Decision No. 52-AT-A-2018

August 7, 2018

APPLICATION by Khalilah Bruzual against WestJet pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) regarding her disability-related needs.

Case number: 
18-00671

SUMMARY

[1] Khalilah Bruzual has fibromyalgia and bursitis. WestJet denied two requests for an attendant, two requests for wheelchair assistance, and one request for “medical seating” for a trip that Ms. Bruzual was planning to an unspecified destination. She submits that her treatment by WestJet resulted in disability-related episodes that negatively affected her body. Ms. Bruzual asks that she be permitted to travel with an attendant and provided seating with additional leg room. She also asks that airlines be more informed about the needs of persons with fibromyalgia and bursitis.

[2] WestJet submits that the medical evidence that it was provided did not support a need for an attendant nor a seat with additional leg room. WestJet does not explain why it denied Ms. Bruzual’s request for wheelchair assistance.

[3] WestJet submits that Ms. Bruzual terminated the medical process prior to WestJet completing its assessment of the accommodations that she requires. According to WestJet, Ms. Bruzual’s fitness to travel must be determined before she will be permitted to travel with WestJet.

[4] This Decision addresses whether Ms. Bruzual is a person with a disability and, if so, whether she encountered an obstacle.

[5] For the reasons that follow, the Agency finds that Ms. Bruzual is a person with a disability. The Agency further finds that although Ms. Bruzual’s evidence does not establish that she requires an attendant, she nevertheless encountered an obstacle in respect of having been denied wheelchair assistance and seating with additional leg room.

BACKGROUND

[6] On September 24, 2017, Ms. Bruzual submitted a medical information (MEDIF) form to WestJet. The MEDIF form was dated September 8, 2017 and indicated that Ms. Bruzual required wheelchair assistance for distances, an attendant, and a seat with additional leg room.

[7] On September 25, 2017, WestJet advised Ms. Bruzual that it would not be providing her “any accommodation” as the MEDIF form did not support a need for assistance beyond what its personnel provide.

[8] On September 28, 2017, WestJet e-mailed Ms. Bruzual, noting that the application that she had filed with the Agency included more medical information than was provided on the MEDIF form. WestJet requested additional information from Ms. Bruzual’s doctor.

[9] On October 16, 2017, Ms. Bruzual re-submitted the MEDIF form and included a letter from her physician, Dr. Dutczak.

[10] On October 23, 2017, WestJet advised that it had assessed the new information but nevertheless denied Ms. Bruzual’s request for an attendant and seating with additional leg room.

[11] On October 24, 2017, Ms. Bruzual advised WestJet, with a copy to the Agency, that she no longer wished to travel with WestJet.

[12] On October 30, 2017, WestJet e-mailed Ms. Bruzual to advise that it required additional information before it could make a final decision on the requested accommodations. WestJet indicated that it had intended to contact Dr. Dutczak but assumed that permission to do so had been withdrawn once Ms. Bruzual advised that she would not be travelling with WestJet.

[13] On February 7, 2018, Ms. Bruzual filed an application with the Agency. The application included the September 8 MEDIF form and the October 16 letter from her doctor. Pleadings opened on February 27, 2018. WestJet filed its answer on March 13, 2018. Ms. Bruzual was given until April 30, 2018 to file a reply but never did.

THE LAW

[14] The application was filed pursuant to 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.

[15] 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 will consider whether Ms. Bruzual is a person with a disability for the purposes of Part V of the CTA.

Part 2: If it is determined that Ms. Bruzual is a person with a disability for the purposes of Part V of the CTA, the Agency will determine whether she 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 Ms. Bruzual is a person with a disability and that she encountered an obstacle, the Agency provides WestJet 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.

[16] This Decision addresses the first and second parts of this approach.

IS MS. BRUZUAL A PERSON WITH A DISABILITY?

Positions of the parties

[17] Ms. Bruzual submits that she has fibromyalgia and bursitis.

[18] The MEDIF form indicates that Ms. Bruzual has regional pain syndrome resulting from a motor vehicle accident. The symptoms are described as “significant myalgia including neck - back pain involving all extremities”.

[19] The doctor’s letter dated October 16, 2017 describes the symptoms as a “flare-up or full blown episode”, which includes:

  • consistent local and/or random spurts of pain;
  • mild to severe shaking;
  • impacted speech and cognitive ability; and,
  • inability to walk unassisted.

[20] WestJet does not contest that Ms. Bruzual is a person with a disability.

Analysis and determinations

[21] Based on the uncontested diagnosis of fibromyalgia and bursitis and related symptoms, the Agency finds that Ms. Bruzual is a person with a disability.

DID MS. BRUZUAL ENCOUNTER AN OBSTACLE?

Positions of the parties

MS. BRUZUAL’S POSITION

[22] Ms. Bruzual submits that as a person with fibromyalgia and bursitis, she requires an attendant when she travels and seating with additional leg room. She submits that WestJet’s denial of these accommodation measures resulted in an obstacle to her mobility.

[23] The MEDIF form indicates that Ms. Bruzual requires an attendant but that she can:

  • don an emergency oxygen mask;
  • use the onboard washroom unaided; and,
  • administer medication independently.

[24] The MEDIF form further indicates that Ms. Bruzual requires assistance with food (opening containers) and assistance in the event of an evacuation scenario. The MEDIF form also lists a need for wheelchair assistance over distances. The MEDIF form otherwise indicates that the prognosis for a safe trip is “good” and that there are no cognitive/behavioural or psychiatric conditions that could affect Ms. Bruzual’s ability to travel.

[25] In his letter, Dr. Dutczak states that Ms. Bruzual requires medical seating and a personal attendant in addition to wheelchair assistance. In addition, he indicates that Ms. Bruzual would require assistance obtaining her medication, assistance loading and unloading her luggage from the overhead compartment and in the event of an emergency. Finally, he states that medical seating would reduce the discomfort that Ms. Bruzual would experience due to the length of the flights, as it would allow her to stretch in order to alleviate any pain that her body may experience.

WESTJET’S POSITION

[26] WestJet submits that the MEDIF form did not indicate that Ms. Bruzual has bursitis or that she requires seating with additional leg room. According to WestJet, all of the stated reasons for Ms. Bruzual’s need for an attendant are in relation to services that its personnel provide (including assistance in an evacuation). WestJet submits that Ms. Bruzual terminated the medical process prior to WestJet completing its assessment of the accommodations that she requires. According to WestJet, there is an outstanding issue regarding Ms. Bruzual’s fitness to travel should she experience an in-flight flare up. WestJet advises that it is concerned that a flight will have to be diverted if Ms. Bruzual experiences such a flare up.

Analysis and determinations

ATTENDANT

[27] Ms. Bruzual’s request that an attendant accompany her at no cost was initially denied because the accommodations requested in the MEDIF form, which is the only information WestJet had at the time, are ones that airline personnel provide. Although the MEDIF form indicates that Ms. Bruzual requires assistance in the event of an evacuation, the form also indicates that she can move to the washroom on her own, suggesting that she could evacuate an aircraft with a level of assistance from airline personnel comparable to that provided to all passengers during an emergency. As such, the MEDIF form provided no indication that in-flight personnel could not accommodate Ms. Bruzual’s disability-related needs.

[28] Ms. Bruzual’s attendant-related request was denied a second time because the letter from Dr. Dutczak still did not establish that she required one. Moreover, information in the letter was inconsistent with information in the MEDIF from. In his letter, Dr. Dutczak indicates that an attendant is needed to provide assistance “obtaining” medication; accessing overhead luggage; moving to the washroom; and assisting in the event of a disability-related “flare up”. Assistance obtaining medication, assistance with overhead luggage, and assistance to the washroom are services that airline personnel provide. The need for such accommodations does not support a requirement that an airline allow an attendant to accompany a passenger at no cost.

[29] It is not clear if the assistance that Ms. Bruzual requires in the event of a flare up means that she cannot travel without an attendant. The MEDIF form completed by Dr. Dutczak indicates that the prognosis for a safe trip by Ms. Bruzual is good, that there are no cognitive impairments affecting Ms. Bruzual’s ability to travel, and that Ms. Bruzual requires an attendant but that this person need not be medically qualified. His letter states that Ms. Bruzual risks an in-flight medical emergency, part of which might include compromised cognitive ability, and that an attendant would need to have “detailed knowledge” of how to assist Ms. Bruzual in the event of a flare up. There is some tension between the tone and content of these two documents. Where discrepancies exist in the evidence submitted by a party, it can affect the weight given to that evidence. The Agency therefore finds that the record before it does not establish that Ms. Bruzual faced an obstacle due to the denial of her request to have an attendant accompany her at no cost.

[30] This finding does not preclude the possibility that Ms. Bruzual might be able to establish such a need in the future through clearer and more consistent medical evidence. Should Ms. Bruzual wish to travel with WestJet in the future and agree to enter into the medical assessment process again, WestJet is reminded of the importance of maximizing access to transportation services – up to the point of undue hardship – and ensuring that all potential accommodation measures are explored before deciding that a passenger is unfit to travel.

WHEELCHAIR ASSISTANCE

[31] WestJet twice denied Ms. Bruzual’s request for wheelchair assistance. In neither instance was an explanation provided to Ms. Bruzual, and WestJet did not address this matter in its answer. The need for wheelchair assistance over distances was indicated in the MEDIF form and Dr. Dutczak’s letter. The Agency therefore finds that in this respect, Ms. Bruzual was denied an accommodation that she requires and thus, encountered an obstacle.

SEATING WITH ADDITIONAL LEG ROOM

[32] Ms. Bruzual was initially not approved for a seat with additional leg room because the MEDIF form did not state that additional space was needed, nor did it indicate that Ms. Bruzual has bursitis. Ms. Bruzual was denied a seat with additional leg room a second time because, according to WestJet, the letter from Dr. Dutczak indicates that additional leg room is needed to minimize discomfort and to alleviate “any pain her body may experience.” This, WestJet submits, indicates that Ms. Bruzual only requires the extra leg room to alleviate pain that may occur in the event of a flare up. The evidence, however, indicates that Ms. Bruzual has constant pain and the additional leg room is needed to alleviate that pain. This supports the need for a seat with additional leg room.

[33] In its answer, WestJet points out that it was Ms. Bruzual who decided not to travel with WestJet. This decision, WestJet submits, terminated the medical assessment process prior to WestJet completing its assessment. WestJet appears to be suggesting that even if Ms. Bruzual encountered an obstacle, it was due to her own actions.

[34] The argument that Ms. Bruzual terminated the medical assessment process prematurely is not persuasive. In its e-mail dated October 23, 2017, WestJet advised Ms. Bruzual that “we maintain our decision to decline you for an attendant and medical seating.” There was no indication that additional information was needed from Ms. Bruzual’s doctor or that there were going to be any additional steps in the medical assessment process. The e-mail did include a suggestion that Ms. Bruzual delay travel if she experienced a flare up, but there was otherwise no indication that Ms. Bruzual might not be fit to travel. It would therefore have been reasonable for Ms. Bruzual to infer that the assessment process was complete as of October 23, 2017. It was not until October 30, 2017, after Ms. Bruzual had voiced her dissatisfaction with WestJet’s response, with a copy to Agency personnel, that WestJet sent a follow-up e-mail advising that it had not completed its assessment of her needs. Had Ms. Bruzual elected to travel without voicing her frustration to WestJet and the Agency, she would in all likelihood have received no accommodation.

[35] In light of the above, the Agency finds that Ms. Bruzual encountered an obstacle when she was denied seating with additional leg room.

NEXT STEPS

[36] Having found that Ms. Bruzual is a person with a disability and that she encountered obstacles, the Agency is providing WestJet with an opportunity to either:

  • explain how it proposes to remove the obstacles 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 obstacles without experiencing undue hardship.

[37] WestJet has until August 21, 2018 to file its answer, following which Ms. Bruzual will have three business days to file her reply.

Member(s)

Scott Streiner
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