Decision No. 481-AT-A-1998

October 6, 1998

October 6, 1998

APPLICATION by Norman Stoakley and his wife pursuant to subsections 172(1) and (3) of the Canada Transportation Act, S.C., 1996, c. 10, regarding the discomfort and inconvenience they were subjected to on Flight No. 942 of Canadian Airlines International Ltd. carrying on business under the firm name and style of either Canadian Airlines International or Canadi*n between Toronto and Halifax on October 30, 1997.

File No. U 3570/98-9


APPLICATION

Norman Stoakley and his wife filed an application with the Canadian Transportation Agency (hereinafter the Agency) with respect to the matter set out in the title.The application was received on June 8, 1998.

ISSUE

The issue to be addressed is whether or not the seats assigned to Mr. and Mrs. Stoakley constituted an undue obstacle to their mobility, and, if so, what corrective measures should be taken.

FACTS

Mr. and Mrs. Stoakley are in their eighties and have arthritis. Due to their disabilities, they had made arrangements with Canadian Airlines International Ltd. carrying on business as either Canadian International or Canadi*n (hereinafter Canadi*n) for specific seating and had requested boarding and deplaning assistance.

Mr. and Mrs. Stoakley were assisted during boarding and to their preferred seats, which were located behind the bulkhead of the first class section. Mrs. Stoakley occupied the window seat and Mr. Stoakley the middle seat. While waiting for the departure of the flight, the passenger who had been assigned the aisle seat beside Mr. Stoakley arrived and sat in his seat. Due to his size/stature, this passenger encroached on Mr. Stoakley's seat space. As a result, the armrest between Mr. and Mrs. Stoakley had to be raised so that Mr. Stoakley could lean into his wife's space, in turn pushing her against the window.

POSITIONS OF THE PARTIES

Mr. and Mrs. Stoakley express their dissatisfaction with the seating arrangements made by Canadi*n from Toronto to Halifax on October 30, 1997. The flight attendant advised them that there were no other seats available on the aircraft and apologized for the inconvenience. Mr. and Mrs. Stoakley state that as a result of the position they were in for the duration of their two-hour flight, and due to the limited space, they both suffered pain associated with their arthritic conditions. Mr. and Mrs. Stoakley are seeking compensation for the discomfort and inconvenience that they were subjected to during their trip. In addition, Mr. and Mrs. Stoakley express concern about the fact that the air carrier has breached safety rules in that the passenger seated beside Mr. Stoakley was not wearing his seat belt.

Canadi*n apologizes for the discomfort and inconvenience that the complainants experienced during their trip. Canadi*n states that it interviewed the Customer Service Director on the flight referred to in the complaint, but she had no recollection of any incident on that flight.

Canadi*n expresses the view that the complaint is one of consumer dissatisfaction, in that it does not address a non-compliance by Canadi*n with the Agency's legislation. To substantiate this claim, Canadi*n explains that Mr. and Mrs. Stoakley's seat requests were honoured and that its commitment to the complainants, as a carrier providing public transportation, has been fulfilled in that transportation from Toronto to Halifax was provided, as agreed.

With respect to the encroachment of the other passenger into Mr. Stoakley's seat space, Canadi*n states that there is little that an air carrier can do in such circumstances and that it is an unfortunate and a very difficult situation which must be handled with the utmost diplomacy for all involved. Canadi*n also submits that, in accordance with the Canadian Human Rights Act, 1976-77, c. 33, s. 1, discrimination against any individual due to, inter alia, a disability is prohibited and that, in some situations, obesity has been treated as a prohibited ground for discrimination on the basis of a "disability". The provisions of this Act apply to all air carriers operating in Canada.

Canadi*n submits that its crews are well versed in the handling of such matters, but, when a flight is full, there are few options for them to consider. Where there are open seats, Canadi*n assures that attempts are made by its crews to rearrange seating in the interest of the comfort of all passengers concerned. They cannot, however, force anyone to move due to another passenger's complaint. In addition, it cannot remove a passenger from the aircraft, except under exceptional circumstances.

With respect to the alleged non-use of a seat belt by the passenger seated next to Mr. Stoakley, Canadi*n advises that it is its policy and a requirement pursuant to Transport Canada's regulations, that all passengers wear seat belts during take-off and landing. As Canadi*n does encounter situations where a passenger requires an extended seat belt, all of its aircraft are equipped with seat belt extensions. Canadi*n adds that it is normal and routine cabin procedure to ensure that all passengers are wearing seat belts during take-off and landing and that its in-flight crews are most diligent in enforcing this requirement.

Canadi*n concludes that, under the circumstances, it is unable to comply with Mr. and Mrs. Stoakley's request for compensation due to the encroachment of the passenger seated next to Mr. Stoakley into Mr. Stoakley's seat space.

Mr. and Mrs. Stoakley refute Canadi*n's allegation that its personnel have no recollection of the incident. In this respect, the complainants submit that upon their return flight, two weeks later, an employee at the carrier's departure desk asked them if they were the couple who had suffered from the subject incident. Moreover, while waiting for their flight in the departure lounge, another employee of the air carrier handed them new boarding passes as more comfortable seats had been reassigned to them.

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

With respect to seating arrangements on board Canadi*n's Flight No. 942, the Agency notes that Mr. and Mrs. Stoakley had requested specific seats, in light of their disabilities, and that they were assigned preferred accessible seats, in accordance with the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR). Accordingly, the Agency finds that Canadi*n has not contravened the provisions of the ATR.

With respect to the encroachment of the passenger seated next to Mr. Stoakley into Mr. Stoakley's seat space, the Agency notes that Canadi*n has procedures in place whereby, if there are open seats, attempts are made by in-flight crews to rearrange seating so as to provide additional space when possible. However, because the subject flight was filled to capacity, there was little that the carrier could do as reassigning seats was not an easy option. Accordingly, although the Agency recognizes that the situation experienced by Mr. and Mrs. Stoakley created an obstacle to their mobility, the Agency finds that this obstacle is not undue in that, under the circumstances, it could not have been easily avoided.

On the issue of the alleged non-use of the seat belt by the passenger seated next to Mr. Stoakley, it should be noted that the Agency does not have jurisdiction over safety-related matters in air transportation. Transport Canada's Canadian Aviation Regulations, SOR/96-433, govern the manner in which air carriers conduct their operations. A copy of this Decision will be provided to Transport Canada for its information.

CONCLUSION

Based on the above findings, the Agency determines that the seating arrangements made on Canadi*n's Flight No. 942 operated between Toronto and Halifax on October 30, 1997 resulted in an obstacle to the mobility of Mr. and Mrs. Stoakley while they travelled. However, the Agency determines that the obstacle is not undue in that, under the circumstances, it could not have been prevented nor eliminated.

With respect to the payment of compensation requested by Mr. and Mrs. Stoakley for the discomfort and inconvenience experienced as a result of the seating arrangements made by Canadi*n on the subject flight, the Agency, pursuant to subsection 172(3) of the Canada Transportation Act, may direct that compensation be paid for any expense incurred by a person with a disability arising out of an undue obstacle to his/her mobility. In the case at hand, since the Agency has determined that the obstacle to the mobility of Mr. and Mrs. Stoakley was not undue, the Agency does not have the jurisdiction to order the payment of compensation.

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