Friday, November 21, 2008



So ... I'm sure that many of you heard about the Supreme Court of Canada denying WestJet and Air Canada the right to appeal the Canadian Transportation Agency decision which says that the 'one person, one fare' policy must stand (i.e. that some obese people and some disabled people cannot be charged for more than one airplane seat, even if they require two).

What KILLS me is the way that this story is reported in cases like this:

Obese have right to 2 airline seats

GAH! I'm pretty sure it's not about having the right to 2 airline seats, but about the right NOT to be discriminated against. Let's all keep in mind that the airlines choose the spacing of their seats ... with a MIND TO PROFIT from packing as many people in as possible. THIS IS THEIR CHOICE (and blaming it on the airline manufacturer is nonsense, since they'd be able to have it changed if they wished ... hence the existence of first class seats on some airlines). THE AIRLINES are creating the accepted norm for airline passenger body size by doing this, and therefore they are targeting certain passengers for differential treatment when they implement the 'one seat, one fare' policy to those that require more than one seat.

As for those that will say that the poor airlines will flounder because their profit margins are so narrow, they NEED to have every tiny seat filled and paid for to even break even ... to argue that the only way to ensure the success of a business is to require a discriminatory pricing policy is UNACCEPTABLE. There must be some brilliant business people out there that can take the parameters of a NON-DISCRIMINATORY scheme and effect some profit through an appropriate business plan ... especially when people are always going to have to fly!

Reading the CBC reporting of this ...
Top court backs free seat ruling for some disabled, obese travelers
... also makes me want to lose my mind.

Bus, train and ferry companies have long agreed to such arrangements, but the airline industry has argued it would lose too much money by doing the same.


But WestJet spokesman Richard Bartrem said there are still many unanswered questions.

"Will we be putting criteria in place to determine whether somebody travels with an attendant out of necessity or out of desire?" he said. "What is morbidly obese? How are we going to be able to make that determination and implement that respectfully, and consistently and fairly?"

It's like they aren't even TRYING! If other transportation services have already put these policies in place, what can POSSIBLY be so hard about figuring out how to get this done? They have examples to look at!!!! I'm fairly certain that most people who can't fit into one airplane seat are well aware of it (assuming they've flown before), and would take whatever measures that they could ahead of time (i.e. a doctor's note) to avoid any humiliation at the airport. Same goes for those that are disabled and need assistance ... I'm FAIRLY CERTAIN that the need for assistance is known about ahead of time, and a doctor's note would be fairly easy to obtain. Being clear about these policies at the time of booking a ticket doesn't seem like it is a far stretch either. I thought that people that made "big decisions" at companies like WestJet and Air Canada would have more creativity and gumption than this ... to be defeated by having to implement a non-discriminatory policy that they've KNOWN was coming for years now.


Not good for my blood pressure.



Anonymous said...

First, I agree that something should be done for those who truly need it.

Other than that I completely disagree with you.

The reason that the airlines pack people in like they do is that is what people want. If they didn't then people would not be flocking to fly on low cost airlines such as Easyjet Ryanair, Southwest, Westjet, etc. Instead they would be flying business class on other airlines. You can't have it both ways, lots of seating room and low prices.

Airlines in general run on very tiny margins and in North America in particular. I believe many airlines in the States are currently running in bankruptcy protection and I believe Air Canada (which recently emerged from bankruptcy) will once again enter bankruptcy protection. If you say that is due to a failure of their business plan you are likely right, but their business plan provides for seating with extra room which the vast majority of people are unwilling to pay for. It doesn't help that Canada is already one of the costliest countries in the world to fly in, Toronto was for several years the most expensive airport in the world (even including some airports which involved building an island to build the airport on).

As for changing the seating on the aircraft, that costs FAR more than you seem to understand, especially since these aircraft currently flying were setup with a centre aisle. Would you suggest taking out one seat on each side of most aircraft and thus removing 1/3 of the seats. You wouldn't be able to do just a few rows, as what happens if more people try to book a flight needing the extra space than extra space seating rows are available. On a short side note, somewhat related, I've heard people complaining that aircraft washrooms aren't wheel chair accessible. Will this be the next step, ensuring that the aircraft aisle and washroom are wheel chair accessible? If that's the case on a typical airliner seating ~120 people now it will be luck to seat 80.

Comparing airlines to ferries and trains is also misleading. Space is at a premium on airlines while I don't ever recall being on a ferry or a train that was short of space.

As for a doctor's note being required. I agree that would be easy to get. Too easy. I have dealings with someone working for WCB and she has told me that she has gotten to the point that she can look at a doctors name on a claimants form and tell whether it is likely a fraudulent claim or not. She has been in that city long enough to know and recognize the "easy" doctors that will sign anything.

If you think this will not be hugely abused you are sadly mistaken.

How is a private company going to administer something like this? Ask you when you phone to book a ticket? If you say you need the seat then the seat will be left open. When you check in and it is determined that you don't need it, what then? Or do you wait for check in? What happens if there are no empty seats, who gets removed from the flight?

As for obesity, who determines it? Who decides what level of obesity gets a second seat? According to results for the 2004 Canadian Community Health Survey, which measured most of the 35,000 respondents' height and weight, 23 per cent of all adults are obese, representing 5.5 million people. Does this mean that this many people will get a free second seat? I think if that's the case I'd like to know how it was determined this was only going to add a small cost to the price of tickets.

While there should be some provisions made, this is just an example of the government relinquishing their responsibilities. If someone is disabled to the point of needing an attendant or needing a second seat for obesity then they should have some sort of government issued ID stating such.

As you say, not good for my blood pressure.

Lisa Hutch said...

First of all, thank you for your comment. I completely respect your right to disagree and appreciate your thoughtful comments.

I think you misunderstand some of what I was saying, though. I'm not suggesting that airlines change their seating arrangements, I was merely trying to illustrate that by choosing how many seats go into a plane, they are in effect creating a standard for acceptable body size which is then used to discriminate with the "one seat, one fare" policy. Obviously, to suggest that the result of this appeal being dismissed should mean that planes should have bigger seats would be ridiculous.

Also, Air Canada is NOTORIOUS for their poor business management. I struggle to see how their success (or very existence) as a business can hinge on implementing a discriminatory policy when there are so many other factors that have a much bigger impact on their bottom line (like having to pay for expensive corporate espionage lawsuits and settlements, for example, a complete squandering and unethical use of their business resources) ... especially when this policy relates to less than 1% of their total revenues (as per the Canadian Transport Agency news release excerpted below).

Also, the fact that doctors notes can be obtained fraudulently is completely irrelevant to airlines implementing a non-discriminatory policy. There will always be ways around any regulatory scheme put in place, this does not justify avoidance of an obligation to be non-discriminatory. I agree, that it can be very frustrating that there is abuse of such systems, but to penalize those that actually NEED the system because some people MAY abuse the system seems both unjust and unfair. The correct place to address these issues of fraud is through the reporting of fraudulent doctors to the respective Medical Associations and Colleges of Physicians, not through allowing discrimination of disabled peoples on airlines. I wonder, does your WCB contact ever report these claims to those medical boards who are responsible for overseeing physician behaviour? If she were to make any type of complaint in writing, the boards have an obligation to investigate. I applaud her if she does, especially because I know that it wouldn't be an easy thing to do. I sure hope that more people in a position like hers, where they can actually SEE abuse like this occur, take a stand and do some reporting.

While I understand that airlines have narrow profit margins, and that ferries and buses may not be the best comparisons, the Canadian Transport Agency suggested looking to the way that Southwest Airlines (a DISCOUNT airline) has implemented this same non-discriminatory policy, and have also agreed that the airlines involved in this could not themselves make the case that implementation of this policy was overly burdensome. Here's an excerpt from a Canadian Transport Agency news release on the subject:

"The airlines are expected to develop a screening process to assess eligibility under the one-person-one-fare policy. For persons who travel with an attendant as required by the carriers' domestic tariffs, the Decision notes that carriers already perform assessments and have screening mechanisms to determine fitness and conditions for travel. Their screening mechanisms could be adapted to include functional assessments, and related screening expertise is available to them. For persons disabled by obesity, the Agency cites the practical experience of Southwest Airlines, which screens for entitlement to an additional seat by determining whether a person can lower the seat's armrests.

The airlines failed to demonstrate to the Agency that implementation of a one-person-one-fare policy will impose undue hardship on them. The Agency estimates that the cost of implementing the one-person-one-fare policy represents 0.09 per cent of Air Canada's annual passenger revenues of $8.2 billion and 0.16 per cent of WestJet's equivalent revenues of $1.4 billion."

You began your comments by saying that "I agree that something should be done for those who truly need it." which makes me curious about why you disagree with the rest of what I said. I didn't think I was suggesting that something should be done for those that don't, especially when the Canadian Transport Agency ruling was fairly specific regarding who this decision pertained to:

"The tribunal's Decision means that for domestic services, Air Canada, Air Canada Jazz and WestJet may not charge more than one fare for persons with disabilities who

* are accompanied by an attendant for their personal care or safety in flight, as required by the carriers' domestic tariffs, or
* require additional seating for themselves, including those determined to be functionally disabled by obesity for purposes of air travel.

The Decision does NOT apply to:

* persons with disabilities or others who prefer to travel with a companion for personal reasons;
* persons with disabilities who require a personal care attendant at destination, but not in-flight; and
* persons who are obese but not disabled as a result of their obesity."

This makes me think that your biggest contention with what I originally posted is that I suggested that implementation of the non-discriminatory scheme would not be a burden to the airlines, and that it was silly for them to even suggest that it would be. Hopefully my comments above have shed some light for you on why I have taken this stand, because I didn't really go into the detail of it in my original post. I still respect your right to disagree, but hopefully you'll understand my position a little more clearly.

Finally, your suggestion that the government is relinquishing their responsibility somewhat confuses me. What responsibility are they relinquishing here? The responsibility to define obesity? The responsibility to define disability? The responsibility to assess citizens for obesity and disability? I'd have thought that these were things in the sphere of the medical profession, but perhaps I'm missing your point altogether. If you are referring to actually creating a specific policy scheme for the airlines to implement, I`m not sure that I`d agree that that is a government responsibility, but even if it were, I think that if you read the Canadian Transport Agency information about this decision, the government has given extensive information about their expectations, and have even outlined examples of policies that could work (i.e. the Southwest Airlines example which doesn`t rely on medical notes, but on the arm rest test). If I`m still completely missing your point, though, I invite you to correct me.

Anonymous said...

First, I dispute the 1% that it is anticipated to cost. It WILL be abused, not may, and will likely cost much more than that. I have not seen anywhere the methodology that the CTA took to arrive at there predicted costs and frankly don't trust any government agency talking about money, they have such stellar track records with their own finances and forecasting costs that it is hard to believe them when they are talking about industry.

And yes the government should be defining the disability so that industry knows. If you leave it to industry there will be more and more lawsuits as there will undoubtedly be someone who the airline felt wasn't disabled and the passenger felt they were. Should the government state a policy then the airlines could follow it and save everyone the inevitable court costs that will otherwise arise.

A quote from the CTA website;
"The Agency removes undue obstacles in two ways: on a case-by-case basis by resolving individual complaints, and on a systemic basis by developing regulations, codes of practice and standards concerning the level of accessibility in modes of transport under federal jurisdiction, such as air, rail, and marine." To me that means that it is precisely their job to develop some sort of standards for this issue.

And how will the airline handle the screening process. They generally don't see the passenger till they get to the airport. What if the flight is full and they determine the passenger is functionally disabled, who do you suggest they remove from the aircraft? What happens when the passenger books the flight and says they need a second seat but on arrival at the airport it is obvious they don't? Let the flight leave with empty seats that are costing money? Force the traveler to cough up for the second seat? How?

But since you say we should follow the Southwest airline model none of these concerns will be an issue. If the passenger can't lower the arm rest then charge them for the seat, and I believe put a note in their file so in the future they will be charged when they book the ticket. If it turns out the flight wasn't full refund the passenger the cost of the second seat. Prevents the frauds as they would have to pay.

Somehow I don't think that is what you intended.

You asked what I agree with, If someone is truly functionally disabled they should be able to travel. Expecting the airlines to be able to do this with no assistance from government by way of clear and defined rules that specify who will get the second seat will cause nothing but problems. At most they've only offered suggestions about who and none on how to do it prior to seeing the passenger.

Lisa Hutch said...

I think that you think that I'm much more positional about this issue than I actually am. My original post was about the REPORTING of this issue, and the way that the issue gets framed, not about the actual ruling itself. I object to the airlines acting like victims in this scenario. That's pretty much my only point. The ruling is a done deal, and they will have to implement some kind of policy. I realize that this is potentially a big change for them, but companies all over Canada have to deal with changes in regulations and market conditions all of the time; adaptability is a necessary condition for any kind of survival or success. I don't think I ever suggested that it would be SIMPLE or EASY for the airlines to implement a new scheme, just that I have confidence that it can be done, and that it can be done within the year that they've had to do it (and that I find their complaints unpersuasive). I only argue, through throwing some examples out there, that it seems POSSIBLE for them to be non-discriminatory. Obviously, as I don't work in the airline industry, I'm not going to know the ins and outs of what would actually work, but I have confidence that something can and will work. Again, I'm not an airline expert which should be clear by looking over my blog. I'm a law student, and that is why my focus is on the way that the issue is framed and why my objection is to the focus that I see on obese/disabled people victimizing the airlines by standing up for their right to non-discrimination. If you don't have the same confidence that I do when it comes to airlines being able to successfully implement a non-discriminatory scheme, then that is where we respectfully disagree, especially when it seems as though we both agree that those with legitimate need should be able to access a non-discriminatory policy (which means that such a policy must exist for those with legitimate need to access it).

You seem very concerned about potential abuse of any new system that will be implemented, which is certainly understandable. This will definitely be one of the factors that goes into deciding exactly how to implement a non-discriminatory system, and I certainly don't think that the airlines should slap together some policy that leaves them open to more fraud than is reasonably necessary. Again, I believe that it is possible for airlines to come up with a scheme that mitigates potential fraud, and it would seem that you do not. Respectfully agree to disagree.

Just for the record, though, nowhere did I say that there SHOULD be a following of the Southwest airlines model. I just pointed out that it was suggested by the CTA as an example of a policy already implemented by a discount airline, as evidence that implementing a non-discriminatory policy CAN be done without forcing the failure of the airline in question. I think that Air Canada and WestJet etc. should be able to decide upon their own policies that will work with their existing business plans.

I now see what you meant by government responsibility, and I just want to point out a few things that may interest you.

First, the government does define disability (as far as requiring an attendant), fairly specifically, in the domestic tariff regulations that are adopted by each carrier. Here is one such provision:

"Carriage of Passengers with Disabilities
For the purposes hereof, the term “Non-self-reliant” means a person who is incapable of self-care during flight, and the term “Self-reliant” means a person who is independent, self-sufficient and capable of taking care of all physical needs during flight, and who requires no special or unusual attention beyond that afforded to the general public, except for assistance in boarding or deplaning. In connection therewith, the Carrier will accept the determination of a person with a disability as to self-reliance. When a passenger has advised a carrier of his or her self-reliance, a carrier shall not refuse such passenger transportation on the basis that there is a lack of escort or that the passenger may require additional attention from the air crew. In addition, the following shall apply:
i. passengers with a disability will be accepted for transportation as outlined below:
ii.Disability Assistant Required
Blind No
Deaf No
Blind and Deaf Yes
Mental Disability/Self-reliant No
Mental Disability/Non-self-reliant Yes
Ambulatory/Self-reliant No
Ambulatory/Non-self-reliant Yes
Non-ambulatory/Self-reliant No
Non-ambulatory/Non-self-reliant Yes
Note: The maximum per flight may be limited subject to passenger safety limitations, aircraft specifications, and airport handling facilities available at departure or arrival airports.
ii. the Carrier reserves the right to require a medical clearance from proper medical authorities if travel involves any unusual risk or hazard to the passenger or to other persons (including, in the case of pregnant passenger, unborn children);
iii. the Carrier will refuse to transport or will remove at any point, any passenger through whose actions or inaction proves to the carrier that his or her mental or physical condition is such as to render him incapable of caring for himself without assistance, unless he or she is accompanied by an attendant who will be responsible for caring for him or her en route, and with the care of such attendant, he or she will not require unreasonable attention or assistance from the air crew;
iv. passengers with a disability will not be permitted to occupy seats in designated emergency exit rows, over wing emergency exit rows or where the central stair may have to be used as an emergency exit or the upper deck of the aircraft;
v. reservations should be made at least 24 hours in advance of travel, advising the Carrier as to the nature of the disability and assistance required, so that arrangements can be made. The Carrier will make every effort to accommodate passengers who fail to make reservations 24 hours in advance;"

Second, that the CTA "offered to facilitate a collaborative process for implemention of the one-person-one-fare Decision" with the airlines involved.

Third, it was stated by the CTA that "related screening expertise is available to them" ... i.e. airlines can access screening expertise from the CTA.

Whether you deem these examples to be enough government involvement is up to you, but it would seem that there is evidence that the CTA is doing more than just handing out a ruling and sitting back to let the airlines flounder.

To conclude, I don't object to airlines having valid concerns over the difficulty of implementing these schemes ... you've pointed out some of them. I do object to them being portrayed in more of a victim light as against the disabled/obese people trying to enforce their right to non-discrimination. You can certainly disagree with my reading of how this has been portrayed in the media, but that is really the only point that I was trying to make.

Anonymous said...

You're right we will have to disagree. I think this ruling is going to end up causing more problems than it solves. I have not found any information anywhere on how to deal with the decision on whether someone is functionally obese or not without seeing them. Considering that large numbers of people only rarely fly and often only for special occasions i guess when they show up at the airport and find out they don't fit in the seat they won't get to visit their family at Christmas (or whatever the situation may be).

The airlines will find some way of dealing with this issue as they have to. This ruling did nothing to stop what will be a long drawn out process of them dealing with lawsuits over this situation as there are no clear, defined rules. The airline will want the definitions to favour them and the traveling public wants it to favour them.

PS. not sure if you realize, as a lot of others I've talked to don't, but this decision is currently only applied to Air Canada, Air Canada Jazz, and Westjet on domestic flights. Does not apply to international flights, Canjet, Skyservice, Sunwing or a miriad of other smaller carriers.