Decision No. 865-A-1995
December 28, 1995
APPLICATION by Mr. Paul Murphy pursuant to subsection 63.3(1) of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.) for an investigation into the level of accessibility provided by the boarding device manufactured by Lift-A-Loft Corporation and its potential purchase for service in Canada by Canadian Regional Airlines Ltd.
File No. U 3570/94-3
BACKGROUND
On March 7, 1994, the National Transportation Agency (hereinafter the Agency) received a letter of complaint from Mr. Paul Murphy (hereinafter the applicant) alleging that the use of the boarding device manufactured by Lift-A-Loft Corporation (hereinafter Lift-A-Loft) constitutes an undue obstacle to the mobility of persons with disabilities. In view of the potential purchase of the boarding device by Canadian Regional Airlines Ltd. (hereinafter Canadian Regional), the applicant requested a review of the policies and activities regarding the boarding device and Transport Canada's funding program for aircraft boarding devices. He also requested that any funding under the National Strategy for the Integration of Persons with Disabilities for the purchase of this device be stopped pending a review and the publication of the review's findings.
The applicant listed fundamental areas of concern regarding the operational features of the boarding device. The applicant further submitted that, in his opinion, the provision of segregated equipment for the transportation of people with disabilities is not ergonomically or economically correct.
The Agency commenced an inquiry pursuant to subsection 63.3(1) of the National Transportation Act, 1987 (hereinafter the NTA, 1987) by providing the applicant's letter of complaint to Canadian Regional and Canadian Airlines International Ltd. (hereinafter Canadian Airlines International); to Lift-A-Loft, the manufacturer of the boarding device; and to Transport Canada, the administrator of the funding program under the National Strategy for the Integration of Persons with Disabilities, for their comments.
THE APPLICATION
Following a demonstration held on February 24, 1994 at the facilities of Canadian Airlines International in Winnipeg, the applicant filed a letter of complaint with the Agency.
The applicant is of the opinion that the boarding device does not provide a dignified and comfortable means of accessibility. He stated that he would refuse to be boarded by the device and that, in his opinion, the use of this device constitutes an undue obstacle to the mobility of persons with disabilities, both physically and psychologically.
As a result of what he saw at the demonstration, the applicant set out the following as being the areas of most fundamental concern with the boarding device:
- the engine was not covered to protect it from falling objects or to protect anyone from being burnt or caught by the fly-wheel;
- the battery terminals were not covered with insulation caps; the battery isolators were also not covered;
- there existed a possibility of the electrical and hydraulic lines melting due to their close proximity to the exhaust system;
- the fuel tank, although protected at the bottom and sides, was not covered for protection from falling objects. The fuel line was completely exposed and, in case of spilled fuel, such fuel could collect in the holding tray and become a fire hazard;
- the fire extinguisher was inappropriately located;
- although the boarding device was equipped with stabilizers to stop the risk of tipping, the stabilizers were not load bearing;
- there was a question about the plug-in hydraulic system's ability to heat the hydraulic fluid at temperatures below -30 degrees Celsius;
- the operating controls appeared awkward and confusing;
- at the full elevation of 10 feet and 6 inches, the basket was found to be unsteady, which could result in a passenger feeling insecure; and
- when lowering the lift, there was a difference in height from one side to the other. The two hydraulic cylinders were independently powered and there was no proportioning valve to control equal up and down operation.
The applicant also submitted photographs and a video of the noted demonstration.
POSITION OF TRANSPORT CANADA
Transport Canada stated that under the 1991 Enhanced Strategy for the Integration of Persons with Disabilities, it provides financial assistance to air carriers and airports for the purchase of small aircraft boarding devices such as the one cited by the applicant. It emphasized that financial assistance is however provided only when Transport Canada is fully satisfied with the safety of a boarding device and with other considerations of the application.
Transport Canada submitted that Canadian Regional did file an application with the Accessible Transportation Policy and Program's Branch of Transport Canada for financial assistance in the funding of ten Lift-A-Loft boarding devices to be put into service across Canada. At the time of the response, in May 1994, Transport Canada advised that it had suspended consideration of all funding for small aircraft boarding devices pending the results of the development of standards and the assessment of the devices by the Canadian General Standards Board (hereinafter the CGS Board). The standards would be based on the October 1993 Federal Aviation Administration Advisory Circular, 150/5220-21, entitled Guide Specification for Lifts (hereinafter the FAA Advisory Circular), which were reviewed and amended by an industry and consumer panel in June and July 1994.
In light of the concerns raised by the applicant, Transport Canada stated that it was its intention to have the validity of the ten fundamental concerns expressed by the applicant verified through the CGS Board's assessment and, should there be any basis for the allegations made, it would require that they be addressed before any final decision is rendered on Canadian Regional's application for funding.
POSITION OF LIFT-A-LOFT
By letter dated May 31, 1994, Lift-A-Loft responded to the complaint and explained that certain corrective measures were recommended regarding some of the areas of concern identified by the applicant. Such measures included providing an enclosure around the engine and providing battery caps for all units at all stations. With respect to the concern raised by the applicant respecting the independently powered hydraulic lifts and the resulting imbalance in equal up and down operation, it was submitted that this problem had been identified by Lift-A-Loft and Canadian Regional while testing the boarding device in March 1994 and that the problem was being corrected.
In response to other concerns of the applicant, Lift-A-Loft submitted that the location of the electrical and hydraulic lines is in complete compliance with the FAA Advisory Circular; that the fuel tank used on the boarding device is designed for commercial use and is more than sufficient for its intended application; that the fire extinguisher is accessible to the operator of the device and that another extinguisher is available at ground level if necessary; that the stabilizers are designed as load bearing only in the unforeseeable event that the unit is subjected to a wind blast of 90 miles per hour and that testing confirms that these stabilizers will maintain unit stability under such conditions; that the hydraulic heater is designed to maintain adequate operational temperature when subjected to -40 degrees Celsius temperature; that the operation of the boarding device by trained personnel is very simple; and that, at full elevation, the sway demonstrated in the video grossly exceeded the movement of normal operation.
Lift-A-Loft submitted that it has a reputation of providing safe and quality-engineered equipment for use throughout the world and that the opinion expressed by the applicant is contrary to the extensive research undertaken by Lift-A-Loft, as well as to first-hand testimonials from representatives of airports and airlines and from passengers.
POSITION OF CANADIAN AIRLINES INTERNATIONAL/CANADIAN REGIONAL
Canadian Airlines International provided the joint response of Canadian Airlines International and Canadian Regional. Canadian Airlines International submitted that Canadian Regional has been one of two airlines in Canada that has championed the use of mobile boarding devices to enable persons with mobility impairments to board non-bridged aircraft. It rejected the applicant's claim that the use of the boarding device creates an undue obstacle to the mobility of persons with disabilities. Canadian Airlines International stated that the observations of the applicant were based on a test demonstration and training practice of the boarding device prior to it being put into service in Winnipeg, Manitoba.
Canadian Airlines International stated that the purchasing decision was made following a thorough evaluation by a team of people that included engineering, maintenance and customer service experts and that a number of customer, safety and operational criteria were used to evaluate the suitability of the boarding device.
Canadian Airlines International indicated that following the demonstration and assessment of the boarding device, it had started making modifications to the device which would include the installation of a cover on the engine as well as insulation caps on all battery terminals. It also indicated that the fuel tray has holes drilled in it to prevent the collection of fuel in the tray and, as identified by the ground maintenance department, modifications were necessary to the access platform because of problems with the hydraulic system of the lift. Canadian Airlines International advised that Lift-A-Loft was to provide a flow divider to be installed on all devices.
With respect to the other concerns raised by the applicant, Canadian Airlines International stated that the boarding device is in compliance with the requirements of the American FAA Advisory Circular and has qualified for funding in the United States of America. It further submitted that no small aircraft boarding device has been officially approved in Canada; Transport Canada is, however, evaluating the Lift-A-Loft boarding device to determine if it will qualify for federal funding.
REPLY OF THE APPLICANT
The applicant stated that he is a frequent traveller with Canadian Airlines International. In view of the fact that he was planning a trip with that carrier in the near future and having the knowledge that Canadian Airlines International had acquired the boarding device to be put in service at the Winnipeg airport, the applicant stated that he attended the demonstration as he wanted to be informed on the means the carrier would be using to board him. The applicant submitted that, based on what he saw and his strong feeling that the boarding device did not offer a dignified and safe access, he made arrangements to travel by alternative means.
The applicant maintained that the Lift-A-Loft boarding device did not meet several areas of requirements of the FAA Advisory Circular, namely sections dealing with electrical, hydraulic, fuel system, exhaust, running gear, braking, instrument control and equipment stability requirements.
Concerning Transport Canada's initiative to develop a Canadian standard, the applicant stated that, although desirable for the future, his complaint related to the boarding device at the time of the complaint and the fact that the some of these devices were purchased and placed into service with the expectation that they would be certified and would comply with the requirements of the FAA Advisory Circular.
The applicant expressed his disappointment that none of the respondents addressed the issues of dignity, segregation vs. integration, ergonomics, economics and general equality, and that none of them truly understand the ideology of what they are attempting to achieve under Transport Canada's policy on accessible transportation, "Access to All".
Furthermore, in his letter of June 23, 1994, the applicant requested that he be provided with copies of certain documents referred to by the respondents in their replies. These documents were:
- Canadian Airlines International and Canadian Regional's evaluation reports, as well as the customer, safety and operational criteria used in their decision to purchase Lift-A-Loft boarding devices;
- Lift-A-Loft's calculations on the stability of the boarding device and the result of its extensive research on that device; and
- Transport Canada's complete copy of Ekos Research Associates Inc.'s Mid-Term Review Study of the Accessible Transportation Program.
TECHNITROL*ECO INC.'S REPORT/RELATED DOCUMENTS
As part of its review of the matter, the CGS Board, at the request of Transport Canada, did retain the services of Technitrol*Eco Inc. to perform an on-site inspection of the Lift-A-Loft boarding device to verify its compliance with the FAA Advisory Circular from a safety point of view for both the aircraft and the user. Subsequently, the CGS Board did publish a Canadian standard for aircraft boarding devices in April 1995.
Transport Canada provided, under cover letter of February 24, 1995, a copy of the Technitrol*Eco Inc.'s assessment, as well as some related correspondence exchanged between Transport Canada and Lift-A-Loft regarding compliance of the boarding device. In a separate letter dated April 4, 1995, Transport Canada provided the Agency with copies of further exchanges of correspondence relating to actions taken by both Lift-A-Loft and Canadian Regional. Transport Canada, within that letter, advised that any remedial action required as a result of Technitrol*Eco Inc.'s assessment had been completed and that funding applications had been processed and funding actions were completed in March 1995.
CLAIMS FOR CONFIDENTIALITY
Transport Canada requested on behalf of Lift-A-Loft that the Technitrol*Eco Inc.'s report and all related correspondence filed with the Agency be kept confidential.
In a letter dated May 17, 1995, the applicant requested the disclosure of all reports and related correspondence filed with the Agency to allow him to review these documents and comment on them.
Pursuant to subsections 11(2) and 11(13) of the National Transportation Agency General Rules, SOR/88-23 (hereinafter the Agency's General Rules), the Agency, by letter dated June 30, 1995, requested Transport Canada and Lift-A-Loft to file with the Agency the particulars of any assertion of confidentiality in respect of all documents listed.
Lift-A-Loft's claims for confidentiality were based on the confidential nature of the documents and correspondence. Lift-A-Loft advised that allowing the complainant access to certain documents relating to Technitrol*Eco Inc.'s report and to the subsequent response/action of Lift-A-Loft could jeopardize its position within the marketplace.
Transport Canada advised that most of the information contained in the documents does not specifically relate to accessibility issues, but rather deals with technical issues or concerns resulting from the establishment of a standard for an aircraft boarding device. Transport Canada is of the opinion that Technitrol*Eco Inc.'s report is commercially confidential and maintained its objection to disclosing all information contained therein. Transport Canada also advised that, should all documents be released, competitive advantage could be gained through the use of government processes. Transport Canada did submit, however, that since some of the documents were general in nature, it had no difficulty with the release of the September 29 and July 29, 1994 letters of Transport Canada addressed to Lift-A-Loft and the March 21 and 27, 1995 letters of Canadian Regional addressed to Transport Canada. By letter dated December 15, 1995, the applicant was provided with a copy of these letters.
AGENCY ASSESSMENT OF THE CLAIMS FOR CONFIDENTIALITY
The Agency has reviewed the applicant's request that he be provided with all documents for which claims for confidentiality were made for his review and comments.
In its consideration of requests for disclosure of information, the Agency is guided by section 11 of the Agency's General Rules, which outlines the procedures to be followed in such matters.
In this respect, the Agency refers to subsection 11(2) of the Agency's General Rules which states:
Any claim for confidentiality made in respect of a document filed with the Agency or requested by the Agency or by any party to the proceeding to which the document relates shall be accompanied by the reasons for the claim and, where it is asserted that specific direct harm would be likely to result to the party claiming confidentiality if the document were made public, details shall be provided as to the nature and extent of the harm.
Subsection 11(13) of the Agency's General Rules states:
Where the Agency is of the opinion that, based on all the material before it, the specific direct harm likely to result from public disclosure of a document justifies a claim for confidentiality, the Agency may
(a) order that the document not be placed on the public record but be placed in a confidential file;
(b) order that an abridged version or part of the document be placed on the public record; or
(c) order that the document be disclosed at a hearing to be conducted in camera.
The Agency is of the view that the documents for which a claim for confidentiality has been made contain commercially sensitive information, the disclosure of which would cause specific direct harm to Lift-A-Loft, and therefore these documents shall not be placed on the public record.
Furthermore, the Agency is of the view that the applicant has been provided with sufficient information to respond to the positions of Transport Canada and Lift-A-Loft. The information being withheld relates to the technical details of whether the Lift-A-Loft device is in compliance with the FAA Advisory Circular as well as details concerning activities to be undertaken to ensure all facets of the device are brought into compliance. The Agency concludes that the applicant's status as a complainant in the circumstances of this case where the complainant speaks only to the possibility of a future obstacle to himself is not sufficient to require the Agency to provide the complainant the opportunity to comment on the documents being withheld in this case. (see Seafarers International Union of Canada v. Canadian National Railway Company et al [1976] 2 F.C. 369 (C.A.)).
The Agency has considered the applicant's request that Canadian Airlines International and Canadian Regional be requested to provide the evaluation reports and criteria used in their decision to purchase Lift-A-Loft boarding devices, Lift-A-Loft's calculations on the stability of the boarding device and the results of its extensive research on this device and Transport Canada's complete copy of the Ekos Research Associates Inc.'s Mid-Term Review Study of the Accessible Transportation Program. The Agency finds that the production of these documents is not necessary in order to reach a decision in this case and therefore will not require their production.
AGENCY ANALYSIS
The applicant's complaint deals with three distinct areas: the safety of the Lift-A-Loft boarding device, the provision of a dignified and comfortable access and the role of Transport Canada in the funding program for aircraft boarding devices.
Safety
The Agency has reviewed the issues raised by the applicant in his letter of complaint, the additional concerns raised by the applicant in his letter of June 23, 1994 concerning the safety of the Lift-A-Loft boarding device and the Technitrol*Eco Inc.'s report.
According to Technitrol*Eco Inc.'s report, certain aspects of the boarding device were found to be in non-compliance with the requirements of the FAA Advisory Circular and clearly required the taking of corrective measures; these corrective measures were taken. The Agency also notes that certain corrective measures were taken by Canadian Regional and Lift-A-Loft to address some of the issues raised by the applicant.
With respect to the applicant's concern regarding the components of the engine not being protected from environmental damage, the Agency notes that engines on all Canadian Regional's Lift-A-Loft boarding devices are now covered. The Agency also notes that all devices are now provided with battery pole protectors.
The Agency was advised that the location of the electrical and hydraulic lines is in compliance with the requirements of the FAA Advisory Circular and that the wiring is adequately supported, loomed and routed away from the heat sources and fuel lines. The Agency accepts that the Lift-A-Loft boarding device is in compliance in this respect.
The applicant also expressed concerns about the fuel tank. The Agency is satisfied that all Canadian Regional's Lift-A-Loft boarding devices are now provided with placards to identify the type of fuel used and with a new gas cap that is self closing and vented and that the box supporting the fuel tank has holes drilled in the base to prevent an accumulation of spilled fuel. Furthermore, the Agency is satisfied that in addition to the extinguisher located on the main platform, all Canadian Regional's Lift-A-Loft boarding devices are now provided with a fire extinguisher beside the engine.
With respect to the applicant's concern regarding the hydraulic system heater, it was determined that the operating range of the system is -40 to +60 degrees Celsius and that the specification of the operating temperature range is now reflected in the manufacturer's manual. Furthermore, all hydraulic systems are now provided with a magnetic drain plug on the hydraulic tank and a placard stating the total hydraulic tank capacity. The Agency is satisfied that these concerns have been adequately dealt with.
Regarding the awkwardness and the confusion of the operating controls, the Agency was advised that operation by trained personnel is very simple. The controls are grouped and located in a convenient area for the operator, and a lighting device for the control panel is now part of all Canadian Regional's Lift-A-Loft boarding devices. Furthermore, the control panels provide easy access to the controls and instruments and contain all items necessary for the safe operation and control of the equipment. The Agency accepts that the boarding device can be safely and easily operated.
With respect to the difference in height from one side to the other of the boarding device, when raising and lowering the platform, the Agency was advised that the problem has now been corrected with the installation of a flow divider on all devices. The Agency finds that the corrective measure taken addressed the concerns.
On the issue of the stabilizers and the unsteadiness of the basket at full elevation, and the resulting unease which could be experienced by a passenger, the Agency was informed that in order to alleviate this concern, Canadian Regional has adopted an operating practice limiting the elevation to 75 inches from the ground during forecasted wind speeds in excess of 30 miles per hour. This would limit the use of the boarding device to the size of a Fokker 28 or smaller aircraft during such conditions. Although the Agency recognizes that this limitation may be an inconvenience in cases where the boarding device cannot be used, it cannot, however, be a reason for a carrier to refuse transportation.
In response to the applicant's concern regarding the electrical design, the Agency notes that, in accordance with the requirements of the FAA Advisory Circular, all electrical devices are designed to be weatherproof. The Agency is satisfied that the material used for all hydraulic lines and the design of the hydraulic system are in compliance with the requirements of the FAA Advisory Circular. The material for all hydraulic lines is specified; the lines are protected and supported; the hydraulic system is designed to prevent uncontrolled action; and, in the event of an energy failure, the lift platform can be lowered manually.
With respect to the exhaust system design, according to Technitrol*Eco Inc.'s assessment, the system is routed away from the electrical and various fluid system; the location of the piping and components is adequate; and, to prevent exhaust discharge toward the ground, all Canadian Regional's Lift-A-Loft boarding devices are now provided with a bracket installed on the exhaust, in accordance with the requirements of the FAA Advisory Circular. The Agency finds that appropriate corrective measures were taken in this respect.
On the issue of the absence of fenders at all wheels, the Agency has been informed that because of the location of the wheels on the boarding device, the operator of the device and the passenger are well protected against mud and spray. The Agency was advised that the braking system is adequate and that all boarding devices are equipped with spring cylinders which brake automatically when the motion stick is released. The maximum braking distance in feet is much less than the design speed in miles per hour and is, therefore, in compliance with the requirements of the FAA Advisory Circular. The Agency is satisfied that the braking system meets the required standards.
Had these areas been left uncorrected, the Agency may have ordered the taking of necessary corrective measures. However, based on the responses of Lift-A-Loft and Canadian Airlines International, as well as the assertions of Transport Canada that identified areas of concerns have been addressed, the Agency is satisfied that appropriate corrective measures were taken to ensure that the use of the Lift-A-Loft boarding device would not create a hazard. Accordingly, the Agency determines that no further action is required in respect of the applicant's complaint.
A dignified and comfortable accessibility
With respect to the concerns raised by the applicant that the use of the Lift-A-Loft boarding device does not permit a dignified access and that the use of segregated equipment does not meet the policy of integrated transport for all, the Agency recognizes that, while some passengers may feel singled out, the Lift-A-Loft boarding device does provide an easy access to persons with disabilities. In light of the existing technology, the Agency does not consider the use of the Lift-A-Loft boarding device by carriers to be undignified. Therefore, the Agency finds that the use of this equipment does not constitute an undue obstacle to the mobility of persons with disabilities.
The role of Transport Canada
With respect to the applicant's request for review of the policies and activities surrounding Transport Canada's funding program for aircraft boarding devices, the Agency does not consider that the applicant's submissions on this point raise an issue which could lead it to conclude that the use of the Lift-A-Loft boarding device constitutes an undue obstacle to the mobility of persons with disabilities. Therefore, the Agency will not investigate this matter.
CONCLUSION
The Agency is satisfied that the safety concerns raised by the applicant have been addressed and that Lift-A-Loft, Canadian Regional and Transport Canada have taken appropriate measures to ensure that the Lift-A-Loft boarding device is in compliance with the requirements of the FAA Advisory Circular.
In consideration of the corrective measures taken, the Agency determines that the Lift-A-Loft boarding device does not provide an undignified access and that its use does not constitute an undue obstacle to the mobility of persons with disabilities.
The applicant's request that the Agency conduct a public hearing on this matter as well as a review of Transport Canada's funding program for aircraft boarding devices is hereby denied.
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