Decision No. 48-AT-A-2021
APPLICATION by William Garrett McAllister (applicant) against Air Transat A.T. Inc. (Air Transat) pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA).
SUMMARY
[1] William Garrett McAllister filed an application with the Canadian Transportation Agency (Agency) against Air Transat claiming that Air Transat’s policy not to allow persons with disabilities to sit in the emergency exit row is discriminatory.
[2] The applicant seeks an order that Air Transat change its policy so that it does not exclude persons with disabilities from sitting in the emergency exit row.
[3] The Agency issued Decision No. LET-AT-A-11-2021 (Decision) on February 19, 2021, wherein it found that the applicant is a person with a disability and that he experienced a barrier in not being able to sit in the emergency exit row. The Agency then made a preliminarily finding that removing this barrier appeared to be unreasonable, impracticable or impossible—constituting undue hardship for Air Transat—because changing its policy to permit all persons to sit in the emergency exit row would cause the carrier to be in breach of regulatory safety requirements. The Agency provided the applicant with the opportunity to justify why this preliminary finding should not be finalized.
[4] In this decision, the Agency will address whether it should finalize its preliminary finding that the barrier is not undue.
[5] For the reasons set out below, the Agency finalizes its preliminary finding that the barrier Mr. McAllister encountered is not undue and dismisses the application.
BACKGROUND
[6] Sara-Jane McAllister purchased round-trip tickets through a travel agent with Air Transat on July 3, 2019, to travel with her father and her son, Mr. McAllister, to Manchester, United Kingdom, from Toronto, Ontario, on September 3, 2019, and return on September 15, 2019.
[7] On July 6, 2019, Ms. McAllister attempted to book seats with extra leg room in the emergency exit row for her party. When Ms. McAllister and the travel agent telephoned Air Transat, an Air Transat representative advised them not to book these seats because Mr. McAllister might be told at check-in that he is not allowed to sit in the emergency exit row. Ms. McAllister telephoned Air Transat again on July 8, 2019, to discuss its policy related to seating in the emergency exit row. According to the applicant, Air Transat reviewed its policy with her and explained that it is based on section 4.4 of Transport Canada’s Advisory Circular No. 700-014 (Advisory Circular). The applicant states that Ms. McAllister described his abilities on his behalf to Air Transat during their conversations.
[8] On October 4, 2019, Ms. McAllister filed an application with the Agency on behalf of Mr. McAllister pursuant to section 16 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR-2014-104, which allows applicants to authorize a representative for Agency proceedings. The applicant alleged that Air Transat discriminated against Mr. McAllister when it would not allow him to sit in the emergency exit row because he has Down’s syndrome.
[9] On January 22, 2020, the Agency opened pleadings on whether the applicant is a person with a disability and whether he encountered a barrier. After pleadings on questions the Agency issued to both parties on July 6, 2020, the Agency issued the Decision on February 19, 2021. In the Decision, the Agency found that the applicant is a person with a disability and that he experienced a barrier in not being able to sit in the emergency exit row.
[10] The Agency then made a preliminary finding that the barrier is not undue. The Agency also found that removing the barrier would cause Air Transat undue hardship primarily because doing so would cause Air Transat to be in breach of regulatory safety requirements, particularly certain sections of the Canadian Aviation Regulations, SOR/96-433 (CARs).
[11] The Agency provided the applicant with an opportunity to justify why the Agency should not finalize its preliminary finding, following which Air Transat could submit a reply. The applicant submitted a response on February 26, 2021. Air Transat declined to file a reply.
THE LAW
[12] The application was filed pursuant to subsection 172(1) of the CTA, which 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 barrier to the mobility of persons with disabilities.
[13] As set out in the letter that opened pleadings on this application, the Agency determines whether there is an undue barrier to the mobility of a person with a disability using a two‑part approach:
Part 1: The onus is on the applicant to demonstrate, on a balance of probabilities, that:
- they have a disability. A disability is any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment—or a functional limitation—whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society.
and
- they faced a barrier. A barrier is anything—including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice—that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. There needs to be some connection between the applicant’s disability and the barrier.
Part 2: If it is determined that applicant has a disability and faced a barrier, the onus shifts to the respondent to either:
- explain, taking into account any proposals from the applicant, how it proposes to remove the barrier through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or, if a general modification is not feasible, an individual accommodation measure;
or
- demonstrate, on a balance of probabilities, that it cannot remove the barrier without experiencing undue hardship.
POSITION OF THE PARTIES AND FINDING OF FACT
Mr. McAllister’s position
[14] In response to the Agency’s direction to justify why the Agency should not finalize its preliminary finding on undue hardship, the applicant submits that contrary to the Agency’s finding in that Decision, Air Transat did not conduct an assessment of Mr. McAllister prior to denying him the opportunity to sit in the emergency exit row. The applicant also argues that Air Transat would not have assessed either Ms. McAllister or her father, who were both travelling with the applicant, prior to travel, had they booked and paid for seats in the emergency exit row. The applicant posits that the only reason a person would be denied seating in the emergency exit row is because they have a disability, which he argues is “dangerous”.
Air Transat’s position
[15] In the Decision, the Agency noted that Air Transat had already argued that requiring it to alter its policy would result in undue hardship because it would place the carrier in breach of its regulatory obligations set out in the CARs and of the safety considerations described in section 4.4 of Transport Canada’s Advisory Circular. Air Transat’s submissions are set out in more detail in the Decision.
[16] Air Transat did not file a reply to the applicant’s response to the Decision.
Finding of fact
[17] In the Decision, the Agency found as a fact that, on a balance of probabilities, Air Transat conducted an individual assessment of Mr. McAllister’s capacities and capabilities. While the applicant maintains that Air Transat did not do so prior to denying him a seat in the emergency exit row, the applicant stated in earlier submissions that an Air Transat agent reviewed the list of criteria in the Advisory Circular, which is used to evaluate individual capacities and capabilities, with Ms. McAllister on his behalf during a telephone conversation on July 8, 2019. The applicant’s assertion therefore does not persuade the Agency that the assessment did not occur; rather, that it did not result in the outcome that the applicant wanted.
[18] According to Air Transat, all passengers who book seats in the emergency exit row are asked to accept the terms and conditions attesting to their capacities, based on the criteria in the Advisory Circular, whether they are booking online or by phone. Ms. McAllister’s communication with Air Transat on Mr. McAllister’s behalf about his abilities provided Air Transat with the information necessary to make an assessment. The Agency therefore maintains its finding that, on a balance of probabilities, Air Transat conducted an individual assessment of Mr. McAllister’s capacities and capabilities.
ANALYSIS AND DETERMINATION
[19] As set out in the section on the applicable law, above, in the normal course of proceedings, after finding that an applicant is a person with a disability and that they faced a barrier, the Agency would then open pleadings to give the carrier the opportunity to present evidence and argument on the removal of the barrier or undue hardship. The applicant would then have an opportunity to reply. In this case, however, because Air Transat had already made submissions on undue hardship, the Agency provided its preliminary analysis on whether the barrier could be removed without Air Transat experiencing undue hardship, so that both parties could respond to it.
[20] The issue to be decided now is whether the Agency should finalize its preliminary finding.
Legal test
[21] As the Agency set out in the Decision, the leading jurisprudence on the assessment of undue hardship are two Supreme Court of Canada decisions: British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union, [1999] 3 SCR 3, and British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), [1999] 3 SCR 868. These decisions are also reflected in previous decisions the Agency has issued such as Decision No. LET-AT-A-19-2015 (Bavin v Air Canada). In Bavin v Air Canada, the Agency found that to justify the existence of an obstacle (now referred to as “barrier”), a service provider must demonstrate that:
- the source of the obstacle is rationally connected to the provision of the transportation service;
- the source of the obstacle was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; and
- there are constraints that make the removal of the barrier unreasonable, impracticable, or impossible (“undue hardship”).
[22] As explained below, the Agency confirms the preliminary analysis of the three factors listed above as set out in the Decision.
Is the source of the barrier—that is, the policy—rationally connected to providing transportation services?
[23] In the Decision, the Agency found that Mr. McAllister faced a barrier in that, by reason of his disability, he did not have access to the same seats as other passengers, hindering his “full and equal participation in society”. The Agency confirms that the source of the barrier is Air Transat’s policy for the seating of passengers in the emergency exit row (policy). The Agency recognized in the Decision that the policy has a discriminatory effect because it disproportionately affects persons with disabilities, many of whom may not meet the criteria to sit in the emergency exit row.
[24] There is, however, a rational connection between Air Transat’s policy and the provision of transportation services. Air Transat’s policy is based on the CARs and the Advisory Circular. Air Transat is obligated by law to properly apply the CARs in order to provide its transportation services. The Advisory Circular, upon which Air Transat’s policy is based, provides guidance on how carriers are to properly apply the CARs. As the parties did not comment on this question and for the reasons set out above, the Agency finds that there is a rational connection between the policy and the provision of transportation services.
Did Air Transat apply its policy to Mr. McAllister based on an honest and good faith belief that it was necessary in order to provide its transportation services?
[25] As explained in the Decision, the Agency applies a “capability-based approach for considering how safety standards for public transportation should apply to persons with disabilities”, as set out in Bavin v Air Canada. The capability-based approach means that a person with a disability should not be assessed on the nature of their disability, but rather on whether they can perform the required tasks for the activity in question.
[26] The applicant maintains that the only reason Air Transat would deny a person seating in the emergency exit row is because they are a person with a disability and that the inverse is true as well: any person without a disability may sit in the emergency exit row. Air Transat, on the other hand, submits that any person who buys tickets in the emergency exit row is required to accept the terms and conditions attesting to their capacities during booking and possibly respond to the list of questions based on the Advisory Circular at check-in and aboard the aircraft.
[27] The applicant also claims that neither Ms. McAllister nor her father would have been assessed to determine whether they were capable of understanding and executing instructions during an emergency. The Agency notes that this allegation is both hypothetical—because they did not complete the booking of seats in the emergency exit row—and contrary to the evidence Air Transat provided regarding its procedures. Further, as noted in the Decision, a carrier may also assess a passenger seated in the emergency exit row on the day of the flight, both at the check-in counter and onboard the flight, consistent with Air Transat’s policy and the CARs. There is no evidence before the Agency to suggest that Air Transat does not apply its policy consistently.
[28] The Agency therefore confirms its finding in the Decision that the assessment Air Transat conducts of passengers seated in the emergency exit row is not based on a person’s status as a person with a disability; rather, it is based on whether the passenger would be capable of understanding and executing instructions during an emergency. As noted above, the Agency also found as a fact that Air Transat conducted an assessment of Mr. McAllister’s capacities and capabilities in advising the applicant not to book seats in the emergency exit row. This finding is consistent with the capability-based approach set out above and in Bavin v Air Canada.
[29] For the reasons set out above, the Agency finds that Air Transat applied its policy in an honest and good faith belief that doing so was necessary in order to safely provide its transportation services.
Are there constraints that make the removal of the barrier unreasonable, impracticable, or impossible, thus causing Air Transat undue hardship?
[30] The Agency finds that the removal of the barrier would be unreasonable, impracticable or impossible, and would constitute undue hardship for the carrier. The Agency confirms its finding in the Decision, that the CARs and the Advisory Circular, upon which Air Transat’s policy is based, provide minimum criteria of capacities needed to operate the emergency exit. These criteria are reasonably necessary to protect the safety not just of the person sitting in the emergency exit row, but of all others onboard the aircraft.
[31] Further, requiring Air Transat to change its policy to permit all persons to sit in the emergency exit row, regardless of capability, would cause Air Transat to be in breach of regulatory safety requirements. Since compliance with the CARs is obligatory, changing the policy would ultimately mean that Air Transat could not operate its transportation services and would thereby experience undue hardship.
CONCLUSION
[32] In conclusion, the Agency finds that the applicant did not bring forward any new or convincing evidence that would suggest that the Agency should alter its preliminary finding that Air Transat cannot remove the barrier without experiencing undue hardship. In light of the above, the Agency finds that although the applicant encountered a barrier when Air Transat did not allow Mr. McAllister to sit in the emergency exit row, the barrier is not undue. The Agency, therefore, dismisses the application.
Member(s)
- Date modified: