Decision No. 5-AT-A-2024

March 20, 2024

Application by Tomasz Muldner (applicant) against Air Canada, Polskie Linie Lotnicze LOT SA (LOT) and the Greater Toronto Airport Authority (GTAA) [respondents] regarding barriers to mobility related to wheelchair assistance

Case number: 
23-25271

Summary

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against the respondents regarding the disability-related assistance that the applicant received at the Toronto Pearson International Airport (Toronto airport) during travel between Ottawa, Ontario, and Warsaw, Poland, via Toronto, Ontario, on September 4 and October 10, 2022.

[2] The applicant seeks corrective measures to resolve the difficulties that he experienced.

[3] The Agency will address the following issues:

  1. Is the applicant a person with a disability?
  2. Did the respondents contravene any applicable accessibility regulations?
  3. Did the applicant face a barrier not addressed by regulation?

[4] For the reasons set out below, the Agency finds that:

  1. The applicant is a person with a disability;
  2. The respondents did not contravene the Accessible Transportation for Persons with Disabilities Regulations (ATPDR); and
  3. The applicant did not meet his burden to establish, on a balance of probabilities, that he faced a barrier.

Background

[5] The applicant travelled on an interline itinerary in which Air Canada operated the flight segments between Ottawa and Toronto, and LOT operated the flight segments between Toronto and Warsaw. Both segments of the itinerary included a connection time of over four hours in Toronto.

[6] Approximately three and two weeks in advance of the outbound and inbound flights, respectively, the applicant emailed Air Canada’s medical desk to request wheelchair assistance when registering at the check-in counter, proceeding to the boarding gate, boarding and disembarking, retrieving his checked baggage and transferring to the other carrier for his connecting flight.

[7] The applicant alleges that he did not receive timely assistance while transiting through the Toronto airport on either segment of his itinerary and had to rely on the goodwill of passing employees.

[8] Pleadings opened on the application on July 14, 2023. Following the Agency’s determinations on multiple procedural requests made by the parties, set out in Agency directives and Decision LET-AT-A-50-2023, pleadings closed on January 31, 2024.

The law

[9] The Agency has authority to decide applications that claim the existence of undue barriers to the mobility of persons with disabilities within the federal transportation network.

[10] 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 an 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.

[11] When the Agency finds that there is an undue barrier or that a person with a disability was adversely affected by a contravention of accessibility regulations, it has the power to require that the respondent take appropriate corrective measures and, where appropriate, compensate that person for any expenses arising out of, or lost wages incurred as result of, the undue barrier or contravention. The Agency also has the power to award compensation for pain and suffering arising out of an undue barrier or contravention, or where the undue barrier or contravention is the result of a wilful or reckless practice, up to a maximum of CAD 20,000 each (subject to annual adjustments).

[12] However, where the Agency finds that the carrier has complied with or has not contravened the applicable regulations but nonetheless finds an undue barrier, the scope of the Agency’s remedial powers is limited to corrective measures — no monetary award is available. As a result, the Agency must determine whether any accessibility regulations apply in a given case in order to determine what remedies may be available to the applicant.

[13] In this decision, the Agency will address Part 1 of its two-part approach. The Agency will also address whether any accessibility regulations apply and, if so, whether the respondents complied with them.

1. Is the applicant a person with disability?

[14] The applicant explains that, due to severe hip pain, he cannot stand or walk. He is completely dependent on his wheelchair. When travelling, his wife accompanies him and acts as his caregiver.

[15] The respondents do not contest that the applicant is a person with a disability.

[16] In light of the above, the Agency finds that the applicant is a person with a disability.

2. Did the respondents contravene any applicable accessibility regulations?

[17] Although none of the parties identifies the specific provisions applicable to the events in question, the Agency finds that the ATPDR apply and that the assistance the applicant requested falls under the following service obligations:

  • registering at the check-in counter: subsection 35(a);
  • proceeding to the boarding area: subsection 35(d);
  • boarding and disembarking: subsections 35(e), 35(f) and 35(h);
  • retrieving checked baggage: subsection 35(t); and
  • transferring to another carrier for a connecting flight: subsection 35(w).

[18] Section 35 of the ATPDR states that each service is to be provided without delay.

Positions of the parties

The applicant

[19] The applicant’s main allegation concerns a lack of wheelchair assistance while transiting through the Toronto airport. His response to Decision LET-AT-A-50-2023 indicates that this allegation stems from the fact that he received assistance from passing employees rather than employees who met him directly upon arrival or whom he was told to expect at a particular time.

[20] The applicant also submits that he had to wait for assistance to transfer to the aisle chair upon arrival in Toronto from Ottawa, and states that he was not given the option to spend the outbound connection time waiting at the Air Canada customer service counter until a LOT agent became available, closer to the departure time.

The respondents

[21] The GTAA submits that the carriers are responsible for providing the requested services at the Toronto airport.

[22] LOT submits that it provided wheelchair assistance on the flights it operated, as requested, including transfers to and from Air Canada. It states that agents from its contractor, PrimeFlight, were available at the gate two hours before departure on September 4, 2022, picked the applicant up from the LOT gate on October 10, 2022, and “likely” brought him to the Air Canada customer service desk.

[23] Air Canada submits that the applicant admits to receiving assistance on the flights it operated, although perhaps not in the manner that he expected, and that Air Canada therefore complied with the ATPDR. Air Canada understands that the wheelchair service may not have been timely, but argues that a wait was reasonable given the lengthy connection time and explains that it has measures in place to limit delays. Air Canada further states that it was at the applicant’s specific request that Air Canada assisted him to the LOT departure gate for his outbound connection rather than to the international customer service desk.

Analysis and determination

[24] The Agency finds that the service obligations of the ATPDR do not apply to the GTAA and that the applicant’s response to Decision LET-AT-A-50-2023 confirms that he received all requested assistance addressed by those obligations. Therefore, the Agency considers the respondents’ compliance with the ATPDR to depend on the timeliness with which Air Canada and LOT provided the assistance.

[25] The Agency finds that the applicant has not met his burden to establish that either carrier provided the requested services with sufficient delay as to constitute a breach of the ATPDR. In particular, the applicant does not indicate how long he waited for an aisle chair, and it is common practice for persons in need of assistance to be disembarked after the other passengers. Similarly, the applicant does not indicate how long he waited before asking a passing employee for immediate wheelchair assistance and does not mention any untimely arrival at the departure gates or any particular anxiety or uncertainty in that respect.

[26] In light of the above, the Agency finds that Air Canada and LOT complied with the applicable provisions of the ATPDR.

3. Did the applicant face a barrier not addressed by regulations?

[27] Persons with disabilities may face additional barriers that the regulations do not address. When the Agency finds that the regulations do not directly address an alleged barrier, the Agency will address it separately.

[28] The applicant makes one such allegation in this case: that he received insufficient support with pushing his wheelchair on the carpet while transiting through the Toronto airport.

[29] The GTAA submits that the carpeting at issue is designed, installed, and maintained in compliance with building codes and accessibility standards; that it has not been the subject of any other accessibility complaints since it was installed in 2007; and that there is no connection between the carpeting and the applicant’s disability. Therefore, the GTAA argues that the carpeting does not constitute a barrier.

[30] LOT and Air Canada deny any involvement with this matter.

Analysis and determination

[31] A person with a disability will face a barrier to their mobility if they demonstrate that they need — and were not provided with — accommodation to meet their disability-related needs, thereby being denied equal access to services available to others in the federal transportation network.

[32] In this case, the applicant does not explain how or why the carpeting at the Toronto airport presented difficulties for him and his wheelchair and did not reply to the GTAA’s submission on the matter. Therefore, the Agency finds that the applicant did not meet his burden to demonstrate that he faced a barrier in relation to the carpeting.

Conclusion

[33] In light of the above, the Agency dismisses the application.


Legislation and Tariff cited Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10 172; 172.1
Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244 35(a); 35(d); 35(e); 35(f); 35(h); 35(t); 35(w)

Member(s)

Elizabeth C. Barker
Date modified: