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Agency Rulings
Decision No. 720-AT-A-2005
December 13, 2005
APPLICATIONS filed pursuant to subsections 172(1) and (3) of the Canada Transportation Act, S.C., 1996, c. 10 by Carolyn Atkinson, Lloyd Atkinson, Anne Louise Bartlett on behalf of the late Calvert Gibson, Carole Bryce, G. William Foskett, Elizabeth Fulton, Harold Gaynes on behalf of Eugene Gaynes, Cindy Geddes, Josie Gould, Neille Keobke, Shirley Keobke, Harvey Kimelman, Arleen Kovac, Frank Kovac, Cliff McMartin on behalf of Ida McMartin, Collin Nielsen on behalf of the late Susan Nielsen, Margaret Rafferty, Karen Ridout, Cathleen Smith, James Toth on behalf of the late Edith Marie Toth, Mary Walker, Elaine Willis, Elaine Wood, Florence Wright, and Neil Wright against Air Canada and by William Mark Pettigrew against WestJet, regarding persons who require that medical oxygen be available to them when travelling by air.
File No. U3570-13
TABLE OF CONTENTS
Whether persons who use oxygen are persons with disabilities
Late filings
Mr. Kimelman's submission of newspaper articles
Statements submitted by Mr. Toth
Feeder lines
Humidified oxygen
Carrier obligations
Financial claims
Margaret Rafferty
Josie Gould
Elizabeth Fulton
Harold Gaynes on behalf of Eugene Gaynes
Cathleen Smith
Carolyn Atkinson, Lloyd Atkinson, Neille Keobke, Shirley Keobke, Arleen Kovac,
Frank Kovac, Cindy Geddes, Florence Wright, and Neil Wright
Government of the Yukon Territory
Harvey Kimelman
Cliff McMartin on behalf of Ida McMartin
James Toth on behalf of the late Edith Marie Toth
Collin Nielsen on behalf of the late Susan Nielsen
Carole Bryce
Elaine Wood
Mary Walker
Anne Louise Bartlett on behalf of the late Calvert Gibson
Elaine Willis
G. William Foskett
Karen L. Ridout
William Mark Pettigrew
CARRIER-SUPPLIED VS PASSENGER-SUPPLIED OXYGEN
Positions of the applicants, Mr. Roberts and Ms. Talsma
The respondents' policies and positions
Obstacle
Undueness
Obstacle decision and undueness investigation
ISSUES WITH RESPECT TO AIR CANADA
Air Canada's policies
Positions of the applicants, Mr. Roberts and Ms. Talsma
Position of Air Canada
Obstacle analysis
Air Canada's policies
Positions of the applicants
Position of Air Canada
Obstacle analysis
Air Canada's policies
Positions of the applicants, Ms. Talsma and Mr. Roberts
Position of Air Canada
Obstacle analysis
Non-provision of medical oxygen prior to departure, during stopovers/connections, and upon arrival
Air Canada's policies
Positions of the applicants, Mr. Roberts and Ms. Talsma
Position of Air Canada
Obstacle analysis
Use of the onboard washroom during the flight
Positions of the applicants
Position of Air Canada
Obstacle analysis
Placement of Medical Oxygen Tank
Air Canada's policies
Position of Ms. Fulton
Position of Air Canada
Obstacle analysis
Seating of persons who use oxygen
Air Canada's policies
Positions of the applicants
Position of Air Canada
Obstacle analysis
Air Canada's policies
Position of Mr. Foskett
Position of Air Canada
Obstacle analysis
Reliability of oxygen services provided by Air Canada
1. The failure to provide pre-requested medical oxygen
Air Canada policies and procedures
Positions of the applicants
Mr. Gaynes
Ms. Gould
Ms. Bartlett
Position of Air Canada
Mr. Gaynes
Ms. Gould
Obstacle analysis
2. The adequacy of the supply of medical oxygen provided by
Air Canada during the flightAir Canada's policies and procedures
Positions of the applicants
Ms. Fulton
Ms. Rafferty
Ms. Smith
Position of Air Canada
Ms. Fulton
Ms. Rafferty
Ms. Smith
Obstacle analysis
Ms. Fulton
Ms. Rafferty
Ms. Smith
Findings
3. The failure to load the oxygen before pre-boarding
Air Canada's policies
Positions of the applicants
Ms. Fulton
Ms. Gould
Ms. Smith
Position of Air Canada
Obstacle analysis
4. The failure to provide oxygen during delayed connections and stopovers
Air Canada's policies
Position of Mr. Gaynes
Position of Air Canada
Obstacle analysis
5. The lack of communication of oxygen requests by Air Canada personnel
Positions of the applicants
Ms. Fulton
Mr. Gaynes
Position of Air Canada
Ms. Fulton
Mr. Gaynes
Obstacle analysis
Ms. Fulton
Mr. Gaynes
Findings
6. Concerns regarding the oxygen equipment used by Air Canada
Air Canada's policies
Positions of the applicants
Ms. Bryce
Mr. Toth
Ms. Ridout
Mr. Foskett
Ms. Nielsen
Ms. Wood
Position of Air Canada
Obstacle analysis
Positions of the applicants and Air Canada
Ms. Smith
Ms. Gould
Ms. Bartlett
Obstacle analysis
International flights
WestJet's policies
Position of Mr. Pettigrew
Position of WestJet
Obstacle analysis
[1] The Canadian Transportation Agency (hereinafter the Agency) received 26 applications between March 2000 and June 2005, 25 filed against Air Canada and one filed against WestJet, by or on behalf of persons who require oxygen when travelling by air. Specifically, the applications raise the following issues related to the carriers' policies and services for the provision or use of medical oxygen on board aircraft:
[2] With respect to Air Canada, the applicants raise concerns regarding:
1. Air Canada's policy that requires that persons request Air Canada's medical oxygen service, as well as its portable onboard oxygen service, in advance of travel;
2. Air Canada's policy requiring passengers to submit an Air Canada Fitness for Travel Form (hereinafter the FFT form), completed by their physician, for approval by Air Canada's Meda Desk, in order to receive medical oxygen on board Air Canada's flights;
3. the cost of Air Canada's medical oxygen service;
4. the non-provision by Air Canada of medical oxygen prior to departure, during stopovers/connections, and/or upon arrival;
5. Air Canada's policy with respect to the availability of portable emergency oxygen tanks for persons who require medical oxygen when using onboard washrooms;
6. the encroachment of the medical oxygen tank provided by Air Canada into the floor space in front of the passenger's seat;
7. Air Canada's oxygen policy as it pertains to the seating of passengers who require medical oxygen;
8. Air Canada's policy with respect to the limited provision of humidifiers; and
9. the level of service that Air Canada provides and, specifically, concerns related to the reliability of the carrier's oxygen service, including:
- the failure to provide pre-requested medical oxygen;
- the adequacy of the supply of medical oxygen provided by Air Canada during the flight;
- the failure to load the oxygen before pre-boarding;
- the failure to provide oxygen during delayed connections and stopovers;
- the lack of communication of oxygen requests by Air Canada personnel;
- concerns regarding the oxygen equipment used by Air Canada; and
- the failure by Air Canada to apply its policies and procedures regarding the provision of medical oxygen to passengers with disabilities;
[3] With respect to WestJet, Mr. Pettigrew raises the following concern:
1. the refusal by WestJet to transport persons with disabilities who require medical oxygen on international and transborder flights, due to the inability to use passenger-supplied oxygen equipment and the non-provision of a medical oxygen service by WestJet
[4] Nasal Cannula: A [tube] that fits into the nostrils for delivery of oxygen therapy. Also called a nasal prong." (Dorland's Illustrated Medical Dictionary, 29th Ed. Harcourt: Montreal. 2000).
[5] Medipak: Air Canada's supplemental oxygen system. It is comprised of an oxygen delivery device, one or more bottles of compressed oxygen and a metal carrying case.
[6] Oxygen Concentrator: ...operates on electricity, takes oxygen from the air and concentrates it for the person to use (Mayo Clinic Family Health Book, 3rd Ed. Harper Collins: New York: 2003)
[7] Oxygen Conserving Devices: Devices that increase the duration of time that oxygen is available from an oxygen cylinder or canister, allowing a patient to use a stationary oxygen system for longer periods of time, especially when a high flow rate is needed. They also work with smaller portable systems.
[8] Oxygen Mask: A breathing device that is placed over the mouth and nose. It supplies oxygen from an attached storage tank.
[9] Oxygen overpacks: WestJet's oxygen overpack is a rectangular case with a clear composite window that allows the user to check the gauges. The overpack opens for mask usage.
[10] Regulator: The device attached to an oxygen tank that controls the flow rate of the oxygen coming out of the tank.
[11] Ventilator: An apparatus used in artificial respiration, usually in mechanical ventilation. Called also inhaler and respirator. (Dorland's Illustrated Medical Dictionary, 29th Ed. Harcourt: Montreal. 2000).
Agency - Canadian Transportation Agency
CAD - Canadian dollars
CAR - Canadian Aviation Regulations
CIC - Central Information Chapter
CTA - Canada Transportation Act
DOT - Department of Transportation of the Government of the United States of America
FAA - Federal Aviation Administration of the United States of America
FAR - Federal Aviation Regulations of the United States of America
FDA - Food and Drugs Act
FFT - Fitness for Travel (Air Canada form)
IATA - International Air Transport Association
ICAO - International Civil Aviation Organization
NPRM - Notice of Proposed Rulemaking
OCD - Oxygen Conserving Device
PNR - Passenger Name Record
STOC - Station Operation Control
[12] The vast majority of applications received relate to Air Canada's policy of not permitting passenger-supplied oxygen on board its aircraft or the delivery of its oxygen service. Further, one application relates to WestJet's policy of not providing an oxygen service on its international and transborder flights. WestJet allows passengers to use their own oxygen equipment on its flights operated within Canada, but does not allow passengers to do so on its flights operated between Canada and the United States of America (hereinafter U.S.A.)- transborder flights - or between Canada and other countries - international flights.
[13] In light of the similar issues raised in the applications and to avoid a multiplicity of proceedings, the Agency determined, in Decision No. LET-AT-A-79-2001 dated February 19, 2001, that it would process the 16 applications received to date together and required Air Canada to address those applications. Of those applications, nine were received from residents of the Yukon Territory and dated November 23, 2000, and two were received from Donald Roberts, former Minister of Health and Social Services, Yukon Territory and Dorothy Talsma, Manager of Extended Benefits and Pharmaceuticals Program, Yukon Territory and dated November 6, 2000; all raise concerns with respect to Air Canada's service at the time. Canadian Airlines International Ltd. carrying on business under the firm name and style of Canadian Airlines International or Canadi*n Airlines or Canadi*n (hereinafter Canadian Airlines) had recently ceased operations and its services were being amalgamated with Air Canada's services. Canadian Airlines had allowed passenger-supplied oxygen on board while Air Canada continued its policy of not permitting passenger-supplied oxygen on board its aircraft. The remainder of the 16 applications relate to Air Canada's medical oxygen policies and procedures or specific incidents that occurred with respect to travel taken.
[14] Further, in light of Air Canada's submission dated December 21, 2000 wherein it outlines that passenger-supplied oxygen is not permitted on its flights in order to harmonize its policies with respect to the Federal Aviation Regulations of the United States of America (hereinafter the FAR), in Decision No. LET-AT-A-79-2001 dated February 19, 2001, Transport Canada was required to provide its comments to the Agency with respect to safety issues related to the carriage and operation of passenger-supplied oxygen equipment in the passenger cabin.
[15] On March 9, 2001, Air Canada submitted a letter requesting an indefinite extension to file its submissions in response to the applications that had been received up to that point. The carrier requested the extension because it was reviewing its medical oxygen service procedures. In Decision No. LET-AT-A-140-2001 dated March 20, 2001, the Agency requested the applicants to provide their comments on Air Canada's request for an indefinite extension to file its answer. In response, Mr. Kimelman, Mr. Roberts, Ms. Talsma and Mr. and Ms. Wright filed submissions with the Agency.
[16] In Decision No. LET-AT-A-314-2001 dated July 6, 2001, the Agency considered Air Canada's request as well as the comments submitted by Mr. Kimelman, Mr. Roberts, Ms. Talsma and Mr. and Ms. Wright and determined that the carrier required additional time to prepare its answer to the applications. However, in light of the projected completion date of Air Canada's review of its oxygen service procedures, the Agency determined that it was not necessary to grant the carrier's request for an indefinite extension but rather, granted the carrier until September 21, 2001 to file its answer to the 16 applications along with the results of the review of its oxygen service procedures.
[17] On September 25, 2001, Air Canada requested an extension until October 5, 2001 to file its answer to the 16 applications due to its resources being dedicated to operational recovery after the events of September 11, 2001. In Decision No. LET-AT-A-411-2001 dated October 1, 2001, the Agency granted the carrier until October 5, 2001 to file its answer to the applications along with the results of the review of its oxygen procedures. On October 15, 2001, Air Canada requested a further extension until November 5, 2001 to file its answer to the 16 applications in light of the crisis impacting the air industry resulting from the events of September 11, 2001. In Decision No. LET-AT-A-427-2001 dated October 25, 2001, the Agency granted Air Canada's request.
[18] On October 29, 2001, Air Canada filed its answer to the 16 applications that had been received to that point. Further, Transport Canada requested various extensions of time to file its comments on the applications filed with the Agency. On February 27, 2002, Transport Canada filed a submission with the Agency with respect to the safety issues related to the carriage and operation of passenger-supplied oxygen equipment. On December 2, 2002, Transport Canada filed additional information with respect to passenger-supplied oxygen.
[19] On April 1, 2003, Air Canada was placed under court-sanctioned bankruptcy protection in order to facilitate the air carrier's operational, commercial, financial and corporate restructuring. As part of this process, the Ontario Superior Court of Justice issued an Order pursuant to the Companies' Creditors Arrangement Act (hereinafter the CCAA) staying all proceedings against or in respect of Air Canada and certain of its subsidiaries including Jazz Air Inc., doing business as Air Canada Jazz. As a consequence, the Agency was unable to continue processing this file, specifically its processing of this application.
[20] On October 10, 2003, applicants were sent a letter from the Agency notifying them that the Court authorized Air Canada, as part of its restructuring plan, to conduct a claims procedure. This letter further advised that, if applicants failed to submit a Proof of Claim, it was unclear whether or not Air Canada would refuse to deal with the financial aspects of the complaint once it emerges from court protection under the CCAA.
[21] On August 23, 2004, the Ontario Superior Court of Justice issued an Order pursuant to the CCAA (hereinafter the Sanction Order) which lifted the Stay Order as of September 30, 2004 and extinguished all claims of a financial nature against Air Canada that arose on or before April 1, 2003.
[22] On October 1, 2004, letters signed by the Secretary of the Agency were sent to all affected applicants informing them that as of September 30, 2004 the Stay Order imposed by the Ontario Superior Court of Justice was lifted and the Agency resumed its complaint adjudication process.
[23] All accessible transportation applications before the Agency against Air Canada and its subsidiaries in relation to incidents that occurred on or before April 1, 2003 (the affected applications), including these applications, were subsequently put on hold for a second period of time as a result of a dispute between the Agency and Air Canada on the scope of the Sanction Order. However, the Agency has determined that it will proceed with its processing of the affected applications.
[24] In the meantime, the Agency continued to receive more applications against Air Canada and one against WestJet regarding their oxygen policies and procedures. In Decision No. LET-AT-A-342-2004 dated December 13, 2004, the Agency determined that as the 24 medical oxygen-related applications that it had received to that point raised issues regarding Air Canada and WestJet's policies and procedures for the provision and use of medical oxygen on board aircraft, it would join the applications in order that, amongst other matters, the Agency could benefit from a broader perspective on the issues raised.
[25] In Decision No. LET-AT-A-346-2004 dated December 16, 2004, the Agency set out its preliminary determination regarding the existence of obstacles. More particularly, with respect to 22 of the 24 applications wherein pleadings were complete, the Agency was of the preliminary opinion that there were clearly obstacles to the mobility of persons with disabilities, both in the application of Air Canada's policy prohibiting passenger-supplied oxygen in its aircraft cabins and in the delivery of Air Canada's oxygen service. In addition, while the Agency recognized that the pleadings had just opened in Mr. Pettigrew's application against WestJet, the Agency set out that it generally considered the refusal of a carrier to transport a person with a disability to be an obstacle to that person's mobility.
[26] The Agency announced its intention to issue a decision early in 2005 to provide parties to the 24 applications with its analysis of the facts and positions of parties and its obstacle determinations with reasons for same. However, the Agency recognized that the issues surrounding the use of medical oxygen on board aircraft are long-standing, complex and multi-faceted, in that they touch on issues relating to accessibility, air safety and health. Upon reviewing the files, the Agency determined that it did not have enough evidence to enable it to assess the undueness of the obstacles found in the policies and procedures of the respondents. Accordingly, and in light of the importance of this issue to both the air industry and to persons with disabilities who require that medical oxygen be available to them when travelling by air, the Agency stated that it intended to complete its investigation of the applications by convening an oral hearing in order to gather further information both from the respondents and from expert witnesses, as well as to provide the respondents with an opportunity to present and test evidence regarding the undueness of the obstacles and the appropriateness of any corrective measures that the Agency may deem appropriate should it find that undue obstacles exist.
[27] In Decision No. LET-AT-A-355-2004 dated December 22, 2004, the Agency requested Transport Canada's confirmation that its February 27 and December 2, 2002 submissions with respect to safety-related issues remained current or, if not, that it provide any additional information that it may deem relevant. On January 10, 2005, Transport Canada submitted its response, which provided additional information with respect to medical oxygen on board aircraft.
[28] On December 23, 2004, Air Canada filed a submission wherein it stated that 22 of the 24 applications were extinguished as a result of the Sanction Order issued on August 23, 2004 by the Ontario Superior Court of Justice and which governs Air Canada's emergence from bankruptcy protection. On January 6, 2005, Air Canada filed a further submission with the Agency wherein it clarified its position that all accessible transportation applications before the Agency against Air Canada and its subsidiaries filed or in relation to incidents that occurred on or before April 1, 2003, including the applications filed by Lloyd and Carolyn Atkinson, Anne Louise Bartlett, Carole A. Bryce, Elizabeth Fulton, Harold Gaynes, Cindy Geddes, Josie Gould, Neille and Shirley Keobke, Harvey Kimelman, Frank and Arleen Kovac, Cliff McMartin, Susan M. Nielsen, Margaret E. Rafferty, Cathleen Smith, James Toth, Mary Walker, Elaine Wood and Neil and Florence Wright (the affected oxygen applications) are extinguished by the Sanction Order. Air Canada further explained that it understood that it was the Agency's intention to file a motion before the Ontario Superior Court of Justice to seek clarification from the Court on the effect of the Sanction Order and that in the interim, and until the issue was resolved, it requested that all pending matters involving complaints of events that occurred before April 1, 2003 or complaints of a general nature filed before April 1, 2003 be stayed.
[29] In Decision No. LET-AT-A-20-2005 dated January 19, 2005, the Agency stated its opinion that Air Canada's position on the impact of the Sanction Order on the affected Agency applications is incorrect and indicated that the Agency would be taking action to have the issue resolved by the Court as expeditiously as possible by seeking an interpretation of the Sanction Order as to whether the affected applications were extinguished, as argued by Air Canada. The Agency expressed its concerns about the potential impact of a delay in the investigations that would occur as a result of a stay of the affected applications. As such, the Agency sought comments from the applicants before making its decision on whether to stay the proceedings. The Agency subsequently received comments from Ms. Fulton, Mr. Toth, Ms. Bryce and Ms. Walker.
[30] In Decision No. LET-AT-A-115-2005 dated April 18, 2005, the Agency granted Air Canada's request to stay the affected oxygen applications based on its opinion that, given the Agency's intention to seek the Court's interpretation of its Sanction Order, it would not be appropriate for the Agency to continue to process the affected applications. The Agency also stayed the applications of Ms. Willis against Air Canada and of Mr. Pettigrew against WestJet, which, although not affected by the Sanction Order, raise similar issues relating to oxygen policies and procedures and would thus be considered together with the affected oxygen applications.
[31] The Agency subsequently determined that the best way to deal with the affected oxygen applications was for the Agency to proceed with its consideration of the applications and, as such, on June 30, 2005, the Agency determined that it would not continue with its motion before the Court for an interpretation of the Sanction Order.
[32] In Decision No. LET-AT-A-233-2005 dated August 18, 2005, the Agency determined that it would be appropriate to lift the stay of the affected oxygen applications and the applications filed by Elaine Willis and William Pettigrew imposed by Decision No. LET-AT-A-115-2005. Also, in Decision No. LET-AT-A-233-2005, the Agency joined recent applications from Mr. Foskett and Ms. Ridout with those applications related to onboard medical oxygen that had previously been filed.
Whether persons who use oxygen are persons with disabilities
[33] As noted above, on October 29, 2001, Air Canada filed its answer to the 16 medical oxygen-related applications that had been received by the Agency to that point and therein raised the issue of whether persons who use oxygen are persons with disabilities. In Decision No. LET-AT-A-224-2002 dated August 7, 2002, the Agency gave the applicants an opportunity to address whether persons who use oxygen are persons with disabilities. The Agency received submissions from Mr. Kimelman, Mr. McMartin, Ms. Smith, Mr. Toth and Ms. Wood.
[34] In Decision No. LET-AT-A-279-2002 dated September 25, 2002, the Agency expressed its preliminary opinion that regardless of where a person falls within the spectrum of persons who require medical oxygen, the fact that persons require medical oxygen to be available to them when travelling by air is sufficient to enable it to determine that they are persons with disabilities for the purposes of Part V of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA). The Agency required Air Canada to provide further submissions on the jurisdictional issue, following which Air Canada filed its response on October 29, 2002.
[35] Following the lifting of the Stay Order on September 30, 2004, the Agency in Decision No. LET-AT-A-346-2004 dated December 16, 2004, determined that persons who require that medical oxygen be available to them when travelling by air are persons with disabilities for the purposes of Part V of the CTA regardless of where a person falls within the spectrum of persons who require medical oxygen (from a continuous basis to an as-needed basis) and that, thus, the Agency has jurisdiction to consider the applications before it. Contrary to Air Canada's assertions in this regard, the Agency found that persons who require medical oxygen when travelling by air present an "obvious situation" or a clear disability as opposed to a "grey area" disability. Specifically, the Agency stated that it is obvious that persons who require that medical oxygen be available to them when travelling by air are, as a category, persons with disabilities in the same way that persons who require the use of wheelchairs for mobility are persons with disabilities. The Agency further stated that there is no need to examine the underlying health condition necessitating the use of the wheelchair or the availability of oxygen; rather, the fact that persons' health conditions necessitate the use of a wheelchair or the availability of oxygen is sufficient to permit the Agency to conclude that they are persons with disabilities for the purposes of Part V of the CTA.
Late filings
[36] While various pleadings in these applications were filed after the prescribed deadlines, the Agency, pursuant to section 5 of the Canada Transportation Agency General Rules, SOR/2005-35, accepts these submissions as being relevant and necessary to its consideration of these matters.
Mr. Kimelman's submission of newspaper articles
[37] With regard to submissions related to the application of Mr. Kimelman, on September 11, 2002, Air Canada objected to the applicant submitting newspaper articles with respect to oxygen service provided by the carrier. Air Canada stated that the newspaper articles include unsubstantiated allegations related to a case of which he has no personal knowledge, thus amounting to hearsay. The carrier further submitted that it contested and did not admit what was alleged by Mr. Kimelman as facts in the story related in the newspaper articles attached to his e-mail dated September 5, 2002.
[38] In this regard, the Agency hereby finds that there is no reason to strike the newspaper articles from the record. However, given the fact that Mr. Kimelman uses newspaper articles about an incident separate from his application, this fact will go to the weight that they are given as evidence.
Statements submitted by Mr. Toth
[39] With respect to Mr. Toth's submission dated October 11, 2002 and statements therein that Air Canada does not have trained personnel on board to deal with the complexities of medical oxygen, Air Canada submitted, on November 27, 2002, that Mr. Toth was alluding to an incident that had received media coverage. Air Canada explained that the facts in this incident were not related to the provision of oxygen and that, as this involved a third party and Mr. Toth does not have the written authorization to obtain said facts, Air Canada was precluded from disclosing them to him or to the Agency. Air Canada further pointed out that Mr. Toth commented on an incident that he did not witness. Air Canada stated that Mr. Toth's statement is anecdotal, constitutes hearsay and should not be considered by the Agency.
[40] The Agency will not include, as part of the record, a general incident that is mentioned in media coverage. Therefore, the Agency does not accept Mr. Toth's allusion to the incident described in his submission dated November 27, 2002.
Feeder lines
[41] The issue of medical oxygen on board aircraft in the context of feeder line carriers has been raised in general terms by two applicants, Mr. Kimelman and Ms. Smith. The carriers that are the subject of this aspect of these applications are no longer in existence.
[42] The Agency is aware of the importance of feeder lines in that the carriers who operate over the feeder lines are responsible for carrying passengers between airports in smaller Canadian centres and major cities. However, given the fact that the feeder-line carriers noted in the applications of Mr. Kimelman and Ms. Smith are no longer in existence, the Agency will not consider this matter in this Decision.
Humidified oxygen
[43] On May 19, 2005, Mr. Foskett filed an application wherein he recommends that Air Canada reconsider its policy of not providing humidifiers for persons who use oxygen on flights of less than 10 hours. Mr. Foskett stated that this need for humidified oxygen on flights of less than 10 hours is highlighted by a trip he recently took to Ottawa on which he was unable to obtain a humidifier. As a result, he sustained a severe nose bleed shortly after his arrival. In its answer to Mr. Foskett's application, Air Canada stated that although Mr. Foskett may require oxygen in flight, there is no medical requirement for a humidifier in flight and added that the applicant has provided no medical evidence supporting his requirement to use humidified oxygen. Further, Air Canada asserted that Mr. Foskett's FFT form made no mention of the necessity for medical oxygen that is humidified. The FFT form indicates that he does not use oxygen on ground and that he requires a flow of two litres per minute when using oxygen on board an aircraft. Air Canada submitted that the Agency cannot impose on a carrier an obligation to provide a humidifier for oxygen in the absence of any medical evidence that this practice is medically required in this instance or even in general.
[44] On September 28, 2005, Mr. Foskett filed an e-mail from the Manager of Client Services at the Provincial Respiratory Outreach Program for British Columbia, who indicated that a medical reason for humidity with oxygen is that oxygen is very drying as a gas and the humidity is required to ensure that a person using oxygen "does not dry out". The Manager further put forth that as persons who use oxygen are already compromised as a result of their "disease process", an additional workload on their body ensues if they do not receive humidity as part of their medical oxygen because their body is left to humidify the extremely cold oxygen gas.
[45] After considering the submissions of the parties, the Agency finds that while Air Canada asserted that humidified oxygen is not medically necessary, the Agency does not limit its investigations to matters where services or equipment are medically necessary. Rather, it investigates services utilized by persons with disabilities and whether their disability-related needs are accommodated. One example is the Agency's determination that liftable aisle armrests must be provided in order to assist in transferring persons with disabilities from wheelchairs to seats. In this case, there is evidence supporting the need for a humidifier with oxygen service and Mr. Foskett has clearly described the significant physical impact on him when he is unable to obtain humidified oxygen.
Carrier obligations
[46] In its submission dated August 14, 2005, Air Canada expressed its opinion that the carriage or provision of oxygen is not part of the services that a carrier is obliged to provide to persons with disabilities as listed in the regulations. The carrier states that there is no reference whatsoever in the CTA or regulations to the carriage of oxygen.
[47] However, the Agency points out that although the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) do not require Canadian carriers to provide oxygen service or permit the carriage of oxygen on their aircraft, for domestic services, the ATR provide a list of services that is non-exhaustive in nature. Additionally, the CTA provides the Agency with a mandate to remove undue obstacles to the mobility of persons with disabilities and the Agency, through its decisions, imposes a wide variety of obligations and responsibilities regarding domestic and international services of Canadian and foreign carriers with respect to the accommodation of persons with disabilities in addition to any regulatory requirements. Subsection 172(1) of the CTA states, in part, that the Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities. Therefore, the Agency deems it necessary, appropriate and important to investigate the 26 applications related to onboard oxygen that it has received since 2000.
Financial claims
[48] The Agency notes that a majority of the applicants, as well as Mr. Roberts and Ms. Talsma, raise concerns regarding the cost of Air Canada's oxygen service and in some cases included a request for compensation.
[49] The Agency notes that all claims of a financial nature arising from incidents that occurred on or before April 1, 2003 have been extinguished pursuant to the Sanction Order for purposes of both administrative tribunals and courts of law and, as such, the Agency has no jurisdiction to order compensation, pursuant to section 172 of the CTA, for expenses incurred by a person arising out of any undue obstacle that it may determine existed on or before April 1, 2003.
[50] Consequently, if the Agency finds, in the course of its investigation, that an undue obstacle exists with respect to the cost of Air Canada's oxygen service to the applicants, the Sanction Order prevents the Agency from directing that Air Canada refund applicants who filed applications regarding incidents that occurred on or before April 1, 2003 for amounts charged to them for the carrier's oxygen service, given that all claims of a financial nature in these circumstances are extinguished.
[51] Pursuant to subsection 29(1) of the CTA, the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. The Agency has received agreement to an indefinite extension of the deadline from all parties, except for Mr. Pettigrew, Ms. Bartlett (on behalf of Mr. Gibson) and Ms. Gould. Mr. Pettigrew did not agree to an extension of the statutory deadline and no response was received from Ms. Bartlett and Ms. Gould.
[52] In light of the number of applications in question, the importance of the issues raised and the time required by the Agency to examine those issues, in Decision No. LET-AT-A-90-2005 dated March 23, 2005, the Agency determined that it continues to have applications before it that require substantive determinations pursuant to section 172 of the CTA. In order for the Agency to fulfill its statutory mandate, the Agency indicated that it would be continuing with its investigation in the cases of Ms. Bartlett, Ms. Gould and Mr. Pettigrew beyond the statutory deadlines.
[53] The following provides a brief summary of the 26 applications received, including submissions by Mr. Roberts and Ms. Talsma, as well as Air Canada's and WestJet's submissions.
Margaret Rafferty
[54] Ms. Rafferty travelled with Air Canada from Toronto to Vancouver on December 20, 1999 and returned on January 4, 2000. She filed an application on March 20, 2000 with respect to the cost of Air Canada's oxygen service and the reliability of Air Canada's oxygen service with respect to both flights. On May 15, 2000, Air Canada filed its answer, to which Ms. Rafferty replied on June 5, 2000. Further submissions were subsequently filed by both parties.
Josie Gould
[55] Ms. Gould travelled with Air Canada on January 29, 2000 from Yellowknife to Vancouver, with a connection in Edmonton. She experienced difficulty with respect to the connecting flight from Edmonton to Vancouver. Ms. Gould filed an application on June 6, 2000 wherein she raises concerns with respect to the cost of Air Canada's oxygen service; its FFT form; and the reliability of Air Canada's oxygen service. In addition to her application, Ms. Gould filed a copy of a letter that she wrote to Air Canada and correspondence between the N.W.T. Council for Disabled Persons (hereinafter the N.W.T. Council) and Air Canada with respect to the oxygen-related concerns that she raised. On July 31, 2000, Air Canada filed its answer and on September 13, 2000, Ms. Gould filed her reply, following which she filed additional information.
Elizabeth Fulton
[56] Ms. Fulton travelled with Air Canada from Ottawa to San Diego, with a connection in Toronto, on February 6, 2000. She then travelled on February 16, 2000 with United Air Lines, Inc. carrying on business as United Airlines (hereinafter United Airlines) from San Diego to San Francisco, where she connected to an Air Canada flight to Vancouver. The final leg of her return trip was with Air Canada, from Vancouver to Ottawa, on March 5, 2000. She filed an application on July 14, 2000 regarding difficulties she experienced with respect to the Air Canada flights from Toronto to San Diego, from San Francisco to Vancouver, and from Vancouver to Ottawa. The issues that she raises involve the advance notice needed for Air Canada's oxygen service; the placement of Air Canada's medical oxygen tanks on board its aircraft; the seating of passengers who require medical oxygen; and the reliability of Air Canada's oxygen service. On September 8, 2000, Air Canada filed its answer and on September 18, 2000, Ms. Fulton filed her reply, following which Air Canada filed additional information.
Harold Gaynes on behalf of Eugene Gaynes
[57] Eugene Gaynes and his wife travelled with Air Canada from Moncton to Edmonton, with a connection in Toronto on August 8, 2000 with a return on August 29, 2000. Mr. Gaynes made arrangements for Air Canada's medical oxygen service but experienced difficulties on the outbound portion of his trip. As a result, Maritime Marlin Travel filed an application on his behalf on September 5, 2000; Mr. Gaynes was subsequently represented by Harold Gaynes. Mr. Gaynes raises concerns with respect to the reliability of Air Canada's oxygen service. Air Canada filed its answer on November 23, 2000 and additional information on December 18, 2000. Mr. Gaynes did not file a reply.
Cathleen Smith
[58] Ms. Smith experienced difficulties while travelling with Air Canada on August 26, 2000 from Whitehorse to Victoria, with a connection in Vancouver. Ms. Smith filed an application on November 14, 2000 with respect to the cost of Air Canada's oxygen service; the non-provision of medical oxygen prior to departure, during connections, and upon arrival; and the reliability of Air Canada's oxygen service. On December 21, 2000, Air Canada filed its answer, following which Ms. Smith filed further information.
Carolyn Atkinson, Lloyd Atkinson, Neille Keobke, Shirley Keobke, Arleen Kovac, Frank Kovac, Cindy Geddes, Florence Wright, and Neil Wright
[59] On November 23, 2000, nine applications were filed by the above individuals, who are residents of the Yukon Territory, with respect to the cost of Air Canada's oxygen service; advance notice; the non-provision of medical oxygen prior to departure, during stopovers/connections, and upon arrival; and the reliability of Air Canada's oxygen service. On May 1, 2001, Ms. Geddes filed further information. On October 29, 2001, Air Canada filed its answer to the applications; however, no replies were received.
Government of the Yukon Territory
[60] The filing of the nine applications from the residents of the Yukon Territory coincided with the filing of an application by Donald Roberts, former Minister of Health and Social Services for the Yukon Territory, and a second application from Dorothea Talsma, Manager, Extended Benefits & Pharmaceuticals Program, Insured Health Services of the Government of the Yukon Territory, who raise concerns with respect to the cost of Air Canada's oxygen service; advance notice; and the non-provision of medical oxygen prior to departure, during stopovers/connections, and upon arrival.
[61] In letters dated July 12, 2002, Agency staff advised Mr. Roberts' successor, the Honourable Sue Edelman, and Ms. Talsma that their files would be closed as their applications raised issues also outlined in the applications received from the applicants from the Yukon Territory. Minister Edelman and Ms. Talsma were advised, however, that the Government of the Yukon Territory's concerns would be considered and would be included as evidence by the Agency in its consideration of these cases.
Harvey Kimelman
[62] Mr. Kimelman booked a trip to travel from Winnipeg to Vancouver with Air Canada for February 2001. Mr. Kimelman filed an application on January 2, 2001 prior to travelling with Air Canada, followed by a subsequent submission, with respect to the cost of Air Canada's oxygen service and its FFT form. On October 29, 2001, Air Canada filed its answer and subsequently filed a further submission. No reply was received from Mr. Kimelman.
Cliff McMartin on behalf of Ida McMartin
[63] Mr. and Mrs. McMartin contacted Air Canada to book flights from Castlegar to Vancouver in the spring of 2001 but did not travel. Mr. McMartin, on behalf of his wife, filed an application on September 5, 2001 with respect to the cost of Air Canada's oxygen service and its medical approval process. On September 10, 2002, Air Canada advised the Agency that it should consider its correspondence dated October 29, 2001 as its answer to Mr. McMartin's application, which had previously been forwarded to Mr. McMartin for his information on August 2, 2002. On August 19, 2002, Mr. McMartin filed comments with respect to Air Canada's October 29, 2001 submission.
James Toth on behalf of the late Edith Marie Toth
[64] Mrs. Toth wanted to accompany Mr. Toth on a trip from Regina to Toronto on November 1, 2001, but did not travel with him upon learning of Air Canada's medical oxygen policies. Mr. Toth filed an application on behalf of his wife, on October 22, 2001, with respect to the cost of Air Canada's oxygen service; the non-provision of medical oxygen prior to departure, during stopovers/connections, and upon arrival; and the reliability of Air Canada's oxygen service. On September 26, 2002, Air Canada filed its answer, to which Mr. Toth replied on October 15, 2002 and advised that Mrs. Toth had passed away. Mr. Toth subsequently filed a further submission.
Collin Nielsen on behalf of the late Susan Nielsen
[65] Ms. Nielsen travelled from Vancouver to Hawaii with Air Canada in March 2001 and experienced difficulties on both the outbound and inbound portions of her trip with respect to her need for medical oxygen. Ms. Nielsen filed an application on November 23, 2001 with respect to the non-provision of medical oxygen prior to departure, during stopovers/connections, and upon arrival; and the reliability of Air Canada's oxygen service. On December 9, 2002, Air Canada filed its answer and on February 14, 2003, Ms. Nielsen filed her reply. Mr. Nielsen verbally advised Agency staff on November 30, 2005 that Ms. Nielsen had passed away since the filing of her application but that he would continue on her behalf.
Carole Bryce
[66] Ms. Bryce filed an application on January 8, 2002 with respect to the cost and the reliability of Air Canada's oxygen service. On October 7, 2002, Air Canada filed its answer and on January 13, 2003, Ms. Bryce filed her reply.
Elaine Wood
[67] Ms. Wood wanted to travel from Regina to Vancouver on July 21, 2002 and return on July 28, 2002. Ms. Wood filed an application on January 16, 2002, along with a subsequent submission, in which she raises concerns with respect to the cost and the reliability of Air Canada's oxygen service. On October 7, 2002, Air Canada filed its answer and Ms. Wood filed her reply on November 14, 2002.
Mary Walker
[68] Ms. Walker wanted to travel with Air Canada from Regina to Ottawa; however, given Air Canada's oxygen policies, she travelled with another carrier. She filed an application on January 22, 2002, along with a subsequent submission, regarding the cost of Air Canada's oxygen service, as well as the non-provision of medical oxygen prior to departure, during stopovers/connections, and upon arrival. On September 23, 2002, Air Canada filed its answer. Ms. Walker did not file a reply.
Anne Louise Bartlett on behalf of the late Calvert Gibson
[69] Mr. Gibson travelled with Air Canada on August 10, 2001, from Calgary to Toronto, with a return date of August 28, 2001. Mr. Gibson filed an application on February 10, 2002 concerning the reliability of Air Canada's oxygen service with respect to his outbound and inbound flights. In a letter dated August 22, 2002, Agency staff requested additional information regarding Mr. Gibson's application. Agency staff confirmed, in a letter dated April 3, 2003, that Ms. Bartlett advised that her husband had passed away since the filing of his application but that she would continue on his behalf. Ms. Bartlett was also asked to advise the Agency of additional information before the application would be forwarded to Air Canada for its response. Air Canada was provided with a copy of the material in this case on the same date.
[70] In light of the Ontario Superior Court Stay Order, as noted above, which was in effect from April 1, 2003 to October 1, 2004, the Agency was unable to process Mr. Bartlett's application during this time. On December 13, 2004, and March 23, 2005, the Agency communicated with Ms. Bartlett regarding her application. On September 7, 2005, Ms. Bartlett provided the Agency with updated contact information. Agency staff made further attempts to contact Ms. Bartlett on September 12 and 15, 2005, and, on September 15, 2005, Ms. Bartlett provided the clarification sought. When Air Canada was subsequently contacted regarding the clarification provided by Ms. Bartlett, it advised that due to the amount of time that had passed since the original incident, it would be unable to provide comments in response.
Elaine Willis
[71] Ms. Willis wanted to travel from Coquitlam, British Columbia to Mexico with Air Canada; however, she did not travel as a result of the oxygen fees charged, which are, in addition to the carrier's FFT form, the subject of the application that she filed on March 8, 2004. On December 2, 2004, Air Canada filed its answer, following which Ms. Willis filed additional information. Ms. Willis filed her reply on February 5, 2005.
G. William Foskett
[72] Mr. Foskett travelled from Victoria to Honolulu, via Vancouver, on January 8, 2005. He filed an application on May 19, 2005 regarding Air Canada's policy on oxygen humidifiers; the cost of Air Canada's oxygen service; advance notice; the use of the onboard washrooms, and the reliability of Air Canada's oxygen service. Air Canada filed its answer on August 12, 2005 and Mr. Foskett filed his replies on September 19 and 28, 2005.
Karen L. Ridout
[73] Ms. Ridout travelled with Air Canada from Calgary to Toronto on May 11, 2005, with a return date of May 17, 2005; she experienced difficulties on the outbound and inbound flights. As a result, she filed an application on June 27, 2005, along with a subsequent submission, wherein she raises concerns regarding the seating of persons who use oxygen; and the cost and the reliability of Air Canada's oxygen service. On September 15, 2005, Air Canada filed its answer. No reply was received from Ms. Ridout.
William Mark Pettigrew
[74] Mr. Pettigrew wanted to travel from Toronto to Manzanillo, Mexico, on January 8, 2005. He instead travelled to a different destination with another carrier. Mr. Pettigrew filed an application on November 24, 2004, along with a subsequent submission, with respect to the inability to use passenger-supplied oxygen equipment on WestJet's international flights and the non-provision of medical oxygen service by WestJet, which resulted in him being unable to travel. WestJet filed its answer in two submissions dated January 6 and 19, 2005, to which Mr. Pettigrew filed a reply on February 12, 2005.
[75] As part of its consideration of the 10 issues raised by the applicants with respect to certain of Air Canada's and WestJet's policies and procedures regarding medical oxygen provision and use in the passenger cabin of aircraft, the Agency notes that, pursuant to Transport Canada safety regulations, air carriers are given the discretion to decide whether medical oxygen will be supplied by the carrier or by the passenger within Canada. Transborder and international flights are subject to the regulatory requirements of the foreign countries served by Canadian carriers. Transport Canada filed submissions with the Agency addressing the transportation of oxygen on board aircraft.
[76] On February 27, 2002, Transport Canada submitted information in response to Decision No. LET-AT-A-79-2001 dated February 19, 2001 regarding the carriage and operation of passenger-supplied oxygen equipment. It is outlined that, in contrast to the FAR, the Canadian Aviation Regulations (hereinafter the CAR) do not address the requirements for the carriage and operation of passenger-supplied oxygen. The FAR requirements only permit the carriage and operation of oxygen for medical use by passengers where the operator provides the equipment. Transport Canada notes that although the CAR do not address operational regulations, there are variances amongst individual air operator policies regarding the carriage and operation of medical oxygen for passenger use. The submission raises three readily identifiable areas affecting safety concerning the carriage of passenger-supplied medical oxygen for use on board aircraft: equipment, training and operational concerns.
[77] On October 29, 2002, Mr. Toth submitted a letter that he received from Transport Canada on October 21, 2002 wherein it is stated that the Air Canada procedures that were applied in the case that the applicant described in his correspondence are in compliance with the Transportation of Dangerous Goods Act, 1992, and associated Transport of Dangerous Goods Regulations.
[78] In a submission dated December 2, 2002, Transport Canada reiterates that liquid oxygen is forbidden for air transport and states that compressed oxygen may be transported by air if in compliance with the packaging, marking, documentation and handling requirements specified in the Transportation of Dangerous Goods Regulations and the International Civil Aviation Organization (hereinafter the ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air (hereinafter the Technical Instructions). However, compressed oxygen for medical use may be exempt from the dangerous goods regulations under specified conditions.
[79] In response to Decision No. LET-AT-A-355-2004 dated December 22, 2004, Transport Canada filed a submission on January 10, 2005, reiterating its safety concerns regarding the carriage and use of passenger-supplied medical oxygen equipment without restrictions. These concerns include maintenance of equipment, passenger handling of equipment until it is boarded, quantity of oxygen boarded, stowage and restraint of equipment, and in-flight operational concerns, particularly the changing of the regulator in-flight.
[80] On April 13, 2005, Transport Canada responded to Mr. Pettigrew's correspondence dated November 26, 2004 addressed to Transport Canada, stating that while there are exemptions to ICAO's and Transport Canada's regulations with respect to the carriage of oxygen tanks, these exemptions are subject to the approval of the air operator and Transport Canada cannot legally force an operator to exercise an exemption.
[81] On July 4, 2005, Transport Canada responded to Mr. Foskett's correspondence dated May 23, 2005 addressed to Transport Canada regarding the provision of humidifiers for persons who use oxygen on board Air Canada flights. Transport Canada advises that there are no operational regulations pertaining to the personal use of oxygen and supplementary equipment, such as for the provision of humidifiers, for pre-existing medical conditions.
CARRIER-SUPPLIED VS PASSENGER-SUPPLIED OXYGEN
[82] As set out above, Transport Canada confers discretion on carriers to decide whether to provide medical oxygen to their passengers or to allow passengers to bring their own equipment. In this regard, the Agency notes that Air Canada does not permit passengers to use their own medical oxygen equipment in the passenger cabin of aircraft during flight; rather, it provides passengers a medical oxygen service for all domestic, transborder and international flights. The Agency also notes that, conversely, WestJet allows passengers to use their own medical oxygen in the passenger cabin of aircraft during domestic flights, but does not allow passengers to use their own medical oxygen for transborder or international travel, nor does it provide medical oxygen for transborder or international travel. While the majority of applicants raised concerns regarding various aspects of Air Canada's policies regarding the provision of medical oxygen on board aircraft, some of the applicants raised concerns relating specifically to the issue of carrier-supplied versus passenger-supplied medical oxygen. These applicants' concerns, in addition to the positions of the respondents regarding their medical oxygen policies, are set out below.
Positions of the applicants, Mr. Roberts and Ms. Talsma
[83] Mr. and Mrs. Atkinson, Ms. Bryce, Ms. Geddes, Mr. and Mrs. Keobke, Mr. Kovac, Ms. Nielsen, Mr. Roberts, Ms. Talsma, Mr. Toth, Ms. Walker, Ms. Willis, Ms. Wood and Mr. and Mrs. Wright raise concerns regarding Air Canada's policy that does not permit passenger-supplied oxygen equipment on board its aircraft.
[84] Many of the applications were received as a result of the bankruptcy and subsequent merger of Canadian Airlines with Air Canada. In this regard, where Canadian Airlines previously allowed for passenger-supplied oxygen, passengers were suddenly confronted with Air Canada's policy of not permitting passenger-supplied oxygen. These applicants assert that Air Canada's policy compromises the independence of persons who use oxygen and Mr. Toth states that the policy targets persons with disabilities who use oxygen. The overwhelming view with respect to passenger-supplied oxygen is that Air Canada should change its policy to allow persons who use oxygen to bring their own tanks on board. Ms. Talsma asserts that at the very least, Air Canada should allow persons who use oxygen to use their own equipment while awaiting connections. A number of applicants indicate that their personal oxygen equipment or the oxygen equipment that has been used in the past meets federal standards and in one case the applicant uses the same oxygen company as Air Canada. Mr. Toth asserts that if Air Canada allowed passenger-supplied oxygen on board its aircraft, it would not have to charge persons who use oxygen the fees associated with the carrier-supplied oxygen service. Further, Ms. Bryce contends that she has likely received more training in the care, handling and safe usage of oxygen tanks than most, if not all, of Air Canada's flight personnel. Further, Ms. Willis expresses the opinion that Air Canada should allow passengers not connecting in the U.S.A. to carry their own oxygen.
[85] Mr. Toth asserts that according to Health Canada documents, Air Canada is not a licensed provider of medical oxygen. Mr. Toth indicates that according to Health Canada, medical oxygen is classed as a drug for medical purposes. He claims that Air Canada does not currently hold a drug establishment licence and adds that these licences are issued to drug companies that perform licensable activities in accordance with the Food and Drugs Act. Further, Mr. Toth submits that these drug activities, as defined in the Food and Drugs Act, include fabricating, packaging, importing, distributing, wholesaling, and testing. Mr. Toth states that his wife's health was maintained by oxygen provided by a licensed provider in Regina, VitalAire, and that her body and respiratory system were maintained and comfortable with the prescribed medical oxygen. Mr. Toth asserts that Air Canada has no authority, under Canadian laws, to replace his wife's drug (medical oxygen) with one that it wishes her to use, and then charge an unreasonable sum of $100 for $4.80 worth of the medication (medical oxygen) for a flight from Regina to Toronto, and a similar amount for the return. Mr. Toth adds that one cannot ask passengers who need medical oxygen and who are required to travel with Air Canada to forsake and surrender their health care to a totally unknown and unlicensed entity - Air Canada. It is Mr. Toth's position that Air Canada has no authority to dispense a drug, namely medical oxygen, as a condition of flight, as opposed to an emergency.
[86] Mr. Toth states, in a letter dated October 28, 2002 addressed to the Honourable David Collenette, former Minister of Transport, that Air Canada is not a licensed producer of medical oxygen and, as such, it is required to purchase its medical oxygen from one of three producers in Canada: Praxair Inc., Air Liquide Canada Inc. and BOC Gases, a division of BOC Canada Ltd. Mr. Toth submits that no person, and certainly not Air Canada, has the legal authority to force his wife to use oxygen of which she has no knowledge. He adds that no person in his/her right mind would take a substance without knowing its contents, its purpose, and the reason, and yet Air Canada "foists" this approach on persons with disabilities requiring medical oxygen, which he submits is unacceptable.
[87] Mr. Pettigrew raises concerns regarding the inability to use passenger-supplied oxygen equipment and the non-provision of medical oxygen service by WestJet on its international flights.
The respondents' policies and positions
[88] Air Canada submits that all oxygen and tanks that it provides meet applicable standards and there is no evidence to the contrary. Air Canada adds that its main concern is the safety of all passengers, including those requiring oxygen.
[89] With respect to Air Canada's policy of not permitting passengers to supply their own oxygen tanks on board its flights, Air Canada submits that it has the overall responsibility for the safety of its customers and employees and, as such, must depend on a reliable system for controlling the quality of the oxygen units carried on board its aircraft. Air Canada states that it operates an extensive network providing domestic, international and transborder air transportation services as a member of the International Air Transport Association (hereinafter IATA) and is a signatory to many interline agreements. Air Canada explains that it regularly carries passengers who connect, in a more or less seamless fashion, to other domestic or foreign carriers. Air Canada notes that it must therefore comply with the various legislative and regulatory requirements of the different countries that it operates flights to and from, and must also respect the procedures of other carriers to which it feeds passengers.
[90] Air Canada further explains that, in the services that it provides to and from the U.S.A, Air Canada is prevented from carrying, in the cabin or as checked luggage, oxygen tanks that do not meet the strict requirements of the FAR, and that this concern stems from the risk of inflammation and explosion of non-regulated tanks in the different pressurization environment of an aircraft. Air Canada submits that it fully supports the assertion made by the Department of Transportation of the Government of the United States of America (hereinafter the DOT) on this issue and does not believe that the risk identified in these regulations is different whether the flight is between the U.S.A. and Canada or strictly within Canada. Air Canada also states that as it is not possible to assess the safety or compliance of a tank provided by the customer, Air Canada has made the decision not to accept tanks that are provided by customers. Air Canada submits that it cannot be held to lesser safety measures imposed for all passengers to accommodate or facilitate the carriage of certain passengers.
[91] Air Canada further submits that allowing passengers to use their own tanks on domestic flights would create confusion as these domestic flights may carry passengers destined to the U.S.A. Air Canada explains that, in such a situation, if a passenger connecting to a U.S.A.-destined flight were to be allowed to bring his/her oxygen tank, he/she would have to dispose of this tank at the connection point as the DOT regulations prohibit the carriage of said tanks either in the cabin or as checked luggage.
[92] On the other hand, although WestJet submits that passengers bring their own oxygen on board its aircraft for domestic flights, WestJet's policies indicate that it is not possible to bring passenger-supplied medical oxygen on board its aircraft for transborder and international services and WestJet does not provide an oxygen service on these flights. WestJet cites, as the reason for its restrictive policy, the FAR that prohibit the carriage of passenger-supplied oxygen on flight that take off or land in the U.S.A.
[93] In Decision No. LET-AT-A-346-2004 dated December 16, 2004, the Agency found on a preliminary basis that the application of Air Canada's policy prohibiting passenger-supplied oxygen in its aircraft cabin is an obstacle to the mobility of persons with disabilities. However, upon further consideration of the submissions of the parties and the issues raised, the focus of this decision is on the obstacles found in the delivery of Air Canada's oxygen service.
[94] The Agency is of the opinion that, insofar as the means chosen by a carrier to accommodate passengers' needs for medical oxygen do not present undue obstacles to the mobility of persons who require medical oxygen when travelling by air, it is appropriate that air carriers exercise the discretion conferred on them by Transport Canada to decide whether to provide medical oxygen to their passengers or to allow passengers to provide it themselves using their own equipment. As such, the Agency does not intend to require an air carrier to provide both a medical oxygen service and to allow passengers to use their own oxygen equipment in respect of the same flight operations. Notwithstanding, the Agency notes that this does not preclude the possibility that it may determine, following its consideration of the undueness of any obstacles found to exist with respect to the medical oxygen policies of Air Canada and WestJet [refer to Undue Obstacle Determination section that follows], that the only practicable means of remedying deficiencies with a carrier's medical oxygen policy is to either allow passengers to use their own oxygen equipment where this is otherwise precluded by the carrier's existing policy or, alternatively, to provide a medical oxygen service where the carrier presently does not.
[95] In executing its mandate under the accessible transportation provisions, the Agency, as well as one of its predecessors, the National Transportation Agency, has recognized and considered a number of long-standing principles of accessibility. While these principles are reflected, either explicitly or implicitly, in its past decisions, the Agency finds it important to set out some of these general principles of accessibility in order to permit a better understanding of the obstacle findings that will follow in this Decision.
[96] Persons with disabilities have the same rights as others to full participation in all aspects of society and there can be no doubt that equal access to transportation is critical to the ability of persons with disabilities to exercise that right. Furthermore, the principle of the right to equal access to transportation reflects a recognition that persons with disabilities have the same needs to travel as others - for business, for pleasure, for medical reasons, and the like - and want to have the same travel options that are provided to others, such as those respecting mode of transportation, departure times, cost, and the ability to travel with friends, family or colleagues.
[97] Ideally, all modes of transportation would be fully accessible to all persons with disabilities and equal access would be a reality for all. However, this is not the case. It is intuitively obvious that, as in the rest of society, there are barriers or obstacles to participation inherent in the transportation network that will act to prevent or make access to that network difficult for some people.
[98] Insofar as transportation service providers are aware of the needs of persons with disabilities and are prepared to accommodate those needs, it can be said that persons with disabilities may have equivalent access to the network. Implicit in the use of the term "equivalent access" is the notion that, in order to provide equal access to persons with disabilities, transportation service providers may have to provide different access - more or different services, different facilities or features, all designed to meet the needs of persons with disabilities to ensure that they, too, can access the network.
[99] Fundamental to the concept of accessibility is the notion of independence. Persons with disabilities want as much independence in life as possible and their use of transportation services is no exception; equivalent access to the transportation network involves the ability of persons with disabilities to move through the network with as much independence as possible. This involves the notion of full participation which is the freedom to travel and not be denied travel on the basis of a disability.
[100] The implications of not having independent access are significant in that persons with disabilities will have to be dependent on others to assist them in their travel, whether it be transportation industry workers or, in some cases, their own attendants. In addition, there are a variety of problems that can be associated with assisted access, including human error, inconvenience, delays, affronts to human dignity and pride, cost, uncertainty, and no sense of confidence or security in one's ability to move through the network.
[101] A related principle is that of safe and easy access. In this regard, where there are features specifically designed to meet the needs of persons with disabilities, it is essential that persons with disabilities have safe and easy access to those features.
[102] Another important concept is that of reasonable accommodation which, in the context of the Agency's mandate, refers to the responsibility of the transportation service provider to meet the needs of persons with disabilities "as far as is practicable". In this regard, the Agency's mandate under Part V of the CTA is to eliminate undue obstacles to the mobility of persons with disabilities from the federal transportation network and where a transportation service provider can justify providing something less than equivalent access, then it can be said that it has provided a reasonable accommodation and the Agency would not find an undue obstacle in the accommodation. However, if the Agency finds that the accommodation provided is not reasonable or falls short of what is practicable in the circumstances, then the Agency may find an undue obstacle and may require the taking of corrective measures to eliminate that undue obstacle.
[103] For example, one principle of accessibility that the Agency considers in its balancing of interests is that persons with disabilities should not be economically disadvantaged as a result of their disabilities. Persons with disabilities argue that implicit in the principle of equivalent access is that they should be entitled to travel for the same cost as other persons despite the fact that different and additional services may be required to accommodate their needs. However, this interest of persons with disabilities clearly must be balanced by the Agency against the transportation service providers' operational and financial concerns, including their view that they be compensated for services provided.
[104] To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the cases before it.
Obstacle
[105] The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.
[106] In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.
Undueness
[107] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.
[108] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.
[109] With respect to the Agency's process for considering whether an applicant experienced an undue obstacle, Air Canada notes the following in its October 29, 2001 submission:
In regards to Section 172, which is stated in your letter as being the basis of said complaints, Air Canada respectfully submits that:
...
Such policy not to allow passenger-supplied oxygen cylinders does not constitute an undue obstacle to the mobility of a passenger with disability.
We respectfully request that Agency dismiss the complaints stated above and to declare that Air Canada's policy to refuse passenger-supplied oxygen cylinders on board the aircraft, the requirement of Air Canada to pay fees and the non provisioning of oxygen by Air Canada at airports during lay-overs or for passengers in transit do not constitute an undue obstacle to the mobility of passengers with disabilities.
[110] With respect to these positions, the Agency's obstacle analysis and findings for the first nine issues is with respect to Air Canada's policies and procedures for the provision of medical oxygen and the last issue is regarding WestJet's policies concerning the inability to use passenger-supplied oxygen equipment and the non-provision of a medical oxygen service by WestJet on its transborder and international flights.
Obstacle decision and undueness investigation
[111] The DOT, by way of a notice of proposed rulemaking (hereinafter NPRM), dated September 7, 2005, proposes to amend its rules implementing the Air Carrier Access Act of 1986, 14 CFR part 382, to provide greater accommodations in air travel for persons with respiratory disabilities. This NPRM applies to U.S.A. and foreign carriers operating flights in, to and from the U.S.A. The proposed rule establishes procedures for the carriage and use of portable respiration-related assistive devices and medical oxygen devices aboard commercial flights by passengers with disabilities.
[112] The Agency is aware of the DOT's NPRM with respect to medical oxygen and portable respiration assistive devices on board aircraft, dated September 7, 2005 and that interested parties may submit their comments by January 30, 2006. While the Agency acknowledges that any DOT rulemaking with respect to medical oxygen on board aircraft may impact upon Canadian carriers, the Agency notes that it has the statutory mandate to investigate applications filed pursuant to section 172 of the CTA and in this regard will proceed with its investigation.
[113] The Agency recognises that the issues surrounding the use of medical oxygen on board aircraft are long-standing, complex and multi-faceted, in that they touch on issues relating to accessibility, air safety and health. In light of the importance of this issue to both the air industry and to persons with disabilities who require that medical oxygen be available to them when travelling by air, the scope of this Decision will be limited to the consideration of obstacles that may exist, however, as reflected at the conclusion of this Decision, the Agency will continue its investigation into whether the obstacles found to exist are undue.
ISSUES WITH RESPECT TO AIR CANADA
Air Canada's policies
[114] On December 18, 2000, Air Canada filed a copy of its Central Information Chapter (hereinafter CIC) 57 - MEDA Page 41 - OXYGEN, which reads, in part:
- O2 REQUEST MUST BE MADE AT LEAST 48 HOURS PRIOR DEPARTURE. FOR REQUESTS WITHIN 48HRS, MEDA DESK MUST CONTACT STORES TO DETERMINE IF CAN BE ACCOMMODATED.
[115] However, on October 7, 2002, Air Canada submitted a copy of its CIC 57 - MEDA Page 41 - OXYGEN, which reads, in part:
- OXGN REQUEST MUST BE MADE AT LEAST 48 HOURS PRIOR TO DEPARTURE. OXGN REQUESTS ARE ACCEPTED UP TO 30 DAYS IN ADVANCE.
**CHANGES MADE W/IN 48HRS OF RESERVATIONS WILL REQUIRE AN ADDITIONAL OXYGEN FEE CAD100/USD75.00
Positions of the applicants, Mr. Roberts and Ms. Talsma
[116] Three applicants, as well as Mr. Roberts and Ms. Talsma raise concerns regarding Air Canada's policy that requires that persons who require oxygen request Air Canada's medical oxygen service, including its portable on-board oxygen service, in advance of travel.
[117] Mr. Roberts states that Air Canada's requirement for passengers to provide a 48-hour notice that they will need oxygen for the flight impacts passengers travelling out of the Yukon Territory for medical treatment through the Yukon Territory's Travel for Medical Treatment program and he is particularly concerned that when medical emergencies occur, it is often difficult, if not impossible, to provide Air Canada with a 48-hour notice prior to travelling. Mr. Roberts states that many health care services cannot be provided in the Yukon Territory and that people must be transported to Vancouver or Edmonton on an emergency basis for further treatment or stabilization. Mr. Roberts requests that passengers who require medical oxygen be allowed to use their own oxygen as long as the oxygen equipment meets industry standards. Mr. Roberts notes that this practice was allowed by Canadian Airlines, the carrier that used to operate these routes.
[118] Ms. Talsma supports Mr. Robert's position and notes that a 48-hour notice is not always practical when providing health care services as it is the most severe cases or the individuals requiring immediate attention that are sent outside the Yukon Territory.
[119] Ms. Fulton indicates that she became ill while in Vancouver just prior to the final leg of her return flight to Ottawa. She explains that, as a result, she attempted to make arrangements with Air Canada, three days prior to her flight to Ottawa, for more oxygen that she was likely going to need as she had fluid on her lungs. Ms. Fulton submits that the Air Canada agent advised her that the oxygen was ordered but that she should contact the Meda Desk the day before the flight as all data for the next day would be examined at that time. Ms. Fulton submits that, on March 4, 2000, she contacted the Meda Desk, who indicated that Ms. Fulton had been misinformed as Air Canada needed at least 48 hours to arrange to have an extra oxygen tank sent to Vancouver. Ms. Fulton states that she explained that she had pneumonia and that she would be able to travel but would likely need a little more oxygen. Ms. Fulton states that although the Air Canada agent indicated that she would see what could be done and get back to Ms. Fulton, she did not contact Ms. Fulton before her flight. Ms. Fulton advises, however, that the oxygen supply was sufficient on the flight.
[120] Ms. Fulton submits that while she ultimately received the oxygen, she does not accept that it takes 48 hours to get an oxygen tank to Vancouver and adds that there are many dealers in Vancouver who could fill a tank or Air Canada could rent one.
[121] Mr. Keobke also questions why the air carrier needs a 48-hour notice.
[122] With respect to the use of Air Canada's portable emergency oxygen tanks to allow persons who require medical oxygen to use the onboard washroom, a service that must also be requested in advance, Mr. Foskett asserts that it is difficult for him to use the washroom because his doctor does not want him to disconnect his oxygen during the flight. Mr. Foskett notes that although he has been advised that there are portable emergency oxygen tanks on board the aircraft that could be used to go to the washroom, he has never been offered this option, not even on his eight-hour flight to Hawaii on January 8, 2005, which included a two-hour wait for take-off and six hours of flying time.
Position of Air Canada
[123] With respect to Ms. Fulton's case, Air Canada indicates that when Ms. Fulton called to change her oxygen requirements for her March 5th flight, Air Canada's Meda Desk personnel should have requested a new medical clearance to determine if she was fit to travel. Air Canada adds that notwithstanding this and the short notice involved, the revised oxygen request was actioned and Ms. Fulton was provided with the requested additional oxygen for her flight to Ottawa.
[124] Air Canada regrets that Ms. Fulton was incorrectly advised by a call centre agent to contact the Meda Desk within 24 hours of her flight with respect to her request for additional oxygen. Air Canada states that Ms. Fulton should have been instructed to immediately contact the Meda Desk. Air Canada submits that it normally asks for a 48-hour notice to process medical service requests, however, the carrier makes every effort to accommodate requests made within 48 hours.
[125] With respect to Mr. Foskett's application, Air Canada indicates that when medical oxygen is used on board an aircraft, it is in the form of larger tanks that are installed under designated passenger seats. In addition, Air Canada states that all air carriers are required to have onboard portable oxygen tanks in case of a medical emergency. Air Canada explains that this emergency oxygen supply is part of the "minimum equipment list" and must be on board. Air Canada states that if requested in advance for passengers who require a continuous flow of oxygen, it will, in exceptional circumstances, allow one of the portable emergency oxygen tanks to be used by passengers needing to use the onboard washroom. Air Canada notes that this, however, is not possible on aircraft that have only one portable emergency oxygen tank.
Obstacle analysis
[126] The Agency notes that Air Canada's policy sets out that persons who require a constant supply of oxygen during a flight must request the carrier's medical oxygen service at least 48 hours prior to departure. As Air Canada does not allow personal oxygen tanks as carry-on baggage on its flights, Air Canada's 48-hour notice policy also applies to persons who require that oxygen be available on board a flight in case the need for oxygen arises. The Agency also notes that persons who require the continuous use of oxygen on board an aircraft and the use of portable emergency oxygen tanks to reach the washroom are required by Air Canada to request such service in advance of travel and that Air Canada may, in exceptional circumstances, provide for such accommodation.
[127] While it is clear that Air Canada requires advance notice from passengers who require oxygen on board its aircraft in order that the service can be provided, the Agency notes that the carrier's policies lack clarity in terms of:
- whether there are any exceptions to the 48-hour advance notice period for medical oxygen requests, either with respect to the initial request or subsequent changes;
- whether the provision with respect to changing a request for medical oxygen service applies to 48 hours within reservation time as stated in the policy, or within 48 hours prior to departure;
- whether the additional fee of $100 for changes applies to changes in flow rate, continuous use or matters related to the persons' travel arrangements; and
- what constitutes advance notice for persons who want access to the onboard portable emergency oxygen tanks.
[128] Notwithstanding this lack of clarity with respect to Air Canada's policies and procedures, it is clear that persons who require oxygen to travel by air are unable to make travel arrangements on short notice as Air Canada requires that requests for its medical and onboard portable oxygen service be made in advance of travel. This policy can have a substantial impact on persons with disabilities travelling for medical purposes as there are situations, as set out by Mr. Roberts and Ms. Talsma, when medical emergencies arise, making it difficult, if not impossible, to provide the carrier with a 48-hour notice for oxygen service. Furthermore, while Ms. Fulton was accommodated despite the miscommunication by Air Canada's reservation agent concerning the carrier's policies and procedures, it is the Agency's opinion that persons in such situations would be left to wonder whether they would be able to travel. She did not know whether she would be able to obtain additional oxygen on her flight or whether she would be required to "make do" with the oxygen already ordered. The Agency is aware that the need to travel on short notice is not unique to medical situations. In this regard, as is sometimes the case with persons who do not have disabilities, persons who will need to request Air Canada's oxygen service as part of their travel arrangements due to, for example, family emergencies or business reasons, may also not be able to make reservations more than 48 hours prior to departure.
[129] While the Agency recognizes that persons, whether they have a disability or not, often plan their air travel well in advance of departure dates and that, in some situations, travel for persons with disabilities requires additional planning to ensure the availability of certain accessibility-related services, the Agency also accepts that situations arise, not only for medical needs but also due to life-participation activities relating to employment and leisure, that require persons with disabilities to make their travel arrangements on short notice. The principle of the right to equal access to transportation reflects a recognition that persons with disabilities have the same needs to travel as others - for business, for pleasure, for medical reasons, and the like - and want to have the same travel options that are provided to others, such as the ability to travel on short notice. Air Canada's policy that requires persons to request medical oxygen service at least 48 hours in advance of travel effectively limits the travel options available to them in terms of departure times and the ability to travel with friends, family or colleagues who may book travel on short notice.
[130] In light of the foregoing, the Agency finds that Air Canada's policy that requires that persons request Air Canada's medical oxygen service as well as its portable onboard oxygen service in advance of travel constitutes an obstacle to the mobility of the applicants and to that of persons with disabilities who must have oxygen on board flights.
Air Canada's policies
[131] Air Canada's CIC 57-MEDA, Page 41-OXYGEN, reads, in part:
- CUSTOMERS WHO REQUIRE 02 ARE SUBJECT TO MEDICAL APPROVAL.
- ADVISE CUSTOMER TO CALL THE MEDA DESK AT 1 (514) 369-2907 1 800 667 4732 WITH NAME, PHONE AND FAX NBR OF TREATING DOCTOR (ATTENDING PHYSICIAN).
MEDA DESK PROCEDURE**
- SEND FFT (FITNESS FOR TRAVEL FORM) BY FAX TO TREATING DOCTOR.
- ONCE COMPLETED FFT FORM IS RECEIVED FROM TREATING DOCTOR, PROCESS MEDICAL APPROVAL AND DETERMINES 02 FLOW REQD IN LITRES PER MINUTE (SEE COMPLETED FFT FORM).
Positions of the applicants
[132] Mr. McMartin, Mr. Kimelman, Ms. Gould and Ms. Willis raise concerns regarding Air Canada's policy requiring passengers to provide an Air Canada FFT form completed by their physician, for approval by Air Canada's Meda Desk, in order to receive medical oxygen on board Air Canada's flights.
[133] Mr. McMartin submits that he and his wife wanted to travel to Vancouver for their granddaughter's university graduation in the spring of 2001 but that they did not go because it was too late for their doctor to send medical information to Air Canada. Mr. McMartin states, however, in an earlier letter submitted to his Member of Parliament, that he was advised by Air Canada that Mrs. McMartin would not be able to use her own oxygen equipment and that Air Canada does not supply oxygen from Castlegar or on any feeder lines, but only on main lines. Therefore, Mr. McMartin and his wife were unable to travel with Air Canada from Castlegar to their granddaughter's graduation.
[134] Mr. Kimelman objects to the need to seek the carrier's approval and to the nature of the information needed by Air Canada before he is able to avail himself of the carrier's oxygen service. Mr. Kimelman states that when he booked a flight to travel from Winnipeg to Vancouver he was informed by an Air Canada agent that the Meda Desk must ascertain from his physician, prior to travel, what other medical problems he may have. Mr. Kimelman is of the opinion that all that Air Canada needs to know is how much oxygen per minute he may require and he adds that his physician will supply this data and certify that there are no other medical problems of concern to Air Canada. He suggests that rather than requiring that a request for oxygen be forwarded to the carrier's Meda Desk for approval, Air Canada should simply accept his respirologist's statement that he needs oxygen. Mr. Kimelman states that it is just more superfluous paper work to generate more revenue for the air carrier.
[135] Ms. Gould and the N.W.T. Council, on her behalf, seek a permanent file for Ms. Gould to avoid having her doctor complete Air Canada's FFT form, at an additional cost, every time she travels. The cost of the medical certificate was also raised by Ms. Willis, who points out that the $50 fee for obtaining a doctor's certificate results in a further expense when purchasing Air Canada's oxygen service. The N.W.T. Council adds that the repeated requirement that Ms. Gould's doctor certify her need for oxygen seems to be an unnecessary drain on the Canadian medical system, as well as an unnecessary inconvenience to consumers.
[136] Ms. Gould points out that her doctor has completed the same form for approximately 5-6 years, with the same information such as dosages. She states that Air Canada's Meda Desk has repeatedly been asked to establish a permanent file and simply note information such as her requirement for two litres per minute of oxygen. Ms. Gould points out that, although her doctor has checked off the box on Air Canada's form to recommend that a permanent file be set up, the Meda Desk continues to require them to go through the same process on every trip. She indicates that the rate of oxygen that she requires on flights has never changed and, should this happen, the Meda Desk will be the first to be notified.
[137] Ms. Gould suggests that there must be a simple and effective way to have her name and medical needs entered into Air Canada's files so that she does not have to have a new medical certificate signed by a doctor prior to each booking; she recommends an annual medical certificate. The N.W.T. Council suggests that consumers could be issued a card that they would provide to the carrier or booking agent when flight arrangements are made.
[138] Although Mr. Foskett does not specifically raise the issue of being required to provide an FFT form, the Agency notes that Mr. Foskett's Passenger Name Record (hereinafter PNR) states, in part:
APPRVD PERM...OXGN 2LPM WCHR
ADVD MR FOSKETT AS OF JUN 2005 NO MORE PERM FILE FOR OXGN USER...PASSENGER DOES NOT USE OXGN AT HOME..YMQRTSU20JUL
[139] Ms. Willis raises concerns regarding the cost of having to provide a doctor's certificate to Air Canada.
Position of Air Canada
[140] Air Canada did not submit comments with respect to Mr. Kimelman's assertion that the carrier does not need to know about other medical conditions that passengers who require oxygen may have. Air Canada submits, in its August 3, 2005 submission, that persons stating that they require oxygen must be medically assessed in order to determine their fitness to travel with or without conditions. Air Canada explains that this assessment is done in the interest of the subject passengers as well as all other passengers on the flight as accepting a passenger that would not be fit to travel in the particular conditions of an aircraft environment could force the aircraft to make an unscheduled landing.
[141] Although Air Canada stated in a letter dated December 23, 1999 that frequent travellers are offered the option of a permanent file, Air Canada subsequently indicated in a submission dated July 31, 2000 that this information was not accurate. Air Canada states that after further consultations, it was advised by its Meda Desk that the oxygen needs of most customers fluctuate over time and need to be periodically reviewed by its physician. Air Canada points out, however, that in light of Ms. Gould's very valid comments, it reviewed and modified its Permanent File policy to now offer customers who will always need oxygen on board the possibility of opening a permanent file with the Meda Desk and, consequently, Air Canada indicates that Ms. Gould may now have a permanent file. Air Canada simply asks that she advise it if her oxygen requirements ever change.
[142] With respect to Mr. Foskett's case, in its August 12, 2005 submission, Air Canada explains that following his January 2005 travel, Mr. Foskett travelled again on June 2, 2005 and held a reservation for September 20, 2005. Air Canada adds that Mr. Foskett received his first medical clearance from the Air Canada Occupational Health Service through the Meda Desk for the flight in January 2005 and this clearance remained valid. Air Canada advises, however, that, in the event that Mr. Foskett requires constant oxygen, which was not indicated on the file, this would mean that his condition has changed since his first medical clearance and, as such, a new FFT form would need to be completed by his physician. Air Canada also filed a copy of Mr. Foskett's PNR which reads, in part:
APPRVD PERM...OXGN 2LPM WCHR
ADVD MR FOSKETT AS OF JUN 2005 NO MORE PERM FILE FOR OXGN USER...PASSENGER DOES NOT USE OXGN AT HOME...YMQRTSU20JUL
Obstacle analysis
[143] The Agency notes that Ms. Gould mentions the inconvenience of having to repeatedly ask her doctor to complete Air Canada's FFT form. In July 2000, Air Canada stated that it modified its policy by offering customers who always need oxygen on board, the possibility of opening a permanent file. However, the Agency is aware of comments inputted by Air Canada personnel into Mr. Foskett's PNR dated July 20, 2005, which state that a permanent file may not be available, and, as such, it is unclear whether Air Canada continues to offer the opportunity to create a permanent file to persons who require medical oxygen when travelling by air or whether Air Canada was simply cancelling Mr. Foskett's permanent file as a result of changes that the carrier may have perceived in his health condition and/or need for medical oxygen.
[144] As pointed out by Ms. Gould and Ms. Willis, Air Canada's requirement that the FFT form be completed by a physician results in an additional cost to the person if the physician imposes a fee for such a service. Ms. Willis states that the cost of having one's doctor submit medical certificates to the carrier is $50. The Agency is of the opinion that this cost, when added to the other costs associated with travelling with oxygen, can be a disincentive to travelling.
[145] Air Canada's policy concerning medical approval limits travel options available to persons who use oxygen in terms of departure times as it compromises a person's ability to travel on short notice. As a result, persons like the McMartins may be unable to travel because they have not booked their flight early enough to have the FFT form filled out by their physician and approved.
[146] The Agency notes the concern raised by Mr. Kimelman with respect to the level of information about other medical conditions which he states is needed by Air Canada for passengers who require oxygen. In this regard, the Agency is aware of the right to privacy of individuals, including persons with disabilities, with respect to their personal information that is collected, used or disclosed by an organization.
[147] The Agency notes that Air Canada's FFT form provides for the disclosure of personal health information including: age; the date of "onset of present illness, episode or accident and treatment"; the nature and date of any surgery; bladder and bowel control; if "patient" is not medically fit to travel, the patient' s need for a private escort to assist on board with meals, visiting the washroom or administering medication; wheelchair requirements; cardiac condition; chronic pulmonary condition; and psychiatric condition.
[148] While the Agency notes that the FFT form does not set out the nature of the information that is needed to allow Air Canada to process a person's request for its medical oxygen service, to the extent that Air Canada requires the disclosure of information that goes beyond that which is required in order for it to determine a person with a disability's requirement for onboard medical oxygen, the Agency is of the opinion that this can cause anxiety or embarrassment. Furthermore, disclosure of personal information of a medical nature, that is not needed by the carrier can cause concern to all persons, including persons with disabilities, and be viewed as an infringement of one's right to privacy.
[149] In light of the foregoing, the Agency finds that Air Canada's requirement that FFT forms be completed by the physicians of persons who use oxygen, including the related cost and the level of information to be disclosed, constitutes an obstacle to the mobility of Mrs. McMartin, Mr. Kimelman, and Ms. Gould and to that of persons with disabilities who require medical oxygen when travelling by air.
Air Canada's policies
[150] Air Canada's CIC 57 reads, in part:
OXYGEN FEE**
- CAD100.00/USD75.00 02 fee applies to all destinations.
- GST does not apply to the 02 fee, regardless of itinerary.
- Fee applies from point of origin to destination, or point of stopover, or interline connecting point, whichever comes first.
- Oxygen fee is non-refundable within 48 hours of departure
- changes made within 48 hours of reservation will require an additional oxygen fee $100.00
Positions of the applicants, Ms. Talsma and Mr. Roberts
[151] The majority of the applicants, as well as Mr. Roberts and Ms. Talsma, raise concerns regarding the cost of Air Canada's oxygen service.
[152] Fourteen applicants simply state that the cost of Air Canada's oxygen service is a concern for them. (Mr. and Mrs. Wright, Mr. and Mrs. Atkinson, Mr. and Mrs. Keobke, Mrs. Kovac, Ms. Bryce, Ms. Geddes, Ms. Walker, Ms. Wood, Mr. Toth, Ms. Bryce, and Ms. Smith) However, other applicants expanded on their concerns with respect to the $100 fee each way charged by Air Canada for oxygen service. Mr. Kimelman and Ms. Gould submit that they paid $107 each way while Ms. Rafferty submitted invoices indicating that she was required to pay $115 each way, a $100 fee plus PST and GST. Furthermore, two applicants who travelled in 2005, Ms. Ridout and Mr. Foskett, assert that they were required to pay $150 each way for their oxygen service.
[153] Some applicants raise compounding factors with respect to the basic cost of $100. For example, Ms. Gould asserts that she was required to pay an additional fee as a result of a stopover in her itinerary. In addition, Mr. Kimelman points out that although he may require oxygen to travel, he must pay in advance for the service to be available if required, however, if he does not use the tank, Air Canada will sell the same unused tank to someone else and Mr. Kimelman is of the opinion that this practice is "gouging". In the same regard, Ms. Gould is of the opinion that if the oxygen service is not delivered, compensation or a refund should be made.
[154] Mr. Toth submits that the $100 fee charged each way affects many Canadians as it places a financial burden and undue obstacles on families already shouldering additional medical expenses. Mr. Toth also points out that this "surcharge" was a contributing factor that prevented his wife from travelling with him to Toronto in the fall of 2001. Mr. Toth states that Mrs. Toth did not travel with him because of the costs and because of the discriminatory treatment by Air Canada.
[155] Ms. Gould expresses the opinion that the total cost of oxygen without stopovers for a return flight from Yellowknife to anywhere in Canada is an extraordinary burden on persons with disabilities as it would make travel unaffordable for many and could potentially impact work-related opportunities. Ms. Gould submits that the cost of oxygen should be eliminated or drastically reduced to make air travel financially accessible to persons with disabilities who live in remote areas of the country with fewer transportation options.
[156] Ms. Ridout asserts that she is distressed at the cost because she cannot afford it as she is legally blind and her only source of income, for some time, has been the Canada Pension Plan Disability Allowance. She submits that if she had known in advance what the trip was going to cost her, she never would have taken the trip. Ms. Ridout states that the $300 that she paid for oxygen service was more than the $259 cost of the ticket itself, and both she and Ms. Geddes indicate that they feel that this cost is "outrageous". Mrs. Willis submits that she cancelled her trip due to the additional cost of oxygen service.
[157] Mr. Roberts submits that Air Canada's fee for oxygen service impacts passengers travelling out of the Yukon Territory for personal reasons as well as those who travel for medical treatment through the Yukon Territory's Travel for Medical Treatment program and he states that Air Canada's policy increases the cost of accessing much needed medical services in the south.
[158] Mr. Toth also states that it costs about $16 for a 10-hour oxygen tank and, at this cost, it is about $1.60 per hour, depending on the flow rate. Mr. Toth points out that, at the flow rate of 2.5 litres per minutes that his wife used, the oxygen for a flight from Regina to Toronto would cost in the vicinity of $4.80 while the oxygen for a flight from Toronto to Copenhagen, Denmark would cost around $13.
[159] According to Mr. Toth, two oxygen suppliers who claim to supply Air Canada's oxygen informed him that the "E" tanks that he received were the same tanks that Air Canada supplies at a $100 charge. Mr. Toth also explains that in Saskatchewan, the "E" tanks used by his wife cost $16 to fill with medical oxygen, $6 a year to meet United States Pharmacopeia's tank standards and possibly $16 to have a tank brought to the airport. This totals $38, and would have provided his wife with 10 hours of oxygen, which would have been enough to travel from Regina to Toronto. Mr. Toth expresses the opinion that Air Canada's demand of $100 for what would have cost it at most $38 is unacceptable and that Air Canada's fee of $100 does not reflect an honest portrayal of costs and is exorbitant, unjustified and discriminatory.
[160] Mr. Toth states that the insulting and discriminatory charge of $100 each way for what Air Canada identifies as covering the costs of purchasing, stocking, testing, and supplying the equipment is simply not acceptable or constitutionally supported. Mr. Toth expresses the opinion that Air Canada's fees for oxygen greatly exceed the cost of medical oxygen being used daily by persons with disabilities and the costs need not be incurred by Air Canada as persons who use oxygen daily are trained to use the equipment. He adds that if Air Canada allowed them to bring their own equipment, it would not have to handle or store medically prescribed oxygen and charge 25 times the price charged by oxygen suppliers.
[161] Mr. Kimelman and Ms. Smith express concerns similar to those raised by Mr. Toth. Specifically, Mr. Kimelman states that Air Canada's charge for its medical oxygen service is consistently higher than the charge of $26 from the medical suppliers. Ms. Smith states that she could have made her entire trip for the cost of $15 with no inconvenience or embarrassment. Ms. Smith submits that as a person with a disability, she should have the right to travel to visit her grandchildren without all the extra costs and inconvenience of Air Canada's new policy.
[162] Some applicants assert that Air Canada's charge is unreasonable given the policies of other carriers to either permit people to bring their own oxygen on board at no cost or to provide oxygen service at less cost to the passenger. Ms. Talsma submits that Canadian Airlines permitted passengers to carry their own oxygen on board the aircraft, but that Air Canada has disallowed this and its $100 fee each way to provide oxygen impacts passengers travelling from the Yukon Territory for personal and medical reasons. Further, Ms. Talsma notes that Canada 3000 charged $85 to provide oxygen and it provided passengers with oxygen continuously while awaiting connecting flights.
[163] With respect to fees charged by other carriers, Mr. Toth points out that although Air Canada submits that the fee that it charges for oxygen is in line with fees charged by other carriers in North America, this is not true as WestJet does not charge and allows passengers to bring their own medical oxygen on board. Ms. Wood states that persons who use oxygen and travel with any other Canadian air carrier are not charged a fee in addition to their air fare. Mr. Kimelman questions why Northwest Airlines, Inc. can supply oxygen at no cost to the passenger.
[164] Ms. Ridout and Mr. Kimelman submit that they are prepared to pay a nominal fee for a carrier-supplied oxygen service; however, other applicants are of the view that Air Canada should provide this service free of charge to passengers. For example, Ms. Rafferty expresses the opinion that Air Canada's fee is unfair and may contravene human rights laws as Air Canada is responsible for accommodating persons with disabilities "to the point of undue hardship." In Ms. Rafferty's opinion, there is no undue hardship with respect to this matter. Consequently, Ms. Rafferty submits that the carrier should pay for the oxygen service. Ms. Willis maintains that if Air Canada does not want passengers to carry their own oxygen, it should provide the service at no charge.
[165] Some applicants compare the services that are provided free of charge to other persons with disabilities and object to the fact that persons who require medical oxygen when travelling by air are treated differently. For example, Ms. Gould questions whether passengers who use wheelchairs and those with special dietary requirements are charged an extra fee for the services they receive from Air Canada. Ms. Wood indicates that "diabetics receive special meals without additional cost" and passengers who use wheelchairs receive extra service without additional cost. Ms. Ridout and Mr. Toth also refer to the same issue and Mr. Toth points out that Air Canada will not stop passengers at the entrance to the aircraft and inform them that their pacemaker is not allowed and that they will have to replace it with one that Air Canada supplies, at a cost of $100 each way. Further, Ms. Wood states that Air Canada's fee is levied against one class of persons with disabilities, and not others, and is highly discriminatory and a financial hardship.
[166] Several applicants assert that the solution to this problem would be to permit passengers to bring their own oxygen on board aircraft. Ms. Wood addresses "how unnecessary it is for Air Canada to fear passengers who use oxygen, by explaining how simply and perfectly a competitor airline deals with the situation...it is easy to travel with this other airline, which also saves the company and passengers money by not having an expensive branch to administer it." Ms. Wood indicates that during a conversation with an Air Canada employee in September 2001 with respect to the reason for not being allowed to use her own oxygen supplier's oxygen tanks, the employee was at a loss and said that Air Canada has a branch set up for that.
Position of Air Canada
[167] Air Canada states that it has developed an internal procedure to supply customers with oxygen on most of its flights for a fee and that the fee is reflective of the costs incurred by air carriers to provide the service.
[168] Air Canada states that air carriers can meet the needs and demands of most passengers requiring additional services and/or equipment; however, in keeping with most member air carriers of IATA, Air Canada determined that a fee was appropriate to cover the costs associated with purchasing, stocking, testing and supplying the oxygen equipment to safely provide the requested service.
[169] Although Air Canada acknowledges that the additional charge for oxygen may be a financial burden to some customers, it feels that it is unrealistic for travellers to demand that air carriers incur all costs associated with providing these additional services. Air Canada explains that, as a private entity, it must aim to ensure the long-term fiscal health of the company, which is necessary for the benefit of its clients, its employees, shareholders and creditors. Air Canada states that the demise, at that time, of yet another carrier serves to illustrate that they operate, at great cost, scheduled flights that are made available daily and year round regardless of passenger load. Air Canada asserts that no individual or corporation can be expected to provide services or products while incurring financial losses.
[170] Air Canada indicates that although the fee is set at a level aimed at recovering the carrier's cost of providing the service without making a profit, in fact, in 2000 these fees were insufficient by $250,000 to cover the costs of the provision of oxygen service.
[171] Air Canada indicates that the fee levied is not only for the use of the oxygen but is also intended to cover the cost of bringing the tanks to the aircraft, having them available, refilling them and re-certifying them. On the basis of the range of services that Air Canada's fee is intended to cover, Air Canada asserts that it should not be required to refund the fees should the passenger making the request decide in flight not to use the oxygen, as the costs of handling have been incurred nonetheless.
[172] Air Canada also submits that the fees that it charges for the provision of oxygen are in line with other carriers in North America providing similar networks. Air Canada states that as its oxygen fee applies to the point of destination, stopover, or the interline connecting point, whichever comes first and that, Ms. Gould was charged an extra $100 fee due to the addition of a stopover to her itinerary. Air Canada indicates that customers travelling with a U.S.A. carrier will most likely pay a fee for oxygen on each flight segment.
[173] In addition, Air Canada explains that it keeps a certain quantity of oxygen tanks on board its aircraft for emergencies. While these are available on all aircraft, the processing of portable emergency oxygen tanks is very different from that of the medical oxygen service, which is provided only upon request. Air Canada further explains that the provision of oxygen for customers with medical conditions follows a process involving seven of Air Canada's operational areas: Meda Desk, Medical Clinic, Stores, System Operations Control, Aircraft/Cabin Services, Weight and Balance and In-Flight. Therefore, its cost structure for the medical oxygen tanks is very different than that for the portable emergency oxygen tanks as the ordering and delivering processes are much more complex.
[174] Air Canada sets out in Chapter 14 of its In-Flight Publication No. 70 - Customer Service - Ramp Operations that each area must take responsibility for its role in the process in order to successfully deliver oxygen to passengers who have requested it. Air Canada sets out the following procedures in this regard:
1. Meda desk
Makes passenger flight arrangements and obtains approval from the corporate medical officer. Advises Dorval Stores of the passengers' travel arrangements.
2. Dorval Stores
Prepares oxygen, updates CIC*183/25 and sends a teletype to STOC. Includes the passenger name, seat #, litres per minute and # of units on the Medipak case. Ensures that Medipak units are at the right flight at the right time.
3. STOC
Confirms the delivery of Medipaks with Stores and ensures that the responsible employee brings the units to the aircraft. Optional: monitors CIC*183/25 and inputs Medipak information on the operations screen.
4. Airport Services
Brings the oxygen to the aircraft and securely straps the units in the designated overhead bin positions or places them under the pre-assigned seat. Advises Load Agent that oxygen has been boarded (to ensure that it appears on offload sheet).
5. Weight & Balance
Puts Medipak details on the off-load sheet.
6. In-Flight - In Charge
When passenger is travelling with oxygen, verifies that unit is in place before passengers board the aircraft and briefs the crew.
Advises STOC if unit is not in place.
Ensures that unit is turned off after passenger disembarks and leaves the unit in place.
[175] In its answer to Mr. Foskett's application, Air Canada filed a copy of Mr. Foskett's PNR for his trip from Victoria via Vancouver to Honolulu, which shows a payment of $200 and a note seeking clarification as to whether the oxygen fee should be $300 or $200. Another entry on the same date indicated that, given the timing of the opening of the file, they were using the previous oxygen fee of $200.
Obstacle analysis
[176] The Agency is of the opinion that Air Canada's policy of charging $100 or more for oxygen service each way has a substantial impact on persons with disabilities who require that oxygen be available when travelling and, specifically, that the oxygen fee significantly increases the cost of travel for persons who require oxygen when they travel, as illustrated by Ms. Ridout's case where the fee charged for medical oxygen service was greater than the cost of her ticket. The Agency accepts the evidence of the applicants that, for some persons, it may be difficult, or impossible, to travel because of this additional fee, thus preventing some persons who require that medical oxygen be available when travelling by air, from travelling altogether. Although it has not been specifically raised by the applicants, the Agency notes that the non-refundable nature of the oxygen fee within 48 hours of departure and the change fee imposed by Air Canada if changes are made within 48 hours of reservation significantly increase the cost of the service should a person who requires oxygen make a last minute cancellation or make a change shortly after the reservation is made.
[177] The Agency notes that as a result of these fees, travel-related opportunities for activities relating to employment, leisure, medical care and for emergencies may be reduced for persons who require that medical oxygen be available when travelling by air. The Agency further notes that for applicants who live in remote areas, their dependence on air travel may be greater due to a lack of realistic alternate modes of transportation, such that the impact of the cost of Air Canada's oxygen service may be more pronounced for them.
[178] Underlying Part V of the CTA is the acceptance of the fundamental principle that persons with disabilities have the same rights as others to full participation in all aspects of society and there can be no doubt that equal access to transportation is critical to the ability of persons with disabilities to exercise that right. The principle of the right to equal access to transportation reflects a recognition that persons with disabilities want to have the same travel options that are provided to others, including cost. Persons with disabilities submit that implicit in the principle of equivalent access is that they should be entitled to travel for the same cost as other persons despite the fact that different and additional services may be required to accommodate their needs.
[179] In this regard, the Agency is of the opinion that Air Canada's policy to charge $100 or more each way for oxygen service, as well as a $100 fee for changes made within 48 hours of reservation, represents an economic disadvantage arising directly from the person's disability, which effectively limits the travel options available to persons who require that oxygen be available when travelling by air. In addition, in some cases, the person may be unable to travel as a result of this fee as was the case of Ms. Willis who cancelled her trip as a result of the cost of the oxygen service. Furthermore, as persons with disabilities are statistically more likely to be in lower income brackets, the economic impact on persons with disabilities with respect to the costs imposed is that much more pronounced as this group of people would appear to be generally less able to absorb this monetary impact.
[180] Therefore, in light of the above, the Agency finds that Air Canada's policy on oxygen fees constitutes an obstacle to the mobility of the applicants who raised this concern and to that of persons with disabilities who require that medical oxygen be available when travelling by air.
Non-provision of medical oxygen prior to departure, during stopovers/connections, and upon arrival
Air Canada's policies
[181] Air Canada's CIC 57, page 41 - OXYGEN states, in part:
- persons who require continuous oxygen (also need oxygen on the ground) are responsible to make their own arrangements ahead of time for ground oxygen supply (before boarding, at connecting points and on flight arrival);
- some customers will use their own oxygen cylinder while others will make ground arrangements with a local oxygen supply;
- personal oxygen cylinders will not be accepted as carry-on baggage;
- personal oxygen cylinders can only be accepted as checked baggage provided cylinders are empty
[182] Air Canada's "Onboard Oxygen / Medipak" guidelines for customers state, in part:
PRIOR TO YOUR FLIGHT DEPARTURE:
Air Canada will supply oxygen onboard the aircraft only. Should you need continuous oxygen, we ask that you make your own arrangements ahead of time for ground supply (before boarding, at connecting point(s) and on flight arrival). Please inform our Medical Desk representative of those arrangements.
AT THE AIRPORT:
As a continuous oxygen user, the Customer Service Agent will escort you to your aircraft seat and remove your personal oxygen cylinder. It will be emptied and sent as checked baggage or alternatively retrieved by your supplier as previously arranged by you.
Our personnel will deliver the Medipak(s) to the aircraft and place one at your seat.
UPON ARRIVAL
Prior to deplaning, the flight attendant will assist you to remove the mask, or humidifier and turn off the valve of the Medipak
As a continuous oxygen user, a Customer Service Agent will meet you at your seat with your oxygen cylinder based on your previous arrangements.
Positions of the applicants, Mr. Roberts and Ms. Talsma
[183] Many applicants, as well as Mr. Roberts and Ms. Talsma, raise concerns regarding the non-provision of medical oxygen prior to departure, during stopovers/connections, and upon arrival.
[184] Mr. and Mrs. Atkinson, Mr. and Mrs. Keobke, Mr. and Mrs. Wright, Mr. and Ms. Kovac, Ms. Geddes, Mr. Roberts, Ms. Talsma, Ms. Walker and Mr. Toth raise concerns about difficulties related to the non-provision of oxygen by Air Canada during stopovers/connections and upon arrival. Many question what a person is supposed to do between connecting flights and why Air Canada does not allow persons to use their own oxygen equipment for the entire trip, including in airports where the carrier does not provide oxygen service.
[185] Ms. Walker submits that when she was planning her trip from Regina to Ottawa, she was advised that in the event that she would have to change aircraft, she would have to contact an oxygen company to supply her with oxygen as Air Canada would not allow the use of its oxygen tanks between flights. Ms. Walker states that oxygen companies could provide "horror stories" about Air Canada forgetting to order the tanks that are to be brought to an aircraft and how that impacts on the passengers, and adds that, as a result, she made her travel arrangements with WestJet. Ms. Walker indicates that she was able to travel with WestJet using her own oxygen equipment, which was easily placed in a sleeve and strapped into the track on the floor of the aircraft.
[186] Mr. Roberts submits that Air Canada's policy poses a serious health risk to individuals from the Yukon Territory who use oxygen as they will not have access to oxygen upon leaving the aircraft and that many flights arrive after business hours, making it difficult for people to access oxygen suppliers prior to the next business day. Mr. Roberts further points out that for passengers who must wait for a connecting flight, it is essential that they carry their own oxygen supply for use between flights as obtaining these services from a third party is very inconvenient, potentially life threatening in the case of an error, and will add significantly to the cost of travelling. Mr. Roberts asserts that not only does this policy increase the cost of accessing much needed medical services in the south, it will impact directly on people's ability to travel safely.
[187] Ms. Talsma notes that Air Canada will not allow passengers to continue to use the oxygen for which they paid $100 while they await a connecting flight at the Vancouver airport. Ms. Talsma states that passengers are expected to make arrangements with a local oxygen supplier in each of the three cities (Vancouver, Edmonton and Calgary) and these suppliers will service their patients at the airport and rent equipment for them for the duration of their stay.
[188] Ms. Talsma echoes Mr. Robert's concerns that many of the flights from the Yukon Territory arrive after normal business hours, which greatly inflates the price of oxygen services. She adds that the same difficulty occurs for passengers travelling on weekends. Ms. Talsma indicates that the very least that Air Canada should be willing to do is to allow passengers to use their own oxygen equipment while awaiting connections.
[189] Ms. Keobke points out that the need to make arrangements to have someone meet persons who use oxygen at the airport to ensure that they have oxygen upon deboarding is an inconvenience and is not fair to anyone.
[190] Ms. Kovac states that flights are not always on schedule and that this poses a problem for people who need oxygen at all times. With respect to Mr. Kovac's round trip travel between Whitehorse and Vancouver, Ms. Kovac notes that the oxygen required for her husband in Vancouver had to be delivered to their lodging by West Care Medical; 12 mini bottles and an oxygen concentrator were delivered and Mr. Kovac used 6 of the mini bottles. Ms. Kovac states that the Williamson's Ambulance picked her and her husband up at 6:00 a.m. for their 7:55 a.m. return flight to Whitehorse. Ms. Kovac explains that as their flight was delayed until about 9:00 a.m., the ambulance waited with her and her husband so that he could use the oxygen until they departed.
[191] Ms. Gould states that when she arrived in Edmonton on January 29, 2000, en route to Vancouver from Yellowknife, there was no oxygen for her use during a lengthy connection, which the N.W.T. Council explains was due to the unavailability of Ms. Gould's pre-requested oxygen for her 10:30 a.m. connecting flight to Vancouver. The N.W.T. Council indicates that Ms. Gould therefore had to wait for three flight arrangements to be made and was not able to depart until approximately 2:30 p.m.
[192] Ms. Smith notes that the Whitehorse Respiratory Service, which she deals with, does not have outlets in other areas. She indicates that she has sought out other small companies in Vancouver and Victoria where she can refill her oxygen tanks as Medigas and other big companies were not willing to accommodate her needs. With respect to her trip from Whitehorse to Victoria via Vancouver on August 26, 2001, Ms. Smith indicates that she had to make her own arrangements to have oxygen for her use from her home onto the aircraft in Whitehorse, between flights in Vancouver and from the Victoria Airport to her destination in Sidney, British Columbia. Ms. Smith explains specifically that she arranged to have her husband accompany her on the aircraft with portable oxygen until she was hooked up to Air Canada's oxygen supply. In addition, she arranged to have oxygen delivered to the Vancouver airport by Airgas for her two-hour connection, for which she had to pay a higher weekend rate of $158.00. Finally, she arranged to have her daughter bring her oxygen to the Victoria airport.
[193] Mr. Toth notes that according to Air Canada's regulations, his wife would have had to be at the departure lounge 1 hour before departure and she was required to use her own oxygen tank. However, Mr. Toth notes that prior to boarding, the oxygen tank must be emptied of its contents, which would have cost Mr. and Mrs. Toth $21 for the 10-hour oxygen tank. Further, Mr. Toth notes that as Air Canada's oxygen is provided only on board the flight, his wife would not have had oxygen to go down the ramp to her seat or upon arrival at their destination as she would have been disconnected from Air Canada's oxygen source before deboarding and her tank would have been empty. As such, Mrs. Toth would have had no oxygen as she left the aircraft and entered the arrival area, which would have caused her considerable distress.
[194] Mr. Toth questions how Air Canada expected his wife to have oxygen during boarding and deboarding, having been required to purge her tank before boarding. Mr. Toth questions what she was to have done with an empty oxygen tank when she would have arrived at the airport. He submits that he and his wife simply wanted to proceed to their departure gate with his wife receiving assisted breathing with her own equipment; walk the ramp by themselves; and take their seats as others do. Mr. Toth points out that other air carriers either strapped Mrs. Toth's tank vertically beside her or under the seat and that it never interfered with other passengers or the crew.
[195] Ms. Nielsen submitted that Air Canada's policy makes boarding and deboarding difficult as Air Canada will not assist with oxygen in airports where passengers are transferring, nor will it let passengers bring their own oxygen for that purpose. Ms. Nielsen indicated that during a trip with her husband from Vancouver to Hawaii with Air Canada in March 2001, she had to arrange to have an oxygen supply company in Hawaii board their flight at 11:30 p.m. to deliver oxygen so that she could deboard. She added that upon their return to Vancouver, they had to make special arrangements with Canada Customs to allow someone through to provide her with oxygen to deboard. Ms. Nielsen indicated that, at the time of the filing of her application, they had been in the process of planning another trip, which involved two flights with Air Canada, and that they faced the same problems. Ms. Nielsen submitted that Air Canada does not seem to care that its policy makes travelling on its aircraft very inconvenient.
Position of Air Canada
[196] Air Canada submits that, as a carrier, it does not control the availability of oxygen service providers at the different airports in Canada. Air Canada adds that its furnished tanks are controlled and their use and settings are designed to be monitored by Air Canada personnel. Air Canada submits that the unmonitored use of these tanks during layover, prior to taking a flight or during a connection, would jeopardize such control. Moreover, Air Canada requests that the Agency dismiss the oxygen-related applications and declare that Air Canada's policy to, among other matters, not provide oxygen at airports during layovers or for passengers in transit, does not constitute an undue obstacle to the mobility of persons with disabilities.
Obstacle analysis
[197] Fundamental to the concept of accessibility is the notion of independence. Persons with disabilities want as much independence in life as possible and their use of transportation services is no exception; equivalent access to the transportation network involves the ability of persons with disabilities to move through the network with as much independence as possible.
[198] The implications of not having independent access are significant in that persons with disabilities will have to be dependent on others to assist them in their travel, whether it be transportation industry workers or, in some cases, their own attendants. In addition, there are a variety of problems that can be associated with assisted access, including human error, inconvenience, delays, affronts to human dignity and pride, cost, uncertainty, and no sense of confidence or security in one's ability to move through the network.
[199] In this respect, Air Canada's policy creates circumstances where passengers, who would otherwise have wanted to travel with their own oxygen equipment, are forced to rely upon a complex network of outside services, attendants and/or family and friends to ensure that their need for oxygen is met prior to departure, during connections/stopovers and upon arrival, such that they are unable to independently access the transportation network.
[200] With respect to concerns raised by some applicants regarding the non-availability of oxygen prior to connecting to Air Canada's oxygen service at departure, during connections/stopovers and upon arrival at destination, the Agency notes that Air Canada's policy provides that its personnel will escort passengers to the aircraft seat and remove their personal oxygen tank, which will be emptied and sent as checked baggage or alternatively retrieved by the passengers' supplier as previously arranged. Similarly, Air Canada personnel will, upon flight arrival, meet passengers at their seat with oxygen as previously arranged by passengers. Furthermore, Air Canada has a process in place to address situations where persons requiring continuous oxygen experience a delayed or cancelled flight. In these circumstances, Air Canada's policies and procedures provide that persons requiring continuous oxygen do not have to be without oxygen at any time. (Specific concerns raised by the applicants with respect to the failure by Air Canada personnel to apply these policies and procedures will be addressed under sub issue No. 4 of the "Reliability" section of this Decision)
[201] The Agency does acknowledge, however, the expressed frustration with the fact that arrangements must be made to have oxygen available during connections/stopovers and upon arrival, and to have tanks picked up if they do not travel with passengers. These arrangements are inconvenient and result in additional costs to persons who must pay a local oxygen supplier to provide the oxygen that they need. Furthermore, the Agency notes that where oxygen is needed for connections/stopovers or arrivals outside of business hours, arranging for the provision of oxygen services becomes increasingly costly and logistically difficult. The Agency also recognizes the difficulties that may arise when friends, relatives or oxygen service providers are required to pass through security and/or customs to deliver oxygen equipment, and that such arrangements may not be tenable in all circumstances such as those experienced by Ms. Nielsen. Clearly, Air Canada's policy that restricts the availability of its medical oxygen service to its flights significantly complicates the trip planning process for persons who also require oxygen outside the aircraft.
[202] Reliance on oxygen means that people require the administering of medical oxygen in order to carry out the most basic and necessary of human functions, breathing. For people who require continuous oxygen, gaps in service or service failures can have very serious health implications, including death. Under the circumstances, many applicants are understandably anxious about losing control over the systems that they rely on for the delivery of oxygen and turning over responsibility to third parties for the delivery of this critical service. Furthermore, the greater the number of third parties who must be involved in the delivery of oxygen, the greater the uncertainty of persons and the greater the risk of error and as a consequence, the greater the anxiety - to the point that some people may choose not to accept the risks to travel by air under those circumstances. In the case of Air Canada's policy, persons must rely not only on Air Canada reservation, Meda Desk, airport and in-flight personnel as well as Air Canada's oxygen service provider for the delivery of in-flight oxygen, but also on local oxygen service providers, family or friends to bring oxygen to the terminal. Persons must also rely on terminal security personnel to ensure the timely delivery of oxygen to persons who require it in order to provide the seamless oxygen service required.
[203] The Agency is of the opinion that the costs associated with the provision of oxygen service by oxygen service providers to passengers during connections/stopovers and upon arrival may impact on passengers' ability to travel by air and thus dissuade them from travelling at all. Additionally, the Agency is of the opinion that the reliance upon a third party for the provision of oxygen may cause uncertainty and added stress in the event that the service provision is not successfully coordinated or executed, particularly when there are schedule changes or delays.
[204] In light of the above, the Agency finds that the non-provision of medical oxygen by Air Canada prior to boarding, during connections/stopovers and upon arrival at the final destination constitutes an obstacle to the mobility of persons who also require medical oxygen outside the aircraft.
Use of the onboard washroom during the flight
Positions of the applicants
[205] Ms. Nielsen and Mr. Foskett raise concerns regarding the availability of portable oxygen tanks for persons who require medical oxygen when using the onboard washroom.
[206] Ms. Nielsen required a continuous flow of oxygen at four litres per minute. She submitted that as Air Canada's onboard oxygen system is stationary, it is difficult, if not impossible, for a person with a disability who requires oxygen 24 hours a day to use the washroom during the flight. Ms. Nielsen stated that she had endured a six-hour flight while denying herself the use of a washroom and added that Air Canada's portable oxygen tanks were not suitable as they must be kept flat. As such, Ms. Nielsen suggested that Air Canada should be forced to change its policy by allowing passengers to bring their own oxygen on board for use when using the washroom with the understanding that they would provide a doctor's letter to Air Canada and provide their oxygen tanks for inspection to ensure that they meet Transport Canada rules. Alternatively, Ms. Nielsen suggested that Air Canada should provide a "stroller" type oxygen pack to allow persons who use oxygen to use the washroom.
[207] Mr. Foskett asserts that it is difficult for him to use the washroom because his doctor does not want him to disconnect his oxygen during the flight. In reply to Air Canada's answer, in which the carrier noted that the FFT form completed by Mr. Foskett's doctor made no reference to his need for continuous oxygen, Mr. Foskett filed a copy of the new Air Canada FFT form completed by his doctor prior to his September 20, 2005 trip, in which his doctor indicates that he requires the continuous use of oxygen during the flight.
[208] Mr. Foskett notes that although he has been advised that there are smaller portable oxygen tanks on board the aircraft that could enable him to use the washroom, he has never been offered this option, not even on his eight-hour flight to Hawaii on January 8, 2005, which included a two-hour wait for take-off and six hours of flying time. Mr. Foskett is of the opinion that travellers requiring oxygen should be advised that portable oxygen tanks are available for use when going to the washroom.
Position of Air Canada
[209] Air Canada submits that in circumstances where a customer requires a continuous flow of oxygen, procedures are in place to ensure that this service is properly provided and adds that such a request must be made in writing by the passenger's physician at least 48 hours prior to departure.
[210] Air Canada indicates that when medical oxygen is used on board an aircraft, it is in the form of larger tanks that are installed underneath the seat in front of the person. In addition, all air carriers are required to have onboard portable oxygen tanks in case of a medical emergency. Air Canada explains that this emergency oxygen supply is part of the "minimum equipment list" and must be on board. Air Canada states that if requested in advance for passengers who require a continuous flow of oxygen, it will, in exceptional circumstances, allow one of the portable emergency oxygen tanks to be used by passengers needing to use the washroom. Air Canada notes that this, however, is not possible on aircraft that have only one portable emergency oxygen tank. Furthermore, in the event of a medical emergency on board, the spare portable emergency oxygen tank can only be used as a back-up.
[211] Air Canada explains that as Mr. Foskett was initially identified by his doctor as someone who does not use continuous oxygen, the possible use of the portable emergency oxygen tank was not offered to or discussed with him. With respect to Mr. Foskett's request that all passengers be informed that the portable emergency oxygen tanks can be used by passengers when using the washroom, Air Canada explains that this is not the case as the portable emergency oxygen tank is there for emergency situations and, as such, can only be used on an exceptional basis. Moreover, Air Canada asserts in its submission dated August 12, 2005, that there was no indication in Mr. Foskett's file, and no evidence had been presented, that he requires uninterrupted medical oxygen and cannot get up to use the washroom without an oxygen supply. Air Canada states that it did provide the oxygen required by Mr. Foskett's doctor, at the rate indicated by him, on his flights in January and June of 2005. In this regard, Air Canada is of the opinion that the failure to provide Mr. Foskett access to the portable emergency oxygen supply on board the aircraft for the purposes of his use of the washroom does not constitute an obstacle to his mobility.
Obstacle analysis
[212] The Agency notes that the medical oxygen tanks provided by Air Canada, which are installed underneath the seat in front of the passenger, are not portable. Air Canada does, however, allow one of the emergency portable oxygen tanks to be used to allow passengers to use the washroom, but this level of service is only provided in exceptional circumstances.
[213] In order for passengers to use Air Canada's emergency portable oxygen tanks, a request for this service must first be made in advance of travel and the service must be required by a person who needs continuous oxygen. This, however, does not guarantee that the person will indeed be able to use an emergency portable oxygen tank. For example, this level of service will not be provided on aircraft that have only one emergency portable oxygen tank. In addition, where there is a spare emergency portable oxygen tank on board, this service will only be available if there is no medical emergency on board; should a medical emergency occur, the spare emergency portable oxygen tank will be used as a back-up. Therefore, in these instances, persons who need the use of such a tank will find themselves unable to leave their seats.
[214] The Agency is of the opinion that it is unreasonable to leave persons in the predicament of not knowing whether they will be able to use the washroom during the flight. Furthermore, ultimately being denied access to portable oxygen and not being able to use the washroom may lead to physical pain, embarrassment and a loss of dignity such that a person may be dissuaded from travelling at all.
[215] In light of the above, the Agency finds that Air Canada's failure to ensure the availability of a portable oxygen tank dedicated to persons who use oxygen constitutes an obstacle to persons who require oxygen in order to leave their seat to use the washroom.
Placement of Medical Oxygen Tank
Air Canada's policies
[216] The oxygen tank instructions contained in Air Canada's In-Flight Publication No. 356 Emergency Information and First Aid set out that the oxygen tank is secured underneath the seat in front of the passenger requiring oxygen, if for immediate use, or stored in a designated location in the overhead bin for the purposes of transporting the oxygen tanks to another destination. However, the publication does not indicate by how much the oxygen tank protrudes into the floor space.
Position of Ms. Fulton
[217] Ms. Fulton raises concerns with respect to the encroachment of the medical oxygen tank into the floor space in front of the passenger's seat.
[218] Ms. Fulton compared the placement of Air Canada's oxygen tanks to that of United Airlines. She travelled with both carriers in February-March 2000 between Ottawa and San Diego. She states that United Airlines places the oxygen tanks in the overhead luggage compartment and, as such, its flight crew does not have to disturb other passengers to check on the equipment. In addition, the tubing is neatly taped to the walls. Ms. Fulton raises concerns with Air Canada's arrangement as the oxygen tank is placed between the person's feet, thereby requiring the person to "straddle" the tank for the entire flight.
Position of Air Canada
[219] While Air Canada did not specifically address the placement of the oxygen tank in Ms. Fulton's case, it states, in its answer to Mr. Foskett's application, that it is currently studying the possibility of installing oxygen tanks in the overhead bins. The carrier states, however, that this project is still at an early stage and requires verification against all airworthiness regulations and standards for each type of aircraft operated.
Obstacle analysis
[220] The Agency notes that Air Canada's policy for the placement of the medical oxygen tanks sets out that they must be secured under a designated passenger seat or in a designated overhead bin stowage. The Agency is aware that the floor space at passenger seats is limited and as such the Agency accepts Ms. Fulton's assertion that Air Canada's policy to place the oxygen tank under the seat in front of the person who uses the oxygen, when the oxygen tank protrudes into the limited floor space, clearly causes passengers who use oxygen discomfort and inconvenience.
[221] In light of the above, the Agency finds that Air Canada's policies and procedures regarding the placement of the oxygen tank under the seat in front of the passenger, which encroaches in the person's floor space, constitutes an obstacle to Ms. Fulton's mobility and to that of persons who require medical oxygen when they travel with Air Canada.
Seating of persons who use oxygen
Air Canada's policies
[222] On November 7, 2000, Air Canada filed with its submission, in Ms. Fulton's case, a copy of its "general oxygen procedures (CIC 57/41)" which provide, in part, that:
- the seats selected for persons who use oxygen are preferably a window seat, however, an aisle seat may also be offered to accommodate the customer's disability;
- persons with disabilities do not sit in emergency/restricted rows or in rows immediately before or after emergency/restricted rows; and
- seating in executive/executive first class cabin is restricted to the last row due to the limited stowage space under the executive class seat.
Positions of the applicants
[223] Ms. Ridout and Ms. Fulton raise concerns regarding Air Canada's oxygen policies as they pertain to the seating of passengers who require medical oxygen.
[224] Ms. Ridout submits that the only available seat on her return flight from Toronto to Calgary was 14A, which is a window seat. Ms. Ridout explains that the gate agent requested that she move to row 29, which is an aisle seat, so that it would be easier for the flight crew to assist her. Ms. Ridout indicates that she explained to the gate attendant that she did not want to sit that far back in the aircraft. She adds that the attendant was not happy that she refused to sit in row 29; however, after about 10 minutes, the attendant moved her to seat 12C, which is an aisle seat. Ms. Ridout notes that as a result, both passengers sitting next to her had to step over the oxygen tank to get to their own seats while avoiding the tubing. Ms. Ridout notes that this inconvenience occurred at boarding, during trips to the washroom and deplaning.
[225] Conversely, Ms. Fulton states that, in her experience, as persons who use oxygen are always seated in a window seat, two passengers are asked to move every time Air Canada personnel checks on the oxygen tank.
Position of Air Canada
[226] In a submission provided in Ms. Ridout's case, Air Canada states that passengers requiring oxygen are usually assigned an aisle seat to allow the flight attendants to monitor the flow and level of oxygen and replace the tanks once they are used. Further, Air Canada notes that the seating policy is in accordance with the regulations and it regrets that Ms. Ridout felt that she was inconveniencing other passengers. Air Canada states, however, that this does not constitute an obstacle.
Obstacle analysis
[227] The Agency notes that while Ms. Ridout raised concerns with respect to sitting in an aisle seat, Ms. Fulton raised similar concerns regarding her window seat assignment. In both cases, the applicants were concerned that the passengers sitting adjacent to them were inconvenienced by either having to step over the oxygen tank to get to and from their own seats while avoiding the tubing, or having to move every time Air Canada personnel needed to check on the oxygen tank.
[228] While the Agency recognizes the concerns raised by the applicants with respect to inconveniencing the passengers sitting next to them during travel, air travel is such that passengers are continuously either being displaced to allow adjacent passengers to get to and from their seats, or they themselves have to inconvenience other passengers in order to enter and exit the row by asking them to move or by manoeuvring around them.
[229] In light of the above, the Agency accepts Air Canada's position that inconveniencing other passengers does not, in and of itself, constitute an obstacle to a person's mobility. In this regard, the Agency finds that neither Ms. Fulton nor Ms. Ridout provided sufficient evidence to demonstrate a negative impact on their mobility.
[230] As such, based on the evidence before it, the Agency finds that Ms. Fulton and Ms. Ridout have not demonstrated to the satisfaction of the Agency that the seats that they occupied constituted obstacles to their mobility.
Air Canada's policies
[231] Air Canada's In-Flight Publication No. 356, 4-101, issued on November 15, 1999, and submitted to the Agency on July 20, 2000 states, in part, that:
the Medipak oxygen system provides dry or humidified oxygen (whichever is more comfortable for the passenger).
[232] Air Canada's document entitled "Special Customer Handling" submitted to the Agency on July 31, 2000 states, in part, that:
of the two Medipak oxygen units available, one of the units includes one humidifier bottle and hose (if required) and has a flow rate that is variable from 2 to 8 Lpm.
[233] Air Canada's In-Flight Publication No. 356, 4-114, issued on January 3, 2005 states, in part, that:
flights shorter than four hours are not supplied humidifiers unless specifically requested from the meda desk.
Position of Mr. Foskett
[234] Mr. Foskett raises concerns regarding Air Canada's policy with respect to oxygen humidifiers.
[235] Mr. Foskett asserts that he requires humidified oxygen and is concerned with the recent change in Air Canada's policy whereby the carrier no longer provides humidifiers to passengers requiring medical oxygen on flights that are less than 10 hours in duration. Mr. Foskett states in his May 8, 2005 submission that his need for a humidifier for air travel was highlighted for him when he sustained a severe nosebleed shortly after arriving in Ottawa on his last trip. In his September 19, 2005 submission, Mr. Foskett explains that he uses a humidifier with his ventilator every time he lies down. Mr. Foskett's doctor set out in an FFT form dated September 1, 2005 that Mr. Foskett needs continuous oxygen while on board the aircraft.
[236] Mr. Foskett filed an e-mail dated September 28, 2005 containing correspondence from the Manager of Client Services at the Provincial Respiratory Outreach Program for British Columbia, which states:
The medical reasons for humidity with oxygen is that the oxygen is very drying as a gas and the humidity is required to ensure that the client does not dry out. The other reason is that when an already compromised client does not use humidity it is then left up to their body to "work overtime" to humidify this extremely cold gas that they are using[.] [This] creates an additional workload for a client that is already compromised with their disease process.
[237] Mr. Foskett indicates that it was suggested to him that in order to overcome dehydration, passengers who require medical oxygen should increase their fluid intake when a humidifier is not available. In this regard, Mr. Foskett asserts that his doctor does not want him to disconnect from onboard oxygen to go to the washroom and, as such, he cannot increase his fluid consumption and go almost 10 hours without the use of the washroom. While he has been advised that there are small emergency portable oxygen tanks on Air Canada flights that could be used to go to the washroom, Mr. Foskett submits that he has not been offered this option, not even on an eight-hour flight to Hawaii on January 8, 2005, which included a two-hour wait for take-off and six hours of flying time.
[238] Mr. Foskett recommends that Air Canada reconsider its policy of not providing a humidifier on flights of less than ten hours; he would like to see humidifiers made available with oxygen on all flights over one hour.
Position of Air Canada
[239] Air Canada recognizes that oxygen from an oxygen tank, as well as cabin air, are dryer than ambient air and that a very high flow of oxygen of five litres per minute or more may contribute to the drying of the upper airway (nose and throat).
[240] On August 12, 2005, Air Canada states that while it used to provide humidifiers for every two oxygen tanks supplied, it now provides oxygen humidifiers only on flights that exceed 10 hours. However, Air Canada's oxygen policies, in its In-Flight Publication No. 356 that was issued on January 3, 2005, set out that flights that are less than four hours are not supplied with humidifiers unless specifically requested by passengers through the carrier's Meda Desk.
[241] Air Canada asserts that humidifiers are not medically necessary in flight. However, Air Canada submits that for the comfort of persons who require medical oxygen, it will provide humidifiers on flights that exceed 10 hours, but that this is not a medical requirement. Furthermore, Air Canada points out that no other carrier in North America provides humidifiers with oxygen tanks.
[242] Air Canada states that the carriage or provision of oxygen is not part of the services that a carrier is obliged, by regulation, to provide to persons with disabilities, and that there is no reference in the CTA or the regulations to the carriage of oxygen. Air Canada respectfully submits that although it strives to provide the most comfortable flight to all of its passengers, the provision of non-humidified oxygen meets every obligation imposed upon the carrier by the CTA and its regulations.
[243] With respect to Mr. Foskett's January 2005 travel, Air Canada submits that Mr. Foskett has not provided medical evidence that he requires humidified oxygen and that the FFT form completed by his doctor makes no mention of this, but rather indicates that Mr. Foskett does not use oxygen on the ground and that he requires a flow of two litres per minute, which is the lowest rate of flow.
[244] For the purpose of Mr. Foskett's file and prior to the receipt of Mr. Foskett's FFT form which indicated his need for continuous oxygen, although Air Canada, in its submission dated August 12, 2005, admits that Mr. Foskett is a person with a disability and that he requires oxygen in flight at the flow rate of two litres per minute, Air Canada does not admit that Mr. Foskett requires humidified oxygen or that he requires constant and uninterrupted use of oxygen, even during a brief visit to the washroom. Air Canada states that it did provide the oxygen required by Mr. Foskett's doctor, at the rate indicated by his doctor, on his flights in January and June of 2005. Air Canada respectfully submits that the refusal to provide a humidifier to attach to the medical oxygen supply does not constitute an obstacle.
Obstacle analysis
[245] Air Canada recognizes the benefit of humidified oxygen, especially for persons with disabilities who use it at higher flow rates. While Air Canada's policies indicate that the carrier provides a humidified air option to persons with disabilities on request, Air Canada states that its policy has been changed such that a humidifier is now only available on flights of more than 10 hours.
[246] The Agency notes that while Air Canada stated that it provides oxygen humidifiers only on flights that exceed 10 hours, its oxygen policies in Publication No. 356 that was issued January 3, 2005, set out that flights that are less than four hours are not supplied with humidifiers unless specifically requested by passengers through the carrier's Meda Desk.
[247] The effect of this change in policy on Mr. Foskett is that he did not receive a humidifier with Air Canada's medical oxygen service, and he sustained a severe nosebleed. Mr. Foskett's experience clearly highlights the importance of humidifiers to some persons who use medical oxygen to lessen the drying effects of oxygen use which are exacerbated by air travel and to avoid complications such as nose bleeds.
[248] In light of the foregoing, the Agency finds that Air Canada's policy of not providing humidifiers on request to persons who use medical oxygen on all of its flights constitutes an obstacle to Mr. Foskett's mobility and to that of other persons with disabilities who require that medical oxygen be available when travelling by air and who require/request a humidifier.
[249] While Air Canada has raised an alternative to the provision of a humidifier with Mr. Foskett, the Agency accepts that Mr. Foskett has significant concerns about the viability of this alternative which are discussed in the section dealing with the availability of portable emergency oxygen tanks when using onboard washrooms. With respect to Air Canada's position that humidifiers are not medically necessary, the Agency has dealt with this as a preliminary jurisdictional issue found at paragraphs 60 - 62 of this Decision.
Reliability of oxygen services provided by Air Canada
[250] Many of the applicants address the level of service that Air Canada provides and, specifically, raise concerns related to the reliability of the carrier's oxygen service. For the purposes of the Agency's analysis, these concerns have been grouped into 7 broad categories:
1. The failure to provide pre-requested medical oxygen
2. The adequacy of the supply of medical oxygen provided by Air Canada during the flight
3. The failure to load the oxygen before pre-boarding
4. The failure to provide oxygen during delayed connections and stopovers
5. The lack of communication of oxygen requests by Air Canada personnel
6. Concerns regarding the oxygen equipment used by Air Canada
7. The failure by Air Canada to apply its policies and procedures regarding the provision of medical oxygen to passengers with disabilities
1. The failure to provide pre-requested medical oxygen
Air Canada policies and procedures
[251] Air Canada's "Onboard Oxygen / Medipak" guidelines for customers set out, in part:
AT THE AIRPORT:
As a continuous oxygen user, the Customer Service Agent will escort you to your aircraft seat and remove your personal oxygen cylinder. It will be emptied and sent as checked baggage or alternatively retrieved by your supplier as previously arranged by you.
Our personnel will deliver the Medipak(s) to the aircraft and place one at your seat.
Positions of the applicants
[252] Mr. Gaynes, Ms. Gould and Mr. Gibson raise concerns regarding Air Canada's failure to provide pre-requested medical oxygen during various segments of their trips.
Mr. Gaynes
[253] Mr. Gaynes states that no oxygen was provided to him on his connecting flight from Toronto to Edmonton on August 8, 2000. According to Mr. Gaynes, when he and his wife disembarked from the aircraft in Edmonton, the flight attendant, in response to a comment from his wife that the carrier failed to provide her husband with oxygen, informed her that oxygen was on the aircraft but no one had asked for it. Mr. Gaynes' travel agent questioned why this was not looked after automatically, just like a special meal. Mr. Gaynes points out that he was extremely weak after his ordeal and it took him a few days to recover. Mr. Gaynes adds that he was very anxious about the return flight.
Ms. Gould
[254] Ms. Gould and the N.W.T. Council advise that, upon arriving in Edmonton from Yellowknife on January 29, 2000, there was no oxygen available for Ms. Gould's 10:30 a.m. connecting flight to Vancouver. The N.W.T. Council indicates that Ms. Gould had to wait for three flights for arrangements to be made; she was not able to depart with the group that she was travelling with; and she ended up waiting until approximately 2:30 p.m. to depart.
Ms. Bartlett
[255] Ms. Bartlett states that although her late husband, Calvert Gibson, had pre-requested oxygen for their Calgary-Toronto flight, there were two oxygen tanks on board, but they were empty, and Mr. Gibson used his own oxygen tank for the entire flight. Ms. Bartlett further states that Mr. Gibson was not permitted to return with his own tank. Mr. Gibson had submitted that his experience with Air Canada was most upsetting as most people who require oxygen get very anxious in such situations.
Position of Air Canada
Mr. Gaynes
[256] Air Canada explains that until the first week of August 2000, Canadian Airlines and Air Canada were using different procedures for communicating "special service requests" to in-flight crew. Air Canada states that it was unfortunate that Mr. Gaynes travelled at the time that Canadian Airlines was aligning its procedures with those of Air Canada. Air Canada submits that due to these exceptional circumstances, the flight attendants did not receive the written documentation to which they normally refer for identifying customers who ordered oxygen. Air Canada also points out that it normally expects ground agents assisting customers to the gate to mention to the In-Flight crew any "special service" that the customer might need on board. Although Air Canada was not able to identify the ground agent in question, it speculates that its personnel may not have been advised of Mr. Gaynes' need for oxygen. Nonetheless, Air Canada indicates that the flight attendants confirmed that they had located the medical oxygen tanks on board but, as no customer requested them, they assumed that they were to be delivered to another flight departing from Edmonton.
[257] Air Canada is confident that this regrettable incident will not recur now that Canadian Airlines and Air Canada have merged. Air Canada extends its sincere apologies to Mr. and Mrs. Gaynes as the service that it extended to them on this occasion was well below its standards. The carrier notes that the Meda Desk took immediate action to refund Mr. Gaynes the total cost of the oxygen that he was initially charged. On behalf of its Customer Relations Department, Air Canada offered Mr. Gaynes a travel voucher for $400 as a further gesture of apology.
Ms. Gould
[258] With respect to the absence of an oxygen tank for Ms. Gould on her flight from Edmonton to Vancouver, Air Canada notes that normal procedures were followed to bring the medical oxygen tanks from Montréal. Air Canada states that the delivery of the oxygen for her flight from Yellowknife to Edmonton was completed normally. With respect to the oxygen tank for the Edmonton-Vancouver flight, Air Canada explains that the tank was delivered on a flight from Montréal to Edmonton on January 26, 2000. Air Canada states that although the receiving station was advised of its location in the cabin, it seems that the tank was not removed from the aircraft on arrival in Edmonton. Air Canada indicates that it was only when Ms. Gould arrived in Edmonton on January 29 that the carrier realized that no oxygen was available for her. Air Canada notes that it immediately made alternate arrangements to have a spare tank delivered from Calgary and it rebooked Ms. Gould on a later flight to Vancouver. Air Canada was not, however, able to establish why the medical oxygen tank was not deboarded on arrival in Edmonton. Air Canada apologized to Ms. Gould for the delay that she experienced as a result of this service lapse.
Obstacle analysis
[259] The Agency is of the opinion that the failure by Air Canada to provide Mr. Gaynes and Ms. Gould with oxygen on each of their originally reserved flights resulted in uncertainty and inconvenience as they experienced prolonged connecting times of 6.5 hours and 4 hours, respectively. In addition, Ms. Gould was separated from her travelling group as she was not able to depart with them due to the lack of oxygen on that flight. Mr. Gaynes' situation was further complicated by Air Canada's failure to provide him with the oxygen that had been placed on his connecting Toronto-Edmonton flight. Although Mr. Gibson was permitted to travel with his own oxygen, as he had pointed out, persons who require oxygen on board an aircraft get anxious in situations where the only medical oxygen tanks on board an aircraft are empty. Clearly, such lapses in Air Canada's medical oxygen service do not exude confidence on the part of persons who depend on this service in order to travel as planned; it also causes both emotional and physical stress as set out by Mr. Gaynes, who was extremely weak for a few days after his ordeal and anxious about his return flight.
[260] In light of the above, the Agency finds that Air Canada's failure to provide pre-requested medical oxygen to Mr. Gaynes and Ms. Gould on board their originally reserved flights and Air Canada's failure to provide Mr. Gaynes with the onboard medical oxygen on his Toronto-Edmonton flight and to provide Mr. Gibson with onboard medical oxygen on his Calgary-Toronto flight constituted obstacles to their mobility.
2. The adequacy of the supply of medical oxygen provided by Air Canada during the flight
Air Canada's policies and procedures
[261] Air Canada's In-Flight Publication No. 70, Chapter 14, entitled Special Customer Handling, which was filed on July 31, 2000, reads, in part:
Description of Oxygen Units:
...
Part number: 35-30-133 — Medical Oxygen Pack
Content: 1 Protective container 1 Oxygen cylinder - capacity: 635 litres
1 Humidifier bottle and hose (if required) - flow rate: variable from 2 to 8 litres/min.
1 Child's mask (if required)
1 CannulaPart number: 35-30-138 — Medical Oxygen Pack
Content: 1 Protective container
1 cylinder - capacity: 312 litres – flow rate: fixed at either 2 or 4 litres/min
1 Child's mask (if required)
1 CannulaNote: This unit does not deliver humidified oxygen.
[262] Air Canada's Safety and Emergency Procedures - Cabin Personnel, part 57 - MEDIPAK OXYGEN SYSTEM, filed with the Agency on November 7, 2000, read, in part:
Cabin crew are responsible for setting-up the Medipak when needed.
The passenger using the Medipak, or his/her personal attendant, is responsible for the operation of the system during flight: however, Cabin Crew must provide assistance as required.
OPERATION
When using Medipak oxygen system, Cabin Crew must:
...
2. Ensure Medipak system is functioning properly;
3. Check content gauge every 15 minutes. Content gauge must not be allowed to go below 100psi.
|
Flow Rates |
|
|
Litres per minutes |
Duration |
|
2 |
4:22 hours |
|
3 |
3:13 hours |
|
4 |
2:23 hours |
|
5 |
1:52 hours |
|
6 |
1:30 hours |
|
7 |
1:18 hours |
|
8 |
1:12 hours |
[263] Air Canada's Safety and Emergency Procedures - Cabin Personnel, part 55 - MEDIPAK OXYGEN SYSTEM, filed with the Agency on August 14, 2005, set out, in part:
OPERATION
When using a Medipak, Cabin Crew are responsible for:
• Setting up the Medipak and adjusting the prescribed flow rate
• Retrieving and installing additional Medipaks from overhead bin stowage in flight (if required).
• Briefing the passenger on the proper operation of the unit including the applicable flow rate.
• Ensuring that the passenger does not adjust the flow rate after it has been set
• Checking on the passenger and the Medipak every 15 minutes
• Providing assistance to the passenger who wishes to leave his/her seat during the flightPRECAUTIONS
When using any Medipak oxygen system, Cabin Crew must:
1. Ensure Medipak system is functioning properly and the applicable flow rate is used.
2. Check content gauge every 15 minutes. Content gauge is not allowed to go below 100psi.
3. Exchange used Medipak (100psi reached) for full bottle, normally found in the designated overhead bin stowage.Note: In consultation with the Captain, in case of an emergency where the passenger is running out of oxygen, onboard oxygen bottle(s) may be used as a last resort.
|
Medipak - 2L to 8L Flow Rates (35-30-0133) |
|
|
Litres per minute |
Duration |
|
2 |
4:22 hours |
|
4 |
2:23 hours |
|
6 |
1:30 hours |
|
8 |
1:12 hours |
|
Medipak - 2L/4L |
|||
|
Part number 35-30-0138 |
Part number 35-30-0144 |
||
|
regular - 312 [litres] |
Large - 1132 [litres] |
||
|
[Litres/Min.] |
Duration |
[Litres/Min.] |
Duration |
|
4 |
1:00 hour |
4 |
3:15 hours |
|
2 |
1:52 hours |
2 |
6:30 hours |
Positions of the applicants
[264] Ms. Fulton, Ms. Rafferty and Ms. Smith raise concerns regarding the adequacy of the supply of medical oxygen provided by Air Canada during their flight.
Ms. Fulton
Toronto-San Diego
[265] Ms. Fulton requires continuous oxygen at a flow rate of two litres per minute to travel by air. Ms. Fulton advises that she expressed concerns that the two tanks of oxygen boarded for her may be inadequate as it was a five-hour flight and landing is the most difficult time for her to breathe. Ms. Fulton indicates, however, that the flight attendant advised that there were only two tanks and that the flight had to depart.
[266] Ms. Fulton notes that she drained the first tank to 50 litres, which caused her to gasp for air until she received the second tank, which she notes she drained to 200 litres. Ms. Fulton states that, at this point, there was nothing coming out of the nasal prongs. Ms. Fulton indicates that the flow rate on the oxygen tank was increased to three litres per minute by one of the crew members for approximately half an hour during the flight as she was experiencing respiratory distress but that it was then set back to two litres per minute for the rest of the flight. Ms. Fulton submits that the half hour at three litres per minute would have used 30 litres more oxygen than expected but that this should not have caused her to run out of oxygen almost three hours prior to landing. Ms. Fulton is of the opinion that the oxygen provision was miscalculated.
[267] Ms. Fulton stated in earlier correspondence, however, that there were 2 hours and 20 minutes remaining in the flight when her oxygen supply ran out. Ms. Fulton submits that as a result of being denied oxygen for a period of time, she developed intense chest pain and was turning blue. Ms. Fulton asserts that she was refused emergency oxygen until other passengers got upset and, after being without oxygen for three quarters of an hour, one of the in-flight crew members opened one of the portable emergency oxygen tanks. Ms. Fulton submits that the only suggestion offered by Air Canada's in-flight crew was to breathe more slowly. Ms. Fulton states that it is not only ridiculous to tell a person with respiratory distress to breathe more slowly, it is inhumane.
[268] Ms. Fulton states that once the aircraft landed, she was ashen. She indicates that the flight attendant informed her relatives, who were meeting her at the airport, that as she was not doing well, she should be provided with oxygen immediately or brought to a hospital. Ms. Fulton submits that this frightened her relatives. She explains that there was a three quarters of an hour drive to their home, where they had oxygen, and she assured them that she would be fine for the drive.
[269] Ms. Fulton submits that she became ill because of the struggle for oxygen in flight. Ms. Fulton indicates that, obviously, she was well when she left Ottawa; otherwise she would not have travelled by air or been allowed to do so. Ms. Fulton explains that fighting for oxygen is very hard on the heart and lungs and that it affects the entire body. Ms. Fulton adds that Air Canada is playing with lives; her life was placed in jeopardy and her health suffered further for it.
[270] With respect to the calculation of the quantity of oxygen for her trip, Ms. Fulton suggests that in order for an individual to get an adequate flow of oxygen through the nasal prongs, there must be sufficient pressure in the tanks. Ms. Fulton further submits that given that pressure diminishes when the oxygen is used, the tanks should not be used under 500 litres. Ms. Fulton therefore submits that this 500 litres cannot be included in the calculation of oxygen/time needed ratio. Ms. Fulton indicates that she was pre-boarded and the oxygen was set up by the crew and adds that it takes at least half an hour for the other passengers to board the aircraft and get settled in. Ms. Fulton states that the aircraft was approximately 20 minutes on the runway waiting for clearance to take off and that there was also a period of time when the aircraft was waiting for clearance to land.
[271] With respect to Air Canada's statement that a customer seated next to Ms. Fulton on the Toronto-San Diego flight volunteered to keep an eye on her to ensure that she was doing well, Ms. Fulton states that it was on the Vancouver-Ottawa flight that a nurse seated next to her offered to help.
San Francisco-Vancouver
[272] With respect to the San Francisco-Vancouver portion of her return trip, Ms. Fulton states that she ran out of oxygen 15 minutes prior to arrival and that, consequently, she gasped through the descent and landing.
Ms. Rafferty
Toronto-Vancouver
[273] Ms. Rafferty states that she was only provided one tank of oxygen for the Toronto-Vancouver flight. Ms. Rafferty submits that the tank was not enough for the more than four-hour trip. Ms. Rafferty states that as a result, to conserve the oxygen, the flow rate was set too low. Ms. Rafferty is of the opinion that the carrier should have either provided her with a much larger tank of oxygen or two regular size tanks in order to ensure that there would be enough oxygen at a flow rate that was optimal for her. Ms. Rafferty adds that as a result of the lack of oxygen during the course of her flight, she had a headache that lasted two days after her arrival in Vancouver.
Vancouver-Toronto
[274] Ms. Rafferty notes that she used a small emergency size oxygen tank during take-off, following which the small tank was replaced with a regular size oxygen tank. Ms. Rafferty submits that following an inquiry by the nurse flight attendant at the beginning of the flight as to which flow rate Ms. Rafferty preferred, the attendant agreed with Ms. Rafferty to set the flow rate on the regular size tank higher. Ms. Rafferty asserts that she never changed the flow rate setting on the oxygen tank herself as she has no knowledge of oxygen equipment and she would have been terrified to change the settings on her own.
[275] Ms. Rafferty indicates that due to the increased flow rate, the oxygen supply in the regular size tank only lasted two hours, which was the mid-way point of the flight, at which point she rang for a flight attendant, who gave her a second, but smaller tank, which Ms. Rafferty believed to be an emergency tank. Ms. Rafferty also believes that her tank ran out because the departure was delayed by one hour due to a woman who was ill. Ms. Rafferty states that she was very uncomfortable as the smaller tank did not have enough oxygen and, as a result, she took a dose of asthma medicine to regulate her breathing.
[276] Ms. Rafferty explains that for one hour she felt that the flow rate was too low, at which point she rang for a flight attendant and wrote down her predicament and how uncomfortable she felt. Ms. Rafferty indicates that the flight attendant adjusted the flow rate to a higher setting and Ms. Rafferty was satisfied with the new flow rate until the flight landed in Toronto.
[277] Ms. Rafferty questions Air Canada's contention that two litres per minute is enough to last the full five-hour flight as her tank ran out early. Ms. Rafferty states that the oxygen tank was either set at a flow rate too high by mistake or the tank was not filled properly in the first place.
[278] Ms. Rafferty states that as each flight has a different crew she would like a procedure implemented for every flight that she books to ensure adequate availability of oxygen as well as the proper use of flow settings. Ms. Rafferty finds that Air Canada's procedures are proper, but that they were not followed in her case.
Ms. Smith
[279] Ms. Smith submits that after an hour-and-a-half into her two-and-a-half-hour flight from Whitehorse to Vancouver, she felt uncomfortable and realized that Air Canada's large oxygen tank was empty. Ms. Smith further submits that although another tank was provided, she was upset that a partially used tank was provided.
Position of Air Canada
Ms. Fulton
[280] Air Canada states that Ms. Fulton's need for a continuous flow rate of two litres per minute is documented in Ms. Fulton's PNR from Air Canada's computer reservation system as well as on the Air Canada FFT form. Further, Air Canada notes that a Special Service Request to this effect was also entered by Air Canada's Meda Desk into its computer system.
Toronto-San Diego
[281] Air Canada states that the flight time is approximately five hours and that the flight was not delayed. Air Canada submits that two oxygen tanks, one regular size and one small size, were ordered for Ms. Fulton and delivered to the aircraft and that these tanks should last for 6:14 hours at a flow rate of two litres per minute. Air Canada indicates that according to the In-Charge who interacted with Ms. Fulton, the first medical oxygen tank was set at two litres per minute and the second tank was set at three litres per minute. Air Canada further states that Ms. Fulton ran out of oxygen approximately one hour before the end of the flight, at which point she was provided with an emergency oxygen tank that lasted for the duration of the flight.
[282] Air Canada states that the flight attendant indicated that Ms. Fulton was never deprived of oxygen. In addition, a customer seated next to Ms. Fulton volunteered to keep an eye on her to ensure that she was doing well and Ms. Fulton was monitored throughout the flight. Air Canada speculates that Ms. Fulton ran out of oxygen due to the flow rate being adjusted at a higher rate than that prescribed by her physician for the duration of the second tank.
San Francisco-Vancouver
[283] Air Canada states that the flight was approximately two hours and that it was not delayed. Air Canada submits that it boarded two smaller tanks for Ms. Fulton, which should last 3:44 hours. Air Canada states that it is unfortunate that Ms. Fulton became ill on her holidays, however it is unable to attribute this to any of the flights that she took with Air Canada.
Ms. Rafferty
[284] With respect to Ms. Rafferty, Air Canada notes that her oxygen requirement for a continuous flow rate of two litres per minute for the duration of the flights is documented in her Meda Desk file created by Air Canada, as well as in the carrier's FFT form, which was completed by her physician, and in her PNR from Air Canada's computer reservation system. In addition, Air Canada states that this flow rate was ‘sanctioned' by its medical clinic.
Toronto-Vancouver
[285] Air Canada states that the flight time is 5:05 hours and that no significant delays were reported. Air Canada submits that two tanks were provided for the flight and that these two tanks should last for a total of 6:14 hours at a flow rate of two litres per minute.
[286] Air Canada further states that the in-flight crew assigned to Ms. Rafferty's Toronto-Vancouver flight has no recollection of the incident and no mention appeared in the flight crew report and, thus, Air Canada cannot explain Ms. Rafferty's comment that only one tank was provided as its records confirm that two oxygen tanks were loaded on the flight, at identified locations. Air Canada explains that when oxygen is requested, flight attendants must ensure that the oxygen is available and secured under the passenger seat or tied down in the designated overhead stowage bin, as part of their pre-flight check. Air Canada adds that the In-Charge flight attendant must immediately advise the Captain and the Station Operation Control (hereinafter STOC) and ground staff if the oxygen equipment is not available. Air Canada states that no oxygen shortage was recorded for that flight. Air Canada indicates that, in any event, the in-flight crew had the option of using the emergency oxygen equipment to accommodate Ms. Rafferty had she run out of oxygen.
[287] Furthermore, Air Canada had initially stated that although it was unable to verify the allegation that the flow had been set at a lower rate, this was unlikely given the flow rate instability that would result at a less than two litres per minute setting. Air Canada subsequently clarified that its in-flight crew is responsible for adjusting the oxygen flow rate based on the customer's medical requirements. In addition, Air Canada states that the flow rate on a regular size tank can be adjusted from zero to eight litres per minute, but that it is designed to be used at a stable flow from only two to eight litres per minute. Air Canada explains that its flight attendants are instructed to not set the flow rate below two litres per minute.
Vancouver-Toronto
[288] Air Canada states that the flight time is 4:25 hours and that no significant delays were reported. Air Canada submits that two tanks were provided for the flight and that these two tanks should last for a total of 6:14 hours at a flow rate of two litres per minute.
[289] Air Canada submits that its procedures were correctly followed. Air Canada states that it believes that the discomfort experienced or the concerns expressed by Ms. Rafferty might have been related to her request for a higher oxygen flow rate than that prescribed by her physician rather than the actual supply of oxygen on board the aircraft.
[290] Air Canada states that the flight attendant who dealt with Ms. Rafferty on the inbound flight is a qualified nurse and is very familiar with the oxygen equipment. She remembers Ms. Rafferty and to her knowledge, she did not run out of oxygen. Air Canada explains that the nurse flight attendant set the medical oxygen tank and instructed Ms. Rafferty on how to use it. Air Canada further states that the flight attendant indicated that she and Ms. Rafferty briefly discussed Ms. Rafferty's needs and preferences, i.e., dry or humidified oxygen, mask or nasal hose, and the flow rate, but she did not instruct Ms. Rafferty on how to adjust the flow rate as she appeared familiar with the oxygen system.
[291] Air Canada submits that the flight attendant set the flow rate as per the physician's prescriptions and that, to her knowledge, the flow was not modified for the duration of the flight. Air Canada submits that when Ms. Rafferty requested that the flow rate be increased, the flight attendant recommended that it be set at the prescribed setting of two litres per minute. Air Canada states that it is possible that Ms. Rafferty chose to adjust the settings herself, without notice. Air Canada states that it is the flight attendant's opinion, as a registered nurse, that Ms. Rafferty appeared to be doing fine with the level of oxygen flow.
[292] Air Canada further submits that based on the oxygen supply that Ms. Rafferty used on the inbound flight, it is unlikely that its personnel would have accommodated Ms. Rafferty at a higher flow rate. Air Canada points out that if the regular-size tank was empty after two hours of use and the flow rate in the smaller tank was increased from two litres per minute to four litres per minute after one hour of use, Ms. Rafferty would only have received oxygen for 3:24 hours. Air Canada states that even with the use of an emergency tank for take-off, this oxygen supply would not have accommodated Ms. Rafferty for the 4:25 hours flight, plus the ground time before take-off and after landing.
Ms. Smith
[293] Air Canada did not file submissions in response to the concerns raised by Ms. Smith.
Obstacle analysis
Ms. Fulton
Toronto-San Diego
[294] The Agency notes that certain aspects of Ms. Fulton and Air Canada's positions are inconsistent. Examples of such inconsistencies are: Ms. Fulton stated that her oxygen supply, which consisted of two tanks, ran out approximately 2:20 or three hours prior to arrival, whereas Air Canada stated that her oxygen supply ran out approximately one hour prior to arrival; Ms. Fulton stated that the flow rate on the second tank of oxygen was set at two litres per minute except for one half hour during which it was set at three litres per minute, whereas Air Canada stated that it was set at three litres per minute for the duration of the tank; Ms. Fulton stated that she was without oxygen for approximately 45 minutes as Air Canada refused to provide her with the emergency oxygen supply when hers ran out, whereas Air Canada stated that Ms. Fulton was never without oxygen during the flight; and Ms. Fulton stated that she was on board the aircraft for approximately 30 minutes, as a result of pre-boarding, before all passengers completed boarding, and that the aircraft did not take off for another 20 minutes, whereas Air Canada stated that there were no delays and that the oxygen supplied to Ms. Fulton was sufficient for the five-hour flight.
[295] Notwithstanding these inconsistencies, it is clear that while the parties do not agree on the possible cause for the lack of medical oxygen supply before the end of the flight, they do note that Ms. Fulton's medical oxygen supply did run out prior to arrival.
[296] The Agency is of the opinion that despite Ms. Fulton's concerns with respect to the inadequacy of the supply of oxygen provided to her, Air Canada did provide her with emergency oxygen once her supply ran out and that this emergency oxygen lasted for the rest of the flight. The Agency also notes that Ms. Fulton alleges that she was refused the emergency oxygen by in-flight personnel and was only provided emergency oxygen at the insistence of other passengers and when she began turning blue.
[297] The Agency is of the opinion that the flight attendant could have predicted this when the flow rate was increased beyond that which Ms. Fulton's physician prescribed. The Agency acknowledges that there may be circumstances where it is appropriate to increase the flow rate beyond that prescribed. In this regard, in the event that in-flight personnel change the flow rate at a passenger's request or, in the event that carrier personnel observe that the flow rate appears to have been changed by the passenger, the Agency is of the opinion that in-flight personnel should discuss with the passenger the possible impact of doing so and should be prepared to both supplement the passenger's pre-requested medical oxygen with emergency oxygen and advise the passenger of this well in advance to alleviate the passenger's concern or anxiety about the adequacy of the oxygen supply and the availability of emergency oxygen.
[298] In this regard, the Agency is of the opinion that the in-flight crew member who was aware of the flow rate of the second tank of oxygen used by Ms. Fulton should have informed Ms. Fulton, at that time, that her second tank would run out prior to arrival and that the emergency oxygen on board would be provided to her at that time. Also, the Agency is of the opinion that as emergency oxygen is intended primarily for emergency situations, carriers should calculate the supply of medical oxygen based on such factors as the passengers' needs and the duration of the flight, including some amount of extra oxygen in case of delays, changes required in the flow rate, etc., as the emergency oxygen may already be in use or required for an unforeseen need. The Agency notes Ms. Fulton's position that she was informed at the beginning of the flight that there were only two tanks on board for her and, therefore, when her second tank of oxygen ran out, she may have believed that there was no further oxygen for her. While the Agency acknowledges that emergency oxygen was provided to Ms. Fulton, the Agency is of the opinion that persons with disabilities faced with situations such as in Ms. Fulton's case where the medical oxygen supply boarded for their use expires prior to the end of a flight may cause them stress or anxiety about what further oxygen could be provided, and uncertainty about the adequacy of oxygen that may be provided to them in the future.
San Francisco-Vancouver
[299] The Agency notes that despite Air Canada's calculations and the quantity of oxygen provided to Ms. Fulton, Ms. Fulton ran out of oxygen prior to arrival. The Agency is of the opinion that Air Canada's failure to provide Ms. Fulton with an adequate supply of oxygen during the flight caused her physical distress and anxiety for the period of time for which she was without medical oxygen.
Ms. Rafferty
Toronto-Vancouver
[300] While Ms. Rafferty and Air Canada's positions are inconsistent insofar as Air Canada stated that two tanks of oxygen were available and Ms. Rafferty stated that only one tank was available, the Agency notes that Ms. Rafferty was provided oxygen throughout the flight, although at a lower flow rate. The Agency notes that had Ms. Rafferty received the second tank that Air Canada claimed was boarded on the flight, it is unlikely that she would have raised concerns about the amount of oxygen that she was provided. Air Canada's failure to provide Ms. Rafferty with an adequate supply of oxygen caused her to have a headache for two days following the flight.
Vancouver-Toronto
[301] The Agency notes that some of the information provided by Ms. Rafferty and Air Canada is inconsistent. For example, Ms. Rafferty states that she and in-flight staff agreed to increase the flow rates on both the second and third tanks that Ms. Rafferty used during the flight, whereas Air Canada states that its in-flight staff did not change the flow rate of her oxygen during the flight and, rather, recommended that it be set at the prescribed two litres per minute; and Ms. Rafferty states that she never would have attempted to change the flow rate, whereas Air Canada suggests that if the flow rate was increased, Ms. Rafferty may have changed the settings herself.
[302] Notwithstanding these inconsistencies, while the Agency acknowledges that Ms. Rafferty was concerned about the oxygen being provided to her during the flight, the Agency notes that Ms. Rafferty was provided with a total of three oxygen tanks by Air Canada, which provided uninterrupted medical oxygen to her for the entire flight.
Ms. Smith
[303] With respect to Ms. Smith's travel, the Agency notes that the first oxygen tank provided to Ms. Smith ran out and that Ms. Smith was concerned that Air Canada would have provided her with a partially full tank. While the Agency notes Ms. Smith's concerns, and while Air Canada did not respond to this issue, the Agency notes that Ms. Smith was provided with a total of two tanks by Air Canada, which supplied oxygen for her for the entire flight.
Findings
[304] In light of the foregoing, the Agency finds that:
- the supply of medical oxygen provided by Air Canada to Ms. Fulton during the flights from Toronto to San Diego and from San Francisco to Vancouver and the supply of medical oxygen provided to Ms. Rafferty during the flight from Toronto to Vancouver constituted an obstacle to the mobility of Ms. Fulton and Ms. Rafferty, respectively; and
- the supply of medical oxygen provided by Air Canada to Ms. Rafferty during the flight from Vancouver to Toronto and the supply of medical oxygen provided by Air Canada to Ms. Smith during the flight from Whitehorse to Vancouver did not constitute an obstacle to the mobility of Ms. Rafferty or Ms. Smith, respectively.
3. The failure to load the oxygen before pre-boarding
Air Canada's policies
[305] Air Canada's "Onboard Oxygen / Medipak" guidelines for customers set out, in part:
AT THE AIRPORT:
As a continuous oxygen user, the Customer Service Agent will escort you to your aircraft seat and remove your personal oxygen cylinder. It will be emptied and sent as checked baggage or alternatively retrieved by your supplier as previously arranged by you.
Our personnel will deliver the Medipak(s) to the aircraft and place one at your seat.
Positions of the applicants
[306] Ms. Fulton, Ms. Gould and Ms. Smith raise concerns relating to the unavailability of medical oxygen on Air Canada flights during pre-boarding.
Ms. Fulton
[307] Ms. Fulton states that upon boarding the aircraft for her flight from Toronto to San Diego and taking her seat, which had been changed from 17A to 7A, she noticed that there was no oxygen in place and therefore advised the flight attendant of the situation and suggested that it might be located at seat 17A. Ms. Fulton submits that the flight attendant checked at seat 17A, informed her that the oxygen was not there and advised her that it should have been ordered ahead of time. Ms. Fulton states that she replied that the oxygen had been ordered when the tickets were purchased, confirmed three weeks prior to departure and reconfirmed three days before the flight and paid for at that time. Ms. Fulton states that, at that point, she suggested to the flight attendant that, as a result of the last minute gate change, the oxygen supply might be located at Gate 98. Ms. Fulton submits that when the flight attendant returned, he informed her that this was the case and that there was only time to load two tanks on board the aircraft or the clearance for take-off would be lost. Ms. Fulton states that she pointed out to him that it was a five-hour flight and the landing was the hardest time for breathing.
[308] With respect to the San Francisco-Vancouver portion of her return trip, Ms. Fulton states that when she reached her seat on this Air Canada flight, there was no medical oxygen tank. She submits that she had to beg for the oxygen service before it was provided.
Ms. Gould
[309] Ms. Gould suggests that passengers should not be required to pre-board for the convenience of other passengers unless the oxygen tank is in place at a passenger's seat prior to boarding. It is Ms. Gould's understanding that pre-boarding is provided to allow her time to set up the medical oxygen tank. The N.W.T. Council points out that on several flights, the tank was not in place at Ms. Gould's seat when she boarded and, as such, requests that Air Canada either ensure that the tank is in place prior to pre-boarding or dispense with pre-boarding if it serves no apparent purpose. Ms. Gould asserts that it is pointless to pre-board passengers and then bring in the oxygen while other passengers are boarding.
Ms. Smith
[310] With respect to her flight from Whitehorse to Victoria, Ms. Smith states that she made arrangements with Air Canada's Meda Desk in advance of travel to have oxygen on both of her flights. Ms. Smith advises that she called Air Canada a couple of days prior to departure to confirm that the oxygen had been arranged. Ms. Smith arranged for her husband to accompany her onto the aircraft with portable oxygen until she was hooked up to Air Canada's oxygen supply. Ms. Smith indicates that she settled herself and that her husband waited with her for the Air Canada tank to be brought to her. Ms. Smith submits that, after some time, she was informed by the head flight attendant that there was a "slip up" and that no oxygen had been brought up from Whitehorse for her. According to Ms. Smith, Air Canada permitted Ms. Smith to bring her own oxygen to use during the flight in the absence of any carrier-supplied oxygen, but the flight attendant eventually informed her that they had found the oxygen tank that was meant for her and it was brought onto the aircraft for her to use.
Position of Air Canada
[311] Air Canada explains that when oxygen is requested, flight attendants must ensure that the oxygen is available and secured under the passenger's seat or tied down in the designated overhead stowage bin, as part of their pre-flight check. Air Canada adds that the In-Charge flight attendant must immediately advise the Captain and the STOC and ground staff if the oxygen equipment is not available.
[312] With respect to Ms. Fulton's case, Air Canada submits that the flight attendant In-Charge checked with the STOC and involved the pilot to locate Ms. Fulton's oxygen.
[313] In Ms. Gould's case, Air Canada advises that pre-boarding is offered to customers who require oxygen as it may offer additional time and space to access their seats and that, as per its internal procedures, oxygen is installed in the cabin before customers board the aircraft. Air Canada advises, however, that in some situations, it is not possible to have the oxygen pre-installed at the seat such that it must be secured after boarding has been completed.
Obstacle analysis
[314] Pre-boarding passengers with oxygen already installed provides passengers with more time and space to settle in their seats; provides a greater degree of privacy when commencing use of medical oxygen; and minimizes stress and discomfort. The Agency notes, however, that these applicants all raised concerns regarding instances in which this did not occur. The Agency is concerned that passengers whose oxygen is not pre-boarded may experience stress, discomfort or embarrassment as a result of having to wait for the carrier's medical oxygen supply and possibly delaying other passengers from taking their seats. Furthermore, the Agency is of the opinion that this may cause uncertainty about the reliability of this service, which may dissuade passengers from future travel.
[315] In light of the foregoing, the Agency finds that Air Canada's failure to load the oxygen prior to pre-boarding constituted obstacles to the mobility of Ms. Fulton, Ms. Gould and Ms. Smith.
4. The failure to provide oxygen during delayed connections and stopovers
Air Canada's policies
[316] Air Canada's CIC 57, which addresses oxygen use and provision, reads, in part:
-FOR CUSTOMERS REQUIRING CONTINUOUS 02 WHO ARE IMPACTED BY A DELAY OR CANCELLATION:
-IF DELAY IS SHORT AND 02 ON THE GROUND THAT CUSTOMER HAS ARRANGED WILL LAST PAST THE DELAY THEN NO FURTHER ACTION IS NECESSARY.
-IF DELAY IS UNDETERMINED IN LENGTH OR THERE IS A CANCELLATION AND/OR [OVERNIGHT] REQUIRED, DETERMINE WITH CUSTOMER 02 NEEDS FOR THAT TIME AND ORDER 02 FROM LOCAL SUPPLIER OR FROM SAME SUPPLIER THAT CUSTOMER USED AT AIR CANADA EXPENSE.
-AVOID USING MEDIPAK UNITS FOR CUSTOMERS ON GROUND AS IT MAY TAKE UP TO 48 HRS BEFORE REPLENISHMENT MAY BE SUPPLIED.
-ATTEMPT TO RE-BOOK CUSTOMER ON FLIGHT/CONNECTION EQUIVALENT TO ORIGINAL FLIGHT/ROUTING SO MEDIPAK(S) PREPARED FOR ORIGINAL FLIGHT(S) CAN SIMPLY BE TRANSFERRED TO NEW AIRCRAFT...
Position of Mr. Gaynes
[317] Mr. Gaynes raises concerns regarding the failure by Air Canada to provide medical oxygen during delayed connections.
[318] Mr. Gaynes states that upon arrival in Toronto, he and his wife were escorted by an Air Canada agent to a waiting room where they were left for approximately eight hours with no oxygen. Their original connecting time was only 1.5 hours. Mr. Gaynes submits that before the Air Canada agent left them in the waiting room, Mrs. Gaynes reminded her about the need for oxygen, to which the agent responded that she would be back. Mr. Gaynes submits that when Air Canada personnel returned eight hours later to escort them to their Toronto-Edmonton flight, there was no oxygen, nor was any oxygen provided to Mr. Gaynes on the flight. Mr. Gaynes submits that as a result of not having any oxygen during the delayed connection and during the subsequent flight, he was extremely weak after his ordeal and it took him a few days to recover. According to Mr. Gaynes, he was very anxious about the return flight.
Position of Air Canada
[319] Air Canada explains that its Meda Desk, upon being contacted by Moncton personnel on August 8, 2000 rebooked Mr. and Mrs. Gaynes on a later flight from Toronto to Edmonton and requested that two medical oxygen tanks be boarded for Mr. Gaynes. Air Canada advises that while it is not a formal procedure, it is standard practice for the Meda Desk to order oxygen at a connecting point to accommodate customers whose flight is delayed at the last minute. The carrier indicates that the Meda Desk agent who urgently made new arrangements for Mr. Gaynes did not request additional tanks for the prolonged connecting time in Toronto. Air Canada advises that its procedures with respect to the provision of oxygen have been updated to ensure that Meda Desk agents make arrangements to provide oxygen to customers at connecting points during irregular operations or unplanned delays. In this regard, on December 18, 2000, Air Canada provided the Agency with a copy of changes to its procedures.
[320] Air Canada submits that it believes that the waiting room where Mr. and Mrs. Gaynes were brought on their arrival in Toronto is the Customer Care Lounge. Air Canada states that it was unable to establish the reasons why Mr. and Mrs. Gaynes did not receive appropriate assistance while they waited for their connecting flight. Air Canada indicates that it is unable to identify the Canadian Airlines agent on duty in the Customer Care Lounge on that day, or the agent who accompanied the customers to the waiting room. Air Canada adds that the Customer Service Manager in charge of the Customer Care Lounge at the Toronto airport came by four times that afternoon and was not advised that a customer needed oxygen. Air Canada submits that the Customer Service Manager indicated that, had she noticed that some customers had been waiting for a long period, she would have made inquiries on how to assist them.
[321] Air Canada states that when a customer needs oxygen and does not travel as originally scheduled, the Greater Toronto Airport Authority's nurse or Air Canada's STOC Center will provide emergency tanks to accommodate the customer while on the ground. Air Canada points out, however, that neither STOC nor the Customer Care Lounge received such a request for Mr. Gaynes.
Obstacle analysis
[322] The Agency notes that although Mrs. Gaynes reminded the Air Canada agent who escorted Mr. Gaynes and Mrs. Gaynes to the Customer Care Lounge that Mr. Gaynes required oxygen, none was provided during his delayed eight-hour connection. Air Canada's procedures for providing oxygen to passengers during delayed connections were therefore not followed in this instance. The Agency is of the opinion that the failure by a carrier to provide passengers with oxygen during a delayed connection may cause stress, anxiety, uncertainty and physical exhaustion, as was the case for Mr. Gaynes, who experienced weakness as a result of not having oxygen during the connection and subsequent flight and uncertainty about his return flight.
[323] In light of the foregoing, the Agency finds that the failure by Air Canada to provide oxygen to Mr. Gaynes during his delayed connection constituted an obstacle to his mobility.
[324] With respect to this issue, in circumstances where a passenger requires and requests oxygen that, over a period of time, does not appear to be forthcoming, the Agency encourages persons awaiting oxygen service to repeat the request in an effort to ensure that the service is provided to them and to attempt to preempt the emotional and physical stress that may result from not being provided the medical oxygen requested.
5. The lack of communication of oxygen requests by Air Canada personnel
Positions of the applicants
[325] Ms. Fulton and Mr. Gaynes each experienced difficulties relating to the lack of communication of their oxygen requests by Air Canada personnel.
Ms. Fulton
Toronto-San Diego
[326] Ms. Fulton states that upon boarding the aircraft for her flight from Toronto to San Diego and taking her seat, which had been changed from 17A to 7A, she noticed that there was no oxygen in place and therefore advised the flight attendant of the situation and suggested that it might be located at seat 17A. Ms. Fulton submits that the flight attendant checked at seat 17A, informed her that the oxygen was not there and advised her that it should have been ordered ahead of time. Ms. Fulton states that she replied that the oxygen had been ordered when the tickets were purchased, confirmed three weeks prior to departure and reconfirmed three days before the flight and paid for at that time. Ms. Fulton states that, at that point, she suggested to the flight attendant that, as a result of the last minute gate change, the oxygen supply might be located at Gate 98. Ms. Fulton submits that when the flight attendant returned, he informed her that this was the case and that there was only time to load two tanks on board the aircraft or the clearance for take-off would be lost. Ms. Fulton states that she pointed out to him that it was a five-hour flight and the landing was the hardest time for breathing.
Vancouver-Ottawa
[327] While in Vancouver, Ms. Fulton became ill and, as such, upon reconfirming her Vancouver-Ottawa flight with Air Canada three days prior to departure, she informed the Air Canada agent that she would likely require more oxygen than originally planned as she had fluid on her lungs. According to Ms. Fulton, the agent advised her that the oxygen was ordered and that Ms. Fulton should contact the Meda Desk the day before the flight, as all data for the next day would be examined at that time.
[328] Ms. Fulton submits that one day prior to her departure from Vancouver, she contacted the Meda Desk, at which time a Meda Desk agent advised her that she had been misinformed as Air Canada needed at least 48 hours to arrange to have an extra oxygen tank sent to Vancouver. Ms. Fulton states that she explained that she had pneumonia and that she would be able to travel but would likely need a little more oxygen. Ms. Fulton further states that although the Air Canada agent indicated that she would see what could be done and get back to Ms. Fulton, she was not contacted before her flight. Ms. Fulton advises, however, that the oxygen supply was sufficient on this flight.
Mr. Gaynes
Moncton-Toronto
[329] Mr. and Mrs. Gaynes booked their Moncton-Edmonton trip with a travel agency on May 15, 2000. The travel agent advises that she issued the tickets on May 19, 2000. The travel agent notes that she requested and confirmed with Air Canada that Mr. Gaynes would be provided oxygen on board the flights. The travel agent submits, however, that a schedule change on August 1 "never found her". She explains that it should have been called in to her after being handled manually by the schedule change department, but it was not.
[330] Mr. Gaynes notes that when he and his wife checked in at the Moncton airport on August 8, 2000 for their flight to Toronto, to connect to a second flight to Edmonton, the Air Canada agent told them that there was no indication of an oxygen request on their file. Mr. Gaynes states that the Air Canada agent indicated that they would not be able to board the aircraft if no oxygen was available. Mr. Gaynes asserts that he persisted and Air Canada personnel made arrangements for oxygen, which allowed them to take the flight to Toronto.
Toronto-Edmonton
[331] Mr. Gaynes submits that upon arrival in Toronto, he and his wife were escorted to a waiting room. Mrs. Gaynes states that she advised the agent who escorted them there that Mr. Gaynes requires oxygen. Mr. Gaynes indicates that he and his wife were in the waiting room for about eight hours and that oxygen was never provided. Furthermore, Mr. Gaynes submits that no oxygen service was provided to him on the flight from Toronto to Edmonton as requested. Mr. Gaynes states that he was very weak as a result of not having had oxygen; that it took him a few days to recover; and that he was anxious about his return flight.
Position of Air Canada
Ms. Fulton
Toronto-San Diego
[332] Air Canada indicates that Ms. Fulton's request for oxygen was not recorded on the Passenger Information List which is transmitted to the in-flight crew at the time of boarding. Air Canada explains that this was due to the Special Service Request field entered by the Meda Desk on the PNR which was too long to be captured by the system. As a result, the oxygen request was truncated before the oxygen keyword or the prescribed rate appeared. Consequently, the Passenger Information List did not contain any oxygen-related message. Air Canada submits that for this reason, and due to the confusion in the gate change, the flight attendant was not aware of Ms. Fulton's oxygen needs nor did he know the number of tanks assigned to her. Air Canada states that it regrets that Ms. Fulton was left with the impression that all the tanks intended for her use were not boarded. Air Canada indicates that two oxygen tanks, one regular size and one small size, were ordered for Ms. Fulton and delivered to the aircraft and that these tanks should have provided adequate oxygen for the entire flight at Ms. Fulton's prescribed flow rate of two litres per minute.
Vancouver-Ottawa
[333] Air Canada regrets that Ms. Fulton was incorrectly advised by a Call Centre Agent to contact the Meda Desk within 24 hours of her flight with respect to her request for additional oxygen for her flight from Vancouver to Ottawa and states that she should have been instructed to immediately contact the Meda Desk. Regardless of the fact that a 48-hour notice to process medical service requests is normally requested, Air Canada submits that every effort is made to accommodate requests that are made later.
[334] Air Canada indicates that notwithstanding that a new medical clearance should have been processed to determine if Ms. Fulton was fit to travel alone, the request was actioned once the Meda Desk was informed to change her oxygen requirements. Air Canada advises that Ms. Fulton was provided with the requested additional oxygen for her flight to Ottawa.
Mr. Gaynes
Moncton-Toronto
[335] Air Canada confirms that the last schedule change that affected Mr. and Mrs. Gaynes was not communicated to them ahead of time. Air Canada explains that as a result of an automated schedule change, Mr. and Mrs. Gaynes were transferred from a Canadian Airlines flight to a Canadian Airlines code-share flight. Air Canada notes that Mr. and Mrs. Gaynes travelled during a critical phase of the integration of Canadian Airlines' operations with those of Air Canada and submits that due to the confusion resulting from the lack of communication between both reservation systems at that time, Canadian Airlines expected Air Canada to handle the schedule change procedures; however, Air Canada was never made aware of the change and, consequently, the initial oxygen request was lost. Air Canada points out that despite this communication lapse, Mr. Gaynes' oxygen was on board the Moncton-Toronto flight. Air Canada states that the copies of Mr. Gaynes' PNR, the Flight Information Sheet and the Final Passenger Count for the flight confirm that Mr. Gaynes' oxygen was delivered to Moncton and was on board Mr. Gaynes' flight.
[336] Air Canada states that it has completed the "migration" of its reservation systems and, since October 22, 2000, schedule changes are now captured and processed via "a unique platform". The carrier asserts that the confusion resulting in the cancellation of Mr. Gaynes' oxygen request will be eliminated.
Toronto-Edmonton
[337] With respect to the communication of Mr. Gaynes' need for oxygen during the delayed connection in Toronto, Air Canada states that the Meda Desk in Toronto was contacted by Moncton and rebooked Mr. and Mrs. Gaynes on a later flight and requested that two medical oxygen tanks be boarded for Mr. Gaynes. Air Canada further states that it is a standard practice, although not a formal procedure, for the Meda Desk to order oxygen at a connecting point to accommodate customers whose flights are delayed at the last minute. Unfortunately, the Meda Desk agent who urgently made new arrangements for Mr. Gaynes omitted to ask for additional tanks for the prolonged connecting time in Toronto. Air Canada explains that subsequent to this incident, it added instructions to its formal procedures for ground oxygen provision during irregular operations.
[338] With respect to the communication of Mr. Gaynes' need for oxygen on board the Toronto-Edmonton flight, Air Canada states that it is unfortunate that Mr. Gaynes travelled at the very time Canadian Airlines was aligning its procedures with those of Air Canada and, due to those exceptional circumstances, the flight attendants did not receive the written documentation that they normally refer to for identifying customers who ordered oxygen. Air Canada also states that ground personnel typically inform in-flight staff of any customer needs when escorting customers to the aircraft, but that it was possible that the employee escorting Mr. and Mrs. Gaynes to the aircraft was unaware of Mr. Gaynes' need for oxygen.
Obstacle analysis
Ms. Fulton
Toronto-San Diego
[339] While Air Canada states that the oxygen request was, for the reasons provided above, not communicated to in-flight staff, the Agency also notes that the two oxygen tanks ordered by Air Canada to be provided for Ms. Fulton were located and brought on board for her use during the flight. The Agency is, thus, of the opinion that the lack of communication of Ms. Fulton's oxygen request to personnel did not have a significant impact on Ms. Fulton as the tanks were provided as requested.
Vancouver-Ottawa
[340] The Agency is concerned that while in this case Ms. Fulton's requirement for additional oxygen could be accommodated, in other cases a passenger's need for oxygen may not be accommodated as a result of not being provided correct information by carrier personnel and that this could result in an inability to travel. Although Ms. Fulton was provided sufficient oxygen for her return flight, the Agency is of the opinion that inconsistent information provided by Air Canada to persons with disabilities about when they should request changes to the oxygen that they require is such that it could cause anxiety and distress for persons with disabilities who require oxygen.
Mr. Gaynes
Moncton-Toronto
[341] With respect to Mr. and Mrs. Gaynes' flight from Moncton to Toronto, the Agency notes Mr. Gaynes' position that at check-in, the Air Canada agent told them that there was no indication of an oxygen request on their file; that the Air Canada agent indicated that they would not be able to board the aircraft if no oxygen was available; and that after Mr. Gaynes persisted, Air Canada personnel made arrangements for oxygen, which allowed him and his wife to take the flight to Toronto. The Agency also notes Air Canada's position that Mr. Gaynes' oxygen request was inadvertently cancelled during an automated schedule change that coincided with the migration of Canadian Airlines' reservation system with that of Air Canada. Notwithstanding this and the fact that Mr. Gaynes was able to travel on the Moncton-Toronto flight, the Agency is of the opinion that the failure by Air Canada to communicate Mr. Gaynes' request was such that it caused him to be concerned so that he persisted in asking for oxygen to be available on the aircraft. Further, the Agency is of the position that situations where Air Canada does not adequately communicate oxygen requests can cause stress or anxiety about whether persons who require oxygen will be able to travel.
Toronto-Edmonton
[342] The Agency is concerned that Air Canada personnel in Toronto who were made aware of Mr. Gaynes' need for oxygen failed to communicate this to ground or in-flight personnel. The Agency is also concerned that the personnel who escorted the Gaynes to the Customer Care Lounge were advised by Mrs. Gaynes that Mr. Gaynes required oxygen and neither followed through on this request nor advised ground or in-flight personnel of Mr. Gaynes' need for oxygen. While the Agency acknowledges that Air Canada has since added instructions to its procedures for oxygen provision on the ground in the event of irregular operations, the Agency notes that Mr. Gaynes was not provided oxygen during his eight-hour wait in the Customer Care Lounge or during his flight from Toronto to Edmonton. The Agency further notes that Mr. Gaynes was extremely weak from not having been provided any oxygen; that it took him a few days to recover; and that he was very anxious about the return flight.
Findings
[343] In light of the foregoing, the Agency finds that the failure to communicate oxygen requests by Air Canada personnel constituted obstacles to the mobility of Ms. Fulton and Mr. Gaynes.
6. Concerns regarding the oxygen equipment used by Air Canada
Air Canada's policies
[344] Air Canada's In-Flight Publication No. 70, Chapter 14, entitled Special Customer Handling, which was filed on July 31, 2000, reads, in part:
Description of Oxygen Units:
...
Content: 1 Protective container
1 Oxygen cylinder - capacity: 635 litres
1 Humidifier bottle and hose (if required) - flow rate: variable from 2 to 8 litres/min.
1 Child's mask (if required)
1 Cannula
[345] Air Canada's In-Flight Publication entitled Medipak Oxygen System states, in part:
The Medipak is equipped with nasal cannula; however, passengers may request oxygen mask when booking their flight(s).The passenger using the Medipak, or his/her personal attendant, is responsible for the operation of the system during flight: however, Cabin Crew must provide assistance as required.
[346] Air Canada's Safety and Emergency Procedures - Cabin Personnel, part 55 - MEDIPAK OXYGEN SYSTEM, filed with the Agency on August 14, 2005, set out, in part:
OPERATION
When using a Medipak, Cabin Crew are responsible for:
• Setting up the Medipak and adjusting the prescribed flow rate.
• Retrieving and installing additional Medipaks from overhead bin stowage in flight (if required).
• Briefing the passenger on the proper operation of the unit including the applicable flow rate.
• Ensuring that the passenger does not adjust the flow rate after it has been set.
• Checking on the passenger and the Medipak every 15 minutes.
• Providing assistance to the passenger who wishes to leave his/her seat during the flight.
Positions of the applicants
[347] Ms. Bryce, Mr. Toth, Ms. Ridout, Mr. Foskett, Ms. Nielsen, and Ms. Wood each raise concerns regarding the oxygen equipment used by Air Canada.
Ms. Bryce
[348] Ms. Bryce questions who verifies that Air Canada's tanks and regulators are protected from damage when the equipment is being transferred from its oxygen supplier to Air Canada. Ms. Bryce notes that she is aware of the treatment of her equipment as she takes care of it herself. Ms. Bryce indicates that she is visited every three months by a respiratory therapist employed by her oxygen company who routinely checks her compliance with safety regulations regarding her oxygen equipment.
Mr. Toth
[349] Mr. Toth states that people who use oxygen already have a compromised life as they constantly fear the risk of infection, contaminated products, malfunctioning flow regulators, and Oxygen Conserving Devices (hereinafter OCD) that are foreign. Mr. Toth questions what proof there is that Air Canada's tanks contain the medical oxygen required. Mr. Toth further states that fear grips persons who use medical oxygen who are told that they must surrender their equipment when boarding an Air Canada flight and to trust Air Canada's equipment. Mr. Toth states that persons already experiencing a compromised life due to being on oxygen need not be exposed and forced to experience further fear, trauma and anxiety because they are required to use equipment supplied by an unknown entity and operated by unknown persons.
[350] With respect to Air Canada's statement that the tanks that it provides are controlled and that their use and settings are designed to be monitored by its personnel, Mr. Toth questions who furnishes Air Canada's tanks; how Air Canada's tanks are "designed" differently than the tanks that his wife used; to what standards these tanks are fabricated that makes them different from his wife's tanks; how his wife would have known what amount of oxygen is in the tanks; how his wife would have known how pure the oxygen is; if they would be supplied with a Drug Identification Number —issued by Health Canada and required on every legally prescribed drug; what evidence they have that the flight preparation crew have not tampered with the tanks or the regulators; how they know that an OCD supplied by Air Canada would regulate the same flow as his wife's condition required; and what is meant by "settings designed to be monitored by Air Canada personnel".
Ms. Ridout
[351] Ms. Ridout states that when she started to use the oxygen on her return flight from Toronto, the cannulas (the part of the tube that goes into the nose) were too long and went almost down her throat. Ms. Ridout explains that she and the aircraft personnel had to adapt her own cannulas to the onboard oxygen supply. Ms. Ridout states that if she has to pay a fee for oxygen, the least she expects is that the carrier's personnel know what to do with regard to oxygen tanks and cannulas.
Mr. Foskett
[352] Mr. Foskett submits that "[o]ften, Air Canada flight attendants seem ill-at-ease and lacking in confidence. One factor may be the incompatibility of the various types of oxygen equipment that Air Canada uses. If standard equipment were used, each one would use the same fittings, turn on the same way, take the same humidifiers and the dials would be the same....".
Ms. Nielsen
[353] Ms. Nielsen stated that on the flight from Maui to Vancouver in March 2001, the oxygen tank was incompatible with the delivery system. Ms. Nielsen submitted that as she was a registered nurse and familiar with oxygen equipment, she was able to implement a solution to the problem that was only discovered after take-off. Ms. Nielsen clarified the problem in a subsequent submission dated February 14, 2003 in which she stated that the incompatibility was the result of a male adapter where there should have been a female adapter, which prevented the hosing from being connected. Ms. Nielsen noted that three tanks of oxygen were supplied; that only two were full; and that there was a danger that she could run out of oxygen during the flight.
Ms. Wood
[354] Ms. Wood points out that her oxygen supplier, VitalAire, adheres to the highest standards for medical oxygen. Ms. Wood states that she has no assurance or confidence that the product that Air Canada supplies meets the same standards.
Position of Air Canada
[355] Air Canada submits that all oxygen and tanks that it provides meet applicable standards and that there is no evidence to the contrary. Air Canada adds that its main preoccupation is the safety of all passengers, including those requiring oxygen. Air Canada states that the cannulas that it uses to dispense oxygen on board are standard, such that it does not understand why Ms. Ridout felt that they were longer than the average. Air Canada points out that the flight attendants and passenger agents were able to accommodate Ms. Ridout by fitting her own cannulas to the medical oxygen tanks on board.
[356] Air Canada states that Mr. Foskett's impression that flight attendants are "ill at ease and lacking confidence in dealing with oxygen equipment" cannot be deemed an obstacle. Air Canada states that the oxygen tanks were activated properly according to the regular training provided to flight attendants. Air Canada asserts that flight attendants cannot be expected to install oxygen with the familiarity and dexterity of workers who do it every day. Air Canada adds that its possession and use of oxygen equipment of a different make and model is not an obstacle. It states that Mr. Foskett evoked this as a hypothesis to explain his impression that flight attendants are "ill at ease and lacking confidence in dealing with oxygen equipment". Air Canada claims that this is pure speculation and has no factual basis and, as such, cannot constitute an obstacle.
[357] With respect to Ms. Nielsen's case, Air Canada indicates that it is not aware of the events to which she referred and it is not able to comment thereon as no flight number was mentioned. Air Canada states that its priority is to ensure safe, reliable and enjoyable service for its customers. Air Canada realizes that many aspects of its service can be improved upon and it relies on her input to help it focus on those areas. Air Canada states that its initiatives to address customer and community concerns are resulting in many improvements.
[358] Air Canada advises that Ms. Wood's comments have been recorded and will provide valuable information to its Executive Management teams.
Obstacle analysis
[359] The Agency notes that Ms. Bryce, Mr. Toth, Mr. Foskett and Ms. Wood raised concerns relating to the oxygen equipment used by Air Canada, including: the verification of Air Canada's tanks and regulators and how they are protected from damage when the equipment is being transferred from its oxygen supplier to Air Canada; if and how the tanks are designed differently than the tanks used by passengers on the ground; how passengers are able to confirm the quantity and purity of oxygen in the tanks provided by Air Canada; the incompatibility of the various types of oxygen equipment that Air Canada uses; and the lack of assurance that passengers may have in terms of whether the product that Air Canada supplies meets the same standards as that of passengers. While the Agency acknowledges the concerns raised by the applicants with respect to this essential service, the Agency notes that many of the comments and questions raised by the applicants are based on uncertainty regarding, or a lack of, knowledge of the carrier's policies, such that these do not provide evidence regarding the reliability and appropriateness of Air Canada's equipment. The Agency will therefore not address these comments and questions in its consideration of the reliability of Air Canada's oxygen equipment.
[360] With respect to the concern raised by Ms. Ridout regarding the length of the cannulas provided by Air Canada, although the Agency notes that the cannulas are available in one size meant to accommodate all persons, it is apparent that, in this case, the cannulas were too long for Mrs. Ridout. The Agency notes, however, that Ms. Ridout's cannulas were adapted to the oxygen tank and that she was able to use the oxygen provided by Air Canada as requested. With respect to the concerns raised by Ms. Nielsen, the Agency notes that the oxygen delivery system was not compatible with the oxygen equipment provided. The delivery system was modified, however, and Ms. Nielsen was able to use the oxygen provided by Air Canada as requested. In light of the foregoing, the Agency finds that the oxygen equipment provided to Ms. Ridout and Ms. Nielsen did not constitute an obstacle to their mobility.
7. The failure by Air Canada to apply its policies and procedures regarding the provision of medical oxygen to passengers with disabilities
Positions of the applicants and Air Canada
[361] Ms. Smith, Mr. Foskett, Ms. Gould and Ms. Bartlett raise concerns with respect to the application of Air Canada's policies and procedures regarding the provision of medical oxygen.
Ms. Smith
[362] Ms. Smith states that upon boarding her Whitehorse-Vancouver flight, she discovered that the oxygen service that she had booked and paid for was not available. Ms. Smith submits that the flight attendant sought and received the pilot's permission to have Ms. Smith use her spare oxygen tank during the flight. However, Ms. Smith adds that while waiting for her husband to retrieve the tank from their vehicle in the parking lot, Air Canada's tank arrived and was installed and she therefore used Air Canada's equipment.
[363] Air Canada did not address this matter.
Ms. Gould
[364] Ms. Gould also raises concerns with respect to an Air Canada flight attendant on her Toronto flight who refused to give her oxygen unless she produced her doctor's certificate. Ms. Gould states that her certificate is sent to the Meda Desk so that oxygen can be ordered and put on the aircraft. She submits that this was exceptionally embarrassing to her as the aircraft was full.
[365] Air Canada states that it was surprised to learn that Ms. Gould was requested to produce a medical certificate to justify her need for oxygen as this practice is not at all reflective of its oxygen service procedures. Air Canada submits that it advises the In-Charge of oxygen requests made ahead of time via an internal process and its policy is to administer oxygen to customers when necessary.
Ms. Bartlett
[366] Ms. Bartlett states that although her late husband, Calvert Gibson, had pre-requested oxygen for their Calgary-Toronto flight, there were two oxygen tanks on board, but they were empty, and Mr. Gibson used his own oxygen tank for the entire flight. Ms. Bartlett further states that Mr. Gibson was not permitted to return with his own tank.
Obstacle analysis
[367] With respect to Ms. Smith and Ms. Bartlett's concerns, the Agency is concerned that, notwithstanding the fact that Ms. Smith did not use her own oxygen and that Mr. Gibson did, Air Canada's acceptance of the passengers' own oxygen on board the aircraft is inconsistent with its policy. As such, the Agency is of the opinion that the inconsistent application of Air Canada's policy can cause significant uncertainty about what the policy actually is; a false expectation that passengers may be able to carry their own oxygen on subsequent flights; and inconvenience, as was the case for Mr. Gibson who was not permitted to bring his oxygen tank back with him on the return flight.
[368] Although Air Canada's policies do not require that in-flight personnel request a physician's note from passengers who have pre-requested oxygen, the Agency notes that Air Canada's in-flight crew member, in this case, did not follow this policy and, according to Ms. Gould, caused her embarrassment as this occurred in front of other passengers.
[369] In light of the above, the Agency finds that the non-application of Air Canada's policies and procedures regarding the provision of medical oxygen constituted obstacles to the mobility of Ms. Smith, Ms. Gould and Mr. Gibson.
International flights
WestJet's policies
[370] Prior to September 13, 2004, WestJet's "OXYGEN ACCEPTANCE ONBOARD WESTJET - POLICY AND PROCEDURES" stated, in part:
Applies to:
SCHEDULED DOMESTIC: = yes
SCHEDULED TRANSBORDER = not applicable/not allowed
CHARTERS (Domestic) = yes
CHARTERS (Transborder) = yes
CHARTERS (International) = yes...
SECTION B - TRANSBORDER
Oxygen service is not offered on scheduled transborder flights.
Flights that take off or land in the U.S. are subject to Federal Aviation Administration (FAA) regulations; these regulations are extremely strict.
WestJet can meet the regulations for the very few charter flights that land in LAS and MCO, but, considering the large volume of scheduled transborder flights, it isn't feasible at this time for WestJet to allow oxygen onboard our aircraft.
SECTION C - CHARTERS:
...
GENERAL
Only ONE cylinder per guest is permitted, with a maximum of TWO cylinders per aircraft...
OXYGEN OVERPACKS
As regulated by the Federal Aviation Authority (FAA) in the United States of America, WestJet provides the oxygen overpacks for the use of guests who are transporting oxygen on all transborder charter flights that enter or cross U.S. Air Space.
Any guest-owned, personal-use oxygen bottles being transported on Flights entering, crossing, or exiting the United States are required by FAA Regulation 49 CFR, parts 171, 172, and 175 to be carried in an oxygen overpack.....
Effective September 13, 2004, WestJet's "OXYGEN ACCEPTANCE ONBOARD WESTJET - POLICY AND PROCEDURES" state, in part:
Applies to:
SCHEDULED DOMESTIC: = yes
SCHEDULED TRANSBORDER = not applicable/not allowed
CHARTERS (Domestic) = yes
CHARTERS (Transborder) = not applicable/not allowed
CHARTERS (International) = not applicable/not allowed...
SECTION B - TRANSBORDER
WestJet does not currently offer an oxygen-on-board program.
Due to regulations, guests can not bring their OWN personal bottles of oxygen on board aircraft flying to, from or through the United States by WestJet aircraft. At this time, WestJet has no contract with an external vendor to supply oxygen for transborder travel.
SECTION C - CHARTERS
WestJet does not currently offer an oxygen-on-board program.
Due to regulations, guests can not bring their OWN personal bottles of oxygen on board aircraft flying to, from or through the United States by WestJet aircraft. At this time, WestJet has no contract with an external vendor to supply oxygen for transborder travel.
Position of Mr. Pettigrew
[371] Mr. Pettigrew raises concerns regarding the inability to use passenger-supplied oxygen equipment and the non-provision of medical oxygen service by WestJet on its international flights.
[372] In September 2004, Mr. Pettigrew and his companion purchased tickets through Mr. Pettigrew's travel agent to travel on a WestJet charter flight from Toronto to Manzanillo on January 8, 2005 with a return date of February 5, 2005. Mr. Pettigrew indicates that they had also paid deposits for accommodations for themselves as well as friends and family, who had also paid in full for their flights. Mr. Pettigrew states that WestJet is the only carrier that offers a direct service on this route.
[373] Shortly after the ticket purchase, Mr. Pettigrew began discussions with WestJet concerning the number of oxygen tanks that he could bring on the aircraft. He states that at the time he made his reservation, WestJet's Web site indicated that two tanks of oxygen for medical use would be allowed on board. Mr. Pettigrew indicates that as he has had previous experience travelling with oxygen, he questioned WestJet's policy of allowing only two tanks. Mr. Pettigrew explains that he wanted to bring two full "D" size tanks in the cabin and two small empty "M-6" size tanks in cargo for use at destination.
[374] Mr. Pettigrew states that he has taken this trip on two other occasions in the past two years and by making the appropriate arrangements, he was able to take an adequate supply of oxygen with him to safely reach his destination. Mr. Pettigrew states that as WestJet is now the only carrier serving Manzanillo, there are few or no options for him.
[375] Mr. Pettigrew states that he received an e-mail from WestJet on November 21, 2004 stating that changes in FAR would prevent him from boarding the aircraft with oxygen. On November 29, 2004, Mr. Pettigrew received another e-mail from WestJet stating that there was confusion over the regulations and that WestJet has a policy of allowing only two "D" size tanks per guest on the aircraft. Mr. Pettigrew states that he received a telephone call from WestJet on December 3, 2004 informing him that the carrier would not provide him with transportation to Manzanillo but would purchase tickets for him for a flight operated by another carrier landing in Puerto Vallarta.
[376] Mr. Pettigrew states that he does not believe that the FAA is the "regulatory instrument" that must be applied. Rather, Mr. Pettigrew submits that the ICAO Technical Instructions address the issue of transborder flights and there is still nothing that prohibits the medical use of oxygen by passengers on flights from Canada to Mexico.
[377] Mr. Pettigrew is of the opinion that WestJet's refusal to allow him on board its flight to Manzanillo is not a regulatory problem, as no regulations prohibit the medical use of oxygen by passengers; rather, it is a lack of willingness to comply with CTA accessibility regulations.
[378] Mr. Pettigrew submits that WestJet's purchase of an alternate flight to Puerto Vallarta for him and his companion does not alter the fact that he has been refused access to the more convenient direct flight to Manzanillo. He states, in a subsequent submission, that although WestJet has agreed to pay for any extra expenses that he might have incurred because of the need to take a less direct route, he has other grievances including, but not limited to, the following:
- in the confusion (language differences and otherwise) of arranging for oxygen suppliers to meet him at the Puerto Vallarta airport, rather than Manzanillo, the suppliers failed to meet him at the airport and at his accommodations both in Puerto Vallarta and Barra de Navidad;
- he depleted a tank while sleeping in Puerto Vallarta on the evening of his arrival;
- on the third day in Mexico, he was almost out of oxygen and had to purchase a tank from a local doctor and was unable to make arrangements for a reliable supply until the next day when he had to drive to Manzanillo to pick up tanks and arrange for a concentrator to be delivered to his accommodations;
- from his arrival in Puerto Vallarta on Thursday evening until he made a connection with suppliers on Monday, he was forced to conserve oxygen by limiting the flow rate to below the prescribed amount and by limiting activities such as walking; and
- his original travel plans would have resulted in him, his daughter, and his travel companion returning home on the same flight. As a result of the last minute change in plans, his daughter had to spend the last two days of her vacation alone in Mexico.
Position of WestJet
[379] WestJet does not directly address this issue in its answer to Mr. Pettigrew's application. However, in a letter dated December 9, 2004 in response to Mr. Pettigrew's previous correspondence with the carrier, WestJet states, in part:
In no respect are we denying you the ability to travel with a supply of oxygen because it would inconvenience WestJet, rather our denial is based on our good faith belief, based on applicable laws and regulations, that to do so would expose our company to the potential for stiff sanctions and enforcement proceedings by either or both of the [FAA] and United States Department of Transportation ("DOT").
...WestJet does not, as of the date of this letter, have certification from the FAA to provide passengers with a supply of oxygen for medical purposes, either provided by us directly or provided by a third party service provider....
The U.S. regulation governing hazardous materials ("hazmat") incorporates the [ICAO] Technical Instructions with certain conditions and exceptions. However, our belief is if the U.S. has published variations to the ICAO Technical Instructions, the variations must be followed.
The first variation (US 1) states that the "requirements of 49 C.F.R. 175 apply to all shipments made by air to, from, or within the Untied States, including when the shipment is prepared in accordance with these Technical Instructions." As such, the U.S. Regulations regarding the carriage of hazardous materials on-board an aircraft will arguably apply in addition to ICAO's Technical Instructions.
As stated in variance US 1, we must also consider the regulations contained in Part 175 of Title 49 to determine the means by which a person may use oxygen on an aircraft. The only such means allowed is if the carrier itself supplies the oxygen in accordance with FAA regulation 14 C.F.R.§ 121.574. 49 C.F.R.§ 175.10(7) .The carriage or use of medical oxygen in the cabin of the aircraft by any other means is specifically prohibited. 49 C.F.R.§ 175.85(a) Variation 15 (US 15) allows an oxygen cylinder on-board for use at the destination, not for use on the aircraft.
Again, based on the risks presented by applicable law and regulations, WestJet will not allow you to travel from Toronto to Manzanillo with oxygen for medical purposes in the cabin, nor are we able to transport extra oxygen containers in our cargo hold.
Obstacle analysis
[380] The Agency is of the opinion that insofar as transportation service providers are aware of the needs of persons with disabilities and are prepared to accommodate those needs, it can be said that persons with disabilities may have equivalent access to the federal transportation network. Implicit in the use of the term "equivalent access" is the notion that, in order to provide equal access to persons with disabilities, transportation service providers may have to provide different access - more or different services, different facilities or features, all designed to meet the needs of persons with disabilities to ensure that they, too, can access the network. In this regard, the Agency is concerned with those instances where the lack of services may result in the inability or refusal to transport a passenger.
[381] The Agency notes Mr. Pettigrew's frustration concerning the fact that he was informed subsequent to making his travel reservations that he would not be permitted to bring oxygen on board and that, as a result, he would be unable to travel on the direct flight operated by WestJet as he had originally intended. The Agency acknowledges WestJet's position that its policy changed in response to a change in FAR. The Agency notes WestJet's statement that it was not certified by the FAA to provide its own medical oxygen service or to accept passenger-supplied equipment on board. The Agency also acknowledges that WestJet made arrangements, at its expense, to have Mr. Pettigrew travel to an alternate destination in proximity to his original destination with a different carrier. The Agency is of the opinion that in light of the travel arrangements that had already been made, Mr. Pettigrew's inability to bring his own oxygen on WestJet's international flights, combined with the lack of medical oxygen service by WestJet, caused significant inconvenience and stress for Mr. Pettigrew and, ultimately, prevented him from travelling to Mexico with WestJet.
[382] The Agency notes that WestJet's policy of neither allowing passenger-supplied oxygen on board its international flights nor providing a medical oxygen service on these flights constitutes a refusal to transport and will deny access to passengers who require oxygen, as is the case with Mr. Pettigrew. The Agency is of the opinion that this policy denies passengers who require medical oxygen any semblance of equivalent access and thus prevents access to this part of WestJet's transportation network.
[383] In light of the above, the refusal by WestJet to transport persons with disabilities who require medical oxygen on international and transborder flights, due to the inability to use passenger-supplied oxygen equipment and the non-provision of a medical oxygen service by WestJet, constitutes an obstacle to the mobility of Mr. Pettigrew and to that of persons who require medical oxygen to travel by air.
[384] In light of the foregoing, the Agency finds that:
1. Air Canada's policy that requires that persons request Air Canada's medical oxygen service as well as its portable onboard oxygen service in advance of travel constitutes an obstacle to the mobility of the applicants and to that of persons with disabilities who must have oxygen on board flights;
2. Air Canada's requirement that FFT forms be completed by the physicians of persons who use oxygen, including the related cost and the level of information to be disclosed, constitutes an obstacle to the mobility of Mrs. McMartin, Mr. Kimelman, and Ms. Gould and to that of persons with disabilities who require medical oxygen when travelling by air;
3. Air Canada's policy on oxygen fees constitutes an obstacle to the mobility of the applicants who raised this concern and to that of persons with disabilities who require that medical oxygen be available when travelling by air;
4. the non-provision of medical oxygen by Air Canada prior to boarding, during connections/stopovers and upon arrival at the final destination constitutes an obstacle to the mobility of persons who also require medical oxygen outside the aircraft;
5. Air Canada's failure to ensure the availability of a portable oxygen tank dedicated to persons who use oxygen constitutes an obstacle to persons who require oxygen in order to leave their seat to use the washroom;
6. Air Canada's policies and procedures of placing the oxygen tank under the seat in front of the passenger, which encroaches in the person's floor space, constitutes an obstacle to Ms. Fulton's mobility and to that of persons who require medical oxygen when they travel with Air Canada;
7. Ms. Fulton and Ms. Ridout have not demonstrated to the satisfaction of the Agency that the seats that they occupied constituted obstacles to their mobility;
8. Air Canada's policy of not providing humidifiers on request to persons who use medical oxygen on all of its flights constitutes an obstacle to Mr. Foskett's mobility and to that of other persons with disabilities who require that medical oxygen be available when travelling by air and who require/request a humidifier;
9. i. Air Canada's failure to provide pre-requested medical oxygen to Mr. Gaynes and Ms. Gould on board their originally reserved flights and Air Canada's failure to provide Mr. Gaynes with the onboard medical oxygen on his Toronto-Edmonton flight and to provide Mr. Gibson with onboard medical oxygen on his Calgary-Toronto flight constituted obstacles to their mobility.
ii. the supply of medical oxygen provided by Air Canada to Ms. Fulton during the flights from Toronto to San Diego and from San Francisco to Vancouver and the supply of medical oxygen provided to Ms. Rafferty during the flight from Toronto to Vancouver constituted an obstacle to the mobility of Ms. Fulton and Ms. Rafferty, respectively; and
the supply of medical oxygen provided by Air Canada to Ms. Rafferty during the flight from Vancouver to Toronto and the supply of medical oxygen provided by Air Canada to Ms. Smith during the flight from Whitehorse to Vancouver did not constitute an obstacle to the mobility of Ms. Rafferty or Ms. Smith, respectively;
iii. Air Canada's failure to load the oxygen prior to pre-boarding constituted obstacles to the mobility of Ms. Fulton, Ms. Gould and Ms. Smith;
iv. the failure by Air Canada to provide oxygen to Mr. Gaynes during his delayed connection constituted an obstacle to his mobility;
v. the failure to communicate oxygen requests by Air Canada personnel constituted obstacles to the mobility of Ms. Fulton and Mr. Gaynes;
vi. the oxygen equipment provided to Ms. Ridout and Ms. Nielsen did not constitute an obstacle to their mobility;
vii. the non-application of Air Canada's policies and procedures regarding the provision of medical oxygen constituted obstacles to the mobility of Ms. Smith, Ms. Gould and Mr. Gibson; and
10. the refusal by WestJet to transport persons with disabilities who require medical oxygen on international and transborder flights, due to the inability to use passenger-supplied oxygen equipment and the non-provision of a medical oxygen service by WestJet, constitutes an obstacle to the mobility of Mr. Pettigrew and to that of persons who require medical oxygen to travel by air.
[385] The Agency states, in Decision No. LET-AT-A-346-2004, that with the issuance of the obstacle determination decision, it will have addressed the issues raised by the applicants from the perspective of persons with disabilities. As the Agency has found the above obstacles to the mobility of the applicants and to persons with disabilities who require oxygen to be available to them when they travel by air, the Agency must now determine whether those obstacles are undue and, if so, what corrective measures may be appropriate to address them.
[386] Having focussed on the submissions of the applicants in making its obstacle determinations, it is the intention of the Agency to focus the next stage of this proceeding on the evidence of the respondents so as to assist the Agency in balancing the interests of both parties. In this regard, part of the Agency's continuing investigation will include an oral hearing, as noted in Decision No. LET-AT-A-346-2004, in order to gather further information both from the respondents and from expert witnesses as well as to provide the respondents with an opportunity to present and test evidence regarding the undueness of the obstacles and the appropriateness of any corrective measures that the Agency may deem appropriate should it find that undue obstacles exist. While the Agency does not expect applicants to participate in this stage of the proceeding, it set out in Decision No. LET-AT-A-346-2004 that if an individual believes that his or her participation can further the proceedings, the Agency will entertain specific requests to participate and, where appropriate, will grant specific rights.
Members
- Marian L. Robson
- Gilles Dufault
- Beaton Tulk