Decision No. 116-AT-A-2000
February 22, 2000
APPLICATION by Gary Malkowski pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, concerning the failure by Air Canada to inform him of the delayed departure and gate change of his scheduled flight between Toronto, Ontario, and Winnipeg, Manitoba, at the Toronto airport on March 25, 1999, and the lack of closed captioning on inflight monitors.
File No. U3570/99-38
On August 24, 1999, Gary Malkowski filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.
Air Canada filed its answer to the application on September 27, 1999 and on January 7, 2000, Mr. Malkowski filed his reply.
Pursuant to subsection 29(1) of the Canada Transportation Act, 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 extension of the deadline until February 22, 2000.
At the request of Agency staff, additional comments were filed by Mr. Malkowski on January 27, 2000. Air Canada also provided additional clarifications on February 1, 2000. Although Mr. Malkowski's reply was received after the prescribed deadline set out in the National Transportation Agency General Rules, SOR/88-23, the Agency, pursuant to section 6 of these Rules, accepts the submission as being relevant and necessary to its consideration of this matter.
The issues to be addressed are whether the failure to inform Mr. Malkowski of the delayed departure and the gate change of his scheduled flight and the lack of closed captioning on inflight monitors constituted undue obstacles to his mobility and, if so, what corrective measures should be taken.
Mr. Malkowski is deaf. He travelled with Air Canada on Flight No. 189 from Toronto to Winnipeg on March 25, 1999.
At check-in, Mr. Malkowski identified himself as being "deaf", and the agent noted this on his boarding card and instructed him to proceed to Gate 84/85 for boarding. On arrival at Gate 84/85, Mr. Malkowski again identified himself as being deaf to the gate agent who subsequently instructed him to take a seat in the lounge.
The flight was scheduled to depart from Gate 84/85 at 8:45 a.m., however, an announcement was made advising that the flight would depart from Gate 79. The departure of the flight was delayed by 43 minutes.
Mr. Malkowski was advised of the delayed departure and gate change by a fellow passenger who observed him using sign language and was able to communicate with Mr. Malkowski in sign language.
Air Canada has procedures in place at the Toronto airport and at other large stations it serves where check-in agents direct customers with special needs to the Customer Care Lounge to be escorted to the boarding gate and introduced to the gate agent. Customers with special needs are encouraged to use the Customer Care Lounge to facilitate their identification by the carrier's personnel and to ensure that they will be provided with services that best meet their needs.
As Mr. Malkowski did not require any special services, he did not go to the Customer Care Lounge; he proceeded directly to the gate area.
POSITIONS OF THE PARTIES
Mr. Malkowski submits that he experienced considerable inconvenience when he was denied access to information and services. He states that he made the carrier aware of his disability at check-in and again at the boarding gate. Mr. Malkowski points out that he was not provided with information about the flight changes by airline personnel but rather by another passenger who knows sign language. Mr. Malkowski states that without the assistance of this fellow passenger, he would have missed his flight to Winnipeg.
Mr. Malkowski also states that the lack of closed captioning on the inflight monitors deprives deaf passengers of vital information such as safety procedures, emergency announcements, flight changes, any news and entertainment programming.
Mr. Malkowski concludes that these situations violate the Eldridge Decision of 1997 handed down by the Supreme Court of Canada which ruled that deaf Canadians are entitled to equal access and equal benefit from all government funded services and programs including transportation. Mr. Malkowski also points out that all necessary supports are not in place to provide equitable and accessible service to deaf and hard of hearing travellers.
In reply, Air Canada provided a copy of Mr. Malkowski's Passenger Name Record (PNR) and pointed out that it does not contain information reflecting that the passenger was deaf. Air Canada therefore alleges that this information was only disclosed to the air carrier at check-in, less than 48 hours prior to departure.
Air Canada advises that it was unable to identify the customer service agent who assisted Mr. Malkowski in Toronto on March 25, 1999 and that it no longer has access to the corresponding flight information. Air Canada is unable to precisely establish why Mr. Malkowski was not advised of the changes to his flight.
Air Canada submits that the code "Deaf" appearing on Mr. Malkowski's boarding pass suggests that the check-in agent recorded this information in the system and, by doing so, conveyed this information electronically to the gate agent. Air Canada was not, however, able to confirm this information as it no longer has access to this document from its system.
Air Canada notes that as Mr. Malkowski's invisible disability made him anonymous to the gate agent, it is possible that, at the time of irregular operations, the gate agent did not have the opportunity to circulate through the lounge and locate Mr. Malkowski prior to his being advised of the changes by the passenger.
On the issue of closed captioning on inflight monitors, Air Canada states that the Canadian Aviation Regulations, SOR/96-433, require cabin crew to give individual safety briefings to customers who have identified themselves as having a disability. Those briefings are given to identify the needs of passengers during the flight, to ensure that the information contained in the pre-flight safety video is understood and that specific safety and emergency procedures, based on the disability, are given. For customers who are deaf or have a hearing impairment, the flight attendant will either explain the normal safety briefing if the passengers lip read or will use the safety feature card and safety demonstration equipment if they do not. Air Canada does not keep records of flight attendants able to communicate in sign language as there is no provision in the collective agreement that would allow the air carrier to assign its personnel on this basis.
Air Canada adds that captioning on its inflight monitors has been considered in the past, but the carrier could not adopt this option. Unlike its counterparts in the United States of America, Air Canada communicates to its customers in both official languages. Due to the size of the screen, bilingual captioning is not viable as the text would take more than half of the screen or the font would be unreadable.
In conclusion, Air Canada regrets that Mr. Malkowski was not made aware of the flight changes by its own personnel, but the carrier does believe that the incident could have been avoided if Mr. Malkowski had communicated his special needs at the time of booking and if he had taken advantage of the services provided at the Air Canada Customer Care Lounge.
ANALYSIS AND FINDINGS
In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
With respect to the submission that the conduct of Air Canada is in violation of the Supreme Court of Canada's decision in Eldridge v. B.C. (A.G)  3 R.C.S. 624, the Agency notes that although subsection 52(1) of the Constitution Act, 1982 (Canada Act 1982, (U.K.), 1982, c. 11, Schedule B) states "the Constitution of Canada is the supreme law of Canada", subsection 32(1) provides that the Charter of Rights only applies to Parliament, provincial legislatures and government actions. Accordingly, the Charter of Rights does not apply to private action such as the omission by an air carrier to provide adequate information to a person with a disability.
The Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR), provide that air carriers are to make a reasonable effort to provide services to persons with disabilities when a request is made less than 48 hours prior to departure.
The Agency is satisfied that although the PNR that was created by the travel agent did not include information on the passenger being deaf, Air Canada personnel were aware of Mr. Malkowski's communication needs as he self identified at check-in and again at the boarding gate.
While it is noted that the departure of Flight No. 189 was delayed by 43 minutes, it could not be established at what point in time the announcement was made regarding the delayed departure and the gate change. Nevertheless, in this case, there is no evidence to allow the Agency to conclude that Air Canada personnel would not have approached Mr. Malkowski to inform him of these changes. Given the lack of clarity of the timeframe from when the announcement was made and when a fellow passenger advised Mr. Malkowski of the changes, the Agency finds that there was no undue obstacle to Mr. Malkowski's mobility as he did proceed to the next gate and boarded his flight with the other passengers.
While the Agency does not find that there was an undue obstacle in this instance, the incident raises the importance of self-identification and timely communication by carrier agents to pre-identified special needs passengers to ensure that operational changes are brought to the attention of all passengers.
In its report entitled Communication Barriers: A Look at Barriers to Communication Facing Persons with Disabilities who Travel by Air released in November 1997, the Agency noted that many hearing impaired travellers stated that they tried to sit as close as possible to the departure gate counter and watch for announcements because they were concerned they would miss something important or be forgotten by carrier staff. They also noted that it was not always possible to find seating close to or in clear view of this counter. Therefore, the Agency recommended that designated seating should be available closer to the gate so that persons who are deaf or hard of hearing can see the activity at the desk and inquire each time about what is being said when announcements are made. This would also assist service personnel in identifying passengers requiring assistance.
With respect to the closed captioning of transportation related information on inflight monitors, Transport Canada, who is responsible for safety, has advised that the size of monitors is limited for safety reasons so as not to pose a threat to passenger egress in an emergency procedure or to cause injury during turbulence. Moreover, in Canada, unlike in the United States of America, the Official Languages Act, R.S.C., 1985, c. 31 (4th Supp.), requires that this information be given in both official languages. Due to the size of the screen, it is impossible to fit captioning in both official languages on the screen while simultaneously showing the safety video. The screen size limits the letter size of the captioning and makes it unreadable by the user interfering with the effectiveness of the safety message.
The Agency is also aware that in the United States of America, the Air Carriers Access Act, 1986 provides for open captioning and sign language insets as being the preferred method. It should, however, be noted that where this is not feasible, non video methods may be used as is the case in Canada.
The Agency finds that the lack of captioning on inflight monitors could constitute an obstacle to persons who are deaf or hearing impaired as they do not have visual access to transportation related information on a timely basis. However, Transport Canada's Canadian Aviation Regulations require that cabin crew give individual safety briefings to customers who have identified themselves as having a disability. The Agency, therefore, does not find at this time that the lack of captioning on inflight monitors is an undue obstacle. However, the Agency is preparing to consult with industry and consumer groups on a Code of Practice addressing communication issues for travellers with sensory disabilities. The captioning, designated seating in airports and visual display boards in airports are important questions and more systemic corrective measures will be studied during these consultations.
Notwithstanding these consultations, and in the interim, Air Canada is requested to issue a bulletin to its gate agents relating the incident experienced by Mr. Malkowski and reminding its gate agents of the importance of noting the presence of, and advising personally, its deaf and hearing impaired passengers of any changes in operation.
Based on the above findings, the Agency finds that there was no undue obstacle to Mr. Malkowski's mobility as there is no evidence that Air Canada personnel would not have informed him of the operational changes. However, Air Canada is requested to issue a bulletin to its gate agents reminding them of the importance of the timely communication of operational changes to its passengers with communication needs.
On the issue of the lack of closed captioning on inflight monitors, the Agency determines that in light of the technical difficulties of implementing closed captioning and the alternative methods of providing safety information to deaf and hearing impaired passengers, there was no undue obstacle to Mr. Malkowski's mobility.