Regulations Amending the Accessible Transportation for Persons with Disabilities Regulations and the Canadian Transportation Agency Designated Provisions Regulations: SOR/2021-9

Canada Gazette, Part II, Volume 155, Number 4

Registration
SOR/2021-9 February 8, 2021

CANADA TRANSPORTATION ACT

P.C. 2021-32 February 5, 2021

Whereas, pursuant to subsection 36(2) of the Canada Transportation Act footnote a, the Canadian Transportation Agency has given the Minister of Transport notice of the annexed Regulations Amending the Accessible Transportation for Persons with Disabilities Regulations and the Canadian Transportation Agency Designated Provisions Regulations;

Therefore, the Canadian Transportation Agency, pursuant to subsections 36(1), 170(1) footnote b and (2) and 177(1) footnote c of the Canada Transportation Act, makes the annexed Regulations Amending the Accessible Transportation for Persons with Disabilities Regulations and the Canadian Transportation Agency Designated Provisions Regulations.

Gatineau, December 15, 2020

Scott Streiner
Chairperson and Chief Executive Officer
Canadian Transportation Agency

Elizabeth C. Barker
Vice-Chairperson
Canadian Transportation Agency

His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Transport, pursuant to subsection 36(1) of the Canada Transportation Act footnote a, approves the annexed Regulations Amending the Accessible Transportation for Persons with Disabilities Regulations and the Canadian Transportation Agency Designated Provisions Regulations, made by the Canadian Transportation Agency.

Regulations Amending the Accessible Transportation for Persons with Disabilities Regulations and the Canadian Transportation Agency Designated Provisions Regulations

Accessible Transportation for Persons with Disabilities Regulations

1 The Accessible Transportation for Persons with Disabilities Regulations footnote 1 are amended by adding the following after section 2:

Interpretation — treatment with dignity

2.1 These Regulations are to be interpreted as requiring that persons with disabilities be treated with dignity.

2 Subsection 4(2) of the Regulations is replaced by the following:

Timing

(2) If a person with a disability makes a request referred to in any of paragraphs (1)(b) to (d), the transportation service provider must provide the information in the requested format without delay.

3 (1) The portion of section 5 of the Regulations before paragraph (a) is replaced by the following:

Information to be published

5 (1) A transportation service provider must publish the following information in electronic format on its website, or in another format if it does not have a website:

(2) Section 5 of the Regulations is amended by adding the following after subsection (1):

Clarification

(2) For greater certainty, the requirements of section 4 apply to a notice referred to in paragraph (1)(a) and complaint resolution services referred to in paragraph (1)(c).

4 Section 9 of the Regulations is replaced by the following:

Website — requirements

9 A transportation service provider must ensure that every website, mobile website and application that it owns, operates or controls and that is made available to the public meets the requirements for a Level AA conformance that are set out in the Web Content Accessibility Guidelines.

5 Section 29 of the Regulations is replaced by the following:

Non-application — certain buses

29 This Part does not apply to a bus carrier in respect of any of the following transportation services:

6 (1) Subparagraph 32(3)(c)(ii) of the English version of the Regulations is replaced by the following:

(2) Subsection 32(4) of the Regulations is replaced by the following:

No advance notice

(4) Despite subsections (1) and (3), the carrier must make every reasonable effort to provide a service requested by a person with a disability even if the person does not comply with a requirement set out in those subsections.

7 Subsection 33(2) of the Regulations is replaced by the following:

Reasonable effort

(2) A carrier must make every reasonable effort to provide a service requested by a person with a disability even if the person does not provide any information or documents that are requested by the carrier, including any information or documents that are referred to in subsection (1) or paragraph 41(2)(a) or 51(2)(a) or (b).

8 (1) The portion of section 35 of the Regulations before paragraph (a) is replaced by the following:

Services to be provided on request

35 A carrier must, on the request of a person with a disability, provide the following services to the person without delay:

(2) Paragraph 35(w) of the English version of the Regulations is replaced by the following:

9 Subsection 36(2) of the Regulations is replaced by the following:

Additional services

(2) A bus carrier must ensure that members of personnel on board the bus, on the request of a person with a disability, without delay, assist the person with their baggage and provide the following services:

10 Paragraph 41(1)(c) of the Regulations is replaced by the following:

11 Section 43 of the Regulations is replaced by the following:

On-board storage — aircraft or buses

43 An air or bus carrier must make every reasonable effort to permit a person with a disability who uses a walker or manual folding wheelchair to store it on board the aircraft or bus.

12 Section 56 of the Regulations is replaced by the following:

Mobility aids — maximum weight and dimensions

56 A carrier must publish in electronic format on its website, or in another format if it does not have a website, information about the maximum weight and dimensions of mobility aids that each make and model of its aircraft, trains, ferries or buses, as the case may be, is capable of transporting.

13 The portion of paragraph 61(c) of the Regulations before subparagraph (i) is replaced by the following:

14 Subsection 62(3) of the Regulations is replaced by the following:

Notice on website

(3) An air carrier that operates an international service must publish in electronic format on its website, or in another format if it does not have a website, a notice for persons with disabilities who use mobility aids that informs them of the option to make a special declaration of interest under Article 22(2) of the Montreal Convention or under Article 22(2) of the Warsaw Convention.

15 Section 65 of the Regulations is replaced by the following:

Non-application of sections 77 to 79 — certain aircraft

65 Sections 77 to 79 do not apply to an air carrier in respect of any aircraft that has only one aisle.

16 Subsection 66(3) of the Regulations is amended by deleting "or" at the end of paragraph (b), by adding " or" at the end of paragraph (c) and by adding the following after paragraph (c):

17 Subsection 87(2) of the Regulations is replaced by the following:

Clarification — portable equipment

(2) Sections 90 to 93 apply to a pre-existing train with respect to any step box, lift or ramp that is portable and not integrated with the pre-existing train.

18 Section 184 of the Regulations is replaced by the following:

Non-application — certain buses

184 This Division does not apply to a bus carrier in respect of any of the following buses:

19 (1) Paragraphs 212(a) and (b) of the French version of the Regulations are replaced by the following:

(2) Paragraph 212(d) of the Regulations is replaced by the following:

20 (1) The portion of section 215 of the Regulations before paragraph (a) is replaced by the following:

Communication of information

215 A terminal operator must publish in electronic format on its website, or in another format if it does not have a website, information about the services or facilities available at the terminal for persons with disabilities, including information about

(2) Paragraph 215(d) of the English version of the Regulations is replaced by the following:

21 Subsection 216(1) of the Regulations is replaced by the following:

Assistance for persons with disabilities

216 (1) A terminal operator must, on the request of a person with a disability, without delay, assist the person with their baggage and with a wheelchair, and provide the following services to the person:

22 Subsections 233(1) and (2) of the Regulations are replaced by the following:

Assistive device, support person or service dog

233 (1) CATSA must, when screening a person with a disability who uses an assistive device or who is travelling with a support person or a service dog, make every reasonable effort to carry out the screening simultaneously with the screening of the person's assistive device, support person or service dog, as the case may be.

Separate screening of assistive device

(2) If CATSA removes an assistive device from a person with a disability for a separate screening, CATSA must return the assistive device to the person without delay after it has been screened.

Canadian Transportation Agency Designated Provisions Regulations

23 The portion of item 13.1 of the schedule to the Canadian Transportation Agency Designated Provisions Regulations footnote 2 in column 1 is replaced by the following:

Item

Column 1

Provision, Requirement or Condition
13.1 Subsection 172(2)
24 The schedule to the Regulations is amended by adding the following after item 13.1:
Item

Column 1

Provision, Requirement or Condition

Column 2

Maximum Amount Payable —
Corporation ($)

Column 3

Maximum Amount Payable —
Individual ($)
13.11 Subsection 172.1(2) 25,000 5,000

Coming into Force

25 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Following the publication of the Accessible Transportation for Persons with Disabilities Regulations (ATPDR) in the Canada Gazette, Part II, the Canadian Transportation Agency (CTA) has identified the need for several minor amendments to correct errors, omissions and inconsistencies.

Background

On July 10, 2019, the ATPDR were finalized and published in the Canada Gazette, Part II. In line with Phase 1 of the CTA's Regulatory Modernization Initiative concerning accessible transportation, the ATPDR established legally binding requirements for services, technical standards for equipment, communications, training, and security and border screening. Most provisions of the ATPDR came into force on June 25, 2020.

The ATPDR built on two regulations (the Personnel Training for the Assistance of Persons with Disabilities Regulations and Part VII of the Air Transportation Regulations) that had not been updated since the 1990s, and codified relevant provisions of the CTA's six voluntary codes of practice. The ATPDR represented an important step forward in accessible transportation and they are enforceable through administrative monetary penalties (AMPs) of up to $250,000 per violation.

With some exceptions, the ATPDR cover large airlines, passenger railway companies, ferries, and bus operators in the federal transportation network, as well as the terminals in Canada that serve them. Together, these are referred to as large transportation service providers (TSPs). Some provisions of the ATPDR — such as those on security, border screening, communications, training, and signage — also apply to the Canada Border Services Agency (CBSA) and the Canadian Air Transport Security Authority (CATSA).

Following the final publication of the ATPDR in the Canada Gazette, Part II, minor errors, omissions and inconsistencies were identified by the CTA and raised by TSPs. Paragraph 212(a) is an example of inconsistencies between the French and English versions, where we propose, first, an amendment to insert a missing French preposition "d'" before "au moins" (so that the French wording corresponds to "of at least" in English). Second, we propose to correct an improper translation of text that does not capture the intended meaning of the scope of application of the paragraph (i.e. replacing "où là où" with "ou là où" in the French version so that the wording corresponds to "or where" in English).

An example of an amendment that would correct an error is to change the term "curbside zone" to "stop" where appropriate.

As another example, sections 36 and 216 will be amended to clarify the policy intent that providing assistance includes guiding the person, assisting with the person's wheelchair, and assisting with their baggage without delay. Assistance would apply in relation to any stop (for a bus, a bus stop or a rest stop) or curbside zone.

In addition, this proposal contains a minor amendment which needs to be made following the coming into force of the Accessible Canada Act (ACA) on July 11, 2019. The ACA introduced amendments to the Canada Transportation Act (the Act), which resulted in changes to the structure and numbering of several existing provisions. In light of the renumbering, a provision of the Act that was previously designated as enforceable through AMPs under the Canadian Transportation Agency Designated Provisions Regulations (DPR) is no longer designated. Subsection 172(3), which was designated in the previous version of the Act, enabled the CTA to require corrective measures or compensation to be paid for expenses carried by a person with a disability arising as a result of an undue obstacle. This authority is now found in subsections 172(2) and 172.1(2) of the Act, which are not currently designated provisions. Consequential amendments are therefore needed to ensure that the DPR are consistent with the renumbered provisions in the Act.

Objective

This proposal aims to address minor errors, omissions and inconsistencies in order to ensure clarity and certainty in both the interpretation and the application of the ATPDR. The proposed amendments will also ensure that CTA orders related to accessibility continue to be enforceable through AMPs.

Description

With regard to the ATPDR, the amendments will allow the following actions to be carried out.

  1. Add section 2.1, which clarifies that the regulations shall be interpreted as requiring that persons with disabilities be treated with dignity. This will eliminate the need to repeat this assertion in many individual sections. It was the policy intent that treating persons with disabilities with dignity should apply to those sections, and this correction incorporates this requirement into how these sections must be interpreted.
  2. Amend subsection 4(2) and paragraphs 41(1)(c) and 61(c) to ensure consistency regarding the obligation to provide services "without delay." The terminology was inconsistent within the regulations and stakeholders questioned the difference between the various terms. The language "as soon as feasible" was not sufficiently precise. This change clarifies the need to do it without delay, and supports the policy intent of qualifying timeliness, found throughout the ATPDR.

    Similarly, these amendments will also amend section 35 to provide that a carrier must, upon request of a person with a disability, provide the specified services to the person "without delay," and amend subsection 233(2) to specify that CATSA must "without delay" return the assistance device to the person after it has been screened. These clarifications reflect the policy intent for these actions to be carried out in a timely manner.

  3. Modify sections 5 and 56, subsection 62(3), and section 215 to clarify that TSPs without a website must publish the specified information in another way that is available to travellers, such as in a travel brochure. While many large TSPs have a website, others, such as terminals, do not. There was never an intention, in the development of the ATPDR or in the cost-benefit analysis, to require TSPs to establish a new website in order to publish information. The amendments preserve the obligation for large TSPs that do have a website to publish the specified information on it. The amendments also still preserve the general obligation under section 4 for TSPs to provide information in an accessible manner upon request. For example, if information is made available in a paper format, it must be provided, on request, in large print, in Braille or in an electronic format. The amendments are necessary to ensure clarity in how the information should be published for the benefit of persons with disabilities.
  4. Modify section 9 to clarify that the requirement relates to the accessibility of the website, mobile website, and application that are owned, operated or controlled by the TSP. The term "platform" in the sentence "including any mobile site that contains other platforms" is very broad and goes above and beyond what is owned, operated and controlled by a TSP. A "platform" could be understood to mean a third-party database not seen by customers. Requiring TSPs to make such platforms accessible was not the intention of the requirement. An amendment is necessary to ensure that the provision is not misinterpreted by stakeholders, and to reflect the policy intent, which was to include only the electronic means actively used by TSPs to provide information to the public.
  5. Amend sections 29, 184 and 212 to ensure that charter bus services are excluded from the ATPDR's scope — in line with charter service exclusions for air carriers and ferries, and buses with seating capacity of 39 and less, as stated in Part III and consistent with Part II. These amendments correct an oversight and reinforce the original policy intention, which was communicated during consultations on the development of the ATPDR. Furthermore, these changes are consistent with the cost-benefit analysis performed for the ATPDR, which never considered charter operations or smaller vehicles to be covered.
  6. Modify subparagraph 32(3)(c)(ii) by changing "the period of 48 hours" to "a period of 48 hours" to reflect the French version, which indicates "un délai de quarante-huit heures" to reflect the correct intention.
  7. Amend subsections 32(4) and 33(2) and section 43 to clarify the obligation of carriers to make "every reasonable effort" instead of "a reasonable effort" and modify the French version accordingly. Further, amend subsection 233(1) to specify that CATSA must make "every reasonable effort" to carry out the screening simultaneously with the screening of the person's assistive device, support person or service dog. This clarification better reflects the policy intent, which is for accommodations to be appropriately considered.
  8. Amend paragraphs 35(w) and 215(d) to reflect proper use of "in" and "at" with respect to terminal accessibility and clarify that the amenities and facilities located outside a terminal are captured by the requirements.
  9. Modify paragraph 36(2)(b) to refer to bus "stop" instead of the erroneous reference to "curbside zone." Additionally, clarify that assistance in paragraphs 36(2)(a) and (b) means to assist a person in proceeding to a stop, including by guiding the person, assisting with the person's wheelchair, and assisting with their baggage without delay. Also amend subsection 216(1), to clarify that assistance means guiding the person, assisting with the person's wheelchair, and assisting with their baggage, including when a terminal operator is assisting a person in proceeding in the areas described by paragraphs (b) and (c). These amendments will prevent misinterpretations, such as assuming that a person with a disability must be in a wheelchair to receive assistance. This was never the intention of the provisions. For language equivalency, the French version is amended to mirror the English version changes.
  10. Amend section 65 to clarify that section 79 (wheelchair-accessible washroom) does not apply to any aircraft that has only one aisle to reflect the intent of this provision. Section 65 already excludes provisions by referring to those sections as excluded, but a reference to section 79 was omitted in error from the list of exclusions. It was never intended that single-aisle aircraft would be expected to have a wheelchair accessible washroom.
  11. Amend subsection 66(3) to include the same exception as in paragraph 67(a) to cover the unavailability of a compliant amenity or equipment in relation to modifications to pre-existing equipment. This is necessary to reflect the policy intent and ensure consistency within the regulations.
  12. Amend subsection 87(2), which applies only to pre-existing trains, by removing the reference to section 96 (stairs to board or disembark on a train), which does not apply to a pre-existing train. Given that section 96 relates to integrated stairs, it was a mistake to include it in subsection 87(2), as it contradicted the provision and lead to misinterpretation.
  13. Amend paragraph 212(a) of the French version of the regulations by correcting an omission of the back to back use of "ou là où" (meaning "or where") instead of "où" (meaning simply "where") to be consistent with the English version's application to either a situation of an airport in a capital or where at least 200 000 passengers emplaned and deplaned in the last two years, instead of only in a capital where at least 200 000 passengers did so. A typographical omission of the preposition "d'" in "d'au moins" ("of at least") and a stylistic/formatting omission to add a closing parenthesis to the paragraph reference within paragraph 212(b) will also be corrected.

With regard to the DPR, the amendments will allow the following action to be carried out.

  1. Amend the schedule of the DPR to replace section 13.1 with the designated provision of subsection 172(2), and add section 13.11 to include the designated provision of subsection 172.1(2).

Regulatory development

Consultation

The consultative process for the ATPDR took place in three phases between 2016 and 2019.

The CTA considered all feedback from the public and stakeholders in the development of the ATPDR. The process included inviting and publishing feedback on a discussion paper focused on key issues related to accessible transportation in the national transportation system; three rounds of in-person consultations with the CTA's Accessibility Advisory Committee, which comprises representatives from the community of persons with disabilities, the transportation industry (representing all modes — air, rail, ferry and bus) and other interested parties; and approximately 55 face-to-face consultation sessions, including multiple meetings with disability associations and meetings with the CATSA, the CBSA, the Canadian Airports Council, the Association of Canadian Port Authorities, and carriers from the air, marine, rail and bus modes.

In addition to the extensive feedback obtained through the in-person events, the CTA received over 235 written submissions from stakeholders and private citizens.

The current changes are all minor and technical in nature. The change with the largest technical impact is to correctly specify the legal authority for the AMPs issued regarding the CTA orders related to accessibility. The policy intent was to ensure that the CTA could issue AMPs in respect of the CTA orders. This is crucial to the integrity of the regulatory regime.

The remaining technical amendments are to provide clarity and consistency in the interpretation of the ATPDR provisions, by correcting mistakes and omissions in the regulatory text. None of these changes impact the policy intent, which was subject to extensive consultations. In addition, none of the proposed amendments will have a negative impact on persons with disabilities or create additional administrative burdens on the TSPs.

The ATPDR's scope of application to accessible transportation in the bus sector was understood throughout the consultation process and the cost-benefit analysis to cover nationally available public transportation across multiple provinces and international borders. Charter operations or vehicles were never part of consultations nor considered within this scope of application of the ATPDR. Given the existing exclusions in the ATPDR, regarding charter operations in the air and ferry industry, the exclusion of bus charters is entirely consistent with the scope of application in other modes of transportation. Upon publication of the ATPDR, stakeholders raised questions about the application of the ATPDR to charter operations, which highlighted to the CTA the unintended omission in the regulations.

During the development of the ATPDR, the CTA also consulted on provisions that relate to the obligation of TSPs for websites, specifically when to provide alternative formats and to ensure that websites, mobile sites and applications under the control, owned or operated by the TSP, are accessible. During consultations, there was no intention for all platforms contained in mobile sites or applications to meet the Level AA in the Web Content Accessibility Guidelines, because this would include applications and other platforms from third parties that are not even seen by the public, or controlled, owned, or operated by the TSP. The amendments are consistent with the language used in the Regulatory Impact Analysis Statement (RIAS) that supported the prepublication in the Canada Gazette, Part I, and consultations for the draft regulation of the ATPDR, with the cost-benefit analysis included in that RIAS. After the publication in the Canada Gazette, Part II, TSPs asked for clarification on what the requirement means, and what was covered or not given the confusion caused by ambiguous wording. These amendments correct the scope to reflect the intent. The amendments relate only to clarifying what platforms are controlled by TSPs. They do not in any way affect TSPs' requirements to publish information on public-facing electronic platforms in an accessible format for the benefit of persons with disabilities.

With respect to specifying that assistance includes guiding the person upon request — for carriers and terminals to ensure persons with disabilities can reach a bus stop or be assisted from a curbside zone to a representative of a carrier —, it reflects the intent that if a person does not require a wheelchair for assistance but requires guiding, such as a person with a visual impairment, that this assistance needs to be provided. The amendments are consistent with the RIAS that supported the publication of the ATPDR in the Canada Gazette, with the related consultations, with the cost-benefit analysis included in the RIAS, and with existing guidance material from the CTA that benefitted from stakeholder consultations. All these documents referred to assistance with wheelchairs, guiding and baggage.

Considering that (i) extensive consultations were undertaken during the development of the ATPDR; (ii) the nature of the current amendments is technical and corrective; and (iii) no impacts beyond improved clarity and certainty for TSPs and persons with disabilities are anticipated, no other consultations were undertaken, and the amendments were not prepublished in the Canada Gazette, Part I.

Modern treaty obligations and Indigenous engagement and consultation

The amendments are technical and non-substantive in nature. They do not impose new restrictions or regulatory burdens, and are not expected to have different impacts on Indigenous peoples.

Instrument choice

Regulatory amendments are necessary because errors, omissions, and inconsistencies have been identified in the ATPDR and the DPR. These issues could result in confusion, misleading interpretations and/or erroneous applications of those regulations. No non-regulatory options were considered.

Regulatory analysis

Benefits and costs

The amendments are technical and non-substantive in nature. The proposed changes are to correct minor errors or omissions, and they are not expected to generate any costs.

The proposed amendment to enable the use of AMPs to enforce the CTA's accessibility-related orders is a technical correction needed to address an oversight that stems from the time the Accessible Canada Act came into force. As a technical correction, it will not have any costs.

Small business lens

Analysis under the small business lens concluded that the regulations will not impact Canadian small businesses.

One-for-one rule

The one-for-one rule does not apply, as there is no incremental change in administrative burden on business.

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

The gender-based analysis plus (GBA+) impacts reflect the importance of providing persons with disabilities with equitable accessibility to the Canadian transportation network so they can fully participate in the social and economic aspects of Canadian society. The original policy intent of the ATPDR was to promote and ensure accessibility for persons with disabilities in ways that can be carried out meaningfully through certain obligations specified in the regulations. For example, when a person is travelling with multiple carriers, they need to provide assistance until the point where the person is transferred to a representative of another carrier. The current changes are required to ensure the correct and consistent interpretation and application of the ATPDR in support of the original policy objectives.

Beyond ensuring the original policy intentions of the ATPDR, the amendments in this regulatory initiative are not expected to have disproportionate impacts on the basis of identity factors such as gender, race, sexuality, or other demographic indicator criteria.

Implementation, compliance and enforcement, and service standards

Implementation

The majority of the provisions set out in the ATPDR came into effect on June 25, 2020. The minor corrections to the ATPDR and the DPR in this regulatory amendment package come into force upon registration.

The CTA employs a number of different tools and activities across the compliance continuum to monitor and enforce compliance by TSPs, and to identify and address instances of non-compliance.

The CTA approach to compliance monitoring and enforcement is guided by its modern Compliance Monitoring and Enforcement Policy that was recently developed and published. This policy covers a spectrum of activities such as education and awareness, verifying compliance, and enforcement, which may include issuing notices of violation with AMPs of up to $250,000.

This regulatory amendment package will ensure the ongoing enforcement, as intended, of CTA orders relating to accessibility through notices of violation with AMPs.

The CTA is undertaking a number of activities in order to promote the awareness of these corrections to the requirements in the ATPDR, including outreach with persons with disabilities and large TSPs.

Contact

Sonia Gangopadhyay
Director
Centre of Expertise for 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