Accessible Transportation for Persons with Disabilities Regulations Application Exemption Order: SOR/2020-125

Canada Gazette, Part II, Volume 154, Number 12

Registration

SOR/2020-125 June 1, 2020

CANADA TRANSPORTATION ACT

P.C. 2020-406 May 30, 2020

Whereas the Canadian Transportation Agency has made the Accessible Transportation for Persons with Disabilities Regulations footnote a, which set out requirements applicable to transportation service providers;

And whereas, due to the coronavirus disease 2019 (COVID-19) pandemic and its severe financial and operational repercussions on air, marine and bus carriers and certain terminal operators, the Canadian Transportation Agency is of the opinion that it is necessary to exempt those entities for a limited period from the application of certain provisions of those Regulations that will come into force on June 25, 2020;

And whereas, pursuant to subsection 36(2) of the Canada Transportation Act footnote b, the Canadian Transportation Agency has given the Minister of Transport notice of the annexed Order;

Therefore, pursuant to subsection 170(3) of the Canada Transportation Act footnote b, the Canadian Transportation Agency makes the annexed Accessible Transportation for Persons with Disabilities Regulations Application Exemption Order.

Gatineau, May 14, 2020

Scott Streiner
Chairperson
Canadian Transportation Agency

Elizabeth C. Barker
Vice-Chairperson
Canadian Transportation Agency

Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to subsection 170(3) of the Canada Transportation Act footnote a, approves the annexed Accessible Transportation for Persons with Disabilities Regulations Application Exemption Order, made by the Canadian Transportation Agency.

Accessible Transportation for Persons with Disabilities Regulations Application Exemption Order

Definition

Definition of Regulations

Exemptions

Air carriers

2 Air carriers are exempted until December 31, 2020 from the application of the following provisions of the Regulations:

Marine carriers

3 Marine carriers are exempted until December 31, 2020 from the application of the following provisions of the Regulations:

Bus carriers

4 Bus carriers are exempted until December 31, 2020 from the application of the following provisions of the Regulations:

Terminal operators

5 Terminal operators referred to in paragraph 212(a) of the Regulations are exempted until December 31, 2020 from the application of the following provisions of the Regulations:

Repeal

6 This Order is repealed on January 1, 2021.

Coming into Force

June 25, 2020

7 This Order comes into force on June 25, 2020.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Accessible Transportation for Persons with Disabilities Regulations (ATPDR) introduce a single comprehensive set of transportation regulations designed to make travel more accessible and consistent for persons with disabilities. The ATPDR codify numerous existing codes of practice and establish new requirements concerning accessible services, transportation equipment and technology, and communications with respect to operations by carriers and terminals in all modes of transportation, as well as operations by the Canadian Air Transportation Security Authority (CATSA) and the Canada Border Services Agency (CBSA). The ATPDR also ensure that requirements are enforceable through administrative monetary penalties (AMPs). Most of the provisions in the ATPDR will come into force on June 25, 2020, while some provisions will come into force in 2021, and others in 2022.

Given the severe financial and operational disruptions caused by the COVID-19 pandemic, many implicated stakeholders have indicated to the Canadian Transportation Agency (CTA) that they will not be ready to meet all requirements under the ATPDR that will come into force on June 25, 2020. Consequently, stakeholders have requested that the CTA provide temporary relief from some of the requirements of the ATPDR in order to give them extra time to bring their services, systems and facilities into compliance.

This Accessible Transportation for Persons with Disabilities Regulations Application Exemption Order (the Order), made pursuant to subsection 170(3) of the Canada Transportation Act (the Act), provides a temporary exemption, with the approval of the Governor in Council, until December 31, 2020, from the application of certain provisions of the ATPDR.

Background

The ATPDR represent an important step forward in accessible transportation. These Regulations establish legally binding requirements for services, technical standards for equipment, communications, training, and security and border screening. They are enforceable through AMPs of up to $250,000 per violation.

With some exceptions, the ATPDR cover large transportation service providers in the federal transportation network, including large airlines and certain passenger railway companies, marine carriers (ferries), and bus operators, as well as the terminals in Canada that serve them. Some provisions of the ATPDR — such as those on security, border screening, communications, training, and signage — also apply to CBSA and CATSA. The ATPDR were finalized and published in the Canada Gazette, Part II, on July 10, 2019, and most provisions of the Regulations will come into force on June 25, 2020. These Regulations were registered a year prior to provisions coming into force in order to give transportation service providers sufficient time to update systems and processes to ensure readiness for implementation. These stakeholders have indicated they have worked in good faith to prepare for implementation and are already prepared to meet many of the ATPDR requirements.

In March 2020, Canadians, like others around the world, experienced the onset of a pandemic — a previously unseen coronavirus infection known as COVID-19. The pandemic has not only taken thousands of lives in Canada and resulted in significant disruptions to everyday life, it has also had significant impacts across all sectors of the country’s economy, including the transportation sector. Since the onset of COVID-19 in Canada, transportation service providers have experienced massive declines in passenger volumes and significant disruptions to their operations.

Once it became apparent that the COVID-19 pandemic would become a serious issue in Canada, some transportation service providers began contacting the CTA to inquire about the impact of the pandemic on the upcoming June 25, 2020, coming-into-force date for many provisions of the ATPDR.

While the CTA recognizes the severity of the COVID-19 pandemic, the CTA has also emphasized to transportation service providers that accessible transportation is a fundamental human right and that the ATPDR were built on long-standing codes of practice and existing regulations. The CTA has consistently held that the ATPDR will still come into force as planned, with most provisions coming into force on June 25, 2020.

However, in light of the extent of the impact of COVID-19, the CTA has endeavoured to be flexible and to address legitimate areas of concern raised by transportation service providers. Given that the COVID-19 pandemic has impacted the capacity and the ability of transportation service providers to meet certain accessible transportation requirements in the ATPDR, the CTA is of the view that it would be reasonable to provide temporary relief from certain specific, limited obligations, which have not yet come into force. As such, in March and April 2020, the CTA communicated with various transportation service providers, and agreed to accept applications from them for temporary, targeted exemptions from specific provisions of the ATPDR. The deadline for these submissions was April 9, 2020. A total of 27 applications were received from airlines, airports and the marine and bus sectors.

These applications generally requested only modest exemptions to the ATPDR, suggesting that transportation service providers had already made significant steps toward preparing for compliance with a broad range of ATPDR provisions. For example, requirements around the transportation of support persons — often referred to as “one person, one fare,” the implementation of allergy buffer zones, assistance with baggage retrieval, the transportation of small assistive devices on board, and many other provisions will still come into force, as planned, on June 25, 2020.

Considering that transportation service providers have had almost one year to implement and come into compliance with the provisions of the ATPDR, which were published in July 2019, the CTA considers that an additional six months is enough time to ensure compliance with provisions that currently present a challenge given the sudden arrival of the COVID-19 pandemic.

Objective

The objective of the Order is to provide additional time for transportation service providers to come into compliance with certain requirements of the ATPDR in light of the severe financial and operational disruptions they have experienced as a result of the COVID-19 pandemic. By temporarily exempting the application of certain requirements, the Order will help ensure that transportation service providers will be able to meet their requirements and that accessible services will be delivered in a consistent and comprehensive manner as of January 1, 2021.

This Order supports the CTA’s strategic priorities, which emphasize the importance of a modern regulatory framework that reflects current and emerging needs. This Order is also in line with the Government’s current efforts to address the impacts and implications of the COVID-19 pandemic on industry and service providers.

Description

The Order exempts the application, until December 31, 2020, of provisions of the ATPDR, in respect of the facilities and means of transportation described below:

In sum, these provisions constitute only a handful of the total provisions in the ATPDR, which includes over 200 sections. They are principally linked to information technology (IT) or some other type of infrastructure development, or to the training of personnel. It should be noted that temporary relief from these specific, targeted ATPDR provisions does not exempt transportation service providers from other obligations in the ATPDR that will come into force on June 25, 2020, or from their existing obligations with respect to accessible transportation.

Regulatory development

Consultation

On March 31, 2020, the Accessibility Advisory Committee (AAC), which is comprised of representatives from the community of persons with disabilities, transportation service providers and other interested parties, was informed that the CTA had received a number of questions from stakeholders about the impact of the pandemic on the ATPDR’s coming-into-force date. The CTA made it clear that it had no intention of delaying the coming-into-force date of the entire ATPDR given that accessible transportation is a fundamental human right and that the provisions of the ATPDR were built upon long-standing codes of practice or existing regulations.

The CTA also indicated that, while a blanket exemption to the requirements of the ATPDR would not be contemplated, requests for temporary exemptions from specific provisions would be reasonable, provided that stakeholders could substantiate why exemptions are needed (i.e. why they will not be in a position to meet ATPDR requirements on June 25, 2020). The CTA further offered the opportunity for any AAC member, including the disability community, to provide input.

While the CTA did not receive any response from disability community members on the AAC, this stakeholder group has previously noted in consultations their general support for the ATPDR. It is therefore assumed that these stakeholders would have concerns with lengthy or sweeping exemptions to the requirements of the ATPDR. In this context, the CTA insisted that transportation service providers’ requests for exemptions be substantiated. Furthermore, only a short exemption period (six months) is being provided.

The CTA also communicated with various transportation service providers (members of AAC, as well as other stakeholders that provided input in consultations on the ATPDR in previous years) on March 27, 2020, March 31, 2020, and April 2, 2020. Transportation service providers were offered an opportunity to provide input and to submit detailed requests, including substantiated rationales, for specific exemptions. The deadline for submissions was April 9, 2020.

These temporary targeted exemptions were not pre-published in the Canada Gazette, Part I, in order to ensure that the exemptions will be in effect upon the coming into force of many provisions of the ATPDR on June 25, 2020. The need for these exemptions has resulted from the sudden and severe financial and operational impacts that the COVID-19 pandemic has had on transportation service providers in 2020.

Modern treaty obligations and Indigenous engagement and consultation

Pursuant to the Cabinet Directive on the Federal Approach to Modern Treaty Implications, a pre-assessment of modern treaties was undertaken. The assessment did not identify any modern treaty implications or obligations. The exemptions are both temporary as well as minor in nature given that they are targeted, do not impose new restrictions, and do not impose regulatory burdens on Indigenous peoples.

Instrument choice

An order is necessary because of the limited timeframe between the sudden onset of the COVID-19 pandemic and the coming into force of the ATPDR on June 25, 2020. COVID-19 substantially impacted the ability of transportation service providers and facilities to comply with several of the provisions before they come into force on June 25, 2020. If the Order is not made, transportation service providers would be in violation of these provisions and, therefore, subject to enforcement. Given that the COVID-19 pandemic was unexpected, and given that transportation service providers had been working in good faith up to March 2020 to prepare for the coming into force in June, the Order is needed to ensure that these stakeholders are not unfairly penalized for non-compliance between June 25, 2020, and January 1, 2021, as they work to finalize systems, accommodations, and facilities in order to meet their obligations.

Regulatory analysis

Benefits and costs

Overview

A comprehensive cost-benefit analysis was prepared for the ATPDR and published in the Canada Gazette, Part II, on July 10, 2019. The analysis estimated that the ATPDR would result in a cost to transportation service providers and the CTA of $46.16 million, and present value benefits to Canadian passengers of $574.73 million for a net present benefit of $528.57 million over a 10-year period following the coming into force of the Regulations. On an annualized basis, the costs to transportation service providers will be $7.03 million.

The purpose of the current analysis is to consider the impacts on stakeholders of delaying the application of targeted provisions within the ATPDR.

In the baseline scenario, the provisions described in the description section would come into force on June 25, 2020. Under the regulatory scenario for this cost-benefit analysis (CBA), these provisions are exempted from application until December 31, 2020.

Scope

The following table shows how many carriers and terminals are impacted by the respective exemptions:

Table 1: Number of carriers and terminals impacted by the respective exemptions

Stakeholder

Number impacted
(projected, based on the most recent available data)

Air terminals

42

Air carriers

12

Marine carriers

7

Bus carriers

2

The number for air carriers separates out subsidiaries of large air carriers. If only counting parent companies, it would be five impacted carriers.

Analysis

Stakeholders identified in the table above (with the exception of a few air carriers) are expected to be similarly impacted by the temporary exemptions of the targeted provisions. As a result, they will be discussed at the same time, and identified as “industry stakeholders” for the remainder of the analysis. The air carriers that will be impacted differently are discussed separately.

Industry stakeholders

There will be no incremental cost to industry stakeholders from the temporary exemption of the above-noted provisions. The costs to comply with these provisions would be incurred in both the baseline and regulatory scenario, only at a later time in the regulatory scenario. Industry will still be required to make the necessary investments in order to comply with these provisions once the Order expires on December 31, 2020.

Industry stakeholders would experience a small financial benefit from the delayed payments for the above-mentioned investments. The time value of money principle states that individuals or companies would prefer to make payments later due to the fact there is a time preference for current consumption over future consumption. To calculate the amount of the benefit, the cost of complying with the exempted provisions would be discounted six months (the length of the temporary targeted exemptions) using the standard discount rate of 7% prescribed in the Cost-Benefit Analysis Policy. This benefit is estimated to be approximately $300,000 present value (in 2012 dollars) across all industry stakeholders, or roughly an average of $4,400 per stakeholder over the 10-year period. The semi-annualized average cost savings (coinciding with the six-month delay) is approximately $21,357.

More significantly, industry stakeholders experience the benefit of financial relief during the COVID-19 pandemic, which has been especially hard on the transportation industry. In light of this pandemic, IT development initiatives present challenges in the short term for a financially compromised industry.

Exempting the targeted provisions identified will both allow transportation service providers to focus efforts on addressing the economic impacts of the COVID-19 pandemic, as well as adjusting their ATPDR implementation plans to ensure that they are compliant once this Order expires on December 31, 2020.

Air carriers

The threshold for an air carrier to fall under the scope of the ATPDR is that they carried 1 million plus passengers in each of the previous two years. Under the baseline scenario, where these provisions would come into force on June 25, 2020, an air carrier would have to comply if they carried at least 1 million passengers in 2018 and 2019. As per the table above, 12 carriers meet this threshold.

In the regulatory scenario where these targeted provisions would apply as of January 1, 2021, an air carrier would have to comply if they carried at least 1 million passengers in 2019 and 2020. CTA staff’s assessment, based on an assumption of aircraft load factors, is that some carriers may fall below the threshold in 2020 as a result of COVID-19, and thus would not be subject to the ATPDR in January 2021. Under the baseline scenario, these carriers would be subject to the ATPDR, and would be required to make the investments required to fulfill these targeted provisions prior to June 25, 2020. By dropping below the threshold in 2020, they may delay these investments at least two years.

In other words, these carriers would have to reach two consecutive years of one million plus passengers to come back into the scope of the ATPDR. In effect, the six-month exemption period for the targeted provisions could potentially result in a two-year deferral of the necessary investments to meet the targeted provisions.

Carriers such as those that were already on the borderline of being scoped into the application of the ATPDR in the first place would typically lack the financial capacity of carriers carrying larger volumes of passengers. As a result, they are likely to be more significantly impacted by the COVID-19 pandemic. Having extra time to comply with these specific provisions would have the favourable financial implications described above and would serve to assist these relatively smaller carriers in their economic recovery.

Persons with disabilities

Persons with disabilities will be negatively impacted as a result of not having access to the services required under the provisions that will be exempted for a six-month period.

In the CBA prepared for the ATPDR, it was estimated that roughly 11% or 10 551 271 passengers in 2020 on all modes of transportation are passengers with disabilities that would benefit from the Regulations. The anticipated benefits included reduced anxiety, reduced stigma harm, greater independence and time savings for all travellers.

Due to the COVID-19 pandemic, the total number of persons, including persons with disabilities, expected to travel has declined and is likely to remain lower than expected throughout 2020. Thus, the number of passengers with disabilities expected to be affected by the exemptions will be significantly lower than 10 551 271 given the short exemption period and the drastic reduction in travel that is likely to continue for the exemption period. It is expected that fewer than 2.5 million passengers with disabilities will be affected.

Similar to the benefit experienced by industry stakeholders related to the time value of money, persons with disabilities would experience the opposite effect. They would forgo the benefits that, under regular circumstances, they would have had for six months. This loss of benefits is difficult to estimate as explained below.

According to the International Air Transport Association (IATA), the year over year (YoY) change in international bookings to and from Canada represents a percentage decrease of between 90% and 111% between June and December 2020. Bookings for domestic travel experienced a similar YoY change over the same time period. footnote 1 Given the drastically reduced demand for transportation services that is expected to persist for the foreseeable future, it would not be accurate to discount the entire benefit. That benefit was based on pre-pandemic demand levels for transportation services. COVID-19 has drastically modified the pre-pandemic baseline: lower demand levels that lead to a lower number of persons with disabilities taking advantage of the services provided by the provisions under the ATPDR, including the targeted provisions.

In addition, the benefits of the ATPDR for persons with disabilities were calculated on the basis of the provisions in the ATPDR on a whole (not by provision), and, as a result, estimating the cost to persons with disabilities from the six-month exemption to the application of the targeted provisions would be inaccurate. That said, given the significant reduction in demand described above, and the short delay period, it would be fair to assume that the impact and cost of the delayed benefits to be small.

Given the financial relief the transportation industry will experience at a time of significant instability due to COVID-19, and the expected relatively small impact expected on persons with disabilities from these temporary targeted exemptions, it is estimated that the proposed exemptions of the provisions will result in an overall benefit to society.

Small business lens

The small business lens applies as there are impacts on small businesses associated with the proposal. The proposed regulatory exemptions impose no costs on small businesses. Benefits to small businesses such as savings from the administrative and compliance burdens would help them to alleviate the financial and operational burdens due to COVID-19.

In determining the size of each business, establishments were classified as small businesses based on the definition of small business found under the Policy on Limiting Regulatory Burden on Business, that is any business, including its affiliates, that has fewer than 100 employees or less than $5 million in annual gross revenue. Other establishments that do not fall under the above category were considered medium/large businesses. Two groups of small businesses who would be impacted by the proposed exemptions have been identified. They are airport operators and ferry service providers. In total, 11 small businesses are estimated to benefit from this proposal.

The recommended option for the proposal is to apply the proposed temporary 6-month exemptions to 11 small businesses. In light of the time constraint of this proposal, other alternatives such as the timelines required to provide this extension are such that additional flexibilities have not been considered. As a result, the estimated annualized increase in total industry savings (compliance and administrative) would be $7,458 (in 2012 dollars) for all affected small businesses, and the average savings per small business would be $678 (in 2012 dollars). The estimated present value of total industry savings over the 10-year period would be valued at $300,000 (in 2012 dollars). footnote 2

Table 2: Small business impact

Business impact

Small business lens summary

Number of small businesses impacted

11

Number of years

10

Base year for costing

2012
Table 3: Small business savings

Savings

Annualized

Total present value

Compliance savings

$3,167

$22,243

Administrative savings

$4,291

$30,138

Total savings

$7,458

$52,381

Saving per small business

$678

$4,762

One-for-one rule

The one-for-one rule applies since there is an incremental decrease in administrative burden on business, and the proposal is considered burden “out” under the rule.

The administrative burden involves activities related to retention of medical records, and maintaining the accessibility training programs descriptions available for inspection to the CTA. In the case of the retention of medical records, it is assumed that each carrier would implement their modification to their IT system. Administrative costs related to this modification include 320 hours for IT specialists at $32.46/h (in 2012 dollars) to create the function, and 160 hours for business consultants to manage the implementation at $37.61/h (in 2012 dollars). The cost of maintaining a training program on file is assumed to require 160 hours of business consultant’s time at $37.61/h (in 2012 dollars). It should be noted that this cost is specific to maintaining a description of a training program on file, and does not include the cost of creating or implementing the program.

The original estimated administrative burden for the Regulations were $56,398. The extension of the coming into force of the requirements will reduce these costs to $52,107 for a net reduction of $4,291 (in constant 2012 dollars and base year of 2012), resulting in an annualized average administrative saving per business of approximately $68 (in constant 2012 dollars and base year of 2012).

The administrative savings pertaining to record-keeping and documenting training activities will potentially benefit a total of 63 businesses (all sizes, federally registered).

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus (GBA+)

Demographics

In Canada, 22% of the population over the age of 15 have at least one disability. The percentage is higher (38%) among individuals over the age of 65. The proportion of Canadian men (20%) and women (24%) who have at least one disability is roughly equal. Persons with more severe disabilities (aged 25 to 64 years) were more likely to be living in poverty (28%) than those with milder disabilities (14%) or without disabilities (10%). footnote 3 Data regarding the proportion of the disabled population that travels using the federal network is not available.

Impacts

These temporary exemptions are anticipated to have a minor negative impact on persons with disabilities who travel using the federal transportation network. While most provisions of the ATPDR will still come into force as scheduled on June 25, 2020, persons with disabilities will have to wait until the exemptions expire before benefiting from the full effect of all of the provisions of the ATPDR.

Nevertheless, it is estimated that the actual negative impact would be minimal since the likelihood of Canadians (including the disability community) travelling will be low amid the pandemic. As noted in the cost-benefit analysis to this proposal, fewer people are expected to travel between June and December 2020 due to health and safety concerns.

Furthermore, based on consultations, due to COVID-19, the industry has communicated that it would be extremely difficult to be in compliance with the specific provisions in question by June 25, 2020. As it is unlikely that the industry would be in a position to comply with the noted requirements of the ATPDR between June and December, the impacts on persons with disabilities would be largely the same even if the requirements were not exempted during this period.

Rationale

The ATPDR are based on human rights principles whereby transportation service providers must accommodate persons with disabilities up to the point of undue hardship. Given the COVID-19 pandemic and the impact on operations, the CTA must assess whether complying with certain ATPDR provisions will result in a transportation service provider experiencing undue hardship.

The key considerations for each of the exemptions identified above comprise either severe operational impacts and/or financial impacts as a result of the COVID-19 pandemic.

Operational impacts are the result of COVID-19 social distancing requirements that substantially impede the abilities of transportation service providers to conduct normal business operations and maintain effective contact with stakeholders and business partners. Likewise, contractors have been unable to complete required tasks in order for transportation service providers to meet their obligations under the ATPDR. For example, airports have identified severe constraints that impede them from the installation of service dog relief or infrastructure associated with curbside assistance areas.

Financial impacts are a result of the significant financial losses being incurred by transportation service providers due to drastic reductions in both domestic and international travel, necessitating that consideration be given to mitigating immediate costs, for example related to required IT or capital expenditures to comply with certain provisions.

The rationale for most of the exemptions identified above include both operational and financial considerations. For example, subsections 4(1), 4(2), and 10(2) require transportation service providers to provide information in alternative formats. Section 9 would require them to make websites accessible. Section 58 would require automated systems to provide written confirmation of requested services to passengers, and section 59 would require secure systems to retain passengers’ confidential health information. Fulfilling the obligations of these provisions would require substantial IT development on the part of transportation service providers. In light of the COVID-19 pandemic, such IT development initiatives would be challenging for a financially compromised industry. Indeed, a lot of the attention recently has been turned to downsizing and reducing operational costs in order to keep their businesses open.

Similarly, sections 15 to 23 require transportation service providers to develop new training programs in consultation with the community of persons with disabilities. The COVID-19 social distancing requirements have created operational challenges not only with respect to effectively training staff, but also with respect to conducting effective consultations.

Sections 39, 81, 164 and 205 require that air, bus and marine carriers make available personal electronic devices with accessible content if they have onboard entertainment systems that are not accessible. This would entail both financial expenditures as well as operational challenges associated with training staff on how to assist persons with disabilities with these devices as well as ensuring that the devices would not contribute to the spread of COVID-19.

Complying with section 216, which requires terminal operators to operationalize how to assist persons with disabilities between the curb and the check-in for arriving passengers, and between the general public area and curb for departing passengers, and subsections 227(1), (2) and (3), which require terminal operators to create relief areas for service dogs, would also require financial expenditure as well as operational problems with training staff and coordinating with and providing contractors access to facilities in light of social distancing requirements.

Some requests for temporary exemptions have not been granted because they reflect long-standing obligations on the part of transportation service providers through existing regulations or codes of practice. In addition, some of the provisions identified did not require capital expenditures on the part of transportation service providers. For example, a terminal operator requested an exemption from section 215 of the ATPDR; this provision requires certain information to be published on a website, including information about the terminal operator’s accessibility services and facilities. Section 215 is based on a long-standing provision of the Passenger Terminal Accessibility: Code of Practice and should be no more onerous than providing updated information on a website. Another example is that some air carriers requested an exemption from section 40 of the ATPDR. Section 40 requires carriers to accept a mobility aid for transport as priority baggage. This requirement reflects a long-standing requirement found in the Air Transportation Regulations and, as such, should not require an exemption.

Some carriers also requested an exemption from a perceived requirement to process payment by email. However, there is no intent in sections 7 or 8 to require that carriers implement new technology as a way to meet passengers’ needs. Therefore, no exemption is necessary. The intent of sections 7 and 8 is simply to signal that the carrier should provide a menu of alternate means of communication or connection with passengers to meet their needs. Carriers are encouraged to find ways of communicating and connecting with passengers in a manner that meets the spirit of the regulation and are required to provide at least one alternative. For example, when the first contact with a passenger is by email and a payment needs to be processed, carriers can implement this in an appropriate and secure manner, for example, by web processing, by phone, or through a third-party travel arm. While carriers noted they would like to implement an automated system to minimize errors, they should be able to continue with the system currently in place.

The community of persons with disabilities has expressed in the past that many of the requirements in question, such as accessible websites, are long overdue. Transportation service providers should also be aware that, notwithstanding exemptions to coming into force of the targeted provisions, they still remain required, under Part V of the Act, to accommodate persons with disabilities up to the point of undue hardship. For example, while airports will now have until December 31, 2020, to make the necessary infrastructure and operational adjustments to comply with the requirements for terminals to assist persons with disabilities from their arrival or departure at the curbside of a terminal (section 216), they must still continue to provide the service of assisting passengers with disabilities in navigating between the curbside and check-in during this period up to the point of undue hardship, taking into consideration the impacts of COVID-19.

The CTA recognizes that an accessible transportation system is a human right, and that these exemptions will mean a delay for certain accessible service provisions. The CTA is aware of these legitimate concerns and has made every effort to mitigate the impact. The exemptions are being granted for specific provisions that are impacted by major disruptions to the transportation service providers due to the COVID-19 crisis. They have only been granted for a limited six-month time period. They have been reviewed individually to ensure that each targeted exemption has a legitimate rationale. And the exemptions have been targeted to include only specific types rather than all transportation service providers.

Implementation, compliance and enforcement, and service standards

Implementation

The Order comes into force on June 25, 2020. It will temporarily exempt the application of the identified provisions of the ATPDR when they come into force.

The majority of the provisions set out in the ATPDR – including the provisions identified above for exemptions — will come into effect on June 25, 2020. The exemptions are targeted to specific provisions as well as types of transportation service providers, so many of the provisions identified above for exemptions will still apply to other types of transportation service providers. Due to the exemptions, however, the exempted provisions will not apply to the targeted transportation service providers until December 31, 2020.

Compliance

The CTA is undertaking a number of activities in order to promote compliance with the ATPDR, including

Unless specifically exempted under the Order, the provisions of the ATPDR apply once they are in force. Non-compliance with requirements of the ATPDR could result in the issuance of AMPs.

Once the Order expires, transportation service providers must be in compliance with the exempted requirements. Starting January 1, 2021, the CTA may apply its enforcement policy for non-compliance with the provisions of the ATPDR.

Contact

Sonia Gangopadhyay
Director
Centre for Expertise in Accessible Transportation
Analysis and Outreach Branch
Canadian Transportation Agency
15 Eddy Street
Gatineau, Quebec
K1A 0N9
Telephone: 873‑353‑4498
Email: Sonia.Gangopadhyay@otc.cta.gc.ca