Decision No. 13-AT-A-2018
APPLICATION by Muhammad Sharif against Air Canada also carrying on business as Air Canada rouge and Air Canada Cargo (Air Canada).
 Shafique Ahmad, on behalf of his father, Muhammad Sharif, filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), against Air Canada, alleging that it did not provide one of two wheelchairs that were requested and confirmed by the carrier at the time of booking.
 This Decision considers whether Air Canada can remove the obstacle encountered by Mr. Sharif without suffering undue hardship and if so, what corrective measures are required. It also considers Mr. Sharif’s claim for compensation for suffering and inconvenience.
 For the reasons described below, the Agency finds that the obstacle can be removed without causing Air Canada undue hardship and orders policy adjustments and internal communications to achieve this outcome. The Agency also finds that it lacks the jurisdiction to order payment of the compensation sought by Mr. Sharif.
 In Decision No. LET-AT-A-77-2017, the Agency found that Mr. Sharif is a person with a disability and that he encountered an obstacle to his mobility when Air Canada delayed providing Mr. Sharif with wheelchair assistance, which was requested in advance of the flight, by prioritizing assistance to an individual who had requested a wheelchair only after disembarking from the aircraft.
 The Agency also opened pleadings on whether Air Canada can remove that obstacle – potentially through adjustments to its policies and practices that would ensure that a person with a disability who requests a wheelchair at least 48 hours in advance of travel receives it on a priority basis – without suffering undue hardship.
 The application was filed pursuant to subsection 172(1) of the CTA, which reads as follows:
The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.
 In this Decision, the Agency will address whether, without causing undue hardship for Air Canada, the obstacle can be removed through a general modification to the rule, policy, practice, or physical structure, or, if a general modification is not feasible, through an accommodation measure.
POSITIONS OF THE PARTIES
Air Canada’s position
 Air Canada submits that it cannot remove the obstacle without suffering undue hardship, for a number of reasons.
 First, Air Canada argues that it would be impossible to prioritize wheelchair assistance for those making advance requests as such a policy would force the carrier to violate its obligations under the U.S. Department of Transportation’s Regulation 14 CFR Part 382 – Nondiscrimination on the basis of disability in air travel (14 CFR Part 382). Air Canada states that this legislation, which applies to passengers travelling on all Air Canada flights to and from the United States of America and to passengers travelling on any United Airlines code-share flight operated by Air Canada, prohibits the carrier from discriminating between passengers who make advance requests for wheelchair assistance and those who do not.
 Air Canada submits that if it prioritizes a passenger who made an advance request for wheelchair assistance over a passenger who is travelling to the United States of America but did not make an advance request, it would be in contravention of its obligations under U.S. law and subject to fines of US$32,140 per event.
 Second, Air Canada states that prioritizing wheelchair assistance for those making advance requests would be impossible and/or harmful to implement at airports. Air Canada submits that, depending on the number of passengers requiring wheelchair assistance and agents assigned, the most efficient and logical way of providing assistance to all passengers may be for the first passenger off of the aircraft to be assisted first, regardless of whether an advance request was made. According to Air Canada, its agents must have flexibility in exercising their best judgement in order to assist all of its passengers.
 Third, Air Canada submits that it is essential that it maintain operational integrity, and in order to ensure that passengers make their connecting flights, its agents must be able to prioritize passengers with tight connection times. Air Canada contends that prioritizing wheelchair assistance for those making advance requests would cause disproportionate harm to a passenger who requires assistance but did not make an advance request, if that passenger missed a connecting flight because priority was given to a passenger who made the request in advance but had a longer connection time.
 Fourth, Air Canada submits that there may be legitimate reasons for passengers making last minute requests; for example, a passenger may have experienced a sudden and unforeseen attack of a pre-existing condition, or a passenger’s condition may have worsened during a flight, thereby necessitating assistance from the carrier’s agents. Air Canada contends that prioritizing wheelchair assistance for those making advance requests would discriminate against these passengers because they did not make an advance request (as the need did not exist at the time of booking), but nevertheless require as much assistance as any passenger who did make an advance request.
 Finally, Air Canada states that unforeseeable delays are common in the air transportation industry; and in light of the fact that global distribution systems sell itineraries with minimum connection times, passengers who require assistance are advised to ensure that they have sufficient time to connect between flights. According to Air Canada, the short delay experienced by Mr. Sharif is not unreasonable given that he was promptly assisted, and although the Agency concluded that the delay was an obstacle to Mr. Sharif’s mobility, Air Canada submits that a seven or eight minute delay is not an undue obstacle.
Mr. Sharif’s position
 Mr. Sharif submits that it is not discriminatory for a carrier to provide assistance to a passenger who made an advance request for a wheelchair ahead of a passenger that made a last minute request. Rather, Mr. Sharif believes that it is more discriminating to assist passengers who did not make an advance request over passengers who did.
 Mr. Sharif further states that Air Canada failed to prove, or even claim, that another passenger was given priority ahead of himself because of a shorter flight connection time. Moreover, Mr. Sharif agrees that an exception to such prioritization could be made in cases of emergencies - which Air Canada did not claim happened during the events covered by his application. Further, Mr. Sharif argues that even in emergency situations, it is Air Canada’s moral and legal obligation to inform a passenger who has requested advance assistance, and to seek that passenger’s permission, before giving priority to another passenger.
ANALYSIS AND DETERMINATIONS
 Air Canada claims that pursuant to 14 CFR Part 382, it is legally prevented from discriminating between passengers who make advance requests for wheelchair assistance and passengers who do not. Air Canada suggests that it would be in contravention of the U.S. law if it prioritized passengers who make advance requests for wheelchair assistance over passengers travelling to or from the United States of America who have not made an advance request.
 The Agency notes that while 14 CFR Part 382 includes a stipulation that a carrier must not require a passenger with a disability to provide advance notice in order to receive assistance, it does not appear to preclude giving priority, in terms of which passengers receive wheelchairs first, to those who make such a request. The Agency finds that Air Canada has not established that the prioritization of wheelchair assistance for those making advance requests would result in a violation of 14 CFR Part 382.
 Air Canada also provides various arguments on how logistical and application difficulties would result from prioritizing wheelchair assistance for those making advance requests. The implication of Air Canada’s submissions in this regard appears to be that an advance request for wheelchair assistance actually has little to no bearing on when a passenger receives a wheelchair. If true, this would suggest that passengers who make such requests may be wasting their time. Moreover, it is reasonable to assume that there is some correlation between the seriousness of a passenger’s mobility impairments and the likelihood that they would make an advance request for wheelchair assistance, such that giving no weight to those requests could have a discriminatory impact.
 That said, the Agency agrees with Air Canada that an unduly rigid policy of prioritizing advance requests for wheelchair assistance could have unintended negative consequences, including in the contexts of medical emergencies and particularly tight connection times.
 In light of the above, the Agency finds that Air Canada did not establish that it would experience undue hardship if it prioritized wheelchair assistance for passengers who make advance requests, provided that such prioritization is not absolute and can be applied with reasonable flexibility where exceptional circumstances warrant.
 With regard to Mr. Sharif’s request for a refund of the full ticket amounts for "compensation to lessen the anxiety and trouble" that he and his wife have experienced, the Agency does not have the jurisdiction to order compensation for inconvenience, pain, or suffering, as stated in previous decisions, such as Decision No. 18-C-A-2015 (Enisz v. Air Canada) and Decision No. 55-C-A-2014 (Brine v. Air Canada). Therefore, the Agency dismisses Mr. Sharif’s claim for compensation.
 The Agency orders Air Canada to:
- Modify its policies and procedures with respect to the provision of wheelchair assistance to ensure that priority is given to passengers who make advance requests for such assistance, except where exceptional circumstances such as medical emergencies or particularly tight connection times warrant giving priority to passengers who have not made an advance request, and,
- Issue a bulletin to all Air Canada personnel at the Meda Desk, as well as to staff and agents providing wheelchair assistance, that clearly communicates the revised policies and procedures and explains how they are to be properly applied.
 Air Canada has until April 9, 2018 to complete these actions.