Decision No. 106-AT-A-2017

December 6, 2017

APPLICATION by Bahig Wanas against WestJet.

Case number: 
17-02141

SUMMARY

[1] Bahig Wanas filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) against WestJet concerning WestJet’s refusal to accommodate his disability-related needs in the form of a seat with additional leg room.

[2] The Agency will address the following issues:

  1. Did Mr. Wanas encounter an obstacle to his mobility?
  2. If Mr. Wanas encountered an obstacle to his mobility, can the obstacle be removed without causing undue hardship to WestJet?

[3] For the reasons set out below, the Agency finds that Mr. Wanas has not established that he encountered an obstacle to his mobility. In light of this finding, there is no need for the Agency to consider whether the alleged obstacle could be removed without causing undue hardship for WestJet.

BACKGROUND

[4] Mr. Wanas applied to WestJet’s Medical Seating Program (MSP application) for a seat with additional leg room to accommodate his left leg prosthetic. WestJet denied his MSP application on the basis that his left leg prosthetic could be accommodated in any seat on board WestJet’s aircraft.

[5] In Decision No. LET-AT-A-50-2017 (letter decision), the Agency found that Mr. Wanas is a person with a disability. The Agency however found that there was insufficient information on the record of the proceedings to determine whether Mr. Wanas encountered an obstacle to his mobility. Mr. Wanas was therefore directed to explain why WestJet’s Economy seat leg room would not meet his disability-related needs. Mr. Wanas filed comments as directed by the letter decision; WestJet did not file a response.

THE LAW

[6] The application was filed pursuant to subsection 172(1) of the CTA, which reads as follows:

The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

[7] The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a three-part approach.

[8] First, the Agency considers whether the applicant is a person with a disability for the purposes of Part V of the CTA.

[9] Second, the Agency determines whether there is an obstacle. An obstacle is a rule, policy, practice, or physical barrier that has the adverse impact of denying the person with a disability equal access to services available to others in the federal transportation network.

[10] Third, the Agency determines whether the obstacle can be removed through a general modification to the rule, policy, practice, or physical barrier – or, if such a modification is not feasible, through an individual accommodation measure – without causing the transportation service provider undue hardship.

[11] This three-part approach is undertaken in two stages. The first considers parts one and two. If it is determined that the applicant is a person with a disability and they encountered an obstacle, the Agency turns to the third part: deciding whether the obstacle can be removed without causing the service provider undue hardship.

ISSUE 1: DID MR. WANAS ENCOUNTER AN OBSTACLE TO HIS MOBILITY?

Positions of the parties

Mr. Wanas’s position

[12] Mr. Wanas states that due to his left leg amputation, he requires “comfort seating” (i.e. additional leg room). Mr. Wanas’s physician confirms that Mr. Wanas requires “more room for the nature of the prosthesis on his left leg.”

WestJet’s position

[13] WestJet submits that, in his MSP application, Mr. Wanas requested access to the Plus seat area of the aircraft, which includes an additional four inches of leg room over the leg room available in the Economy seating area.

[14] WestJet submits that, based on its assessment, the information provided in Mr. Wanas’s MSP application, and the knowledge of space available on WestJet’s aircraft, the Economy seat leg room will fully accommodate Mr. Wanas’s needs. WestJet states that accommodation for the Plus seating area is generally approved in cases of fused legs, spastic limbs, or other conditions where the passenger’s condition warrants additional leg room in order for the passenger to be able to travel on WestJet’s aircraft.

[15] WestJet explains that its rationale for the establishment of its Medical Seating Program (MSP) criteria is partly based on section 382.38 of the U.S. Department of Transportation’s rules, Nondiscrimination on the Basis of Disability in Air Travel (14 CFR Part 382), which addresses seating accommodations. According to WestJet, that legislation provides that, for persons who identify as having a disability, the carrier shall provide, amongst other things, for persons with a fused or immobilized leg, a bulkhead or similar seating. WestJet submits that there is no reference to a prosthetic device in that legislation.

[16] WestJet further submits that, according to U.S. seating accommodation legislation, carriers are responsible for making seating accommodations in the seating/service class for which someone has bought a ticket, but are not required to provide a higher level of seating-service class because doing so would be more comfortable or convenient for a passenger with a disability.

ANALYSIS AND DETERMINATIONS

[17] In Decision No. 371-AT-R-2016, the Agency considered whether the design of the washrooms in VIA Rail’s LRC cars constituted an undue obstacle to the mobility of the applicant, and other persons with disabilities. In that decision, the Agency stated that the burden of proof was on the applicant to demonstrate that the design of the washrooms created an obstacle to her mobility. Similarly, in the current matter, the burden is on Mr. Wanas to demonstrate that WestJet’s application of its MSP policy creates an obstacle to his mobility.

[18] Mr. Wanas states that he requires additional leg room due to the prosthesis on his left leg. WestJet however argues that its Economy seat leg room and space between seats will fully accommodate Mr. Wanas’ needs.

[19] In light of WestJet’s submissions on the matter, the Agency provided Mr. Wanas with an opportunity to file further comments concerning the obstacle that he faces as a result of WestJet’s application of its MSP policy. While Mr. Wanas filed comments, he did not directly address the issue of why WestJet’s Economy seat leg room would not meet his disability-related needs. Mr. Wanas did not indicate the amount of leg room that he requires to accommodate his prosthesis, nor did he elaborate on how the nature of his prosthesis would render the economy seats inadequate, having regard to his needs. Furthermore, Mr. Wanas did not detail the potential symptoms that he would experience if he were to travel in the Economy seating area.

[20] Based on the above, the Agency finds that Mr. Wanas has failed to establish that WestJet’s Economy seat leg room would not meet his disability-related needs. More specifically, Mr. Wanas has not demonstrated that WestJet’s MSP Program constitutes an obstacle to his mobility. Having found no obstacle, there is no need for the Agency to consider whether the alleged obstacle could be removed without causing undue hardship for WestJet.

CONCLUSION

[21] The Agency dismisses Mr. Wanas’s application.

Member(s)

Scott Streiner
Sam Barone
Stephen Campbell
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