Supreme Court asked to weigh in on passenger protections

A busy apron at Vancouver International Airport (photo: Brett Ballah).

Two passenger rights organizers are asking the Supreme Court to overturn Canada’s new passenger protection regulations, arguing they discriminate against disabled air passengers.

Bob Brown, who has been quadriplegic his entire adult life, has teamed up with Gabor Lukacs of Air Passenger Rights Canada to ask the court to declare new rules governing tarmac delays are illegal because they impose an undue hardship on people with spinal cord injuries.

“For persons with [spinal cord injury], spending excessive periods on board an aircraft is a health hazard,” reads the statement of claim released this week. “Persons with SCI are prone to develop pressure sores, recovery from which requires long periods of bed confinement, and possibly hospitalization.

“They may also gradually develop dehydration-related illnesses since most on-board washrooms are not accessible, and persons with SCI must dehydrate themselves in advance of flying and remain dehydrated while on board.” On top of that, the lawsuit argues that afflicted people may develop pressure sores after sitting in airline seats too long.

At issue are new regulations by the Canadian Transportation Agency imposing up to a maximum three hour and 45 minute delay on the tarmac before an airline has to let passengers off a plane. Previously, Canadian airlines generally applied a 90 minute time limit.

The lawsuit asks judges to imagine a scenario facing Bob Brown. He only has partial use of his arms and shoulders after a spinal cord injury when he was 18. He can’t get up while a plane is in flight to use the washroom, so he has to dehydrate before a flight.

If he were to take the 5 hour 21 minute flight between his home in Ottawa and Vancouver under normal circumstances, there wouldn’t be a problem. But if he were to face a delay of more than three hours on top of the flight time, he could be in real trouble by the time he arrives.

The result, the lawsuit argues, is that people with spinal cord injuries have to reduce their travel distance by 1,500 to 2,000 km, just in case.

“The risk posed by excessive tarmac delays for persons with SCI can only be mitigated by limiting the duration,” argues the lawsuit, “and thus the distance of the flight taken by the person. The longer the maximum permissible tarmac delay is, the shorter the duration, and thus the distance, of the flight that persons with SCI may take safely, without risking their health.”

The new rules came into effect in July. They were part of a package including provisions forcing airlines to compensate passengers for long delays in their control, and to tell the public about their rights, including their right to file a complaint if they feel they’ve been mistreated.

The Canadian Transportation Agency, which created and enforces the rules, declined to comment.

Brown and Lukacs could face an uphill battle with their lawsuit. The Federal Court of Appeal declined to hear a similar challenge filed by the two men.