Decision No. 66-AT-A-2009

February 27, 2009

File No. U3570/06-17

BACKGROUND

In Decision No. 327-AT-A-2008 (Decision), the Canadian Transportation Agency (Agency) directed Air Canada and Jazz Air LP, as represented by its general partner Jazz Air Holding GP Inc. carrying on business as Air Canada Jazz, (Air Canada/Jazz) to take the following corrective measure, as it applies to service animals described in subsections 149(1) and 149(2) of the Air Transportation Regulations, SOR/88/58, as amended (ATR), within 90 days from the date of the Decision:

• Develop, in respect to their domestic flights, policies and procedures to ensure that at the time of reservation, and upon receipt of a request at least 48 hours prior to the scheduled flight departure, the carriers will provide certainty that the person will be assigned seating with sufficient floor space at no additional cost. In this way, the carriers have the flexibility of delaying the assignment of a specific seat(s), provided they guarantee that appropriate accommodation will be provided. The determination concerning the seating accommodation that will be provided shall be made:
  
  1. through dialogue with the person with a disability travelling with a service animal;
  2. by reference to the floor space available at seats within the aircraft for use by the person and the service animal; and
  3. by reference to the amount of floor space needed to accommodate the service animal.

These policies and procedure must also include provisions setting out that, where such a request is made less than 48 hours prior to departure, the air carrier will make a reasonable effort to provide the service.

Air Canada/Jazz filed a motion for leave to appeal the Decision, which the Federal Court of Appeal dismissed on October 8, 2008.

ISSUE

Has there been a change in the facts or circumstances within the meaning of section 32 of the CTA since the issuance of the Decision and, if so, is such change sufficient to warrant a review, rescission or variance of the Decision?

ANALYSIS

Pursuant to section 32 of the CTA, the Agency may review, rescind, or vary any decision if new facts or circumstances have arisen since the issuance of the decision.

In addition to the above order for corrective measures, the Agency noted in the Decision a comment from the carriers that the Agency did not specify what measures the carriers must take to ensure that sufficient space is provided. While the Agency indicated that the carriers are free to use different means of providing the required accommodation and are best placed to know what space is available in the aircraft, the Agency set out that it would engage in a consultative process related to section 2.6 of the Agency Code of Practice for Aircraft Accessibility for Persons with Disabilities (Air Code) to provide guidance to air carriers in terms of the floor space requirements for various-sized service animals.

The Agency notes that Air Canada/Jazz are participating in that consultative process, which is ongoing.

The carriers state that they are committed to respond to the Decision, but would like to benefit from the recommendations for the implementation of a uniform process and procedure that will stem from the consultative process. Air Canada also submits that it is implementing a process to apply the new one person-one fare policy as ordered by the Agency in Decision No. 6-AT-A-2008 and that will form the basis for the process to allow extra space if necessary for service animals. Air Canada would like to have the benefit of a few months of operation of the one person-one fare policy to address any problems that may arise.

Based on those submissions, Air Canada/Jazz request an extension to May 6, 2009 to implement the changes in policies and procedures required by the Decision.

Until such time, the carriers are prepared to consider requests for extra space on a case-by-case basis, provided that each request is made at least 48 hours in advance through its Meda Desk. The carriers note that this is consistent with Mr. East's suggestion that, at the time of reservation, persons who use service animals should notify the carrier of this fact and a dialogue can occur regarding the provision of sufficient space.

Mr. East raises concerns with any delays regarding the implementation of the corrective measure in question as it has been two years since he filed his application. Mr. East is of the view that Air Canada/Jazz have had sufficient time to be proactive instead of reactive about putting a system into place that will work to solve this issue.

Mr. East adds that he is a frequent traveller and that he will be travelling four times in the next three months and notes that two trips in January were already booked with Air Canada. Mr. East states that, since May 2006, he has been moved to a different seat location on either the outgoing or the incoming flight on every trip. Mr. East states that he is not prepared to accept any further delays.

Air Canada/Jazz clarify that their request for additional time is not to avoid any obligations to provide accommodation, but to delay the implementation of a uniform process and procedure until the comprehensive consultative process has been completed by the Agency. In addition, the carriers provided the name and contact information for Air Canada personnel to Mr. East so that he can disclose his current itinerary and any future travel dates and destinations to allow Air Canada/Jazz to review the space available on the type of aircraft on the routes in question.

CONCLUSION

The Agency has considered the current consultative process related to section 2.6 of the Air Code to provide guidance to air carriers in terms of the floor space to accommodate persons with disabilities and their service animals. The Agency finds that the consultative process is a sufficient change in circumstances to warrant a variance of the implementation date for the corrective measure set out in the Decision. Accordingly, the Agency varies Decision No. 327-AT-A-2008 by directing Air Canada/Jazz to implement the corrective measure set out in the Decision within 30 days from the date of issuance by the Agency of the guidance material related to section 2.6 of the Air Code.

This extension of time is not to be interpreted as a waiver to comply with the regulatory requirements set out at subsections 149(1) and 149(2) of the ATR and the Agency orders that, until Air Canada/Jazz put in place their uniform procedure in accordance with the Decision, the carriers address requests for extra space on a case-by-case basis to ensure compliance with subsections 149(1) and 149(2) of the ATR.

Members

• Geoffrey C. Hare
• John Scott