Decision No. 41-AT-A-2020
APPLICATION by Applicant against Air Canada and United Airlines, Inc. (United), pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10, regarding their disability-related needs.
[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Air Canada and United pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA), regarding the lack of accommodation for their disability during travel to Toronto, Ontario, from Hawaii, USA, via San Francisco, California, USA, in August 2017. The Agency joined the two applications and, to maintain the anonymity of the applicant, the Agency is using gender-neutral pronouns and a general description of the applicant’s allergy in this decision.
[2] In Decision No. CONF-12-2019 (Decision), the Agency found that the applicant is a person with a disability and that they encountered obstacles to their mobility. The applicant is anaphylactic to an airborne food allergen. During travel to Hawaii, both carriers provided the services and precautions requested by the applicant to address their allergy-related needs: priority boarding, an announcement to passengers in their area regarding their allergy, and a buffer zone around the applicant where the allergen would not be served. However, on the return travel, these accommodations were not provided.
[3] The Agency directed Air Canada and United to show cause why the Agency should not order interim measures to ensure that the applicant receives adequate accommodation for their disability until the relevant portions of the Accessible Transportation for Persons with Disabilities Regulations,SOR/2019-244 (ATPDR) come into effect on June 25, 2020.
Agency jurisdiction
[4] United claims that the proposed interim measures were beyond the jurisdiction of the Agency because it is a foreign carrier.
[5] The Agency notes that United holds a Canadian licence issued by the Agency to provide passengers with air transportation services to and from Canada. The itinerary in question originated in Toronto, which provides a real and substantial connection to Canada.
[6] The ATPDR apply to international flights that depart from, or arrive in, a point in Canada. While the regulations do not assist the applicant when they travel on flights within the USA, they do ensure that the applicant does not face similar barriers as encountered on their Hawaii to San Francisco flight when travelling with United to and from Canada. The Agency encourages United to offer comparable accommodations across its network to passengers, like the applicant, who have severe allergies.
[7] The Agency reminds the parties that its authority under section 172 of the CTA to inquire into applications in order to determine whether there is an undue barrier to the mobility of persons with disabilities has not changed as a result of the coming-into-force of the ATPDR.
Opportunities to make submissions
[8] United and Air Canada claim that the Agency could not have imposed interim measures without opening pleadings on whether those measures would cause them undue hardship. The Agency notes that the carriers were given an opportunity, through the show cause element of the Decision, to make submissions on whether the identified interim measures should be ordered, and that this included the opportunity to make arguments on whether these measures would cause undue hardship.
[9] In September 2019, United and Air Canada each responded to the show cause direction with arguments that the interim measures would cause them undue hardship. Between December 5, 2019, and January 13, 2020, the Agency provided United with an opportunity to further explain its claim that creating or retaining a long-term medical file for the applicant would cause it undue hardship, and provided the applicant with the opportunity to reply.
[10] Thus, United and Air Canada were offered, and took, the opportunity to make submissions relating to whether there would be undue hardship to implement the interim measures. United and Air Canada are reminded that in some cases, like this one, that opportunity may be provided using a show cause approach.
No further action
[11] The CTA requires that transportation service providers in the federal transportation network remove barriers to persons with disabilities. A service provider is only relieved of this duty if all options for removing a barrier to mobility would cause it undue hardship.
[12] The applicant made sound arguments and the Agency would have ordered interim measures if it had not, due to the impacts of the COVID-19 pandemic, stayed all dispute adjudication proceedings involving air carriers until June 30, 2020, five days after the ATPDR came into effect. As a result of this development, the issue of interim measures became moot.
[13] The applicant will benefit from the ATPDR for future travel. The Agency will take no further action in respect of the application.
Member(s)
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