CBC National News Reveals Appalling Incidents of Accessibility Failures in Air Travel in Canada – Yet More Proof that the Canadian Transportation Agency has been Ineffective at Ensuring Accessibility for Air Travel Passengers with Disabilities in Canada


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

CBC National News Reveals Appalling Incidents of Accessibility Failures in Air Travel in Canada – Yet More Proof that the Canadian Transportation Agency has been Ineffective at Ensuring Accessibility for Air Travel Passengers with Disabilities in Canada

June 4, 2019

          SUMMARY

On June 2 and 3, 2019, CBC TV and radio national news broke a story of two appalling failures to ensure proper accessibility for air travel passengers in Canada. These were two episodes at the Vancouver Airport where passengers using wheelchairs were left stranded in the airport for hours by airline ground assistance staff. CBC asked the AODA Alliance to comment on the incidents which CBC had uncovered.

These reports were included in the June 2, 2019 edition of CBC TV’s “The National” and CBC national radio’s “World Report” broadcast on June 3, 2019. We offer four important observations:

  1. These are not the only such incidents that air travellers have reported. As a result of this CBC report, on June 3, 2019, AODA Alliance Chair David Lepofsky was invited to appear on the Fight Back program on Toronto’s Zoomer Radio station, hosted by Libby Znaimer. Two callers to the program said they had experienced somewhat similar incidents. The podcast of that program is available at https://www.zoomerradio.ca/show/fight-back-on-zoomer-radio/fight-back-on-zoomer-radio-podcast/treatment-vulnerable-passengers-airlines-june-03-2019/

These disability accommodations in air travel must be consistent and reliable. Even if such appalling incidents are the exception, passengers with disabilities should not be left to fear that they might be the victim of such treatment.

  1. This is a further illustration of the Canadian Transportation Agency’s (CTA’s) poor long-term track-record of regulating airlines in the area of accessibility. It is because of the poor CTA track-record in this area that we and others in the disability community had urged the Federal Government to assign the regulation of air travel accessibility to the new Canada Accessibility Commissioner. Instead, and over our objection, Bill C-81, the new Accessible Canada Act, leaves the CTA as mainly in charge of regulating air travel accessibility.
  1. It is good that the CTA has decided to propose regulations to set some accessibility standards in the area of air travel. However, as our April 18, 2019 brief to the CTA shows, those proposed regulations are too weak. This story should be a wake-up call to the CTA to listen to us and strengthen those proposed regulations.
  1. It should not be left to individual victims of such inexcusable treatment to have to file complaints with the CTA. If the victim is just flying into Canada for a visit and then returning home, they likely would not incur the expense and inconvenience of returning to Canada just to litigate a complaint before the CTA. For meaningful reform, we need the CTA to do its own strong “secret shopper” monitoring of airlines to catch deficiencies in the efforts of airlines or airports.
  1. The troubling incidents of accessibility failures about which CBC reported took place at the Vancouver International Airport. We note that on December 5, 2018, the Rick Hansen Foundation’s private accessibility certification process announced that it gave the Vancouver International Airport a gold rating for accessibility. This is the Rick Hansen Foundation’s highest accessibility rating.

This illustrates some of the serious problems with such a private accessibility certification process. We have previously raised our serious concerns with the whole idea of a private accessibility certification process.

We recognize that such a private accessibility certification process may only examine a building, and not the services provided in that building. That is part of the problem. Those hearing that an airport got a “gold” certification can well be expected not to draw fine distinctions between the accessibility of an airport building on the one hand, and the accessibility of the services provided in that airport on the other.

We always welcome your feedback. Write us at [email protected]

          MORE DETAILS

CBC TV The National June 2, 2019

Originally posted at https://www.cbc.ca/news/canada/edmonton/seniors-abandoned-by-airlines-in-wheelchairs-1.5154364

Edmonton GO PUBLIC

‘Appalling treatment’: Couple in wheelchairs left alone for almost 12 hours at Vancouver airport

Airlines are shirking responsibility to accommodate disabled passengers, advocate says

Rosa Marchitelli CBC News · Posted: Jun 02, 2019 6:00 PM MT | Last Updated: 5 hours ago

Narayan Karki, left, and her husband, Chhaya, right, missed their flight from Vancouver to Edmonton after being left in their wheelchairs without assistance for hours at the airport. They were travelling from Nepal to visit their son, Mohan, shown at centre. (Rosa Marchitelli/CBC)

The son of an elderly couple says he wants two major airlines to stop blaming each other and take responsibility for abandoning his parents in their wheelchairs for half a day, with no help to access food, water or a washroom.

Mohan Karki’s parents, who don’t speak English and require assistance to travel, were found almost 12 hours after being dropped off at a service counter at the Vancouver airport — just not by the airlines responsible for assisting them during their trip, WestJet and Cathay Pacific.

“We were thinking they were somewhere in the corner of the airport … not knowing where to go,” said Karki. “My parents told me, ‘We never left this place’ … 12 hours they were there. They tried to communicate with some other people, passersby, and nobody responded to them. Maybe they couldn’t understand what they were saying.”

On Feb. 23, Chhaya and Narayan Karki, aged 66 and 69, were on the final leg of a trip from their home in Kathmandu, Nepal, to visit their son and his family in Edmonton, with a stopover in Vancouver.

Mohan Karki said Cathay Pacific told him it delivered his parents to the WestJet customer service counter at the airport, and WestJet was to transport the pair to the gate for their final flight to Edmonton.

The Karkis sat just steps from the WestJet service counter at the Vancouver airport for almost 12 hours, until the RCMP found them.  (Rosa Marchitelli/CBC)

When his parents failed to arrive, a worried Karki spent hours on the phone trying to track them down. They didn’t have a cellphone. “For about six or seven hours, I kept on calling both airlines, but they never found my parents,” he said.

Karki then called the RCMP. It took officers 20 minutes to find the couple, located just steps from the service counter.

The couple had placards with Karki’s name and phone number, in case of an emergency. No one responded when they tried to get help by holding them up, he said.

According to an Ontario-based advocate for people with disabilities, services for those who need assistance travelling are “unreliable and inconsistent” because airlines are allowed to set their own rules — instead of being told to meet specific standards.

“It is appalling treatment … the regulator should make it clear that [airlines] can’t pass the buck to each other,” said David Lepofsky, chair of the Accessibility for Ontarians with Disabilities Act Alliance.

Left at the wrong gate for 8 hours

Thanh Phan shares that frustration; the same thing happened to his 76-year-old mother at the same airport.

In August, Niem Thi Le, who has trouble walking and doesn’t speak English, was left in a wheelchair for eight hours after being dropped off at the wrong departure gate by WestJet.

Le was on her way home to Hanoi, Vietnam, after visiting family in Victoria. WestJet was supposed to connect her with China Southern Airlines for her next flight.

“My mom told me that the wheelchair attendant just left her there without talking to anyone.… I was shocked … this is a human being,” Phan said.

Niem Thi Le, 76, was on her way back to Vietnam after visiting her family in Victoria. She missed her flight after being left at the wrong gate at the Vancouver airport.  (Submitted by Thanh Phan)

An employee with another airline eventually noticed Le sitting alone, found someone who could speak Vietnamese and brought the woman to the China Southern Airlines counter.

That airline contacted Phan and suggested he call WestJet to find out what happened. He did, asking if someone could help his mother until he could get there himself.

“I said, ‘Could you please help her give her some food and drinks.’… They said, no, they didn’t do anything wrong and that’s not their business,” Phan said.

He called China Southern Airlines back and it agreed to help, bringing Le a hamburger and a

drink.

‘They did not think it’s a serious problem’

Phan complained to customer service and WestJet apologized, saying it would review its internal process. But he said the airline never got back to him to explain what happened.

WestJet also told him travellers who don’t speak English shouldn’t be travelling alone, he said, though they offered him a $100 travel voucher.

“It’s very frustrating because they blame passengers, and they did not think that is a serious problem.”

Phan said he was ‘shocked’ to receive a phone call from South China Airlines, telling him his mother had missed her flight and he needed to come pick her up.  (Mike McArthur/CBC)

WestJet ‘reaching out to the families involved’

Both Phan and Karki are still demanding an explanation from the airlines involved in their respective cases.

“We sincerely apologize for the stress and worry that these guests and their families experienced,” WestJet’s media relations manager Lauren Stewart wrote in an email to Go Public.

“The nature of these incidents is serious, and we are in touch with both airline partners involved to investigate and make enhancements to our processes to prevent this type of incident from happening again. We are also reaching out to the families involved.”

Karki says Cathay Pacific told him it took his parents to the WestJet counter, but the couple never made it on their next flight. They spent almost 12 hours sitting in wheelchairs at the airport.  (CBC)

The airline says it provides mobility assistance to more than 900 guests per day.

Cathay Pacific told Go Public it was sorry to hear what happened to the Karkis, adding it followed “standard operating procedure” when it delivered the couple to WestJet staff and exchanged wheelchairs.

“The proper turnover to WestJet was made by our staff. Additionally, we are in the process of reviewing this situation with WestJet and we will apply learnings from this experience to future transitions between our airlines,” wrote Julie Jarratt, the airline’s communications director.

‘I dread entering Canadian airspace’

Lepofsky, who is blind, said he’s had his own problems travelling. “I dread entering Canadian airspace if I’m travelling alone … not because the service is always bad, but because it’s not reliably and consistently good.”

Airlines have a duty to accommodate passengers with disabilities under Canada’s human rights laws, he said. But when that doesn’t happen, it’s tough to figure out where to turn for help.

David Lepofsky, chair of the Accessibility for Ontarians with Disabilities Act Alliance, says services for those with disabilities are ‘unreliable and inconsistent’ when it comes to air travel in Canada.  (Gary Morton/CBC)

“There are multiple agencies involved,” Lepofsky said. “The Canadian Human Rights Commission, the Canadian Transportation Agency — and you could be kicked from one to the other, trying to figure out where you’re supposed to go.

“The Canadian Transportation Agency, where you’re often kicked to, does not, from the perspective of people with disabilities, have a good track record in this area.”

Proposed rules require airlines to take responsibility

The CTA says it’s aware some of the standards are out of date and a binding set of rules is needed. Until now, accessible transportation has been governed by mostly voluntary codes of practice.

The agency has proposed new accessible transportation regulations for airlines and all travel providers. The new rules would be legally binding and impose penalties up to $25,000 for non-compliance. And if another proposed law passes, the Accessible Canada Act, that fine could jump to a maximum of $250,000.

“They need to make sure that passengers don’t fall between the cracks,” said Scott Streiner, chair and CEO of the Canadian Transportation Agency.

CTA chair and CEO Scott Streiner says his agency has proposed legally binding regulation for accessible transportation.  (Richard Agecoutay/CBC)

Under the CTA’s proposed rules, airlines would have to provide people who need assistance a place to wait, near personnel who can assist them and will “periodically inquire” about the person’s needs.

Airports would be responsible for providing assistance from curbside to check-in, while the airlines would be responsible from check-in to boarding.

Streiner said the proposed recommendations would have helped in both cases. The agency plans to have the final regulations published before summer and hopes to have the majority of requirements in place in about a year.

“Persons who require wheelchair assistance, including older Canadians, absolutely are covered by these regulations,” Streiner said. “We want to make sure that there’s no confusion about who’s providing assistance and that people aren’t left without assistance.”

As for Karki, he said that the next time his parents visit, he won’t leave them in the hands of the airlines. Instead, he’ll try to match their itinerary with other Nepali-speaking travellers.

After hearing from Go Public, WestJet called Karki last week, promising an explanation once it looks into what went wrong.

Phan said WestJet has yet to follow up with him, adding that his mother is now afraid to travel and will no longer come visit.

Submit your story ideas

Go Public is an investigative news segment on CBC-TV, radio and the web.

We tell your stories and hold the powers that be accountable.

We want to hear from people across the country with stories you want to make public.

Submit your story ideas at [email protected].



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AODA Alliance’s Short Supplementary Brief to the Senate Focuses on the High Priority of Surgically Removing from Bill C-81 A Troubling Provision that Lets the Canadian Transportation Agency Pass Regulations that Cut Back on the Human Rights of Passengers with Disabilities


Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities http://www.aodaalliance.org [email protected] Twitter: @aodaalliance

April 24, 2019

SUMMARY

On April 23, 2019, the AODA Alliance sent the Senate of Canada a short 2-page supplementary brief. It emphasizes as a priority the pressing need for the Senate to remove a harmful and outdated provision that is perpetuated in Bill C-81, the proposed Accessible Canada Act. That provision, section 172, lets the Canadian Transportation Agency pass regulations on accessibility in transportation that can cut back on the human rights of passengers with disabilities. There is no reason for Parliament to leave that harmful provision in place. It flies in the face of the federal Disabilities Minister’s statement to the Senate that she doesn’t want anything in the bill to reduce the human rights of people with disabilities. We set this supplementary brief out below.
There is still a week left for you to help our campaign before the Senate’s Standing Committee on Social Affairs decides what amendments to make to Bill C-81. Before May 2, 2019, please send the Senate Standing Committee a short email to express your support for the amendments to Bill C-81 that the AODA Alliance has requested. Email the Senate at: [email protected]
To watch the captioned video of AODA Alliance Chair David Lepofsky’s opening statement at the Senate Standing Committee on April 11, 2019 (10 minutes), visit: https://www.youtube.com/watch?v=FERCAljHbrw&feature=em-uploademail

To watch a captioned video of the portion of the Senate Standing Committee’s question-and-answer after that opening statement, where the AODA Alliance answers questions directed to us (26 minutes), visit https://www.youtube.com/watch?v=Dr0fCtB_cyw&feature=em-uploademail
You can read the specific amendments we asked the Senate to make to Bill C-81, and the short brief we submitted in support of those amendments. You can also visit the AODA Alliance website, Canada page to see in one place all our efforts over the past four years to campaign for the enactment of a strong and effective national accessibility law.

MORE DETAILS

Accessibility for Ontarians with Disabilities Act Alliance
www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance

Supplemental Brief to the Senate Standing Committee on Social Affairs Regarding Bill C-81 April 23, 2019

This supplements our March 29, 2019 brief, our April 8, 2019 short list of amendments, and our April 11, 2019 oral presentation to the Standing Committee. We elaborate on one of the 11 amendments we requested. Our proposed Amendment #7 (set out below) asks this Committee to remove s. 172 from the bill. That would remove the identically-numbered 172 from the Canada Transportation Act.

Section 172 lets the CTA cut back on the human rights of passengers with disabilities. The CTA should have no power to dilute our human rights. This is a top priority for us that would benefit all passengers with any kind of disability.

What’s the problem? On April 3, 2019, Minister Qualtrough told the Standing Committee:

“I have to emphasize that as a former human rights law practitioner, it is very important to me, and it has been, to preserve the duty to accommodate.”

Contradicting this, s. 172 lets the Canadian Transportation Agency pass regulations that cut back on the human rights of passengers with disabilities. Section 172 provides:

“in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.”

For example, if the CTA passes a regulation to set accessibility requirements in air travel, that regulation is the final word on what airlines must do to accommodate passengers with disabilities, in the specific areas it regulates. The regulation sets the maximum of the airline’s human rights obligations. Passengers with disabilities cannot bring an accessibility complaint to the CTA to demand anything more of the airline in that area, even if the passenger can show that they needed more to accommodate them, and even if it poses no undue hardship to the airline.

Assume the CTA regulation said the airline can take up to 5 hours to guide a blind passenger from the check-in desk to their airplane. That means the airline could tell passengers with disabilities that they must show up to the airport 5 hours before their flight. A passenger is not permitted to show the airline could easily accommodate this need in 2 hours and doesn’t need 5 hours. All the passenger can thereafter complain about is a delay that is longer than 5 hours.

This is not a far-fetched hypothetical risk. Last month, the CTA posted proposed transportation accessibility regulations that threaten to reduce the existing human rights of passengers with disabilities. After our Senate presentation we filed a brief with CTA objecting to this.

The proposed CTA regulations would impose a new duty on passengers with disabilities to give an airline 48 hours advance notice of a request for certain listed accommodations that they now can get without any advance notice. An airline can unilaterally expand this to a 96 hour advance notice requirement in some situations. An airline does not have to let passengers know they will demand 96 hours’ notice.

If a passenger does not give this new required advance notice, the airline only has to make “reasonable efforts” to provide the listed accommodations. This reduces the airline’s existing human rights duty to provide such needed accommodations except where the airline can show that it is impossible to do more to accommodate without undue hardship to the airline. “Undue hardship” is a much tougher test for the airline to meet than mere “reasonable efforts”.

This new legislated barrier applies to important accommodations, such as assisting passengers with disabilities to go through airport security, to get to the departure lounge and onto the airplane, telling a blind passenger on the plane where the bathroom is, letting passengers with disabilities use a larger business class bathroom on the plane if it is larger than the economy class bathroom, or telling a passenger what food options are offered on the plane.

48 hours’ advance notice is not justified for these accommodations. For them, an airline uses existing staff. If any advance notice were justified, which we dispute, two days is not.

This discriminatory new barrier especially hurts last-minute travelers, for business, for an emergency or funeral. Passengers without disabilities are not similarly burdened.

Minister Qualtrough told the Standing Committee that the CTA aims for transportation in Canada to be the most accessible in the world. These draft regulations, which the minister trumpeted, fall far short. Especially because of s. 172, we oppose the enactment of these regulations, even if they elsewhere have some helpful measures for passengers with disabilities.

The outdated s. 172 only serves the interests of transportation providers who want the CTA to dilute their human rights duties. Neither the Minister nor the CTA presented any need for s. 172. The CRTC has no corresponding provision when it enacts regulations.

We therefore ask this Committee to amend Bill C-81 to remove s. 172 of the bill, which in turn would surgically excise the identically numbered s. 172 from the Canada Transportation Act.

Amendment 7 of the AODA Alliance Amendments Package
Subsection 172(2) of the bill should be removed from the bill. As well, the bill should repeal its counterpart, s. 172(2) of the Canada Transportation Act, which provides:

“in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.”

Note: s. 172(2) of the bill uses the word “barrier “instead of the word “obstacle”, but is otherwise the same as s. 172(2) of the Canada Transportation Act.



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AODA Alliance’s Short Supplementary Brief to the Senate Focuses on the High Priority of Surgically Removing from Bill C-81 A Troubling Provision that Lets the Canadian Transportation Agency Pass Regulations that Cut Back on the Human Rights of Passengers with Disabilities


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

AODA Alliance’s Short Supplementary Brief to the Senate Focuses on the High Priority of Surgically Removing from Bill C-81 A Troubling Provision that Lets the Canadian Transportation Agency Pass Regulations that Cut Back on the Human Rights of Passengers with Disabilities

April 24, 2019

          SUMMARY

On April 23, 2019, the AODA Alliance sent the Senate of Canada a short 2-page supplementary brief. It emphasizes as a priority the pressing need for the Senate to remove a harmful and outdated provision that is perpetuated in Bill C-81, the proposed Accessible Canada Act. That provision, section 172, lets the Canadian Transportation Agency pass regulations on accessibility in transportation that can cut back on the human rights of passengers with disabilities. There is no reason for Parliament to leave that harmful provision in place. It flies in the face of the federal Disabilities Minister’s statement to the Senate that she doesn’t want anything in the bill to reduce the human rights of people with disabilities. We set this supplementary brief out below.

There is still a week left for you to help our campaign before the Senate’s Standing Committee on Social Affairs decides what amendments to make to Bill C-81. Before May 2, 2019, please send the Senate Standing Committee a short email to express your support for the amendments to Bill C-81 that the AODA Alliance has requested. Email the Senate at: [email protected]

To watch the captioned video of AODA Alliance Chair David Lepofsky’s opening statement at the Senate Standing Committee on April 11, 2019 (10 minutes), visit: https://www.youtube.com/watch?v=FERCAljHbrw&feature=em-uploademail

To watch a captioned video of the portion of the Senate Standing Committee’s question-and-answer after that opening statement, where the AODA Alliance answers questions directed to us (26 minutes), visit https://www.youtube.com/watch?v=Dr0fCtB_cyw&feature=em-uploademail

You can read the specific amendments we asked the Senate to make to Bill C-81, and the short brief we submitted in support of those amendments. You can also visit the AODA Alliance website, Canada page to see in one place all our efforts over the past four years to campaign for the enactment of a strong and effective national accessibility law.

 

          MORE DETAILS

Accessibility for Ontarians with Disabilities Act Alliance

www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance

Supplemental Brief to the Senate Standing Committee on Social Affairs Regarding Bill C-81

April 23, 2019

This supplements our March 29, 2019 brief, our April 8, 2019 short list of amendments, and our April 11, 2019 oral presentation to the Standing Committee. We elaborate on one of the 11 amendments we requested. Our proposed Amendment #7 (set out below) asks this Committee to remove s. 172 from the bill. That would remove the identically-numbered 172 from the Canada Transportation Act.

Section 172 lets the CTA cut back on the human rights of passengers with disabilities. The CTA should have no power to dilute our human rights. This is a top priority for us that would benefit all passengers with any kind of disability.

What’s the problem? On April 3, 2019, Minister Qualtrough told the Standing Committee:

“I have to emphasize that as a former human rights law practitioner, it is very important to me, and it has been, to preserve the duty to accommodate.”

Contradicting this, s. 172 lets the Canadian Transportation Agency pass regulations that cut back on the human rights of passengers with disabilities. Section 172 provides:

“in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.”

For example, if the CTA passes a regulation to set accessibility requirements in air travel, that regulation is the final word on what airlines must do to accommodate passengers with disabilities, in the specific areas it regulates. The regulation sets the maximum of the airline’s human rights obligations. Passengers with disabilities cannot bring an accessibility complaint to the CTA to demand anything more of the airline in that area, even if the passenger can show that they needed more to accommodate them, and even if it poses no undue hardship to the airline.

Assume the CTA regulation said the airline can take up to 5 hours to guide a blind passenger from the check-in desk to their airplane. That means the airline could tell passengers with disabilities that they must show up to the airport 5 hours before their flight. A passenger is not permitted to show the airline could easily accommodate this need in 2 hours and doesn’t need 5 hours. All the passenger can thereafter complain about is a delay that is longer than 5 hours.

This is not a far-fetched hypothetical risk. Last month, the CTA posted proposed transportation accessibility regulations that threaten to reduce the existing human rights of passengers with disabilities. After our Senate presentation we filed a brief with CTA objecting to this.

The proposed CTA regulations would impose a new duty on passengers with disabilities to give an airline 48 hours advance notice of a request for certain listed accommodations that they now can get without any advance notice. An airline can unilaterally expand this to a 96 hour advance notice requirement in some situations. An airline does not have to let passengers know they will demand 96 hours’ notice.

If a passenger does not give this new required advance notice, the airline only has to make “reasonable efforts” to provide the listed accommodations. This reduces the airline’s existing human rights duty to provide such needed accommodations except where the airline can show that it is impossible to do more to accommodate without undue hardship to the airline. “Undue hardship” is a much tougher test for the airline to meet than mere “reasonable efforts”.

This new legislated barrier applies to important accommodations, such as assisting passengers with disabilities to go through airport security, to get to the departure lounge and onto the airplane, telling a blind passenger on the plane where the bathroom is, letting passengers with disabilities use a larger business class bathroom on the plane if it is larger than the economy class bathroom, or telling a passenger what food options are offered on the plane.

48 hours’ advance notice is not justified for these accommodations. For them, an airline uses existing staff. If any advance notice were justified, which we dispute, two days is not.

This discriminatory new barrier especially hurts last-minute travelers, for business, for an emergency or funeral. Passengers without disabilities are not similarly burdened.

Minister Qualtrough told the Standing Committee that the CTA aims for transportation in Canada to be the most accessible in the world. These draft regulations, which the minister trumpeted, fall far short. Especially because of s. 172, we oppose the enactment of these regulations, even if they elsewhere have some helpful measures for passengers with disabilities.

The outdated s. 172 only serves the interests of transportation providers who want the CTA to dilute their human rights duties. Neither the Minister nor the CTA presented any need for s. 172. The CRTC has no corresponding provision when it enacts regulations.

We therefore ask this Committee to amend Bill C-81 to remove s. 172 of the bill, which in turn would surgically excise the identically numbered s. 172 from the Canada Transportation Act.

Amendment 7 of the AODA Alliance Amendments Package

Subsection 172(2) of the bill should be removed from the bill. As well, the bill should repeal its counterpart, s. 172(2) of the Canada Transportation Act, which provides:

“in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.”

Note: s. 172(2) of the bill uses the word “barrier “instead of the word “obstacle”, but is otherwise the same as s. 172(2) of the Canada Transportation Act.



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Canada Transportation Agency Proposes New Regulations that Threatens t Reduce the Duty to Accommodate Passengers with Disabilities in Air Travel and Other Transportation that the Federal Government Can Regulate, According to a New Brief by the AODA Alliance


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org  [email protected] Twitter: @aodaalliance

Canada Transportation Agency Proposes New Regulations that Threaten to Reduce the Duty to Accommodate Passengers with Disabilities in Air Travel and Other Transportation that the Federal Government Can Regulate, According to a New Brief by the AODA Alliance

April 18, 2019

          SUMMARY

Today, the AODA Alliance submitted a brief to the Canada Transportation Agency on the draft regulations that it is proposing to enact under the Canada Transportation Act to address the many barriers that people with disabilities face in the parts of Canada’s transportation network that the Federal Government can regulate, such as air travel. We set out our brief below.

The CTA posted these very detailed draft regulations on March 9, 2019 and gave the public 30 days to comment on them. We regret that we are submitting our brief after the CTA’s deadline for comment. We were not able to prepare this brief sooner, as we have been devoting so much time to our campaign to get Canada’s Senate to strengthen the weak Bill C-81, the proposed Accessible Canada Act.

We regret that we did not have time to post a draft of this brief earlier, for your feedback, as we ordinarily do when we are preparing briefs like this. We had to prepare this brief in an extraordinary rush.

Our brief provides an excellent illustration of why we need the Senate to strengthen Bill C-81. Parts of this draft regulation that we had time to analyze threaten to weaken the protection of the duty to accommodate people with disabilities. This is because s. 172 of the Canada Transportation Act says that once a regulation like this is enacted, it serves as a cap on the duty to accommodate people with disabilities, in so far as the CTA can enforce it. Our brief illustrates by example how this draft regulation would reduce protection for the duty to accommodate people with disabilities in federally-regulated transportation.

We therefore oppose the passage of this draft regulation, for the reasons we set out in this brief. We regret having to do so, because on our first review of the draft regulation, there appear to be some good things in it. As our brief explains, we nevertheless oppose its enactment because it threatens to reduce the rights of people with disabilities.

Sadly, our brief provides a good illustration of some of the problems with Bill C-81. We have called on the Senate to amend Bill C-81 to remove the damaging and harmful s. 172, so that regulations like these cannot serve to weaken the rights of people with disabilities. Our brief illustrates why that amendment to Bill C-81 is so vital to people with disabilities. We will find out on May 2, 2019 whether the Senate’s Standing Committee on Social Affairs will take up our recommendations for strengthening Bill C-81, including the repeal of s. 172.

It is not too late for you to help. Please email the Senate’s Standing Committee by writing [email protected] and urge the Senators to strengthen Bill C-81. Send them this brief to give a good example of why we need them to get rid of the harmful s. 172.

To watch the captioned video of AODA Alliance Chair David Lepofsky’s opening statement at the Senate Standing Committee on April 11, 2019 (10 minutes), visit: https://www.youtube.com/watch?v=FERCAljHbrw&feature=em-uploademail

To watch a captioned video of the portion of the Senate Standing Committee’s question-and-answer after that opening statement, where the AODA Alliance answers questions directed to us (26 minutes), visit https://www.youtube.com/watch?v=Dr0fCtB_cyw&feature=em-uploademail

You should read the specific amendments we asked the Senate to make to Bill C-81, and the short brief we submitted in support of those amendments. You can also visit the AODA Alliance website, Canada page to see in one place all our efforts over the past four years to campaign for the enactment of a strong and effective national accessibility law.

 

 

          MORE DETAILS

 

Accessibility for Ontarians with Disabilities Act Alliance

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org  Email: [email protected]  Twitter: @aodaalliance

Brief to the Canada Transportation Agency on the Draft Regulations Posted for Comment on the Canada Gazette Entitled “Accessible Transportation for Persons with Disabilities Regulations”

April 18, 2019

To: Canada Transportation Agency

Via Email: [email protected]

Care of Sonia Gangopadhyay

Acting Director

Centre of Expertise for Accessible Transportation

Canadian Transportation Agency

15 Eddy Street

Gatineau, Quebec

K1A 0N9

Telephone: 819 953 8961

1. Introduction

In this brief, the AODA Alliance offers the Canada Transportation Agency our summary feedback on the draft regulations which the CTA posted in the Canada Gazette for public comment within 30 days on March 9, 2019, entitled “Accessible Transportation for Persons with Disabilities Regulations”. (ATPDR)

The AODA Alliance regrets that it has had to submit this brief past the CTA’s deadline for feedback. We regret that our volunteer coalition did not have the capacity to address this earlier. The CTA’s short 30-day public consultation period on these complex regulations overlapped with the pivotally important hearings on Bill C-81 (the proposed Accessible Canada Act) by the Senate. Moreover, a proper analysis of the CTA’s highly-technical document, which runs over 100 pages, is not something a voluntary grassroots organization can readily undertake on such short notice. This is made more challenging by the draft regulations’ complexity and, at times, impenetrable text.

Due to the insufficient time, we have not been able to fully review and analyze the entirety of the draft regulations’ details. We here address a short number of key points that amply support our core conclusion.

Our position in this brief is summarized as follows:

  1. We commend the CTA for embarking on developing modernized accessibility standard regulations. These are long overdue. We share the CTA’s conclusion that the current situation facing passengers with disabilities is unacceptable, and that mandatory enforceable regulations are needed.
  2. We accept that there are some helpful provisions in the draft regulations. However despite this, the draft regulation should not be enacted in its current form, especially if Parliament does not remove s. 172 from the Canada Transportation Act. This is because as written, the draft regulation threatens to reduce human rights of passengers with disabilities.

The Canada Transportation Agency should not infer that the short list of key concerns addressed in this brief are the only concerns that we would have raised about these draft regulations, had we had a fuller opportunity to digest and analyze them.

In general we share the concerns about this proposed regulation that the Alliance For Equality of Blind Canadians has set out in its excellent April 6, 2019 brief to the CTA which is available at:

http://www.blindcanadians.ca/sites/aebc/files/docs/brief/3208/Canada%20Gazette%20regs%20Brief%20final%2004-06-2019.docx

2. Who Are We?

The AODA Alliance is a non-partisan community coalition that has advocated in Ontario since 2005 for the effective implementation and enforcement of Canada’s first comprehensive provincial accessibility law, the Accessibility for Ontarians with Disabilities Act 2005. We are the successor to the community coalition that successfully campaigned from 1994 to 2005 for the AODA’s enactment. We have advised many, including several provinces, a United Nations conference, the European Union, Israel and New Zealand.

Among many other activities, we have been extensively involved in providing input to the Transportation Accessibility Standard enacted under the Accessibility for Ontarians with Disabilities Act. Our activity at the provincial level in the transportation area can be seen by visiting https://www.aodaalliance.org/transportation/

3. Endorsing Certain Specific CTA Findings

The CTA’s posting of draft regulation makes a number of key findings which the AODA Alliance endorses and supports.

The CTA correctly recognizes that Canada is not a leader in this area on the international stage. It acknowledged:

“Canada lags behind other countries that have comprehensive and enforceable regulations in this area.”

Later it wisely recognized:

“The CTA’s RMI revealed that its existing accessibility instruments represent a patchwork of regulations and voluntary standards, some of which are outdated and inadequate in their scope. This has resulted in inconsistent accessibility-related services and reduced access to transportation services for persons with disabilities.”

Still later the CTA recognized:

“Canada’s heavy reliance on voluntary codes of practice currently leaves it lagging behind other key jurisdictions that have comprehensive and enforceable accessible transportation regulations, notably the United States and the EU.”

Later the CTA similarly recognized how out-of-date its regulatory regime in this area has been:

“The current CTA regulations, voluntary codes of practice, and some of the guidance material relevant to accessible travel are outdated and contain significant gaps. While some gaps have been partially addressed through the CTA’s adjudication of individual accessibility complaints, this approach has resulted in an uneven playing field for industry, as some transportation service providers named in complaints are required to remove undue obstacles while others are not. As a result, extensive consultations have confirmed wide support from disability rights organizations, the general public and industry for the development of a single, comprehensive set of accessible transportation regulations that apply across the national transportation system.”

Elsewhere the CTA fairly acknowledged that its regulatory regime in this area to date has been inadequate, where it states:

“However, current accessibility provisions for the national transportation system are generally voluntary (i.e. not legally binding), and have not kept pace with developments since the early 2000s.”

4. CTA’s Goal In the Draft Regulation is Confused

At points, the CTA sets its goal well below the human rights standard. This is especially troubling, since the CTA states that it is trying to align itself with Bill C-81, the proposed Accessible Canada Act. That proposed legislation is called “an Act to ensure a barrier-free Canada.”

At other points, CTA merely says it aims to make transportation “more accessible”, a tepid and inadequate goal. The CTA states:

“The proposed Regulations would require these entities (collectively referred to herein as “transportation service providers”) to take steps to meet certain standards to make travel more accessible and consistent for persons with disabilities.”

Later the CTA acknowledges a stronger and far more appropriate goal of a barrier-free transportation system:

“The overarching objective of the proposed regulatory package is to promote the inclusion and participation of persons with disabilities in society by creating comprehensive and enforceable accessible transportation requirements that are applicable to all modes of transportation, and enabling persons with disabilities to travel with a predictable and consistent level of accessibility across a barrier-free modern national transportation system.”

Still later, but within just a few pages of those earlier contradictory statements, the CTA in one paragraph both sets a correct goal of “equal access” and shortly thereafter the incorrect diluted goal of “more accessible”:

“The ATPDR would ensure that all Canadians, including persons with disabilities, have equal access to the national transportation system. Transportation service providers subject to the proposed Regulations would be required to take steps and meet the proposed standards to make travel more accessible and consistent for persons with disabilities.”

We recommend that the CTA use consistent language that makes it clear that aim of the regulation is the achievement of a barrier-free and fully-accessible transportation system. We also recommend that a provision be added to the regulation that makes it clear that nothing in this regulation should be construed as reducing any duties to accommodate passengers with disabilities as guaranteed either in the Canada Human Rights Act or the Canada Transportation Act.

5. Draft Regulations Threaten to Create a New Legal Barrier that Can Impede Human Rights Duty of Transportation Providers to Accommodate

The AODA Alliance opposes the adoption of any CTA regulations that could threaten in any way to reduce the duty of transportation providers to accommodate passengers with disabilities as guaranteed under human rights laws. This includes any threat to reduce the duty of transportation providers under the Canada Transportation Act to remove and prevent undue obstacles or barriers to travel by passengers with disabilities.

For this reason, we regret that we must oppose the adoption of the draft regulation. While it includes some helpful contents, it also includes provisions that threaten existing human rights entitlements.

We have not had the time to screen the entire draft regulation to find all the threatening provisions, in order to see which parts, if any, of the draft regulation is irrelevant to that pressing concern. Before proceeding with this regulation, the Federal Government should put this draft regulation through a careful screening, with input from the disability community and the Canadian Human Rights Commission for that purpose.

Our concern arises from the fact that s. 172 of the Canada Transportation Act provides that once the CTA has enacted a regulation in an area, passengers with disabilities are barred from bringing an individual claim that a barrier is an “undue obstacle” in that area, if that would require the transportation provider to do anything more than the regulation requires. In effect, the CTA regulation sets a cap or ceiling on the scope of the duty to accommodate of transportation providers. The transportation provider need do no more, even if the regulation does not ensure effective accommodation, and even if further accommodation efforts are possible without undue hardship.

Section 172 provides, referring to the Canada Transportation Agency:

“in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.”

The AODA Alliance and other disability organizations have asked Parliament to repeal s. 172. That would leave the human rights duty to accommodate intact. Regulations enacted by the CTA could reinforce it, but never reduce it. The Federal Government has not done so. It has given no reason for its refusal to do so.

Instead of removing this unfair provision in the CTA legislation, Bill C-81 preserves it. The Federal Government refused our request to remove it from Bill C-81. We have asked the Senate to remove it. The Senate has not yet indicated whether it would do so.

When the CTA appeared before the Senate’s Standing Committee on Social Affairs to discuss Bill C-81 on April 10, 2019, it did not identify this problem or express any opinion on the AODA Alliance’s call for s. 172 to be repealed. To our knowledge, the Senators did not ask the CTA about this specific provision at those hearings.

When federal Disabilities Minister Carla Qualtrough appeared on April 3, 2019 before the Senate’s Standing Committee on Social Affairs to speak to Bill C-81, she stated:

“I have to emphasize that as a former human rights law practitioner, it is very important to me, and it has been, to preserve the duty to accommodate.”

Yet Bill C-81, whose creation she led, preserves and perpetuates s. 172, which is a threat to the duty to accommodate people with disabilities.

We here identify a troubling example in the draft regulations which on their face threaten to cut back on the duty to accommodate. As a painful irony, this threat arises from provisions which on their face give the impression that they seek to assist with the accommodation in transportation of passengers with disabilities.

We specifically focus on the draft regulations’ imposing a duty on passengers with disabilities to give advance notice to transportation providers of a request for certain prescribed accommodations. This problem arises from a combination of sections 29, 32, 34 and 35 of the draft regulations, which we set out here in material part.

Section 29 of the draft regulations provides:

“Advance notice — at least 48 hours

29 (1) If a person with a disability makes a request for a service set out in this Part at least 48 hours before the scheduled time of departure, the carrier must provide the service.

No advance notice required

(2) Despite subsection (1), if a person makes a request for a service referred to in any of paragraphs 32(a), (b), (g) and (i) to (w) or section 34 or 35 less than 48 hours before the scheduled time of departure, the carrier must provide the service.

Advance notice — 96 hours

(3) Despite subsection (1) and subject to subsection (2), a carrier may require that a request for a service set out in this Part be made 96 hours in advance of the person’s scheduled time of departure if the period of advance notice that is required by the carrier is reasonably necessary in the circumstances because of the type of service that is requested by the person.

If no advance notice

(4) Despite subsections (1) and (3), if a request for a service that is subject to a time limit referred to in those subsections is not made within the time limit, the carrier must nonetheless make a reasonable effort to provide the service.”

Section 32 of the draft regulations, to which s. 29 refers, provides:

“32 A carrier must ensure that personnel, on the request of a person with a disability, provide the following services to the person without delay:

(a) assisting the person with registering at the check-in counter;

(b) permitting the person, if they are unable to use an automated self-service kiosk or other automated check-in or ticketing process, to advance to the front of the line at a check-in counter or ticket counter;

(c) assisting the person in proceeding through any security screening process at the terminal, including by

(i) providing personnel to assist the person to proceed through the security screening process, or

(ii) collaborating with the relevant security authority or security personnel at the terminal to permit a person who is not travelling with the person with a disability to have access to the security screening checkpoint so that they may assist the person with a disability to proceed through the security screening process;

(d) assisting the person in proceeding to the boarding area after check-in;

(e) before boarding, transferring the person between the person’s own mobility aid and a mobility aid provided by the carrier;

(f) assisting the person in boarding and disembarking and, in the case of a person travelling on a ferry, assisting the person in moving to and from a vehicle deck to a passenger deck;

(g) assisting the person in storing and retrieving their carry-on baggage;

(h) before departure and on arrival at the destination, transferring the person between a mobility aid and the person’s passenger seat;

(i) assisting the person in moving in and out of a mobility aid space;

(j) before departure or, if impossible because of time constraints, after departure, describing to a person who is blind or has a visual impairment the layout of the aircraft, train, ferry or bus, as the case may be, including the location of washrooms and exits, and the location and operation of any passenger-operated controls at the person’s passenger seat;

(k) assisting the person in accessing any entertainment content that is offered on board, such as by providing them with a personal electronic device and assisting them in using that device;

(l) before departure, providing the person with an individualized safety briefing and demonstration;

(m) on board an aircraft, train or ferry, providing the person with an on-board wheelchair;

(n) on board an aircraft, train or ferry, assisting the person in moving between their passenger seat and a washroom, including by assisting them in transferring between their passenger seat and an on-board wheelchair;

(o) on board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog;

(p) if a meal is offered on board, describing to the person all the food and beverages that are offered for consumption or providing a menu in large print or in Braille;

(q) if a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions;

(r) if the person is not able to access a food service car on a train, permitting the person and any support person to order a meal, and be served the meal, at their passenger seats;

(s) assisting the person in proceeding through immigration and customs;

(t) assisting the person in retrieving their checked baggage;

(u) assisting the person, after disembarkation, in proceeding to the general public area;

(v) assisting the person, after disembarkation, in proceeding to a location where the person may receive assistance to proceed to the curbside zone from personnel of the terminal operator; and

(w) assisting the person, if they are transferring to another segment of their trip within the same terminal, in proceeding to a location where the person may receive assistance from personnel of the receiving carrier.”

Sections 34 and 35 of the draft regulations provide:

“34 If a person with a disability who is in a wheelchair, a boarding chair or any other device in which the person is not independently mobile is waiting at a terminal for departure after check-in or in order to transfer to another segment of their trip, the carrier must ensure that personnel

(a) provide the person with a place to wait that is close to personnel who are available to provide assistance to the person; and

(b) periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part.

Request for assistance

35 Unless a person with a disability is able to request assistance from personnel by means of a call button, the carrier must ensure that personnel periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part.”

This draft regulation would legislate the creation of a new legalized barrier to the duty to accommodate, namely a requirement for passengers with disabilities to give advance notice to the transportation provider 48 hours before the travel, when seeking certain specified accommodations. That means that passengers with disabilities don’t have an assurance of a vital accommodation service if they have not given 48 hours advance notice to the transportation provider, where they are requesting any of the following accommodations:

Assisting the person in proceeding through any security screening process at the terminal (s. 32c).

Assisting the person in proceeding to the boarding area after check-in (s. 32(d)).

Before boarding, transferring the person between the person’s own mobility aid and a mobility aid provided by the carrier (s. 32(e)).

Assisting the person in boarding and disembarking and, in the case of a person travelling on a ferry, assisting the person in moving to and from a vehicle deck to a passenger deck (s. 32(f)).

Before departure and on arrival at the destination, transferring the person between a mobility aid and the person’s passenger seat (s. 32(h)).

Assisting the person in moving in and out of a mobility aid space (s. 32 (i)).

Before departure or, if impossible because of time constraints, after departure, describing to a person who is blind or has a visual impairment the layout of the aircraft, train, ferry or bus, as the case may be, including the location of washrooms and exits, and the location and operation of any passenger-operated controls at the person’s passenger seat (s. 32(j)).

Assisting the person in accessing any entertainment content that is offered on board, such as by providing them with a personal electronic device and assisting them in using that device (s.32 (k)).

Before departure, providing the person with an individualized safety briefing and demonstration) s. 32(l)).

On board an aircraft, train or ferry, providing the person with an on-board wheelchair (s. 32(m)).

On board an aircraft, train or ferry, assisting the person in moving between their passenger seat and a washroom, including by assisting them in transferring between their passenger seat and an on-board wheelchair (s. 32(n)).

On board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog (s. 32(o)).

If a meal is offered on board, describing to the person all the food and beverages that are offered for consumption or providing a menu in large print or in Braille (s. 32(p)).

If a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions (s. 32(q)).

If the person is not able to access a food service car on a train, permitting the person and any support person to order a meal, and be served the meal, at their passenger seats (s. 3r)).

Assisting the person in proceeding through immigration and customs (s. 32(s)).

Assisting the person in retrieving their checked baggage (s. 32(t)).

Assisting the person, after disembarkation, in proceeding to the general public area (s. 32(u)).

Assisting the person, after disembarkation, in proceeding to a location where the person may receive assistance to proceed to the curbside zone from personnel of the terminal operator (s. 32(v)).

Assisting the person, if they are transferring to another segment of their trip within the same terminal, in proceeding to a location where the person may receive assistance from personnel of the receiving carrier (s. 32(w)).

Providing a person with a disability who is in a wheelchair, a boarding chair or any other device in which the person is not independently mobile, while waiting at a terminal for departure after check-in or in order to transfer to another segment of their trip, to provide the person with a place to wait that is close to personnel who are available to provide assistance ,and periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required as listed in that Part of the regulations. (s. 34).

Unless a person with a disability is able to request assistance from personnel by means of a call button, to ensure that personnel periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part. (s. 35).

Advance notice is simply not justified for many if not most of these accommodations – assuming it can even be justified for any of them. These all involve a transportation provider deploying existing staff on hand. We cannot see how a transportation provider would change its plans or operations 48 hours before a trip in response to such advance notice. Even if advance notice were justified, which we dispute, a full two days is excessive.

Making this problematic situation even worse, s. 32(3) would allow a transportation provider to unilaterally require even more notice, namely 96 hours (4 days) for any of the foregoing, in circumstances that passengers with disabilities could not reliably know in advance. Section 32(3) provides:

” (3) Despite subsection (1) and subject to subsection (2), a carrier may require that a request for a service set out in this Part be made 96 hours in advance of the person’s scheduled time of departure if the period of advance notice that is required by the carrier is reasonably necessary in the circumstances because of the type of service that is requested by the person.”

When could an airline, for example, possibly need fully four days’ notice in order for a flight attendant, already present on the plane to do any of the following:

* Before departure, providing the person with an individualized safety briefing and demonstration )s. 32(l)).

* On board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog (s. 32(o)).

* If a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions (s. 32(q)).

Section 32(4) of the draft regulations attempts to reduce the harshness of this new barrier to effective accommodation of passengers with disabilities. It provides:

“(4) Despite subsections (1) and (3), if a request for a service that is subject to a time limit referred to in those subsections is not made within the time limit, the carrier must nonetheless make a reasonable effort to provide the service.”

By s. 32(4), a passenger’s failure to give the required notice is not automatically barred from any accommodation. However, the only effort that the transportation provider must make to provide a needed accommodation in circumstances of no advance notice is effort that is simply “reasonable.” The draft regulation provides no criteria for assessing the reasonableness of the transportation’s efforts.

Section 32(4)’s “reasonable efforts” clause is worded in terms that risks falling short of the human rights duty to accommodate. Under the human rights duty to accommodate, the transportation provider has the duty to make serious and substantial efforts, tailored to the individual’s specific needs, including investigating alternative solutions where needed, as well as the burden to show that it was impossible for the transportation provider to do more than it did to accommodate the passenger with a disability, without undue hardship. “Undue hardship” is a recognized and tough test to meet. It is not mere “reasonableness” of its effort.

These sections in the draft regulations read as if they were written for, if not by, the transportation sector. Such provisions are emblematic of why so many in the disability community oppose the CTA being assigned the proposed accessibility mandate under Bill C-81.

Many if not most or all of the accommodation services listed above that are subject to this new prior notice requirement are ones which passengers with disabilities have been able to request without prior notice up to now. As such, the draft regulations here threaten to serve as a real step backwards.

The regulations impose no duty on a transportation provider to effectively notify all passengers that it will require a 96 hour notice period for any or all of the listed accommodation services. Merely posting this on a website provides no assurance that passengers with disabilities will know to check, and will check at the right place. Must all passengers with disabilities start surfing the web or phoning their airline 96 hours in advance in case they might need one of these accommodations?

This notice requirement also presents a serious new barrier for passengers who are travelling at the last minute, e.g. for business, or to address an emergency or to attend a funeral. Passengers without disabilities are not similarly burdened. As such, this appears quite discriminatory.

The draft regulations do not require transportation providers to provide a reliable, quick, easily-accessed means for passengers with disabilities to give the required notice to the transportation provider. Members of the public are all too aware of the difficulties when trying, for example, to simply get a live person on the line when calling a major transportation provider. Even when a passenger tries to contact either of Toronto’s major passenger airports, Pearson International Airport or Billy Bishop Airport, to request curbside assistance in advance of arriving at the terminal, frustrating barriers have been encountered. Some have secured media attention. Had this been so important for the airlines, we anticipate that they would have already created a fast, effective and easy-to-use to give such advance notice.

6. Exceptions and Exemptions that Are Too Broad Fly in the Face of Supreme Court Human Rights Requirements

The draft regulations include exceptions and exemptions that are too broad. We have not had the time to isolate and analyze all of these. They all needed to be screen for human rights concerns before enactment of this regulation can be considered.

The CTA’s explanation of the draft regulations includes:

“The proposed ATPDR would set minimum accessibility standards that would apply to any new buildings or facilities purchased by Canadian transportation service providers after the one year following the coming into force of the proposed Regulations. In addition, any major modifications made to existing equipment or facilities would be required to comply with the proposed Regulations.”

This appears to permit a transportation to acquire a new building with accessibility barriers over a year after this regulation comes into force. The draft regulations need to be vetted to ensure that they do not allow a transportation provider or terminal to acquire a new building or part of a building during the year after the regulation comes into force, that does not meet the regulation’s accessibility requirements.

As another example, the draft regulations set requirements for accessibility features that must be included in new passenger airplanes. According to a complex series of provisions that are hard to decipher, some of these requirements do not apply to a “pre-existing” airplane. Section 62(4) defines a pre-existing airplane or like equipment as follows:

“(4) In subsections (1) to (3), a pre-existing aircraft, train, ferry or bus means an aircraft, train, ferry or bus that was

(a) purchased or leased by the carrier before the day on which this section comes into force; or

(b) purchased or leased by the carrier on or after the day on which this section comes into force, if the carrier has submitted the invitation for bids in respect of that aircraft, train, ferry or bus before that day.”

This provision does not come into force for one year after this regulation is enacted (See s. 162). As such, it appears that an airline could rush out now and buy new airplanes that do not meet the accessibility requirements for new airplanes, over the months before the regulation comes into effect. This flies in the face of the duty of each transportation provider not to create new disability barriers. It was a CTA case before the Supreme Court of Canada that established this principle in Council of Canadians with Disabilities v. ViaRail ## cite. [2007] 1 SCR 650, citing with approval Lepofsky, M. David. “Federal Court of Appeal De‑Rails Equality Rights for Persons With Disabilities — Via Rail v. Canadian Transportation Agency and the Important Duty Not to Create New Barriers to Accessibility” (2005‑2006), 18 N.J.C.L. 169.

All the timelines in these draft regulations need to be vetted to ensure that they do not violate the principle that the Supreme Court of Canada enunciated in the ViaRail case.

7. Curbside Assistance Provisions Fraught with Difficulties

We offer one other illustration of a concern with the draft regulations that show the risk of their being quite weak, namely the provision regarding curbside assistance at a transportation terminal. We do not here suggest that this provision violates existing human rights. Rather, we point to this because the CTA, when appearing before the Senate’s Standing Committee on Social Affairs, highlighted this part of these regulations. CTA chair Scott Streiner told the Senate’s Standing Committee on Social Affairs on April 10, 2019:

“The second example I would give relates to curbside assistance — that is, curb to gate assistance in airports. For travellers using mobility devices, particularly wheelchairs but also those who require guidance for blind travellers, or others, we all know that it can be a challenge, even if you don’t have a disability, to find your way from curbside to gate. Certainly, we require assistance in some cases for persons with disabilities.

There have been instances that have come to our attention where there’s been confusion about who provides that assistance between the airport, the airline and folks that found themselves not receiving the kind of assistance they need in a timely way. Again, these new regulations make it clear who has to do what. That’s a gap we’re trying to address through regulations.”

It is commendable that the draft regulations aim to ensure that passengers with disabilities can get curbside assistance to get into an airport or other transportation terminal, so they can check in. However, the provisions have excessive loopholes and leave far too much to the discretion of transportation provider and terminal operators. Contrary to Mr. Streiner’s presentation to the Senate and his commendable aims here, they do not make it clear to passengers with disabilities who does what.

Section 137 provides that a terminal operator must provide to passengers with disabilities “without delay” accommodation services such as”

“(c) assisting the person to proceed between the curbside zone and the check-in area or, if there is no check-in area, between the curbside zone and a representative of a carrier.”

Section 137(2) qualifies that a terminal does not have to provide that service if the transportation provider is providing that service. Section 137(2) provides:

” (2) Despite subsection (1), a terminal operator is not required to provide a person with any assistance referred to in that subsection if a carrier is already providing that person with that assistance.”

Section 136 requires the terminal operator to publish information about the availability of this curbside assistance. Section 136 provides in part:

“136 A terminal operator must publish, including by publishing on its Internet site, information about the services or facilities available at the terminal for persons with disabilities, including information about

(a) the curbside zone, including where the curbside zone is located and how to request assistance to or from the curbside zone;”

Taken together, these provisions are too confusing and slippery. Here again, they appear to serve the interest of terminal operators and transportation providers, who are given excessive discretion. Passengers with disabilities are left with uncertainty and unpredictability.

First, the regulation sets no time target that the terminal or transportation provider must meet to provide this curbside assistance. “Without delay” is entirely unpredictable and hard to enforce. A passenger with a disability could be left isolated, with no nearby staff, waiting and waiting alone in front of an airport in the middle of a freezing February day, without knowing how long they must continue to wait. They won’t know how much earlier they must arrive at the airport to be sure they get assisted to arrive inside the terminal to check in, in time to ensure that they don’t miss their flight. This does not serve the fundamental goal of predictability that the CTA emphasized in its explanation of these regulations.

By not specifying a specific maximum time requirement, this leaves each transportation provider free to set its own time lines, hoping that passengers with disabilities won’t bother taking on the burdensome chore of filing and litigating a case before the CTA over this. transportation providers know that few passengers with disabilities will wish to take on the hardship of litigating against a well-funded transportation provider over the interpretation of the vague words “without delay”.

Second, the draft regulations create confusion facing passengers with disabilities over who is responsible to provide this curbside assistance. The provision imposes the duty on the terminal. However, it leaves it open to an airline to provide the service, in which case the terminal is excused. Yet the provision imposes no specific duties on the airline that does offer the service. Does the “without delay” clause apply to the airlines too? If the airline doesn’t provide the service, has the passenger a right to demand it from the terminal operator? How can the passenger give the 48 or 96 hour notice that the terminal operator might demand?

For a passenger with a disability who just wants to get into an airport’s front door and up to the counter, this is a legal/regulatory mess dressed up as a helpful accommodation. Add to this the ordeal, while standing outside on that freezing February day, fearful of missing one’s flight, of then having to try to get someone on the phone from the airline or airport to figure out who is supposed to help, or trying to surf the web to see if there is an up-to-date posting on the airline’s or airport’s website that might point to the right phone number. Navigating such websites for assistance and trying to reach a live person on the phone with correct information on a topic like this is already a vexing challenge.

Third, there appears to be no requirement that all passengers including passengers with disabilities be notified of this service when their ticket is purchased, as part of the ticket documentation. Similarly, there is no requirement that the transportation provider or terminal have, and make public, an easily-reached phone number to call when en route to the terminal, to give advance warning that they are about to arrive. Requiring notice 48 or 96 hours in advance does little to help the terminal or transportation provider. Being able to call to seek this accommodation when a few minutes away, and to reach a live person in direct contact with the help personnel, would go much further to make a service like this become reliable.

8. Conclusion

We hope that in our rush to provide useful feedback on this complicated and at times, opaque draft regulation, we have not inadvertently made any incorrect descriptions of its provisions. If we have, we ask the CTA to notify us, so that we can correct our submission.

This draft regulation shows why it is essential for Parliament to immediately repeal s. 172 of the Canada Transportation Act. People with disabilities should not have to fear that the enactment of a regulation like this, despite some helpful provisions, can end up reducing their rights. They face too many barriers now in Canada’s transportation system. They should not face further hurdles, created by a regulatory authority whose mandate is to tear down such barriers and to prevent the creation of new ones.



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Canada Transportation Agency Proposes New Regulations that Threatens to Reduce the Duty to Accommodate Passengers with Disabilities in Air Travel and Other Transportation that the Federal Government Can Regulate, According to a New Brief by the AODA Alliance


Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities http://www.aodaalliance.org [email protected] Twitter: @aodaalliance

April 18, 2019

SUMMARY

Today, the AODA Alliance submitted a brief to the Canada Transportation Agency on the draft regulations that it is proposing to enact under the Canada Transportation Act to address the many barriers that people with disabilities face in the parts of Canada’s transportation network that the Federal Government can regulate, such as air travel. We set out our brief below.

The CTA posted these very detailed draft regulations on March 9, 2019 and gave the public 30 days to comment on them. We regret that we are submitting our brief after the CTA’s deadline for comment. We were not able to prepare this brief sooner, as we have been devoting so much time to our campaign to get Canada’s Senate to strengthen the weak Bill C-81, the proposed Accessible Canada Act.

We regret that we did not have time to post a draft of this brief earlier, for your feedback, as we ordinarily do when we are preparing briefs like this. We had to prepare this brief in an extraordinary rush.

Our brief provides an excellent illustration of why we need the Senate to strengthen Bill C-81. Parts of this draft regulation that we had time to analyze threaten to weaken the protection of the duty to accommodate people with disabilities. This is because s. 172 of the Canada Transportation Act says that once a regulation like this is enacted, it serves as a cap on the duty to accommodate people with disabilities, in so far as the CTA can enforce it. Our brief illustrates by example how this draft regulation would reduce protection for the duty to accommodate people with disabilities in federally-regulated transportation.

We therefore oppose the passage of this draft regulation, for the reasons we set out in this brief. We regret having to do so, because on our first review of the draft regulation, there appear to be some good things in it. As our brief explains, we nevertheless oppose its enactment because it threatens to reduce the rights of people with disabilities.

Sadly, our brief provides a good illustration of some of the problems with Bill C-81. We have called on the Senate to amend Bill C-81 to remove the damaging and harmful s. 172, so that regulations like these cannot serve to weaken the rights of people with disabilities. Our brief illustrates why that amendment to Bill C-81 is so vital to people with disabilities. We will find out on May 2, 2019 whether the Senate’s Standing Committee on Social Affairs will take up our recommendations for strengthening Bill C-81, including the repeal of s. 172.

It is not too late for you to help. Please email the Senate’s Standing Committee by writing [email protected] and urge the Senators to strengthen Bill C-81. Send them this brief to give a good example of why we need them to get rid of the harmful s. 172.

To watch the captioned video of AODA Alliance Chair David Lepofsky’s opening statement at the Senate Standing Committee on April 11, 2019 (10 minutes), visit: https://www.youtube.com/watch?v=FERCAljHbrw&feature=em-uploademail

To watch a captioned video of the portion of the Senate Standing Committee’s question-and-answer after that opening statement, where the AODA Alliance answers questions directed to us (26 minutes), visit https://www.youtube.com/watch?v=Dr0fCtB_cyw&feature=em-uploademail

You should read the specific amendments we asked the Senate to make to Bill C-81, and the short brief we submitted in support of those amendments. You can also visit the AODA Alliance website, Canada page to see in one place all our efforts over the past four years to campaign for the enactment of a strong and effective national accessibility law.

MORE DETAILS

Accessibility for Ontarians with Disabilities Act Alliance
United for a Barrier-Free Society for All People with Disabilities www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance

Brief to the Canada Transportation Agency on the Draft Regulations Posted for Comment on the Canada Gazette Entitled “Accessible Transportation for Persons with Disabilities Regulations”

April 18, 2019

To: Canada Transportation Agency
Via Email: [email protected]
Care of Sonia Gangopadhyay
Acting Director
Centre of Expertise for Accessible Transportation
Canadian Transportation Agency
15 Eddy Street
Gatineau, Quebec
K1A 0N9
Telephone: 819 953 8961

1. Introduction

In this brief, the AODA Alliance offers the Canada Transportation Agency our summary feedback on the draft regulations which the CTA posted in the Canada Gazette for public comment within 30 days on March 9, 2019, entitled “Accessible Transportation for Persons with Disabilities Regulations”. (ATPDR)

The AODA Alliance regrets that it has had to submit this brief past the CTA’s deadline for feedback. We regret that our volunteer coalition did not have the capacity to address this earlier. The CTA’s short 30-day public consultation period on these complex regulations overlapped with the pivotally important hearings on Bill C-81 (the proposed Accessible Canada Act) by the Senate. Moreover, a proper analysis of the CTA’s highly-technical document, which runs over 100 pages, is not something a voluntary grassroots organization can readily undertake on such short notice. This is made more challenging by the draft regulations’ complexity and, at times, impenetrable text.

Due to the insufficient time, we have not been able to fully review and analyze the entirety of the draft regulations’ details. We here address a short number of key points that amply support our core conclusion.

Our position in this brief is summarized as follows:

1. We commend the CTA for embarking on developing modernized accessibility standard regulations. These are long overdue. We share the CTA’s conclusion that the current situation facing passengers with disabilities is unacceptable, and that mandatory enforceable regulations are needed.
2. We accept that there are some helpful provisions in the draft regulations. However despite this, the draft regulation should not be enacted in its current form, especially if Parliament does not remove s. 172 from the Canada Transportation Act. This is because as written, the draft regulation threatens to reduce human rights of passengers with disabilities.

The Canada Transportation Agency should not infer that the short list of key concerns addressed in this brief are the only concerns that we would have raised about these draft regulations, had we had a fuller opportunity to digest and analyze them.

In general we share the concerns about this proposed regulation that the Alliance For Equality of Blind Canadians has set out in its excellent April 6, 2019 brief to the CTA which is available at:
http://www.blindcanadians.ca/sites/aebc/files/docs/brief/3208/Canada%20Gazette%20regs%20Brief%20final%2004-06-2019.docx 2. Who Are We?

The AODA Alliance is a non-partisan community coalition that has advocated in Ontario since 2005 for the effective implementation and enforcement of Canada’s first comprehensive provincial accessibility law, the Accessibility for Ontarians with Disabilities Act 2005. We are the successor to the community coalition that successfully campaigned from 1994 to 2005 for the AODA’s enactment. We have advised many, including several provinces, a United Nations conference, the European Union, Israel and New Zealand.

Among many other activities, we have been extensively involved in providing input to the Transportation Accessibility Standard enacted under the Accessibility for Ontarians with Disabilities Act. Our activity at the provincial level in the transportation area can be seen by visiting https://www.aodaalliance.org/transportation/

3. Endorsing Certain Specific CTA Findings

The CTA’s posting of draft regulation makes a number of key findings which the AODA Alliance endorses and supports.

The CTA correctly recognizes that Canada is not a leader in this area on the international stage. It acknowledged:

“Canada lags behind other countries that have comprehensive and enforceable regulations in this area.”

Later it wisely recognized:

“The CTA’s RMI revealed that its existing accessibility instruments represent a patchwork of regulations and voluntary standards, some of which are outdated and inadequate in their scope. This has resulted in inconsistent accessibility-related services and reduced access to transportation services for persons with disabilities.”

Still later the CTA recognized:

“Canada’s heavy reliance on voluntary codes of practice currently leaves it lagging behind other key jurisdictions that have comprehensive and enforceable accessible transportation regulations, notably the United States and the EU.”

Later the CTA similarly recognized how out-of-date its regulatory regime in this area has been:

“The current CTA regulations, voluntary codes of practice, and some of the guidance material relevant to accessible travel are outdated and contain significant gaps. While some gaps have been partially addressed through the CTA’s adjudication of individual accessibility complaints, this approach has resulted in an uneven playing field for industry, as some transportation service providers named in complaints are required to remove undue obstacles while others are not. As a result, extensive consultations have confirmed wide support from disability rights organizations, the general public and industry for the development of a single, comprehensive set of accessible transportation regulations that apply across the national transportation system.”

Elsewhere the CTA fairly acknowledged that its regulatory regime in this area to date has been inadequate, where it states:

“However, current accessibility provisions for the national transportation system are generally voluntary (i.e. not legally binding), and have not kept pace with developments since the early 2000s.”

4. CTA’s Goal In the Draft Regulation is Confused

At points, the CTA sets its goal well below the human rights standard. This is especially troubling, since the CTA states that it is trying to align itself with Bill C-81, the proposed Accessible Canada Act. That proposed legislation is called “an Act to ensure a barrier-free Canada.”

At other points, CTA merely says it aims to make transportation “more accessible”, a tepid and inadequate goal. The CTA states:

“The proposed Regulations would require these entities (collectively referred to herein as “transportation service providers”) to take steps to meet certain standards to make travel more accessible and consistent for persons with disabilities.”

Later the CTA acknowledges a stronger and far more appropriate goal of a barrier-free transportation system:

“The overarching objective of the proposed regulatory package is to promote the inclusion and participation of persons with disabilities in society by creating comprehensive and enforceable accessible transportation requirements that are applicable to all modes of transportation, and enabling persons with disabilities to travel with a predictable and consistent level of accessibility across a barrier-free modern national transportation system.”

Still later, but within just a few pages of those earlier contradictory statements, the CTA in one paragraph both sets a correct goal of “equal access” and shortly thereafter the incorrect diluted goal of “more accessible”:

“The ATPDR would ensure that all Canadians, including persons with disabilities, have equal access to the national transportation system. Transportation service providers subject to the proposed Regulations would be required to take steps and meet the proposed standards to make travel more accessible and consistent for persons with disabilities.”

We recommend that the CTA use consistent language that makes it clear that aim of the regulation is the achievement of a barrier-free and fully-accessible transportation system. We also recommend that a provision be added to the regulation that makes it clear that nothing in this regulation should be construed as reducing any duties to accommodate passengers with disabilities as guaranteed either in the Canada Human Rights Act or the Canada Transportation Act.

5. Draft Regulations Threaten to Create a New Legal Barrier that Can Impede Human Rights Duty of Transportation Providers to Accommodate

The AODA Alliance opposes the adoption of any CTA regulations that could threaten in any way to reduce the duty of transportation providers to accommodate passengers with disabilities as guaranteed under human rights laws. This includes any threat to reduce the duty of transportation providers under the Canada Transportation Act to remove and prevent undue obstacles or barriers to travel by passengers with disabilities.

For this reason, we regret that we must oppose the adoption of the draft regulation. While it includes some helpful contents, it also includes provisions that threaten existing human rights entitlements.

We have not had the time to screen the entire draft regulation to find all the threatening provisions, in order to see which parts, if any, of the draft regulation is irrelevant to that pressing concern. Before proceeding with this regulation, the Federal Government should put this draft regulation through a careful screening, with input from the disability community and the Canadian Human Rights Commission for that purpose.

Our concern arises from the fact that s. 172 of the Canada Transportation Act provides that once the CTA has enacted a regulation in an area, passengers with disabilities are barred from bringing an individual claim that a barrier is an “undue obstacle” in that area, if that would require the transportation provider to do anything more than the regulation requires. In effect, the CTA regulation sets a cap or ceiling on the scope of the duty to accommodate of transportation providers. The transportation provider need do no more, even if the regulation does not ensure effective accommodation, and even if further accommodation efforts are possible without undue hardship.

Section 172 provides, referring to the Canada Transportation Agency:

“in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.”

The AODA Alliance and other disability organizations have asked Parliament to repeal s. 172. That would leave the human rights duty to accommodate intact. Regulations enacted by the CTA could reinforce it, but never reduce it. The Federal Government has not done so. It has given no reason for its refusal to do so.

Instead of removing this unfair provision in the CTA legislation, Bill C-81 preserves it. The Federal Government refused our request to remove it from Bill C-81. We have asked the Senate to remove it. The Senate has not yet indicated whether it would do so.

When the CTA appeared before the Senate’s Standing Committee on Social Affairs to discuss Bill C-81 on April 10, 2019, it did not identify this problem or express any opinion on the AODA Alliance’s call for s. 172 to be repealed. To our knowledge, the Senators did not ask the CTA about this specific provision at those hearings.

When federal Disabilities Minister Carla Qualtrough appeared on April 3, 2019 before the Senate’s Standing Committee on Social Affairs to speak to Bill C-81, she stated:

“I have to emphasize that as a former human rights law practitioner, it is very important to me, and it has been, to preserve the duty to accommodate.”

Yet Bill C-81, whose creation she led, preserves and perpetuates s. 172, which is a threat to the duty to accommodate people with disabilities.

We here identify a troubling example in the draft regulations which on their face threaten to cut back on the duty to accommodate. As a painful irony, this threat arises from provisions which on their face give the impression that they seek to assist with the accommodation in transportation of passengers with disabilities.

We specifically focus on the draft regulations’ imposing a duty on passengers with disabilities to give advance notice to transportation providers of a request for certain prescribed accommodations. This problem arises from a combination of sections 29, 32, 34 and 35 of the draft regulations, which we set out here in material part.

Section 29 of the draft regulations provides:

“Advance notice at least 48 hours
29 (1) If a person with a disability makes a request for a service set out in this Part at least 48 hours before the scheduled time of departure, the carrier must provide the service. No advance notice required
(2) Despite subsection (1), if a person makes a request for a service referred to in any of paragraphs 32(a), (b), (g) and (i) to (w) or section 34 or 35 less than 48 hours before the scheduled time of departure, the carrier must provide the service. Advance notice 96 hours
(3) Despite subsection (1) and subject to subsection (2), a carrier may require that a request for a service set out in this Part be made 96 hours in advance of the person’s scheduled time of departure if the period of advance notice that is required by the carrier is reasonably necessary in the circumstances because of the type of service that is requested by the person. If no advance notice
(4) Despite subsections (1) and (3), if a request for a service that is subject to a time limit referred to in those subsections is not made within the time limit, the carrier must nonetheless make a reasonable effort to provide the service.”

Section 32 of the draft regulations, to which s. 29 refers, provides:

“32 A carrier must ensure that personnel, on the request of a person with a disability, provide the following services to the person without delay: (a) assisting the person with registering at the check-in counter;
(b) permitting the person, if they are unable to use an automated self-service kiosk or other automated check-in or ticketing process, to advance to the front of the line at a check-in counter or ticket counter;
(c) assisting the person in proceeding through any security screening process at the terminal, including by
(i) providing personnel to assist the person to proceed through the security screening process, or
(ii) collaborating with the relevant security authority or security personnel at the terminal to permit a person who is not travelling with the person with a disability to have access to the security screening checkpoint so that they may assist the person with a disability to proceed through the security screening process;
(d) assisting the person in proceeding to the boarding area after check-in;
(e) before boarding, transferring the person between the person’s own mobility aid and a mobility aid provided by the carrier;
(f) assisting the person in boarding and disembarking and, in the case of a person travelling on a ferry, assisting the person in moving to and from a vehicle deck to a passenger deck;
(g) assisting the person in storing and retrieving their carry-on baggage;
(h) before departure and on arrival at the destination, transferring the person between a mobility aid and the person’s passenger seat; (i) assisting the person in moving in and out of a mobility aid space;
(j) before departure or, if impossible because of time constraints, after departure, describing to a person who is blind or has a visual impairment the layout of the aircraft, train, ferry or bus, as the case may be, including the location of washrooms and exits, and the location and operation of any passenger-operated controls at the person’s passenger seat;
(k) assisting the person in accessing any entertainment content that is offered on board, such as by providing them with a personal electronic device and assisting them in using that device;
(l) before departure, providing the person with an individualized safety briefing and demonstration;
(m) on board an aircraft, train or ferry, providing the person with an on-board wheelchair;
(n) on board an aircraft, train or ferry, assisting the person in moving between their passenger seat and a washroom, including by assisting them in transferring between their passenger seat and an on-board wheelchair;
(o) on board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog;
(p) if a meal is offered on board, describing to the person all the food and beverages that are offered for consumption or providing a menu in large print or in Braille;
(q) if a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions;
(r) if the person is not able to access a food service car on a train, permitting the person and any support person to order a meal, and be served the meal, at their passenger seats; (s) assisting the person in proceeding through immigration and customs; (t) assisting the person in retrieving their checked baggage;
(u) assisting the person, after disembarkation, in proceeding to the general public area;
(v) assisting the person, after disembarkation, in proceeding to a location where the person may receive assistance to proceed to the curbside zone from personnel of the terminal operator; and
(w) assisting the person, if they are transferring to another segment of their trip within the same terminal, in proceeding to a location where the person may receive assistance from personnel of the receiving carrier.”

Sections 34 and 35 of the draft regulations provide:

“34 If a person with a disability who is in a wheelchair, a boarding chair or any other device in which the person is not independently mobile is waiting at a terminal for departure after check-in or in order to transfer to another segment of their trip, the carrier must ensure that personnel
(a) provide the person with a place to wait that is close to personnel who are available to provide assistance to the person; and
(b) periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part.

Request for assistance
35 Unless a person with a disability is able to request assistance from personnel by means of a call button, the carrier must ensure that personnel periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part.”

This draft regulation would legislate the creation of a new legalized barrier to the duty to accommodate, namely a requirement for passengers with disabilities to give advance notice to the transportation provider 48 hours before the travel, when seeking certain specified accommodations. That means that passengers with disabilities don’t have an assurance of a vital accommodation service if they have not given 48 hours advance notice to the transportation provider, where they are requesting any of the following accommodations:

Assisting the person in proceeding through any security screening process at the terminal (s. 32c).
Assisting the person in proceeding to the boarding area after check-in (s. 32(d)).
Before boarding, transferring the person between the person’s own mobility aid and a mobility aid provided by the carrier (s. 32(e)).
Assisting the person in boarding and disembarking and, in the case of a person travelling on a ferry, assisting the person in moving to and from a vehicle deck to a passenger deck (s. 32(f)).
Before departure and on arrival at the destination, transferring the person between a mobility aid and the person’s passenger seat (s. 32(h)). Assisting the person in moving in and out of a mobility aid space (s. 32 (i)).
Before departure or, if impossible because of time constraints, after departure, describing to a person who is blind or has a visual impairment the layout of the aircraft, train, ferry or bus, as the case may be, including the location of washrooms and exits, and the location and operation of any passenger-operated controls at the person’s passenger seat (s. 32(j)).
Assisting the person in accessing any entertainment content that is offered on board, such as by providing them with a personal electronic device and assisting them in using that device (s.32 (k)).
Before departure, providing the person with an individualized safety briefing and demonstration) s. 32(l)).
On board an aircraft, train or ferry, providing the person with an on-board wheelchair (s. 32(m)).
On board an aircraft, train or ferry, assisting the person in moving between their passenger seat and a washroom, including by assisting them in transferring between their passenger seat and an on-board wheelchair (s. 32(n)).
On board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog (s. 32(o)).
If a meal is offered on board, describing to the person all the food and beverages that are offered for consumption or providing a menu in large print or in Braille (s. 32(p)).
If a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions (s. 32(q)).
If the person is not able to access a food service car on a train, permitting the person and any support person to order a meal, and be served the meal, at their passenger seats (s. 3r)). Assisting the person in proceeding through immigration and customs (s. 32(s)). Assisting the person in retrieving their checked baggage (s. 32(t)).
Assisting the person, after disembarkation, in proceeding to the general public area (s. 32(u)).
Assisting the person, after disembarkation, in proceeding to a location where the person may receive assistance to proceed to the curbside zone from personnel of the terminal operator (s. 32(v)).
Assisting the person, if they are transferring to another segment of their trip within the same terminal, in proceeding to a location where the person may receive assistance from personnel of the receiving carrier (s. 32(w)).
Providing a person with a disability who is in a wheelchair, a boarding chair or any other device in which the person is not independently mobile, while waiting at a terminal for departure after check-in or in order to transfer to another segment of their trip, to provide the person with a place to wait that is close to personnel who are available to provide assistance ,and periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required as listed in that Part of the regulations. (s. 34).
Unless a person with a disability is able to request assistance from personnel by means of a call button, to ensure that personnel periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part. (s. 35).

Advance notice is simply not justified for many if not most of these accommodations assuming it can even be justified for any of them. These all involve a transportation provider deploying existing staff on hand. We cannot see how a transportation provider would change its plans or operations 48 hours before a trip in response to such advance notice. Even if advance notice were justified, which we dispute, a full two days is excessive.

Making this problematic situation even worse, s. 32(3) would allow a transportation provider to unilaterally require even more notice, namely 96 hours (4 days) for any of the foregoing, in circumstances that passengers with disabilities could not reliably know in advance. Section 32(3) provides:

” (3) Despite subsection (1) and subject to subsection (2), a carrier may require that a request for a service set out in this Part be made 96 hours in advance of the person’s scheduled time of departure if the period of advance notice that is required by the carrier is reasonably necessary in the circumstances because of the type of service that is requested by the person.”

When could an airline, for example, possibly need fully four days’ notice in order for a flight attendant, already present on the plane to do any of the following:
* Before departure, providing the person with an individualized safety briefing and demonstration )s. 32(l)).
* On board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog (s. 32(o)).
* If a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions (s. 32(q)).

Section 32(4) of the draft regulations attempts to reduce the harshness of this new barrier to effective accommodation of passengers with disabilities. It provides:

“(4) Despite subsections (1) and (3), if a request for a service that is subject to a time limit referred to in those subsections is not made within the time limit, the carrier must nonetheless make a reasonable effort to provide the service.”

By s. 32(4), a passenger’s failure to give the required notice is not automatically barred from any accommodation. However, the only effort that the transportation provider must make to provide a needed accommodation in circumstances of no advance notice is effort that is simply “reasonable.” The draft regulation provides no criteria for assessing the reasonableness of the transportation’s efforts.

Section 32(4)’s “reasonable efforts” clause is worded in terms that risks falling short of the human rights duty to accommodate. Under the human rights duty to accommodate, the transportation provider has the duty to make serious and substantial efforts, tailored to the individual’s specific needs, including investigating alternative solutions where needed, as well as the burden to show that it was impossible for the transportation provider to do more than it did to accommodate the passenger with a disability, without undue hardship. “Undue hardship” is a recognized and tough test to meet. It is not mere “reasonableness” of its effort.

These sections in the draft regulations read as if they were written for, if not by, the transportation sector. Such provisions are emblematic of why so many in the disability community oppose the CTA being assigned the proposed accessibility mandate under Bill C-81.

Many if not most or all of the accommodation services listed above that are subject to this new prior notice requirement are ones which passengers with disabilities have been able to request without prior notice up to now. As such, the draft regulations here threaten to serve as a real step backwards.

The regulations impose no duty on a transportation provider to effectively notify all passengers that it will require a 96 hour notice period for any or all of the listed accommodation services. Merely posting this on a website provides no assurance that passengers with disabilities will know to check, and will check at the right place. Must all passengers with disabilities start surfing the web or phoning their airline 96 hours in advance in case they might need one of these accommodations?

This notice requirement also presents a serious new barrier for passengers who are travelling at the last minute, e.g. for business, or to address an emergency or to attend a funeral. Passengers without disabilities are not similarly burdened. As such, this appears quite discriminatory.

The draft regulations do not require transportation providers to provide a reliable, quick, easily-accessed means for passengers with disabilities to give the required notice to the transportation provider. Members of the public are all too aware of the difficulties when trying, for example, to simply get a live person on the line when calling a major transportation provider. Even when a passenger tries to contact either of Toronto’s major passenger airports, Pearson International Airport or Billy Bishop Airport, to request curbside assistance in advance of arriving at the terminal, frustrating barriers have been encountered. Some have secured media attention. Had this been so important for the airlines, we anticipate that they would have already created a fast, effective and easy-to-use to give such advance notice.

6. Exceptions and Exemptions that Are Too Broad Fly in the Face of Supreme Court Human Rights Requirements

The draft regulations include exceptions and exemptions that are too broad. We have not had the time to isolate and analyze all of these. They all needed to be screen for human rights concerns before enactment of this regulation can be considered.

The CTA’s explanation of the draft regulations includes:

“The proposed ATPDR would set minimum accessibility standards that would apply to any new buildings or facilities purchased by Canadian transportation service providers after the one year following the coming into force of the proposed Regulations. In addition, any major modifications made to existing equipment or facilities would be required to comply with the proposed Regulations.”

This appears to permit a transportation to acquire a new building with accessibility barriers over a year after this regulation comes into force. The draft regulations need to be vetted to ensure that they do not allow a transportation provider or terminal to acquire a new building or part of a building during the year after the regulation comes into force, that does not meet the regulation’s accessibility requirements.

As another example, the draft regulations set requirements for accessibility features that must be included in new passenger airplanes. According to a complex series of provisions that are hard to decipher, some of these requirements do not apply to a “pre-existing” airplane. Section 62(4) defines a pre-existing airplane or like equipment as follows:

“(4) In subsections (1) to (3), a pre-existing aircraft, train, ferry or bus means an aircraft, train, ferry or bus that was
(a) purchased or leased by the carrier before the day on which this section comes into force; or
(b) purchased or leased by the carrier on or after the day on which this section comes into force, if the carrier has submitted the invitation for bids in respect of that aircraft, train, ferry or bus before that day.”

This provision does not come into force for one year after this regulation is enacted (See s. 162). As such, it appears that an airline could rush out now and buy new airplanes that do not meet the accessibility requirements for new airplanes, over the months before the regulation comes into effect. This flies in the face of the duty of each transportation provider not to create new disability barriers. It was a CTA case before the Supreme Court of Canada that established this principle in Council of Canadians with Disabilities v. ViaRail ## cite. [2007] 1 SCR 650, citing with approval Lepofsky, M. David. “Federal Court of Appeal DeRails Equality Rights for Persons With Disabilities Via Rail v. Canadian Transportation Agency and the Important Duty Not to Create New Barriers to Accessibility” (20052006), 18 N.J.C.L. 169.

All the timelines in these draft regulations need to be vetted to ensure that they do not violate the principle that the Supreme Court of Canada enunciated in the ViaRail case.

7. Curbside Assistance Provisions Fraught with Difficulties

We offer one other illustration of a concern with the draft regulations that show the risk of their being quite weak, namely the provision regarding curbside assistance at a transportation terminal. We do not here suggest that this provision violates existing human rights. Rather, we point to this because the CTA, when appearing before the Senate’s Standing Committee on Social Affairs, highlighted this part of these regulations. CTA chair Scott Streiner told the Senate’s Standing Committee on Social Affairs on April 10, 2019:

“The second example I would give relates to curbside assistance that is, curb to gate assistance in airports. For travellers using mobility devices, particularly wheelchairs but also those who require guidance for blind travellers, or others, we all know that it can be a challenge, even if you don’t have a disability, to find your way from curbside to gate. Certainly, we require assistance in some cases for persons with disabilities.
There have been instances that have come to our attention where there’s been confusion about who provides that assistance between the airport, the airline and folks that found themselves not receiving the kind of assistance they need in a timely way. Again, these new regulations make it clear who has to do what. That’s a gap we’re trying to address through regulations.”

It is commendable that the draft regulations aim to ensure that passengers with disabilities can get curbside assistance to get into an airport or other transportation terminal, so they can check in. However, the provisions have excessive loopholes and leave far too much to the discretion of transportation provider and terminal operators. Contrary to Mr. Streiner’s presentation to the Senate and his commendable aims here, they do not make it clear to passengers with disabilities who does what.

Section 137 provides that a terminal operator must provide to passengers with disabilities “without delay” accommodation services such as”

“(c) assisting the person to proceed between the curbside zone and the check-in area or, if there is no check-in area, between the curbside zone and a representative of a carrier.”

Section 137(2) qualifies that a terminal does not have to provide that service if the transportation provider is providing that service. Section 137(2) provides:

” (2) Despite subsection (1), a terminal operator is not required to provide a person with any assistance referred to in that subsection if a carrier is already providing that person with that assistance.”

Section 136 requires the terminal operator to publish information about the availability of this curbside assistance. Section 136 provides in part:

“136 A terminal operator must publish, including by publishing on its Internet site, information about the services or facilities available at the terminal for persons with disabilities, including information about
(a) the curbside zone, including where the curbside zone is located and how to request assistance to or from the curbside zone;”

Taken together, these provisions are too confusing and slippery. Here again, they appear to serve the interest of terminal operators and transportation providers, who are given excessive discretion. Passengers with disabilities are left with uncertainty and unpredictability.

First, the regulation sets no time target that the terminal or transportation provider must meet to provide this curbside assistance. “Without delay” is entirely unpredictable and hard to enforce. A passenger with a disability could be left isolated, with no nearby staff, waiting and waiting alone in front of an airport in the middle of a freezing February day, without knowing how long they must continue to wait. They won’t know how much earlier they must arrive at the airport to be sure they get assisted to arrive inside the terminal to check in, in time to ensure that they don’t miss their flight. This does not serve the fundamental goal of predictability that the CTA emphasized in its explanation of these regulations.

By not specifying a specific maximum time requirement, this leaves each transportation provider free to set its own time lines, hoping that passengers with disabilities won’t bother taking on the burdensome chore of filing and litigating a case before the CTA over this. transportation providers know that few passengers with disabilities will wish to take on the hardship of litigating against a well-funded transportation provider over the interpretation of the vague words “without delay”.

Second, the draft regulations create confusion facing passengers with disabilities over who is responsible to provide this curbside assistance. The provision imposes the duty on the terminal. However, it leaves it open to an airline to provide the service, in which case the terminal is excused. Yet the provision imposes no specific duties on the airline that does offer the service. Does the “without delay” clause apply to the airlines too? If the airline doesn’t provide the service, has the passenger a right to demand it from the terminal operator? How can the passenger give the 48 or 96 hour notice that the terminal operator might demand?

For a passenger with a disability who just wants to get into an airport’s front door and up to the counter, this is a legal/regulatory mess dressed up as a helpful accommodation. Add to this the ordeal, while standing outside on that freezing February day, fearful of missing one’s flight, of then having to try to get someone on the phone from the airline or airport to figure out who is supposed to help, or trying to surf the web to see if there is an up-to-date posting on the airline’s or airport’s website that might point to the right phone number. Navigating such websites for assistance and trying to reach a live person on the phone with correct information on a topic like this is already a vexing challenge.

Third, there appears to be no requirement that all passengers including passengers with disabilities be notified of this service when their ticket is purchased, as part of the ticket documentation. Similarly, there is no requirement that the transportation provider or terminal have, and make public, an easily-reached phone number to call when en route to the terminal, to give advance warning that they are about to arrive. Requiring notice 48 or 96 hours in advance does little to help the terminal or transportation provider. Being able to call to seek this accommodation when a few minutes away, and to reach a live person in direct contact with the help personnel, would go much further to make a service like this become reliable.

8. Conclusion

We hope that in our rush to provide useful feedback on this complicated and at times, opaque draft regulation, we have not inadvertently made any incorrect descriptions of its provisions. If we have, we ask the CTA to notify us, so that we can correct our submission.

This draft regulation shows why it is essential for Parliament to immediately repeal s. 172 of the Canada Transportation Act. People with disabilities should not have to fear that the enactment of a regulation like this, despite some helpful provisions, can end up reducing their rights. They face too many barriers now in Canada’s transportation system. They should not face further hurdles, created by a regulatory authority whose mandate is to tear down such barriers and to prevent the creation of new ones.



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Courtesy Seating for Passengers with Disabilities


Under the Transportation Standard of the AODA, conventional transportation providers must make sure that all their vehicles have courtesy seating for passengers with disabilities.

What is Courtesy Seating?

Courtesy seating is seating made available for passengers with disabilities if they need to use it. Signs should clearly indicate which seats on a vehicle are courtesy seats. They are most often closest to the door, unless the seats nearest to the door are not accessible.

Non-disabled passengers may sit in courtesy seats if they are empty. If a non-disabled passenger is using a courtesy seat when a passenger with a disability boards a vehicle and needs to use the seat, the non-disabled passenger should offer the seat to the passenger with the disability. Signage should alert all passengers to this system. However, some passengers with disabilities may prefer not to use a courtesy seat. They may be able to sit or stand elsewhere in the vehicle. Each passenger with a disability will know whether or not a courtesy seat is useful for them.

Other Types of Courtesy Seating

Other passengers, such as seniors, expectant mothers, or families with small children, may also benefit from courtesy or priority seating. However, the courtesy seating that the Transportation Standard mandates is only for passengers with disabilities. Transportation providers may offer more designated seating for other passengers if they wish and use signs to show which seating is for which group. Likewise, providers that already offer courtesy seating for other groups can continue to do so, but they must also provide courtesy seats for passengers with disabilities.

Spreading Awareness

Transportation providers must also have strategies in place to let the public know that courtesy seats are available on their vehicles. Communication will help to alert any passengers who might like to use the seating but who cannot read signs. In addition, communication should help the public become more aware of the purpose behind courtesy seating. Finally, communication about courtesy seating should remind everyone that people with disabilities are travelling every day.



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