Decision No. 228-AT-A-2011

June 16, 2011

APPLICATIONS by Dr. Sophia Huyer and Rhonda Nugent, on behalf of her daughter Melanie Nugent, against Air Canada.

File No. U3570-15


Background

[1] In Decision No. 4-AT-A-2010 (January Decision), the Canadian Transportation Agency (Agency) addressed applications by Dr. Sophia Huyer and Rhonda Nugent, on behalf of her daughter Melanie Nugent, regarding difficulties they experienced relating to peanut and nut allergies while travelling with Air Canada.

Disability and obstacle

[2] In the January Decision, the Agency found that:

  • Dr. Huyer and Melanie Nugent are persons with disabilities for the purposes of Part V of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA); and
  • Air Canada's lack of a formal policy to accommodate the needs of persons with allergies to peanuts or nuts, and the uncertainty that creates, constitutes an obstacle to the mobility of Dr. Huyer and Melanie Nugent and to persons whose allergy to peanuts or nuts results in a disability for the purposes of Part V of the CTA.

Appropriate accommodation

[3] The Agency also made a preliminary finding in the January Decision that a buffer zone, including an announcement within that zone, is the appropriate accommodation for persons with disabilities due to their allergy to peanuts or nuts.

[4] In Decision No. 431-AT-A-2010 (October Decision), the Agency set out its final findings with respect to the appropriate accommodation for persons with disabilities due to their allergy to peanuts or nuts, when Air Canada is provided with at least a 48-hour advance notice of a person's need for accommodation. Those findings were as follows :

  1. Air Canada will create a buffer zone, as follows, for the passenger with a disability due to their allergy to peanuts or nuts:

    1. for international wide-body aircraft executive class seating, the buffer zone will consist of the pod-seat occupied by the person with a disability due to their allergy to peanuts or nuts;
    2. for North American business class seating, the buffer zone will consist of the bank of seats in which the person with a disability due to their allergy to peanuts or nuts is seated;
    3. for economy class seating, the buffer zone will consist of the bank of seats in which the person with a disability due to their allergy to peanuts or nuts is seated, and the banks of seats directly in front of and behind the person. In areas where a bulkhead is either directly in front of or behind the bank of seats in which the person with a disability due to their allergy to peanuts or nuts is seated, the buffer zone will consist of the bulkhead, together with the bank of seats in which the person is sitting and the bank of seats directly in front of or behind the person (depending on the location of the bulkhead).
  2. Only peanut-free and nut-free foods will be served by Air Canada as part of its onboard snack or meal service within the buffer zone.
  3. A briefing will be given by Air Canada personnel to passengers within the buffer zone that they can only eat foods that are peanut-free and nut-free and that they will only be offered peanut-free and nut-free foods as part of Air Canada's onboard snack or meal service. In addition, Air Canada personnel is to address situations where a passenger refuses to comply with this requirement by moving the non-obliging passenger or, if necessary due to that passenger's refusal to move, moving the person with the disability due to their allergy to peanuts or nuts to a seat where the buffer zone can be established.

Undue hardship

[5] In the October Decision, the Agency also required Air Canada to submit a formal policy for the Agency's review and approval if Air Canada accepted to implement the appropriate accommodation. In the event that Air Canada did not accept to implement the appropriate accommodation or any part(s) of it, Air Canada was required to file its arguments on undue hardship.

[6] In response to the October Decision, Air Canada advised that it would adopt a policy and procedures consistent with items (1) and (3) of the Agency's findings on appropriate accommodation. Air Canada subsequently advised that compliance with respect to item (2), specifically the requirement to serve within the buffer zone only peanut-free and nut-free foods, would constitute undue hardship as there are currently no flight kitchens able to deliver on this guarantee.

Issue

[7] Has Air Canada established undue hardship with respect to the requirement to serve within the buffer zone snacks and meals that do not contain peanuts or nuts in order to accommodate persons with disabilities due to their allergy to peanuts or nuts?

Facts, Evidence and Submissions

[8] In a February 12, 2010 submission, Air Canada states that the only relevant general specification it provides to all caterers doing business with it is that meals must not contain peanut or peanut by-products. Included in the submission is an extract from Air Canada's Catering and Recipe Policies (Catering Policies), which sets out that the following products shall not be used or added to any of its food:

  • Additives or preservatives
  • Artificial colour, not derived from a natural product
  • MSG – Monosodium glutamate
  • Gelatin/Aspic derived from animal not to be used for glazing
  • Peanut/Peanut oil, or any item containing peanut
  • Bean sprouts

[9] Below that list of products, Air Canada notes a possible exception: "If the above items are beyond caterers control and is part of the product from the supplier. Use of such products must be reviewed and approved by Air Canada."

[10] Also included in Air Canada's February 12, 2010 submission is its Special Meals Policy, Descriptions, Procedures and RESIII Validation (Special Meals Policy) containing a list of the special meals available for passengers, and the foods that are used, or not used, in each meal type. Among other things, the list includes meals for passengers with special dietary needs or preferences, such as vegetarian (no dairy/no eggs), vegetarian (lacto-ovo), vegetarian oriental, non-lactose, gluten-free, kosher, low cholesterol/low saturated fat and diabetic.

[11] In Air Canada's December 5, 2010 submission, it explains that meals on international flights in Economy or on any flight in Executive or Executive First service are sourced from various flight kitchens and are rarely prepared "from scratch." Air Canada also submits that its caterers had advised that they could not guarantee that Air Canada meals would be nut free because of the risk of cross-contamination arising from the use of meal assembly lines on which peanut and nut products have been or may have been processed.

[12] The Agency subsequently issued Decision No. LET-AT-A-4-2011 (Letter Decision), in which Air Canada was asked to clarify whether its supplier limitations are with respect to known or visibly evident peanuts or nuts as a component of snacks or meals, or relate only to possible traces of peanuts or nuts in snacks or meals.

[13] In response to the Letter Decision, Air Canada submitted a signed declaration from Louis Carvalho, its Senior Director for in-flight catering services.

[14] In his declaration, Mr. Carvalho states that Air Canada cannot comply with the requirement not to serve meals containing nuts as part of an in-flight meal within a buffer zone on international flights in Economy or on any flight in Executive or Executive First service. Mr. Carvalho submits that it is not possible to guarantee the peanut or nut content of the meals served as the meals are sourced from various flight kitchens which, in turn, source the various components from other sources.

[15] Mr. Carvalho further states that Air Canada deals with more than 50 caterers, and that he has made inquiries with two major flight kitchens used by Air Canada (Gate Gourmet and LSG Skychef), which have confirmed that "no guarantee can be made as to nut and peanut free meals since their own assembly lines as well as those of their main suppliers also source peanut and nut content." Mr. Carvalho maintains Air Canada's position that "there are currently no flight kitchens able to deliver on this guarantee." Mr. Carvalho adds that, consequently, Air Canada is not aware of the ingredients comprising a meal and cannot control the composition of what is being served.

[16] In response to the Agency's requirement that Air Canada clarify whether its supplier limitations are with respect to known or visibly evident peanuts or nuts in snacks or meals, or relate only to possible traces of peanuts or nuts in snacks or meals, Mr. Carvalho states that Air Canada will make its best efforts to refrain from serving in a buffer zone meals where nuts are visibly evident. Mr. Carvalho adds, however, that as Air Canada is not aware of the content and ingredients of the meals it serves, it cannot guarantee that meals containing visible nuts will never be served in a buffer zone. Mr. Carvalho contends that, in any event, nuts included in a meal present a minimal risk of accidental physical contact with a person with an allergy.

[17] Mr. Carvalho submits that the only way that Air Canada could guarantee the service in the buffer zone of peanut-free and nut-free meals would be by not serving any meals in the buffer zone. Air Canada submits that this is not an acceptable solution for the carrier or for the passengers sitting in the buffer zone. Mr. Carvalho adds that Air Canada cannot guarantee that any of its meals do not contain traces of peanuts or nuts, and only the snacks served in economy class and produced by Krispy Kernel, as well as a few items on the Buy-on-Board Café, are certified as not containing traces of peanuts or nuts. Air Canada therefore strongly encourages persons with disabilities due to their allergy to peanuts or nuts to bring their own meal.

[18] Dr. Huyer expresses the view that the buffer zone does almost nothing to mitigate the risk to passengers with allergies to peanuts and/or nuts and further states that a guarantee by Air Canada that its meals are nut free was never the request of either of the applicants.

[19] Mrs. Nugent submits that Air Canada's claim that it can only guarantee the service of peanut-free and nut-free meals in the buffer zone by not serving any meals at all is incorrect. Mrs. Nugent suggests that one solution would be to serve only peanut-free meals on board its flights or within the buffer zone, and contends that Air Canada can surely source peanut-free food.

[20] Mrs. Nugent states that she is not seeking a guarantee from Air Canada that it provide "nut-free flights," but asks that Air Canada recognize her child's disability and help reduce the risk of her child suffering an attack in an enclosed aircraft cabin 30,000 feet in the air. Mrs. Nugent notes that other airlines are making efforts to accommodate people with allergies and provides examples cited from some of those airlines' Web sites.

[21] Mrs. Nugent refers to Mr. Carvalho's statement that nuts included in a meal present a minimal risk of accidental physical contact for a person with an allergy to peanuts or nuts, and states that she is not aware that Mr. Carvalho is an allergy expert. She submits that his statement is contrary to the expert evidence that has been filed with the Agency.

[22] Further to Mrs. Nugent's submission, Air Canada clarified its position in a subsequent submission, in which it reiterates that it will:

  1. continue to not serve peanuts on any of its flights;
  2. not sell from its Buy-on-Board service, cashews or other items visibly containing nuts, and identified as containing nuts on the packaging, to persons in the buffer zone;
  3. not serve the nut bowl or nut packages to passengers in the buffer zone;
  4. not allow passengers in the buffer zone to eat nuts or peanuts they have bought or brought on board; and
  5. remove the almond packets from the cheese tray in executive class to the passengers in the buffer zone.

[23] Additionally, Air Canada states that it will continue to offer, where available, Krispy Kernel snack products which do not contain peanuts, but may contain nuts.

[24] Air Canada refers to the evidence in support of Mr. Carvalho's statement that nuts included in a meal present a minimal risk of accidental physical contact for a person with an allergy to peanuts or nuts that is found in the expert medical report already filed by Air Canada. Air Canada submits that the medical report identified the risk within the buffer zone as that of accidental physical contact with peanuts or nuts or ingestion (in case of children). Air Canada adds that therefore, as long as there are no stand alone nuts or peanuts served in the buffer zone or allowed to be consumed in the buffer zone, the potential presence of traces of nuts or minimal tree nuts mixed in the food ingested by non-allergic persons in the buffer zone would not be an undue obstacle to the mobility of persons with disabilities due to their allergy to peanuts or nuts.

Analysis and Findings

[25] The Supreme Court of Canada confirmed in Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SCC 15 (CCD-VIA), that the accessible transportation provisions of the CTA are, in essence, human rights legislation. Furthermore, the Court stated that the principles of the Canadian Human Rights Act, R.S.C., 1985, c. H-6, including the principle of reasonable accommodation, must be applied by the Agency when it identifies and remedies undue obstacles.

[26] Once an 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 transportation service provider to prove, on a balance of probabilities, that the obstacle is not undue. To this end, the respondent must demonstrate that it meets each element of a three-part test:

  • the source of the obstacle is rationally connected to a legitimate objective, such as those objectives found in the national transportation policy contained in section 5 of the CTA;
  • the source of the obstacle was adopted by the transportation service provider with an honest and good faith belief that it was necessary to the accomplishment of its service-related purpose; and
  • the source of the obstacle is reasonably necessary for the accomplishment of its objective, such that it is impossible for the transportation service provider to accommodate the person with a disability without imposing undue hardship on the service provider.

[27] In this case, there is no issue with respect to the first two elements of the test. Accordingly, the Agency will focus its analysis and findings on the third element.

[28] Key to an assessment of the third element of the test is an examination of the interplay between accommodation for the person with a disability and hardship for the transportation service provider in providing such accommodation. The assessment relates to the obligation of the transportation service provider, which is to accommodate the passenger with a disability up to the point of undue hardship.

[29] In its October Decision, based on an analysis of submissions to that point in the proceedings, the Agency set out what it determined to be an appropriate accommodation to address the disability-related needs of passengers whose allergies to peanuts and nuts constitute a disability for the purposes of Part V of the CTA.

[30] The appropriate accommodation may not be the final accommodation ordered by the Agency, as the transportation service provider has been given the opportunity to prove to the satisfaction of the Agency that it would cause the transportation service provider undue hardship to provide such appropriate accommodation.

[31] To establish undue hardship, the Supreme Court of Canada in CCD-VIA determined that the transportation service provider must demonstrate that there are constraints that make the removal of the obstacle unreasonable, impracticable or, in some cases, impossible, such that the accommodation cannot be provided. Constraints which may be considered in that assessment include, without limitation, structural, safety, economic and financial matters.

[32] If undue hardship with respect to the appropriate accommodation is so established by the transportation service provider to the satisfaction of the Agency, the Agency then turns to alternatives available to best address the needs of a person with a disability, again up to the point of undue hardship for the transportation service provider. Such alternative accommodation constitutes "reasonable accommodation." Reasonable accommodation in each case is a matter of degree and depends on a balancing of interests of persons with disabilities with those of the transportation service provider in the circumstances of the case. This includes considering the significance and recurrence or continuing nature of the obstacle and the impact of the obstacle on persons with disabilities, as well as the transportation service provider's commercial and operational considerations and responsibilities, including, as noted above, and without limitation, structural, safety, economic and financial matters.

Preliminary matter

[33] In his declaration of February 1, 2011, Mr. Carvalho states:

It would therefore constitute undue hardship for Air Canada to be forced to serve foods that do not contain nuts or peanuts in the buffer zone.

Consequently, Air Canada will continue to serve meals to other passengers (except the person with a disability) seated in a buffer zone. (emphasis added)

[34] Counsel for Ms. Nugent in his submission of February 7, 2011 takes issue with this phrasing, in particular the usage of the words "will continue," describing it as "disregard for the Agency."

[35] The phrasing in the declaration could be read as implying that regardless of the Agency's ultimate finding, Air Canada will continue to comply with its current policy. However, the Agency doubts that this could have been Air Canada's intent, as Air Canada is fully aware that it must comply with a final order.

[36] In any event, at this stage in the proceedings, Air Canada is simply making submissions and arguing that the Agency's order constitutes undue hardship to implement. The Agency may either find for or against Air Canada on this argument.

This case

[37] Air Canada submits that it would constitute undue hardship for it to be forced to serve within the buffer zone foods that are peanut free or nut free. However, Air Canada states that it will provide the following accommodations for persons with allergies to peanuts or nuts:

  1. continue to not serve peanuts on any of its flights;
  2. not sell from its Buy-on-Board service, cashews or other items visibly containing nuts, and identified as containing nuts on the packaging, to persons in the buffer zone;
  3. not serve the nut bowl or nut packages to passengers in the buffer zone;
  4. not allow passengers in the buffer zone to eat nuts or peanuts they have bought or brought on board;
  5. remove the almond packets from the cheese tray in executive class to the passengers in the buffer zone.

[38] The Agency is of the opinion that there is a distinction to be made between: (1) meals containing visibly evident peanuts or nuts (e.g. almond crusted chicken, salad sprinkled with nuts, etc.) and meals containing peanuts or nuts as a known component (e.g. satay sauce, and desserts containing nuts) on the one hand; and, (2) meals that may contain traces of peanuts or nuts as a result of cross-contamination on the other hand.

[39] For the purposes of this Decision, the Agency will use the term "nut free" to mean food products that do not contain peanuts or nuts in any form, including products which have no trace elements of peanuts or nuts. Otherwise, the Agency will refer to food products "not containing nuts" when the Agency is referring to food products which may contain trace elements of peanuts or nuts, but which do not contain peanuts or nuts as a visible or known component.

[40] Air Canada submits that its largest caterers have confirmed that no guarantee of "nut-free" can be made for any of the meals they source as their own assembly lines, and those of their main suppliers, also source peanut and nut content. Air Canada maintains that there will always be a risk of cross-contamination.

[41] The declaration of Mr. Carvalho emphasizes this point. He confirms that Air Canada deals with more than 50 caterers in its worldwide operations. They include the two principal operators used by Air Canada, namely LSG Skychef and Gate Gourmet, the latter of which recently acquired Cara, the predominant operator at Canadian airports. The Agency notes that these two companies are the dominant airline caterers worldwide. Mr. Carvalho states that LSG Skychef and Gate Gourmet have advised him that "no guarantee can be made as to nut and peanut free meals" and asserts that, "In fact, there are currently no flight kitchens able to deliver on this guarantee."

[42] If Air Canada's caterers cannot provide a guarantee that a meal is nut free, given the inherent risk of cross-contamination, the Agency accepts that it is impossible for Air Canada to provide a guarantee that its snacks or meals will be nut free. The Agency therefore finds that it would constitute undue hardship for Air Canada to be required to serve within the buffer zone snacks and meals that are nut free.

[43] The Agency will now determine whether Air Canada has provided evidence to establish that it would create undue hardship on it not to serve within the buffer zone snacks and meals that contain nuts as a visible or known component.

[44] As reflected in the October Decision, it is neither practical nor possible to ban or eliminate all risks and substances to which a person may be allergic in a mass transportation system. This is clearly the case when addressing the risk of traces of peanuts or nuts due to cross-contamination. Taking this into account, the nature of reasonable accommodation is that the transportation service provider, recognizing the severity of an allergy, must take such measures as are reasonable in the circumstances to manage the risk of exposure to the allergen.

[45] Both Dr. Gordon Sussman, in his Report to the Canadian Transportation Agency, November 22, 2007, and Air Canada's expert, Dr. Peter Vadas, in his report, CTA Proceedings: Allergies, October 15, 2007, note that all individuals with peanut and other serious food allergies could potentially have critical and life-threatening reactions. Dr. Vadas further notes that routes of exposure may be mixed. With casual skin contact, there is a risk of transferring the food allergen from the skin (for example from hands) to the mouth, resulting in ingestion, which could lead to a systemic reaction. Currently, avoiding contact with the allergen is the only available preventative measure.

[46] While both experts are of the opinion that a buffer zone will not guarantee that an individual with an allergy will not come into contact with allergens and that an allergen-free environment would be impossible to implement, they agree that accommodating individuals with an allergy in an "allergen-safe" area would reduce the likelihood of topical or skin contact, contaminated surfaces and accidental ingestion.

[47] Air Canada submits that there are no caterers able to provide nut-free meals. Air Canada also asserts that it is not aware of the content and ingredients of the meals served on board its aircraft. This latter assertion appears to be inconsistent with Air Canada's Catering Policies as contained in its February 12, 2010 submission. As previously described, Air Canada informs all of its caterers that the following products shall not be used or added to any of its food:

  • Additives or preservatives
  • Artificial Colour, not derived from a natural product
  • MSG – Monosodium Glutamate
  • Gelatin/Aspic derived from animal not to be used for glazing
  • Peanut/Peanut Oil, or any item containing Peanut
  • Bean Sprouts

[48] In addition, Air Canada acknowledges there may be circumstances where items on the list of products not to be used in food prepared for Air Canada may, in fact, have to be used. This is by virtue of the exception in its Catering Policies: "If the above items are beyond caterers control and is part of the product from the supplier. Use of such products must be reviewed and approved by Air Canada."

[49] Air Canada indicates that it provides its Catering Policies to the more than 50 caterers with which it does business.

[50] Accordingly, it is clear that Air Canada can prohibit specified ingredients in snacks and meals served on board its aircraft and can require and expect to be advised of the exceptional situations where any such specified ingredients are contained in such snacks and meals. Of particular relevance to this case, one of those ingredients, as noted in Air Canada's Catering Policies, is peanuts.

[51] The issue then becomes whether it would cause Air Canada undue hardship to provide a similar prohibition and/or notification specification to its caterers with respect to nuts other than peanuts. In this assessment of undue hardship the Agency is only addressing the issue of snacks and meals which contain nuts as a visible or known component, as distinct from the existence of trace elements, and only with respect to snacks and meals which are to be served within the buffer zone.

[52] Reference must also be made to Air Canada's Special Meals Policy, which contains a list of the special meals Air Canada makes available to its passengers, and the foods that are used, or not used, in each meal type. Among other things, the list includes meals for passengers with special dietary needs or preferences such as vegetarian (no dairy/no eggs), vegetarian (lacto-ovo), vegetarian oriental, non-lactose, gluten-free, kosher, low cholesterol/low saturated fat, and diabetic.

[53] The Agency is of the opinion that the Special Meals Policy demonstrates Air Canada's ability to cater to a number of dietary needs or preferences. However, as noted above, the Agency accepts Air Canada's arguments that this does not establish that Air Canada can assure that meals provided by it are free of trace elements of non-acceptable ingredients such as nuts, to the extent that this may be relied upon, for example, by a person with an allergy to nuts. The Agency further accepts that any such incorrect assurance could have a significant, immediate, adverse medical impact for the person with the allergy. Accordingly, the Agency does not view the existence of meals reflecting special dietary needs or preferences as establishing that nut-free meals may be sourced in the same way.

[54] However, Air Canada has submitted no evidence to show that it cannot apply its Catering Policies and its Special Meal Policy with respect to meals that do not contain nuts as visible or known components.

[55] Therefore, the Agency finds that Air Canada, by applying its Catering Policies together with its Special Meals Policy, can issue specifications to its caterers requiring its caterers to provide snacks and meals that do not contain nuts as visible or known components. This would permit Air Canada to serve such snacks and meals within the buffer zone.

[56] Air Canada also argues that a total exclusion of nut products would cause significant problems for many passengers who rely on nuts as their main source of protein, such as in the case of those who have Hindi, vegetarian and vegan diets. However, the Agency did not order Air Canada to cease serving any special preference meals which necessitate the inclusion of nut products; rather, the order was to serve in the buffer zone nut-free foods. Therefore, Air Canada could still serve snacks or meals containing nuts, including those suitable for Hindi, vegetarian and vegan diets. However, these would be served outside of the buffer zone to passengers desiring them.

[57] With respect to Air Canada's encouragement for persons with disabilities due to their allergy to peanuts or nuts to bring their own meals, given that the Agency accepts that Air Canada cannot guarantee that its snacks and meals do not contain traces of peanuts or nuts due to the risk of cross-contamination, the Agency agrees that such persons may prefer to bring their own snacks or meals.

[58] Again, the Agency accepts that Air Canada cannot guarantee that snacks or meals served in the buffer zone will be free of traces of peanuts or nuts because of the risk of cross-contamination. However, with respect to Air Canada's ability to serve within the buffer zone snacks or meals that do not contain peanuts or nuts as visible or known components, the Agency finds that Air Canada has not established that it has exhausted all reasonable means of accommodation.

[59] Air Canada has demonstrated through its Catering Policies and Special Meals Policy that it can and does cater to a number of dietary needs or preferences. Given the specifications that Air Canada indicates it can provide to its caterers, the Agency finds that the evidence does not support a conclusion that Air Canada cannot provide, within the buffer zone, snacks and meals which do not contain peanuts or nuts as visible or known components.

[60] The Agency therefore finds that Air Canada has not demonstrated it would cause undue hardship to accommodate persons with disabilities due to their allergy to peanuts or nuts by serving, within the buffer zone, snacks and meals that do not contain peanuts or nuts as a visible or known component.

Conclusion

[61] With respect to the aspect of the appropriate accommodation which set out that only peanut-free and nut-free foods will be served by Air Canada as part of its onboard snack or meal service within the buffer zone, the Agency has accepted that it would constitute undue hardship for Air Canada to be required to serve within the buffer zone snacks and meals that do not contain traces of peanuts or nuts. Therefore, the Agency finds that a policy that allows the serving within the buffer zone of snacks and meals that may contain traces of peanuts and nuts as a result of cross-contamination does not constitute an undue obstacle to the mobility of persons with disabilities due to their allergy to peanuts or nuts.

[62] However, the Agency finds that Air Canada did not meet its burden of proof to demonstrate it will create undue hardship on Air Canada to accommodate persons with disabilities due to their allergy to peanuts or nuts by serving, within the buffer zone, snacks and meals that do not contain peanuts or nuts as visible or known components.

[63] Consequently, with respect to snacks and meals served within the buffer zone, Air Canada is required, as the reasonable accommodation for persons with disabilities due to their allergy to peanuts or nuts, to only serve within the buffer zone snacks and meals which do not contain peanuts or nuts as visible or known components, but which may contain traces of peanuts or nuts as a result of cross-contamination.

Order

[64] Taking into consideration the findings in this Decision, together with the acceptance by Air Canada to implement part of the order set out in the October Decision, Air Canada is required to, within 30 days from the date of this Decision, provide persons with disabilities due to their allergy to peanuts or nuts with the following accommodation measures:

  1. when at least 48-hour advance notice is provided to it by persons with disabilities due to their allergy to peanuts or nuts, Air Canada will create a buffer zone as follows for the passenger with a disability due to allergy to peanuts or nuts:
    1. for international wide-body aircraft executive class seating, the buffer zone will consist of the pod-seat occupied by the person with a disability due to their allergy to peanuts or nuts;
    2. for North American business class seating, the buffer zone will consist of the bank of seats in which the person with a disability due to their allergy to peanuts or nuts is seated;
    3. for economy class seating, the buffer zone will consist of the bank of seats in which the person with a disability due to their allergy to peanuts or nuts is seated, and the banks of seats directly in front of and behind the person. In areas where a bulkhead is either directly in front of or behind the bank of seats in which the person with a disability due to their allergy to peanuts or nuts is seated, the buffer zone will consist of the bulkhead, together with the bank of seats in which the person is sitting and the bank of seats directly in front of or behind the person (depending on the location of the bulkhead).
  2. to only serve within the buffer zone snacks and meals which do not contain peanuts or nuts as visible or known components, but which may contain traces of peanuts or nuts as a result of cross-contamination.
  3. to provide a briefing to passengers within the buffer zone that they must not eat peanuts or nuts, or foods which contain peanuts or nuts, and will only be served snacks and meals which do not contain peanuts or nuts.
  4. Air Canada personnel are to address situations where a passenger refuses to comply with this requirement by moving the non-obliging passenger or, if necessary due to that passenger's refusal to move, moving the person with the disability due to their allergy to peanuts or nuts to a seat where the buffer zone can be established.

Members

  • John Scott
  • Raymon J. Kaduck
  • J. Mark MacKeigan