Compliance and Enforcement: TRAN – February 27, 2024

2022 ATPDR Compliance Strategy

• In 2022, the Enforcement team completed a comprehensive verification initiative (referred to as the ATPDR Compliance Strategy) involving 41 transportation service providers (TSPs) in the air, rail, marine and interprovincial bus modes with the highest passenger volumes, to evaluate their compliance with more than 120 ATPDR provisions across the four obligation areas: training, services, communication and technical.
• Many of the TSPs were found to have deficiencies in their programs. The Agency worked with those entities to develop corrective action plans to identify how the identified deficiencies were to be addressed, and by when.
• All transportation service providers have since been brought into full compliance with the identified deficiencies.
• As a result of this comprehensive initiative we identified that:
  • The most prevalent deficiencies were related to the ATPDR training requirements, including:
    • The overall quality of the training programs, e.g. keeping the training current when changes are made to operations and policies;
    • The content of the training programs, e.g. around the role of a 'support person', training related to the handling of mobility aids, and how to provide physical assistance.
  • We also observed issues related to communications requirements, including the requirement for TSPs to publish prescribed information on their websites about how people can access their services. Additionally, we identified issues with public announcements not being provided in both an audio and visual format at the gate or boarding areas as required.
  • Other issues were observed with certain technical requirements related to designated relief areas for service dogs – specifically around signage not being tactile and in Braille, and a lack of signage providing directions to the area.
• In response to these observations, we completed a three-part compliance promotion initiative to provide guidance and compliance self-assessment tools to assist TSPs in understanding and assessing their compliance with the regulations. Compliance promotion material regarding the identified obligation areas was sent to TSPs as follows: Training in March, Communications and Services in September, and the Technical obligations in December, 2023.

Post pandemic onsite inspections

• As travel has resumed following the pandemic, the Enforcement team conducted onsite inspections to ensure compliance with accessibility requirements at:
  • 2 cruise ship ports (in Vancouver and Victoria)
  • 17 airports (including those in provincial capitals and other large Canadian centres; these recent inspections identified issues with respect to service dog relief areas and self-service kiosks)
  • 2 air carrier inspections (Air Canada and WestJet)
  • Monitoring at terminals (various foreign and domestic carriers, including: Air Emirates, Air Etihad, British Airways, Air Canada and Air Transat)
• Additionally, the Enforcement team is following up to ensure that CBSA and CATSA consistently display accessible signage at airport locations across Canada.
• The Agency has initiated inspections of Air Canada and WestJet to verify the ATPDR technical provisions in respect of lifts and ramps to facilitate PWD boarding (Sections 69 and 70), as well as onboard storage, onboard wheelchairs, mandatory onboard wheelchairs, and accessible onboard entertainment devices (Sections 41, 72, 73 and 81).
• In December 2023 the Agency requested that Air Canada and WestJet provide data related to the all of the Accessibility-related complaints that they have received from their passengers between June 2020 and December 31, 2023. This information will be used to inform future compliance monitoring activities.
• The information was requested to be provided by January 31, 2024. Air Canada and WestJet are currently working with the Agency regarding provision of the requested information.

OAG collaborative oversight program update

• In response to the Office of the Auditor General's (OAG) recommendations, the CTA is taking decisive steps to enhance its capacity to identify accessibility barriers and enforce their removal by implementing additional oversight approaches.
• We have recently launched our collaborative oversight pilot project, which involves shadowing persons with disabilities during their travel to gain a deeper understanding of their unique challenges.
• The pilot project is focused on travelers who rely on mobility aids when they travel by air.
• During our first two shadowing exercises, our Designated Enforcement Officers have made the following key observations:
  • frequent travelers are better able to ensure they obtain the services they need, as a result of the knowledge they've gained through their previous travel experiences;
  • there is a significant lack of consistency between employees when providing services to persons with disabilities;
  • it is imperative that employees apply the training they have been provided correctly and consistently;
  • employees must listen to persons with disabilities when assisting them to avoid injuries; and
  • training regarding transfer techniques must be strengthened by including simulation training as if it was a person with disability.
• Following the pilot exercise, the Agency will evaluate what we have learned to develop an ongoing Collaborative Oversight Program for Accessibility and plan future activities that will be inclusive of all transportation modes and disabilities.

Web Content Accessibility Guidelines Update

• The Agency engaged an expert in Web Content Accessibility Guidelines (WCAG) who reviewed the websites of the TSPs that were subject to the 2021-22 ATPDR Compliance Strategy, to ensure that they are compliant with the requirements of the regulations.
• DEOs have reviewed the results of the expert's reports. They  have reached out to 13 TSPs to discuss the results, and are currently working with TSPs to bring them into compliance. Since the beginning of January 2024 DEOs have issued 8 CNs related to this initiative.

Key Messages:

• On July 1, 2022 the Agency introduced its updated Compliance and Enforcement Policy reflecting our evolution to a new results-based and risk-informed approach to compliance assurance. The updated Policy is outcome focused and supports the Agency’s three core mandates.
• The Policy sets out how the Agency targets its compliance monitoring and enforcement resources to maximize proactive compliance by regulated entities with the legal obligations the Agency oversees.

Background:

• On July 1, 2022 the Agency introduced its updated Compliance and Enforcement Policy reflecting our evolution to a new results-based and risk-informed approach to compliance assurance.
• The Policy sets out how the Agency targets its compliance monitoring and enforcement resources to maximize proactive compliance by regulated entities with the legal obligations the Agency oversees.
• The Policy is outcome focused and supports the Agency’s three core mandates. of providing consumer protection for air passengers and ensuring a national transportation system that is accessible and runs efficiently and smoothly.
• The Policy speaks to four guiding principles:
  • Results-based enforcement: In securing compliance, the measures applied are intended to advance the outcomes pursued by the Agency.
  • Data-driven, risk-informed decision making: the Agency’s work is informed by data to identify potential non-compliances and optimize resource allocation;
  • Fair, objective and consistent processes: Rules and processes for inspections, investigations and enforcement, are clear and applied consistently and objectively; and
  • Transparency: the Agency publishes the results of its formal enforcement actions on its website.
• Recognizing that public interest objectives are best served when regulated entities undertake and comply with applicable standards and legal obligations voluntarily, the Agency resolves non-compliance by applying a graduated approach to enforcement, using informal and formal enforcement measures.
• Guided by the Policy, the Agency employs a number of different tools and activities to foster compliance and address instances of non-compliance such as: compliance promotion, verification, enforcement (cautionary notices and administrative monetary penalties) and follow-up.

Enforcement actions

A Designated Enforcement Officer's (DEO) response to non-compliance escalates in severity depending upon the nature of the violation and the compliance history of the regulated entity. When a DEO believes that a regulated entity has committed a violation of the Canada Transportation Act (Act) or regulations, or when a regulated entity has not complied with a CTA Order, the following enforcement actions are available:

Issuing a Notice of Violation Setting an Administrative Monetary Penalty

A DEO may issue a Notice of Violation (NOV) setting out the administrative monetary penalty (AMP) that the regulated entity is liable to pay. AMPs are administered based on a progressive scheme of penalties aimed at fostering compliance.

Issuing a Notice of Violation that Contains a Warning for Contraventions of Accessibility Provisions

A DEO who believes that a regulated entity has committed a violation of an obligation made for the purpose of identifying or removing barriers or preventing new barriers in the federal transportation network to the mobility of persons with disabilities may issue an NOV that contains a Warning.

Severity levels

The CTA has assigned a severity level for each of the legislative or regulatory provisions that are subject to an AMP, from Level A to Level D. A violation of a Level A provision is considered to be strictly administrative in nature, progressing to Level D, the most serious, as described in the following table:

Under the CTA's penalty scheme, progressively higher penalties for repeat violations are imposed. Each subsequent violation of the same provision of the Act or Regulations within a four-year period by the same entity will result in progressively higher penalty amounts, up to the maximum amount specified for each provision.

Administrative Monetary Penalties (various maximum penalty amounts up to $25,000)

Applicable to certain provisions of the:

• Canada Transportation Act
• Air Transportation Regulations
• Air Passenger Protection Regulations*
• Railway Third Party Liability Insurance Coverage Regulations
• Railway Interswitching Regulations

Regulations are currently being developed to increase the maximum penalty amounts under the Air Passenger Protection Regulations to $250,000.

Administrative Monetary Penalties (maximum penalty amount of $250,000)

Applicable to certain provisions of the:

• Air Transportation Regulations (Part VII)
• Personnel Training for the Assistance of Persons with Disabilities Regulations
• Accessible Transportation for Persons with Disabilities Regulations
• Accessible Transportation Planning and Reporting Regulations

Aside from doubling the penalty on repeat occurrences, DEOs will also assess aggravating and mitigating factors that may affect the final penalty amount. Those are stipulated in our Policy and include factors like the level of harm, the overall impact on passengers, efforts to avoid or remediate the violation and level of cooperation provided during the investigation. In the presence of aggravating factors, it is possible for a DEO to assess a 250k penalty for a level D violation on third occurrence during a period of four years. However, the Policy constitutes a guideline for the DEO who has the ultimate discretion in determining the amount of the AMP and it is therefore possible in theory for DEO to issue an NOV at a higher amount, even on first violation.

Once an NOV that sets out an AMP has been issued, the Agency may, upon request by a regulated entity, enter into a compliance agreement subject to terms that the Agency considers appropriate for the purpose of ensuring the entity's compliance with its legal obligations. The terms may include a provision for the deposit of reasonable security as guarantee that the person will comply with the agreement and may provide for the reduction, in whole or in part, of the amount of the penalty. We have now used this tool on a few occasions for accessibility related violations.

Process of investigation to the issuance of an Administrative Monetary Policy (AMP)

1. The Designated Enforcement Officer (DEO) receives information about potential non-compliance. The information may be received from:

• external sources (e.g. a third party, such as a report in the media);
• internal sources (e.g. Dispute Resolution data);
• another government department or agency; or
• the DEO's own observations. 

2. DEO analyses information and completes Preliminary Investigation Form, steps include (1-3 days depending on number of instances to be verified):

• Identifying elements of the potential violation;
• Determining if violation is a Designated Provision (and therefore subject to an Administrative Monetary Penalty (AMP));
• Reviewing internal databases;
• Reviewing open-source information; and
• Verifying statute of limitation has not expired (three years from date of alleged violation).

**If indicators of non-compliance present

3. Preliminary Investigation Form is sent to Enforcement Manager for approval.

4. A Targeted Investigation is opened in the Case Management System (CMS).

5. Investigation Phase:

• Gathering of Evidence: (minimum 2 weeks but can take much longer depending on number of possible violations and amount/type of supporting evidence required)
  • DEO sends formal requests for information from suspected violator, other Government departments, witnesses, etc.
• Analysing of Evidence: (depending on the file, anywhere from few days to several weeks)
  • DEO must review information received to ascertain whether it can establish on a balance of probabilities that a violation occurred.
  • This includes ensuring that information has been obtained that fulfils each element of the violation. (See Table 1 for example)
  • This also includes gathering evidence to address potential defense of due diligence.
  • DEO takes into consideration previous case-law/agency decisions precedents. (For example the meaning of "air service" was articulated in Agency Decision No. 390-A-2013)

**If evidence/analysis support violation

6. DEO prepares Investigation Package and submits to Enforcement Manager for review/approval. (1-3 days)

The Investigation Package includes:

• Investigation Report
• Appendices
• Calculation of AMP which takes into account:
  • minimum/maximum penalty set out in Agency policy
  • Takes into account aggravating/mitigating factors (+/- 10% per factor)
• The draft Notice of Violation (NOV)

**If approved by Enforcement Manager

7. The Investigation Package sent to Legal Services for review/recommendation. (dependant on Legal Service current workload and the complexity of the file)

8. DEO signs NOV and sends to responsible party (overall the minimum time it take to complete an investigation is about a month).

9. Responsible party has 30 days to make payment or request a review by the Transportation Appeal Tribunal of Canada (TATC).

Enforcement Actions - by year

Notices of Violation were issued in respect of the ATPDR, as follows:

• To Air Canada on December 12, 2023 in the amount of $52,500. This incident was widely reported in the media and involves [Redacted]. It is a result of the carrier's failure to allow the passenger to board in advance as requested. Additionally, [Redacted]'s mobility aid was not returned to [Redacted] upon [Redacted] arrival at destination, without delay.
  
  The specific penalties assessed to Air Canada were as follows:
  • for failing to permit a person with a disability to board in advance of other passengers as requested: $27,500 (Severity Level: C – 1st violation); and
  • for failing to return a mobility aid to a person on arrival at destination without delay: $25,000 (Severity Level: C – 1st violation).
• To Air Canada on December 21, 2023 in the amount of $97,500 related to their failure in providing assistance to a person with a disability. This incident was widely reported in the media and involves a gentleman by the name of [Redacted]. The violation resulted when the passenger was not provided assistance during deplaning and was left to independently exit the aircraft. The passenger supported [Redacted] exit using the back of seats, while [Redacted] assisted by carrying [Redacted] legs, to get [Redacted] to the front of the aircraft where [Redacted] wheelchair had been left waiting for [Redacted].
  
  The specific penalties assessed to Air Canada were as follows:
  • for failing to provide assistance services on request to assist with disembarking the flight: $25,000 (Severity Level: C – 1st violation);
  • for failing to provide assistance services on request to transfer a person between their passenger seat and mobility aid: $50,000 (Severity Level: D – 1st violation); and
  • for failing to ensure that members of personnel periodically inquired about the needs of a person with a disability who was in a wheelchair and waiting at a terminal for departure: $22,500 (Severity Level: C – 1st violation).
• To Air Transat on February 9, 2024 in the amount of $11,000 related to their failure to provide a suitable temporary replacement mobility aid to a passenger whose mobility aid was lost upon arrival in Venice, Italy. This violation was assessed to Air Transat under the Air Transportation Regulations (ATR) for which the maximum Administrative Monetary Penalty (AMP) is $25,000, because at the time of the occurrence, Air Transat was not subject to the ATPDR. As of January 1, 2024, Air Transat became subject to the ATPDR, having transported 1 million passengers or more during each of the two preceding calendar years. As a result, future violations will be eligible for larger maximum penalty amounts.
  
  The specific penalties assessed were related to 4 violations of section 110(4) of the ATR for failing to apply the terms and conditions of their tariff (Severity Level: C, 1st violations).
• To the Greater Toronto Airports Authority on February 16, 2023 in the amount of $36,000 related to their failure to have tactile and Braille signage indicating a designated area for service dogs to relieve themselves , and their failure to have a signage that indicates the direction to follow in order to access a designated relief area for service dogs.
• To WestJet on February 21, 2023 in the amount of $30,000 related to non-accessible software for self-service kiosks.
• To the Calgary Airport Authority on March 3, 2023 in the amount of $44,000 related to their failure to have tactile and Braille signage indicating a designated area for service dogs to relieve themselves.
• To the Aéroports de Montréal on March 23, 2023 in the amount of $36,000 related to their failure to have tactile and Braille signage indicating a designated area for service dogs to relieve themselves.
• To the Ottawa Airport Authority on April 14, 2023 in the amount of $14,000 related to their failure to have a signage that indicates the direction to follow in order to access a designated relief area for service dogs.
• To Flair Airlines Ltd. on April 18, 2023 in the amount of $82,500 related to their failure to provide a suitable temporary replacement along with prompt and adequate repair of a damaged wheelchair.
• To WestJet on August 3, 2023 in the amount of $85,500 related to their refusal to transport of a passenger, their mobility aid, and failing to provide a written notice of the refusals to the passenger within 10 days.
• To Air Canada on August 15, 2023 in the amount of $50,000 related to their failure to provide a temporary mobility aid that met the needs of a person with a disability who was not able to retain their mobility aid during flight and that was not made available to the passenger on arrival.
• To Halifax Airport Authority on August 30, 2023 in the amount of $14,000 related to their failure to have tactile and Braille signage indicating a designated area for service dogs to relieve themselves.
• To Victoria Airport Authority on September 18, 2023 in the amount of $19,000 related to their failure to have tactile and Braille signage indicating a designated area for service dogs to relieve themselves.
• To Air Canada on November 8, 2023 in the amount of $110,000 related to their refusal to transport a person with a disability along with their service animal, and failing to provide a written notice of refusal to the passenger within 10 days.

Comparison with other government regulators

• From April 1, 2023 to February 20, 2024, the CTA (313 employees, inclusive of 7 DEOs and 5 Senior Investigators) issued 71 NoVs with an AMP for a total amount of $1,330,180.
• In comparing the CTA with other regulators with similar employee size:
  • FINTRAC (545 employees) issued 9 NoVs with an AMP for a total amount of $9,406,384.
  • CRTC (564 employees) issued 42 NoVs with an AMP for a total of $878,345.
  • CER (500 employees) issued 1 NoV with an AMP for a total amount of $52,000.
• In comparing the CTA with other regulators with larger employee size:
  • CNSC (930 employees) issued 4 NoVs with an AMP of $49,620.
  • CFIA (6,929 employees) issued 111 NoVs with an AMP for a total amount of $1,115,600.
  • HC (Pest Control Products) (10,003 employees) issued 5 NoVs with an AMP for a total amount of $163,000.
  • Transport Canada (6,366 employees) – Total: $1,668,029
    • Civil Aviation for non-corporate issued 26 AMPs for a total amount of $61,805.
    • Civil Aviation for corporate issued 9 AMPs for a total amount of $105,075.
    • Marine Safety and Security for non-corporate issued 28 AMPs for a total amount of $145,012.
    • Marine Safety and Security for corporate issued 6 AMPs for a total amount of $207,295.
    • Rail Safety issued 12 AMPs for a total amount of $1,174,791.67.

Sources

CER:

CER – Reports on Compliance and Enforcement (cer-rec.gc.ca)

CNSC:

Regulatory actions - Canadian Nuclear Safety Commission

CFIA:

Administrative Monetary Penalties (AMPs) - Canadian Food Inspection Agency (canada.ca)

CTA:

Enforcement actions taken by the CTA’s enforcement officers | Canadian Transportation Agency (otc-cta.gc.ca)

CRTC:

Enforcement actions | CRTC

FINTRAC:

Public notice of administrative monetary penalties (canada.ca)

HC:

Enforcement Bulletins - Canada.ca

Number of Employees:

Canada Energy Regulator by Numbers

Population of the federal public service by department

TC:

Civil Aviation:

Aviation offences and enforcement (canada.ca)

Marine Safety and Security Enforcement:

Administrative Enforcement Action Summaries (canada.ca)

Railway Administrative Monetary Penalties:

Railway Administrative Monetary Penalties (canada.ca)