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OTTAWA - January 10, 2008 -
The Canadian Transportation Agency has ordered Air Canada, Air Canada Jazz and WestJet to adopt a one-person-one-fare policy for persons with severe disabilities who travel within Canada by air. The airlines have one year to implement the policy.
The tribunal's Decision means that for domestic services, Air Canada, Air Canada Jazz and WestJet may not charge more than one fare for persons with disabilities who
- are accompanied by an attendant for their personal care or safety in flight, as required by the carriers' domestic tariffs, or
- require additional seating for themselves, including those determined to be functionally disabled by obesity for purposes of air travel.
The Decision does NOT apply to:
- persons with disabilities or others who prefer to travel with a companion for personal reasons;
- persons with disabilities who require a personal care attendant at destination, but not in-flight; and
- persons who are obese but not disabled as a result of their obesity.
The Decision is based on longstanding principles of equal access to transportation services for persons with disabilities, regardless of the nature of the disability, and the Agency's legislative mandate to remove "undue obstacles" to their mobility. The Decision respects related decisions of the Supreme Court of Canada and Federal Court of Appeal.
The airlines are expected to develop a screening process to assess eligibility under the one-person-one-fare policy. For persons who travel with an attendant as required by the carriers' domestic tariffs, the Decision notes that carriers already perform assessments and have screening mechanisms to determine fitness and conditions for travel. Their screening mechanisms could be adapted to include functional assessments, and related screening expertise is available to them. For persons disabled by obesity, the Agency cites the practical experience of Southwest Airlines, which screens for entitlement to an additional seat by determining whether a person can lower the seat's armrests.
The airlines failed to demonstrate to the Agency that implementation of a one-person-one-fare policy will impose undue hardship on them. The Agency estimates that the cost of implementing the one-person-one-fare policy represents 0.09 per cent of Air Canada's annual passenger revenues of $8.2 billion and 0.16 per cent of WestJet's equivalent revenues of $1.4 billion.
The three applicants in the case were the Council of Canadians with Disabilities, Joanne Neubauer of Victoria, and the Estate of the late Eric Norman, who was a resident of Gander, Newfoundland and Labrador.
In a separate statement released today, the Agency offered to facilitate a collaborative process for implementation of the one-person-one-fare Decision. "It would be desirable to have a common screening approach to determine eligibility to benefit under the one-person-one-fare policy," said Geoffrey Hare, Chairman and CEO of the Agency. "A co-operative approach would be potentially beneficial to Air Canada, Air Canada Jazz, WestJet and the Gander International Airport Authority as well as other Canadian air carriers and airport authorities that may consider voluntary implementation of the one-person-one-fare policy."
The Canadian Transportation Agency is an independent tribunal which operates like a court to render decisions on a case-by-case basis. The Agency's jurisdiction with respect to persons with disabilities, stated in Part V of the Canada Transportation Act, is to ensure that persons with disabilities have proper access to effective transportation service. The Agency makes decisions and orders to eliminate undue obstacles to the mobility of persons with disabilities in the federal transportation network.
The Agency's Decision No. 6-AT-A-2008 on the one-person-one-fare application may be viewed at www.otc-cta.gc.ca. The Executive Summary, two backgrounders and a related news release may be found in the Media Room at www.otc-cta.gc.ca.
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The case was brought as a complaint to the Agency in 2002 by three applicants:
- Joanne Neubauer of Victoria, who has severe rheumatoid arthritis, needs a wheelchair for mobility, uses personal care attendants in her daily life and requires additional seating for an attendant when she travels by air;
- Eric Norman, a resident of Gander, Newfoundland and Labrador, with a rare disease resulting in paraplegia, who required an attendant for air travel. Following Mr. Norman's death in 2006, the application was continued on his behalf by his Estate;
- the Council of Canadians with Disabilities, an organization composed of representatives from provincial and major national disability organizations.
Linda McKay-Panos was granted intervener status after a decision of the Federal Court of Appeal determined that she was a person with a disability as a result of obesity.
The respondents are:
- Air Canada, Canada's largest full-service air carrier and Air Canada Jazz, Canada's largest regional air carrier;
- WestJet, Canada's second largest air carrier;
- the Gander International Airport Authority, a non-profit organization which manages airport operations at the Gander International Airport, Newfoundland and Labrador.
Five other Agency cases which raise similar issues involving Air Canada were placed on hold pending the outcome of this application. In addition, the Agency adjourned a similar case involving the foreign air carrier, Martinair Holland N.V., until the domestic complaints were resolved.
This complex case required extensive written pleadings, hearings and expert evidence. The proceedings were stayed for 18 months while Air Canada was completing a significant corporate restructuring, and adjourned for 10 months to address delays in the filing of expert reports. The Agency also held four weeks of public hearings in 2005 and 2006 and the last evidence was filed in August 2007.
Mandate of the Canadian Transportation Agency
The Canadian Transportation Agency is an independent tribunal of the Government of Canada which operates like a court. As outlined in Section 5 of the Canada Transportation Act, the objectives of Canada's national transportation policy are most likely to be achieved through regulation and strategic public intervention only when competition and market forces cannot provide viable and effective transportation services, when rates and conditions do not constitute an undue obstacle to the movement of goods and the mobility of persons, including those with disabilities, and when governments and the private sector work together for an integrated transportation system. Part V of the Act gives the Agency specific responsibility to eliminate undue obstacles to the mobility of persons with disabilities within the federal transportation network.
Determining whether or not an obstacle is undue
Applicants must establish that there is an obstacle to the mobility of a person with a disability in the federal transportation network. The onus of proof then shifts to the respondent transportation service provider to prove that the obstacle is not undue.
The service provider must show that reasonable accommodation has been provided up to the point of undue hardship.
In most cases, there will be a range of alternatives available to address the needs of a person or a group with a disability. In the end, reasonable accommodation will be the most appropriate accommodation which would not cause undue hardship to the service provider.
To establish undue hardship, a service provider must show that it has determined there are no reasonable alternatives to better accommodate the person with a disability affected by the obstacle and that there are constraints that make the removal of the obstacle unreasonable, impracticable, or in some cases, impossible.
The Supreme Court of Canada confirmed in March 2007, in Council of Canadians with Disabilities v. Via Rail Canada Inc., that the accessible transportation provisions of the Canada Transportation Act are, in essence, human rights legislation. The Supreme Court also found that principles of the Canadian Human Rights Act must be applied by the Agency when it identifies and remedies undue obstacles, including the principle of reasonable accommodation.
In its 2006 Tranchemontagne v Ontario (Director, Disability Support Program) decision, the Supreme Court reinforced a fundamental principle of accessibility that persons with disabilities are to be treated with dignity and respect. Included in this notion is that all persons with disabilities are entitled to be treated in the same manner regardless of the underlying reason for their disability, with no discrimination in terms of entitlement to benefits.
The January 13, 2006 Federal Court of Appeal decision in Linda McKay-Panos v. Air Canada confirmed that a person who is obese may be disabled for purposes of air travel if unable to fit in an airline seat.
The Agency's Decision No. 6-AT-A-2008 on the one-person-one-fare application may be viewed at www.otc-cta.gc.ca. The Executive Summary, a backgrounder on the one-person-one-fare policy and two news releases may be found in the Media Room at www.otc-cta.gc.ca.
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