Decision No. 243-AT-A-2002

May 10, 2002

May 10, 2002

IN THE MATTER OF the jurisdictional question, arising in the context of applications filed pursuant to subsections 172(1) and (3) of the Canada Transportation Act , S.C., 1996, c. 10 by Emma Zolbrod; Don Nason; Joel W. Kideckel on behalf of his wife, Norma Kerr; Ursula Carr; Marliss McIntyre; Dan Skwarchuk; and Dr. Terri E. Weinberg on behalf of her daughter against Air Canada, of whether an allergy is a disability for the purposes of Part V of the Canada Transportation Act.

File Nos. U3570/00-51
U3570/00-86
U3570/01-2
U3570/01-24
U3570/01-32
U3570/01-43
U3570/01-44


INTRODUCTION

Between August 2000 and July 2001, the Canadian Transportation Agency (hereinafter the Agency) received seven complaints against Air Canada regarding allergies. Four of the complaints were filed by passengers who experienced allergic reactions during their flights, which they attribute to the presence of animals in the passenger cabin. One complaint was filed by a passenger who raised concerns about the presence of two cats in the passenger cabin during his flight although he did not experience an allergic reaction. Another was filed by a passenger regarding the lack of sensitivity of the cabin crew in response to her allergy-related concerns about the presence of a bouquet of flowers in the cabin area and to her request for alternative seating away from the flowers. Finally, a passenger filed a complaint on behalf of her daughter with respect to the carrier's attitude towards her requests for assistance to address her daughter's allergies to fresh paint and certain foods.

As a result of a jurisdictional challenge as to whether an allergy is a disability for the purposes of Part V of the Canada Transportation Act (hereinafter the CTA), which Air Canada brought before the Agency in response to two of the complaints, the Agency decided to address the jurisdictional question as a preliminary matter. The Agency further decided that it would address the foregoing complaints following its determination of the jurisdictional question. As such, this Decision addresses the issue of whether an allergy is a disability for the purposes of Part V of the CTA.

Pursuant to subsection 29(1) of the CTA, the Agency is required to make its decision no later than 120 days after an application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.

BACKGROUND

Details of the various complaints are provided below by way of background to the Agency's determination of the jurisdictional question of whether an allergy is a disability for the purposes of Part V of the CTA.

Complaint filed by Emma Zolbrod

On August 10, 2000, Emma Zolbrod filed a complaint with the Air Travel Complaints Commissioner (hereinafter the Commissioner) regarding an allergic reaction she experienced during an Air Canada flight between Paris, France and Toronto, Ontario on December 21, 1999. Included in Ms. Zolbrod's complaint were copies of previous correspondence between her and Air Canada on the matter.

Ms. Zolbrod notes in her complaint that, as part of her allergic reaction, she suffered an asthma attack that lasted for the duration of the flight of more than eight hours. Ms. Zolbrod also notes that her sinuses became congested and that this caused her considerable pain, particularly during the aircraft's descent. Ms. Zolbrod attributes her allergic reaction to a cat that was transported in the passenger cabin during the flight.

Subsequent to the filing of her complaint with the Commissioner, Ms. Zolbrod requested that the Agency examine her complaint pursuant to the provisions of subsections 172(1) and 172(3) of the CTA.

On September 25, 2000, Air Canada filed its answer to the application. Air Canada advises that it was unable to issue compensation in light of the nature of Ms. Zolbrod's complaint. Air Canada notes that when its agents are notified by a passenger that he or she will be carrying an animal in the cabin, this information is recorded in the passenger's file. This information is then available to all agents through the Passenger Name Record and the reservations system.

On October 3, 2000, Ms. Zolbrod filed her reply. She expresses the view that it is ineffective for the carrier to offer this information only upon request by a passenger given the possibility of a passenger with allergies checking-in prior to the boarding of another passenger carrying an animal as carry-on baggage. Ms. Zolbrod further states that a prominent sign should be displayed at check-in counters alerting passengers to the possible presence of animals in the cabin. Finally, Ms. Zolbrod raises concerns regarding hygiene and submits that, because cabin air is recirculated throughout an aircraft, the size of the plane is irrelevant.

On November 14, 2000, Air Canada responded to Ms. Zolbrod's reply. Air Canada advises that most passengers make arrangements for the transportation of animals in advance of the flight, such that the information is available to agents when passengers check in. With respect to Ms. Zolbrod's suggestion pertaining to signage, Air Canada expresses the view that this could leave passengers with a false sense of security about the level of control Air Canada has over the presence of allergens onboard its aircraft. Air Canada notes that, for these reasons, it has no policy on the transportation of passengers who have allergies to animals. Finally, Air Canada indicates that cat hair is "the element causing feline allergy" and notes that cabin ventilation systems are equipped with filters retaining animal hair and preventing its recirculation within the aircraft. Air Canada states that, as a result, it is usually able to accommodate both a passenger with an allergy and one carrying an animal on a large aircraft when they are seated far apart.

On November 22, 2000, Ms. Zolbrod filed additional comments. She notes that it is apparent from Air Canada's submission of November 14 that it is not mandatory for passengers to make arrangements for the transportation of animals prior to check-in. Ms. Zolbrod indicates that a solution to the problem would be for Air Canada to enforce a cut-off period, prior to check-in, until which time a passenger can make arrangements for the transportation of an animal onboard an aircraft. Ms. Zolbrod explains that she is not requesting that Air Canada guarantee an environment that is free of allergens; rather, that it should attempt to minimize the allergens which are directly within its control. Ms. Zolbrod asserts that Air Canada has elected to sacrifice the comfort and safety of many of its passengers for the convenience of a few who may travel with their animals. Ms. Zolbrod explains that the purpose of her suggestion for signage is to ensure that passengers are aware of Air Canada's change in policy to transport animals in the passenger cabin. Ms. Zolbrod submits that it is a prevalent misconception that people are allergic to animal hair. She explains that the allergens are, in fact, animal dander which can stay airborne for hours, and a protein found in the oils, saliva or urine of animals.

Complaint filed by Don Nason

On September 8, 2000, Don Nason filed a complaint with the Commissioner regarding the presence of two cats in the passenger cabin on an Air Canada flight between Halifax, Nova Scotia and Toronto, Ontario on January 13, 2000. Included in Mr. Nason's complaint were copies of previous correspondence between him and Air Canada on the matter.

Mr. Nason states that he is extremely allergic to cats, has an eye disorder attributable to cats and experiences breathing problems that can incapacitate him for days as a result of exposure to cats. Mr. Nason notes, however, that he did not experience an allergic reaction as a result of the presence of the cats in the passenger cabin.

On October 13, 2000, Air Canada filed its answer to Mr. Nason's complaint. Air Canada explains that, in common with many international carriers, it has allowed small pets to be carried as cabin baggage for over ten years. Air Canada acknowledges that some passengers have sensitivities to animals but notes that it would be impossible for any carrier to offer an allergen-free environment given the wide variety of allergies or other personal medical conditions which exist. Air Canada submits that persons who have allergies must take appropriate precautions, including carrying and using medication, if necessary, whether onboard an aircraft or in any other public place.

On October 20, 2000, Mr. Nason filed his reply to Air Canada's answer. In his reply, he provides information on the dangers of fleas which are common to animals, including cats.

On December 12, 2000, Mr. Nason requested that the Agency examine his complaint pursuant to the provisions of subsections 172(1) and 172(3) of the CTA.

Complaint filed by Joel W. Kideckel on behalf of his wife, Norma Kerr

On August 22, 2000, Joel W. Kideckel filed a complaint with the Commissioner on behalf of his wife, Norma Kerr, regarding the lack of sensitivity of the cabin crew and the captain in response to concerns she raised about her allergies to flowers.

Mr. Kideckel notes that, during an Air Canada flight between Toronto, Ontario and Los Angeles, California on July 23, 2000, Ms. Kerr was seated near a passenger carrying a bouquet of flowers. Mr. Kideckel advises that when Ms. Kerr requested alternative seating in the business class section of the plane in order to be further away from the flowers, the ticket agent stated that she did not care about Ms. Kerr's health concerns. Mr. Kideckel further indicates that when Ms. Kerr reiterated her concerns to the captain and a flight attendant, the captain told her that he did not care about her health concerns and that he would rather take the chance of having to make an emergency landing if she got ill than allow her to sit in the business class section. Mr. Kideckel explains that the only reason why Ms. Kerr wanted to sit in the business class section was to be as far away from the flowers as possible as prolonged exposure could result in an anaphylactic reaction and hospitalization. Finally, Mr. Kideckel submits that the captain and a member of the cabin crew were "combative and argumentative".

On January 2, 2001, Mr. Kideckel requested that the Agency examine Ms. Kerr's complaint pursuant to the provisions of subsections 172(1) and 172(3) of the CTA.

In response to an e-mail from Mr. Kideckel dated January 28, 2001 wherein he advises that he is pursuing Ms. Kerr's complaint with Air Canada's ombudsman, the Agency, by Decision No. LET-AT-A-48-2001 dated February 9, 2001, stayed the proceedings in respect of Ms. Kerr's application. On July 11, 2001, Ms. Kerr advised the Agency that she wished to pursue her complaint against Air Canada. On July 16, 2001, Air Canada was provided with a copy of Ms. Kerr's application.

Complaint filed by Ursula Carr

On January 9, 2001, Ursula Carr filed a complaint with the Commissioner regarding the presence of a cat in the passenger cabin on an Air Canada flight between Toronto, Ontario and Calgary, Alberta, on January 2, 2001.

Ms. Carr notes that she was seated near a passenger travelling with a cat and, as a result, she experienced an allergic reaction during the flight. Ms. Carr explains that she developed hives all over her body, became congested, and developed a headache and an eye irritation.

On March 2, 2001, Ms. Carr requested that the Agency examine her complaint pursuant to the provisions of subsections 172(1) and 172(3) of the CTA.

On April 12, 2001, Air Canada advised the Agency that it considers "that cat allergy, by itself, is not a disability affecting mobility. Therefore we believe that Mrs. Carr's complaint would not fall under the Accessible Directorate's jurisdiction.".

Complaint filed by Marliss McIntyre

On March 27, 2001, Marliss McIntyre filed a complaint with the Commissioner regarding the transportation of a cat in a carry-on case under her seat on an Air Canada flight between Toronto, Ontario and Saskatoon, Saskatchewan on February 22, 2001.

Ms. McIntyre states that she suffered an allergic reaction that caused considerable irritation to her eyes, nose, and throat. Ms. McIntyre notes that, approximately forty minutes after advising the flight attendant of her allergy problems, she was provided with alternative seating several rows ahead of her seat but that this did not alleviate her allergic reaction.

On April 12, 2001, Ms. McIntyre requested that the Agency examine her complaint pursuant to the provisions of subsections 172(1) and 172(3) of the CTA. On this same date, Air Canada was provided with a copy of Ms. McIntyre's application.

In its letter dated May 14, 2001, Air Canada advises that it considers "that cat allergy, by itself, is not a disability affecting mobility." Air Canada also expresses the view that the Agency does not have jurisdiction in this matter.

On May 31, 2001, Ms. McIntyre filed her reply to Air Canada's submission of May 14. Ms. McIntyre questions why Air Canada does not consider an allergy to cats to be a disability, given "discomfort of swollen, watering, burning eyes, lack of ability in having clear vision, multiple sneezing, running of nose made seeing and breathing very difficult. Include the very itchy rash on my arms, neck, head and throat made the entire flight uncomfortable and painful.".

Complaint filed by Dan Skwarchuk

On May 28, 2001, Dan Skwarchuk filed a complaint with the Commissioner regarding the presence of a dog in the passenger cabin on an Air Canada flight between Winnipeg, Manitoba and Denver, Colorado, on March 22, 2001. Included in Mr. Skwarchuk's complaint were copies of previous correspondence between him and Air Canada on the matter.

Mr. Skwarchuk states that he is highly allergic to animals with fur and that he experienced an allergic reaction as a result of the dog being onboard the aircraft. Mr. Skwarchuk explains that he experienced considerable irritation and pain to his sinuses and ears and that, as a result, his hearing was significantly impaired. Mr. Skwarchuk notes that a hearing specialist has advised him that there is extensive fluid pushing against his eardrums and that this condition usually takes between one and six weeks to disappear. Mr. Skwarchuk also notes that when he requested a change in seats during the flight in order to be further away from the dog, he was informed that his request could not be accommodated because the flight was full.

On June 26, 2001, Mr. Skwarchuk requested that the Agency examine his complaint pursuant to the provisions of subsections 172(1) and 172(3) of the CTA.

Complaint filed by Dr. Terri E. Weinberg on behalf of her daughter

By letters dated August 3 and 8, 2000, Dr. Terri E. Weinberg filed, on behalf of her daughter, a complaint with the Agency and the Commissioner regarding Air Canada's attitude towards the concerns she had raised pertaining to her daughter's food allergies and a seizure disorder which is triggered by exposure to fresh paint and other volatile organic compounds.

Dr. Weinberg asserts that Air Canada refused to have her daughter escorted through the airport terminal to avoid any fresh paint that may have been present and that the carrier tried to prevent her daughter from travelling on a prearranged flight between Toronto, Ontario and Los Angeles, California, on December 2, 2000, despite the fact that medical clearance had been obtained from her daughter's physician. Dr. Weinberg also asserts that Air Canada would neither discuss special meal options in order to address her daughter's food allergies nor would it provide the name of its caterer and that, initially, the carrier would not give its approval for the special meals that Dr. Weinberg had eventually arranged with Air Canada's caterer.

On June 12, 2001, Dr. Weinberg requested that her complaint be addressed pursuant to the accessibility provisions of the CTA.

On July 6, 2001, Dr. Weinberg provided the Agency with a copy of a letter dated July 10, 2001 from her daughter's physician wherein he states that her daughter "...has a seizure disorder. She needs to avoid exposure to fresh latex, oil-based and acrylic paints as well as other volatile organic compounds including potent solvents, sealants or other materials known to offgas excessively as they may cause seizures in this child.". On July 13, 2001, the Agency provided a copy of the letter to Air Canada.

PROCEDURAL DIRECTIONS

In light of Air Canada's response to two of the complaints, namely those filed by Ms. Carr and Ms. McIntyre, that an allergy to cats is not, in and of itself, a disability and should not be investigated pursuant to section 172 of the CTA, the Agency issued Decision No. LET-AT-A-312-2001 dated July 5, 2001. In that Decision, the Agency decided to address the jurisdictional issue as to whether an allergy should be considered a disability for the purposes of Part V of the CTA as a preliminary matter.

Therefore, the Agency requested that Air Canada submit its arguments as to why an allergy should not be considered a disability for the purposes of Part V of the CTA within thirty (30) days of receipt of Decision No. LET-AT-A-312-2001. Each applicant was given ten (10) days to file with the Agency a response to Air Canada's submission. Air Canada was given five (5) days to file with the Agency a reply to each applicant's response.

On August 2, 2001, Air Canada requested an extension until September 14, 2001 to file its submission on the jurisdictional question. By Decision No. LET-AT-A-373-2001 dated August 13, 2001, the Agency granted Air Canada an extension until September 14, 2001 to file its submission. On September 12, 2001, Air Canada requested a further extension to file its submission and by Decision No. LET-AT-A-402-2001, the Agency granted the requested extension.

On September 21, 2001, Air Canada filed with the Agency its submission on the preliminary jurisdictional issue. By letter dated October 1, 2001, e-mail dated October 2, 2001, and letter dated October 18, 2001, Dr. Weinberg, Ms. Carr and Ms. Zolbrod, respectively, filed their replies to Air Canada's response. The Agency did not receive replies from Don Nason, Joel Kideckel on behalf of Norma Kerr, Marliss McIntyre and Dan Skwarchuk.

ISSUE

The issue to be addressed is whether an allergy is a disability for the purposes of the accessibility provisions of the CTA.

POSITIONS OF THE PARTIES

Air Canada

Air Canada notes that the only definition of "disability" in the CTA and the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR) is found in the Personnel Training for the Assistance of Persons with Disabilities Regulations (hereinafter the Training Regulations). Air Canada further notes that this definition provides that "disability" means "a physical, sensory, developmental, mental health or medical functional limitation or restriction that affects a person in such a manner that the person is a person with a disability.". Finally, Air Canada notes that the expression "person with a disability" is defined as "a person who is, has been or will be a passenger on a service operated by the carrier and who, because of a disability, requires services that are not usually extended to other passengers, including assistance."

Air Canada asserts that, given the word "allergy" is "not clearly comprised" in the foregoing definitions, the onus is on the various applicants to demonstrate that an allergy is a disability for the purposes of the CTA and not on Air Canada to demonstrate first that an allergy is not a disability. Air Canada submits "That the passenger be a "person with a disability" is a condition precedent to the Agency exercising its jurisdiction and this matter should first be addressed by the complainants and then responded to by Air Canada.". Air Canada expresses the view that the approach set out in Agency Decision No. LET-AT-A-312-2001 is in breach of its rights to a full and complete defence to the complaints.

Air Canada submits that none of the applicants clearly claim that they are disabled. Air Canada further submits that none of the applicants, with the exception of Dr. Weinberg's daughter, required services that are not usually extended to other passengers, including assistance.

Air Canada notes that the legislation in the United States of America, the Americans with Disabilities Act, 1990 (hereinafter the ADA), defines "disability" as:

  1. A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
  2. A record of such impairment; or
  3. Being regarded as having such impairment.

Air Canada further notes that the Webster's Collegiate Dictionary defines "allergy" as:

Altered bodily reactivity (as anaphylaxis) to an antigen in response to a first exposure; 2 Exaggerated or pathological reaction (as by sneezing, respiratory embarrassment, itching or skin rashes) to substances, situations or physical states that are without comparable effect on the average individual.

In view of the foregoing definitions, Air Canada expresses the opinion that a disease or condition is not necessarily a disability if it does not "...substantially limit one or more of the major life activities of this individual. Moreover, for our purposes, the disability needs to substantially limit the mobility function of this person.".

Finally, Air Canada submits that "...an allergy is not a disease nor an impairment. More importantly, an allergy is not a disability and therefore, passengers that are allergic to certain elements are not 'persons with disabilities'.".

Dr. Terri E. Weinberg

Dr. Weinberg submits that her daughter meets the criteria of a "person with a disability" which Air Canada refers to. Dr. Weinberg reiterates that her daughter has a seizure disorder triggered by volatile organic compounds, including fresh paint and glues, and asserts that, as such, it is a condition that may require services that are not usually extended to other passengers, including assistance in being re-routed through and around areas in an airport terminal that may be under renovation.

Ursula Carr

Ms. Carr submits that the status of her condition is irrelevant when determining whether her allergy to cats is a disability. She reiterates that her skin, eyes and nose were irritated as a result of the presence of a cat in the passenger cabin. In response to Air Canada's assertion that none of the applicants, with the exception of Dr. Weinberg's daughter, required "services that are not usually extended to other passengers, including assistance", Ms. Carr asserts that she did require such services on the basis that she had asked the flight attendant to remove the cat in addition to asking whether there was any allergy medication on board the aircraft. She explains that such services are not usually extended to other passengers given that the underlying requests are not common and that they were not made by other passengers on the flight.

Emma Zolbrod

Ms. Zolbrod submits that asthma is recognized as a disability under the ADA. She notes that the "Settlement Agreement between the United States of America and Smyrna Playschool, Inc. d/b/a Cumberland Child Care re: modification of policies to permit enrollment of children with asthma" recognized that asthma is a disability and that there should be no discrimination against persons who are asthmatic.

Ms. Zolbrod explains that asthma is characterized by the tightening and narrowing of the breathing airways which impedes the movement of air in and out of the lungs and that it can be triggered by exposure to allergens. Ms. Zolbrod asserts that the restricted ability to breathe caused by asthma can be considered a medical functional limitation or restriction, as per the CTA and the ATR definition of the term "disability". She submits that "breathing can be considered a 'major life activity' being as if one lacks the ability to breathe, one could not live.".

Ms. Zolbrod explains the foregoing position by noting that the acute asthma attack that she experienced during her flight was triggered by exposure to an allergen in the form of cat dander. She notes that the attack impaired a major life activity, breathing, and was triggered by her allergy to cats. She describes her asthma as being a disability or "medical functional limitation or restriction". Ms. Zolbrod asserts that "For those who are disabled by asthma triggered by allergens such as cats, the presence of a cat in the Air Canada passenger cabin presents an undue obstacle to the mobility of persons with disabilities when they travel." Ms. Zolbrod reminds the Agency that, in her application, she notes that she feels fortunate that she did not go into anaphylactic shock during the flight given her extreme allergy to felines which, in the past, has resulted in hospitalization. Finally, she notes that an acute asthma attack can be potentially life-threatening because it may continue despite the use of normal asthma medication. Ms. Zolbrod notes that, had she gone into anaphylactic shock over the Atlantic Ocean, she would have had to inject herself with an epinephrine shot in order to ensure that she could continue to breathe. She indicates that such an injection is effective for fifteen to twenty minutes and that this is insufficient time for a plane to land and for a passenger to get to the hospital.

In summary, Ms. Zolbrod submits that asthma is a disability for the purposes of Part V of the CTA and Air Canada "...presents people disabled by asthma with an undue obstacle when travelling with the airline as they are unknowingly exposed to the cat allergen."

ANALYSIS AND FINDINGS

In making its findings, the Agency has considered the submissions of Air Canada, Dr. Terri Weinberg, Ursula Carr and Emma Zolbrod as they pertain to the preliminary matter of whether an allergy is a disability for the purposes of Part V of the CTA. The Agency has not considered submissions made by the applicants which pertain to the merits of their individual cases and, therefore, no analysis of such submissions is provided herein.

A) Legislative Framework

The Agency's legislative mandate with respect to persons with disabilities is found in Part V of the CTA, which contains a regulation making authority and an adjudication authority, both for the express purpose of removing undue obstacles to the mobility of persons with disabilities from the federal transportation network. The two provisions are linked in that the regulation-making authority provides an inclusive list of subject matters which is adopted in the adjudication authority.

Subsection 170(1) of the CTA states that:

The Agency may make regulations for the purpose of eliminating undue obstacles in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting

(a) the design, construction or modification of, and the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them;

(b) the training of personnel employed at or in those facilities or premises or by carriers;

(c) tariffs, rates, fares, charges and terms and conditions of carriage applicable in respect of the transportation of persons with disabilities or incidental services; and

(d) the communication of information to persons with disabilities.

Subsection 172(1) of the CTA states that:

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.

Canada's national transportation policy, found in section 5 of the CTA, makes it clear that one objective of the legislation is to ensure that the federal transportation network is accessible, without undue obstacles, to persons with disabilities:

5. It is hereby declared that a safe, economic, efficient and adequate network of viable and effective transportation services accessible to persons with disabilities and that makes the best use of all available modes of transportation at the lowest total cost is essential to serve the transportation needs of shippers and travellers, including persons with disabilities, and to maintain the economic well-being and growth of Canada and its regions and that those objectives are most likely to be achieved when all carriers are able to compete, both within and among the various modes of transportation, under conditions ensuring that, having due regard to national policy, to the advantages of harmonized federal and provincial regulatory approaches and to legal and constitutional requirements, ...

(g) each carrier or mode of transportation, as far as is practicable, carries traffic to or from any point in Canada under fares, rates and conditions that do not constitute ...

(ii) an undue obstacle to the mobility of persons, including persons with disabilities, ...

and this Act is enacted in accordance with and for the attainment of those objectives to the extent that they fall within the purview of subject-matters under the legislative authority of Parliament relating to transportation. [Emphasis added]

The Agency is of the opinion that Part V of the CTA is, by its nature, human rights legislation aimed at removing undue obstacles to the mobility of persons with disabilities in Canada's transportation system. The Agency is also of the opinion that the interpretation of Part V of the CTA and the phrase "persons with disabilities" requires a consideration of the objectives enunciated in section 5 of the CTA as articulated by the specific provisions in question. Finally, the Agency is of the view that this legislation should be given a broad, liberal, and purposive interpretation.

B) Framework for disability analysis

As stated in Decision No. LET-AT-A-312-2001 dated July 5, 2001, the Agency decided to address the jurisdictional issue as a preliminary matter following Air Canada's submission that an allergy to cats is not, in and of itself, a disability for the purposes of Part V of the CTA. The Agency notes, however, that in its response to that Decision, Air Canada asserts that it is a condition precedent to the Agency's jurisdiction that the passenger be a person with a disability and that this matter should be first addressed by the applicants and then responded to by Air Canada. There is no doubt that for the purposes of Part V of the CTA, a passenger must be a person with a disability. However, in view of Air Canada's challenge to the Agency's jurisdiction regarding matters involving allergies and as stated in Decision No. LET-AT-A-312-2001, the first issue to be addressed was whether an allergy, per se, can be considered a disability within the meaning of Part V of the CTA.

The Agency notes that Air Canada's position is that as the word allergy is not clearly comprised in the definition of "disability" and "person with a disability" contained in the Training Regulations, it is for the various complainants to demonstrate that an allergy is a disability under the CTA.

The Agency notes that the Training Regulations were adopted to address the lack of training of personnel working in the transportation network vis-à-vis the provision of services to persons with disabilities. These regulations provide for specific application of minimum training standards and enforcement of those standards in order to ensure that travellers with disabilities have access to a consistent level of service from transportation personnel. Therefore, the Agency finds that the purpose of the Training Regulations and their very nature, namely that of regulations, are not determinative of the broader interpretation to be given to Part V of the CTA. The purposive approach to be given to the Agency's mandate, as expressed in general terms in the national transportation policy in section 5 of the CTA and spelled out more precisely in Part V of the CTA cannot be restricted by the terms of a definition found in a regulation dealing with minimum training standards. Furthermore, without embarking on a detailed analysis of the definitions found in the Training Regulations, as this Decision on the jurisdictional issue does not mandate it, the Agency is nonetheless of the view that the definition of "disability" contained in the Training Regulations is not restrictive to the point that it could be said to exclude allergies.

Similarly, the United States of America legislation is of limited use to the Agency's analysis on the jurisdictional question. However, the Agency recognizes that, without making a determination in the matter, an argument could be made that reference to a "physical impairment" is sufficiently broad to include allergies.

Accordingly, in light of the evidence provided, and for the purposes of its determination of the present matter, the Agency decided to rely on the concepts relating to the determination of a disability which are reported in Decision No. 646-AT-A-2001 dated December 12, 2001 (In the matter of the jurisdictional question, arising in the context of an application received by the CTA from Linda McKay-Panos against Air Canada, on whether obesity is a disability for the purpose of Part V of the CTA). More specifically, the Agency finds that the model of disability reflected in the International Classification of Functioning and Disability, World Health Organization, 2001 (hereinafter the ICF) is relevant and appropriate to the present matter.

Allergies in the context of the ICF

The ICF is a model of disability which was developed by the World Health Organization (hereinafter the WHO) in consultation with representatives of member states of the WHO, classification experts, professional organizations, and representatives from various international organizations of the allied health professions and disability rights groups. The development of the ICF, a consensus-building operation involving arbitration, a complex linguistic evaluation process, and a balancing act between science and political demands, was undertaken in such a manner as to ensure common understanding and use by all member states. The ICF was ratified by the WHO's 191 member states in May 2001.

The ICF contains a complete classification of body functions and structures. It identifies three dimensions of disability, namely, impairments, activity limitations, and participation restrictions and defines them as follows:

Impairment - a problem in body function or structure, where "problem" is understood broadly to include the absence of a function or structure, a decrement in power or strength of a function, or a deviation in functioning

Activity Limitation - incapacity, inability or other inherent difficulty in executing a task or action

Participation Restriction - problem experienced in the actual involvement in life situations, in the sense of restrictions on the performance of desired, required or socially expected actions, tasks and roles in the person's actual environment

As noted in Decision No. 646-AT-A-2001, the Agency recognizes the value of the WHO's classification instruments, including the ICF, for assessing the implications of a health condition, both medically and socially. The Agency further noted in that Decision that the ICF could be useful in the future in the Agency's analysis of disability issues. The Agency finds it appropriate to consider the preliminary jurisdictional question of whether an allergy is a disability for the purposes of Part V of the CTA in the context of a model of disability. Furthermore, in keeping with its views on the usefulness of the ICF in its analysis of disability issues, the Agency finds that the ICF is an appropriate model of disability for this purpose.

The Agency also considers that certain of the findings contained in Decision No. 646-AT-A-2001 are such that they provide a framework for disability analysis which the Agency finds useful in its determination of whether a given health condition is a disability for the purposes of Part V of the CTA. The Agency is of the view that the following findings, restated here in general terms which may be applicable to a broad range of health conditions, are valid for the Agency's determination of the present matter:

  1. there must be an impairment in order for there to be a disability for the purposes of Part V of the CTA;
  2. impairment, alone, is insufficient to support the conclusion that a health condition is a disability for the purposes of Part V of the CTA; and
  3. in order to find that a person has a disability for the purposes of the CTA, it is necessary to find that the person experiences activity limitations and/or participation restrictions in the context of the federal transportation network.

Impairment dimension of disability

The Agency notes Air Canada's position that "an allergy is not a disease nor impairment."

The category of "hypersensitivity reactions", which is included in the functions of the haematological and immunological systems of the ICF, encompasses "functions of the body's response of increased sensitization to foreign substances, such as in sensitivities to different antigens". This category explicitly includes allergies. As such, the Agency finds that an allergy is an impairment and, therefore, rejects Air Canada's position to the contrary.

Activity limitation dimension of disability

As noted above, the ICF model of disability views an "activity limitation" as being an incapacity, inability or other inherent difficulty in executing a task or action.

The Agency notes Air Canada's submission that "...a disease or condition is not necessarily a disability, if such disease or condition does not substantially limit one or more of the major life activities of this individual...Moreover, for our purposes, the disability needs to substantially limit the mobility function of this person." The Agency also notes that Air Canada made this assertion in the context of the definition of "disability" as contained in the ADA, which defines this term, in part, as: "A physical or mental impairment that substantially limits one or more of the major life activities of such individual."

As previously noted, the Agency finds that the definition of "disability" contained in the ADA is not determinative of the present matter. Notwithstanding, the Agency agrees with the aforementioned position expressed by Air Canada inasmuch as the Agency is of the opinion that, in order to find that a person has a disability for the purposes of the CTA, it is necessary to find that the person experiences activity limitations and/or participation restrictions in the context of the federal transportation network.

The Agency recognizes that persons who have allergies experience wide-ranging symptoms, the severity and duration of which can vary greatly depending on the nature of the allergy, the concentration and proximity of allergens present, and the length of time to which the person is exposed to the allergens. In some cases, a person with an allergy may not experience an allergic reaction even when exposed to allergens which could otherwise result in serious consequences. In other cases, reactions to allergens range from mild irritations and discomfort to severe reactions such as anaphylactic shock. The Agency further recognizes that the severity of a person's reaction to allergens can be influenced by environmental factors which may or may not be within the control of the person, including whether the person is exposed to the allergens in a confined space and the air quality that exists. Finally, the Agency notes that a person's reaction to allergens may be made less severe and, in some cases, eliminated, if the person takes medication designed to address his or her allergy symptoms.

The Agency finds that there was no evidence to support that all persons with allergies will necessarily experience activity limitations in the context of the federal transportation network. The Agency also finds that evidence to the contrary was not presented. The Agency is of the view, however, that given the nature of allergies and the various symptoms of allergic reactions, some persons who have allergies will experience activity limitations.

Participation restriction dimension of disability

As noted above, the ICF model of disability views a "participation restriction" as being a problem experienced in the actual involvement in life situations, in the sense of restrictions on the performance of desired, required or socially expected actions, tasks and roles in the person's actual environment.

During the oral hearing on the jurisdictional question of whether obesity is a disability for the purposes of Part V of the CTA, as part of the presentation on the ICF model of disability, the Agency heard evidence that environmental barriers can create participation restrictions. The Agency also heard evidence that whether a person encounters a participation restriction is not an a priori matter; rather, it is a question of clinical or other observation and the extent of participation restrictions depends on the features of the physical, human-built, and social environment that constitute the context in which a person lives, learns, works, plays and socially interacts.

The Agency notes that neither Air Canada nor any of the applicants who responded to the carrier's submission on the preliminary jurisdictional question made any submissions regarding the participation restriction dimension of disability.

Notwithstanding the lack of evidence presented in this respect, the Agency is of the view that, consistent with activity limitations, some persons who have allergies will experience participation restrictions.

C) The Agency's approach to the assessment of whether an allergy is a disability

The Agency notes that the ICF model of disability requires empirical evidence in respect of each of the dimensions of disability and that to make inferences in the abstract and in the absence of detailed information about the context is prejudicial. The Agency also notes that the consequences of a given impairment may be inconsequential, harmful or beneficial and cannot be determined without knowing the context.

It may be argued that some persons with allergies will necessarily experience activity limitations and/or participation restrictions. However, the Agency finds that, given the numerous types of allergies and the wide range in the severity of allergic reactions, whether activity limitations and/or participation restrictions will be present in a particular case requires fact-based evidence. The Agency also finds that the determination of whether a person with an allergy experiences activity limitations and/or participation restrictions in the context of the federal transportation network requires an analysis of each case based on its own merits.

CONCLUSION

In summary, the Agency finds that:

  1. an allergy is an impairment;
  2. evidence in support of or contrary to the position that all persons with allergies will necessarily experience activity limitations and/or participation restrictions in the context of the federal transportation network was not presented; and
  3. fact-based evidence of the presence of activity limitations and/or participation restrictions in the context of the federal transportation network is necessary to support a conclusion that a person with an allergy is a person with a disability for the purposes of Part V of the CTA.

The Agency concludes that an allergy, per se, is not a disability for the purposes of Part V of the CTA. Notwithstanding, the Agency finds that there may be individuals in the population of persons who have allergies, who have a disability for the purposes of Part V of the CTA which can be attributed to their allergies.

Therefore, the Agency will continue to examine, on a case-by-case basis, whether a person who has an allergy is a person with a disability for the purposes of the accessibility provisions of the CTA.

In light of the above, the Agency will now proceed to inquire into the applications filed by Emma Zolbrod, Don Nason, Joel W. Kideckel, on behalf of his wife, Norma Kerr, Ursula Carr, Marliss McIntyre, Dan Skwarchuk, and Dr. Terri Weinberg, on behalf of her daughter, and other persons who have allergies, in order to determine whether, in each case, they in fact have a disability for the purposes of Part V of the CTA.

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