Decision No. 95-AT-A-2022

July 21, 2022

APPLICATION by Marcia Yale against Air Canada pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA), regarding her disability-related needs and an extension of the One Person, One Fare (1P1F) policy to international flights.

Case number: 
19-50074

SUMMARY

[1] Marcia Yale filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding the lack of a One Person, One Fare (1P1F) policy for international flights to provide an extra seat free of charge to provide additional floor space for her service dog, and the carrier’s alleged failure to advise her in advance that she would be accommodated.

[2] On February 21, 2020, the Agency issued Decision LET-AT-A-11-2020 in which it stayed the dispute proceeding until such time as the second phase of the Accessible Transportation for Persons with Disabilities Regulations (ATPDR)Note 1 was finalized. As the second phase of the ATPDR has now been finalized, the Agency hereby lifts the stay.

[3] For the reasons set out below, the Agency declines to determine the application, pursuant to section 37 of the CTA. As such, the Agency is not issuing a decision on the merits of the application and closes the file.

BACKGROUND

[4] In June 2019, Mrs. Yale, who is blind and travels with a guide dog, booked a round-trip with Air Canada to travel from Toronto, Ontario, to Portland, United States, via Vancouver, British Columbia, on October 17, 2019, and returning on October 21, 2019. Mrs. Yale indicates that she requested an extra seat free of charge to provide additional floor space for her guide dog, but was informed by Air Canada that there is no requirement to provide such accommodation on international flights.

[5] Mrs. Yale states that the day prior to her departure, she was informed by Air Canada that an extra seat to accommodate her guide dog would be available. Mrs. Yale submits that being advised only one day prior to travel that she would be accommodated constitutes a barrier, as she was uncertain that her guide dog would have sufficient space to travel comfortably.

PRELIMINARY MATTER

[6] Mrs. Yale is concerned that Air Canada could deny her request for an extra seat free of charge for her guide dog for the Toronto to Vancouver segment of her itinerary only because her connecting flight was international.

[7] While the CTA does not define international carriage, the Carriage by Air Act (Act),Note 2 in addressing matters related to passenger claims for death, injury and damage to property, incorporates the Montreal ConventionNote 3 definition of “international carriage”, which is any carriage where the place of departure and the place of destination, whether or not there is a break in the carriage, are situated either within the territories of two different countries or within the territory of a single country if there is an agreed stopping place within the territory of another country. Pursuant to this definition, all flight segments of an international passenger itinerary constitute international carriage, even those flights operated within one country, which would otherwise be considered domestic carriage.

[8] Air Canada’s TariffNote 4 incorporates by reference the Montreal Convention in Rule 5(A)(2) and refers specifically to its “international carriage” definition in Rule 1. This definition of international carriage is applied consistently across the aviation industry. The relevant provisions of the Montreal Convention and the Tariff are set out in the Appendix

[9] In light of the above, the Agency determines that the Toronto to Vancouver segment of Mrs. Yale’s itinerary is part of an itinerary of international carriage as the final destination was another country, the United States.

THE LAW

[10] Subsection 51(1) of the ATPDR provides:

A carrier must, on the request of a person with a disability who needs to travel with a service dog, accept the service dog for transport and permit the animal to accompany the person on board, subject to subsection (2).

[11] Subsection 51(4) of the ATPDR provides:

If, because of the size of the service dog, the passenger seat of the person with a disability does not provide sufficient floor space for the service dog to lie down at the person’s feet in a manner that ensures the safety and well-being of the dog and the person, the carrier must provide to the person any passenger seat adjacent to their passenger seat that is needed to provide sufficient floor space for the service dog.

[12] Section 31 of the ATPDR provides:

(1) Subject to subsection (2), it is prohibited for a carrier to impose a fare or any other charge for any service that the carrier is required by this Part to provide to any person.

(2) The prohibition in subsection (1) does not apply to a carrier in respect of any service that the carrier is required to provide under section 50, 51 or 52 if that service is provided by the carrier for the purpose of a transportation service between Canada and a foreign country.

[13] Section 37 of the CTA provides:                      

The Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.

[14] The Supreme Court of Canada confirmed in Delta Air Lines Inc. v Lukács, 2018 SCC 2, that section 37 provides the Agency with the discretion to decide whether to hear a complaint. The Court held that the Agency, in declining to hear an application, may consider whether the claim is in good faith, timely, vexatious or duplicative, whether it raises a serious issue to be tried and whether the complaint is based on sufficient evidence. The Court also determined that the Agency could consider whether the claim is in line with the Agency’s workload and prioritization of cases.

CONSIDERATIONS

Positions of the parties

MRS. YALE

[15] Mrs. Yale indicates that for previous flights, Air Canada agreed that her guide dog required the floor space of an extra seat to travel safely and comfortably, and it provided the extra seat free of charge when she travelled within Canada. Mrs. Yale was informed by Air Canada’s Medical Desk that this does not apply to international flights.

[16] Mrs. Yale argues that her needs, and those of her dog for additional floor space, do not change whether she travels within Canada or internationally, and she requests that she be provided with an extra seat free of charge when travelling internationally.

[17] While Air Canada ultimately provided an extra seat free of charge for her travel from Toronto to Portland via Vancouver, Mrs. Yale submits that being advised only one day prior to travel that she will be accommodated constitutes a barrier. Mrs. Yale explains that for four months she was stressed because she did not know if her guide dog would have enough space to lie down comfortably during the flights.

AIR CANADA

[18] Air Canada states that additional floor space for guide dogs is only provided at no extra charge on domestic itineraries. However, Air Canada indicates that it was able to accommodate Mrs. Yale on her international flight “as a matter of customer service”. Air Canada therefore submits that the complaint should be dismissed as Mrs. Yale was able to travel and did not encounter a barrier.

[19] Air Canada states that application of the 1P1F policy to international flights is a controversial and complex issue, which is why it is limited to domestic travel in the ATPDR. Further, Air Canada refers to Decision 327-AT-A-2008 (East v Air Canada and Jazz Air LP) and Decision 324-AT-A-2015 (Cheung v WestJet) in which the Agency limited the carriers’ obligation to provide additional space for service animals at no additional cost to domestic flights.

[20] Air Canada submits that a matter of this magnitude cannot be addressed through an individual complaint brought against an individual carrier, as this would render the regulatory process meaningless.

ANALYSIS

[21] The 1P1F policy has evolved in Canada over time, including its expansion to most domestic flights in Canada in 2008 by means of Decision 6-AT-A-2008 (Estate of Eric Norman, Joanne Neubauer and the Council of Canadians with Disabilities against Air Canada, Air Canada Jazz, WestJet, the Gander International Airport Authority and the Air Transport Association of Canada).This decision was the result of a complex and costly proceeding involving broad participation from stakeholders, including the Council of Canadians with Disabilities, three Canadian air carriers (carrying over 90% of domestic passengers) and a Canadian airport authority.

[22] Although the Agency has been asked in past accessibility applications to extend 1P1F to international flights by ordering it as a corrective measure, the Agency has found that to do so in the context of an individual application would not be appropriate. In Cheung v WestJet, the Agency noted the unique factors that arise in the international context and commented that the extension of the principle of 1P1F beyond Canada’s borders would constitute a systemic solution with broad implications that could not be considered in isolation.

[23] In 2016, the Agency launched its Regulatory Modernization Initiative (RMI) to seek the input of stakeholders, experts and Canadians in general on updating and improving the regulations it administers to ensure that they keep pace with changes in business models, user expectations and best practices in the regulatory field. Given that 1P1F was to be considered as part of the RMI, the Agency stayed the three accessibility-related applications in which 1P1F international was requested as a corrective measure. At the end of the first phase of regulatory development for accessibility the ATPDR were enacted, introducing a requirement that all Canadian carriers offer 1P1F for domestic flights (or carriage). The Agency indicated that it would address 1P1F international in the second phase. The Agency then consulted on the application of the 1P1F policy to international flights.

[24] During the second phase of consultations, the position advanced by domestic and foreign carriers was that 1P1F for international carriage would constitute interference with pricing. Pricing is a key element in bilateral air transport agreements between countries, which are bound by the provisions of these agreements. These bilateral agreements are the foundation for the operation of international air transport.

[25] As a result, the Agency’s consideration of a 1P1F international policy must take into account constraints established in the numerous bilateral air transportation agreements to which Canada is a party. Under these international treaties, which contain detailed obligations that Canada and its trading partners must adhere to with respect to commercial air transportation, foreign carriers often have an ability to oppose policies that do not leave pricing to market forces. In addition, and perhaps most importantly, if Canada imposes a tariff requirement with which a foreign government does not agree, that foreign government has the ability to reject or disallow the provision.

[26] There is no international consensus among governments on 1P1F for international carriage at this time. Only a few jurisdictions (including the United States, Europe and the United Kingdom) require air carriers to provide additional adjacent seating as an accommodation for certain disability-related needs or to make best efforts to do so, but none prohibit charging for this service.

[27] Should the Agency conclude that 1P1F for international carriage should be imposed, conflicting views internationally would very likely lead to the dispute resolution or disallowance provisions of air transport agreements being triggered by other states. Disjointed international standards would introduce a greater level of uncertainty for passengers with disabilities, particularly in the case of codeshare flights or where a government or governments reject or disallow these provisions. Moreover, such disjointed international standards would put Canadian carriers at a competitive disadvantage vis-à-vis foreign carriers, as the cost of applying 1P1F to accommodate persons with disabilities would be borne by Canadian carriers and would not be borne by their direct competitors. In light of the objectives of the National Transportation Policy found in section 5 of the CTA, which include the competitiveness of Canada’s national transportation system, the Agency is not willing to impose such an obligation on Canadian carriers unless and until international carriers are bound by the same obligation, as this particular type of competitive disadvantage would constitute undue hardship on Canadian carriers.

[28] It should be noted that although the Agency now has own-motion powers to initiate the type of broad inquiry that was referred to in Cheung v WestJet, these powers will not enable the Agency to overcome the challenges that exist based on the international scope of the requested remedy described above.

[29] Accordingly, in order for Canada to respect the commitments it has made to other states, the Agency finds that the application of 1P1F to international carriage is best addressed through ongoing efforts to achieve international cooperation and coordination among governments. The Agency will continue its efforts to highlight the importance of a unified 1P1F international carriage policy as part of its participation in transportation forums, including the International Civil Aviation Organization, and to proactively influence the international civil aviation environment with the objective of ensuring that it becomes more responsive to the needs of persons with disabilities.

CONCLUSION

[30] Noting that 1P1F applied to international carriage is the only corrective measure requested in this application, the Agency exercises its discretion under section 37 of the CTA and declines to determine the application.
 


APPENDIX TO DECISION NO. 95-AT-A-2022

Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention

Article 1(2) provides:

For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.

International Passenger Rules and Fares Tariff AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) 458

Rule 1 defines International Carriage:

International carriage means (except when the Convention is applicable) carriage in which, according to the contract of carriage, the place of departure and any place of landing are situated in more than one state. As used in this definition, the term “state” includes all territory subject to the sovereignty, suzerainty, mandate, authority or trusteeship thereof. International carriage as defined by the Convention means any carriage in which, according to the contract of carriage, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two High Contracting Parties to the Convention or within the territory of a single High Contracting Party to the convention, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power even though that power is not a party to the Convention.

Rule 5(A)(2) provides:         

International transportation shall be subject to the rules relating to liability established by, and to all other provisions of the Convention for the Unification of Certain Rules Relating to International Transportation by Air, signed at Warsaw, October 12, 1929, or the Convention for the Unification of Certain Rules International Carriage by Air (Montreal Convention of 1999) or such convention as amended, whichever may be applicable to the transportation hereunder. Any provision of these rules which is inconsistent with any provision of said Convention shall, to that extent, but only to that extent, be inapplicable to international transportation.

 

 

Member(s)

France Pégeot
Elizabeth C. Barker
Mark MacKeigan
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