Accessible Transportation Complaints: A Resource Tool for Persons with Disabilities

Other formats:

Table of Contents

Introduction

 A summary of this section is available in accessible video (ASL, captioning and voice-over)

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 Agency uses in resolving accessible transportation complaints.

Throughout this publication, key terms have been linked to for quick reference in the Glossary at the end.

About the Canadian Transportation Agency

The Canadian Transportation 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 terminal located in Canada.
Transcript: Overview: the Canadian Transportation Agency's accessible transportation complaints process

The Canadian Transportation Agency (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:

  • Airlines operating within Canada, or to or from Canada
  • Airports within Canada;
  • Passenger rail companies, ferry companies and bus companies that are providing services between provinces within Canada or between Canada and the United States. This would also include their stations or terminals in Canada.
  • Finally, the Agency's jurisdiction also applies, in some circumstances, to services that are related to the transportation services provided by a carrier or terminal in Canada.

Resolving accessible transportation problems

 A summary of this section is available in accessible video (ASL, captioning and voice-over)

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 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 must 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 (available through the complaint wizard).

Once the Agency has received the completed form, an employee will contact you to discuss options to address your complaint. In some cases, additional information may be required.

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 they 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.

Transcript: Resolving your accessible transportation issue

Service providers have the responsibility to ensure that persons with disabilities have equal access to federal transportation services by providing accommodation up to the point of undue hardship, and in a manner that respects the dignity of persons with disabilities.

Before you travel, make sure you provide your service provider with enough notice so that they can make the proper arrangements to accommodate your disability-related needs. For example, you may be travelling with a service animal, or may require a buffer zone due to a peanut allergy. If this is the case, make sure you provide advance notice to the service provider. You should give them a reasonable timeframe to arrange for your required accommodations, usually 48 hours.

Sometimes, even the best planned trip can go wrong.  If you encounter a problem or you have concerns related to your trip, let the transportation service provider know right away. Often a discussion is all that is required to fix the problem.

Make sure to keep all your receipts and documents. You should also keep a record of who you talked with and when.  Also, write a description of what happened as soon as you can, while the details are still fresh in your mind.

How to file a complaint

Before filing a complaint with the Agency, you should first try to solve the issue with the transportation service provider by making them aware of your complaint and allowing them 30 days to respond. Direct contact is often the most effective way to resolve a complaint.

If you have tried to resolve the issue with the service provider and aren't satisfied with the result, you can file an application with the Agency by using the complaint wizard,available on the Agency's website at www.otc-cta.gc.ca under the Complaints and Disputes tab or by submitting an email to info@otc-cta.gc.ca.

You don't need a lawyer to file your complaint, although you can if you wish to do so.   You can also choose to be represented by another person, such as a family member or friend but first, you must provide the Agency with written authorization for that person to act on your behalf.

Once the Agency has received your application, an employee will contact you to discuss options to address your complaint.

Options to resolve your complaint

 A summary of this section is available in accessible video (ASL, captioning and voice-over)

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 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. They can offer their expertise and help to define the issues involved, which may clear the way for a solution.

Once both parties agree to facilitation, the Agency Facilitator will begin discussions with each party, usually by telephone or e-mail. The Facilitator will share information, with the consent of the parties, to ensure that each is fully aware of the other's position. The Facilitator will inform the parties of the relevant legislation, regulations and applicable guidelines, and may refer to previous Agency decisions which dealt with similar issues.

The facilitation process addresses concerns parties may have regarding the sensitivity of documents or information exchanged during a facilitation.

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 and collaborative process in which an Agency-appointed mediator works with you and the service provider to try to reach a solution.

The main difference 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. Similar to a Facilitator, a Mediator is impartial and will assist the parties in prioritizing and addressing all issues to be mediated and in reaching a settlement. 

A matter that is referred to mediation must be completed within 30 calendar days, although this deadline may be extended if all parties agree.

Regardless of the outcome of the mediation, all matters relating to the mediation remain confidential – unless the parties agree otherwise. This allows you and the service provider to express your views openly and helps to develop an honest and trusting relationship.

To have a dispute settled through mediation, a request for mediation form must be submitted. The Agency will then contact the service provider to determine whether it is willing to have the dispute resolved through mediation. As part of your request, you should include a brief outline of the dispute, identify the issue(s) and provide relevant supporting documents. This information should also be sent to the other party.

One, or in some cases two, Agency employees who are qualified Mediators and experienced in the transportation industry and accessible transportation matters will be appointed to your case.

The Mediator will contact you to discuss the Mediation Ground Rules, the process for exchanging information, the time and location of the mediation, as well as any other relevant matters.

During the mediation sessions, the parties will attempt to reach an agreement on the facts and issues and will explore options for resolving areas of disagreement. The parties themselves will decide on the solution; the Mediator is there only to guide the discussion.

Once an agreement is reached, the parties are responsible for drafting and signing a settlement agreement. Mediators will not provide advice on the legal implications of the agreement. 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 formal adjudication; the Mediator will not participate in this process. 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 adjudicative process.

To learn more about mediation, please visit the Agency’s website where you will find specific resource tools and information on the Agency’s mediation processes.

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 identify the issue(s) to be decided and 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 settled through written arguments; however, public hearings may be held for cases that are more complex, have a public interest element, or require expert evidence.

Steps in adjudicating an accessible transportation complaint

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

  • Step 1: First, you must establish that you are a person with a disability for the purposes of the Act.
  • 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 must determine whether the obstacle is an "undue obstacle" and whether corrective measures are therefore required to eliminate it. An obstacle will not be undue if the service provider can justify its existence. This requires the service provider to establish that it cannot accommodate your disability-related needs without incurring undue hardship.

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

In accordance with the World Health Organization's (WHO) publication International Classification of Functioning, Disability and Health (ICF), 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 Act.

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 Act (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.

Figure 1: The Agency's process for making disability determinations

Figure 1: Making Disability Determinations, text version available via the link below

Figure 1 - Text Version: The Agency's process for making disability determinations

Step 2. Did you encounter an obstacle?

The Agency views an obstacle in the federal transportation network as being a rule, policy, practice, physical barrier, etc. which is either:

  • direct, i.e., applies to a person with a disability;
    OR
  • indirect, i.e., while the same for everyone, has the result of withholding a benefit from a person with a disability;
    AND
  • denies a person with a disability equal access to services that are available to others such that accommodation is required from the service provider.

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.

Service providers have a duty to accommodate persons with disabilities. A person with a disability will face an obstacle to their mobility if they demonstrate that they need – and were not provided with – accommodation, thereby being denied equal access to services available to others in the federal transportation network.

When determining if an obstacle to the mobility of a person with a disability exists, the Agency is, in essence, establishing whether their disability-related needs were met.

A service or measure that is required to meet a person's disability-related needs is referred to as "appropriate accommodation." If it is determined that the person was provided with appropriate accommodation, it cannot be said that they have encountered an obstacle.

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.

Service providers will meet their duty to accommodate if the accommodation that is provided results in an equal opportunity for the person with a disability to benefit from the same level of transportation services afforded to others.

Decision No. 4-AT-A-2010 provides an example of a case where the Agency made a determination of appropriate accommodation that was not the applicants' preferred form of accommodation. 

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.

Service providers should be 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.

Decision No. 245-AT-A-2010 provides an example of a case where the applicant was entitled to choose which means of appropriate accommodation she preferred.

However, Decision No.184-AT-A-2011 provides an example of a case where the service provider was entitled to choose an equally responsive accommodation.

During this step, the Agency does not consider the ability of the service provider to provide the appropriate accommodation. Any constraints which may affect the service provider's ability to provide a service or measure will only be assessed at step 3 (see below).

Burden of proof

It is your responsibility to provide sufficiently persuasive evidence to establish your need for accommodation and to prove that this need was not met. The standard of evidence which applies to this burden of proof is the balance of probabilities.  

Evidence required

In its determination, the Agency will consider all relevant evidence regarding your disability, your disability-related needs, and the service/measure to be provided. 

It is important to know that the responsibility for establishing a need for accommodation lies with you. However, 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 your 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.

Figure 2: The Agency's process in making an obstacle determination

Figure 2: Making an obstacle determination, text version via link below

Figure 2 - Text Version: The Agency's process in making an obstacle determination

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 the appropriate accommodation or offer an alternative that is equally responsive in meeting the disability-related needs of the person. In such a case, the Agency will determine what corrective measures are required to ensure that the appropriate accommodation is provided. (See the section on Corrective measures).

OR

  • justify the existence of the obstacle by demonstrating that it can neither provide the appropriate accommodation nor any other form of accommodation 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 accommodation is provided.

Decision No. 336-AT-A-2008 provides an example of a case where a service provider accepted to implement the appropriate accommodation.

Justifying the existence of the obstacle

In situations where the service provider is of the view that it cannot provide the accommodation that's 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, economic and financial 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.

Figure 3: The Agency's process in making an undue obstacle determination

Figure 3: Making an undue obstacle determination, text version via the link below

Figure 3 - Text Version: The Agency's process in making an undue obstacle determination

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 Act, 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 Act, 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 Act, 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.

Transcript: Options to resolve your accessible transportation complaint with the Canadian Transportation Agency

The Agency offers three options to resolve your complaint, ranging from the informal methods of facilitation and mediation, to the formal adjudication process.

Now I will provide a brief explanation of each of the three options for resolving your complaint.

Option 1: Facilitation

Facilitation involves an Agency employee offering their expertise by having discussions with you and the service provider, separately, to help define the issues involved, which may clear the way for a solution. This is the most informal, and fastest, of the three methods of resolving complaints.

Once both parties agree to facilitation, the Agency facilitator will begin discussions with each party, either by telephone or by email. The facilitator assigned to your file will provide you with information on the relevant legislation, regulations and applicable guidelines, and may also refer to previous Agency decisions which dealt with similar issues.

With your consent, your application will be shared with the service provider to ensure that it is fully aware of the issues you would like addressed.

Almost any reasonable request can be put forward to the service provider in facilitation, however, should the case move to the formal process, the Agency does not have the power to award compensation for pain, suffering, or loss of enjoyment.  Addressing a complaint via facilitation may allow for an outcome that would not be possible through formal adjudication.

The Agency strives to resolve matters through facilitation within 30 calendar days.

If your complaint is not successful in facilitation or only partially successful, you may choose to request mediation or formal adjudication.

Option 2: Mediation

Mediation is also an informal process where an Agency mediator is assigned to assist both you and the service provider in addressing all issues through negotiation. Similar to a facilitator, a mediator must ensure that impartiality is maintained throughout the discussions, and must not provide strategic coaching to individual parties.

A mediator will assist parties with prioritizing and addressing issues raised in an application and in reaching a settlement. However, mediators have no decision making powers. 

Mediation is different from facilitation in that it involves direct interaction between the parties, either through a face-to-face meeting or by teleconference. This process gives you and the service provider an opportunity to express your views on the issue at hand, examine your concerns, explore some options, and develop your own solutions in a timely and cost-effective manner.  

Mediation is an informal alternative to the Agency's formal decision making process. However, it’s still a structured process with requirements that both parties must follow. For instance, it must be completed within a 30-day statutory deadline after the dispute is referred for mediation, unless the parties to the dispute agree otherwise.

To have your dispute settled through mediation, you must submit a complaint to the Agency using our complaint wizard,available on the Agency's website at www.otc-cta.gc.ca under the Complaints and disputes tab or by submitting an email to info@otc-cta.gc.ca. Cases referred to mediation are transferred outside of the Accessible Transportation Directorate and are handled by the Alternative Dispute Resolution Directorate. 

Once your application is received, one, or in some cases two, Agency employees who are qualified mediators and experienced in the transportation industry and accessible transportation matters will be appointed to your case.  The Agency will then contact the service provider to determine whether it is willing to have the dispute resolved through mediation.

The mediation process is confidential and parties must agree in writing to maintain confidentiality, even if the mediation does not result in the resolution of all issues. For example, the mediator will not discuss any elements brought forth during the course of the mediation session with Agency personnel, except for purposes related to Agency mediator training.

If no settlement or only partial settlement is reached, any remaining issues may be addressed by the Agency through the formal adjudication process.

Option 3: Formal adjudication

The formal adjudication process is a lot more structured. In this process, a panel of Agency Members are appointed to consider your application. Both you and the service provider are given an opportunity to present your cases to the Panel.

The Agency's Dispute Adjudication Rules set out the process that is followed during adjudication. They also provide information on how to make a variety of procedural requests to the Agency on matters that commonly arise in dispute proceedings, including requests to keep information confidential.

The annotation provides explanations and clarifications of the Rules which will be useful to those unfamiliar with the Agency and its processes. It is organized by section number to make accessing the information easier, but it also contains hyperlinks that allow easy navigation to related sections and further explanatory text that you will find useful.

Once the Panel has received both the service provider's answer to your application and your reply, it will determine if any additional information is required prior to making a decision. 

The Agency Members use the following three steps to resolve complaints through the formal process.

Step 1 – establish that you are a person with a disability for the purposes of the Canada Transportation Act;

Step 2 – establish that you have experienced an obstacle. You have to prove that you were denied equal access to services available because you were not provided with accommodation needed to address your disability-related needs.

Step 3 – determine if the obstacle is "undue" (i.e. unjustified) and if corrective measures are needed to eliminate it.

If the Agency finds that an undue obstacle exists, it has the power to order the service provider to take corrective measures to address it. For example, the Agency may require the transportation service providers to: amend their tariffs, policies and procedures, develop or amend training programs, train personnel, purchase equipment, provide services, and communicate information. The Agency may also direct that any expenses resulting from the undue obstacle be reimbursed. However, the Agency does not have the power to award compensation for pain, suffering or loss of enjoyment.

To make a decision, the Panel members will look at all the evidence, such as evidence from a qualified health professional or an opinion from an informed expert and consider the legislation, 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.

Once a decision is rendered, it's considered final and binding similar to that of a court. However, should you disagree with a decision, you can apply to the Federal Court of Appeal within 30 days of the date the decision was issued and appeal the decision on a question of law or jurisdiction or you can petition the Governor in Council to vary or rescind a decision made by the Agency.

Any documents filed with the Agency as part of its formal adjudication process will be made part of the public record, unless a claim for confidentiality has been made to and accepted by the Agency. Therefore, before submitting your documents to the Agency, you should remove any information that you do not want included on the public record. Decisions are posted on the Agency's website and include the names of the parties involved, as well as witnesses.

This is a very high level overview of the steps required. More information can be found on the Agency's website at www.otc-cta.gc.ca or you may contact the Agency with any questions you might have by e-mail at info@otc-cta.gc.ca or by TTY at: 800-669-5575.

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 claim for confidentiality can be made.

Important notice to parties involved in an adjudication process

Federal Court of Appeal Decision renders all adjudication process submissions public

What this means for you

Privacy

Decisions are posted on the Agency's website and include the names of the parties involved, as well as witnesses. The decision will also be distributed by e-mail to anyone has subscribed through the Agency's website to receive Agency Decisions.

Reference information

Resolving accessible transportation complaints

Mediation

Legislation

Regulations

Codes of Practice

Resource Tools

Agency contact information

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

For further information:

Canadian Transportation Agency
Ottawa, ON  K1A 0N9

Telephone:
1-888-222-2592
TTY:
1-800-669-5575
Facsimile:
819-997-6727
E-mail:
info@otc-cta.gc.ca
Web site:
www.cta.gc.ca

Glossary

Accommodation
The provision of services, new equipment or facilities, or modifications to a rule, policy, practice, or existing equipment or facilities in order to meet a disability-related need.
Activity limitation
Difficulties an individual experiences while executing activities, which may range from a slight to 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. The activity limitation must be significant enough to result in an inherent difficulty in executing a task or action.
Adequate notice
What constitutes adequate notice of a person's disability-related needs will vary depending on the situation. However, as reflected in Part VII of the Air Transportation Regulations and in Agency decisions, 48 hours prior to departure is generally considered to constitute adequate notice.
Adjudication
The legal process of resolving a dispute wherein a formal judgment or decision is given after hearing evidence on the factual and legal issues involved.
Appropriate accommodation
The Agency applies the concept of appropriate accommodation as meaning accommodation measures that are responsive to a person's disability-related needs, resulting in an equal opportunity for the person with a disability to attain the same level of transportation services experienced by others in the federal transportation network. If appropriate accommodation has been provided, no obstacle exists.
Burden of proof & balance of probabilities
A party will meet their burden of proof by providing sufficiently persuasive evidence to support their position. The party who bears the burden must establish that their position is more probable than that of the opposing party (balance of probabilities). If the positions of both parties are equally probable, the party with the burden of proof will not have met their burden.
Equally responsive accommodation
The Agency applies the concept of equally responsive accommodation as meaning an alternative form of accommodation that is provided in a dignified manner and that meets the person's disability-related needs.
Federal transportation network
All transportation services under the authority of Parliament. A description of which transportation services are included as part of the federal transportation network may be found in the section on Jurisdiction.
Impairment
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 established by using the World Health Organization's (WHO) International Classification of Functioning, Disability and Health publication, other related WHO publications and/or medical documentation.
Obstacle
A rule, policy, practice, physical barrier, etc. that directly or indirectly discriminates against a person with a disability and has the effect of denying the person with a disability equal access to services that are available to others in the federal transportation network such that accommodation is required from the service provider. 
Participation restriction
A problem an individual experiences in involvement in life situations, which is determined by comparing the individual's experience with that of an individual without an activity limitation. An individual will experience a participation restriction for the purposes of Part V of the Act if they require particular measures to be taken in order that they have equal access to the federal transportation network, which other passengers without the activity limitation do not require. 
Person with a disability
A person has a disability for the purposes of Part V of the Act if they have an impairment and an activity limitation and experience a participation restriction in the context of the federal transportation network.
Pleadings
The formal allegations by the parties to a complaint. In the Agency's formal adjudicative process, pleadings refer to the parties' respective claims, responses and replies, and any other documentation filed with the Agency regarding the complaint.
Undue hardship
Excessive hardship as determined by evaluating the adverse consequences of providing accommodation, considering factors such as:
  • safety constraints;
  • operational constraints;
  • economic and financial constraints; and
  • physical or structural constraints.
Undue obstacle
An obstacle that can be removed without imposing undue hardship on the transportation service provider.
Date modified: