Decision No. 342-AT-A-2010
August 13, 2010
APPLICATION by Vishnuprasad Barot against Emirates.
File No. U3570/10-7
INTRODUCTION
[1] Vijaykumar Brahmbhatt, on behalf of his father-in-law, Vishnuprasad Barot, filed an application with the Canadian Transportation Agency (Agency) against Emirates. The application concerns difficulties encountered in obtaining wheelchair assistance for Mr. Barot on April 21, 2008 at the Toronto-Lester B. Pearson International Airport (Toronto airport).
BACKGROUND
[2] Mr. Brahmbhatt alleges that there was a long delay in obtaining wheelchair assistance and that this was a stressful situation for him, his family and Mr. Barot. Mr. Brahmbhatt is seeking compensation for the "mental stress" his family experienced. He seeks compensation in the form of free return tickets for him and his wife to travel to India as he submits that Mr. Barot is no longer willing to travel by air after the incident.
THE LAW
[3] The Agency's legislative mandate with respect to persons with disabilities is found in Part V of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), which contains a regulation-making authority [subsection 170(1)] and a complaint adjudication authority [subsection 172(1)], both for the express purpose of removing undue obstacles to the mobility of persons with disabilities from the federal transportation network.
[4] In order for the Agency to investigate an application pursuant to section 172 of the CTA or otherwise make a determination in respect of a matter, the Agency must have jurisdiction to do so. This Decision examines whether the Agency has jurisdiction to investigate Mr. Brahmbhatt's application.
ISSUE
[5] Does the Agency have jurisdiction pursuant to section 172 of the CTA to investigate Mr. Brahmbhatt's application?
ANALYSIS AND FINDINGS
[6] The test to determine the jurisdiction of an administrative tribunal was established in the Cuddy Chicks Ltd v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 case, and referred to by the Federal Court of Appeal in Canadian National Railway Co. v. Moffatt (C.A.) [2002] 2 F.C. 249. According to the test, an administrative tribunal has jurisdiction to hear a matter when it has jurisdiction over:
- the parties;
- the subject matter; and
- the remedy sought.
[7] The Agency's analysis of its jurisdiction to investigate Mr. Brahmbhatt's application is set out in terms of the foregoing test.
1. Jurisdiction over the parties
[8] At the time of the incident described in Mr. Brahmbhatt's application, Emirates had a contract with the Greater Toronto Airports Authority (GTAA) to provide wheelchair assistance for its passengers through GTAA's Airport Customer Assistance Program. The Agency has jurisdiction over carriers within the federal transportation system, including the services that carriers provide by contract, which would otherwise be provided by their own personnel.
[9] With respect to Mr. Barot, the Agency is satisfied that the evidence supports that he is a person with a disability for the purposes of Part V of the CTA, and, as such, the Agency has jurisdiction over the parties.
2. Jurisdiction over the subject matter
[10] As noted above, section 172 of the CTA provides the Agency with the power to inquire into a matter in order to determine whether there is an undue obstacle to the mobility of persons with disabilities. As this application relates to the provision of transportation services, the Agency has jurisdiction over the subject matter.
3. Jurisdiction over the remedy sought
[11] The Agency is mandated to remove undue obstacles from the federal transportation network. This can be accomplished on an individual basis, through the Agency's complaint process, and on a systemic basis through the development of regulations, codes of practice and standards. In its formal adjudication process, the Agency has taken an approach to order corrective measures with a view to eliminating undue obstacles. These corrective measures usually go beyond remedying the obstacle faced by the person with a disability and have the effect of addressing underlying systemic issues to prevent recurrence.
[12] In this particular case, Mr. Brahmbhatt indicates that as a remedy to the alleged obstacle, he is seeking compensation in the form of free return tickets for him and his wife to travel to India. Despite being advised by Agency staff on numerous occasions (March 11, April 7, May 4, June 28 and June 30, 2010), that the Agency does not have the power to compensate for inconvenience, pain, suffering or loss of enjoyment of a trip, Mr. Brahmbhatt continues to indicate that he seeks compensation as a remedy.
[13] In addition to being reminded that the Agency cannot award compensation for inconvenience, pain, suffering or loss of enjoyment of a trip, Mr. Brahmbhatt was asked to advise the Agency whether compensation is the only remedy being sought. In the event that compensation is not the only remedy he seeks, Mr. Brahmbhatt was also asked to describe in detail any other remedies he seeks to remove the alleged undue obstacle that Mr. Barot encountered as a result of a delay in receiving wheelchair assistance. Mr. Brahmbhatt did not reply to these questions.
[14] It is evident that the only remedy Mr. Brahmbhatt is seeking is compensation. As the Agency does not have the power to award compensation for inconvenience, pain, suffering or loss of enjoyment of a trip, the Agency does not have jurisdiction over the remedy sought. Consequently, the Agency does not have jurisdiction to investigate the application.
[15] Mr. Brahmbhatt is not seeking the removal of the alleged undue obstacle. He is seeking an individual remedy for himself, which the Agency does not have the power to award. Therefore, the Agency does not have authority to provide the remedy Mr. Brahmbhatt is seeking.
[16] Furthermore, Mr. Brahmbhatt has not met his burden of proof to provide prima facie evidence to demonstrate that Mr. Barot encountered an obstacle. Mr. Brahmbhatt failed to demonstrate the harm experienced by Mr. Barot as a result of the alleged delay in receiving wheelchair assistance. There is no evidence in this case of a systemic problem with the wheelchair assistance provided at the Toronto airport, nor does the evidence indicate that the alleged delay in receiving wheelchair assistance caused Mr. Barot to suffer any harm beyond an inconvenience.
CONCLUSION
[17] As the Agency does not have jurisdiction over the remedy sought, the Agency dismisses the application.
Members
- Raymon J. Kaduck
- J. Mark MacKeigan
Member(s)
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