Decision No. 334-AT-A-2015

October 26, 2015

APPLICATION by Brian Pietrzyk against Alitalia – Società Aerea Italiana S.p.A. carrying on business as Alitalia – Società Aerea Italiana, Alitalia SAI and Alitalia.

Case number: 
15-50646

INTRODUCTION

[1] Brian Pietrzyk 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 Alitalia Società Aerea Italiana S.p.A. carrying on business as Alitalia – Società Aerea Italiana, Alitalia SAI and Alitalia (Alitalia), concerning the carriage of his continuous positive airway pressure (CPAP) machine.

ISSUE

[2] Did the difficulties Mr. Pietrzyk experienced regarding the acceptance of his CPAP machine for transportation constitute an undue obstacle to his mobility? If so, what corrective measures should be taken?

THE LAW

[3] 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”).

FACTS, EVIDENCE AND SUBMISSIONS

Mr. Pietrzyk

[4] Mr. Pietrzyk submits that he experienced difficulties regarding the carriage of his CPAP machine while travelling with Alitalia from Marseilles, France to Toronto, Ontario, Canada, with a layover in Rome, Italy.

[5] Mr. Pietrzyk states that he was informed at check in in Marseilles that his CPAP machine would not be accepted as carry-on or checked baggage. Mr. Pietrzyk contends that there was some confusion as to what his CPAP machine was and, although the check-in agent asked him if it contained an oxygen tank and he clarified that it did not, he was eventually informed that he would not be allowed to board his flight. He submits that he was then told that he could try going to another counter. He states that he felt humiliated as a result of this interaction with the check‑in agent.

[6] Mr. Pietrzyk submits that he was informed by the agent at the second check-in counter that the first check-in agent had noted in his reservation file that his CPAP machine had an oxygen tank in it, even though he had advised that it did not. Mr. Pietrzyk adds that he was then instructed to return to the end of the general check-in line.

[7] Mr. Pietrzyk states that following this, he dealt with another agent and that it took that agent approximately 20 minutes on the telephone to obtain a boarding pass for him and to clear him to travel with his CPAP machine as carry-on baggage. Mr. Pietrzyk submits that, at that point, there was less than 30 minutes before the flight departure and he had to run to the gate.

[8] According to Mr. Pietrzyk, while he was able to travel with his CPAP machine on his original flight as scheduled, he was exhausted from the stress of his entire flight home and for days afterwards.

Alitalia

[9] Alitalia submits that, for safety reasons, it requires passengers to provide up to 48 hours advance notice if they intend to bring a ventilator, respirator, CPAP machine or portable oxygen concentrator in the cabin as these devices require prior authorization. In addition, Alitalia states that an approved medical form must be processed by Alitalia’s Special Assistance office at least seven days prior to the scheduled flight, or passengers must carry a health certificate, as required by Ente Nazionale per l’Aviazione Civile (ENAC), the Italian Civil Aviation Authority.

[10] Alitalia states that information on the requirements for carrying assistive devices on board Alitalia is set out on its Web site and provided through its call center. According to Alitalia, once advised of a passenger’s need to carry an assistive device, its reservation and other administrative systems ensure that the information is communicated, clearly and on time, to the people responsible for providing the requested service or accommodation. Alitalia submits that if a passenger does not provide advance notice, it will make reasonable efforts to provide the service or accommodation without delaying the flight.

[11] Alitalia points out that Mr. Pietrzyk did not provide it with advance notice that he would be travelling with his CPAP machine.

[12] Alitalia asserts that due to a lack of advance notice and medical documentation required by European Union regulations, its check-in agent in Marseilles was not able to immediately board Mr. Pietrzyk with his CPAP machine and was required to obtain the authorization of the duty manager. Alitalia states that Mr. Pietrzyk travelled from Paris to Rome, and on to his final destination with his CPAP machine once the duty manager performed the necessary checks to ensure that Mr. Pietrzyk’s CPAP machine met the safety requirements and authorized him to board.

ANALYSIS AND FINDINGS

Disability determination

The Agency’s approach to determining disability

[13] In determining whether there is an obstacle to the mobility of persons with disabilities 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.

Analysis

[14] Mr. Pietrzyk uses a CPAP machine to assist with breathing while asleep and brings it with him when he travels.

[15] Alitalia does not contest that Mr. Pietrzyk has a disability for the purposes of Part V of the CTA.

Finding

[16] In light of the above, the Agency finds that Mr. Pietrzyk is a person with a disability for the purposes of Part V of the CTA.

Obstacle determination

The Agency’s approach to determining an obstacle

[17] 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.

[18] 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 and their disability-related needs were not met.

[19] A service or measure that is required to meet a person’s disability-related needs is referred to as “appropriate accommodation.” If it is determined that the person was provided with appropriate accommodation, it cannot be said that they have encountered an obstacle.

Analysis

[20] The Agency has long held that persons with disabilities who require accommodation have the responsibility to make their disability-related needs known to the service provider and give the service provider reasonable advance notice, which the Agency considers to be at least 48 hours in advance of travel. This is necessary to ensure that the required disability-related service is provided. Where a request for accommodation is not made at least 48 hours in advance of travel, the Agency expects the service provider to make a reasonable effort to provide the person with the required disability-related service. The Agency is also of the opinion that it is the responsibility of a passenger to inform themselves of a carrier’s policies and terms and conditions of carriage either through a carrier’s Web site or by contacting the carrier.

[21] Consistent with the foregoing and, for safety reasons, Alitalia requires passengers to provide up to 48 hours advance notice if they intend to bring assistive devices such as a CPAP machine, ventilator, respirator, or portable oxygen concentrator in the cabin as these devices require prior authorization. Alitalia’s requirements for carrying assistive devices are set out on its Web site and provided through its call center.

[22] As Mr. Pietrzyk failed to provide Alitalia with advance notification that he would be travelling with his CPAP machine, Alitalia was unable to ensure that the machine met safety requirements prior to Mr. Pietrzyk’s arrival at the airport and reflect prior authorization to carry the machine in his reservation record. The Agency recognizes that Alitalia’s duty manager was compelled to undertake the necessary safety checks prior to Mr. Pietrzyk being allowed to board the aircraft and is of the opinion that the delay in Mr. Pietrzyk’s boarding was a direct result of his failure to both inform himself of Alitalia’s policy regarding the carriage of CPAP machines and to provide the air carrier with advance notice of his plan to carry his CPAP machine on board the flight.

[23] The Agency also notes that, despite Mr. Pietrzyk’s failure to provide advance notice of his plan to travel with his CPAP machine, Alitalia nonetheless made reasonable efforts and took the steps needed to ensure that Mr. Pietrzyk was able to travel with his CPAP machine on his scheduled flight.

Finding

[24] Given that Mr. Pietrzyk was able to travel with his CPAP machine, the Agency finds that Mr. Pietrzyk was provided with the appropriate accommodation. As such, the Agency finds that the difficulties Mr. Pietrzyk experienced regarding the acceptance of his CPAP machine for transportation did not constitute an obstacle to his mobility.

[25] In order for the Agency to proceed to an undue obstacle determination, the Agency must first find that a person with a disability experienced an obstacle to their mobility. Given that the Agency has found that the difficulties Mr. Pietrzyk experienced regarding the acceptance of his CPAP machine for transportation did not constitute an obstacle to his mobility, there is no need for the Agency to consider the aspect of undueness.

CONCLUSION

[26] For the reasons stated above, the Agency dismisses the application.

Member(s)

Stephen Campbell
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