Letter Decision No. LET-AT-C-A-32-2019
Application by Tanveer Akhtar against Saudi Arabian Airlines Corporation (Saudi Arabian Airlines).
SUMMARY
[1] Tanveer Akhtar filed an application with the Canadian Transportation Agency (Agency) against Saudi Arabian Airlines pursuant to:
- subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), concerning the carrier’s alleged failure to provide wheelchair assistance at the Islamabad International Airport (Islamabad Airport); and
- subsection 110(4) of the Air Transportation Regulations SOR/88-58, as amended (ATR), concerning the cancellation of her flight.
[2] The applicant seeks compensation (amount not specified) from Saudi Arabian Airlines for her suffering related to Saudi Arabian Airlines’ failure to provide wheelchair assistance and the delay of her travel on May 31, 2018. is also seeking compensation in the amount of CAN$150 for porter fees.
[3] The Agency will address the following issues:
- Is Tanveer Akhtar a person with a disability for the purposes of Part V of the CTA?
- Did she encounter an obstacle to her mobility?
- Did Saudi Arabian Airlines properly apply the terms and conditions set out in Rules 55, 35 and 80 of its International Passenger Rules and Fares Tariff, NTA(A) No. 324 (Tariff) which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention)? If Saudi Arabian Airlines did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, is available to the applicant?
[4] For the reasons outlined below, the Agency finds that Tanveer Akhtar is a person with a disability and that she encountered an obstacle to her mobility when she was not provided with the wheelchair assistance she requested at the Islamabad Airport. In light of these findings, the Agency will now open pleadings on whether the obstacle was undue.
[5] Further, the Agency finds that Saudi Arabian Airlines properly applied the terms and conditions set out in Rules 35 and 80, but did not properly apply Rule 55 of its Tariff.
BACKGROUND
[6] The applicant purchased flight tickets with Saudi Arabian Airlines through a travel agency for departure on May 31, 2018, from Islamabad, Pakistan to Toronto, Ontario via Jeddah, Saudi Arabia.
[7] When she presented herself at the Islamabad Airport on May 31, 2018 for flight SV 0889 to Jeddah, she was refused transport. The flight to Jeddah was delayed, and Saudi Arabian Airlines claims that she would have arrived after the scheduled departure of her flight to Toronto. It automatically rebooked her on a flight to Jeddah on June 1, 2018.
[8] In addition, Tanveer Akhtar claims that in Islamabad, she was not provided the wheelchair assistance she had requested. While she waited for her flight on June 1, the carrier paid for her hotel fee and her meals, but did not assist her in getting to and from the hotel with her luggage.
PRELIMINARY MATTER
Jurisdiction
[9] Saudi Arabian Airlines argues that the Agency’s inquiry pursuant to subsection 172(1) of the CTA in this case is beyond the Agency’s jurisdiction and therefore ultra vires.
[10] It argues that Part V of the CTA provides the Agency with the power to make regulations and investigate complaints for the purposes of eliminating undue obstacles in the transportation network “under the legislative authority of Parliament”. It claims that the Agency’s jurisdiction is limited to the “federal transportation network” and that as the applicant was travelling on an international journey and the alleged failure to provide wheelchair assistance occurred between two international points, the federal transportation network is not involved.
[11] Saudi Arabian Airlines contends that the CTA does not explicitly permit or require the Agency to deal with accessibility matters which may arise in the course of international travel. It argues that the only reason that the Agency can adjudicate on matters which may occur beyond the jurisdiction granted to it by Parliament is by virtue of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention). The Montreal Convention, according to Saudi Arabian Airlines, pre-empts any cause of action for damages as against an air carrier except where the cause of action arises pursuant to the conditions and limits of liability set out in the Montreal Convention. It submits that Parliament did not intend to extend the Agency’s jurisdiction beyond the borders of Canada or to permit the Agency to make findings which would compromise Canada’s treaty obligations.
[12] While Saudi Arabian Airlines is a foreign carrier, it holds a Canadian licence to operate international flights to and from Canada. The itinerary in question involved a flight segment between two foreign destinations, however, the ultimate destination was Toronto, Canada. This is a real and substantial connection to Canada.
[13] The Agency’s authority to inquire into applications in order to determine whether there is an undue obstacle to the mobility of persons with disabilities is conferred on it by the CTA. The Montreal Conventiondoes not pre-empt this authority where the service provider is a foreign carrier that operates an international service. Nor does it exhaustively define the types of legal proceedings that can be brought against carriers. Article 29 of the Montreal Convention specifically foresees that other types of legal proceedings can be initiated, and stipulates that they are subject to the conditions and limits of liability set out in the Montreal Convention.
[14] The Agency has exercised jurisdiction over foreign carriers under section 172 of the CTA in relation to international itineraries both where the ultimate destination was Canada, as in Decision No. 55-AT-A-2018, and where the originating flight was operated from Canada, as in Decision No. 336-AT-A-2004.
[15] In light of the above, the Agency is of the view that it has jurisdiction to inquire into the wheelchair service provided to the applicant with respect to her flight from Islamabad to Toronto via Jeddah.
Compensation claims
[16] Ms. Akhtar is seeking compensation (amount not specified) from Saudi Arabian Airlines for her suffering related to failing to provide wheelchair assistance and the delay of her travel on May 31, 2018.
[17] As stated in previous decisions such as Decision No. 18-C-A-2015 and Decision No. 55‑C‑A‑2014, the Agency is governed by the CTA, which does not provide for monetary compensation in the nature of general damages for matters such as inconvenience, treatment perceived as lacking in dignity, or for pain and suffering.
THE LAW AND RELEVANT TARIFF PROVISIONS
[18] Ms. Akhtar’s complaint raises issues related to both accessibility and the application of Saudi Arabian Airlines’ Tariff to flight delays.
Accessibility
[19] The accessibility-related portion of the application was filed pursuant to subsection 172(1) of the CTA, which 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.
[20] The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a three-part approach.
Part 1: The Agency considers whether the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA.
Part 2: If it is determined that the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA, the Agency determines whether they encountered 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 3: If it is determined that the applicant, or the person on whose behalf the application is being filed, is a person with a disability and that they encountered an obstacle, the Agency provides the respondent with an opportunity to either:
- explain how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or
- demonstrate that it cannot remove the obstacle without experiencing undue hardship.
[21] In this decision, the Agency will address the issues in the first two parts.
Application of the ATR
[22] In addition, subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff.
[23] 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 the carrier to:
- take the corrective measures that the Agency considers appropriate; and
- 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.
Application of the Tariff to flight delays
[24] Rule 55(B) Part A of Saudi Arabian Airlines’ Tariff incorporates by reference the Montreal Convention and states the following:
(1) Carriage hereunder is subject to the rules and limitations relating to liability established by the Convention (see Rule 1 (DEFINITIONS), herein) unless such carriage is not “international carriage” as defined by the Convention.
[…]
(4) For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.
[25] Rule 35(C)of Saudi Arabian Airlines’ Tariff relating to passenger expenses en route sets out that:
[…]
(2) [N] (Not applicable to LY) Except as provided below, hotel expenses are not included in passenger fares, and in the case of scheduled overnight or other stops on through services, the cost of hotel accommodations may be borne by carrier.
[…]
[26] Rule 80(B) of Saudi Arabian Airlines’ Tariff outlines the actions that the carrier will undertake in the event of involuntary revised routings:
In the event carrier cancels a flight, fails to operate according to schedules, substitutes a different type of equipment or different class of service, or is unable to provide previously confirmed space, or the passenger is refused passage or removed, in accordance with Rule 25 (REFUSAL TO TRANSPORT, LIMITATIONS OF CARRIAGE) herein, carrier will either:
(1) Carry the passenger on another of its passenger aircraft on which space is available; or
(2) Endorse to another carrier or to any other transportation service the unused portion of the ticket for purposes of rerouting; or
(3) Reroute the passenger to destination named on the ticket or applicable portion thereof by its own services or by other means of transportation and, if the fare, excess baggage charges and any applicable service charge for the revised routing is higher than the refund value of the ticket or applicable portions as determined by Rule 90 (REFUNDS) herein, carrier will require no additional payment from the passenger, but will refund the difference if the fare and charges for the revised routing are lower, or
(4) Make involuntary refund in accordance with the provisions of Rule 90 (REFUNDS) herein.
[…]
[27] Article 19 of the Montreal Convention sets out the carrier’s liability in case of delay and states that:
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.
1. IS MS. AKHTAR A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?
[28] Ms. Akhtar submits that she requires wheelchair assistance when travelling. Saudi Arabian Airlines does not contest that Ms. Akhtar is a person with a disability.
[29] In light of the above, the Agency finds that Ms. Akhtar is a person with a disability for the purposes of Part V of the CTA.
2. DID MS. AKHTAR ENCOUNTER AN OBSTACLE TO HER MOBILITY?
Positions of the Parties
MS. AKHTAR
[30] Ms. Akhtar claims that at the Islamabad Airport on May 31, 2018, she was not provided with any wheelchair assistance even though she had made the request in advance.
SAUDI ARABIAN AIRLINES
[31] Saudi Arabian Airlines admits that the request for wheelchair assistance appears in the Passenger Name Record for all flights for Ms. Akhtar.
[32] Saudi Arabian Airlines takes the position that Ms. Akhtar was provided with suitable wheelchair assistance once she presented herself to its station staff at Islamabad, and received assistance at other points in her journey where it was required. In relation to accessibility matters, it also argues that “such requirements must also be assessed in light of the practicalities that are present in the transportation framework, and the provision of accessibility services between the terminal and the accommodations provided to the Applicant, may simply not have been practicable”.
Analysis and Determination
[33] Transportation service providers have a duty to accommodate persons with disabilities. A person with a disability will face an obstacle to their mobility if they demonstrate that they need – and were not provided with – accommodation, thereby being denied equal access to services available to others in the federal transportation network.
[34] It is the applicant’s responsibility to provide sufficiently persuasive evidence to establish their need for accommodation, to prove that this need was not met and to demonstrate that they have faced an obstacle. The burden of proof which applies to this is the balance of probabilities, meaning that the party who bears the burden, in this case the applicant, must establish that their position is more probable than that of the opposing party.
[35] It is undisputed that Ms. Akhtar requested wheelchair assistance in advance. Ms. Akhtar claims that she was not provided with wheelchair assistance at the Islamabad Airport on May 31, 2018. Saudi Arabian Airlines claims that it provided Ms. Akhtar with wheelchair assistance when required, but does not explain clearly when or how it was provided to her, nor does it provide any evidence to support its position. The Agency therefore finds that, on a balance of probabilities, Ms. Akhtar was not provided with the wheelchair assistance requested and encountered an obstacle to her mobility on May 31, 2018.
3. DID SAUDI ARABIAN AIRLINES PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULE 55, 35 AND 80 OF ITS TARIFF WHICH INCORPORATES BY REFERENCE THE MONTREAL CONVENTION? IF SAUDI ARABIAN AIRLINES DID NOT PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF, WHAT REMEDY, IF ANY, IS AVAILABLE TO MS. AKHTAR?
Positions of the Parties
MS. AKHTAR
[36] Ms. Akhtar submits that she was refused transport at the Islamabad Airport on May 31, 2018 because the flight was overbooked. She did not receive a boarding pass for that flight. While other travelers boarded the aircraft, she was told to wait for the next flight, which was on the following day. Instead of leaving for Jeddah at 10:15 p.m. on May 31, 2018, Ms. Akhtar left at 6:10 p.m. on June 1, 2018.
[37] Ms. Akhtar submits that her hotel fees were paid by Saudi Arabian Airlines. However, she claims that she paid a total of CAN$150 to obtain help with her baggage (CAN$50 in porter fees when she arrived at the Islamabad Airport on May 31, 2018, CAN$50 when she left the airport to go to the hotel, and CAN$50 when she left the hotel and returned to the airport the next day for her replacement flight). Ms. Akhtar does not have any receipts to support this claim.
SAUDI ARABIAN AIRLINES
[38] Saudi Arabian Airlines states that Ms. Akhtar’s May 31, 2018 flight was not overbooked. Rather, it claims that it refused transport to Ms. Akhtar because the aircraft departing from Islamabad arrived late due to maintenance and delays on the previous flight. Instead of leaving Islamabad on schedule at 10:15 p.m., the aircraft left 2 hours and 28 minutes later, at 12:43 a.m., and arrived in Jeddah after the scheduled departure time of Ms. Akhtar’s connecting flight from Jeddah to Toronto. Therefore, Ms. Akhtar would have missed her second flight.
[39] The electronic system of Saudi Arabian Airlines automatically rebooked Ms. Akhtar to depart Islamabad 20 hours and 15 minutes later, at 6:30 p.m. on June 1, 2018. Saudi Arabian Airlines stated that due to the visa requirements applicable to her nationality, it was unable to arrange alternate transportation that would have allowed Ms. Akhtar to arrive in Toronto earlier than she did on June 1, 2018.
[40] Saudi Arabian Airlines submits that it took all the measures reasonably required to avoid Ms. Akhtar’s damages resulting from the delay. While she waited for her rescheduled flight, it paid for her hotel and her meals. It claims that the CAN$150 fee for the baggage porter services is “outlandish” considering the annual income of persons living in Islamabad. It also notes that a night at the hotel is just a little over CAN$100. If the Agency finds that Saudi Arabian Airlines is liable for these expenses, it argues that the maximum amount to be reimbursed should be CAN$100, which would cover the baggage porter services to go to the hotel and return to the Islamabad Airport after the flight delay.
Analysis and Determination
[41] Article 19 of the Montreal Convention provides that a carrier is liable for damage occasioned by a flight delay, unless it proves that it took all reasonable measures to avoid the damage or that it was impossible for it to take such measures. Therefore, Saudi Arabian Airlines is liable for Ms. Akhtar’s expenses incurred as a result of the delay unless it can establish that it took all reasonable measures to avoid these damages.
[42] The Agency accepts that the delay of Saudi Arabian Airlines’ flight from Islamabad to Jeddah on May 31, 2018, was due to unexpected maintenance and delays on the flight preceding Ms. Akhtar’s flight. Consistent with Rule 80(B)(1) of its Tariff, Ms. Akhtar was carried on another of its aircraft on which space was available on the following day.
[43] The parties do not dispute that Saudi Arabian Airlines paid for Ms. Akhtar’s meals and accommodations on May 31 and June 1, 2018, in accordance with Rule 35(C)(2) of its Tariff.
[44] In light of the above, the Agency finds that Saudi Arabian Airlines properly applied Rules 80(B)(1) and 35 (C)(2) of its Tariff.
[45] However, the Agency finds that Saudi Arabian Airlines did not properly apply Rule 55(B) of its Tariff when it did not pay Ms. Akhtar’s porter fees to the hotel and back to the Islamabad Airport. She required help and had to pay for the service, which she would not have been necessary if she had travelled as originally scheduled. Ms. Akhtar is claiming CAN$150, but the Agency finds that her actual costs resulting from the flight delay are CAN$100, because the amount related to her arrival at the Islamabad Airport on May 31, 2018 is not due to the delay. Saudi Arabian Airlines has not demonstrated that it took all reasonable measures to avoid this damage, for example, by ensuring that her baggage was transferred between the hotel and the airport.
[46] In light of the above, the Agency finds that Saudi Arabian Airlines is liable for the CAN$100 fee claimed by the applicant for baggage porter services.
ORDERS AND NEXT STEPS
[47] Having found that Ms. Akhtar is a person with a disability and that she encountered an obstacle to her mobility at the Islamabad Airport when she was not provided with the wheelchair assistance she requested, the Agency orders Saudi Arabian Airlines to provide written submissions to either:
- explain, how it proposes to remove the obstacle through a general modification to a rule, policy, practice, technology, or physical structure or, if a general modification is not feasible, an individual accommodation measure; or
- demonstrate that it cannot remove the obstacle without experiencing undue hardship.
[48] Saudi Arabian Airlines has until April 15, 2019 to respond, following which Ms. Akhtar will have three business days to file her reply.
[49] All correspondence and pleadings should refer to Case No. 18-04281 and be filed through the Agency’s Secretariat e-mail address: secretariat@otc-cta.gc.ca.
[50] Pursuant to paragraph 113.1(b) of the ATR, the Agency orders Saudi Arabian Airlines to compensate the applicant in the amount of CAN$100. Saudi Arabian Airlines is to pay this amount to the applicant as soon as possible and no later than May 15, 2019.
Member(s)
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