Other background information: TRAN – February 27, 2024

Advancing Accessibility at the International Civil Aviation Organization

• The CTA supports the work of the Canadian mission to the International Civil Aviation Organization (ICAO) and provides subject matter expertise.
• In 2019–20, the CTA worked closely with government partners at ICAO during both the ICAO General Assembly and sessions of the Facilitation Panel (FALP) to raise the profile of accessibility in air travel.
• The CTA led, in collaboration with other government partners, efforts to advance accessibility in international aviation by encouraging Member States to recognize the importance of increasing awareness and continuing to collaborate to advance accessibility in aviation. Canada presented working papers on this matter that were endorsed by both the General Assembly and FALP.
• CTA staff are leading and participating, along with other Canadian subject matter experts, in a working group on accessible aviation that will finalize a compendium of regulations, statutes, and policies relating to accessibility in aviation; review and update the accessibility-related Standards and Recommended Practices in Annex 9 of the Convention on International Civil Aviation (Chicago Convention) and the related guidance material; develop an effective strategy and work program on accessibility; and support a seminar to look at accessibility from a global perspective and help to develop a long-term accessibility strategy.

Special Service Request (SSR) Codes Report

• SSR codes are associated with passengers' electronic files and facilitate the sharing of information about any accessibility accommodations that may be required.
• An international working group led by the Agency, in collaboration with NRC published a report in 2022 including recommendations to IATA and its member airlines regarding enhancing consistency of SSRs and other challenges associated with the use of SSR codes.
  • Applies to mobility aids and to other issues related to air travel of persons with disabilities.

Research – Safe storage and transportation of mobility aids (air)

• Mobility Aids and Air Travel
  • International working group led by Agency Published a report in 2019 providing recommendations on issues regarding safe storage and transportation of mobility aids on aircraft, including the development of guidelines for safe securement and containment of mobility aids.
• Safe Securement and Containment of Mobility Aids during Transport project
  • The CTA, in collaboration with the NRC and TC, in response to "Mobility Aids and Air Travel Report", published a report in 2022 including recommendations and in-depth research and analysis of securement and containment of mobility aids in the cargo holds of aircraft
  • Includes:
    • Functional guidelines related to the individual handling of mobility aids,
    • Guidelines for handling at a systems level
    • Cargo hold door dimensions tool prototype to determine whether a given mobility aid is able to fit through the cargo door of various aircraft.
  • This work was incorporated into IATA's recommended guidance to member airlines on the handling of mobility aids in 2023.
• Plans for future research (mobility aids)
  • We are establishing a Canadian Working Group, which includes the National Airlines Council of Canada (NACC) and its members, the Canadian Airports Council (CAC), as well as associations representing persons with disabilities to discuss and find short- and medium-term solutions regarding the transportation of mobility aids.
  • We will also continue liaising with IATA to ensure that their guidance on mobility aids is shared with ICAO members and forms part of the on-going work on accessibility at ICAO.
  • We are working with Accessibility Standards Canada to incorporate mobility aids securement into their work, as a complement to the regulations.
  • We will also identify and focus on any remaining gaps that may be found through our on-going activities:
    • compliance monitoring and enforcement,
    • complaints resolution,
    • research, and
    • concerns brought to our attention by person with disabilities.

Regulations involved

• The CTA develops and administers regulations that transportation service providers must follow to protect the fundamental human right of persons with disabilities to accessible transportation services.
• Under both the Accessible Transportation for Persons with Disabilities Regulations (ATPDR) (large transportation service providers) and Part VII of the Air Transportation Regulations (ATR) (small transportation service providers), airlines are required to provide assistance with respect to mobility aids, including passenger transfers, and to quickly repair damaged mobility aids, or replace lost mobility aids. Air carriers are also required to assist a person with a disability in boarding and disembarking an aircraft.
• To ensure proper handling of mobility aids, and safe passenger transfers, the ATPDR require that personnel be trained in a number of areas, including on how to handle mobility aids, appropriately transfer passengers between mobility aids, and between a mobility aid and their seat. This training also requires that personnel seek information from the person with respect to their preferred method of assistance and any other measures they may require to ensure their safety and comfort. New employees must receive training within their first 60 days. Until new employees receive required training, they must be supervised by trained personnel, and all personnel must have refresher training at least once every three years. In addition, transportation service providers must develop their training programs in consultation with persons with disabilities.
• Also, under the Accessible Transportation for Persons with Disabilities Regulations, air carriers must make every reasonable effort to permit a person with a disability who uses a walker or manual folding wheelchair to store it on board the aircraft, while carriers subject to Part VII of the Air Transportation Regulations shall, where space permits, permit a person who requires a manually operated folding wheelchair to store the wheelchair in the passenger cabin during the flight.
• A carrier may require a person with a disability to provide information or documents, including a medical certificate, that are reasonably necessary for the carrier to assess a person's request for services. However, in situations where the person cannot or does not provide the requested information or document, the carrier must, nevertheless, make every reasonable effort to provide the requested services.

What the Agency can do under its authority

• When a complaint is received:
  • After the passenger has tried to resolve their problem directly with the TSP, they may file a complaint with the CTA to initiate one of our dispute resolution processes
  • Mediation often resolves accessibility complaints (currently 96% of cases)
  • If unsuccessful, then it can go to Adjudication
  • Tribunal may order corrective measures and/or compensation
  • Accessibility complaints are prioritized in our dispute resolution processes.
• When no complaint is filed, but we are aware of an incident
  • We ask our enforcement team to look into the incident.
  • The enforcement team conducts full investigations of incidents reported in the media.
  • If they determine that the regulations have been violated, they have authority to issue a Notice of Violation and impose a fine on the TSP.

Air travel is the only mode of transportation where a person cannot remain in their own wheelchair during transportation. While it would be ideal if passengers could use their own wheelchairs in the aircraft cabin, aircraft standards for the securing of individual wheelchairs in aircraft cabins have not yet been established. The current FAA Reauthorization Act making its way through the U.S. Congress, includes three years of funding and research towards this goal.

Approval of modifications to structural components in an aircraft cabin, which include reengineering existing approved configurations, are the responsibility of Transport Canada rather than the CTA. Until such time as a restraint mechanism has been approved and certified by Transport Canada, the CTA will continue to follow developments closely.

Regulations

• The ATPDR require air carriers to make every reasonable effort to permit a person with a disability who uses a walker or manual folding wheelchair to store it on board the aircraft (s. 43 ATPDR).
• The ATPDR specify that nothing in the Regulations is to be construed as requiring any person to do anything that jeopardizes security, public health or public safety.
• TSPs have to respect dimension restrictions of storage compartments
  • E.g., some storage compartments contain height restrictions which carriers cannot exceed for safety reasons.

• As per Accessible Canada Act (ACA), all organizations that deal with matters related to accessibility must work together to provide a "no-wrong door" (NWD) experience for complainants
• Organizations working under NWD principle:
  • Accessibility Commissioner and the Canadian Human Rights Commission
  • Canadian Transportation Agency
  • Canadian Radio-television and Telecommunications Commission
  • Federal Public Sector Labour Relations and Employment Board

Roadmap to File Future Accessiblity-related Complaintes - Text version

Roadmap to File Future Accessibility-related Complaints

Filing an accessibility-related complaint

No wrong door: If someone files a complaint to the wrong organization, the Council of Federal Accessibility Agencies works together behind the scenes to make sure that the complaint goes where it is supposed to go.

1. Within the context of receiving Services
   • Transportation Matters (such as planes, trains, ferries, bus and terminals)
     • CTA- Canadian Transportation Agency
   • Telecom / Broadcasting matters(such as phones, TV and radio)
     • CRTC - Canadian Radio-Television and Telecommunications Commission
   • All federally regulated service providers (other than transport and telecom/broadcasting services)
     • AC - Accessibility Commissioner (note about when)
2. Within the context of Employment
   • All other federally regulated employees
     • AC - Accessibility Commissioner (note about when)
   • Parliamentary Employee (grievance process)
     • FPSLREB - Federal Public Sector Labour Relations and Employment Board
   • Employee in the federal public service (staffing complaints and grievance process)
     • FPSLREB - Federal Public Sector Labour Relations and Employment Board

• On January 10, 2008, the Agency ordered Air Canada, Air Canada Jazz and WestJet to adopt a One-Person-One-Fare Policy for persons with severe disabilities on flights within Canada. The airlines were given up to one year to implement the policy, which did not apply to domestic segments of transborder and international trips.
• On October 13, 2015, in Decision No. 324-AT-A-2015, the Agency found that the applicant's disability-related needs included one attendant and the provision of one extra seat, free-of-charge, for that attendant, which WestJet had not provided. However, the Agency decided not to consider the application of "one person one fare" internationally on the basis that:
  • The Agency would require a full understanding of the implications of such a remedy on the international air market prior to ordering a systemic remedy that was unavailable in an application filed by one individual; and,
  • The international air industry involves many factors not applicable in the domestic context and which are entirely outside of the Agency's control, including foreign laws and regulations and bilateral air transport agreements.
• In 2020, the ATPDR came into force, including a requirement to provide 1P1F domestically. Detailed information on the requirement was provided in public guidance material (Additional Seating and the One Person, One Fare Requirement for Domestic Travel: A Guide).
  • In 2020, the CTA consulted on a proposal to extend the 1P1F rule to international travel in the ATPDR. At the time, Canadian and foreign airlines strongly opposed the measures on the basis that a requirement for 1P1F internationally would be inconsistent with the provisions of Canada's bilateral air agreements that allow airlines the freedom to establish prices and that limit the ability of aeronautical authorities (such as the CTA) to interfere with such prices. This position was supported by Global Affairs Canada and Transport Canada.[Redacted]
• Gauthier v. Air Canada, 2024 BCSC 231 - Decision by the Supreme Court of British Columbia
  • Two PWDs are bringing a class-action suit against WestJet and Air Canada on the basis that the non-application of the 1P1F rule on international flights is discriminatory and contrary to public policy because it requires them to pay more because of their disabilities.
  • The Court dismissed a preliminary motion by WestJet and concluded that it had jurisdiction over the potential class action.
  • In that decision, the Court
    • Quoted the Agency's previous decisions on the 1P1F issue: Norman (2008), Cheung (2015), Interpretive decision 2019, Lukacs v. Delta (2019) and Yale (2022).
    • Did not criticize the Agency's treatment of 1P1F cases or its decision to not apply the 1P1F rule to international flights.
  • The court has yet to certify the proposed class action.

In June 2023, the Agency issued a decision where it determined that carriers are only required to accommodate dogs as emotional support animals and only under specific conditions, such as providing proof that a person is being treated for a mental health disability and requires an emotional support dog to accommodate that disability, a veterinary certificate, and the dog must fit comfortably in an animal carrier under the seat.

• On August 11, 2023, in Decision No. 123-AT-A-2023, the Agency found:
  • that Mr. Rose is a person with a disability who encountered an obstacle to his mobility because Air Canada exclusively assigns aircraft to its route between Toronto and Cleveland that cannot accommodate his power wheelchair;
  • that Air Canada’s decision to operate other transborder routes in its network that are serviced only by aircraft that cannot accommodate larger mobility aids creates an obstacle to the mobility of all persons who use these aids;
  • these obstacles are undue.
• As a result the Agency ordered Air Canada to accommodate any person who uses a power wheelchair that cannot be collapsed to fit within the cargo door of the aircraft scheduled for their flight, when provided with at least 21 days' notice, at a minimum by
  • Attempting to find a similar flight or flights on a different but comparable route within its network;
  • Attempting to find a similar flight or flights with another carrier on the same route or on a different but comparable route; or
  • Substituting an accessible aircraft on the chosen flight where Air Canada cannot accommodate the passenger in any other reasonable way.
• The Agency decision is being appealed by Air Canada

General

• The Convention on the Rights of Persons with Disabilities (CRPD) is an international human rights treaty aimed at protecting the rights and dignity of persons with disabilities without discrimination and on an equal basis with others. Parties to the CPRD are required to promote and ensure the full enjoyment of human rights of persons with disabilities including full equality under the law.
• Canada ratified the CRPD in 2010.

Articles

• The CRPD contains a number of Articles, including Article 9 – Accessibility - which is the article that includes transportation. This article requires countries to identify and eliminate obstacles and barriers and ensure that persons with disabilities can access their environment, transportation, public facilities and services, and information and communications technologies.

Reports and Appearances

• Canada submitted its first report on measures taken to fulfill its obligations under the CRPD to the UN Committee on the Rights of Persons with Disabilities in 2014. Canada's report included information about the implementation of the Convention in Canada, and explained key federal, provincial and territorial laws, policies and programs related to the rights of persons with disabilities.
• Canada appeared before the UN Committee in 2017 to have a dialogue with the Committee, focusing on new developments since submission of Canada's initial report. The delegation included representation from the CTA.
• In 2019, the Special Rapporteur on the Rights of Persons with Disabilities visited Canada and met with a number of senior officials from federal government departments and agencies, including the CTA.
• In 2022, Canada submitted its second and third reports on key measures adopted in Canada to enhance implementation of the CRPD since Canada’s last appearance before the Committee in 2017 and responded to a list of issues provided by the Committee.
• The report noted that the Government of Canada is addressing transportation within federal jurisdiction through the ATPDR and the ATPRR and that the development of both regulations included consultations with the CTA’s Accessibility Advisory Committee, representatives of disability organizations, the transportation industry, and other interested parties.

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. The Agency decides such applications using a two-part approach (Interpretative Decision, Decision 33-AT-A-2019).

During Part 1 of the Agency's analysis, the onus is on the applicant to demonstrate, on a balance of probabilities, that they have a disability and faced a disability-related barrier. During Part 2 of the Agency's analysis, the onus shifts to the respondent to explain how it proposes to remove the barrier or demonstrate that it cannot remove the barrier without experiencing undue hardship.

The respondent is therefore only relieved of the duty to remove the barrier if all options for doing so would cause it undue hardship. The actions required to remove barriers usually entail some burden for transportation service providers; however, undue hardship only results if there are constraints that make the removal of the barrier impossible, impracticable or unreasonable. These constraints generally relate to safety, operational, cost and physical or structural constraints.

The threshold to establish undue hardship is high, with each case assessed on its merits. Mere statements – such as, "It would cost too much" or "It would be unsafe" - are not sufficient to establish undue hardship. Instead, evidence in respect of the constraints must be objective, direct and, where applicable, quantifiable.

While not exhaustive, the following list reflects examples of the types of constraints that a transportation service provider might encounter in removing a barrier and the corresponding evidence that could be considered when assessing undue hardship.

1. Safety - a relevant safety rule, regulation, policy or procedure and evidence that waiving or modifying this would cause undue hardship. The evidence could include engineering reports, medical reports or expert opinions relating to the safety matter and risks – including the probability of the risks - of providing an accommodation measure to a person with a disability.
2. Operational - operational realities, such as security measures which must be applied to passenger travel, departure schedules that must be adhered to, and the transportation equipment used to serve a market and evidence that providing an accommodation measure in light of these operational realities would cause undue hardship. The evidence could include witness testimony, data or reports on business operations, copies of internal policies, or expert opinions.
3. Costs - the costs of providing an accommodation measure and the impact of those costs - for example on the transportation service provider's viability - net of benefits accruing from the removal of the barrier, such as new travel by persons with disabilities. The evidence must support the quantification of the costs and demonstrate that they are incremental (i.e., new costs which would be incurred as a result of providing an accommodation measure), and so significant that the impact would create undue hardship. The evidence could include current audited and interim financial statements; current cash flow projections and the underlying assumptions; a detailed business plan; annual reports; and other financial information that is supported by financial records.
4. Physical or Structural - constraints relating to the physical or structural aspects of means of transportation (e.g., airplanes, trains, ferries and buses), terminal facilities, and the equipment used in them. These may impose limitations on the ability of a transportation service provider to design, construct or modify the means of transportation, facilities or equipment in order to prevent or remove any undue barriers. The evidence could include engineering reports, witness testimony or expert opinions.

The Agency's recent decision related to travelling with emotional support animals (ESA) provides guidance for the consideration of undue hardship. In that decision, the Agency determined whether ESAs could be carried without causing undue hardship to carriers when an applicant has demonstrated that they have a mental health-related disability requiring them to travel with an ESA. The following factors were considered by the Agency:

• the health and safety of the crew and other passengers, including those travelling with service dogs;
• animal behaviour and welfare concerns for both the ESA and service dogs;
• the safe and efficient operation of transportation equipment, particularly in the context of air travel; and
• the impacts of fraudulent representation of pets as emotional support dogs (ESDs).

Based on the foregoing, the Agency found that:

• acceptance of a species other than a dog as an ESA would cause undue hardship for carriers;
• while domesticated dogs may generally be suitable as ESAs, the unrestricted carriage of ESDs would cause undue hardship for carriers; and
• with appropriate conditions and safeguards, carriers could carry some ESDs without undue hardship.