Appeal Court rules no undue hardship proven by air carrier in accommodating power wheelchairs

The Federal Court of Appeal recently upheld the Canadian Transportation Agency’s Decision finding that various corrective measures, including the ad hoc substitution of aircraft to transport persons using power wheelchairs, do not constitute an undue hardship.

In Air Canada v. Rose, 2025 FCA 67, the Federal Court of Appeal upheld the Canadian Transportation Agency’s (the “CTA”) accessibility decision finding that Air Canada failed to demonstrate that it would incur undue hardship by implementing the CTA’s proposed corrective measures, including the substitution of aircraft to accommodate passengers using larger power wheelchairs. This decision comes notwithstanding the provisions of the Accessible Transportation for Persons with Disabilities Regulations (the “ATDPRs”) which allow air carriers to refuse to transport wheelchairs under certain circumstances.

CTA’s approach in adjudicating accessibility complaints

Pursuant to the ATDPRs, promulgated under the Accessible Canada Act, 2019[1], air transportation must be accessible and without barriers to persons with disabilities. The CTA, as a quasi-judicial tribunal which adjudicates accessibility complaints, first determines whether the person with a disability encountered a barrier to their mobility within the federal transportation network. If a barrier is found, the CTA then assesses whether it can be removed without causing undue hardship to the air carrier.

To justify the continued existence of a barrier, air carriers must demonstrate that:

1. the barrier is rationally connected to the provision of the transportation service;

2. the barrier was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; and,

3. the air carrier cannot remove the obstacle without incurring undue hardship.

If the air carrier is unable to provide sufficient evidence to meet the above test, and the ATDPRs have not been contravened, the CTA may require the air carrier to take corrective measures.

CTA’s decision

This matter stems from an accessibility complaint brought by Timothy Rose, who requires a power wheelchair to mobilize by virtue of his disability, following Air Canada’s refusal to transport his wheelchair as it was too large to fit through the cargo door of the aircraft.

In its decision, the CTA stated that “the point of undue hardship is reached when all reasonable alternatives to accommodation are exhausted and there remain only impossible, unreasonable or impractical options for accommodation.”

Ultimately, the CTA found that Air Canada failed to adduce sufficient evidence to show that it would incur undue hardship in implementing the proposed corrective measures. Such measures included the substitution of aircraft to accommodate passengers using larger power wheelchairs if those passengers could not be accommodated in another reasonable way.

In evaluating the financial evidence required to demonstrate undue hardship, the CTA followed the Supreme Court of Canada decision of Council of Canadians with Disabilities v. VIA Rail Canada Inc.[2], which confirmed that the size of the expenditure and the size of the enterprise are relevant. In short, a service provider refusing to spend a small portion of the total funds available to it to remedy a barrier to access will not be able to claim undue hardship.

In particular, the CTA noted that:

(…) in order to establish that the incremental financial cost to accommodate Mr. Rose would result in undue hardship, Air Canada must provide objective, real and quantifiable evidence that demonstrates that the new costs incurred by substituting an aircraft on an ad hoc basis would be so significant that the impact would create undue hardship. Air Canada has not provided this type of evidence.[3] (our emphasis)

In meeting its requirement to accommodate passengers with disabilities using power wheelchairs, the CTA provided that the air carrier retains some flexibility in how it meets this accommodation. For example, it can rebook the passenger on an alternate route or interline with another carrier. As a last resort, an air carrier may be required “to substitute an accessible aircraft on the chosen flight”[4] to carry the passenger​.

The CTA ordered the following corrective measures:

1. Where a passenger with a disability provides at least 21 days’ notice that they use a non-collapsible power wheelchair too large to fit in the cargo door of the scheduled aircraft, Air Canada must transport the passenger with their wheelchair either on the requested travel day (at a time comparable to their request) or, if same-day accommodation is not possible, on the day before or after.

2. In choosing which accommodation measures it takes, the measures should at a minimum include an attempt to find similar flight on a different but comparable route within its network on Air Canada or another carrier; or to substitute an accessible aircraft on the chosen flight where Air Canada cannot accommodate the passenger in any other reasonable way.

3. Every reasonable effort to accommodate disabled passengers using power wheelchairs who cannot provide advance notice must be made.

4. Air Canada must address how it factors persons who use power wheelchairs in its accessibility plan, under the Accessible Canada Act.
    

Federal Court of Appeal’s judgment

Air Canada appealed the CTA’s Decision and challenged the corrective measure of substituting an accessible aircraft on the chosen flight where Air Canada cannot accommodate the passenger in any other reasonable way, on the basis that the CTA had erred in law by applying the incorrect analysis for what constitutes undue hardship. 

In doing so, Air Canada argued that the CTA was required to balance the interests of persons with power wheelchairs and the interests of Air Canada on the Supreme Court of Canada decision of Council of Canadians with Disabilities v. VIA Rail Canada Inc.[5]

Ultimately, the Federal Court of Appeal upheld the CTA’s decision. No error in law had been identified and the CTA’s findings with respect to the undue hardship analysis were made on the basis that the ad hoc substitution of spare aircraft to accommodate a disability—which Air Canada regularly does in response to irregular operations—would have a significant impact on the rights of other passengers.

One of the procedural fairness arguments advanced by Air Canada was whether the CTA erred in failing to reconsider an earlier argument (in the context of a request to dismiss or stay the proceedings). The argument was that an air carrier may refuse to transport a power wheelchair under certain circumstances, pursuant to Section 44 of the ATDPRs. For example, transport may be refused where the size of the mobility aid is too large to fit through the door of the aircraft’s baggage compartment. However, the court held Section 44 was not to be construed as limiting a duty to accommodate and that no error in law had occurred.

Conclusion

The court found that the ATDPRs cannot be read in isolation. Air carriers cannot rely on compliance with the ATDPRs as a complete defence to their requirement to justify the continued existence of a barrier, when responding to an accessibility complaint where there has been a systemic failure on the part of the air carrier to accommodate persons with disabilities facing that barrier.

Based on the CTA’s and the Federal Court of Appeal’s findings with respect to the accommodation of passengers with large power wheelchairs, such passengers should be expressly considered in an air carrier’s accessibility plan under the Accessible Canada Act. Air carriers should take measures to accommodate these passengers and their mobility aids on reasonable notice on their chosen routes, which measures may include the substitution of larger aircraft, to the point of undue hardship.

For a carrier to prove that an undue hardship exists, financial evidence—including evidence regarding the portion of the total funds available to an air carrier to remedy a barrier to access—is required by the CTA. This decision therefore places an onerous evidentiary burden on air carriers.