Introduction

In September 2016 the Canadian media reported that a string of lawsuits had begun concerning incidents alleged to have resulted from problems with wheelchair services at Toronto Pearson International Airport.

Generally in cases involving wheelchair and other passenger assistance services, the air carrier and dedicated third-party service provider are named as parties to the claim or complaint. This makes sense, as passengers normally arrange for assistance at the airport when they book their tickets with the carrier and almost all carriers that operate at Pearson contract with a third-party service company to provide those services. In addition, carriers and service providers have statutory and contractual obligations regarding the provision of wheelchair and similar services to passengers who require assistance at the airport.

In the case of a complaint made to the Canadian Transportation Agency by Donna Jodhan regarding the provision of passenger assistance services, neither the carrier nor the ground handling company was named as a respondent. Instead, Jodhan named only the Greater Toronto Airports Authority (GTAA), which operates Pearson.

Like carriers and ground handlers, the GTAA is often included as a respondent to airport passenger assistance service claims, but it is unusual for it to be the only respondent so named. Feeling singled out, the GTAA asked the agency to dismiss Jodhan's complaint against it or add Jodhan's carrier and the service provider as co-respondents to the complaint. The agency denied this request in May 2015. At the end of March 2017, the Federal Court of Appeal dismissed the GTAA's appeal of that decision.

Facts

Jodhan returned to Toronto from Trinidad and Tobago on a January 13 2014 Caribbean Airlines Ltd flight. When booking her ticket, she had requested passenger assistance services appropriate for a visually impaired person. On arrival, she was met by someone with a wheelchair. Jodhan advised that she required only that someone walk with her through the terminal and did not need a wheelchair. She waited for 45 minutes before appropriate assistance was provided. On that basis, she filed a complaint with the agency in 2014.

The agency issued a decision to open pleadings, in which it identified several issues to be determined on the application. In response, the GTAA stated in part that:

  • assistance for persons with disabilities was provided by a third party, Servisair Inc, through its airport customer assistance programme; and
  • each carrier that operates at Pearson, including Caribbean, is responsible under the Transportation Act for ensuring that assistance is available for its passengers.

On that basis, the GTAA requested that:

  • the complaint be dismissed; or
  • Caribbean and Servisair be added as respondents.

In response, the agency issued a decision requiring the GTAA to answer specific interrogatories about how passenger assistance services are provided at Pearson. The following information was included among the GTAA's answers:

  • At the relevant time, the GTAA had licensed Servisair to provide a range of services to air carriers for passengers who required assistance proceeding through Pearson's terminals.
  • Under this agreement, Servisair had been required to enter into separate agreements with each air carrier that required such services for their passengers.
  • The GTAA had not been a party to the individual agreements between Servisair and each individual air carrier.
  • Once a request for assistance was made by a passenger to the carrier, the carrier had been responsible for ensuring that Servisair was given sufficient notice of and information about the services required.
  • Servisair employees had been specially trained to provide assistance to passengers with different forms of disabilities, including those with visual impairments.
  • The GTAA had not been involved in requests for assistance or the arrangement of services in response to those requests.

Agency decision

Part VII of the Air Transportation Regulations (SOR/88-58) governs the provision of services to persons with disabilities. While Part VII technically applies only to domestic services, the agency has consistently held that the principles underlying its provisions also apply to international services. It did the same in this case.

As the Federal Court of Appeal noted in its decision, Part VII, Sub-section 147(1) of the regulations requires carriers to provide disabled persons with the assistance that they require from the check-in counter to their seat on a flight and from their seat to the public area on arrival.

The agency first dealt with the GTAA's request to add Caribbean as a party to Jodhan's complaint. It found that, while Caribbean normally has obligations to its passengers with disabilities, on the facts before it, the GTAA had assumed these obligations. This finding was based on the following factors:

  • The GTAA had required Caribbean to sign a contract with Servisair for the provision of the services in question as a condition for operating at Pearson.
  • The GTAA had dictated the parameters of the services provided to persons with disabilities at Pearson.
  • Caribbean had therefore neither controlled which services were available nor how and by whom they were provided. Rather, the GTAA had had de facto control over these matters.
  • As both the GTAA and Caribbean were subject to the agency's jurisdiction, there was no risk that failing to add Caribbean to the application would have allowed it to evade agency oversight.

With respect to Servisair, the agency held that a transportation service provider such as the GTAA could not "escape its statutory responsibilities by relying on a contractor to perform its obligations". The agency held that the GTAA had been responsible for ensuring that its contractors provided the required assistance to persons with disabilities. In the agency's view, Servisair's participation was unnecessary for the resolution of Jodhan's complaint.

The GTAA appealed this decision to the Federal Court of Appeal.

Appeal court decision

The Federal Court of Appeal took a deferential approach to the agency's decision, in line with the existing trend in Canadian administrative law.(1) Under this approach, if the agency's decision could be characterised as reasonable, it should not be set aside on review.

As a starting point, the court noted that the agency appeared to have asked itself the right question on an application to add parties to a proceeding – namely, whether the party's presence was required to determine the matters at issue.

While the court upheld the agency's decision not to add Caribbean or Servisair as respondents, it reproached that exercise of discretion. For the court, Justice Pelletier noted that, based on the few facts known at this early stage of the proceedings, it was clear that a request for assistance had been made and processed by the GTAA, Caribbean or Servisair, as someone had shown up to meet Jodhan on landing.

What was less clear was whether the allegedly inappropriate assistance had been due to any problem for which the GTAA was responsible. While it might have been due to a problem with policies or training for which the GTAA had some responsibility, it could also have been the result of "something as banal as error, indifference or carelessness on the part of the relevant employee". While accepting that this determination of fact was up to the agency, Pelletier expressed the view that in declining to add Caribbean or Servisair as respondents, "the Agency has made its task more difficult".

On appeal, the GTAA argued that this decision had also amounted to a breach of its right to procedural fairness. The court disagreed that this was the case – at least at this stage of the proceedings.

In short, the Federal Court of Appeal held that the GTAA's appeal of the agency's interlocutory decision had been premature. On the court's analysis, the agency's decision not to add Caribbean or Servisair to the application might have ultimately been unfair to the GTAA with regard to its ability to put forward its position, but was not necessarily unfair. That is, much depends on how the agency will conduct the hearing of Jodhan's complaint on the merits. At this stage, the court deemed it reasonable to expect that the GTAA would be able to put any necessary evidence regarding Caribbean and Servisair before the agency "in one way or another". Until the agency makes a final decision on the application and issues reasons for that decision, it will be too soon to conclude whether the GTAA's right to procedural fairness has been breached.

Similarly, the court held that it was premature to determine whether the agency's provisional view of the GTAA's responsibilities over the provision of services to persons with disabilities, as expressed in its interlocutory decision, was either unreasonable or amounted to an "unlawful amendment of a regulation by way of an adjudicative proceeding", as argued by the GTAA.

The complaint will therefore be heard by the agency, with only the GTAA as a respondent.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact Carlos P Martins or Andrew W MacDonald at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (cmartins@lexcanada.com or amacdonald@lexcanada.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.

Endnotes

(1) Greater Toronto Airports Authority v Canadian Transportation Agency, 2017 FCA 64.