Letter Decision No. LET-AT-A-11-2018
Application by Donna Jodhan against the Greater Toronto Airports Authority (GTAA) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).
On November 22, 2017, the Canadian Transportation Agency (Agency) issued Decision No. LET AT-A-78-2017 (Decision) wherein it found that Ms. Jodhan is a person with a disability and has encountered an obstacle to her mobility. The Agency stayed the consideration of the question of whether the obstacle can be removed without causing undue hardship to the respondent in light of the Agency's Regulatory Modernization Initiative (RMI).
As an interim measure while the case is stayed, the Agency ordered the GTAA to convene consultations to assess the effectiveness of current arrangements for the provision of accessibility related assistance for people who are blind and travelling through the Pearson International Airport in Toronto (Pearson Airport), identify any areas that need improvement, and determine how appropriate measures will be implemented and monitored.
Specifically, the GTAA was directed, by January 22, 2018, to:
- file a report, for the Agency's review, outlining the results of the consultations;
- submit, for the Agency's approval, a description of the appropriate measures to be implemented at the Pearson Airport, as identified in the report of the consultations, the date of their implementation, and how the GTAA will ensure that these are monitored.
Positions of the parties
On January 18, 2018, the GTAA responded to the Decision, arguing that the deadline imposed by the Agency for the completion of the consultation process was impossible to meet, without filing a request for an extension of time. The GTAA further argues that it has no authority to require air carriers or "other parties" to participate in an investigation in which their interests, as well as the interests of their employees and bargaining agents, may be affected. The GTAA suggests that "any review" would be best conducted by the Agency itself, with the support of the GTAA and other interested parties.
Ms. Jodhan indicates that, throughout this process, she has been interested in working in collaboration with the GTAA to identify and implement stronger, better and more effective policies and procedures relating to the assistance of persons who are blind in travelling through the Pearson Airport. She submits, however, that the GTAA has chosen to disobey the Decision, which required only that it conduct research.
Ms. Jodhan submits that, pursuant to section 33 of the CTA, the Agency should make the order of the Decision an order of the Federal Court and seek enforcement thereof. Ms. Jodhan adds that the GTAA should be invited to show cause as to why it should not be sanctioned for non-compliance pursuant to section 174(b) of the CTA.
Analysis and determinations
The Agency has jurisdiction to protect the fundamental right of persons with disabilities to accessible transportation-related services across the federal transportation network, including airports.
Subsection 28(2) of the CTA states that the Agency "may, instead of making an order final in the first instance, make an interim order and reserve further directions either for an adjourned hearing of the matter or for further application". In determining whether to make an interim order, the Agency considers the balance of inconvenience to the parties. In the present case, any inconvenience caused to the GTAA by the requirement to hold consultations and, potentially, adjust existing practices would almost certainly pale in comparison to the inconvenience experienced by persons with disabilities due to any lack of accessibility of travel through the Pearson Airport.
The GTAA does not explain what type of authority it would need to undertake such consultations. Terminal operators and carriers both have obligations to ensure air travel services are accessible to persons with disabilities, and there is no evidence that anything prevents the GTAA from holding a dialogue with disability rights organizations and the parties involved in providing accessibility-related services at the Pearson Airport.
The Agency reiterates the order from the Decision and requires the GTAA to comply with it by no later than March 28, 2018. In consideration of the time that has elapsed since issuance of the Decision, the Agency encourages the GTAA to make every effort to comply well before this deadline. In light of the GTAA's failure to implement the order by the original deadline, the Agency will, in due course, open pleadings on a possible award of costs to Ms. Jodhan.
The Agency notes that staff from its Centre of Expertise for Accessible Transportation (CEAT) can offer assistance with accessibility-related initiatives, should the GTAA require such assistance.