Decision No. 20-AT-C-A-2018
APPLICATION by Nancy Shelton and Marjorie Berghoff (applicants) against Air Canada also carrying on business as Air Canada rouge and as Air Canada Cargo (Air Canada).
 Gayle Shriner, on behalf of Nancy Shelton and Marjorie Berghoff (applicants), 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), and subsection110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR), concerning their denied boarding for Air Canada Flight No. AC543 from Toronto, Ontario to Seattle, Washington, USA, and alleged multiple failures by Air Canada to provide wheelchair assistance while the applicants were travelling round-trip from Seattle to Moncton, New Brunswick via Toronto.
 The applicants are seeking denied boarding compensation, a full refund of their tickets, and lifetime airline passes for their family in Moncton to travel to Seattle.
 The Agency will address the following issues:
- Did the applicants encounter an undue obstacle to their mobility pursuant to subsection 172(1) of the CTA?
- Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff NTA(A) No. 458 (Tariff), as required by subsection 110(4) of the ATR?
 For the reasons set out below, the Agency finds that the applicants encountered an undue obstacle to their mobility and that the action taken by Air Canada in response to this application – reminding its personnel of policies and procedures related to wheelchair assistance – has addressed this obstacle. The Agency also finds that Air Canada properly applied the terms and conditions set out in its Tariff.
 Ms. Shelton and Ms. Berghoff are aged 79 and 89, respectively, and have cognitive and developmental impairments.
 The applicants were scheduled to travel in Business class from Seattle to Moncton via Toronto on July 14, 2016, returning from Moncton to Seattle via Toronto on July 25, 2016. The applicants requested wheelchair assistance for all legs of their journey.
 On the return portion of their itinerary, the applicants were unable to travel on their originally scheduled connecting flight from Toronto to Seattle, Flight No. AC543, departing at 8:00 a.m. on July 25, 2016. Instead, Air Canada rebooked the applicants to travel later that evening on Flight No. AC541, departing at 6:25 p.m.
 The application contains issues relating to both accessibility matters and the application of Air Canada’s Tariff.
 The Agency’s jurisdiction with respect to accessibility matters is set out in 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.
 The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a three-part approach.
Part 1: The Agency considers whether the applicant, 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.
Part 2: If it is determined that the applicant, 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 determines whether they encountered an obstacle. 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.
Part 3: If it is determined that the applicant is a person with a disability and that they encountered an obstacle, the Agency provides the respondent with an opportunity to either:
- explain how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or,
- demonstrate that it cannot remove the obstacle without experiencing undue hardship.
 The Agency’s jurisdiction over matters respecting the proper application of international tariffs is set out in subsection 110(4) of the ATR and requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff.
 If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to:
- take the corrective measures that the Agency considers appropriate; and,
- 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.
 Rule 80(A) of Air Canada’s Tariff sets out the carrier’s responsibilities regarding schedule irregularities and states:
3. Best Efforts
Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch, but no particular time is fixed for the commencement or completion of carriage. […]
 Rule 80(C)(1) of Air Canada’s Tariff defines schedule irregularity to mean the following:
(d) Schedule changes which require rerouting of passenger at departure time of the original flight.
 Rule 80(C)(4)(a) of Air Canada’s Tariff outlines what action will be taken by carrier in the event of a schedule irregularity and states the following:
- carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service;
 Tariff Rule 105(5) of Air Canada’s Tariff incorporates the Convention for the Unification of Certain Rules for International Carriage by Air - Montreal Convention, (Montreal Convention) by reference and states the following:
For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.
 Article 19 of the Montreal Convention sets out the carrier’s liability in case of delay and states that:
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage, or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
 Rule 90(A) of Air Canada’s Tariff outlines the carriers obligations with respect to denied boarding and states.
When [the] AC is unable to provide previously confirmed space due to there being more passengers holding confirmed reservations and tickets than for which there are available seats on a flight, AC shall implement the provisions of this rule […].
United States Department of Transportation (US DOT) Regulations
 The applicants make several references to alleged violations by Air Canada to US DOT Regulations, specifically Title 14 of the Code of Federal Regulations Part 382 (14 CFR Part 382). The Agency does not have the authority to enforce US DOT Regulations; therefore, the alleged violations to 14 CFR Part 382 will not be considered.
 The applicants seek, in part, a full refund of their tickets and lifetime passes for their family residing in Moncton. The Agency’s statutory authority to award compensation to an individual traveller, however, is limited to out-of-pocket expenses; therefore, these requests will not be considered. Given that the applicants’ proposed settlement does not represent a direct expense that they incurred as the result of Air Canada’s actions, the Agency does not have the jurisdiction to consider this type of compensation.
DID THE APPLICANTS ENCOUNTER AN UNDUE OBSTACLE TO THEIR MOBILITY PURSUANT TO SUBSECTION 172(1) OF THE CTA?
Positions of the parties
THE APPLICANTS’ POSITION
 The applicants state that for their July 14, 2016 flight from Seattle, they arrived at the airport well in advance of their boarding time and were seated in the wheelchair transport area awaiting their requested wheelchair assistance. The applicants submit that Ms. Berghoff was provided with assistance to the departure gate, but none was provided for Ms. Shelton. In order for Ms. Shelton to reach the gate for her flight on time, her daughter, Ms. Shriner, had to “plead” with the ticketing agent for a pass that would allow her to push her mother through US security (Transportation Security Administration) and onward to her gate.
 The applicants state that during the return portion of their itinerary, on July 25, 2016, wheelchair assistance was only available when they deplaned from their Moncton to Toronto flight, Flight No. AC8931, after a “lengthy” delay, and that assisting personnel did not keep them together. The applicants submit that upon arrival at her departure gate, Ms. Shelton was left in the boarding area and was not provided with any boarding assistance from either the assisting personnel or the gate agent, and Ms. Berghoff was “abandoned” by personnel at the security check point area and had to make her own way to her departure gate. They submit that the gate agent failed to inquire into the whereabouts of Ms. Berghoff, despite knowing that she was “transport dependent” and that her travelling companion, Ms. Shelton, was already at the gate and waiting for her. The applicants maintain that the Air Canada agent should have made every effort to locate Ms. Berghoff and hold the flight until such time as she was located and reunited with her travelling companion.
 The applicants submit that when Ms. Berghoff eventually arrived at the gate, they attempted to board their flight but were denied boarding and told by the gate agent that they would have to take a later flight. The applicants state that no wheelchair assistance was provided to take them to “a safe waiting area” and that they “were abandoned to fend for themselves for 11 hours in a foreign airport”. The applicants state that they could not find a place where they could recline or put their feet up, which they argue “presented an unreasonable circulation health risk”.
 The applicants state that they were not provided with wheelchair assistance to their departure gate for their rebooked flight from Toronto to Seattle, Flight No. AC541, on July 25, 2016. The applicants further submit that upon their arrival in Seattle, wheelchair assistance was not provided to help them deplane or retrieve their luggage, which they maintain arrived on their originally scheduled flight and was placed in a locked room at the airport.
 The applicants assert that their “safety was put in jeopardy given they were left on their own in the middle of the night in a large city to negotiate deplaning, luggage, and transportation”.
AIR CANADA’S POSITION
 Air Canada states that its operations at the Seattle-Tacoma International Airport (Seattle Airport) are handled by United Airlines. Air Canada submits that it contacted United Airlines to clarify why wheelchair assistance was not provided to Ms. Shelton at the time of her departure, or upon the applicants’ arrival, but records pertaining to the provision of such assistance are only retained for a period of one year. Air Canada maintains that its current Seattle Airport Manager and Customer Service Manager were not present at the Seattle Airport at the time these events transpired, and as such Air Canada cannot provide any first-hand information.
 With respect to the events at the Toronto Pearson International airport(Toronto Airport) on July 25, 2016, Air Canada states that its Passengers’ Departure Control System records indicate that both passengers requested wheelchair assistance to connect to their Toronto to Seattle flight, Flight No. AC 543. However, its dispatch department was only made aware of Ms. Shelton’s request, and as a result there was a delay in providing Ms. Berghoff with wheelchair assistance. Air Canada submits that it is unable to determine why Ms. Berghoff’s assistance was terminated at the transfer point.
 In its submission, Air Canada extends its deepest apologies to the applicants for its failure to provide the required assistance.
 Air Canada states that as a result of the problems experienced by the applicants, it has sent reminders to its staff at both the Toronto Airport and the Seattle Airport “emphasizing the importance of providing the required assistance to its passengers in a timely and efficient manner in accordance with Air Canada’s policies and procedures in compliance with applicable legal requirements, and ensuring that passengers are handed off properly at transfer points”.
 Air Canada submits that as a “gesture of its sincerity and good faith” it has processed a full refund of the applicants’ travel costs.
ANALYSIS AND DETERMINATIONS
 To determine whether there is an undue obstacle to the mobility of a person with a disability within the meaning of subsection 172(1) of the CTA, the Agency must determine whether that person’s mobility is restricted or limited by an obstacle.
 Service providers have a duty to accommodate persons with disabilities up to the point of undue hardship. A person with a disability will face an obstacle to their mobility if they demonstrate that they need – and were not provided with – accommodation, thereby being denied equal access to services available to others in the federal transportation network.
 In this case, it is undisputed that the applicants are persons with disabilities for the purposes of Part V of the CTA, and were not provided with wheelchair assistance for all legs of their journey. It is well established that wheelchair service is necessary to respond to the needs of persons with mobility-related disabilities. Therefore, given that wheelchair assistance was not provided, the Agency finds that the applicants encountered an obstacle to their mobility.
 When such a finding is made, the next step would normally be to provide Air Canada with an opportunity to file submissions either explaining how it proposes to remove the obstacle or why it cannot do so without experiencing undue hardship. However, given that this case deals with a service that is provided every day pursuant to Air Canada’s Tariff and multiple Agency decisions, and given the steps that Air Canada has taken as a result of this application to remind its agents of its policies and procedures respecting wheelchair assistance, the Agency finds that actions to address the obstacle would not cause Air Canada undue hardship and have, in fact, already been taken.
DID AIR CANADA PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN RULES 80 AND 105 OF ITS TARIFF, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?
Positions of the parties
THE APPLICANTS’ POSITION
 The applicants state that when they attempted to board their Toronto to Seattle flight, Flight No. AC543, on July 25, 2016, the gate agent told them that “their seats had already been given away and that they were no longer available” and that they would have to take a later flight. The applicants argue that Air Canada’s actions equate to being “bumped”, and that they are therefore entitled to denied boarding compensation.
AIR CANADA’S POSITION
 Air Canada states that the applicants’ original flight from Toronto to Seattle, Flight No. AC543, departed with two available seats in Business class. Consequently, Air Canada argues the applicants were not denied boarding and are not entitled to denied boarding compensation. In support of its statement, Air Canada filed a “NetLine” document (a flight information tracking document) which shows that Flight No. AC543 had 14 Business class seats and 132 Economy class seats, and that it was operated on the date and time in question with 12 occupied Business class seats and 93 occupied Economy class seats.
ANALYSIS AND DETERMINATIONS
 Pursuant to Rule 90 of the Tariff, for passengers to be eligible for denied boarding compensation, the flight must be oversold; in other words, there must be more passengers holding confirmed reservations and tickets than available seats on the aircraft. Given Air Canada’s evidence that Flight No. AC543 departed with two vacant Business class seats, the Agency finds that this is not a case of denied boarding. Therefore, the applicants are not entitled to denied boarding compensation.
 In situations that result in a passenger being delayed, Air Canada is governed by Article 19 of the Montreal Convention, which is incorporated by reference into Air Canada’s Tariff, and Tariff Rule 80.
 Article 19 of the Montreal Convention sets out that a carrier is not liable for damages occasioned by delay if it proves that it took all reasonable measures to avoid the damage or that it was impossible for it to take such measures. Rule 80 of the Tariff provides that in the event of a delay, Air Canada will carry the passenger to the destination named on their ticket on another of its passenger aircraft within a reasonable amount of time.
 Based on the evidence, the Agency finds that by rebooking the applicants to travel from Toronto to Seattle at 6:25 p.m. on July 25, 2016, and by providing them with meal vouchers, Air Canada respected its obligations as found in Rule 80 of its Tariff, and took all measures that could reasonably be required to avoid damages occasioned by the delay, as required by Article 19 of the Montreal Convention.
 The applicants encountered obstacles during their travel as a result of repeated issues with wheelchair assistance and undoubtedly found the experience frustrating and upsetting. However, the Agency notes that Air Canada has apologized and refunded the applicants’ travel costs.
 The Agency finds that no further action is required in respect of the obstacles encountered by the applicants, given that Air Canada has reminded its personnel of policies and procedures regarding wheelchair assistance, and dismisses the element of the application related to alleged denied boarding, given that Air Canada properly applied the terms and conditions set out in its Tariff, as required by subsection 110(4) of the ATR.