Accessible Transportation Complaints: A Resource Tool for Persons with Disabilities

Table of Contents

Introduction

This resource tool provides information on how to file a complaint regarding an "undue obstacle" experienced by a person with a disability in the federal transportation network. It explains the approaches the Canadian Transportation Agency uses in resolving accessible transportation complaints.

About the Canadian Transportation Agency

The Canadian Transportation Agency (Agency) is an independent, quasi-judicial tribunal and economic regulator of the Government of Canada. The Agency makes decisions on a wide range of matters involving air, rail and marine modes of transportation under the authority of Parliament. For certain accessibility matters, the Agency also has jurisdiction over extra-provincial bus transportation.

Accessible transportation mandate

Part V of the Canada Transportation Act provides the Agency with a human rights mandate to eliminate undue obstacles to the mobility of persons with disabilities in the federal transportation network to ensure that persons with disabilities have equal access to transportation services. 

In exercising its human rights mandate, the Agency applies the fundamental principle of equality and balances the right of persons with disabilities to be provided with services that meet their disability-related needs with the service provider's operational, commercial and regulatory responsibilities. 

The Agency eliminates undue obstacles in three ways:

  1. by developing, and monitoring compliance with, regulations, codes of practice and standards concerning the level of accessibility in modes of transportation under federal jurisdiction (see the Reference information section);
  2. by eliminating problems before they occur by responding to pre-travel inquiries and by educating persons with disabilities and service providers regarding their rights and responsibilities; and
  3. by resolving complaints on a case-by-case basis using an approach that is consistent with that used for identifying and remedying discrimination under human rights law.

Jurisdiction

The Agency's responsibility to resolve accessible transportation problems is limited to circumstances where the problem encountered:

  1. relates to a person's disability; and
  2. occurred in the federal transportation network.

The Agency's jurisdiction applies to:

  • air carriers operating within, to, or from Canada;
  • airports located in Canada;
  • passenger rail carriers, ferry operators, and bus operators providing services between provinces and/or between Canada and the United States, and their stations or terminals located in Canada; and
  • services that are integral to the transportation services provided by a carrier or at a station or terminal located in Canada.

The Agency is an independent, quasi-judicial tribunal with the mandate of administering the regulatory provisions affecting the modes of transportation under the authority of Parliament, as set out in the Canada Transportation Act (CTA) and other legislation.

Part V of the CTA provides the Agency with the human rights mandate to eliminate undue obstacles to the mobility of persons with disabilities in the federal transportation network and ensure that persons with disabilities have equal access to transportation services.  This includes accessible transportation complaints.

The Agency's responsibility to resolve accessible transportation problems is limited to situations where the problem was related to a person's disability and occurred in the federal transportation network. 

When we refer to the federal transportation network, we are talking about the Agency's jurisdiction.  The Agency's jurisdiction applies to:

  • air carriers operating within, to, or from Canada;
  • airports located in Canada;
  • passenger rail carriers, ferry operators, and bus operators providing services between provinces and/or between Canada and the United States, and their stations or terminals located in Canada; and
  • services that are integral to the transportation services provided by a carrier or at a station or terminal located in Canada.

Resolving accessible transportation problems

Resolving problems with the transportation service provider

Persons with disabilities who require accommodation are expected to:

  • make their disability-related needs known to the service provider;
  • give the service provider adequate notice of their disability-related needs;
  • provide a reasonable opportunity for the service provider to provide the required accommodation (for example, persons with disabilities may have to arrive at a station or terminal earlier in order to allow time for assistance with boarding, and may be required to wait for deboarding assistance); and
  • take necessary measures to mitigate accessibility issues as they do in their daily living. 

Persons with disabilities may refer to the Agency's publication Take Charge of Your Travel: A Guide for Persons with Disabilities for guidance in planning a trip, anticipating the questions and preparing for the challenges that travel can present.

However, sometimes even the best-planned trip can go wrong. If a problem arises or you have a concern related to your trip, let the transportation service provider know. Often, a discussion is all that is required to fix the problem or address the concern.

Keep your receipts and documents, and a record of who you talked with and when. It's a good idea to write a description of what happened as soon as you can, while the details are still fresh in your mind.

Responsibilities of service providers

With respect to persons with disabilities travelling within the federal transportation network, service providers have the responsibility to:

  • ensure that persons with disabilities have equal access to federal transportation services;
  • accommodate persons with disabilities, up to the point of undue hardship;
  • provide accommodation in a manner that respects the dignity of persons with disabilities; and
  • provide accommodation which considers persons’ unique disability-related needs.

Contacting the Agency to resolve problems

Before filing a complaint with the Agency, you are encouraged to contact your transportation service provider and allow them 30 days to respond.

If you have tried to resolve your problem with the transportation service provider and aren't satisfied with the result, you may file a complaint with the Agency to initiate one of the Agency's dispute resolution processes. Our staff can facilitate a conversation with the transportation service provider, which can help to address the concern.

How do I file a complaint with the Agency?

To file a complaint, you need to complete the Agency's disability-related complaint form.

In some cases, additional information may be required to complete your application.

The Agency's disability-related complaint form specifies the minimum information required:

  • contact information;
  • representative information and authorization (if applicable);
  • specific information relating to your disability;
  • reservation information;
  • reservation agent (if applicable);
  • disability-related disclosure, that is, the information about your disability and related needs which was provided to the transportation service provider prior to travel;
  • ticket information; and
  • complaint details. 

When should I file a complaint?

You should act as soon as possible after the incident since it may be difficult to substantiate allegations or obtain records after significant time has passed. In addition, an excessive delay may create an unreasonable burden on the service provider to adequately respond to the complaint.

Do I need to hire a lawyer/representative?

Although you are not required to be represented by a lawyer, you may, of course, hire or consult a lawyer if you wish. You may also choose to be represented by another person, including a family member or friend. If this is the case, you must provide the Agency with written authorization for the representative to act on your behalf.

If the representative provides a description of an incident that he or she did not witness, either in the initial complaint or subsequently, you must also confirm, in writing, that the representative's descriptions are factual. In some cases, you may be required to testify personally or to provide an affidavit.

Options to resolve your complaint

The Agency offers a number of dispute resolution options, ranging from informal (facilitation and mediation) to formal (adjudication). These options are discussed below.

Option 1: Facilitation

Facilitation is a voluntary process that involves an Agency employee having informal discussions with you and the service provider separately (or together, if desired), with the goal of developing your own solutions to the issues in dispute. Agency employees have extensive knowledge of accessible transportation issues and they can offer this expertise to define the issues involved, which may clear the way for a solution.

The Agency facilitator will email the application to the service provider and provide it with an opportunity to investigate internally to see whether the problem can be resolved through facilitation. Once the service provider has had a chance to look into the matter, the facilitator can have a discussion with the parties. The facilitator will inform them of the relevant legislation, regulations and guidelines, and may refer to previous Agency decisions which dealt with similar issues. The facilitator will share information, with the consent of the parties, to ensure that each is fully aware of the other's position.

Parties are encouraged to have open discussions. If the dispute isn't resolved through facilitation, any discussions that were intended to lead to settlement of the dispute are inadmissible as evidence in formal adjudication – these discussions cannot form part of the record unless the parties agree otherwise. This rule is to help encourage more open discussions.

In order to assist the parties in reaching a solution, Agency employees strive to resolve matters through facilitation within 30 calendar days.

If this process results in a mutually satisfactory solution, the file will be closed. However, if facilitation is not successful, or only partially successful, you may choose to request mediation or formal adjudication.

Option 2: Mediation

Mediation is an informal, voluntary and confidential process that promotes open and respectful communication. A neutral and impartial mediator will assist you and the service provider in negotiating a mutually satisfactory settlement. The mediators have no decision making powers. Agency employees who are qualified mediators and experienced in the transportation sector and accessible transportation matters are appointed by the Chair of the Agency to manage the mediation process.

Mediation allows the parties to clarify and prioritize the issues in dispute, express their views, examine their interests and concerns, explore a variety of creative options, and develop their own solutions in a timely and cost-effective manner. Mediation is an informal alternative to adjudication. However, it’s still a structured process with requirements that the parties must follow. For instance, it must be completed within a 30 calendar days, unless the parties agree otherwise.

One of the key differences between facilitation and mediation is that mediation involves direct interaction between the parties, via face-to-face discussions or conference calls, whereas in facilitation, the facilitator usually communicates with each party separately. This direct interaction allows the parties to fully express their perspectives on the dispute while actively listening to each other. During the mediation sessions, the mediator will help parties explore their interests in regards of the issues at hand and help them to generate solutions that will be mutually satisfactory to all parties. The parties themselves will decide on the outcome; the mediator is there only to guide the discussion as a neutral 3rd party and has no decision making power.

If an agreement is reached, the parties or the Agency mediator will draft a settlement agreement that will be signed by all parties – a settlement in mediation leads to a binding and final contract. Mediators will not provide advice on the legal implications of the agreement, but parties are free to seek legal advice should they feel there is a need. Any full or partial settlement that is agreed upon by both parties through mediation and filed with the Agency is enforceable as if it were an order of the Agency.

If no settlement or only a partial settlement is reached, any remaining issues may be addressed by the Agency through the adjudication process; the Mediator will not participate in this process and cannot be compelled to do so. The discussions held, as well as any documents, including reports and notes, created during the mediation process remain confidential and cannot be disclosed in the formal adjudication process.

Either party may request to have a dispute settled through mediation by making a written request to the Agency. If you initiate the request, you should include a brief outline of the dispute, identify the issue(s) and provide relevant supporting documents. This information will be sent to the other party to help them determine whether they are willing to resolve the dispute through mediation.

To learn more about mediation, read Resolution of Disputes through Mediation – A Resource Tool.

Option 3: Formal adjudication

In the Agency's formal adjudication process, a Panel consisting of one or more Agency Members is appointed to consider your complaint. The Panel reaches its decision through a process similar to that of a court.

During this process, each party is given an opportunity to present their case to the Panel by public proceedings which result in the issuance of a public decision (see the sections on Confidentiality and Privacy). The Agency may impose corrective measures to eliminate undue obstacles and order the reimbursement of related expenses but the Agency does not have the power to award compensation for pain, suffering or loss of enjoyment (see the section on Corrective measures).

Once the Agency receives your complete complaint, it will set a timeline for the service provider to file its answer and for you to reply.

In rendering a decision, the Panel members will assess the evidence in light of the legislation and any applicable regulations and legal principles. For less complex cases, the Agency strives to issue its decision within 85 business days after the filing of a complete complaint. For more complex cases, additional time may be required and in such instances, the Agency's objective is to issue its decision within 65 business days after all of the requested information is filed and the exchange of pleadings has ended.

Most cases are conducted in writing; however, oral hearings may be held in cases where the Panel considers it appropriate to do so.

Steps in adjudicating an accessible transportation complaint

The Agency's process for resolving complaints through formal adjudication involves the following steps:

  • Step 1: First, Agency considers whether you are a person with a disability for the purposes of the CTA.

  • Step 2: Second, you must establish that you have encountered an "obstacle." To demonstrate this, you must show that you needed, and were not provided with, accommodation. The source of the obstacle may be a rule, policy, practice, physical barrier, etc. that has the effect of denying you equal access to services available to others in the federal transportation network).

  • Step 3: Third and lastly, the Agency assesses whether the obstacle can be removed through a general modification to the rule, policy, practice, or physical structure, or, if a general modification is not feasible, by provision of an accommodation measure, without causing the transportation service provider undue hardship.  If this is possible, action will be required.  If it is not, action will not be required.   At this stage, the burden of proof shifts to the service provider to establish that the person’s disability-related needs cannot be accommodated without incurring undue hardship. 

Step 1. Are you a person with a disability for the purposes of Part V of the CTA?

In accordance with the World Health Organization's (WHO) International Classification of Functioning, Disability and Health (ICF) publication, the Agency views a disability as comprising three dimensions: impairment, activity limitation and participation restriction. The Agency's decision precedents require that all three dimensions must be established in order for a disability to exist for the purposes of Part V of the CTA.

Decision No. 4-AT-A-2010 (paras. 28-46) provides an example of how the Agency considers the disability dimensions of impairment, activity limitation and participation restriction.

Impairment

The ICF defines impairment as a loss or abnormality of a body part (i.e., structure) or the loss or deviation in body function (i.e., physiological function). The existence of an impairment may be temporary or permanent.

To determine whether a person's health condition qualifies as an impairment, the Agency uses the ICF, other related WHO publications such as the International Classification of Diseases and Related Health Problems, and/or medical documentation.

Activity limitation

Activity limitation, as defined in the ICF, is a difficulty an individual experiences while executing activities. The activity limitation associated with an impairment therefore relates to the presence of symptoms and resulting difficulties, irrespective of context. 

The ICF states that an activity limitation may range from a slight to a severe deviation in terms of quality or quantity in executing an activity in a manner, or to the extent, that is expected of people without the impairment.

An activity limitation does not need to fall at the extreme end of this spectrum, although for the purposes of the Agency's determination of disability, the activity limitation must be significant enough to result in an inherent difficulty in executing a task or action. For example, in the case of an allergy (the impairment), symptoms such as "sniffles" would be something at the lower end of the spectrum while other symptoms such as asthma may fall somewhere between the middle and the most severe end of the spectrum.

Participation restriction

The ICF defines participation restriction as a problem an individual may experience in involvement in life situations.

Unlike an activity limitation, a participation restriction depends on the context – in this case, the federal transportation network. The Agency therefore determines the existence of a participation restriction by comparing the individual's access to the federal transportation network with that of an individual without the related activity limitation. 

A person's impairment and related activity limitation may result in a participation restriction in some contexts. However, this does not mean that the person will necessarily experience a participation restriction in using the federal transportation network. For example, a person with a heart condition may experience a participation restriction in terms of being part of a sports team, but they may not necessarily experience a participation restriction while traveling.

Burden of proof

It is your responsibility to provide sufficiently persuasive evidence to establish the existence of a disability in terms of impairment, activity limitation and participation restriction.

The standard which applies to this burden of proof is the balance of probabilities.

Evidence required

The extent and nature of the evidence which must be produced to meet a person's burden of proof will vary from case to case. When the impairment, activity limitation and participation restriction experienced by a person are obvious, a common sense approach and the person's own account of their condition will be sufficient to establish that the individual is a person with a disability for the purposes of Part V of the CTA (e.g., a person who is paraplegic). 

In some cases, a person's own assessment of their disability may not suffice and supporting evidence may be required. In cases where a person's disability is not obvious or when there is a spectrum for the activity limitation that ranges from mild to severe (e.g., an allergic reaction), evidence from a qualified health care professional and/or an opinion from an informed expert, or other evidence, may be required.

If the Agency requires evidence from your physician/medical health professional, you will be asked to submit a disability assessment form. This evidence may be challenged by the service provider and, in such instances, the Panel of Agency Members will determine whether the evidence is sufficient to establish the existence of a disability.

Decision Nos. 4-AT-A-2010 (paras. 28-46) and 685-AT-A-2005 (paras. 50-52) provide examples of the evidence required to establish the existence of a disability.

Decision Nos. 370-AT-A-2009 (paras. 36-51) and 366-AT-A-2010 (paras. 18-28) provide examples of cases in which the applicant did not produce enough evidence to establish the existence of a disability. The applications were therefore dismissed.

Step 2. Did you encounter an obstacle?

The Agency views an obstacle in the federal transportation network as being a rule, policy, practice, physical structure, etc. that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network. 

The Agency has the power to investigate and eliminate undue obstacles to the mobility of persons with disabilities, including instances where an incident has not yet occurred but the removal of a potential obstacle could eliminate its future occurrence. For example, the Agency has jurisdiction to make accessibility determinations regarding equipment in the design stage.

For an obstacle to exist, the problem must be related to the person's disability such that, for example, a customer service issue does not become an obstacle merely because it is experienced by a person with a disability.

Decision No. 120-AT-MV-2011 provides an example of a case where the Agency determined that the alleged obstacle was not related to a person's disability and, as a result, no obstacle existed.

Burden of proof

It is your responsibility to provide sufficiently persuasive evidence to establish that you have faced an obstacle. The standard of evidence which applies to this burden of proof is the balance of probabilities.  

Step 3. Was the obstacle undue?

An obstacle is undue unless the service provider can justify its existence. Once the Agency has determined that a person with a disability has encountered an obstacle, the service provider may either:

  • provide an accommodation measure meeting the disability-related needs of the person. OR
  • justify the existence of the obstacle by demonstrating that it cannot provide an accommodation measure meeting the disability-related needs of the applicant  without incurring undue hardship. If it fails to do so, the Agency will find that the obstacle is undue and order corrective measures to ensure that appropriate accommodation is provided.

There are situations where a variety of accommodation measures may meet a person's disability-related needs. The accommodation measure doesn't have to be exactly what the person requests, but it must be effective.

Decision No. 222-AT-A-2008 provides an example of how the Agency determined that the accommodation sought by the applicant went beyond the transportation service provider's duty to accommodate.

A transportation service provider is entitled to choose the least costly, disruptive or burdensome means of accommodation when it is equally responsive to the person's disability-related needs.

However, in situations where different means of accommodation are equally responsive and are neither less costly, disruptive or burdensome for the service provider, the person with a disability should be entitled to choose their preferred means of accommodation.

Justifying the existence of the obstacle

In situations where the service provider is of the view that it cannot provide an accommodation measure that is responsive to the needs of the person with a disability, it must justify the existence of the obstacle. The test that a service provider must meet in order to justify the existence of an obstacle consists of three elements. The service provider must demonstrate that:

  1. the source of the obstacle is rationally connected to the provision of the transportation service;
  2. the source of the obstacle was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; AND
  3. it cannot provide any form of accommodation without incurring undue hardship. 

Burden of proof

It is the responsibility of the service provider to provide sufficiently persuasive evidence to establish on a balance of probabilities that the obstacle is justified (i.e., that to provide any form of accommodation would result in undue hardship).

If a service provider meets this burden of proof, the Agency will find that the obstacle is not undue and will not order any corrective measures. 

Evidence required

Generally, minimal evidence is necessary to address the first two elements of the test to justify the existence of the obstacle.

However, for the third element of the test, the threshold to establish undue hardship is high, given that the fundamental right of persons with disabilities to have equal access to the federal transportation network is at issue.

To establish undue hardship, the service provider must demonstrate that there are constraints which make the removal of the obstacle either unreasonable, impracticable or impossible, such that to provide any form of accommodation would cause undue hardship. These may include constraints such as those relating to: safety, operational realities, financial and economic implications, and physical or structural limitations. 

Mere statements without direct, verifiable, and objective supporting evidence are not sufficient to establish undue hardship. On several occasions, the Supreme Court of Canada has reaffirmed the principle that persons with disabilities cannot be denied equal access, unless concrete evidence of undue hardship is produced by the service provider.

It is the service provider, as part of its duty to accommodate, who is responsible for identifying and providing the service/measure that will be required to meet the applicant's needs. In some cases, the required service/measure is obvious. For example, a person with quadriplegia will necessarily require transfer assistance to travel by air. In other cases, however, additional evidence may be required to identify the specific service/measure such as when it involves issues outside the Agency's specialized knowledge and expertise.

Corrective measures

Should the Agency find that an undue obstacle exists, it has the power to order the service provider to take corrective measures to address it. The Agency may also direct that any expenses resulting from the undue obstacle be reimbursed. However, the Agency cannot order compensation for pain, suffering or loss of enjoyment.

Decision No. 551-AT-A-2008 provides an example of a case where the Agency ordered the reimbursement by a service provider of expenses after an undue obstacle finding.

The Agency may also order corrective measures to address underlying systemic issues. For example, the Agency has required transportation service providers to: amend their tariffs, policies and procedures, develop or amend training programs, train personnel, purchase equipment, provide services, and communicate information.

Decision No. 336-AT-A-2008 provides an example of a case where the Agency ordered the service providers to amend their policies in order to remove undue obstacles to persons with disabilities.

Enforcement of Agency decisions

Agency decisions and orders are enforceable, similar to a ruling of the Federal Court of Canada or a superior court of any province. Further, administrative monetary penalties can be levied against service providers who do not comply with the Agency's decisions or orders.

Award of costs incurred as a result of participating in the adjudication of a complaint

The Agency may award costs in any proceeding before it. As a general rule, costs are awarded only in special or exceptional circumstances. 

In making its determination on costs in a given case, the Agency will consider a combination of factors such as the nature of the complaint, the length and complexity of the proceedings, costs associated with participating at an oral hearing, whether parties have not acted efficiently or in good faith, and if a party has incurred extraordinary costs to prepare and/or defend the complaint. 

Appeal and review of Agency decisions

Should a party disagree with an Agency decision, there are two options for contesting the decision:

  1. Under section 41 of the CTA, a party can apply to the Federal Court of Appeal within 30 days of the issuance of an Agency decision for leave to appeal the decision on a question of law or jurisdiction; and
  2. Under section 40 of the CTA, a party can petition the Governor in Council to vary or rescind any decision made by the Agency.

In addition, under section 32 of the CTA, the Agency may review, rescind or vary any decision or order made by it or may re-hear any complaint before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

In dealing with an application for review, the Agency must first determine whether there has been a change in facts or circumstances pertaining to the decision. If no such change exists, the decision stands. If, however, the Agency finds that there has been a change in facts or circumstances since the issuance of the decision, it must then determine whether such a change is sufficient to warrant a review, rescission or variance of the decision.

The burden of proof rests on the party requesting the review of the decision to demonstrate to the Agency both aspects: that there has been a change in facts or circumstances since the decision and that the change is of sufficient importance to be expected to result in a variance of the decision.

If a fact was known to the person or discoverable through exercise of due diligence at the time of the initial application, it cannot constitute a change in facts or circumstances.

General information

Official languages

Written information may be submitted to the Agency in either English or French.

Confidentiality

All documents filed with the Agency become part of the public record and may be made available for public viewing. However, in accordance with the Agency's rules of procedure, a request for confidentiality can be made.

Privacy

Decisions are posted on the Agency's website and include the names of the parties involved, as well as witnesses.

Reference information

Agency contact information

Applications and submissions relating to complaints must be sent to the Secretariat of the Canadian Transportation Agency.

For more information, please contact us.

Date modified: