Decision No. 30-AT-C-A-2018

SUMMARY

[1] Elias Saghbini filed an application with the Canadian Transportation Agency (Agency) against Air Canada concerning a flight delay and alleged undue obstacles to his mobility that he encountered while travelling from Ottawa, Ontario, Canada to Lyon, France on December 12 and 13, 2016.

[2] The Agency will address the following issues:

1. Did Air Canada properly apply the terms and conditions set out in Rules 80 and 105 of its International Passenger Rules and Fares Tariff NTA(A) No. 458 (Tariff), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
2. Did Mr. Saghbini encounter an undue obstacle to his mobility pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)?

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

1. Air Canada properly applied the terms and conditions set out in Rules 80 and 105 of its Tariff; and,
2. Mr. Saghbini is a person with a disability and he encountered an undue obstacle to his mobility while at the Ottawa Airport.

BACKGROUND

[4] On December 12, 2016, Mr. Saghbini was scheduled to travel from Ottawa to Lyon via Montréal, Quebec. Mr. Saghbini encountered difficulties with respect to a flight delay in Ottawa and the provision of wheelchair and other assistance at various points during his journey. On June 6, 2017, the Agency opened pleadings on Mr. Saghbini’s application against Air Canada.

[5] On June 20, 2017, Air Canada filed a notice with the Agency pursuant to section 24 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules) requesting that Mr. Saghbini answer certain questions and produce certain documents. Mr. Saghbini objected and Air Canada filed a request to the Agency to compel Mr. Saghbini to abide by its notice. The Agency issued Decision No. LET-C-A-44-2017 on July 14, 2017 ordering Mr. Saghbini to file with the Agency the information requested by Air Canada. Mr. Saghbini filed his response on July 17, 2017.

[6] The Agency issued Decision No. LET-AT-C-A-66-2017 on October 26, 2017 directing Mr. Saghbini to respond to certain questions, and Air Canada to clarify and elaborate on alleged obstacles encountered by Mr. Saghbini. On October 26 and November 8, 2017, Mr. Saghbini and Air Canada, respectively, responded to the Agency’s questions. Pleadings for this case closed on November 15, 2017.

THE LAW

[7] The application contains issues relating to both the application of Air Canada’s Tariff and accessibility matters.

[8] With respect to the Tariff portion of Mr. Saghbini’s application, 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.

[9] 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:

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.

[10] Rule 80(A) of Air Canada’s Tariff sets out the carrier’s responsibilities regarding schedule irregularities and states:

1. Schedules are not guaranteed. Times and aircraft type shown in timetables or elsewhere are approximate and not guaranteed, […]
2. […]
3. Best Efforts

Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch, but no particular time is fixed for the commencement or completion of carriage.

[11] Rule 80(C)(1) of Air Canada’s Tariff defines schedule irregularity to mean, among other things, the following:

1. Delay in scheduled departure or arrival of a carrier’s flight.

[…]

[12] Rule 80(C)(4) of Air Canada’s Tariff outlines what action will be taken by the carrier in the event of a schedule irregularity and states the following:

[…]

c. reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation services; […]

[…]

[13] Rule 105 of Air Canada’s Tariff incorporates the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) by reference and states the following:

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.

[14] 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 assures.

[15] The disability related portion of Mr. Saghbini’s 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.

[16] 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 will consider whether the applicant is a person with a disability for the purposes of Part V of the CTA.

Part 2:  If it is determined that the applicant is a person with a disability for the purposes of Part V of the CTA, the Agency will determine 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 is a person with a disability and that they encountered an obstacle, the Agency will provide 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.

PRELIMINARY MATTER

[17] In his application, Mr. Saghbini makes several allegations that he received poor customer service from Air Canada in trying to resolve his claim, and that he suffered mental distress because of his flight delay and the alleged obstacles to his mobility that he faced.

[18] Mr. Saghbini is seeking $5,000 in cash or an $8,000 Air Canada gift card as compensation.

[19] The Agency does not have the jurisdiction to order compensation for distress, pain or suffering associated with poor customer service, as stated in previous decisions, such as Decision No. 18‑C‑A-2015 (Enisz v. Air Canada) and Decision No. 55-C-A-2014 (Brine v. Air Canada). Therefore, the Agency will not consider these matters.

DID AIR CANADA PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULES 80 AND 105 OF ITS TARIFF, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

Positions of the parties and findings of fact

MR. SAGHBINI’S POSITION

[20] Mr. Saghbini states he was originally scheduled to travel from Ottawa to Lyon via Montréal on December 12, 2016. However, his Ottawa flight, Flight No. AC8986, departed one hour and 35 minutes late; consequently, Mr. Saghbini missed his connecting flight from Montréal to Lyon.

[21] Mr. Saghbini submits that Air Canada rebooked him for travel to Lyon on the following day, December 13, 2016, at 5:30 p.m. via a connection in Frankfurt, Germany. Mr. Saghbini argues that by having to travel out of Montréal on the following day, and make a connection in Frankfurt, he arrived 23 hours later than originally scheduled, on an indirect routing.

AIR CANADA’S POSITION

[22] Air Canada disputes Mr. Saghbini’s claim that he was delayed 23 hours. According to Air Canada, only Mr. Saghbini’s Ottawa flight, Flight No. AC8986, was delayed upon its arrival in Montréal. In support of its argument, Air Canada submitted a “NetLine” report (document that tracks schedule information). The report indicates that Flight No. AC8986 arrived in Montréal at 8:19 p.m. on December 12, 2016, 78 minutes later than originally scheduled, and Flight No. AC828 (connecting flight to Lyon) departed from Montréal on time.

[23] With respect to Mr. Saghbini’s arguments that he was originally scheduled to travel on a direct flight to Lyon but was rebooked via a connection in Frankfurt, Air Canada submits that its next direct Montréal to Lyon flight was not until December 14, 2016. Therefore, Air Canada rebooked Mr. Saghbini to travel on its next available flight to Lyon, which was via Frankfurt on December 13, 2016. In support of its position, Air Canada filed a copy of its 2016 time schedule, which shows that the direct flight from Montréal to Lyon only operated three days per week (Monday, Wednesday and Saturday), and that the next scheduled departure was on Wednesday, December 14, 2016.

[24] Air Canada maintains that its Tariff applies to Mr. Saghbini’s journey, specifically Rule 80, which states that schedules are not guaranteed. Air Canada further submits that Rule 80 of its Tariff states that in the event of a schedule irregularity, which includes a delay, Air Canada will reroute the passenger to the destination named on the ticket and provide hotel accommodation and meal vouchers, in situations when a passenger experiences an overnight delay. Air Canada argues that it has respected its Tariff in that it rerouted Mr. Saghbini to his destination and provided him with a meal voucher and hotel accommodation for his overnight stay in Montréal.

FINDINGS OF FACT

[25] It is undisputed by the parties that the delay of Flight No. AC8986 from Ottawa to Montréal caused Mr. Saghbini to miss his connecting flight to Lyon. It is also undisputed that Air Canada rebooked Mr. Saghbini to travel to Lyon via Frankfurt on December 13, 2016, and provided him with hotel accommodation in Montréal, as well as meal vouchers.

ANALYSIS AND DETERMINATIONS

[26] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its tariff.

[27] Rule 80 of Air Canada’s Tariff provides that in the event of a flight delay, Air Canada will reroute the passenger to the destination named on their ticket within a reasonable amount of time. Rule 105 of the Tariff incorporates the Montreal Convention by reference. 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.

[28] Based on the evidence, the Agency finds that in rerouting Mr. Saghbini to Lyon via a connection in Frankfurt on December 13, 2016, and in providing him with meal vouchers and hotel accommodation, Air Canada properly applied the terms and conditions set out in its Tariff as required by the ATR.

DID MR. SAGHBINI ENCOUNTER AN UNDUE OBSTACLE TO HIS MOBILITY PURSUANT TO SUBSECTION 172(1) OF THE CTA?

Positions of the parties and findings of fact

MR. SAGHBINI’S POSITION

[29] Mr. Saghbini submits that he is a person with a disability and he filed with the Agency a copy of Air Canada’s Fitness for Air Travel Form (Form). The Form states that Mr. Saghbini has moderate to severe major depressive disorder, chronic pain, and post traumatic stress disorder. The Form also indicates that he cannot walk long distances or climb steps, and requires assistance at the airport.

[30] Mr. Saghbini maintains that he requested both medical and wheelchair assistance for his journey, which he argues is demonstrated by the fact that the term “MEDA/WHCR” appeared on his original boarding passes, and is the reason why he made his reservation through Air Canada’s medical desk. He claims that Air Canada did not provide any medical assistance and “forgot” to transfer this request to his rebooked flights. In support of his argument, he filed copies of his rebooked boarding passes that do not show the term “MEDA”. Mr. Saghbini further states that he did not receive wheelchair assistance at the Ottawa Airport, the Montreal Airport, or while making his flight connection at the Frankfurt Airport.

[31] With respect to his overnight stay in Montréal on December 12, 2016, Mr. Saghbini claims that he did not receive wheelchair assistance from the Customer Service counter to the curbside and while at the curbside, he had to “beg” another passenger to help him with his baggage. Mr. Saghbini alleges that on the following day, December 13, 2016, while he was en route to his departure gate in Montréal, the agent assisting him would not stop so he could take his medication. Mr. Saghbini also claims that once at the gate, he was not provided with wheelchair assistance to and from the washroom, nor to and from the airport store (so he could purchase food and water with which to take his medication).

[32] Mr. Saghbini states that on board both his Montréal to Frankfurt and Frankfurt to Lyon flights, the flight attendants would not assist him in retrieving his baggage (containing his medication) from the overhead bin. He argues that he has difficulty carrying and lifting his baggage and that he had to rely on other passengers to help him retrieve it. He also alleges that the flight attendants on both flights did not provide him with water with which to take his medication and submits that if he does not take his medication at specified times, he experiences “increased anxiety, stress, pain, and anger”. Similarly, Mr. Saghbini submits that Air Canada did not provide him with food and/or water to enable him to take his medication while moving through the different airports along his journey despite his needs “as a disabled person”.

AIR CANADA’S POSITION

[33] Air Canada states that Mr. Saghbini requested wheelchair assistance “WHCR” for long distances and that no other assistance was requested. In support of its position, Air Canada filed Mr. Saghbini’s medical desk file that indicates that only wheelchair assistance was requested.

[34] As to the exclusion of the term “MEDA” on Mr. Saghbini’s new boarding passes and the allegation that Air Canada “forgot” to assign a “disability assistance” designation to Mr. Saghbini’s rebooked flights, Air Canada submits that the term “MEDA” on a boarding pass denotes that the passenger has received medical approval from its medical desk and is fit to travel; it does not denote medical assistance. Air Canada further submits that Mr. Saghbini’s need for wheelchair assistance was added to his Passenger Name Record and to the Departure Control System records for each of his rebooked flights, and it has filed evidence of such.

[35] With regard to the lack of wheelchair assistance for Mr. Saghbini at the Ottawa Airport, Air Canada states that given the length of time that has elapsed since Mr. Saghbini travelled and the lack of detail provided by Mr. Saghbini regarding the incident, it is unable to respond specifically to this allegation. However, Air Canada argues that it would be “highly unusual” for Mr. Saghbini to not have received the requested wheelchair assistance at any of the points during his journey as its policy is to provide assistance when requested.

[36] In response to Mr. Saghbini’s allegation that he did not receive assistance from the Customer Service counter to the curbside when he had to spend the night in Montréal, Air Canada submits that in situations where a person with a disability requires overnight accommodation, its policy is to take the passenger to the Customer Service or Ticketing counter to allow for hotel, meal and transfer arrangements to be made. The agent providing the wheelchair assistance will then take the passenger to the baggage carousel so their checked baggage can be retrieved, after which the agent will take them onward to the curbside to either catch a hotel shuttle or a taxi. Air Canada argues that in the present case, Mr. Saghbini was provided with wheelchair assistance to the Customer Service counter, and that its agent would have continued to provide Mr. Saghbini with assistance to the baggage carousel and onward to the curbside. In support of its position, Air Canada filed a statement from Panagiota Peroulakis, Manager, Customer Service Process and Procedure Development, which outlines Air Canada’s policy as stated above.

[37] With respect to Mr. Saghbini’s claims that the agent assisting him would not stop en route to his departure gate in Montréal in order for him to take his medication, and that its flight attendants would not assist him in retrieving his baggage, Air Canada states that it does not keep logs of the assistance that its employees provide to its customers, and because Mr. Saghbini’s allegations lack detail, it cannot investigate these specific claims.

[38] With respect to wheelchair assistance in Frankfurt, Air Canada states that this service is provided by FraCares, a third party service provider, whose records indicate that Mr. Saghbini was greeted by an agent upon deplaning at 6:45 a.m. on December 13, 2016 and was transported to his departure gate at 08:00 a.m. by electric cart. Air Canada has filed copies of FraCares’ records into evidence, in support of its statement.

[39] In response to Mr. Saghbini’s statement that Air Canada should have provided him with food and/or water in order for him to take his medication, Air Canada argues that Mr. Saghbini only requested wheelchair assistance, and that such assistance does not include the responsibility to provide him with food and/or water. Air Canada argues that passengers bear the responsibility to carry all items necessary to take their medication, and that if they are unable to manage this independently, they are required to travel with an attendant.

FINDINGS OF FACT

[40] It is undisputed by the parties that Mr. Saghbini is a person with a disability for the purposes of Part V of the CTA and that he requires wheelchair assistance. It is also undisputed that he requested wheelchair assistance for all legs of his journey.

[41] With regard to Mr. Saghbini’s claims respecting the alleged obstacles that he encountered at the Montreal Airport on December 12 and 13, 2016, and the alleged lack of assistance by Air Canada’s flight attendants on Mr. Saghbini’s Montréal and Frankfurt flights, the Agency finds that Mr. Saghbini has not provided sufficient information or evidence to support his allegations. The Agency also finds that Air Canada’s arguments pertaining to Mr. Saghbini’s claims are speculative and do not directly relate to its agents’ alleged failure to provide assistance. Hence, the Agency will refrain from making a formal finding with respect to these matters and simply observe that the record before the Agency is inconclusive. In addition, the Agency’s authority to award compensation to an individual traveller is limited to expenses, and there is neither argument nor evidence from Mr. Saghbini indicating that he is seeking to recover out-of-pocket costs.

ANALYSIS AND DETERMINATIONS

[42] To determine whether there is an undue obstacle to the mobility of a person with a disability within the meaning of subsection 172(1) of the CTA, the Agency must determine whether that person’s mobility is restricted or limited by an obstacle.

[43] 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.

[44] In the present case, Mr. Saghbini submits that he requested both medical assistance and wheelchair assistance. The Agency notes that Mr. Saghbini’s medical desk file indicates that he only requested wheelchair assistance and finds Air Canada’s explanation, that the term “MEDA” appearing on a boarding pass does not mean medical assistance, to be reasonable. Therefore, the Agency finds that it is unlikely that Mr. Saghbini made a request to Air Canada that would trigger an obligation to provide medical (as opposed to wheelchair) assistance.

[45] With respect to Mr. Saghbini’s claim that he was not provided with wheelchair assistance at the Ottawa Airport, the Agency notes that it is well-established that wheelchair assistance is necessary to respond to the needs of persons with mobility-related disabilities. Given that Air Canada has not provided any evidence that wheelchair assistance was in fact provided to Mr. Saghbini at the Ottawa Airport, and that Mr. Saghbini has provided evidence that he requested such assistance, the Agency finds, on a balance of probabilities, that Mr. Saghbini faced an obstacle due to a lack of wheelchair assistance at the Ottawa Airport. The Agency further finds that as wheelchair assistance is provided by Air Canada upon request as a matter of policy, Air Canada can take steps to ensure that a similar obstacle does not reduce the accessibility of air travel for passengers with disabilities, without it experiencing undue hardship.

[46] Finally, with respect to Mr. Saghbini’s claim that he requested and was not provided with food and/or water to take his medication, the Agency finds the evidence inconclusive. Therefore, the Agency will refrain from making a formal finding on this matter. Nevertheless, the Agency notes that if Mr. Saghbini made such a request, Air Canada should have provided him with water.

CONCLUSION

[47] The Agency finds that Air Canada properly applied the terms and conditions set out in its Tariff, as required by subsection 110(4) of the ATR, and dismisses this aspect of the application. The Agency further finds that Mr. Saghbini encountered an undue obstacle to his mobility when he did not receive wheelchair assistance at the Ottawa Airport.

ORDER

[48] The Agency orders Air Canada to issue a bulletin to all of its employees across its network who are responsible for providing wheelchair assistance, that articulates its policies and procedures respecting wheelchair assistance; Air Canada is to provide the Agency’s Secretariat, in care of the Agency’s Chief Compliance Officer, with a copy of the bulletin as soon as possible, and no later than June 5, 2018.