Decision No. 694-AT-A-2002
December 30, 2002
File No. U3570/01-20
On February 1, 2001, Gary Clinker, on behalf of Jason Clinker, filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.
On April 24, 2001, Air Transat A.T. Inc. carrying on business as Air Transat (hereinafter Air Transat) filed its answer to the application. Mr. Clinker filed his reply on May 10, 2001.
By Decision No. LET-AT-A-258-2001 dated May 30, 2001, the Agency requested Air Transat to provide additional information to assist in its investigation.
By Decision No. LET-AT-A-264-2001 dated June 4, 2001, the Agency granted Air Transat an extension until June 20, 2001 to file the additional information requested. On June 14, 2001, Air Transat filed this information, including a copy of extracts from its seat reservation manual and ground operations manual. Mr. Clinker filed his response regarding this information on July 3, 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.
The issue to be addressed is whether the difficulties experienced by Mr. Clinker in obtaining preselected seats on an Air Transat flight from Grand Cayman to Toronto constituted an undue obstacle to Jason Clinker's mobility and, if so, what corrective measures should be taken.
Jason Clinker has cerebral palsy. He uses a wheelchair for mobility and needs to be carried to and from an aircraft seat for boarding, deboarding and washroom visits.
Therefore, on January 10, 2001, when Mr. Clinker booked a round trip with Air Transat between Toronto and Grand Cayman for his wife, his two sons and himself, he also called Air Transat's seat selection centre and asked for bulkhead seating to provide sufficient room for the safe lifting of his son in and out of the seat.
Several days before the outbound flight, Air Transat advised Mrs. Clinker that the aircraft type for their inbound flight had been changed to a Boeing 757 and that, as a result, their seat numbers had been changed to 2E, 2F, 3E and 3F.
Air Transat Flight No. TS 0587, scheduled to depart from Grand Cayman to Toronto on January 27, 2001, was delayed six hours and departed on January 28, 2001. Eight hours before the rescheduled departure time of the flight to Toronto, Mr. Clinker was issued the boarding passes associated with his reservation. They were not for bulkhead seating. Two hours before departure, Mr. Clinker was issued new boarding passes for Seats 2C, 2D, 2E and 2F. Once boarded, it was apparent that none of the seats were bulkhead seats. The flight attendant then arranged for appropriate seating for the Clinker family.
Air Transat has an advance seat selection system in place. Its policy states that for passengers with a physical disability, its personnel are to ascertain the special needs of those passengers and ensure that the seats which best respond to those needs are assigned and reserved. Passengers with disabilities have priority access to the most accessible seating, including bulkhead rows, i.e., if disabled passengers require bulkhead seating that has been assigned to a family, they have priority over the family, and a supervisor is to reassign seating as necessary. A priority disabled designation is placed in the passenger's file. This is different from a chronic medical condition designation which does not provide the same level of priority to the passenger as a disability designation.
Air Transat has a computer system which generates a Passenger Name List (hereinafter PNL) for each of its flights that contains information about passengers, including passengers with special needs. The PNL for Flight No. TS 0587 contains the notation "MEDA" beside Jason Clinker's name.
When an aircraft type for a flight is changed, Air Transat's computer system automatically matches reserved seat types, e.g., bulkhead seats, to the corresponding seat type in the new cabin layout. However, Air Transat's five Boeing 757s, of its fleet of 23 aircraft, are not all configured in the same way. In some, the bulkhead seats are designated as Row 1, and in others, as Row 2.
At small foreign stations, such as Grand Cayman, Air Transat uses local contractors for passenger and ground handling services who are contractually bound to apply Air Transat's customer service policies.
POSITIONS OF THE PARTIES
Mr. Clinker states that, both at the time of booking the round trip between Toronto and Grand Cayman with Air Transat and contacting Air Transat's seat selection centre, he advised the carrier's representatives that his son has a disability and would be travelling with his own wheelchair. He submits that Air Transat's representative agreed to assign his party bulkhead seating but refused to provide him with written confirmation, saying that it is not the carrier's policy to do so. Mr. Clinker contends that after further discussion, the representative spoke with a supervisor and promised to fax confirmation of the seating assignment later that day. Mr. Clinker submits that no such confirmation was ever received.
Mr. Clinker states that after Air Transat advised his wife approximately three days before the trip that the aircraft type for the inbound flight had been changed to a Boeing 757, the carrier's representative assured her that their new seating assignment included two bulkhead seats. Mr. Clinker submits that, in the same manner as before, written confirmation was refused, further discussions took place and a supervisor was contacted. This resulted in written confirmation being faxed to him indicating the seat numbers, but not the type of seats.
Mr. Clinker advises that the seating on the flight from Toronto to Grand Cayman corresponded with that set out in the document received from Air Transat's seat selection centre, and that this flight was fine.
Mr. Clinker submits that when he checked in at the airport in Grand Cayman eight hours before the rescheduled departure of their return flight to Toronto, he advised the agent that he had bulkhead seating reserved for a passenger with a disability. Mr. Clinker contends that the agent printed their boarding passes and told him that they were not for bulkhead seats. Instead, they were for seats located one row behind the bulkhead row. Mr. Clinker alleges that he requested that the agent change their seating, but the agent refused, even though the passengers who reserved the bulkhead seats did not have a disability nor a medical condition. Mr. Clinker indicates that after much discussion, the agent continued to refuse to change their seating assignment, saying that he did not have the authority to do so and that there was no supervisor available.
Mr. Clinker states that when he returned to the check-in counter two hours before departure, the agent provided him with new boarding passes, indicating that one was for a bulkhead seat and the other three were located across the aisle. Mr. Clinker submits that even though this seating assignment would mean that his son would have to sit on his own, he took the passes.
Mr. Clinker relates that, once on board the aircraft, he discovered that the single seat assigned to his son was not a bulkhead seat - he was in fact assigned a seat in the row behind the bulkhead seat row. He indicates that the flight attendant, realizing that their assigned seats were inappropriate, arranged for proper seating for them.
Mr. Clinker points out that when his family flew to Grand Cayman with Air Transat two years earlier, they were denied the accessible seating they had requested and had to travel in non-bulkhead seats.
Air Transat submits that it regrets the problems encountered by Mr. Clinker and his family, particularly as meeting the special needs and requirements of passengers with disabilities is one of its fundamental corporate objectives.
Air Transat advises that it has established a system for advance seat selection which is designed to ensure that passengers with disabilities are provided with a choice of seats to best meet their specific needs, such as bulkhead seats and seats with moveable armrests for persons who use a wheelchair.
Air Transat admits that this system is fallible, especially when aircraft types are changed for operational reasons. The aircraft to be used on the flight between Grand Cayman and Toronto was changed to a Boeing 757, and Air Transat explains that the five Boeing 757s in its fleet do not have uniform configurations. Specifically, the first row in some is numbered as Row 1, while in others it is Row 2, depending on the actual location of the bulkhead. Air Transat submits that this can create a problem when passengers request to be seated in the first row and that it is for this reason that bulkhead seating cannot be confirmed in advance.
Mr. Clinker maintains that the problem with the seating assignment originated with the advance seat selection service and not with the change in aircraft. He alleges that the passengers travelling with a child and an infant who were occupying the bulkhead seats said that they had been assigned those seats through the advance service weeks before leaving Toronto. Mr. Clinker also protests that passengers who have infants travelling for free and who want to use the skycot available in bulkhead seating should not have priority over passengers with disabilities.
Mr. Clinker acknowledges the difficulties described by Air Transat, but submits that more can be done by all carriers as people like his son will hopefully travel dozens of times on many different airlines.
Air Transat notes that after further investigation, it was determined that a chronic medical condition notation was incorrectly placed on Jason Clinker's record. As this notation carries a lower priority level than a disability notation, the bulkhead seats were assigned to the family with an infant. Also, Air Transat confirms that, as bulkhead seats are the only ones that can adequately meet the needs of passengers with disabilities, such persons will always have priority for this seating.
Mr. Clinker wonders why such a notation would have been used as he had advised Air Transat personnel that his son could not walk, that he would be travelling with his own manual wheelchair, that he had to be lifted in and out of his seat and that, as a result, bulkhead seating would be necessary.
With respect to the approach and attitude of the passenger service agent at the airport in Grand Cayman, i.e., his refusal to change the Clinkers' seating assignment or to undertake any other effort to resolve the situation to Mr. Clinker's satisfaction, Air Transat asserts that this handling of the matter was unacceptable and wholly inconsistent with its customer service policies. Air Transat admits that although the contractors it uses at Grand Cayman are required to apply its customer service policies, the actual service levels are not always up to the carrier's standards.
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. In the present case, Mr. Clinker filed the application on behalf of his son, Jason Clinker, who has cerebral palsy and uses a wheelchair for mobility. As such, Jason Clinker 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 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
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, as far as is 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, 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 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 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 present case
Mr. Clinker requested bulkhead seating for the round trip between Toronto and Grand Cayman because his son, Jason Clinker, has cerebral palsy. To ensure the required seating, Mr. Clinker made use of Air Transat's advance seat selection service.
The boarding passes initially provided to Mr. Clinker before the flight from Grand Cayman to Toronto were not for bulkhead seats. When he asked the check-in agent to change them, the agent indicated that he could not because those seats had been reserved by someone else. These passes were later replaced with ones intended to be for one bulkhead seat and three seats across the aisle. When the Clinkers boarded the aircraft, it became apparent that they had not been assigned a bulkhead seat. However, the flight attendant arranged for appropriate seating for them.
The Agency accepts that Mr. Clinker requested bulkhead seating for his son, Jason Clinker, and that he therefore had a reasonable expectation that this type of seating would be provided. Instead, he was faced with a situation where he had to demand appropriate seating at the check-in counter in Grand Cayman and, once on board the aircraft, he had to move his son to another seat when the assigned seating turned out to be incompatible with Jason Clinker's disability. This situation was inconvenient and frustrating, and the Agency finds that it represented an obstacle to Jason Clinker's mobility.
The Agency notes that Air Transat's PNL for Jason Clinker incorrectly contained a "MEDA" code, and accepts Air Transat's explanation that such a code carries a lower priority level than a disability code.
The Agency is of the opinion that Air Transat did follow its established procedure for assigning accessible seating based on the information, although incorrect, contained in the PNL. In addition, the Agency acknowledges that Air Transat indicated that it would send a memorandum to all foreign stations reminding them of the procedures to be followed with respect to assigning accessible seating. Station masters would be instructed to ensure that requested seating is provided to passengers with disabilities on a priority basis, regardless of whether the seats were previously assigned to and/or reserved by other passengers through the advance seat selection. They would be told to use discretion if requested seats are already occupied by passengers with disabilities or by persons travelling with very young infants requiring the use of skycots at bulkhead locations, and to make every effort to ensure that the special needs of passengers with disabilities are satisfied. The Agency commends this initiative and urges Air Transat to proceed with the distribution of this memorandum, if it has not already done so.
The Agency also notes the situation related to the different configurations of Air Transat's Boeing 757 aircraft. The Agency is therefore of the opinion that when the check-in agent reissued boarding passes to Mr. Clinker, he did believe that he was providing a bulkhead seat for the family based on his understanding of the configuration of Boeing 757s. The Agency notes that bulkhead seating was eventually provided to Jason Clinker and that, based on comments made by Mr. Clinker about previous and future trips, they have not been disinclined from travelling as a result of incidents such as this.
In light of the above, the Agency finds that, in the circumstances of this case, the obstacle to Jason Clinker's mobility was not undue. Notwithstanding this finding, the Agency is of the view that there are two matters on which it should comment.
First, it is apparent that the different configurations of Air Transat's Boeing 757 aircraft can result in confusion, especially when passengers have requested bulkhead seating. The Agency encourages Air Transat to investigate the possibility of refining its computer system to include the configurations of each of these aircraft so that the correct layout can be matched by agents to the specific aircraft being used to operate a particular flight.
Second, the Agency recognizes that written confirmation is important to persons with disabilities as it provides them with a sense of security. The Agency is therefore of the opinion that it is not unreasonable for passengers with disabilities to expect to receive confirmation of their requested seating assignment. As a result, it suggests that Air Transat consider amending its policies to include the provision of written confirmation of advance seat selection when requested to do so by persons with disabilities.
Based on the above findings, the Agency determines that the difficulties experienced in obtaining preselected seats did not constitute an undue obstacle to Jason Clinker's mobility.
Accordingly, the Agency contemplates no action in this matter.