Decision No. 111-AT-A-2017

December 15, 2017

APPLICATION by Jim Triantafilou, on behalf of his son Jacob Triantafilou, against Air Transat A.T. Inc. carrying on business as Air Transat (Air Transat).

Case number: 
17-50010

SUMMARY

[1] Jim Triantafilou, on behalf of his son Jacob Triantafilou, filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) against Air Transat regarding the carrier’s decision to deboard Jacob Triantafilou after he experienced two seizures on board.

[2] For ease of reference, Jim Triantafilou will be referred to as Mr. Triantafilou and Jacob Triantafilou will be referred to as Jacob.

[3] Mr. Triantafilou is asking for a formal apology from Air Transat; the removal of any restrictions for Jacob’s travel on future flights with Air Transat; and a reimbursement of “flight costs”. Mr. Triantafilou is also asking Air Transat to develop a valid, reliable tool to measure “responsiveness/unresponsiveness”.

[4] The Agency will address the following issue:

Can Air Transat remove the obstacle to Jacob’s mobility – either through a general modification to its policies and practices (and the application thereof), or, if that is not feasible, through an accommodation measure specific to him – without experiencing undue hardship?

[5] For the reasons set out below, the Agency finds that Air Transat can remove the obstacle to Jacob’s mobility without experiencing undue hardship. The obstacle to Jacob’s mobility is therefore undue.

BACKGROUND

[6] In Decision No. LET-AT-A-61-2017 (Decision), the Agency found that Jacob is a person with a disability, and that he encountered an obstacle to his mobility. More specifically, the Agency found that:

  • Jacob was removed from the August 11, 2016 flight because of the recommendation made by Medlink, a service offered by the MedAire company to Air Transat;
  • Air Transat personnel did not convey to Medlink all of the information provided to them by the Triantafilou family;
  • It is reasonable to expect that, without further explanation from Air Transat personnel, Air Transat’s approval of the administration of the sedative to Jacob would have represented a general acceptance of the resulting effects of the sedative;
  • Jacob was required by Air Transat to obtain a “fit to fly” medical note before any future flight, however this condition was subsequently lifted without any explanation;
  • The process that led to the recommendation from MedLink that Jacob be disembarked appears flawed;
  • The conditions imposed by Air Transat for future travel by Jacob appear inconsistent.

THE LAW

[7] The application was filed pursuant to subsection 172(1) of the CTA, which reads 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.

[8] The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a three-part approach.

[9] First, the Agency considers whether the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA.

[10] Second, if the Agency determines that the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA, the Agency determines whether they encountered 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.

[11] Third, if the Agency determines that the applicant is a person with a disability and that they encountered an obstacle, the Agency assesses whether the respondent can, without experiencing undue hardship, remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if that is not feasible, through an accommodation measure.

[12] In this decision, the Agency will address the third issue identified above.

POSITIONS OF THE PARTIES

Air Transat’s position

[13] Air Transat contends that the Agency, in determining that Jacob should not have been disembarked after having experienced a seizure and having been administered a sedative, seems to have substituted its judgment to the medical opinion of Air Transat’s MedAire service. Air Transat asserts that contacting MedAire and following its medical opinion is always the appropriate measure to be taken when faced with an onboard medical situation. Air Transat submits that a change of policy or practices would be unreasonable.

[14] In respect of the communication of the medical information to MedAire, Air Transat submits that the evidence does not support the Agency’s statement regarding MedAire not having been informed that Jacob was not travelling alone. Rather, Air Transat submits that MedAire was informed of the contrary in the “medical opinion” which states that Jacob “was given rectal diazepam”, which indicates that he was accompanied. Air Transat further submits that, even though Jacob was accompanied by his family on his flight, “some medical training” might be required to address an emergency situation where passengers are required to stay seated with their seat belts fastened.

[15] Air Transat admits that, in this specific case, it might have been preferable to contact MedAire before allowing the administration of a sedative to Jacob. Air Transat notes, however, that nothing indicates that not administering the sedative would have resulted in Jacob being declared fit to travel by MedAire. Air Transat asserts that a state of unresponsiveness may have various stages and that being tired, very drowsy and having difficulty to get up, as it was in Jacob’s situation, can easily be considered as such a stage.

[16] Air Transat states that it will continue to consider Jacob’s fitness to travel based on his state of responsiveness (or drowsiness), which it associates to his ability to react in case of an emergency situation. Air Transat adds that it should continue to require Jacob to take his medications to minimize the possibility of seizures on board, and adds that its “final decision” will be based on his state of responsiveness when boarding the plane.

Mr. Triantafilou’s position

[17] Mr. Triantafilou does not contend that disembarking is an unreasonable option in response to an “unresponsive” passenger experiencing a medical emergency. Rather, he argues that in Jacob’s situation, Air Transat’s actions were based on prejudicial perceptions toward people with epilepsy. Mr. Triantafilou submits that Air Transat’s “unresponsiveness argument” toward Jacob is not supported by the evidence filed by Air Transat, and that there is no reference to unresponsiveness in MedAire’s “Incident Information” document, the “Passenger-Incident” document and the Gatwick ground crew reports. Mr. Triantafilou states that Air Transat did not apply any assessment to conclude that Jacob was “unresponsive” and that his “unresponsiveness” was qualitatively different from the napping passenger behind him or the alcohol consuming passenger in front of him.

[18] In response to Air Transat’s assertion that its “final decision” on Jacob’s fitness to travel will be based on his state of responsiveness upon boarding, Mr. Triantafilou indicates that Jacob will gladly oblige when Air Transat has developed a valid, reliable assessment tool to measure “responsiveness”, and when this tool is applied to all passengers who may represent an onboard medical risk, including people with epilepsy.

ANALYSIS AND DETERMINATION

Can Air Transat remove the obstacle to Jacob’s mobility – either through a general modification to its policies and practices (and the application thereof), or, if that is not feasible, through an accommodation specific to him – without experiencing undue hardship?

[19] Air Transat asserts that in its Decision, the Agency substitutes its judgment for the medical opinion of Air Transat’s MedAire service. This is a misreading of the Decision, which makes no assessment of whether Jacob should have been disembarked but rather, finds that Air Transat’s decision to disembark Jacob could have been better informed and better communicated to the Triantafilou family. Air Transat acknowledges that there was a lack of communication in that it might have been preferable to contact MedAire before allowing the administration of a sedative to Jacob.

[20] Similarly, contrary to Air Transat’s submission, the Decision does not question the responsibility of carriers to ensure the safety and security of passengers and, in this connection, the procedure whereby Air Transat contacts MedAire and follows its advice when faced with an onboard medical situation. This procedure, however, must be applied in a manner that does not unnecessarily restrict the access of persons with disabilities to transportation services.

[21] Air Transat asserts that the implied reference to the sedative having been administered by someone other than Jacob himself (i.e. “was given”) demonstrates that MedAire was informed Jacob was not travelling alone. However, there is no reference in the “Medlink Airline Passenger Fit to Fly Notification Form” to the fact that Jacob was travelling with his family. Even if such a reference had been made, there is nothing in the form indicating that this information would have been taken into consideration when assessing Jacob’s fitness to travel and his ability to react appropriately in an emergency situation.

[22] Air Transat further submits that, even if Jacob is accompanied by his family, “some medical training” might be required to address an emergency situation. Air Transat does not explain what such medical training might entail, and which passengers should be subject to such a requirement. It is also unclear how the handling of an emergency situation in Jacob’s case would differ from the handling of an emergency situation in the case of other persons with disabilities who require assistance, or even people who are unresponsive for other reasons (e.g. passengers who take sleeping medication or become inebriated).

[23] In addition, Air Transat provides no explanation as to how and why the assessment of Jacob’s responsiveness should be different than the assessment of responsiveness of other passengers, nor does it explain how Jacob’s being drowsy and having difficulty to get up equates to him being unresponsive, nor how this would result in his inability to react appropriately in an emergency situation.

[24] Finally, Air Transat maintains that it should continue to require Jacob to take his medication before a flight to minimize the possibility of seizures on board and that its “final decision” will be based on Jacob’s state of responsiveness when boarding the plane. There is an inherent tension between the two elements of this position, since some of Jacob’s medication may cause him drowsiness; possibly resulting in Air Transat’s denying him boarding.

[25] In light of the above, the Agency finds that Air Transat has not demonstrated that it could not remove the obstacle to Jacob’s mobility without undue hardship. More specifically, Air Transat has not demonstrated that it could not have:

  • transmitted all of the information provided by the Triantafilou family to its MedAire service;
  • contacted MedAire before approving the administration of the sedative;
  • informed the Triantafilou family that the effect of the sedative could affect Jacob’s ability to travel; and,
  • performed an individual assessment of Jacob’s responsiveness based on established criteria.

[26] The Agency therefore finds that the obstacle to Jacob’s mobility is undue.

ORDER

[27] The Agency orders Air Transat to:

  • Create a tool for assessing responsiveness of passengers that includes a list of defined criteria to be used in situations like the one experienced by the Triantafilou family. This assessment tool is to be developed in consultation with appropriate medical experts and organizations representing persons with disabilities that may result in symptoms or behaviours that are, or appear to be, akin to unresponsiveness, with the specific goal of ensuring that it does not have an adverse impact on those persons.
  • Ensure that the assessment criteria are publically available to passengers who identify as having a condition that might require an assessment of responsiveness.
  • Establish a procedure that ensures timely, complete, and appropriately sequenced communication of information between onboard staff, Air Transat’s MedAire service, and the passenger with a disability when a medical situation arises.
  • Reflect and incorporate the three measures listed above in the applicable policies, procedures, and staff training material and courses.

[28] Air Transat is required to comply with those measures by March 14, 2018.

Member(s)

Scott Streiner
Sam Barone
Stephen Campbell
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