View PDF: ATPDRs (Formatted February 28 2020)
In 2019, the Canadian federal government made a push to address barriers for persons with disabilities, including by passing the Accessible Canada Act. The stated goal is to make Canada barrier-free by 2040. The legislation and related regulations target federal agencies and federally-regulated industries, including aviation.
The Accessible Transportation for Persons with Disabilities Regulations (“ATPDR”) were finalized and published in July 2019 as part of the Canadian Transportation Agency’s Regulatory Modernization Initiative (RMI), which launched in 2016.
The ATPDR address federally-regulated transportation participants – not only in aviation, but also rail, marine and inter-provincial bus transportation. And they apply not just to carriers, but also to airports and terminal operators and to the Canada Border Services Agency, among others.
Most of the provisions under the ATPDR come into force on June 25, 2020. These include the service requirements applicable to carriers, found in Part 2 of the regulations. Part 2 is the only part that applies to foreign carriers – Canadian carriers have additional obligations that they must meet under the ATPDR.
For the time being, only “large” carriers are subject to any requirements under the ATPDR, which has a different definition than the one found in the Air Passenger Protection Regulations (“APPR”). Under the ATPDR, a carrier is “large” if it has transported one million passengers or more in each of the previous two calendar years; under the APPR, the cutoff is two million passengers.
Part 2 of the ATPDR comprises sections 24 to 62. Among other kinds of carrier, this Part applies to “every large air carrier that provides a service for the transportation of passengers
- between points within Canada;
- from a point of origin in Canada to a point of destination in a foreign country, or
- iii. from a point of origin in a foreign country to a point of destination in Canada.”
As a general rule, carriers are required to provide the various services set out in Part 2 of the ATPDR where a passenger requests them at least 48 hours in advance of the scheduled departure. However, carriers are required to provide some services even if the request is made less than 48 hours pre-departure, including wheelchair service.
In addition, if the request for a service is received less than 96 hours (four days) pre-departure and the carrier informs the person that further information or documentation is required to allow it to assess the request and the required information is not provided more than 48 hours pre-departure, strictly speaking, the carrier is not required to provide the service.
However, s. 32(4) provides that carriers must make a reasonable effort to provide any service requested by a person with a disability no matter when it is received.
Section 54 provides that where a person with a disability identifies the nature of their disability when making a reservation, the carrier is obliged to “engage in a dialogue” to identify the person’s needs and to discuss the services available to them.
In addition, where the nature of the disability is identified, the carrier must inform the person about seats available in the class of service the person has requested that might best meet the accessibility needs of the person, such as “a passenger seat that has additional leg room, a larger seat pitch or movable armrests.” When assigning a seat, s. 55(2) requires the carrier to take into account the person’s opinion as to which seat or cabin would best meet the person’s accessibility needs.
Section 58 requires carriers to indicate in the reservation system the services that the carrier will provide to the person and “include a written confirmation of the services in the itinerary that is issued to the person” or, if the service is confirmed after the issuance of the itinerary, a written confirmation of the service must be provided to the person. This is intended both to require a record of the services is kept by the carrier and to provide the person with positive evidence that the services were confirmed.
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Several carriers have expressed concern with section 59 of the ATPDR, which requires carriers to offer to retain electronic record of any information – including personal health information – a person with a disability provides in relation to a request for a service under Part 2 for at least three years. The aim of this provision is to have carriers hold on to documents like medical notes or certificates that might be needed as proof for the purpose of providing any disability-related services, so that the person in question need not submit this sort of evidence every time a request for a service is made.
Some carriers have indicated that they do not have the capacity to retain this sort of information currently and, more importantly, that doing so may violate various American laws protecting the privacy of individual’s health and medical information.
Section 33 provides that carriers may require persons who request many of the services addressed in Part 2 (there are exceptions) to provide “any information or documents, including a medical certificate, that are reasonably necessary to permit the carrier to assess the person’s request.”
Section 34 requires carriers to allow persons with disabilities to board in advance of other passengers on request if the person requests assistance with boarding, locating their seat, transferring between a mobility aid and their seat, or storing carry-on baggage.
It also requires that priority boarding be provided to passengers who are blind or have any other visual impairment and request assistance.
Finally, priority boarding must be provided on request to persons who are disabled due to a severe allergy and the person has requested to clean their seat area to remove any potential allergens. “Severe allergy” is defined in Part 2 as “an allergy to an allergen that may cause a person to experience significant physical distress if they are directly exposed to the allergen.”
Other assistance and services, on request
Section 35 of the ATPDR sets out a long list of types of assistance that carriers must provide if requested by a person with a disability. These include:
- assistance with checking in;
- if unable to use a self-service kiosk, allowing the person to advance to the front of the line at a check-in counter;
- assistance with proceeding through security checks at the airport and to the gate prior to boarding;
- assistance with boarding and disembarking;
- assistance with storage of carry-on baggage;
- assistance with any entertainment system available on-board; and
- providing an individualized safety briefing and demonstration.
In addition to the requirement to provide wheelchair service – usually through a wheelchair service provider – the ATPDR requires that if a person with a disability who is in a wheelchair or other device and is not independently mobile is waiting post-check in for departure or for a connecting flight, the carrier must ensure that the person is provided a place to wait that is close to agents – either of the carrier or of a wheelchair service provider – who are available to provide assistance. Sections 37 and 38 also require that members of personnel periodically inquire about the person’s needs.
Transportation of mobility aid and other assistive devices
Section 40 requires that carriers accept mobility aids for transport as “priority baggage” and to allow the person who requires the mobility aid to retain it until it becomes necessary to store it.
However, carriers may refuse to carry a mobility aid if the baggage compartment or the door to the baggage compartment cannot accommodate the mobility aid; or transporting it would jeopardize the aircraft’s airworthiness; or the weight or size of the aid exceeds the capacity of the lift or ramp. If transport of a mobility aid is refused, the carrier must explain the reasons for the refusal and, in addition, set out that explanation in writing within 10 days.
Carriers must make room to transport mobility aids by removing cargo or other baggage, if necessary; disassemble, package, unpackage and reassemble the mobility aid if it requires disassembly for transport; and return the mobility aid promptly on arrival. Note, however, that where a mobility aid requires disassembly, the carrier may require the passenger to provide written instructions for disassembly and reassembly and to arrive at the airport in advance of the normal scheduled time for check-in.
Section 49 requires carriers to allow persons with disabilities to bring on board smaller assistive devices they require during travel, such as canes, crutches, communication devices, and portable oxygen concentrators.
Transportation of support persons
Where a person with a disability requires a support person, carriers must accept the said support person and seat them in a seat that is adjacent to the seat of the person with a disability. A person with a disability requires a support person if, because of their disability, they need assistance with meals, taking medication, using the washroom, transferring to and from the passenger seat, orientation or communication, or physical assistance in the case of an emergency.
As with other services covered by Part 2, Canadian carriers providing domestic service may not charge a fare or additional fee to transport a support person. However, this prohibition on charging a fare or fee does not apply to international service – so a foreign carrier can charge a fare or a fee to transport a support person required by a person with a disability.
Transportation of service dogs
Similarly, service dogs must be accepted for travel where a person with a disability needs to travel with a service dog. Carriers may require persons who make requests to travel with a service dog to control the dog with a leash or harness and to provide a “declaration attesting that the service dog has been individually trained by an organization or person specializing in service dog training” and further proof of this, in the form of an identification card or other document issued by the service dog training organization.
Again, carriers flying between foreign countries and Canada may charge a fee for the provision of this service.
Where a person with a disability needs more than one seat because of the nature of their disability, the carrier must provide two seats adjacent to one another. Again, carriers flying between foreign countries and Canada may charge the passenger for the extra seat; the Agency has not extended the one-person-one-fare rule to international carriage.
Allergy buffer zone
Where a person with a disability due to a severe allergy requests it, carriers must provide a “buffer zone” around the passenger’s seat to reduce the risk of exposure to the allergen. Specifically, the carrier must provide the person with a seat in a “bank of seats” “other than the bank of seats in which the source of the allergen is located and other than the bank of seats facing that bank of seats.” A “bank of seats” does not include seats across the aisle.
In addition, section 53 requires the carrier to inform passengers sitting in the same bank of seats as the person with the allergy that there is a passenger with a severe allergy present and informing them of the allergen.