Letter Decision No. LET-AT-A-343-2004

As you are aware, the Canadian Transportation Agency (Agency) is a quasi-judicial tribunal mandated under the Canada Transportation Act (CTA) to regulate the federal transportation network. As part of this mandate, the Agency is responsible for ensuring that undue obstacles to the mobility of persons with disabilities are removed from federal transportation services and facilities by, inter alia, adjudicating individual applications on a case-by-case basis.

Pursuant to section 172 of the CTA, on application, the Agency may inquire into matters relating to the transportation network under the legislative authority of Parliament, to determine whether there is an undue obstacle to the mobility of persons with disabilities. Should the Agency find that an undue obstacle exists, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expenses incurred by a person with a disability arising out of the undue obstacle, or both.

In this context, the Agency notes that Mr. Giles, who relies on a continuous flow of supplementary oxygen from medical equipment at a rate of flow of 4 litres per minute, filed the attached complaint form with the Air Travel Complaints Commissioner (ATCC) on June 21, 2004. The ATCC transferred the file to the Agency for possible action under its mandate on June 29, 2004, and Mr. Giles then filed further information with the Agency on August 2 and September 15, 2004.

The Agency notes that Mr. Giles' submissions identify various issues concerning oxygen-related services that he received on or about April 1, 2004, during the return portion of a trip that he had purchased from British Airways Plc doing business as British Airways (British Airways). Mr. Giles also submits to have made all necessary arrangements prior to his departure from Toronto for oxygen services onboard all flights, at the various airports and as required between connecting flights. By its letter to Mr. Giles dated December 31, 2003, British Airways confirmed that some of these services would be provided. The Agency notes that, as a result of a cancellation of Mr. Giles' scheduled British Airways flight from Malaga, Spain to London, England, British Airways provided Mr. Giles with alternate transportation in the form of a flight provided by Iberia, Lineas Aéreas de España, SA (Iberia) (number IB3302) for service between Malaga and Madrid and a subsequent flight by British Airways (number BA457) for service between Madrid and London. Further, Mr. Giles submits that British Airways assumed responsibility for making the necessary arrangements for all additional oxygen-related services required as a result of the alternative air services.

The Agency recognizes the difficulties that Mr. Giles raises in his submissions regarding the oxygen-related services that he received in relation to Iberia flight number IB3302 and British Airways flight number BA457. Further, the Agency notes that Mr. Giles submits to be faced with a situation in which Air Liquide, the Spanish oxygen service provider that owns the portable oxygen tank that Mr. Giles claims was lost during transportation, has confirmed that it will not service his oxygen supply needs during any future travels to Spain, unless its portable oxygen tank is either returned or it receives CDN $1000 in lieu thereof. Mr. Giles therefore maintains that, although he adhered to all of British Airways' requirements regarding oxygen-related services during his return trip from Malaga to Toronto, he is, nonetheless, being held responsible for the loss of the Air Liquide tank, which resulted due to circumstances beyond his control.

The Agency has carefully considered Mr. Giles' submissions and is of the opinion that the circumstances surrounding the issues identified by Mr. Giles concerning the particular oxygen-related services that he received in relation to flight numbers IB3302 and BA457, including any such matter that arose at the relevant airports or in relation to ground services at such locations, do not establish a sufficient basis for the Agency to inquire into these matters. The Agency notes that, in the context of the current file, the federal transportation network is limited to the round trip service between Toronto and London and does not extend to the separate round trip service between London and Malaga. Further, the Agency notes that Mr. Giles' submissions suggest that these particular oxygen-related matters, including the loss of the portable oxygen tank, involved foreign carriers, took place outside of Canada and do not specifically relate to the international air service that is within the federal transportation network. As such, these matters are not within the Agency's jurisdiction to consider pursuant to section 172 of the CTA.

Accordingly, the Agency finds that it does not have jurisdiction over the particular oxygen-related matters that arose in relation to flight numbers IB3302 and BA457. The Agency must therefore limit its inquiry in this file to the other issue raised by Mr. Giles, which involves the necessary access at Lester B. Pearson International Airport (the Toronto airport) being allegedly denied to a representative of ProResp, a portable oxygen service provider, who was to provide pre-arranged portable oxygen services for Mr. Giles upon his arrival on flight number BA99. This matter will be specifically addressed under cover of a separate decision.

Although the Agency does not have jurisdiction to consider all matters raised by Mr. Giles as described above, the Agency notes that parties may nonetheless wish to consider utilizing the mediation services offered by the Agency as a mechanism to resolve anymatter raised by Mr. Giles. The mediation dispute resolution approach is voluntary and is available to the relevant parties as long as they agree to participate. The mediation process, including all exchanges of information and details of any settlement agreement, is confidential.

For matters that fall within the jurisdiction of the Agency, parties to an application may at any stage of the Agency's formal application process, upon mutual consent, agree to use the Agency's mediation process as an alternative to the Agency's formal complaint adjudication process. In addition, parties to a dispute may, in certain circumstances, also agree to rely on the mediation services offered by the Agency to attempt to resolve an issue that is not specifically within the Agency's jurisdiction to consider. Under either alternative, parties to a mediation are free to accept any mutually agreed upon settlement, including one that would not be within the power of the Agency to grant, as the mediation process is not subject to the restrictions that are inherent to the Agency's formal complaint resolution process. Indeed, the mediation process is a confidential process which offers an alternate dispute resolution mechanism that allows the parties to try and arrive at a mutually satisfactory settlement of a dispute.

For matters within the Agency's jurisdiction that the parties have agreed to attempt to resolve through the mediation process, while the negotiation process is taking place, the Agency's formal complaint process, as provided for by the CTA, is put on hold. If the mediation process does not result in a resolution that is satisfactory to both parties, the Agency will, as necessary, proceed with the formal complaint process, make a determination and issue a binding decision. In contrast, for matters that are not within the Agency's jurisdiction to consider, if the parties to the dispute cannot reach a mutually satisfactory settlement through the mediation process offered by the Agency, the matter cannot be referred back to the Agency for consideration in accordance with the formal complaint adjudication process provided for by the CTA. In such a situation, the Agency has no authority to consider the matter pursuant to section 172 of the CTA.

Attached for your reference is a brochure providing additional information about the Agency's mediation service. Should the parties (Peter Giles, British Airways and Iberia) be willing to attempt to resolve any matter raised in Mr. Giles' submissions through mediation at this time, they are asked to advise the Agency at their earliest convenience.

In the meantime, the Agency will proceed with its formal complaint process regarding the denial of access at the Toronto airport. Should further information be required by the Agency to pursue its investigation into this particular matter, the parties to the file (Peter Giles and British Airways) will be so advised.