Ongoing Allergy Cases – Update

Updated March 23, 2015

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.

Find out more on the formal process for the resolution of accessibility-related complaints.

Peanut and Nut Allergies

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.

For more information, see Decision No. 228-AT-A-2011 and the news release on the decision related to peanut and nut allergies.

Following this decision, the Agency determined that these accommodation measures also apply to Air Canada Jazz in Decision No. 134-AT-A-2013.

Other Food Allergies

On March 28, 2013, the Agency issued Decision No. 134-AT-A-2013, which addressed Air Canada and Air Canada Jazz's accommodation for persons with allergies to sesame seeds, as well as to all other foods except peanuts and nuts.

The Agency found that reseating is the appropriate accommodation. This option should be provided upon request and when possible, based on safety considerations.

Persons with severe allergies are also expected to take the same precautions they take in their daily lives, such as:

  • bringing their own food;
  • using disinfectant wipes to wipe down surrounding surfaces;
  • wearing a mask; and
  • carrying Epi-pens and hand sanitizer.

There may be situations where:

  1. a passenger is allergic to peanuts and/or nuts in addition to another food allergen; and
  2. a buffer zone has been established as a result of the passenger's allergy to peanuts and/or nuts.

In these situations, it would be appropriate to reseat any passengers consuming the other food allergen outside the buffer zone and away from the person with a disability.

Environmental Sensitivities

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.

For more information, see Decision No. 245-AT-A-2010.

Perfume allergy

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.

For more information, see Decision No. 416-AT-A-2010.

Dogs in aircraft cabins

In February 2012, a person with a dog allergy disability filed a complaint against Air Canada regarding Air Canada's policy allowing the carriage of dogs as pets in its aircraft cabins. The complainant informed Air Canada of her condition before her flight and also ensured that the carrier had noted her medical issues at check-in. However, once onboard, a passenger who was carrying a dog was seated directly in front of her. As a result, the complainant had allergy attacks.

During its investigation, the Agency recognized that service dogs are commonly used by persons with disabilities and therefore agreed to also consider the parties’ submissions with respect to the carriage of service dogs in the cabin in its determination of the accommodation measures to be provided to persons with a dog allergy disability.

As the Agency found that an undue obstacle existed, it issued Decision No 303-AT-A-2013. It determined that Air Canada would be required to develop and implement policies and procedures necessary to provide appropriate accommodation and training to its staff, when at least 48 hours advance notification is provided to the carrier by persons with a dog allergy disability. Air Canada would also need to use best efforts to do the same when less than 48 hours advance notification is provided. The Agency directed the carrier to implement the corrective measures listed below, by no later than September 16, 2013.

Corrective measures

With respect to dogs carried as pets

On aircraft with air circulation/ventilation systems using HEPA filters or which provide 100 percent unrecirculated fresh air:

  • a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a dog allergy disability and pet dogs, including during boarding and deplaning and between their seat and a washroom; or,
  • a ban on pet dogs in the aircraft cabin in which a person with a disability as a result of their allergy to dogs is travelling.

On aircraft without air circulation/ventilation systems using HEPA filters or which do not provide 100 percent unrecirculated fresh air, provide:

  • a ban on pet dogs in the aircraft cabin in which a person with a disability as a result of their allergy to dogs is travelling.

When advance notification of less than 48 hours is provided by persons with a dog allergy disability, a ban on pet dogs is to be implemented if no person travelling with a pet dog has already booked their travel on the selected flight.

If a person travelling with a pet dog has already been booked on the flight, persons with a dog allergy disability must be provided with the same flight ban accommodation within 48 hours on the next flight available on which there is no person with pet dog already booked.

If the next available flight is beyond the 48-hour period, persons with a dog allergy disability must be given priority and provided with the accommodation measures applicable when the 48-hour advance notice is given by the person with a dog allergy disability.

With respect to service dogs

On aircraft with air circulation/ventilation systems using HEPA filters or which provide 100 percent unrecirculated fresh air:

  • a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a dog allergy disability and service dogs, including during boarding and deplaning and between their seat and a washroom.

On aircraft without air circulation/ventilation systems using HEPA filters or which do not provide 100 percent unrecirculated fresh air:

  • give the booking priority to whomever completed the booking first: either the person with a dog allergy disability or the person travelling with a service dog. A person with a dog allergy disability and a service dog will not be accepted on the same flight using aircraft that do not have HEPA filters or which do not provide 100 percent unrecirculated fresh air.

Application before the Federal Court of Appeal

Following the issuance of Decision No 303-AT-A-2013, Air Canada applied to the Federal Court of Appeal for leave to appeal the Agency’s decision. Leave to appeal was granted on October 10, 2013.

The issues raised by Air Canada are with respect to:

  • the Agency's  process;
  • the Agency's application of the burden of proof; and,
  • the corrective measures applicable to the carriage of service dogs on flights subject to U.S. regulation.

Federal Court of Appeal Decision

On December 9, 2014, the Federal Court of Appeal issued its decision. The Court found that, in the particular circumstances of this case, Air Canada was denied procedural fairness.

This decision was based on the Agency's refusal to consider Air Canada's submissions on the grounds that they were filed past the deadline.

The Court therefore allowed the appeal, set aside the Agency's final decision and returned the matter to the Agency for reconsideration.

As the complainant has since withdrawn her application before the Agency, this case is now closed.

Cats in aircraft cabins

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.

Corrective Measures

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.

For more information, please see the Agency's Decision related to the carriage of cats in aircraft cabins.

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