Decision No. 336-AT-A-2008

June 26, 2008

June 26, 2008

APPLICATIONS filed pursuant to subsections 172(1) and (3) of theCanada Transportation Act, S.C., 1996, c. 10, as amended by Louise Bartlett on behalf of the late Calvert Gibson, Elizabeth Fulton, Harold Gaynes on behalf of Eugene Gaynes, Josie Gould, Margaret Rafferty, and Cathleen Smith against Air Canada regarding the reliability of the oxygen service provided by Air Canada.

File No.: U3570-13


TABLE OF CONTENTS


INTRODUCTION

[1] On December 13, 2005, the Canadian Transportation Agency (the Agency) issued Decision No. 720-AT-A-2005 (the Obstacle Decision) which addressed 26 applications that were filed between March 2000 and June 2005; 25 filed against Air Canada and one filed against WestJet, by or on behalf of persons who require oxygen when travelling by air. These applications were filed by Carolyn Atkinson, Lloyd Atkinson, Anne Louise Bartlett on behalf of the late Calvert Gibson, Carole Bryce, G. William Foskett, Elizabeth Fulton, Harold Gaynes on behalf of Eugene Gaynes, Cindy Geddes, Josie Gould, Neille Keobke, Shirley Keobke, Harvey Kimelman, Arleen Kovac, Frank Kovac, Cliff McMartin on behalf of Ida McMartin, Collin Nielsen on behalf of the late Susan Nielsen, Margaret Rafferty, Karen Ridout, Cathleen Smith, James Toth on behalf of the late Edith Marie Toth, Mary Walker, Elaine Willis, Elaine Wood, Florence Wright, and Neil Wright against Air Canada and by William Mark Pettigrew against WestJet.

[2] With respect to WestJet, the Agency found that, while the carrier allows persons with disabilities to use their own oxygen equipment on board domestic flights, its failure to provide any accommodation to such persons with disabilities on transborder and international flights constituted a significant systemic obstacle to their mobility in that it refused these persons access to WestJet's transborder and international air services.

[3] With respect to Air Canada, the Agency found that, although the carrier accommodates these persons with disabilities by providing an oxygen service on all of its domestic, transborder and international flights, there were systemic problems identified as obstacles in the delivery of this service which led to the conclusion that the accommodation provided by Air Canada may not be reasonable. Specifically, the systemic obstacles to mobility found in Air Canada's oxygen policies, procedures and practices were as follows:

  1. the policy that requires that persons request Air Canada's oxygen service as well as its portable onboard oxygen service in advance of travel;
  2. the requirement that Fitness for Travel (FFT) forms be completed by the physicians of persons who use oxygen, including the related cost and the level of information to be disclosed;
  3. the policy on oxygen fees;
  4. the non-provision of oxygen prior to boarding, during connections/stopovers and upon arrival at the final destination;
  5. the failure to ensure the availability of a portable oxygen cylinder dedicated to persons who require oxygen to leave their seat to use the washroom;
  6. the policies and procedures of placing the oxygen cylinder under the seat in front of the passenger, which encroaches on the person's floor space; and
  7. the policy of not providing humidifiers on request to persons who use oxygen on all of its flights.

[4] Following the issuance of its Obstacle Decision, the Agency held a hearing in Ottawa over 12 days between October 29 and November 22, 2007 to assist it in its determination of undueness with respect to the above-noted systemic obstacles.

[5] The Agency was requested to go in-camera by the respondents to receive confidential information. While this information was considered by the Agency, it was not determinative of the issues such that the Agency is not issuing confidential reasons for its decision.

[6] In the Obstacle Decision, the Agency also identified the following obstacles to the mobility of individual applicants, specific to Air Canada:

  1. the failure to provide pre-requested oxygen to Mr. Gaynes and Ms. Gould on board their originally reserved flights and the failure to provide Mr. Gaynes with the onboard oxygen on his Toronto to Edmonton flight and to provide Mr. Gibson with onboard oxygen on his Calgary to Toronto flight;
  2. the adequacy of the supply of oxygen provided to Ms. Fulton during her flights from Toronto to San Diego and from San Francisco to Vancouver and the supply of oxygen provided to Ms. Rafferty during her flight from Toronto to Vancouver;
  3. the failure to load the oxygen prior to pre-boarding Ms. Fulton, Ms. Gould and Ms. Smith;
  4. the failure to provide oxygen to Mr. Gaynes during his delayed connection;
  5. the failure by personnel to communicate Ms. Fulton's and Mr. Gaynes' oxygen requests; and
  6. the non-application of its policies and procedures regarding the provision of oxygen to Ms. Smith, Ms. Gould and Mr. Gibson.

[7] The obstacles involving the specific incidents raised by individual applicants are addressed by the Agency in a separate decision.

ISSUE

[8] The issue to be addressed is whether the aforementioned obstacles which were the subject of the 2007 hearing constitute undue obstacles to the mobility of persons who require oxygen when travelling by air and, if so, what corrective measures would alleviate or eliminate these undue obstacles and provide the most appropriate level of accommodation for these persons with disabilities.

[9] Refer to Appendix 1 for the list of appearances at the hearing, the definitions and abbreviations used in this Decision.

BACKGROUND

Persons who use oxygen

[10] The Agency heard evidence during the hearing regarding the two leading medical conditions that necessitate the use of oxygen: Chronic Obstructive Pulmonary Disease (COPD) and pulmonary fibrosis. Dr. Kenneth R. Chapman, the amicus curiae's expert medical witness, is an expert in respiratory medicine and its treatment, with experience dealing with respiratory issues in the aviation environment. Dr. Chapman explained that COPD, often referred to as chronic bronchitis or emphysema, is the most common of the chronic lung conditions associated with low oxygen levels and involves permanent lung damage. Until recently, COPD was regarded as the fifth most common cause of death in Canada and its prevalence is increasing; by the year 2020 it is expected to be Canada's third most common cause of death.

[11] Dr. Chapman explained that COPD would likely be the most common type of lung disease that would be at issue for air carriers. Flight conditions that are regarded as safe for a healthy individual may be unsafe for an individual with COPD. This is clearly the case for individuals whose lungs are so severely impaired that they require continuous oxygen to maintain adequate oxygen levels in their brains, hearts and other tissues even when they are at ground level. These individuals must continue their oxygen usage at all times and particularly when they are exposed to higher altitudes where their tissue oxygen levels can be expected to drop further. Less obviously, some patients with COPD and other chronic lung conditions who have lower than average, but still adequate, oxygen levels when at sea level will also require oxygen during flight. Dr. Chapman explained that air travel will expose them to the equivalent of altitudes of 8,000 feet and under these conditions, their bodies may receive less than adequate amounts of oxygen such that these individuals will require additional oxygen during air travel.

[12] In addition to COPD, the Agency heard evidence about pulmonary fibrosis. Dr. Chapman indicated that pulmonary fibrosis is a chronic lung condition which results in diffuse scarring and stiffening of the lungs. Patrick Litwin, Advisor for Safety and Regulatory Compliance for VitalAire Canada Inc. (VitalAire), a respiratory care company, submitted that while individuals with pulmonary fibrosis require higher flow rates of oxygen, they tend to be generally healthy except for their fibrotic disease. Dr. Chapman stated that an individual with pulmonary fibrosis would require a more complete evaluation to assess whether they are fit to travel by air, as the individual's lung condition is at the severe end of the spectrum.

Methods of oxygen delivery

[13] Over the course of the hearing, the Agency heard about various forms of oxygen delivery that are used by persons who require oxygen. These include: gaseous oxygen cylinders, liquid oxygen cylinders, stationary oxygen concentrators, and portable oxygen concentrators (POCs), as well as oxygen conserving devices (OCDs) that can be used in combination with certain oxygen delivery systems.

[14] Dr. Chapman submitted that gaseous oxygen is not a very practical way of providing a patient with continuous oxygen as bottles do not last very long and, as such, they are typically reserved for intermittent use. Dr. Chapman explained that liquid oxygen has been the mainstay for persons who require oxygen on a portable basis, as well as at home. However, the liquid reservoir systems need to be refilled, which means oxygen companies must visit people at home.

[15] Mr. Litwin explained that typically, VitalAire provides stationary oxygen concentrators for use in a person's home and gaseous oxygen with OCDs for mobility. He testified that while there are some persons who continue to use liquid oxygen, the equipment costs are higher, and in an environment where funding agencies are continually looking to reduce budgets, there are many population centres where liquid oxygen is not economically viable. In the past, the appeal of liquid oxygen was that it would allow a person to obtain longer duration out of a smaller cylinder. However, Mr. Litwin stated that with the advent of OCDs, this advantage over gaseous oxygen no longer exists.

Medical insurance coverage for oxygen

[16] Mr. Litwin explained that most Provinces have a home oxygen funding program that provides varying coverage for certain illnesses. He indicated that, for example, a person with COPD may be covered but a person with pulmonary fibrosis may not, depending on the Province. The amount and type of coverage also varies by Province: it may be a flat rate reimbursement or usage-based reimbursement. Additionally, there are some persons who also have private insurance coverage that may provide more options or a higher level of reimbursement.

[17] With respect to travel, Mr. Litwin stated that when passengers use oxygen provided by a third party that is not their regular oxygen supplier, they are typically not covered by their insurance company under their funding program. This could apply when an air carrier supplies oxygen or when oxygen is supplied at destination. He explained that as with everything else, funding for oxygen at destination depends on the funding program available in the province where a person resides.

[18] Information filed by Ken Mansfield, Advisor to the amicus curiae, also highlights the differences in coverage from Province to Province, including who is covered, the amount of coverage, and the type of oxygen delivery methods that are covered. For example, on the one hand, in Ontario, full coverage to a monthly maximum of $389 is provided for persons aged 65 and over and those who qualify to receive benefits under specific programs; individuals outside this group receive 70-percent coverage. On the other hand, Prince Edward Island provides 50-percent coverage for approved patients up to a maximum of $200 per month. With respect to POCs, Mr. Mansfield sets out that there are some provincial programs which are broad enough to permit some reimbursement of the purchase price of a POC and that, in terms of the rental of POCs, coverage is not comprehensive.

Regulatory regimes

Gaseous oxygen

[19] Gary Branscombe, Acting Chief of Aviation, Dangerous Goods Standards at Transport Canada, explained that gaseous oxygen is a dangerous good and the transportation of medical oxygen cylinders in aircraft is governed by the Transportation of Dangerous Goods Regulations, SOR/2001-286 which adopt by reference the International Civil Aviation Organization Technical Instructions (TIs).

[20] Mr. Branscombe explained that the United Nations, via the International Civil Aviation Organization, has set standards for the transportation of dangerous goods by air. However, Part 1.1.3 of the TIs permits gaseous oxygen for medical reasons to be exempted from most of the TI regulations.

[21] In his affidavit, Donald Sherritt, Director of Standards with Civil Aviation at Transport Canada, stated that under the Canadian regulatory regime, there are no operational regulations that permit or prohibit the use of passenger-supplied oxygen for medical reasons during flights. He stated that, in the absence of any Canadian aviation regulations addressing the carriage and use of passenger-supplied oxygen cylinders, there are variations among the policies of Canadian carriers regarding the carriage and operation of oxygen for passenger use.

[22] During the hearing, Mr. Sherritt outlined the framework of civil aviation regulation in Canada, which includes the Aeronautics Act, R.S.C., 1985, c. A-2 and the Canadian Aviation Regulations, SOR/96-433. He explained that Transport Canada does not regulate by directive; rather, its regulations are performance-based. It has a regulatory package that identifies the objectives of the regulation, providing carriers with the flexibility to meet those objectives in a manner that best suits their operational needs while respecting the performance-based rules. In this case, Air Canada has determined that carrier-supplied oxygen best meets its needs, while WestJet has determined that the best way of meeting its needs is to allow passenger-supplied oxygen. Under the Canadian regulatory regime, both carriers' choices are acceptable. Mr. Sherritt explained that Transport Canada uses a number of tools, outside of the regulatory framework, as guidance material to promote and educate the public at large and the civil aviation industry.

[23] One such tool is Transport Canada's Commercial and Business Aviation Advisory Circulars (CBAACs). Two CBAACs, No. 257, entitled Carriage of Medical Oxygen Cylinders for Passenger Use on Board Aircraft and No. 700-002, entitled Carriage of Portable Oxygen Concentrators for Passenger Use on Board Aircraft are relevant to this proceeding. The purpose of CBAAC No. 257 is to provide air operators with recommended procedures for the carriage of medical oxygen cylinders required for use by passengers on board aircraft whether they be passenger-supplied or carrier-supplied. The purpose of CBAAC No. 700-002 is to provide air operators with recommended procedures for the carriage of POCs on board aircraft.

[24] Mr. Sherritt indicated that CBAACs are intended to promote, educate and highlight issues for carriers as they develop programs. Mr. Sherritt explained that both CBAAC No. 257 and 700-002 are discussion papers and have no basis in regulation and are not enforceable. Their intent is to assist carriers who choose to carry medical oxygen and/or POCs.

[25] Under the regulatory regime of the United States, the Code of Federal Regulations [14 C.F.R. § 125.219] sets out that a certificate holder (i.e., an air carrier) may permit a passenger to carry and operate equipment for the storage, generation, or dispensing of oxygen when the equipment is furnished by the certificate holder. Passenger-supplied gaseous oxygen is not permitted, however, certain passenger-supplied POCs are acceptable.

[26] In his report entitled Amicus Curiae Advisor Report Regulatory, Ken Mansfield indicated that European regulations do not prohibit persons with disabilities from bringing their own personal gaseous oxygen on board aircraft. Mr. Mansfield noted that, as in Canada, in the absence of any regulation addressing operational requirements, there are variances among individual European air carrier policies regarding the carriage and operation of medical oxygen for passenger use.

[27] The acceptance of passenger-supplied gaseous oxygen by foreign regimes is reflected in the practices of a variety of foreign carriers that are set out in the report prepared by Barry Corbett, Advisor to the amicus curiae, entitled Report on Operation, Financial and Other Matters relating to the provisioning of oxygen services to Oxygen Dependent Passengers. While some of the foreign carriers researched by Mr. Corbett, allow passenger-supplied gaseous oxygen for domestic travel, only a few allow it for international travel, and those who do exclude its use for travel to the United States.

POCs

[28] In Canada, the regulatory regime permits passenger-supplied POCs. In his report, Mr. Corbett stated that worldwide, full service carriers tend to allow the use of approved passenger-supplied POCs.

[29] The United States Special Federal Aviation Regulations [14 C.F.R. § 121, SFAR No. 106] permit the use of both passenger and carrier-supplied POCs approved by the United States Federal Aviation Administration (FAA) (currently five types: AirSep LifeStyle, AirSep FreeStyle, Inogen One, SeQual Eclipse, and Respironics EverGo). These regulations prescribe the special operating procedures for the use of POCs in aircraft and outline the responsibilities of the air operator and the passenger.

[30] On May 7, 2008, the United States Department of Transportation introduced a rule, which will become effective on May 13, 2009 [14 C.F.R. § 382.133]. The rule will require domestic and foreign air carriers operating within, to and from the United States to permit, in the passenger cabin, the use of POCs that meet applicable safety, security and hazardous materials requirements for safe use on board aircraft.

Carrier policies

Canadian air carriers

[31] WestJet currently allows the use of passenger-supplied POCs on all of its flights and passenger-supplied gaseous oxygen on its domestic flights.

[32] Air Canada does not allow passenger-supplied gaseous oxygen on any of its flights, however, it provides carrier-supplied gaseous oxygen to its passengers for a fee. During the hearing, Air Canada announced its intention to allow the use of passenger-supplied POCs on its domestic routes, as well as on its transborder, Central American, Caribbean and Mexican routes effective February 2008 and to review its experience with POCs after six months with a view to expanding its POC policy to other destinations.

[33] With respect to the practices of other Canadian air carriers, in his report, Mr. Corbett indicated that among other Canadian carriers he studied, Skyservice Airlines Inc. carrying on business as Skyservice (Skyservice) provides an oxygen service for a fee and Air Transat A.T. Inc. carrying on business as Air Transat (Air Transat) provides an oxygen service for a fee to the United States and allows passenger-supplied gaseous oxygen on flights to destinations other than the United States.

Foreign air carriers

[34] Mr. Corbett's report indicates that no United States carriers allow passenger-supplied oxygen, due to the prohibition in the United States regulations, and most of the United States carriers that he researched provide a gaseous oxygen service for a fee; JetBlue Airways Corporation, Southwest Airlines and U.S. Airways Inc. carrying on business as US Air, US Airways, US Airways Shuttle, US Airways Express and MidAtlantic Airways (US Airways) are noted exceptions in that they do not provide a carrier-supplied oxygen service. All United States carriers covered by Mr. Corbett's research, with the exception of United Air Lines, Inc. (United Airlines) allow the use of passenger-supplied POCs.

[35] In Europe, of the six carriers covered by Mr. Corbett's report, four provide a gaseous oxygen service and three allow passenger-supplied gaseous oxygen and POCs; one of the carriers limits passenger-supplied gaseous oxygen and POCs to continental Europe only. Mr. Corbett also reported on seven carriers in Asia and the Pacific: all provide a gaseous oxygen service; five allow passenger-supplied gaseous oxygen, two of which restrict it to domestic travel and one that excludes it for travel to the United States; one provides POCs; and two allow the use of passenger-supplied POCs.

[36] Carriers that allow passenger-supplied gaseous oxygen do not allow it on flights to the United States due to United States regulations.

Travelling by air with oxygen

[37] Air Canada stated that during the period of May 2005 to April 2006, persons with disabilities who require oxygen when travelling by air travelled on 2,287 flight segments on 1,751 one-way passenger trips. WestJet stated that during 2006, passengers who use oxygen travelled on 1,850 flight segments on 1,044 one-way passenger trips.

[38] In describing the travel experience of a person who requires oxygen but who cannot use their own supply for air travel, Daryl Risinger, Vice President of Marketing with Inogen, a POC manufacturing company based in the United States, stated that a person who has one oxygen supply for home would use a different one on the drive to the airport. Upon arrival at the airport, carrier personnel must accompany the individual through security with another supply of oxygen, following which the individual would have to transfer to another oxygen device. In the case of a connecting flight, the individual would be met by carrier personnel at the aircraft to make their way to the connecting flight where there is another supply of oxygen. Upon arrival at destination, the individual would have to be met by carrier personnel to accompany them through to the baggage claims area where there would be another oxygen supply. The same process has to be repeated for the return journey.

[39] William Mark Pettigrew, an applicant who was granted participation rights at the hearing, provided evidence describing his experiences using oxygen to travel by air. Mr. Pettigrew has alpha-1 antitrypsin deficiency which has resulted in COPD. Mr. Pettigrew stated that he has approximately 20 percent lung function and requires oxygen 24 hours a day but is otherwise healthy. He explained that he uses a full size concentrator at home and gaseous oxygen with an OCD when he leaves his home, which allows him to get approximately three times the use from an oxygen cylinder than he would with a constant flow regulator.

[40] Mr. Pettigrew travels to Mexico each winter and finds that travelling by air with oxygen is difficult. Detailed planning is needed to maintain a seamless supply of oxygen between his home and his destination. In describing his experience travelling from Barra de Navidad, Mexico to Ottawa to attend the hearing, Mr. Pettigrew explained that planning began two to three weeks prior to departure when he contacted Air Canada to be approved by its Meda Desk and make arrangements for oxygen at a fee of $600. He also had to ensure that he had enough oxygen - three cylinders - for the four-hour drive to the Puerto Vallarta airport, a possible four-hour wait for the flight, and for his drive back home upon his return to Mexico. He indicated that he always has to do contingency planning as, in the past, his flight departure has been delayed by a day.

[41] Mr. Pettigrew explained that once he arrived at the Puerto Vallarta airport, his oxygen cylinders had to be stored there for retrieval upon his return and he stood in line for 45 minutes while the arrangements were made. He stored two cylinders and brought one with him to the aircraft. On board, he switched over to Air Canada's Medipak. Mr. Pettigrew stated that there was some confusion on the part of carrier personnel as to what to do with the cylinder he had brought on board which was supposed to be brought back to the baggage check area. He expressed hope that it would be there when he returned to Mexico or he would have to pay for it.

[42] In addition, Mr. Pettigrew had to arrange for oxygen during his connections in Toronto. He was able to do it through his usual supplier, which charged a delivery fee of $60 to drop off the oxygen equipment and $60 to pick up the equipment at the Toronto - Lester B. Pearson International Airport. Because the oxygen supplier does not deliver on weekends, Mr. Pettigrew had to arrange for Air Canada Customer Care to accept delivery of the cylinder and keep it for him. Mr. Pettigrew also had to make arrangements to store the cylinder with Customer Care for his return connection.

[43] Finally, Mr. Pettigrew arranged an oxygen supply for his six-day stay in Ottawa, which included ensuring that Air Canada would have one of the cylinders ready for his arrival. Because Mr. Pettigrew's oxygen supplier is a small company that does not serve Ottawa, Mr. Pettigrew made arrangements with another company to supply oxygen for a fee of $360. Upon arrival in Ottawa, carrier personnel were unable to find the cylinder. However, as Air Canada personnel were just about to take Mr. Pettigrew off the aircraft using the Air Canada-supplied Medipak, the cylinder appeared. Mr. Pettigrew stated that the delay was due to carrier personnel not knowing where to look for the cylinder.

Portable oxygen concentrators

[44] Since the issuance of the Obstacle Decision in December 2005, new oxygen POC technology has emerged. Dr. Geoffrey Deane, Chief Technology Officer and Vice President of Engineering with Inogen, explained that while concentrator technology has existed for almost 70 years, approximately 10 years ago manufacturers began developing technologies that would reduce the 75-pound stationary concentrator to something that weighed less than 10 pounds. Currently, 93 percent of the population of persons who require gaseous oxygen in the United States use concentrator technology. Dr. Deane stated that patient demand for oxygen mobility has "skyrocketed", therefore, products that deliver mobility have been an important goal in the oxygen industry. In the past five years, this technology has emerged in the form of POCs.

[45] Dr. Deane explained that oxygen concentrators extract oxygen from the air and purify it by removing the nitrogen, which results in an oxygen flow of between 90 and 95 percent pure oxygen. Dr. Deane stated that clinically, it has the same effect as 100 percent oxygen. POCs typically do not operate like compressed gas coming from a cylinder at a continuous flow rate; rather, POCs deliver oxygen by a pulse dose and, in doing so, they are able to provide less oxygen and accomplish the same physiological effect on the patient as a continuous flow. Mr. Litwin agreed that the settings on a POC are not the same as flow rates and explained that the settings are equivalencies to flow rates. Dr. Chapman submitted that typically, the POC manufacturer will offer some guidelines as to what the flow rate equivalency will be for its POCs. Mr. Risinger explained that the equivalency is based on how much oxygen is being delivered to ensure that the patient's blood is saturated. Dr. Deane noted that there are some POC products that can also deliver a continuous flow of up to 3 litres per minute (LPM). Dr. Chapman concurred that there is a POC that can deliver a continuous flow of 3 LPM as well as a pulsed flow equivalent to 6 LPM.

[46] POC systems are flexible in terms of power provision; power is supplied from a number of different sources including alternating current for home outlets, direct current for automobiles, and lithium batteries that are designed with multiple layers of safety to comply with hazardous materials requirements. In addition, Dr. Deane stated that POCs are not classified as a dangerous good as the peak pressure inside the units is limited.

[47] Mr. Risinger stated that POCs are available through home medical equipment providers, and can be purchased or rented on a short-term basis from a travel oxygen provider for a weekly fee of between $300 and $400. Mr. Risinger indicated that there is an emerging industry of businesses that provide travel oxygen and that will ship POCs to passengers.

[48] During the hearing, evidence regarding two limitations of POCs was provided: flow rate and pulse dose delivery.

Flow rate

[49] Dr. Edward Bekeris, Air Canada's Senior Medical Officer, Occupational Health Services, submitted that an individual who has a requirement for either higher concentrations of oxygen or higher flow rates may not be able to achieve that with an oxygen concentrator. However, he also indicated that persons who require more than 5 LPM are usually very ill; Dr. Chapman concurred that this was a reasonable statement. Dr. Bekeris further stated that Air Canada considers persons who require more than 5 LPM as not fit to travel on its aircraft.

[50] During his testimony, Mr. Pettigrew stated that he had participated in a test in which he used a model of POC that has a maximum setting equivalent to 3 LPM. He explained that he participates in an exercise class at his local hospital that involves, among other things, a six-minute walk test. Mr. Pettigrew indicated that when performing the test with his usual oxygen at a rate of 5 LPM, his oxygen levels were acceptable. However, when performing the test with the POC at the equivalent of 3 LPM, his oxygen levels dropped much more quickly than they did with the gaseous oxygen and he was unable to complete the test. Mr. Pettigrew further indicated that he had discussions with a representative from the POC manufacturer who advised him that he should not count on a flow rate of 4 or 5 LPM even on its other model that has settings up to 5.

[51] The Agency is of the opinion that Mr. Pettigrew's evidence with respect to POCs is based on his limited personal experience. The Agency heard evidence from both a POC manufacturer and an oxygen supply company that currently there are POCs that provide equivalent flow rates of up to 6 LPM delivered by pulse dose, one of which has been approved by the FAA for use on board aircraft. Mr. Pettigrew acknowledged that he has not tried any other POCs and he indicated that if he was able to achieve a reliable flow rate that delivers enough oxygen to maintain his blood saturation at an adequate level using a POC, this technology would be an acceptable alternative to gaseous oxygen.

[52] In addition, there was evidence regarding some persons' lack of comfort with POCs. Dr. Chapman submitted that people's perception of low oxygen is actually very poor and adjustments should be based on oximeter (an instrument for measuring continuously the degree of oxygen saturation of the circulating blood) and blood gas measurements. Mr. Risinger concurred that clinical efficacy and an individual's acceptance are two different things.

[53] Furthermore, Mr. Risinger explained that some individuals prefer to feel the coolness of liquid oxygen and some have a positive physiological and emotional response to having a continuous flow of oxygen, however, these elements are not directly related to clinical efficacy.

[54] In spite of these issues, Mr. Risinger noted that Inogen receives approximately 175 inquiries per week about its POCs from Canada and Dr. Chapman submitted that POCs seem to be an emerging and favoured solution. In addition, Mr. Litwin stated that stationary oxygen concentrators, which deliver oxygen in the same manner as POCs, are currently the most common modality used for long-term home oxygen therapy in Canada.

Pulse dose delivery

[55] Dr. Chapman testified that not all oxygen devices will work for all patients and that occasionally there are patients for whom pulse dose delivery is not suitable. Dr. Chapman stated that an example of such would be persons whose breathing is very shallow when they sleep and, as a result, does not trigger the system to deliver the burst of oxygen. He further stated that this problem is not generally applicable to all POC devices as some POCs deliver oxygen by pulse dose and others are capable of delivering oxygen by a continuous flow.

[56] Dr. Deane acknowledged that there is a small number of persons who are physically unable to breathe strongly enough and that typically, infants and small children are unable to use pulse dose delivery technology. OCDs operate by opening a valve and delivering a bolus, or a puff of oxygen, when sensing a breath in the same way oxygen concentrators, including POCs, deliver a bolus or pulse dose. It is Dr. Deane's opinion that the number of persons who are unable to use OCD technology is very, very small. Dr. Chapman is also of the opinion that a small number of persons who require portable oxygen cannot use POCs. According to Mr. Litwin, OCDs are used by the majority of VitalAire's clients, although he acknowledged that there are some clients for whom OCDs are not suitable and that it may be due to comfort issues in terms of the psychology of being oxygen-dependent, or there may be a physiological condition that prevents the use of an OCD.

[57] While acknowledging that there is some resistance to using pulse dose technology for sleeping, Dr. Deane submitted that based on Inogen's experience, there are thousands of users who use OCDs while they sleep who do not experience problems with oxygen saturation. Dr. Deane testified that OCDs are a standard piece of equipment and that, currently, over 90 percent of persons who use oxygen use OCDs. Currently, approximately 93 percent of persons who use oxygen in the United States have a stationary oxygen concentrator, which delivers oxygen by pulse dose, in their home.

[58] Dr. Deane explained that previous OCDs were designed for active daily use when a patient can generate a very strong inspiratory signal. Now, through the use of better sensors and better electronics, OCDs operate at approximately one-eighth of the effort it took to signal a bolus before, so breaths that are very faint and very shallow are being sensed.

Future of POCs

[59] Dr. Deane stated that in the next five years, POCs will continue to become smaller and lighter, and some products will be designed to deliver higher flow rates. He expressed the opinion that every major medical oxygen equipment manufacturing company is committed to improving this technology.

[60] Mr. Risinger stated that outside of the United States, Canada is Inogen's largest market for its POCs and as such is a very important market from the standpoint of the adoption of new technologies.

[61] Inogen estimated that currently there are approximately 40,000 POCs in use in the United States and stated that the increase in the use of POCs is being driven by both patient preference for mobility and reimbursement of acquisition costs through medical insurance, as explained below. Mr. Risinger stated that there are approximately 40,000 patients on long-term oxygen in Canada, of which less than 2,000 currently use POCs.

[62] Mr. Risinger discussed Medicare insurance coverage in the United States. He indicated that oxygen therapy coverage is "modality-neutral"; it does not make any difference whether the patient is receiving liquid oxygen, gaseous oxygen or a concentrator. He stated that, over time, the reimbursement structure is reducing what the home healthcare provider is given for providing oxygen technology in the person's home. Consequently, the home healthcare providers are looking for ways to reduce operational expenses. POCs have become an accelerant and a great contributor for them in terms of reducing those expenses such that home healthcare providers see a financial advantage to converting to "non-delivered" technology for persons who require oxygen. Mr. Risinger is of the opinion that as these reimbursement pressures continue, the use of POCs will increase over the next three to five years.

[63] Inogen estimated that by 2010, there will be 150,000 POCs in use in the United States and believes, based on its internal sales data as well as on the advice of some industry analysts, that POCs will surpass stationary oxygen concentrators in the year 2012. Inogen submitted that Harris Interactive, a market research company, conducted a study early in 2007 with home healthcare providers, which found that providers who have begun to adopt POCs saw a decrease in stationary concentrators and liquid systems.

[64] Mr. Risinger noted that air carriers are beginning to take a different approach. Inogen is currently in discussions with air carriers about various POC solutions. Among these solutions is the elimination of gaseous oxygen provisioning altogether and some carriers have already done this. Mr. Risinger stated that immediately following their creation of a POC policy and allowing portable concentrators to be used, US Airways and America West Airlines, Inc. (America West Airlines) announced that they would no longer make gaseous oxygen available to their passengers.

[65] The Agency has heard evidence that there may be a small number of individuals who are unable to use POC technology, however, evidence was also heard that some persons in this group may be assessed as not fit to travel. Furthermore, substantial evidence was heard that POC technology is rapidly changing to meet the needs of persons who require oxygen and will continue to improve such that it is reasonable to expect that it will be the preferred solution for persons who require oxygen.

[66] As set out previously, there are variances among the Provinces with respect to their funding programs. In his report on Provincial Medical Oxygen Programs, Ken Mansfield set out that POCs are not yet fully integrated into home oxygen programs. His report further sets out that there are some Provincial programs which are broad enough to permit some reimbursement of the purchase price of a POC and that, in terms of the rental of POCs, coverage is not comprehensive. On the other hand, the Agency heard evidence about United States Medicare insurance which provides coverage that is modality-neutral (i.e., it does not make any difference whether the patient is receiving liquid oxygen, gaseous oxygen or a concentrator). As a result, POCs have penetrated the United States market much more quickly than in Canada.

[67] The Agency expects that the cost of POCs will decrease as the demand increases. In this regard, Dr. Deane stated that the number one thing that keeps Inogen from lowering its price is volume and that as the uptake of POCs increases, prices "can be attacked more aggressively". The Agency heard extensive evidence of the significant convenience provided by POCs to individuals who require oxygen due to the portability of POCs and the fact that they provide a complete oxygen delivery system in one unit such that persons are not required to replenish oxygen tanks. The Agency also heard evidence regarding the cost effectiveness of non-delivered technology for oxygen suppliers. In light of this and the new rule issued by the United States Department of Transportation which will require both American and foreign carriers operating within, to and from the United States to permit the use of passenger-supplied POCs in flight commencing May 13, 2009, it is reasonable to expect that the demand in Canada will quickly increase as it has in the United States, thus both driving down the cost of POCs and leading to their acceptance under provincial funding programs.

MOST APPROPRIATE ACCOMMODATION

[68] Transportation service providers are required to provide persons with disabilities with the "most appropriate" accommodation possible short of undue hardship. The determination of what accommodation is "most appropriate" is to be made by the Agency and is separate and distinct from the undue hardship determination to be made by the Agency. The Agency's specialized expertise in transportation allows it to exercise its discretion to eliminate alternatives to accommodation that are, in the Agency's opinion, on their face and in light of the evidence, unrealistic (i.e., impossible or unreasonable).

[69] Persons with disabilities and, in particular, applicants before the Agency seek accommodation in the federal transportation network that, in most cases, can be referred to as "ideal accommodation". In individual cases, ideal accommodation is usually that which best accommodates the applicant, often as described in the request for corrective measures. Insofar as the Agency agrees that the ideal accommodation requested by the applicant is the most appropriate accommodation in the circumstances, the Agency's investigation will focus on whether this constitutes reasonable accommodation in terms of the circumstances of the transportation service provider.

[70] However, different persons with disabilities may have different needs such that what is ideal accommodation for one individual may not be ideal for others within a group. This can be a difficult issue in the assessment of what is the most appropriate accommodation when looking at systemic obstacles.

[71] In this case, the ideal accommodation would be the passenger having the choice of oxygen delivery methods (passenger-supplied oxygen where permitted or carrier-supplied oxygen) provided that, where passenger-supplied oxygen is not permitted, the carrier's oxygen service is continuous during all stages of the passenger's trip, reliable and free of charge. This ideal accommodation would require a carrier to have a dual-system whereby passengers would be allowed to use their own oxygen supply wherever permitted, and to also provide an oxygen service. However, only Air Canada currently provides a gaseous oxygen service; WestJet does not. In the case of WestJet, Lorne MacKenzie, Director of Regulatory Affairs for WestJet, testified that in order to commence a gaseous oxygen service, WestJet would be required to, among other things, become certified in Canada for dangerous goods. To offer such a service to the United States, in addition to being certified in Canada for dangerous goods, WestJet would be required to offer a cargo service to the United States and establish an electronic manifest for cargo screening prior to applying for hazardous materials certification in the United States. The Agency is of the opinion that such a dual system requirement would be onerous.

[72] Passenger-supplied oxygen allows passengers who require oxygen - those individuals who are most knowledgeable about their oxygen needs and the means of accommodating their needs - to take their treatment in their own hands. In this regard, during the hearing WestJet stated that the notion of independence is fundamental to the concept of accessibility. The Agency agrees with this. As soon as an air carrier assumes responsibility for the provision of oxygen to passengers, the control shifts to the carrier, a party not as knowledgeable about the passenger's oxygen needs and with limited capabilities in the provision of oxygen particularly from the perspective of the individual. Passengers who use their own oxygen equipment are able to move through the transportation network with a sense of security drawn from the knowledge that they do not have to rely on a third party for their oxygen and are able to complete their entire trips with single devices, without all the advance planning and logistical co-ordination challenges previously described by Mr. Pettigrew and Mr. Risinger.

[73] In describing the passenger's perspective, Mr. Pettigrew asked "should I have to wait for a Medipak to arrive when I have my own supply of oxygen at hand while my mother is deathly ill across the country? Or should a pensioner have to pay $300 for oxygen on an aircraft to visit her grandchildren for Christmas when her oxygen needs are already being paid for?" In addition to the notion of independence and the sense of security that comes from the ability to control one's own life-support device, another significant concern for many applicants before the Agency is the fees charged for carrier-supplied oxygen. In the Obstacle Decision, the Agency found that Air Canada's policy on oxygen fees constituted an obstacle to the mobility of the applicants who raised this concern and to that of persons with disabilities who require that oxygen be available when travelling by air. Some applicants submitted that the fees for oxygen service were higher than the cost of the air ticket itself.

[74] The Obstacle Decision reflects that the vast majority of applications relate to issues arising from Air Canada's policy of not allowing passenger-supplied oxygen on board its aircraft and the delivery of its oxygen service. Most applicants asserted that the solution to these problems would be to allow passengers to bring their own oxygen on board aircraft.

[75] Based on the above, it would not be reasonable to require carriers to have a dual system whereby passengers would be allowed to use their own oxygen supply wherever permitted and to also provide an oxygen service. Therefore, the Agency finds that the most appropriate accommodation for persons who require oxygen to travel by air is to be allowed to use passenger-supplied oxygen, in whatever form is permitted.

[76] In Canada, the regulatory regime permits passenger-supplied gaseous oxygen and POCs. However, there are some foreign regimes that restrict the use of passenger-supplied gaseous oxygen (e.g. the United States where POCs are the only permissible passenger-supplied solution). In his report, Mr. Mansfield noted that most European countries are members of the Joint Aviation Authorities (JAA), an associated body of the European Civil Aviation Conference that represents the civil aviation regulatory authorities of a number of European States. The regulatory environment in Europe is very similar to that which exists in Canada in that there are no regulations that prohibit the use of passenger-supplied gaseous oxygen. Mr. Mansfield stated, however, that there is a great deal of emphasis on harmonizing the JAA regulations with those of the United States, which do not permit the use of passenger-supplied gaseous oxygen. Mr. Mansfield also set out that in the absence of any regulations addressing operational requirements for oxygen, there are variances among individual air carriers with respect to the carriage of oxygen for passenger use. In his report, Mr. Corbett stated that worldwide, full service carriers tend to prohibit the use of passenger-supplied gaseous oxygen but allow the use of approved passenger-supplied POCs.

[77] Given the differences among foreign regimes with respect to the acceptance of passenger-supplied gaseous oxygen, the Agency finds that a requirement for carriers to permit passenger-supplied oxygen use wherever foreign regulations permit would add an unreasonable level of operational complexity. For example, the nature of international travel in today's environment is such that many carriers are part of large alliances for which membership may include several air carriers and which may entail reliance on their partner carriers to provide service on their behalf; partners who may have policies that prohibit the use of passenger-supplied gaseous oxygen.

[78] The Agency also recognizes that while there may be some carriers that currently do not allow the use of passenger-supplied POCs, more and more carriers are beginning to accept them. Mr. Risinger indicated that Inogen has received approvals from more than 35 air carriers for its POC and is in discussions with a number of carriers with respect to incorporating POCs into their current oxygen programs. As set out above, some carriers, such as US Airways and America West Airlines are opting to eliminate gaseous oxygen altogether following the creation of a POC policy. As an example of the growing acceptance of passenger-supplied POCs and as set out above, during the hearing, Air Canada announced that it would begin to accept passenger-supplied POCs on all of its domestic, transborder and some of its international routes in February 2008. Furthermore, as previously set out, the United States Department of Transportation has recently introduced a rule that will require domestic and foreign air carriers operating within, to and from the United States to permit, in the passenger cabin, the use of POCs that meet applicable safety, security and hazardous materials requirements for safe use on board aircraft.

[79] The evidence clearly shows that there is a growing trend for carriers to accept the use of POCs on board aircraft. Some carriers may be considering issues with respect to radio interference, etc. in light of the United States Special Federal Aviation Regulation No. 106 which sets out the rules for the use of POCs on board aircraft including the operational requirement that the device does not cause interference with the electrical, navigation or communication equipment on the aircraft on which the device is to be used. However, evidence was heard that advanced testing has been performed on many POC models on aircraft types that are widely used and that POC manufacturers have obtained necessary approvals from the United States FAA for their use on these aircraft.

[80] As previously noted, transportation service providers are required to provide persons with disabilities with the "most appropriate" accommodation possible short of undue hardship. Further, the Agency's specialized expertise in transportation allows it to exercise its discretion to eliminate alternatives to accommodation that are, in the Agency's opinion, on their face and in light of the evidence, unrealistic (i.e., impossible or unreasonable). Based on the above, the Agency does not find it reasonable to impose an obligation on Air Canada and WestJet to have more than one international oxygen policy. Rather, the Agency finds that it is reasonable for the carriers to adopt an oxygen policy that is consistent for all international destinations and that adopts the most stringent regulations, being those of the United States which permit the use of passenger-supplied POCs on international flights and prohibit the use of passenger-supplied gaseous oxygen.

[81] Furthermore, to provide clarity with respect to Air Canada's current oxygen policies, the Agency finds that Air Canada's practice to provide carrier-supplied gaseous oxygen in addition to allowing passenger-supplied POCs on international flights goes beyond its duty to accommodate.

[82] The Agency heard no evidence as to the existence of jurisdictions that prohibit the use of passenger-supplied POCs in flight. Given the rapidly changing technological landscape and the recent announcement by the United States Department of Transportation of the new rule described above, requiring POCs acceptance effective May 13, 2009, the Agency is of the opinion that any such prohibitions will rapidly become a thing of the past.

[83] In light of the above, the Agency finds it appropriate for Air Canada and WestJet to have one international oxygen policy that is consistent for all international destinations and finds that the most appropriate accommodation for international travel is passenger-supplied POCs. However, carriers may choose to go beyond the duty to accommodate by providing an oxygen service to enhance customer service and to gain a competitive advantage.

Conclusion

[84] Providing passengers who require oxygen to travel by air with their choice of oxygen delivery methods would be the ideal accommodation in light of the broad variety of needs and preferences of this group of travellers. However, the Agency does not consider it realistic to require Air Canada and WestJet to maintain the systems necessary to meet all persons' individual needs and preferences. Rather, the Agency strongly supports the principle of independence and finds value in having individuals where practical control their own life-support devices thus providing the highest level of certainty, continuity and independence. As such, the Agency finds that passenger-supplied oxygen, in whatever form is permitted, is the most appropriate accommodation. However, in light of the reasons stated above, the most appropriate accommodation for international travel is limited to passenger-supplied POCs.

[85] Having determined what is the most appropriate accommodation, the Agency must now consider whether the requirement for Air Canada and WestJet to provide the most appropriate accommodation would cause undue hardship to them or whether there are reasonable alternatives to the most appropriate accommodation.

THE AGENCY'S APPROACH TO THE DETERMINATION OF THE UNDUENESS OF OBSTACLES

[86] Once the Agency has found that a feature of the federal transportation network represents an obstacle to persons with disabilities, it must then proceed to make a determination of whether that obstacle is undue as it is only upon finding that an obstacle is undue that a transportation service provider may be ordered to take corrective measures to address the obstacle.

[87] In this way, once the applicant has established in the application 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 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 Canada Transportation Act (CTA);
  • was adopted by the transportation service provider with an honest and good faith belief that it was necessary to the fulfilment of that legitimate objective; and,
  • 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.

[88] The transportation service provider must show that reasonable accommodation has been provided, meaning up to the point of undue hardship. What constitutes "reasonable accommodation" in each case is a matter of degree and depends on a balancing of the interests of persons with disabilities with those of the transportation service provider in the circumstances of the case, including 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.

[89] In most cases, there will be a range of alternatives available to address the needs of a person with a disability or a group sharing the same characteristics and, in each case, the most appropriate accommodation will be one that respects the dignity of the individual, meets individual needs, and promotes the independence, integration and full participation of persons with disabilities within the federal transportation network. In the end, reasonable accommodation will be the most appropriate accommodation which would not cause undue hardship to the transportation service provider.

[90] To establish undue hardship, a transportation service provider must show that it has considered and determined that there are no reasonable alternatives to better accommodate the person with a disability affected by the obstacle and that there are constraints that make the removal of the obstacle unreasonable, impracticable or, in some cases, impossible. Examples of constraints on respondent transportation service providers which the Agency may consider in its determination of undue hardship are those related to structural issues, safety issues, operational issues and financial/economic issues and include security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These constraints may have some impact on persons with disabilities as, for example, they may not be able to board an aircraft using their own wheelchair, they may have to arrive at an airport earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities.

[91] It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the constraints that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of these interests that the Agency applies the concepts of undueness and undue hardship.

[92] The applicants have established the existence of the previously-noted obstacles to the mobility of persons with disabilities in the federal transportation network. The onus now shifts to the respondents to prove, on a balance of probabilities, that the obstacles are not undue.

[93] The Agency will consider below each of the three aspects of the test set out in paragraph 87 above.

Is the source of the obstacle rationally connected to a legitimate objective?

[94] Air Canada and WestJet do not allow passenger-supplied gaseous oxygen on international flights due to foreign regulatory requirements, in particular the U.S.. On the one hand, although the regulatory regime in Canada permits carriers to allow passenger-supplied gaseous oxygen domestically, Air Canada has chosen to offer a carrier-supplied oxygen service that is consistent for all of the destinations it serves in addition to allowing passenger-supplied POCs on some of its routes. WestJet, on the other hand, allows passenger-supplied POCs on all of its flights while allowing passenger-supplied gaseous oxygen on its domestic flights. Although the Obstacle Decision reflects that most applicants asserted that the solution to the problems with Air Canada's oxygen service would be to allow passengers to bring their own oxygen on board aircraft, the Agency recognizes that Air Canada has policies and procedures in place with a view to providing an oxygen service to its passengers to improve the accessibility of its service to its passengers with disabilities. Therefore, the Agency accepts that Air Canada's and WestJet's oxygen policies are rationally connected to the carriers' public function as air transportation providers and their objective of providing safe, reliable and efficient air transportation services to passengers, including accessible transportation to passengers with disabilities, to the extent that they are able to do so within the regulatory environment.

Is the continued existence of the obstacle based on an honest and good faith belief that it was reasonably necessary for the fulfilment of that legitimate objective and with no intention of discriminating against the applicants?

[95] The Agency is satisfied that Air Canada and WestJet had no motive other than to offer accessible transportation to their passengers within the regulatory environment and, thus, accepts that Air Canada and WestJet have adopted their policies and procedures in good faith and the honest belief that they were reasonably necessary to meet this objective.

Is the continued existence of the obstacle reasonably necessary to achieve that legitimate objective, where reasonable necessity must be demonstrated by showing that it is impossible for the service provider to accommodate persons with disabilities without imposing undue hardship on the service provider?

[96] The Agency will address this question for Westjet and Air Canada under each of the following individual obstacles identified in the Obstacle Decision.

WESTJET

[97] In the Obstacle Decision, the Agency found that WestJet's practice of refusing to transport persons with disabilities who require oxygen on international and transborder flights, due to the inability to use passenger-supplied oxygen equipment and the non-provision of an oxygen service, constituted an obstacle. Since the issuance of the Obstacle Decision, WestJet has changed its policy to allow passenger-supplied POCs on all of its flights.

[98] Mr. Pettigrew, who filed an application against WestJet and who applied for and was granted participation rights at the hearing, made a significant contribution to these proceedings by providing first-hand evidence about the experiences of a person who uses oxygen and the challenges that they face when travelling by air.

[99] Although Mr. Pettigrew submitted a request that the Agency make its decision on his application against WestJet based on the rules and regulations that were in effect at the time of his application, this Decision reflects the results of a comprehensive and extensive review of means of accommodation for passengers who require oxygen to travel by air. The Agency finds that it would be inappropriate for it to limit its review in the manner suggested by Mr. Pettigrew thereby failing to consider the emergence of new technology to meet the needs of these persons, particularly where that technology provides so many advantages to air travellers.

[100] While at the time of the Obstacle Decision, the only reasonable alternative to accommodate these persons with disabilities would have been to provide carrier-supplied gaseous oxygen, in light of the emergence of POCs as the most appropriate accommodation in the international air context, the Agency does not find it necessary to determine whether the obstacle identified in the Obstacle Decision was undue at that time. The Agency notes that once POCs were approved by the FAA for air travel, WestJet voluntarily amended its policy to remove the obstacle and as WestJet now provides the most appropriate accommodation. No further action is required.

AIR CANADA

[101] Air Canada's evidence with respect to costs includes Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc. carrying on business as Air Canada Jazz (Jazz) with the exception of the costs for modifications to the overhead bins, which exclude the Dash-8 aircraft operated by Jazz. Although Jazz was not named as a respondent in this case, the Agency accepts the inclusion of this evidence as Jazz operates flights on behalf of Air Canada and applies the same policies and procedures. It is recognized that any changes to Air Canada policies or procedures are expected to have an impact on Jazz, with the exception of those respecting overhead bins.

[102] Passengers who require oxygen when travelling by air, whether using Air Canada's Medipak service or a passenger-supplied POC, are required to provide Air Canada with advance notice and are required to complete Air Canada's FFT form for both domestic and international travel. Accordingly, these obstacles will be addressed systemwide (i.e., in respect of both domestic and international services). The remaining obstacles will be addressed separately in respect of Air Canada's domestic services and its international services.

AIR CANADA SYSTEMWIDE

Advance notice

[103] In the Obstacle Decision, the Agency found that Air Canada's policy of requiring persons to request Air Canada's oxygen service including its portable onboard oxygen service 48 hours in advance of travel (72 hours for some international destinations) constitutes an obstacle to the mobility of the applicants and to that of persons with disabilities who must have oxygen on board flights. The implication of this policy is that, with little or no advance notice, these persons will be refused transport in situations where they require last minute transportation. The Agency recognized in the Obstacle Decision that this policy can have a substantial impact on persons with disabilities travelling for medical purposes, or on those who need to make last minute arrangements due to family emergencies or for business reasons.

[104] Although the obstacle finding also pertained to Air Canada's portable onboard oxygen service, Air Canada informed the Agency that it has changed its policy regarding the use of onboard oxygen for persons who require oxygen to leave their seat to use the washroom. Air Canada now provides emergency oxygen to persons who require oxygen to leave their seat to use the washroom as a matter of course. As Air Canada no longer imposes a requirement for advance notice for the use of its portable onboard oxygen, the Agency finds it unnecessary to address Air Canada's portable onboard oxygen service in considering the issue of advance notice for Air Canada's oxygen service for domestic and international travel.

[105] In terms of Air Canada's advance notice policy as it pertains to its Medipak service and acceptance of POCs on some of its routes, the carrier argued that operational constraints make it unreasonable, impracticable or impossible to change its advance notice policy such that it would constitute undue hardship.

Operational constraints

Air Canada evidence

[106] Air Canada asserted that its policy of requiring advance notice to supply oxygen is necessary to achieve the objective of providing safe and reliable delivery of the service and that maintaining control over a complicated process is by far the most important reason for a strict 48-hour notice requirement. Air Canada submitted that to minimize error and allow for detection and correction of an error, a high degree of standardization is necessary and a 48-hour notification period allows for the orderly delivery of the service. It maintained that exceptions increase the possibility of error.

[107] Air Canada presented extensive evidence with respect to the various steps and employee groups involved in the provision of its Medipak service. At the hearing, Air Canada also presented a detailed flowchart describing the various processes. The delivery of an oxygen service requires the co-ordinated effort of several departments and many individuals, and there are many points at which errors can occur, thus necessitating a 48-hour notification period to ensure delivery (72 hours for some international destinations). The following identifies each employee group involved in the oxygen provisioning process and provides a summary of its role:

  • The Meda Desk call centre receives requests for oxygen from passengers and advises passengers of the Medipak service, fees and procedures. The Meda Desk call centre also obtains medical information through an FFT form that must be completed by the passenger's physician.
  • The medical team, which includes occupational nurses and medical doctors, reviews the FFT forms and assesses whether medical clearance will be provided.
  • Stores are inventory locations in Montréal, Toronto and Vancouver managed by Air Canada Technical Services LP (ACTS), a separate entity from Air Canada. Stores receive the oxygen requests from the Meda Desk and are responsible for the preparation and provision of Medipaks. A supply logistics communicator plans the supply of each oxygen request, a stock keeper arranges the Medipak provisioning and completes the required documentation, and a Stores runner delivers the Medipaks to the aircraft gate.
  • Station Operation Control (STOC), located at every airport, is responsible for co-ordinating the arrival and departure of Medipaks from a station daily and acts as the communication link between various departments.
  • Aircraft Services/Ground Handling is responsible for loading and unloading Medipaks from aircraft at both supply stations (located in Montréal, Toronto and Vancouver) and non-supply stations (all other airports).
  • Flight Dispatch updates the flight plan for each flight segment with Medipaks on board.
  • Weight and Balance updates the load plan for each flight segment with Medipaks on board.
  • Cargo, which is operated by AC Cargo Limited Partnership, a separate stand-alone entity, ships back unserviceable (used) Medipaks when they arrive at a non-supply station.

[108] Air Canada submitted that its 48-hour advance notice requirement is strictly enforced. It pointed out that it is possible that an employee may attempt to accommodate an individual who makes a request with less than the required notice; however, this is not in accordance with its policy. Despite this, Benoit Parisien, Customer Service Manager in charge of Air Canada's Meda Desk, testified that Air Canada occasionally receives requests for oxygen within the 48-hour notice period and that, as much as possible, it tries to accommodate these requests.

[109] Air Canada submitted that while it would like to be able to accommodate requests on less than 48 hours advance notice, it has a highly-tasked system to produce oxygen at a certain place at a certain time with many logistical problems to solve to do so. It asserted that when exceptions are made by "jumping the queue", an increased possibility of error is introduced. In its opinion, if an exception is made, a lesser notice period would become the expected norm and would fuel customer expectations that this is the standard.

[110] Air Canada submitted that in cases where an individual must travel on short notice due to a medical emergency, it is likely that the medical evaluation will be more problematic than that of the average passenger who requires oxygen, and the evaluation process is likely to take longer than usual. Dr. Bekeris concurred that such circumstances may indicate that the stability of the individual's impairment requires closer scrutiny to consider the individual's requirements to travel safely. Air Canada contended that persons who must travel due to emergency circumstances, which are not compatible with a 48-hour advance notice requirement, should not be considered candidates for travel by commercial aviation. Rather, they require emergency evacuation services provided by air operators who perform emergency medical movements.

[111] Air Canada submitted that another consideration involves the working conditions of its employees and explained that normal recurrent work patterns facilitate the safe and reliable provision of its Medipak service. For example, the communicator in Stores is responsible for calculating the necessary number of Medipaks and preparing the paperwork that will control the delivery process from that point onward. Air Canada asserted that it is crucial that this work be done accurately and explained that the midnight shift is the most reasonable time to accomplish this task. If the communicator were to undertake these tasks during the day, when the activity in Stores is higher, there would be an increased possibility of error. Air Canada concluded that the best way of achieving safe and reliable delivery that is fair to all of its customers is to impose a firm 48-hour notice period.

Amicus Curiae evidence

[112] In his report, Mr. Corbett indicated that of the Canadian, American, European and Asia/Pacific carriers that he surveyed, most require persons with disabilities to provide at least 48 hours notice to enable medical clearance and/or to position oxygen at the airport.

[113] The amicus curiae acknowledged that as long as Air Canada's current Medipak system remains in place, in whole or in part, it is difficult to see how Medipaks could be put in place with any less notice.

[114] The amicus curiae submitted, however, that there are times when Air Canada could provide oxygen with less notice; for example, in situations where a passenger must travel for compassionate reasons and their origin is from a supply station where Air Canada has a supply of Medipaks (Toronto, Montréal or Vancouver). He pointed to Dr. Bekeris' evidence with respect to the fitness to travel clearance process during which he explained that the amount of time that the Meda Desk employees spend on a clearance is minimal and suggested that it is the placement of the Medipak that drives the need for advance notice rather than the medical clearance.

[115] The amicus curiae submitted that where it is able to do so, Air Canada should provide its Medipak service with less than 48 hours notice for compassionate reasons.

Analysis and conclusion

[116] As noted previously, to establish undue hardship, Air Canada must show that there are constraints that make the removal of the obstacle impracticable, unreasonable or, in some cases, impossible and that it has considered and determined that there are no reasonable alternatives to accommodate persons with disabilities affected by the obstacle posed by its advance notice policy.

[117] The Agency's requirements regarding reasonable advance notice for disability-related services on domestic flights are set out in the following provisions in Part VII of the Air Transportation Regulations - SOR/88-58, as amended (ATR):

151(2) Where, at least 48 hours before the scheduled time of departure of a person's flight, the person requests an additional service that is set out in an air carrier's tariff, the air carrier shall provide the person with the service, in accordance with any conditions in respect of the service that are set out in the tariff.

151(3) Where a request for a service referred to in subsection ... (2) is not made within the time limit provided thereunder, the air carrier shall make a reasonable effort to provide the service.

[118] The evidence is that Air Canada's policy with respect to 48 hours' advance notice reflects subsection 151(2) of the ATR as applicable to its domestic service and, as such, the Agency finds that Air Canada's policy of requiring this advance notice to supply its gaseous oxygen service or to accept the use passenger-supplied POCs is not an undue obstacle for its domestic services. While the Agency recognizes that Part VII of the ATR is only applicable to domestic air services , the Agency finds that it is reasonable to extend the same principles embodied therein to international air services provided by a Canadian carrier operating to/from a Canadian point. The Agency therefore finds that Air Canada's policy with respect to 48 hours' advance notice as it applies to its international air services is not an undue obstacle. Furthermore, the Agency finds it reasonable that Air Canada's policy requires 72 hours' advance notice for the provisioning of its Medipak service to some international destinations where time zones must be factored into the process, although it finds that the destinations where this exception is applicable should be specified in its policies and procedures to provide clarity and certainty for carrier personnel and consumers reading the materials.

[119] The Agency is, however, concerned about the fact that Air Canada's policy does not incorporate into its policy section 151(3), which sets out that an air carrier shall make a reasonable effort to provide a service when a request is not made within the time limit. Although Air Canada asserted that it is not generally possible to provide its Medipak service on less than 48 hours' advance notice, the Agency notes the evidence of Mr. Parisien that Air Canada employees do in fact make reasonable efforts where possible. The Agency recognizes that in most situations providing Air Canada's Medipak service on less than 48 hours' notice may not be possible. However, the Agency finds that in certain situations, such as that suggested by the amicus curiae, when the passenger's origin is from a supply station where Air Canada has a supply of Medipaks, it may well be possible such that Air Canada should not be relieved of its obligation to make a reasonable effort to accommodate passengers with disabilities on less than ideal notice. To permit Air Canada to take this position would be to preclude all persons with disabilities who require oxygen in order to travel by air from travelling on short notice, including for compassionate or urgent reasons.

[120] The Agency finds that there is no evidence as to why Air Canada cannot incorporate into its policy its obligation to make reasonable efforts to either provide its Medipak service or to accept the use of POCs, on less than 48 hours notice, recognizing that carriers maintain the discretion to refuse transportation in cases where they genuinely cannot accommodate a passenger when less than 48 hours' advance notice of the person's need for additional services is provided. Accordingly, the Agency finds that Air Canada's policy that it will not make a reasonable effort to provide its Medipak service or accept the use of POCs in respect of its domestic air services on less than 48 hours' advance notice is both a contravention of subsection 151(3) of the ATR and an undue obstacle to the mobility of these persons. Similarly, the Agency finds that Air Canada's policy that it will not make a reasonable effort to provide its Medipak service or accept the use of POCs to allow passengers to use its international air services on less than 48 hours' advance notice is also an undue obstacle to the mobility of these persons.

[121] While the Agency has found a contravention of the ATR, it will not take further steps to enforce the regulation as it is of the opinion that the matter is better addressed through the imposition of corrective measures related to the undue obstacle finding.

Fitness for Travel Form

[122] In the Obstacle Decision, the Agency found that the requirement that Air Canada's FFT forms be completed by the physicians of persons who use oxygen, including the related costs and the level of information to be disclosed, constituted an obstacle to the mobility of Mrs. McMartin, Mr. Kimelman, Ms. Gould and all persons with disabilities who require oxygen to travel by air.

[123] The Agency noted the evidence of Ms. Willis that the fee for obtaining a doctor's certificate was $50 for her in 2004, which resulted in a further expense when purchasing Air Canada's oxygen service. The Agency further noted the evidence of the N.W.T. Council for Disabled Persons that the repeated requirement that Ms. Gould's doctor certify her need for oxygen seemed to be an unnecessary inconvenience to consumers. In the Terms of Reference for the hearing, the Agency identified the creation of permanent files, when appropriate, as a possible solution to mitigate the problems of costs and inconvenience arising from the frequency with which persons are required to provide FFT forms completed by their physicians.

[124] As noted in the Obstacle Decision, Air Canada's FFT form provides for the disclosure of extensive personal health information, including: the date of "onset of present illness, episode or accident and treatment"; the nature and date of any surgery; bladder and bowel control; if "patient" is not medically fit to travel unaccompanied, the patient's need for a private escort to assist on board with meals, visiting the washroom or administering medication; wheelchair requirements; and the existence of other medical conditions such as cardiac condition, chronic pulmonary condition, or psychiatric condition.

[125] In addition, the Agency notes that Air Canada's FFT form provides the option for the passenger's physician to indicate whether the passenger requires 2 LPM, 3 LPM, 4 LPM or 5 LPM only, despite the fact that some of the oxygen cylinders used by Air Canada are capable of providing a flow rate of 8 LPM and there is no Canadian regulatory restriction that prevents carriers from using equipment that have flow rates in excess of 5 LPM or that prevents passengers from using higher flow rates.

[126] Air Canada argued that safety, operational and financial constraints make it unreasonable, impracticable or impossible to remove the requirement that FFT forms be completed by the physicians of persons who use oxygen, despite the related costs and inconvenience, and the level of information to be disclosed each time the person travels, such that it would constitute undue hardship.

Safety and operational constraints

Air Canada evidence

[127] Dr. Bekeris is a qualified flight surgeon and he is a consultant to the military on matters of aviation medicine. He submitted that passengers are not required to inform Air Canada that they have an impairment, however, if they do so, Air Canada will consider whether the individual can safely travel. Although Dr. Bekeris stated that FFT forms are required for all persons with a declared impairment, he subsequently indicated that individuals who have no requirement for accommodation other than some assistance, such as persons who self-declare that they are blind or persons with paraplegia who require wheelchair assistance only, would not be required to complete an FFT form.

[128] Air Canada submitted that it is responsible for ensuring that its passengers are fit to travel. Air Canada also pointed out that, in its opinion, there are risks associated with self-assessment. Air Canada asserted that, in the discharge of its responsibility, it can insist upon some assurances about the passenger's ability to travel by air in their present condition without undue peril. Furthermore, Air Canada maintained that allowing persons who require oxygen to board an aircraft without making an informed decision respecting fitness would increase the risk of an onboard emergency and cabin crew employees being called upon to deal with a very stressful situation.

[129] Dr. Bekeris stated that Air Canada does not accept an individual's self-assessment with respect to their need for oxygen as many individuals do not have insight into the environmental factors that might affect them while travelling by air. Air Canada asserted that the risks associated with self-assessment include the possibility of a medical emergency in flight and a potential diversion, which would cause inconvenience to other passengers and could affect the scheduling of other flights. Air Canada further stated that the diversion of cabin crew resources could be detrimental to the crew's ability to address the needs of other passengers. Dr. Bekeris maintained that not all medical doctors have insight with respect to how impairments may be adversely affected as a result of the aircraft cabin environment and that the average physician does not receive training in matters of aviation and aviation medicine.

[130] Air Canada's policy requires the FFT form to be completed by a physician. Air Canada has no objection to a respirologist completing the form as a respirologist is a medical doctor. However, Air Canada stated that it will not allow a respiratory technician or a respiratory therapist to complete the form as they are not physicians and do not have the professional qualifications necessary for a complete assessment of the individual, including the consideration of any co-morbidities (the existence of more than one impairment in an individual), and their impact on a respiratory condition.

[131] At the hearing, Dr. Bekeris explained that Air Canada is able to create a "permanent file", or a long-term file, for a person with a disability, which records the individual's impairments and constitutes a record that can be consulted when the individual makes a reservation; this may avoid the necessity of performing individual medical assessments each time they travel. However, he indicated that such files are created primarily in situations where the person's physical impairments and the accommodation they require are not expected to change, for example, a person with an amputation. Dr. Bekeris stated that persons who use oxygen on a regular basis would typically have conditions that are not stable and that are expected to change with time. As such, it is not Air Canada's practice to create "permanent files" for persons with disabilities who require oxygen to travel. Rather, Air Canada would seek up-to-date medical data, in terms of an individual's impairment, their current medical condition and their requirements for accommodation arising from their disability, each time they travel.

[132] With respect to the level of information to be disclosed in the FFT form, Air Canada asserted that the questions in its FFT form are justified on medical grounds and that it would be akin to malpractice to fail to consider the possibility of co-morbidities in assessing a person's fitness to travel by air.

[133] Dr. Bekeris stated that Air Canada's considerations go beyond the requirements for oxygen and include any impairment that might be affected by the aircraft cabin environment; all of the items in Air Canada's FFT form are of concern to it in the air travel environment. Dr. Bekeris noted that co-morbidities may or may not be related. He explained that lung disease and heart disease are an example of related co-morbidities as the two systems are very much related to each other. He also provided the example of lung disease and a psychiatric condition as co-morbidities that may be independent of each other. Air Canada submitted that the suggestion that it is too inquisitive conflicts with another principle of accessibility that it has seen expressed in a number of accessibility cases; that is, it is often told to ask questions to determine how best to provide the required disability-related service.

[134] Although Air Canada's equipment is capable of delivering flow rates of up to 8 LPM, Air Canada refuses to transport persons who require flow rates of more than 5 LPM. Dr. Bekeris expressed the opinion that individuals who require higher flow rates are usually very ill and would quite often be assessed as not fit to travel.

Amicus curiae evidence

[135] The amicus curiae submitted that any passenger can have a medical emergency on board an aircraft, and there is no evidence before the Agency that passengers who use oxygen have more medical emergencies than other passengers or are at any greater risk of experiencing a medical difficulty on a flight. A passenger with a medical problem will have that problem whether or not they fill out an FFT form, and the amicus curiae stated that it is unfair that because an FFT form must be completed to receive oxygen, the rest of an individual's medical file is revealed to Air Canada. The amicus curiae pointed out that other air carriers have less intrusive requirements.

[136] The amicus curiae submitted that Air Canada's requirement for an FFT form in every instance of oxygen use is excessive and he is of the opinion that Air Canada has not made a convincing argument that it needs to understand co-morbidities. The amicus curiae acknowledged that under Air Canada's procedures, there may be cases where passengers with a psychological disability should be completing an FFT form. However, the amicus curiae questions why a passenger who requires oxygen but who does not have a psychological disability should have to report it one way or the other to Air Canada.

[137] With his report, Mr. Corbett included a sampling of FFT forms for a number of different air carriers, some of which are relatively brief and pertain to oxygen only, while others are more detailed, similar to Air Canada's FFT form. For example, All Nippon Airways Co., Ltd. provides a medical information form that explains the air pressure and oxygen concentration in the aircraft. It also provides guidance to the passenger's physician as well as a medical information sheet, which requires information including a detailed diagnosis, whether the passenger has a contagious disease, whether the passenger can take care of their own needs, whether any medication is required, etc., and which must be completed by the passenger's physician. Delta Air Lines, Inc. has a form specific to oxygen use which requests only the nature of the individual's illness that necessitates the requirement for oxygen, the flow rate required, and a certification from the passenger's physician that the passenger is physically able to complete an airline flight safely.

[138] Dr. Chapman, an expert in respiratory medicine and treatment, and in dealing with respiratory issues in the aviation environment, is concerned that the current Air Canada FFT form is "something of a fishing expedition" in that the request for oxygen prompts a number of questions about some things that may or may not be related to the lungs, such as heart disease, and other conditions that are clearly not related to the lungs, such as psychiatric disorders. Dr. Chapman expressed the opinion that this is inappropriate, both from a privacy and a medical standpoint.

[139] Air Canada presented Dr. Chapman with two scenarios that involved a common objective of determining whether a person can safely undertake a proposed journey by air. The first scenario involved a simplified FFT form which gathers only oxygen-related information and includes a certificate from the passenger's physician that the passenger is capable of completing the flight safely with oxygen. The other, an Air Canada-type form, gathers significant information, much of which is provided by the treating physician, and may also involve a dialogue with the passenger's physician, if necessary. Air Canada asked whether Dr. Chapman believed that his ability to answer the question about the person's fitness to travel by air could be made with equal confidence under each scenario. Dr. Chapman indicated that under the first scenario he would have little information to arrive at an independent opinion, while in the second scenario, he would have somewhat more detailed information to arrive at an independent opinion. Dr. Chapman presumed that his own independent decision would be a more confident one in the second scenario.

[140] Dr. Chapman stated that he would not like to evaluate an individual's fitness to travel by air based on the FFT form completed by another physician. He also submitted that if the form is attempting to question a physician closely about anything that might accompany chronic lung disease, it fails to do so. Dr. Chapman explained that, for example, it asks an unclear question about recent exacerbations, but it asks nothing about irregular heartbeat, i.e., atrial fibrillation, which is very common with COPD. Dr. Chapman stated that there is nothing about diabetes, a very common co-morbid illness, despite the fact that its treatment can lead to some significant hazards in flight and otherwise. Dr. Chapman explained that he is not suggesting that several more pages of all the possible questions should be added to the FFT form; rather, his position is that it is impossible to ask all the questions that may apply to an individual with chronic lung disease. Instead, Dr. Chapman suggested that it would be appropriate to ask a physician to document the oxygen need and provide a simple statement about the individual's fitness to travel by air. Dr. Chapman expressed the opinion that the responsibility for evaluating the individual's fitness to travel by air does not rest with Air Canada using "the bits and pieces of information on a form"; rather, it should rest with a physician who knows the individual. However, Dr. Chapman acknowledged that the majority of general physicians would not have training in aviation medicine and that such training is not a requirement for respirologists.

[141] Dr. Chapman expressed the opinion that Air Canada's FFT form is very cumbersome to use and suggested that it could be simplified without deleting any questions simply by removing redundant questions, such as the list of medications which is requested at least six times. Dr. Chapman stated that he has cared for individuals who require oxygen in flight and who travel on a somewhat regular basis and, in his opinion, it would assist physicians, who face a bewildering array of forms, to see one standard form among air carriers to evaluate an individual's fitness to travel and document the need for oxygen. He submitted that it would be ideal to deal with either a simplified form or, less ideally, if one must deal with a more complex form, that there is the opportunity to simply update the form or confirm that the individual's information has not changed.

[142] Dr. Chapman noted that the goal is to ensure that persons who require oxygen to travel receive it, and that any barrier to the individual receiving oxygen is potentially hazardous to their health. Speaking as a practising physician, Dr. Chapman commented that being faced with a three to four-page form in a very small font every time an individual wants to travel may "elicit a groan" which the individual hears. The individual would then also be charged a fee for the form to be completed. In Dr. Chapman's opinion it is not hard to imagine that the individual may choose not to go back to the physician to have the form completed, or that the physician may refuse to complete it, creating a situation where a person who requires oxygen to travel does not receive it. Dr. Chapman maintained that Air Canada's FFT form is a barrier to individuals getting the sort of assistance they require during flight.

[143] The amicus curiae submitted that there is no compelling evidence before the Agency that persons who require oxygen are at any greater risk of experiencing a medical difficulty on a flight than any other passenger. The amicus curiae expressed the opinion that Air Canada has taken legal liability upon itself with its approval of the FFT form through the Meda Desk and Occupational Health Services. The amicus curiae pointed out that WestJet leaves that issue entirely to the passenger.

[144] With respect to flow rates and fitness to travel, Dr. Chapman agreed with Dr. Bekeris' opinion that individuals who require higher flow rates are usually very ill and would quite often be assessed as not fit to travel. However, Mr. Litwin stated that individuals who require higher flow rates of oxygen often have a fibrotic disease, a disease of the lung itself and not the airways, rather than an obstructive disease, such as COPD. Mr. Litwin explained that individuals with fibrotic lung disease tend to be generally healthy, except for their fibrotic disease.

Financial constraints

Air Canada evidence

[145] Air Canada asserted that if it were not allowed to make proper assessments of an individual's fitness to travel by air, there might be very significant financial impacts. Air Canada explained that if an aircraft is forced to divert because of an onboard medical emergency, the costs are great, normally into the tens of thousands of dollars.

[146] Concerning responsibility for the incurred costs associated with a diversion, including the consequences of a fuel dump required for an early landing, Air Canada established through cross examination that Dr. Chapman does not think that a physician would anticipate paying personally for the cost of a diversion, including accepting personal responsibility for the consequences of a fuel dump.

Amicus Curiae evidence

[147] As noted above, the amicus curiae submitted that there is no compelling evidence before the Agency that persons who require oxygen are at any greater risk of a medical difficulty on a flight than any other passenger.

Analysis and conclusion

[148] The following sets out the Agency's analysis and conclusions regarding the requirement that the FFT form be completed by a physician and the level of information to be disclosed in the FFT form.

Requirement that the FFT form be completed by a physician

[149] Air carriers are responsible for the safety of their passengers and crew in flight. Persons with disabilities who require oxygen to travel by air require accommodation from carriers, whether it be to carry their own oxygen or to obtain oxygen service from the carrier. Air Canada allows passenger-supplied POCs and also chooses to provide a gaseous oxygen service to accommodate these persons and, in doing so, it requires information from the person to understand the person's needs and how best to meet them. The Agency has long recognized that insofar as carriers must provide additional services to meet the needs of persons with disabilities, they are entitled to this information.

[150] Air Canada chooses to collect this information in an FFT form and requires that it be completed by the person's physician.

[151] In the Terms of Reference for the hearing, the Agency set out that having the FFT form completed by health care professionals involved in the care of the person, such as respirologists, may constitute the best level of accommodation from an accessibility perspective. Air Canada submitted that a respirologist is a medical doctor and that it would have no objection to the completion of the FFT form by a respirologist. However, Air Canada stated that it would not allow a technician, such as a respiratory technician, to complete the FFT form. Air Canada explained that technicians do not have the professional qualifications necessary for a global assessment of the individual, including consideration of relevant co-morbidities and the impact of these on a respiratory condition.

[152] While there may be costs and inconvenience involved with having a physician complete the FFT form, the Agency accepts the evidence of Dr. Bekeris that a physician is able to comment on specifics of the individual's impairment and any co-morbidities that might be affected by air travel. The Agency also accepts the evidence of Dr. Chapman that the responsibility of evaluating a person's fitness to travel should rest with a physician who best knows the individual. Air Canada submitted that many individuals do not have insight into the environmental factors that might affect them while travelling by air and that allowing persons who require oxygen to board an aircraft without making an informed decision respecting fitness would increase the risk of an onboard emergency with the possibility of a diversion that can cost into the tens of thousands of dollars.

[153] In light of the above, the Agency finds that Air Canada has produced evidence of the significance of the impact that a change in policy to no longer require the FFT form to be completed by physicians of persons who use oxygen would have. The Agency further finds that Air Canada has demonstrated that the significance of the impact would be harmful to it to the point that it would be unreasonable, impracticable or impossible to make such a change in policy.

[154] The Agency has concluded that Air Canada has met its burden of proof to demonstrate that a change in policy to no longer require the FFT form to be completed by the physicians of persons who use oxygen would cause undue hardship as it would be denied information from the health care professional with the broadest view of the person's condition. As such, the Agency finds that, on a balance of probabilities, the continued existence of the obstacle is reasonably necessary to achieve the legitimate objective of providing safe, reliable and efficient air transportation services to passengers.

[155] In light of the above, the Agency finds that Air Canada's requirement that FFT forms be completed by the physicians of persons who use oxygen, despite the related costs and inconvenience, does not constitute an undue obstacle to the mobility of persons with disabilities who require that oxygen be available when travelling by air.

Level of information to be disclosed in the FFT form

[156] In the Obstacle Decision, the Agency set out its opinion that the disclosure of information that goes beyond that which is required for Air Canada to determine a person's requirement for onboard oxygen, can cause anxiety or embarrassment to the person. Furthermore, disclosure of personal information of a medical nature that is not needed by the carrier can cause concern to all persons, including persons with disabilities, and be viewed as an infringement of an individual's right to privacy.

[157] It is a fundamental right of persons with disabilities to be treated with dignity, which includes the right to privacy. Another fundamental right of persons with disabilities is that of self-determination: the right to self-identify the nature of their disability in the context of their need for accommodation to travel and the right to identify the services that they require. It is acknowledged that the right to privacy of persons with disabilities is not absolute and they often must disclose very sensitive personal information about their condition and needs to service providers to be properly accommodated. However, this does not negate the right to privacy of persons with disabilities and care should be taken to ensure that carriers gather only the information that is necessary to understand the person's disability-related needs and how best to meet those needs in travel. Air Canada has a privacy policy that recognizes these same principles.

[158] As set out above, it is acknowledged that carriers are responsible for the safety of their passengers and crew in flight and, as such, they are entitled to information from passengers, including passengers with disabilities, that would have an impact on this. However, in exercising that right, in requiring persons with disabilities to provide information of a private nature related to disability, there must be a reasonable basis for the carrier requiring the disclosure of information that is not directly related to the disability-related services that are being requested.

[159] Air Canada does not require the disclosure of such personal information by all passengers. Persons with disabilities have the same right to privacy as other passengers who are not asked to disclose medical conditions and yet, as a result of making a request for accommodation to address a disability-related need, they may well end up having to disclose whether they have other conditions, regardless of whether they are related to their need for oxygen, or provide a legitimate reason for determining that a person is not fit to travel. In addition to this differential treatment, Air Canada does not require all persons with disabilities to complete FFT forms, even where they request services to accommodate their needs to travel. Dr. Bekeris testified that persons who are blind or persons with paraplegia who require wheelchair assistance would not be required to complete an FFT form. While it may be useful for the carrier to have answers to some of the questions in the FFT form, the fact is that it is only asking these questions of certain persons with disabilities.

[160] On the one hand, Air Canada is asking for information on co-morbidities that are not related to a person's need for oxygen, while on the other, as pointed out by Dr. Chapman, it does not even gather information on all of the related and relevant co-morbidities. Furthermore, certain questions would not appear, in and of themselves, to go to a determination of fitness to travel and are wholly unrelated to the need for oxygen, such as questions regarding bladder and bowel control. Dr. Chapman stated his opinion that it is inappropriate, both from a privacy and a medical standpoint, to require such disclosure and the Agency agrees with this.

[161] In light of the above, and in view of the importance of the fundamental right of persons with disabilities to be treated with dignity, which includes the right to privacy, the Agency finds that there is a lack of compelling evidence to support the need to seek information regarding conditions that are not related to a person's need for oxygen. Furthermore, if the intent is to gather information about any other conditions that may be exacerbated by air travel such that it may impact on the person's fitness to travel, the Agency finds that this could be better achieved by simply asking the medical professional to note any such conditions. In fact, the Agency finds that this is likely to be a more effective way of gathering such information as it may solicit information that is not covered by the questions in the current FFT form, but that may be an important consideration.

[162] In this case, the Agency finds that Air Canada has not provided any compelling evidence to demonstrate why its concerns could not be met in a less onerous manner. Air Canada did not substantiate why it requires the extensive information it asks for in the FFT form to address its concerns. In fact, the majority of the medical forms used by other carriers that were put before the Agency require the passenger's physician to identify the individual's medical condition and qualify a prognosis for the flight, similar to the International Air Transport Association (IATA) template form, of which the Agency is aware, that leaves the discretion to the passenger's physician to disclose any other information that may be relevant. Furthermore, there was no concrete evidence provided to substantiate Air Canada's assertion that persons who pre-request oxygen cause more in-flight problems or flight diversions than other passengers such that it would warrant a more probing inquiry.

[163] Furthermore, since the Obstacle Decision was issued, Air Canada has reduced the maximum permitted flow rate for its Medipaks from 8 LPM to 5 LPM notwithstanding the fact that some of the oxygen cylinders used by Air Canada are capable of providing a flow rate of 8 LPM and there is no Canadian regulatory restriction preventing carriers from using equipment that have flow rates in excess of 5 LPM.

[164] The Agency finds that Air Canada has not provided compelling evidence to demonstrate why, in the face of its equipment's capability to deliver up to 8 LPM, it is appropriate to refuse to transport all persons who require more than 5 LPM. This practice is based on a generalization about these passengers' functional capabilities, a generalization that was not supported by concrete evidence. In fact, the evidence of Mr. Litwin was that typically, people who require higher flow rates are individuals who have a fibrotic disease rather than an obstructive disease. He stated that these individuals are generally healthy, except for their fibrotic disease. It is an important principle of human rights law that persons with disabilities are entitled to individual assessments of their abilities and the implications of the limitations arising from their disabilities. This principle has been previously recognized by both the Supreme Court of Canada in the case of British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights, [1999] 3 S.C.R. 868 and by the Agency in Decision No. 289-AT-A-2003, Cathrine Dominie v. CanJet Airlines, A division of I.M.P. Group Limited, and Decision No. 435-AT-A-2005, Eddy Morten v. Air Canada.

[165] The Agency has reviewed the medical forms used by various air carriers that are on the record, some of which seek information on the person's oxygen-related needs, including the flow rate required by the person. Some of these forms also provide the person's physician with the opportunity to speak to their prognosis and general fitness to travel as well as raise other factors that may be of concern. Based on its review, the Agency finds that these forms reflect a more appropriate practice regarding disclosure of medical information and that a medical form that incorporates these elements represents a good balance between the carrier's need for information to accommodate a person's disability-related needs, while respecting the privacy of the individual. Although Dr. Bekeris and Dr. Chapman stated that the majority of general physicians do not have training in aviation medicine, the Agency finds that this can be addressed through educational material, which explains the particularities of the aircraft cabin environment and its effect on persons with disabilities, such as the material provided by All Nippon Airways Co., Ltd. and Qantas Airways Limited as contained in the evidence put forward by the amicus curiae. This material could be provided to the passenger's physician with the FFT form. The Agency finds that Air Canada has not demonstrated why it would be an undue hardship for it to adopt such an approach and use a form such as this. The Agency finds that for persons who require oxygen while travelling, an FFT form or section of an FFT form limited to questions that are oxygen-related, including an opportunity for the individual's physician to bring forward any other medical conditions that may have an impact on the person's fitness to travel by air, is sufficient to allow Air Canada to assess an individual's fitness to travel.

[166] The Agency also finds that Air Canada did not produce evidence of the significance of the impact of the safety, operational and financial implications of limiting the information required from the physician of a person who uses oxygen to travel by air to questions that are oxygen-related, including an opportunity for the individual's physician to bring forward any other medical conditions that may have an impact on the person's fitness to travel by air. Based on the evidence, the Agency further finds that Air Canada failed to demonstrate that the significance of these implications would be harmful to the point that it would be unreasonable, impracticable or impossible for it to provide the accommodation requested.

[167] Having concluded that Air Canada has not met its burden of proof to demonstrate that limiting the information required from the physician of a person who uses oxygen to travel by air, as described above, would cause undue hardship to it, the Agency finds that, on a balance of probabilities, the continued existence of the obstacle is not reasonably necessary to achieve the legitimate objective of providing safe, reliable and efficient air transportation services to passengers.

[168] In light of the above and, as set out previously, in light of the significance of the obstacle, to persons with disabilities, the Agency finds that the level of information to be disclosed on Air Canada's FFT form constitutes an undue obstacle to the mobility of persons with disabilities who require that oxygen be available when travelling by air.

Permanent files

[169] In the Terms of Reference for the hearing, the Agency identified the use of permanent files, where appropriate, as a possible solution to address the concerns raised regarding the frequency with which persons are required to provide FFT forms completed by their physicians, despite the cost related to having the forms completed by physicians. While the record reflects that permanent files are available in certain circumstances and were previously used for persons who require oxygen, Air Canada confirmed at the hearing that permanent files are no longer available for persons who require oxygen due to the changing nature of their conditions. The Agency accepts the evidence of Dr. Bekeris that persons who use oxygen typically have conditions that are not stable and are expected to change. Accordingly, Air Canada seeks up-to-date medical information for these individuals, although Dr. Bekeris acknowledged that FFT forms may be completed and filed up to one month in advance of the flight. Dr. Chapman confirmed that he has had patients whose conditions appear to be quite stable one day only to learn that they had been admitted to hospital in a matter of days with an exacerbated condition.

[170] The Agency finds that the evidence does not support permanent files as a solution for the obstacles related to the FFT form. However, given that FFT forms can be filed up to one month in advance of travel and that the stability of underlying medical conditions varies from person to person, the Agency finds it reasonable for persons' physicians to have the opportunity to indicate on the FFT form for how long their medical advice is valid. Air Canada continues to have the discretion to contact the passenger's physician for further consultation regarding the person's fitness to travel and to question their fitness to travel upon check-in or at the time of boarding should there be reasons to believe that the person's condition has changed adversely from the time that the FFT form was completed and submitted.

Conclusion

[171] The Agency finds the requirement that the FFT form must be completed by a physician, despite the related costs and inconvenience to complete the form, not to be an undue obstacle. However, the Agency finds the level of information to be disclosed on the FFT form to be an undue obstacle. Air Canada will therefore be required to develop an FFT form that only requires information on the person's oxygen-related needs. The form will include an opportunity for the physician to: speak to the person's prognosis and general fitness to travel, raise other factors that may be of concern, and indicate the flow rate required by the person. This will allow for the person's fitness to travel to be evaluated on a case-by-case basis.

[172] Air Canada should also provide with the FFT form: educational information on how oxygen-related impairments may be adversely affected as a result of the aircraft cabin environment; an opportunity for the passenger's physician to indicate if humidified gaseous oxygen is needed, as discussed in the following section on humidifiers; additional options for the passenger's physician to indicate whether the passenger requires 6 LPM, 7 LPM or 8 LPM; and an option for the passenger's physician to indicate whether the information provided in the form is valid for one trip only or for travel within a specified period.

AIR CANADA'S DOMESTIC SERVICES

[173] The Agency has found that the most appropriate accommodation for domestic air travel is passenger-supplied oxygen in whatever form is permitted. Regulations in Canada permit both passenger-supplied gaseous oxygen and POCs. At the time the hearing commenced, Air Canada did not allow passenger-supplied oxygen in any form. However, during the hearing, Air Canada announced a new policy that allows the use of passenger-supplied POCs on some of its routes, including all of its domestic routes, effective February 2008.

[174] During the hearing, a great deal of evidence was heard regarding safety and security matters concerning oxygen on board aircraft. These matters fall within the jurisdiction of Transport Canada whose witnesses gave extensive evidence at the hearing about the Canadian regulatory regime that permits carriers to choose whether to allow passenger-supplied gaseous oxygen or provide carrier-supplied gaseous oxygen. Air Canada argued that United States regulations precluded passenger-supplied gaseous oxygen on flights that pass through United States air space. WestJet gave evidence that it allows passenger-supplied gaseous oxygen on all of its domestic flights, including those that pass through United States airspace. In addition, Mr. Mackenzie indicated that "..it's not dissimilar to agreements, if you will -- for lack of a better word -- we have with the TSA (Transportation Security Administration) for similar operations for the application of no-fly selectee".

[175] Canadian regulations permit carriers to choose whether they wish to provide carrier-supplied gaseous oxygen or allow passenger-supplied gaseous oxygen. Transport Canada does not regulate oxygen by directive; rather, its regulations are performance-based. It has a regulatory package that identifies the objectives of the regulation and provides carriers with the flexibility to meet those objectives in a manner that best suits their operations while respecting the performance-based rules. Air Canada has elected to provide a carrier-supplied gaseous oxygen service which it asserted is dependable, safe and secure. Air Canada submitted that if control of the oxygen provisioning process is relinquished, it does not know what happens to the oxygen cylinder during the period of time when it is out of its control and this is contrary to Air Canada's risk management policies. The Agency accepts that carriers make their own decisions on how to best achieve their risk management and corporate objectives based on a multitude of factors. The Agency's role is to review the carrier's policies and procedures to ensure that an appropriate level of accommodation is being provided to persons with disabilities.

[176] Sam Elfassy, Director of Flight Technical and Operation Support at Air Canada, expressed the opinion that Air Canada would not be able to develop policies and procedures that would allow passenger-supplied gaseous oxygen on board, while meeting all the objectives in CBAAC No. 257 entitled Carriage of Medical Oxygen Cylinders for Passenger Use on Board Aircraft. Mr. Elfassy explained that Air Canada has had experiences where it has responded to guidance material only to have the rules change at the last minute requiring it to modify an aircraft with a new piece of equipment. Mr. Elfassy stated that it is extremely expensive to invest in something that is not yet a rule and when one does not even know what the rule will look like at the end. However, Mr. Sherritt, the Director of Standards with Civil Aviation at Transport Canada, indicated that CBAACs are intended to promote, educate and highlight issues for carriers as they develop programs. Mr. Sherritt explained that CBAAC No. 257 is a discussion paper and has no basis in regulation and is not enforceable. Its intent is to assist carriers who choose to carry medical oxygen.

[177] In its review of Air Canada's current service, the Agency will evaluate whether Air Canada's Medipak service is a reasonable alternative to the most appropriate accommodation. The Agency may find that certain aspects of Air Canada's service, while creating obstacles for persons with disabilities, may be reasonable and necessary such that they do not detract from the appropriateness of the service. The following sets out the Agency's consideration of Air Canada's domestic services in terms of the obstacles identified in the Obstacle Decision, except those concerning advance notice and Air Canada's FFT form which have been assessed in previous sections.

Continuity of oxygen service in airports

[178] In the Obstacle Decision, the Agency found that the non-provision of oxygen by Air Canada prior to boarding, during connections/stopovers and until arrival in the general public area at the final destination constitutes an obstacle to the mobility of persons who also require oxygen outside the aircraft. As demonstrated by Mr. Pettigrew's and Dr. Chapman's evidence below, this obstacle is significant for persons with disabilities from the standpoint of convenience, safety and cost.

[179] As previously set out, Mr. Pettigrew provided evidence regarding the impact of Air Canada's policy of not providing oxygen within airports by describing his travel experience from Puerto Vallarta to Ottawa to attend the hearing, including the need to:

  • store his oxygen cylinders at the Puerto Vallarta airport for retrieval upon his return;
  • make arrangements for oxygen during his connection in Toronto, with a delivery fee of $60 to drop off the oxygen equipment and $60 to pick up the equipment at the Toronto - Lester B. Pearson International Airport;
  • arrange for Air Canada Customer Care to accept delivery of the cylinder and keep it for his arrival and then store it for his return connection; and,
  • arrange for an oxygen supply to be available upon his arrival in Ottawa, which included ensuring that Air Canada would have one cylinder ready for his arrival.

[180] Ellen Lagaveen, Air Canada's Manager of Airport Process and Procedure Product Development, explained that an individual has the option to bring their own oxygen to the airport or have a third-party supplier. She also pointed out that Air Canada allows passengers who require oxygen to bring it through to the gate area. Ms. Lagaveen stated that an Air Canada agent escorts the passenger through security to the gate area. Once the passenger has boarded the aircraft, the in-flight agent assists the passenger with the transfer from their own oxygen to the Medipak and then brings the passenger's own oxygen to the gate agent who brings the oxygen to the Air Canada Customer Care Centre until such time as either a family member or a designated third party picks it up. Upon arrival at the destination, the same steps are taken in reverse, with the transfer from carrier-supplied oxygen to a passenger's own oxygen taking place on board the aircraft.

[181] Ms. Lagaveen stated that when a third-party supplier delivers oxygen to the airport for a passenger, it is brought to the Customer Care Centre or the check-in counter, depending on the airport. An Air Canada agent attaches the Passenger Name Record (PNR) to the oxygen cylinder until such time as the passenger arrives at the airport to use the oxygen. If the passenger is disembarking from a flight, the arrival agent responsible for meeting the aircraft brings the oxygen to the passenger's arrival gate.

[182] Air Canada submitted that it already pays for the cost of oxygen in the airport environment when there is an irregular operation that requires the passenger to remain in an airport other than for scheduled transfers. Ms. Lagaveen stated that local airport stations will first contact an oxygen supplier to arrange a local supply of oxygen. However, if Air Canada does not have access to an oxygen supplier, Ms. Lagaveen explained that it will elicit the support of a local alliance partner and if there is no partner, it will elicit the support of the carrier that handles Air Canada's traffic at that particular station. Ms. Lagaveen added that if all else fails, the situation may be treated as a medical emergency and local emergency response personnel may be called upon or, in an extreme situation, the emergency oxygen supply for the aircraft may be used.

[183] Air Canada asserted that, to its knowledge, no other air carrier in the world provides oxygen in the airport. Mr. Corbett's report seems to support Air Canada's assertion; of the 30 Canadian, American, European and Asia/Pacific carriers that were researched, none provide oxygen in airports. It is Air Canada's submission that the burden associated with passengers having to arrange for oxygen in airports is considerably alleviated by the fact that they are currently able to use POCs in airports.

[184] The amicus curiae submitted that continuity of service is one of the biggest issues to be resolved in the matter of oxygen. The amicus curiae suggested that WestJet's passenger statistics for persons who require oxygen can be seen as an indication that passengers prefer the seamless system that WestJet allows for domestic travel. He acknowledged, however, that the statistics may also be related to the fact that WestJet does not charge a fee.

[185] The amicus curiae maintained that there is stress associated with the problems encountered by persons with disabilities, for example, when a connection is made at a different airport than where originally planned, when carrier personnel do not know where an oxygen cylinder has been stored, or when a Medipak is delayed.

[186] Dr. Chapman stated that persons who require oxygen will certainly need it when they are deplaning or passing through the baggage area. Dr. Chapman further stated that travel is stressful and it is not a time when an individual should be without oxygen for the sake of convenience while waiting for their next flight. In his opinion, this is a potentially hazardous time. Dr. Bekeris acknowledged that air travel is stressful for some individuals and that worrying about whether a supply of oxygen will be available at their next stop would be of concern to some passengers. Dr. Bekeris further acknowledged that the ability to bring their own supply of oxygen from start to finish would alleviate passengers' concerns in this regard.

[187] The amicus curiae expressed the opinion that given that there is no impediment to passengers travelling domestically with their own gaseous oxygen, they should be able to solve the problem of having to make alternate arrangements themselves for oxygen prior to boarding, during connections and until arrival in the general public area at the final destination.

[188] The amicus curiae maintained that there is very little evidence of the impact on Air Canada if it was required to provide oxygen to passengers in airports.

[189] Air Canada argued that safety, operational, structural and financial constraints make it unreasonable, impracticable or impossible to provide continuous oxygen service in airports such that it would constitute undue hardship. As noted below, Air Canada provided evidence regarding the safety, operational and structural constraints in the context of Air Canada's Medipaks, however, it provided evidence regarding the financial constraints in the context of the option of third-party suppliers.

Safety and operational constraints

Air Canada evidence

[190] Air Canada maintained that if it were to lose control over its Medipaks in airports by providing oxygen prior to boarding, during connections and upon arrival, its security and safety objectives would be seriously compromised. Air Canada submitted that the Medipaks would require testing, for which airport personnel are not trained, to verify that the cylinders and regulators have not been tampered with, altered or damaged. Air Canada also submitted that such testing could not reasonably take place in the airport environment and Medipaks provided for use in airports could not be used for service on board aircraft without being returned to Stores for verification of their condition.

Amicus Curiae evidence

[191] While the amicus curiae did not provide evidence specific to the foregoing constraint raised by Air Canada, he made submissions with respect to the safety and security of passenger-supplied oxygen.

[192] The amicus curiae submitted that it is reasonable to assume that passengers who require oxygen will take care of their own equipment and not bring contaminated or damaged cylinders on board and that even if that is a concern, the evidence indicates that there are inspection techniques available to verify the condition of the cylinders. The amicus curiae further submitted that the policy of Transport Canada, the body that is in charge of security, permits oxygen cylinders to pass through security screening by the Canadian Air Transport Security Authority (CATSA) and enter the airport secure area. CATSA took over the responsibility on behalf of Transport Canada and the Government of Canada for the screening of persons and goods into the restricted area of airports.

Structural constraints

Air Canada evidence

[193] David Bolton, Manager of Hazardous Materials Compliance for Air Canada, stated that the Medipak case, which is used to protect the oxygen cylinder while it is shipped and stowed on the aircraft, was not designed to be portable. Mr. Bolton further stated that it is against Air Canada's policy to allow a passenger to remove an oxygen cylinder from the Medipak case and carry it into the airport during a connection. Mr. Bolton explained that if one were to trip and fall while carrying the oxygen cylinder, the regulator could crack and the oxygen cylinder would "take off like a mini cruise missile."

[194] In response to a question as to whether there would be a problem with an individual using a Medipak in the airport if the cylinder remained in a protective case and if the carrier provided the means for the passenger to wheel it around with them, Mr. Bolton indicated that there may be an issue with loss. Mr. Bolton indicated that over the years, Air Canada has lost Medipaks mostly upon arrival where an individual's oxygen provider was not at the airport with the passenger's oxygen.

Amicus Curiae evidence

[195] The amicus curiae did not provide evidence in respect of structural constraints.

Financial constraints

Air Canada evidence

[196] Air Canada chose to provide costs for third-party supplied oxygen in airports rather than considering the use of its own Medipaks for this service. In its report prepared for Air Canada, Ernst & Young Oranda Corporate Finance Inc. (Ernst & Young) stated that it was asked by Air Canada to consider the annual cost of using third-party oxygen suppliers to supply oxygen in airports. The report sets out that the cost of providing oxygen in airports can vary depending on the airport's location, the individual's needs and the service provider. The report includes the following examples of prices charged by two third-party suppliers in July 2007, assuming a 2 LPM flow rate of oxygen is required for one hour:

  • Medigas - each gaseous oxygen cylinder costs between $13 and $75 depending on the amount of oxygen required; POC would cost $150. A $50 administration fee would be added to both.
  • VitalAire - each gaseous oxygen cylinder costs $20 plus $12 per day for a conserver. An administration fee of $60 is charged.

[197] The report also sets out that the cost to Air Canada is subject to a number of uncertainties, including:

  • the length of time oxygen is provided;
  • the required flow rate;
  • the price charged by third-party suppliers at each airport;
  • the availability of a third-party service at each airport;
  • the price that would be charged if Air Canada were to negotiate service contracts with third-parties; and
  • the specific rules at each airport.

[198] To provide illustrative calculations of the cost to Air Canada of providing a gaseous oxygen service in airports, Ernst & Young made the following assumptions:

  • one oxygen cylinder is required by the individual at each airport prior to departure, during connections and at arrival;
  • the price charged to Air Canada at each airport is $92 (using the VitalAire domestic price)
  • the average number of departures, arrivals and connections of persons who require oxygen would equal historical numbers (based on the period from May 2005 to April 2006).

[199] Based on the above, Ernst & Young estimated the annual cost of providing gaseous oxygen in domestic airports to be $180,780.

Amicus Curiae evidence

[200] The amicus curiae submitted that it is reasonable for the Agency to conclude, based on the cost evidence before it, that for Air Canada, a multi-billion dollar entity, the cost of providing oxygen service in airports under any of the permutations or combinations that were discussed at the hearing, even in the absence of fees or in a situation where the fees were to be eliminated, would not constitute an undue hardship. The amicus curiae further submitted that no evidence was led by Air Canada that would suggest that any order of the Agency could conceivably result in undue financial hardship.

Analysis and conclusion

[201] Oxygen is life-supporting in nature and the provision of oxygen is a critical service for persons with disabilities who require it and, as such, the Agency finds that continuity of service is a critical factor in providing a reasonable level of accommodation to persons who require oxygen when travelling by air. The lack of continuity within Air Canada's current oxygen service is, therefore, a significant obstacle to the mobility of persons who require oxygen while travelling.

[202] Air Canada argued that it would be unreasonable for it to provide a continuous oxygen service in airports because no other carrier provides this level of service. However, in light of the significance of this obstacle to the mobility of persons with disabilities, the Agency rejects this argument and will consider the constraints raised by Air Canada to providing this level of service.

[203] There are two alternatives for Air Canada to provide oxygen in airports: carrier-supplied oxygen (Medipaks or POCs) and third-party supplied oxygen.

[204] With respect to the carrier-supplied alternative, Air Canada did not provide any evidence on POCs. The constraints it did raise were that the Medipaks are not designed to be portable. It is also concerned with what might happen to the Medipaks while they are out of its control. While Air Canada raised a concern that the Medipaks are not portable, it did not provide any solutions as to how they could be made portable, such as obtaining carts, nor did it submit any costs for such measures. Furthermore, although Air Canada indicated that oxygen cylinders have been lost, mostly upon arrival where an individual's oxygen supplier was not at the airport with the individual's oxygen, it did not quantify the loss.

[205] Air Canada raised safety, operational and structural constraints with respect to the use of its Medipaks to provide continuous service and indicated its strong preference to maintain control over its Medipaks. Accordingly, it proposed as an alternative, third-party supplied gaseous oxygen. The only constraint raised by Air Canada with respect to this alternative is the estimated annual domestic cost of $180,780 for third-party supplied gaseous oxygen in airports.

[206] The Agency finds that Air Canada did not produce evidence of the significance of the impact of the cost of providing oxygen prior to boarding, during connections and until arrival in the general public area at the final destination. The Agency finds that Air Canada failed to demonstrate that the significance of the implications respecting costs to provide such a service would be harmful to the point that it would be unreasonable, impracticable or impossible for it to provide the accommodation requested.

[207] Having concluded that Air Canada has not met its burden of proof to demonstrate that the provision of oxygen in airports, as stated above, would cause undue hardship, the Agency finds that, on a balance of probabilities, the continued existence of the obstacle is not reasonably necessary to achieve the legitimate objective of providing safe, reliable and efficient air transportation services to passengers.

[208] In light of the above and, as set out previously, in light of the significance of the obstacle to persons with disabilities, the Agency finds that the non-provision of oxygen by Air Canada prior to boarding, during connections and until arrival in the general public area at the final destination with respect to domestic flights constitutes an undue obstacle to the mobility of persons with disabilities who require that oxygen be available when travelling by air.

Availability of an onboard portable oxygen cylinder dedicated to persons who require oxygen to leave their seat to use the washroom

[209] The Agency found that Air Canada's failure to ensure the availability of an onboard portable oxygen cylinder dedicated to persons who require oxygen to leave their seat to use the washroom constitutes an obstacle to their mobility.

[210] Dr. Chapman expressed concern with respect to passengers who require oxygen in flight being unable to use oxygen on their way to the washroom. During his testimony, Dr. Chapman stated that when people exercise, they consume oxygen and typically their oxygen needs rise. There are patients whose oxygen level is adequate when they are sitting still, but drops to an unacceptably low level when they exercise. He testified that this would be a time when more oxygen would be needed and expressed the opinion that there should be provisions in place for oxygen to be available during this type of exertion.

[211] During the hearing, Air Canada confirmed that it has changed its policy such that it now provides emergency oxygen to persons who require oxygen to leave their seat to use the washroom as a matter of course.

Analysis and conclusion

[212] The Agency is of the opinion that the fact that Air Canada was able to amend its policy to remove the obstacle, and the fact that it did so of its own accord, indicates a recognition on the part of the carrier that there were no constraints preventing it from eliminating the obstacle and, therefore, no undue hardship. As such, the Agency finds that the obstacle was undue. However, as the carrier has removed the obstacle, no further action is required.

Placement of medical oxygen cylinder

[213] The Agency found that Air Canada's policies and procedures regarding the placement of the Medipak under the seat in front of the passenger, which encroaches unreasonably on the person's floor space, constitutes an obstacle to the mobility of Ms. Fulton and persons with disabilities who require oxygen when they travel with Air Canada. Ms. Fulton raised the concern that passengers are required to "straddle" the Medipak, which is comprised of an oxygen delivery device, a cylinder of compressed oxygen and a large metal carrying case (7.75 in. H X 8 in. W X 26 in. L) and, in the Obstacle Decision, the Agency recognized that when the Medipak protrudes into the limited floor space, it clearly causes discomfort and inconvenience for passengers who use oxygen.

[214] The Ernst & Young report indicates that Air Canada recently modified one overhead bin in the executive class cabin of certain Airbus A319, A320 and A321 aircraft, either because the Medipak could not be stowed safely under the seats in the executive class of those aircraft or because the Medipak did not fit under the seat due to the boxes for the entertainment system, which resulted in the Medipak being placed in an overhead bin in the executive class.

[215] Julie-Anne Lambert, General Manager, Employee and Cabin Safety for Air Canada, explained that in addition to the previously noted exception, there are two circumstances where Medipaks are stowed in overhead bins: for any equipment being returned to Stores for servicing; or for additional Medipaks for passengers who require more than one Medipak per flight.

[216] Ms. Lambert noted that Air Canada will be converting the executive first class seats in its Airbus A330, A340 and Boeing 767 aircraft to "contour suites" which will not allow Medipaks to be safely stored beneath the seat. Ms. Lambert explained that Medipaks will need to be stored in the overhead bins of these aircraft and indicated that modifications will be made at the time the new seats are installed.

[217] The amicus curiae pointed out WestJet's solution of using oxygen sleeves which are secured beneath the seat. These sleeves are less bulky and do not seem to raise any problems and the use of oxygen sleeves is approved by Transport Canada. The amicus curiae noted, however, that this option would not be available for flights to the United States or any foreign destination where overpaks are required.

[218] Air Canada argued that operational, structural and financial constraints make it unreasonable, impracticable or impossible to modify its overhead bins to accommodate Medipaks such that it would constitute undue hardship.

Operational constraints

[219] Ms. Lambert explained that the cabin crew are trained to read the flow rates on a Medipak and to know when to exchange it for another Medipak as the cylinder should never go below 100 pounds per square inch to prevent corrosion. Ms. Lambert also noted that passengers sometimes feel that they are not getting oxygen and will adjust the flow rate, which creates the possibility of running out of oxygen during flight. Ms. Lambert stated that this is why the cabin crew must check the Medipak and flow rate every 15 minutes.

[220] Ms. Lambert explained that because regulations require Air Canada to ensure that the Medipak is stowed such that it does not impede egress of passengers in adjacent seats, the individual using the Medipak is normally seated at the window which results in the aisle and middle passengers being displaced for the cabin crew to check the Medipak. Ms. Lambert explained that the cabin crew member almost has to get down on their hands and knees to read the flow rate because it is a small dial.

[221] Ms. Lambert stated that it is more convenient to check the Medipak when it is secured in the overhead bin, depending on the height of the overhead bin. However, she subsequently indicated that the Medipak would be lying down and the crew member may have to pull it out to read it. In the end, Ms. Lambert submitted that she does not believe there is any easy way to check the Medipak.

Structural constraints

Air Canada evidence

[222] Air Canada submitted that to stow Medipaks in the overhead bins of its aircraft, it would be required to install tie-down straps, a notch for the cannula, a divider panel, a placard and other material.

[223] Mr. Elfassy stated that under Transport Canada regulations, Air Canada is a certified Approved Engineering Organization (AEO). Mr. Elfassy explained, in general terms, that an AEO is given a certificate that permits it to exercise engineering functions in terms of maintenance on board aircraft, and has all of the necessary company operations manuals to execute those duties. As an AEO, Air Canada has the ability to sign off on engineering modifications that would otherwise require Transport Canada's approval.

Amicus Curiae evidence

[224] The amicus curiae submitted that some of Air Canada's aircraft already have tie-downs in overhead bins that could be used to move the Medipaks from the floor space. The amicus curiae stated that Air Canada knows how to alter a bin to accommodate Medipaks and in his opinion this seems to be a feasible alternative. The amicus curiae suggested that new aircraft entering the fleet could be set up in such a way that they could accommodate the Medipaks overhead, not only in business class, but throughout the cabin.

Financial constraints

Air Canada evidence

[225] Richard Crosson, Partner and Senior Vice-President of Ernst & Young and expert witness for Air Canada, was qualified as a chartered accountant and a chartered business valuator with experience in financial accounting and analysis and the ability to analyze accounting and other data. Mr. Crosson submitted that the estimated cost to convert a single overhead bin in all 275 aircraft in Air Canada's fleet is $281,665. The Ernst & Young report notes that this figure excludes Air Canada Jazz Dash 8 aircraft as Medipaks will not fit in its overhead bins. This cost is based on the assumption that one overhead bin in the economy class for all aircraft in Air Canada's fleet would be modified. The Ernst & Young report also indicates that there would be recurring costs related to modifying the overhead bins of any new aircraft acquired by Air Canada.

[226] The Ernst & Young report also sets out that employees of other departments, such as in-flight services and safety, would be involved in meetings regarding modification of the aircraft. Ernst & Young stated that Air Canada did not provide sufficient data for it to evaluate the cost of the involvement of the other departments and submitted that these costs may be significant.

[227] During his testimony, Mr. Crosson explained that Air Canada operates on a divisional basis, and between its divisions, it often charges a transfer price that reflects costs derived using a full absorption costing methodology. For example, in the Air Canada document that Ernst & Young reviewed in relation to the engineering costs for the modification of Air Canada's overhead bins, Air Canada's internal costing would be $155.00 an hour for engineering costs. Mr. Crosson stated that he assumed that this amount takes into account not only the engineer's cost, but the costs of the technical library, training, facilities, and so on; all the costs using a full-absorption cost model. However, for the purposes of the costing done by Ernst & Young, the cost of $155.00 per hour was not used; rather, direct costs were consistently used throughout the analysis. Mr. Crosson stated that for the purposes of the Ernst & Young report, the average hourly wage of engineers, $51.78 including benefits, was used.

[228] Mr. Crosson explained that the same method was used when considering installation costs. In the Air Canada document that Ernst & Young reviewed, Air Canada's cost of installation was $85.00 an hour, a fully absorbed cost. However, using a direct cost approach, Ernst & Young used an hourly rate of $35.30.

[229] Mr. Crosson confirmed that the capital cost of $281,665 for the stowage of Medipaks in overhead bins is a one-time cost and he agreed that the cost would be amortized over the useful life of the cabin.

[230] However, Air Canada submitted that the modifications done to the 19 aircraft cost approximately $2,000 to $3,000 per aircraft. Daniel Magny, Senior Counsel, International Alliance and Regulatory Affairs for Air Canada, stated that Air Canada does not capitalize aircraft modifications under $25,000, rather, it treats them as an operating expense.

[231] With respect to a suggestion by the amicus curiae that two bins per aircraft should be modified - one in economy and one in business class - Air Canada asserted that the cost it submitted would have to be doubled as the figure provided in the Ernst & Young report is based on one bin per aircraft being modified.

Amicus Curiae evidence

[232] The amicus curiae made submissions on this matter in-camera which are not reflected in this Decision.

Analysis and conclusion

[233] Air Canada indicated that the Medipaks are difficult to monitor whether they are placed on the floor or in the overhead bins. Ms. Lambert submitted that the majority of the time, a passenger who requires a Medipak would be seated at the window. The Agency is of the opinion that while each placement may have its own set of difficulties, moving the Medipak off the floor and into the overhead bin may allow for better monitoring during times when the seat belt sign is on and passengers adjacent to the individual using the Medipak are unable to leave their seat.

[234] While the Agency recognizes that Air Canada may be concerned about limiting the amount of storage for carry-on baggage if Medipaks are placed in the overhead bins, the rights of persons with disabilities must be considered. Furthermore, Air Canada has not presented evidence of any significant problems with respect to constraints regarding the storage of Medipaks in overhead bins, other than with respect to Jazz Dash 8 aircraft where the size of the bins is insufficient for the storage of Medipaks.

[235] Air Canada provided information with respect to the nature of modifications that would be required to place its Medipaks in the overhead bins of its aircraft. Air Canada has already performed this type of modification on some of its aircraft due to their configuration and, with the exception of the Dash 8 aircraft, did not take the position that it would be structurally impossible on any of its other aircraft.

[236] Air Canada provided an estimated capital cost of $281,665 to make modifications to one overhead bin in economy class on each aircraft in its fleet, with the exception of the Dash 8 aircraft, to accommodate its Medipaks and remove them from under the seat in front of the passenger. This cost must be balanced against the significance of the obstacle, which causes discomfort and inconvenience to persons with disabilities who require oxygen when travelling.

[237] Although the Ernst & Young report indicates that there may be significant costs for the involvement of employees of Air Canada's other departments in meetings regarding modifications to the aircraft, the Agency cannot consider this category of costs in the absence of concrete evidence.

[238] The Agency finds that Air Canada did not produce evidence of the significance of the impact of the structural constraints or the costs of modifying one overhead bin per aircraft in its fleet to store the Medipak. The Agency finds that Air Canada failed to demonstrate that the significance of the structural implications in addition to those respecting costs to modify the bins would be harmful to the point that it would be unreasonable, impracticable or impossible for it to make such modifications.

[239] Having concluded that Air Canada has not met its burden of proof to demonstrate that the modification of its overhead bins to accommodate Medipaks would cause undue hardship, the Agency finds that, on a balance of probabilities, the continued existence of the obstacle of placing the Medipaks at the passenger's feet on the aircraft is not reasonably necessary to achieve the legitimate objective of providing safe, reliable and efficient air transportation services to passengers.

[240] In light of the above and in light of the significance of the obstacle that causes discomfort and inconvenience for passengers who use oxygen, the Agency finds that Air Canada's policies and procedures regarding the placement of the Medipak under the seat in front of the passenger, which encroaches unreasonably on the person's floor space, constitutes an undue obstacle to the mobility of persons with disabilities who require that oxygen be available when travelling by air.

[241] Furthermore, although POCs are expected to penetrate the market such that the demand for gaseous oxygen will diminish over time, the Agency has found the most appropriate accommodation to be passenger-supplied oxygen, in whatever form is permitted (gaseous oxygen and POCs for domestic travel). Insofar as Air Canada chooses to continue to provide gaseous oxygen through its Medipak service, the obstacle created by the placement of the Medipak must be addressed. In addition, it should be noted that while this obstacle was analyzed based on Air Canada's evidence regarding modifications of the overhead bins, Air Canada may wish to consider equivalent alternatives to placing the Medipaks in the overhead bins, such as the oxygen sleeves used by WestJet which, as suggested by the amicus curiae, are less bulky.

Humidifiers

[242] In the Obstacle Decision, the Agency found that Air Canada's policy of not providing humidifiers on request to persons who use oxygen on all of its flights constitutes an obstacle to the mobility of Mr. Foskett and other persons with disabilities who require that oxygen be available when travelling by air and who require/request a humidifier.

[243] At the time of the Obstacle Decision, Air Canada provided oxygen humidifiers on flights that exceeded 10 hours; however, subsequently Air Canada informed the Agency that it no longer provides oxygen humidifiers.

[244] Air Canada submitted that it has been informed, and is of the opinion, that humidification of oxygen at the flow rate of 5 LPM or less is not a medical necessity. Air Canada accepted that the Agency has found that the non-provision of humidified oxygen can amount to an obstacle to mobility. However, Air Canada took the position that the seriousness of the obstacle does not justify the costs of providing humidified oxygen.

[245] Dr. Bekeris testified that humidification can be medically indicated, however, generally only at flow rates higher than those offered by Air Canada. It was Dr. Bekeris' understanding that it is not a medical necessity at flow rates of 5 LPM or less. Dr. Bekeris did not dispute that some individuals who use oxygen may desire humidification for reasons of comfort.

[246] Dr. Bekeris stated that in cases where humidification is presented as a medical requirement, Air Canada contacts the individual's physician to explain that it does not supply humidifiers. If it is a requirement, travel will not be possible. Dr. Bekeris further stated that he has not encountered any cases where it has not been acceptable to travel without humidification at flow rates of 5 LPM or less.

[247] Dr. Chapman explained that generally oxygen is humidified when individuals breathe it in through their nose such that humidification is not usually medically necessary; it is a comfort issue. Dr. Chapman stated, however, that as oxygen flows from the cannula into the nose, it can have a drying effect if it is not humidified and there can be drying and crusting of nasal secretions. Dr. Chapman further stated that the higher the flow rate, the more likely the nasal passages are to become dry. If they dry and crust such that the oxygen is unable to flow through the nose, it is a significant problem. Dr. Chapman explained that, in that sense, humidification would become medically necessary at higher flow rates. Dr. Chapman further explained that if the nose repeatedly bleeds despite the use of moistening agents, humidification is necessary.

[248] Mr. Pettigrew testified that humidification is not as serious an issue when the source of oxygen is equipped with an OCD because there is not a constant stream of oxygen into the nose. Mr. Pettigrew stated that he can tolerate a continuous flow of oxygen for a few hours. Mr. Pettigrew noted, however, that when he uses oxygen at a continuous flow over a long duration such as a day or two, he requires humidification as he experiences uncontrollable nosebleeds.

[249] Mr. Litwin stated that VitalAire generally does not provide humidifiers with long-term oxygen therapy equipment unless the flow rate is greater than 4 LPM or there is evidence of some consequence, such as frequent nosebleeds. Mr. Litwin acknowledged that there is the odd circumstance where someone who uses a lower flow requires humidification. In such cases, VitalAire performs a trial with humidification to see if that improves the individual's situation. Mr. Litwin testified that the best available research indicates that humidification is not usually required for continuous flow rates of less than 4 LPM.

[250] Mr. Litwin explained that while systemic humidification is better, persons with COPD often have other conditions such that their fluid intake cannot be increased as it impacts their cardiac status and may require diuretics, thereby creating a chain reaction.

[251] The amicus curiae asserted that some evidence was heard as to whether humidification is a medical necessity and, while it seems doubtful that it may be medically necessary, there is strong evidence that, in some cases, it is required as a matter of comfort to avoid, among other things, nosebleeds.

[252] Air Canada argued that operational and financial constraints make it unreasonable, impracticable or impossible to provide humidifiers on request to persons who use oxygen such that it would constitute undue hardship.

Operational constraints

Air Canada evidence

[253] Air Canada indicated that it no longer stocks humidification kits.

[254] Mr. Bolton explained that although the humidifier components could be used on consecutive flights, there is an issue as to who would bring the open container of distilled water to the next flight, and he stated that Air Canada's process starts anew with a different crew on each aircraft. Mr. Bolton stated that if a different model of Medipak is used on a different aircraft, the humidifier would not be compatible.

[255] Ms. Lambert noted that if humidification is involved in the Medipak process, extra time is spent by the onboard carrier personnel to set up and remove the humidifier. Ms. Lambert indicated that humidification would have no effect on the periodic monitoring of persons who require oxygen in flight.

Amicus Curiae evidence

[256] The amicus curiae submitted that humidifiers are available in kits that are compatible with Air Canada's Medipaks.

Financial constraints

Air Canada evidence

[257] Ernst & Young calculated the annual costs of providing humidifiers by considering the cost of consumables, the capital cost of the humidifier tube, and the cost of labour to assemble and disinfect humidifier units. It submitted that the labour time is approximately 10 minutes to assemble a humidifier kit and approximately 11 minutes to disinfect each humidifier tube.

[258] Ernst & Young made the assumption that humidifiers would be requested for 50 percent of Medipak requests and that one humidifier kit would be provided for each flight segment. The cost for the annual use of humidifiers was based on the actual use of humidifiers in 2003 and 2004, when Air Canada provided them upon request.

[259] Mr. Bolton stated that the tube, which forms part of the humidification kit, is very expensive. He further stated that there were times when Air Canada supplied humidification kits and they were not returned. Mr. Bolton testified that he does not know the percentage of tubes that were returned as they were sterilized and reused. However, Mr. Bolton further testified that Air Canada would lose the tubes "like crazy". The Ernst & Young report indicates that all parts of the humidifier kit are disposed of after use, except for the tube which can be disinfected and reused, and that the tube is likely to be returned 80 percent of the time.

[260] Based on the information contained in the Ernst & Young report, the Agency calculated the annual cost of providing humidification domestically to be approximately $24,300, including the cost of replacing the 20 percent of tubes that are lost each year. This figure also only includes costs to disinfect 80 percent of the humidifier tubes due to the 20-percent loss. According to the report, the consumable parts are the bracket and sterile water which cost $8.51 per unit.

[261] The report sets out that Ernst & Young has not been provided with sufficient data to evaluate the cost of additional labour time required of flight attendants to attach and change humidifiers in flight. It has also not been provided with sufficient data to evaluate the material costs related to disinfecting the humidifier tubes, which Ernst & Young submitted could be significant.

[262] Air Canada asserted that when dealing only with comfort issues, the obstacle is "a modest one". Air Canada has not had any passengers stating that they cannot travel because it does not provide humidified oxygen. While it does not find considerations of comfort irrelevant, Air Canada submitted that when weighing the cost of removing the obstacle against the severity of the obstacle, it would be appropriate to bear in mind that no one is suggesting that this discomfort prevents individuals from travelling by air.

Amicus Curiae evidence

[263] The amicus curiae submitted that it is hard to understand why Air Canada objects to humidification, other than the cost. The amicus curiae further submitted that in the past, humidification was provided by Air Canada and that humidifiers come in kits that currently seem to be compatible with Air Canada's Medipaks. The amicus curiae asserted that some evidence was heard as to whether humidification is a medical necessity and, while it seems doubtful that it may be medically necessary, there is strong evidence that, in some cases, it is required as a matter of comfort to avoid, among other things, nosebleeds. The amicus curiae is of the opinion that for the minimal cost involved, humidification should be available to passengers who require it.

Analysis and conclusion

[264] Based on the evidence, the Agency accepts that, in most cases, humidified oxygen is not medically necessary for individuals who use oxygen at lower flow rates. However, as set out in the Obstacle Decision, the Agency does not limit its investigations to matters where services or equipment are medically necessary. Rather, it investigates services utilized by persons with disabilities and whether their disability-related needs are accommodated. In the Obstacle Decision, the Agency found that there was evidence supporting the need for a humidifier with oxygen service for some individuals, and that Mr. Foskett had clearly described the significant physical impact on him when he is unable to obtain humidified oxygen.

[265] Air Canada submitted that, in the past, it has incurred a loss of 20 percent of its humidifier tubes, the most expensive piece of equipment that forms part of the humidifier kit. The Agency finds that under Air Canada's current process, where the Medipak is provided to individuals once they board the aircraft and then removed before the individual exits the aircraft, the humidifier tubes are entirely under the control of Air Canada personnel. The Agency finds that Air Canada could eliminate or greatly reduce the cost of the replacement of lost tubes, which the Agency has calculated at approximately $12,900, based on the information contained in the Ernst & Young report, by ensuring that its staff is aware that the tube is to be returned with the used Medipak. If the cost of replacing lost tubes was eliminated, the Agency has calculated the total cost of providing humidification on domestic flights to be approximately $12,150, based on information contained in the Ernst & Young report. This amount includes the cost of cleaning 100 percent of the tubes, rather than 80 percent as reported by Ernst & Young.

[266] Ernst & Young stated in its report that its estimate does not include the additional labour time required of flight attendants to attach and change humidifiers in flight and the material costs related to disinfecting the humidifier tubes, and expressed the opinion that these costs may be significant. Although the Ernst & Young report indicates that there may be significant costs related to disinfecting the humidifier tubes, the Agency cannot consider this category of costs in the absence of evidence.

[267] Ms. Lambert testified that while extra time is spent by the onboard carrier personnel to set up and remove the humidifiers, humidification would have no effect on the periodic monitoring of persons who require oxygen in flight. Furthermore, while Mr. Bolton submitted that the use of humidifier components on consecutive flights would raise issues in terms of transporting the container of distilled water from one flight to the next, the Medipak process starting anew with a different crew on each aircraft, and the possibility of the humidifier not being compatible with the Medipak if a different model were used on the new aircraft, he did not provide evidence of the significance of the impact of these issues on Air Canada's operations.

[268] The Agency finds that Air Canada did not produce evidence of the significance of the impact of the operational constraints or the costs of providing humidifiers in cases where a passenger's physician indicates the need for such. The Agency finds that Air Canada failed to demonstrate that the significance of the operational implications in addition to those respecting costs of providing humidifiers in cases where a passenger's physician indicates the need for such would be harmful to the point that it would be unreasonable, impracticable or impossible for it to provide the accommodation requested.

[269] Having concluded that Air Canada has not met its burden of proof to demonstrate that the provision of humidified gaseous oxygen would cause undue hardship to it, the Agency finds that, on a balance of probabilities, the continued existence of the obstacle is not reasonably necessary to achieve the legitimate objective of providing safe, reliable and efficient air transportation services to passengers.

[270] Some individuals experience a significant physical impact when they are unable to obtain humidified oxygen. In light of the above, the Agency finds that Air Canada's policy of not providing humidifiers in cases where a passenger's physician indicates the need for such on domestic flights constitutes an undue obstacle to the mobility of persons with disabilities who require that oxygen be available when travelling by air.

Policy on oxygen fees

[271] In the Obstacle Decision, the Agency found that Air Canada's policy on oxygen fees constitutes an obstacle to the mobility of persons with disabilities who require that oxygen be available when travelling by air, including the applicants who raised this concern. At the time of the Obstacle Decision, Air Canada charged a fee of $100 from point of origin to point of destination, or point of stopover, or interline connecting point, whichever came first. Although it had not been specifically raised by the applicants, the Agency noted in the Obstacle Decision that the non-refundable nature of the oxygen fee within 48 hours of departure and the change fee imposed by Air Canada if changes are made within 48 hours of reservation significantly increases the cost of the service should a person who requires oxygen make a last minute cancellation or make a change shortly after the reservation is made.

[272] As noted in the Obstacle Decision, the Agency finds that as a result of the fees charged by the carrier, travel opportunities for activities relating to employment, leisure, medical care and for emergencies are reduced for persons who require that oxygen be available when travelling by air. The Agency further noted that the impact of the cost of Air Canada's oxygen service is more pronounced for persons who live in remote areas as their dependence on air travel may be greater due to a lack of realistic alternate modes of transportation.

[273] The Obstacle Decision set out the impact that the fees charged by Air Canada for oxygen have on the applicants, as expressed by them. Elaine Willis stated that she did not travel as a result of the oxygen fees charged. James Toth expressed the opinion that Air Canada's fees for oxygen greatly exceed the cost of oxygen being used daily by persons with disabilities. Harvey Kimelman stated that Air Canada's charge for its oxygen service is consistently higher than the charge of $26 from medical suppliers. Cathleen Smith stated that she could have made her entire trip for the cost of $15 for oxygen consumed, with no inconvenience or embarrassment. Ms. Smith submitted that as a person with a disability, she should have the right to travel to visit her grandchildren without all the extra costs and inconvenience of Air Canada's policy.

[274] Air Canada submitted that it has a responsibility to deliver a transportation service in a way that is competitive, economical, efficient and that results in the lowest possible cost. It further submitted that it is competitive, cost conscious, and has difficulty making a profit, and the control of costs is of great importance.

[275] Air Canada asserted that it has elected to provide an oxygen service in a way that is dependable, safe and secure and there are cost implications to this decision. It submitted that this puts it at a cost disadvantage compared to other carriers who may provide an oxygen service without providing the same level of internal control over how the service is delivered.

[276] Air Canada currently charges $150 per flight segment for oxygen; this fee is non-refundable within 72 hours of departure. Air Canada asserted that under any calculation, it is clear that it does not recover all that it expends to provide its oxygen service. It submits that the accommodation being requested in this case is simply too expensive on a per passenger trip basis and that its current policies and procedures, including recovery of some of the costs involved, are reasonable and should be allowed to continue.

[277] Air Canada argued that financial constraints make it unreasonable, impracticable or impossible to remove the fees it charges for its oxygen service, such that it would constitute undue hardship.

Financial constraints

Air Canada evidence

[278] To demonstrate the costs of its oxygen service, Air Canada submitted a report prepared by Ernst & Young which sets out that it was retained by Air Canada to provide an independent and objective analysis of the following:

  • the operating and capital costs currently being incurred by Air Canada to accommodate persons with disabilities who require oxygen to travel by air;
  • the costs that would be incurred by Air Canada in respect of all or some of the oxygen-related services requested by the applicants (humidification and oxygen in airports), which are presently not provided by Air Canada; and
  • the costs associated with alternatives to current services provided by Air Canada.

[279] The report covers the period from May 2005 to April 2006 and is based on unaudited information and data provided by Air Canada management and employees. The report notes that while Air Canada maintains comprehensive and detailed accounting records, its financial reporting and management information systems are not specifically designed to report on costs related to oxygen and, in some cases, the data necessary to evaluate costs related to oxygen that is believed by Air Canada to be significant is not available.

[280] Air Canada submitted that it if it did not have reliable information about certain oxygen-related costs, if it was seen as purely incidental, or if there was a requirement for significantly more work or judgment, it did not include the cost. It asserted that Ernst & Young did not enter into this costing exercise with the objective of coming up with the largest possible number. Air Canada concurred with the amicus curiae that there are some gaps in the costs. However, it submitted that the costs reflected in the Ernst & Young report are underestimated such that, if anything has been missed, "it is Air Canada that suffers from that."

[281] Air Canada asserted that each of the assumptions made by Ernst & Young is associated with an information source. Air Canada submitted that the report clearly associates certain elements of information that Ernst & Young incorporated into its report with various individuals. It further submitted that each of these individuals swore and filed an affidavit in this proceeding, none of whom were cross-examined and no contrary testimony was offered. Air Canada submitted that there is absolute clarity on the wages paid and amount of time spent.

[282] The Ernst & Young report reflects the following data in respect of the estimated annual costs for the provision of Air Canada's oxygen service on its domestic flights.

DOMESTIC MEDIPAK STATISTICS - (May 2005 to April 2006)

  • Passenger trips (one way) - 793
  • Flight segments - 1,172
  • Medipaks supplied - 2,151
  1. COSTS (Dollars)
  • Reservation - 28,100
  • Flight and Ground Handling - 122,300
  • Training - In-Flight Services - 44,584
  • Gas Shop - Labour - 41,333
  • Overhauls - Labour - 6,818
  • Overhauls - Parts - 1,278
  • Oxygen - 3,800
  • Cannula - 16,200
  • Capital costs of Medipaks - 21,732
  1. TOTAL ANNUAL COSTS (rounded) - $286,100
  2. COST PER FLIGHT SEGMENT1 - $ 244
  3. COST PER PASSENGER TRIP2 - $ 361

[283] In addition to the current oxygen costs, Air Canada submitted the following costs for domestic demanded services that it does not currently provide (humidification and oxygen in airports), the lack of which the Agency found to be obstacles:

  • Annual cost of provision of oxygen in domestic airports - $180,780
  • Approximate annual cost to provide humidifiers on domestic flights (calculated by the Agency based on the information contained in the Ernst & Young report) - $24,300

[284] Air Canada also submitted the capital cost of modifying the overhead bins of its entire fleet to accommodate its Medipaks:

  • Capital cost to modify overhead bins3 - $281,665
a) Costing methodology

[285] Mr. Crosson stated that Ernst & Young used a direct and reliable costing method. He explained that with this method, Ernst & Young considered costs where there is a direct causal relationship between either the service provided by the Air Canada employee or the material supplied to provide the service. He explained that it was reliable in the sense that, where Ernst & Young felt it had reliable information, it compiled the cost. If it did not have reliable information, if it was viewed as purely incidental, or if it would require significantly more work or judgment to derive the costs, Ernst & Young did not include the cost.

[286] Over the course of the hearing, different costing models were discussed. Mr. Crosson explained that in a full-absorption cost model, a task and activity are considered and, in some cases, the costs of supplies. In addition to the direct costs related to the task, all of the other costs are considered, such as the non-productive time of an employee during the day; the supervision costs of the employee; the costs of facilities relating to the employee; training costs; costs of providing special clothing; and all of the other costs that either support or are incidental to the provision of that labour.

[287] Another method of evaluating costs is to consider incremental costs. Mr. Crosson explained that to move to an incremental cost model, one would consider what Air Canada's income statement would look like if it were to make a change and, in this case, how would Air Canada's costs, revenues and overall earnings change if it were to stop the provision of its oxygen service?

[288] Mr. Crosson stated that under an incremental costing model, in relation to labour costs, it is unlikely that there would be significant differences between the costs using such a model and the costs calculated using a direct costing model. In his opinion, there would not be significant differences in the costs associated with aircraft services, for example. However, there would be a difference in the costs associated with in-flight services, if an incremental approach were taken. Mr. Crosson explained that on an incremental basis, the costs related to the time spent by in-flight services employees to provide services related to oxygen would be eliminated as those costs would be incurred whether there is an oxygen service or not; more specifically, the number of flight attendants would not be affected.

[289] Mr. Crosson explained, however, that with the incremental method, it is difficult to establish the effect the oxygen service has on the rest of Air Canada. For example, if Air Canada's in-flight employees were not required to spend time providing service to passengers who require oxygen, what is the impact of having a higher service level on revenue or flight load? Mr. Crosson explained that it becomes very difficult to measure such impacts.

b) Cost of alternative

[290] Air Canada provided a cost estimate of $140,830 annually if it were to outsource the Medipak unit supply to an external third party, as opposed to using its own inventory and supply chain. In calculating this cost, it assumed that 275 units of equipment would be stored by the third-party supplier. This estimate was based on the historical number of Medipaks used from May 1, 2005 to April 30, 2006.

[291] The Ernst & Young report notes that the retraining costs of Air Canada employees, the costs or savings related to the time spent by the various departments on the Medipak process, and the salvage value of the current Medipak units were not considered. The report sets out that it is expected that costs incurred by Stores related to the supply of units (Stores labour time, gas shop labour, overhaul labour and materials, and oxygen and cannula consumables) would no longer be incurred. However, additional provisioning costs may be incurred as a result of the reduction of oxygen supply points from Toronto, Montréal and Vancouver to only the Toronto location. Air Canada did not set out the rationale for having only one supply point. The report further sets out that Air Canada has not yet developed a revised oxygen provisioning process, nor assessed the feasibility of implementing the third-party service and, as such, Ernst & Young was unable to conclude whether the costs of using a third-party supplier would be higher or lower than Air Canada's current oxygen costs.

Amicus Curiae evidence

[292] The amicus curiae submitted that the cost information provided by Air Canada is incomplete as, even in its own reports, a number of cost categories were identified but not quantified. Certain cost data provided was based on a variety of assumptions and the amicus curiae asserted that if different assumptions were made, especially if an incremental costing methodology is used, it could alter the conclusions significantly.

[293] The amicus curiae's conclusion on the costing information is that while it would have been better to have had fewer gaps in the cost information, some general conclusions can be drawn. The amicus curiae submitted that chief among those is that it is reasonable for the Agency to conclude, based on the cost evidence put forward by Air Canada, a multi-billion dollar entity, that the cost of providing oxygen service under any of the permutations or combinations that were discussed at the hearing, even in the absence of fees or in a situation where the fees were to be eliminated, would not constitute an undue hardship to the carrier. The amicus curiae asserted that no evidence was led by Air Canada that would suggest that any order of the Agency could conceivably result in undue financial hardship.

Analysis and conclusion

[294] The fees charged by Air Canada for its oxygen service are a significant obstacle to the mobility of persons who require oxygen while travelling by air and, in some cases, the oxygen may be more expensive than the fare for transportation itself.

[295] Air Canada's evidence is that although it charges a fee of $150 per flight segment, the cost of providing its oxygen service is $244 per domestic flight segment. Air Canada submitted that the total annual cost of its domestic oxygen service is $286,100, based on a direct and reliable costing method that includes the costs for all the various departments and employees involved in the provisioning of its Medipak service. Air Canada provided further evidence that in addition to the costs of its current service, if it were required to provide the following services, it would incur additional costs as follows: $180,780 to provide oxygen in domestic airports; approximately $24,300 to provide humidifiers on domestic flights; and a capital cost of $281,665 to perform modifications to its overhead bins to accommodate Medipaks. Air Canada submitted that it would incur a total annual cost of $491,209 for domestic oxygen services in addition to capital costs of $281,665. It is Air Canada's position that it does not recover all of the costs of providing this service and it submitted that the recovery of some of the costs involved is reasonable.

[296] In the same way persons with disabilities are responsible for paying for consumables on the ground, the Agency finds it reasonable that they should be responsible for paying for those consumables when travelling by air. As such, the Agency finds it reasonable for Air Canada to charge a fee to recover the cost of the oxygen itself and any non-reuseable pieces of equipment, including those that are supplied with humidifiers.

[297] The Agency will now consider whether Air Canada's fee to provide the service is reasonable.

[298] In this case, there was much information provided by Air Canada and differing opinions expressed by the parties as to what costs should be included when evaluating the cost to Air Canada of providing its oxygen service, and whether the costs submitted by Air Canada are an accurate reflection of the costs it incurs. The Agency has expertise in costing as it relates to federal transportation services and has experience in performing costing analyses in a variety of cases. In performing such costing analyses, the Agency looks at avoidable or incremental costs, i.e., those that a transportation service provider would avoid if it did not provide a given service or meet a given service obligation.

[299] The Agency is of the opinion that the most appropriate costing methodology for presenting the costs of providing Air Canada's oxygen service is an incremental cost approach. As such, as a result of using a direct costing methodology, the costs of providing Air Canada's oxygen service as reflected in the Ernst & Young report are overstated. Regardless, the Agency finds that the cost of accommodation is not determinative of the issue to be decided in light of the insufficiency of the evidence provided by Air Canada, as discussed below, regarding the financial impact of modifying its policy to no longer charge a fee for its domestic oxygen service.

[300] The threshold for undueness is not when all reasonable means of accommodation are exhausted and costs would threaten the survival or essential character of an enterprise. However, having argued that there are cost constraints, to meet its burden of proof, Air Canada is required to produce evidence of the significance of the impact of a cost to demonstrate that the cost would constitute undue hardship. Air Canada must demonstrate that the cost and the significance of its impact would be harmful to the point that it would be unreasonable, impracticable or impossible for it to provide the accommodation requested.

[301] In this case, Air Canada did not provide sufficient evidence to demonstrate the significance of the impact of such a change in policy or that it would constitute undue hardship by being harmful to the point that it would be unreasonable, impracticable or impossible for it to provide the accommodation requested, that is to provide its domestic oxygen service without charging a fee, except with respect to the cost of oxygen consumed and any non-reuseable pieces of equipment.

[302] In this regard, the evidence before the Agency providing a context for the significance of the impact of a change in Air Canada's policy to no longer charge a fee for its oxygen service is limited. As noted in Air Canada's 2006 annual report, Air Canada carried over 32 million passengers worldwide; an average of 87,671 passengers per day. Air Canada further submitted that, in the same year, passengers who require oxygen travelled on 2,287 flight segments worldwide and 1,172 domestic flight segments which, on an annual basis, represents $175,800 received by Air Canada in oxygen fees (1,172 flight segments at $150/segment) which represents 0.0017 percent of Air Canada's operating revenues that were reported as $10,065,000,000 in 2006. Furthermore, the Agency notes that the annual domestic cost of $491,209 submitted by Air Canada for its oxygen service (including the costs to provide oxygen in airports and humidification) amounts to 0.005 percent of its annual operating expenses that were reported as $9,806,000,000 for 2006.

[303] Air Canada also made submissions with respect to the annual cost of its accessibility program being $6,284,020 and the cost of accommodation ordered in Decision No. 6-AT-A-2008, the application of a one-person-one fare policy (1P1F), which the Agency determined to be $7.1 million. Air Canada asserted that "the Agency should not treat individual decisions as silos"; rather, the Agency should consider the overall impact of its decisions. Air Canada further submitted that any type of request for additional accommodation or assistance can be made to appear very modest and very insignificant by simply comparing it to the rather large amounts of money that flow through the typical large air carrier in any given year. Air Canada pointed out that "a lot of that money does, indeed, flow through and a lot of air carriers over the last 25 years in this country have gone bankrupt".

[304] The Agency accepts that historical costs, some of which are mandated in respect of domestic air services pursuant to Part VII of the ATR, are relevant to its assessment of whether the cost of accommodation for persons with disabilities constitutes undue hardship insofar as they form part of a respondent's overall operating and fixed costs and insofar as a respondent provides evidence of the impact on its financial health of the cost of accommodation. In this case, the Agency has determined that the financial impacts of a change in policy to no longer charge a fee for its oxygen service does not result in undue hardship to Air Canada.

[305] The Agency is of the opinion that the costs submitted by Air Canada are modest. Furthermore, Air Canada has options with respect to management of these costs. For example, Air Canada could choose to allow passenger-supplied gaseous oxygen where permitted, allow the use of passenger-supplied POCs on all of its routes, engage in a contract with a third-party to supply oxygen to its passengers, or examine opportunities to reduce the costs of providing its oxygen service.

[306] The Agency finds that Air Canada did not produce evidence of the significance of the impact that would result from a change in policy to no longer charge a fee for its domestic oxygen service, except with respect to the cost of oxygen consumed and any non-reuseable pieces of equipment. The Agency finds that Air Canada failed to demonstrate that such a change to its policy would be harmful to the point that it would be unreasonable, impracticable or impossible for it to make such a change in policy.

[307] Having concluded that Air Canada has not met its burden of proof to demonstrate that the provision of its domestic oxygen service without charging a fee would cause undue hardship, the Agency finds that, on a balance of probabilities, the continued existence of the obstacle is not reasonably necessary to achieve the legitimate objective of providing safe, reliable and efficient air transportation services to passengers.

[308] In light of the above and in light of the significance of the obstacle, as set out previously, to persons with disabilities, the Agency finds that Air Canada's policy on oxygen fees for domestic flights constitutes an undue obstacle to the mobility of persons with disabilities who require that oxygen be available when travelling by air.

AIR CANADA'S INTERNATIONAL SERVICES

[309] As reflected in the section on "Most appropriate accommodation", the Agency has found that passenger-supplied POCs are the most appropriate accommodation for international travel.

[310] In summary, although the Agency found that passenger-supplied oxygen, i.e., gaseous oxygen and POCs, is the most appropriate accommodation in the domestic air services context, it rejected passenger-supplied gaseous oxygen as appropriate in the international air services context given the number of foreign regimes that restrict the use of passenger-supplied gaseous oxygen, particularly the United States where POCs are the only permissible passenger-supplied solution; the worldwide trend of full service carriers to allow the use of approved passenger-supplied POCs; and the Agency's finding that to impose a requirement for carriers to allow passenger-supplied gaseous oxygen wherever foreign regulations permit would add an unreasonable level of operational complexity. The Agency noted that the nature of international travel in today's environment is such that many carriers are part of large alliances for which the membership may include several air carriers and which may entail reliance on their partner carriers to provide service on their behalf; partners who may have policies that prohibit the use of passenger-supplied gaseous oxygen.

[311] On the other hand, the evidence also clearly showed the worldwide tendency for carriers to accept the use of POCs on board aircraft and the United States Department of Transportation recently introduced a rule that will require American carriers and foreign air carriers operating within, to and from the United States to allow, in the passenger cabin, the use of POCs that meet applicable safety, security and hazardous materials requirements for safe use on board aircraft.

[312] The Agency heard no evidence as to the existence of jurisdictions that prohibit the use of passenger-supplied POCs in flight. Given the rapidly changing technological landscape and the recent announcement by the United States Department of Transportation of the new rule described above, requiring POC acceptance effective May 13, 2009, the Agency is of the opinion that any such prohibitions, if they exist, will rapidly become a thing of the past.

[313] The Agency did not find it reasonable to impose an obligation on Air Canada to have more than one international oxygen policy. Rather, the Agency found it reasonable for Air Canada to adopt an oxygen policy that is consistent for all international destinations and that is aligned with the most stringent regulations, being those of the United States which permit the use of passenger-supplied POCs and prohibit the use of passenger-supplied gaseous oxygen. Furthermore, the Agency found that the obligation to both provide a carrier-supplied gaseous oxygen service and allow passenger-supplied POCs goes beyond the duty to accommodate persons who require oxygen to travel on international air services.

[314] At the time of issuance of the Obstacle Decision, Air Canada did not accept passenger-supplied gaseous oxygen or POCs for use on its international flights. During the hearing, Air Canada announced that it would begin to accept the use of passenger-supplied POCs on its domestic routes, as well as its transborder, Central American, Caribbean and Mexican routes beginning in February 2008. Insofar as Air Canada allows the use of passenger-supplied POCs on these routes, it is providing the most appropriate accommodation and thereby discharging its duty to accommodate persons who require oxygen to travel by air. If Air Canada also chooses to provide a gaseous oxygen service on these same routes, it exceeds its duty to accommodate such that the Agency will not consider, in this Decision, the appropriateness of Air Canada's gaseous oxygen service on these routes.

[315] However, Air Canada is not allowing passenger-supplied POCs on its other international routes and, thus, is not providing the most appropriate accommodation to these persons with disabilities on these routes. Air Canada did advise during the hearing that, as soon as possible upon completion of the first six months of experience with its new POC policy, it will review its experience with POCs and will consider expanding this service to other destinations. In the meantime, the Agency finds it reasonable that Air Canada continue to accommodate these persons. Accordingly, the Agency will evaluate whether Air Canada's Medipak service is a reasonable alternative to the most appropriate accommodation in respect of these routes.

Analysis and conclusion

[316] The Agency has already closely examined Air Canada's Medipak service as an alternative to the most appropriate accommodation in the domestic air services context and has made the following undue obstacle findings:

  • the non-provision of oxygen prior to boarding, during connections and until arrival in the general public area at the final destination with respect to domestic flights;
  • the failure to ensure the availability of a portable oxygen cylinder dedicated to persons who require oxygen to leave their seat to use the washroom;
  • the policies and procedures regarding the placement of the Medipak under the seat in front of the passenger, which encroaches unreasonably on the person's floor space;
  • the policy of not providing humidifiers in cases where the passenger's physician indicates the need for such on its domestic flights; and
  • the policy to charge fees except with respect to the cost of oxygen consumed and any non-reuseable pieces of equipment on domestic flights.

[317] The evidence submitted by Air Canada regarding the safety, operational and structural constraints related to the foregoing obstacles was in the context of its systemwide services. As such, the Agency's analysis of these constraints and the related findings with respect to Air Canada's domestic services are equally applicable to Air Canada's international operations on routes where passenger-supplied POCs are permitted by foreign regulatory regimes but not allowed by Air Canada at this time. In addition, the evidence of the financial constraints related to the placement of the Medipak was provided in the context of Air Canada's entire fleet such that the Agency's analysis and findings are equally applicable to Air Canada's international oxygen service.

[318] Air Canada raised no financial constraints related to the availability of a portable oxygen cylinder dedicated to persons who require oxygen to leave their seat to use the washroom.

[319] In making its undue obstacle determination, the Agency will assess the financial constraints with respect to the remaining obstacles in the international context; however, it will not consider evidence specifically related to transborder flights given that Air Canada is allowing passenger-supplied POCs on these routes. The Agency is unable to identify the financial constraints that specifically relate to Carribean, Mexican and Central American routes though and, in this way, it is recognized that the evidence of costs set out below is overstated for the Agency's purposes as it includes evidence related to routes where Air Canada already allows passenger-supplied POCs.

[320] In terms of the obstacle posed by Air Canada's policy to not provide oxygen prior to boarding, during connections and until arrival in the general public area at the final destination, as set out in the section on Air Canada's domestic services, Air Canada chose to provide costs for third-party supplied gaseous oxygen in airports rather than considering the use of its own Medipaks for this service. In its report, Ernst & Young estimated the annual cost of providing third-party gaseous oxygen in international airports to be $80,040.

[321] In terms of the obstacle posed by Air Canada's policy to not provide humidifiers in cases where the passenger's physician indicates the need for such, based on the information contained in the Ernst & Young report, the Agency calculated the annual cost of providing humidification internationally to be approximately $9,700, including the cost of replacing the 20 percent of tubes that are lost each year. According to the report, the consumable parts are the bracket and sterile water that cost $8.51 per unit. As noted in the section regarding Air Canada's domestic services, the Agency finds that, given the extent to which Air Canada staff control the Medipak process, Air Canada could eliminate or greatly reduce the costs for the replacement of lost tubes by ensuring that its staff are aware that the tube is to be returned with the used Medipak. The Agency has calculated these replacement costs, based on the information contained in the Ernst & Young report, to be approximately $5,100 in the international context. If the cost of replacing lost tubes was eliminated, the Agency has calculated the total cost of providing humidification on international flights to be approximately $4,900, based on information contained in the Ernst & Young report. This amount includes the cost of cleaning the 100 percent of the tubes, rather than 80 percent as reported by Ernst & Young.

[322] The Ernst & Young report discloses that the total annual cost of Air Canada's Medipak service in respect of its international routes is $145,000, which amounts to $310 per flight segment and $360 per passenger trip based on the demand for May 2005 - April 2006.

[323] Consistent with Air Canada's approach in respect of the financial constraints associated with removing the obstacles regarding its domestic services, Air Canada simply provided estimates of costs and did not provide evidence of the significance of the impact of these costs. Further, as noted above, the Agency's analysis and findings with respect to the safety, operational, and structural constraints associated with removing the obstacles in the context of Air Canada's domestic service apply equally to Air Canada's international operations on routes for which passenger-supplied POCs are permitted by foreign regulatory regimes but not allowed by Air Canada at this time. Accordingly, based on the evidence submitted, the Agency finds that with respect to those routes where POCs are permitted by foreign regulatory regimes but not allowed by Air Canada, Air Canada did not produce evidence of the significance of the impacts that would result from a change in policy to provide, free of charge, with the exception of the cost of the oxygen itself and any non-reuseable pieces of equipment:

  • its oxygen service on board the aircraft;
  • an oxygen service prior to boarding (check-in), during connections and until arrival in the general public area at the final destination; and,
  • humidifiers in cases where the physicians indicate the need for such by persons who use oxygen.

[324] Based on the evidence submitted, the Agency finds that Air Canada failed to demonstrate that these accommodations would be harmful to the point that it would be unreasonable, impracticable or impossible for it to make such changes in policy. Accordingly, the Agency finds that, on a balance of probabilities, the continued existence of the obstacles is not reasonably necessary to achieve the legitimate objective of providing safe, reliable and efficient air transportation services to passengers.

[325] In light of the above and in light of the significance of the obstacles to persons with disabilities who require oxygen to travel by air (as set out previously in the section that examines Air Canada's domestic services), with respect to those international routes where POCs are permitted by foreign regulatory regimes but not allowed by Air Canada, the Agency finds that the following constitute undue obstacles to the mobility of those persons:

  • the non-provision of oxygen prior to boarding, during connections and until arrival in the general public area at the final destination;
  • the policy of not providing humidifiers in cases where the passenger's physician indicates the need for such;
  • the policy to charge fees except with respect to the cost of oxygen consumed and any non-reuseable pieces of equipment;
  • the policies and procedures regarding the placement of the Medipak under the seat in front of the passenger, which encroaches unreasonably on the person's floor space; and,
  • the failure to ensure the availability of a portable oxygen cylinder dedicated to persons who require oxygen to leave their seat to use the washroom.

[326] Air Canada must continue to provide a carrier-supplied gaseous oxygen service on those international routes where POCs are permitted by foreign regulatory regimes but not yet allowed by Air Canada. Insofar as Air Canada eliminates the above-noted undue obstacles, Air Canada's provision of an oxygen service will constitute a reasonable alternative to the most appropriate accommodation.

CONCLUSION

Air Canada

[327] As previously noted, the Agency has found that passenger-supplied oxygen, in whatever form is permitted, is the most appropriate accommodation for persons with disabilities who require oxygen to travel by air. However, with respect to international travel and due to regulatory limitations, the most appropriate accommodation is limited to passenger-supplied POCs. Air Canada does not allow passenger-supplied gaseous oxygen on domestic flights, nor does it allow passenger-supplied POCs on some international routes where they are permitted by foreign regulatory regimes. Therefore, the Agency has examined evidence regarding Air Canada's service to determine whether it provides an appropriate level of accommodation and thus constitutes a reasonable alternative to the most appropriate accommodation.

a) Air Canada systemwide

[328] The Agency has determined that the following are not undue obstacles to the mobility of persons who require oxygen to travel by air:

  • the policy that requires that persons request Air Canada's oxygen service 48 hours (72 hours for some international destinations) in advance of travel;
  • the fact that the FFT form must be completed by a physician, despite the related costs and inconvenience to complete the form; and,
  • the policy on oxygen fees related to the cost of oxygen itself and any non-reuseable pieces of equipment, including those that are supplied with humidifiers.

[329] The Agency has determined that the following aspects of Air Canada's oxygen service are undue obstacles to the mobility of persons who require that oxygen be available when travelling by air on all of its services:

  • the absence of a policy which sets out that Air Canada shall make a reasonable effort to provide its gaseous oxygen service or to accept the use of passenger-supplied POCs where a request is made less than 48 hours before the scheduled time of departure of a person's flight; and,
  • the level of information to be disclosed on the FFT form.

b) Air Canada domestic services

[330] The Agency has determined that the following aspects of Air Canada's oxygen service are undue obstacles to the mobility of persons who require that oxygen be available when travelling by air on its domestic services:

  • the non-provision of oxygen prior to boarding, during connections and until arrival in the general public area at the final destination;
  • the failure to ensure the availability of a portable oxygen cylinder dedicated to persons who require oxygen to leave their seat to use the washroom;
  • the policies and procedures regarding the placement of the Medipak under the seat in front of the passenger, which encroaches unreasonably on the person's floor space;
  • the policy of not providing humidifiers in cases where the passenger's physician indicates the need for such; and
  • the policy to charge fees except with respect to the cost of oxygen consumed and any non-reuseable pieces of equipment.

[331] Insofar as these undue obstacles are eliminated, the Agency will accept Air Canada's oxygen service as a reasonable alternative to passenger-supplied oxygen by providing a reasonable level of service for persons with disabilities.

c) Air Canada international services

[332] The Agency stated that if Air Canada chooses to provide a gaseous oxygen service on its international routes where it is providing the most appropriate accommodation (passenger-supplied POCs), it is exceeding its duty to accommodate such that the Agency will not consider, in this Decision, the appropriateness of Air Canada's gaseous oxygen service on these routes.

[333] The Agency noted that it heard no evidence as to the existence of jurisdictions that prohibit the use of passenger-supplied POCs in flight. Given the rapidly changing technological landscape and the recent announcement by the Unites States Department of Transportation of the new rule described previously, requiring POC acceptance effective May 13, 2009, the Agency is of the opinion that any such prohibitions, if they exist, will rapidly become a thing of the past.

[334] The Agency has determined that the following aspects of Air Canada's oxygen service are undue obstacles to the mobility of persons who require that oxygen be available when travelling by air on its international services where POCs are permitted by foreign regulatory regimes but not allowed by Air Canada:

  • the non-provision of oxygen prior to boarding, during connections and until arrival in the general public area at the final destination;
  • the failure to ensure the availability of a portable oxygen cylinder dedicated to persons who require oxygen to leave their seat to use the washroom;
  • the policies and procedures regarding the placement of the Medipak under the seat in front of the passenger, which encroaches unreasonably on the person's floor space;
  • the policy of not providing humidifiers in cases where the passenger's physician indicates the need for such; and
  • the policy to charge fees except with respect to the cost of oxygen consumed and any non-reuseable pieces of equipment.

[335] Insofar as these undue obstacles are eliminated, the Agency will accept Air Canada's oxygen service as a reasonable alternative to passenger-supplied oxygen by providing a reasonable level of service for persons with disabilities.

WestJet

[336] The Agency has determined that, in light of the emergence of POCs as the most appropriate accommodation, it is unnecessary to determine whether the obstacle posed by WestJet's oxygen policy as identified in the Obstacle Decision was undue at that time. The Agency notes that once POCs were approved by the FAA for air travel, WestJet voluntarily amended its policy to allow the use of passenger-supplied POCs to remove the obstacle and as WestJet now provides the most appropriate accommodation, no further action is required.

Other matter

[337] The Agency received submissions from the carriers requesting that the Agency's Decision be harmonized with the new United States Department of Transportation rule (the US rule) which will require, effective May 13, 2009 American carriers and foreign carriers operating within, to and from the United States to allow, in the passenger cabin, the use of POCs that meet applicable safety, security and hazardous materials requirements for safe use on board aircraft.

[338] WestJet and Air Canada submit that, in accordance with the terms of the US rule, carriers should be permitted the discretion to require passengers to provide 48 hours advance notice of their intention to use a POC in flight. Air Canada has requested that carriers be allowed to require a physician's statement or medical certificate as a condition of carrying a person who wishes to use a POC in flight. The Agency has addressed both of these matters in the context of Air Canada's services and has not found them to be undue obstacles.

[339] Additionally, both carriers requested that it should be specified that there should be no reliance on electrical outlets in the cabin, rather, that POCs should be powered by batteries only, and that carriers should be permitted to deny boarding to any passenger who is unable to show that they carry a sufficient number of batteries to power the POC for 1.5 times the length of the flight or series of flights, in the case of connecting flights. Furthermore, Air Canada has requested that carriers be permitted to require persons who wish to use a POC to check in up to one hour before the carrier's normal check-in time for the general public. The Agency finds that there is nothing in this Decision which would result in a conflict with these terms of the US rule.

ORDER FOR CORRECTIVE MEASURES

[340] Air Canada is required to implement the following corrective measures:

Air Canada Systemwide

The policy that requires that persons request Air Canada's oxygen service in advance of travel

[341] Air Canada is required, within thirty (30) days from the date of this Decision, to amend its advance notice policy to state that it will make a reasonable effort to provide its Medipak service or accept a passenger-supplied POC for use where a request is made less than 48 hours (72 hours for some international destinations) before the scheduled time of departure of a person's flight.

[342] The Agency suggests that Air Canada specify in its policies and procedures those international destinations where 72 hours advance notice is required for the provisioning of its Medipak service.

The level of information to be disclosed on the FFT form

[343] Air Canada is required to modify its FFT form to seek only information on the person's oxygen-related needs, including an indication of the flow rate required by the person, such that the person's fitness to travel can be evaluated on a case-by-case basis. The form should also provide the person's physician with the opportunity to speak to the person's prognosis and general fitness to travel, and raise other factors that may be of concern. Air Canada is required to obtain this information either through a modified version of its existing FFT form or, ideally, create a separate form for oxygen requests only.

[344] The Agency suggests the following guidelines to assist Air Canada in developing a new or modified FFT form:

  • information on how impairments may be adversely affected as a result of the aircraft cabin environment should be provided to assist both the passenger and the passenger's physician to complete the form;
  • a checkbox should be added to the form whereby the passenger's physician can indicate if humidified gaseous oxygen is needed;
  • additional checkboxes should be added to the form to provide the added options for the passenger's physician to indicate whether the passenger requires 6 LPM, 7 LPM or 8 LPM; and,
  • an option for the passenger's physician to indicate whether the information provided is valid for one trip only or for travel within a specified period.

[345] Air Canada is required to provide the Agency with its proposed revised FFT form within ninety (90) days from the date of this Decision. The Agency will review Air Canada's proposal and determine whether it meets the objective of this corrective measure or whether further action is required.

Air Canada's domestic services

[346] Where Air Canada does not provide the most appropriate accommodation, as it relates to passenger-supplied gaseous oxygen on domestic flights, Air Canada is required to continue to provide a gaseous oxygen service and, insofar as it chooses to do so by using its Medipak service or alternatively through a third-party supplier, it is required to implement the following corrective measures:

The policies and procedures regarding the placement of the Medipak under the seat in front of the passenger

[347] Air Canada must ensure that the placement of the Medipak does not encroach unreasonably on the person's floor space. Air Canada is required to file with the Agency, within ninety (90) days from the date of this Decision, its detailed proposal for the placement of its Medipaks, along with its proposed implementation schedule for the phasing in of any required modifications to the aircraft cabin and the rationale for the proposed time lines. Air Canada has provided evidence with respect to the modification of overhead bins; however, it is free to propose other alternatives to eliminate this undue obstacle.

[348] The Agency will review Air Canada's proposal and determine whether it meets the objective of this corrective measure or whether further action is required.

The non-provision of oxygen prior to boarding, during connections and until arrival in the general public area at the final destination

[349] Air Canada's oxygen service must be a continuous service, i.e., include the provision of oxygen prior to boarding (check-in), during connections and until arrival in the general public area at the final destination, whether it be done through the use of Medipaks or other means.

[350] Air Canada is required to file with the Agency, within ninety (90) days from the date of this Decision, its detailed proposal for the implementation within one (1) year from the date of this Decision of a continuous domestic oxygen service. The proposal should include details on how persons with disabilities will receive the oxygen service at the airports and what measures will be put in place to address flight irregularities that might impact on a person's oxygen supply, such as delays and flight diversions.

[351] The Agency will review Air Canada's proposal and determine whether it meets the objective of this corrective measure or whether further action is required.

The failure to ensure the availability of a portable oxygen cylinder dedicated to persons who require oxygen to leave their seat to use the washroom

[352] The Agency has determined that the failure to ensure the availability of a portable oxygen cylinder dedicated to persons who require oxygen to leave their seat to use the washroom constituted an undue obstacle. However, in light of the measures taken by Air Canada to remedy the obstacle by changing its policy such that it now provides emergency oxygen to persons who require oxygen to leave their seat to use the washroom, no corrective measures are necessary.

The policy of not providing humidifiers on request

[353] Air Canada is required, within six (6) months from the date of this Decision, to provide humidified gaseous oxygen when the passenger's physician indicates the need for such on the FFT form.

The policy on oxygen fees

[354] Air Canada is required, in respect of domestic tickets purchased thirty (30) days after the date of this Decision, to provide its oxygen service free of charge on board the aircraft, with the exception of fees related to the cost of oxygen itself and any non-reuseable pieces of equipment as set out in paragraph 330. In addition, within one (1) year from the date of this Decision, Air Canada shall provide this service free of charge prior to boarding (check-in), during connections and until arrival in the general public area at the final destination.

Air Canada's international services

[355] For international routes where passenger-supplied POCs are permitted by foreign regulatory regimes but not allowed by Air Canada, Air Canada is required to continue to provide a carrier-supplied gaseous oxygen service as an alternative to the most appropriate accommodation. Insofar as it does so by using its Medipak service or alternatively through a third-party supplier, it is required to implement the corrective measures set out in the domestic section in paragraphs 346 to 354 on those routes.

Changes to Air Canada's tariffs and internal and external information sources

[356] Given that the above-noted corrective measures will result in changes to Air Canada's policies and procedures, Air Canada will also have to make corresponding modifications to its tariffs and internal and external information sources that communicate its policies and procedures, including internal policies and procedures relied on by its personnel and information contained on its Web site and published documents that are used by the public in planning their travel. Air Canada will be required to make these modifications upon receipt of the Agency's approval of the measures to be taken by the carrier and the carrier's time lines for implementation and when the measures come into effect. In addition, for those corrective measures not requiring Agency approval, modifications should be made as soon as the corrective measures are implemented.

Members

  • Geoffrey C. Hare
  • Beaton Tulk
  • J. Mark MacKeigan

APPENDIX 1

HEARING

Tribunal

Geoffrey C. Hare - Panel Chair, Canadian Transportation Agency

J. Mark MacKeigan - Member, Canadian Transportation Agency

Beaton Tulk - Member, Canadian Transportation Agency

Participants

Elizabeth Barker - Senior Counsel, Canadian Transportation Agency

Jean-Yves Goudreau - Counsel, Canadian Transportation Agency

Appearances

Amicus Curiae

Ian MacKay - Amicus Curiae

William Mark Pettigrew - Applicant and Witness

Barry Corbett - Advisor

Ken Mansfield - Advisor

Dr. Kenneth R. Chapman, M.D. - Expert witness

Donald Sherritt
Director of Standards with Civil Aviation
Transport Canada - Witness

Gary Branscombe
Acting Chief of Aviation, Dangerous Goods Standards
Transport Canada - Witness

Bernard Pilon
Acting Director of Regulatory Affairs
Security and Emergency Preparedness Branch
Transport Canada - Witness

Patrick Litwin
Advisor Safety and Regulatory Affairs
VitalAire - Witness

Air Canada

Gerard Chouest - Counsel

Louise-Hélène Sénécal
Assistant General Counsel, Litigation
Air Canada - Counsel

Richard Crosson
Partner and Senior Vice-President
Ernst & Young Orenda Corporate Finance Inc. (Ernst & Young) - Expert witness

Rose-Marie Forlini4
Business Process Innovation Manager
Air Canada - Witness

Ellen Lagaveen
Manager, Airport Process and Procedure Product Development
Air Canada - Witness

Sam Elfassy
Director of Flight Technical and Operation Support
Air Canada - Witness

Benoit Parisien
Customer Services Manager, Meda Desk
Air Canada - Witness

Iain Fernie
Security Operations Manager
Air Canada - Witness

Dr. Edward Bekeris, M.D.
Senior Medical Officer, Occupational Health Services
Air Canada - Witness

David Bolton
Manager, Hazardous Materials Compliance
Air Canada - Witness

Julie-Anne Lambert
General Manager, Employee and Cabin Safety
Air Canada - Witness

Daniel Magny
Senior Counsel, International Alliance and Regulatory Affairs
Air Canada - Witness

WestJet

Gilbert Poliquin - Counsel

Andrew Kay
Manager, Legal Services
WestJet

Dr. Michael Tretheway, Ph.D.
Executive Vice-President and Chief Economist
InterVISTAS Consulting Inc. - Expert witness

Dr. Geoffrey Deane, Ph.D.
Chief Technology Officer and Vice-President of Engineering
Inogen -Witness

Daryl Risinger
Vice-President of Marketing
Inogen - Witness

Lorne Mackenzie
Director of Regulatory Affairs
WestJet - Witness

Lisa Puchala5
Director of Inflight Training and Standards
WestJet - Witness

Kevin McAuley
Advisor of Environment and Dangerous Goods
WestJet - Witness

Jennifer Kalinchuk6
Manager of Standards and Procedures
WestJet - Witness

DEFINITIONS

Cannula:

A [tube] that fits into the nostrils for delivery of oxygen therapy. Also called a nasal prong. (Dorland's Illustrated Medical Dictionary, 29th Ed. Harcourt: Montréal. 2000).

Flight Segment:

A flight involving one take-off and landing.

International services:

Air transportation service between Canada and another country. For the purposes of this Decision, transborder air services, being air transportation services between Canada and the United States, are referred to separately from international air services. Further, domestic segments of an international air trip are considered to be an international air service if purchased on a single fare.

Medipak:

Medical oxygen units owned and supplied by Air Canada, comprised of a metal carrying case referred to as a "Medipak", which contains a bottle of compressed oxygen, a regulator, a nasal cannula, and tubing.

Oxygen:

Oxygen required for medical purposes.

Oxygen Concentrator:

A device that operates on electricity, takes oxygen from the air and concentrates it for the person to use (Mayo Clinic Family Health Book, 3rd Ed. Harper Collins: New York: 2003)

Oxygen Conserving Devices:

Devices that increase the duration of time that oxygen is available from an oxygen cylinder or canister, allowing a patient to use a stationary oxygen system for longer periods of time, especially when a high flow rate is needed. They also are used with smaller portable systems.

Passenger trip:

One-way trip from point of origin to destination; may involve more than one flight segment.

Portable oxygen concentrator:

A smaller device similar to an oxygen concentrator which is portable and can also operate on batteries.

Regulator:

A device attached to an oxygen cylinder that controls the flow rate of the oxygen coming out of the cylinder.

ABBREVIATIONS

Agency - Canadian Transportation Agency

ATR - Air Transportation Regulations

CBAAC - Commercial and Business Aviation Advisory Circulars

CTA - Canada Transportation Act

COPD - Chronic Obstructive Pulmonary Disease

FAA - Federal Aviation Administration of the United States of America

FFT - Fitness for Travel (Air Canada form)

IATA - International Air Transport Association

JAA - Joint Aviation Authority

LPM - Litres per Minute

OCD - Oxygen Conserving Device

POCs - Portable Oxygen Concentrators

PNR - Passenger Name Record

STOC - Station Operation Control

TIs - International Civil Aviation Organization Technical Instructions


  1. A flight involving one take-off and landing.
  2. A one-way trip from point of origin to destination that may involve more than one flight segment.
  3. Excludes Jazz Dash 8 aircraft as Medipaks will not fit in overhead bins.
  4. Testimony given in-camera
  5. Some testimony given in-camera
  6. Testimony given in-camera
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