Agency Rulings

Decision No. 706-AT-A-2003

December 22, 2003

APPLICATION by Hugh Brazell pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, concerning the seating assignment and the level of service provided by Skyservice Airlines Inc. in the course of his round-trip between Calgary, Alberta, Canada and Holguin, Cuba departing on December 21, 2002 and returning on January 4, 2003.

File No. U3570/03-4

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APPLICATION

On January 20, 2003, Cheryl Brazell, on behalf of her husband, Hugh Brazell, filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

On March 18, 2003, Skyservice Airlines Inc. (hereinafter Skyservice) filed its answer to the application.

In its Decision No. LET-AT-A-101-2003 dated April 24, 2003, the Agency required Skyservice to file specific information. On April 29, 2003 Skyservice filed the requested documentation. Mrs. Brazell filed a reply to the carrier's answer on May 25, 2003.

On August 1, 2003, by Decision No. LET-AT-A-164-2003, the Agency required Skyservice to file additional information. On August 12, 2003, Skyservice filed the additional information. Mrs. Brazell filed a response on August 20, 2003.

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 MATTERS

Although Skyservice filed its answer to the application, as well as the additional information submitted on August 12, 2003, after the prescribed deadlines, the Agency, pursuant to section 8 of the National Transportation Agency General Rules, SOR/88-23, accepts these submissions as being relevant and necessary to its consideration of this matter.

The Agency notes that in the application, Mrs. Brazell mentioned the fact that she was charged a $20.00 seat selection fee to be seated next to Mr. Brazell in order to provide him with the necessary assistance to meet his personal needs. However, the Agency also notes that Skyservice issued a full refund to Mrs. Brazell for the seat selection fee in the amount of $20.00 and that Mrs. Brazell expressed her appreciation to Skyservice in this regard. As such, the Agency will not consider this matter further.

ISSUE

The issue to be addressed is whether the seating assignment and the level of service that Skyservice provided to Mr. Brazell on his round-trip between Calgary and Holguin constituted undue obstacles to his mobility and, if so, what corrective measures should be taken.

FACTS

Mr. Brazell has Parkinson's disease. He has a loss of muscle flexibility and dyskinesia. Due to Mr. Brazell's condition, he requires extra leg room when travelling. His medical condition is confirmed in a doctor's note dated March 12, 2002, which was provided to his travel agent at the time of booking, on September 9, 2002.

Mrs. Brazell, through a travel agent, reserved tickets for Mr. Brazell and herself for the round-trip flights between Calgary and Holguin. At that time, she requested adjacent bulkhead seating for Mr. Brazell and herself, as she attends to Mr. Brazell's personal needs during flights, including assistance with the removal of the wrappers from the meal dishes and utensils that are provided to passengers as part of the in-flight catering service.

On December 21, 2002, Mr. and Mrs. Brazell travelled with Skyservice on Flight No. 362 from Calgary to Holguin and returned to Calgary on January 4, 2003 on Flight No. 363. The flights were operated with Boeing 757 aircraft. Mr. and Mrs. Brazell were not provided with their prerequested bulkhead seating on either flight nor were they provided with alternative seating that would provide Mr. Brazell with the extra leg room that he requires as a result of his medical condition.

Skyservice, being a charter carrier, enters into contracts with one or more tour operators for the selling of seats on its flights. "Special requests", such as requests for advance seating, are processed by the tour operators with which Skyservice contracts. Skyservice is provided a copy of the passenger manifest, including all requests for services for passengers with disabilities, no later than 48 hours prior to the departure of the flight.

Skyservice's policies entitled Pre-assignment for Persons with Special Needs and Seat Assignment at Check-In, state in part that:

-   Pre-assignment requests for persons with disabilities will be accepted on a first come, first served basis up to 48 hours prior to departure;

-   Row 1 or Bulkhead is reserved for passengers with medical conditions;

-   Where a request is not made at least 48 hours in advance, a reasonable effort to satisfy the request shall nonetheless be made, including during check-in;

-   A reasonable effort is to be made also to ensure that accessible passenger seats are saved until the end of check-in, in the event that passengers with disabilities may need them;

-   A person with a disability is to be informed of those passenger seats in the aircraft to be used that are most accessible for that person. The person with a disability is to be permitted to choose the seat he/she considers most appropriate, excluding seats in the emergency exit rows which are not available to persons who are not independently mobile; and

-   Passenger seat assignments are on a "first come-first served" basis for passengers without preassigned seats. A reasonable effort is to be made to ensure that accessible passenger seats (those having lifting armrests) are the last seats made available to passengers without disabilities.

POSITIONS OF THE PARTIES

Mrs. Brazell submits that their travel agent forwarded their seating requests to Skyservice's seat selection service on September 9, 2002, along with a specific request that Mr. and Mrs. Brazell be issued adjacent bulkhead seats. Mrs. Brazell adds that her travel agent confirmed the prerequested seating arrangements with the carrier on two separate occasions prior to travel. Mrs. Brazell states, however, that upon their check-in at the Calgary airport, a Skyservice agent indicated that there was no record of the advance seating requests made at the time of booking for either Mr. or Mrs. Brazell.

Mrs. Brazell asserts that the fact that there was no written record of their preassigned seats available at either airport and the fact that the check-in agents told her that the lists of preassigned seats come from Toronto are indicative of a system's failure regardless of policies in place.

Mrs. Brazell claims that she flagged the seating problem to the ground crew, who then promised to contact a representative in Toronto to ensure that the appropriate seating arrangements were in place for their return flight to Calgary.

Mrs. Brazell states that upon boarding in Calgary, she stood in the aisle and commented that she and Mr. Brazell were supposed to be assigned bulkhead seats and that four members of the in-flight crew standing in the area directly behind the bulkhead ignored her assertion.

Mrs. Brazell asserts that the ticket agent told them that the seats assigned were "better seats", but, in her view, they were the worst seats in the aircraft for Mr. Brazell. The seats assigned did not recline and resulted in discomfort.

Mrs. Brazell indicates that while in Cuba, she contacted her travel agent in an effort to ensure that Mr. Brazell would be provided with his preassigned seat on the return flight. Seats 1F and 2F were subsequently reconfirmed by the travel agent as being the Brazells' accessible seating assignments for the return flight to Calgary. Nonetheless, upon their arrival at the airport in Cuba for their return flight to Calgary, the Skyservice check-in agent had no record of the Brazells' advance seating requests.

As a result of the incidents described above, Mrs. Brazell seeks an apology from Skyservice for its failure to deliver accessible seating, as requested in advance of travel, and for the lack of sensitivity that its representatives demonstrated in relation to the accommodation of Mr. Brazell's needs. Further, she requests assurance from Skyservice that it will expend efforts to prevent a situation similar to that experienced by Mr. Brazell from recurring.

Skyservice acknowledges that it received Mr. and Mrs. Brazell's seating requests and that the related information was accurately reflected in the check-in documentation for the passengers' round-trip flights between Calgary and Holguin. Skyservice explains that its check-in and departure services are provided by locally-contracted ground handling agents, who appear to have committed errors during the check-in procedures. Consequently, Mr. and Mrs. Brazell were not provided with their preassigned seats on either of the flights.

Skyservice states that the contracted agents are representatives of Skyservice. Skyservice submits that it has reviewed the situation experienced by the Brazells with all of its check-in staff and contracted ground handlers in an effort to ensure that its established procedures are followed in all situations so as to prevent a situation similar to that experienced by Mr. Brazell from recurring.

In a letter addressed to Mr. Brazell and filed with the Agency as part of its answer to the application, Skyservice extends its sincere apologies for any inconvenience caused to Mr. and Mrs. Brazell as a result of the seating assignments they received during their travel.

Although Mrs. Brazell confirms that the apology issued by Skyservice is appreciated, she declares that it does not take away the discomfort and frustration that she and her husband experienced as a result of Skyservice's inability to fulfill its service responsibilities during their travel experience.

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. Mr. Brazell has limited muscle flexibility and dyskinesia and therefore has a mobility impairment. As such, he 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

Seating assignment

Based on the parties' submissions, the Agency accepts that Mr. and Mrs. Brazell did in fact submit advance seating requests for seats with extra leg room for their round-trip flights with Skyservice and that the relevant information was received by the carrier in advance of travel and reflected in the check-in documentation. The Agency notes, however, that despite these arrangements, on December 21, 2002 at the airport in Calgary and again on January 4, 2003 at the airport in Cuba, Skyservice agents informed Mr. and Mrs. Brazell that there was no record of the couple's advance seating requests and the agents failed to retrieve the necessary information from the check-in documentation. As a result, Mr. Brazell was not assigned a bulkhead seat that would have provided him with the additional leg room that he required during the flights. Rather, Mr. Brazell was provided with a seat that did not recline and caused him discomfort.

In light of the foregoing, the Agency finds that the seat assigned to Mr. Brazell on both flights of his round trip constituted an obstacle to his mobility.

Level of service provided by Skyservice personnel

The Agency notes that Mr. and Mrs. Brazell, through their travel agent, had requested bulkhead seating at the time of booking to ensure that Mr. Brazell's particular seating needs would be met during the flights.

The Agency is of the opinion that regardless of whether bulkhead seating was or was not available on the flights in question, Skyservice personnel failed to enter into a dialogue with Mr. Brazell concerning his particular needs. They also failed to convey information to Mr. and Mrs. Brazell on the available seating alternatives so as to allow them to make an informed decision, based on Mr. Brazell's needs, on the most suitable seat. Consequently, the Agency is of the opinion that by failing to effectively communicate with Mr. Brazell regarding possible seating alternatives with the relevant accessibility features, Skyservice personnel demonstrated a lack of awareness of, and sensitivity to Mr. Brazell's particular seating needs.

The Agency notes that Skyservice's seating policies contain general directives that support the need for communication and dialogue with a person with a disability to determine which seat would be the most accessible and best meet his/her needs. However, the Agency is of the opinion that as evidenced by the conduct of the Skyservice personnel during check-in and at boarding, these directives were not adhered to in this case.

In light of the foregoing, the Agency finds that Skyservice personnel's failure to have an appropriate level of dialogue with Mr. and Mrs. Brazell, as well as the related lack of sensitivity to and awareness of Mr. Brazell's particular seating needs, resulted in circumstances that seriously detracted from Mr. Brazell's travel experience as he experienced unnecessary discomfort during the flights. The Agency therefore finds that the level of service provided by Skyservice personnel constituted an obstacle to Mr. Brazell's 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 determined that Skyservice's failure to provide Mr. Brazell with seating that would have provided him with the additional leg room he required due to his disability and that the level of service provided by Skyservice personnel constituted obstacles to his mobility, the Agency will now consider whether these obstacles were undue.

Seating assignment

The Agency notes that Mr. Brazell's need for bulkhead seating was mentioned at the time of booking, upon check-in at the Calgary airport, upon boarding the outbound flight in Calgary and upon check-in at the airport in Cuba. The Agency also notes that while in Cuba, Mrs. Brazell had her travel agent reconfirm their bulkhead seating requests for their return flight to Calgary with Skyservice.

Skyservice acknowledged that the preassigned seating information was received by its office and was accurately reflected in the check-in documentation for the flights in question. The Agency also notes Skyservice's admission that its locally contracted ground handling agents appear to have committed an error during the check-in process at both the Calgary and the Holguin airports.

The Agency notes that Skyservice's policies clearly state that its services to persons with disabilities include a reservation priority, that bulkhead seating is reserved for passengers with a medical condition and that its representatives are required to inform persons with disabilities of the passenger seats that are most accessible for them and to let persons with disabilities choose the seats that they consider most appropriate for them. The Agency also notes that Skyservice's policies are to ensure that "accessible passenger seats (those having lifting armrests)" are the last seats made available to passengers without disabilities. While Skyservice's policies recognize that accessible passenger seats include those that have liftable armrests, Skyservice should be aware that such seats are not the only accessible passenger seats on aircraft. The Agency notes that there are many seats which could have accessibility features, including bulkhead seats, aisle seats, and seats close to the washroom. The Agency has recognized this in past decisions. Further, it is important that there be a clear understanding of the travel-related needs of persons with disabilities and the accessibility features they require through open and clear communication.

The Agency is concerned with situations such as that encountered by Mr. Brazell, where policies and procedures that are in place to address the needs of persons with disabilities, such as those related to seat preassignment for persons with particular needs and seat assignment at check-in, are not properly followed by a carrier's representatives.

Based on the submissions filed, there was a failure in the system even though there are policies in place. The Agency notes the submission of Mrs. Brazell wherein she stated that the travel agent forwarded the specific request for seating assignment to Skyservice. The Agency notes, however, that the tour operator processes all the specific requests and then forwards them and the passenger manifest to Skyservice no later than 48 hours prior to the departure of the flight. In this particular case, Skyservice confirmed that it did receive the correct information from the tour operator for Mr. Brazell. In view of the fact, however, that on both flights the check-in agents involved did not make use of the information regarding Mr. Brazell's needs and his request for bulkhead seating, the Agency is not convinced that Skyservice has adequate procedures in place to ensure that the needs of its passengers with disabilities are known to its personnel in order to ensure that appropriate services are provided.

The Agency finds that Skyservice failed to provide the prerequested bulkhead seating to Mr. Brazell and that, although Mrs. Brazell reconfirmed the request for bulkhead seating upon check-in at the Calgary airport and again at the Cuba airport, in both cases, Skyservice's personnel made no apparent effort to confirm alternative seating assignments on either flight that would have provided Mr. Brazell with the additional leg room that he requires when travelling.

In light of the foregoing, the Agency finds that the failure by Skyservice personnel to provide Mr. Brazell with the prerequested bulkhead seating or alternative seating which would have provided him with additional leg room on Flight Nos. 362 and 363 constituted an undue obstacle to his mobility.

Level of service provided by Skyservice personnel

The Agency notes that Skyservice asserted that it is aware of the particular importance of customer service in relation to its passengers who have disabilities and offered an assurance to Mr. and Mrs. Brazell that its policies and procedures "do look after the needs of passengers with disabilities."

The Agency is concerned by such statements, especially when they are made in relation to situations such as those experienced by Mr. Brazell, where assistance from the air carrier's personnel was sought on different occasions during the round trip once the passengers realized that there might be problems receiving the bulkhead seating that they had prerequested. However, the carrier's representatives failed to provide them with their prerequested seating or offer alternative seating that would have provided the additional leg room needed by Mr. Brazell.

The Agency is of the opinion that awareness of and sensitivity to the needs of persons with disabilities and the assistance required by these persons when they travel can be improved by the training of personnel. The Agency points out that paragraph 4(a) of the Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42 (hereinafter the Training Regulations), requires that training on the policies and procedures of the air carrier with respect to persons with disabilities be provided to employees and contractors who provide transportation-related services, interact with the public or make decisions with respect to the carriage of persons with disabilities.

The Agency is of the opinion that Skyservice bears the responsibility for ensuring that its policies and procedures concerning the transportation of persons with disabilities are appropriately conveyed to its representatives through training programs that ensure that the representatives are aware of, and sensitive to, the particular needs of persons with disabilities and are able to provide the necessary level of service to such travellers.

In light of the foregoing, the Agency finds that Skyservice personnel's failure to enter into an appropriate level of dialogue with Mr. and Mrs. Brazell is indicative of Skyservice personnel's lack of sensitivity to Mr. Brazell's particular seating needs. Further, the Agency is of the opinion that the personnel's failure to follow Skyservice's established policies and procedures is, in and of itself, indicative of a possible failure on the part of Skyservice to provide appropriate personnel training on its policies and procedures concerning persons with disabilities. As such, the Agency finds that the level of service provided by the personnel during check-in, as well as during boarding, on both flights in question constituted an undue obstacle to Mr. Brazell's mobility.

CONCLUSION

Based on the above findings, the Agency has determined that the seating assignment and the level of service that Skyservice provided to Mr. Brazell on his round-trip between Calgary and Holguin constituted undue obstacles to his mobility.

In addition, the Agency hereby directs Skyservice to take the following measures within thirty (30) days from the date of this Decision:

1. Provide the Agency with a copy of its personnel training program, including the information set out in the Schedule (Section 11) to the Training Regulations. Of particular interest to the Agency are provisions in Skyservice's program that address the concerns raised in Mrs. Brazell's submission with respect to (i) its personnel's awareness of its policies and procedures, as well as the terms and conditions of carriage; and (ii) the need for its personnel to have a dialogue with a passenger with a disability on his/her needs, so as to determine the passenger's choice of the available service/seating options.
2. Submit the training records of the personnel involved, including the check-in agents at the Calgary and Holguin airports and the flight attendants who interacted with the Brazells indicating the dates on which they received initial and refresher training.
3. Issue a bulletin to all of the carrier's representatives who deal either directly or indirectly with the provision of services to passengers with disabilities, whether the representatives be employees or contracted agents of the carrier.

   The bulletin shall highlight the incident experienced by Mr. Brazell, without identifying his name, and emphasize the importance of maintaining appropriate levels of awareness and sensitivity to the particular needs of travellers with disabilities. In addition, the bulletin shall reinforce the importance of (i) following the carrier's policies and procedures with respect to the provision of services to a passenger with a disability; (ii) initiating discussions with a person with a disability to ensure that his/her needs and abilities are clearly understood and taken into account by the representatives; and (iii) being sensitive and constantly alert to the needs of a traveller with a disability so as to allow the passenger to determine the appropriate level and form of assistance required in a particular situation.

   The bulletin shall also clarify that in accordance with the carrier's policy on seating assignments, Row 1 or Bulkhead is reserved for passengers with medical conditions and can be assigned through the advance seating selection service or at check-in. The bulletin shall remind the carrier's representatives that a person with a disability shall receive priority over a person without a disability for the pre-booking of bulkhead seating, and that a person with a disability is to be permitted to choose the seat he/she considers most appropriate for him/her in light of his/her needs.

   Skyservice shall also provide the Agency with a copy of the bulletin, as issued.

4. Describe, in detail, what procedures are in place to ensure that requests for specific services made by passengers with disabilities, as communicated to the tour operators with which Skyservice deals, are completely and accurately reflected in Skyservice's records in order that its check-in agents and ground personnel are in a position to know the specifics of such requests to ensure that the needs of passengers with disabilities will be met.

Following its review of the required material, the Agency will determine whether further action is required in this matter.