Decision No. 134-AT-A-2013

INTRODUCTION

[1] Steven Rosenbaum, on behalf of his two sons, 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 and Jazz Aviation LP, as represented by its general partner, Aviation General Partner Inc. carrying on business as Air Canada Jazz, Jazz and Jazz Air^{Note 1} (Air Canada Jazz) concerning their policies relating to accommodation for persons whose allergies to peanut, nut and sesame seed result in a disability.

[2] The Agency stayed Mr. Rosenbaum’s application pending the adjudication of other peanut and nut allergy cases and the issuance of Decision No. 228-AT-A-2011 (Allergy Decision), which sets out the Agency’s final determination of the accommodation measures to be provided by Air Canada to persons whose allergy to peanuts and/or nuts results in a disability for the purposes of Part V of the CTA.

THE LAW

[3] 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 appropriate accommodation to address their disability-related needs. An obstacle is a rule, policy, practice, physical barrier, etc. that has the effect of denying equal access to services offered by the transportation service provider that are available to others; and,
3. the obstacle is “undue”. An obstacle is undue unless the transportation service provider demonstrates that there are constraints that make the removal of the obstacle either unreasonable, impracticable or impossible, such that to provide any form of accommodation would cause the transportation service provider undue hardship. If the obstacle is found to be undue, the Agency may order corrective measures necessary to remove the undue obstacle.

BACKGROUND

[4] Following the issuance of the Allergy Decision, the Agency advised Mr. Rosenbaum that, if he believed that the accommodation measures ordered by the Agency in the Allergy Decision did not address his children’s disability-related needs, he was required to establish through evidence, including medical evidence, that a different form of accommodation is needed for his children.

[5] Mr. Rosenbaum was also required to advise the Agency whether he wanted the Agency to adjudicate the part of his application regarding allergies to sesame seeds as this had not been addressed in the Allergy Decision.

[6] In response, Mr. Rosenbaum filed evidence with respect to both inhalational and ingestional allergies to peanuts, nuts and sesame seeds.

[7] In Decision No. LET-AT-A-15-2013 (Show Cause Decision), the Agency made the following two final determinations.

1. 1) Disability – inhalational allergies

As the evidence regarding disability as it relates to inhalational allergies that was filed by Mr. Rosenbaum was not specific to his children and only addressed a theoretical risk, the Agency found that Mr. Rosenbaum did not demonstrate that his sons are persons with a disability as a result of inhalational allergies to peanuts, nuts and sesame seeds. Accordingly, the Agency dismissed Mr. Rosenbaum’s application as it relates to inhalational allergens.

1. 2) Different form of accommodation sought – ingestional allergies to peanuts and nuts

With respect to Mr. Rosenbaum’s remedies sought as they relate to ingestional allergies to peanuts and nuts, the Agency found that Mr. Rosenbaum did not demonstrate that his sons require a different form of accommodation than that set out in the Allergy Decision. Accordingly, the Agency found that the accommodation in respect of ingestional allergies to peanuts and nuts that it ordered in the Allergy Decision is equally applicable to Mr. Rosenbaum’s sons.

[8] The Agency also made the following three preliminary findings in the Show Cause Decision, which will be addressed in this Decision:

Disability – ingestional allergies

1. 1) The Agency found, on a preliminary basis, that Mr. Rosenbaum’s sons are persons with a disability for the purposes of Part V of the CTA as a result of their ingestional allergies to peanuts, nuts and, in one son’s case, sesame seeds.

Obstacle/Appropriate accommodation

1. 2) Air Canada Jazz – peanuts and nuts

The Agency found, on a preliminary basis, that the accommodation measures set out in the Allergy Decision equally apply to Air Canada Jazz such that they represent, in respect of the carrier’s flights, the appropriate accommodation for persons with disabilities as a result of their allergies to peanuts and nuts.

1. 3) Air Canada and Air Canada Jazz – sesame seed and other food allergies

The Agency found, on a preliminary basis, that the appropriate accommodation for persons with allergies to sesame seeds and all other foods except peanuts and nuts, should be the reseating of persons with allergies, upon request and when possible, having regard to safety considerations, in combination with precautions that persons with severe allergies would be expected to take in their daily lives, such as: bringing their own food, hand sanitizer(s), and disinfectant wipes to wipe down surrounding surfaces; wearing a mask; and carrying Epi-pens.

[9] The Agency provided Air Canada and Air Canada Jazz with an opportunity to address the foregoing preliminary findings and file comments regarding the undueness relating to these preliminary findings. Mr. Rosenbaum was provided with an opportunity to file a reply in response to the carriers’ responses to the preliminary findings.

[10] In this Decision, the Agency will finalize its preliminary findings. These will be based on the preliminary findings set out in the Show Cause Decision and on the submissions made by the parties in this case.

PRELIMINARY MATTER

[11] In the Show Cause Decision, each party was directed to limit their submissions to the preliminary findings identified above in respect of which they were entitled to respond. Although Mr. Rosenbaum was directed to limit his reply to Air Canada and Air Canada Jazz’s responses to the preliminary findings, he also provided unrelated comments. As a result, any information or arguments filed regarding matters other than the carriers’ responses to the preliminary findings are not be considered by the Agency in this Decision.

[12] In addition, Air Canada and Air Canada Jazz filed a response to Mr. Rosenbaum’s reply. As the Show Cause Decision did not provide an opportunity for the carriers to comment on Mr. Rosenbaum’s reply, the carriers’ response is not considered by the Agency in this Decision.

PRELIMINARY FINDING 1 – ARE MR. ROSENBAUM’S SONS PERSONS WITH DISABILITIES AS A RESULT OF THEIR INGESTIONAL ALLERGIES TO PEANUTS, NUTS AND, IN ONE SON’S CASE, SESAME SEEDS?

Show Cause Decision

[13] The Agency expressed its preliminary opinion that Mr. Rosenbaum’s sons are persons with a disability for the purposes of Part V of the CTA as a result of their ingestional allergies to peanuts, nuts and, in one son’s case, sesame seeds.

[14] The medical information for Mr. Rosenbaum’s sons demonstrates that they are at risk of experiencing a serious reaction if exposed to peanuts and nuts and, in one son’s case, sesame seeds.

[15] As a result of their allergies and the risk of allergens in the aircraft cabin which could potentially trigger an allergic reaction, Mr. Rosenbaum’s sons must take measures such as avoiding the foods and having access to their epinephrine auto-injectors to ensure that they are able to travel safely.

Positions of the parties

[16] Air Canada and Air Canada Jazz provided no comments regarding the Agency’s preliminary finding on disability in response to the Show Cause Decision.

Analysis and final finding

[17] As Air Canada and Air Canada Jazz chose not to provide a response to the Show Cause Decision regarding the disability status of Mr. Rosenbaum’s sons vis-a-vis their ingestional allergies to peanuts, nuts and, in one son’s case, sesame seeds, it is unnecessary for the Agency to reconsider its preliminary finding in respect of this matter.

[18] Accordingly, the Agency finds, on a final basis, that Mr. Rosenbaum’s sons are persons with a disability for the purposes of Part V of the CTA as a result of their ingestional allergies to peanuts, nuts and, in one son’s case, sesame seeds.

PRELIMINARY FINDING 2 – DO THE ACCOMMODATION MEASURES TO ADDRESS PEANUT AND NUT ALLERGIES SET OUT IN THE ALLERGY DECISION EQUALLY APPLY TO AIR CANADA JAZZ?

Show Cause Decision

[19] In the Show Cause Decision, the Agency stated that, although Air Canada Jazz was not a respondent in the previous peanut and nut allergy cases adjudicated by the Agency, the Agency was of the opinion that the corrective measures set out in the Allergy Decision would accommodate Mr. Rosenbaum’s children’s disability-related needs as they relate to ingestional allergies to peanuts and nuts. The Agency therefore found, on a preliminary basis, that the following accommodation measures set out in the Allergy Decision equally apply to Air Canada Jazz such that they represent, in respect of the carrier’s flights, the appropriate accommodation for persons with disabilities as a result of their allergies to peanuts and nuts.

1. when at least 48-hours advance notice is provided to it by persons with disabilities due to their allergy to peanuts and/or nuts, Air Canada will create a buffer zone as follows:
   • for international wide-body aircraft executive class seating, the buffer zone will consist of the pod-seat occupied by the person with a disability due to their allergy to peanuts and/or nuts;
   • for North American business class seating, the buffer zone will consist of the bank of seats in which the person with a disability due to their allergy to peanuts and/or nuts is seated;
   • for economy class seating, the buffer zone will consist of the bank of seats in which the person with a disability due to their allergy to peanuts and/or nuts 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 and/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. to only serve within the buffer zone snacks and meals which do not contain peanuts and/or nuts as a visible or known component, but which may contain traces of peanuts and/or nuts as a result of cross-contamination.
3. to provide a briefing to passengers within the buffer zone that they must not eat peanuts and/or nuts, or foods containing peanuts and/or nuts, and will only be served snacks and meals which do not contain peanuts and/or nuts.
4. Air Canada personnel are 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 and/or nuts to a seat where the buffer zone can be established.

[20] In terms of the effectiveness of the buffer zones for Air Canada Jazz’s aircraft, the Agency expressed the opinion that there is nothing inherently different in Air Canada Jazz’s cabin configurations that would support a different finding in respect of the size of buffer zones in order to effectively address persons’ peanut and nut allergies.

Positions of the parties

[21] Air Canada Jazz advises that, although the Allergy Decision did not apply to Air Canada Jazz, as it operates flights on behalf of Air Canada pursuant to a capacity purchase agreement, the procedures regarding the accommodation of persons with disabilities as a result of their allergies to peanuts and nuts were implemented on board all Air Canada Jazz flights following the issuance of the Allergy Decision.

[22] Mr. Rosenbaum did not provide comments on this preliminary finding.

Analysis and final finding

[23] As Air Canada Jazz chose to implement the accommodation measures that the Agency ordered Air Canada to adopt and as Mr. Rosenbaum did not comment on the response of Air Canada Jazz to the Show Cause Decision, it is unnecessary for the Agency to reconsider its preliminary finding regarding the accommodation measures for persons with disabilities as a result of their allergies to peanuts and/or nuts on Air Canada Jazz’s flights.

[24] Accordingly, the Agency finds, on a final basis, that the accommodation measures set out in the Allergy Decision equally apply to Air Canada Jazz such that they represent appropriate accommodation for Mr. Rosenbaum’s sons, and for persons with disabilities as a result of their allergies to peanuts and nuts. The implementation of the appropriate accommodation measures by Air Canada Jazz removes the undue obstacle that existed at the time Mr. Rosenbaum filed his application.

PRELIMINARY FINDING 3 – WHAT ARE THE ACCOMMODATION MEASURES REQUIRED TO MEET THE DISABILITY-RELATED NEEDS OF PERSONS WHO ARE ALLERGIC TO SESAME SEEDS AND ALL OTHER FOODS EXCEPT PEANUTS AND NUTS?

Show Cause Decision

[25] As part of the Agency’s adjudication of earlier applications against Air Canada regarding peanut and nut allergies, the Agency obtained evidence on allergies and retained Dr. Gordon Sussman, a medical doctor with a specialty in clinical immunology and allergies, and a Professor in the Department of Medicine with the University of Toronto, as an expert on allergies.

[26] Dr. Sussman provided the Agency with the following report:

• Report to the Canadian Transportation Agency, November 8, 2007, which addresses, among other matters, the nature of allergies and their impact on persons, means of managing exposure and reactions to allergens, and comments on the effectiveness of measures of accommodation in the aircraft cabin.

[27] In the Show Cause Decision, the Agency expressed the opinion that it is neither practical nor possible to ban all substances to which persons may be allergic in a mass transportation system, nor is it feasible to eliminate all risks. Dr. Sussman also expressed the opinion in his report that an allergen-free environment is impossible to implement.

[28] The Agency considered Dr. Sussman’s evidence that peanuts and tree nuts (which include pecans, Brazil nuts and hazelnuts) account for 94 percent of fatal anaphylaxis cases and that peanut allergy is one of the most recognized causes of anaphylaxis. The Agency noted that society has reacted to this and the increasing prevalence and severity of peanut and nut allergies through measures such as policies adopted by schools; airline policies to no longer serve peanuts; and the identification by the food industry of products that contain or do not contain peanuts and/or nuts.

[29] The Agency further noted that such measures reflect the prevalence and severity of peanut and nut allergies. However, the Agency also reflected the fact that there are innumerable food allergies as evidenced by previous complaints regarding allergies to various foods, including apples, fish and soy filed with the Agency, and that Dr. Sussman noted in his report that any food can cause an anaphylactic reaction.

[30] The Agency therefore concluded that given that it is conceivable that there are allergies to virtually all foods, it is impracticable for carriers to provide buffer zones to address all the various food allergies that passengers may have on any given flight.

[31] The Agency stated that, in determining what constitutes appropriate accommodation, the principal test is that of effectiveness and that, although accommodation measures may be necessary, they must be effective without creating a false sense of security. The Agency explained that even the best measures should never be seen as providing an allergen-safe environment as there is always a risk of exposure when a person with an allergy is outside their own environment due to the number of uncontrollable variables. The Agency expressed the opinion that, the more severe an allergy, the more the person needs to be alert and aware of their surrounding environment as the only sure way of addressing hidden risks is by way of proactive measures taken by the person with the allergy.

[32] The Agency therefore concluded that the primary onus is on the person to take the precautions and mitigation measures that they are presumed to take in their daily lives, such as: washing their hands regularly; avoiding placing their hands in or near their mouths; wiping down surfaces with disinfectant wipes where necessary; bringing their own food; wearing a medical-alert bracelet; wearing a mask; keeping medication on hand in case of an emergency; etc.

[33] Accordingly, in the Show Cause Decision, the Agency found, on a preliminary basis, that the appropriate accommodation for persons with allergies to foods other than peanuts and nuts, should be the reseating of persons with allergies, upon request and when possible having regard to safety considerations, in combination with precautions that persons with severe allergies would be expected to take in their daily lives, such as: bringing their own food, hand sanitizer(s), and disinfectant wipes to wipe down surrounding surfaces; wearing a mask; and carrying Epi‑pens.

Positions of the parties

[34] Air Canada and Air Canada Jazz agree that the appropriate accommodation is to reseat a passenger with allergies to foods other than peanuts and nuts away from the allergen when the passenger provides sufficient support to demonstrate that they have such an allergy.

[35] In situations where the passenger is also allergic to peanuts and/or nuts, such as in the case of one of Mr. Rosenbaum’s sons, Air Canada and Air Canada Jazz state that it is important that the person with a disability as a result of their allergy to peanuts and/or nuts remain within the buffer zone. Air Canada and Air Canada Jazz therefore submit that they would reseat the passenger eating sesame seeds, or any other food allergen in question, outside the buffer zone to avoid potential accidental ingestion by the person with a disability as a result of their food allergy.

[36] Mr. Rosenbaum is of the opinion that a buffer zone should be established for sesame seeds as well as peanuts and nuts because “sesame seeds and in particular sesame oil create the same residue that each of the allergists identify as the highest risk of transmission” and Air Canada’s menu includes “sesame snaps” as part of its onboard complimentary snacks. 

Analysis and final finding

[37] The Agency notes Mr. Rosenbaum’s concerns regarding sesame seed allergens and his request that a buffer zone be implemented for sesame seeds along with peanuts and nuts. Although ideally a buffer zone would be established to address all allergies, as set out in the Show Cause Decision, it is impracticable for carriers to provide a buffer zone to address all the various food allergies that passengers may have on any given flight.

[38] Moreover, as reflected in the Show Cause Decision, the more severe the allergy, the more the person needs to be alert and aware of their surrounding environment as the only sure way of addressing hidden risks of accidental exposure. As such, the Agency concluded that the primary onus is on the person to take the precautions and mitigation measures that they are presumed to take in their daily lives.

[39] In terms of the condition set by the carriers for providing accommodation to persons with allergies to sesame seeds and other foods, as reflected in the Show Cause Decision, the Agency is of the opinion that it is reasonable that the carriers would want persons who request reseating to demonstrate that they are persons with disabilities due to their allergy and, as such, require accommodation to meet their disability-related needs. In such instances, the Agency is of the opinion that sufficient support could be either a doctor’s note or an Epi-pen. In addition, given the nature of the appropriate accommodation to be provided to a person with a disability due to food allergies other than peanuts and nuts (i.e., to reseat the person, if requested once on board and when possible), the Agency is of the opinion that it is not necessary for advance notice to be provided. More specifically, the need for accommodation will only arise when the person with the allergy becomes aware of the allergen once they are seated on board the aircraft. Air Canada and Air Canada Jazz are therefore expected to provide the appropriate accommodation when sufficient support for it is provided by a passenger with an allergy to sesame seeds or other foods except peanuts and/or nuts at the time the request is made.

[40] In situations where a passenger is allergic to peanuts and/or nuts and another food allergen and a buffer zone has been established as a result of their allergy to peanuts and/or nuts, it is clear that the passenger should not be removed from the buffer zone with the result that they would no longer receive the accommodation measures set out in the Allergy Decision. Instead, as Air Canada and Air Canada Jazz note, it would be appropriate to reseat the passenger consuming the other food allergen outside the buffer zone and away from the person with a disability due to their allergy to peanuts and/or nuts and other food allergen(s).

[41] Consequently, the Agency finds, on a final basis, that the appropriate accommodation for persons with allergies to sesame seeds, as well as to all other foods except peanuts and nuts, is the reseating of these passengers, upon request and when possible, having regard to safety considerations, in combination with precautions that persons with severe allergies would be expected to take in their daily lives, such as: bringing their food, using disinfectant wipes to wipe down surrounding surfaces, wearing a mask, and carrying hand sanitizer(s) and Epi-pens. The carriers’ acceptance to implement the appropriate accommodation will remove the undue obstacle that exists as a result of the carriers’ lack of a policy to provide appropriate accommodation to persons with a disability due to their allergy to sesame seeds or other foods except peanuts and/or nuts.

CONCLUSION

[42]  In light of the foregoing, the Agency makes the following final determinations:

With respect to the preliminary finding on disability – ingestional allergies

The Agency finds that Mr. Rosenbaum’s sons are persons with a disability for the purposes of Part V of the CTA as a result of their ingestional allergies to peanuts, nuts and, in one son’s case, sesame seeds.

With respect to the preliminary finding on accommodation measures to address peanut and nut allergies on Air Canada Jazz flights

The Agency finds that the accommodation measures set out in the Allergy Decision equally apply to Air Canada Jazz such that they represent appropriate accommodation for Mr. Rosenbaum’s sons, and for persons with disabilities as a result of their allergies to peanuts and nuts. The implementation of the appropriate accommodation by Air Canada Jazz removes the undue obstacle that existed at the time Mr. Rosenbaum filed his application.

With respect to the preliminary finding on accommodation measures required to meet the disability-related needs of persons who are allergic to sesame seeds and to all other foods except peanuts and nuts on Air Canada and Air Canada Jazz flights

The Agency finds that the appropriate accommodation for persons with allergies to foods other than peanuts and nuts, is the reseating of persons with allergies, upon request and when possible having regard to safety considerations, in combination with precautions that persons with severe allergies would be expected to take in their daily lives, such as: bringing their own food, hand sanitizer(s), and disinfectant wipes to wipe down surrounding surfaces; wearing a mask; and carrying Epi-pens. The carriers’ acceptance to implement the appropriate accommodation will remove the undue obstacle that exists as a result of the carriers’ lack of a policy to provide appropriate accommodation to persons with a disability due to their allergy to sesame seeds or other foods except peanuts and/or nuts.

ORDER

[43] Considering that Air Canada Jazz implemented the appropriate accommodation measures set out in the Allergy Decision concerning ingestional allergies to peanuts and nuts, for compliance purposes, the Agency will only order Air Canada Jazz to continue to provide the following appropriate accommodation, when at least 48-hours advance notice is provided to it by persons with disabilities due to their allergy to peanuts and/or nuts and to make best efforts when less notice is provided:

1. to create a buffer zone as follows:
   • in any class of service where the seats are relatively narrow and have low seatbacks, the buffer zone will consist of the bank of seats in which the person with a disability due to their allergy to peanuts and/or nuts 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 and/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);
   • in any class of service where the seatbacks are higher and wider than those in its economy class seating, the buffer zone will consist of the bank of seats in which the person with a disability due to their allergy to peanuts and/or nuts is seated.
2. to only serve within the buffer zone snacks and meals which do not contain peanuts and/or nuts as visible or known components, but which may contain traces of peanuts and/or nuts as a result of cross-contamination.
3. to provide a briefing to passengers within the buffer zone that they must not eat peanuts and/or nuts, or foods containing peanuts and/or nuts, and will only be served snacks and meals which do not contain peanuts and/or nuts.
4. Air Canada Jazz personnel are 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 and/or nuts to a seat where the buffer zone can be established.

In addition, the Agency orders Air Canada and Air Canada Jazz, upon satisfying themselves of the need for accommodation, to provide persons with disabilities as a result of their allergies to sesame seeds and to all other foods except peanuts and nuts with a seating separation from the source of the allergen(s) upon request and when possible having regard to safety considerations, in combination with precautions that person with severe allergies would be expected to take in their daily lives, such as: bringing their own food, hand sanitizer(s), and disinfectant wipes to wipe down the surrounding surfaces; wearing a mask; and carrying Epi-pens.