Accessible Transportation Complaints: A Guide

Part 1: Disability and barrier

During Part 1 of the process, the applicant must demonstrate, on the balance of probabilities, that they have a disability and faced a disability-related barrier. Consistent with human rights jurisprudence, the CTA places the onus on the applicant to establish disability and barrier.

Disability

The Act defines “disability” as:

any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment—or a functional limitation—whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society

This definition is based on a social model of disability which understands disability as resulting from the interaction between an impairment or functional limitation and the social and physical environment.

The applicant has the responsibility for demonstrating that they have an impairment or functional limitation that, in interaction with a barrier, hinders their equal access to the federal transportation network.

Barrier

The Act defines "barrier" as:

Anything—including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice—that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation.

Barriers vary in nature and may:

1. be systemic. A systemic barrier broadly impacts travellers with disabilities in their use of a transportation service provider's services, facilities or equipment;
2. result from the lack of a policy as well as a policy that, intentionally or not, has adverse impacts on travellers with disabilities;
3. exist even if there has been no incident; for example, when the accessibility problem relates to equipment that is in the design stage; or
4. result from an isolated act or omission, such as the failure to apply a policy.

It is important to note that a difficulty encountered during travel does not become a barrier only on the basis that it was experienced by a person with a disability. There must be some connection between a person's disability and the difficulty.

Applicant's responsibility

The applicant has the burden of proof to demonstrate that they have a disability and encountered a barrier and they have the responsibility to provide the evidence to demonstrate this.

Burden of proof

An applicant must provide sufficiently persuasive evidence to establish that they have a disability and have faced a disability-related barrier. The standard which applies to this burden of proof is the balance of probabilities.

The transportation service provider may challenge the applicant's evidence.

The Agency will determine whether it is more likely than not that the person has a disability and faced a disability-related barrier.

Evidence required

The Agency must determine, in each case, whether the applicant has a disability and faced a disability-related barrier. This applies whether the disability is obvious or not. It also applies whether the transportation service provider challenges the applicant's evidence of disability or not.

Evidence of a disability may include such things as the applicant's own description, descriptions provided by others, medical forms or doctor's notes. Evidence that another organization has found that an applicant has a disability (for example, an accessible parking pass) is not sufficient for the Agency to find that the applicant has a disability.

Even though the applicant must prove that they have a disability, the extent and nature of the evidence that must be provided to meet an applicant's burden of proof will vary from case to case.

In some cases, such as with paraplegia, quadriplegia and blindness, the existence of a disability is self-evident, in the sense that the nature of the symptoms associated with it always constitutes a disability. In these cases, the applicant's own description may be sufficient to establish that they have disability.

Other disabilities, such as mental health disabilities, have a range of symptoms that vary from person-to-person and from mild to severe. In those cases, the Agency is unable to make a determination of disability in the context of the federal transportation network based on the existence of the condition alone and it needs more information about the severity of the person's symptoms, their duration and the impact of the condition on the person’s day-to-day life, including on their ability to travel.

If an applicant considers that their disability is not self-evident, they are strongly encouraged to complete the Medical Information Form or file additional documentation in support of their application, such as documentation from a medical professional.

If the Agency determines that it requires additional information related to the applicant's disability, the applicant will be provided 20 business days to complete their application. If the applicant does not provide the required information or fails to contact the Agency by the specified deadline, the application will be considered incomplete and will be closed. However, the applicant may refile the application at a later date when they are able to provide the required information.

If the applicant responds and refuses to provide the missing information, the Agency may issue a decision dismissing the application.

With respect to the barrier, evidence that an applicant faced a barrier could include copies of travel itineraries and tickets; correspondence with the transportation service provider; a written account of an incident or problem, including information about transportation service provider personnel with whom the applicant interacted, and information about where and when the incident or problem occurred; and receipts for expenses incurred because of the incident or problem.

Part 2: proposals to remove a barrier or claims of undue hardship

If the CTA finds that the applicant has demonstrated, on the balance of probabilities, that they have a disability and faced a disability-related barrier, the onus shifts to the transportation service provider to either:

1. explain, taking into account any proposals from the applicant, how it proposes to remove the barrier through:
   • a general modification (one which will apply to all travellers with disabilities) to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or
   • if a general modification is not feasible, an accommodation measure for an individual traveller with a disability; or
2. demonstrate, on the balance of probabilities, that it cannot remove the barrier without experiencing undue hardship.

What a transportation service provider must do to demonstrate undue hardship

The responsibility of a transportation service provider to demonstrate that the removal of a barrier would result in undue hardship can be explained in terms of their burden of proof and the evidence required.

Although compliance with legislation and regulations will often mean that the CTA does not find an undue barrier, the CTA may nonetheless determine that there is an undue barrier. This authority was introduced by the ACA and is set out in subsection 172(3) of the Act, which applies to complaints relating to an alleged barrier that took place after the ACA came into force on July 11, 2019. In such cases, the CTA could order corrective measures to eliminate undue barriers, but could not order compensation for pain and suffering, or willful or reckless practice.

Burden of proof

A transportation service provider must provide sufficiently persuasive evidence to establish that the removal of a barrier would result in undue hardship. The standard which applies to this burden of proof is the balance of probabilities. If a transportation service provider meets this burden of proof, the CTA will find that the barrier is not undue and will not order any corrective measures.

Evidence required

The transportation service provider must consider all options for removing a barrier—including any suggestions from the applicant—before making a claim that they are unable to do this without experiencing undue hardship. In order to maximize the accessibility of the federal transportation network, transportation service providers should first identify a general modification to remove a barrier, and only rely on an individual accommodation measure if this would result in undue hardship.

The actions required to remove barriers usually entail some burden for transportation service providers; however, undue hardship only results if there are constraints that make the removal of the barrier impossible, impracticable or unreasonable. These constraints generally relate to safety, operational, cost and physical or structural constraints.

The threshold to establish undue hardship is high. Mere statements – such as, "It would cost too much" or "It would be unsafe" - are not sufficient to establish undue hardship. Instead, evidence in respect of the constraints must be objective, direct and, where applicable, quantifiable.

The following reflects examples of the types of constraints that a transportation service provider might encounter in removing a barrier and the corresponding evidence of undue hardship.

1. Safety - a relevant safety rule, regulation, policy or procedure and evidence that waiving or modifying this would cause undue hardship. The evidence could include engineering reports, medical reports or expert opinions relating to the safety matter and risks— including the probability of the risks - of providing an accommodation measure to a person with a disability.
2. Operational - operational realities, such as security measures which must be applied to passenger travel, departure schedules that must be adhered to, and the transportation equipment used to serve a market and evidence that providing an accommodation measure in light of these operational realities would cause undue hardship. The evidence could include witness testimony, data or reports on business operations, copies of internal policies, or expert opinions.
3. Costs - the costs of providing an accommodation measure and the impact of those costs—for example on the transportation service provider's viability—net of benefits accruing from the removal of the barrier, such as new travel by persons with disabilities. The evidence must support the quantification of the costs and demonstrate that they are incremental (i.e., new costs which would be incurred as a result of providing an accommodation measure), and so significant that the impact would create undue hardship. The evidence could include current audited and interim financial statements; current cash flow projections and the underlying assumptions; a detailed business plan; annual reports; and other financial information that is supported by financial records.
4. Physical or Structural - constraints relating to the physical or structural aspects of means of transportation (e.g., airplanes, trains, ferries and buses), terminal facilities, and the equipment used in them. These may impose limitations on the ability of a transportation service provider to design, construct or modify the means of transportation, facilities or equipment in order to prevent or remove any undue barriers. The evidence could include engineering reports, witness testimony or expert opinions.

Corrective measures

If the CTA finds that an undue barrier exists, it has the power to order the transportation service provider to take corrective measures to eliminate it. The CTA can also direct that any expenses incurred by a person with a disability arising out of the undue barrier be reimbursed.

The CTA may also order corrective measures to address underlying systemic issues. For example, the CTA has required transportation service providers to amend their tariffs, policies and procedures; develop or amend training programs; train personnel; purchase or modify means of transportation, facilities and equipment; provide services; and communicate information.

Compensation

The CTA may also award compensation for the following when it finds that there was an undue barrier to the mobility of a person with a disability:

• expenses associated with obtaining alternative goods, services, facilities or accommodation;
• lost wages; that is, wages that the person was deprived of as a result of the undue barrier;
• pain and suffering (maximum award $20,000, adjusted annually); and
• wilful or reckless practice on the part of a transportation service provider (maximum award $20,000, adjusted annually).

In most cases, evidence will be required in support of expenses incurred (receipts) or wages lost. Evidence will also likely be required to support an application for compensation for pain and suffering and willful or reckless practice.

More information regarding the compensation for accessibility-related complaints.

Enforcement

CTA decisions and orders are enforceable, similar to a ruling by a court. .

CTA-designated enforcement officers have the power to levy AMPs to a maximum of $250,000 for non-compliance with the ATPDR, Part VII of the Air Transportation Regulations, the Personnel Training for the Assistance of Persons with Disabilities Regulations and provisions of the Accessible Canada Act relating to accessibility plans, feedback and progress reports. The CTA also has the ability to issue warnings and enter into compliance agreements.

Appeal and review of CTA decisions

There are three ways that a decision by the CTA can be changed:

1. Under section 32 of the Act, the CTA may review, rescind or vary any decision or order made by it or may re-hear any complaint before deciding it if, in the opinion of the CTA, since the decision or order or the hearing of the complaint, there has been a change in the facts or circumstances pertaining to the decision, order or hearing;
2. Under section 41 of the Act, a party can apply to the Federal Court of Appeal within 30 days of the issuance of an CTA decision for leave to appeal the decision on a question of law or jurisdiction; and
3. Under section 40 of the Act, a party can petition the Governor in Council to vary or rescind any decision made by the CTA."

In dealing with an application for review, the CTA must first determine whether there has been a change in facts or circumstances pertaining to the decision. If no such change exists, the decision stands. If, however, the CTA finds that there has been a change in facts or circumstances since the issuance of the decision, it must then determine whether such a change is sufficient to warrant a review, rescission or variance of the decision.

The burden of proof rests on the party requesting the review of the decision or order to demonstrate to the CTA: that there has been a change in facts or circumstances which are sufficient to warrant the review of the decision or order at issue and to explain how the alleged change affects the outcome of the matter. If a fact was known to the person or discoverable through exercise of due diligence at the time of the initial complaint, it cannot constitute a change in facts or circumstances.

General information

Official languages

Submissions must be submitted to the CTA in either English or French.

Privacy and confidentiality

The CTA is required to make all information filed during an adjudication available on the public record unless a request for confidentiality has been made and accepted by the CTA. Before submitting documents to the CTA, a party should remove information that is unnecessary to their case and that they do not want included on the public record, including sensitive personal information such as: social insurance numbers, passport details, credit card information, loyalty program reward numbers, and PIN or online access codes.

Sometimes sensitive information will have to be filed with the CTA when it is relevant to the adjudication. If this is the case, a request for confidentiality can be filed with the CTA. The party making the request will be required to file a public version of the document, from which the information for which a claim for confidentiality is being made has been blacked out, along with a full version of the document and a justification for the request. This allows the CTA to maintain the confidentiality of information where it finds that there is specific direct harm likely to result from its disclosure.

In exceptional cases, the CTA may remove identifying information from a decision; for example, when children or innocent third parties may be harmed or when disclosed information could be used improperly. For such situations, the CTA may consider requests from parties, supported by evidence, to prevent the use of information that identifies the parties or the witnesses. A person who is concerned about a name being published can contact the CTA (see CTA contact information below).

A party may file a request for confidentiality in relation to their own personal information, the personal information of the other party to the adjudication, or that of any other person. Corporate parties are expected to respect any statutory obligations they may have to protect the personal information of individuals.

The CTA posts on its website the decisions issued (which include the names of the parties and any witnesses).

More information is available in the CTA’s Privacy Notice, Public Record Advisory Notice, and Personal Information Collection Statement..

Reference information

• Dispute Adjudication Rules
• Annotation to Dispute Adjudication Rules
• Glossary
• Accessibility standards
• Accessible transportation guides

CTA contact information

Complaint forms and submissions relating to complaints must be sent to the Secretariat of the CTA.

A party or other person who has a question or comment about privacy or access to information, can contact the Access to Information and Privacy Coordinator by email at OTC.AIPRP-ATIP.CTA@otc-cta.gc.ca by calling 819-743-7259 or 1-888-222-2592 or TTY 1-800-669-5575, or by writing to the Canadian Transportation Agency, Ottawa, Ontario, K1A 0N9.For more information, please contact us.

Glossary of Terms

Accommodation measure

Anything that removes a barrier to a person with a disability, including a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or, if a general modification is not feasible, an individual accommodation measure

Adjudication

A structured process where each party presents arguments and evidence to a Panel of one or more CTA Members.

Barrier

Anything - including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice - that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. (Source: Accessible Canada Act)

Burden of proof and balance of probabilities

A party will meet their burden of proof by providing sufficiently persuasive evidence to support their position. The party who bears the burden must establish that their position is more probable than that of the opposing party (balance of probabilities). If the positions of both parties are equally probable, the party with the burden of proof will not have met their burden.

Disability

Any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment—or a functional limitation—whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society. (Source: Accessible Canada Act)

Federal transportation network

All transportation services under the authority of Parliament. A description of which transportation services are included as part of the federal transportation network may be found in the section on Jurisdiction

Pleadings

In the CTA's formal adjudication process, pleadings refer to the parties' respective claims, responses and replies, and any other documentation filed with the CTA regarding the complaint.

Undue barrier

A barrier that can be removed without imposing undue hardship on the transportation service provider.

Undue hardship

Undue hardship is hardship that imposes an undue or unreasonable burden. The point of undue hardship is reached only when there are constraints that make the removal of the barrier impossible, impracticable or unreasonable.