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Agency Rulings
Decision No. 526-AT-A-2004
October 4, 2004
APPLICATION by Bryan Thibodeau and Yvonne Thibodeau, on behalf of Tonya Thibodeau, pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, concerning the seating assignment and the level of assistance provided to Tonya Thibodeau while travelling with Air Canada between Victoria, British Columbia, Canada, and Orlando, Florida, United States of America (via Vancouver, British Columbia and Toronto, Ontario, Canada) on October 25 and 26 and November 2, 2000.
File No. U3570/00-79
APPLICATION
On November 27, 2000, Bryan Thibodeau and Yvonne Thibodeau filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title on behalf of their daughter, Tonya Thibodeau.
In response to Air Canada's requests of February 1, 2001 and March 2, 2001 for an extension of time to file its answer to the application, the Agency, by Decision Nos. LET-AT-A-65-2001 dated February 12, 2001 and LET-AT-A-102-2001 dated March 2, 2001, granted Air Canada until March 16, 2001 to do so. Air Canada filed its answer to the application on March 16, 2001 and provided further information on March 23, 2001. On April 19, 2001, Mr. and Mrs. Thibodeau filed a reply to the carrier's answer.
Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.
PRELIMINARY MATTER
The Agency notes that while some of the flight segments were operated by Air BC Limited carrying on business as AirBC and Canadian Airlines International Ltd. carrying on business under the firm name and style of Canadian Airlines International or Canadi*n Airlines or Canadi*n, Air Canada was the marketing carrier for all flight segments of Ms. Thibodeau's trip and all flights were operated under Air Canada's code. As such, the Agency will only proceed with the application against Air Canada.
ISSUE
The issue to be addressed is whether the seating assignment and the level of assistance provided by Air Canada constituted undue obstacles to Tonya Thibodeau's mobility and, if so, what corrective measures should be taken.
FACTS
Tonya Thibodeau is 13 years old, has spinal muscular atrophy, and uses an electric wheelchair. Because she has steel rods in her back, she has to be transferred to and from her wheelchair with a sling and pole. She cannot be manually lifted without this equipment. She is completely dependent on her parents and they perform all of her transfers.
Ms. Thibodeau was granted a wish to go to Disneyworld by The Children's Wish Foundation of Canada (hereinafter the Wish Foundation). She and her travelling party, her mother, her father and a friend, were booked to travel from Victoria to Toronto (via Vancouver) on October 25, 2000, to stay overnight in Toronto, and to travel to Orlando, Florida on October 26, 2000. The travelling party returned on November 2, 2000, from Orlando to Victoria (via Toronto and Vancouver).
The booking for the trip was made by the Wish Foundation through Travel Plus, the independent travel agency responsible for all Wish Foundation bookings made with Air Canada. Travel Plus created Ms. Thibodeau's file as per the Wish Foundation's specifications and finalized arrangements with Air Canada's Medical Desk (hereinafter the Meda Desk).
The booked flights were as follows:
October 25, 2000
Depart Victoria: 1:20 p.m. Arrive Vancouver: 1:45 p.m. Depart Vancouver: 2:30 p.m. Arrive Toronto: 9:55 p.m.
October 26, 2000
Depart Toronto: 8:35 a.m. Arrive Orlando: 11:30 a.m.
November 2, 2000
Depart Orlando: 12:30 p.m. Arrive Toronto: 3:14 p.m. Depart Toronto: 4:15 p.m. Arrive Vancouver: 6:25 p.m. Depart Vancouver: 7:15 p.m. Arrive Victoria: 7:40 p.m.
Air Canada relies on the information recorded in the passenger name records to convey customized service instructions to its airport and in-flight personnel.
Tonya Thibodeau's Passenger Name Record (hereinafter the PNR), created at the time of booking, shows the International Air Transport Association wheelchair code "WCHC" (which means the passenger is completely immobile and requires assistance with transfers, including to and from the passenger seat on the aircraft). The PNR also indicates that the passenger is non-self reliant, is travelling with an escort, requires seating with liftable armrests, and has an electric wheelchair. Seat pre-assignments were identified as follows:
| - from Vancouver to Toronto: | 2 seats in row 25; and |
| 2 seats in row 26 |
| - from Toronto to Orlando: | 4 seats in row 12 |
| - from Orlando to Toronto: | 2 seats in row 22; and |
| 2 seats in row 25 |
| - from Toronto to Vancouver: | 2 seats in row 22; and |
| 2 seats in row 23 |
In addition, the Fitness for Air Travel - Medical Information Form (hereinafter the Medical Form), which was completed by Ms. Thibodeau's physician, indicates that she would be accompanied by her parents who would fully attend to all of her needs for all flights (assisting her in boarding and deplaning, taking care of her personal needs while on board the aircraft, including meals, visiting the washrooms, administering medications, etc.), and that she required oxygen occasionally. The PNR and the Medical Form do not identify Ms. Thibodeau's need for special transfer equipment or her stature.
On October 25, 2000, the travelling party arrived in Vancouver from Victoria at 1:45 p.m., with a scheduled departure from Vancouver at 2:30 p.m. When they boarded the aircraft to Toronto, all other passengers had boarded. Unfortunately, due to her stature, Ms. Thibodeau could not proceed down the aisle in the boarding chair to her assigned seat in row 25. Alternate seating arrangements were made on board the aircraft: two passengers seated in the executive class section accepted to change seats within the executive class section, allowing Ms. Thibodeau and her mother to sit together. The other two members of the travelling party occupied their assigned seats in row 26 in the economy class section.
Upon arrival of the flight in Toronto from Vancouver, Mr. and Mrs. Thibodeau wanted to get their daughter's wheelchair from the baggage retrieval area and bring it to the gate as it was more suitable for her. However, they were advised by an employee driving an airport electric cart that this was not possible as electric wheelchairs are not permitted in the airport terminal building. This employee then left without offering further assistance. Mr. and Mrs. Thibodeau managed, using the airport provided manual wheelchair, to reach the baggage retrieval area with their daughter and all of their carry-on luggage.
The following morning, the travelling party checked in two hours before the scheduled departure of the flight to Orlando and proceeded to a booth designated for Special Assistance. There, Mr. and Mrs. Thibodeau explained the seating problems they encountered on the first leg of their trip, and they were advised that this matter would be dealt with at the boarding area. An agent escorted the travelling party to the boarding area and they were later pre-boarded. Ms. Thibodeau and one of her parents were directed to seats in the bulkhead row. The bulkhead seat assigned to Ms. Thibodeau was not appropriate due to her stature, resulting in Ms. Thibodeau experiencing pain and requiring one of her parents to physically hold her up during the flight.
The pole used for Ms. Thibodeau's transfers, which was stored in the overhead bin, accidentally fell from the overhead bin when someone opened it.
While in Orlando, the Thibodeaus communicated with the Wish Foundation concerning the improper seating assignments. The Wish Foundation took immediate action and upgraded Ms. Thibodeau and her attendant's seating accommodations, assigning them seats in the executive class section for all flight segments of their return trip.
On November 2, 2000, the travelling party was pre-boarded for the flight to Toronto. While Ms. Thibodeau and her mother were assigned two separate seats in the executive class section, alternate seating arrangements were made on board the aircraft so that Ms. Thibodeau and her mother could sit together. Upon arrival of the flight in Toronto, the travelling party was met by an Air Canada employee with a wheelchair for Ms. Thibodeau's transfer. They were then rushed to the baggage retrieval area where they collected their luggage for clearance through Customs. When asked about the whereabouts of Ms. Thibodeau's personal wheelchair, the agent informed Mr. and Mrs. Thibodeau that their daughter's electric wheelchair had ben cleared through Customs and that it was sent directly to be loaded in the aircraft to Vancouver.
The travelling party missed the 4:15 p.m. connecting flight to Vancouver and was rebooked on the 5:50 p.m. flight. Upon arrival in Victoria, the Thibodeaus discovered that Ms. Thibodeau's wheelchair was missing. An employee informed them that he received a message from Toronto stating that the Thibodeaus did not pick up the wheelchair at Customs, so it was not cleared and loaded in the aircraft to Vancouver. The wheelchair finally arrived in Victoria on an Air Canada flight at approximately 11:00 p.m.
Disheartened by the events of their trip, the Thibodeaus want Air Canada to look into what happened, take into consideration the mistakes that were made and improve its methods of dealing with persons with disabilities.
ANALYSIS AND FINDINGS
In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
An application must be filed by a person with a disability or on behalf of a person with a disability. Ms. Thibodeau is a person who has a mobility impairment and uses a wheelchair and, as such, is a person with a disability for the purpose of applying the accessibility provisions of the CTA.
To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.
Whether the applicant's mobility was restricted or limited by an obstacle
The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.
In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.
The case at hand
The Agency notes that this was a new travel experience for the family and that Mr. and Mrs. Thibodeau submitted that even the thought of taking a trip across North America with their daughter was quite frightening to them. Because of the number of disappointments they had, their travel experience was not a happy one. The non-selection of appropriate seating at booking and the resulting confusion and stress of having seats reassigned on board the aircraft, at check-in, and while in Orlando; the lift pole which fell out of the overhead bin; the non-availability of Ms. Thibodeau's personal wheelchair for her use in the Toronto airport terminal building; the lack of assistance to the Thibodeaus with their carry-on luggage at the Toronto airport; and the delayed delivery of Ms. Thibodeau's wheelchair on her return to Victoria all contributed to their disappointments.
The Agency finds that the great deal of stress and anxiety experienced by the Thibodeaus was the result of missed opportunities in the planning and reservation process of what was intended to be a truly memorable trip for Tonya Thibodeau and her family. The Agency also notes that this was the first time Ms. Thibodeau and her family travelled by air and the Agency is of the opinion that the family was not completely informed by those responsible for the travel arrangements of what to expect, especially in terms of the seating accommodations on the aircraft, the boarding chair and the aisle widths, and of the fact that, at the origin point, a passenger can request that a personal wheelchair be properly tagged and brought to the door of the aircraft. Had these issues been discussed and considered at booking, the Thibodeaus might have been in a better position to evaluate whether the travel arrangements that were made on their daughter's behalf were, in fact, ones that would best respond to her specific needs.
As Mr. and Mrs. Thibodeau indicated, Ms. Thibodeau could not proceed down the aisle of the aircraft in the narrow boarding chair because she "just would not fit". Mr. and Mrs. Thibodeau question why their daughter would have been assigned such seating in the first place. The Agency has reviewed the PNR and the Medical Form completed by the attending physician and notes the lack of information in both documents on Ms. Thibodeau's stature or of the lifting device to be carried. The Agency finds that, in this case, information on Ms. Thibodeau's stature was critical information, especially in light of her delicate condition. Had this information been taken into account very early in the reservation process, seats that provide additional space, for example seats in the executive class section, could have been considered by the Wish Foundation for all flight segments. As noted, once it was found that the regular economy class seats did not accommodate Ms. Thibodeau, the Wish Foundation requested seating in the executive class section for the return trip.
Proper identification of Ms. Thibodeau's seating needs in the planning and reservation process could have eliminated much of the anxiety experienced by the Thibodeaus as a result of the seat reassignments on board the aircraft. This experience left the Thibodeaus with a lack of privacy for transfers as all other passengers were already boarded. Moreover, the Thibodeaus had to go through the same experience on two separate occasions, that is in Vancouver and in Toronto. Appropriate seating was however secured for the return trip following a call by the Thibodeaus to the Wish Foundation while in Orlando. The Wish Foundation booked two seats in the executive class section for Ms. Thibodeau and one attendant on all flight segments of their return trip.
The Agency is also of the opinion that there was a lack of good judgement on the part of the reservation parties in terms of the flights and connecting times. While in normal booking circumstances, one hour is a standard connecting time applied to domestic and transborder flights and may accommodate passengers who can rush from one gate to the next, this is not always the case for all persons with disabilities. The level of assistance required varies depending on the person with a disability, and when determining and accepting connecting flights, one must always take into account the fact that the person with a disability is the last person to be deplaned; the time required to retrieve and be transferred to a mobility aid and getting to the next gate; and the possibility of flight delays. These factors do not seem to have been properly assessed in the case at hand.
Mr. and Mrs. Thibodeau submitted that they did contact the carrier on several occasions prior to travel, but after the reservation process, to ensure that the carrier was aware of their daughter's arrival at each station and the problems which may arise. It was also submitted that in a phone call made the night prior to their departure, Mr. and Mrs. Thibodeau informed the carrier that there was "just too little time in between" flights. The Thibodeaus maintain that they were assured that everything had been documented and that each station was made aware of their arrival. Air Canada has no record of any subsequent phone calls made. The Agency recognizes that many first time passengers or passengers who are anxious, as clearly the Thibodeaus had a right to be, will call a carrier prior to a flight to reconfirm arrangements, but unless these calls bring forth new and additional information that may impact on the services to be provided, carrier agents do not necessarily make a note of these calls in the PNR. The Agency accepts that subsequent calls may have been made, but based on the evidence on file, the Agency cannot find that any new information was conveyed to the carrier.
In light of the foregoing, the Agency finds that the incomplete information exchanged among the Wish Foundation, Travel Plus, the attending physician and Air Canada's Meda Desk resulted in the very unfortunate travel problems experienced by Ms. Thibodeau.
Services provided by Air Canada
Seating assignment
On the issue of the seating assignment, the Agency notes that the Air Canada in-flight personnel did find a solution in order to accommodate Ms. Thibodeau on the Vancouver to Toronto flight by assigning her and one attendant seats in the executive class section. With respect to the Toronto to Orlando flight, Air Canada was unable to accommodate Ms. Thibodeau in the executive class section; the flight crew reassigned two seats in the bulkhead seat row to Ms. Thibodeau and one attendant just prior to the flight departure. While, in this case, the bulkhead seat assigned to Ms. Thibodeau did not accommodate her due to her stature, it remained the only alternative given the fact that the passenger could not go down the aisle of the aircraft and no seats were available in the executive class section. The Agency therefore finds that the seating assigned by Air Canada did not constitute an obstacle to Ms. Thibodeau's mobility.
Level of assistance at Toronto
The Agency notes that upon arrival of the Thibodeaus in Toronto from Orlando, an airport wheelchair was made available for Mr. and Mrs. Thibodeau to assist with the transfer of Ms. Thibodeau from the aircraft to the baggage retrieval area, where her personal electric wheelchair would be reassembled and be made available for her use.
Although no request had been made at booking or at check-in in Victoria to have her personal wheelchair brought to the aircraft door, Mr. and Mrs. Thibodeau asked an agent who was at the arrival gate, on an electric cart, whether they could retrieve the wheelchair and bring it to the aircraft door. The agent erroneously informed them that electric wheelchairs are not allowed in the airport terminal building. Air Canada acknowledged that this was incorrect information and that, with advance notice, this is a service which could have been provided.
The Agency recognizes that, at the time of their discussion with the agent at the arrival gate, retrieval of Ms. Thibodeau's wheelchair would have been difficult as her parents would have been required to exit the secure area and would not, without a security authorization, have been able to return into the secure area with the wheelchair. Despite this fact, the Agency finds that the agent should have provided the Thibodeaus with the correct information and a proper explanation.
The evidence further demonstrates that the agent did not open a dialogue with the passengers in order to determine if any assistance could have been offered. As Mr. and Mrs. Thibodeau noted, no offer was made to assist them with their carry-on luggage, and they had to struggle with the carry-on luggage of their daughter, as well as manoeuver their daughter in what they defined as an inappropriately small airport wheelchair. Once at the baggage retrieval area, Mr. and Mrs. Thibodeau pointed out to this same agent, who was there, that she could have helped them with their carry-on luggage, to which she replied "Oh, you should have said something". The Agency reminds the carrier that its agents must be vigilant to the needs of its passengers and that they must seize opportunities to open a dialogue with passengers to offer assistance rather than wait for a request.
The Agency is concerned with the service provided by the agent in Toronto who assisted the Thibodeaus from the arriving Orlando flight through Customs and to their connecting flight to Vancouver. While the minimal time to make the connection was a factor in the rush, the fact that the agent erroneously informed Mr. and Mrs. Thibodeau that their daughter's wheelchair had cleared Customs and was on its way to the connecting flight showed a degree of carelessness on the agent's behalf. The Agency finds a passenger's personal wheelchair to be an extension of the person in that it affords the person his/her independence, dignity, safety and comfort and should be treated with the highest degree of priority.
It is noted that the passengers did ultimately miss their 4:15 p.m. connecting flight to Vancouver and were rebooked on a flight departing at 5:15 p.m. While this allowed even more time to ensure that the wheelchair was processed and forwarded for boarding on the next flight, the wheelchair remained at the Customs area, only to be discovered after the travelling party had left on the later flight. The Thibodeaus therefore had to wait an additional two hours at the Victoria airport for the delivery of the wheelchair on a later flight. The Agency notes the anxiety and discomfort experienced by Ms. Thibodeau due to the unavailability of her personal wheelchair and finds that the delay in the delivery of Ms. Thibodeau's wheelchair at the Victoria airport constituted an obstacle to her mobility.
Whether the obstacle was undue
As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.
While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.
The case at hand
Having found that the delay in the delivery of Ms. Thibodeau's wheelchair at the Victoria airport constituted an obstacle to her mobility, the Agency must now determine if the obstacle was undue.
As noted earlier, air carriers have a responsibility to accommodate and meet the needs of passengers with disabilities. This means that air carriers must have procedures and policies in place that enable passengers with disabilities to use the transportation services without any undue obstacles to their mobility. The Agency has long recognized the importance of mobility aids to persons with disabilities who rely on them and has generally required air carriers to adopt a higher standard of care in the handling of this critical equipment.
In this case, the agent who was assigned to assist the Thibodeaus was well aware of the connecting flight and had the responsibility to ensure that the passengers were directed to the boarding gate for their connecting flight. He also had to make sure that the wheelchair was cleared through Customs and brought to the next flight as he had told the Thibodeaus. Air Canada has procedures and provides training on the handling of mobility aids. Although Air Canada was not able to identify the agent to determine the circumstances of the delay, the agent failed to properly perform his duties. In this regard, Air Canada personnel failed to ensure that the electric wheelchair was promptly brought to the connecting flight. Therefore, the Agency finds that the delay in the delivery of Ms. Thibodeau's wheelchair at the Victoria airport constituted an undue obstacle to her mobility.
The Agency recognizes that this situation happened at a time when Air Canada was in the process of integrating its services and personnel with those of the former Canadian Airlines International Ltd. The turmoil of this period, however, does in no way diminish the effects this lapse in service had on Tonya Thibodeau.
CONCLUSION
Based on the above findings, the Agency notes that the incomplete information exchanged at the time of booking resulted in many of the unfortunate problems experienced by the Thibodeaus.
The Agency concludes that the seating provided by Air Canada, once it was determined that the preassigned seating was not appropriate, did not constitute an obstacle to Ms. Thibodeau's mobility.
The Agency concludes, however, that the delay in the delivery of Ms. Thibodeau's wheelchair at the Victoria airport constituted an undue obstacle to her mobility.
Although there was an undue obstacle to Ms. Thibodeau's mobility, the Agency has determined that this incident occurred during the transitional period when Air Canada was in the process of integrating its services and personnel with those of the former Canadian Airlines International Ltd. The Agency has also determined that Air Canada has procedures and training in place which should prevent the recurrence of similar incidents. As a result, the Agency will not require any corrective measures of Air Canada. Notwithstanding, the Agency reminds Air Canada of the serious consequences this type of lapse in service creates for persons with disabilities.