Decision No. 59-AT-A-2018

October 25, 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).

Case number: 
18-00671

SUMMARY

[1] Ms. 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] For the reasons set out below, the Agency finds that the measures proposed by WestJet address the obstacles to Ms. Bruzual’s mobility. Therefore, the Agency orders WestJet to implement the following measures:

  • provide Ms. Bruzual with wheelchair assistance, upon request; and
  • assign Ms. Bruzual a seat that provides additional leg room, upon request.

BACKGROUND

[3] In Decision No. 52-AT-A-2018 (Decision), the Canadian Transportation Agency (Agency) found that Ms. Bruzual is a person with a disability and that she encountered an obstacle when WestJet denied her request for wheelchair assistance and additional leg room. WestJet was provided an opportunity to either:

  • explain how it proposes to remove the obstacles through a general modification to a 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.

[4] On August 22, 2018, WestJet filed its answer to the Decision and proposed measures to remove the obstacle to Ms. Bruzual mobility. The Agency granted Ms. Bruzual’s request for an extension of time until October 15, 2018 to file her reply. Ms. Bruzual did not file a reply.

THE LAW

[5] 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.

[6] 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 the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA.

Part 2: If it is determined that the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA, the Agency determines whether they 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 the applicant, or the person on whose behalf the application is being filed, is a person with a disability and that they encountered an obstacle, the Agency provides the respondent 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.

[7] In this Decision, the Agency will address the third part identified above.

WESTJET’S POSITION

Wheelchair assistance

[8] WestJet disagrees that wheelchair assistance was denied to Ms. Bruzual. WestJet submits that it made it clear through links and references both in its response to Ms. Bruzual and on WestJet’s website that wheelchair requests are a service offered to all passengers who require it.

[9] WestJet admits that in its correspondence to Ms. Bruzual, there is a statement that reads “Therefore we are not providing you with any accommodation”, which could lead one to believe that even wheelchair assistance was denied.

[10] WestJet advises that it is making changes to the “response forms” and the “application documentation” to clarify that the forms should not be used if the only service requested is wheelchair assistance.

Additional leg room

[11] WestJet submits that it had no evidence on file confirming “constant” extreme pain, only extreme pain during “flare ups”. However, WestJet admits that the doctor was recommending additional leg room to assist with pain management.

[12] WestJet indicates that, upon further consideration, and in light of the doctor’s note and Ms. Bruzual unique circumstances, it is approving Ms. Bruzual’s request for additional leg room for future travel.

ANALYSIS AND DETERMINATIONS

[13] The Agency finds that WestJet’s acknowledgement that its correspondence to Ms. Bruzual may have led her to believe that wheelchair assistance was being denied, its failure to take into account the doctor’s recommendation regarding leg room, and the fact that it is prepared to address these matters and is not making a claim of undue hardship mean that Ms. Bruzual encountered undue obstacles to her mobility within the meaning of subsection 172(1) of the CTA.

[14] The Agency finds that the measures to which WestJet has committed address these obstacles.

ORDER

[15] Therefore, the Agency orders WestJet to implement the following measures:

  • provide Ms. Bruzual with wheelchair assistance, upon request; and
  • assign Ms. Bruzual a seat that provides additional leg room, upon request.

Member(s)

Scott Streiner
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