Decision No. 160-AT-A-2023

Summary

[1] Hunter Troup filed an application with the Canadian Transportation Agency (Agency) against Air Canada concerning Air Canada’s refusal to accept her dog for travel between Canada and Cuba.

[2] Ms. Troup states that she needed to travel to Cuba in July 2019 and called Air Canada’s medical desk in May 2019 in preparation, requesting to travel with her dog as a disability-related accommodation. Ms. Troop was told that, in order to be permitted on board the flight, her dog must be certified as a service animal.

[3] Ms. Troup requests that, “as an owner trained service dog handler”, she be permitted to travel with her dog and that, if documentation regarding training is required, she be allowed to submit an affidavit stating that her dog has completed such training.

[4] In Decision LET-AT-A-15-2020 (Interim Decision), issued on March 5, 2020, the Agency found that Ms. Troup is a person with a disability, that her dog is an ESA because he is not certified as a service dog and that she faced an obstacle to her mobility when she was unable to travel between Canada and Cuba with her ESA. At that time, the Agency was conducting consultations on Phase II of the Accessible Transportation for Persons with Disabilities Regulations (ATPDR), which included consideration of what, if anything, to require of transportation service providers with respect to the transport of ESAs and service animals other than dogs. The Agency was of the opinion that it was appropriate and in the interests of justice to stay Ms. Troup’s case until completion of this consultation process, which considered ESA-related issues in a more comprehensive and systematic manner than an individual adjudicative process would allow. The subsequent process leading to this decision is described in the following section.

[5] For the reasons set out below, the Agency finds that Ms. Troup did not demonstrate that the obstacle she faced was undue. Therefore, the Agency finds that the obstacle that prevents Ms. Troup from travelling with her ESA in the cabin of the aircraft is not undue and dismisses the application.

Background

[6] The Agency’s consultations on Phase II of the ATPDR closed on February 28, 2020. The Agency subsequently stated in its “What We Heard” report, published on November 26, 2020, that the input received during these consultations did not lead to a clear regulatory option for ESAs and that it would continue to examine options and to deal with individual ESA-related applications.

[7] The Agency’s individual adjudication process balances the rights of a person with a disability to participate fully in society and be free of discrimination with competing considerations — such as those relating to health, safety or the financial consequences of accommodation. For the ESA-related cases before it, the Agency was of the view that its adjudicative processes not only needed to consider these factors in the specific context of the carriers who were parties, but also needed to examine the broader implications for the federal transportation network and others moving through it.

[8] The Agency commissioned an expert veterinary report to further its understanding of the considerations applicable to the transport of animals on board the various modes of federal transportation. The Expert Report Regarding the Carriage of Emotional Support Animals On Board Transportation Equipment (Expert Report) was published on the Agency’s website on July 6, 2022.

[9] In December 2022, the Agency published a detailed summary of the evidence it received on ESA issues during Phase II of the ATPDR consultations. The Agency is of the view that the record of these consultations contains a wide breadth of concrete evidence from a diverse group of parties and interested persons who presented the full range of rights, interests and concerns affected by the presence of ESAs in the federal transportation network.

[10] On December 14, 2022, the Agency joined Ms. Troup’s application with five other applications in which applicants seek to travel with an animal that is or could be an ESA. The applications were joined in Decision LET-AT-55-2022 (Preliminary ESA Decision) to provide an efficient process to consider, from a broader perspective, whether carriers should be required to transport ESAs within the federal transportation network, and if so, under what conditions.

[11] In the Preliminary ESA Decision, the Agency examined whether ESAs can be carried without causing undue hardship to carriers when an applicant has demonstrated that they have a mental health-related disability requiring them to travel with an ESA. The Agency’s analysis considered the unique features and constraints of air and rail passenger travel environments; examined implications for other components of the broader federal transportation network; and sought to reconcile accommodation of those who rely on ESAs with the health and safety of others present in the federal transportation network, including other persons with disabilities with their own disability-related needs — particularly those travelling with service dogs — the travelling public and transportation personnel.

[12] The Agency provided parties and interested persons with an opportunity to respond to the Agency’s preliminary findings. The Agency received submissions on the Preliminary ESA Decision from most parties, including Ms. Troup and Air Canada, which it took into consideration. As stated in Decision 105-AT-C-A-2023 (Final ESA Decision), the Agency is satisfied that there is a sound evidentiary basis for the Agency’s decision and that the full range of views on ESA-related issues were reflected through the Preliminary ESA Decision process.

[13] In the Final ESA Decision, the Agency found that:

• acceptance of a species other than a dog as an ESA would cause undue hardship for carriers;
• while domesticated dogs may generally be suitable as ESAs, the unrestricted carriage of emotional support dogs (ESDs) would cause undue hardship for carriers due to health and safety risks, animal behaviour and welfare concerns, and the impacts of fraudulent representation of pets as ESDs; and
• with appropriate conditions and safeguards, carriers could carry some ESDs without undue hardship. One of these conditions is that the ESD must fit comfortably in an appropriate animal carrier that must fit and be kept under the seat in front of the person with a disability for the duration of the trip by air.

[14] Following the issuance of the Final ESA Decision, the Agency returned to Ms. Troup’s application to adjudicate the outstanding issues. In Decision LET-AT-A-35-2023 (Show Cause Decision), issued on September 20, 2023, the Agency found on a preliminary basis that the obstacle that Ms. Troup faced was not undue, and provided her with an opportunity to demonstrate why the Agency should not finalize this preliminary finding and dismiss the application.

The law

[15] The application was filed pursuant to subsection 172(1) of the Canada Transportation Act (CTA), which, at the time of the application, read as follows:

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.

[16] The Agency determines whether there is an undue obstacle to the mobility of a person with a disability using a two-part approach:

Part 1: The onus is on the applicant to demonstrate, on a balance of probabilities, that:

• they have a disability for the purposes of Part V of the CTA

and

• they faced an obstacle. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.

Part 2: If it is determined that an applicant has a disability and faced an obstacle, the onus shifts to the respondent to either:

• explain, taking into account any proposals from the applicant, how it proposes to remove the obstacle through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting an obstacle, or, if a general modification is not feasible, an individual accommodation measure;

or

• demonstrate, on a balance of probabilities, that it cannot remove the obstacle without experiencing undue hardship.

[17] The opening pleadings letter and the Interim Decision outlined that if the Agency determines that an applicant is a person with a disability, it would then determine whether they faced a “barrier”. However, at the time the incident occurred, subsection 172(1) of the English version of the CTA used the term “obstacle” instead of “barrier”; and in the French version, the CTA referred to “déficience” and “personne ayant une déficience” rather than “handicap” and “personne handicapée”. Therefore, throughout this decision, the Agency uses “obstacle” in English and “déficience” and “personne ayant une déficience” in French.

Positions of the parties

Ms. Troup

[18] Ms. Troup submits that travelling with her ESA in an animal carrier that does not fit under the seat in front of her, or at a place where her ESA cannot help, is pointless. In previous submissions, she pointed out that her ESA in an animal carrier cannot perform the tasks that it is trained to do. She argued that her ESA is her assistive device and is no different than someone using a cane, a wheelchair or a walker which must be available when needed.

[19] She believes that she is fighting a losing battle until the Province of Ontario changes its approach to service dog testing and licensing. Currently, there is no certification agency or regulated institute to certify a dog trained by its owner or private trainers. For a person who uses a dog to meet their disability-related needs, it may be financially prohibitive to access existing training and certification organizations, or those organizations may only train dogs for specific tasks for specific disabilities, which may not meet that person’s needs.

Air Canada

[20] Air Canada argues that it would face undue hardship in carrying Ms. Troup’s ESA unless it is in an appropriate animal carrier that fits under the seat in front of her. Air Canada submits that, given the absence of any additional information from Ms. Troup, there is no specific issue or individual circumstance that would prevent the Agency from finalizing the preliminary finding set out in the Show Cause Decision.

Analysis and determination

[21] In this case, the Show Cause Decision took the place of pleadings on Part 2 of the Agency’s approach because, as noted above, the Agency concluded in the Final ESA Decision that the unrestricted carriage of ESDs would cause undue hardship for carriers.

[22] The Agency considered the scientific and qualitative evidence regarding the risks to human health and safety for the flight crew, other passengers and service dogs due to unsanitary conditions and risk of disease transmission; the animal behaviour and welfare concerns for both the ESDs and service dogs; and the impacts of fraudulent representation of pets as ESDs. In light of this evidence, the Agency identified the condition that an ESD must fit comfortably in an appropriate animal carrier that fits under the seat in front of the person with a disability for the duration of the trip as reasonable because it found that:

• any assurances that a carrier receives from a passenger travelling with an ESD about the disposition, training and behaviour of their dog cannot take the place of the training certification from an organization or person specializing in service dog training that is required under the ATPDR for service dogs;
• carriers do not have the specialized expertise needed to properly determine whether an ESD can behave appropriately in public, and it would cause undue hardship to require them to make such a determination; and
• the Agency cannot impose specific training requirements as an efficient mitigation measure because there is no recognized, standardized public-access training and certification for ESDs and their users as a team.

[23] The Agency found that this condition was reasonable to manage the risks inherent in the carriage of ESDs.

[24] At the time she wanted to travel, Ms. Troup indicated that her ESA was a Smooth Fox Terrier and that he was too large to fit in an animal carrier under the seat in front of her on an aircraft. Consequently, she could not comply with this condition to travel with an ESA in the cabin of an aircraft.

[25] In the Show Cause Decision, the Agency found on a preliminary basis that the obstacle that prevents Ms. Troup from travelling with her ESA in the cabin of the aircraft is not undue, because it would cause Air Canada undue hardship to carry her ESA in the cabin if it cannot fit comfortably in an appropriate animal carrier that fits under the seat in front of her.

[26] Ms. Troup’s response to the Show Cause Decision does not provide any new information that would lead the Agency to depart from its preliminary finding. Accordingly, the Agency finds that she did not demonstrate that the obstacle she faced was undue.

Conclusion

[27] The Agency finds that the obstacle that prevents Ms. Troup from travelling with her ESA in the cabin of the aircraft is not undue and dismisses the application.

Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	172(1)