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Recent Accessible Transportation Decisions
Published in the October 2008 issue of Transportation Notes - View Article
In the month of October, the Canadian Transportation Agency released three decisions in long-running cases which raise the issue of the accommodation which persons with disabilities are entitled to in carriage by air.
The first case is a follow-up on a decision which was released almost seven years ago. Marie Laporte-Stark is a person with visual impairments who travels with a “seeing-eye dog”. She traveled with her husband, who is himself a person with visual impairments as well as being a member of Agency staff. Ms Laporte-Stark complained of nine separate obstacles which, she alleged, she encountered when traveling between Canada and Israel.
First, she maintained that airline staff showed a lack of familiarity with the proper treatment of a service animal. Her complaints were very general and the Agency found she failed to make a case. She had better luck with her second complaint: the carrier failed to advise her of her boarding options and this amounted to an undue obstacle. Two additional communication failures amounted to undue obstacles. The carrier should have advised her that she would be able to obtain assistance from a customs officer in completing the customs landing card. Furthermore, the lack of Braille briefing cards and an inadequate orientation briefing were undue obstacles.
Three more complaints were dismissed. Ms Laporte-Stark complained that she was not attended to promptly enough when she required ice for her dog. The Agency recognized that cabin crews have a variety of responsibilities and that instant attention cannot reasonably be expected. As to a complaint that there was inadequate signage in the airport, this was largely an airport authority issue and the Agency announced it would deal with it in a Code of Practice (which has since been promulgated). On the issue of accessibility of self-service check-in kiosks, the Agency found (this back in 2001) that given the state of the art and alternative service available at the check-in counter, there was no obstacle.
On returning to Canada after the flight from Israel, Ms Laporte-Stark’s dog was not able to relieve itself promptly for lack of an appropriate relief area. This constituted an obstacle, but it was not undue as the carrier was at the mercy of the airport operator. The Agency urged the carrier and operator to discuss the issue and this apparently has led to a satisfactory solution.
The two aspects of the case which are of most contemporaneous relevance involve the question of space for an assistance animal and the installation of tactile seat markers.
On the first issue, the Agency found that the dogs (there were two as Ms Laporte-Stark’s husband traveled with a dog as well) were uncomfortable and this constituted an obstacle although it was not undue as the assigned seats were the most accessible seats in the economy cabin. The Agency has reversed itself on this issue however. In a decision released in June, and upheld by the Federal Court in October, the Agency has ordered a carrier to provide “sufficient” space for a service animal even if that requires the setting aside of a second seat, effectively an extension of the Agency’s judicial expropriation of carrier property to promote accessibility.
The final aspect of the first Laporte-Stark case concerns tactile seat markers. In its original decision, the Agency ordered the carrier to install tactile markers to identify seat rows. It did so on the mistaken understanding that the carrier was in agreement with this course of action. When informed that the carrier in fact had not agreed, the Agency decided it would reconsider the matter. On October 16th of this year, the Agency announced the result of its reconsideration. The part of its earlier order requiring the installation of seat markers has been rescinded. The Agency concluded that, given the “systemic nature” of the issue it would undertake consultations “with a view to exploring the most appropriate accommodation regarding the installation and use of tactile row markers, so as to enhance access to independent air transportation by persons who are blind or have visual impairments.”
Ms Laporte-Stark raised many of the same complaints in another proceeding she instituted in 2000. Again the Agency decision was released this month. Three of the complaints are respecting matters which have largely been overtaken by events. In the first place, Laporte-Stark wanted her itinerary in an electronic format and the carrier was not able to provide this. It is common knowledge that, since the date of the complaint, itineraries in electronic format have become commonly available. The Communications Code (issued by the Agency in 2004) stipulates that carriers should develop a “Multiple Format Policy” to provide travel information in an accessible format. The problem identified by Laporte-Stark has been addressed and the Agency will take no further action in this regard.
Ms Laporte-Stark repeated her complaint respecting the accessibility of self-service check-in kiosks. This time there was an additional element: because she was not able to use the kiosk she lost the opportunity to collect additional loyalty program points. She advanced this complaint notwithstanding the fact that the carrier subsequently credited those points to her account. Here again, time has marched on since the complaint was filed. The Communications Code provides that, no later than June 1, 2009, where automated check-in processes are in place, at least one kiosk must be accessible to various persons with disabilities, including those who are blind or visually impaired. Again, no further corrective measures were required.
Another repeat complaint concerned the lack of adequate signage in the airports at Halifax and Ottawa. As this is “primarily a terminal responsibility” the Agency took no action against the carrier. It did point out that the Terminal Code of Practice calls upon terminal operators to “incorporate wayfinding methods that allow a person to find his or her way to a given destination” whenever renovations or new construction make this feasible.
There were two instances in which minor obstacles were encountered. In the first place, Ms Laporte-Stark, having previously selected a seat she considered appropriate, was told, during pre-boarding, that her seat assignment had been changed and she would be given a bulkhead seat. She protested and asked for her originally assigned seat. This request was honoured without incident. Nevertheless, she complained that this amounted to an undue obstacle to her mobility. The Agency characterized the incident as one which gave rise to an “inconvenience” and would take no further action. Laporte-Stark’s last complaint arose from the interaction between herself and a check-in agent. There was imperfect communication between the two and the Agency directed that the particular agent in question should receive additional training in techniques for effectively communicating with persons with disabilities.
The latest case dealt with by the Agency in a decision of October 16, 2008, also concerns a familiar name in accessibility litigation: Linda McKay-Panos. McKay-Panos is an obese woman who originally complained of difficulties she encountered in 1997 in connection with a flight from Calgary to Ottawa, via Toronto. She argued that obesity itself is a disability and that she encountered undue obstacles to her mobility due to her disability. The Agency did not agree that obesity, of itself, is a disability but did find that there are some obese persons who are disabled by their obesity. The Agency found that McKay-Panos was not one of these, but that decision was overturned by the Federal Court in January of 2006.
Once it was confirmed by the Court that she is a person with a disability, McKay-Panos intervened in the “one passenger-one fare” (OPOF) litigation. The issue in OPOF was whether persons with disabilities who require extra seating, either for their attendants or on account of their obesity, should be required to pay for any extra seats required. In a decision released early in 2008, the Agency found in favour of the complainants in the OPOF litigation. It ordered Air Canada, Jazz and WestJet to change their practices and procedures to ensure that qualifying persons with disabilities are no longer charged for extra seating on domestic flights. The ruling does not apply to other carriers and does not affect travel with an international component. The new rules are to go into effect early in 2009. At present, an application for leave to appeal the OPOF decision is pending before the Supreme Court of Canada.
Thus, as things now stand, and subject to the outcome of the leave application, McKay-Panos is entitled to an extra seat for free when she flies on a domestic service operated by Air Canada, Jazz or WestJet.
This, however, is not quite the end of the matter. McKay-Panos also complained of rude and insensitive treatment at the hands of Air Canada staff. There are several components to this complaint. In the first place, she was unhappy with the treatment she received when she called to make her reservation. She states that she explained her circumstances to reservations staff and offered to purchase a second seat or a seat in business class. She was told that this would not be necessary as she could be accommodated in a bulkhead seat which would provide sufficient space. This proved to be poor advice, but that is not the point of the present complaint. Rather, Ms McKay-Panos perceived a lack of sympathy and rudeness in the agent she dealt with. This person is alleged to have “made off-hand remarks and laughed about her situation”.
The second incident involving rudeness and indifference occurred on the flight from Calgary to Toronto. Neither she nor her neighbour could use the tables “because her hips spread over the armrests, which is where the chair tables are located on bulkhead seats”. She alleged that cabin crew made no attempt to assist her and “kept bumping [her] with their service carts”.
On her return flight, she attempted to have her seat assignment changed in Ottawa. This was not possible. When in Toronto and awaiting the connecting flight to Calgary she did arrange to purchase a ticket in business class, but the agent with whom she dealt was allegedly “rude, abusive and inhumane”.
The Agency accepted McKay-Panos’ version of events and found that there was “no excuse for the poor manner in which Ms McKay-Panos was treated”. It also acknowledged that this treatment did not arise from Air Canada’s policies. Those policies did not correspond with the treatment encountered. Accordingly, the issue is one which is to be addressed in training. The Agency concluded by directing the carrier “that its training program and related materials include information on providing services to, and interacting with, customers who are disabled due to obesity. It should be clear that obesity can be a disability and that it may require accommodation . . . training information must cover such aspects of sensitivity and awareness as the importance of treating with dignity those passengers who are disabled as a result of their obesity”.
CTA Decisions 519, 520 and 521 of 2008