Air Travel for People Who Use Wheelchairs

(The Lemieux-Brassard Case)

By David Baker

(Reprinted, with permission, from ARCH*ALERT Volume 4 No.1 1998)

The Canadian Transportation Agency held its first oral hearings on travel for persons with disabilities since 1980 when it made its landmark decision in Clarris Kelly v VIA which first gave rail passengers with disabilities a legal right to travel.

The hearing of Lucie Lemieux-Brassard's case against Air Canada and Canadian Airlines received some media attention (it was broadcast live over CPAC), but the ultimate decision was covered almost exclusively in the business media. While this may reflect the financial impact of the decision on the airlines, it does little to communicate how it will benefit air travellers with disabilities.

You are asked to bring this information to the attention of those who may be affected.

Role of Canadian Transportation Agency

When air travel was deregulated in 1986-87, the federal government decided that the two areas which could not be left to the marketplace were air safety and accessible transportation for persons with disabilities. The Agency is responsible for the latter, which makes up approximately 50% of its current workload. The Agency addresses barriers to equal access in rail, passenger ferry and inter-provincial bus travel. It does so in two ways:

1. It can establish regulations which set standards to be met by transportation providers. These regulations require Cabinet approval which has been a major problem for some important regulations proposed by the CTA. Most recently, the Agency has issued guidelines; which are not binding on transportation providers but may reflect the standards which would be applied in individuals cases.

2. The Agency also can receive individual written complaints. No particular form need be completed (although there is one available). The Agency generally conducts a written hearing (i.e., as opposed to expensive and intimidating oral hearings). Its staff may conduct investigations and interview witnesses by conference call. The Agency considers all the evidence and decides whether the barrier/unacceptable treatment constituted an "undue obstacle" to the person's mobility. A decision must be issued within 120 days of receiving the complaint. It can order remedial steps be taken and that compensation be provided. There is no cost to the person lodging the complaint, even if the complainant does not win.

To file a complaint, write to:

Canadian Transportation Agency
Accessible Transportation Directorate
Ottawa, Ontario
K1A 0N9

For further information call toll free to:
Voice: 1-800-883-1813 or 997-6828

TTY: 1-800-669-5575 or 953-9705

The Lemieux-Brassard Decision

Lucie Lemieux-Brassard was appointed to serve on the Federal Task Force on Disability Issues (The Scott Task Force). The Task Force's Report, The Will to Act: Equal Citizenship for Canadians with Disabilities; was issued in 1996.

The Task Force consulted with Canadians in 14 cities. Ms. Lemieux-Brassard filed an individual complaint stating when encountered obstacles on 14 of the 17 flights she took over an 18-day period while on Task Force business. In a decision dated August 19, 1997, the Agency ruled her rights to equal transportation had been violated 22 times while travelling on the 14 flights.

The Agency held oral hearings from September 24 to 26, 1997 to deal with a number of systemic issues. Its decision was released March 30, 1998.

Specific Results

Accessible Seating

Rule

The regulations provide that where a passenger identifies the nature of his or her disability, the carrier shall, before assigning a passenger seat, inform the person of the seats that are most accessible for the person. The regulations also require that where an air carrier assigns seats in advance of travel, those seats which provide added accessibility should be the last assigned to persons with disabilities.

Problem

Airlines were only reserving seats with removable armrests. These were the least desirable seats fromevery other perspective (e.g., leg room, proximity to exit rows and washrooms. Travel agents (who book over 80% of flights) could not reserve these other seats prior to the flight. Travel agents and airline reservation agents did not have enough information about aircraft seat maps to match a person's needs to the seat which would be most accessible to the person.

Order

The airlines have been ordered to reserve a range of seats for persons with disabilities, including those close to exit rows and washrooms, as well as bulkhead seats if they provide additional leg room and are not exit rows. This will mean that travel agents will be able to match a passenger's needs to a range of reserved seating and book the seat in advance. It will also mean passenger's with disabilities will not have to book long in advance in order to get accessible seating because non-disabled persons will not be allowed to book the seats. Finally, it should mean embarrassing shifting of seats on board planes will be a thing of the past.

Handling Wheelchairs

Rule

Air carriers are required to train their employees to be able to disassemble, package, unpackage and reassemble mobility aids.

Problem

Staff training on electric wheelchair handling has been poor, causing unnecessary damage to chairs and missed flights in some cases. Some classes of employees have not received any training, leading to lengthy delays and an attitude that the passenger is responsible for directing disassembly and reassemble. One airline felt it was the passenger's responsibility to provide the necessary tools and there is no standardization of which tools will be available at an airport.

Order

The Agency ordered that staff training on wheelchair handling be improved, that regular re-training occur and that a broader range of employees receive it. Airlines must maintain an approved list of standard tools at all airports. Travel agents will be able to inform passengers of the tools they can expect will be available. the airline's responsibility for wheelchair handling was clarified.

Damaged or Lost Wheelchair

Rule

Where a mobility aid is damaged or unavailable, the air carrier is to immediately provide a suitable temporary replacement and arrange for its prompt and adequate replacement or repair. These services are to be at the carrier's expense.

Problem

Airlines have provided electric wheelchair users with manual replacement chairs without providing an attendant to permit independent mobility. Passengers who could not leave their aid while in transit or who wished to have their aid replaced by a repair-person of their choosing were taken to have waived their rights. Airline procedures for meeting their obligations were inflexible or unclear. No authoritative source explaining the passenger's options was readily available. Passenger's experienced long delays while procedures were clarified.

Order

Electric wheelchair users are entitled to an electric replacement chair, or if none is available, to the services of a paid attendant to propel a manual chair. An approved brochure outlining the repair/replacement options is to be given to the passenger. Within one hour of learning the chair is damaged or lost, the carrier must inform the passenger of what is it able to provide by way of replacement. Airlines are to maintain lists of local/repair establishments near each airport. It is anticipated that the airline repair policies, which the CTA has yet to approve, will emphasize flexibility, passenger choice, and direct payment/prompt reimbursement of repair costs.

Confirmation of Services/Check-in

Rule

Air carriers are to describe the special services they will provide to a passenger with a disability, if the passenger requests this information 48 hours before departure. The carrier is to make a reasonable effort to respond to later requests. Both Canadian and Air Canada are required to print a list of these services on the reservation record which should be included with the ticket.

Problem

Airlines do not provide easily accessible information about the services they provide to passengers with disabilities. Travel agents and airline reservation agents do a poor job of matching a passenger's needs to available services. The services listed on the passenger record are in code which is incomprehensible to the passenger and is incomplete, so airline personnel can to track promised services when assessing their computers. Special disability check-in procedures from airport to airport vary, and passengers with disabilities have no way of learning of them prior to arrival at the airport.

Order

Canadian and Air Canada must now routinely provide a complete and comprehensible written confirmation of the services it will provide prior to departure. Special check-in procedures for each airport will be accessible to travel agents and airline reservation agents, who are required to provide each passenger a written summary of these procedures upon request.

Other Items Covered in the CTA Order

1. Airline personnel are to be trained to inform disgruntled passengers with disabilities about their right to file a complaint with the CTA.
2. The carriers are to further breakdown customer complaint data so as to monitor service quality and improve employee training in this area.
3. Persons with disabilities are to be included in the development and delivery of staff training courses related to serving passengers with disabilities.
4. Numerous training issues were addressed which should improve service quality, but may not be of direct concern to travellers.
5. To review the complete original order (Decision No. 512-A-1997) and the systemic order (Decision No. 120-AT-A-1998), go to the CTA website at http://www.cta.otc.gc.ca or call the toll free line listed above for more information.

Issues Still to be Addressed

The CTA has demonstrated its concern about how policies and procedures operate in the real world through this order. They have been less willing to confront issues of vehicle/airplane and station/airport accessibility.

1. Ms. Lemieux-Brassard was dropped when being manually carried down a set of stairs while deplaning in Montreal. The CTA ruled this was not an "undue obstacle" to her mobility. The airline subsequently agreed to use "every effort" to use wheelchair accessible gates at the airport when given prior notice that a person who uses a wheelchair is on board. A major issue of concern to persons with disabilities was therefore not fully addressed.
2. Ms. Lemieux-Brassard was boarded with a forklift in Yellowknife, notwithstanding that the "List Aloft" technology is available and should be available at all airports. The CTA has not yet ruled on whether the use of the forklift was an"undue obstacle" and has promised to "undertake broad consultations with affected parties as a number of questions and considerations have to be studied further" (i.e., before making a decision). These consultations have not yet been commenced.
3. The CTA ruled that a carrier's inability to carry Ms. Lemieux-Brassard's mobility aids on a small aircraft was not an "undue obstacle" without addressing the airline's obligation to accommodate her (e.g., by substituting a different plane when given reasonable notice, or providing a substitute aid on a temporary basis). The CTA did say it will "...in broader consultation, review the level of services currently being provided to persons with disabilities while travelling domestically with carriers operating aircraft with less than 30 seats". A similar commitment was made in an earlier decision as well. To date, this review has not been commenced.

Conclusion

Air passengers who use wheelchairs should see noticeable changes in the quality of service they receive from Air Canada, Canadian and Air Nova in the near future. (The carriers were given until June 30th to implement the Agency's orders).

A CTA project intended to encourage carriers to voluntarily remove communication barriers confronting blind, low vision, deaf and hard of hearing passengers was implemented in the fall of 1997. Continuing concerns about remaining communication barriers should be brought to the Agency's attention.

The Agency must confront the issues of smaller aircraft, charter flights, boarding devices and fares for attendants "one person-one fare". Concerned individuals and organizations may wish to encourage the CTA to move forward in these areas.