Decision No. 674-AT-A-2001
Follow-up - Decision No. 259-AT-A-2002
December 28, 2001
File No. U3570/00-74
On November 9, 2000, June D. Wood filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. In an Agency staff telephone call to Mrs. Wood on November 13, 2000, clarification regarding her application was provided to staff. This additional information was communicated to Air Canada by Agency staff in a letter dated November 14, 2000.
On December 14, 2000, Air Canada filed its answer and on January 5, 2001, Mrs. Wood filed her reply.
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.
The issue to be addressed is whether the lack of wheelchair and baggage assistance provided to Mrs. Wood upon her arrival in London, England constituted an undue obstacle to her mobility and, if so, what corrective measures should be taken.
Mrs. Wood has rheumatoid arthritis and as a result her hands are deformed and lacking in strength. She also has a mobility impairment and is unable to ascend/descend steps or walk long distances.
On October 2, 2000, Mrs. Wood travelled from Ottawa, Ontario to London, England on Air Canada Flight No. 3076. In advance of travel, Mrs. Wood advised her travel agent, Uniglobe Travel, of her requirement for wheelchair assistance.
Air Canada has a computer system which generates a passenger name record (PNR) that contains information about passengers, including passengers with special needs. The PNR for Mrs. Wood reflects the code WCHS which is defined in the International Air Transportation Association Passenger Services Conference Resolutions Manual as a passenger who cannot ascend/descend steps, but is able to make own way to/from the cabin seat; requires wheelchair for distance to/from aircraft or mobile lounge and must be carried up/down steps.
Upon arrival in London, Mrs. Wood was told to remain on the aircraft while other passengers deplaned. Upon exiting the aircraft, instead of a wheelchair being made available for Mrs. Wood, an electric cart was used to take Mrs. Wood to the baggage carrousel. She was then left alone to retrieve her luggage and make her way to the public arrivals area.
POSITIONS OF THE PARTIES
Mrs. Wood states that upon arrival in London, a flight attendant when referring to her while speaking to someone else stated that : "She says she needs assistance". Mrs. Wood states that she was disturbed by this comment and that she was amazed to be considered as someone pretending to need help. She also asserts that the same flight attendant, when asked by Mrs. Wood where to store her duty free item, was dismissive in her response to Mrs. Wood.
Mrs. Wood submits that she was informed that her name was not on the list of passengers requiring assistance but that a cart would be provided on which she could ride. At the end of the cart ride, Mrs. Wood was left alone to retrieve her checked baggage at the baggage carousel and she indicates that in light of her disability, it was difficult for her to do so. After retrieving her baggage, Mrs. Wood then had to walk slowly to the public arrivals area which was a considerable distance away.
In support of her complaint, Mrs. Wood provided the Agency with a letter from her sister, V.P. Barfield. In her letter, Mrs. Barfield states that although her sister did manage to retrieve her baggage and reach the public arrivals area, she did so to the detriment of her health in that she spent the first week of her holiday cold packing her swollen hands. In her opinion, this situation caused Mrs. Wood and her family great distress.
In its answer, Air Canada extends its apologies to Mrs. Wood for not providing the assistance she requested.
Air Canada states that the PNR correctly reflected Mrs. Wood's need for wheelchair assistance and confirms that this request had been communicated to London. Air Canada regrets that Mrs. Wood was told that this was not the case.
Air Canada provided the Agency with a copy of its policy CIC*59/209 which describes the services provided to passengers with disabilities. Air Canada confirms that the policy contains provisions relating to assistance in retrieving checked baggage. Included in this policy are procedures on the following subjects:
- Assist in proceeding within the airport (public and boarding areas)
- Assist in stowing and retrieving carry-on and checked baggage
- Inquire periodically about the customer's needs and the provision of requested services
- Indicate in the PNR services that have been requested by the customer
Air Canada further submits that, as it does for all its stations, it asks its London's Customer Service agents to assist customers in a wheelchair to the public arrivals area. If a customer travels with checked baggage, the agent is responsible for making arrangements for a porter to carry the luggage, while the agent assists the customer to the public arrivals area.
Air Canada asserts that on October 2, 2000, there was a high demand for wheelchair assistance in London and, as a result, the Air Canada agent assigned to the flight used an electric cart to conduct Mrs. Wood to the baggage area where she would have received no further assistance in retrieving her checked baggage.
In an effort to prevent a recurrence of such a situation, Air Canada asked that the incident and its internal policy be reviewed with the arrival agent who assisted Mrs. Wood.
ANALYSIS AND FINDINGS
In making its findings, the Agency has considered all of the material 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. In the present case, Mrs. Wood has rheumatoid arthritis and as a result her hands are deformed and lacking in strength. Mrs. Wood also has a mobility impairment as she is unable to ascend/descend steps or walk long distances. As such, the Agency finds that she is a person with a disability for the purpose 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.
Whether the obstacle was 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
Based on the information on file, Mrs. Wood has both a mobility impairment and an impairment where her hands are lacking in strength. She pre-requested wheelchair assistance at the time that she made the reservation and this request was reflected in her PNR. Upon arrival in London, Mrs. Wood was taken to the baggage retrieval area by electric cart and then was left to retrieve her baggage on her own as well as make her own way to the public arrivals area with her baggage. This resulted in Mrs. Wood having swollen hands for a period of time after her flight.
In light of the foregoing, the Agency finds that the failure of Air Canada to provide wheelchair and baggage assistance caused Mrs. Wood discomfort and constituted an obstacle to her mobility.
Despite the fact that Air Canada was aware of Mrs. Wood's need for assistance and that this information was accurately reflected in her PNR and was communicated to London, her name was not on the list of passengers requiring assistance. Such assistance was not provided to Mrs. Wood upon arrival in London. The Agency is of the opinion that it is reasonable for a passenger with a mobility impairment who requires assistance, such as Mrs. Wood, to receive wheelchair assistance upon arrival as well as help with his/her luggage.
In addition, Air Canada's policy clearly indicates, as part of the services that are extended to persons with disabilities, "Assist in proceeding within airport" and "Assist in stowing and retrieving carry-on baggage and checked baggage". Furthermore, Air Canada submitted that it asks its London customer service agents to assist customers in wheelchairs to the arrival area and to make arrangements to have a porter carry the baggage. However, Mrs. Wood was not provided with assistance in retrieving her baggage or proceeding to the public arrivals area.
Although the Agency notes that, due to a high demand for wheelchair assistance, an electric cart was used to take Mrs. Wood to the baggage retrieval area, the fact remains that contrary to Air Canada's policy, Mrs. Wood was not provided with assistance with her baggage or proceeding to the public arrivals area.
The Agency is of the opinion that, even in situations where there is a high demand for wheelchair assistance, Air Canada should ensure that persons with disabilities are provided with the assistance that is needed and that air carrier personnel are aware that a change in the method of transporting a person with a disability does not mean that all expected further assistance is terminated. The Agency is of the view that wheelchair and baggage assistance is an essential feature of an accessible transportation network and that a carrier's personnel and contractors must be prepared to provide such assistance to all persons with disabilities who request it, even during peak times.
The Agency is concerned with cases such as this where procedures that are in place to ensure that the carrier responds to the needs of persons with disabilities, such as a PNR and a carrier's internal policies, are not properly utilized.
Accordingly, the Agency finds that the lack of wheelchair and baggage assistance provided to Mrs. Wood constituted an undue obstacle to her mobility.
With respect to Mrs. Wood's comments concerning the way in which a flight attendant on her flight communicated with Mrs. Wood, the Agency would also like to emphasize the need for air carrier personnel to be sensitive when communicating to and about passengers with disabilities.
Measures taken by Air Canada
The Agency notes that Air Canada has asked that Mrs. Wood's situation and Air Canada's internal policy be reviewed with the arrivals agent who assisted Mrs. Wood at the airport in London.
Based on the above findings, the Agency has determined that the level of wheelchair and baggage assistance provided to Mrs. Wood in London constituted an undue obstacle to Mrs. Wood's mobility.
Accordingly, the Agency hereby directs Air Canada to take the following measures within thirty (30) days from the date of this decision:
- provide a report to the Agency on the contingency plans or other specific measures that will be taken to prevent the recurrence of the situation experienced by Mrs. Wood in London, highlighting Air Canada's plans in situations where there is a high demand for wheelchair assistance;
- issue an advisory bulletin to its London employees highlighting the importance of providing services as requested by persons with disabilities in light of the incident experienced by Mrs. Wood and provide to the Agency a copy of the said bulletin;
- provide confirmation to the Agency that the incident and Air Canada's internal policy was reviewed with the arrivals agent who assisted Mrs. Wood at the airport in London.
Following its review of the required information, the Agency will determine whether further action is required in this matter.