Decision No. 17-AT-C-A-2018

March 2, 2018

APPLICATION by James Korchinski against WestJet pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) regarding his disability‑related needs, and subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR).

Case number: 
17-03437

SUMMARY

[1] Mr. Korchinski submits that he encountered difficulties with WestJet’s provision of wheelchair assistance following a flight on January 18, 2017. Mr. Korchinski requests that he be permitted to use a wheelchair to accommodate his disability, that WestJet be required to lift the one-year travel ban that was imposed on him, and that WestJet apologize to him.

[2] WestJet questions whether Mr. Korchinski is a person with a disability and submits that regardless, he was provided a wheelchair following a short delay. It submits that the travel ban imposed on Mr. Korchinski was justified and consistent with its International Passenger Rules and Fares Tariff, NTA(A) No. 518 (Tariff).

[3] The Canadian Transportation Agency (Agency) will address the following issues:

  1. Is Mr. Korchinski a person with a disability?
  2. If so, did Mr. Korchinski encounter an obstacle to his mobility in respect of WestJet’s provision of wheelchair assistance?
  3. Did WestJet properly apply the terms and conditions set out in Rules 30(A)(6), 30(B)(2),(3),(4), and 30(C)(5) of its Tariff, in respect of the one-year travel ban that it imposed on Mr. Korchinski, as required by subsection 110(4) of the ATR? If WestJet did not properly apply the terms and conditions set out in its Tariff, what remedies, if any, are available to Mr. Korchinski?

[4] For the reasons outlined below, the Agency finds that Mr. Korchinski is a person with a disability, but that he did not encounter an obstacle to his mobility. The Agency also finds that WestJet correctly applied the terms and conditions set out in its Tariff in respect of the one-year travel ban.

BACKGROUND

[5] On January 18, 2017, Mr. Korchinski travelled from Edmonton, Alberta, Canada to Phoenix, Arizona, United States of America. He encountered difficulties at the Phoenix Sky Harbor International Airport (Phoenix Airport) with respect to the provision of a wheelchair that he had requested in advance of travel. Mr. Korchinski was subsequently banned from travelling on WestJet flights for one year.

[6] Mr. Korchinski is requesting that the travel ban be lifted, that he be permitted to use a mobility device, and that WestJet apologize to him.

[7] The application was received on July 12, 2017. Mr. Korchinski was asked to provide additional information, which he did on August 18, 2017. On November 2, 2017, the Agency directed Mr. Korchinski to complete a disability assessment form. Mr. Korchinski refused, but subsequently filed several submissions concerning the nature of his disability, including a disability assessment form.

[8] The pleadings for this case closed on January 15, 2017.

THE LAW

[9] As indicated above, Mr. Korchinski’s application relates to both an accessibility issue, as he claims that he encountered an undue obstacle to his mobility, and a tariff issue, as he alleges that WestJet failed to properly apply the terms and conditions set out in its Tariff.

[10] The disability-related portion of his 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.

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

[12] First, the Agency considers whether Mr. Korchinski, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA.

[13] Second, if it is determined that Mr. Korchinski, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA, the Agency will determine whether they encountered an obstacle to their mobility. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.

[14] Third, if it is determined that Mr. Korchinski is a person with a disability for the purposes of Part V of the CTA, and that he encountered an obstacle to his mobility, the Agency assesses whether the respondent can, without experiencing undue hardship, remove the obstacle, either through a general modification to the rule, policy, practice, or physical structure, or, if a general modification is not feasible, through an accommodation measure.

[15] The tariff-related portion of Mr. Korchinski’s application was filed pursuant to subsection 110(4) of the ATR, and requires that a carrier operating an international service apply the terms and conditions set out in its tariff.

[16] If the Agency finds that a carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to:

  1. take the corrective measures that the Agency considers appropriate; and
  2. pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges, or terms and conditions set out in the tariff.

[17] Rule 30(A)(6) of WestJet’s Tariff addresses a passenger’s conduct/behaviour, and states the following:

The carrier may impose sanctions on any person who engages in or has engaged in any conduct or behaviour on the Carrier’s aircraft, or to the knowledge or reasonable belief of the Carrier, on any airport property or other carrier’s aircraft, that the Carrier determines, in its reasonable judgment, may have a negative effect on the safety, comfort or health of that person, passengers, the Carrier’s employees or agents, aircrew or aircraft or the safe operations of the Carrier’s aircraft (the “Prohibited Conduct”).

[18] Rules 30(B)(2), (3), and (4) provide examples of prohibited conduct that may lead the carrier to refuse to carry a passenger. It states as follows:

2. Engaging in belligerent, lewd or obscene behavior toward a passenger or employee or agent of the Carrier;

3. Threatening, harassing, intimidating, ass[a]ulting or injuring a passenger or employee or agent of the Carrier;

4. Tampering with or willfully damaging an aircraft, its equipment or other property of the Carrier.

[19] Rule 30(C)(5) addresses sanctions that the carrier may impose on a person when they are refused carriage. It states as follows:

5. Refusal to transport the person on a one time basis, for an indefinite period or permanently, as determined by the Carrier.

IS MR. KORCHINSKI A PERSON WITH A DISABILITY?

Positions of the parties

MR. KORCHINSKI’S POSITION

[20] Mr. Korchinski submits that he lacks coordination, has an upper body disability, and is entitled to a wheelchair. His application, submitted on July 12, 2017, indicates that he has an impairment relating to mobility. A subsequent submission, dated August 18, 2017, indicates that Mr. Korchinski requires a wheelchair to accommodate “upper body disability issues”.

[21] In support of the application, Mr. Korchinski submitted medical evidence, including a lab report and letters from his doctors. The medical evidence, which is dated, for the most part, after the incident with WestJet, indicates that Mr. Korchinski has a chronic upper body condition and reduced knee mobility. A letter from Dr. Javier Escamilla Penagos, a doctor in Mexico, recommends that Mr. Korchinski use a cart or a wheelchair to avoid lifting or carrying his luggage.

[22] The disability assessment form that appears to have been completed by Mr. Korchinski himself, dated November 30, 2017, indicates that he lacks coordination, and that he uses a cart or a wheelchair as a mobility device in his day-to-day life.

POSITION OF WESTJET

[23] Using the World Health Organization’sInternational Classification of Functioning, Disability and Health (ICF) as the basis for its analysis, WestJet disputes that the applicant is a person with a disability. WestJet submits that:

  • The ICF defines impairment as a loss or abnormality of a body part or the loss or deviation in body function.
  • Activity limitation, as defined in the ICF, is a difficulty an individual experiences while executing activities.
  • The ICF defines participation restriction as a problem an individual may experience in involvement in life situations.

[24] WestJet submits that the applicant fails all three levels of the ICF’s test for disability.

[25] According to WestJet, Mr. Korchinski’s medical evidence, which is dated, for the most part, after the incident with WestJet, does not explain whether Mr. Korchinski’s ailments cause a loss or deviation of body function. The exception to this, WestJet submits, is a reference to reduced knee mobility. WestJet states, however, that this appears to be unrelated to the matter presently before the Agency, as Mr. Korchinski’s original application spoke only of an upper body mobility issue.

[26] WestJet also questions the credibility of Mr. Korchinski’s evidence. According to WestJet, videos and photos from Mr. Korchinski’s Facebook page, of him fishing, suggest that he does not have an impairment and activity limitation. WestJet submits that the letter from Dr. Penagos uses language similar to that found in Mr. Korchinski’s application. WestJet questions if the letter’s content and recommendations were freely provided by the doctor. Regardless, WestJet explains that the letter fails to explain which activity limitations the recommended accommodations are intended to overcome. WestJet submits that the letter should be given no weight by the Agency.

[27] Finally, WestJet submits that Mr. Korchinski’s evidence does not demonstrate a participation restriction, as it does not indicate why pushing his luggage in a wheelchair is necessary, when pulling the luggage behind him would likely require less exertion.

MR. KORCHINSKI’S REPLY

[28] In his reply, Mr. Korchinski indicates that he has a congenital knee disorder. Mr. Korchinski also explains that fishing is his passion, and that it is affected by his disability. He submits that he uses pain medication to permit him to fish, and explains that he is not willing to take pain medication when travelling because he is entitled to an accommodation, which should make the medication unnecessary.

Analysis and determinations

[29] When using the ICF in the past, the Agency has generally used a low threshold when assessing impairment, especially when there is evidence from a doctor with a diagnosis of one or more condition(s).

[30] Mr. Korchinski’s medical evidence shows that he has an upper body condition and reduced knee mobility. Although the upper body condition and reduced knee mobility were identified after the incident with WestJet, the evidence shows that they are chronic in nature. The Agency finds, therefore, that Mr. Korchinski had an impairment at the time of the incident with WestJet.

[31] Having found that the applicant has an impairment, the Agency has to determine whether Mr. Korchinski has an activity limitation, in order to consider whether there are activities that he is unable to perform without some form of assistance.

[32] The letter from Dr. Penagos recommends that Mr. Korchinski “avoid lifting or carrying his luggage”. While the video of him fishing may raise doubts about this, Mr. Korchinski suggests that fishing is his passion, and that while he is willing to risk injury and take pain medication to permit this activity, he is not willing to do so when accessing the federal transportation network. The Agency finds that the letter from Dr. Penagos is sufficient to establish that he has the activity limitation that was described, even though, on occasion, he might not be so limited.

[33] With respect to Mr. Korchinski’s reduced knee mobility, there is little evidence to suggest that it results in an activity limitation distinct from the one described above. While Dr. Penagos recommends that Mr. Korchinski use a cart or a wheelchair, the recommendation is in respect of reducing stress from carrying luggage. This suggests that the cart or wheelchair is not intended for mobility assistance, but instead for luggage assistance.

[34] With respect to participation restriction, the applicant risks pain and injury unless he is provided luggage assistance. Accordingly, the Agency finds that the applicant experiences a participation restriction unless his disability-related need for luggage assistance is accommodated.

[35] In light of the above, the Agency finds that Mr. Korchinski is a person with a disability, and that he requires accommodation in respect of luggage assistance.

IF SO, DID MR. KORCHINSKI ENCOUNTER AN OBSTACLE TO HIS MOBILITY IN RESPECT OF WESTJET’S PROVISION OF WHEELCHAIR ASSISTANCE?

Positions of the parties

MR. KORCHINSKI’S POSITION

[36] Mr. Korchinski submits that he was denied the wheelchair that he, as a person with a disability, is entitled to use. Mr. Korchinski provided video evidence in support of this position. The evidence shows that Mr. Korchinski exited the aircraft upon his arrival at the Phoenix Airport, and was immediately greeted by an attendant waiting with a wheelchair. Mr. Korchinski placed his carry‑on luggage in the wheelchair, and said “let’s go please”. The attendant explained that she pushes people, not luggage. The attendant attempted to contact a supervisor at the request of Mr. Korchinski. The applicant then returned to the aircraft, and spoke with a pilot who then pushed the wheelchair along with Mr. Korchinski’s luggage to the top of the jet bridge. There was a brief discussion at the top of the jet bridge, after which Mr. Korchinski was permitted to take the wheelchair.

WESTJET’S POSITION

[37] WestJet submits that while it did not initially permit Mr. Korchinski to use the wheelchair in the manner that he wished, it did not deny him the use of the mobility aid. According to WestJet, Mr. Korchinski did not explain that he intended to use the wheelchair for his luggage. As a result, the attendant was expecting to provide mobility assistance by pushing Mr. Korchinski in the wheelchair. WestJet submits that pushing luggage in a wheelchair is an inappropriate use of a mobility aid. WestJet states that regardless of the above, Mr. Korchinski was eventually permitted to take the wheelchair and use it to push his luggage.

[38] WestJet submits that Mr. Korchinski’s own actions were the cause of the difficulties that he experienced.

Analysis and determinations

[39] Mr. Korchinski submits that, as a person with a disability, he is entitled to use a mobility aid. The Agency notes, however, that this is not consistent with human rights law, which indicates that persons with disabilities are entitled to an accommodation that meets their disability-related needs.

[40] The evidence shows that Mr. Korchinski’s disability-related need is luggage assistance, not a wheelchair. While the applicant may want to use a wheelchair, he has not explained how this accommodation meets his needs in a way that a luggage cart or personnel assisting with his baggage does not. Further, as WestJet argues, the use of a wheelchair for luggage assistance is a misuse of the aid.

[41] During the incident with WestJet, the attendant was prepared to provide wheelchair assistance, and was understandably taken aback by what appeared to be a misuse of a mobility aid. This led to some initial confusion, caused not by the attendant but by Mr. Korchinski who requested a wheelchair despite actually needing luggage assistance. Further, Mr. Korchinski was permitted to take the wheelchair after only a short delay. Therefore, it appears that the only difficulty that Mr. Korchinski encountered was the initial confusion, which was not caused by WestJet. Accordingly, the Agency finds that Mr. Korchinski did not encounter an obstacle to his mobility.

DID WESTJET CORRECTLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULES 30(A)(6), 30(B)(2), (3), (4), AND 30(C)(5) OF ITS TARIFF, IN RESPECT OF THE ONE-YEAR TRAVEL BAN THAT IT IMPOSED ON MR. KORCHINSKI, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

Positions of the parties

MR. KORCHINSKI’S POSITION

[42] The applicant submits that the one-year travel ban that WestJet imposed is related to his disability, and should therefore be lifted.

WESTJET’S POSITION

[43] WestJet submits that the one-year travel ban is related to several factors, including a history of aggressive behaviour, refusing to follow instructions, filming interactions, and, in the most recent incident, using a mobility aid for reasons that, to personnel, appeared to be unrelated to a disability. WestJet adds that the applicant smeared chocolate on his passenger seat.

[44] With respect to Mr. Korchinski’s history, WestJet provides two examples, the first of which occurred on January 13, 2014. WestJet alleges that during the incident, Mr. Korchinski, who was not actually travelling on that day, became angry because his father was not permitted to check in a broken Styrofoam cooler containing 50 lbs of fish. According to WestJet, Mr. Korchinski used profanity and made threats to the personnel.

[45] WestJet alleges that during another incident that occurred on August 22, 2015, Mr. Korchinski yelled at a customer service agent (CSA), demanded her and her supervisor’s name, took photos of her with his cellphone directly in front of her face, and swung his arms wildly about, moving toward her in an aggressive manner. According to WestJet, Mr. Korchinski also banged on the glass separating the American and the Canadian passengers, yelled at the flight crew who were waiting to board the aircraft that had just arrived, and made threatening gestures at another CSA. WestJet indicates that he later told a WestJet Guest Services Manager that the CSA was lucky that he did not punch her in her face, claiming that it would have been self-defence.

[46] WestJet indicates that for the incidents described above, Mr. Korchinski previously received a six‑month travel ban.

[47] With respect to the circumstances of the incident on January 18, 2017, WestJet explains that personnel had been given no advance warning that Mr. Korchinski did not intend to use the wheelchair as a mobility device. According to WestJet, Mr. Korchinski initially gave the impression that he expected personnel to push his wheelchair. WestJet submits that it was only after Mr. Korchinski exited the jet bridge that he indicated that he would push the wheelchair himself, at which time the wheelchair was released to him.

[48] Regarding the recent one-year travel ban, WestJet explains that it sounded as though, based on an audio version of the incident that Mr. Korchinski played for WestJet security, he raised his voice with personnel when they were initially surprised by the manner in which he intended to use the wheelchair. WestJet further explains that his interaction with WestJet airport/aviation personnel and associated contractors has proven to be a concern over time. WestJet also submits that Mr. Korchinski had tried to use a mobility aid for reasons that did not appear to be disability‑related.

[49] WestJet submits that given the above, it is entitled to implement a suspension under the terms and conditions set out in its Tariff.

MR. KORCHINSKI’S REPLY

[50] Mr. Korchinski does not dispute WestJet’s claim that he has a history of inappropriate behaviour, and instead argues that it is not relevant in the present matter. Mr. Korchinski submits that he was calm and polite during the incident of January 18, 2017.

[51] In response to WestJet’s claim that he smeared chocolate on the seat, Mr. Korchinski submits it was an accident as a result of him falling asleep.

Analysis and determinations

[52] The Agency notes that the travel ban does not appear to be discriminatory. Instead, the ban appears to be related to Mr. Korchinski’s history of poor behaviour, his conduct during the incident of January 18, 2017, which included dirtying his passenger seat, and him having tried, at least as it appeared to personnel, to use a wheelchair for reasons not related to a disability.

[53] With respect to whether the terms and conditions set out in WestJet’s Tariff were correctly applied, the Agency notes that during the incident on January 18, 2017, Mr. Korchinski appeared confrontational. The Agency also notes that personnel appeared intimidated, at least insofar as they were filmed without consent and accused of discrimination despite their willingness to provide wheelchair assistance and their efforts to find a supervisor as requested by Mr. Korchinski. The Agency further notes that Mr. Korchinski began filming prior to his first encounter with personnel, which suggests that he anticipated some form of disagreement with whomever was going to provide wheelchair assistance.

[54] Given Mr. Korchinski’s behaviour, which bordered on aggressive, and his history of poor behaviour, the Agency finds that it is reasonable for WestJet to conclude, as per the terms and conditions set out in its Tariff, that he is a risk to the safety, comfort or health of himself, passengers, the carrier’s employees or agents, aircrew or aircraft or the safe operation of WestJet’s aircraft. Accordingly, the Agency finds that the travel ban is consistent with the terms and conditions set out in WestJet’s Tariff, and that it should not be overturned by the Agency.

CONCLUSION

[55] Given that Mr. Korchinski did not encounter an obstacle to his mobility, and that WestJet correctly applied the terms and conditions set out in its Tariff in respect of the travel ban, the Agency dismisses Mr. Korchinski’s application.

Member(s)

William G. McMurray
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