Decision No. 21-AT-A-2020

SUMMARY

[1] Air Canada filed a request pursuant to section 27 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules) that the Canadian Transportation Agency (Agency) stay Decision No. 72-AT-A-2019 (Robinson v. Air Canada) (Decision).

[2] For the reasons set out below, the Agency grants Air Canada’s request and stays the Decision.

BACKGROUND

[3] Mr. Lorne Robinson filed an application with the Agency on September 11, 2017, pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), against Air Canada. He alleged, among other things, that the carrier did not provide wheelchair assistance as requested on August 2, 2017, at the Toronto Pearson International Airport (Toronto airport) and the Calgary International Airport.

[4] In Decision No. LET-AT-A-25-2019, issued on February 8, 2019, the Agency found that Mr. Robinson is a person with a disability and that he encountered an obstacle to his mobility due to the lack of wheelchair assistance he received when he was left at the seating area, which he described as a “pole,” during a portion of his transit at the Toronto airport (obstacle). Air Canada was then provided with the opportunity to either explain how it proposed to remove the obstacle or demonstrate that it could not be removed without undue hardship. Air Canada filed its submissions on February 21, 2019, to which Mr. Robinson did not file a reply.

[5] The Agency issued the Decision on October 28, 2019, in which it found that the lack of assistance was an undue obstacle to Mr. Robinson’s mobility. The Agency ordered Air Canada to do the following by November 26, 2019 (Order):

• modify its policies and procedures related to wheelchair assistance to include a reasonable service standard for waiting times when assistance is to be provided by the carrier;
• include, in the new service standard, a recognition that, sometimes, the service will have to be provided faster if connection times are tight and, if the service standard will not be met, the requirements to advise the passenger of the delay, including the reason for it, and to check in on the passenger regularly;
• implement internal communication and training measures to ensure that relevant personnel are fully aware of this requirement;
• set up an activity log with the names of passengers who have requested services and their flight numbers, the names of the agents on duty who are to provide the assistance, the waiting time to receive assistance, and any issues that arise in the provision of this service; and
• incorporate a management review in the activity log, which would provide for the identification of systemic issues and related corrective measures.

[6] The Agency also ordered Air Canada to file the activity log, including an identification of systemic issues and any proposed corrective measures, with the Agency’s Chief Compliance Officer by April 28, 2020.

[7] On November 25, 2019, Air Canada filed a motion for leave to appeal the Decision with the Federal Court of Appeal, pursuant to section 41 of the CTA. Also on November 25, 2019, Air Canada filed a request with the Agency to stay the Decision (request). The Federal Court of Appeal granted Air Canada leave to appeal on January 30, 2020.

THE LAW

[8] Paragraph 41(2)(c) of the Dispute Adjudication Rules states that the Agency may, at the request of a party, stay its decision or order when a motion for leave to appeal is made to the Federal Court of Appeal. Pursuant to paragraph 41(2)(d) the Agency may also stay its decision when it is just and reasonable to do so.

[9] Section 27 of the Dispute Adjudication Rules is the provision that applies to pleadings on a request to stay a decision. For instance, subsection 27(2) provides the opposing party with the opportunity to respond to the request within five business days of receipt of the request.

POSITION OF THE PARTIES

[10] Air Canada requests that the Agency stay the Decision because it does not currently have the resources to implement the Order. It argues that its airport and training staff are otherwise occupied with the replacement of its reservation system, which it claims “in colloquial terms, … could be likened to a simultaneous heart, lung and brain transplant.” Further, Air Canada submits that it is also managing the implementation of the Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244, that will come into force on June 25, 2020. The carrier adds that it would have to rush implementing some of these measures to comply with the Order. Air Canada indicates it is also busy implementing the Air Passenger Protection Regulations, SOR/2019-150, that came into force in two phases in July and December 2019. Finally, Air Canada submits it is also handling the grounding of its 737 Max aircraft.

[11] Air Canada submits that even if it had the resources available, the Agency imposed an unreasonable time limit of four weeks by which to implement the Order. Air Canada maintains that the Agency has underestimated the impact of the Decision on its operations. Air Canada argues that the Agency failed to consult the carrier as to the operational requirements and the timeframe necessary to implement the Order. The carrier also submits that a “technological solution” would have to be developed so as to implement the Order in an airport the size of the Toronto airport and developing such a solution would take weeks of design, development, and training.

[12] Air Canada states that it has sought leave to appeal the Decision to the Federal Court of Appeal, pursuant to section 41 of the CTA. Air Canada requests that the Agency stay the Decision until November 26, 2020, or until the Federal Court of Appeal has had an opportunity to rule on the merits of the appeal.

[13] Finally, Air Canada provides that if Mr. Robinson wishes to travel during the period of the stay, he may call Air Canada’s MEDA Desk to receive personalized attention.

[14] Mr. Robinson did not submit a response to Air Canada’s request to stay the Decision.

ANALYSIS AND DETERMINATION

[15] Subsection 41(2) of the Dispute Adjudication Rules gives the Agency the discretion to grant a stay of its decisions when a motion for leave to appeal is made to the Federal Court of Appeal, or when it is just and reasonable to do so. That being said, the annotation to section 41 sets out that this discretion should be exercised reasonably on a case-by-case basis.

[16] Air Canada has argued that it is in the interest of justice in this case to stay the Decision as the carrier would have to take significant steps to comply with the Order, which may be unnecessary if the appeal is successful. In other words, considerable resources would have to be expended which may be unrecoverable should Air Canada’s appeal be ultimately successful and the Decision overturned.

[17] The Agency also notes that Mr. Robinson has not filed an answer to the request and, consequently, considers that the request is unopposed. There is no evidence on the record to suggest that Mr. Robinson will be travelling through the Toronto airport during the period of the requested stay or that a temporary stay would otherwise be prejudicial to him. Air Canada has also provided him with a number he may contact for personalized attention in the event that he will be travelling in the meantime. The balance of convenience favours granting the requested stay.

[18] The Agency therefore finds that, in the particular circumstances of this case, and as the Federal Court of Appeal granted Air Canada leave to appeal the Decision, it is reasonable and in the interest of justice that the Decision be stayed until such time as Air Canada’s proposed appeal is finally determined.

CONCLUSION

[19] Accordingly, the Agency grants Air Canada’s request and stays the Decision until the final determination on the appeal of the Decision.