Decision No. 123-AT-A-2003
March 6, 2003
File No. U3570/01-62
On September 20, 2001, Mrs. Anita Mathiesen filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.
By letters dated October 22 and November 2, 2001, KLM Royal Dutch Airlines (hereinafter KLM) filed its answer to the application and included a copy of Mrs. Mathiesen's Passenger Name Record (hereinafter PNR). Mrs. Mathiesen filed her reply on December 5, 2001. Although this document was filed after the deadline for filing pleadings, the Agency, in its Decision No. LET-AT-64-2002 of March 4, 2002, accepted it as being relevant and necessary to its consideration of this case.
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.
Although KLM's letter dated November 2, 2001was received after the prescribed deadline, the Agency, pursuant to section 8 of the National Transportation Agency General Rules, SOR/88-23,accepts the submission as being relevant and necessary to its consideration of this case.
The issue to be addressed is whether the level of assistance provided to Mrs. Mathiesen upon her arrival at Dorval on August 31, 2001 and the difficulties encountered by KLM in reassembling her electric wheelchair constituted undue obstacles to Mrs. Mathiesen's mobility within the meaning of subsection 172(1) of the CTA.
Mrs. Mathiesen is a person with a disability, uses an electric wheelchair for mobility and requires assistance with boarding and deboarding when travelling.
Mrs. Mathiesen arrived at Dorval, Quebec on August 31, 2001, aboard KLM Flight No. 671.
At the time of booking, she advised the carrier of her disability and that she requires assistance. KLM's computer system generates a PNR which contains information about passengers, including passengers who have special needs. In this case, Mrs Mathiesen's need for assistance was properly reflected in her PNR by the use of the defined code from the Passenger Services Conference Resolutions Manual of the International Air Transportation Association, WCHC. The Special Service Request read: "CANNOT WALK WILL NEED ASSISTANCE" and the dimensions of her electric wheelchair were also noted.
KLM's staff had trouble in transferring Mrs. Mathiesen from her aircraft seat to the wheelchair. Unable to sit properly in the wheelchair provided by the carrier, Mrs. Mathiesen had to travel in a semi-reclining position from her aircraft seat to the area where her own wheelchair was to be returned to her.
KLM's staff also had trouble in reassembling Mrs. Mathiesen's electric wheelchair. She was required to give KLM's staff instructions on how to reassemble her wheelchair while still seated in the same semi-reclining position. The whole episode lasted for two hours and 15 minutes after deplaning. Mrs. Mathiesen's wheelchair was eventually returned to her, but it was damaged.
KLM does not contest the facts as presented and acknowledges that Mrs. Mathiesen was not provided with the appropriate assistance.
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. In the case at hand, Mrs. Mathiesen uses a wheelchair for mobility and is therefore 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 federally-regulated 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.
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 federally-regulated 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 federally-regulated 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 federally-regulated 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 a plane 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 deplaning 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
Based on the submissions made, Mrs. Mathiesen was transferred, with difficulty, from the aircraft passenger seat to a wheelchair. She was in a half prone position and remained in that position in the wheelchair until her electric wheelchair was assembled, approximately 2 hours and 15 minutes later. Mrs. Mathiesen found the wheelchair provided to be inadequate and suggested that these wheelchairs should have armrests and movable footrests. KLM suggested that the difficulty experienced by its staff with the transfer was because of the size of the passenger and the lack of a suitably sized wheelchair. According to KLM, it does not currently own a wide wheelchair but intends to look into the possibility of acquiring one. The applicant responded, however, that she is of regular size (height 165 cm and weight 65 kilos).
Based on the evidence submitted, it is apparent that the carrier's personnel/agents used the transfer chair, otherwise know in the industry as the Washington Chair, to transport Mrs. Mathiesen from the aircraft seat to the area where her electric wheelchair was to be reassembled. Common practice is to use the "narrow" boarding" chair from the aircraft passenger seat to the boarding bridge where the passenger would then be transferred into a standard airport wheelchair. The passenger would then, with the assistance of carrier ground personnel, be brought to the area for retrieval of baggage and her electric wheelchair. The standard airport wheelchairs are of standard size and are equipped with armrests and footrests.
The Washington Chair is designed for a very specific purpose; it is used for the transfer of passengers who are either completely immobile or who cannot walk long distances, and this transfer chair is designed to be very narrow so that it can be navigated down the aircraft aisle to the passenger seat. The boarding chair is specifically designed for this limited use and is not appropriate for any longer use than that of the actual transfer.
The Agency is of the opinion that using the Washington Chair beyond the disembarkation area was inappropriate. Given Mrs. Mathiesen's obvious discomfort during her transfer to the Washington Chair, the Agency is concerned that KLM did not transfer Mrs. Mathiesen to a standard airport wheelchair or, in the absence of such a wheelchair, did not even try to find another solution. This conclusion is further substantiated by the fact that Mrs. Mathiesen had to wait approximately two hours and 15 minutes in a semi-reclining position in the Washington Chair.
The Agency is of the opinion that the discomfort experienced by Mrs. Mathiesen, as well as the lack of a standard airport wheelchair and the failure by personnel to find another solution to assist Mrs. Mathiesen, constituted an undue obstacle to her mobility within the meaning of subsection 172(1) of the CTA.
Regarding the difficulties encountered by the carrier's staff in reassembling Mrs. Mathiesen's electric wheelchair and the damage done to the chair, the Agency has repeatedly determined that the corollary of a carrier's right to disassemble a mobility aid for operational reasons is to reassemble it properly and within a reasonable length of time. This in no way presupposes that the duty placed on the carrier to reassemble the mobility aid must be discharged without any assistance from the owner. On the contrary, the Agency is of the opinion that the owner of a mobility aid is undoubtedly the person best suited to provide guidance to a carrier's staff for reassembly. Accordingly, the fact that assistance is requested from a person using a mobility aid during reassembly is not likely to constitute an undue obstacle to that person; however, the carrier's inability to duly perform its duty within a reasonable length of time without any justification is likely to constitute an undue obstacle.
In the case at hand, even with Mrs. Mathiesen's assistance, the evidence indicates that KLM's staff had considerable trouble in reassembling the electric wheelchair. Consequently, Mrs. Mathiesen's personal electric wheelchair was not returned to her until approximately two hours and 15 minutes after deplaning. This inability to reassemble the wheelchair within a reasonable length of time not only delayed Mrs. Mathiesen in her travels but also forced her to wait all that time in a semi-reclining position in the wheelchair provided by KLM. The evidence also indicates that Mrs. Mathiesen's wheelchair was damaged during disassembly, transport and reassembly.
The carrier did not contest this evidence, and, in fact, it chose not to present any argument or evidence to explain or justify the delay in reassembly and the damage done to Mrs. Mathiesen's wheelchair. In light of the foregoing, the Agency is of the opinion that the fact that Mrs. Mathiesen had to wait for two hours and 15 minutes until her electric wheelchair was returned to her, and that damage was done to her wheelchair constituted undue obstacles to Mrs. Mathiesen's mobility.
Pursuant to subsection 172(3) of the CTA, on determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.
Since the incident, the Agency notes that the carrier has:
- reimbursed Mrs. Mathiesen for the damage done to her wheelchair;
- sent Mrs. Mathiesen a coupon in the amount of US$200 by way of compensation;
- revised it procedure on the assistance to be provided to persons with disabilities with it manager in Montréal; and
- revised its procedure on the assistance to be provided to persons with disabilities with the director of GlobeGround at Dorval, KLM's contracted ground service provider.
The Agency notes the steps taken by KLM, both with its staff and with Mrs. Mathiesen, to satisfactorily resolve this complaint or prevent the recurrence of such a situation. In spite of these measures, the Agency deems it necessary to review both KLM's stated procedures as well as the training given to its contracted personnel at Dorval concerning the transfer of persons with disabilities and the training module on the assembly and disassembly of wheelchairs.
Given the serious consequences of using a Washington Chair for purposes it was not intended for, the Agency finds that KLM should issue a bulletin to its Dorval personnel outlining the difficulties encountered by Ms. Mathiesen and reminding staff to always use the standard airport wheelchairs for the transfer of passengers from the boarding bridge.
In light of the foregoing, the Agency is of the opinion that the level of assistance provided by KLM to Mrs. Mathiesen upon her arrival at Dorval on August 31, 2001, and the difficulties encountered by KLM's staff in reassembling Mrs. Mathiesen's electric chair constituted undue obstacles to her mobility within the meaning of subsection 172(1) of the CTA.
Based on the above findings, the Agency requires KLM, within thirty (30) days from the date of this Decision, to:
- provide a copy of the training material given to its contracted personnel at Dorval concerning the transfer of persons with disabilities and the training module on the assembly and disassembly of wheelchairs.
- issue an advisory bulletin to its employees highlighting the difficulties experienced by Mrs. Mathiesen and remind staff of the importance of using the boarding chair for the purposes for which it was designed and not using it for extended periods or for transferring a passenger from the passenger's seat on board the aircraft to the baggage claim area. A copy of this bulletin should also be filed with the Agency.
Following its review of the required information, the Agency will determine whether further action is required.