Determination No. AT-2021-151

SUMMARY

[1] The Canadian Transportation Agency (Agency) has received applications from the applicants for temporary exemptions from certain provisions of the ATPDR, pursuant to subsection 170(3) of the CTA, due to the ongoing impacts of the COVID-19 pandemic.

[2] Under subsection 170(3) of the CTA, the Agency may, with the approval of the Governor in Council, exempt specified persons, means of transportation, services or related facilities and premises from the application of the ATPDR. Previously, the Agency has issued such exemptions when satisfied that a transportation service provider has demonstrated that they cannot comply with certain ATPDR provisions without experiencing undue hardship.

[3] In this determination, the Agency will address the issue of whether the applicants have demonstrated that it would constitute undue hardship to come into compliance with any of the provisions from which exemptions have been sought.

[4] Following a review of all information obtained through submissions from and working group meetings held with both industry, including the applicants and disability rights organizations, the Agency has determined, for the reasons set out below, that the applicants have failed to demonstrate that compliance with any of the provisions from which an exemption is sought would cause them undue hardship. Accordingly, the applications are dismissed.

BACKGROUND

[5] The ATPDR prescribes clear, consistent, and legally binding accessibility requirements for many transportation service providers in modes of passenger transportation under federal jurisdiction. Most of its provisions—over 200—came into effect on June 25, 2020. However, certain provisions are being phased in over a two-year period in order to provide transportation service providers with additional time to comply.

[6] Temporary exemptions were granted from the application of certain provisions of the ATPDR in June of 2020 because transportation service providers were unable to meet all of the requirements coming into force on June 25, 2020, due to the disruptions caused by the COVID-19 pandemic. Following a consultation with transportation service providers and disability rights organizations, the Accessible Transportation for Persons with Disabilities Regulations Application Exemption Order, SOR/2020-125 was made pursuant to subsection 170(3) of the CTA, and the effective date of 22 ATPDR provisions was delayed from June 25, 2020, to December 31, 2020.

[7] From August to December 2020, the Agency received from the applicants requests for further temporary exemptions from the following provisions of the ATPDR based on their view that their operational and financial situations resulting from the ongoing impacts of the pandemic have not improved:

• Section 4 – General information provided in alternative formats;
• Section 8 – Providing alternate means to access information, and publication of how to access relay services;
• Section 9 – Website requirements;
• Section 10 – Public announcements;
• Section 11 – Automated self-service kiosks;
• Sections 15 to 23 – Training requirements;
• Section 32 – 48 hours advance notice;
• Paragraph 35(c)(ii) – Permitting a non-travelling person/escort to accompany a person through the security screening process;
• Sections 39, 81, 164 and 205 – Personal electronic device, and onboard entertainment for pre-existing aircraft, ferries, or buses;
• Section 43 – Onboard storage for walkers or manual folding wheelchairs;
• Section 57 – Onboard announcements;
• Section 58 – Written confirmation of services;
• Section 59 – Retention of electronic copies;
• Section 75 – Tactile row markers (technical requirement);
• Section 78 – Wheelchair accessible washrooms (technical requirement);
• Section 216 – Curbside assistance;
• Section 223 – Requirements for lift, ramp or stairs;
• Section 225 – Requirements for wheelchairs;
• Subsections 227(1), (2), and (3) – Provisions related to designated relief areas on the non-secure side of terminals; and
• Subsection 227(4) – Designated relief areas on the secure side of terminals.

THE LAW

[8] Part V of the CTA gives the Agency powers to protect and advance the fundamental right of persons with disabilities to an accessible federal transportation network, including the authority to make regulations for the purpose of identifying or removing barriers or preventing new barriers in the transportation network under the legislative authority of Parliament.

[9] Specifically, subsection 170(1) of the CTA states:

The Agency may, after consulting with the Minister, make regulations for the purpose of identifying or removing barriers or preventing new barriers –particularly barriers in the built environment, information and communication technologies and the design and delivery of programs and services – in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting

(a) the design, construction or modification of, and the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them;

(b)  the training of personnel employed at or in those facilities or premises or by carriers;

(c) tariffs, rates, fares, charges and terms and conditions of carriage applicable in respect of the transportation of persons with disabilities or incidental services; and

(d)  the communication of information to persons with disabilities.

[10] The ATPDR were made pursuant to subsection 170(1) of the CTA, and prescribe legally binding accessibility requirements for many transportation service providers in modes of transportation under federal jurisdiction. Most of its provisions—over 200—came into effect on June 25, 2020; however, certain provisions are being phased in over the next two years, until June 25, 2022.

[11] Subsection 170(3) of the CTA states:

The Agency may, with the approval of the Governor in Council, make orders exempting specified persons, means of transportation, service or related facilities and premises from the application of regulations made under subsection (1).   

[12] In considering whether to grant exemptions under subsection 170(3) of the CTA, the Agency must consider that Part V of the CTA is, by its nature, human rights legislation and that federal transportation service providers have a positive obligation to ensure that persons with disabilities have equal access to their services. A transportation service provider may only be relieved of this duty if all options for meeting this obligation would cause it undue hardship. As explained by the Supreme Court of Canada in CCD v VIA, at paragraph 122:

[u]ndue hardship implies that there may necessarily be some hardship in accommodating someone’s disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate.

[13] The actions required to remove barriers to accessibility usually entail some burden for transportation service providers; however, the point of undue hardship is reached only when there are constraints, whether they be economic, operational or safety-related, that make the removal of the barrier impossible, impracticable or unreasonable. Furthermore, mere statements of hardship are not sufficient to establish the existence of undue hardship; in accordance with the Supreme Court of Canada decision in CCD v VIA, concrete evidence must be provided to establish undue hardship (paragraph 226).

[14] Financial burdens are a relevant and sometimes key consideration in applying this test, however given the importance of human rights, cost alone will not result in an undue hardship finding unless it is demonstrably prohibitive. A transportation service provider is required to produce evidence to demonstrate the significance of the impact of a cost, and that the cost and the significance of its impact would be harmful to it to the point that it would be unreasonable, impracticable or impossible for it to make its services accessible.

[15] The Agency’s assessment of undue hardship is contextual, and each situation must be assessed on its own merits. However, the threshold for establishing undue hardship is high.

[16] The applicants were advised of the legal framework applicable to their exemption requests on November 16, 2020.

CONSULTATION

[17] The Agency launched public consultations with respect to these exemption applications on January 18, 2021. As part of this consultation, the Agency posted the exemption applications online and provided an opportunity for stakeholders, including persons with disabilities, to submit comments, which were also made available online.

[18] In addition, a working group was established and three working group meetings were facilitated by Agency staff on March 9, 16 and 23, 2021. Twenty stakeholders from industry and nine stakeholders from disability rights organizations (listed in Appendix A) participated in the meetings.

[19] These meetings provided an opportunity to facilitate a better understanding of the regulatory requirements, and discuss potential strategies for implementation of and adherence to these requirements, given the challenges posed by the COVID-19 pandemic.

[20] Following the working group meetings, the transcripts from each meeting were placed on the record for the Agency’s consideration, and were shared with the applicants and the working group members. Applicants were then given until April 14, 2021, to provide any comments on the impacts of the working group discussions, if any, on their exemption requests. Motor Coach Canada was the only applicant that made a submission to this effect.

[21] On April 12, 2021, the Government of Canada announced that it had entered into debt and equity financing agreements with Air Canada which, among other things, will allow Air Canada to access liquidity through the Large Employer Emergency Financing Facility program. The Government of Canada also indicated that negotiations with other carriers were ongoing. The Agency subsequently received a joint correspondence from seven disability rights organizations regarding Air Canada’s financial arrangement, submitting that it is imperative that funds be earmarked to ensure the timely implementation of the ATPDR. All of the above information was added to the record, and disability rights organizations and the applicants were provided with an opportunity to comment.

[22] The Agency received submissions from Air Canada and Airlines for America regarding the announcement of financial relief.

[23] The Government of Canada subsequently entered into an agreement with Air Transat under similar financial assistance arrangements. The Government of Canada indicated that such arrangements could be available to other carriers as well.

HAVE THE APPLICANTS DEMONSTRATED THAT IT WOULD CONSITUTE UNDUE HARDSHIP TO COME INTO COMPLIANCE WITH ANY OF THE PROVISIONS FROM WHICH EXEMPTIUONS HAVE BEEN SOUGHT?

Positions of the parties

The applicants

[24] The applicants’ submissions allege that the COVID-19 pandemic has caused severe financial and operational disruptions, which has resulted in unprecedented decreases in passenger volumes, cancellations of routine service routes for some transportation service providers, mass layoffs and furloughed staff.

[25] The Canadian Airports Council (CAC), the Greater Toronto Airports Authority (GTAA), the Regina Airport Authority, the Calgary Airport Authority, Aéroports de Montréal, the Victoria Airport Authority, Aéroport international Jean-Lesage de Québec, the Thunder Bay International Airport Authority Inc., the St. John’s International Airport Authority, the Prince George Airport Authority, the National Airlines Council of Canada (NACC), the International Air Transport Association (IATA), Airlines for America, Air Canada, Jazz Aviation LP (Jazz), Sunwing Airlines Inc. (Sunwing), Air Transat A.T. Inc. (Air Transat), Motor Coach Canada and Marine Atlantic indicate that their primary concern was the significant loss of revenue due to the impact of the pandemic, while also indicating the need to invest resources into domestic and internationally recommended and regulated bio‑safety measures to combat the spread of COVID-19 and maintain operations. With the loss of revenue and key personnel, they assert that implementing some of the provisions in the ATPDR in the current circumstances is challenging for them. 

[26] The CAC, the Victoria Airport Authority, Aéroport international Jean-Lesage de Québec, the St. John’s Airport Authority, the Prince George Airport Authority, the IATA, the NACC, Sunwing, Air Transat, Air Canada, Jazz and Motor Coach Canada also advise that they need additional time to implement the information technology (IT) infrastructure necessary to meet the requirements of some provisions, such as website requirements, written confirmation of services and the retention of electronic copies. With respect to international travel and foreign carriers, some of the applicants submit that significant and costly changes to multiple passenger and non-passenger facing systems and platforms, including systems of other air carriers to facilitate code-share partnerships, are necessary in order to meet some requirements. These applicants further submit that they continue to work toward meeting these requirements.

[27] The CAC and the GTAA both raise concerns with respect to the significant investment necessary to meet the requirements for automated self-service kiosks.

[28] In particular, the GTAA submits that it had initiated plans to replace the check-in, government agency (e.g., the Canada Border Services Agency), and parking self‑service kiosks with newer technologies, but that these efforts have been temporarily suspended by the significantly reduced capital expenditure program and the deferral of many programs due to the impact of the pandemic. The GTAA further submits that the pandemic has pushed industry to review alternative touchless technologies, and that investing millions into kiosks to meet the June 25, 2022, implementation date set out in the ATPDR, as well as investing millions into new technology in light of the rapid innovations being developed to improve health and safety when there are scarce capital resources is unreasonable. At the working group meetings, the GTAA proposed that it would complete the remaining number of kiosks, including the consideration of smart device or biometric technologies, by no later than June 2025.

[29] Motor Coach Canada submits that the bus industry has seen business virtually eliminated across the country because of the pandemic. More than 90 percent of motor coaches have been parked for the past year due to the drastic decrease in demand. A recent survey of Motor Coach Canada’s members indicates that 92 percent of motor coach operators have had revenue decrease between 75 percent to 100 percent over the last six months, with five companies shutting their doors permanently and more than 83 percent anticipating going out of business in the next six months.

[30] In response to the transcripts from the working group meetings, Motor Coach Canada advises that operators do not have the funds to comply with ATPDR provisions such as website requirements (section 9) and personal electronic devices for pre-existing buses (sections 39 and 205). Motor Coach Canada submits that, while the personal electronic devices require a much smaller investment than website upgrades, their members have indicated that their financial situation is so dire that purchasing a personal electronic device becomes a very difficult task. Motor Coach Canada further submits that if an operator faces financial penalty for not meeting the requirements set out in the ATPDR, it could be the last straw after a long pandemic that puts their company out of business.

[31] With respect to the impact of the financial relief package, Air Canada states that the financial assistance was concluded on the basis of particular needs on the part of Air Canada, and clear policy objectives on the part of the Government of Canada. These objectives include:

• offering refunds to eligible customers who purchased non-refundable fares but did not travel as a result of the pandemic;
• resuming service to certain regional communities where service was suspended because of the pandemic’s impact on travel;
• preserving current employment levels; and
• completing the acquisition of certain aircraft.

[32] Air Canada submits that neither full implementation of and compliance with the ATPDR nor their pending exemption requests were contemplated in the negotiation of this agreement. As a result, Air Canada states that its justifications for its exemption requests (e.g., lack of resources and personnel) remain unchanged, and the funding received by Air Canada is not relevant to the Agency’s assessment.

[33] Airlines for America asserts that the Agency must recognize that such financial support is not available to foreign carriers, has no bearing on foreign air carriers’ need for exemptions and should be disregarded. Airlines for America submits that, although foreign carriers may receive support from foreign governments, it, too, should be disregarded by the Agency as it is often conditioned or limited, and it points to the requirement by the U.S. Government that funding be used for payroll support.

Disability rights organizations

[34] Generally, disability rights organization do not support exemptions. They argue that the submissions made by the applicants have not provided the clear, objective and quantifiable evidence as to why they are unable to comply with the ATPDR, as required by human rights law. They state that accessing the federal transportation network is a human right for persons with disabilities, and emphasize the importance of transportation service providers’ meeting the requirements set out in the ATPDR.

[35] Disability rights organizations raise concerns about what they say are disproportionate reductions in quality or availability of services for persons with disabilities, including additional waiting times and difficulties in requesting assistance due to pandemic-related social distancing measures and workforce reductions. They argue that the COVID-19 pandemic has already created additional travel challenges for persons with disabilities, and that, without being assured that services and accommodations required by the ATPDR will be provided, they will face further barriers to travel.

[36] In addition, Barrier-Free Canada, the Canadian National Institute for the Blind, Kéroul, the Canadian Council of the Blind, the Alliance for the Equality of Blind Canadians, the National Coalition of People who use Guide and Service Dogs, Guide Dog Users of Canada, Confédération des organismes de personnes handicapées du Québec, the Council of Canadians with Disabilities, and the Canadian Association of the Deaf all state in their submissions that transportation service providers should have already been in the process of introducing ATPDR compliance measures when the pandemic began, and may reasonably be expected to have at least partially implemented the necessary changes.

[37] With respect to requests for temporary exemptions from the automated self-service kiosk requirements made by the Canadian Airports Council, the GTAA, Aéroports de Montréal and Aéroport international Jean-Lesage de Québec concerns were raised by the Canadian National Institute for the Blind, Barrier‑Free Canada and the Canadian Council of the Blind regarding the use of touchless technology and/or biometric kiosks, specifically with respect to retinal scans, which can be inaccessible for some persons who are blind. These organizations are open to exploring new technologies but many underscore the importance and benefit for transportation service providers to consult persons with disabilities prior to purchasing new technologies.

[38] Some disability rights organizations express the view that funds provided by the Government of Canada need to be earmarked for accessibility to ensure the timely implementation of the regulatory responsibilities set out in the ATPDR and that the provisions of financial assistance to some carriers should be considered in determining the exemption applications.

[39] Finally, disability rights organizations assert that if exemptions are considered, there must be firm dates established for transportation service providers to come into compliance.

ANALYSIS AND DETERMINATION

[40] The information on the record indicates that the COVID-19 pandemic has caused serious hardship for persons with disabilities and has had major financial and operational impacts on most transportation service providers.

[41] While the Agency recognizes the adverse impacts the COVID-19 pandemic has had on transportation service providers, lessening their human rights obligations is not an appropriate solution. As noted previously, accessible transportation is a fundamental human right, and transportation service providers have a positive obligation to ensure that persons with disabilities have equal access to their services. Transportation service providers are only to be relieved of this duty if all options for meeting this obligation would cause it undue hardship.

[42] The bar to establish undue hardship is appropriately high in recognition of the fact that these are fundamental human rights that transportation service providers are required by law to meet.

[43] The Agency applied the undue hardship test in its assessment of the requests for temporary exemptions from the ATPDR provisions. Although the Agency recognizes the challenges that transportation service providers are currently facing as a result of the impact of the COVID-19 pandemic, the Agency finds that, in general, none of the applicants provided sufficient evidence to demonstrate that any of the requirements are impossible to meet for either operational or safety reasons. Furthermore, while the industry is experiencing financial difficulties from the pandemic, none of the applicants produced concrete evidence to demonstrate the significance of the impact of a cost to the point that it would constitute undue hardship. Thus, the applicants did not meet their burden of proof to demonstrate that it is unreasonable, impracticable or impossible to make their services accessible.

[44] The Agency will now turn to consider each of the requests for exemptions from specific provisions of the ATPDR.

Section 4 – General information provided in alternative formats

[45] The NACC requested an exemption on behalf of its members from this provision; however, this request was based on the incorrect assumption that this provision imposes obligations that are more onerous than what is required. In particular, there seemed to be confusion about the timing of the provision of information in certain formats, such as Braille. Clarifications were provided during the working group meetings about what transportation service providers need to do to fulfill their obligation under this provision, including providing alternative formats “without delay” and that it only applies to information that a transportation service provider makes available to the public about any transportation-related service or facility. Following these clarifications, no further information or evidence was submitted to demonstrate that fulfilling the obligation would cause undue hardship. For this reason, the Agency finds that an exemption from section 4 is not necessary or warranted because the obligation can be met without causing undue hardship.

Section 8 – Providing alternate means to access information, and publication of how to access relay services

[46] Section 8 sets out that if a transportation service provider makes a website available to the public that may be used to access a client account, travel itinerary, travel schedule or trip status; to obtain contact information for the transportation service provider; or to make or modify a reservation or to check in, it must offer the option of doing those things by means of a communication system that does not require the use of a website, such as by means of a telephone, email, or a third party’s telephone relay or video relay service. Section 8 also requires transportation service providers to publish in every instance where the address of the website is published, a description of how a person may access the services, such as the transportation service provider’s telephone number, email address and their telephone number for relay or video relay services.

[47] The Victoria Airport Authority is the only applicant which submitted a temporary exemption request for this ATPDR requirement. During the working group meetings, clarifications were provided regarding how to access telephone and video relay services, in addition to noting that these services are available at no charge in Canada, that additional information could be found on the Canada video/relay services website and that this provision does not reflect an obligation for a teletypewriter or a TTY machine.

[48] While the Victoria Airport Authority did not participate in the working group meetings, following the above-noted clarifications, the CAC, speaking on behalf of the Victoria Airport Authority, did not raise any further concerns, and no further information or evidence was submitted to demonstrate that fulfilling the obligation would cause undue hardship. As a result, the Agency finds that an exemption from section 8 is not necessary or warranted.

Section 9 – Website requirements

[49] A transportation service provider’s webpage is often a person’s primary means of independently booking travel and obtaining the key information that is necessary to facilitate their trip. Accessing this information is even more crucial for persons with disabilities, many of whom use transportation service providers’ websites to research accessibility-related aspects of their travel in order to inform themselves of accessibility features such as the designated locations for curbside pickup and drop off, the location of accessible washrooms or service dog relief areas, and the details of carriers’ accessibility policies, for example, for support persons or allergies.

[50] Website accessibility is among the ATPDR requirements that applicants were previously expected to meet under section 1.2 of the Removing Communication Barriers for Travellers with Disabilities Code of Practice (Communication Code of Practice) which was published in 2004. While website accessibility standards are continually evolving as technology changes and the applicants may need to invest more resources into meeting the website requirements set out in the ATPDR, the Agency is of the view that applicants should be in a position to implement measures necessary to comply, given that there were long-standing website accessibility standards already in place, the extensive lead‑in time already provided to transportation service providers through the delay granted in the previous exemption order, and the importance for persons with disabilities to be able to independently access a transportation service provider’s website.

[51] As noted above in paragraph 43 regarding the general discussion of financial constraints, while some applicants raise concerns about the resources and costs needed to implement the ATPDR website requirements, a cost, in and of itself, is not determinative of undue hardship. Motor Coach Canada submits that its members will go bankrupt as a result of implementing these provisions; however, it has provided no concrete evidence to substantiate the link between the cost of implementation of this requirement and the potential impact this might have on its members.

[52] The Agency finds that the applicants did not provide sufficient information or evidence to substantiate that fulfilling the obligation would cause undue hardship. As a result, the Agency finds that an exemption from section 9 is not necessary or warranted.

Section 10 – Public announcements

[53] For some requirements, such as providing public announcements inside terminals in both audio and visual formats, the applicants’ ideal means to meet the requirements for a visual announcement is by using an automated system. However, it is important to note that the ATPDR does not dictate the form that the visual announcement must take. As such, less expensive means, such as signs, could be used to meet the requirement in place of the more expensive and technically difficult means initially envisioned by some applicants, even if only as a temporary means while they work towards a fully automated solution.

[54] As a result, the applicants have failed to demonstrate that they cannot meet the requirement of having audible and visual announcements without experiencing undue hardship. For this reason, the Agency finds an exemption from section 10 is not necessary or warranted.

Section 11 – Automated self-service kiosks

[55] The requirements for accessible automated self-service kiosks set out in the ATPDR build on standards that applicants were previously expected to meet under the Communication Code of Practice. Under this voluntary Code of Practice, carriers and terminal operators were expected to ensure that by December 31, 2022, at least 25 percent of automated self-service kiosks met the standards set out in this Code, the same standards which are reflected in the ATPDR. Although the ATPDR requires that all such kiosks be accessible, as opposed to the 25 percent under the voluntary Code, terminal operators were given three years (until June 25, 2022) to come into compliance with this requirement.

[56] With respect to the CAC’s and the GTAA’s submission that they are looking at newer technologies, the Agency understands that the pandemic has motivated the transportation industry to review alternative touchless technology. However, any delay caused by this research should not come at the expense of the fundamental right of persons with disabilities to independently navigate the federal transportation network.

[57] Moreover, should transportation service providers wish to deploy alternative technology, it is open to them to apply for an exemption pursuant to subsection 170(4) of the CTA even if it means that there will be a slight delay in implementation. This provision authorizes the Agency to issue an exemption, on application and in consultation with the Minister, where it is satisfied that the applicant has taken or will take measures to prevent barriers that are at least equivalent to those that must be taken under the provisions of the ATPDR. To this end, the Agency encourages these transportation service providers to develop any new technology with accessibility in mind and to give serious consideration to the challenges identified by disability rights organizations during the working group meetings regarding touchless technologies and retinal scans to ensure that principles of universal barrier-free design are upheld.

[58] For these reasons, the Agency finds that the applicants did not establish that meeting the requirements in respect of automated self-service kiosks would cause them undue hardship.

Sections 15 to 23 – Training requirements

[59] With respect to the training requirements set out in sections 15 to 23 of the ATPDR, these provisions form the foundation upon which transportation service providers’ personnel gain the understanding, knowledge and skills necessary to carry out the functions of their job to provide appropriate services to persons with disabilities in a manner that is safe and respects a person’s dignity.

[60] Many of the training requirements set out in the ATPDR have long been reflected in the Personnel Training for the Assistance of Persons with Disabilities Regulations (PTR), which came into force in 1994. For example, the requirements set out in the ATPDR in section 17 on physical assistance; section 18, handling mobility aids; and section 19, using or assisting with special equipment, largely reflect the existing requirements in sections 5, 6 and 7 of the PTR.

[61] However, there are some new requirements for which the applicants may need to invest some resources in order to update their training programs to reflect these, such as: subsection 16(2), the details regarding contents of training; subsection 20(2), the supervision of untrained personnel; and subsection 23(2), consulting persons with disabilities in the development of each training program. The Agency is of the view that applicants should be in a position to implement measures necessary to comply given the long-standing nature of many of these requirements, and the extensive lead time already provided to transportation service providers through the previous exemption order.

[62] Furthermore, while the applicants have argued that there are pandemic-related difficulties in delivering training due to, for example, social distancing requirements or some staff working off-site, the training of staff who provide services to persons with disabilities must be maintained and can largely be accomplished by using technological means, such as video conferencing.

[63] Taking the above information into consideration, the Agency finds that the applicants did not establish that meeting the training requirements reflected in sections 15 to 23 would cause them undue hardship.

Section 32 – 48 hour advance notices

[64] Motor Coach Canada was the only applicant to submit a request for a temporary exemption from this requirement. Prior to the ATPDR, bus carriers that are now subject to the ATPDR were expected to meet the standards set out in the Intercity Bus Code of Practice, which included both 24 and 48 hour advance notice provisions.

[65] This provision is among the exemption requests for which clarifications were provided during the working group meetings about what transportation service providers need to do to fulfill their obligations. Following the working group meetings, Motor Coach Canada acknowledged that the 96-hour advance notice period that it asked for in its temporary exemption request may be difficult for persons to provide, and indicated that it believes operators will be able to comply with the 48 hour requirement. For this reason, the Agency finds that an exemption from section 32 is not necessary or warranted.

Paragraph 35(c)(ii) – Permitting a non-travelling person/escort to accompany a person through the security screening process

[66] A request for a temporary exemption from this provision of the ATPDR was submitted by Air Transat due to concerns about the interpretation of this requirement. Air Transat sought clarifications as to whether it is the carrier’s choice as to how this requirement is met—i.e., where a carrier provides a member of personnel to escort a passenger through the security screening process, they would be in compliance. Following clarifications provided during the working group meetings about what transportation service providers need to do to fulfill their obligation under this provision, Air Transat agreed they could meet the requirement. For this reason, the Agency finds that an exemption from paragraph 35(c)(ii) is not necessary or warranted.

Sections 39, 81, 164 and 205 – Personal electronic device, and onboard entertainment for pre-existing aircraft, ferries, and buses

[67] Requests for temporary exemptions from these provisions were received from Air Transat, Marine Atlantic and Motor Coach Canada. During the working group meetings, both Air Transat and Marine Atlantic advised they were having challenges in obtaining comparable content offering closed captioning and audio description due to copyright distribution regulations. They also pointed to other logistical hurdles, including the need to charge the tablets between use and preloading content versus Wi Fi connectivity. Motor Coach Canada raised concerns with respect to the cost involved to implement this requirement.

[68] While Air Transat and Marine Atlantic raised challenges with respect to obtaining content for the personal electronic devices, they did not demonstrate that fulfilling the obligation would cause undue hardship.

[69] With respect to Motor Coach Canada’s assertion that its members will go bankrupt as a result of implementing these provisions, Motor Coach Canada has not provided the necessary evidence to substantiate this assertion.

[70] Accordingly, the Agency finds that the applicants did not establish that meeting the requirements of sections 39, 81, 164 and 205 would cause them undue hardship. 

Section 43 – Onboard storage for walkers or manual folding wheelchairs

[71] Air Transat is the only transportation service provider that submitted a temporary exemption request from this provision.  

[72] Section 43 requires that carriers make a reasonable effort to permit a person to store a walker or manual folding wheelchair on board an aircraft. Where it is not possible to do so due to reasons such as space constraints, carriers may accept the mobility aid for transport as priority checked baggage. In its submission, Air Transat raised concerns that it does not have sufficient storage space in the aircraft cabin to meet this requirement. Air Transat advised that it instead stows these wheelchairs in cargo.

[73] Following the clarifications that were provided during the working group meetings about what transportation service providers need to do to fulfill their obligation under this provision, Air Transat stated that it meets this requirement as it already makes a reasonable effort to stow equipment on board safely. For this reason, the Agency finds that an exemption from this provision is not necessary or warranted.

Section 57 – Onboard announcements

[74] Air Transat is the only transportation service provider that submitted a temporary exemption request from this provision.

[75] Similar to the public announcement requirements inside a terminal, while the applicants’ preference is to meet these requirements using an automated system, simpler means can be used to achieve compliance, such as hand-written signs or notes, or direct communication with the passenger.

[76] For this reason, the Agency finds an exemption is not necessary or warranted as the requirement can be met in a manner that does not cause undue hardship to the applicants.

Sections 58 and 59 – Written confirmation of services and retention of electronic copies

[77] Requests for temporary exemptions from sections 58 and 59 were made by NACC, Air Canada, Jazz, Airlines for America and the IATA. While the Agency recognizes that there are complexities involved with the IT infrastructure necessary to meet these requirements, the applicants have submitted no costing information, nor evidence of the impact of any cost on the applicants.

[78] For these reasons, the Agency finds that the applicants did not provide sufficient information or evidence to substantiate that the undue hardship threshold has been met.

Sections 75 and 78 – Tactile row markers and wheelchair accessible washrooms (technical requirements)

[79] Air Transat submitted a request for a temporary exemption from section 75, tactile row markers, and section 78, wheelchair accessible washrooms. The requirements for tactile row markers and wheelchair accessible washrooms are among the provisions from which exemptions were requested due to an incorrect assumption that the provisions are applicable to pre-existing aircraft.

[80] Subsection 66(1) of the ATPDR provides that the provisions of Division 1 of the ATPDR, which includes sections 75 and 78, do not generally apply to “pre-existing aircraft” and, based on the definition of this term in subsection 66(4), these requirements are generally only applicable to aircraft that have been purchased or leased from June 25, 2020, onward. The exception to this is contained in subsection 66(3) where any modified amenity or equipment used in a pre-existing aircraft must meet the technical requirements of the ATPDR.

[81] Following this clarification made at the working group meetings, applicants agreed that they could meet these requirements. For this reason, the Agency finds that exemptions from these provisions are not necessary or warranted.

Section 216 – Curbside assistance

[82] Section 216 of the ATPDR requires terminal operators, upon request of a person with a disability, to provide assistance with baggage or assistance with a wheelchair, including by providing a wheelchair if needed. Section 216 also requires terminal operators to, upon request, assist the person to proceed to the check-in area or a representative of a carrier, and between the general public area and the curbside zone.

[83] This provision is intended to address long-standing concerns from the community of persons with disabilities that they do not receive adequate assistance navigating through an airport or terminal, particularly between curbside and check-in.

[84] Applicants raised concerns about the resources needed to implement this requirement, such as available personnel and implementing infrastructure such as installing intercoms, telephones and signage. During the working group meetings, less costly means to meet this requirement were discussed, even if only as an interim measure, such as a phone number that passengers could call for assistance, provided the number is maintained at all times.

[85] Applicants also raised concerns with respect to COVID-19 and safety issues; however, these concerns can and will be mitigated, both through the use of masks and hand‑sanitizer and as the population is vaccinated.

[86] In light of the above, the Agency finds that the applicants did not demonstrate that fulfilling this obligation would cause undue hardship and, thus, that an exemption is not warranted.

Section 223 – Requirements for lift, ramp or stairs

[87] Aéroports de Montréal and Aéroport international Jean-Lesage de Québec raised concerns with respect to the resources needed to implement this provision due to the impact of the pandemic on passenger traffic and the resulting financial challenges. However, as noted previously, a cost, in and of itself, is not determinative of undue hardship, and, in any event, applicants did not provide cost estimates or other evidence to substantiate these assertions. In addition, the Agency notes that applicants have until June 25, 2022, to meet this requirement.

[88] As a result, the applicants did not demonstrate that fulfilling this obligation would cause undue hardship and the Agency, therefore, finds that an exemption is not warranted.

Section 225 – Requirements for wheelchairs

[89] The CAC, the GTAA, Aéroports de Montréal, Aéroport international Jean-Lesage de Québec and the Prince George Airport Authority raised concerns regarding the resources, both human and financial, needed to implement this requirement. However, the applicants did not substantiate these assertions with objective evidence. For this reason, the Agency finds that the applicants have not demonstrated that compliance with this requirement would impose an undue hardship. As a result, the Agency finds that an exemption is not warranted.

Section 227 – Provisions related to designated relief areas

[90] Requests for a temporary exemption from this provision were received from the CAC, Aéroport international Jean-Lesage de Québec, and the St. John’s International Airport Authority.

[91] Section 227 sets out the requirements for designated relief areas for service animals on both the secure and non-secure side of terminals.

[92] Prior to being incorporated into the ATPDR, terminal operators were expected to meet these standards as they were reflected in section 2.5 of the Passenger Terminal Accessibility Code of Practice (Terminal Code of Practice), published in 2007, which strongly encouraged terminal operators to ensure persons travelling with a service animal have access to a relieving area, including within secured areas for use between connections. The ATPDR reflects updated accessibility standards, such as providing signage.

[93] While the applicants may need to invest some resources into meeting the service dog relief area requirements in the ATPDR, the Agency is of the view that applicants should be in a position to implement measures necessary to comply with the provision, given the long-standing expectation that terminal operators would meet the requirements in the Terminal Code of Practice and that the installation of signage to designate a relief area under subsections 227(1) to (3) is not a significant undertaking. 

[94] As a result, the Agency finds that the applicants did not demonstrate that fulfilling this obligation would cause undue hardship and, thus, that an exemption is not warranted.

CONCLUSION

[95] Accessible transportation is a fundamental human right for persons with disabilities, and the ATPDR are an important tool for ensuring that this objective is met in the federal transportation network. A transportation service provider may only be relieved of its duty to make its services accessible if all options for doing so would cause it undue hardship, meaning that the removal of the barrier is impossible, impracticable or unreasonable.

[96] Given the importance of the human rights that are at stake, undue hardship is a high bar. Most accommodation comes at a cost and it is not enough for transportation service providers to simply make an assertion that a cost is too high. Evidence is required to support such assertions and the burden is on the transportation service providers to prove the existence of undue hardship.

[97] In the case of these requests for temporary exemptions from various provisions of the ATPDR, in some instances, it became clear during the working group meetings that the requests stemmed from an incomplete or inaccurate understanding of the regulatory requirement, or that there were other less onerous, less costly means to meet the requirement. In other instances, the applicants made assertions that the cost to them of complying with the provisions is too high; however, the Agency has found that, in all instances, either no evidence was provided to substantiate their assertions or the evidence provided was insufficient to justify setting aside these important human rights obligations. In addition, the Agency also considered the time that transportation service providers have had to implement the ATPDR since it was registered in June 2019, both before the pandemic struck and through the temporary exemptions previously provided, and has weighed the time and complexity involved in securing Governor-in-Council approvals for exemptions from the ATPDR against the fact that the Agency’s compliance policy focuses on education before issuing notices of violation and administrative monetary penalties and has concluded that exemptions would be inappropriate in the circumstances.

[98] Considering the information on the record, the Agency finds that the applicants did not demonstrate that meeting the requirements of the ATPDR provisions from which temporary exemptions have been sought would cause undue hardship.

[99]
In light of the above, the Agency dismisses the exemption applications.

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APPENDIX TO DETERMINATION NO. AT-2021-151

Industry: 

• Canadian Airports Council;
• Greater Toronto Airports Authority;
• Calgary Airport Authority;
• John C. Munro Hamilton International Airport;
• Thunder Bay International Airports Authority Inc.;
• Erik Nielsen Whitehorse International Airport;
• Skyxe Saskatoon Airport;
• Aéroport international Jean-Lesage de Québec;
• National Airlines Council of Canada
• Sunwing Airlines;
• Air Transat;
• Air Canada;
• Jazz Aviation;
• WestJet;
• Air North;
• International Air Transport Association;
• Air Transport Association of Canada;
• Airlines for America;
• Marine Atlantic; and
• Motor Coach Canada.

Disability rights organizations:

• National Pensioners Federation;
• Confédération des organismes de personnes handicapées du Québec;
• Barrier-Free Canada;
• Canadian National Institute for the Blind;
• Council of Canadians with Disabilities;
• National Coalition of People who use Guide and Service Dogs;
• Spinal Cord Injury Canada;
• Alliance for the Equality of Blind Canadians; and
• Canadian Council of the Blind.