Decision No. 236-AT-A-2006

April 19, 2006

File No. U3570-14/04-1

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APPLICATION

[1] On December 23, 2005, Eric Tucker, on behalf of his daughter, Myka Tucker-Abramson, filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] On January 17, 2006, Mr. Tucker provided additional information wherein he clarified that his application was not for a review of Decision No. LET-AT-A-319-2005 (hereinafter the Decision) pursuant to section 32 of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA); rather, he is requesting that the Agency reconsider the Decision based on the Supreme Court of Canada decision in the case of Chandler v. Alberta Association of Architects (1989), 2 S.C.R. 848 (hereinafter the Chandler case).

[3] Air Canada, Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc., carrying on business as Air Canada Jazz (hereinafter Air Canada Jazz) and WestJet (hereinafter the carrier respondents) filed their comments with respect to the application on February 13, 2006. Mr. Tucker filed his reply on February 24, 2006.

BACKGROUND

[4] In the Decision, the Agency made a determination with respect to an application filed by Mr. Tucker on behalf of Myka Tucker-Abramson against Air Canada and an application filed by Barry Growe on behalf of Lindsey Cook against Air Canada (hereinafter the Growe case). Specifically, the Agency dismissed Mr. Tucker's application. In doing so, the Agency stated, in part, that:

Despite the fact that neither Ms. Tucker-Abramson nor her father incurred costs associated with her travel, Mr. Tucker asserts that he believes the cost of this service to be an undue obstacle and he has requested that the Agency continue to pursue his application on behalf of all persons with disabilities who are required to pay for additional seats for stretcher service. However, the Agency is of the opinion that given the other applications that are presently before the Agency regarding the cost of air travel for persons with disabilities and, in particular, the Growe application which specifically raises the issue of the cost of stretcher service, it is not necessary and, thus, would not be appropriate for the Agency to expand Mr. Tucker's application beyond the circumstances described therein in order to investigate the cost of non-medically necessary stretcher service. As such, the Agency hereby dismisses Mr. Tucker's application and will place it on the AFC applications file as a submission in support of those applicants.

[5] In the same Decision, the Agency also determined that there are no common carrier obligations that require air carriers to provide a specialized service such as a stretcher service to accommodate passengers with disabilities. Furthermore, the Agency found that the proposed cancellation of Air Canada's stretcher service did not constitute an undue obstacle to the mobility of Ms. Cook. In light of this, the Agency concluded that there is no reason to keep the cost of stretcher service as an issue before it in its consideration of the applications involving additional fares and charges for persons with disabilities who require additional seating due to their disabilities (AFC applications).

PRELIMINARY MATTER

[6] Although Mr. Tucker's reply was filed after the prescribed deadline, the Agency, pursuant to section 4 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts this submission as being relevant and necessary to its consideration of this matter.

ISSUE

[7] The issue to be addressed is whether the Agency will review the Decision based on the Supreme Court of Canada decision in the Chandler case.

POSITIONS OF THE PARTIES

Mr. Tucker's application

[8] In his application, Mr. Tucker identifies grounds for his request that the Agency reconsider the Decision, as well as the Agency's authority to do so. Mr. Tucker clarifies that he has filed his application for a review of the Decision based on the Supreme Court of Canada's decision in the Chandler case, and that he does not request a review of the Decision pursuant to section 32 of the CTA. Mr. Tucker is of the view that the Agency failed to discharge its statutory functions because it reached conclusions of fact in the absence of evidence.

[9] Mr. Tucker asserts that the Agency unreasonably restricted the scope of its investigation into his application to the fare issue. Mr. Tucker explains that his original application raised the issues of fares charged by Air Canada for its stretcher service as well as the refusal to provide stretcher service by another air carrier; an airline which ceased operations in 2001. Mr. Tucker states that from the beginning of the application process, he had been concerned with the Agency not addressing the issue of carriers not providing a stretcher service. Mr. Tucker submits that the Agency decision to narrow the scope of his application contributed to the Agency failing to properly discharge its function of ensuring that undue obstacles to the mobility of persons with disabilities are removed from the federal transportation network.

[10] Mr. Tucker asserts that his application was dismissed on the basis, in part, that the issues it raised were covered by the Growe case and that, with the exception of the fare issue, the two cases are different. Mr. Tucker is of the opinion that Mr. Growe's application is different because it raised the issue of whether stretcher services formerly provided by Air Canada met the specific needs of Ms. Cook. Mr. Tucker explains that the Agency failed to adequately consider the more common case of people who need to be transported by stretcher for the entire duration of the flight. It is only as a result of the Agency's exclusion of the category of persons covered by his original application, Mr. Tucker submits, that the Agency can possibly conclude that the termination of Air Canada's stretcher service only affects one person and that it would be unreasonable to require that the carrier maintain its service in these circumstances.

[11] The determinations included in the Decision, in Mr. Tucker's view, are based on an arbitrary distinction between medically and non-medically necessary travel. Furthermore, he is of the view that the Agency failed to provide data on the population of persons with disabilities who require stretcher service when travelling by air, the extent to which this population's needs are currently being met by air ambulance services and the extent to which the cost of stretcher service is covered by public and private health insurance plans. Mr. Tucker states that these matters undermine the foundation of the Decision which is based on the assertion that the cancellation of Air Canada's stretcher service does not create an undue obstacle to the mobility of persons with disabilities. Mr. Tucker submits that based on these failures, the Agency has failed to discharge the function of ensuring that persons with disabilities do not encounter undue obstacles to their mobility.

[12] Mr. Tucker states that the distinction drawn by the Agency between medically and non-medically necessary transportation lacks a rational basis. Mr. Tucker raises the case of his daughter as an example in that she did not need to travel from Halifax to Toronto in order to receive medical attention. He submits that it was necessary for his daughter to be transported to Toronto to facilitate her release from hospital because her Halifax residence could not accommodate her while she recovered from her injuries. Mr. Tucker asserts that the stretcher service that his daughter received was medically necessary only insofar as she was unable to physically travel in a seated position. Mr. Tucker asserts this would be true for any person who needs to travel by stretcher regardless of the reason for an individual to travel. The Agency, according to Mr. Tucker, provided no data in the Decision with respect to the overall demand for travel by stretcher, the relevant characteristics of persons who require stretcher service to travel, and the reasons for travel.

[13] Mr. Tucker submits that in the Decision the Agency did not provide data to support the assertion that nearly all people who need to travel by stretcher are able to do so by air ambulance. Mr. Tucker states that the Agency did not provide data on the number of persons who travel by stretcher on air ambulances and on commercial airlines and that the Agency failed to provide data related to the impact of Air Canada's pricing policy on access to the carrier's stretcher service.

[14] Mr. Tucker is also of the opinion that the Agency did not present data to support the assertion that in most cases the cost of stretcher service is covered by health insurance plans. In Mr. Tucker's view, it was necessary for the Agency to provide data with regard to the percentage of stretcher travel covered by public and private health insurance in order to support the assertion that in most cases the cost of stretcher service is covered by health insurance plans. Mr. Tucker submits that in the case of his daughter's travel from Halifax to Toronto, it was neither covered by public health insurance plans nor through his private insurance plans; rather, it was Ms. Tucker-Abramson's university insurance plan which covered the cost for her flight from Halifax to Toronto.

[15] Mr. Tucker submits that the Agency has the statutory authority to reconsider its decisions when, in the opinion of the Agency, there has been a change in the facts or circumstances since the decision was taken. However, Mr. Tucker maintains that the scope of the Agency's power to reconsider its decisions is not limited to statutory grounds. Rather, Mr. Tucker asserts that in the Chandler case, the Supreme Court of Canada held that administrative agencies, such as the Agency, have the power to reconsider their own decisions in order to enable them to discharge the functions committed to them by their enabling legislation. Mr. Tucker submits that, based on this authority, the Agency has the power to reconsider its decision which permitted Air Canada to terminate its stretcher service.

[16] Mr. Tucker explains that by narrowing the scope of his original application and by making assertions of fact unsupported by evidence, the Agency has failed to discharge its responsibility to ensure that persons with disabilities do not face undue obstacles to their mobility. Mr. Tucker asserts that as the Agency is vested with authority to protect the human rights of persons with disabilities, it is particularly important that its decisions be based on a "firm factual predicate". Mr. Tucker states that the Agency must be entitled to reconsider its decision when the factual predicate is lacking, as he states it is in this case, in order to discharge its statutory function, especially when the Agency's decisions are subject to appeal on limited grounds.

[17] Mr. Tucker further submits that Air Canada will not suffer prejudice if the Agency reconsiders whether the termination of Air Canada's stretcher service unduly interferes with the mobility of persons with disabilities. Air Canada is not currently providing stretcher service; therefore, according to Mr. Tucker, further deliberation on this issue will not impose any financial burden on the carrier. Mr. Tucker is of the opinion that as Air Canada terminated its stretcher service years after the original applications were filed, the Agency was required to change the focus of its decision-making from the fares charged by Air Canada to the provision of service very late in the process. Mr. Tucker asserts that the Agency's change in focus may account for the Agency's failure to develop a proper evidentiary basis upon which the Agency's conclusions about the impact of Air Canada's termination of stretcher service are based.

[18] Mr. Tucker asserts that decisions approving transportation policies that, on their face, deprive persons with disabilities of a mode of transportation that was previously available, should not be taken in the absence of compelling evidence.

Carrier respondents' comments

[19] The carrier respondents submit that the crux of the matter is found in Agency Decision No. LET-AT-A-319-2005 in which the Agency determined that as Ms. Tucker-Abramson was not required to pay the fare she did not encounter an obstacle to her mobility. The carrier respondents submit that this determination was within the Agency's jurisdiction and that the Agency discharged its mandate as outlined in the CTA.

[20] It is conceded by the carrier respondents that in the Chandler case, the Supreme Court of Canada defined a set of circumstances in which the doctrine of functus officio will not apply. They state that in addition to "traditional grounds" of reopening a final decision, the doctrine of functus officio will not apply where a tribunal has exceeded its jurisdiction and rendered a decision which is a nullity.

[21] The carrier respondents submit that the Court of Appeal and the Supreme Court of Canada upheld the authority of the Alberta Association of Architects' Practice Review Board (hereinafter the Board) to reopen the proceedings because the first Board determination was outside of its jurisdiction and thus a nullity. The Board therefore had not discharged its statutory obligation and it was incumbent upon it to reconsider the matter with respect to whether it would make its recommendations to the Complaints Review Committee which function was within its mandate.

[22] The carrier respondents assert that the facts in the Chandler case are different than those in the present case before the Agency. They state that in Mr. Tucker's case, the Agency made a simple determination that Mr. Tucker's daughter did not encounter an obstacle to her mobility which, they submit, is a matter at the core of its jurisdiction. The carrier respondents are of the view that any complaint about the determination rendered can be brought only by way of appeal or, if there had been a change in facts or circumstances, by way of a review pursuant to section 32 of the CTA. The carrier respondents explain that no appeal has been launched and that in this case it has been conceded that there has been no change in facts or circumstances. The carrier respondents submit that the application for reconsideration should be dismissed.

Mr. Tucker's reply

[23] Mr. Tucker asserts that the carrier respondents concede that the Agency has the authority to reconsider its decisions under a defined set of circumstances which include a situation where a tribunal has exceeded its jurisdiction and rendered a decision that is a nullity. Mr. Tucker states that the disagreement between he and the carrier respondents is, therefore, largely over the application of this principle to this case.

[24] Mr. Tucker submits that the Agency failed to discharge its statutory obligation by narrowing the scope of his application to the cost of providing stretcher service to his daughter. Mr. Tucker explains that his original application, in addition to Air Canada's pricing policy, was also with respect to the failure of some carriers to provide a stretcher service. Mr. Tucker asserts that his original application raised the broader issue of whether Air Canada's pricing policy constituted an undue obstacle to persons who require stretcher service and not just for his daughter. Mr. Tucker is of the view that the Agency did not deal with the full scope of his application which, according to him, resulted in the Agency not dealing with the issue of whether Air Canada and other carriers not providing a stretcher service for persons requiring this form of accommodation constitutes an undue obstacle to their mobility. Rather, Mr. Tucker asserts that the Agency decided that it would be unreasonable to require Air Canada to provide stretcher service for one person, Ms. Cook, who required a specialized stretcher service.

[25] Mr. Tucker asserts that the Agency failed to discharge its statutory obligations by not basing findings of fact on evidence. Two such Agency findings that he identifies as not being based on fact is that nearly all persons who need to travel by stretcher are able to do so by air ambulance and that the cost of most stretcher services is paid for by health insurance. Mr. Tucker is of the opinion that by not gathering evidence regarding whether the non-provision of stretcher service constitutes an undue obstacle to the mobility of persons who must travel by stretcher for medical reasons, it amounts to a failure to discharge the statutory authority conferred on it and, therefore, renders Decision No. LET-AT-A-319-2005 a nullity.

[26] In conclusion, Mr. Tucker states that the Agency is vested with statutory authority to protect persons with disabilities from actions by air carriers that unduly interfere with their mobility and that the Agency's power to carry out this human rights mandate should be read broadly. Mr. Tucker explains that this includes the Agency's power to reconsider matters when the Agency has failed to discharge its statutory function in the first instance which, he asserts, happened in this case.

ANALYSIS AND FINDINGS

[27] In making its findings, the Agency has considered the submissions filed by Mr. Tucker and the carrier respondents during the pleadings.

[28] The Agency acknowledges Mr. Tucker's statement that he is not requesting a review of the Decision pursuant to section 32 of the CTA; rather, Mr. Tucker refers the Agency to the Supreme Court of Canada decision in the Chandler case. The carrier respondents are of the view that the Chandler case is not applicable to Mr. Tucker's application.

[29] The Agency is of the opinion that the Chandler case does not apply to Mr. Tucker's application for a reconsideration. In the Chandler case, the tribunal exceeded its jurisdiction and rendered a decision which was considered a nullity and, thus, the doctrine of functus officio was found not to apply. Also, the tribunal had clearly not discharged its statutory obligation as set out in its enabling legislation. In the Chandler decision, the late Honourable Justice Sopinka, writing for the majority, stated:

In this appeal we are concerned with the failure of the Board to dispose of the matter before it in a manner permitted by the Architects Act. The Board intended to make a final disposition but that disposition is a nullity. It amounts to no disposition at all in law. Traditionally, a tribunal, which makes a determination which is a nullity, has been permitted to reconsider the matter afresh and render a valid decision. [...]

[...]

If the error which renders the decision a nullity is one that taints the whole proceeding, then the tribunal must start afresh. [...]

[30] With respect to Mr. Tucker's original application, the Agency concluded that Mr. Tucker's daughter did not encounter an obstacle to her mobility. The Agency clearly has the authority to make such a determination pursuant to subsection 172(1) of the CTA. The Agency is of the opinion that the Chandler case does not support Mr. Tucker's assertion that the Agency's findings were not based on fact. This is a different issue than that considered by the panel in the Chandler case.

[31] The new evidence that Mr. Tucker has raised, that his daughter's trip was not medically necessary and that the cost of the trip was covered by her university insurance plan and not by public health insurance or his own private insurance, does not change the fact that neither Mr. Tucker nor Ms. Tucker-Abramson paid for her transportation. It is this fundamental fact which forms the basis of the Agency's determination that there was no obstacle to the mobility of Ms. Tucker-Abramson.

[32] Accordingly, the Agency hereby dismisses Mr. Tucker's application for a reconsideration of Decision No. LET-AT-A-319-2005.

Members

• Marian L. Robson
• Gilles Dufault
• Beaton Tulk