Decision No. 345-AT-A-2016
APPLICATION by Bruce Kruger against Air Canada pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) concerning difficulties he experienced in relation to his seating needs for a trip he booked between Toronto, Ontario, Canada and Bermuda.
 Bruce Kruger filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the CTA against Air Canada concerning difficulties he experienced in relation to his seating needs for a trip he booked between Toronto and Bermuda.
 On October 21, 2016, the Agency issued 321-AT-A-2016">Decision No. 321-AT-A-2016 (2016 Decision) regarding an application by Bruce Kruger against Lufthansa concerning difficulties he experienced in relation to his seating needs while travelling between Toronto and Vienna, Austria.
 The Agency found that Mr. Kruger is a person with a disability due to his severe post-traumatic stress disorder (PTSD) for which the principal impairment is “disabling hypervigilance” with severe anxiety attacks, and accepted that Mr. Kruger’s disability-related needs relate to seating accommodation in the form of a seat that allows him to keep his back against a wall in all public spaces, including in an aircraft.
 The Agency will consider the following issues:
- Is Mr. Kruger a person with a disability for the purposes of Part V of the CTA?
- Does Air Canada’s policy regarding seating accommodation for persons with disabilities in respect of requests made more than 48 hours before departure, and the alleged failure by Air Canada to confirm the seating accommodation when requested by Mr. Kruger for his inbound flight, constitute undue obstacles to Mr. Kruger’s mobility? If so, what corrective measures should be taken?
- Did the manner in which Mr. Kruger alleges he was treated by Air Canada’s flight attendant(s) when reaching his seat on his outbound flight, and the communication of disability-related information to the flight crew, constitute undue obstacles to Mr. Kruger’s mobility? If so, what corrective measures should be taken?
 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:
- the person who is the subject of the application has a disability for the purposes of the CTA;
- an obstacle exists because the person was not provided with appropriate accommodation to address their disability-related needs; and,
- the obstacle is “undue.” An obstacle is undue unless the transportation service provider demonstrates that there are constraints that make the removal of the obstacle either unreasonable, impracticable, or impossible, such that to provide any form of accommodation would cause the transportation service provider undue hardship.
ISSUE 1: IS MR. KRUGER A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?
The Agency’s approach to determining disability
 While there are situations where a disability is self-evident (e.g., a person who uses a wheelchair), there are cases where additional evidence is required to establish both the disability and the need for accommodation. In assessing those cases, the Agency may use the World Health Organization’s (WHO) International Classification of Functioning, Disability and Health (ICF), an internationally accepted tool for the consistent classification of functioning and disability associated with health conditions, other related WHO publications, and/or medical documentation.
 In a medical note dated August 2015, Mr. Kruger’s doctor indicates that Mr. Kruger has PTSD for which the most prominent disabling symptom is extreme hypervigilance. Mr. Kruger’s doctor also recommends that he avoids significant distress, and that he not be seated in a location where a person could pass behind him.
 The Agency found, in 252-AT-A-2014">Decision No. 252-AT-A-2014, that Mr. Kruger has an impairment, experiences activity limitations, and encounters participation restrictions in the context of travel within the federal transportation system as a result of PTSD. These findings are supported by the recent medical note filed by Mr. Kruger. Air Canada does not dispute that Mr. Kruger is a person with a disability for the purposes of Part V of the CTA as a result of PTSD.
 The Agency finds that Mr. Kruger is a person with a disability for the purposes of Part V of the CTA as a result of PTSD.
The Agency’s approach to determining an obstacle
 Service providers have a duty to accommodate persons with disabilities. 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.
 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 an accommodation that met their disability-related needs, it cannot be said that they have encountered an obstacle.
The Agency’s approach to determining whether an obstacle is undue
 An obstacle is undue unless the service provider can justify its existence by demonstrating that it can neither provide the service necessary to accommodate the person’s disability-related-needs nor any other form of accommodation without incurring undue hardship. The test that a service provider must meet in order to justify the existence of an obstacle consists of three elements. The service provider must demonstrate that:
- the source of the obstacle is rationally connected to the provision of the transportation service;
- 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,
- it cannot provide any form of accommodation without incurring undue hardship.
ISSUE 2: DOES AIR CANADA'S POLICY REGARDING SEATING ACCOMODATION FOR PERSONS WITH DISABILITIES IN RESPECT OF REQUESTS MADE MORE THAN 48 HOURS BEFORE DEPARTURE, AND THE ALLEGED FAILURE BY AIR CANADA TO CONFIRM THE SEATING ACCOMMODATION WHEN REQUESTED BY mR. KRUGER for his inbound flight, CONSTITUTE UNDUE OBSTACLES TO MR. KRUGER’S MOBILITY? IF SO, WHAT CORRECTIVE MEASURES SHOULD BE TAKEN?
Facts, evidence and submissions
Positions of the parties
 Mr. Kruger is concerned with Air Canada’s Seating/Unseating Customers With Disabilities – Policy and Procedures (seating policy) which set out that seats not included in the “accessible seat allotment” are not subject to unseating, and questions if the seat he requires, i.e., the window seat in the last row, forms part of this “accessible seat allotment”. Mr. Kruger is of the view that if a person’s disability-related needs limit the choice of a seat to a unique location, the seat needed should be reserved, provided that proper documentation from a medical professional is submitted, and not be dependent upon whether the seat is listed in Air Canada’s “accessible seat allotment”.
 Mr. Kruger submits that Air Canada’s argument that last minute aircraft changes prevent it from assigning Mr. Kruger’s seat more than 24 hours in advance of travel is an excuse for its failure to assign seating for persons with disabilities in a timely fashion. Mr. Kruger submits that when there is an aircraft change, Air Canada should simply revert to the information on the Departure Control System (DCS) record or the Passenger Information List (PIL) to ascertain if there are passengers with “special needs” on a flight. Mr. Kruger submits that in most cases, the aircraft does not change configuration, such that an early assignment would limit the reseating of passengers.
 Mr. Kruger accepts Air Canada’s position that a change to its reservation system would be costly and could not be completed for a timely solution. He suggests, however, that it should be incumbent upon Air Canada to manually transfer the SSR appended to his file and that the cost of doing so would be minimal.
 More specifically in respect of his travel, Mr. Kruger booked, in December 2014, his April 21, 2015 flight from Toronto to Bermuda, returning on April 26, 2015. Mr. Kruger states that immediately upon booking his flights, he contacted Air Canada to reserve a window seat with his back to a wall and fully disclosed his disability to the Medical Assistance Desk (Meda Desk) both verbally and in writing. Mr. Kruger spoke with Manon Gravel, Manager, Regulatory Compliance Customer Relations, who booked him the seat he needed for his outbound flight. Ms. Gravel informed him, however, that Air Canada would not be able to guarantee the seat he needed for his inbound flight until the day before his departure, due to a binding contractual agreement with the air crew union reserving the back seats of an aircraft for their members’ needs.
 With respect to his inbound flight, Mr. Kruger states that he received an e-mail from Air Canada advising him that he could book his inbound flight online rather than at the airport, without specifying when he received such e-mail. After booking online, Mr. Kruger noticed that the system had not assigned the seat he needed and he contacted the Meda Desk to correct the situation. Mr. Kruger states that Air Canada’s agent initially responded that Mr. Kruger did not give Air Canada sufficient time to make the necessary changes to the ticketing, as he had booked just 18 minutes prior to making the call, but finally confirmed that the seat Mr. Kruger needed was booked for him.
 Mr. Kruger submits that he carries with him a letter from his psychiatrist confirming that he needs to be accommodated, and that even if he were to be issued a letter from Air Canada to that effect as offered by the carrier, it would neither be read or deemed acceptable by Air Canada personnel.
 Air Canada submits that all relevant policies and procedures are in place to provide “full accommodation” to persons with disabilities who need specific seating. Air Canada’s seating policy sets out that Air Canada will pre-assign accessible seats to passengers with disabilities upon request, up to 48 hours prior to departure for domestic and international itineraries, and up to 24 hours prior to departure for transborder Air Canada flights. The seating policy also sets out that Air Canada will make reasonable effort to accommodate seating requests made with lesser advance notice. When the seat requested by the person with a disability is unavailable, Air Canada Reservations will refer the passenger to the Meda Desk, which can assign preferred seats at no cost, or unseat other passengers.
 In respect of Mr. Kruger’s travel, Air Canada states that upon booking his tickets, Mr. Kruger contacted the Meda Desk and was transferred to the lead Meda Desk agent. A note indicating that the Meda Desk had to contact Customer Journey Management (CJM) regarding seat selection “closer to departure” was added to Mr. Kruger’s file. One day before his flight, on April 20, 2015, seats were assigned to Mr. Kruger and his wife, and the Meda Desk noted in Mr. Kruger’s passenger name record (PNR): “DO NOT UNSEAT MEDICAL”.
 Air Canada explains that it is not possible to confirm Mr. Kruger’s seat until close to the flight departure, once the aircraft type is confirmed, due to the fact that the seat needed by Mr. Kruger can be situated in various locations on the several possible aircraft layouts. Air Canada states that, if the most suitable seat to accommodate Mr. Kruger’s disability-related needs is in the last row, Mr. Kruger has priority on this seat, even if it is usually reserved for crew rest should the flight not be full. The Meda Desk will contact CJM to assign Mr. Kruger’s seat 24 hours prior to departure.
 To illustrate the different aircraft configurations and how it affects Mr. Kruger’s seat assignment, Air Canada gives the example of the Airbus A330-300, in which the last row is not in front of the lavatories. Air Canada submits that, in this case, Mr. Kruger would need to be seated in front of the lavatories in the middle of the aircraft. Similarly, Air Canada states that, if it were to assign Mr. Kruger a seat appropriate to his disability-related needs on a Boeing 787-9 such as seat 29K, and then the aircraft were to change to a Boeing 767-300ER, Mr. Kruger’s seat assignment would remain seat 29K, which would not meet Mr. Kruger’s needs in the Boeing 767-300ER.
 Air Canada explains that its reservation system called RESIII has limited features and flexibility compared to current technology, and does not permit the automated transfer of a request from a passenger with a disability for a seat with defined characteristics such as “last row”. Air Canada is considering the replacement of RESIII, but estimates that it would take many years to implement a new reservation system.
 Air Canada further explains that RESIII allows the automated transfer of approved International Air Transport Association (IATA) Special Service Request (SSR) codes to the DCS record. For other requests not represented by standard IATA SSR codes, there is “no functionality (like a seat-type assignment) that can get transferred”, only a 46-character field that can be taken from the “RES SSR field” to the passenger’s “DCS SSR field”.
 Air Canada states that, when there is an aircraft change, RESIII reassigns seats to maintain, as much as possible, “identifiable standards of the previous aircraft” and seat numbering. Air Canada, however, indicates that there are currently no standards to reflect, for example, a request for a seat in the last row.
 Air Canada submits that, to require a modification to its seating policy and procedures for a single passenger, “particularly when this passenger is already able to travel without experiencing any significant obstacle”, would be an undue commercial burden on Air Canada.
 To remedy the situation in Mr. Kruger’s case, Air Canada has created a long-term medical file for him, which details the procedures to be applied by the Meda Desk agents. First, Air Canada explains that once Mr. Kruger makes a reservation, he is required to call or e-mail the Meda Desk to “access and activate the file”. Mr. Kruger also has to e-mail his booking number to the lead agent of the Meda Desk. Then, 24 hours prior to departure, the Meda Desk will contact CJM to assign Mr. Kruger the seat he needs. Air Canada adds that a customized Meda SSR message has been created and will be appended to Mr. Kruger’s DCS record indicating that Mr. Kruger has been approved for “special seating” and pre-boarding. Mr. Kruger’s long-term medical file also instructs the Meda Desk to e-mail Cabin Safety and In-Flight Services regarding Mr. Kruger’s seating needs, to ensure that he is not questioned or unseated by in-flight personnel once on board. In addition, Air Canada proposes that Mr. Kruger be provided with a letter from its legal department to be used in the event of a last minute aircraft change to “resolve any potential questions or difficulties that Mr. Kruger could potentially face”.
 Air Canada states that the above tailored approach ensures that Mr. Kruger is assigned a seat that meets his disability-related needs on the aircraft that will “almost certainly be used for the flight in question, barring a last minute substitution”.
Analysis and findings
 Air Canada’s seating policy clearly states that disability-related needs will be accommodated when the request for accommodation is submitted 24 hours before a transborder flight and 48 hours before domestic and international flights. In Mr. Kruger’s case, the request was submitted in December 2014 for a flight in April 2015. Notwithstanding the advance notice, Air Canada was unable to confirm Mr. Kruger’s seating until the day prior to his flight departure.
 Air Canada states that it is impossible to automatically transfer Mr. Kruger’s accommodation request in the event of a change in aircraft type. Air Canada submits that this type of action would require a new reservation system, which is not to be expected for many years.
 Air Canada’s actual reservation system only transfers accommodation requests identified with “standard” IATA codes. In respect of Mr. Kruger’s needs, Air Canada states that there is no standard code to indicate that a passenger needs to be seated in the last row; however, Air Canada does not justify why the information specific to Mr. Kruger’s needs cannot be presented in the 46-character field in the “RES SSR field”, and then transferred to the passenger’s “DCS SSR field”. While the transfer of this information cannot be automated with the actual reservation system, Air Canada has already indicated having to manually transfer some information when an aircraft change takes place in that the reassignment of seats has to be verified and manually readjusted, either at the Operations Control level at the gate or upon automated check in. RESIII reassigns seats to maintain “identifiable standards of the previous aircraft” and seat numbering, but Air Canada has previously explained that the same seat number does not necessarily result in the same seat characteristics from one aircraft to another. As such, it can be expected that a number of manual readjustments is required for SSRs other than Mr. Kruger’s. Air Canada has not explained why a manual readjustment with consideration to the new aircraft configuration, like the one performed for other passengers’ SSRs, cannot be done for Mr. Kruger’s SSR. It is safe to assume that all aircraft can accommodate Mr. Kruger’s need for a window seat with his back to a wall given that all aircraft have at least one of those seats, no matter the aircraft type and configuration.
 The tailored Meda Desk approach developed by Air Canada to accommodate Mr. Kruger’s seating needs burdens Mr. Kruger with the responsibility of reminding Air Canada personnel of his disability-related needs, and only assigns the seat Mr. Kruger needs 24 hours before departure. This approach creates significant uncertainty regarding Mr. Kruger’s ability to travel as planned, which very likely creates a substantial level of anxiety/stress, which is one of the triggers for his medical condition. The result is the same in respect of Air Canada’s offer to issue a letter for Mr. Kruger to produce to Air Canada personnel to confirm his disability-related needs and address any potential problem he may encounter: it provides no insurance to Mr. Kruger, until he is in the aircraft, that his disability-related needs will be accommodated.
 Air Canada’s failure to apply its seating policy and assign the required seat to meet Mr. Kruger’s disability-related needs when the request was made in December 2014, resulting in Mr. Kruger having to wait until 24 hours prior to departure to obtain confirmation that his seating needs would be accommodated, constitutes an obstacle to Mr. Kruger’s mobility.
 Air Canada argues that it would represent an undue hardship to modify its policy and procedures for a single passenger. However, the policy itself, when applied correctly, ensures a confirmation of the seating needs in advance of travel. In terms of procedures, Air Canada has already modified them to create a tailored approach to ensure that the Meda Desk accommodates Mr. Kruger’s seating needs.
 Air Canada did not demonstrate that it would have faced undue hardship that would have prevented it from applying its policy and procedures and confirming Mr. Kruger’s seat when he contacted Air Canada in December 2014. As Air Canada did not justify the existence of the obstacle, the Agency finds that the obstacle to Mr. Kruger’s mobility is undue.
ISSUE 3: DID THE MANNER IN WHICH MR. KRUGER ALLEGES HE WAS TREATED BY AIR CANADA'S FLIGHT ATTENDANT(S) WHEN REACHING HIS SEAT ON HIS OUTBOUND FLIGHT, AND THE COMMUNICATION OF DISABILITY-RELATED INFORMATION TO THE FLIGHT CREW, CONSTITUTE UNDUE OBSTACLES TO MR. KRUGER'S MOBILITY? IF SO, WHAT CORRECTIVE MEASURES SHOULD BE TAKEN?
Facts, evidence and submissions
Positions of the parties
 Mr. Kruger states that, prior to take-off on April 21, 2015, Ms. Gaetan, a flight attendant with Air Canada, “first advised emphatically” that he and his wife could not remain where they were seated, due to these seats being marked for “Air Crew Only”. Ms. Gaetan asked that Mr. Kruger and his wife move forward to vacant seats. After Mr. Kruger indicated that they were in their assigned seats, Ms. Gaetan asked to see their boarding passes, verified them and still insisted that Mr. Kruger and his wife change seats.
 Mr. Kruger then informed Ms. Gaetan that he needed his assigned seat for a medical reason. Mr. Kruger submits that Ms. Gaetan then questioned, in front of the other passengers, what medical condition could require him to sit in the back row. Mr. Kruger explained his medical condition and reiterated that he would not change seats. According to Mr. Kruger, Ms. Gaetan responded in a huff stating “We’ll see about this”. Mr. Kruger submits that Ms. Gaetan appeared “generally disgusted” with the fact that he would not change seats.
 Mr. Kruger states that the Flight Service Director, Ms. Lydia Basta, came back and apologized for the upset, assuring Mr. Kruger that he and his wife would not have to change seats. Nonetheless, Mr. Kruger states that he had to take medication to settle down after this incident. Mr. Kruger adds that he should not have to divulge his medical situation in front of other passengers and that the in-flight crew should have been informed of his disability-related needs given the “DO NOT UNSEAT MEDICAL” note in his PNR.
 Air Canada explains that a SSR appearing in the passenger’s file is appended to the passenger’s DCS record, “which airport agents see”, and on the PIL - equivalent to the in-flight manifest - which is accessible by in-flight personnel. Additionally, “if there is a special process or particular hand[l]ing [that] is required”, the Meda Desk will e-mail the passenger’s flight details to Cabin Safety who is responsible to communicate with In-Flight Services to ensure that in-flight personnel is notified.
 In terms of Mr. Kruger’s outbound flight, Ms. Gaetan states that although she does not recall the exact date of the flight, she is “informed and verily believe[s]” that she was on duty as a flight attendant. She adds that, apart from the exact date of the flight, she has a “good recollection of the details of [her] part in these events”.
 Ms. Gaetan states that when she noticed that there were passengers seated in the last row of the aircraft, she assumed that Mr. Kruger and his wife had misread their boarding passes, and politely asked to see them. She explains that, as the flight was not at full capacity, the seats in question would normally have been set aside for crew members and would not have been assigned to passengers. Ms. Gaetan adds that she was then “made aware” that these seats had been assigned to Mr. Kruger for a medical reason, at which moment she assured him that he could remain seated in his assigned seat. Ms. Gaetan states that she then verbally conveyed the reason as to why the seats were taken to the other flight crew members.
 Air Canada’s Flight Service Director, Lydia Basta, states that Mr. Kruger’s “medical situation” was not outlined on the pre-flight manifest, which usually provides flight attendants with the information pertaining to accommodation measures needed by passengers. Ms. Basta states that she was informed by Ms. Gaetan of Mr. Kruger’s seating requirements and further confirmed with the gate agent that, for medical reasons, Mr. Kruger needed to be assigned a seat in the last row of the aircraft. Ms. Basta adds that she then reassured Mr. Kruger that he could remain seated in his seat and confirmed with the flight crew that Mr. Kruger needed to remain in that specific seat.
 Air Canada states that, to further ease Mr. Kruger’s travel experience in the future, the long-term medical file created for him now also contains a customized Meda SSR indicating that Mr. Kruger is approved for special seating and pre-boarding, which instructs the Meda Desk to send an e-mail to Cabin Safety and In-Flight Services regarding his seating needs to ensure that he is not questioned or unseated by Air Canada personnel.
Analysis and findings
 Even though Mr. Kruger called months in advance of his flight and his PNR set out “DO NOT UNSEAT MEDICAL”, Mr. Kruger’s disability-related needs were not identified on the pre‑flight manifest. Contrary to Air Canada’s procedures, there is no indication that the Meda Desk sent an e-mail to Cabin Safety advising In-Flight Services of Mr. Kruger’s disability‑related needs. Air Canada provided no justification to explain the fact that Mr. Kruger’s disability‑related information was not relayed per its policy and procedures.
 As the evidence of the parties concerning the manner in which Mr. Kruger was treated by Air Canada’s flight attendants is contradictory, the Agency must decide whether Mr. Kruger has provided sufficient evidence to support his position to outweigh the opposing evidence presented by Air Canada.
 On the one hand, Mr. Kruger provides a detailed description of the incident, including the names of the employees involved and the specifics of what was discussed. On the other hand, Ms. Gaetan is vague, namely as it relates to who would have informed her of Mr. Kruger’s disability when she states that she was “made aware” that Mr. Kruger’s seats had been assigned for a medical reason, without specifying who would have provided this information. This favours Mr. Kruger’s position that he is the one who informed Ms. Gaetan of his disability after having been questioned to that effect. This questioning, especially in front of other passengers, should not have taken place. Once Mr. Kruger produced his boarding pass, Ms. Gaetan should have recognized that Mr. Kruger was in his assigned seat, and should not have further questioned his seating and further along, his disability. If some doubt remained, Ms. Gaetan should have confirmed the seating assignment through another means.
 The communication of Mr. Kruger’s disability-related information by Air Canada personnel was ineffective, resulting in an improper handling of the situation by Air Canada’s flight attendants. The Agency finds that this constitutes an obstacle to Mr. Kruger’s mobility.
 Air Canada did not present evidence to indicate that there were constraints that prevented it from applying its procedures and conveying Mr. Kruger’s disability-related needs to its personnel. Air Canada did not justify the existence of the obstacle, such that the Agency finds that the obstacle to Mr. Kruger’s mobility is undue.
 The Agency finds that the following constitute undue obstacles in this case:
- Air Canada’s failure to apply its seating policy and assign the required seat to meet Mr. Kruger’s disability-related needs when the request was made in December 2014, resulting in Mr. Kruger having to wait until 24 hours prior to departure to obtain confirmation that his seating needs would be accommodated.
- The ineffectiveness in communicating Mr. Kruger’s disability-related information, resulting in an improper handling of the situation by Air Canada’s flight attendants.
 As such, the Agency orders Air Canada to:
- Enforce the proper application of its seating policy and procedures by its personnel at all times to provide Mr. Kruger with the insurance that when he contacts Air Canada more than 24 hours prior to his departure, his disability-related needs will be accommodated;
- Enforce the proper application of its policy and procedures regarding the communication of disability-related needs to in-flight personnel by its personnel at all times, including the requirement that flight manifests clearly inform in-flight personnel of instances where passengers have been assigned particular seats to accommodate their disability-related needs;
- Confirm that, once updated, Air Canada’s reservation system will automatically reassign seats and transfer information on passengers’ disability-related needs, including any requirement for specific seating, when there is a change of aircraft type. In the interim, Air Canada personnel must contact Mr. Kruger and any other travellers with disability‑related needs for specific seating to discuss seating arrangements when a change in aircraft type takes place; and,
- Upon contacting the Meda Desk, provide Mr. Kruger and other travellers with disability‑related needs with a permanent file number/identifier preventing them from having to resubmit their medical information with each new call or reservation.
 Air Canada has until December 12, 2016 to demonstrate, to the satisfaction of the Agency, that it complies with this order.
 In respect of its new reservation system, Air Canada is ordered to report to the Agency on the progress of this project (i.e. timeframes and implementation deadline) within 18 months of this decision, at the latest on May 14, 2018.