View PDF: 2017-03 (Jun 21-17)
In September 2016, it was reported in the Canadian media that “a string of lawsuits” had been commenced in respect of incidents alleged to have resulted from problems with wheelchair services at Toronto Pearson International Airport.
Usually in cases involving wheelchair and other passenger assistance services, the air carrier and/or the dedicated third party service provider are named as parties to the claim or complaint. This makes sense—passengers normally arrange for assistance at the airport when they book their tickets with the carrier and almost all carriers that operate at Pearson contract with a third party service company to provide those services. In addition, carriers and service providers have statutory and/or contractual obligations regarding the provision of wheelchair and similar services to passengers who require assistance at the airport.
In the case of a complaint brought to the Canadian Transportation Agency (the “Agency”) by Donna Jodhan about the provision of passenger assistance services, neither the carrier nor the ground handling company was named as a respondent. Instead, Ms. Jodhan named only the Greater Toronto Airports Authority (the “GTAA”), which operates Pearson International.
Like carriers and ground handlers, the GTAA is often included as a respondent to airport passenger assistance service claims, but it is unusual for it to be the only one so named.
Feeling a little singled out, the GTAA asked that the Agency dismiss Ms. Jodhan’s complaint against it or, in the alternative, that it add Ms. Jodhan’s carrier and the service provider as co-respondents to the complaint. The Agency denied this request in May 2015. At the end of March of this year, the Federal Court of Appeal dismissed the GTAA’s appeal from that decision.
Ms. Jodhan returned to Toronto from Trinidad and Tobago on a January 13, 2014 Caribbean Airlines Ltd. (“Caribbean”) flight. When booking her ticket, she had requested passenger assistance services appropriate for a visually impaired person. On arrival, she was met by someone with a wheelchair. Ms. Jodhan advised that she only required someone to walk with her through the terminal and did not need a wheelchair. She waited for 45 minutes before appropriate assistance was provided. On that basis, she filed a complaint with the Agency in 2014.
The Agency issued a decision to open pleadings, in which it identified several issues to be determined on the application. In response, the GTAA stated in part that:
- Assistance for persons with disabilities is provided through its Airport Customer Assistance Program (“ACAP”) by a third party, Servisair Inc. (“Servisair”)
- Each carrier that operates at Pearson, including Caribbean, is responsible under the Canada Transportation Act (the “Act”) for ensuring that assistance is available for its passengers
On that basis, the GTAA requested a dismissal of the complaint or that Caribbean and Servisair be joined as respondents.
In response, the Agency issued a decision requiring the GTAA to answer specific interrogatories about how passenger assistance services are provided at Pearson. Included among the GTAA’s answers was the following information:
- At the relevant time, the GTAA had licensed Servisair to provide a range of services to air carriers for passengers who required assistance proceeding through Pearson’s terminals
- This agreement required that Servisair enter into separate agreements with each air carrier that required such services for their passengers
- The GTAA was not a party to the individual agreements between Servisair and each individual air carrier
- Once a request for assistance is made by a passenger to the carrier, the carrier is responsible for ensuring that Servisair is given sufficient notice of and information about the services required
- Servisair employees were specially trained to provide assistance to passengers with different forms of disabilities, including those with visual impairments
- The GTAA was not involved in requests for assistance or the arrangement of services in response to those requests
The Agency’s Decision
Part VII of the Air Transportation Regulations, SOR/88-58 (the “ATR”) governs the provision of services to persons with disabilities. While Part VII technically only applies to domestic service, the Agency has consistently held that the principles underlying its provisions also apply to international service. It did the same in this case.
As the Federal Court of Appeal noted in its decision, subsection 147(1) of the ATR, which is in Part VII, requires carriers to provide disabled persons such assistance as they require from the check-in counter to their seat on a flight and from their seat to the public area on arrival.
The Agency first dealt with the GTAA’s request to add Caribbean as a party to Ms. Jodhan’s complaint. It found that, while Caribbean normally has obligations to its passengers with disabilities, on the facts before it, the GTAA had assumed these obligations. This finding was based on four factors:
- Caribbean was required by the GTAA to sign a contract with Servisair for the provision of the services in question as a condition for operating at Pearson.
- The GTAA dictates the parameters of the services provided to persons with disabilities at Pearson.
- Caribbean therefore neither controlled which services were available nor how and by whom they were provided: the GTAA had “de facto” control over these matters.
- Because both the GTAA and Caribbean are subject to the Agency’s jurisdiction, there was no risk that failing to add Caribbean to the application would allow it to evade Agency oversight.
With respect to Servisair, the Agency held that a transportation service provider like the GTAA could not “escape its statutory responsibilities by relying on a contractor to perform its obligations.” The Agency held that the GTAA was responsible for ensuring that its contractors provided the required assistance to persons with disabilities and, in the Agency’s view, Servisair’s participation was not necessary for the resolution of Ms. Jodhan’s complaint.
The GTAA appealed this decision to the Federal Court of Appeal.
The Appeal Decision
The Federal Court of Appeal took a deferential approach to the Agency’s decision below, in line with the current trend in Canadian administrative law. On that approach, so long as the Agency’s decision could be characterized as “reasonable”, it should not be set aside on review.
As a starting point, the court noted that the Agency appeared to have asked itself the right question on an application to add parties to a proceeding: is the party’s presence required to determine the matters in issue?
While the court upheld the Agency’s decision not to add Caribbean or Servisair as respondents, it cast some shade on that exercise of discretion. For the court, Justice Pelletier noted that, based on the few facts known at this early stage of the proceedings, it appeared clear that a request for assistance had been made and processed by the GTAA, Caribbean and/or Servisair. Someone did show up to meet Ms. Jodhan on landing, after all.
What was not so clear was whether the allegedly inappropriate assistance was due to any problem for which the GTAA was responsible. It might have been due to a problem with policies or training for which the GTAA had some responsibility—but it might also have been the result of “something as banal as error, indifference or carelessness on the part of the relevant employee.” While accepting that this determination of fact was for the Agency to make, Justice Pelletier expressed that view that in declining to add Caribbean or Servisair as respondents, “the Agency has made its task more difficult.”
On the appeal, the GTAA argued that this decision also amounted to a breach of its right to procedural fairness. The court did not agree that this was so—at least at this stage of the proceedings.
In short, the Federal Court of Appeal held that the GTAA’s appeal from the Agency’s interlocutory decision was premature. On the court’s analysis, the Agency’s decision not to add Caribbean or Servisair to the application might end up being unfair to the GTAA’s ability to put forward its position—but it was not necessarily unfair.
That is, much depends on how the Agency conducts the hearing of Ms. Jodhan’s complaint on the merits. At this stage, it seemed reasonable to expect that the GTAA would be able to put any necessary evidence of Caribbean and Servisair before the Agency “in one way or another.”
Until the Agency made a final decision on the application and issued reasons for that decision, it was too soon to conclude that the GTAA’s right to procedural fairness had been breached.
Similarly, the court held that it was premature to determine whether the Agency’s provisional view of the GTAA’s responsibilities over the provision of services to persons with disabilities, as expressed in its interlocutory decision, was either unreasonable or amounted to an “unlawful amendment of a regulation by way of an adjudicative proceeding” as argued by the GTAA.
The complaint will therefore be heard by the Agency, with only the GTAA as respondent.