The Canadian Transportation Agency has the jurisdiction to investigate complaints on the accessibility of the federal transportation network when the issues involve persons determined to have disabilities for the purposes of the Canada Transportation Act.
The Agency has investigated or is investigating several cases related to allergies involving major Canadian air carriers. These cases involve:
In a 2002 Decision, the Agency determined that an allergy is not automatically considered to be a disability for the purposes of the Act. However, there may be people whose allergies mean they can be considered to have a disability. As a result, the Agency must examine the issue of disability on a case-by-case basis.
These determinations are made using the World Health Organization's model of disability analysis. A person with an allergy may be found to be a person with a disability if the allergy impedes the person's ability to have equal access within the federal transportation system.
The Agency examines complaints to determine whether persons with disabilities encountered an obstacle to their mobility, specifically as it relates to the use of a federally regulated mode of transportation, and whether the obstacle is undue. Once the applicant has established the existence of an obstacle to the mobility of a person with a disability in the federal transportation network, the onus of proof then shifts to the respondent service provider to prove that the obstacle is not undue and should not be removed.
On June 15, 2011, the Agency issued its final decision addressing Air Canada's accommodation of passengers disabled by an allergy to peanuts or nuts and set out its assessment of Air Canada's undue hardship arguments.
In a preliminary January 2010 decision, the Agency found that buffer zones are the appropriate accommodation for persons aboard aircraft who are disabled due to their allergy to peanuts or nuts. In a subsequent October 2010 decision, the Agency provided further direction to Air Canada on how to accommodate travellers with a disability due to peanut or nut allergies.
Following the October decision, Air Canada agreed to create a buffer zone for such passengers when at least 48 hours advance notice is provided. Air Canada also agreed to provide a briefing to passengers within the buffer zone. However, Air Canada filed undue hardship arguments with respect to the requirement to serve only peanut and nut-free foods within the buffer zone, as there are currently no flight kitchens available to deliver on this guarantee.
In its decision, the Agency accepted that Air Canada cannot guarantee that snacks or meals served in the buffer zone will be entirely free of traces of peanuts or nuts because of the risk of cross-contamination. Given this, the Agency agreed that persons with a disability due to a peanut or nut allergy may prefer to bring their own snacks or meals.
At the same time, the Agency found that Air Canada did not meet its burden of proof to demonstrate it will create undue hardship on Air Canada to accommodate such persons by serving, within the buffer zone, snacks and meals that do not contain peanuts or nuts as visible or known components.
Consequently, within the buffer zone, Air Canada will now be required to serve only snacks and meals which do not contain peanuts or nuts as visible or known components. The Agency accepts that these may contain traces of peanuts or nuts as a result of cross-contamination.
On May 19, 2010, the Agency ruled in the case of a woman with an allergy to seafood steam, who was to travel on an Air Canada flight during which a meal containing seafood was to be heated and served to airline flight crew.
When hearing accessible transportation cases through its formal adjudication process, the Agency requires the applicant to provide evidence proving that the person concerned in the complaint has a disability for the purposes of Part V of the Canada Transportation Act.
The Agency found that the woman with the allergy did not meet the evidentiary burden to demonstrate that, for the purposes of Part V of the Act, she was a person with a disability due to her allergy to seafood steam. As a result, the Agency did not address whether the woman encountered an obstacle to her mobility.
On June 11, 2010, the Agency found that Air Canada's refusal to provide a passenger with the use of its onboard medical oxygen service constituted an undue obstacle to her mobility.
The passenger, who has severe multiple chemical sensitivities and uses medical oxygen prescribed by her physicians to remediate her reactions to irritants, also requires the oxygen to travel by air. In a preliminary decision, the Agency had required Air Canada to show cause why its refusal did not constitute an undue obstacle but Air Canada failed to do so. The Agency therefore decided that in this case the carrier is required to provide onboard medical oxygen by whatever means are available and chosen by the passenger.
On October 14, 2010, the Agency concluded that an applicant had not met her evidentiary burden to demonstrate that, for the purposes of Part V of the Act, she is a person with a disability due to her allergy to perfume. The Agency therefore dismissed the application.
Following Air Canada’s reintroduction of a policy to accept pets for carriage in the aircraft cabin in June 2009, the Agency investigated three cat allergy complaints against Air Canada, Air Canada Jazz and WestJet.
After examining evidence from the three complainants as well as the respondents, the Agency found that these complainants were persons with disabilities. After assessing pleadings from the parties and various organizations, the Agency found that an undue obstacle exists and is requesting that corrective measures be implemented by the three carriers to provide people with a cat allergy disability with an appropriate accommodation.
When at least 48 hours advance notification is provided by persons with a cat allergy disability, Air Canada, Air Canada Jazz and West Jet must provide a five row minimum seating separation at all times between a person with a cat allergy disability and cats carried as pets in the cabin, with best efforts to do so with less than 48 hours notification. This includes during boarding and deplaning and between their seat and a washroom. All three air carriers must also develop and implement policies and procedures as well as provide necessary training to their staff to ensure the provision of the appropriate accommodation. The carriers have 45 business days from the date of the decision to comply with the Agency’s order.
Furthermore, Air Canada Jazz must provide the following corrective measures on its Dash 8-100/300 aircraft:
When a notification of at least 48 hours is given: ban cats carried as pets in the aircraft cabin when a person with a cat allergy disability is travelling; and,
When less than 48 hours notification is given: ban cats carried as pets in the aircraft cabin when no person travelling with a pet cat has already booked on that flight. If a person with a pet cat has already booked for that flight: accommodate the person with the cat allergy disability within 48 hours on the next available flight on which there is no person with a pet cat already booked. If the next available flight is beyond the 48-hour period: give priority to the person with the cat allergy disability.