Letter Decision No. LET-AT-A-70-2020

SUMMARY

[1] Christine Comtois filed an application with the Canadian Transportation Agency (Agency) against Air Canada alleging that Air Canada did not provide her with the wheelchair assistance service she had requested and that the delay of Flight No. AC1602 from Montréal, Quebec, to Fort Lauderdale, USA, made her miss the departure of her cruise ship in Fort Lauderdale. In addition, she alleges that she encountered several obstacles during her trip.

[2] Ms. Comtois seeks full reimbursement of the cost of her cruise and her trip. She also seeks compensation for the pain and suffering she experienced during her trip and upon her return to Ottawa, Ontario.

[3] In this decision, the Agency will address the following issues:

1. Is Ms. Comtois a person with a disability?
2. Did Ms. Comtois encounter an obstacle to her mobility?
3. Did Air Canada properly apply the conditions set out in Rules 5(A)(2) and 80 of its International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458 (Tariff)?

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

1. Ms. Comtois is a person with a disability. 
2. Ms. Comtois encountered obstacles to her mobility:

• when the agent at the Ottawa Macdonald-Cartier International Airport (Ottawa Airport) refused to help her put her baggage on the scale;
• when none of the flight attendants agreed to help her put her carry-on baggage in the baggage compartment on her flight departing from the Ottawa Airport; and
• when she was seated in the aisle seat instead of a window seat on Flight No. AC1602.

       3. Air Canada correctly applied the conditions stated in Rules 5(A)(2) and 80 of its Tariff.

[5] After concluding that the above-mentioned obstacles were present, the Agency gives Air Canada the following two options:

• explain, taking into account any proposals from Ms. Comtois, how it proposes to remove the obstacles through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting an obstacle, or, if a general modification is not feasible, an individual accommodation measure; or demonstrate, on a balance of probabilities, that it cannot remove the obstacle without experiencing undue hardship.

BACKGROUND

[6] On December 18, 2016, Ms. Comtois travelled from Ottawa to Fort Lauderdale, via Montréal, in order to go on a cruise. On December 29, 2016, she took a return flight from Fort Lauderdale to Ottawa. She states that she encountered several obstacles during her trip.

[7] Flight No. AC1602 from Montréal to Fort Lauderdale was delayed. Ms. Comtois submits that the delay made her miss her cruise ship at Fort Lauderdale. She travelled to Nassau, Bahamas, with another carrier to meet up with her cruise ship the next day.  

[8] The Agency opened pleadings in this application on September 26, 2019. In its answer, Air Canada filed a motion requesting dismissal of this application with the Agency. On January 10, 2020, the Agency issued decision No. LET-AT-A-4-2020 (Decision), in which it dismissed Air Canada’s motion and determined that Ms. Comtois’ application complied with the time limit prescribed by the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention). The Agency asked Ms. Comtois to provide the cruise itinerary or other evidence indicating the ship’s departure time from Fort Lauderdale and required Air Canada to provide a full answer to the original application.

[9] Ms. Comtois filed the cruise itinerary on January 13, 2020. Air Canada filed its answer on January 24, 2020. Ms. Comtois did not file a reply. The Agency closed the pleadings on January 31, 2020.

PRELIMINARY MATTERS

Canada Transportation Act, SC 1996, c 10 (CTA)

[10] The opening pleadings letter states that, in the first part of the pleadings, the Agency determines whether the applicant is a person with a disability and whether they have faced an obstacle. However, when Ms. Comtois travelled, the French version of subsection 172(1) of the CTA used the term “personne ayant une déficience” instead of “personne handicapée.” The CTA was amended on July 11, 2019, and the term “personne handicapée” was introduced. In order to reflect the wording used at the time of travel, the Agency will use the French term “personne ayant une déficience” for the rest of the proceedings and encourages the parties to do the same.

[11] In addition, as stated in the opening pleadings letter, since July 11, 2019, the CTA has defined a barrier as “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.” However, at the time of the alleged incident, the Agency defined an obstacle as “a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.” To reflect the language applicable at the time of travel, the Agency will use that definition of obstacle for the rest of the proceedings and encourages the parties to do the same.

Article 35 of the Montreal Convention — Limitation of Actions

[12] In the Decision, the Agency determined that, given that the application was filed on July 25, 2017, that is, less than two years after December 18, 2016, the date of arrival of Flight No. AC1602 in Fort Lauderdale, which is at issue in the application, the limitation prescribed by the Montreal Convention has been met in this case.

[13] Despite the Agency’s decision, Air Canada reiterated its argument in its answer that the action in damages is barred by Article 35 of the Montreal Convention. However, the Agency’s decision that Ms. Comtois’ application meets the prescribed limitation is final. The Agency will not deal with this issue in this decision.

Moral damages, pain, suffering and loss of enjoyment

[14] Ms. Comtois seeks compensation from Air Canada because it did not provide the services that she needed, given her disability, which caused her pain and suffering during and after her cruise.

[15] However, the Agency has no jurisdiction to order the payment of compensation for pain, suffering or loss of enjoyment regarding events that took place before the Accessible Canada Act, SC 2019, c 10, came into force on July 11, 2019.

Searches by the Canadian Air Transport Security Authority (CATSA)

[16] Ms. Comtois argues that, because of her medical condition, she cannot be scanned and must undergo a manual search. She contends that at the Ottawa Airport, before her departure for Montréal, the woman who performed the search did so without any discretion, specifically, in “private” areas and in front of everyone. Ms. Comtois states that she was very embarrassed by these actions. She also maintains that she was again subjected to an “embarrassing” search at the Ottawa Airport upon her return from Fort Lauderdale.

[17] Searches in Canada are the responsibility of CATSA and are conducted by CATSA. Therefore, Air Canada cannot be held responsible for Ms. Comtois’ experiences during the searches. However, the Agency reminds Ms. Comtois that she has the right to ask CATSA to conduct the search in private.

Service provided by Para Transpo

[18] Ms. Comtois states that, on her return flight, the aircraft arrived at the Ottawa Airport three hours late. She maintains that she advised Para Transpo of the delay. Ms. Comtois also claims that, when she left the airport, she looked for her transportation without success. She states that, after waiting for her ride, she returned to the terminal, got security assistance and someone called for a shuttle to take her home. Ms. Comtois states that the driver had no experience with paratransit, did not help her get off the bus, and she fell.

[19] This application was filed with the Agency against Air Canada only. Ms. Comtois has not provided details of the transportation company responsible for the shuttle bus that took her home, nor has she provided information that would allow the Agency to assess her allegations against Para Transpo. The Agency notes that she claims to have filed a complaint directly with Para Transpo. Therefore, the Agency will not consider this aspect of the complaint.

THE LAW AND RELEVANT TARIFF PROVISIONS

[20] The application raises issues relating to both accessibility and the application of Air Canada’s Tariff.

Accessibility

[21] The Agency notes that subsection 172(1) of the CTA, in effect at the time of the incident, reads as follows:   

The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

[22] The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a two-part approach.

Part 1: The onus is on an applicant to demonstrate, on a balance of probabilities, that

• they have a disability within the meaning of Part V of the CTA;

and

• they faced an obstacle. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.

Part 2: If it is determined that an applicant is a person with a disability and faced an obstacle, the onus shifts to the respondent to take either of the following actions:

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

or

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

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

Application of the Tariff

[24] Subsection 110(4) of the ATR requires that an air carrier operating an international service apply the terms and conditions of carriage set out in its tariff.

[25] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct it to:

1. take the corrective measures that the Agency considers appropriate; and
2. pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions set out in the tariff.

[26] Subsection 146(1) of the ATR stipulates that Part VII applies to an air carrier in respect of any domestic service operated by the air carrier with an aircraft that has 30 or more passenger seats.

[27] Paragraph 147(1)(d) of the ATR provides that an air carrier must provide assistance in stowing and retrieving a person’s carry-on baggage if the person requests it.

[28] The provisions of the Tariff relevant to this matter are set out in the Appendix. In particular, Rule 5(A)(2) of the Tariff incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention).

[29] Article 19 of the Montreal Convention sets out the carrier’s liability in case of delay:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

[30] Article 20 of the Montreal Convention in regard to exoneration sets out that:

If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This Article applies to all the liability provisions in this Convention, including paragraph 1 of Article 21.

[31] Article 29 of the Montreal Convention sets out the basis for claims:

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

[32] Article 35 of the Montreal Convention sets out the time limit for bringing action against a carrier:

1. The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
2. The method of calculating that period shall be determined by the law of the court seised of the case.

IS MS. COMTOIS A PERSON WITH A DISABILITY?

Positions of the parties

MS. COMTOIS

[33] Ms. Comtois states that she is a person with reduced mobility and that she requested wheelchair assistance before her trip. She states that she contacted Air Canada’s Medical Desk to ask for a window seat in order to protect her injured leg from being bumped or caught and so that other passengers need not step over it. 

Air Canada

[34] Air Canada argues that Ms. Comtois neither established nor demonstrated that she has a disability. 

[35] Air Canada acknowledges that Ms. Comtois requested wheelchair assistance, but contends that she did not provide any reasons for needing a wheelchair. Air Canada adds that sometimes people ask for wheelchair assistance without it being related to an accessibility need, and that many people use this service, not because they require mobility assistance, but for various reasons such as not being comfortable navigating through an airport.

[36] Air Canada states that Ms. Comtois requested the “WCHR” service, which is for persons needing assistance with long distances within the terminal building. It argues that the fact that she requested and obtained the wheelchair service does not establish or demonstrate the existence of any disability.

Analysis and determinations

[37] Ms. Comtois stated that she is a person with reduced mobility and requested a special seat assignment to protect her injured leg as well as wheelchair assistance at the Air Canada Medical Desk prior to travel. As a result of this call, Air Canada recognized Ms. Comtois’ need for these services, since the assignment of a specific seat at no charge was granted, as indicated in the Passenger Name Record (PNR), and wheelchair service (WCHR) was granted, as indicated on her boarding passes.

[38] In this case, there is no information on the record to indicate that wheelchair assistance was not required. The Agency recognizes that a temporary condition, such as a leg injury, could constitute a disability within the meaning of Part V of the CTA. In light of the above, the Agency finds that Ms. Comtois is a person with a disability.

DID MS. COMTOIS FACE AN OBSTACLE TO HER MOBILITY?

Positions of the parties

MS. COMTOIS

[39] Ms. Comtois states that she encountered a number of obstacles during her trip with Air Canada:

• When she arrived at the Ottawa Airport on December 18, 2016, she noticed that there was no designated drop-off area for persons with reduced mobility and no wheelchairs near the entrance. She had to take a baggage cart to use for support to get to the ticket counter and had to stand in line with the cart for support.

• Even though she presented her ticket marked “wheelchair” to the agent at the check-in counter in Ottawa, he refused to provide her with a chair so she could sit down to complete her check-in. She claims that he refused to help her place her baggage on the scale. Once the check-in was completed, the agent called for wheelchair assistance and showed Ms. Comtois where she could sit and wait for her escort.

• She was escorted to the departure gate, but was left in front of an elevator until boarding rather than in the waiting area.

• She was not assisted in placing her carry-on baggage in the baggage compartment of the aircraft departing Ottawa.

• Upon arrival at the Montréal Pierre Elliott Trudeau International Airport (Montréal Airport), she had to wait for wheelchair assistance onboard the aircraft. She states that she waited 45 minutes to an hour before receiving assistance.

• She was not given the window seat she had reserved for the flight to Fort Lauderdale, but rather an aisle seat.

• Upon arrival at the Fort Lauderdale-Hollywood International Airport (Fort Lauderdale Airport), the flight attendant refused her request to let her disembark first. According to Ms. Comtois, she explained to the flight attendant that she might miss her transfer to the cruise ship due to the flight delay. The flight attendant informed her that policy states that passengers requiring assistance are disembarked last, with no exceptions.

• When it was her turn to disembark in Fort Lauderdale, no wheelchairs were available. According to Ms. Comtois, she waited onboard the aircraft alone with a flight attendant for 30 minutes to an hour before a wheelchair was brought for her.

• An Air Canada agent escorted her through the Fort Lauderdale terminal to the baggage carousel but did not help her retrieve her baggage. She had to ask a passerby for assistance to retrieve her baggage and make her way to her transfer to the cruise ship. She missed boarding for the cruise ship. Ms. Comtois submitted the cruise itinerary, which indicates that boarding for the cruise was scheduled from 12:30 p.m. to 3:00 p.m. and that the ship left port at 4:00 p.m.

• Upon her return to Ottawa on December 29, 2016, there were no wheelchairs available upon arrival. She had to wait alone onboard the aircraft for approximately one hour before a wheelchair was brought for her.

• She was escorted through customs and security screening, but at the security gate, an Air Canada agent took the wheelchair back and left her alone with the baggage cart to retrieve her baggage.

AIR CANADA

[40] With respect to wheelchair assistance, Air Canada states that the “WCHR” service, as requested by Ms. Comtois, is not necessarily provided by wheelchair and can be provided by shuttle service using a cart. Air Canada argues that this type of service request “presupposes” that the passenger is mobile, except over long distances.

[41] Regarding the fact that Ms. Comtois was not assisted to the check-in counter upon arrival at the Ottawa Airport and had to put her baggage on the scale herself, Air Canada states that Ms. Comtois has not shown that she requested assistance and that she was denied assistance. Air Canada maintains that there is no indication on the record that such a request was made, and that it is therefore reasonable to believe that it was not made.

[42] With respect to the fact that people requiring assistance are disembarked last, Air Canada submits that announcements to that effect are made when every flight lands. Air Canada states that this is a regular, well-known practice in the air industry to help safely transport people with disabilities who need assistance to board or disembark. To enable timely boarding and disembarking of all passengers, priority boarding is provided, and disembarking assistance is provided after general disembarkation.

[43] Air Canada argues that, since Ms. Comtois did not request wheelchair assistance to her seat, she was free to disembark with the other passengers.

[44] Air Canada states that Flight No. AC1602 was scheduled to arrive in Fort Lauderdale at 2:35 p.m., 1 hour and 25 minutes before the cruise ship’s scheduled departure. Air Canada submits that the flight was delayed and arrived in Fort Lauderdale at 3:30 p.m.

[45] Air Canada states that on the cruise line’s website it is recommended that passengers joining the ship by aircraft arrive at their destination the day before the ship’s departure and that passengers arriving by car should arrive two to three hours before the ship’s departure.

[46] Air Canada argues that Ms. Comtois did not miss the departure of her cruise because of an obstacle to her mobility, but because she did not book a flight arriving in Fort Lauderdale early enough for her to board the cruise ship on time. Air Canada added that the flight’s estimated time of arrival was far too close to the cut-off time for boarding the cruise ship.

[47] Air Canada states that even if there had been no delay and Ms. Comtois had gotten out first, she would not have been able to get to the cruise ship in time for boarding.

[48] As to the fact that Ms. Comtois allegedly waited 30 minutes on the aircraft for wheelchair assistance, Air Canada argues that this is a standard time for disembarkation on this type of aircraft.

[49] Air Canada argues that it would be surprising if Ms. Comtois was “abandoned” at the Fort Lauderdale Airport since door-to-door service is provided at all times by all carriers operating there in accordance with US law. Air Canada states that these services are provided by local service providers who offer service to all passengers who require it.

[50] Air Canada argues that Ms. Comtois’ allegations that she was left alone on the aircraft on December 29, 2016, upon arrival at the Ottawa Airport are not credible as this is contrary to flight attendant standards and procedures.

Analysis and determinations

[51] Transportation service providers have a duty to accommodate persons with disabilities. A person with a disability encounters an obstacle to their mobility if they demonstrate that they required accommodation and were not provided with it, thereby being denied equal access to services available to others in the federal transportation network.

[52] The burden of proof is on the applicant to show, on a balance of probabilities, that they faced an obstacle related to their disability. The balance of probabilities means that each element must be shown to be “more likely than not.”

[53] The Agency notes that Ms. Comtois’ travel was characterized by inadequate planning for her disability-related needs and personal circumstances. Ms. Comtois had not anticipated her own travel needs, typical delays due to winter weather, or the time required for transportation between the airport and the cruise ship. Given the unfortunate experiences during her trip, the Agency encourages Ms. Comtois to better plan her travels and to better identify and communicate her needs to carriers in the future.

[54] The Agency considers that Ms. Comtois did not encounter obstacles to her travel in the circumstances described below.

WHEELCHAIR ASSISTANCE SERVICE

[55] The information on the record indicates that Ms. Comtois had requested the “WCHR” service, which is a service to assist people with long distances within the terminal building. The service chosen presupposes that she is able to travel unassisted except for long distances. This service is not necessarily provided with a wheelchair and may be provided by a shuttle service. The evidence filed by both parties indicates that Ms. Comtois received the long-distance “WCHR” service as she requested and as noted in the booking records, but that the service did not meet her expectations.

ARRIVAL AT OTTAWA AIRPORT AND ASSISTANCE IN RETRIEVING HER BAGGAGE IN FORT LAUDERDALE AND OTTAWA

[56] There is no information on the record to indicate that Ms. Comtois notified Air Canada in advance that she would require disability-related services upon arrival at the Ottawa Airport or that she would require assistance in retrieving her baggage upon arrival at the Fort Lauderdale Airport and the Ottawa Airport. There is no information on the record that she requested this assistance at the time of travel or that Air Canada refused to provide it. If Air Canada was not aware of Ms. Comtois’ needs, it did not have the opportunity to understand them or provide the necessary assistance. The Agency determines that the evidence filed by Ms. Comtois is insufficient to conclude that she encountered an obstacle in this regard. In addition, for Ms. Comtois’ arrival at the Fort Lauderdale Airport, Air Canada stated that in the United States, local service providers offer services to all passengers who demonstrate a need for it. The Agency concludes that Air Canada was therefore unaware that Ms. Comtois required more assistance than had been indicated in advance. These problems underscore the importance of requesting special services directly from the air carrier in advance so that it has the opportunity to apprise itself of, and respond to, the needs of passengers.

CHAIR TO SIT IN AT CHECK-IN COUNTER

[57] Ms. Comtois also states that she requested a chair to sit in during check-in at the Ottawa Airport, but that the clerk refused. The Agency is of the view that this refusal did not constitute an obstacle because Ms. Comtois presented herself at the check-in counter standing with the baggage cart as a support. There is no information on the record to indicate that the check-in process took longer than usual. There is also no information on the record to indicate that Ms. Comtois notified Air Canada in advance that she would require this service. According to information received from Ms. Comtois, once she completed her check-in, she was able to sit down and wait for wheelchair assistance. Therefore, the Agency finds that Ms. Comtois did not encounter an obstacle in this regard.

WAITING IN FRONT OF AN ELEVATOR FOR BOARDING

[58] With respect to waiting in front of an elevator for boarding, the Agency does not have sufficient information to ascertain whether the proximity of the waiting area to the elevator was inappropriate. In addition, Ms. Comtois still received assistance in a timely manner. Therefore, the Agency finds that Ms. Comtois did not encounter any obstacle in this regard.

WAITING ON THE AIRCRAFT FOR WHEELCHAIR ASSISTANCE

[59] With respect to the disembarkation of persons requiring assistance once all other passengers have disembarked, the Agency recognizes that air carriers have adopted this practice to avoid congestion in the aisles. Indeed, the Agency has long held that this practice is reasonable and does not in itself constitute an obstacle.

[60] For each flight, Ms. Comtois claims to have had to wait on the aircraft for wheelchair assistance from 30 minutes to one hour, and does not distinguish between waiting time for disembarkation of other passengers and waiting time for the wheelchair. Her evidence on wait times makes it impossible to establish actual wait times. The Agency does not consider a reasonable wait to disembark to be an obstacle. The Agency must be able to establish the actual waiting period for the wheelchair in order to conclude that a person with a disability has encountered an obstacle.

[61] With respect to the waiting period before obtaining wheelchair assistance, which includes the waiting time for all passengers to disembark, upon arrival at the Montréal and Fort Lauderdale airports, the Agency determines that Ms. Comtois did not encounter an obstacle to her mobility in this regard. Although the wait for her arrival at the Montréal Airport may have seemed long, Ms. Comtois received wheelchair assistance and arrived in time for Flight No. AC1602.

[62] For her arrival at the Fort Lauderdale Airport, Ms. Comtois also received wheelchair assistance, and the Agency determines that she did not miss the departure of the cruise ship because of the waiting time for wheelchair assistance, but rather because she did not book a flight arriving at her destination in time to board the cruise ship before the latest boarding time.

[63] Flight No. AC1602 was scheduled to arrive in Fort Lauderdale at 2:35 p.m. and boarding for the cruise was scheduled between 12:30 p.m. and 3:00 p.m. for a 4:00 p.m. departure. Thus, Ms. Comtois had planned a total of 25 minutes to disembark from the aircraft, pass through the airport in a wheelchair, retrieve her baggage, proceed to the port and board the cruise ship. It is therefore reasonable to believe that Ms. Comtois would have arrived too late to board the cruise ship even if Flight No. AC1602 had arrived on time. The Agency notes that Ms. Comtois did not follow the cruise line’s advice that passengers travelling by air should arrive at their destination the day before the ship’s departure and report for boarding on the cruise ship between 12:30 p.m. and 3:00 p.m.

[64] With respect to her arrival at the Ottawa Airport from Fort Lauderdale, Ms. Comtois states that there was no wheelchair available upon her arrival and that she waited alone in the aircraft for about an hour before one was brought to her. She submits that the flight arrived at 11:30 p.m., three hours late, but according to data provided by Air Canada, the flight departed Fort Lauderdale at the scheduled time of 9:15 p.m. and landed in Ottawa at 12:30 a.m. The Agency recognizes that the wait time for all passengers to disembark and for the wheelchair may have appeared to be long, but the inconsistency in the arrival time in relation to the wait time makes it impossible to establish the actual wait time. Ms. Comtois received wheelchair assistance and was escorted to the customs area. Therefore, the Agency determines that the evidence filed by Ms. Comtois regarding the waiting period is insufficient to find that she met her burden of proof and to demonstrate that she encountered an obstacle.

[65] However, the Agency considers that Ms. Comtois did encounter obstacles to her mobility in the circumstances described below.

BAGGAGE ON THE SCALE AT OTTAWA AIRPORT

[66] The Agency accepts the evidence filed by Ms. Comtois that she asked the check-in clerk at the Ottawa Airport for assistance in placing her baggage on the scale and that the clerk refused. She refers to the stress and fatigue associated with feeling humiliated. The Agency expects air carriers to make reasonable efforts to accommodate the needs of persons with disabilities when there is a request to do so, even if the request was not made in advance. The Agency finds that, in the absence of evidence from Air Canada that a reasonable effort was made, Ms. Comtois encountered an obstacle to her mobility when the check-in clerk refused to assist her in putting her baggage on the scale.

CARRY-ON BAGGAGE IN BAGGAGE COMPARTMENT OF AIRCRAFT AT OTTAWA AIRPORT

[67] Ms. Comtois also alleges that no flight attendant agreed to assist her in placing her carry-on baggage in the baggage compartment of the aircraft at the Ottawa Airport. Paragraph 147(1)(d) of the ATR provides that an air carrier must provide assistance in stowing a passenger’s carry-on baggage if the passenger requests it in the domestic air travel context. Although paragraph 147(1)(d) does not apply in this case as this flight was part of an international itinerary, the Agency has a longstanding practice of applying the principles underlying the ATR equally in the international air context and finds that it is reasonable to do so in this case. Persons with disabilities should be able to receive, on request, assistance from carrier personnel in stowing their carry-on baggage in the baggage compartment of their aircraft and refusal to provide this requested assistance can constitute an obstacle to the passenger's mobility. 

[68] Air Canada did not dispute Ms. Comtois’ allegations. Therefore, the Agency finds that Ms. Comtois encountered an obstacle to her mobility when no flight attendant agreed to assist her in placing her carry-on baggage in the baggage compartment.

AISLE SEATING FOR FLIGHT No. AC1602

[69] According to the PNR filed by Air Canada, a specific seat was reserved for each flight segment at no additional charge. The PNR does not contain information on the specifications of the particular seat requested by Ms. Comtois for Flight No. AC1602. The Agency notes, however, that for her other two flights, Ms. Comtois was provided with a window seat, which suggests that this was indeed what she requested. In addition, there is no explanation on the record as to why Ms. Comtois did not receive the particular seat she had reserved. The Agency therefore concludes that Ms. Comtois encountered an obstacle to her mobility when she received an aisle seat for Flight No. AC1602.

DID AIR CANADA PROPERLY APPLY THE CONDITIONS SET OUT IN RULES 5(A)(2) AND 80 OF ITS TARIFF?

Positions of the parties

MS. COMTOIS

[70] Ms. Comtois seeks full reimbursement of the costs of her cruise and trip. She maintains that the delay of Flight No. AC1602 resulted in her arriving too late to board the cruise ship.

[71] Ms. Comtois claims that after she missed boarding her cruise ship, Princess Cruises drove her back to the Fort Lauderdale Airport. She contends that she went to the Air Canada counter to obtain a ticket to Nassau to join the cruise ship the next day and that Air Canada refused to assist her. She states that Air Canada referred her to another air carrier as there were no Air Canada flights to Nassau.

[72] She claims that she incurred additional expenses, such as the purchase of a plane ticket to Nassau (USD 400), food (USD 20), taxi fare (USD 55), airport assistance (USD 5), hotel accommodation (USD 125.53), and carriage of her baggage (USD 60).

AIR CANADA

[73] Air Canada observes that Rule 80(A)(1) of its Tariff provides that departure and arrival times are approximate, are not guaranteed and are subject to change without notice.

[74] It also observes that Rule 105(C)(4)(a) provides that Air Canada cannot be held liable for a delay unless the delay is the result of its negligence.

[75] Air Canada argues that the delay was due to bad weather and that the damages were not the result of negligence, so it cannot be held liable. Air Canada maintains that it properly applied its Tariff.

[76] Air Canada contends that Ms. Comtois’ complaint falls exclusively within the scope of the Montreal Convention and refers to Articles 19 and 29 thereof. Air Canada argues that as the delay was due to bad weather and was beyond its control, and as it was impossible to take measures to avoid the delay, it cannot be held liable.

[77] Despite the flight delay, Air Canada argues that the fact that the cruise ship’s departure was missed and expenses were incurred did not result from the delay of the aircraft, but from booking the flight too close to the cut-off time for boarding the cruise ship. Air Canada argues that even if the flight had not been late, Ms. Comtois would not have been able to make it in time to board the ship. Air Canada maintains that the damage suffered is therefore related to Ms. Comtois’ negligence, which according to Air Canada exonerates the carrier under Article 20 of the Montreal Convention.

Analysis and determinations

[78] The onus is on the applicant to establish, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.

[79] The Agency notes that Rules 80(A)(1) and (2) of the Tariff provide that Air Canada cannot be held liable if the passenger misses connections that are not part of the itinerary indicated on the ticket, that Air Canada does not guarantee the flight times shown on the passenger’s ticket, and that Air Canada cannot be held liable for changes in flight times in cases of force majeure. Rule 80(A)(2) also provides that a passenger may invoke the Montreal Convention with respect to the carrier’s liability for delay.

[80] Air Canada argues that the one-hour delay was caused by bad weather and that the damages were therefore not the result of negligence on its part. Ms. Comtois did not dispute that the delay was caused by bad weather. Where there is a scheduling irregularity, Air Canada must make “best efforts” to transport passengers within a reasonable time under Rule 80(A)(3) of the Tariff. Rule 80(C)(4) provides that Air Canada may, among other things, carry the passenger on another such aircraft or on the aircraft of another carrier. In this case, the Agency recognizes that it was impossible to take additional measures to avoid the delay or to transport Ms. Comtois to her destination more quickly than on Flight No. AC1602.

[81] The Agency finds that Ms. Comtois would have arrived too late to board the cruise ship even without the delay of Flight No. AC1602. Unfortunately, Ms. Comtois reserved a flight that arrived too close to the end of boarding time for the cruise. Flight No. AC1602 from Montréal to Fort Lauderdale was scheduled to arrive in Fort Lauderdale at 2:35 p.m., and boarding for the cruise ended at 3:00 p.m. There was therefore no action that Air Canada could have taken to prevent Ms. Comtois from missing boarding the cruise ship, as the damage would have occurred in any event.

[82] In addition, under Rule 80(A)(2) of the Tariff, Air Canada had no obligation to Ms. Comtois with respect to reserving a flight to Nassau, since it had transported her to her destination of Fort Lauderdale as provided for in Ms. Comtois’ itinerary.

[83] With respect to the additional expenses incurred by Ms. Comtois to reach the cruise ship at Nassau, pursuant to Article 19 of the Montreal Convention, which is incorporated by reference into the Tariff by virtue of Rule 5(A)(2), Air Canada cannot be held liable where it demonstrates that it and its personnel took all reasonable steps to avoid the damage, or that it was impossible for them to do so. In the context of a one-hour delay due to bad weather, Air Canada took all reasonable steps. In addition, the damages suffered are attributable to the actions of Ms. Comtois, who booked a flight arriving too close to the cut-off time for boarding the cruise ship. Therefore, the damages suffered would have occurred even if the flight had arrived on time, which exonerates the carrier under Article 20 of the Montreal Convention.

[84] In light of the above, the Agency finds that Ms. Comtois has not demonstrated that Air Canada failed to properly apply the conditions set out in Rules 5(A)(2) and 80 of its Tariff. The damages that resulted from having failed to board the cruise ship were not attributable to Air Canada’s negligence.

Next steps

[85] Having determined that Ms. Comtois is a person with a disability and that she encountered an obstacle when the clerk at the Ottawa Airport refused to help her put her baggage on the scale, when no flight attendant agreed to help her put her carry-on baggage in the baggage compartment on her flight from the Ottawa Airport, and when she was placed in an aisle seat for Flight No. AC1602, the Agency gives Air Canada the following two options:

• explain, taking into account any proposals from the applicant, how the respondent proposes to remove the obstacles through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting an obstacle, or, if a general modification is not feasible, an individual accommodation measure; or
• demonstrate, on a balance of probabilities, that it cannot remove the obstacle without experiencing undue hardship.

[86] Air Canada has until November 17, 2020 to file its answer, after which Ms. Comtois will have three business days to file her reply.

[87] All correspondence and pleadings must refer to Case No. 18 50080 and filed with the Agency’s Secretariat at the following e-mail address: secretariat@otc‑cta.gc.ca.

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APPENDIX TO DECISION NO. LET-AT-A-70-2020

International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458

RULE 5 – APPLICATION OF TARIFF

A. GENERAL

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(2) International transportation shall be subject to the rules relating to liability establish by, and to all other provisions of the Convention for the Unification of Certain Rules Relating to International Transportation by Air, signed at Warsaw, October 12, 1929, or the Convention for the Unification of Certain Rules International Carriage by Air (Montreal Convention of 1999) or such convention as amended, whichever may be applicable to the transportation hereunder. Any provision of these rules which is inconsistent with any provision of said Convention shall, to that extent, but only to that extend, be inapplicable to international transportation.

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Rule 80 – SCHEDULE IRREGULARITIES

A. GENERAL

1. Schedules not guaranteed. Times and aircraft type shown in timetables or elsewhere are approximate and not guaranteed, and do not form part of the contract of carriage. Schedules are subject to change without notice….
2. Carrier not responsible

Carrier assumes no responsibility for passenger making connections not included as part of the itinerary set out in the ticket. Carrier is not responsible for changes, errors or omissions either in timetables or other representations of schedules. The carrier will not guarantee and will not be held liable for cancellations or changes to flight times that appear on passengers’ tickets due to force majeure, including labour disruptions or strikes. However, a passenger may invoke the provisions of the Convention regarding liability in the case of delay.

       3. Best Efforts

Carrier undertakes to use its best efforts to carry passenger and baggage with reasonable dispatch, but no particular time is fixed for the commencement or completion of carriage. Subject thereto carrier may, without notice, substitute alternate carriers or aircraft and may alter the route, add stopovers or omit the stopping places shown on the face of the ticket in case of necessity.

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C. SCHEDULE IRREGULARITY

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      4. In the event of a schedule irregularity, Carrier will either:

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1. carry the passenger on another of its aircraft or class of service on which space is available without additional charge regardless of the class of services; or, at carrier’s option;
2. endorse to another air carrier with which Air Canada has an agreement for such transportation, the unused portion of the ticket for purposes of rerouting; or, at carrier’s option;
3. reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from Rule 100, carrier will require no additional payment from the passenger but will refund the difference if it is lower or.

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Rule 105 – LIABILITY OF CARRIERS

C. LIMITATION OF LIABILITY

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     4. Except as provided herein, or in other applicable law;

1. Carrier is not liable for any death, injury, delay, loss, or other damage of whatsoever nature (hereinafter in this tariff collectively referred as “damage”) to passengers or unchecked baggage arising out of or in connection with carriage or other services performed by carrier incidental thereto, unless such damage is caused by the negligence of carrier.

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