Letter Decision No. LET-AT-A-32-2015
Application by Donna Jodhan against the Greater Toronto Airport Authority.
Ms. Jodhan, who is blind, filed an application with the Agency, pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) which related, in part, to an incident she experienced after a flight on Caribbean Airlines Limited carrying on business as Air Jamaica (Caribbean Airlines). The application concerns the provision of services at the Toronto Pearson International Airport (Pearson Airport) to persons who are blind or partially sighted like Ms. Jodhan.
On November 28, 2014, the Agency issued Decision No. LET-AT-A-81-2014, opening pleadings on the following issues:
- The provision of wheelchair assistance instead of guiding assistance;
- The manner in which the Greater Toronto Airport Authority (GTAA) prioritizes the types of assistance it provides to persons with disabilities, particularly as this concerns persons who need wheelchair assistance and persons who are blind or partially sighted and need guiding assistance;
- The manner in which guiding assistance is provided to persons who are blind or partially sighted from the curb-side drop-off to the check-in counter; and,
- The manner in which assistance with luggage is provided to persons who are blind or partially sighted.
In response, the GTAA states that assistance for persons with disabilities at the Pearson Airport is provided through its Airport Customer Assistance Program (ACAP) by a third party, Servisair, and that each carrier, including Caribbean Airlines, operating at the airport is responsible under the CTA for ensuring assistance is available for its passengers. Accordingly, the GTAA requested that the application against it be dismissed, or in the alternative, that Servisair and Caribbean Airlines be joined as respondents.
GTAA'S REQUEST TO DISMISS THE APPLICATION OR TO INCLUDE CARIBBEAN AIRLINES AND SERVISAIR AS RESPONDENTS
Position of the GTAA
On February 23, 2015, the Agency issued Decision No. LET-AT-A-10-2015. In it, the Agency asked the GTAA if it had granted Caribbean Airlines an exemption from the obligation that the GTAA imposes on carriers operating at Pearson Airport to enter into an agreement with Servisair (the Service Agreement), whereby Servisair provides wheelchair assistance to passengers.
The GTAA answered that Caribbean Airlines is not exempt.
The Agency then issued Decision No. LET-AT-A-24-2015, in which the Agency required the GTAA to answer specific interrogatories about the provision of guiding assistance and luggage assistance.
In response, the GTAA submits that Servisair is required to provide guiding assistance and luggage assistance. The GTAA explains that paragraph 1.1 of Annex 1.1 of the Service Agreement does not limit the services required to be provided by Servisair to wheelchair or surrey services. Instead, it includes a broad mandate to provide "operational support services" in order to "facilitate the transport of People with Disabilities and other passengers requiring assistance". The GTAA adds that the definition of disability specifically includes "vision loss". Finally, the GTAA states that Servisair is required to provide luggage assistance because paragraph 1.1 of Annex 1.1 of the Service Agreement includes luggage assistance as a mandatory service for persons who require assistance, including persons who are blind or partially sighted.
In the same response, the GTAA claims that it has no involvement or direct knowledge of the events giving rise to Ms. Jodhan's application. The GTAA also submits that Caribbean Airlines is responsible under the CTA and the Air Transportation Regulations, SOR/88-58, as amended (ATR), to ensure that assistance is provided to any passenger with a disability requiring such assistance. This includes ensuring that its employees or the employees of a contractor such as Servisair are properly trained, in particular to ensure that persons providing assistance understand how to guide a person who is blind or whose visual impairment affects mobility.
The GTAA also points out that Caribbean Airlines engages with Servisair to provide services to discharge its direct statutory obligations under the CTA and the ATR.
ANALYSIS AND FINDINGS
Under Part VII of the ATR, in respect of domestic service, carriers are required to provide assistance to passengers with disabilities, including assistance in proceeding to the boarding area, assistance in retrieving the person's checked baggage, and assistance in proceeding to the general public area.
While Part VII of the ATR does not directly apply to international service, the Agency has found in past decisions that the underlying principles of the ATR do apply to international services: see e.g. Scott v. Air Canada, Decision No. 386-AT-A-2009, at paragraph, 48; Shumak-Dantowitz v. Air Transat, Decision No. 154-AT-A-2008, at paragraph 67; Riddle v. Air Canada, Decision No. 724-AT-A-2005, at paragraph 94; Mattson v. Air Canada, Decision No. 685-AT-A-2005, at paragraph 66; Swaffield v. Air Canada, Decision No. 523-AT-A-2005 , at paragraph 42; Skrettas v. Air Canada, Decision No. 527-AT-A-2004, at paragraph 32.
As a result, although the source of the obligations on carriers differs, the services to be provided for international service include those mentioned in the ATR, except that for international services, carriers can justify an inability to offer these services based on undue hardship.
Therefore, Caribbean Airlines normally does have obligations towards its passengers with disabilities when operating international service.
However, the Agency is of the opinion that, in the particular circumstances of this case, the GTAA has assumed Caribbean Airlines' obligations towards passengers with disabilities for the following reasons.
First, the GTAA required Caribbean Airlines to sign a contract where all services for passengers with disabilities would be provided by Servisair, not Caribbean Airlines, as a condition for Caribbean Airlines being permitted to operate at the Pearson Airport.
Second, the GTAA dictates the parameters of the services for passengers with disabilities provided by Servisair through a procedures manual. The procedures manual, which is the property of the GTAA, consists of the ACAP training program, and includes the scope of services, handling process, sensitivity, etc. In addition, the procedures manual is developed in conjunction with the GTAA and is maintained and updated to reflect the evolving requirements of the GTAA, as directed by the GTAA.
In light of the foregoing, it is apparent that Caribbean Airlines has no control over which services are provided to its passengers with disabilities and how and by whom these services are provided; rather, de facto control rests with the GTAA. Furthermore, Caribbean Airlines had no choice but to enter into the Servisair contract imposed upon it by the GTAA.
In addition to the above, there is one final consideration: jurisdiction. Both Caribbean Airlines and the GTAA fall under the jurisdiction of the Agency. Therefore, there is no risk that, in finding that the GTAA has assumed the obligations of Caribbean Airlines towards its passengers with disabilities, that Caribbean Airlines would be evading the oversight of the Agency and that passengers with disabilities would be deprived of the assistance they require and to which they are entitled.
For all these reasons, and in this particular set of circumstances, the Agency finds that Caribbean Airlines should not be added as a respondent to the application filed by Ms. Jodhan, as the participation of Caribbean Airlines is not necessary for the resolution of the dispute. Rather, as the GTAA has assumed responsibility for the services related to the issues raised by Ms. Jodhan's application, its participation is sufficient to proceed with the adjudication.
With respect to the GTAA's request that Servisair be added as a respondent, the Agency is of the opinion that a transportation service provider operating within the federal transportation network cannot escape its statutory responsibilities by relying on a contractor to perform its obligations. When contracting services, a service provider needs to ensure that the contractor provides the necessary level of service.
This is reinforced by section 4 of the Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42 (PTR) which makes it clear that it is the responsibility of terminal operators to ensure that contracted personnel are properly trained to provide services to persons with disabilities:
Every carrier and terminal operator shall ensure that, consistent with its type of operation, all employees and contractors of the carrier or terminal operator who provide transportation-related services and who may be required to interact with the public or to make decisions in respect of the carriage of persons with disabilities receive a level of training appropriate to the requirements of their function…
The Agency has reflected this in past decisions, such as Decision No. 295-AT-A-2006 and Decision No. 194-AT-A-2007, which named the GTAA as a respondent and made findings with respect to its ACAP services.
In light of the above, the Agency finds that, pursuant to section 4 of the PTR, the GTAA has the responsibility to ensure its employees and contractors receive the appropriate training and provide the required assistance to persons with disabilities. The Agency therefore finds that Servisair should not be added as a respondent to Ms. Jodhan's application, as the participation of Servisair is not necessary for resolution of the dispute.
As explained above, the Agency finds that the GTAA is a proper respondent to Ms. Jodhan's application and therefore rejects the GTAA's request to dismiss the application against it. Furthermore, the Agency rejects the GTAA's request to join Caribbean Airlines and Servisair as respondents, as their participation is not necessary for resolution of the issues raised by the application.
PLEADINGS ON SUBSTANTIVE ISSUES
Having made its final determination on the appropriate respondent to Ms. Jodhan's application, the Agency will now proceed to a determination of the substantive issues raised by the application.
However, to date, the GTAA has only argued, as a preliminary issue, that the application should be dismissed against it or that alternatively, the Agency should include Servisair and Caribbean Airlines as respondents. The Agency, therefore, still does not have the GTAA's answer on the substantive issues of the application.
Accordingly, the Agency requires the GTAA to file its answer to the application in which it should address the following issues:
Do any of the following constitute undue obstacles to persons who are blind or partially sighted, including Ms. Jodhan:
- The provision of wheelchair assistance instead of guiding assistance at the Pearson Airport;
- The manner in which the GTAA prioritizes the types of assistance it provides to persons with disabilities, particularly as this concerns persons who need wheelchair assistance and
- persons who are blind or partially sighted and need guiding assistance;
- The manner in which guiding assistance is provided to persons who are blind or partially sighted from the curb-side drop off to the check-in counter at the Pearson Airport; and
- The manner in which assistance with luggage is provided to persons who are blind or partially sighted at the Pearson Airport.
The GTAA has until 5:00 p.m. Gatineau local time on June 12, 2015 to file its answer with the Agency and provide a copy to Ms. Jodhan. If the GTAA does not file an answer, the Agency will make its decision based on the information provided by Ms. Jodhan.
Ms. Jodhan will then have until 5:00 p.m. Gatineau local time on the fifth business day after the date of receipt of the GTAA's answer to file a reply with the Agency and provide a copy to the GTAA. A reply must not raise issues or arguments that are not addressed in the answer or introduce new evidence unless a request has been made under section 34 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 and that request has been granted by the Agency.
Pleadings will close on the receipt of Ms. Jodhan's reply, or the expiry of her time limit to file a reply, whichever is sooner.