Decision No. 94-AT-A-2017

October 6, 2017

APPLICATION by Air Canada also carrying on business as Air Canada rouge and as Air Canada Cargo (Air Canada) pursuant to section 32 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).

Case number: 
16-05864

SUMMARY

[1] Air Canada has applied to the Canadian Transportation Agency (Agency) to vary Decision No. 345-AT-A-2016 (Decision).

[2] In this decision, the Agency will address the following issue:

Has there been a change in the facts or circumstances pertaining to the Decision since it was issued that is sufficient to warrant a variance of the Decision pursuant to section 32 of the CTA)?

[3] For the reasons set out below, the Agency finds that:

  1. Air Canada has not met its burden to adduce sufficient evidence demonstrating a change in facts or circumstances significant enough to warrant a variance of the third corrective measure of the Decision pursuant to section 32 of the CTA;
  2. Air Canada has raised new facts significant enough to warrant a variance of the fourth corrective measure of the Decision pursuant to section 32 of the CTA.

BACKGROUND

[4] On November 14, 2016, the Agency issued the Decision in response to an application filed by Bruce Kruger against Air Canada. Mr. Kruger expressed concerns pertaining to Air Canada’s policy in respect of seating accommodation for persons with disabilities, specifically in respect of his need to be seated in the window seat in the back row to accommodate his disability-related needs, and confirmation of this seating time of reservation.

[5] In the Decision, the Agency ordered Air Canada to:

  • Enforce the proper application of its seating policy and procedures by its personnel at all times to provide Mr. Kruger with the insurance that when he contacts Air Canada more than 24 hours prior to his departure, his disability-related needs will be accommodated;
  • Enforce the proper application of its policy and procedures regarding the communication of disability-related needs to in-flight personnel by its personnel at all times, including the requirement that flight manifests clearly inform in-flight personnel of instances where passengers have been assigned particular seats to accommodate their disability-related needs.
  • Confirm that, once updated, Air Canada’s reservation system will automatically reassign seats and transfer information on passengers’ disability-related needs, including any requirement for specific seating, when there is a change of aircraft type. In the interim, Air Canada personnel must contact Mr. Kruger and any other travellers with disability-related needs for specific seating to discuss seating arrangements when a change in aircraft type takes place; and
  • Upon contacting the Meda Desk, provide Mr. Kruger and other travellers with disability‑related needs with a permanent file number/identifier preventing them from having to resubmit their medical information with each new call or reservation.

[6] Air Canada was provided until December 12, 2016 to demonstrate, to the satisfaction of the Agency, that it had complied with the above orders. In addition, in respect of its new reservation system, Air Canada was ordered to report to the Agency on the progress of this project (i.e., timeframes and implementation deadline) within 18 months of the Decision, which would be at the latest on May 14, 2018.

[7] On December 12, 2016, Air Canada applied to the Agency to vary the Decision pursuant to section 32 of the CTA.

[8] In Decision No. LET-AT-A-25-2017, the Agency accepted that Air Canada had demonstrated that it had implemented the first and second corrective measures, but required additional information on Air Canada’s request for a section 32 review in respect of the third and fourth corrective measures.

THE LAW

[9] Section 32 of the CTA provides as follows:

The Agency may review, rescind or vary any decision or order made by it or may re‑hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

[10] In dealing with an application for review of a decision pursuant to section 32 of the CTA, the Agency must first determine whether, since the decision, there has been a change in the facts or circumstances pertaining to the decision. The facts or circumstances cannot be those known to or discoverable by the parties at the time of the original hearing. If there has been no change in the facts or circumstances since the decision, the decision stands.

[11] If, however, the Agency finds that there has been a change in the facts or circumstances since the issuance of the decision, it must then determine whether the change is sufficient to warrant a review, rescission or varyiance of the decision.

[12] The burden of proof rests on the applicant requesting the review pursuant to section 32 of the CTA to provide the Agency with sufficient evidence demonstrating that the two conditions above have been met.

HAS THERE BEEN A CHANGE IN FACTS OR CIRCUMSTANCES PERTAINING TO THE DECISION SINCE IT WAS ISSUED?

Third corrective measure

AIR CANADA’S POSITION

[13] Air Canada requests that the Agency rescind its decision and remove the third corrective measure because it is unable to confirm the features and functionalities of its new reservation system which has not yet been implemented.

[14] Air Canada explains that it is presently in contract discussions around scope refinement with the vendor that it selected for its new Passenger Service System, and that this process is targeted to conclude during the third quarter of 2017. Once the scope is approved, Air Canada will begin the “full project”, with an implementation target timeframe of 18-24 months (i.e. 2019-2020).

[15] Air Canada has listed a number of “fairly high level” requirements for its system, which it submits respond to the requirements set out in the Decision. For example, Air Canada lists the following functionalities:

  • automatically retain or rebook SSR elements in the event of schedule change/irrop (carrier driven) or a rebooking to another class and/or flight (customer driven); synchronize with third party systems, when applicable.
  • alert when customers cannot be re-accommodated.
  • transfer existing passengers from original flight to new seat map, maintaining airline defined seating and reseating rules according to customer value, purchased seats, SSR’s (PETC, WCHR, MEDA, etc.), families, groups, etc.
  • identify passengers by their Standard Service Requests (SSR) and Other Service Information (OSI) by attaching these to their entire journey.

[16] Air Canada submits that it is unable to provide further specifics on how the Agency’s requirements will be met, as this level of detail is not yet known.

[17] In respect of the interim measure included in the third corrective measure, Air Canada confirms that its personnel will contact Mr. Kruger to discuss seating arrangements when a change in aircraft type takes place, “unless such a change is at the last minute on day of travel”. As for other passengers in a similar situation, Air Canada will contact them provided that the change is known before the day of travel and affects the seat previously identified, and as long as the seating accommodation is position-specific and not feature-specific.

MR. KRUGER’S POSITION

[18] Mr. Kruger asks that, once Air Canada knows how the Agency’s requirements will be met, he and the Agency be notified to ensure compliance.

Analysis and Determination

[19] Air Canada has provided limited evidence to demonstrate that there has there been a change in the facts or circumstances pertaining to the third corrective measure since the Decision was issued. Air Canada confirms that it included the requirements ordered by the Agency in the scope for its new Passenger Service System. It is therefore reasonable to expect that those requirements will be reflected in the contract to be finalized with the vendor that Air Canada selected.

[20] While Air Canada might be unable, at this time, to confirm that its new reservation system will automatically reassign seats and transfer information on passengers’ disability-related needs, including any requirement for specific seating, when there is a change of aircraft type, it should be able to confirm this requirement once the vendor that it selected approves the scope of the new reservation system. It appears that what Air Canada actually needs is an extension of time to comply with the third corrective measure.

[21] In respect of the interim measure, Air Canada does not explain why it would be impossible to contact Mr. Kruger or other passengers with a disability when a change in aircraft type takes place on the day of travel, nor does it explain why it will only contact passengers in situations where the seating accommodation is position-specific and not feature-specific.

[22] Accordingly, the Agency finds that Air Canada has not met its burden to demonstrate that there has been a change in the facts or circumstances pertaining to the Decision since it was issued that is sufficient to warrant a variance of the third corrective measure, including the interim measure, pursuant to section 32 of the CTA.

[23] The Agency accepts, however, that Air Canada requires additional time to ensure compliance with the third corrective measure.

[24] The Agency notes that one of the functionalities of the new reservation system, i.e. the functionality to allow to “transfer existing passengers from original flight to new seat map, maintaining airline defined seating and reseating rules according to customer value, purchased seats, SSR’s (PETC, WCHR, MEDA, etc.), families, groups, etc.”, as set out by Air Canada, does not appear to prioritize the accommodation of persons with disabilities. The Agency will not delve into the particular functionalities of the system; however, it is expected that the accommodation of passengers’ disability-related needs, which is a human right, will take priority when an aircraft change occurs, and that the reservation system will be developed accordingly.

Fourth corrective measure

AIR CANADA’S POSITION

[25] Air Canada requests that the Agency rescind or vary the Decision with respect to the fourth corrective measure to delete the obligation to create a permanent file for “other travellers with disability‑related needs”. Air Canada explains that its current reservation system does not support the creation of a permanent file for every passenger who may have a disability-related need. Air Canada submits that a permanent file that it creates does not interact in all circumstances with the reservation system and “does not provide the solution that is required by each of these passengers”. Air Canada argues that it must retain the ability to assess whether the creation of a permanent file is appropriate on a case-by-case basis for other travellers with disability-related needs. Air Canada argues that to impose the obligation on the Meda Desk to create permanent files in situations where doing so is unnecessary would create an excessive, disproportionate and unduly costly administrative burden on Air Canada.

[26] Air Canada further refers to the creation of long-term files, and submits that its Meda Desk must retain the ability to assess the circumstances in which these are appropriate. Air Canada points to the possibility that persons with permanent conditions develop co-morbidities that require medical assessment. Air Canada submits that it should have the ability to require confirmation from the passenger’s treating medical professional that the disability is stable and unlikely to evolve significantly over a pre-determined duration of time. Air Canada notes that the Agency has previously accepted the creation of long-term files of varying lengths, and states that a passenger with a stable condition with a lower chance of evolution will have a 10-year long-term file, whereas a passenger with a condition that is currently stable, but that could evolve, will have a 2‑year long-term file. Air Canada is of the view that a long-term file should only be opened at the request of a passenger, and that relevant information in that regard is available on its website.

[27] Air Canada argues that to implement this corrective measure would be contrary to the Guiding Principles found in the Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5); namely, that information should not be kept for longer than is actually needed, and if kept for a prolonged period, it needs to be accurate and up-to-date.

MR. KRUGER’S POSITION

[28] Mr. Kruger states that, until a qualified company determines that the required adjustment to Air Canada’s reservation system is impossible, and until this is verified by a second “independent computer company”, he considers Air Canada’s arguments to that effect to be without value.

[29] Mr. Kruger submits that it is inconceivable that a company cannot maintain records of passengers with accommodation needs on a long-term basis. Mr. Kruger adds that it would represent a very limited expense for Air Canada to create long-term files for the limited number of permanent disabilities, compared to the number of files that Air Canada does retain, in comparison to the cost for passengers to continuously have to update their medical record.

[30] Mr. Kruger argues that a long-term file should be created automatically, for each passenger with a permanent disability, and that Air Canada should advise passengers of the availability of this option.

Analysis and Determination

[31] Air Canada has made convincing arguments regarding the operationalization of the fourth corrective measure, particularly in respect of maintaining permanent file numbers/identifiers for persons with disability-related needs. The Agency agrees that long-term files, as opposed to permanent files, would achieve the objective of ensuring that persons with disabilities do not have to resubmit their medical information with each new call or reservation. In addition, these long-term files would allow Air Canada to update the disability-related information of a passenger when needed, at a frequency that would not impose an unacceptable burden on persons with disabilities.

[32] Similarly, the Agency agrees that a long-term file might not be required for each new passenger with a disability travelling with Air Canada. Some passengers may travel only once with a carrier, and there would be no benefit in maintaining their information in the reservation system.

[33] The Agency accepts the above constraints as new facts significant enough to warrant a variance of the Decision pursuant to section 32 of the CTA.

CONCLUSION

[34] The Agency grants Air Canada until November 6, 2017 to comply with the third corrective measure as it stands in the Decision, namely:

Confirm that, once updated, Air Canada’s reservation system will automatically reassign seats and transfer information on passengers’ disability-related needs, including any requirement for specific seating, when there is a change of aircraft type.

[35] Air Canada must be in compliance with the interim measure included in the third corrective measure by November 6, 2017, namely:

In the interim, Air Canada personnel must contact Mr. Kruger and any other travellers with disability-related needs for specific seating to discuss seating arrangements when a change in aircraft type takes place.

[36] The Agency varies the fourth corrective measure and requires that Air Canada comply with the following by November 6, 2017:

Upon receipt of a request by the Meda Desk, provide Mr. Kruger and other travellers with disability-related needs with a long-term file number/identifier preventing them from having to resubmit their medical information with each new call or reservation.

[37] As stated in the Decision, Air Canada is ordered to report to the Agency on the progress of its Passenger Service System project (i.e. timeframes and implementation deadline) within 18 months of the Decision, at the latest on May 14, 2018.

Member(s)

Scott Streiner
P. Paul Fitzgerald
William G. McMurray
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