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11 March 2020
Other assistance and services on request
Transportation of mobility aid and other assistive devices
Transportation of support persons
Transportation of service dogs
Allergy buffer zone
In 2019 the Canadian federal government took steps to address barriers for persons with disabilities, including the introduction of 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 finalised and published in July 2019 as part of the Canadian Transportation Agency's Regulatory Modernisation Initiative, which launched in 2016.(1)
The ATPDR addresses federally regulated transportation participants not only in aviation, but also rail, marine and interprovincial bus transportation and applies to carriers, airports and terminal operators and the Canada Border Services Agency, among others.
Most of the provisions under the ATPDR will come into force on 25 June 2020, including the service requirements applicable to carriers (Part 2 of the ATPDR). Part 2 is the only provision 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 requirements under the ATPDR, which has a different definition of a 'large' carrier than the Air Passenger Protection Regulations (APPR). Under the ATPDR, a 'large' carrier is a carrier which has transported one million passengers or more in each of the previous two calendar years. Under the APPR, the cut-off is two million passengers.
Part 2 of the ATPDR comprises Sections 24 to 62 thereof. Among other kinds of carrier, this part applies to:
every large air carrier that provides a service for the transportation of passengers
1. between points within Canada;
2. from a point of origin in Canada to a point of destination in a foreign country, or
3. from a point of origin in a foreign country to a point of destination in Canada.
As a general rule, carriers must provide the various services set out in Part 2 of the ATPDR where a passenger requests them at least 48 hours in advance of their scheduled departure. However, carriers must provide some services even if the request is made less than 48 hours pre-departure, including wheelchair services.
In addition, if a request for a service is received less than 96 hours (four days) prior to departure, the carrier informs the passenger 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 prior to departure, strictly speaking, the carrier is not required to provide the service.
However, Section 32(4) of the ATPDR provides that carriers must make a reasonable effort to provide any service requested by a passenger with a disability no matter when it is received.
Section 54 of the ATPDR provides that where a passenger with a disability identifies the nature of their disability when making a reservation, the carrier must engage in a dialogue to identify the passenger's needs and discuss the services available to them.
In addition, where the nature of a disability is identified, the carrier must inform the passenger of the seats available in the class of service that they have requested which might best meet their accessibility needs (eg, a passenger seat that has additional leg room, a larger seat pitch or movable armrests). When assigning a seat, Section 55(2) of the ATPDR requires carriers to take into account the passenger's opinion as to which seat would best meet their accessibility needs.
Section 58 of the ATPDR requires carriers to indicate in their reservation system the services that they will provide to disabled passengers and "include a written confirmation of the services in the itinerary that is issued to the person". If the service is confirmed after the issuance of the itinerary, a written confirmation of the service must be provided to the passenger. The aim is for carriers to keep a record of such services and provide passengers with positive evidence that such services have been provided.
Several carriers have expressed concern over Section 59 of the ATPDR, which requires carriers to offer to keep an electronic record of information (including personal health information) that 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 retain documents such as medical notes or certificates that might be needed as proof to provide disability-related services, so that passengers need not submit said information each time a request for a service is made.
Some carriers have indicated that they do not have the capacity to retain such information currently and, more importantly, that doing so could violate various US laws protecting the privacy of an individual's health and medical information.
Section 33 of the ATPDR provides that carriers may require passengers who request any 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 of the ATPDR requires carriers to allow persons with disabilities to board in advance of other passengers if they request assistance with:
It also requires that priority boarding be provided to passengers who are blind or have another visual impairment and who request assistance.
Priority boarding must also be provided on request to passengers who suffer from severe allergies and have requested that their seat be cleaned to remove any potential allergens. A 'severe allergy' is defined in Part 2 of the ATPDR as "an allergy to an allergen that may cause a person to experience significant physical distress if they are directly exposed to the allergen".
Section 35 of the ATPDR sets out a long list of the types of assistance that carriers must provide if requested by a person with a disability, including:
In addition to the requirement to provide wheelchair services – usually through a wheelchair service provider – the ATPDR requires that if a person with a disability who uses a wheelchair or other device and is not independently mobile is waiting post-check in for departure or a connecting flight, the carrier must ensure that the passenger is provided a place to wait that is close to the agents – either of the carrier or a wheelchair service provider – available to provide assistance. Sections 37 and 38 also require that members of personnel periodically enquire about the passenger's needs.
Section 40 of the ATPDR requires that carriers accept mobility aids as priority baggage and allows passengers who require a mobility aid to retain them until they need to be stored for carriage.
However, carriers may refuse to carry mobility aids if:
If the transport of a mobility aid is refused, the carrier must explain why in writing within 10 days.
Carriers must make room to transport mobility aids by:
However, where a mobility aid requires disassembly, the carrier may require the passenger to provide written instructions for disassembly and reassembly and arrive at the airport in advance of the normal scheduled check-in time.
Section 49 of the ATPDR requires carriers to allow persons with disabilities to bring on board smaller assistive devices which they require during travel (eg, canes, crutches, communication devices and portable oxygen concentrators).
Where someone with a disability requires a support person, carriers must accept and seat them in a seat adjacent to the person with a disability. A support person is someone who helps a disabled person with:
As with other services covered by Part 2 of the ATPDR, Canadian carriers providing domestic services may not charge a fare or an additional fee to transport a support person. However, this prohibition does not apply to international service – so a foreign carrier can charge a fare or fee to transport a support person required by a person with a disability.
Service dogs must be accepted for travel where a person with a disability needs to travel with them. Carriers may require persons who make requests to travel with a service dog to:
Carriers flying between Canada and other countries 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.
For persons with a disability due to a severe allergy, carriers must provide on request a buffer zone around the passenger's seat to reduce 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 of the ATPDR requires carriers 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 with details of the specific allergen.
For further information on this topic please contact Carlos P Martins or Andrew W MacDonald at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (firstname.lastname@example.org or email@example.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.
(1) Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244.
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