Letter Decision No. LET-AT-A-41-2022

[1] Mr. Abbasi has fibrodysplasia ossificans progressiva, which causes his joints to fuse over time and prevents him from bending his legs. Mr. Abbasi requires a reclining seat with extra leg room as an accommodation for his disability.

[2] On July 2, 2021, Mr. Abbasi’s friend sent an email to Air France’s medical desk on Mr. Abbasi’s behalf to ask the carrier if it would upgrade Mr. Abbasi’s seat to business class for free because he could not sit in economy seating due to a severe disability. The carrier responded that it would not upgrade Mr. Abbasi’s seat for free, but suggested that he could pay for an upgrade or for a seat with extra leg room in economy and referred his inquiry to their reservations service.

[3] Mr. Abbasi subsequently sent an email to Air France’s medical desk to ask if they would upgrade his seat or provide him with a seat with extra leg room to accommodate his severe disability, noting Air France’s human rights obligations. Once again, Air France replied that only the standard seats were available for free and that a cost would always apply to the bulkhead and extra leg room seats.

[4] Mr. Abbasi concluded that he would not be able to travel and did not book a ticket with Air France.

[5] Mr. Abbasi requests that Air France accommodate him with a reclining seat with extra leg room and with an additional seat for a travel companion to assist him with his disability-related needs. Mr. Abbasi also requests compensation for a violation of his human rights.

[6] In this decision, the Canadian Transportation Agency (Agency) will determine whether Mr. Abbasi is a person with a disability as defined in Part V of the CTA. The Agency will then determine, as per subsection 172.1(1) of the CTA, if Air France properly applied subsection 54(1) of the Accessible Transportation for Persons with Disabilities Regulations^{Note 1} (ATPDR). If the Agency determines that Air France did not properly apply the ATPDR, the Agency will then determine if Mr. Abbasi was adversely affected by Air France’s failure to do so.

[7] For the reasons set out below, the Agency finds that Air France contravened subsection 54(1) of the ATPDR and that Mr. Abbasi was adversely affected by Air France’s contravention. In light of these findings, the Agency will not address whether Mr. Abbasi encountered a barrier. The Agency directs Air France to provide information concerning its policies related to subsection 54(1) and provides the parties with an opportunity to make submissions on the remedies that the Agency may order, including whether the Agency should order Air France to pay compensation for pain and suffering, wilful and reckless practice, or both.

[8] The relevant provisions of the CTA and ATPDR are set out in the Appendix.

Preliminary matter

[9] Mr. Abbasi requests that Air France provide him with an additional seat for a travel companion to assist him with his disability-related needs in future travel, an accommodation referred to in past Agency decisions such as Decision 6-AT-A-2008 as “one person-one fare” (1P1F). However, for the reasons set out in Decision 95-AT-A-2022 (Yale v Air Canada),the Agency will not order carriers to apply 1P1F to international air travel at this time.

Is Mr. Abbasi a person with a disability?

[10] Mr. Abbasi filed a doctor’s note with the Agency that he suffers from fibrodysplasia ossificans progressiva, a rare disorder which results in extreme mobility issues. According to the evidence, his joints are fused and he cannot bend his legs, which makes travel very difficult for him. He requires a reclining seat with extra leg room to accommodate his disability.

[11] Air France does not dispute that Mr. Abbasi is a person with a disability.

[12] The Agency finds that Mr. Abbasi is a person with a disability as per the definition set out in section 169.5 of the CTA because he has fibrodysplasia ossificans progressiva, which affects his ability to travel and hinders his full and equal participation in the federal transportation network.

Did Air France contravene regulations?

[13] Subsection 54(1) of the ATPDR applies in this case and requires a carrier to engage in a dialogue with a person with a disability who identifies the nature of their disability when making a reservation with the carrier “for the purpose of identifying their needs in relation to their disability and the services offered by the carrier in relation to those needs”. This provision recognizes that passengers may not have the industry knowledge to properly frame a request for accommodation, and that they will not necessarily know the type or extent of information required by a carrier.

[14] Air France argues that the provisions set out in the ATPDR do not apply because Mr. Abbasi did not identify his disability when inquiring about an accommodation, nor did he make a reservation, as required by subsection 54(1). However, the Agency finds that Air France’s interpretation of the provision is narrow, technical and not in keeping with the broad and liberal interpretation that should be afforded to human rights laws, as set out by the Supreme Court of Canada in Schrenk^{Note 2} .

[15] Air France’s medical desk was notified, as part of the initial inquiry concerning potential travel, that Mr. Abbasi has a severe disability that would not allow him to sit in a regular economy seat. Air France takes issue with the fact that Mr. Abbasi did not submit detailed medical information or explain the nature of his disability or his needs to Air France at the time of his request for accommodation. Mr. Abbasi, on the other hand, argues that if Air France required more information in order to accommodate him, it should have asked him for that information instead of denying his request outright. 

[16] Using the broad interpretation mandated by the Supreme Court of Canada, the information provided to Air France concerning Mr. Abbasi is enough to satisfy the Agency that Air France was notified of the nature of Mr. Abbasi’s disability, being a severe disability which required seating accommodation, which triggered the regulatory requirement in subsection 54(1) for further dialogue with the passenger to determine how the carrier could accommodate his needs.   

[17] Air France also argues that it did not have to provide Mr. Abbasi with accommodation because he did not attempt to book a ticket. However, the Agency accepts Mr. Abbasi’s argument that there was no reason for him to call to book a ticket, as Air France’s medical desk had indicated that it would not accommodate his request for seating accommodation in the form of a reclining seat with additional leg room and had referred his inquiry to their regular reservations service.

[18] The Agency finds that inquiring with a carrier’s medical desk about the availability of an accommodation during travel is part of the reservation process for a person with a disability because they require information about whether their disability-related needs can be accommodated before they can proceed with their booking. If they discover that their needs cannot be accommodated, that may put an end to the reservation process.

[19] Air France provided no evidence that its medical desk engaged in any dialogue with Mr. Abbasi beyond refusing his request and referring him to Air France’s regular reservation service. If Air France had further questions or requirements arising from this notification, its medical desk should have put those questions or requirements to Mr. Abbasi.

[20] Accordingly, the Agency finds that Air France is in contravention of subsection 54(1) of the ATPDR.

[21] Mr. Abbasi initially requested that he be provided with an upgrade to a higher class of seating at no additional cost. However, the Agency has consistently upheld the principle that a carrier is not required to provide such an upgrade a no additional cost, as seen in Decision 11-AT-C-A-2021 (Martens-Funk v WestJet). Persons with disabilities are entitled to accommodation in the form of the most accessible seat to meet their disability-related needs in the class of service for which they pay. The carrier, on the other hand, has an obligation to inform passengers of the seats that are available to meet their disability-related needs, including those within the same class of service that provide extra leg room, as set out in section 55 of the ATPDR.

Was Mr. Abbasi adversely affected by Air France’s failure to apply regulations?

[22] The Agency finds, for the purposes of subsection 172.1(1) of the CTA, that Mr. Abbasi was adversely affected by Air France’s failure to apply the ATPDR because this led him to believe that he could not travel with Air France such that he did not pursue his travel plans with the air carrier.

Direction to provide submissions on potential corrective measures

[23] The Agency may order corrective measures under paragraph 172.1(2)(a) of the CTA upon finding that a person with a disability has been adversely affected by a contravention of a regulation by an air carrier. The Agency therefore directs Air France to file the following, and copy Mr. Abbasi, by October 21, 2022:

1. its current policies on engaging in dialogue with a person with a disability when they request an accommodation for a disability;
2. what amendments it proposes to make to the above policy to ensure compliance with the ATPDR;
3. its proposed timelines for

(a) new or amended policy implementation, if required to meet regulatory requirements, and

(b)  communication to, and training of, staff about the policy; and

4. if no changes are required to its policies on engaging in a dialogue with a person with a disability, what training and communications programs will be adopted to ensure a consistent application of the policies.

[24] Mr. Abbasi may file a response to Air France’s submission by the fifth business day after its receipt. These pleadings will inform the Agency’s order.

Opportunity to provide submissions on request for compensation

[25] Mr. Abbasi requests an order for Air France to compensate him for violating his human rights. Paragraphs (d) and (e) of subsection 172.1(2) of the CTA allows the Agency to order compensation for pain and suffering, if the Agency finds that the contravention was the result of a wilful or reckless practice, or both. The maximum amount the Agency can award for a finding under each paragraph is CAD 20,389.86, as adjusted. To support such a claim, Mr. Abbasi has until October 21, 2022, to provide the following to the Agency, and provide a copy to Air France at the same time:

(1) the reason(s) the Agency should award compensation for pain and suffering;

(2) any medical evidence to support his claim for compensation for pain and suffering;

(3) the reason(s) the Agency should find that the contravention was the result of a wilful or reckless practice; and

(4) the amount of compensation he is requesting the Agency order for

(a) pain and suffering,

(b)  a contravention that was the result of a wilful or reckless practice,

(c) or both.

[26] Air France may file a response to Mr. Abbasi’s submission by the fifth business day after its receipt.
 

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Appendix to Decision LET-AT-A-41-2022

Canada Transportation Act, SC 1996, c 10

169.5 The following definitions apply in paragraph 5(d.1) and this Part.

disability means 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.

172.1(1) The Agency may, on application, inquire into a matter concerning any regulations made under subsection 170(1) to determine if the applicant has suffered physical or psychological harm, property damage or economic loss arising out of — or has otherwise been adversely affected by — a contravention of any provision of those regulations.

172.1(2) On determining that an applicant has suffered physical or psychological harm, property damage or economic loss arising out of — or has otherwise been adversely affected by — a contravention referred to in subsection (1), the Agency may do one or more of the following:

(a) require the taking of appropriate corrective measures;

…

(d) direct that compensation be paid to the applicant 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 them arising out of the contravention;

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

Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244

25(1) Unless otherwise specified, this Part applies to

(a) every large air carrier that provides a service for the transportation of passengers

(i) between points within Canada,

(ii) from a point of origin in Canada to a point of destination in a foreign country, or

(iii) from a point of origin in a foreign country to a point of destination in Canada;

…

54(1) If a person with a disability identifies the nature of their disability when making a reservation with a carrier, the carrier must engage in a dialogue with the person for the purpose of identifying their needs in relation to their disability and the services offered by the carrier in relation to those needs.

…

55 If a person with a disability identifies the nature of their disability when making a reservation with a carrier, the carrier must

(a) before assigning a passenger seat or cabin to a person with a disability, inform the person of the passenger seats and cabins that are available in the class of service that the person has requested and that have equipment and facilities that best meet the accessibility needs of that person, such as a wheelchair-accessible washroom or a passenger seat that has additional leg room, a larger seat pitch or movable armrests; and

(b) in assigning a passenger seat or cabin to a person with a disability, take into account the person’s opinion with respect to which seats or cabins would best meet the accessibility needs of that person.