Docket: A-419-15
Citation: 2017 FCA 64
|
CORAM:
|
PELLETIER J.A.
WEBB J.A.
NEAR J.A.
|
|
BETWEEN:
|
|
GREATER TORONTO
AIRPORTS AUTHORITY
|
|
Appellant
|
|
and
|
|
CANADIAN
TRANSPORTATION AGENCY AND DONNA JODHAN
|
|
Respondents
|
REASONS FOR
JUDGMENT
PELLETIER J.A.
[1]
On January 13, 2014, Ms. Donna Jodhan returned
to Canada from Trinidad aboard a Caribbean Airlines Ltd. (Caribbean) flight. Though
she had requested passenger assistance services that were appropriate for a
visually impaired person, she was met by a staff member with a wheelchair. She
advised the staff member that she did not require a wheelchair; she only needed
someone to walk with her so that she could take their arm while she walked. Ms.
Jodhan waited for 45 minutes before she received appropriate assistance to the
immigration arrivals area: Appeal Book at 15.
[2]
Ms. Jodhan filed a complaint with the Canadian
Transportation Agency (Agency) about the lack of appropriate services for a
person with a disability. Her complaint identified the Greater Toronto Airports
Authority (GTAA) as the service provider and sole respondent. The GTAA
responded by asking the Agency to dismiss the complaint against it or
alternatively to add Caribbean and Servisair Inc. (Servisair), a disability
service provider holding contracts with both the GTAA and Carribbean, as
respondents. By letter decision no. LET-AT-A-32-2015 (the Decision), the Agency
dismissed the GTAA’s request. The GTAA appeals to this Court to set aside the Agency’s
decision.
[3]
For the reasons which follow, I would dismiss
the appeal without costs.
I.
Facts
[4]
The GTAA operates Pearson International Airport
(Pearson), which is Canada’s largest airport and the fifth busiest airport in
North America. Approximately 65 air carriers operate at Pearson.
[5]
The provision of services to persons with disabilities
is governed by Part VII of the Air Transportation Regulations, SOR/88-58
[ATR]. Subsection 146(1) stipulates that Part VII applies only to
domestic flights, but the Agency has repeatedly held that while Part VII of the
ATR does not apply directly to international flights, the underlying
principles do. This means that, in practice, the service requirements of the ATR
apply to international flights as well as domestic flights, at least insofar as
the Canadian operations of international carriers are concerned.
[6]
Subsection 147(1) of the ATR requires air
carriers to provide disabled persons such assistance as they require from the
check-in counter to their seat on a flight and from their seat to the general
public area upon arrival. In addition, subsection 147(2) requires that, when a
reservation is being made, the air carrier shall, upon request, describe the
services that it is required to provide pursuant to subsection 147(1) and to
confirm which services the person requests.
[7]
The scheme for the provision of services to
persons with disabilities in place at Pearson is described in the following
paragraphs taken from the GTAA’s Memorandum of Fact and Law, supported by references
to the GTAA’s answer to Ms. Jodhan’s application:
13. The air carriers at Pearson Airport
participate in the Airport Customer Assistance Program (“ACAP”). The ACAP is a collaborative service
model under which the air carriers each contract with a common service provider
who provides assistance to passengers with disabilities on behalf of each of
the individual air carriers. This service model is common in the aviation
industry, as it provides for a more consistent, efficient, and organized
service for such passengers.
GTAA’s Answer to the Application at paras. 11, 14 [Appeal Book at
37].
14. At the
relevant time, ACAP services were delivered by Servisair, which is a company
engaged in the business of providing passenger services, ground handling, and
other services to air carriers.
15. Specifically,
Servisair, through the ACAP, provided assistance at Pearson Airport to persons
with disabilities from curb-side to gate for departing passengers and from gate
to curb-side for arriving passengers.
GTAA’s Answer to the Application at paras. 11-12 [Appeal Book at 37].
16. At the relevant
time, the GTAA was party to a Service Agreement with Servisair (the “Service Agreement”).
Under the Service Agreement, the GTAA licensed Servisair to provide a range of
services to air carriers for passengers who required assistance in proceeding
through Pearson Airport’s terminals. The services provided by Servisair
included walking with a visually impaired passenger who required assistance to
or from the gate of his or her flight.
GTAA’s Answer to the Application at para. 13[Appeal Book at 37].
17. The Service
Agreement required that Servisair enter into a separate Carrier Service
Agreement with each of the air carriers who required such services for their
respective passengers. The terms of the service to be provided to passengers
requiring assistance were confirmed in these Carrier Service Agreements.
GTAA’s Answer to the Application at paras. 14,16 [Appeal Book at 37-38].
18. The air
carriers entered into such agreements with Servisair. The GTAA was not a party
to the Carrier Service Agreements.
GTAA’s Answer to the Application at paras. 14-16 [Appeal Book at 36- 37].
19. It is the
responsibility of a passenger either directly or through his or her travel
agent to request assistance from the air carrier and to do so within 48 hours
of departure. Once this request is received, it is the responsibility of the
air carrier to ensure that the assistance is provided on the day of the flight.
This means that the air carrier must contact the Servisair dispatch centre to
give notice of the passenger’s name, flight details, and a summary of the
assistance required.
GTAA’s Answer to the Application at para. 17 [Appeal Book at 38].
20. Servisair was
then responsible for meeting and assisting the passenger identified by the air
carrier. Servisair provided ACAP services through its own workforce that was
hired, trained, supervised, and paid by Servisair. The employees of Servisair
who provided the ACAP services were trained in the proper means of providing
assistance to passengers with different forms of disability, including
passengers with visual impairments.
GTAA’s Answer to the Application at para. 18 [Appeal Book at 38].
21. The GTAA did
not receive requests from individual passengers for assistance, nor was the
GTAA involved in making the arrangements described above.
GTAA’s Answer to the Application at para. 17 [Appeal Book at 38].
II.
The decision under review
[8]
The Agency’s response to the GTAA’s request that
Caribbean and Servisair be added as respondents and that the complaint against
it be dismissed is summarized below.
[9]
The Agency first considered the request that
Caribbean be added as a respondent.
[10]
The Agency began by reviewing the GTAA’s
responses to interrogatories. The GTAA submitted that the party operationally responsible
for providing guidance and luggage assistance at Pearson is Servisair. It
explained that its agreement with Servisair included a broad mandate to provide
“operational support services” to passengers
with disabilities, which includes those with “vision
loss.” The GTAA also noted that the statutory obligation to provide
services to passengers with disabilities rests on Caribbean, which engages
Servisair to discharge the obligation. The GTAA further noted that it had no
involvement in or knowledge of the events giving rise to Ms. Jodhan’s
complaint.
[11]
After noting that Caribbean normally has
obligations towards its passengers with disabilities, the Agency found that, in
the particular circumstances of this case, the GTAA had assumed those
obligations. The Agency identified four factors which justified its conclusion:
1 As a condition of allowing Caribbean to operate from Pearson,
the GTAA required Caribbean to sign a contract with Servisair whereby all
services for passengers with disabilities would be provided by the latter and
not by Caribbean.
2 The GTAA dictates the parameters of
services provided for passengers with disabilities through a procedures manual that
incorporates the ACAP training program. This manual is developed in conjunction
with the GTAA and is maintained and updated under the GTAA’s direction.
3 In light of the foregoing, Caribbean neither controlled which
services were available nor how and by whom they were provided. Rather, GTAA had
“de facto” control.
4 Since both the GTAA and Caribbean fall within the Agency’s
jurisdiction, there is no risk that failing to add Caribbean to the application
as a respondent would allow the latter to evade Agency oversight.
(Appeal Book at 9.)
[12]
Based on these findings, the Agency refused the
GTAA’s request to add Caribbean as a respondent.
[13]
As for Servisair’s participation in Ms. Jodhan’s
application, the Agency held that a transportation service provider operating
within the federal transportation network such as the GTAA cannot “escape its statutory responsibilities by relying on a
contractor to perform its obligations”: Appeal Book at 10. The Agency found
support for its view in section 4 of the Personnel Training for the
Assistance of Persons with Disabilities Regulations, SOR/94-42 [Training
Regulations], which provides as follows:
|
4 Every carrier
and terminal operator shall ensure that, consistent with its type of operation,
all employees and contractors of the carrier or terminal operator who provide
transportation-related services and who may be required to interact with the
public or to make decisions in respect of the carriage of persons with
disabilities receive a level of training appropriate to the requirements of
their function…
|
4 Le transporteur
et l’exploitant de terminal doivent s’assurer que, selon leur type
d’exploitation, leurs employés et entrepreneurs qui fournissent des services
liés au transport et qui peuvent être appelés à transiger avec le public ou à
prendre des décisions concernant le transport des personnes ayant une
déficience reçoivent une formation adaptée aux besoins de leurs fonctions…
|
[14]
The Agency concluded from this that the GTAA was
responsible for ensuring that its contractors receive the appropriate training
and provide the required assistance to persons with disabilities. As a result,
the Agency determined that Servisair’s participation was not necessary for the resolution
of the dispute.
III.
Analysis
[15]
The standard of review of the Agency’s
interpretation and application of its home legislation, including issues
related to human rights, as is the case here, is reasonableness: Council of
Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para.
100, [2007] 1 S.C.R. 650 [VIA Rail]. Reasonableness is the presumptive
standard of review, unless the issue comes within certain narrow exceptions,
one of which is “true questions of jurisdiction”:
Alberta (Information and Privacy Commissioner) v. Alberta Teachers'
Association, 2011 SCC 61 at para. 30, [2011] 3 S.C.R. 654. Questions of
contractual interpretation are questions of mixed fact and law, reviewable on
the standard of reasonableness: Sattva Capital Corp. v. Creston Moly Corp.,
2014 SCC 53 at paras. 50-55, [2014] 2 S.C.R. 633. In general, administrative
tribunals are given wide latitude in crafting their procedural rules and in
applying them: Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at para. 27, 174 DLR (4th) 193; VIA Rail at para.
231.
[16]
It is useful to remember that the question which
was before the Agency was whether Caribbean and Servisair should be added as
respondents to Ms. Jodhan’s complaint. In general terms, the critical issue in
deciding whether entities are added or removed as parties is whether their
presence is required to determine the matters in issue. That appears to be the
test which the Agency invoked when it held that “the
participation of Caribbean is not necessary for the resolution of the dispute”:
Appeal Book at 10.
[17]
At this stage, it is not known why Ms. Jodhan
did not receive the assistance which she requested. It appears to me to be
premature to conclude that the problem lies with the policies for which the
GTAA appears to have been found responsible. The problem may lie with the
mundane mechanics of service delivery.
[18]
Recall that Ms. Jodhan’s complaint is that she
requested certain services, but that when she disembarked she was met by a service
provider who was not equipped to provide her with the services she had
requested. The fact that a form of assistance was supplied, even though it was
the wrong form of assistance, necessarily means that there was a request for
services by Ms. Jodhan, or someone on her behalf, from one of the GTAA,
Caribbean or Servisair. Furthermore, it is likely that there were
communications between either the GTAA or Caribbean and Servisair.
[19]
The failure to provide an appropriate form of
assistance following those communications may be the result of poor policy or
inadequate training, but it may also be the result of something as banal as
error, indifference or carelessness on the part of the relevant employee. It
may also be the result of a failure of supervision by that person’s immediate
supervisor. In other words, the responsibility for the error may lie with the
staff who provided the inappropriate service or it may lie nearer those
responsible for policy development. It is for the Agency to consider the
evidence and to make the appropriate findings of fact.
[20]
By declining to add Caribbean or Servisair as
respondents, the Agency has made its task more difficult and has imposed a
burden on the GTAA which it would not have if Caribbean and Servisair were
there to defend their positions.
[21]
The GTAA argues that the Agency has in this way
breached its right to procedural fairness by declining to add Caribbean and
Servisair as parties. In my view, this claim is premature: Canada (Border
Services Agency) v. C.B. Powell Limited, 2010 FCA 61 at paras. 30-32,
[2011] 2 F.C.R. 332. Depending upon the manner in which the Agency decides to
proceed (a hearing or a decision on a paper record), the consequences of the
Agency’s decision for the GTAA’s ability to defend its point of view may or may
not be impaired. The GTAA certainly has the ability to speak to its contracting
parties and is likely able to put their evidence before the Agency in one way
or another. Without having the benefit of the Agency’s final decision and the
reasons given in support of it, it is premature to say if the GTAA’s right to
procedural fairness has been breached.
[22]
The GTAA’s appeal focuses on the fact that the
Agency has imposed service obligations on it which it says are not imposed by
the relevant legislation. The Agency came to its conclusion with respect to the
GTAA’s service obligations, in part, by reference to the GTAA’s contracts with
Caribbean and Servisair. The Agency concluded that the GTAA, by compelling
Caribbean to use Servisair as its disability services provider and determining
the service standards through its procedures manual, had assumed Caribbean’s
obligations.
[23]
This conclusion is one of fact and law which
cannot be attacked in this appeal. Subsection 41(1) of the Canada
Transportation Act, S.C. 1996, c. 10 provides that an appeal from
the Agency to this Court lies only on a question of law or jurisdiction. As
noted earlier, the Supreme Court has now held that the interpretation of a
contract, long thought to be a question of law, is a question of mixed fact and
law. As a result, the GTAA cannot challenge the Agency’s interpretation of its
contracts in this Court.
[24]
The Agency also relied on its interpretation of
the Training Regulations to find that the GTAA was responsible
for providing services to persons with disabilities. After reviewing s. 4 of
the Training Regulations, the Agency wrote “…the GTAA
has the responsibility to ensure its employees and contractors receive the
appropriate training and provide the required assistance to persons with
disabilities”: Appeal Book, p. 10 The GTAA reads this as a finding that
its employees are responsible for providing the required assistance to persons
with disabilities. When the sentence quoted above is read in conjunction with
s. 4 of the Training Regulations, it could also be interpreting as requiring
air terminal operators to provide all persons who provide transportation
related services to persons with disabilities an appropriate level of training.
[25]
Given that the Agency has not come to any final
conclusion on Ms Jodhan’s complaint, we are not in a position to resolve the
ambiguity in the Agency’s interpretation of s. 4. That said, I am not persuaded
that the Agency has in fact interpreted the Training Regulations in any
meaningful sense of that term. The Supreme Court teaches that statutory
interpretation must consider the text, context and purpose: Rizzo &
Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, 36 OR (3d) 418. In
this case, the Agency has simply pointed to the words of the Training
Regulations and stated what appears to it to be a self-evident conclusion.
Before deferring to the Agency’s interpretation of its home legislation, I do
not think it unreasonable to ask that the Agency address the task in the way
which the Supreme Court teaches it should be done.
[26]
As a result, I am of the view that the Agency’s
interpretation of the Training Regulations is but a provisional
conclusion which it has relied on for the purposes of this interlocutory motion.
It should not be treated as a definitive statement of an airport operator’s responsibilities
with respect to services for persons with disabilities.
[27]
Finally, the GTAA argues that the Agency’s
conclusion as to its responsibilities for providing services to persons with
disabilities amounts to an unlawful amendment of a regulation by way of an
adjudicative proceeding. I believe that the GTAA’s argument on this point is also
premature. Once the Agency has considered the evidence put before it on the
substantive issues and has addressed the interpretation of the Training
Regulations as taught by the Supreme Court, the GTAA may no longer have the
same concerns. Until that time, this Court should allow the proceedings before
the Agency to proceed without interference.
IV.
Conclusion
[28]
For these reasons, I would dismiss the appeal.
Since both Ms. Jodhan and the Agency have asked that costs not be awarded for
or against them, there will be no order as to costs.
"J.D. Denis Pelletier"
“I agree
Wyman W. Webb
J.A.”
“I agree
D.G. Near J.A.”
Email this Content