Interpretive Decision – Accessibility-related Applications

Decision No. 33-AT-A-2019

INTERPRETIVE Decision – Applications made pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).

On June 21, 2019 the CTA issued an interpretive decision (33-AT-A-2019) to inform passengers, transportation service providers, organizations representing persons with disabilities, and Canadians in general of the CTA's updated approach to applications made pursuant to subsection 172(1) of the Canada Transportation Act.

In the past, the CTA used a three-part approach with accessibility-related applications, consisting of a disability determination, an obstacle (now “barrier”) determination and an undueness determination. The CTA's interpretive decision recast its three-part approach as a two-part approach to better reflect the two-part analysis of human rights jurisprudence.

The interpretive decision establishes that during Part 1 of the proceedings, the applicant has the onus of demonstrating, on a balance of probabilities, that they have a disability and faced a disability-related barrier.

During Part 2 of the proceedings, the onus shifts to the respondent to:

• explain, taking into account any proposals from the applicant, how the respondent proposes to remove the barrier through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or, if a general modification is not feasible, an individual accommodation measure; or
• demonstrate, on a balance of probabilities, that it cannot remove the barrier without experiencing undue hardship.

The respondent must carefully consider all options for removing a barrier before making a claim that it cannot do so without experiencing undue hardship.

The interpretive decision also reflects the amendments to the Canada Transportation Act introduced by the Accessible Canada Act, which sets out that the CTA's new remedial powers include the authority to award compensation for lost wages, pain and suffering, and the authority to award compensation if the barrier was the result of a willful or reckless practice.