Decision No. 25-AT-A-2021

April 12, 2021

APPLICATION by Julia Burns (applicant) against Air Canada (respondent) pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA), regarding their disability‑related needs.

Case number: 
19-50059

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against the respondent pursuant to subsection 172(1) of the CTA concerning the difficulties they experienced in obtaining wheelchair assistance for their flight from London, United Kingdom, to Vancouver, British Columbia.

[2] The applicant seeks two round-trip tickets to London as compensation.

[3] The Agency will address the following issue:

Has the applicant justified why the Agency should not dismiss their application?

[4] For the reasons set out below, the Agency finds that the applicant has not justified why the Agency should not dismiss their application and, therefore, dismisses their application.

BACKGROUND

[5] On January 12, 2021, the Agency issued Decision No. LET-AT-A-2-2021 (Decision) in which it notified the applicant that it was considering dismissing the application without further pleadings pursuant to subsection 42(2) of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Rules). The Agency found, on a preliminary basis, that the respondent communicated the applicant’s need for wheelchair assistance to Omniserv, and that the Agency lacks jurisdiction to deal with any other matter related to the complaint.

[6] The applicant filed a response to the Decision on January 13, 2021.

THE LAW

[7] The Agency notes that subsection 172(1) of the CTA, in effect at the time the incident that is the subject of this application occurred, reads as follows:

The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

[8] The Agency determines whether there is an undue obstacle to the mobility of a person with a disability using a two-part approach:

[9] Part 1: The onus is on an applicant to demonstrate, on a balance of probabilities, that:

- they have a disability, for the purposes of Part V of the CTA.

and

- they faced an obstacle. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.

[10] Part 2: If it is determined that an applicant has a disability and faced an obstacle, the onus shifts to the respondent to either:

- explain, taking into account any proposals from the applicant, how it proposes to remove the obstacle through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting an obstacle, or, if a general modification is not feasible, an individual accommodation measure;

or

- demonstrate, on a balance of probabilities, that it cannot remove the obstacle without experiencing undue hardship.

[11] Section 42 of the Rules states the following:

  1. The Agency may, by notice to the applicant and before considering the issues raised in the application, require that the applicant justify why the Agency should not dismiss the application if the Agency is of the preliminary view that

    1. the Agency does not have jurisdiction over the subject matter of the application;
    2. the dispute proceeding would constitute an abuse of process; or
    3. the application contains a fundamental defect.
    2. The applicant must respond to the notice within 10 business days after the date of the notice, failing which the application may be dismissed without further notice.
    3. The Agency may provide any other party with an opportunity to comment on whether or not the application should be dismissed.

POSITION OF THE APPLICANT

[12] In response to the Decision, the applicant claims that they booked their tickets with the respondent and not with the wheelchair service provider. They reiterate that their booking, which was “accepted” by the respondent, provided for wheelchair assistance. The applicant submits that the lack of service they experienced was the respondent’s responsibility.

[13] The applicant asserts that wheelchair assistance should be made a priority, but that in their case, they were “shunned aside” and they were lucky to reach their flight in time under the circumstances.

ANALYSIS AND DETERMINATIONS

[14] Other than reiterating that they booked wheelchair assistance with the respondent and not the wheelchair service provider (Omniserv), the applicant did not address the Agency’s preliminary finding that it does not have jurisdiction over the issue raised by the complaint—namely, whether wheelchair assistance was properly provided by Omniserv. It is not unreasonable for the applicant to assert that even though they and their husband were ultimately able to board their flight on time, they experienced frustration as a result of challenges in obtaining wheelchair assistance. This does not, however, afford the Agency jurisdiction over the matter. Other authorities, such as the United Kingdom’s Civil Aviation Authority, may be able to provide information regarding options available to the applicant.

CONCLUSION

[15] The Agency dismisses the application.

Member(s)

Scott Streiner
J. Mark MacKeigan
Mary Tobin Oates
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