Decision No. 366-AT-A-2010
August 27, 2010
APPLICATION by Md Mukhlesur Rahman against Emirates.
File No. U3570/09-19
 Md Mukhlesur Rahman filed an application with the Canadian Transportation Agency (Agency) concerning difficulties he experienced while travelling with Emirates from Toronto, Ontario, Canada to Dhaka, Bangladesh, with a connection in Dubai, United Arab Emirates.
 Mr. Rahman has obstructive sleep apnea (OSA) and uses a continuous positive airway pressure (CPAP) device. Mr. Rahman experienced difficulties during the above-mentioned travel due to the inability to use his CPAP device at various points during his travel while on flights operated by Emirates.
 In Decision No. LET-AT-A-96-2010, the Agency found, on a preliminary basis, that Mr. Rahman failed to provide sufficient evidence to establish that he is a person with a disability for the purposes of the Canadian Transportation Act, S.C., 1996, c. 10, as amended (CTA). However, in light of the complexity of the issue, the Agency gave Mr. Rahman an opportunity to file additional evidence and directed Mr. Rahman to show cause why the Agency should not dismiss his application on the basis that he had not established that he was a person with a disability. As part of the direction to show cause, Mr. Rahman was required to submit medical evidence from his physician. On July 13, 2010, Mr. Rahman filed the requested information. Upon receipt of Mr. Rahman's submission, Emirates was provided ten days to file a reply, which the Agency received on July 23, 2010.
 Section 172 of Part V of CTA provides that the Agency may, on application, inquire into a matter in order to determine whether there is an undue obstacle to the mobility of persons with disabilities. In determining whether an undue obstacle exists, the Agency must first establish whether the application was filed by or on behalf of a person with a disability. If it is established that the applicant is a person with a disability, the Agency must determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In this Decision, the Agency examines the question of whether Mr. Rahman is a person with a disability for the purposes of Part V of the CTA.
 Has Mr. Rahman shown cause why the Agency should not dismiss his application on the basis that he did not establish that he is a person with a disability?
THE AGENCY'S APPROACH TO THE DETERMINATION OF DISABILITY
 An application pursuant to section 172 of the CTA must be filed by or on behalf of a person with a disability. While there are situations where a disability is self-evident (e.g., a person who uses a wheelchair), there are cases where additional evidence is required to establish both the disability and the need for accommodation. In assessing those cases, the Agency uses the World Health Organization's International Classification of Functioning, Disability and Health (ICF), an internationally accepted tool for the consistent classification of disability.
 The ICF model contains a complete classification of body functions and structures, and identifies three dimensions of disability, namely: impairments, activity limitations and participation restrictions.
 The ICF model defines impairment as a loss or abnormality of a body part (i.e., structure) or body function (i.e., physiological function). Abnormality is used strictly to refer to a significant variation from established statistical norms (i.e., as a deviation from a population mean within measured standard norms).
 Activity limitations are difficulties an individual may have in executing activities. The ICF model states that an activity limitation may range from a slight to a severe deviation in terms of quality or quantity in executing the activity in a manner or to the extent that is expected of people without the impairment.
 Participation restrictions are problems an individual may experience in life situations. The presence of a participation restriction is determined by comparing an individual's participation to that which is expected of an individual without a disability in that culture or society.
 The distinction between an activity limitation and a participation restriction is important. The activity limitation associated with an impairment relates to the presentation of symptoms and resulting difficulties, irrespective of the context. While an activity limitation may be slight in nature, as noted in previous decisions, the Agency is of the opinion that, for the purposes of a determination pursuant to Part V of the CTA, a limitation must be significant enough to result in an inherent difficulty in executing a task or action.
 The participation restriction manifests itself in the context of what the ICF calls "life situations". In this case, this means an interaction between the person with the impairment and the federal transportation network.
 The existence of a participation restriction in the context of the federal transportation network is required to find that the applicant is a person with a disability for the purposes of Part V of the CTA. Furthermore, the existence of a participation restriction in the context of the federal transportation network is dependent upon the existence of an activity limitation and is evidenced by a person's inability to access the services available within that network as other persons without the activity limitation can.
 The Agency is of the opinion that in order to be classified as being a person with a disability, the applicant has an evidentiary burden to demonstrate that he/she has an impairment that results in an activity limitation. The applicant must also demonstrate that he/she experiences a participation restriction in the context of the federal transportation network in order for the Agency to assert jurisdiction under Part V of the CTA.
POSITIONS OF PARTIES
 Mr. Rahman refers to his CPAP device as a "life support machine" and submits that being unable to use his CPAP device put his life at risk at various points while travelling from Toronto to Bangladesh. A note provided by Mr. Rahman's physician states:
Please be advised that Rahman Mohammad [...] requires CPAP therapy indefinitely for the treatment of obstructive sleep apnea. As you know, untreated obstructive sleep apnea leads to increased risks of hypertension, myocardial infarction, stroke and fatal motor vehicle accidents. If you require any further information, please contact me.
 In a subsequent note, Mr. Rahman's physician indicates that Mr. Rahman underwent a diagnostic sleep study in February of 2007, which demonstrated that Mr. Rahman had an apnea-hypopnea index (AHI) of 9 per hour. The physician clarifies that in the supine position (i.e., when lying down on his back), Mr. Rahman's apneas and hypopneas elevate significantly to 77.3 per hour. The physician describes Mr. Rahman's sleep apnea in the supine position as severe. However, in the non-supine position, the physician describes Mr. Rahman's AHI as normal at 1.6 per hour. The physician also reiterates that sleeping without a CPAP device will, over the long-term, lead to increased risks of heart failure, myocardial infarction, cardiac arrhythmia, stroke, hypertension, and other health complications.
 Emirates submits that Mr. Rahman has failed to show cause why his application should not be dismissed on the basis that he has not established through probative evidence that he experiences an activity limitation significant enough to result in an inherent difficulty in executing a task or action. Emirates further submits that there is no evidence that Mr. Rahman still has sleep apnea. However, with respect to the diagnostic sleep study Mr. Rahman underwent in February of 2007, Emirates notes that while in the non-supine position, Mr. Rahman's OSA is "considered mild" and that unless Mr. Rahman is lying down during a flight, his OSA is only mild.
ANALYSIS AND DETERMINATIONS
 In Decision No. LET-AT-A-96-2010, the Agency accepted that respiratory functions are included in the functions of the cardiovascular, haematological, immunological and respiratory systems of the ICF. The Agency also accepted that this includes "functions of inhaling air into the lungs, the exchange of gases between air and blood, and exhaling air" and explicitly includes apnea.
 The notes from Mr. Rahman's physician provide evidence that Mr. Rahman has sleep apnea, which is included as an impairment under the category of "respiratory functions" in the ICF. The Agency, therefore, finds that Mr. Rahman has an impairment.
 OSA is commonly understood to be a breathing disorder characterized by brief interruptions of breathing during sleep and to occur when air cannot flow into or out of the person's nose or mouth, although efforts to breathe continue.
 The significance of the activity limitation is an important element to the determination of disability for the purposes of Part V of the CTA, and, as noted above, the Agency is of the opinion that, for the purposes of its analysis, an activity limitation must be significant enough to result in an inherent difficulty in executing a task or action.
 The note from Mr. Rahman's physician dated February 5, 2007 confirms that Mr. Rahman has OSA and describes the long-term effects of untreated OSA. However, it does not describe the effects specific to Mr. Rahman, either short-term or long-term, of untreated sleep apnea. Indeed, the Agency interprets this doctor's note as identifying the typical consequences of untreated sleep apnea and is of the opinion that it does not speak specifically to Mr. Rahman's OSA. However, in a subsequent note from Mr. Rahman's physician, dated July 7, 2010, information specific to Mr. Rahman's OSA is provided.
 The note from Mr. Rahman's physician dated July 7, 2010 describes Mr. Rahman's sleep apnea in the supine position as severe and in the non-supine position as normal. As discussed above, to be considered a person with an activity limitation, an individual must have an inherent difficulty executing a task or action. Based on the note from Mr. Rahman's physician dated July 7, 2010, the Agency finds that, with respect to sleeping in the non-supine position, Mr. Rahman does not experience an activity limitation. However, the Agency also finds that, with respect to sleeping in the supine position, Mr. Rahman experiences an activity limitation.
 In light of the above, the Agency finds that the evidence submitted by Mr. Rahman has shown cause and is sufficient to establish that he experiences an activity limitation with respect to sleeping in the supine position.
 As noted above, the existence of a participation restriction is dependent upon the existence of an activity limitation. Having established that Mr. Rahman experiences an activity limitation with respect to sleeping in the supine position, the Agency must consider if Mr. Rahman's activity limitation results in a participation restriction.
 As noted above, the existence of a participation restriction for the purposes of Part V of the CTA is established having regard to the interaction between the person with the impairment and the federal transportation network. In Mr. Rahman's case, the relevant and specific context in which to assess whether he experienced a participation restriction is the seating in the economy class cabin in which he was booked and travelled with Emirates.
 Because economy class seating requires that passengers travel in the non-supine position, there is nothing to indicate that Mr. Rahman's activity limitation, which is an inherent difficulty breathing while sleeping in the supine position, would prevent him from sleeping should he wish to do so in the non-supine position, like any other passenger travelling in the economy class cabin. Therefore, the evidence submitted by Mr. Rahman fails to establish that he has a disability-related need that, if not accommodated, would prevent him from sitting in and sleeping in the economy class cabin like other passengers.
 In light of the above, the Agency finds that Mr. Rahman has failed to establish that he experienced a participation restriction in the context of his travel with Emirates.
Mr. Rahman has failed to demonstrate that he experienced a participation restriction in the context of his travel with Emirates. Therefore, the Agency finds that Mr. Rahman failed to establish that he is a person with a disability for the purposes of Part V of the CTA. Accordingly, the Agency dismisses the application.
- Raymon J. Kaduck
- J. Mark MacKeigan