Decision No. 551-AT-A-2008
October 27, 2008
APPLICATION by William Mark Pettigrew against Air Canada regarding the failure to return his oxygen cylinder to the counter of Compania Mexicana de Aviacion, S.A. de C.V. carrying on business as Mexicana Airlines at the Puerto Vallarta airport.
File No. U3570/07-10
 On March 21, 2007, William Mark Pettigrew filed an application with the Canadian Transportation Agency (the Agency) regarding the difficulties he experienced when travelling with Air Canada between Puerto Vallarta, Mexico and Toronto, Ontario, Canada in January 2007.
 At the same time, the Agency was in the process of considering evidence on broad issues pertaining to Air Canada's oxygen service and planned to hold a hearing into the matter (Oxygen hearing). In light of the possibility of overlap between the Oxygen hearing file and Mr. Pettigrew's application, on October 24, 2007, the Agency stayed Mr. Pettigrew's file pending the completion of its investigation and issuance of a decision in the Oxygen file. In this regard, the Agency issued Decision No. 336-AT-A-2008 (the Decision).
 The issue raised by Mr. Pettigrew is whether Air Canada failed to return his oxygen cylinder to the Compania Mexicana de Aviacion, S.A. de C.V. carrying on business as Mexicana Airlines (Mexicana) counter at the time of Mr. Pettigrew's boarding of a flight from Puerto Vallarta to Toronto and, if so, whether this constituted an undue obstacle to his mobility and what corrective measures should be taken.
FACTS, EVIDENCE AND SUBMISSIONS
 Mr. Pettigrew requires continuous medical oxygen as well as assistance to carry his luggage up stairs.
 On January 27, 2007, Mr. Pettigrew travelled from Puerto Vallarta to Toronto on Air Canada Flight No. 1259. Mexicana handles Air Canada flights in Puerto Vallarta. After checking in at the Mexicana counter, Mr. Pettigrew made his way to the boarding gate using one of his oxygen cylinders. Mexicana kept, at its counter, two additional oxygen cylinders that Mr. Pettigrew had brought to the airport to ensure he had an adequate supply prior to departure and for his return to Puerto Vallarta. Due to a long wait at the airport, the cylinder Mr. Pettigrew was using was becoming low in oxygen and he arranged for Mexicana personnel to bring him one of his cylinders from the check-in counter, leaving one cylinder at the counter and two with Mr. Pettigrew.
 Mr. Pettigrew was assisted onto the aircraft by Mexicana personnel who carried his luggage and his two oxygen cylinders.
 Once Mr. Pettigrew was seated on the aircraft, he had to switch from his own oxygen supply to Air Canada's in-flight oxygen service. Mr. Pettigrew states that he closed the valve on the cylinder that he had been using, removed the regulator, removed the cylinder from the modified knapsack that it had been in and gave the cylinder to Air Canada personnel, and the cylinder was returned to the Mexicana counter. At the same time, as Mr. Pettigrew was switching over to Air Canada's in-flight oxygen service, his luggage was placed in the overhead bin.
 Mr. Pettigrew states that upon arrival in Toronto, he found his empty cylinder in the overhead luggage compartment. Mr. Pettigrew returned from Toronto to Puerto Vallarta on January 31, 2007, on Air Canada Flight No. 1258 and, upon boarding the aircraft, asked the Air Canada in-flight personnel whether he could bring the cylinder with him if it was empty. Air Canada refused his request as Air Canada's policy does not permit the carriage of passenger-supplied oxygen cylinders on board its aircraft. Air Canada states that it subsequently returned the cylinder to the rental company that owned the cylinder in Oakville, Ontario, ensuring that no further rental costs would be incurred by Mr. Pettigrew. Mr. Pettigrew states that, as a result, he had to acquire another oxygen cylinder for his use in Mexico, which he did by driving two hours round-trip to purchase one at a cost of 700 Mexican pesos.
 While the foregoing reflects uncontested facts in this case, the issue of whether Air Canada failed to return Mr. Pettigrew's oxygen cylinder to the Mexicana desk is contested.
 Both parties agree that two of Mr. Pettigrew's oxygen cylinders were brought on board Mr. Pettigrew's flight from Puerto Vallarta to Toronto, however, the parties disagree as to whether Air Canada personnel or its representative (Mexicana personnel) were aware of Mr. Pettigrew's second cylinder having been carried onto the aircraft and whether they were asked to return it to the Mexicana counter.
 Mr. Pettigrew consistently states that, at various times during the boarding process in Puerto Vallarta, he advised Mexicana personnel, both in English and in Spanish, that his empty oxygen cylinder must be returned to the check-in counter.
 For the reasons set out below, Mr. Pettigrew asserts that he would not want his oxygen cylinder carried in the overhead bin on his flight from Puerto Vallarta to Toronto, nor did he need to bring it, and, therefore, submits that Air Canada's crew or its Mexicana agents mistakenly placed the cylinder in the overhead bin in the confusion of boarding.
 Because of his knowledge with respect to oxygen on board aircraft, including Air Canada's policy of not allowing passenger-supplied gaseous equipment to be carried on its flights, and his medical condition, Mr. Pettigrew submits that he prepares diligently for any air travel he undertakes. Part of this preparation is to eliminate as many risks of running short in his supply of oxygen as possible.
 Mr. Pettigrew submits that before departing for the Puerto Vallarta airport, he calculated how much oxygen he would require for the drive to the airport, the wait at the airport and the trip back from the airport upon his return. He then doubled that amount to ensure he would have sufficient oxygen for any unforeseen circumstances, which resulted in him bringing three oxygen cylinders to the airport. Mr. Pettigrew explains that the cylinder that he was using was stored in a modified knapsack and the two spare cylinders were stored in specifically designed sleeves with carrying straps. The sleeves are in the shape of a cylinder and expose the valve.
 Furthermore, his pre-planned oxygen-related arrangements included contacting his supplier in Ontario to have an oxygen concentrator delivered for use during his stay at a Toronto hotel, as well as six oxygen cylinders for the times he would leave the hotel. He could call his supplier at any time while in Toronto should he require the delivery of more cylinders. Mr. Pettigrew further instructed his supplier to have an additional oxygen cylinder prepared to be picked up by a friend, with whom he arranged to meet upon arrival of his flight at the Toronto airport.
 Mr. Pettigrew further states that he is aware of Air Canada's oxygen policy and to "sneak" a cylinder on board only creates more risk. Mr. Pettigrew states that he has an interest in his well-being while in Mexico and ensuring that he has all the cylinders he requires there for his return is part of attending to his well-being. Mr. Pettigrew explains that, in Mexico, if there is a power outage, an earthquake or if his equipment fails he will be required to use the oxygen he has in cylinders. Mr. Pettigrew asserts that, given the importance of having all of his oxygen cylinders in Mexico, he made every effort to make it clear to all Mexicana and Air Canada personnel who came into contact with him that his oxygen cylinders, including the empty cylinder in a sleeve, were to be returned to the Mexicana counter.
 In response, Air Canada submits that there is no indication that Mr. Pettigrew drew the attention of Mexicana personnel to the fact that he had another empty cylinder, which Air Canada asserts was in his carry-on luggage. Air Canada further asserts that the oxygen cylinder was carried on board the aircraft without its knowledge and contrary to its safety policy.
 Finally, Air Canada submits that Mr. Pettigrew's description of the events that occurred confirms the "great confusion" that may have resulted from all of the exchanges between Mr. Pettigrew and carrier personnel and supports its description of the facts.
PRELIMINARY FINDING OF FACT
 The Agency finds that on the one hand, Mr. Pettigrew has been consistent in his contention that he repeatedly asked Mexicana personnel to return his empty oxygen cylinder to the Mexicana counter. On the other hand, Air Canada only submits that there is no indication that Mr. Pettigrew drew the attention of Mexicana personnel to the fact that he had another empty cylinder in his carry-on luggage and that the oxygen cylinder was carried on board the aircraft without its knowledge. The Agency accepts Mr. Pettigrew's arguments that he had no reason to bring the empty cylinder with him and that he could not risk being without it in Mexico. Furthermore, Mr. Pettigrew's description of the sleeve that the oxygen cylinder was stored in confirms that the cylinder was not concealed in a piece of carry-on luggage. Mr. Pettigrew was aware of Air Canada's policy which does not permit the carriage of personal oxygen cylinders. Furthermore, Mr. Pettigrew had already made arrangements to ensure that he would have a sufficient supply of oxygen while in Toronto beginning from the point of deplaning. The Agency finds that Mr. Pettigrew has presented a credible description of what occurred on the aircraft, resulting in his empty oxygen cylinder inadvertently being placed in the overhead bin by someone other than Mr. Pettigrew.
 Based on the above, the Agency finds as a fact that Mr. Pettigrew instructed Mexicana personnel to return his empty oxygen cylinder to the Mexicana counter. Further, the Agency is of the opinion that Mr. Pettigrew had a reasonable expectation that this would be done given that his request was not refused. In this regard, the Agency notes that Mexicana had already accepted one of Mr. Pettigrew's cylinders for storage at its counter until his return to Mexico. Furthermore, there is no evidence that Mr. Pettigrew's request was refused when he asked Mexicana personnel to return his cylinder to its counter. The expectation that the cylinder would be removed from the aircraft is also consistent with Air Canada's policy which prohibits the carriage of personal medical oxygen cylinders on its aircraft.
 It is an accepted principle that when a carrier delegates an obligation, it is still responsible to ensure that the obligation is fulfilled. As, in this case, Mexicana was acting on behalf of Air Canada, the Agency therefore finds that Air Canada is responsible for Mexicana's actions in this regard.
 Consequently, the Agency accepts that, on a balance of probabilities, Mr. Pettigrew's description of events is an accurate account of what occurred and accepts that Air Canada failed to return his oxygen cylinder to the Mexicana counter.
ANALYSIS AND FINDINGS
 An application under section 172 of the CTA must be filed by a person with a disability or on behalf of a person with a disability. In this case, Mr. Pettigrew requires continuous oxygen and requires assistance to carry his luggage up stairs. As such, Mr. Pettigrew is a person with a disability for the purpose of applying the accessibility provisions of the CTA.
 To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first 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.
The Agency's approach to the determination of obstacles
 Under Part V of the CTA, the mandate of the Agency is to eliminate undue obstacles to the mobility of persons with disabilities from the federal transportation network. The word "obstacle" is not defined in the CTA, but lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement. Obstacles or barriers to the mobility of persons with disabilities may result from, for example, federal transportation service providers' facilities; equipment; and/or policies, procedures, or practices; or a failure by transportation service providers to comply with such and/or to take positive action to enforce compliance with policies, procedures and practices, including a failure to provide appropriate training to employees and contractors.
 In considering whether a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency generally will look to the incident described in the application to determine whether the applicant has established in the application (that is, on a prima facie basis) that:
- a distinction, exclusion or preference resulted in an obstacle to the mobility of a person with a disability;
- the obstacle was related to the person's disability; and,
- the obstacle discriminates by imposing a burden upon, or withholding a benefit from a person with a disability.
Did Air Canada's failure to return Mr. Pettigrew's oxygen cylinder to the Mexicana counter constitute an obstacle to his mobility?
 The Agency has found that Air Canada failed to return Mr. Pettigrew's oxygen cylinder to the Mexicana counter. This failure resulted in Mr. Pettigrew having to drive two hours round-trip to purchase a new cylinder upon his return to Mexico. As previously set out, as part of attending to his well-being, Mr. Pettigrew must ensure that he has all the cylinders he requires in Mexico for his return. Mr. Pettigrew explained that, in Mexico, if there is a power outage or an earthquake, or if his equipment fails, he will be required to use the oxygen he has in cylinders.
 While the Agency acknowledges that Air Canada ensured that Mr. Pettigrew would incur no further rental costs by returning the oxygen cylinder to the rental company that owned it, the Agency is of the opinion that it was imperative, for the reasons set out above, for Mr. Pettigrew to find a replacement cylinder as quickly as possible upon his return to Mexico and that it was reasonable for him to purchase a new one.
 Accordingly, the Agency finds that Air Canada's failure to return Mr. Pettigrew's empty oxygen cylinder to the Mexicana counter constituted an obstacle to his mobility.
The Agency's approach to the determination of the undueness of obstacles and accommodation
 Once the applicant established 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 that end, the transportation service provider must show that reasonable accommodation has been provided. 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.
 Reasonable accommodation will be the most appropriate accommodation 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, while not causing undue hardship to the transportation service provider.
 In order 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.
 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 this balance that the Agency applies the concepts of undueness and undue hardship.
Did Air Canada's failure to return Mr. Pettigrew's oxygen cylinder to the Mexicana counter constitute an undue obstacle to his mobility?
 Having found that Air Canada's failure to return Mr. Pettigrew's oxygen cylinder to the Mexicana counter constituted an obstacle to his mobility, the Agency must now determine whether this obstacle was undue.
 The Agency has already found Mr. Pettigrew's expectation that the cylinder would be returned to the Mexicana counter to be reasonable, having found that Mr. Pettigrew requested Mexicana personnel to do so and given that his request was not refused. The Agency is of the opinion that it could not be an objective of an air carrier to not provide a service that it has accepted to provide. The Agency is of the opinion that Air Canada's failure to return Mr. Pettigrew's cylinder to the Mexicana counter cannot be addressed properly through standard application of the undue hardship test because the appropriate accommodation required is not the adoption or creation of a policy which may raise the question of hardship. Rather, accommodation requires enhancing the means of compliance with existing policies and practices such as clarifying, adapting or adjusting policies, procedures and training to complement that which already exists.
 Although Air Canada has a policy in place that prohibits the carriage of personal medical oxygen cylinders on board its aircraft, its personnel or representatives did not ensure that the policy was followed in this case and Mr. Pettigrew's oxygen cylinder remained on board the aircraft for his flight from Puerto Vallarta to Toronto.
 It is the responsibility of the carrier to ensure that its personnel or representatives follow the carrier's policies/practices and procedures. Despite the fact the Mr. Pettigrew repeatedly requested that Mexicana personnel return his empty oxygen cylinder to the Mexicana counter, that did not occur. The Agency accepts that, as Air Canada's representative in Puerto Vallarta, Mexicana provides assistance on Air Canada's behalf during the check-in and boarding process. This assistance must be provided in a manner that is consistent with Air Canada's policies/practices and procedures. Air Canada is not relieved of its responsibility to ensure its policies/practices and procedures are complied with even if a third party representative is performing services on its behalf.
 Air Canada has not provided evidence to demonstrate that undue hardship would have resulted from it ensuring that its personnel or its representative removed Mr. Pettigrew's empty oxygen cylinder from the aircraft and returned it to the Mexicana counter, as requested. Accordingly, the Agency finds that Air Canada's failure to return Mr. Pettigrew's oxygen cylinder to the Mexicana counter constituted an undue obstacle to his mobility.
 Having found that Air Canada's failure to return Mr. Pettigrew's oxygen cylinder to the Mexicana counter constituted an undue obstacle to his mobility, the Agency requires Air Canada to:
- reimburse Mr. Pettigrew the equivalent of 700 Mexican pesos, calculated at the time of the incident, for the purchase of a replacement oxygen cylinder upon presentation of a receipt or a sworn affidavit in the absence of a receipt;
- reimburse Mr. Pettigrew for the vehicle expenses incurred to purchase the replacement oxygen cylinder, upon presentation of a receipt or a sworn affidavit in the absence of a receipt; and,
- ensure that Air Canada's policies and practices with respect to the handling of personal oxygen cylinders are properly followed.
 In the event that Mr. Pettigrew and Air Canada do not reach an agreement on the eligible expenses for reimbursement, they may bring this matter back to the Agency for its determination of the expenses and issuance of an order to that effect.
 The Agency notes that Mr. Pettigrew suggests, as a remedy, that Air Canada could either provide him with monetary compensation for the purchase of a new cylinder or transport empty oxygen cylinders that have been purged. As the Agency has ordered Air Canada to reimburse Mr. Pettigrew for his expenses related to the purchase of a new cylinder, it will not consider Mr. Pettigrew's other suggested remedy.
 With respect to the reimbursement of legal costs requested by Mr. Pettigrew, it has been well documented by the Agency and its predecessors that costs are not awarded as a matter of course even in situations where a party has been substantially successful in its recourse. Rather, the Agency's practice has been to review each application for costs on its own merit and to award costs only in special or exceptional circumstances. The Agency finds that the present case does not meet those special or exceptional circumstances. Accordingly, the Agency dismisses Mr. Pettigrew's request that he be awarded costs of this application on a solicitor and client basis.
- J. Mark MacKeigan
- John Scott