Decision No. 354-AT-A-2015

November 16, 2015

APPLICATION by Carrie Moffatt (Bavin) against Air Canada.

Case number: 
14-01614

INTRODUCTION

[1] Carrie Moffatt (formerly Carrie Bavin) filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) against Air Canada.

[2] Ms. Moffatt is legally blind and has moderate to severe bilateral hearing loss. However, Ms. Moffatt wears hearing aids, which enable her to communicate verbally. She is also able to read regular print.

[3] After booking her travel online, Ms. Moffatt called Air Canada’s Medical Assistance Desk (Meda Desk) on September 25, 2013 to inform them that she is hearing impaired and legally blind, and that she would be travelling with her guide dog. Although Ms. Moffatt informed the Air Canada agent that she was completely self-reliant as defined on Air Canada’s Web site, she was informed by the agent that she could not travel without an attendant, because Air Canada’s policy does not allow people with both visual and hearing impairments to travel without an attendant.

ISSUES

  1. Do Air Canada’s policy and procedures regarding the determination of self-reliance of persons who are completely or partially deaf-blind constitute an undue obstacle to their mobility, including that of Ms. Moffatt?
  2. If so, what corrective measures should be taken?

THE LAW

[4] When adjudicating an application pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:

  1. the person who is the subject of the application has a disability for the purposes of the CTA;
  2. an obstacle exists because the person was not provided with accommodation appropriate to address their disability-related needs; and,
  3. the obstacle is “undue” because the transportation service provider did not justify the existence of the obstacle by proving that:

(i) it is rationally connected to the provision of the transportation service;

(ii) it was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; and,

(iii) there are constraints that make the removal of the obstacle unreasonable, impracticable, or impossible (undue hardship).

SHOW CAUSE DECISION

[5] On April 7, 2015, the Agency issued Decision No. LET-AT-A-19-2015 (Show Cause Decision), which set out final determinations with respect to Disability, Appropriate Accommodation and Obstacle, and a preliminary determination concerning Undue Obstacle.

Final determinations

Disability

[6] The Agency found that Ms. Moffatt is a person with a disability for the purposes of Part V of the CTA.

Appropriate Accommodation

[7] The Agency noted that, like all persons (including persons with other disabilities and persons without disabilities), persons who are deaf-blind, such as Ms. Moffatt, have the right to travel independently and to self-determine whether they are capable of doing so, subject to a carrier being able to justify why it does not accept their self-determination of self-reliance and why it requires them to travel with an attendant.

[8] The Agency found that the accommodation appropriate to meet the disability-related needs of persons who are deaf-blind, including Ms. Moffatt, has two components:

  1. explicit recognition in Air Canada’s Tariff 33AC that some persons who are deaf‑blind may be self-reliant.
  2. a non-discriminatory assessment process that enables persons who are deaf-blind to demonstrate their self-reliance before being required to undergo medical approval.

[9] The Agency determined that a non-discriminatory assessment process has three features.

[10] First, it begins with an opportunity for the person who is deaf-blind to self-determine their self‑reliance. If this self-determination is accepted by the carrier, then the assessment process is complete. If the carrier has reasonable grounds to question the person’s self-determination, the process proceeds to an assessment of the person’s ability to compensate for their disability. If the carrier continues to have reasonable grounds to question the self-reliance of the person, then the process proceeds to an assessment of the risk mitigation measures that the carrier can take. Finally, if the risk mitigation measures are insufficient to resolve the carrier’s reasonable grounds to question the person’s self-reliance, the carrier may require successful completion of other procedures, such as medical approval, failing which an attendant may be required.

[11] Second, a proper assessment process must be based on a reasonable, non-discriminatory safety standard. Carriers inherently assume some risk by not assessing the fitness for travel of each and every passenger, despite the likelihood that some passengers, including persons without disabilities, may not be able to react appropriately in emergency situations, or some passengers (such as the elderly or persons with invisible disabilities) may not be able to evacuate in a timely fashion during an emergency. People who are deaf-blind should not be expected to achieve a standard of absolute safety when no other passengers are held to that standard.

[12] Third, in order to ensure that it is objective, a proper assessment process must evaluate the self‑reliance of a person who is deaf-blind based on their ability to meet specific criteria, such as a list of safety-related tasks. This reflects the principle that it is not the ability of passengers to hear or see that is crucial to achieving a reasonable safety standard, but rather the ability of passengers to perform safety-related tasks at appropriate times.

Obstacle

[13] The Agency found that Air Canada did not provide accommodation measures appropriate to meet the disability-related needs of persons who are deaf-blind, including Ms. Moffatt.

[14] Specifically, the Agency found that the following constituted obstacles to the mobility of Ms. Moffatt and other persons who are deaf-blind:

  • Air Canada’s Tariff 33AC, which failed to include the category of Deaf‑Blind/Self‑Reliant, resulting in a discriminatory assumption that all persons who are deaf-blind are non-self-reliant and therefore must travel with an attendant.
  • Air Canada’s policy and procedures for determining the self-reliance of Ms. Moffatt and other persons who are deaf-blind, which did not provide persons who are deaf-blind with the opportunity to establish their self-reliance.

Preliminary finding

Undue obstacle

[15] The Agency found that there was a rational connection between Air Canada’s air transportation services and its domestic Tariff 33AC and its policy and procedures regarding the determination of the self-reliance of persons who are deaf-blind.

[16] The Agency also found that Air Canada’s domestic Tariff 33AC and its policy and procedures were adopted based on an honest and good faith belief that they were necessary in order to provide the carrier’s transportation services.

[17] However, with respect to undue hardship, the Agency found on a preliminary basis that Air Canada had not demonstrated that it would incur undue hardship if:

  1. it amended Tariff 33AC to include, as a category of persons with disabilities, “Blind and Deaf/Self-Reliant.”
  2. it amended its policy and procedures to apply a reasonable, non-discriminatory safety standard in respect of persons who are deaf-blind, and to provide persons who are deaf‑blind with the opportunity to self-determine their self-reliance.

3.(i) it provided a person who is deaf-blind with the opportunity to demonstrate, through dialogue and/or face-to-face interaction, how they can compensate for their disability.

3.(ii) it considered possible risk mitigation measures that it could employ to mitigate any residual safety risk posed by unaccompanied passengers who are deaf-blind to the same level that it accepted in respect of persons with other disabilities.

3.(iii) its assessment process first considered compensating and mitigation measures and then only carried out a further assessment, such as by conducting a medical assessment, if any reasonable concerns remained about the person’s self-reliance in the context of achieving a reasonable safety standard.

[18] Therefore, the Agency found, on a preliminary basis, that Air Canada had not justified that it could not provide the appropriate accommodation determined by the Agency. As a result, the Agency found on a preliminary basis that Air Canada’s Tariff 33AC and its policy and procedures regarding the determination of the self-reliance of persons who are deaf-blind, including Ms. Moffatt, constituted an undue obstacle to their mobility.

[19] The Agency therefore provided Air Canada with an opportunity to:

  • provide undue hardship arguments with respect to the appropriate accommodation determined by the Agency and show cause why the Agency should not finalize its preliminary finding of undue hardship and undue obstacle;
  • propose an equally-responsive measure, including an explanation detailing:

- how the measure will effectively address the needs of persons who are deaf-blind, including Ms. Moffatt; and,

- how Air Canada will implement its proposal;

  • accept to implement the appropriate accommodation determined by the Agency.

PRELIMINARY MATTER

[20] In submissions dated October 2, 2014, Air Canada requested that the Agency limit the scope of its investigation in this matter to Ms. Moffatt’s specific incident and not engage in a collateral review of Air Canada’s entire policy regarding the transportation of passengers who are deaf‑blind, including those who are both completely deaf and completely blind.

[21] In Decision No. LET-AT-A-75-2014, the Agency denied Air Canada’s request because the alleged obstacle identified by Ms. Moffatt in her application related to Tariff 33AC(B)(3), which applied to all persons who are deaf-blind: that is, to both those who are completely deaf-blind and those who, like Ms. Moffatt, are partially deaf-blind.

[22] However, on June 5, 2015, in its response to the Show Cause Decision, Air Canada notified the Agency that its tariff had been modified and no longer included Tariff 33AC(B)(3) as it existed at the time of Ms. Moffatt’s application. Consequently, Air Canada argued that the issue concerning Tariff 33AC(B)(3) was moot.

[23] As a result of the modification to Air Canada’s tariff, the Agency notes that there is no longer a chart in the tariff that specifically requires that all persons who are deaf-blind, whether partially or completely, have an attendant.

[24] Therefore, because of this change, the Agency will not continue its investigation in this matter with respect to persons who are completely deaf-blind, and will limit its investigation to persons who are partially deaf-blind, like Ms. Moffatt.

[25] The Agency found in the Show Cause Decision that Air Canada’s Tariff 33AC(B)(3), as it was submitted to the Agency in respect of these proceedings, was discriminatory because the chart categorized persons with disabilities in respect of whether they are required to travel with an attendant, and did not differentiate between persons who are deaf-blind and self-reliant and persons who are deaf-blind and non-self-reliant.

[26] Air Canada has now removed the chart from its domestic tariff. As such, the discriminatory assumption that all persons who are deaf-blind are non-self-reliant, and therefore must travel with an attendant, has been removed from Air Canada’s tariff.

[27] Given that Air Canada has removed the chart from its tariff, the Agency is satisfied that Air Canada has provided an equally-responsive measure and removed the obstacle encountered by Ms. Moffatt. Therefore, it is not necessary for the Agency to determine whether or not the obstacle related to Tariff 33AC(B)(3) was undue.

[28] Furthermore, because of this change, the Agency finds it appropriate to modify its determination of the appropriate accommodation. The Agency finds that the accommodation appropriate to meet the needs of the subgroup of persons who are partially deaf-blind may be simplified into one component: a non-discriminatory assessment process that enables persons who are partially deaf‑blind to self-determine their self-reliance and only requires them to undergo medical approval if their self-reliance is reasonably in doubt.

[29] Accordingly, the Agency will proceed to make a final determination on whether Air Canada’s assessment process for determining the self-reliance of persons who are partially deaf-blind constitutes an undue obstacle to persons who are partially deaf-blind, including Ms. Moffatt.

Submissions concerning the Assessment Process in response to the Direction to Show Cause

Air Canada

[30] Air Canada states that its current process for assessing the self-reliance of persons who are deaf‑blind (and the one in place at the time of Ms. Moffatt’s travel) does not require the completion of a Fitness for Air Travel Form (FFATF), but only “credible assurances” that a person who is deaf-blind has residual hearing or vision sufficient to be able to hear or see the safety instructions during an emergency.

[31] Air Canada states that passengers who are deaf-blind can communicate with the Meda Desk to provide credible assurances that they have residual hearing or vision sufficient to assimilate safety instructions during an emergency. Air Canada explains that if it continues to question whether a person who is deaf-blind has sufficient residual vision or hearing to be able to see or hear the safety instructions during an emergency – for example, because this information is conveyed by a third party who is not able to provide clear assurances – then it will accept a medical report, such as an FFATF confirming residual vision or hearing.

[32] Air Canada submits that although Ms. Moffatt experienced difficulties when she communicated with the Meda Desk, she was accepted as a passenger who is self-reliant, without having to complete an FFATF. Air Canada states that since Ms. Moffatt’s travel in September 2013, processes have been clarified amongst the agents to reflect this policy.

Ms. Moffatt

[33] Ms. Moffatt submits that Air Canada’s policies and procedures continue to “single out” passengers with hearing and visual impairments and impose an additional burden on them when compared to other passengers allowed to travel independently.

[34] More specifically, Ms. Moffatt submits that, rather than accepting the determination of self‑reliance of persons with hearing and visual impairments and requiring further individual assessment only when there is doubt of this, Air Canada automatically requires these passengers to perform an additional step not required of other passengers with disabilities, that is, to provide “credible assurances” that they have residual hearing or vision to be able to hear or see the safety instructions during an emergency.

[35] Ms. Moffatt submits that Air Canada does not consider the passengers’ ability to compensate for their disability or the risk mitigation measures that Air Canada could implement. Ms. Moffatt asserts that the net effect of Air Canada’s current assessment process is to automatically require medical approval for all passengers who are deaf-blind.

Analysis

[36] According to Air Canada, it provides persons who are partially deaf-blind with the opportunity to self-determine their self-reliance and only requires further assessment through the completion of an FFATF if there are no credible assurances that they have residual hearing or sight. The Agency accepts that this constitutes appropriate accommodation.

[37] However, Ms. Moffatt interacted with Air Canada personnel at its Meda Desk by telephone, thereby demonstrating that she had residual hearing. Therefore, the evidence establishes that she was self-reliant. Nevertheless, she was initially told that she could not travel without an attendant because people with both visual and hearing impairments cannot travel alone.

[38] Despite the fact that Air Canada has submitted that its policy accepts self-determination, Air Canada did not apply this policy in Ms. Moffatt’s situation. Furthermore, Air Canada has not provided any submissions to justify why it would have faced undue hardship in applying its policy to Ms. Moffatt. Therefore, the evidence establishes that there was an undue obstacle to her mobility.

[39] Accordingly, although the Agency accepts that Air Canada’s policy constitutes appropriate accommodation, it is imperative that Air Canada ensure that this policy is properly applied in practice. For example, Air Canada must ensure that its written policies and procedures accurately reflect its policy with respect to its assessment of persons who are partially deaf-blind. An inaccurate description of Air Canada’s policy and procedures could result in a situation similar to the one that Ms. Moffatt experienced.

FINAL FINDINGS AND CONCLUSION

[40] The Agency finds, on a final basis, that Air Canada’s Tariff 33AC(B)(3), as it existed at the time of Ms. Moffatt’s travel, constituted an undue obstacle to her mobility and that of other persons who are partially deaf-blind. However, Air Canada subsequently filed an amended version of the tariff that no longer states that a person who is deaf-blind requires an attendant. The Agency accepts that by removing this discriminatory assumption, Air Canada has provided an accommodation that is equally responsive to the needs of persons who are partially deaf-blind, including Ms. Moffatt.

[41] The Agency finds, on a final basis, that Air Canada’s policy constitutes accommodation appropriate to meet the needs of persons who are partially deaf-blind, including Ms. Moffatt, in that it provides a non-discriminatory assessment process that enables persons who are partially deaf-blind to self-determine their self-reliance and only requires them to undergo medical approval if their self-reliance is reasonably in doubt.

[42] However, the Agency finds that the Policy and Procedures for Attendant/Safety Travel that Air Canada filed with the Agency must be amended to reflect Air Canada’s current process for the assessment of the self-reliance of persons who are partially deaf-blind. Furthermore, Air Canada staff must be informed of its amended policy in order to avoid a situation similar to the one experienced by Ms. Moffatt.

ORDER

[43] In light of the above findings, the Agency orders Air Canada to issue a bulletin to all Air Canada personnel at the Meda Desk as well as staff at all relevant customer contact points making them aware of how to properly apply Air Canada’s policy and procedures with respect to the determination of the self-reliance of passengers who are partially deaf-blind.

[44] Air Canada has until December 15, 2015 to comply with this order.

Member(s)

Sam Barone
P. Paul Fitzgerald
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