Letter Decision No. LET-AT-C-A-11-2024

March 5, 2024

Application by Haroun Testouri against Polskie Linie Lotnicze LOT SA (LOT) regarding his disability-related needs and the application of LOT’s Tariff

Case number: 
23-36722

Summary

[1] Haroun Testouri filed an application with the Canadian Transportation Agency (Agency) against LOT, alleging that:

  • as a person who is Deaf, he faced a barrier when he was unable to modify his reservation on LOT’s website or by other electronic means, and
  • he was denied boarding on a LOT flight from Copenhagen, Denmark, to Toronto, Ontario, departing at 9:55 am on August 2, 2022 (9:55 Flight).

[2] Mr. Testouri seeks a refund of the ticket that he purchased from LOT on August 2, 2022, to travel later that day. He also seeks compensation for accommodation expenses, pain and suffering, wilful and reckless practice, and denied boarding.

[3] The Agency will address the following issues:

  1. Is Mr. Testouri a person with a disability?
  2. Did Mr. Testouri face a barrier?
  3. What remedies are available should the Agency find an undue barrier?
  4. Did LOT properly apply its Tariff?

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

  1. Mr. Testouri is a person with a disability.
  2. Mr. Testouri faced a barrier when he was unable to contact LOT in a manner accessible to him, to modify his reservation.
  3. The Agency may order any of the remedies listed under subsection 172(2) of the CTA if it finds that the above barrier is undue, as no accessibility regulations made under the CTA apply to this case.
  4. LOT properly applied its Tariff when it refused Mr. Testouri transportation on the 9:55 Flight.

Background

[5] Mr. Testouri purchased a round-trip ticket on LOT’s website to travel from Toronto to Copenhagen, via Warsaw, Poland, departing on June 10, 2022, and returning on July 25, 2022.

[6] On July 9, 2022, Mr. Testouri attempted to change the date of his return flight to August 2, 2022, first on the “Manage Trips” section of LOT’s website, and then by submitting online communication through LOT’s website. Mr. Testouri states that, because he is Deaf, he could not communicate with LOT by telephone to request the change to his reservation.

[7] LOT neither responded to Mr. Testouri’s online communication nor provided confirmation that Mr. Testouri’s return flight had been changed. When Mr. Testouri went to the Copenhagen Airport, Kastrup (Copenhagen airport) on August 2, 2022, LOT did not allow him to travel on the 9:55 Flight, as requested. As a result, Mr. Testouri purchased a return ticket to travel with LOT from Copenhagen to Toronto, via Warsaw, later the same day.

The law

[8] Mr. Testouri’s application raises issues related to both accessibility and the application of LOT’s Tariff.

Accessibility

[9] The Agency has authority to decide applications that claim the existence of undue barriers to the mobility of persons with disabilities within the federal transportation network.

[10] The Agency determines whether there is an undue barrier to the mobility of a person with a disability using a two-part approach:

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

    • they have a disability. A disability is any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society;

and

    • they faced a barrier. A barrier is anything — including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice — that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation.

   There needs to be some connection between the applicant’s disability and the barrier.

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

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

or

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

[11] In this decision, the Agency will address Part 1 of its two-part approach.

Contravention of regulations

[12] The Agency also has the authority under the CTA to decide whether a person with a disability has been adversely affected by a contravention of any regulation made under the CTA related to removing or preventing barriers in the transportation network to persons with disabilities (accessibility regulations).

Potential Accessibility Remedies

[13] When the Agency finds that an undue barrier exists or that a person with a disability was adversely affected by a contravention of accessibility regulations, it has the power to require that the respondent take appropriate corrective measures and, where appropriate, to compensate that person for any expenses arising from, or lost wages incurred as result of, the undue barrier or contravention. The Agency also has the power to award compensation for pain and suffering arising out of an undue barrier or contravention, or where the undue barrier or contravention is as a result of a wilful or reckless practice, to a maximum of CAD 20,000 each (subject to annual adjustments).

[14] However, the CTA limits the scope of these remedial powers if the Agency is satisfied that the carrier has complied with or has not contravened all applicable accessibility regulations.

[15] As a result, in this decision, the Agency will also address whether any accessibility regulations made under the CTA are applicable to this case in order to determine what remedies may be available to the applicant.

Potential Tariff Remedies

[16] The Agency has the authority to determine if an air carrier properly applied the terms and conditions applicable to the ticket purchased by the passenger, as set out in the air carrier’s Tariff. The Tariff is a legal document that contains the terms, conditions and other rules that apply to the passenger’s ticket.

[17] Accordingly, in this decision, the Agency will also determine whether LOT properly applied its Tariff with respect to Mr. Testouri’s claim of denied boarding.

[18] If the Agency finds that LOT has failed to properly apply its Tariff, it can direct LOT to take the corrective measures that the Agency considers appropriate or to pay compensation for any expense incurred by Mr. Testouri.

Is Mr. Testouri a person with a disability?

[19] Mr. Testouri states that he has been Deaf from birth. Mr. Testouri states that he can use hearing aids, but only in quiet environments when he is communicating on a one-on-one basis. In busy and noisy environments, he is unable to use hearing aids and communicates in writing. When attending legal and government offices, he uses an ASL interpreter.

[20] LOT does not address this issue.

[21] In light of the evidence before it, the Agency finds that Mr. Testouri is a person with a disability.

Did Mr. Testouri face a barrier?

Position of the parties

Mr. Testouri

[22] Mr. Testouri states that, on July 9, 2022, he attempted to reschedule his return flight from July 25, 2022, to August 2, 2022, but that the “Manage Trips” tab on LOT’s website was frozen or intentionally locked and he could not access it. When he was unable to access the “Manage Trips” tab, Mr. Testouri immediately submitted a “change ticket form” through LOT’s website, requesting to travel on the 9:55 Flight. He submits that, at the time, LOT’s website showed seats available for that itinerary.

[23] Mr. Testouri provides the email that he received from LOT on July 9, 2022, in which LOT acknowledges receipt of Mr. Testouri’s change ticket form and reproduced a copy of the content of the form. In the form, Mr. Testouri advises LOT that he is legally Deaf and that he cannot speak on the telephone to request the schedule change, but that he can communicate through email.

[24] Mr. Testouri states that, other than that acknowledgment of receipt, LOT did not respond to the change ticket form. Mr. Testouri also states that he attempted to contact LOT’s customer service through the chat dialogue box every 2 or 3 days, waiting on chat for hours at a time, but was unable to obtain confirmation that his flight had been changed per his request.

[25] On July 25, 2022, Mr. Testouri received an email from LOT stating that because he did not travel on his scheduled flight from Copenhagen to Warsaw on July 25, 2022, his subsequent flight (from Warsaw to Toronto) was cancelled.

[26] On July 28, 2022, Mr. Testouri submitted an online special assistance request to LOT, referring to the change ticket form he submitted on July 9, 2022, and asking for confirmation that his return flight date had been changed to August 2, 2022. Mr. Testouri provides the automatically generated email he received from LOT on the same day, which reproduced the content of Mr. Testouri’s special assistance request. In his request, Mr. Testouri again advises that he is Deaf and cannot speak on the phone and can only communicate by email. He also advises that he would pay an additional fee to change the date of his return flight, if applicable.

[27] Mr. Testouri states that LOT did not respond to his special assistance request. He therefore went to the Copenhagen airport on August 2, 2022, hoping to get on standby to travel on the 9:55 Flight. Mr. Testouri states that although he had his original ticket and confirmation that LOT received the ticket change form he submitted on July 9, 2022, he was denied boarding. As a result, Mr. Testouri purchased a ticket for travel from Copenhagen to Toronto, via Warsaw, departing Copenhagen at 7:45 pm that evening, at a cost of CAD 1,198.70.

[28] Mr. Testouri submits that, because he is Deaf and cannot speak on the telephone, he experienced a lack of communication with LOT when he was unable to contact LOT through its website or by email to change his reservation.

LOT

[29] LOT disagrees with Mr. Testouri’s submission that the “Manage Trips” tab on its website was intentionally blocked. LOT advises that Mr. Testouri’s reservation allowed for a one‑time rebooking, and that Mr. Testouri made a change to his reservation on May 21, 2022. Given this, he would have had to directly contact LOT to make a further change, for possible recalculation of the fare and payment of a fee. LOT adds that no problems with the operation of its website were noted at that time.

[30] Although LOT acknowledges that Mr. Testouri initiated written communication to reschedule his return flight, LOT states that it experienced delays in responding to Mr. Testouri’s correspondence due to a high volume of inquiries. Accordingly, when Mr. Testouri did not check in for the flight scheduled to depart on July 25, 2022, , his booking was cancelled, and he did not have a valid booking for the 9:55 Flight.

[31] Lastly, LOT submits that, as part of its commitment to accessibility, it offers written communication channels, including Facebook Messenger and WhatsApp chats, to facilitate communication with passengers, including those with disabilities.

Analysis and determination

[32] A person with a disability will be found to have faced a barrier if they demonstrate that they need — and were not provided with — accommodation to meet their disability-related needs, thereby being denied equal access available to others in the federal transportation network.

[33] Based on LOT’s evidence, Mr. Testouri was unable to change his reservation on LOT’s website on July 9, 2022, because his reservation only allowed for a one-time change, which he had already made. Mr. Testouri therefore needed to “directly contact” LOT for any further changes.

[34] Mr. Testouri contacted LOT using its online change ticket form on July 9, 2022, and then again by submitting an online special assistance request on July 28, 2022. LOT does not contest that it did not respond to Mr. Testouri’s correspondence, other than automatically generated confirmations of receipt, by August 2, 2022, the date to which Mr. Testouri requested to move his return flight. Furthermore, LOT does not dispute Mr. Testouri’s claim that he was unable to change his reservation through LOT’s chat function.

[35] Although other passengers who submitted requests online may have experienced similar delays and unresponsiveness from LOT, they would have been able to contact LOT directly by telephone, whereas Mr. Testouri was unable to do so because of his disability.

[36] Furthermore, Mr. Testouri made his disability-related needs known to LOT when he advised in the change ticket form and special assistance request that he cannot communicate by telephone because he was legally Deaf, and can only communicate by email. The change ticket form was filed 17 calendar days (12 business days) before Mr. Testouri’s originally scheduled departure date of July 25, 2022, and 24 calendar days (17 business days) before his requested departure date of August 2, 2022. The special assistance request was filed 5 calendar days (3 business days) before his requested departure date.

[37] However, there is no evidence that LOT prioritized Mr. Testouri’s online requests in light of his disability-related needs. Although LOT submits that it offers Facebook Messenger and WhatsApp as accessible means of communication, it does not dispute Mr. Testouri’s evidence that he was unable to obtain confirmation that his flight had been changed using an electronic chat function. Accordingly, the Agency finds that the change ticket form and the special request form were the only means apparent to Mr. Testouri for him to make his requests as a person with a hearing impairment.

[38] Accordingly, the Agency finds that Mr. Testouri faced a barrier when, using the accessible means known to him to modify his reservation, LOT did not respond.

Are any accessibility regulations made under the CTA applicable to this case?

[39] As set out in the letter that opened pleadings on the application, the remedies that the Agency may order in case of an undue barrier depend on whether the carrier has contravened any applicable accessibility regulations. Therefore, the Agency must determine whether any accessibility regulations made under the CTA apply in this case and, if so, whether LOT is in compliance with those regulations.

[40] LOT submits that it is in compliance with accessibility regulations made under the CTA. However, it does not identify any accessibility regulations applicable to this case.

[41] Section 7 of the Accessible Transportation for Persons with Disabilities Regulations (ATPDR) requires transportation service providers that provide a telephone number for reservation purposes to provide an alternative, accessible means of communication for persons who are deaf or have a hearing impairment. However, section 7 does not apply to foreign carriers and therefore this provision does not apply to LOT.

[42] Accordingly, the Agency finds that there are no regulations made under the CTA that are applicable to this case. Consequently, the Agency may order any of the remedies listed under subsection 172(2) of the CTA if the barrier is ultimately found to be undue — namely, corrective measures and compensation for expenses, lost wages, pain and suffering, and wilful and reckless practice.

Did LOT properly apply its Tariff?

Position of the parties

Mr. Testouri

[43] Mr. Testouri states that he went to the Copenhagen airport on August 2, 2022, hoping to get on standby to travel on the 9:55 Flight. He submits that this flight was overbooked and that he was denied boarding, even though he had valid travel documents, his original ticket and confirmation that LOT had received the change ticket form he submitted on July 9, 2022.

LOT

[44] LOT states that it was delayed in responding to Mr. Testouri’s change ticket form and special assistance request due to a high volume of inquiries. As a result, it states that Mr. Testouri’s booking had been cancelled when he didn’t travel on his original return flight on July 25, 2022. LOT adds that Mr. Testouri did not have a valid booking for the 9:55 Flight.

[45] Accordingly, LOT submits that Mr. Testouri was not denied boarding on August 2, 2022, because he did not have a valid booking for that date. LOT further submits that none of its flights departing Copenhagen or arriving in Toronto on August 2, 2022, were overbooked.

Analysis and determination

[46] The Air Passenger Protection Regulations, which are incorporated into LOT’s Tariff, define a denial of boarding to be when a passenger is not entitled to occupy a seat on a flight because there are fewer seats than the number of passengers who have checked in and hold a confirmed reservation. LOT’s Tariff also provides that a denial of boarding may only apply if the passenger has a confirmed reservation and a valid ticket for the flight in question.

[47] Mr. Testouri’s evidence is that he did not receive confirmation from LOT that his return flight had been changed from July 25, 2022, to August 2, 2022.

[48] Accordingly, the Agency finds that the evidence does not support Mr. Testouri’s claim that he was denied boarding because the flight was overbooked. Rather, the Agency accepts LOT’s argument that Mr. Testouri was not permitted to travel on the 9:55 Flight because he did not have a confirmed reservation or a valid ticket for travel on that flight. Therefore, the Agency finds that Mr. Testouri was not denied boarding, and that LOT properly applied its Tariff when it did not allow him to travel on the 9:55 Flight.

[49] However, in accordance with the Agency’s finding above, Mr. Testouri did not have a confirmed reservation for the 9:55 Flight because of the barrier he faced in attempting to change his reservation in a manner accessible to him. Accordingly, the Agency will address Mr. Testouri’s claim for compensation resulting from being unable to travel on the 9:55 Flight in Part 2 of its two-part approach for accessibility applications.

Conclusion

[50] As set out above, the Agency finds that Mr. Testouri is a person with a disability and that he faced a barrier when, using the accessible means known to him to modify his reservation, LOT did not respond. The Agency therefore opens pleadings on Part 2 of its two-part approach for accessibility applications.

[51] The Agency dismisses Mr. Testouri’s claim of denied boarding.

Next Steps

Opportunity to provide submissions on request for compensation for an undue barrier

[52] Mr. Testouri has until 5:00 pm Gatineau local time on March 19, 2024, to provide the following to the Agency, and provide a copy to LOT 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 barrier 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 barrier that was the result of a wilful or reckless practice,

c) or both.

[53] The parties are reminded that the maximum amount the Agency can award for a finding of pain and suffering or of wilful and reckless practice is CAD 20,000 for each, subject to annual adjustments.

Opportunity to respond to submissions on compensation and provide answer on Part 2

[54] The Agency then provides LOT with the opportunity to respond to Mr. Testouri’s submission on compensation and to file its answer to Part 2. In its answer, LOT must either:

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

[55] LOT has 10 business days from receipt of Mr. Testouri’s submission to file with the Agency its response to Mr. Testouri’s submission on compensation and its answer to Part 2, and provide a copy to Mr. Testouri. Mr. Testouri will then have five business days to file a reply with the Agency and provide a copy to LOT.

[56] The submissions on compensation will be considered if the Agency finds an undue barrier following the close of pleadings on Part 2.

[57] All correspondence should refer to Case 23-36722 and be filed through the Agency’s Secretariat email address: secretariat@otc-cta.gc.ca.


Legislation and Tariff cited Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10 169.5; 170(1); 172(1); 172(2); 172(3)
Air Transportation Regulations, SOR/88-58 110(4); 113.1(1)
Air Passenger Protection Regulations, SOR/2019-150 1(3)
Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244 7
International Passenger Rules and Fares Tariff IPG1 Containing Local Rules, Fares and Charges on Behalf of LOT Polish Airlines Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Area 1/2/3 5(C); 87(H)(1); 87(H)(2)

Member(s)

Elizabeth C. Barker
Mark MacKeigan
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