Decision No. 324-AT-A-2015

October 13, 2015

APPLICATION by Sarah Cheung against WestJet.

Case number: 
14-50321

INTRODUCTION

[1] Sarah Cheung, who has spinal muscular atrophy, 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 difficulties she experienced in relation to an international trip between Vancouver, British Columbia, Canada and Honolulu, Hawaii, United States of America.

[2] Ms. Cheung seeks the following accommodation when traveling by air internationally with WestJet:

  1. the use of her orthotic positioning device (OPD); and,
  2. one extra seat, free-of-charge, for one attendant.

[3] If not permitted to use her OPD, Ms. Cheung seeks three seats, free-of-charge (two seats for two attendants, and one additional seat for her to lie down).

THE LAW

[4] When adjudicating an application pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:

  1. the person who is the subject of the application has a disability for the purposes of the CTA;
  2. an obstacle exists because the person was not provided with accommodation appropriate to address their disability-related needs; and
  3. the obstacle is “undue,” because the transportation service provider did not justify the existence of the obstacle by proving that

(i) it is rationally connected to the provision of the transportation service;

(ii)  it was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; and,

(iii)  there are constraints that make the removal of the obstacle unreasonable, impracticable, or impossible (undue hardship).

ISSUES

  • Is Ms. Cheung a person with a disability for the purposes of Part V of the CTA?
  • Did WestJet’s failure to permit Ms. Cheung to use her OPD in flight, and to provide one extra seat free-of-charge for one attendant, constitute undue obstacles to Ms. Cheung’s mobility?
  • If so, what corrective measures should be ordered, if any?

[5] The Agency will first address whether Ms. Cheung is a person with a disability.

[6] The Agency will then address whether Ms. Cheung encountered obstacles, including what are the appropriate accommodations to address her disability-related needs.

[7] Finally, the Agency will address whether any obstacles found to have been encountered by Ms. Cheung are undue and, if so, what, if any, corrective measures should be ordered. The Agency will also consider the request by WestJet for dismissal of that portion of the application requesting one extra seat, free-of-charge, for one attendant, and will review the context of Decision No. 6-AT-A-2008, which ordered that Air Canada, Air Canada Jazz and WestJet not charge a fare on domestic air services for additional seats provided to persons with disabilities who require additional seating for themselves or their attendants as a result of their disabilities.

IS MS. CHEUNG A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?

[8] In determining whether there is an obstacle to the mobility of persons with a disability within the meaning of subsection 172(1) of the CTA, the Agency must first establish whether the application was filed by, or on behalf of, a person with a disability.

[9] Ms. Cheung has spinal muscular atrophy and is unable to move her body apart from limited movement of her fingers. Ms. Cheung uses a wheelchair with a removable custom-made OPD to support her body, without which she cannot sit upright unassisted without extreme discomfort and pain. Ms. Cheung also requires assistance with administering medication as well as personal care throughout the duration of any flight. She therefore travels with an attendant.

[10] WestJet has not contested that Ms. Cheung is a person with a disability.

Finding

[11] The Agency finds that Ms. Cheung is a person with a disability for the purposes of Part V of the CTA.

DO THE ISSUES RAISED IN MS. CHEUNG’S APPLICATION CONSTITUTE OBSTACLES TO HER MOBILITY?

[12] In order to determine if the issues raised in Ms. Cheung’s application constitute undue obstacles to her mobility, the Agency must first determine if these issues constitute obstacles to her mobility.

The Agency’s approach to determining obstacle

[13] An obstacle is a rule, policy, practice, physical barrier, etc. which is either:

  • direct, i.e., applies to a person with a disability;
  • or indirect, i.e., while the same for everyone, has the result of withholding a benefit from a person with a disability; and,
  • denies a person with a disability equal access to services that are available to others such that accommodation is required from the service provider.

[14] It is the responsibility of the person with a disability to prove on a balance of probabilities that they needed accommodation appropriate to address their disability-related needs but that their disability-related needs were not met.

[15] The Agency will now consider Ms. Cheung’s disability-related needs and the appropriate accommodation to address those needs, and then whether those needs were met.

Disability-related needs

[16] Ms. Cheung has provided evidence from her family physician of the following disability-related needs:

  • Ms. Cheung has extensive weakness of the trunk and limb muscles, and bilateral dislocated hips. These conditions necessitate a custom-made seating system -her OPD- to support her in a seated position, without which she would have to maintain a recumbent position or be held up by an attendant. In addition, Ms. Cheung requires an attendant to help her with medications and personal care in flight.
  • If not permitted to use her OPD, Ms. Cheung requires two attendants: one attendant who spends the flight supporting her body; and one attendant to administer personal care and medication in flight. In addition, Ms. Cheung requires an extra seat for her to lie down, as being held up is extremely uncomfortable, as compared to using her OPD to remain in a seated position.

[17] This is not contested by WestJet.

[18] Accordingly, the Agency finds that Ms. Cheung needs accommodation to address the following disability-related needs:

  1. support to remain in a seated position during take-off and landing; and,
  2. assistance with medications and personal care in flight.

[19] The Agency will therefore proceed to determine what is the appropriate accommodation to address these disability-related needs, and then determine whether Ms. Cheung has proven on a balance of probabilities that those needs were not met, in other words, that appropriate accommodation to address her disability-related needs was not provided.

Appropriate accommodation

[20] Service providers have a duty to provide accommodation to persons with disabilities. Where a variety of accommodation measures may meet a person’s disability-related needs, the accommodation measure does not have to be exactly what the person requests, but it must be effective (i.e., appropriate to meet the disability-related needs of the person). It must be provided in a dignified manner, resulting in an equal opportunity for the person with a disability to attain the level of transportation services experienced by others in the federal transportation network.

[21] If the person was provided with accommodation appropriate to meet their disability-related needs, then they have not encountered an obstacle.

[22] It is the service provider, as part of its duty to accommodate, who is responsible for identifying and providing the measure that will be required to meet the needs of a person with a disability. This reflects the direction of the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, which found that an employer is in the best position to determine how a complainant can be accommodated without undue interference in the operation of the employer’s business. Similarly, it is the responsibility of the service provider to prove on a balance of probabilities that they identified and provided accommodation appropriate to meet the disability-related needs of the person with a disability.

[23] The Agency will assess and determine whether the measure identified by the service provider is appropriate to address the disability-related needs of a person. If the service provider does not identify an accommodation, or if the measure identified by the service provider is not determined by the Agency to be appropriate to address the person’s disability-related needs, then the Agency will rely on the submissions of the parties and its own specialized knowledge and expertise to determine the accommodation appropriate to address the disability-related needs.

[24] Any constraints (such as safety concerns), which may affect the service provider’s ability to provide accommodation, are only assessed at the Undue Obstacle stage.

OPD

Positions of the parties

[25] Ms. Cheung asserts that the most appropriate means to meet her disability-related need to be supported to remain in a seated position is the use of her OPD in flight. WestJet refused to permit her to use her OPD on her trip in May 2014.

[26] While WestJet initially took the position that it could not allow Ms. Cheung to use her OPD in flight and, thus, that it was not appropriate accommodation, WestJet states that it has now developed a policy to allow the use of an OPD on all aircraft, at any time, provided that certain safety-related conditions are met. By doing so, WestJet has accepted that using an OPD is an appropriate accommodation for Ms. Cheung.

[27] Ms. Cheung indicates that WestJet’s new policy adequately addresses the first issue raised in her application, namely, the use of her OPD on WestJet flights.

Finding

[28] The Agency finds that the use of her OPD in flight provides the appropriate accommodation to address one of Ms. Cheung’s disability-related needs.

One extra seat, free-of-charge, for one attendant

Positions of the parties

[29] Ms. Cheung submits that in addition to the use of her OPD in flight, she also requires an attendant to assist with transfers/lifts, administering medication, and helping with personal care. According to Ms. Cheung, she should be provided one extra seat, free-of-charge, for the attendant.

[30] WestJet argues that the Agency does not need to consider the issue of the provision of extra seats for attendants, free-of-charge, because Ms. Cheung is only seeking an extra seat, free-of-charge, as an alternative to using her OPD in flight.

[31] In response, Ms. Cheung submits that WestJet’s argument is not consistent with her response to Decision No. LET-AT-A-44-2014, in which Ms. Cheung stated as follows:

…While being granted legal rights to fly with my OPD is my primary concern, the outcome will directly affect the number of seats required to be provided, free of charge, for myself as well as my attendant(s) during international travel.

Due to my physical limitations and as reiterated in my physician’s letter, I require an attendant to assist with transfers/lifts, administering medication, and helping with personal care throughout the duration of any flight. For these purposes I require one additional seat free of charge when permitted to use my OPD inflight…

It is necessary that the Agency seriously considers whether additional seat(s) can be provided free of charge for my attendant(s) and myself...

Analysis

[32] In determining the accommodation appropriate to meet Ms. Cheung’s disability-related need for an attendant, the Agency is mindful of the accessibility principle that persons with disabilities should not be placed at an economic disadvantage as a result of their disabilities and should not have to pay more for their transportation services than other passengers who do not have disabilities, including in circumstances where transportation service providers must provide different services to ensure equivalent access to the federal transportation network.

[33] According to the evidence of her physician, Ms. Cheung requires an attendant to assist with transfers/lifts, administer medication, and provide personal care. If Ms. Cheung must pay for a seat for this attendant, then she will have to pay more for transportation services, as a result of her disability-related needs, than other passengers who do not require attendants. In this way, Ms. Cheung would be placed at an economic disadvantage as a result of her disability.

Finding

[34] The Agency finds that, in addition to WestJet’s new policy permitting Ms. Cheung to use her OPD in flight, the appropriate accommodation to address Ms. Cheung’s disability-related needs includes one attendant and the provision of one extra seat, free-of-charge, for that attendant.

[35] There is no need for the Agency to consider Ms. Cheung’s initial request for three seats (two seats for two attendants, and one additional seat for her to lie down) in the event that she is not permitted to use her OPD, as WestJet now permits the use of an OPD in flight.

Obstacle determination

OPD

[36] Ms. Cheung was not permitted to use her OPD during her travel in May 2014.

Finding

[37] The Agency therefore finds that accommodation appropriate to address Ms. Cheung’s disability‑related needs was not provided, in that WestJet’s policy and procedures at the time of Ms. Cheung’s travel in May 2014 did not permit the use of her OPD in flight. Consequently, WestJet’s policy and procedures at that time constituted an obstacle to Ms. Cheung’s mobility.

One extra seat, free-of-charge, for one attendant

[38] WestJet did not provide Ms. Cheung with an extra seat, free-of-charge, for one attendant during her travel in May 2014.

Finding

[39] The Agency therefore finds that the appropriate accommodation to address Ms. Cheung’s disability-related needs was not provided, in that WestJet did not provide extra seats for attendants, free-of-charge. Consequently, WestJet’s failure to provide extra seats for attendants, free-of-charge, on her international flights constituted an obstacle to Ms. Cheung’s mobility.

ARE THE OBSTACLES UNDUE?

The Agency’s approach to determining whether an obstacle is undue

[40] After the Agency has determined that a person with a disability has encountered an obstacle, the Agency determines if the service provider has justified on a balance of probabilities that they are unable to provide the accommodation determined by the Agency to be appropriate or provide any other form of accommodation.

[41] If the service provider has not justified the obstacle, then the Agency will find that the obstacle is undue, and the Agency will proceed to determine the corrective measures necessary to remove the undue obstacle.

[42] If the service provider has justified the obstacle, then the Agency will find that the obstacle is not undue, and no corrective measures will be ordered.

Justification test

[43] The test that a service provider must meet in order to justify the existence of an obstacle consists of three steps. The service provider must demonstrate that:

Step 1: the source of the obstacle is rationally connected to the provision of the transportation service;

Step 2: the source of the obstacle was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; and,

Step 3: it cannot provide any form of accommodation without incurring undue hardship.

OPD

[44] WestJet made no submissions that it would incur undue hardship in amending its policy and procedures to permit the use of an OPD in flight. Furthermore, since Ms. Cheung travelled in May of 2014, WestJet developed a policy that permits the use of OPDs, at any time, and on all aircraft, provided that safety-related conditions are met. By developing this policy, WestJet has demonstrated that to have permitted Ms. Cheung to use her OPD at the time of her travel in May 2014 would not have constituted an undue hardship.

Finding

[45] Accordingly, the Agency finds that WestJet’s refusal to permit Ms. Cheung to use her OPD during travel in May 2014 constituted an undue obstacle to her mobility.

[46] However, given that WestJet has already removed this undue obstacle, no corrective measures are required.

One extra seat, free-of-charge, for one attendant

[47] Although Ms. Cheung frames her request for relief as extending the principles of Decision No. 6‑AT‑A‑2008, that Decision applies solely to the “domestic flights” operated by Air Canada, Jazz and WestJet. Footnote 4 of that Decision confirms that, as follows:

4. For the purposes of this Decision, any remedy will not be available in relation to the domestic segment of an international air trip that is purchased on a single fare as the domestic portion of the trip is considered to be part of the international air service and not a domestic air service.

[48] The issue now before the Agency is whether WestJet’s failure to provide to Ms. Cheung an extra seat for an attendant, free-of-charge, on its transborder and international flights constitutes an undue obstacle to Ms. Cheung’s mobility.

[49] In response to this issue, WestJet requests that the Agency dismiss this portion of the application.

Positions of the parties

[50] WestJet argues that the issue concerning the provision of extra seats for attendants, free‑of‑charge on international and transborder flights, should not be addressed by the Agency for the following reasons:

  1. For Ms. Cheung, the issue concerning the provision of one extra seat, free-of-charge, for one attendant arises only if her OPD cannot be used in flight.
  2. The Agency has the discretion not to inquire into a matter and/or to determine that no corrective measures are warranted when the circumstances underlying the complaint have since changed, where there would be no advantage to proceed with adjudication, when an appropriate accommodation exists, or when an application would serve no useful purpose.
  3. Decision No. 6-AT-A-2008, which addressed the provision of extra seats, free-of-charge, to accommodate disability-related needs during domestic travel, excluded international flights and expressly decided that no remedy would be available for the domestic segment of an international air trip purchased on a single fare.
  4. The investigation of this issue would require the analysis, consideration, and balancing of a plethora of factors, including:

a. international instruments;

b. agreements between carriers and agencies;

c. competition and costs;

d. the territoriality of jurisdiction; and

e. safety measures.

5. The provision of extra seats for attendants, free-of-charge, impacts the hundreds of air carriers authorized to operate international air services between points in Canada and abroad, yet WestJet is the sole respondent to the application.

[51] Ms. Cheung submits that the issue concerning the provision of extra seats for attendants, free of charge on international and transborder flights should be addressed by the Agency for the following reasons:

  1. Her need for one extra seat, free of charge, for one attendant arises even when she is able to use her OPD in flight, as stated in her response to Decision No. LET-AT-A-44-2014.
  2. Investigation of the provision of extra seats for attendants, free of charge, would serve a useful purpose and is essential to her mobility.
  3. Decision No. 6-AT-A-2008 only addressed domestic flights because the originating applications only addressed domestic flights. Furthermore, the Agency, in multiple decisions, has explained that it has jurisdiction over international transportation connected to Canada, including activities outside of Canada by carriers providing transportation to or from Canada.
  4. Possible complexity or difficulty in adjudicating this issue is not an adequate reason to refuse to address this issue.
  5. Ms. Cheung is unaware of any international legal principle that would prohibit WestJet from providing her with one extra seat, free of charge, for one attendant. The Agency must extend the principles outlined in Decision No. 6-AT-A-2008 to international flights.

Analysis

[52] As noted earlier, an extra seat, free-of-charge, for Ms. Cheung’s attendant is not an alternative to using her OPD in flight. It is part of the accommodation appropriate to address Ms. Cheung’s disability-related needs, when she is permitted to use her OPD in flight.

[53] At issue here is whether the principle of one-person, one-fare should be extended to apply to WestJet’s transborder and international air services.

[54] The Agency notes WestJet’s submission that the Agency needs to consider and balance a plethora of factors in making a decision on this issue. In order to assess the merit of this submission, the Agency will review the context of Decision No. 6-AT-A-2008 to determine how and why the Agency ordered the implementation of one-person, one-fare in the circumstances that were before it at that time.

Context of Agency Decision No. 6-AT-A-2008

[55] In rendering its Decision, the Agency engaged in a broad review of the issue in the context of the domestic air industry. The extensive nature of the proceeding is clearly reflected in paragraph 89 of Decision No. 6-AT-A-2008:

The Agency has thoroughly investigated and considered all of the issues raised by the parties, which resulted in a longer period of time being required by the Agency to consider the case and render its decision. For example, in the course of its investigation, the Agency:

  • conducted extensive written pleadings;
  • issued several preliminary jurisdictional decisions, including one in relation to the Agency’s jurisdiction under the Charter;
  • received pleadings and issued decisions on numerous preliminary procedural matters; and,
  • held an oral hearing over the course of 23 days, from May 30 to June 3, 2005; on October 14, 2005; from November 14 to November 29, 2006; and on December 12, 2006, to permit the parties a full opportunity to produce and test evidence, including extensive expert and other evidence produced by the applicants, an intervener in support of the applicants, and the carrier respondents...

[56] Experts submitted reports and testified on behalf of the applicants and the respondents Air Canada, Jazz, and WestJet. In addition, the Agency appointed two experts. Finally, various non‑expert witnesses testified on behalf of the applicants and various respondents.

[57] It was in the context of these extensive hearings and this voluminous evidence that the Agency rendered Decision No. 6-AT-A-2008 in January 2008.

[58] The Agency notes that the applicant in the proceeding leading to that Decision, the Council of Canadians with Disabilities, is a large national association representing a broad range of persons with disabilities. Similarly, the respondents represented over 90 percent of the domestic air market at the time. These facts made possible the consideration of a systemic remedy to address the “fares and charges to be paid by persons with disabilities who require additional seating to accommodate their disabilities to travel by air on domestic air services.”

Systemic solutions vs dispute settlement

[59] Subsection 172(1) of the CTA is a complaint-driven mechanism. Ms. Cheung’s application is only against WestJet and, as such, a remedy, if any, ordered by the Agency would only apply to WestJet. However, this Panel is concerned that, if it were to order WestJest to apply the principle of one-person, one-fare in its international operations, other persons who appear before the Agency in the future would likely attempt to rely on this to expand the application of the principle of one-person, one-fare to other air carriers. Although the Agency will not be bound by any decision rendered in this proceeding, the potential significance of the principle established must be considered.

[60] Ms. Cheung’s application was originally against WestJet. She subsequently amended her application to include four other air carriers as respondents. However, the Agency rejected her application against these additional carriers as she failed to provide sufficient evidence that the carriers would not provide her with accommodation. In any event, these five air carriers, together, would still only represent a very small proportion of the air industry providing transborder and international air services between Canada and other countries.

[61] Decision No. 6-AT-A-2008 did not deal with a dispute between a passenger and an air carrier so much as it removed, at a systemic level, the obligation of passengers to purchase additional seating to accommodate their disability on these carriers’ domestic flights. The fact that 90 percent of the domestic air market was covered by the named respondents meant that the Agency gained a full understanding of the implications of such a remedy on the domestic air market and had the breadth of perspective necessary to evaluate a systemic remedy that would see the respondents provide to certain persons with disabilities additional potentially revenue‑producing seats, free-of-charge. The Agency would require a similar full understanding of the implications of such a remedy on the international air market prior to ordering a systemic remedy.

[62] However, the current dispute does not easily lend itself to a systemic solution. Ms. Cheung seeks a determination of “whether additional seat(s) can be provided free of charge for my attendant(s) and myself during international travel”. Her application is framed as a claim by the applicant against a single respondent. Even if the Agency had accepted Ms. Cheung’s application in its entirety, it would have only captured five air carriers, providing a small proportion of the transborder and international air services market.

[63] The Agency notes that the international air industry is complex and involves many factors not applicable in the domestic context, including foreign laws and regulations and bilateral air transport agreements that remain entirely outside of the Agency’s control. In this regard, in Decision No. 336-AT-A-2008, the Agency noted that “the nature of international travel in today’s environment is such that many carriers are part of large alliances for which the membership may include several air carriers and which may entail reliance on their partner carriers to provide service on their behalf.” In a world of air carrier alliances, metal neutral joint ventures and code-share agreements, the extension of the principle of one-person, one-fare beyond Canada’s borders would constitute a systemic solution that would have far-ranging implications and, as such, could not be considered in isolation, in the context of this case.

[64] In addition, in considering whether to apply this principle, the Agency must consider foreign laws or regulations and bilateral air transport agreements that may limit the international implementation of any Agency decision. The recent Supreme Court of Canada decision in Thibodeau v. Air Canada, 2014 SCC 67 confirms that the cohesion and integration of international instruments with regard to local regulations is required where possible.

[65] For example, pursuant to subsection 71(1) of the CTA, the Agency may subject scheduled international service licences “to such terms and conditions as the Agency deems to be consistent with the agreement, convention or arrangement pursuant to which the licence is being issued.” This clearly reflects the intent of Parliament that licence conditions should be compatible with the terms of the bilateral air transport agreements that Canada has signed with foreign governments. Pursuant to subsection 74(1) of the CTA, the Agency may also subject non‑scheduled international service licences “to such terms and conditions as the Agency deems appropriate.”

[66] The importance of international constraints imposed by foreign law and/or regulations has been recognized by the Agency in the accessibility context, for example, in the crafting of a remedy related to the use of oxygen on board transborder flights (see Decision No. 336-AT-A-2008, paragraphs 80 and 326).

[67] In the absence of a proceeding that would provide the Agency with the breadth of perspective required to properly assess and evaluate this significant remedy, the Agency cannot discharge its responsibilities in a fair and informed way. The Agency is limited by the legislative mandate provided to it in the CTA which does not, at this time, include own motion powers to conduct broader, more systemic investigations.

Conclusion

[68] In light of the above, the Agency grants WestJet’s request that the Agency dismiss this aspect of Ms. Cheung’s application and will not consider expanding the application of the one-person, one-fare principle to transborder or international routes in the context of this application and at this time.

SUMMARY OF CONCLUSIONS

  1. The Agency finds that WestJet’s refusal to permit Ms. Cheung to use her OPD during travel in May 2014 constituted an undue obstacle to her mobility. However, given that WestJet has already removed this undue obstacle, no corrective measures are required.
  2. The Agency grants WestJet’s request that the Agency dismiss this aspect of Ms. Cheung’s application and will not consider expanding the application of the one-person, one-fare principle to transborder or international routes in the context of this application and at this time.

Member(s)

Sam Barone
P. Paul Fitzgerald
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