Decision No. 611-A-1990

December 5, 1990

December 5, 1990

APPLICATION by Mr. William Hoch pursuant to subsection 63.3(1) of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.), for an investigation respecting the refusal of Canadian Airlines International Ltd. carrying on business under the firm name and style of either Canadian Airlines International or Canadi*n to carry Mr. Hoch as a passenger on flight CP1837 on May 10, 1990.

File No. D 2360-90/1


BACKGROUND

On July 9, 1990, Mr. William Hoch, Executive Director of the Ontario Division of the Canadian Paraplegic Association (hereinafter the applicant) applied to the National Transportation Agency (hereinafter the Agency) pursuant to subsection 63.3(1) of the National Transportation Act, 1987 (hereinafter the NTA, 1987) requesting that the Agency investigate the right and/or ability of Canadian Airlines International Ltd. carrying on business under the firm name and style of either Canadian Airlines International or Canadi*n (hereinafter Canadian Airlines International) to refuse to carry the applicant from Ottawa to Montreal on flight CP1837 on May 10, 1990.

Section 3 of the NTA, 1987 sets out the national transportation policy. Subparagraph 3(g)(ii) states that "each carrier or mode of transportation, so far as practicable, carries traffic to or from any point in Canada under fares, rates and conditions that do not constitute an undue obstacle to the mobility of persons, including those persons who are disabled,...".

Pursuant to subsection 63.3(1) of the NTA, 1987, the Agency may inquire into a transportation matter in order to determine whether there is an undue obstacle to the mobility of disabled persons. Where the Agency is satisfied that there has been no violation of the applicable regulations, it shall determine that there has been no undue obstacle to the mobility of a disabled person. However, in cases where the Agency determines that there is an undue obstacle to the mobility of disabled persons, the Agency may order corrective measures or the payment of compensation for any expense incurred by a disabled person arising out of the undue obstacle or both.

THE APPLICATION

The applicant is a person with paraplegia. On May 10, 1990, the applicant arrived at the Ottawa International Airport at least one hour in advance of flight time and informed the airline at check-in that he would require assistance to board the aircraft. The applicant claims that there was no indication from the counter clerk that the airline would not be able to carry him. The applicant was subsequently denied boarding because of his inability to access the aircraft on his own. The applicant asked the Agency to investigate pursuant to section 63 [sic] of the NTA, 1987 the right and/or ability of the captain and the airline to refuse to carry him.

The applicant did, however, fly to his destination with Intair Inc. whose improper ground handling caused damage to his suit at a cost of $43.63. The applicant asked that he be compensated for that amount by Canadian Airlines International as it was its refusal to carry him which forced him to travel with Intair Inc.

The applicant further requested that the Agency contact him concerning its investigation and report its findings to him in order that he could pursue "these significant discriminatory problems" with the Canadian Human Rights Commission.

THE ANSWER

By letter dated August 10, 1990, Canadian Airlines International provided an answer to the application. Canadian Airlines International explained that the flight in question is operated by Ontario Express Ltd. carrying on business as Canadian Partner/Partenaire Canadien (hereinafter Canadian Partner). As Canadian Partner shares the Canadian Airlines International designator and since reservations and ground services are being handled by Canadian Airlines International, they accept responsibility for confirming the booking on that flight. Canadian Airlines International apologized for the inconvenience and explained that the applicant had been "incorrectly booked to travel on a Jetstream 31 aircraft which is not designed for the carriage of paraplegic persons who are not self-sufficient.". The reservations agent should have been familiar with the policy and advised him accordingly at the time of booking.

Canadian Airlines International also explained that airport agents are not required to "carry" passengers on board an aircraft due to the possible risk of serious injury and that the actions taken were intended to ensure the personal health and safety of both the applicant as well as its employees and that Canadian Airlines International is not in a position to compromise safety. "Moreover the right to refuse unsafe work is given to employees under Section 85 of the Canada Labour Code...".

Canadian Airlines International advised that the management of Canadian Partner is exploring with the manufacturer of the Jetstream 31 aircraft and others, the development of a device that would allow dignified access by non self-reliant passengers to the aircraft.

Canadian Airlines International forwarded a cheque to reimburse the applicant the cost of the repairs to his suit as well as a future travel credit.

THE REPLY

On October 9, 1990, the reply to the answer of Canadian Airlines International was received. The applicant was pleased that Canadian Airlines International had accepted responsibility but was not pleased with the amount of the travel credit sent by Canadian Airlines International. He felt that the time, embarrassment and shame placed upon him by the staff of Canadian Airlines International should be dealt with further. The applicant also felt that Canadian Airlines International has a prejudicial and perhaps discriminatory definition of not self-reliant and not self-sufficient and that these questions require an answer.

Furthermore, the applicant refuted the right of Canadian Airlines International to cite the Canada Labour Code, R.S.C., 1985, c. L-2 (3rd Supp.) to "discriminate against his disability.".

The applicant felt that too much discretion and legislative authority has been left with the personnel of airlines and the airlines themselves, and in light of the inconsistency of aircraft operation by Canadian Airlines International and other air carriers within Canada to adequately and humanely carry disabled persons, he asked that the Agency explore four avenues of recourse.

  1. The Agency order Canadian Airlines International to operate within the moral framework of the Canadian Constitution rather than the purely economic model which it seems to follow.
  2. The Agency devise legislation which would force carriers such as Canadian Airlines International to deal with persons with special needs in a dignified, humane and supportive way.
  3. The Agency order Canadian Airlines International to pay a significantly increased settlement or order Canadian Airlines International to work with the Canadian Paraplegic Association to devise procedures, policies and operations related to the needs of special needs passengers.
  4. Should these issues require further clarification, a hearing of the members of the Agency be convened to place the facts concerning this incident on the record.

The applicant stated that it was his personal concern that the airline had missed the real issue which was that disabled persons have rights enshrined in the Constitution and that they will use those rights to force carriers to change their methods of operation.

ANALYSIS OF THE ISSUES

The Agency understands that it is common practice for Canadian Airlines International to accept bookings through its computer reservations system for flights operated by Canadian Partner. In this case, although the booking was made by the travel agent of the applicant through an employee of Canadian Airlines International, the actual flight was operated by Canadian Partner. Canadian Airlines International has accepted the responsibility of confirming the booking of the flight and due to the inconvenience experienced by the applicant forwarded a cheque to reimburse the cost of repairs to his suit as well as a travel credit.

The Agency recognizes that errors by airline personnel in the performance of their duties can and do happen and that these errors are generally of an isolated nature unlikely to be repeated once brought to the attention of the employee in question.

However, although the personnel of Canadian Airlines International would have been responsible for the booking, the policy itself which was incorrectly applied by the reservations agent, is one established by the management of Canadian Partner, and as such is the responsibility of that carrier. In a similar application filed by Ms. Cindy Trottier against Canadian Partner, the Agency determined that the policy of Canadian Partner to refuse carriage of certain disabled persons on board small aircraft constitutes an undue obstacle to the mobility of disabled persons, which is contrary to the objective set out in subparagraph 3(g)(ii) of the NTA, 1987.

By Order No. 1990-A-531 dated September 27, 1990, Canadian Partner was required, within sixty (60) days from the date of the Order, to reverse this policy thereby rendering its transportation system accessible to persons with disabilities.

By letter dated November 18, 1990, Canadian Partner informed the Agency that in response to the above-mentioned Order, it will accept for carriage all categories of disabled persons on board all aircraft in its fleet effective November 26, 1990.

Furthermore, Canadian Partner has advised that it will continue its attempts to locate a boarding device that will facilitate the boarding of disabled persons on the Jetstream 31, and that in the interim, all passengers requiring assistance in ascending and descending the stairs will be manually lifted by its flight crew. Training in various lifting techniques will be provided to the personnel involved.

With respect to the request made by the applicant for an increased settlement as a result of the embarrassment and shame he experienced, although the incident is unfortunate and likely to result in the emotions expressed by the applicant, the Agency is bound to conduct itself within the confines of the legislation. Subsection 63.3(3) of the NTA, 1987, empowers the Agency to order compensation for expenses incurred arising out of the undue obstacle. In this case, the expense incurred by the applicant was $43.63 for the repair of his suit. Canadian Airlines International has reimbursed this amount to the applicant and as such the Agency is unable to order additional payment. Furthermore, the Agency is unable to order monetary compensation based on emotional losses. It should be noted, however, that the Agency is developing regulations designed to establish minimum standards with respect to the training of air carrier personnel that should assist in the alleviation of certain aspects of the complaint made by the applicant.

In addition to the aforementioned, the applicant requests that the Agency explore four avenues of recourse. Regarding the request of the applicant that Canadian Airlines International be ordered to operate within the moral framework of the Canadian Constitution, the Agency has, by virtue of Order No. 1990-A-531, signified its intention to regulate the domestic air carriage of disabled persons in small aircraft.

With respect to the requests that the Agency devise legislation which would force carriers to deal with persons with special needs in a dignified, humane and supportive way; and, that the Agency order Canadian Airlines International to work with the Canadian Paraplegic Association to devise procedures, policies and operations related to the needs of special needs passengers, the Agency has also signified its intention to establish minimum standards for the training of personnel of providers of transportation services. Furthermore, the Agency has taken note of the request that the carrier be ordered to work with the Canadian Paraplegic Association and this concept will be given serious consideration in the context of the development of these standards.

Regarding the request of the applicant to hold a hearing, the Agency has determined that a public hearing is not necessary and that a decision can be rendered on the basis of the information received and on file.

The Agency cannot comment on whether or not the definition by Canadian Airlines International of not self-sufficient and not self-reliant is prejudicial and perhaps discriminatory; and neither can the Agency comment on the use by Canadian Airlines International of Section 85 of the Canadian Labour Code to "discriminate against" the disability of the applicant. Such issues may be best addressed by the Canadian Human Rights Commission.

CONCLUSION

In consideration of the facts and submissions presented, the Agency concludes that, in the specific case of the applicant, the refusal by Canadian Partner to carry the applicant due to his disability constitutes an undue obstacle to his mobility. The Agency, therefore, is empowered, pursuant to subsection 63.3(3) of the NTA, 1987, to order the airline to take corrective measures and/or compensate the applicant for any expense incurred arising out of the undue obstacle.

The Agency has, by Order No. 1990-A-531, ordered Canadian Partner to reverse its policy related to the refusal to carry certain disabled persons on board small aircraft and Canadian Partner has informed the Agency of its intention to comply with this Order effective November 26, 1990. Therefore, no further action by the Agency is deemed necessary.

With respect to the request of the applicant for an increased settlement, this request is dismissed for the above-noted reasons.

In conclusion, the Agency advises that, on behalf of the applicant, copies of submissions related to this application will be provided to the Canadian Human Rights Commission for review of matters that may be considered pursuant to its jurisdiction.

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