Letter Decision No. LET-AT-A-319-2005
Applications involving additional fares and charges for persons with disabilities who require additional seating due to their disabilities (AFC applications) - applications involving stretchers
Eric Tucker on behalf of Myka Tucker-Abramson
On June 6, 2001, Eric Tucker filed an application with the Canadian Transportation Agency (the Agency) on behalf of his daughter, Myka Tucker-Abramson, concerning the fares charged by Air Canada to provide stretcher service to her after she was injured in an automobile accident. Ms. Tucker-Abramson was required to buy six one-way tickets to travel from Halifax to Toronto at a cost of $4,981.23. Her flight was later deemed to be medically necessary and Mr. Tucker's insurer reimbursed him the cost of her flight.
Subsequent to extensions of filing deadlines granted by the Agency, Air Canada filed its answer to the application on January 2, 2002 and, at the Agency's request, filed additional information on May 27, 2002. Mr. Tucker filed his reply on June 10, 2002.
Barry Growe on behalf of Lindsey Cook
On May 1, 2002, Barry Growe filed an application with the Agency on behalf of his wife, Lindsey Cook, concerning the fares proposed to be charged by Air Canada to provide Ms. Cook stretcher service on a flight they wanted to take from Vancouver to Toronto to visit her father who was unable to travel because of medical problems; a change in his health could have necessitated Ms. Cook travelling on short notice. In order to travel by air, Ms. Cook needs to travel lying down on a flat surface. On three occasions, Mr. Growe contacted Air Canada and was quoted $20,000 for Ms. Cook to travel on a stretcher. As Ms. Cook's travel is not medically necessary, there is no insurance to cover this cost.
Subsequent to an extension of the filing deadline granted by the Agency, Air Canada filed its answer to the application on September 13, 2002.
Pursuant to subsection 29(1) of the Canada Transportation Act (CTA), the Agency is required to make decisions on applications no later than 120 days after an application is received, unless the parties agree to an extension. The Agency notes that Air Canada, Barry Growe and Eric Tucker have all agreed to extend the statutory deadline.
Fares and charges applications
In addition to the applications received from Mr. Tucker and Mr. Growe regarding the fares charged to persons who use stretchers, the Agency also received three other applications regarding the cost of air travel for persons with disabilities who require more than one seat in order to accommodate their disability, either for themselves or their attendant.
On October 18, 2001, Ann Marie McPhee filed an application against Air Canada on behalf of her three-year old grandson who was required to travel with an attendant from Sault Ste. Marie to Toronto three times each year for medical appointments. From April 1999 to October 2001, Air Ontario, Air Canada's former code-share partner for this service, made a special allowance to the Easter Seals and Cancer Society by reducing the medical fares for escorts/attendants by 50 percent. On April 10, 2001, Air Ontario informed Easter Seals that this additional reduction would no longer be offered; as of October 1, 2001, attendants would qualify for Air Ontario's regular medical fare which was 50 percent of the full economy fare for a return trip.
On August 26, 2002, Pamela Bridger filed an application against Air Canada on behalf of her mother, Sheila Whitworth, who travels with an attendant and requires additional space to accommodate her disability. Ms. Bridger was informed by Air Canada that once Mrs. Whitworth proved that she has a disability and requires an attendant, Mrs. Whitworth would have two options:
- purchase 2 seats in business class for her mother and attendant so that Mrs. Whitworth would have more leg room, at a total cost of $6,000.00, or
- purchase 3 seats in economy class, two for her mother, one of which would be lowered for her feet to rest on, and one for her attendant, at a total cost of $5,420.00, which included a full fare of $2,710.00 for Mrs. Whitworth's seat and a 50 percent reduction for the two other seats.
On November 19, 2002, Eric Norman, Joanne Neubauer and the Council of Canadians with Disabilities (the CCD applicants) filed an application (the CCD application) with the Agency against Air Canada, Air Canada Jazz, WestJet, the Gander International Airport Authority (GIAA) and the Air Transport Association of Canada (ATAC). This application concerned, in the case of Air Canada, Air Canada Jazz and WestJet, the fares and charges generally required by these carriers for persons who require additional seating to accommodate their disabilities while travelling by air. In the case of the GIAA, the application concerned the airport improvement fee levied on attendants who are required to assist persons with disabilities due to their disabilities and which is collected by air carriers pursuant to a Memorandum of Understanding between the GIAA, ATAC and such carriers.
In Decision No. LET-AT-A-46-2003 dated February 27, 2003, the Agency grouped these five applications together in light of the similar issues raised therein so that the Agency could process the applications together (collectively referred to as the AFC applications).
On April 1, 2003, Air Canada filed for protection under the Companies' Creditors Arrangement Act (CCAA) in order to facilitate the air carrier's operational, commercial, financial and corporate restructuring. As part of this process, the Ontario Superior Court of Justice (the Court) issued an Order pursuant to the CCAA (the Stay Order) staying all proceedings against or in respect of, among others, Air Canada and its operating division, Air Canada Tango, and Jazz Air Inc. doing business as Air Canada Jazz. As a result, the Agency was unable, at that time, to continue with its processing of the AFC applications(only that aspect of the CCD application that was against Air Canada, Tango and Jazz).
In response to a Notice of Motion dated April 7, 2003 filed by WestJet with the Agency in the CCD application, the Agency issued Decision No. LET-AT-A-138-2003 dated June 16, 2003, whereby it adjourned the CCD application in its entirety pending a resolution of the Air Canada restructuring process and the lifting of the CCAA Order.
On August 23, 2004, the Court issued an Order pursuant to the CCAA (the Sanction Order) which lifted the Stay Order as of September 30, 2004 and, in light of this, on October 1, 2004, Agency staff informed the parties by letter that the Agency was in a position to resume its complaint adjudication process with respect to the AFC applications. The Sanction Order also had the effect of extinguishing all financial claims against Air Canada which arose on or before April 1, 2003.
On January 6, 2005, Air Canada filed a submission with the Agency wherein it stated its position that all accessible transportation applications before the Agency against Air Canada and its subsidiaries filed or in relation to incidents which occurred on or before April 1, 2003, (the affected applications) including the affected AFC applications, are extinguished by the Sanction Order.
In Decision No. LET-AT-A-38-2005 dated January 28, 2005, the Agency stated its opinion that Air Canada's position is incorrect and indicated that the Agency had taken action to have the issue resolved by the Court as expeditiously as possible by seeking an interpretation of the Sanction Order as to whether the affected applications are extinguished, as argued by Air Canada. In Decision No. LET-AT-A-54-2005, dated February 11, 2005, the Agency granted Air Canada's request for a stay of the AFC applications of Mr. Tucker, Ms. McPhee, Mr. Growe, and Ms. Bridger based on its view that, given its intention to seek the Court's interpretation of the Sanction Order, it would not be appropriate for the Agency to continue to process the affected applications.
With respect to the application of the CCD applicants, on January 17, 2005 they filed a submission in response to Air Canada's January 6, 2005 submission and request for stay wherein they requested that they be permitted to amend their original application such that it refer only to post-April 1, 2003 incidents and, as such, not be affected by Air Canada's proposed extinguishment of all affected applications. The CCD applicants further requested that this amended application be severed from the other AFC applications in order that the Agency be able to continue its investigation. The Agency, in Decision No. LET-AT-A-54-2005, amended and severed the CCD application as requested.
On February 1, 2005, Mr. Growe filed a new application against Air Canada concerning the cost for Ms. Cook to travel between Vancouver and Toronto using a stretcher. In Decision No. LET-AT-A-54-2005, for reasons provided therein, the Agency determined that it would consider the new application of Mr. Growe together with the amended CCD application.
In his February 1st application, Mr. Growe also raised concerns with respect to the nature of the stretcher service provided by Air Canada and the fact that Ms. Cook would be transferred by ambulance attendants onto Air Canada's stretcher, secured to the stretcher in Vancouver and would not be permitted to get off the stretcher to stretch or use the washroom until she arrived in Toronto. Following written pleadings and an oral hearing, the Agency issued Decision No. 348-AT-A-2005 on June 1, 2005, wherein the Agency found that although Air Canada's policy on the delivery of stretcher service does constitute an obstacle to the mobility of Ms. Cook, this obstacle was found not to be undue.
In furtherance of its investigation, the Agency determined that it would hold an oral hearing in the AFC applications, which were comprised of the CCD applications and Mr. Growe's application, and it completed the first stage of this oral hearing in Toronto, Ontario, from May 30 to June 3, 2005 and in Gatineau, Quebec on October 14, 2005. The Agency is presently in the process of convening the second stage of this hearing, which is scheduled to commence January 30, 2006 in Toronto, Ontario.
In Decision No. LET-AT-A-216-2005 dated July 29, 2005, the Agency noted that, according to Air Canada's Web site, Air Canada intended to discontinue stretcher service effective August 1, 2005, and the Agency sought comments from Mr. Growe and the CCD applicants on the implications of the policy change on the AFC applications and on the Agency's continuing investigation; the Agency also sought other additional information from Mr. Growe. The applicants were required to submit their comments by August 10, 2005, and the carrierrespondents were provided until August 19, 2005, to file their responses. The applicants then had until August 26, 2005, to provide any further comments.
In Decision No. LET-AT-A-223-2005 dated August 10, 2005, the Agency further required Air Canada to address in its submission the issue of the nature of common carrier obligations to carry passengers and whether that obligation would include the obligation to carry passengers on stretchers where they require that service in order to travel by air.
In the meantime, the Agency determined that the best way to deal with the affected applications is for the Agency to proceed with its consideration of the applications and, as such, on June 30, 2005, the Agency determined that it would not continue with its motion before the Court for an interpretation of the Sanction Order. Consequently, the Agency determined in Decision No. LET-AT-A-224-2005 dated August 11, 2005 that it would be appropriate to lift its stay of the original application filed by Mr. Growe as well as the applications of Ms. Bridger, Ms. McPhee and Mr. Tucker imposed by Decision No. LET-AT-A-54-2005. In Decision No. LET-AT-A-224-2005 the Agency also, in view of the fact that the Agency was part way through an oral hearing process in two applications on the same issue, decided to hold the applications of Ms. McPhee and Ms. Bridger in abeyance pending the completion of its investigation into the fares and charges application and its determination of whether, with respect to those two applications, there exist undue obstacles to the mobility of persons with disabilities.
In Decision No. LET-AT-A-224-2004 dated August 11, 2005, upon lifting the stay of Mr. Tucker's application, the Agency requested that Mr. Tucker file his comments on the matter of the implications of Air Canada's cancellation of its stretcher service on his application and the Agency's investigation; Mr. Tucker was provided until August 15, 2005 to file his comments.
On August 10, 2005, the CCD applicants filed their submission. Barry Growe and Eric Tucker each filed their respective submissions on August 15, 2005.
In Decision No. LET-AT-A-237-2005 dated August 23, 2005, the Agency granted Air Canada's request for an extension of time until September 9, 2005, to respond to Decision No. LET-AT-A-223-2005. Air Canada filed its submission on September 9, 2005, and the CCD applicants filed their comments on September 16, 2005.
International tariff filing
On July 5 and August 1, 2005, Airline Tariff Publishing Company, Agent (hereinafter ATPCo) on behalf of Air Canada, filed with the Agency amendments to Rule 500 on the 6th and 7th Revised Pages AC-28C of Air Canada's international scheduled service tariff NTA(A) No. 458 by which Air Canada proposed to discontinue accepting passengers on stretchers. These tariff revisions were filed with proposed effective dates of August 19 and September 15, 2005, respectively.
In Order No. 2005-A-453 dated August 18, 2005, the Agency reviewed the proposed amendments to Air Canada's international tariff with respect to its stretcher service and noted that it was presently considering this issue in the context of domestic air transportation in its investigation of applications involving fares and charges for persons with disabilities who require additional seating due to their disabilities. Pending completion of its investigation, the Agency, pursuant to paragraph 113(a) of the Air Transportation Regulations (SOR 88/58) (the ATR), and until further order, suspended the above-noted tariff amendments proposing the cancellation of stretcher services on international routes. By this action, the Agency required the continuation of Air Canada's stretcher service past its intended cancellation date. Air Canada was required, pursuant to subsection 129(1) of the ATR, to file with the Agency an appropriate tariff that restored the provision replaced by the suspended provision.
Issue to be determined
The Agency must now consider the implications of Air Canada's change in policy and its cancellation of stretcher service on those AFC applications involving stretcher service and on the Agency's investigation of the those applications. As set out above, the Agency presently has before it two applications that directly involve Air Canada's stretcher service, one involving Air Canada's provision of stretcher service in medically necessary circumstances in lieu of air ambulance service and the other, involving Air Canada's stretcher service in non-medically necessary circumstances. In view of this distinction, the Agency will deal with each case separately, below.
1. Application by Eric Tucker
Mr. Tucker's application involves air ambulance service, in that his daughter's transportation by stretcher was determined to be medically necessary and, as such, the cost of her transportation on Air Canada's flight was covered by her father's insurer.
Upon consideration, the Agency is of the opinion that while the cost of Ms. Tucker-Abramson's transportation, $4,981.23, may well have constituted an obstacle to her mobility had she or her family been required to pay this fare, in fact, the fare was paid by Mr. Tucker's insurer and, as such, the Agency does not find that this constitutes an obstacle to her mobility.
Despite the fact that neither Ms. Tucker-Abramson nor her father incurred costs associated with her travel, Mr. Tucker asserts that he believes the cost of this service to be an undue obstacle and he has requested that the Agency continue to pursue his application on behalf of all persons with disabilities who are required to pay for additional seats for stretcher service. However, the Agency is of the opinion that given the other applications that are presently before the Agency regarding the cost of air travel for persons with disabilities and, in particular, the Growe application which specifically raises the issue of the cost of stretcher service, it is not necessary and, thus, would not be appropriate for the Agency to expand Mr. Tucker's application beyond the circumstances described therein in order to investigate the cost of non-medically necessary stretcher service. As such, the Agency hereby dismisses Mr. Tucker's application and will place it on the AFC applications file as a submission in support of those applicants.
2. Application by Barry Growe
Insofar as Ms. Cook has not travelled on Air Canada by stretcher and has not incurred the cost associated with stretcher service in the past, there is no outstanding request for compensation for fares paid to Air Canada. Thus, the Agency is of the opinion that there is no need for it to consider whether circumstances in the past constituted an undue obstacle to Ms. Cook's mobility as she did not use the service and there is no remedy needed to address the past in this case.
Furthermore, insofar as the Growe application involves a request for a systemic remedy, being a reduction in the fare for stretcher service in the future, the Agency is of the opinion that if there is no stretcher service offered in the future, it clearly would be of limited use to continue this investigation into the cost of a non-existent service. Furthermore, the Agency is of the opinion that the additional time and resources required by all parties and the Agency to address this issue would make the continuing inclusion of this issue in this investigation to be inefficient and a misuse of those resources. However, in order to make this determination, the Agency must first consider whether Air Canada is under an obligation to provide this service. In doing so, the Agency has considered the issue from two different perspectives:
- Whether there is a common carrier obligation to accommodate passengers with disabilities who require stretcher service in order to travel by air; and,
- Whether the failure of Air Canada to provide stretcher service constitutes an undue obstacle to Ms. Cook's mobility.
The Agency will consider these issues separately, below.
1. Is there a common carrier obligation to accommodate passengers with disabilities who require stretcher service in order to travel by air?
Positions of the parties
The carrier respondents state that although common carriers have a prima facie duty to carry passengers and cargo as they are presented to them, this duty is not absolute. The carrier respondents assert that common carriers need only carry such passengers and cargo which are within the limits of their conveyances. They point to the fact that other air carriers currently reserve the right to refuse carriage to passengers requiring a stretcher and submit that this is inconsistent with the existence of a common carrier obligation to provide stretcher service.
The carrier respondents submit that they have conducted extensive research and determined that the jurisprudence relating to the obligations of common carriers arises from the mid-1800s to the turn of the century. They add that they could not find any more recent decision on point, despite having reviewed the print and electronic databases. The carrier respondents point out that because the basic common law principles were developed in the 19th century, when passenger claims were much less frequent, the common law position on the issue they are asked to comment on was developed in the context of cargo based litigation. The carrier respondents explain that by citing case law with facts pertaining to cargo claims, it is only for illustrating a particular restriction on the legal obligations of a common carrier and they do not intend to imply that, in general, the obligation of a carrier toward persons with disabilities can be compared to obligations arising from the carriage of cargo.
The carrier respondents state that Courts have expressly found that common carriers are not bound to carry every description of goods or passengers, are not bound to carry on every route and may choose not to continue offering certain kinds of carriage. The carrier respondents further submit that Courts have long recognized that carriers can only have a duty to carry within the physical limits of their vehicles and equipment.
The carrier respondents indicate that based on Spillers and Bakers v. Great Western Railway Company (Spillers and Bakers (Limited) v. Great Western Railway Company(1910) 27 T.L.R. 97 at 100(C.A.)), it is apparent that the common law relating to the obligations of common carriers does not require carriers to carry goods that they are not equipped to carry. The carrier respondents add that the Courts have not been prepared to require carriers to secure additional or modified equipment in order to carry out its responsibilities as a common carrier of goods.
The carrier respondents submit that the same principles should prevail in the matter at hand, namely, that they should not be required to undertake the very significant physical modifications (even of a temporary nature) of the aircraft cabin in order to carry passengers that it is not configured to carry.
The carrier respondents explain that given that the usual configuration of an aircraft does not accommodate a stretcher, requiring an air carrier to carry such traffic would result in a situation where the air carrier is required to carry beyond the ordinary limits of its conveyance.
The carrier respondents submit that if the common carrier case law is applied to Air Canada's decision to terminate the carriage of stretcher passengers, the Agency should not interfere with the change in policy.
The carrier respondents note that other air carriers operating in Canada have reserved the right to refuse to carry a passenger requiring the use of a stretcher. To this effect, the carrier respondents refer to British Airways PLC (British Airways) General Conditions of Carriage for Passengers and Baggage, effective March 1, 2005, as posted on its Web site, wherein British Airways notes that it reserves the right to cease accepting passengers who must travel on a stretcher on any flight. The carrier respondents state that, similarly, US Airways Inc. (US Airways) has posted its Terms of Transportation on its Web site, wherein it notifies that it may refuse to transport, or may remove from any flight, any customer, among other reasons, if the customer is unable to sit upright in a seat with the seat belt fastened or who requires a stretcher. The carrier respondents submit that in the current commercial environment it would be unfair to require Canadian carriers to accept an obligation of the sort in question.
In response, Mr. Growe requests that all Canadian air carriers be required to offer stretcher service to persons with disabilities who cannot sit at a cost that can be afforded by people with modest or limited incomes.
The CCD applicants
The CCD applicants are of the view that the issue of common carrier and statutory obligation to carry persons requiring accommodation by stretcher is of importance and that there is an obligation on air carriers to afford this accommodation to their passengers with disabilities, but that the AFC applications are not the ones in which this issue should be addressed by the Agency.
The CCD applicants disagree with the carrier respondents' submissions. With respect to the carrier respondents' inability to find "more recent" common carrier decisions, the CCD applicants refer to Barbara Reukema, Discriminatory Refusal of Carriage in North America, where extensive references may be found. The CCD applicants note that the duty to accommodate has continued to evolve and the common carrier obligations are subject to the quasi-constitutional authority of human rights legislation, such as the Canadian Human Rights Act and the CTA.
The CCD applicants submit that although no commercial advantage would be gained if both national carriers were obliged to assume their obligations to accommodate passengers with disabilities, this is no basis for depriving the Agency of its jurisdiction.
Analysis and Findings
The Agency has reviewed the pleadings of the parties and carefully considered this issue.
The Agency is of the opinion that the law on common carrier obligations is clear in that the obligation to carry passengers is limited to those passengers who are prepared to pay the fare for the service and accept the carrier's terms of carriage.
In the case of passenger air travel, carriers provide seats and seatbelts which passengers are required by law to use in order to travel. Insofar as passengers present themselves to the air carrier with the money to pay the fare and the ability to sit in a seat and use a seatbelt, then the carrier is obliged, as a common carrier, to carry that person, subject only to certain specific limitations based on the efficiency of the carrier's services and the safety, convenience and comfort of the other passengers.
Accordingly, the Agency accepts that there are no common carrier obligations that require air carriers to provide a specialized service such as a stretcher service to accommodate passengers with disabilities. However, where a person with a disability wishes to travel by air, but cannot travel in the manner in which the carrier offers, then the issue becomes one of reasonable accommodation of that individual's needs. The Agency's mandate pursuant to the CTA does not preclude a consideration of services which are not required under common carrier obligations, to determine whether the lack of such services constitutes an undue obstacle to persons with disabilities.
2. Does the failure of Air Canada to provide stretcher service constitute an undue obstacle to Ms. Cook's mobility?
Ms. Cook has fibro myalgia and, as a result, experiences frequent headaches as well as frequent pain and stiffness in her joints, muscles, low and mid-back, shoulders, neck and jaw. Remaining in one position or being active for too long causes her pain and stiffness in her back, neck and head. In order to travel on a lengthy flight without worsening her condition, Ms. Cook would like to be able to lie down on her side on a flat surface, softened by a foam pad, for most of the flight and, from time to time, stand and walk briefly to stretch her muscles, as well as use the washroom, whenever other passengers are permitted to move about the aircraft. As a result, Ms. Cook believed that stretcher service is necessary to meet her particular needs in travel.
Air Canada carries passengers who are required to lie down on its Aero-Medical stretcher. Air Canada blocks off six to nine seats depending on the configuration of the aircraft and the aircraft model. Air Canada operates Airbus A320 aircraft between Vancouver and Toronto, which has a bank of three seats and which would require nine seats to be blocked off to accommodate a stretcher. Most of Air Canada's A320s are certified to carry a stretcher.
Mr. Growe filed the first application against Air Canada on May 1, 2002 upon being informed by the carrier that it would cost $20,000 round-trip for Ms. Cook to travel from Vancouver on a stretcher to visit her ailing parents in Barrie, just north of Toronto. As a result of the above mentioned stay of the application, Mr. Growe filed a second application following another inquiry from Air Canada on February 1, 2005, about travelling from Vancouver to Toronto by stretcher, at which time Air Canada indicated that the cost of the round trip would be $14,560 plus taxes.
Mr Growe also obtained more information about Air Canada's stretcher service. As a result, they became concerned about the nature of the stretcher service offered by Air Canada and the fact that it would require Ms. Cook to remain immobile for the duration of the flight as well as some period of time both before and after the flight. Following written pleadings and an oral hearing, the Agency issued Decision No. 348-AT-A-2005 on June 1, 2005, wherein the Agency found that although Air Canada's policy on the delivery of stretcher service constitutes an obstacle to the mobility of Ms. Cook, the obstacle is not undue.
As a result, Ms. Cook attempted to book her trip using a combination of van transportation between Vancouver and Winnipeg, and stretcher service on an Air Canada flight between Winnipeg and Toronto which would cost approximately $11,000.00. She subsequently heard that Cathay Pacific Airways Limited (Cathay Pacific) has seats in first class that fully recline and, as they believed that this service would better meet her needs from both a physical and a cost perspective, they ultimately travelled from Vancouver to New York on a Cathay Pacific flight and then rented a van to travel from New York to Toronto. The cost of this trip was $7,000.00.
Mr. Growe now asserts that Air Canada should be required to use a different type of stretcher which he submits would better meet Ms. Cook's needs. Should Air Canada's stretcher service be adapted to better meet Ms. Cook's needs, Mr. Growe foresees wanting to travel to Toronto again, in a year or two and, as such, they wish to continue to pursue this application against Air Canada regarding the cost of stretcher service.
In the summer of 2005, Air Canada announced its intention to discontinue stretcher service effective August 1, 2005.
Positions of the parties
The carrier respondents
The carrier respondents state that the Agency does not have the jurisdiction or authority to disallow this change in Air Canada's policy and that to disallow Air Canada from doing this would give rise to a commercial unfairness which is inconsistent with the national transportation policy contained in paragraph 5(c) of the CTA:
Accordingly, the carrier respondents submit that they should be able to operate on the same terms as their competitors, US Airways and British Airways, two air carriers operating in Canada who have reserved the right to refuse to carry a passenger requiring the use of a stretcher.
The carrier respondents submit that there is no statutory enactment requiring that they carry passengers who need stretchers. Part VII of the ATR sets out the expectation on air carriers when transporting passengers and requires air carriers to facilitate carriage of passengers requiring "mobility aids". It is the position of the carrier respondents that a stretcher should not be characterized as a "mobility aid" as that term is contemplated in the regulations.
The carrier respondents state that although the term "mobility aids" is not defined in the ATR, paragraphs 147(e) and (f) of the ATR provide some guidance on the interpretation of this term, by referring to examples of mobility aids; for example, air carriers must provide assistance with:
(f) transferring the person between a wheelchair, boarding chair or other mobility aid and the person's passenger seat;
The carriers suggest that, based on the above wording, the services that they must provide to passengers are limited to carrying passengers who require mobility aids. To support this statement, the carrier respondents note that the term is defined in thePersonnel Training for the Assistance of Persons with Disabilities Regulations (SOR/94-12) (the Personnel Training Regulations) as follows:
The carrier respondents submit, to further support their argument that a stretcher is not a "mobility aid", that a stretcher is not a device that a person with a disability would typically use in his or her day to day activities for the purposes of moving about. The carrier respondents explain that rather, the purpose of the stretcher is to transport an immobile person who is being moved for a reason that is unrelated to a routine activity, usually for a medical reason and that in essence, a stretcher is no more a mobility device than is an ambulance. The carrier respondents state that passengers requiring carriage by stretcher are more likely to be candidates for medical evacuation by an air ambulance which is routinely equipped for such flight missions, and not candidates for the type of travel that the carrier respondents are normally equipped to undertake (i.e., personal or business travel and not medical evacuation).
The carrier respondents conclude that neither the common law nor current legislation impose an obligation to carry persons who need stretchers and that there is international precedent for ceasing to provide this service and no legal basis for requiring such a service. They add that to continue to consider this issue in the AFC applications would unnecessarily lengthen those proceedings as the hearing time would increase by 2 to 4 days and increase the costs for all concerned. For these reasons, the carrier respondents submit that the Agency should find that there is no obligation on a Air Canada to carry a person who needs a stretcher.
Mr. Growe states that he and Ms. Cook wish to continue with their application concerning the cost of travel from Vancouver to Toronto and return. He points out that in June 2005, they incurred a cost of $7,000 to travel round-trip between Vancouver and Toronto, via New York, which they submit constituted an undue obstacle for which they should be compensated by Air Canada. They also request that the Agency require Air Canada and other carriers that operate Airbus aircraft in Canada to provide, at a reasonable cost, stretcher service for persons with disabilities who are unable to sit for prolonged periods.
Following the issuance of Decision No. 348-AT-A-2005 dated June 1, 2005, wherein the Agency found that Air Canada's policy on stretcher service does not constitute an undue obstacle to Ms. Cook's mobility, Mr. Growe discussed how to travel to Ontario so that Ms. Cook could see her aging parents. Air Canada was charging $14,500 for a round-trip by stretcher between Vancouver and Toronto, but they felt that this flight would not meet Ms. Cooks's physical needs as she would be required to lay flat on the stretcher and remain immobile for the duration of the flight as well as some period of time both before and after the flight. They calculated that a road trip would take at least six days as they need to stop approximately every 1.5 hours to allow Ms. Cook to stretch briefly. They were concerned that 12 days on the road to/from Ontario might injure Ms. Cook because, at home, she gets up to move and stretch every 30-60 minutes to minimize pain and stiffness. Mr. Growe states that, for this reason, they decided to drive to Winnipeg, approximately half the distance, then travel with Air Canada to Toronto, where Ms. Cook would use a stretcher. Although they know that this two-hour flight posed a risk to Ms. Cook's back as it would require her to lay flat on her back on a hard surface, they felt that it was preferable to either driving the entire distance or travelling the entire distance with Air Canada on a stretcher on which she would not be allowed to travel on her side and from which she could not get off and move about. Mr. Growe therefore made reservations for Ms. Cook and himself to travel with Air Canada between Winnipeg and Toronto.
Mr. Growe explains that they were subsequently informed by a friend that first-class seats on Cathay Pacific flights recline to a completely flat position. Mr. Growe states that Cathay Pacific made arrangements for him and Ms. Cook to board an aircraft to view the first class seating, where they were able to confirm that the seat could be converted into a horizontal "bed". Mr. Growe advises that they had to weigh their choices and, although the flight to New York seemed like a safe way to travel, the van trip would require them to drive more than 600 miles to Ontario with Ms. Cook lying on the floor in the back. Mr. Growe further states that they also had to consider the over $11,000.00 to be charged by Air Canada for travelling by air from Winnipeg to Toronto round-trip on a stretcher. Mr. Growe indicates that after considerable discussion, they cancelled the reservation with Air Canada and made a first-class reservation for Ms. Cook and an economy class reservation for himself with Cathay Pacific.
Mr. Growe states that although Cathay Pacific was extremely accommodating to Ms. Cook's needs, the cost of the round trip including airfare, hotel accommodations in New York and van rental was still $7,000. Mr. Growe and Ms. Cook support the principle of "One passenger one fare" proposed by the CCD applicants. Mr. Growe states that the proposal he presented at the hearing on costs in May, based on the costs of six seats at the lowest discounted rate, was similar in actual cost to that principle, about $2,700. Mr. Growe submits that his case about cost is not moot because they intend to travel again to Ontario sometime in the future.
Mr. Growe states that the cancellation by Air Canada of all stretcher services will make it impossible for Ms. Cook to travel on Air Canada if a family emergency arises that makes it essential for her to travel quickly to Toronto. Mr. Growe submits that Air Canada's schedule shows as many as 20 flights a day to Toronto whereas Cathay Pacific has one restricting the possibility of a first-class seat being available on short notice. Mr. Growe notes that the flight to New York, with an arrival at 11 pm, adds 24 hours to the length of the trip.
Mr. Growe submits that, as the cost of an air ambulance flight is a minimum of $27,000 round trip, which is almost double the cost charged by Air Canada, the cost of travelling by air directly from Vancouver to Toronto, due to the cancellation of Air Canada's stretcher service, would change from being exorbitant to prohibitive - an undue obstacle. Mr. Growe explains that the figure of $27,000 assumes that another passenger can be found to take the return flight back to Vancouver; and still another to fly Vancouver-Toronto when Mr. Growe and Ms. Cook return home. Mr. Growe submits that it would be virtually impossible to find other passengers on short notice. Mr. Growe adds that without other passengers to share the cost of these two round-trip air ambulance flights, the price quoted to him by PatientLink Air Ambulance Service for round-trip flights between Vancouver and Toronto was $50,000.
Mr. Growe states that he and his wife hope that Ms. Cook's parents' health does not deteriorate further in the immediate future. If their health remains stable, they intend to go to Ontario again in 2006 or 2007. Mr. Growe submits that, by then, it would be possible for Air Canada to use its considerable training resources to show its flight crews how to use the shoulder harness and belt buckles on a Noorduyn Norseman stretcher, which he believes would allow Ms. Cook to travel on her side and be able to get on and off without risk of falling.
In light of the availability of the Noorduyn Norseman stretcher and Air Canada's cancellation of its stretcher service, Mr. Growe asks that the Agency require all Canadian airlines that operate Airbus aircraft compatible with this stretcher use this stretcher to transport persons with disabilities who cannot sit. He further requests that the Agency ask Transport Canada to confirm the safety of this stretcher and to determine whether it is acceptable for passengers to increase the padding on the stretcher, if necessary, and to dismount from the stretcher in flight when the seat belt sign is turned off. Mr. Growe also asks that the Agency determine how research might be done to determine if this service would benefit Ms. Cook alone, or if it would be a significant contribution to the quality of life for a much larger number of Canadians with severe back problems. It is Mr. Growe's expectation that research will show that there are a significant number of people who cannot travel by air because they cannot sit for extended periods of time.
Mr. Growe states that Air Canada's cancellation of its stretcher service damages the interests of all Canadians who may in the future need this service as a lower cost alternative to air ambulance service. People who must travel lying down and who do not have medical insurance to travel by air ambulance will be unable to travel by air at all unless they are wealthy. Mr. Growe states that he and Ms. Cook cannot afford air ambulance service to visit Ms. Cook's father and, as such, Air Canada has created an undue obstacle to their travel by cancelling its stretcher service. Mr. Growe asserts that the application against Air Canada concerning costs should not be declared moot because all airlines that operate Airbus aircraft are capable of meeting this need. Mr. Growe concludes by requesting that Canadian carriers be required to offer stretcher service to persons with disabilities who cannot sit at a cost that can be afforded by people with modest or limited incomes.
The CCD applicants
The CCD applicants state that to suggest a stretcher is not a "mobility aid" and therefore is outside the jurisdiction of the Agency is so absurd as to merit no reply.
According to the CCD applicants, to say that persons with disabilities must use air ambulance or travel through foreign airspace is no answer to the accommodation requirements of persons with disabilities. The CCD applicants are of the view that it is an undue obstacle to the mobility of persons with disabilities to deny accommodation to persons who must be transported on a stretcher.
Analysis and Findings
In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
An application must be filed by a person with a disability or on behalf of a person with a disability. The Agency notes that Ms. Cook has fibro myalgia, which causes severe pain in her back, neck and head, including stiffness in her joints and muscles. Although Ms. Cook is physically able to sit, lie down, stand and walk, she does so only for limited periods of time to limit pain and stiffness. Ms. Cook needs to be able to lay down on a flat surface in order to travel
by air. As such, the Agency is of the opinion that Ms. Cook is a person with a disability for the purpose of applying the accessibility provisions of the CTA.
To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.
Whether the applicant's mobility was restricted or limited by an obstacle
The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.
In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.
The case at hand
Persons with disabilities have the same rights as others to full participation in all aspects of society and there can be no doubt that equal access to transportation is critical to the ability of persons with disabilities to exercise that right. Furthermore, the principle of the right to equal access to transportation reflects a recognition that persons with disabilities have the same needs to travel as others - for business, for pleasure, for medical reasons, and the like - and want to have the same travel options that are provided to others, such as those respecting mode of transportation, departure times, cost, and the ability to travel with friends, family or colleagues.
Ideally, all modes of transportation would be fully accessible to all persons with disabilities and equal access would be a reality for all. However, this is not the case. It is intuitively obvious that, as in the rest of society, there are barriers or obstacles to participation inherent in the transportation network that will act to prevent or make access to that network difficult for some people.
Insofar as transportation service providers are aware of the needs of persons with disabilities and are prepared to accommodate those needs, it can be said that persons with disabilities may have equivalent access to the network. Implicit in the use of the term "equivalent access" is the notion that, in order to provide equal access to persons with disabilities, transportation service providers may have to provide different access - more or different services, different facilities or features, all designed to meet the needs of persons with disabilities to ensure that they, too, can access the network.
The Agency does not accept the carrier respondents' argument that because there is no legislative obligation to provide stretcher service, the Agency does not have jurisdiction to consider this issue. Specifically, the Agency is of the opinion that while a stretcher is, in the broadest sense of the words, a "mobility aid" for purposes of assisting persons with disabilities in their mobility by permitting them access to transportation modes that they might otherwise be prevented from using, the ATR and the Personnel Training Regulations cannot reasonably be interpreted as applying to stretcher service. However, the absence of a regulatory requirement to accommodate persons who use stretchers is not determinative of the issue of the Agency's jurisdiction in any way. In fact, the legislative scheme specifically provides that the Agency may consider applications "into a matter in relation to which a regulation could have been 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."
As a result of her disability, Ms. Cook cannot sit for prolonged periods of time and she has specific needs which must be met in order for her to be able to travel by air which include the ability to lay down on a flat surface and the ability to stand and stretch from time to time. The Agency accepts that these particular needs are difficult to accommodate in transportation, particularly for travel over long distances.
Ms. Cook and her husband want to travel from their home in Vancouver to Toronto in order to visit her ailing parents. They have explored many transportation options for this trip and they decided that air travel by stretcher would best meet her needs as the fastest mode of transportation available.
People who travel by air on stretchers generally do so for medical reasons and they use air ambulance services, the cost of which is usually paid for under health insurance. Unfortunately, because Ms. Cook's trip is for reasons other than medical, she would be responsible to pay the cost of an air ambulance service and their research has shown that it would cost between $27,000.00 and $50,000.00 for one round-trip flight between Vancouver and Toronto. Mr. Growe has submitted that they cannot afford this prohibitive cost.
The cancellation of Air Canada's stretcher service will result in a significant reduction in the options for travel for Ms. Cook and, in particular, the elimination of a timely, direct means of travel between Vancouver and Toronto. Although Ms. Cook had concerns about whether Air
Canada's service would ultimately meet her needs, it is apparent that the cancellation of the service altogether has limited her travel options and constitutes an obstacle to her mobility.
The cancellation of Air Canada's stretcher service will prevent access to Air Canada's flights by persons such as Ms. Cook who require a stretcher to travel by air. The Agency therefore finds that the proposed cancellation of Air Canada's stretcher service constitutes an obstacle to Ms. Cook.
Whether the obstacle was undue
As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.
While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.
The case at hand
The Agency has already discussed the principle of accessibility that persons with disabilities should be entitled to equivalent access to the federal transportation network and has found that the cancellation by Air Canada of the service that Ms. Cook asserts that she requires in order to travel by air constitutes an obstacle to her mobility. Another important concept is that of reasonable accommodation which, in the context of the Agency's mandate, refers to the responsibility of the transportation service provider to meet the needs of persons with disabilities "as far as is practicable". In this regard, the Agency's mandate under Part V of the CTA is to eliminate undue obstacles to the mobility of persons with disabilities from the federal transportation network and where a transportation service provider can justify providing something less than equivalent access, then it can be said that it has provided a reasonable accommodation and the Agency would not find an undue obstacle in the accommodation. However, if the Agency finds that the accommodation provided falls short of what is practicable in the circumstances, then the Agency may find an undue obstacle and may require the taking of corrective measures to eliminate that undue obstacle.
Air Canada's stretcher service between Vancouver and Toronto was available to Ms. Cook. However, in investigating the service, Mr. Growe and Ms. Cook came to realize that the service would not meet Ms. Cook's needs as she would be unable to stand and stretch from time to time and, as such, she would also be unable to use the washroom for an extended period of time. Given the length of time that Ms. Cook would be required to remain immobile, Mr. Growe and Ms. Cook rejected the possibility of travelling by stretcher for the entire trip and they began investigating other alternatives.
The best alternative appeared to be a Cathay Pacific flight as it offered first class seats which fully reclined; however, unfortunately, this flight only operated between Vancouver and New York and Mr. Growe and Ms. Cook were required to travel from New York to Toronto by van. At $7,000.00, this trip cost less than any of the other air alternatives although it took longer than the couple would have liked and it was a difficult trip for Ms. Cook from that perspective.
It seems clear from the evidence that Air Canada's stretcher service is not suitable to meet Ms. Cook's needs to travel directly from Vancouver to Toronto. Furthermore, while Mr. Growe has proposed an alternative stretcher that he believes could be used on Air Canada's Airbus aircraft and would better meet Ms. Cook's needs, in the meantime, Air Canada has decided to cancel stretcher service altogether.
The Agency notes that Air Canada intends to stop accepting stretcher bookings due to the limited demand for its services. While the Agency is concerned with Ms. Cook's situation and the limited travel options that she has, it notes that there is very little demand for stretcher service, particularly for purposes that are not medically necessary. The Agency notes that, although Mr. Growe expects that research would show that there is a significant number of people who cannot travel by air because they cannot sit for extended periods of time, he has only been able to show that there is one such person, that being his wife. In Decision No. 348-AT-A-2005 dated June 1, 2005, in Mr. Growe's service-related application, the Agency noted Air Canada's position and the statement of Air Canada's witness, Dr. Bekeris, given at the oral hearing that Ms. Cook's specific requirements are unique, that it is not possible to customize its services for one person, and that, to his knowledge, Air Canada has never before had an ambulatory passenger that has used the stretcher installation.
The Agency is aware that there are significant financial and operational implications to carriers in providing specialized services such as stretcher services. Specifically, the Agency is aware, from its investigation of Mr. Growe's application regarding Air Canada's stretcher service that these implications include the processes involved in certifying such equipment pursuant to the Canadian Aviation Regulations, as well as the testing of the equipment and training personnel in the use of the equipment and the provision of the service. The Agency is also aware of further implications such as the cost of obtaining the proper equipment to fit the various aircraft types, the costs associated with providing the services, maintaining the equipment and training personnel in the processing of requests for the service. Under the circumstances, the Agency does not consider that it would be reasonable to require Air Canada to maintain its stretcher service on behalf of one person, particularly one for whom the service is not appropriate. Furthermore, the Agency does not consider that it would be reasonable to require Air Canada to expend the time and resources required to investigate, test, acquire, and maintain a new stretcher system for one person nor for it to incur the costs associated with training its personnel to use such a system. Finally, while the Agency acknowledges that there may be other persons with disabilities who would require a stretcher in order to travel by air for non-medical reasons, given the foregoing operational and financial implications and, in the absence of evidence demonstrating that the demand for stretcher service would be significantly higher, the Agency believes that it would be unreasonable to require Air Canada to provide this service.
Accordingly, in balancing the rights of persons with disabilities to travel by air without encountering undue obstacles to their mobility and the financial and operational implications to air carriers of providing a stretcher service and given the low incidence of persons who require stretcher service in order travel for non-medical reasons, the Agency is of the opinion that it would not be reasonable or practicable for the Agency to impose an obligation on Air Canada to provide stretcher services.
Having said this, the Agency may, on application, revisit this issue should the number of persons needing this level of accommodation increase significantly or new factors arise which would justify a review of this determination.
In light of the above, the Agency finds that the cancellation of Air Canada's stretcher service does not constitute an undue obstacle to the mobility of Ms. Cook.
Implications of the Cancellation of Stretcher Service on the AFC Investigation
Having determined that, in view of the factors noted above, Air Canada is not obliged to provide stretcher service and the cancellation of Air Canada's stretcher service does not constitute an undue obstacle to the mobility of Ms. Cook, the Agency must now consider the implications of the cancellation of Air Canada's stretcher service on the Agency's investigation into the cost of stretcher services which forms part of the AFC applications.
Mootness of the cost related to travel on a stretcher
With respect to the issue of mootness, the CCD applicants refer to the Supreme Court of Canada's decision in the case of Borowski v. Canada  1 S.C.R. 342., in which Mr. Justice Sopinka gave the judgement for the Court. The CCD applicants summarize the doctrines of mootness, including the requirement of a live controversy; the ability to consider the issue at hand in any event (i.e., without the existence of a live controversy); and issues related to the ability to consider the issue at hand in any event, such as adversarial context, judicial economy, and the need for the Court to recognize its proper law-making function.
The CCD applicants note that the carrier respondents, in their submission of September 9, 2005, did not address the issue of mootness and that clearly the issue of fares payable by persons with disabilities who require more than one seat in order to travel safely and with dignity on a stretcher is not moot. In the event the issue is found to be moot, the CCD applicants submit that valid reasons exist justifying that the Agency exercise its discretion to hear and decide the issue of related costs in any event. The CCD applicants further state that it is clear that the Growe application on the cost of travelling on a stretcher can in no sense be said to be moot; it cannot be said that the Growe application is without any probability of success; they are entitled to compensation for the extra costs occasioned by Air Canada's policy of charging for additional seats needed to travel on a stretcher; and that "the applicants wish to see that the issue of fares charged for persons who require more than one seat due to disability be addressed without exception, including persons requiring the accommodation os stretchers."
Scope of investigation
The CCD applicants request that, specifically, the Agency confine the AFC application to the issue of cost -- additional fares and charges imposed by the carriers on persons with disabilities, including persons requiring accommodation by stretcher -- and suggest that the following issues be addressed in other proceedings:
- common carrier and statutory obligations to carry persons requiring accommodation by stretcher;
- who is entitled to be accompanied by an attendant; and
- when is a person deemed to be obese.
The CCD applicants submit that those issues are for another day, but that they are all issues where, in assessing the undueness of the obstacles each of these policies potentially represent, it would be essential to know what the air carriers can charge for the additional seats required. For example, when the issue of a common carrier obligations regarding stretcher service is raised in a future application, it would make the issue more justiciable to have the issue of fares for those additional seats already decided in the AFC case.
The CCD applicants state that, rather than attempt to duplicate the lengthy and expensive process to which the applicants are being subjected in a case addressing each of these accommodations, it is submitted that the evidence necessary to decide the issue of additional fares and charges will all be before the Agency on the AFC application and this is the application in which this issue should be decided. The CCD applicants submit that no individual applicant can possibly respond to the overwhelming resources of the air carriers, and the Agency would therefore be compelled, as it was in the McKay-Panos application (see Decision No. 646-AT-A-2001) to appoint and resource amicus curiae in order to maintain some semblance of fairness in its process.
Continuation of cost issue regarding stretcher service
The CCD applicants assert that regardless of whether there is an obligation to provide the service, the Agency should continue to include the issue of the cost of travel on a stretcher in its investigation into the cost of air travel for persons with disabilities who require more than one seat to accommodate their disability, either for themselves or for their attendant. They point out that they have raised the issue of all circumstances "where more than 1 seat is required for the transport of a disabled person for various reasons arising from his [or] her disability", intending that the case of a person who requires more than one seat by reason of being on a stretcher be included.
The CCD applicants state that they were not seeking individual remedies; rather, they are seeking that corrective action be taken and, specifically, that the Agency direct that the carrier respondents remove the undue obstacle and unreasonable discrimination their tariffs represent for persons with disabilities. The CCD applicants wish to see the issue of fares and charges for persons who require more than one seat due to disability be addressed without exception, including persons requiring accommodation by stretcher. In the event that Mr. Growe's application is withdrawn, the CCD applicants request that the Agency exercise its discretion to hear and decide the issue of fares for persons who use stretchers to travel by air. The CCD applicants state that they will address all issues of undueness arising from the transportation of persons requiring more than one seat due to travelling by stretcher.
The CCD applicants submit that it would be possible, at little or no additional cost to the respondents and the applicants, not to mention the Agency's expert, to address the issue of fares for persons requiring stretchers based on the productions of the air carriers, Mr. Growe and the experts who have already been retained. The CCD applicants state that it is an issue that, if it is not resolved in this application, will inevitably be raised in a future application, requiring that all the same evidence be called and considered yet again. The CCD applicants submit that whether there will again be parties comparable to the applicants before the Agency capable and willing to attempt matching the resources of the air carriers is doubtful at best. The CCD applicants state that the issue is inextricably intertwined with the issues before the Agency. The CCD applicants therefore request that the Agency not strike the issue of fares for the seats required by persons with disabilities travelling by stretcher from the CCD applicants' application.
As noted above, the Agency hereby dismisses Mr. Tucker's application and will place it on the AFC applications file as a submission in support of those applicants.
The Agency notes that Mr. Growe and the CCD applicants want the Agency to continue to consider the fares and charges to persons with disabilities who need to use a stretcher when travelling by air.
The Agency acknowledges the case law cited by the CCD applicants supporting the proposition that the Agency retains discretion to consider a matter based on facts that no longer exist and, in fact, the Agency does, from time to time, exercise discretion in this way. However, in this case and, in the face of the cancellation of Air Canada's stretcher service and having found that Air Canada is not obliged to provide a stretcher service by common carrier obligations or otherwise, based on the evidence before it, the Agency finds that there is no reason to keep the cost of stretcher service as an issue before it in its consideration of the AFC applications. The Agency is thus of the opinion that, to keep the cost of stretcher service as an issue in its investigation of the AFC applications, would unduly complicate the process and, as noted above, would be inefficient and a misuse of both parties' and the Agency's resources. In the absence of an existing stretcher service policy, the Agency will therefore limit its investigation of the AFC applications to the present situations and therefore dismisses Mr. Growe's application.
In view of the above, the suspension as per Order No. 2005-A-453 of Air Canada's international tariff, proposing to discontinue accepting passengers on stretchers, is rescinded. Air Canada may now put into effect previously proposed amendments to Rule 500 in its international scheduled service tariff NTA(A) No. 458. Pursuant to paragraph 129(2) of the ATR, the provision may become effective not less than one working day after the date of filing of an amended tariff restoring the proposed changes to Rule 500.