Decision No. 708-AT-A-1999
Follow-up - Decision No. 278-AT-A-2000
December 20, 1999
APPLICATION by Chris Donszelmann pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, concerning the seating arrangements provided by Air Transat A.T. Inc. on Flight No. TS259 from London, England, to Toronto, Ontario, on July 24, 1998.
File No. U3570/99-35
The application was referred to the Canadian Transportation Agency (hereinafter the Agency) by the Canadian Human Rights Commission on July 23, 1999.
By Decision No. LET-AT-A-217-1999 dated August 11, 1999, the Agency granted Air Transat A.T. Inc. (hereinafter Air Transat) until September 8, 1999 to file an answer to the application.
Air Transat filed its answer on August 31, 1999, and Ms. Donszelmann filed her reply on September 7, 1999. Additional information and clarifications were subsequently sought and obtained from Air Transat.
Pursuant to subsection 29(1) of the Canada Transportation Act, 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 extension of the deadline to December 20, 1999.
The issue to be addressed is whether the seating arrangements provided by Air Transat constituted an undue obstacle to Ms. Donszelmann's mobility and, if so, what corrective measures should be taken.
Ms. Donszelmann has ongoing neurologic pain and requires the use of a leg brace. She travelled with her husband and with her four-year old son.
Ms. Donszelmann provided the Agency with a copy of a letter signed by her physician on June 30, 1998 identifying the nature of her disability and requiring that she be assigned bulkhead seats that provide extra legroom to allow her to keep her leg stretched in front of her throughout the flights.
The Passenger Name Record (hereinafter the PNR) filed with the Agency by Air Transat indicates that Ms. Donszelmann's travel arrangements were made with Air Transat Holidays through the Uniworld Travel & Tours travel agency. Reservations were made for transportation on Air Transat's Flight No. TS208 from Toronto to Amsterdam, Netherlands via Halifax, Nova Scotia departing on July 5, 1998, and on Air Transat's Flight No. TS259 from London to Toronto departing on July 24, 1998. Ms. Donszelmann's PNR does not contain information concerning her disability nor an indication that specific seating was requested.
When she arrived at the Air Transat check-in counter at Toronto on July 5, 1998, Ms. Donszelmann discovered that she had not been assigned a bulkhead seat. However, after she spoke to the supervisor and showed him her leg brace and the letter written by her physician, arrangements were made for her to be seated in a bulkhead seat. The supervisor recommended that she call Air Transat in London prior to her return flight to make arrangements for bulkhead seating assignment.
On July 23, 1998, Ms. Donszelmann made several phone calls to the Air Transat office in London but none of them were answered. Upon calling her sister's travel agent in Scotland, Ms. Donszelmann was informed that she would be assigned a bulkhead seat at the check-in counter at London and that no other formalities were needed.
At the check-in counter at London on July 24, 1998, Ms. Donszelmann was informed that all bulkhead seats had already been assigned to other passengers. Despite attempts to have her seat changed to a bulkhead seat through various conversations she had with representatives of the air carrier at the check-in counter (check-in agent and supervisor), at the boarding desk (supervisor) and on board the aircraft (flight attendant and in-flight supervisor), she was required to travel in the non-bulkhead seat that was assigned to her.
Air Transat's policy on accessible seating at the time of the incident was as follows:
Passengers with disabilities are entitled to know what services they can choose to make their journey trouble-free. They must be told which seats are the most accessible when a reservation is made. All seats are accessible to passengers with disabilities except emergency exits. These passengers have priority and have the right to choose where they want to be seated. If a disabled passenger requires a Bulkhead Seat that has been given to a family, the disabled passenger has priority over the family.
POSITIONS OF THE PARTIES
Ms. Donszelmann maintains that she made all reasonable efforts and took all of the steps required to inform the carrier of her disability and her need for bulkhead seating.
In this respect, Ms. Donszelmann asserts that she did contact Air Transat by telephone prior to leaving on her trip to Amsterdam to explain that she has a physical disability and to request bulkhead seating accommodations on both her outbound and inbound journeys. She even obtained a letter from her physician identifying the nature of her disability and faxed it to the carrier in support of her request for bulkhead seating, as instructed by the Air Transat representative with whom she spoke at that time. Ms. Donszelmann points out, however, that she was not initially assigned a bulkhead seat upon check-in at Toronto on July 5, 1998.
Ms. Donszelmann also asserts that she did attempt, without success, to call the carrier in London before the departure of her return flight, as recommended by the supervisor who served her at check-in at Toronto on July 5, 1998, as it was not clear whether the carrier had, in fact, received her request for bulkhead seating. She indicates that she spoke with her sister's travel agent in Scotland who informed her that she would be assigned a bulkhead seat upon check-in at London and, this, without any other formalities.
Following notification by the check-in agent at London that all bulkhead seats had already been assigned on her return flight, Ms. Donszelmann states that she did attempt to obtain a seat change at the check-in counter, at the boarding desk and onboard the aircraft, but all of the representations she made were futile. Ms. Donszelmann points out, however, that the only efforts to assist her were made by a flight attendant who asked several passengers if they would consider a seat change to accommodate her, but none of them accepted. Ms. Donszelmann indicates that she then spoke with the in-flight supervisor who told her that she was going to note her concerns in her flight report.
Ms. Donszelmann advises that she spent the entire eight-hour return journey in great a deal of pain and discomfort because of the inappropriate seating. She ended up having to remove her leg brace during the flight as she was unable to keep her leg stretched in front of her. She was also unable to stretch her leg in the aisle because of constant traffic. Ms. Donszelmann is very upset at the way she was treated by the personnel of the air carrier and feels that Air Transat has failed to meet its obligation as an air carrier, and corporate entity, to ensure that policies are in place to accommodate persons with disabilities and that they are adhered to by its personnel.
It is inconceivable, in Ms. Donszelmann's view, that the carrier would make no attempts to accommodate passengers with disabilities. She adds that if all bulkhead seats had been assigned to individuals with more severe disabilities than hers, she would not have complained about the carrier's inability to provide her with such seating. However, this was not the case. In this regard, Ms. Donszelmann points out that some of the bulkhead seats had been assigned to a family of four and a group of teenagers.
Air Transat apologizes for the difficulties encountered by Ms. Donszelmann and regrets that she did not receive the service to which she was entitled. Air Transat indicates that it is its prime objective to provide all of its customers, including persons with disabilities, with the most complete and efficient service possible. Air Transat adds that it takes great pride in preparing and training its personnel to meet the special needs of passengers with disabilities but, unfortunately, errors or miscommunication can occasionally occur.
Air Transat emphasizes that the fact that Ms. Donszelmann's complaint was filed almost one year after the events occurred has compromised its ability to provide a well-informed response. In this respect, Air Transat indicates that one of the employees who dealt with Ms. Donszelmann at the London Gatwick airport is no longer employed by Gatwick Handling Limited (its provider of service at Gatwick) and that its London-station manager has no recollection of any of the events that took place on that specific day. Moreover, the report of the in-flight supervisor makes no mention of the incidents raised by Ms. Donszelmann.
Air Transat confirms that Ms. Donszelmann was not provided with a bulkhead seat on her return flight from London on July 24, 1998. Its internal investigation indicates that her request for such seating accommodations was never received by either of its offices in Toronto or Montréal prior to the day of her flight to Amsterdam. Air Transat also points out that Ms. Donszelmann's PNR, which was completed and transmitted to the carrier by Air Transat Holidays, does not indicate that specific seating assignment was requested.
With respect to Ms. Donszelmann's claim that a representative of Air Transat informed her that a doctor's letter was required in support of her special seating request, Air Transat expresses doubts as to whether the person she spoke to actually worked for Air Transat or Air Transat Holidays, a separate corporate entity and the tour operator responsible for the issuance of Ms. Donszelmann's airline tickets. In this regard, Air Transat explains that the carrier's requirement to provide a medical letter in support of a specific seating request was abolished approximately two years ago, which is something that its own employees would normally have known.
With respect to Ms. Donszelmann's phone call to her sister's travel agent in Scotland, Air Transat emphasizes that it does not have offices in Scotland. Air Transat therefore assumes that Ms. Donszelmann most likely spoke to a representative of The Globespan Group PLC, a tour operator who charters seats on Air Transat's flights and sells them in the United Kingdom. Air Transat submits that this tour operator is not, however, involved in advance seat selection and does not act as a representative of the carrier in this respect.
With respect to the concerns raised by Ms. Donszelmann regarding the application of its accessible seating policy, Air Transat provided the Agency with a copy of a written statement made by its London-station manager which confirms that he is fully aware of the carrier's policy and procedures regarding the transportation of passengers with disabilities, including the need to provide specifically requested seating to passengers with disabilities "on a priority basis" and that there is no longer a requirement to provide a medical letter.
Air Transat explains, however, that it is usually very difficult for check-in agents to make changes to previously confirmed seating assignments as passengers who were already given boarding passes are not always easily located, especially in large airport terminals where they can wander around while awaiting their flight departure. Furthermore, because Air Transat does not have computerized check-in and seating assignment at the London Gatwick airport, changes to seating assignment can not be made at the boarding gates. Consequently, Air Transat submits that requests for changes to seating assignments are best dealt with by personnel on board the aircraft. In Ms. Donszelmann's case, Air Transat notes that efforts were made by the cabin crew to have passengers seated in bulkhead seats volunteer to exchange their seats. Unfortunately, none of the passengers who were approached agreed to do so. Except for reasons of safety or security, Air Transat stresses that cabin crew personnel are not authorized to force passengers to change seats.
Notwithstanding the above, Air Transat submits that its new direct seat reservations system should avoid any such difficulties in the future as the passenger deals directly with the air carrier on this issue, thus eliminating intermediaries and reducing the risk of error. This system was recently put in operation and Air Transat advises that it has yet to receive any complaints from passengers with disabilities requiring specific seating.
ANALYSIS AND FINDINGS
In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
Where a customer demonstrates a need for a seat type to accommodate a disability, for example a seat with extra legroom, the Agency is of the opinion that the carrier should give priority to that customer over someone who prefers, but does not require that seat.
The Agency is of the opinion that it is not clear from the evidence on file whether or not the details concerning the nature of Ms. Donszelmanns's disability and her request for bulkhead seats were actually received by Air Transat prior to the departure date of her trip to Amsterdam. On the one hand, Ms. Donszelmann claims that she did contact a representative of Air Transat before the departure date of her outbound flight to explain her disability and need for bulkhead seats and that, as instructed, she faxed a copy of her physician's letter to the carrier to support her request for such seating accommodations. On the other hand, Air Transat indicates that Ms. Donszelmann's request for bulkhead seats was never received by either of the carrier's Toronto or Montréal offices. It is also noted that Ms. Donszelmann's PNR, which was completed by the tour operator involved and transmitted to the carrier, does not contain information on the nature of Ms. Donszelmann's disability or an indication that specific seating assignment was requested. Consequently, the Agency is unable to make a finding in this respect.
The Agency notes, however, that Air Transat had an accessible seating policy and procedures in place at the time of travel outlining its ability to make changes to seat assignments in order to accommodate persons with disabilities. The existence and application of this policy is evidenced in the case at hand by the fact that while Ms. Donszelmann had not initially been assigned a bulkhead seat at check-in at Toronto on July 5, 1998, arrangements were ultimately made for her to be seated in a bulkhead seat on the outbound flight. This was not, however, the case for the return flight. While the Agency notes the arguments raised by Air Transat to explain why, under the special circumstances and the constraints relating to the reassigning of confirmed seats at the London Gatwick airport, Ms. Donszelmann was not provided with a bulkhead seat on her return flight, the Agency is of the opinion that this situation could have been avoided if Air Transat's personnel at check-in at Toronto on July 5, 1998 had rectified the problem by processing the request at that time. Modifications could have been made to her PNR at that time, and the carrier had more than two weeks within which it could have made arrangements to ensure that Ms. Donszelmann would be provided with a seat compatible with her needs on the return flight. The Agency is also concerned about situations such as the one experienced by Ms. Donszelmann where application of the carrier's accessible seating policy and procedures fails to guarantee that passengers with disabilities are provided with seating that meets their needs.
Accordingly, the Agency finds that the seating arrangements provided to Ms. Donszelmann on her return flight created an obstacle to her mobility in that, as a result of the inappropriate seating, she had to remove her leg brace and experienced pain and discomfort for the duration of the return flight. The Agency further finds the obstacle to be undue in that it could have been avoided had the employees of Air Transat and those of its service provider who dealt with Ms. Donszelmann at both the Toronto and London airports made appropriate arrangements, in accordance with the carrier's accessible seating policy, to provide her with seating accommodations compatible with her disability and needs on her return flight.
In this respect, the Agency notes that Air Transat has introduced a new direct seat reservations system which should assist in preventing the recurrence of situations similar to the one experienced by Ms. Donszelmann, as the carrier now deals directly with passengers with disabilities on this issue. Air Transat should however advise of the measures that were taken to ensure that the travel agencies and the travel wholesalers with whom it does business are informed of the introduction and operation of this new service.
In addition, the Agency finds that Air Transat should issue a bulletin to all of its passenger service employees, check-in agents and in-flight personnel at the Toronto airport and those of its service provider at the London Gatwick airport, summarizing the incidents experienced by Ms. Donszelmann and stating the steps and procedures to be followed in order to prevent a recurrence.
Based on the above findings, the Agency finds that the failure by the personnel of the air carrier in Toronto and those of its service provider in London to make arrangements and/or seating changes, in accordance with the carrier's accessible seating policy, to provide Ms. Donszelmann with seating compatible with her disability and needs on her return flight constituted an undue obstacle to her mobility.
Consequently, the Agency hereby requires Air Transat:
- to issue a bulletin to all of its passenger service employees, check-in agents and in-flight personnel at the Toronto airport and those of its service provider at the London Gatwick airport, summarizing the incidents experienced by Ms. Donszelmann and stating the steps and procedures to be followed in order to prevent a recurrence of such incidents; and to provide the Agency with a copy of this bulletin within thirty (30) days from the date of this Decision; and
- to advise the Agency, within thirty (30) days from the date of this Decision, of the measures that were taken to ensure that the travel agencies, the tour operators and the travel wholesalers with whom it does business in Canada and overseas are informed of the introduction and operation of its new direct seat reservations system.
Following its review of the requested material, the Agency will determine whether further corrective action is required.