Decision No. 597-AT-A-2004

November 3, 2004

With Decision No. 142-AT-A-2005

November 3, 2004

APPLICATION by Elliott Richman pursuant to subsection 172(1) of the Canada Transportation Act, S.C. 1996, c. 10, concerning the lack of TTY (telephone-teletype device for persons who are deaf or hard of hearing) access to Singapore Airline's Canadian reservation system.

File No. U3570/99-64


APPLICATION

[1] On November 26, 1999, Elliott Richman filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] On January 26, 2000, Singapore Airlines Limited (hereinafter Singapore Airlines) filed its answer. Mr. Richman did not file a reply.

BACKGROUND

[3] Pursuant to section 172 of the Canada Transportation Act (hereinafter the CTA), the Agency may, on application, inquire into a matter to determine whether there is an undue obstacle to the mobility of persons with disabilities. The Agency's determination in each case is based on the merits of the individual case before it.

[4] Following a preliminary review of this application, however, the Agency determined that any decision rendered in this application might have broad implications for foreign carriers operating in the Canadian transportation network. In addition, at that point in time, the Agency concluded that it was unable to determine whether an undue obstacle to the mobility of persons with disabilities existed in this case without first considering the foreign air industry in general, as well as the implications of any Agency decision on foreign air carriers. Consequently, the Agency found it necessary to conduct consultations with foreign carriers who operate to and from Canada in order to gather sufficient information prior to determining what constituted an appropriate level of service with respect to communications for the community of persons with hearing impairments and on March 9, 2000, the Agency adjourned proceedings in this application.

[5] On June 3, 2004, the Agency released a Communications Code of Practice entitled Removing Communication Barriers for Travellers with Disabilities (hereinafter the Communications Code of Practice). Extensive consultations took place on communication barriers faced by travellers with disabilities. This included such matters as telecommunication systems for reservations and information used by transportation service providers. In developing the Communications Code of Practice, the Agency also considered the comments submitted by the foreign carriers who were consulted when proceedings were adjourned in this and other applications. Although the provisions of the Communications Code of Practice do not specifically apply to foreign carriers, they reflect the Agency's opinions on the importance of TTYs to the accessibility of travel by persons with disabilities and the general principle, applicable to all operations into and out of Canada, that persons with disabilities should have equal access to transportation services.

ISSUE

[6] The issue to be addressed is whether the lack of TTY access to Singapore Airline's Canadian reservation system constituted an undue obstacle to Mr. Richman's mobility and, if so, what corrective measures should be taken.

FACTS

[7] Mr. Richman is deaf and uses a TTY to communicate by telephone. In the December 1999 issue of The Globe and Mail's Report on Business Magazine, Mr. Richman noted that Singapore Airlines had placed a reservation number for Western and Eastern Canada; however, there was no equivalent TTY number.

[8] Singapore Airlines does not have a TTY line. Singapore Airlines indicates that it proposes to institute TTY access to its Canadian reservation system by utilizing the resources of the Message Relay Centre (hereinafter the MRC) of Bell Canada/BC Tel (now Telus Corporation).

POSITIONS OF THE PARTIES

[9] Mr. Richman submits that all of his telecommunications take place through TTYs and that Singapore Airlines' actions of only advertising its "1-800 hearing line" poses an undue hardship for him.

[10] Mr. Richman indicates that Singapore Airlines is not complying with past Agency decisions that determined that carriers should publish a TTY number in all company advertisements.

[11] Singapore Airlines states that in over a decade of operating scheduled services to Canada and having a dedicated reservation facility in this country, it has never received any request from persons who are deaf or hard of hearing for any assistance with access.

[12] Singapore Airlines notes that it is aware of Agency Decision No. 487-AT-A-1999 wherein the Agency concluded that:

...the Bell Relay System does not provide an independent means of communication. The Agency finds the obstacle to be undue as TTYs are easily available, there is a limited cost associated with the provision of a TTY line and Lufthansa is one of the largest international air carriers that operates to and from Canada.

[13] However, Singapore Airlines submits that the use of the MRC is a well accepted practice by persons who are deaf or hard of hearing. Singapore Airlines asserts that the initiative to develop the MRC concept was sponsored by the Canadian Hearing Society in order to provide TTY access to businesses and services where direct access could be an obstacle to people who are deaf or hard of hearing. Singapore Airlines maintains, therefore, that a service developed at the request of the "handicap interest group" with the mandate to assist persons who are deaf or hard of hearing, and determined by that interest group to adequately service its constituency could not be construed by the Agency as an "undue obstacle" pursuant to the provisions of section 172(1) of the CTA.

[14] Singapore Airlines also submits that other direct access means of communications are available such as facsimile, e-mail and Web sites and it notes that Mr. Richman's application was filed by e-mail.

[15] Further, Singapore Airlines questions the Agency's requirement that persons with hearing impairments require direct access when statistically, over 95 percent of bookings with Singapore Airlines involve a travel agent. It submits that it is unaware of any retail travel operations that provide their customers with TTY facilities and that notwithstanding the fact that direct booking telephone contact numbers for Canadian passengers are contained in foreign carrier public media, the practice of Canadians is to book their travel through intermediaries and internet access.

[16] Singapore Airlines adds that while the capital expense and servicing costs for a TTY are not of a "major nature", it is an additional expense for an air carrier that has had no requests for such service. Singapore Airlines is of the opinion that utilizing the MRC service will allow persons with hearing impairments to have an immediate response to their inquiry, 24 hours a day, 7 days a week.

[17] Based on the foregoing, Singapore Airlines concludes that its proposal to establish and publicize TTY contacts through the utilization of MRC resources is more than adequate to meet the requirements of Section 172(1) of the CTA.

ANALYSIS AND FINDINGS

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

[19] An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. Richman is deaf and, as such, is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[20] To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.

Whether the applicant's mobility was restricted or limited by an obstacle

[21] The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.

[22] In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.

The case at hand

[23] Mr. Richman indicated that all of his telecommunications take place through TTYs and that Singapore Airlines' actions of only advertising its "1-800 hearing line" poses an undue hardship for him.

[24] The Agency is of the opinion that the ability to communicate independently by telephone is essential for all travellers, including persons who are deaf or hard of hearing, and, as such, access to TTY lines is required. Although Singapore Airlines does provide alternate ways to communicate with the carrier such as by facsimile, e-mail, and through Web sites, the Agency finds that these alternatives are not necessarily accessible to all persons with disabilities and do not allow for "real-time" communication, which is afforded through the use of telephones and TTYs. The Agency also notes that, in many cases, for persons who are deaf, the use of a TTY is considered the most effective way to communicate.

[25] Singapore Airlines does not have a TTY line and it submitted that it proposes to institute TTY access to its Canadian reservation system by utilizing the resources of the MRC of Bell Canada/BC Tel (now Telus Corporation). The MRC provides teletypewriter or TTY users and others with the ability to communicate with one another by phone with the help of specially trained operators.

[26] The Agency finds that although the MRC provides a method for persons who are deaf or hard of hearing to communicate with all others, it does not provide them with an independent means of communication. The Agency is of the opinion that large transportation service providers, such as Singapore Airlines, should provide persons who are deaf or hard of hearing with an independent way to communicate with them.

[27] The Agency finds that Singapore Airline's failure to provide TTY access to its Canadian reservation system constituted an obstacle to Mr. Richman's mobility.

Whether the obstacle was undue

[28] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

[29] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.

The case at hand

[30] Having found that Singapore Airline's failure to provide TTY access to its Canadian reservation system constituted an obstacle to Mr. Richman's mobility, the Agency must now determine whether the obstacle was undue.

[31] Singapore Airlines noted that although the capital expense and servicing costs for a TTY are not of a "major nature", 95% of bookings for travel with the carrier are made through a travel agent and no request has been made by the deaf or hard of hearing for a TTY service. The Agency is of the opinion that persons with disabilities should have the same options as other travellers and, in this case, they should have the option of booking directly with the carrier. Persons with disabilities have the same rights as others to full participation in all aspects of society and there can be no doubt that equal access to transportation and services is critical to the ability of persons with disabilities to exercise that right. Persons with disabilities want as much independence in life as possible and their use of transportation services is no exception. In this case, these principles can be respected through the provision of a TTY line with the associated limited cost.

[32] The Agency notes that the foregoing is consistent with the Communications Code of Practice which, under the heading "Telecommunications Systems", provides that:

Transportation service providers who use telephone lines for reservations, information or any services related to the successful execution of a trip are to provide an equal level of service to passengers with disabilities through the use of alternative communication systems, such as a TTY line.

[33] The Agency is aware that the provisions of the Communications Code of Practice do not specifically apply to foreign carriers. However, it does reflect the Agency's opinions on the importance of TTYs to the accessibility of travel by persons with disabilities and the general principle, applicable to all operations into and out of Canada, that persons with disabilities should have equal access to transportation services.

[34] Accordingly, the Agency finds that Singapore Airline's failure to provide TTY access to its Canadian reservation system constituted an undue obstacle to Mr. Richman's mobility.

CONCLUSION

[35] Based on the above findings, the Agency finds that the absence of a TTY number constituted an undue obstacle to Mr. Richman's mobility.

[36] Accordingly, the Agency hereby requires Singapore Airlines to:

  • complete the installation of a TTY reservation line within sixty (60) days from the date of this Decision; and provide the Agency with a written confirmation that the TTY line has been installed;
  • ensure that the TTY number is included on its Web site, in all advertisements, and in all future publications providing information about the air carrier that is otherwise available to the general public; and provide the Agency with confirmation that this is being done within sixty (60) days.

[37] Following its review of Singapore Airlines' submission with respect to compliance with the Agency's directive, the Agency will determine whether further action is required.

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