Decision No. 123-AT-A-2023

Summary

[1] Timothy Rose filed an application with the Canadian Transportation Agency (Agency) because the aircraft used by Air Canada to transport passengers from Toronto, Ontario, to Cleveland, Ohio, as well as several other transborder routes, cannot accommodate his power wheelchair.

[2] In Decision LET-AT-A-28-2019, the Agency found that Mr. Rose is a person with a disability who encountered an obstacle to his mobility because Air Canada exclusively assigns aircraft to its route between Toronto and Cleveland that cannot accommodate his power wheelchair. The Agency also found that Air Canada’s decision to operate other transborder routes in its network that are serviced only by aircraft that cannot accommodate larger mobility aids creates an obstacle to the mobility of all persons who use these aids.

[3] In Decision LET-AT-A-25-2022 (Show Cause decision), the Agency found these obstacles to be undue. It gave Air Canada an opportunity to show cause why the Agency should not order Air Canada to take the following corrective measures:

a) accommodate a person who uses a power wheelchair that cannot be collapsed to fit the cargo door height of an aircraft scheduled for a flight on a transborder network when provided with at least 10 business days’ advance notice. To provide accommodation, Air Canada could choose from a range of measures which includes substitution of an accessible aircraft on the chosen route where it could not accommodate the passenger in any other reasonable way; and

b) specifically address in its accessibility plan under the Accessible Canada Act (ACA) how it factors accessibility for persons with disabilities who use power wheelchairs into its acquisition of aircraft for its transborder network; aircraft selection for its transborder routes; and the design of its transborder services.

[4] The Agency also gave Mr. Rose an opportunity to comment on Air Canada’s submissions. After careful consideration of the parties’ pleadings in response to the Show Cause decision, the Agency finds that Air Canada has not demonstrated that it would cause undue hardship to it to implement the corrective measures proposed in that decision, with some modifications related to the advance notice period and the deadline for incorporation into its Accessibility Plan under the ACA.

[5] Accordingly, and for the reasons set out below, the Agency orders Air Canada to implement the corrective measures described in the Order section of this decision.

Preliminary matter

[6] Air Canada offers to arrange ground transportation for passengers in Mr. Rose’s situation. The Agency will not consider the matter further because it found in the Show Cause decision that ground transportation is not an appropriate accommodation measure in this case.

The law

[7] Under the version of the Canada Transportation Act in force at the time of the incident, if the Agency determines that there is an undue obstacle to the mobility of persons with a disability, it can order a carrier to take appropriate corrective measures.

Positions of the parties

Air Canada

[8] Air Canada contests the Agency’s finding that it did not consider accessibility in its network planning, claiming that it factors into its planning the accessibility issues that it is aware of and its obligation to comply with all applicable regulations. Air Canada does not address the proposed corrective measure relating to its accessibility plan.

[9] Similarly, Air Canada does not address the proposed corrective measures to accommodate a passenger with a larger power wheelchair on flights on comparable routes or comparable dates, or operated by other carriers.

[10] Air Canada’s submissions focus on the proposed requirement to substitute an accessible aircraft on 10 business days’ advance notice where it cannot accommodate the passenger in any other reasonable way. It claims that this requirement is disproportionate, impractical and unreasonable in terms of balancing the requirements and interests of the passenger requiring accommodation with those of other passengers and Air Canada. It also argues that it would not be possible to implement this proposed measure due to the considerations, factors, impediments and consequences identified in the affidavit of Cale Daniels, Senior Director of Systems Operations Control (Affidavit).

[11] Air Canada submits that jurisprudence establishes that an undue hardship analysis should take into account factors such as safety, the impact on others’ rights and quality of service, and significant incremental financial costs. It also argues that the incidence of a fact situation is a significant factor that should be taken into account in determining whether a proposed measure is proportionate, practicable and reasonable. It states that, at the time of the hearing, Mr. Rose’s case was the only occurrence where it refused transportation to a passenger travelling with a power wheelchair on a transborder route because of the size of the aircraft’s cargo door.

[12] Building on the evidence provided at and following the oral hearing on undue hardship, the Affidavit details the difficulties involved in making ad hoc use of a spare or substitute aircraft to accommodate passengers in Mr. Rose’s situation on a round trip from Toronto to Cleveland (the Toronto-Cleveland route), notably in relation to planning, market preferences and demand, and ensuring adequate permissions, ground equipment, availability of personnel and training.

[13] Air Canada argues that:

• Making ad hoc use of one of its spare aircraft would make that aircraft unavailable to provide relief in the case of an irregular operation, jeopardizing the integrity of Air Canada’s network and stranding potentially thousands of passengers affected directly by or as a consequence of the irregular operation. Air Canada claims that the consequences are especially serious in the present context of unprecedented turmoil experienced in the ramp-up of operations following the COVID-19 pandemic;
• Removing an aircraft from its scheduled operations to operate the Toronto-Cleveland route means that a spare aircraft must be used for these scheduled operations, leading to the consequences mentioned above;
• Replacing or swapping the smaller-capacity CRJ-200 normally used on the Toronto-Cleveland route with an accessible aircraft for the accommodation flights would affect the entire usage of that aircraft, including numerous flights and passengers;
• Assisting and rebooking affected passengers would require significant expenditure of Air Canada’s “structural, human and financial resources”;
• Implementing an aircraft substitution with 10 business days’ notice would, unless the Agency declares any of these events outside the carrier’s control, require Air Canada to compensate passengers affected within 14 days of their scheduled departure pursuant to the Air Passenger Protection Regulations (APPR); and
• All of these considerations, factors, impediments and consequences would multiply when applied to the extensive permutations of transborder itineraries within Air Canada’s network, which encompasses numerous Canadian and US stations. Itineraries that do not originate at a Canadian hub station could require accommodation for domestic segments as well as transborder flights. There would be a similar multiplier effect if more than one passenger makes a request and there are multiple requests in a similar period or over time.

[14] Air Canada provides evidence of the minimum cost of using a spare aircraft on the Toronto-Cleveland route, including the cost of ferry flights, two round trips between Toronto and Cleveland for the spare aircraft and the training costs for 28 ground handlers at the airport in Cleveland. In accordance with Decision LET-AT-A-52-2022, the particular amount is on the Agency’s confidential record.

[15] In addition, the Affidavit explains the staffing implications of substituting a CRJ-200 aircraft with another aircraft. It would disrupt pilot scheduling, which is done at least one month in advance, generating additional costs to draft pilots to operate a different type of equipment. A larger aircraft would require two flight attendants rather than the single attendant needed to operate the CRJ-200. Air Canada also claims that, because an accommodation request could come at any time and involve any airport in its transborder network, implementing this requirement would require training on any aircraft in its fleet, rather than just the aircraft regularly scheduled to operate at a station, for each ground handling company at US airports and for staff in Canadian airports.

[16] Air Canada states that, if the CRJ-200 is unable to operate the Toronto-Cleveland route, it normally cancels the flight(s) and protects the passengers on flights operated by other carriers. However, Air Canada also stated that in August 2022, an A319 was operated on an exceptional basis at two US spoke stations without providing further explanation.

[17] Finally, Air Canada argues that the ad hoc aircraft substitutions proposed by the Agency would put it at a competitive disadvantage, given that the other carriers servicing the transborder network would not be subject to the same obligation. It submits that the Agency should not impose an obligation on a Canadian carrier unless and until international carriers are bound by the same obligation, consistent with the Agency’s conclusion and reasoning in Decision 95-AT-A-2022 (Yale v Air Canada).

Mr. Rose

[18] Mr. Rose submits that Air Canada has failed to show cause why the proposed corrective measures cannot be implemented. He claims that Air Canada chooses to prioritize its irregular operations over discharging its obligation to accommodate persons with disabilities.

[19] For the following reasons, Mr. Rose argues that Air Canada has shown that the ad hoc use of a spare or substitute aircraft for accommodation of a disability is inconvenient, but not that it would be more costly, less safe, or less feasible than the ad hoc substitution of an aircraft for other types of irregular operations:

• The Affidavit evidence consists of layperson opinions and speculation and should be given little weight. Air Canada did not qualify Mr. Daniels as an expert witness, he does not have direct knowledge of the events that gave rise to this case, and the Affidavit relies on information from other Air Canada employees who did not swear affidavits;
• Air Canada’s evidence is similar to that previously provided during the oral hearing, which the Agency found insufficient to establish undue hardship;
• Air Canada fails to explain why the cost, unpredictable timing and the fact that not all pilots are trained on all types of aircraft render ad hoc aircraft substitution infeasible for disability-related accommodation but not for irregular operations;
• Given that human rights law is quasi-constitutional, Air Canada ought not to prioritize addressing irregular operations over its duty to accommodate persons with disabilities;
• Air Canada fails to provide objective, tangible evidence of competitive disadvantage, particularly given its assertion that only a limited number of people would require the proposed accommodation;
• The proposed notice period of 10 business days is equivalent to the APPR notice period of 14 calendar days, and because the APPR explicitly state that they do not limit a carrier’s obligations to persons with disabilities, flight disruptions attributable to ad hoc aircraft substitution of an accessible aircraft should be considered to be outside the carrier’s control for the purposes of Air Canada’s obligations under the APPR; and
• Air Canada fails to provide objective, tangible evidence of how the COVID-19 pandemic has impacted airline operations or service in such a way that would make it unfeasible to implement the proposed measure.

[20] Mr. Rose argues that Air Canada has not demonstrated that any of the proposed corrective measures amount to undue hardship or are unfeasible, and asks the Agency to order Air Canada to implement all of the corrective measures on a final basis.

Analysis and determinations

[21] Procedural fairness in this case dictated that Air Canada have the opportunity to comment on the corrective measures proposed by the Agency in the Show Cause decision, recognizing that its operations are complex and dynamic, and that the COVID‑19 pandemic had, and continues to have, an impact on it.

[22] At this stage in the proceedings, the onus is on Air Canada to demonstrate that it is not feasible to implement the proposed corrective measures, or that it would otherwise face undue hardship, in light of its operations at the present time and for the foreseeable future. Its submissions reiterate and expand upon its operational and financial undue hardship arguments considered in the Show Cause decision.

[23] Air Canada does not contest the proposed measures to accommodate a passenger with a larger power wheelchair on comparable routes or comparable dates to the scheduled flight of their choosing, either through flights within its own network or those operated by other carriers. In each of these scenarios, Air Canada would pay for any price difference between the original itinerary chosen by the person with a disability and the itinerary offered as alternate accommodation. The Agency, therefore, finds that these corrective measures would not cause Air Canada undue hardship.

[24] Air Canada presents numerous factors, considerations and impediments that it claims would make ad hoc aircraft substitution to accommodate a disability unfeasible. However, it does not explain how or why the factors presented as impediments to ad hoc aircraft substitution for disability-related accommodation do not prevent it from deploying spare aircraft in response to irregular operations, which it does on a daily basis. Similarly, because Air Canada regularly substitutes aircraft in the case of irregular operations, it is unlikely that doing so to accommodate a person with a disability would have a significant impact on the rights of other passengers or Air Canada’s ability to provide customer service. Air Canada has not demonstrated that this would be the case.

[25] Some of Air Canada’s claims are not substantiated by its evidence, such as its assertion that, because an accommodation request could come at any time and involve any airport in its transborder network, its staff in Canadian airports and the ground handling companies at each US airport in its network would have to be trained on “any aircraft in its fleet”. In earlier evidence, Air Canada stated that turbo-prop aircraft are not the aircraft preferred by passengers in the transborder market and that no wide body jets service the Cleveland Airport. As of February 2021, Air Canada indicated that, out of the seven types of single aisle jets in its fleet, three are accessible for Mr. Rose: the Airbus A319, A320 and A321.

[26] Although Air Canada states that it normally cancels the flight if the Bombardier CRJ-200 assigned to the Toronto-Cleveland route is inoperable, it admits that it has substituted a larger aircraft to operate existing transborder routes at spoke stations, on an exceptional basis. It does not explain why it did so twice in August 2022 but could not make the same type of substitution for accommodation purposes, even though the replacement aircraft operated on those occasions, an Airbus A319, is accessible for passengers like Mr. Rose. Therefore, while the ad hoc substitution of aircraft may be the least advantageous arrangement to accommodate passengers in Mr. Rose’s situation, the Agency finds that Air Canada has not demonstrated that it is unfeasible to do so, from an operational perspective. Rather, Air Canada is prioritizing its irregular operations over its fundamental obligation to accommodate persons with disabilities by making its services as accessible as possible.

[27] In the Affidavit, Air Canada provides confidential evidence of the costs of substituting the CRJ-200 aircraft with an accessible aircraft on the Toronto-Cleveland route. Incremental financial costs may demonstrate that an accommodation is not feasible, if the evidence shows that the new costs would be so significant that the impact would create undue hardship. In this case, Air Canada has not provided sufficient context to allow the Agency to evaluate whether the documented costs represent a significant or prohibitive incremental cost in comparison with the cost of ad hoc aircraft substitution in cases of irregular operations, or Air Canada’s overall operating budget and financial standing. Without compelling evidence of economic impediments that could substantially affect the viability of Air Canada or its ability to absorb the incremental costs, the Agency finds that there is no reasonable basis for it to determine that the ad hoc substitution of an accessible aircraft would result in undue hardship.

[28] Air Canada argues that it would be prejudiced and put at a competitive disadvantage if required to substitute an aircraft to accommodate passengers in circumstances similar to Mr. Rose’s. While the Agency concluded in the Show Cause decision that there are likely other persons with disabilities who are unable to travel on the regularly scheduled aircraft for these routes due to the size of their power wheelchairs, the Agency is satisfied that, in light of the totality of Air Canada’s evidence, Mr. Rose’s situation is rare, and that, in most cases, Air Canada is able to accommodate passengers through alternate itineraries, as foreseen by the range of measures identified by the Agency.

[29] Air Canada submits that the Agency should apply the reasoning and conclusion in Yale v Air Canada to this case, by not imposing an obligation on a Canadian carrier unless international carriers are bound by the same obligation. The measure at issue in that decision was to provide an extra seat at no additional cost (as per the one person, one fare principle) for passengers with disabilities travelling internationally. The Agency considered the one person, one fare remedy, which passengers regularly request for a variety of reasons, to be a systemic solution with far-ranging implications for the international air industry. In this case, resorting to ad hoc substitution of an aircraft would only be required where Air Canada cannot accommodate the passenger in any other reasonable way, after all other options to provide accommodation have been ruled out. The Agency, therefore, does not consider the circumstances of this case to be comparable to those in Yale v Air Canada.

[30] For these reasons, the Agency finds that Air Canada has not demonstrated that ad hoc aircraft substitution to accommodate a disability is financially unfeasible if Air Canada cannot accommodate a passenger in any other reasonable way.

[31] It is well established that carriers have a positive obligation to ensure that persons with disabilities have equal access to their services. Long-term planning decisions made by Air Canada limit its ability to accommodate persons with a disability on a fully integrated basis. While the Agency’s corrective measures offer Air Canada a range of options to provide accommodation, Air Canada may also need to consider alternative ways to meet its disability-related obligations. For example, because the composition of its fleet is fluid and changes regularly as it adds and retires aircraft, Air Canada may be able to address the composition of its fleet of spare accessible aircraft over the short to medium term rather than waiting to improve accessibility over the long term through fleet replacement.

[32] Given that Air Canada’s equipment purchases and planning decisions have created inaccessible routes that may require ad hoc aircraft substitution to accommodate a disability if the passenger cannot be accommodated in any other reasonable way, the Agency is of the view that any resulting flight disruptions would likely be found to be within the control of Air Canada for the purposes of the compensation obligations under the APPR.

[33] The Agency accepts that Air Canada would require more than 10 business days’ advance notice to arrange accommodation for a passenger in Mr. Rose’s situation in order to avoid incurring various obligations under the APPR. The evidence in this case demonstrates that it took several days for Air Canada to explore accommodation options for Mr. Rose. The Agency further notes that a carrier’s obligations under the APPR, particularly with respect to compensation, refunds and alternate travel arrangements, become much more onerous when passengers are informed of a flight disruption within 14 calendar days of their departure.

[34] Accordingly, the Agency is of the view that the aggregate impact of remedies that may be owed under the APPR to a number of other passengers as a result of an aircraft substitution made 10 business days before departure is unreasonable and meets the threshold of undue hardship. Therefore, the Agency finds it appropriate to establish an advance notice period of 21 calendar days.

[35] Although Air Canada objects to the Agency’s conclusion that Air Canada did not consider accessibility in its network planning or purchase of new aircraft, the evidence on which that conclusion is drawn is clear; Air Canada’s response to the Show Cause decision did not persuade the Agency otherwise.

[36] Air Canada claims that it cannot factor a particular accessibility issue into its planning if it has no knowledge of it. However, ensuring that cargo doors can accommodate mobility devices is a long-standing challenge for the airline industry, as the Agency stated in the Show Cause decision. Air Canada’s evidence demonstrates that it was aware that not all power wheelchairs fit through the cargo door of every one of its aircraft. While it is beyond the control of individual carriers to address the design incompatibility between aircraft and mobility devices, Air Canada can demand greater universal accessibility when it purchases new aircraft. Furthermore, the Agency stated in Decision 140-AT-A-2003 (Council of Canadians with Disabilities v Air Nova) that air carriers should not replace larger commuter aircraft with smaller ones without giving due consideration to maintaining an appropriate level of accessibility for persons with disabilities.

[37] As Air Canada raises no other argument about the proposed corrective measure relating to its accessibility planning, the Agency finds that it has not shown that it is not feasible to implement that measure. However, since the close of pleadings on the Show Cause decision, Air Canada has published its first accessibility plan, which does not specifically address the issues identified by the Agency. Therefore, the Agency finds it appropriate to apply the order to the first update to Air Canada’s accessibility plan.

Order

Corrective measures

[38] The Agency orders Air Canada to implement the following measures, and to confirm to the Agency’s Director General, Determinations and Compliance, through the Agency’s Secretariat, that its personnel have completed training on those measures, as soon as possible and no later than December 20, 2023:

a) when provided with at least 21 calendar days’ advance notice by Mr. Rose or any other person who uses a power wheelchair that cannot be collapsed to fit within the cargo door of the aircraft scheduled for their flight, to transport the passenger, with their power wheelchair:

1. 1. on the day they wish to travel, at a time that reasonably compares to the time they wish to travel;
   2. if this is not reasonably possible, on the day before or the day after they wish to travel.

Air Canada can choose what measures it will deploy to provide accommodation, but these measures should include, at a minimum:

• • to attempt to find a similar flight or flights on a different but comparable route within its network;
  • to attempt to find a similar flight or flights with another carrier on the same route or on a different but comparable route; or
  • to substitute an accessible aircraft on the chosen flight where Air Canada cannot accommodate the passenger in any other reasonable way.

If Air Canada chooses to provide accommodation through a flight or flights with another carrier, it must pay for any price difference.

When a person who uses a power wheelchair that cannot be collapsed to fit within the cargo door of the aircraft scheduled for the flight cannot provide the minimum advance notice, to make every reasonable effort to accommodate them, consistent with the Accessible Transportation for Persons with Disabilities Regulations for situations where any advance notice requirement is not met.

b) The Agency orders Air Canada to specifically address in the updated version of its accessibility plan under the ACA, to be published no later than June 1, 2026, how it factors accessibility for persons with disabilities who use power wheelchairs into its:

1. 1. acquisition of aircraft for its transborder network, either through lease or purchase;
   2. aircraft selection for its transborder routes; and
   3. design of its transborder services, including the selection of and contract negotiations with regional carriers.

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Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	172(3)
Accessible Canada Act, SC 2019, c 10	42
Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244	32(4)
Air Passenger Protection Regulations, SOR/2019-150	N/A