Decision No. 3-AT-A-2024

Summary

[1] Usha Agarwal filed an application with the Canadian Transport Agency (Agency) regarding the wheelchair assistance she received from Emirates upon arriving at the Toronto Pearson International Airport (Toronto airport) on June 25, 2022.

[2] Ms. Agarwal seeks a refund of her ticket as well as compensation for pain and suffering, including for a physical injury that she suffered at the Toronto airport, for time wasted during her vacation and for medical expenses that she incurred.

[3] The Agency will address the following issues:

1. Is Ms. Agarwal a person with a disability?
2. Did Ms. Agarwal face a barrier?

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

1. Ms. Agarwal is a person with a disability with respect to mobility.
2. Ms. Agarwal did not meet her burden to establish, on a balance of probabilities, that she faced a barrier to her mobility attributable to Emirates.

Background

[5] Ms. Agarwal travelled with Emirates from Kolkata, India, to Toronto, Ontario, via Dubai, United Arab Emirates, arriving on June 25, 2022. Ms. Agarwal requested wheelchair assistance (WCHR service) when she purchased her ticket on Emirates’ website.

[6] Ms. Agarwal states that upon her arrival at the Toronto airport on June 25, 2022, she was abandoned by Emirates’ wheelchair attendant and forced to proceed on foot without the wheelchair assistance that she required.

[7] Pleadings opened on the application on August 24, 2023. On September 15, 2023, Emirates filed an answer and request for confidentiality with respect to certain documents filed in support of its answer. Ms. Agarwal filed a reply to Emirates’ answer on September 18, 2023, and on September 25, 2023, Emirates filed a consolidated request to remedy issues with certain documents filed in support of its answer. On November 23, 2023, the Agency issued LET-AT-A-45-2023, addressing Emirates’ request for confidentiality and its consolidated request.

The law

Accessibility

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

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

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

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

and

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

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

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

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

or

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

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

Is Ms. Agarwal a person with a disability?

Position of the parties

Ms. Agarwal

[11] Ms. Agarwal states that she has knee pain resulting from muscle degeneration due to age, and that she cannot walk for more than approximately 150 metres and stand for more than 2 to 5 minutes at a time. She indicates that, in order to manage her mobility limitations, she is always accompanied by a family member or by paid caregivers.

Emirates

[12] Emirates states that Ms. Agarwal has not provided any medical evidence in support of her claim that she has a disability. It submits that the fact it agreed to provide Ms. Agarwal with wheelchair assistance does not automatically mean she is a person with a disability for the purposes of the application.

[13] Emirates also submits that Ms. Agarwal has not provided first-hand evidence describing her underlying condition or functional limitations.

Analysis and determination

[14] Medical evidence is not always necessary to support a disability claim, particularly with respect to mobility. While Emirates indicates that Ms. Agarwal failed to provide medical evidence to support her claim of disability, it admits that it did not require evidence before agreeing to provide her with the wheelchair service that she requested, nor did it question her need for it.

[15] Although Emirates submits that Ms. Agarwal did not provide first-hand evidence of her underlying condition or functional limitations, the Agency finds that Ms. Agarwal provided this evidence in her application, through her representative. In Decision LET‑AT-25-2019 (Robinson v Air Canada), the Agency held that evidence submitted by an authorized representative of the applicant on the applicant’s behalf is admissible, and if the representative’s submissions are ignored or discounted it would result in a diminution of access to justice. The Federal Court of Appeal upheld this finding in Air Canada v Robinson.

[16] Based on the evidence on file, the Agency finds that Ms. Agarwal is a person with a disability with respect to mobility, because the impairments described in her application impact her ability to travel within the federal transportation network.

Did Ms. Agarwal face a barrier?

Position of the parties

Ms. Agarwal

[17] Ms. Agarwal states that upon arrival at the Toronto airport on June 25, 2022, she received wheelchair assistance and was taken by a wheelchair attendant toward the immigration counter. However, Ms. Agarwal claims that before reaching the immigration counter, the wheelchair attendant left her stranded at an unknown location. Ms. Agarwal states that before leaving, the wheelchair attendant directed Ms. Agarwal to take an elevator down to a counter, and told her that they would come back to attend to her later.

[18] Ms. Agarwal submits that she took an elevator and went to the counter without wheelchair assistance, where she was asked to wait for more than three hours. She states that the wheelchair attendant never came back as promised. She therefore called her son for help. She indicates that her son went to the Emirates desk in the airport to ask for help for her, but none was provided.

[19] As a result, Ms. Agarwal states that she almost fainted and fell down on the floor. After managing to find a seat and continuing to wait for the wheelchair attendant to return, Ms. Agarwal advises that airport staff assisted her out of immigration to the baggage retrieval area, where other passengers helped her with her heavy luggage. She submits that the process lasted 2.5 hours.

[20] Ms. Agarwal explains that she uses the terms immigration counter, customs and baggage area interchangeably to describe the location where she was abandoned. She indicates that she is unable to pinpoint the exact location as she does not know how to write, read or speak English or French, and therefore could not identify where she was when the incident occurred.

Emirates

[21] Emirates advises that it contracts with a third party, PrimeFlight, to provide wheelchair assistance services to its passengers at the Toronto airport. Passengers travelling in Economy class receive assistance from members of PrimeFlight’s uniformed wheelchair assistance team (WCHR Team) who are stationed at the following collection points: the jet bridge; elevator; top of the elevator; at the first turn; at the golf carts; golf cart drop off; elevator to customs; at the base of the elevators; at the entrance to customs; Canada Border Services Agency (CBSA) machines; at the elevator to the baggage carousel; and at the baggage carousel.

[22] In a signed statement, Emirates’ Toronto airport services manager, Patty Watts, explains that the WCHR Team transports passengers from collection point to collection point throughout the terminal. Depending on operational requirements and the availability of the WCHR Team, it is possible that numerous staff members are involved with each passenger, and passengers may be required to wait at each collection point until the next WCHR Team member is available.

[23] Emirates states that passengers receiving wheelchair service receive front-of-queue assistance at customs, the CBSA machines and at immigration. WCHR Team members stay with passengers throughout the customs procedure, and if a passenger is directed from customs to immigration for a protracted period of time, the immigration officer is provided with PrimeFlight’s dispatch number, so PrimeFlight can be contacted to assist the passenger once they have cleared immigration.

[24] Emirates states that Ms. Agarwal’s flight arrived in Toronto at 9:39 am and wheelchair services commenced at 9:52 am. Emirates states that Ms. Agarwal was provided with wheelchair assistance upon leaving the aircraft, through the terminal, toward customs.

[25] In email correspondence filed by Emirates, a CBSA employee advised Patty Watts that according to CBSA records, Ms. Agarwal was processed through the primary inspection line at customs at approximately 10:34 am. After being referred to immigration, CBSA records show that Ms. Agarwal left the immigration area at approximately 11:50 am. According to Patty Watts’ signed statement, PrimeFlight has no record of receiving any calls from immigration on June 25, 2022.

[26] Emirates states that there are no other records of Ms. Agarwal or the events she complained of at the Toronto airport on June 25, 2022. It also submits that Ms. Agarwal’s application contains inconsistent facts and statements, contradicted by objective and contemporaneous records, as outlined below:

• Ms. Agarwal states that she was without wheelchair assistance for 2.5 to 3 hours in customs and immigration. However, CBSA records demonstrate that she was in customs and immigration from 10:34 to 11:50 am, approximately 75 minutes.
• In Ms. Agarwal’s original complaint to Emirates on June 28, 2022, she states that she almost fainted in the immigration line and that airport officials rushed to assist her. However, in an email between Patty Watts and employees of the Greater Toronto Airport Authority (GTAA), a GTAA employee advised that all reports of falls, injuries or GTAA responding to an incident are recorded, but there are no records of a female falling in Terminal 1 on June 25, 2022.
• There is no record of Ms. Agarwal’s son requesting assistance for her at the Emirates counter in the Toronto airport. According to Patty Watts’ statement, Emirates’ policy requires that if someone approaches the Emirates’ counter requesting wheelchair assistance, PrimeFlight is immediately notified and dispatched.

[27] Emirates submits that Ms. Agarwal’s application implies that she voluntarily vacated her wheelchair and proceeded on foot. It states that although it is not clear exactly when or where Ms. Agarwal vacated her wheelchair, if Ms. Agarwal had waited a reasonable amount of time for the next WCHR Team member to arrive at the collection point, she would have received front-of-queue assistance through immigration.

[28] Emirates relies on Agency Decision 39-AT-C-A-2022 (Perras v WestJet), in which the Agency held that in some situations, persons with disabilities will have to wait a reasonable amount of time to receive the accommodation service that they requested, and they are expected to speak to a carrier’s agent before assuming that it is not available.

[29] Emirates argues that if Ms. Agarwal did not identify herself to a uniformed WCHR Team member or Emirates’ staff upon vacating her wheelchair, it would not have been reasonably possible for the wheelchair attendants to identify or locate her.

[30] Accordingly, Emirates submits that Ms. Agarwal has not established, on a balance of probabilities, that she faced a barrier to her mobility caused by Emirates in relation to wheelchair assistance upon her arrival in Toronto.

Analysis and determination

[31] Transportation service providers have a duty to accommodate persons with disabilities. A person with a disability will face a barrier to their mobility if they demonstrate that they need — and were not provided with — accommodation to meet their disability-related needs, thereby being denied equal access to services available to others in the federal transportation network.

[32] In this case, both parties acknowledge that, as she had requested, Ms. Agarwal initially received wheelchair assistance upon her arrival at the Toronto airport on June 25, 2022. Based on the evidence of both parties, Ms. Agarwal received wheelchair assistance upon leaving the aircraft and through part of the terminal.

[33] According to Ms. Agarwal, she was taken toward the immigration counter by wheelchair but left at an unknown location before she reached that point.

[34] Under PrimeFlight’s procedure, passengers are transported between collection points, and may have to wait at a collection point unattended before the next WCHR Team member is available to transfer them onward.

[35] Ms. Agarwal states that before leaving her, the wheelchair attendant told her to “go down” by taking the elevator to “some counter”. According to Emirates’ evidence, there is only one collection point at an elevator that descends to the next collection point in the airport — namely, the collection point at the top of the elevator to customs, which descends to the next collection point at the base of the elevator. Therefore, based on the parties’ evidence, it is likely that the unknown location at which Ms. Agarwal states she was left unattended was the collection point at the top of the elevator that descends to customs.

[36] Therefore, PrimeFlight’s procedure explains why Ms. Agarwal would have been left unattended in the elevator area.

[37] Ms. Agarwal states that before leaving her, the wheelchair attendant also told her that they would come back to attend to her later. Based on PrimeFlight’s procedure, it is reasonable to expect that the wheelchair attendant would have asked Ms. Agarwal to wait at the collection point at the elevators until they, or another WCHR team member, were available to transfer her onward. However, it appears that, if Ms. Agarwal did wait for a wheelchair attendant to return, she did not do so for a very long period.

[38] In this case, the evidence shows that wheelchair services commenced at 9:52 am and Ms. Agarwal was processed through the primary inspection line at customs at 10:34 am. Accordingly, it took 42 minutes for Ms. Agarwal to be transferred from the jet bridge through the terminal, to the collection point at the elevator that descends to customs, and then to proceed on foot and be processed through customs. Based on this, it can be inferred that Ms. Agarwal would have waited for the wheelchair attendant for a relatively short period before proceeding on foot on her own. As noted by the Agency in Perras v WestJet, persons with disabilities will have to wait a reasonable amount of time to receive the accommodation service that they requested, and they are expected to speak to a carrier’s agent before assuming that it is not available.

[39] Based on the above, the Agency finds that it is more likely than not that Ms. Agarwal was directed to wait at the collection point until another WCHR team member came to transfer her onward. Unfortunately, Ms. Agarwal did not wait for a reasonable amount of time for a WCHR team member and vacated her wheelchair to proceed on foot.

[40] It is likely, based on the pleadings and evidence before the Agency that, when Ms. Agarwal proceeded from the collection point unattended, the wheelchair service was discontinued. This would explain why Ms. Agarwal was not given priority at the immigration line and why no one informed the immigration officer that they should contact PrimeFlight when the immigration procedure was completed so that an attendant could pick Ms. Agarwal up from the immigration counter to bring her to the baggage area.

[41] In light of the above, the Agency finds that Ms. Agarwal did not meet her burden to demonstrate that she faced a disability-related barrier attributable to Emirates on June 25, 2022.

Conclusion

[42] The Agency dismisses the application.

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Legislation and Tariff cited	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	172(1)
Air Canada v Lorne Robinson and Canadian Transportation Agency, 2021 FCA 204	35; 36; 37