect to the two flights in question.

Space for Mr. East's service animal

Air Canada Flight No. AC137 from Toronto to Vancouver on May 5, 2006

37. Once seated with his service animal on Flight No. AC137, Mr. East advised the carrier personnel that there was insufficient floor space for himself and his service animal at his seat as the service animal was encroaching on the floor space at the seat of the passenger seated next to him, a concern which he had initially mentioned to the agents involved in his check-in and boarding when he was advised that the seat next to him would be occupied. The passenger seated next to Mr. East agreed that there was insufficient floor space for himself and Mr. East with his guide dog, and this statement appears to have been accepted by the carrier personnel as they worked to find a suitable seat reassignment for the passenger. On this basis, the Agency accepts that the floor space provided at the seat assigned to Mr. East was insufficient to accommodate Mr. East and his service animal.

38. The Agency accepts Mr. East's evidence that, as a result of the insufficient floor space, the passenger seated next to him entered into forceful discussions with the carrier personnel lasting some 25 minutes, he continued to voice his dissatisfaction with the situation which was witnessed by other passengers, and he expressed his concerns that he may inadvertently hurt Mr. East's service animal should he fall asleep. The Agency notes the carriers' indication that the passenger felt that Mr. East's service animal should not be carried in the cabin and that the carriers have confirmed that the flight was delayed as the passenger's baggage had to be off-loaded because he ended up leaving the aircraft and not travelling on Flight No. AC137.

39. Although Mr. East was subsequently provided with the use of the adjacent space in front of the seat beside him, the Agency accepts Mr. East's evidence that the situation experienced by him on board the aircraft was humiliating and embarrassing. The Agency is of the opinion that persons with disabilities should not have to endure situations such as this when travelling, and that the carriers' practice of providing accommodation at no additional charge to persons who travel with service animals for which the floor space at the assigned seat is insufficient, by moving people around immediately prior to departure, brings undue and sometimes negative attention to persons with disabilities and adversely affects their dignity as travellers.

Air Canada Jazz Flight No. AC8576 from Vancouver to Saskatoon on May 7, 2006

40. With respect to Mr. East's seating on Air Canada Jazz Flight No. AC8576 which was booked to capacity, the Agency notes that although the passenger seated next to Mr. East accepted the floor space provided unlike the passenger on Flight No. AC137, the passenger still had to place his feet in the aisle and move them back in front of him to permit passage of the trolley or of other passengers. The Agency further notes that Mr. East's service animal had to continually move from a "down to a sit" position because of the inadequacy of the space provided which resulted in the flight attendant instructing Mr. East to have his dog stay in the down position. Mr. East, for his part, felt compelled to tuck his legs under the seat as far as possible to make room for his service animal; his legs were locked in a cramped and uncomfortable position for the entire flight; and his legs were pushed far under the seat with only his toes on the floor. Furthermore, the Agency accepts Mr. East's evidence that he arrived at destination with sore and swollen knees, and in extreme discomfort due to the insufficient space for him and his service animal.

Finding

41. In light of the foregoing, the Agency finds that insufficient floor space was provided for Mr. East's service animal at the seat initially assigned to Mr. East on Air Canada Flight No. AC137, as a result of the carriers' practice of attempting to provide accommodation at no additional charge, only immediately prior to departure, to persons who travel with service animals for which the floor space at the assigned seat is insufficient.

42. Similarly, the evidence establishes that the floor space provided at the seat assigned to Mr. East on Flight No. AC8576 was insufficient for Mr. East and his service animal. The passenger sitting next to Mr. East was entitled to be able to rest his legs and feet in front of him while travelling and Mr. East was entitled to travel safely and in a position that does not negatively affect his well-being. Both passengers were clearly unable to do so on this flight with the space provided. Additionally, the Agency notes Mr. East's concerns regarding the impact of seating accommodation, like that provided on Flight No. AC8576, which restricts the movement and position of his service animal, on the animal's well-being and future ability to carry out the duties for which it is trained. While the Agency notes the carriers' statement that space under the seat is available for use by a service animal and acknowledges that this may be the case depending on the seat construction and whether such space is unobstructed, the Agency notes Mr. East's assertion that he considers the space to be unsafe and unusable given that his service animal was cut in the past.

Carriers' practice

43. The carriers have chosen to provide accommodation to persons with disabilities travelling with service animals by:

  • entering into a dialogue with the person with a disability at the time of reservation to obtain information about his/her disability and to better understand his/her disability-related needs;

  • noting the passenger's disability and related needs in the PNR at reservation;

  • assigning to the person a seat with the most floor space that he/she is permitted to sit in within the class of service that the person purchases, either at reservation or at check-in; and,

  • where the assigned seat does not provide sufficient floor space for the service animal to remain safely on the floor at the passenger's feet, the in-flight crew, waiting until the flight has been fully boarded and immediately prior to departure, assesses the location of empty seats, if any, and determines whether the person can be accommodated either in a seat in another class of service that provides sufficient floor space or with the use of the floor space at an empty seat adjacent to the person with a disability.

44. Therefore, rather than assigning sufficient floor space at no additional cost from the outset, where necessary, the flight crew has to make last minute changes to the seating of passengers, on an ad hoc basis and using various alternatives, to accommodate travellers such as Mr. East and their service animals.

45. The Agency acknowledges that, from the carriers' perspective, this practice permits them the most flexibility in accommodation. It permits the assessment of the adequacy of the floor space at the assigned seat with the person and his/her service animal in the space, which may be helpful given the variation in sizes of service animals. If the space is found to be insufficient, it permits the identification of empty seats on the aircraft and either the movement of other passengers within the aircraft to allow the person with a disability to occupy a seat with an empty place beside him/her, to provide the additional adjacent floor space for the service animal or possibly to move the person with a disability to an empty seat in Executive Class, as Mr. East experienced in the past.

46. However, while this practice may be beneficial to the carriers in that they retain as much flexibility as possible and may result in passengers such as Mr. East and their service animals ultimately being provided with sufficient floor space, as was the case on Flight No. AC137, the outcome of this last minute measure of accommodation is not always appropriate and can pose significant problems for the person with a disability, as was illustrated by Mr. East's two experiences. For example, if a flight is full, as was the case on Flight No. AC8576 , the person will have to either leave the aircraft or, as Mr. East did on this flight, travel in a very constrained and restrictive position as he/she tries to make do with the insufficient space provided. Mr. East endured cramped and uncomfortable seating conditions to the point that he was in extreme discomfort with sore and swollen knees upon arrival in Saskatoon as a result of having to make as much space as possible for his service animal due to his concerns about the well-being of the animal. Such situations will also result in the passenger seated beside the person with a disability having to reposition themselves, possibly by placing their legs in the aisle, as the service animal encroaches on the floor space at his/her seat and may lead them to responding negatively to the person with a disability.

47. Furthermore, problems can arise even if the flight is not full, as illustrated by Mr. East's experience on Flight No. AC137. While the Agency acknowledges that Mr. East's negative experience on this flight was created, in large part, by the attitude and behaviour of the passenger seated next to him, something that falls outside of the control of the carrier, the Agency is of the opinion that where a person with a service animal is seated immediately beside another passenger in a seat that does not provide sufficient floor space for a service animal, unnecessary attention will always be drawn to the person with a disability and his/her difficulties in being accommodated even under the best of circumstances. Mr. East unfortunately experienced much worse circumstances and the Agency is of the opinion that it is reasonable to predict that most experiences will fall somewhere between the two extremes. Passengers are usually not happy to be moved in an aircraft at the last minute, after they have stowed their cabin luggage and settled into their seat, particularly if they have chosen that seat and even paid an advance seat selection fee.

48. The Agency recognizes that persons who are blind and travel with service animals generally share their space with their animals, which may cause some level of discomfort. However, the Agency is of the opinion that Mr. East's experience goes well beyond discomfort and is unacceptable. Further, the Agency is of the opinion that extreme discomfort negatively impacts on a person's well-being, increases the risk of injury, and therefore has safety implications for the person. In addition, the Agency accepts Mr. East's position that where the space provided results in the service animal being forced to travel in a very constrained position, this has negative implications for the service animal which may impact on the animal's ability to function in the future, and the Agency is of the opinion that, given the critical role that service animals play in the independence of persons who are blind, the risk of injury to service animals is a significant safety-related concern for their owners.

49. In light of the above, the Agency finds, on a preliminary basis, that the carriers' practice of attempting to provide accommodation to persons with disabilities who travel with service animals only immediately prior to departure in cases where the space at the person's assigned seat is insufficient does not comply with regulatory requirements as it could result in the unavailability of an appropriate seat required to accommodate the person.

50. The Agency is of the opinion that in making their travel plans, persons with disabilities are entitled to the same certainty that other people enjoy of being able to travel as scheduled. For most people, this certainty is provided through their reservation; however, for persons with disabilities, to have this certainty, they must also be assured that their disability-related travel needs will be reasonably accommodated and met by the carrier. Mr. East's experiences highlight the fact that the carriers' practice of attempting to provide accommodation only immediately prior to departure to persons with disabilities who travel with service animals does not provide that certainty, thereby resulting in situations where the seating assigned by the carriers does not provide "sufficient floor space" to permit the service animal to remain on the floor at the person's seat while ensuring that both the person with a disability and the service animal can travel safely.

51. The Agency notes that Mr. East has indicated that he was provided with some certainty on one flight where he was advised by the check-in agent that he would have an empty seat beside him on the aircraft; however, the Agency is of the opinion that it is not appropriate for Mr. East to have to wait until the day of his trip to know whether he will have sufficient space on board the aircraft to accommodate his service animal.

52. The Agency notes that aircraft types and configurations have continued to change, and is of the opinion that air carriers are best placed to determine how they can accommodate the needs of persons travelling with service animals. Additionally, while the Agency recognizes that air carriers configure their aircraft to meet various operational and safety requirements, air carriers are still required to meet their other regulatory requirements. Furthermore, air carriers must also reasonably accommodate the needs of persons with disabilities and, where they do not do so, the Agency will, where there is a regulatory requirement to provide the accommodation, find undue obstacles and may impose appropriate corrective measures and take any other necessary action to eliminate the undue obstacles form the federal transportation network.

53. The Agency recognizes that given the space available on board the aircraft, the means of accommodating persons with disabilities who travel with service animals may vary depending on the size of the service animal and the configuration of the aircraft. In this respect, the Agency notes the carriers' policy that states that certain seats on the aircraft provide enough space at one seat to accommodate a person and his/her service animal (all those in the Executive/Executive First Class cabin), others are identified as providing more leg room and space for service animals (some of those in the Hospitality Class cabin), while some seats that have additional floor space that could better accommodate a service animal are not available to persons with disabilities as they are located in emergency exit row seats. However, it is apparent that in the case at hand, the seats assigned on the two aircraft, which the carriers assert offered the most space available, did not provide sufficient space for Mr. East and his service animal.

54. With respect to making travel plans, the carriers have submitted that in order to ensure that persons with disabilities receive the same level certainty that other people enjoy concerning their ability to travel as scheduled, persons with disabilities who travel with service animals must pay an additional fare, either a full Tango fare or 50 percent of the other fares, in order to block the seat beside them to ensure that the additional adjacent floor space in front of that seat will be available for the exclusive use of their service animal. However, the Agency notes that, on domestic flights using aircraft of 30 seats or more, carriers are required by regulation to provide appropriate accommodation without charge to persons with disabilities who travel with service animals and, as such, the application of their policy to charge a fare, albeit a discounted fare in some cases, would constitute a contravention of subsection 149(1) of the ATR.

55. The Agency notes that in response to Mr. East's submission that his request for sufficient space for himself and his service animal should be dealt with at the time of his initial reservation, the carriers provided no operational reasons as to why they cannot assess the amount of floor space that would be sufficient to accommodate a person with a disability and his/her service animal and confirm at the time of booking that the space will be provided at no additional charge.

56. The Agency is of the opinion that a full discussion at the time of reservation will provide the carriers with information about the passenger's needs and will allow them to assess, depending on the aircraft type, the seating configuration and the size of the service animal, whether there is sufficient floor space for the person travelling with his/her service animal, and, where there is not, to make the necessary arrangements to provide sufficient floor space at no additional charge and thus provide certainty to the traveller that their disability-related needs will be accommodated.

57. Although the Agency accepts the carriers' statements that Mr. East could not be seated in exit rows because of safety and the CAR, and their further statement that Mr. East was provided with the seats with the most space in the class of service that he purchased on both flights, the Agency finds, on a preliminary basis, in light of the above, that the carriers contravened subsection 149(2) of the ATR as the floor space provided at the seats in question was insufficient and, therefore, did not provide an appropriate level of accommodation. As such, the Agency finds, on a preliminary basis, that the following constituted undue obstacles to Mr. East's mobility:

  • the floor space provided for Mr. East's service animal at the seat initially assigned to Mr. East and the difficulties he experienced upon boarding and before the commencement of Air Canada Flight No. AC137 as a result of the carriers' practice of attempting, only immediately prior to departure, to provide accommodation at no additional cost to persons who travel with service animals for which the floor space at the assigned seat is insufficient; and,
  • the floor space provided for Mr. East's service animal at the seat assigned to Mr. East on Air Canada Jazz Flight No. AC8576.

58. As demonstrated by Mr. East's experience on Flight No. AC8576, inappropriate policies and practices with respect to seating arrangements have a negative impact on Mr. East's well-being; Mr. East did not have enough space to travel safely, with his service animal accompanying him while remaining on the floor at the seat that Air Canada Jazz had assigned to Mr. East on the aircraft used for that flight.

59. During the course of pleadings, the carriers referred to an alternative available to persons with disabilities who travel with a service animal and who want certainty that they will have sufficient space for their service animal on board the aircraft. This alternative provides the person with a disability the option of purchasing two seats (the second at a reduced fare except in cases where the first seat is purchased at the Tango fare) thus guaranteeing the availability of the adjacent floor space in front of the second seat for the exclusive use of the service animal. However, the Agency finds, on a preliminary basis, that the application of the carriers' policy to persons with disabilities who travel with service animals on domestic flights, which guarantees the adjacent floor space in front of the second seat for the exclusive use of their service animal at a cost, in those cases where this is necessary to adequately accommodate the person and his/her service animal, constitutes a contravention of subsection 149(1) of the ATR as sufficient space for a service animal to remain with the person with a disability must be made available to that person at no additional charge.

60. While the Agency has found, on a preliminary basis, contraventions of the ATR, in the event that the Agency would reach such a determination in its final ruling in this case, it would not take further steps to enforce the regulation as it is of the opinion that the matters may be better addressed through the imposition of corrective measures related to the undue obstacle finding.

Conclusion

61. The Agency has determined, on a preliminary basis, that the carriers contravened section 149 of the ATR as the floor space provided at the seats in question was insufficient and, therefore, did not provide an appropriate level of accommodation. As such, the Agency finds, on a preliminary basis, that the following constituted undue obstacles to Mr. East's mobility:

  • the floor space provided for Mr. East's service animal at the seat initially assigned to Mr. East and the difficulties he experienced upon boarding and before the commencement of Air Canada Flight No. AC137 resulting from the carriers' practice of attempting to provide accommodation at no additional charge, immediately prior to departure, to persons who travel with service animals for which the floor space at the assigned seat is insufficient; and.
  • the floor space provided for Mr. East's service animal at the seat assigned to Mr. East on Air Canada Jazz Flight No. AC8576.

Direction to show cause

62. In light of the serious nature of the issue, the Agency finds it appropriate to provide Air Canada and Air Canada Jazz with an opportunity to submit further evidence, by way of a direction to show cause, to address its preliminary findings as set out above.

63. In this case, any remedy is intended to only apply to domestic air services.

64. The issue of what constitutes sufficient space for a service animal is a long-standing issue and, in keeping with the approach taken by the Agency in both the ATR and the Air Code, the Agency is of the opinion that this issue is best left to be resolved by the carriers themselves. Neither the ATR nor the Air Code provide for specific space requirements for this or other issues; rather, the Agency has broadly set out the required objective, in recognition of the broad application of the ATR to a wide variety of different air carriers, each with different operations, and aircraft types and configurations that change from time to time. Furthermore, the Agency has provided additional service expectations in the Air Code for the same reasons. Under the circumstances, the Agency is of the opinion that carriers should be left with the flexibility to set these specific standards for themselves and their operations, as well as the freedom to accommodate persons with disabilities through those alternatives that they decide are appropriate for their specific operations, so long as they provide appropriate levels of accommodation to persons with disabilities.

65. Consequently, the Agency is of the preliminary opinion that the carriers should, within a 90-day period following the issuance of the final determination, take the following corrective measure, as it applies to service animals described in subsections 149(1) and 149(2) of the ATR:

  • Develop policies and procedures to ensure that at the time of reservation, and upon receipt of a request at least 48 hours prior to the scheduled flight departure, the carriers will provide certainty that the person will be assigned seating with sufficient floor space at no additional cost. In this way, the carriers have the flexibility of delaying the assignment of a specific seat(s), provided they guarantee that appropriate accommodation will be provided. The determination concerning the seating accommodation that will be provided shall be made:
  • through dialogue with the person with a disability travelling with a service animal;
    • by reference to the floor space available at seats within the aircraft for use by the person and the service animal; and
    • by reference to the amount of floor space needed to accommodate the service animal.

These policies and procedure must also include provisions setting out that, where such a request is made less than 48 hours prior to departure, the air carrier will make a reasonable effort to provide the service.

66. This corrective measure is determined by the Agency to be necessary to ensure compliance with subsections 149(1) and 149(2) of the ATR and, thereby, eliminating the undue obstacle, which the Agency has found on a preliminary basis was experienced by Mr. East, and to leave as much discretion as possible with the carriers to develop appropriate policies and procedures in consideration of their specific equipment and operations.

67. Air Canada and Air Canada Jazz are therefore required to provide specific evidence and related arguments to show cause why they have not contravened section 149 of the ATR, why the obstacles are not undue and why they should not be required to implement the corrective measure. As set out above, the carriers have until March 21, 2008 to respond to this direction to show cause, following which Mr. East will have 10 days to file his reply.

Should you have any questions regarding this matter, you may contact Andray Renaud, Agency counsel, at 819-953-8941, by e-mail at secretary@otc-cta.gc.ca, or by facsimile at 819- 953-6019.

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