Decision No. 11-AT-A-2024

Summary

[1] Christopher Basaraba filed an application with the Canadian Transportation Agency (Agency) against WestJet regarding WestJet’s denial of a mask exemption request during the COVID-19 pandemic.

[2] Mr. Basaraba was scheduled to travel with WestJet from Fort McMurray, Alberta, to Calgary, Alberta, on April 3, 2022. After boarding the aircraft, he presented a medical note exempting him from wearing a mask to the flight attendants and the captain but was nonetheless disembarked and refused transportation.

[3] Mr. Basaraba seeks compensation for pain and suffering in the amount of CAD 20,000, special compensation in the amount of CAD 20,000 and an unspecified amount for expenses incurred to rent a car to drive from Fort McMurray to Calgary to attend an important medical appointment on April 4, 2022, including gas and meals.

[4] In Decision LET-AT-A-8-2024 (Part 1 Decision), issued on February 21, 2024, the Agency found that Mr. Basaraba is a person with a disability and that he faced a barrier when WestJet refused to accept his medical note in support of his mask exemption request, thereby preventing him from travelling on his scheduled flight. The Agency further found that no accessibility regulations made under the Canada Transportation Act (CTA) are applicable to this incident.

[5] For the reasons set out below, the Agency finds that the barrier identified in the Part 1 Decision could not be removed without causing WestJet undue hardship and dismisses the application.

Preliminary matter

[6] In the Part 1 Decision, the Agency found that Mr. Basaraba is a person with a disability based on his reduced lung function. WestJet submits, however, that the physician who signed Mr. Basaraba’s original medical note indicates in the WestJet Mask Exemption Form completed after the incident that it is an anxiety disorder that prevents him from wearing a mask as opposed to reduced lung function.

[7] Mr. Basaraba states that he had not noticed that error. He sought clarification from his physician on April 24, 2024, and obtained a corrected medical note indicating that he has difficulty breathing and shortness of breath when wearing a mask due to having undergone a “right VATS wedge resection” consequent to a metastatic cancer.

[8] At the time of the incident, neither the Mask Exemption Form nor the corrected medical note had been completed or issued. The Agency concludes that the corrected medical note received from Mr. Basaraba has no impact on the Agency’s finding of disability, as both notes indicate that Mr. Basaraba has difficulty breathing while wearing a mask due to a medical condition.

The law

Accessibility

[9] The Agency has authority to decide applications that claim the existence of undue barriers to the mobility of persons with disabilities within the federal transportation network. The Agency determines whether there is an undue barrier to the mobility of a person with a disability using a two-part approach:

Part 1: The onus is on the applicant to demonstrate, on a balance of probabilities, that:

• • they have a disability. A disability is any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society;

and

• • they faced a barrier. A barrier is anything — including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice — that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. There needs to be some connection between the applicant’s disability and the barrier.

Part 2: If it is determined that an applicant has a disability and faced a barrier, the onus shifts to the respondent to either:

• • explain, taking into account any proposals from the applicant, how it proposes to remove the barrier through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or, if a general modification is not feasible, an individual accommodation measure;

or

demonstrate, on a balance of probabilities, that it cannot remove the barrier without experiencing undue hardship.

[10] In this decision, the Agency will address Part 2 of its two-part approach.

Undue hardship

[11] The leading jurisprudence on the assessment of undue hardship is the Supreme Court of Canada’s decisions in British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union and in British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights). This jurisprudence is reflected in past Agency decisions, such as decisions LET-AT-A-19-2015 (Bavin v Air Canada) and 48-AT-A-2021 (McAllister v Air Transat), where the Agency found that, to justify the existence of a barrier, a carrier must demonstrate that:

• the source of the barrier is rationally connected to the provision of the transportation service;
• the source of the barrier was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; and
• there are constraints that make the removal of the barrier unreasonable, impracticable, or impossible (undue hardship).

Step 1: Rational connection

WestJet’s position

[12] WestJet indicates that, in 2020, due to the COVID-19 pandemic, Transport Canada ordered that all passengers wear a mask during flights, unless they provided a medical certificate indicating that they were unable to do so. This requirement was first introduced in the Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, 5 (Interim Order 5), dated August 7, 2020. Transport Canada’s Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, 58 (Interim Order 58), dated March 24, 2022, was in effect at the time of Mr. Basaraba’s travel with WestJet and contained the same provisions with respect to mask wearing as Interim Order 5.

[13] WestJet indicates that it implemented its Mask Exemption Form containing the same required fields and certification as Form 26-0012E published by Transport Canada. In addition, its Mask Exemption Form also stated that the passenger would need to present proof of a valid COVID-19 test taken at the appropriate interval before departure if authorized not to wear a face covering.

[14] WestJet states that it adopted its policy regarding mask exemptions to ensure compliance with its obligations under the Interim Order while following the guidance contained in Form 26-0012E. The policy was also designed and implemented to ensure the safety of other passengers by requiring proof of a negative or previously positive COVID-19 test from a passenger travelling without a mask.

[15] Accordingly, WestJet submits that it was obligated to refuse to transport Mr. Basaraba in order to comply with the Canadian Aviation Regulations (CARs), which provide that “no air operator or private operator shall transport a person if at the time of check-in or at boarding the actions or statements of the person indicate that the person may present a risk to the safety of the aircraft, persons or property.”

Mr. Basaraba’s position

[16] Mr. Basaraba agrees that some of the information requested in WestJet’s Mask Exemption Form is rationally connected to the provision of the transportation service. However, Mr. Basaraba submits that the WestJet Rewards ID number requested on the Form relates to commercial information for a marketing program. Mr. Basaraba submits that requesting persons with a disability to submit this form instead of accepting a medical note adds to the collection of commercial information. Therefore, Mr. Basaraba submits that it is reasonable to think that part of the reason behind the barrier was to collect additional information of commercial value to WestJet that had no rational or justifiable connection to the purpose of the form.

Analysis and determination

[17] In light of WestJet’s federal obligation to properly apply Interim Order 58, the Agency finds that WestJet’s mask exemption policy was rationally connected to the provision of transportation services and, in particular, in a manner that met the safety needs of its flight crew and other passengers. The fact that a Rewards ID number was an optional field on WestJet’s Mask Exemption Form does not change this conclusion. Rewards ID numbers are a common passenger identifier which links passengers to their Passenger Name Record (PNR), the unique travel reservation and flight record tied to the passenger’s name, and are used by carriers in a variety of situations, which can include check-in kiosks, as an alternative to entering the passenger name or PNR number.

Step 2: Honest and good faith belief

WestJet’s position

[18] WestJet indicates that it adopted its policy based on an honest and good faith belief that it was necessary in order to provide safe transportation services, as it was designed to ensure compliance with Interim Order 58 and based on guidance materials published by Transport Canada.

Mr. Basaraba’s position

[19] Mr. Basaraba submits that WestJet did not explain why and exactly when this policy was implemented as, earlier in the pandemic, the same Transport Canada requirement was in place but the policy was not.

[20] Mr. Basaraba submits that Transport Canada’s mask exemption rule was in force for almost 20 months before the incident and argues that WestJet has not provided any evidence that it required its Mask Exemption Form rather than a medical note during that time. Even though WestJet indicates that this information was on its website in March and April 2022, Mr. Basaraba submits that it is unclear whether WestJet means that this information was only available in March and April 2022 or was posted before and removed later. Mr. Basaraba suggests that WestJet left that vague because admitting that it operated for many months under an identically-worded Transport Canada mask requirement without implementing its policy would undermine its argument on undue hardship. Mr. Basaraba submits that WestJet cannot demonstrate that it always required the Mask Exemption Form because that was not its interpretation throughout, as supported by his statement that WestJet accepted his medical note on earlier flights during the pandemic.

Analysis and determination

[21] The Agency is satisfied that WestJet adopted its policy based on an honest and good faith belief that it was necessary in order to provide transportation services in a manner that complied with the Interim Orders, and followed the guidance material issued by Transport Canada, to ensure the safety of all passengers. Interim Order 58 was in effect at the time of the incident and WestJet was obliged to follow it, and the Agency finds that WestJet’s use of the guidance provided by the safety regulator was entirely reasonable in the circumstances.

Step 3: Undue hardship

WestJet’s position

[22] WestJet states that it is undisputed that Mr. Basaraba took no steps prior to his arrival at the airport to comply with the requirements for travelling without a mask or to provide any advance notice. WestJet refutes Mr. Basaraba’s submission that its refusal to transport him was because he did not make his mask exemption request 14 days prior to travel. WestJet maintains that, as indicated in the incident reports and witness statements submitted during Part 1, Mr. Basaraba was refused because his medical note did not constitute sufficient documentation to ensure compliance with Interim Order 58. WestJet submits that it had an obligation to the other passengers to ensure that Mr. Basaraba’s medical note was valid and sufficient in order to avoid putting them at a potentially increased risk of contracting COVID-19 and to ensure that he was fit to travel with a mask given his health issues.

[23] The only documentation presented by Mr. Basaraba on the day of travel was his medical note. WestJet points out that the medical note was dated more than a year prior to Mr. Basaraba’s travel and was not compliant with Form 26-0012E as it did not include Mr. Basaraba’s date of birth, the physician’s licence number, any formal certification that Mr. Basaraba’s condition is not related to COVID-19 or any other infectious condition and any other formal certification or declaration that the contents of the note were true and accurate. WestJet states that there is also no evidence that Mr. Basaraba was in possession of a negative COVID-19 test that could have reassured WestJet that his inability to wear a mask would not present a risk to the other passengers. Further, as indicated in the Part 1 Decision, at some point, Mr. Basaraba agreed to wear a mask, but the captain noted that Mr. Basaraba’s “breathing was quite laboured”, was concerned about Mr. Basaraba’s health being affected by wearing a mask, and did not permit him to travel on the flight.

[24] WestJet adds that, while Interim Order 58 does not provide a specific definition for “medical certificate”, it requires that the medical certificate “certify” that the passenger is unable to wear a mask for a medical reason. WestJet submits that a note from a physician that does not contain such a “certification” is insufficient to meet this requirement, and that Mr. Basaraba’s medical note did not meet this criterion.

[25] WestJet states that, in the absence of a valid medical certificate, it could not allow Mr. Basaraba to travel without a mask without violating Interim Order 58. Such a violation was subject to an administrative monetary penalty up to CAD 25,000 and could have placed other passengers at risk of serious illness.

[26] WestJet refers to McAllister, in which the Agency found that there was a rational connection between Air Transat’s policy not to allow persons with disabilities to sit in the emergency exit row and the provision of transportation services. Air Transat’s policy was based on the CARs and Transport Canada’s Advisory Circular on Passenger Seating Requirements and Accessible Air Transportation. The Agency found that requiring Air Transat to change its policy to permit all persons to sit in the emergency exit row, regardless of capability, would cause Air Transat to be in breach of regulatory safety requirements and would thereby cause undue hardship. Similarly here, WestJet submits that, as compliance with the mask requirement sections of Interim Order 58 was mandatory, changing its policy to accept Mr. Basaraba’s medical note would have caused WestJet to be in breach of regulatory requirements, thereby creating undue hardship.

[27] WestJet adds that transporting Mr. Basaraba without a mask and without proof of a negative COVID-19 test would have constituted undue hardship because of the risk for administrative monetary penalties and also to the health and safety of other passengers during a worldwide pandemic.

[28] WestJet submits that Mr. Basaraba’s unsupported claims that he had previously travelled with his medical note and that the Canadian Air Transport Security Authority (CATSA) considered the note to be sufficient cannot be considered by the Agency. If either CATSA or any other air carrier decided to allow Mr. Basaraba to travel with that medical note, they exposed themselves to potential administrative monetary penalties.

Mr. Basaraba’s position

[29] Mr. Basaraba submits that accepting his medical note was a reasonable option and therefore did not amount to undue hardship. Mr. Basaraba submits that WestJet did not support its argument that a medical note is not a “medical certificate” for the purposes of the Interim Order, or that Transport Canada ever fined anyone for accepting a medical note for a mask exemption while the Interim Orders were in place. Mr. Basaraba adds that the medical note had all the hallmarks of a normal medical note, including the contact information of the physician and their signature at the bottom, and argues that any reasonable person would take this as the physician vouching for the statement.

[30] Mr. Basaraba states that the information from Form 26-0012E missing in his medical note was his date of birth and the physician’s licence number. He submits that the only rational purpose for his date of birth would be to confirm his identity, but there is no indication that his identity was in question. Mr. Basaraba adds that there is no indication that WestJet’s staff doubted that the physician who signed his medical note was a qualified and licensed medical practitioner, which is the only reason his licence number would have been required. In any event, if they had doubts, they could have looked up the physician on the Alberta College of Physicians and Surgeons’ website or called the physician’s office at the telephone number from the medical note.

[31] Mr. Basaraba submits that, on the one hand, WestJet refers to Form 26-0012E as a strict list of requirements and, on the other, does not explain why its Mask Exemption Form requests that persons with a disability provide more personal information than Form 26‑0012E, including an email address, phone number, the medical condition that results in the person being unable to wear a mask, and the WestJet Rewards ID number. Mr. Basaraba states that WestJet did not justify collecting this information as a precondition to accommodating medical exemptions.

[32] Mr. Basaraba submits that WestJet’s assertion of undue hardship is also undermined by his evidence that CATSA accepted his medical note. Under Interim Order 58, the security screening authority was also required to ensure that passengers wore masks while passing through the security checkpoint, subject to an identically-worded medical exemption.

Analysis and determination

[33] The Agency recognizes that Interim Order 58 specifically requires the medical certificate to “certify” that the passenger is unable to wear a mask for a medical reason. Mr. Basaraba’s medical note did not contain the necessary certification and accepting the medical note would have put WestJet in breach of regulatory requirements, thereby creating undue hardship.

[34] Furthermore, Form 26-0012E was issued by Transport Canada as guidance for carriers. Although Mr. Basaraba’s medical note contained some of the information required in Interim Order 58 and in the guidance material, the Agency finds that it did not contain certain essential elements. In particular, the medical note did not address whether Mr. Basaraba’s medical condition is related to COVID-19 or some other infectious condition, which the Agency finds was a reasonable and essential element given that Mr. Basaraba was presenting with laboured breathing and the carrier has the responsibility under the CARs to protect the other passengers on board a flight and to refuse to transport passengers that could pose a risk for the safety of all passengers and flight crew, especially during the COVID-19 pandemic. Accordingly, although Form 26‑0012E was not a mandatory form, it was reasonable for WestJet to rely on Transport Canada’s guidance, especially as it was necessary to address the risk to other passengers from a person travelling unmasked.

[35] Passengers are responsible for ensuring that they meet all documentary requirements to travel. WestJet communicated the requirements about mask exemptions to passengers before travel via its website, and although Mr. Basaraba travelled at the last minute, this did not relieve him of his responsibility to determine his documentary requirements to travel at that time.

[36] Even though Mr. Basaraba did not contact WestJet about the mask exemption requirements in advance of travel, the Agency finds that WestJet made every reasonable effort, as required under the Accessible Transportation for Persons with Disabilities Regulations, to accommodate Mr. Basaraba on the date of travel. WestJet permitted him to go through the gate and onto the aircraft and took the time to look at his medical note, discuss it with him and contact the Flight Standards division (management pilots who can be consulted if needed) to obtain guidance.

[37] When the insufficiency of a medical note arises in advance of travel, the Agency expects the carrier’s medical desk to request the missing information before rejecting a medical note or an accommodation request. However, in this instance, no advance request for accommodation was made and the carrier was required to assess the medical note at the time of boarding. The Agency rejects Mr. Basaraba’s proposal that WestJet should have called the physician to verify the note and obtain the missing information as this would have been too burdensome and unreasonable in the context of time constraints during boarding. As indicated in Decision 61-C-A-2018 (Brighouse v Air Canada), decisions made by the flight crew must be assessed in light of the aviation security context and legal scheme as well as the operational context of the aircraft boarding process, in which a large number of passengers must be seated and their baggage stowed, in a confined space, in a limited time. In this case, the Agency has already found that WestJet made every reasonable effort to accommodate Mr. Basaraba by permitting him to board the aircraft while they reviewed his note, discussed it with him and contacted the Flight Standards division for guidance. The Agency finds that there is no evidence that the flight crew acted unreasonably based on the limited knowledge that they had in a set of circumstances that included the boarding of the aircraft and the imminent departure. Therefore, the Agency finds that WestJet could not remove the barrier without experiencing undue hardship.

[38] Although Mr. Basaraba makes allegations relating to WestJet’s prior practice and whether it complied with mask requirements in existence at that time, the Agency recognizes that the COVID-19 pandemic was an extraordinary event that resulted in rapidly changing circumstances, including the development of new requirements and guidance by the safety regulator as well as the ongoing need for transportation service providers to develop and change policies from time to time to meet those requirements. The Agency must consider the circumstances surrounding this incident that occurred on April 3, 2022, including the federal requirements and guidance in place at that time and the carrier’s policies adopted to comply with them. Whether the carrier’s policies and procedures met requirements at any other point in the past is not an issue in this proceeding and even if it were shown that the carrier did not meet federal requirements at some point in the past, it would certainly not justify ongoing non-compliance, as Mr. Basaraba seems to suggest. Non-compliance, as noted earlier, was at the risk of a significant federal enforcement action. In the same vein, whether other carriers or CATSA were in compliance with Interim Order 58 and Transport Canada’s guidance is not relevant to this application against WestJet. Errors or non‑compliance on the part of other parties, even if they did occur, are not justification for avoiding compliance with requirements of the aviation safety regulator.

Conclusion

[39] The Agency finds that WestJet could not remove the barrier without experiencing undue hardship such that the barrier is not undue. The Agency therefore dismisses the application.

Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	169.5; 172(1); 172(2)
British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union [1999] 3 SCR 3	54
British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) [1999] 3 SCR 868	20
Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, 5	31; 32; 34
Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, 58	18(1)(c); 19; 21; 29(1)(c)
Canadian Aviation Regulations	602.46
Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244	32(4)
Advisory Circular 700-014	All