Backgrounder: Decision No. 228-AT-A-2011 - June 16, 2011

In Decision No. 4-AT-A-2010 (January 2010), the Canadian Transportation Agency first addressed complaints by two persons regarding difficulties they experienced relating to peanut and nut allergies when travelling with Air Canada.

Disability determination and Obstacle

In its January 2010 Decision, the Agency found that both persons named in the complaint were persons with disabilities for the purposes of Part V of the Canada Transportation Act.

The Agency also found that Air Canada's lack of a formal policy to accommodate the needs of persons with allergies to peanuts or nuts, and the uncertainty this created, constituted an obstacle to the mobility of the complainants and to persons whose allergy to peanuts or nuts results in a disability for the purposes of Part V of the Act.

Appropriate accommodation

In its January 2010 Decision, the Agency also made a preliminary finding that a buffer zone, including an announcement to other passengers within that zone, is the appropriate accommodation for persons with disabilities due to their allergy to peanuts or nuts.

In Decision No. 431-AT-A-2010(October 2010), the Agency set out its final findings with respect to appropriate accommodation for persons with disabilities due to their allergy to peanuts or nuts, when Air Canada is provided with at least 48 hours advance notice of a person's need for accommodation:

  1. Air Canada is to create a buffer zone, as follows, for the passenger with a disability due to their allergy to peanuts or nuts:

    • International wide-body aircraft executive class seating: the pod-seat occupied by the person.
    • North American business class seating: the bank of seats in which the person is seated.
    • Economy class seating: the bank of seats in which such a person is seated, and the banks of seats directly in front of and behind the person. In areas where a bulkhead is either directly in front of or behind the bank of seats in which the person with a disability due to their allergy to peanuts or nuts is seated, the buffer zone will consist of the bulkhead, together with the bank of seats in which the person is sitting and the bank of seats directly in front of or behind the person (depending on the location of the bulkhead).

  2. only peanut-free and nut-free foods will be served by Air Canada as part of its onboard snack or meal service within the buffer zone.

  3. a briefing will be given by Air Canada personnel to passengers within the buffer zone that they can only eat foods that are peanut-free and nut-free and that they will only be offered peanut-free and nut-free foods as part of Air Canada's onboard snack or meal service. In addition, Air Canada personnel is to address situations where a passenger refuses to comply with this requirement by moving the non-obliging passenger or, if necessary due to that passenger's refusal to move, moving the person with the disability due to their allergy to peanuts or nuts to a seat where the buffer zone can be established.

Undue hardship

In its October 2010 Decision, the Agency also required Air Canada to submit a formal policy for the Agency's review and approval if it accepted to implement the appropriate accommodation. In the event that Air Canada did not accept to implement the appropriate accommodation, or any part of it, it was required to file its arguments on undue hardship.

In response to the October Decision, Air Canada submitted that it would adopt a policy and procedures, for implementation by December 2, 2010, consistent with items (1) and (3) of the Agency's findings on appropriate accommodation. However, it indicated that it would be filing undue hardship arguments with respect to item (2) of the order; specifically the requirement to serve only peanut-free and nut-free foods within the buffer zone. Air Canada stated that there are currently no flight kitchens available to deliver on this guarantee.

Decision 228-AT-A-2011, issued on June 16, 2011, constitutes the Agency's assessment of Air Canada's undue hardship arguments.

What is Undue hardship?

Once an applicant has 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.

Key to the Agency's assessment of undueness is an examination of the interplay between accommodation for the person with a disability and hardship for the transportation service provider in providing such accommodation. The assessment relates to the obligation of the transportation service provider, which is to accommodate the passenger with a disability up to the point of undue hardship.

To establish undue hardship, the transportation service provider must demonstrate that there are constraints that make the removal of the obstacle unreasonable, impracticable or, in some cases, impossible, such that the accommodation cannot be provided. Constraints which may be considered in that assessment include, without limitation, structural, safety, economic and financial matters.

If undue hardship with respect to the appropriate accommodation is so established by the transportation service provider to the satisfaction of the Agency, the Agency then turns to alternatives available to best address the needs of a person with a disability, again up to the point of undue hardship for the transportation service provider. Such alternative accommodation constitutes "reasonable accommodation."

Reasonable accommodation in each case is a matter of degree and depends on a balancing of interests of persons with disabilities with those of the transportation service provider in the circumstances of the case. This includes considering 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.

Legislative framework

The Agency's legislative mandate with respect to persons with disabilities is found in Part V of the Canada Transportation Act, which contains a regulation-making authority [subsection 170(1)] and a complaint adjudication authority [subsection 172(1)], both for the express purpose of removing undue obstacles to the mobility of persons with disabilities from the federal transportation network.

The scope of the Agency's jurisdiction to eliminate undue obstacles by both regulation and adjudication is partly defined by an inclusive list of matters contained in subsection 170(1), which is incorporated by reference into subsection 172(1).

The Supreme Court of Canada confirmed, in Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SCC 15, that the accessible transportation provisions of the Canada Transportation Act are, in essence, human rights legislation.

Furthermore, the Court stated that the principles of the Canadian Human Rights Act, including the principle of reasonable accommodation, must be applied by the Agency when it identifies and remedies undue obstacles.

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