Decision No. 673-AT-A-2001
December 28, 2001
File No. U3570/00-48
On August 7, 2000, Kurt Porsborg filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. Additional information was filed by Mr. Porsborg on August 16, 2000.
By letter dated September 18, 2000, Canada 3000 Airlines Limited (hereinafter Canada 3000) requested an extension until October 13, 2000 to file its answer to the complaint and, by Decision No. LET-AT-A-287-2000 dated September 21, 2000, the Agency granted Canada 3000 the requested extension. On October 13, 2000, Canada 3000 filed its answer. On October 17, 2000, at the request of Agency staff, Canada 3000 provided additional clarification. On November 9, 2000, Mr. Porsborg filed his reply.
Additional comments were subsequently filed by Canada 3000 on November 21, 2000 and December 6, 2000 and by Mr. Porsborg on January 17, 2001.
Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.
Although Mr. Porsborg filed his reply after the prescribed deadline, the Agency, pursuant to section 6 of the National Transportation Agency General Rules, SOR/88-23, accepts this submission as being relevant and necessary to its consideration of this matter.
On November 8, 2001, Canada 3000 ceased operations and subsequently made an assignment in bankruptcy. The Agency is of the view that, despite this situation, it is important to make a determination regarding Mr. Porsborg's application as the resulting decision may provide guidance to other carriers in similar situations and as such may serve to assist in the elimination of undue obstacles to the mobility of persons with disabilities in the federal transportation network.
The issue to be addressed is whether the level of assistance provided to Mr. Porsborg to board the aircraft and the bus that took him to the aircraft as well as the seat assigned to Mr. Porsborg constituted undue obstacles to his mobility.
Mr. Porsborg has a mobility impairment and requires the use of two crutches to enable him to walk limited distances.
Mr. Porsborg booked, through a travel agency, a return trip for himself and his wife to travel on Canada 3000 Flight No. 703 from Vancouver to Hamburg departing on June 28, 2000 and returning on July 20, 2000 on Canada 3000 Flight No. 704.
In advance of travel, Mr. Porsborg advised both his travel agent and Canada 3000 of his requirements to be seated close to a washroom and for bulkhead seating to meet his needs for extra legroom. The medical certificate filed by Mr. Porsborg indicates that he requires an extra large seat due to mobility problems on aircraft.
The particular flights in this case operated: Vancouver/Calgary/Berlin/Hamburg for the outbound flight and Hamburg/Calgary/Vancouver for the inbound flight. Vancouver, as the originating station, divided the seating chart according to the passenger load and special requests. This allowed each station to have access to the necessary number of seats for their expected passenger load including a number of exit row seats and bulkhead seats to accommodate passengers. Minimal advance seating requests were noted by Canada 3000.
Canada 3000's computer system generates a Passenger Information Sheet which contains information about passengers including passengers with specific needs. The Passenger Information Sheet from its computer system reflected that Mr. Porsborg has a mobility impairment and requires bulkhead seating. On the outbound flight, bulkhead seating was provided to Mr. Porsborg.
On July 20, 2000, at the Hamburg airport, the check-in agent advised Mr. Porsborg that there were no bulkhead seats available. Mr. Porsborg was informed incorrectly by the agent that there was no notation for a special request for seating. He also told him that his assigned seat provided extra legroom, but this was not the case.
At that time, the Hamburg airport was under construction and as a result, the aircraft was parked away from the main terminal area. Canada 3000's ground handlers arranged transportation by bus for the passengers from the main terminal to the aircraft. A ground handler rode on each bus and directed passengers to the appropriate staircase to board the aircraft.
When Mr. and Mrs. Porsborg arrived at the aircraft, Mrs. Porsborg boarded the aircraft and advised a member of the crew that Mr. Porsborg needed boarding assistance. The crew member descended the stairs and instructed Mr. Porsborg to wait while she sought assistance from the ground handling agents.
After a period of time, Mr. Porsborg ascended the stairs on his own by sitting down and pushing himself up the stairs with his arms.
Once Mr. Porsborg reached his assigned seat, he found that it did not provide him with extra legroom, contrary to the check-in agent's assertions.
POSITIONS OF THE PARTIES
Level of assistance to get on and off the bus and while boarding the aircraft
With respect to the bus that took Mr. Porsborg to the aircraft, he points out that the single step to the entrance of the bus was approximately 2 feet high and that without assistance from airport personnel or the bus driver, he managed, after some struggle, to get on the bus.
Mr. Porsborg submits that once he arrived at the aircraft, he encountered approximately 40 steps leading to the aircraft. His wife boarded the aircraft and informed the cabin crew that Mr. Porsborg needed boarding assistance. Mr. Porsborg points out that the flight attendant who came to meet him was friendly and sympathetic and she informed him that a special chair could be attached to the stairs. She also instructed him to wait while she made arrangements.
Mr. Porsborg states that after a 20 minute wait and after all the other passengers had boarded the aircraft, it was clear to him that, to board, he would have to do so without assistance. Mr. Porsborg explains that he began climbing, step by step, by sitting down and pushing himself up the stairs with his arms. Near the top of the stairs he managed to get to his feet and continue up the last few steps, in an upright position, which he submits allowed him to board the aircraft with some dignity still intact. He indicates that although a female passenger offered him assistance, neither the cabin personnel nor the ground crew offered him any assistance. Mr. Porsborg submits that, in addition to experiencing discomfort and humiliation, he ruined a pair of pants.
Mr. Porsborg submits that he is disappointed by the lack of coordination and support offered by Canada 3000 and that although he tries not to make unrealistic demands, he does welcome some assistance when the circumstances warrant it.
Canada 3000 filed with the Agency information concerning its reservation and check-in policies with respect to the seating of passengers with disabilities. This policy states that all passengers with special needs will be pre-boarded and given any additional assistance as required. Furthermore, Canada 3000 provided a copy of an accessibility memo which was issued to all its stations in April 2000 and served as a reminder to employees to adhere to Canada 3000's procedures when serving passengers with disabilities. Included in the memo were the following procedures:
- Information on services to be provided will be recorded on the Passenger Information Sheet
- Assistance must be available for registration at the check-in counter, moving to the boarding area, boarding and deplaning, ...
Canada 3000 submits that for the majority of flights, aircraft are able to park at an air bridge attached to the terminal building. However, due to construction at the Hamburg airport on this particular day, the Canada 3000 aircraft was allotted a parking spot away from the main terminal area.
Canada 3000 indicates that several of the in-flight crew recall Mr. and Mrs. Porsborg and remember having a discussion with them at the bottom of the aircraft stairs. Further, the Purser who interacted with Mr. and Mrs. Porsborg advised them that she would seek assistance from the ground agents and suggested that a lifting device which could be attached to the stair rail might be used.
Canada 3000 explains that the ground handlers at the airport in Hamburg are unable to provide any carrying or lifting services to passengers as this is performed by the Red Cross. Once notified by Canada 3000's ground handler, the Red Cross comes to the aircraft and assists the passenger.
Canada 3000 submits that, as the aircraft was in a remote area, a ground agent was not readily available. While continuing with her boarding duties, the Purser watched for a ground agent. The Purser did not make a request for assistance in the time frame that had passed as she could not see a ground agent. Recognizing that time had passed, the Purser descended the stairs to speak with Mr. and Mrs. Porsborg in order to advise them on the status of the assistance. However, Mr. and Mrs. Porsborg were no longer at the bottom of the stairs. The Purser telephoned the crew at the back of the aircraft to advise them of the assistance Mr. Porsborg required. She was advised that Mr. Porsborg was already on board the aircraft.
Canada 3000 advises that Mr. Porsborg was not meant to board the aircraft himself as the Purser had every intention of requesting assistance from the ground crew. The Purser did not make a request for assistance because no agents could be seen by her during this time. Canada 3000 submits that both the flight and ground crew had every intention of providing Mr. Porsborg with assistance, however, due to the remote boarding area, it took longer than usual for the assistance to be provided.
Canada 3000 submits that the Purser is of the view that the ground handlers in Hamburg are usually efficient and that she regrets that Mr. Porsborg boarded the aircraft without assistance. The ground personnel have also provided assurances to Canada 3000 that, once notified by the crew or the passenger, they would have called the Red Cross to immediately assist Mr. Porsborg.
Canada 3000 extends apologies to Mr. and Mrs. Porsborg for the delay in providing the appropriate assistance and recognizes the frustration they faced during this situation. Canada 3000 is of the opinion that this is an isolated incident due to the remote gate area and assures Mr. and Mrs. Porsborg of its commitment to serving passengers in a timely and appropriate fashion.
Mr. Porsborg indicates that, in Hamburg, the check-in agent advised him that there were no bulkhead seats available. Further, he was told that although there was no notation for a special seating request, his assigned seat had extra legroom. Mr. Porsborg submits however that the seating was cramped and resulted in him having leg cramps and muscle spasms throughout the 12-hour flight.
In the above referenced Canada 3000 accessibility memo the procedures for serving passengers with disabilities as regards to seating include the following procedures:
- We must advise passengers with disabilities which seats are the most accessible.
- Information contained in the Passenger Information Sheet must be used to ensure that the advanced seating requests are actioned, followed by a dialogue with the passenger at check-in to ensure that the arrangements meet their needs.
Canada 3000 explains that although it tries to accommodate all requests for bulkhead seating such seating cannot be guaranteed as the requests often outnumber the bulkhead seats available on an aircraft.
Canada 3000 states that it appears in this case that the check-in agent was not familiar with the configuration of the aircraft.
Canada 3000 further submits that the handling agent in Hamburg is perplexed by this special seating request oversight as the Passenger Information Sheet contained the information respecting Mr. Porsborg's needs. The handling agent is also troubled by the check-in agent's lack of knowledge about the specifications of the aircraft and apologizes to the Porsborgs for the incorrect information given to them and has provided assurances to Canada 3000 of its commitment to providing excellent customer service. Canada 3000 has provided a copy to the Agency of a quick reference seating guide to be used at the check-in counter, which has the icons and symbols needed to understand the layout of each of its aircraft.
Canada 3000 has also introduced Advance Seat Reservations and submits that it will be able to pre-assign seats to passengers with disabilities at the time of booking.
With respect to Mr. Porsborg's comments concerning his damaged pants, Canada 3000 submits that it would be more than happy to replace the item and provide compensation to Mr. Porsborg. Mr. Porsborg accepted Canada 3000's offer and Canada 3000 reimbursed Mr. Porsborg.
ANALYSIS AND FINDINGS
In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. Porsborg is a person who has a mobility impairment and requires the use of two crutches to enable him to walk limited distances, and, as such, is a person with a disability for the purposes of applying the accessibility provisions of the CTA.
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 those 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
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 federally-regulated 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.
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
a) Level of assistance
Based on the evidence on file, Mr. Porsborg is able to walk limited distances with the use of two crutches and under usual boarding conditions, when boarding is conducted with an aircraft bridge, he does not require assistance, as was the case on the outbound flight. However, as the result of construction at the Hamburg airport, the carrier was provided with a remote boarding location which required that passengers, including Mr. Porsborg, take a bus from the main terminal to the aircraft and then board the aircraft externally via a set of stairs.
Mr. Porsborg's Passenger Information Sheet for this flight clearly indicated that Mr. Porsborg is a person with a mobility impairment; however, despite this fact, no advance arrangements were made, in view of the alternative boarding arrangements in place on the day of his departure, to determine whether Mr. Porsborg needed additional assistance and, if so, to ensure that he was provided with such assistance.
Mr. Porsborg was not offered any assistance to board the bus and after some struggle, managed to board the bus by himself.
Further, once Mr. Porsborg reached the stairs to the aircraft, there were no personnel waiting to provide him with boarding assistance and it was left to Mrs. Porsborg to board the aircraft and inquire about assistance for her husband. Although a Purser came down the stairs and instructed Mr. Porsborg to wait while she sought assistance from the ground agents, Mr. Porsborg was left for approximately 20 minutes without information on the progress being made to secure boarding assistance. It is foreseeable that after seeing all the passengers board the aircraft and without any information on the status of the promised assistance that he therefore felt he had no choice but to resort to an unconventional method to board the aircraft on his own.
In light of the foregoing, the Agency finds that the lack of assistance provided to Mr. Porsborg to board the bus as well as the aircraft, which caused him to experience discomfort and humiliation, constituted an obstacle to Mr. Porsborg's mobility.
b) Seating assignment
Mr. Porsborg required a seat with extra leg room to accommodate his disability in order to avoid muscle spasms and cramps and thus he requested a bulkhead seat in advance of travel. This advance seating request was clearly noted in the Passenger Information Sheet along with the notation that Mr. Porsborg had a mobility impairment.
The Agency notes, however, that once Mr. Porsborg arrived at the check-in counter, the agent informed him that there was no information concerning his seating needs and that there were no bulkhead seats available. The agent indicated that the seat assigned would provide the extra legroom needed by Mr. Porsborg. However, the seat did not have enough leg room which resulted in Mr. Porsborg having leg cramps and muscle spasms throughout the flight.
In light of the above, the Agency finds that the seat assigned to Mr. Porsborg did constitute an obstacle to his mobility as it did not meet his needs and he suffered discomfort as a result.
Whether the obstacles were undue
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 federally-regulated 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 federally-regulated 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, so far as practicable, not constitute an undue obstacle to the mobility of persons with disabilities.
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 federally-regulated transportation network to adapt their services, so far as 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 to adopt services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board a plane 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 deplaning 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 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
a) Level of assistance
The Agency, having found that the lack of assistance provided to Mr. Porsborg when boarding the bus and the aircraft constituted an obstacle, will now consider whether it also constituted an undue obstacle.
The Agency is of the view that, given the remote boarding site, Canada 3000 should have foreseen that the changes to the boarding process could result in some passengers requiring additional boarding assistance. In fact, Canada 3000 had several opportunities to ensure that Mr. Porsborg would receive the assistance that he required.
The first opportunity arose from the notation in the Passenger Information Sheet which clearly indicated that Mr. Porsborg is a passenger with a mobility impairment. The Agency finds that Canada 3000 had the necessary information in advance to secure assistance for Mr. Porsborg, but for reasons unknown, it was not used.
Further, when Mr. Porsborg at check-in informed the agent of his need for a bulkhead seat, this was an opportunity for the agent to enter into a full dialogue with Mr. Porsborg, including inquiring as to whether Mr. Porsborg would need assistance because of the alternative boarding arrangements. The agent would then have then been in a position to contact the responsible personnel to assist Mr. Porsborg to board both the bus and the aircraft.
The check-in agent's failure to ascertain Mr. Porsborg's specific needs meant that upon Mr. Porsborg's arriving at both the bus and the aircraft there were no measures in place or being put in place to assist Mr. Porsborg. In fact, it was Mr. Porsborg's wife who informed the crew of her husband's need for boarding assistance. Further, once Mr. Porsborg arrived at the aircraft, despite the fact that the crew were not forewarned of the assistance that would be needed, the Agency is of the view that the in-flight crew should have anticipated that by not acting promptly on the requested assistance and in not informing Mr. Porsborg on a frequent basis of the progress being made to secure assistance that Mr. Porsborg would be in a state of uncertainty and anxiety as to whether he would be provided with the boarding assistance he required. As a consequence, Mr. Porsborg felt that he had to board on his own.
The Agency is of the view that, had the carrier made advance arrangements, boarding assistance could have been promptly available for Mr. Porsborg after he arrived at the aircraft and Mr. Porsborg would have had more confidence that his needs were going to be met.
The Agency is concerned with cases such as this where employees of air carriers fail to respond in a timely manner to the specific needs of persons with disabilities and where procedures in place to ensure that the carrier responds to such needs, such as a Passenger Information Sheet, are not properly utilized.
Accordingly, the Agency finds that the lack of assistance provided to Mr. Porsborg to board the bus and the aircraft constituted an undue obstacle to Mr. Porsborg's mobility.
b) Seating assignment
The Agency, having found that the seating assignment provided to Mr. Porsborg constituted an obstacle, will now consider whether the obstacle is undue.
As stated in Canada 3000's accessibility memo, the information contained in the Passenger Information Sheet must be used to ensure that advanced seating requests are actioned, followed by a dialogue with passengers at check-in to ensure that the arrangements meet their needs. This policy was not implemented in this case.
While the Agency recognizes that carriers do their best to accommodate the seating requests of persons with disabilities, the Agency is of the opinion that where a person with a disability identifies a seating need to accommodate a disability, priority should be given to that person over passengers who prefer but do not need such seating. In Mr. Porsborg's case, Canada 3000's Passenger Information Sheet identified the need for a bulkhead seat and yet, despite the direction in its accessibility memo, the seating request was not actioned as the check-in agent, for reasons unknown, did not access the information in the system when Mr. Porsborg checked in. Further, the agent was not familiar with the seating configuration of the aircraft and as a result misinformed Mr. Porsborg that his assigned seat would provide the extra legroom he needed. The Agency is of the view that the check-in agent should have ensured that the seat that was being assigned did in fact have the features required.
Accordingly, the Agency finds that the seat assigned to Mr. Porsborg constituted an undue obstacle to his mobility as it did not accommodate his disability.
On the issue of compensation, subsection 172(3) of the CTA provides that:
On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.
Accordingly, in this case, Mr. Porsborg is entitled to compensation for the cost of replacing his pants since it is a direct result of the undue obstacle. The Agency notes that Canada 3000 reimbursed Mr. Porsborg for the cost of the pants and therefore, no further action is required on this issue.
In light of the above, the Agency finds that the level of boarding assistance and the seat assignment provided to Mr. Porsborg constituted undue obstacles to his mobility.
Pursuant to subsection 172(3) of the CTA, the Agency, where it determines that there is an undue obstacle, may require the taking of appropriate corrective measures to prevent incidents similar to the applicant's from recurring. However, in light of Canada 3000's current situation, the Agency is not in a position to order corrective measures in this case.