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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 aodafeedback@gmail.com 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 It emphasizes as a priority the pressing need for the Senate to remove a harmful and outdated provision that is perpetuated in Bill C-81, the proposed Accessible Canada Act.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: soci@sen.parl.gc.ca
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: aodafeedback@gmail.com 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.