Decision No. 54-AT-A-2018

September 11, 2018

APPLICATION by Peter Tonge against Air Canada also carrying on business as Air Canada rouge and as Air Canada Cargo (Air Canada) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), regarding his disability-related needs.

 

 

Case number: 
18-00504

SUMMARY

[1] On April 3, 2018, the Canadian Transportation Agency (Agency) issued Decision No. LET‑AT‑A‑21-2018 (Decision), where it found, on a preliminary basis, that Mr. Tonge is a person with a disability and that he encountered an obstacle while travelling with Air Canada. Air Canada was provided an opportunity to show cause why the Agency should not confirm these preliminary findings. If Air Canada chose not to contest these findings, it had to either:

  • explain how it proposes to remove the obstacle through a general modification to a rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or,
  • demonstrate that it cannot remove the obstacle without experiencing undue hardship.

[2] Air Canada requests that the copies of its policies and procedures for the carriage of mobility aids, which were filed as part of its answer, be kept confidential.

[3] In this Decision, the Agency will address the following:

  • Air Canada’s confidentiality request; and,
  • whether the measures proposed by Air Canada in its answer will address the obstacle to Mr. Tonge’s mobility.

[4] For the reasons set out below, the Agency denies Air Canada’s request for confidentiality.

[5] Also, for the reasons set out below, the Agency finds that the measures proposed by Air Canada in its answer will address the obstacle to Mr. Tonge’s mobility, provided that they are implemented in a rigorous and timely fashion. Therefore, the Agency orders Air Canada to:

  1. conduct a preliminary review of its policies and procedures with a report to the Chief Compliance Officer by December 6, 2018;
  2. implement, by December 6, 2018, a monitoring regime in which a damage report is developed for every damaged mobility aid; and
  3. following a period of six months from the date on which the monitoring regime is implemented, conduct a comprehensive review of the results of the monitoring and provide a submission to the Chief Compliance Officer on the results of the monitoring that includes proposed actions to reduce the rate at which mobility aids are damaged.

BACKGROUND

[6] Mr. Tonge has cerebral palsy and uses a wheelchair. On November 12, 2017, Mr. Tonge travelled with Air Canada on Flight No. AC510 from Chicago, Illinois, United States of America, to Toronto, Ontario. Mr. Tonge’s wheelchair was badly damaged during the flight.

[7] Air Canada authorized the replacement of his wheelchair. Mr. Tonge received the replacement wheelchair on January 18, 2018.

[8] On April 3, 2018, the Agency issued Decision No. LET-AT-A-21-2018, in which it provided to Air Canada an opportunity to show cause why the Agency should not find that Mr. Tonge is a person with a disability and that he encountered an obstacle.

[9] On April 24, 2018, Air Canada filed its answer. Air Canada does not contest that Mr. Tonge is a person with a disability or that he encountered an obstacle to his mobility. Air Canada argues that it has all the necessary policies and procedures in place for the carriage of mobility aids. Although it asks that Mr. Tonge’s application be dismissed, it also proposes two potential measures to remove the obstacle to his mobility: a review of its policies, procedures and training materials, and a mandatory damage report and follow-up process for every incident of a damaged mobility aid.

Mr. Tonge did not file a reply.

PRELIMINARY MATTER – AIR CANADA’S REQUEST FOR CONFIDENTIALITY

[10] Air Canada identifies the following documents as confidential:

  • its Wheelchairs and Mobility Aids Policy (Policy);
  • its Wheelchairs and Mobility Aids Procedures (Procedures).

[11] Air Canada submits that these documents are relevant to the proceedings as Mr. Tonge is seeking conclusions related to Air Canada’s Policy and Procedures.

[12] Air Canada argues that the documents should be treated as confidential to protect its commercial interests and because it would suffer harm if the documents were publicly disclosed. Air Canada states that the documents were developed internally and are consistently treated as confidential.

[13] Air Canada contends that these documents are unique to Air Canada and commercially sensitive, as they detail how Air Canada serves its customers who require a wheelchair or mobility aids. Air Canada states that both documents clearly indicate that they are for internal use and are not to be distributed, that they are only found on its internal portal (ACPedia), and that they cannot be downloaded.

ANALYSIS AND DETERMINATIONS

[14] Pursuant to section 31 of the Canadian Transportations Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104(Dispute Adjudication Rules), the first step in determining whether a confidentiality request should be granted is assessing whether the documents are relevant to the dispute proceeding. If the Agency determines that the documents are relevant, the second step is determining whether specific direct harm would likely result from the disclosure of the information claimed as confidential. The third step is determining whether the public interest in having the document disclosed outweighs the specific direct harm demonstrated.

[15] The Agency has reviewed the information being claimed as confidential by Air Canada and finds that the documents are relevant to the dispute proceeding as they illustrate Air Canada’s policy and procedures when handling wheelchairs and mobility aids.

[16] However, the Agency notes that there is no self-evident commercial sensitivity in respect of much of the content of the Policy and the Procedures. The fact that material is not normally available to the public does not, in itself, establish that a party will experience specific direct harm from its public disclosure. In addition, the Agency notes that the Policy and Procedures already form part of the public record as they were filed, without a request for confidentiality, in the context of Case No. 16-04666 (Cross against Air Canada).

[17] As a quasi-judicial tribunal, the Agency is bound by the “open court principle”, which requires that, with very circumscribed exceptions, proceedings be public.

[18] The Supreme Court of Canada provided guidance regarding the open court principle and confidentiality claims in Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 SCR 522:

A confidentiality order should only be granted when (1) such an order is necessary to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (2) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

[19] The Supreme Court of Canada’s test, which requires weighing salutary effects against deleterious effects, suggests that the Agency should choose the option that has the least impact on the open court principle while achieving the goal of avoiding or mitigating the expected harm.

[20] In this case, the Agency notes that Air Canada’s claim for confidentiality with respect to its Policy and Procedures is based on the fact that they are commercially sensitive and provide details as to how Air Canada serves the public requiring wheelchair and mobility aids. Air Canada states that it consistently treats its Policy and Procedures as confidential documents as they are internally developed by Air Canada and both documents clearly indicate that they are for internal use and are not to be distributed. However, the Agency notes that no explanation was provided as to how Air Canada would likely suffer specific direct harm by the public disclosure of its Policy and Procedures.

[21] The Agency does not accept that Air Canada’s explanation establishes that it would experience specific direct harm from the public disclosure of the entire documents. The Agency finds that the reasons provided by Air Canada are not sufficient evidence to establish that the Policy and Procedures should be treated as confidential in this proceeding. The Agency therefore denies Air Canada’s request for confidentiality.

THE LAW

[22] The application was filed pursuant to subsection 172(1) of the CTA, which reads as follows:

The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

[23] The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a three-part approach.

Part 1: The Agency considers whether the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA.

Part 2: If it is determined that the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA, the Agency determines whether they encountered an obstacle. An obstacle is a rule, policy, practice, or physical structure 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.

Part 3: If it is determined that the applicant is a person with a disability and that they encountered an obstacle, the Agency provides the respondent with an opportunity to either:

  • explain how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or
  • demonstrate that it cannot remove the obstacle without experiencing undue hardship.

[24] Given that Air Canada does not contest that Mr. Tonge is a person with a disability or that he encountered an obstacle to his mobility, the Agency confirms its preliminary findings on these issues. The balance of this Decision therefore addresses Part 3 of the approach.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Air Canada asks that Mr. Tonge’s application be dismissed. Air Canada submits that it cannot be held to a standard of perfection in the handling and carriage of mobility aids.

[25] According to Air Canada, it acted in good faith and with “celerity” in replacing Mr. Tonge’s wheelchair. It adds that it has all the necessary policies and procedures in place for the carriage of mobility aids and is in compliance with its legal obligations under Part 6 of the Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42, as amended (Personnel Training Regulations).

[26] Air Canada points out that of the 20,652 requests that it received in the previous two years to carry a mobility aid, only 4.5 percent resulted in a complaint to Air Canada. According to Air Canada, the subjects of these complaints range from “minor delays and/or damage to more significant claims.” Air Canada states that it reviewed the complaints that it received, but found that there is “no identifiable pattern of mishandling” mobility aids in its care.

[27] Air Canada indicates that it will be reviewing its policies, procedures and training materials, as well as implementing a mandatory damage report and follow-up process for every incident of a damaged mobility aid.

ANALYSIS AND DETERMINATIONS

[28] The Agency notes that Air Canada acted in good faith and promptly agreed to cover the cost of replacing Mr. Tonge’s damaged wheelchair. Nevertheless, Mr. Tonge was without a permanent replacement for his wheelchair for approximately two months, during which time his mobility aid dealer, Reliable Mobility, arranged for a replacement. While the delay may have been beyond Air Canada’s control, it highlights the importance of ensuring, to the greatest extent possible, that mobility aids are not damaged in the first place.

[29] Air Canada is correct in stating that it cannot be held to a standard of perfection, but it still has the responsibility to take focused and effective actions to reduce the rate at which mobility aids in its care are damaged. While Air Canada may be correct in stating that it acted in “good faith”, that it is compliant with the Personnel Training Regulations, and that it has relevant policies and procedures in place, these are necessary but, in some cases, not sufficient conditions to meet accessibility-related obligations.

[30] Moreover, Air Canada lacks important information that might assist in the removal of the obstacle to Mr. Tonge and others with mobility-related disabilities. Air Canada indicates that of all the mobility aids that it carries, 4.5 percent result in a complaint to Air Canada, and asserts that there is “no identifiable pattern of mishandling”. As the subject of complaints varies and a person filing a complaint would have no way of knowing how their mobility aid was damaged, it is reasonable to conclude that at this time, there is no strong basis for determining what patterns, if any, exist in respect of damage to mobility aids.

[31] Air Canada’s proposal to develop a mandatory damage report and follow-up process for every incident of a damaged mobility aid responds directly to this information gap. Similarly, Air Canada’s proposal to review its policies, procedures and training materials can be expected to assist in the identification of any gaps or shortcomings. The Agency finds that these measures will address the obstacle to Mr. Tonge and others with mobility-related disabilities, provided that they are implemented in a rigorous and timely fashion.

[32] Air Canada is also reminded that the Agency recently established an international working group on the storage and transportation of mobility aids on aircraft, with representation from airlines (including Air Canada) and their associations, aircraft manufacturers, mobility device manufacturers, disability rights organizations, regulators, and the International Civil Aviation Organization. The working group’s findings and recommendations may be of assistance to Air Canada as it works to ensure that mobility aids in its care are not damaged.

ORDER

[33] The Agency orders Air Canada to:

  1. conduct a preliminary review of its policies and procedures with a report to the Chief Compliance Officer by December 6, 2018;
  2. implement, by December 6, 2018, a monitoring regime in which a damage report is developed for every damaged mobility aid; and
  3. following a period of six months from the date on which the monitoring regime is implemented, conduct a comprehensive review of the results of the monitoring and provide a submission to the Chief Compliance Officer on the results of the monitoring that includes proposed actions to reduce the rate at which mobility aids are damaged.

Member(s)

Scott Streiner
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