The Canadian Accessible Transportation for Persons for Disabilities Regulations (ATPDRs) set out requirements for transport service providers, including air carriers, for the purpose of removing barriers from the federally regulated transport network.
The ATPDRs include provisions relating to airlines' transport of mobility aids, including manual and electric wheelchairs, scooters, walkers and crutches. For the purposes of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) (and its predecessor, the Warsaw Convention), which governs air carriers' liability in international travel, mobility aids are baggage and are therefore subject to the limit of liability set out in its article 22(2). The Montreal Convention's limit of liability is currently 1,288 special drawing rights, or approximately C$2,250.
However, if a passenger makes a "special declaration of interest" under article 22(2) of the Montreal Convention, the normal limit of liability for lost, delayed or damaged baggage is set aside and the maximum liability is the value set out in the declaration.
Because the value of a mobility aid can often exceed this monetary limit, section 62 of the ATPDRs requires air carriers to specifically advise persons travelling with mobility aids of the option of making a "special declaration of interest" when they make a reservation. A notice to this effect must also be published on carriers' websites.
After the ATPDRs came into effect in June 2020, a number of airlines brought a joint application to the Canadian Transportation Agency (the Agency) for an exemption from section 62's requirement to advise passengers of the option of making a special declaration of interest. The Agency is authorised by section 170(4) of the Canada Transportation Act (CTA) to order exemptions if it is satisfied that the person seeking the exemption:
has taken or will take measures – at least equivalent to those that must be taken under the provisions of the regulations for which an exemption is to be granted – to remove barriers or to prevent new barriers.
The applications were made by the US-based Airlines for America on behalf of four of its member airlines and by the National Airlines Council of Canada on behalf of four of its members. While the basis for the application was the same for all eight airlines seeking the exemption, only two succeeded in obtaining one: Air Canada and Jazz Aviation.(1)
The airline applicants' position was that the requirement to advise passengers travelling with mobility aids of the right to make a special declaration of interest served no purpose because they already waived the limits of liability in respect of mobility aids, either by policy or practice. While the same position was advanced by each of the airlines, the evidence filed in support of that position differed.
In fact, the evidence initially relied on by the airline applicants was deemed to be insufficient to allow the Agency to assess the applications. It was only after the applicants filed relevant tariff provisions or information about them that the applications were allowed to proceed.
In addition to requiring the airline applicants to file excerpts from or information about their respective tariffs, the Agency launched a consultation to hear from members of disability rights organisations and the public. It received three submissions in response:
- one from Barrier Free Canada;
- one from Spinal Cord Injury Canada; and
- one joint submission from:
- the Council of Canadians with Disabilities;
- the Canadian Council of the Blind;
- the Alliance for the Equality of Blind Canadians;
- the National Coalition of People who use Guide and Service Dogs;
- Service Dog Users of Canada; and
- the Confederation of Organizations of Persons with Disabilities of Quebec.
While Barrier Free Canada supported the airlines' request for an exemption, submitting that the section 62 requirement could become an additional barrier and generate unnecessary confusion, the other disability rights organisations opposed the applications.
The Agency reasoned that in order to qualify for an exemption under section 170(4) of the CTA, a carrier's tariff "must clearly indicate that they waive the limits of liability such that there is no purpose to be served by offering a person the opportunity to make a special declaration of interest" and that the waiver must be "at least equivalent" to what is required under the ATPDRs.
Only Air Canada and Jazz Aviation met this standard. Rule 105 of their international tariffs provide:
(4)(a) Normal carrier limit of liability will be waived for substantiated claims involving loss, damage or delay in delivery to mobility aids such as wheelchairs, walkers, crutches, scooters and other mobility aid. When such items have been accepted in to the care of the carrier as checked baggage or otherwise.
Note: The liability of carrier for substantiated claims involving the loss of, damage to, or delay in delivery of mobility aids, when such items have been accepted as checked baggage or otherwise, is to be based on the cost of the repair or replacement value of the mobility aid.
The other six airline applicants were found not to have policies in place that were at least equivalent to what is required by the ATPDRs and were therefore denied the requested exemption. In particular, the Agency held that:
- a tariff rule that waives the limit of liability, but which also includes a statement that the carrier will, "at its discretion", replace a damaged or lost mobility aid with an identical one satisfactory to the passenger, or reimburse the passenger for the replacement cost of the aid, is insufficient. In the Agency's view, leaving the issue of replacement versus reimbursement to the carrier's discretion creates uncertainty for passengers with disabilities and is inconsistent with the requirements in section 62 of the ATPDRs;
- a rule that sets the maximum liability for a lost, damaged or destroyed mobility aid at "the original, documented purchased price of the device" is not "at least equivalent" to the requirements of section 62 because it may deprive a passenger from receiving reimbursement for the full replacement cost of a mobility aid in cases where the cost of a replacement is higher than its original purchase price; and
- absent a clear indication that the limits of liability set out in the Montreal Convention do not apply, an exemption from section 62's requirement to inform passengers of the option of making a special declaration of interest will not be available.
The Agency did not find it necessary to specify that exemption orders made under section 170(4) of the CTA will expire after two years, as requested by some of the disability rights organisations, because the provision itself sets a three-year limitation period. However, the Agency agreed that any carrier benefiting from an exemption order should advise passengers that the liability limits under the Montreal Convention are waived. The Agency therefore required that the two carriers granted the exemption advise passengers that these limits are waived as soon as they are made aware that a passenger is travelling with a mobility aid.
Agency declines to approve proposed updated tariff rule
Before allowing the exemptions to go into effect, the Agency required Air Canada and Jazz Aviation to file an updated tariff setting out their reimbursement policy, including the steps a person must take, as well as the information and proof that must be provided, to make a claim for reimbursement. This was done on 15 March 2022.
The proposed rule states that a passenger must file a report with the carrier at the airport immediately upon arrival or, if unable to do so, contact the carrier "without delay". A passenger making a claim must use a form provided by Air Canada and provide supporting documentation:
such as the baggage incident report number, the passenger's itinerary, baggage tag, clear pictures of the damaged item, evidence of purchase, model and type of the mobility aid, and any other information that may reasonably be requested by the carrier to identify the mobility aid, verify the facts alleged, and assess the credibility of the claim.
On 11 May 2022, the Agency issued Determination No. A-2022-56. While it held that the reimbursement policy described above met the conditions set out in its earlier decision, it nonetheless refused to approve the proposed updated tariff. The Agency noted that the version of the rule waiving the limit of liability on which the conditional exemption was granted provided that it applied to mobility aids that have "been accepted into the care of the carrier as checked baggage or otherwise" (emphasis added by the Agency).
The new, proposed rule did not include the words "or otherwise," which the Agency characterised as "problematic". In the Agency's view, limiting the waiver of the Montreal Convention's limit of liability only to mobility aids transported as checked baggage was not "at least equivalent" to the requirements of the ATPDRs.
As a result, in order to obtain the section 62 exemption, Air Canada and Jazz Aviation are required to file an updated tariff that includes "or otherwise" in the rule waiving the limit of liability for transport of mobility aids.
For further information on this topic please contact Carlos P Martins or Andrew MacDonald at WeirFoulds LLP by telephone (+1 416 365 1110) or email ([email protected] or [email protected]). The WeirFoulds LLP website can be accessed at www.weirfoulds.com.
(1) Determination No. A-2022-10.