Letter Decision No. LET-AT-A-49-2023

Summary

[1] Alexandre Dumas filed an application with the Canadian Transportation Agency (Agency) regarding Sky Jet’s refusal to transport him.

[2] Mr. Dumas seeks compensation for damages in the amount of CAD 150,000.

[3] In this decision, the Agency will address the following issues:

1. Is Mr. Dumas a person with a disability?
2. Did Mr. Dumas face a barrier?
3. Are the accessibility regulations under the Canada Transportation Act (CTA) applicable to this case?

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

1. Mr. Dumas is a person with a disability;
2. Mr. Dumas faced barriers to his mobility when Sky Jet cancelled his reservation the day prior to his departure and when he was unable to take the flight scheduled for October 24, 2022, or any flight since then;
3. No accessibility regulations established under the CTA are applicable to this incident. The Agency therefore has the power to order any of the measures listed in the CTA if it finds that there is an undue barrier under Part 2 of the two-part approach mentioned below.

Background

[5] Mr. Dumas has multiple sclerosis, uses a wheelchair and cannot use his lower limbs. On September 28, 2022, the Côte-Nord CISSS (integrated health and social services centre) booked a round-trip flight for Mr. Dumas with Sky Jet to travel from Chevery, Quebec, to Sept-Îles, Quebec, departing on October 24, 2022. The day prior to departure, Sky Jet informed Mr. Dumas that he would not be able to travel because it no longer allowed wheelchairs on board. Although Sky Jet accommodates passengers with reduced mobility who use mobility aids, the model of the aircraft (BE1900) that Mr. Dumas was to board was not designed to allow boarding with a custom boarding wheelchair in which he would be seated. The aircraft door turns into a staircase once opened and can support a maximum load of 400 pounds. The maximum load would be exceeded if three people were on the staircase at the same time: Mr. Dumas and the two people required to handle the custom boarding wheelchair in which he would be seated. Mr. Dumas missed his two medical appointments scheduled on October 24, 2022, and has been unable to travel with Sky Jet since that date.

The law

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

[7] 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.

[8] Where the Agency finds that an undue barrier exists, it has the authority to direct a carrier to take corrective measures and, where applicable, pay compensation to cover the expenses incurred and wages lost by a person with a disability as a result of the undue barrier. The Agency also has the authority to order the respondent to pay compensation for pain and suffering experienced by the person with a disability arising out of the undue barrier, and compensation if the undue barrier is the result of a wilful or reckless practice, up to a maximum of CAD 20,000 each (subject to annual adjustments).

[9] However, the CTA limits the scope of these powers if the Agency is satisfied that applicable accessibility provisions under the CTA have been complied with or have not been contravened by the carrier.

[10] In this decision, the Agency will consider Part 1 of the above approach and determine whether any accessibility provisions under the CTA are applicable in this case in order to determine what remedy is available to Mr. Dumas.

1. Is Mr. Dumas a person with a disability?

[11] Mr. Dumas has filed a medical information form. In the form, the physician indicates that Mr. Dumas has multiple sclerosis with loco-regional spasticity. The physician indicates, among other things, that Mr. Dumas cannot use his lower limbs and experiences muscle fatigue, loss of sensitivity and reduced hand dexterity. The physician states that the symptoms are moderate to severe, and include permanent impairment and gradual deterioration. The physician states that Mr. Dumas receives many treatments that cannot be administered at home and that require the presence of health professionals. The physician states that Mr. Dumas must have access to adequate adapted transportation services in order to receive the care he requires.

[12] Sky Jet acknowledges that Mr. Dumas uses a wheelchair and that he cannot use his lower limbs.

[13] In light of the above, the Agency finds that Mr. Dumas is a person with a disability.

2. Did Mr. Dumas face a barrier?

Position of the parties

Mr. Dumas

[14] Mr. Dumas states that he has been using his wheelchair for air travel since 2009 to attend medical appointments and visit his family. He indicates that the day prior to his flight scheduled on October 24, 2022, Sky Jet cancelled his reservation, as it was unable to transport him on board the aircraft. He is of the opinion that the Chevery airport is understaffed with no one to handle the aisle chair (Washington chair), but did not give further details.

[15] Mr. Dumas wishes to continue to travel by air as he did in the past. He states that he has not been able to attend his brother’s funeral, visit his family or attend his medical appointments since October 24, 2022.

Sky Jet

[16] Sky Jet states that it refused to transport Mr. Dumas for safety reasons, and that the aircraft used for the Chevery—Sept-Îles route are not designed to carry passengers who use certain types of mobility aids. More specifically, Sky Jet explains that the size of the aircraft ramps and entrance doors do not allow for the safe boarding and handling of certain types of wheelchairs. Sky Jet indicates that handling wheelchairs increases the risk of injury and falls.

[17] Sky Jet explains that the aircraft that Mr. Dumas was to board contained 18 seats on both sides of a centre aisle of approximately 18 inches wide. The aircraft door opens from top to bottom and serves as a staircase when opened.

[18] Sky Jet asserts that the size of Mr. Dumas’ wheelchair would not allow for the use of the aircraft ramp. Mr. Dumas would have to be transferred to a modified wheelchair and then carried by two people to enter the aircraft via the staircase. However, the staircase can support a maximum weight of 400 pounds, which would be exceeded during this operation. Sky Jet indicates that after Mr. Dumas’ transfer to a seat on the aircraft, the modified wheelchair would be removed from the aircraft and stored in the terminal, and Mr. Dumas’ wheelchair would be placed in the baggage compartment.

[19] In addition, Sky Jet asserts that it would be impossible to carry out an emergency evacuation at the end of the runway before takeoff in a timely manner, as Mr. Dumas must be seated in a wheelchair and assisted by a minimum of two people to exit the aircraft. Sky Jet explains that crew members would have to carry Mr. Dumas down the aircraft steps, and that this would considerably limit the time crew members have to assist other passengers on the flight and evacuate them.

Analysis and determination

[20] Although Sky Jet raises safety issues to justify its decision to not transport Mr. Dumas, these constraints will be considered in Part 2 of the Agency’s approach to accessibility issues. In this decision, the Agency must determine whether Mr. Dumas is a person with a disability and whether he faced a barrier.

[21] The Côte-Nord CISSS booked a flight with Sky Jet for Mr. Dumas nearly a month before his scheduled departure date. The day prior to his departure, Sky Jet informed Mr. Dumas that his reservation had been cancelled and that he would not be able to take the flight. Although the Côte-Nord CISSS had booked the flight with Sky Jet well in advance, Sky Jet informed Mr. Dumas of the cancelled reservation merely hours prior to his departure. Consequently, the Agency finds that Mr. Dumas faced a barrier when Sky Jet cancelled his reservation the day prior to his departure, even though it had been made a month earlier.

[22] Furthermore, Mr. Dumas missed his medical appointments on October 24, 2022, and has been unable to travel with Sky Jet since that date. Accordingly, the Agency finds that Mr. Dumas faced a barrier when he was unable to take the flight on October 24, 2022, or any flight since then.

3. Are the accessibility regulations under the CTA applicable to this case?

[23] Sky Jet indicates that it carried 33,353 passengers in 2021 and 44,722 passengers in 2022. Accordingly, Sky Jet states that it is not subject to the Accessible Transportation for Persons with Disabilities Regulations (ATPDR). To be subject to the ATPDR, Sky Jet would have to be a large carrier under the law, meaning that it would have to have carried one million passengers or more in each of the last two years. However, Sky Jet maintains that it is subject to the Air Transportation Regulations (ATR).

[24] The Agency recognizes that Sky Jet is not subject to the ATPDR, because it is a small carrier. However, although Sky Jet acknowledges that it is subject to the ATR, these regulations apply only to the transportation of people aboard aircraft with 30 or more passenger seats. The flight that Mr. Dumas was scheduled to take had fewer than 30 passenger seats.

[25] It has to be said, however, that while Sky Jet is subject to the Personnel Training for the Assistance of Persons with Disabilities Regulations, these regulations do not specifically address the barriers found in this case.

[26] Although Sky Jet has not contravened the applicable accessibility provisions under the CTA, the Agency may still order measures listed in the CTA if a barrier is found to be undue, namely corrective measures, as well as compensation for expenses, lost wages, and pain and suffering incurred as a result of the undue barrier, and compensation if the undue barrier is the result of a wilful or reckless practice.

Next steps

Instructions for providing information

[27] The Agency finds that Mr. Dumas is a person with a disability who faced barriers to his mobility when Sky Jet cancelled his reservation the day prior to his departure and when he was unable to take the flight on October 24, 2022, or any flight since then.

Requested compensation

[28] Mr. Dumas seeks compensation for damages in the amount of CAD 150,000. To support his claim, taking into account the maximum allowed under the CTA (CAD 20,536.81), Mr. Dumas has until 5 pm, Gatineau time, on January 5, 2024, to provide the Agency with the following information and copy Sky Jet:

1) the reason(s) why the Agency should order compensation to be paid for pain and suffering that he experienced;

2) any medical evidence in support of the request for compensation for pain and suffering;

3) if applicable, proof of costs incurred as a result of the barrier, including costs that he incurred for obtaining alternative goods, services or
    accommodation;

4) if applicable, proof of lost wages arising from the barrier;

5) if applicable, the reason(s) why the Agency should find that the barrier was the result of a wilful or reckless practice.

Part 2: Corrective measures or undue hardship

[29] In its answer, Sky Jet must either:

• explain, taking into account any proposals from the applicant, if applicable, 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.

[30] Sky Jet must also provide the following information:

• changes that have made it impossible for Mr. Dumas to travel with Sky Jet since October 24, 2022;
• the number of aircraft in Sky Jet’s fleet that can accommodate Mr. Dumas, including the availability of medevac aircraft services;
• the reasons why one of these aircraft was not used to transport Mr. Dumas on October 24, 2022, or since then;
• the availability of equipment such as lifts, ramps or portable stairs at Chevery and Sept-Îles, and the reasons why this type of equipment was not used;
• the procedure for booking flights between the Côte-Nord CISSS and Sky Jet as of October 23, 2022, and the current procedure, and more specifically:

• the information required to determine and assess passengers' accessibility needs when reservations are made;

• the time frame for Sky Jet to advise passengers of its ability to meet their accessibility needs;

• a copy of any contract, agreement or procedure between the Côte-Nord CISSS and Sky Jet for the transportation of people aboard aircraft specially equipped to meet their needs, such as medevac aircraft, including the transportation of Mr. Dumas, and in particular the contract in effect on September 28, 2022.

 

[31] Sky Jet has ten business days from the date it receives Mr. Dumas’ answer to file with the Agency its answer to Mr. Dumas’ claim, its answer to Part 2 and the information requested above, and to provide a copy to Mr. Dumas. Mr. Dumas will then have five business days to file his reply with the Agency and provide Sky Jet with a copy.

[32] The request for compensation and Sky Jet’s answer will be taken into consideration, after pleadings on Part 2 have closed, only if the Agency finds that one of the barriers or the barriers faced by Mr. Dumas are undue.

[33] All correspondence and pleadings should refer to Case 23-41599 and be filed through the Agency’s Secretariat email address at secretariat@otc-cta.gc.ca.

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Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	172(1); 172(2); 169.5; 172(3)
Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244	25(2)
Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42	All
Air Transportation Regulations, SOR/88-58	146(1)