Decision No. 164-AT-A-2010
May 5, 2010
APPLICATION by Air Canada, pursuant to section 32 of the Canada Transportation Act, S.C., 1996, c. 10, as amended.
File No. U3570/13
BACKGROUND
[1] In Decision No. 336-AT-A-2008 (Oxygen Decision), the Canadian Transportation Agency (Agency) addressed the issue of persons who require that medical oxygen be available to them when travelling by air. The Agency found that the appropriate accommodation (referred to in the Oxygen Decision as the most appropriate accommodation) for these individuals, when travelling on domestic flights, is to be allowed to use passenger-supplied oxygen, in whatever form is permitted by regulations, i.e., passenger-supplied gaseous oxygen and portable oxygen concentrators (POCs). However, the Agency also found that, insofar as the undue obstacles it had found with Air Canada's carrier-supplied oxygen system were eliminated, it would accept Air Canada's oxygen service as an equally responsive alternative to passenger-supplied gaseous oxygen.
[2] Among the corrective measures ordered to remove the undue obstacles related to Air Canada's oxygen service, Air Canada was required to provide, by June 26, 2009, a continuous oxygen service, i.e., include the provision of oxygen prior to boarding (check-in), during connections and until arrival in the general public area at the final destination, whether it be done through the use of Medipaks or other means. However, in June 2009, Air Canada informed the Agency that it intended to begin accepting passenger-supplied gaseous oxygen such that a continuous oxygen service would not be necessary. Air Canada requested an extension until December 26, 2009 to do so. The Agency granted Air Canada's extension request in Decision No. 411-AT-A-2009 (Revised Decision).
[3] As a result of Air Canada's intent to provide the appropriate accommodation set out in the Oxygen Decision by allowing the use of passenger-supplied gaseous oxygen on its domestic flights, the Revised Decision varied the Oxygen Decision as it related to paragraphs 346 to 354, which pertained to Air Canada's domestic air services.
[4] The Revised Decision also required that until such time as Air Canada accepted the use of passenger-supplied gaseous oxygen on its domestic flights, it must implement an interim measure whereby it refunds passengers for the gaseous oxygen they use between check-in and boarding, landing and baggage delivery and during connections, and until arrival in the general public area at the final destination on wholly domestic itineraries. Air Canada was also required to communicate its interim refund process to all passengers who had to make their own arrangements for a ground supply of oxygen on wholly domestic itineraries.
APPLICATION
[5] In December 2009, Air Canada filed a submission in which it requested a review, under section 32 of the Canada Transportation Act, of certain provisions of the Oxygen Decision and the Revised Decision. Air Canada also sought a rescission or revision of the portion of the Revised Decision which imposed a deadline of December 26, 2009 for it to accept passenger-supplied gaseous oxygen on its domestic flights. The Agency issued Decision No. LET‑AT‑A‑185-2009 in which it granted Air Canada an extension to accept passenger-supplied gaseous oxygen while the Agency reviewed its submission to determine whether there had been a change in the facts or circumstances pertaining to the Revised Decision.
[6] Following its review of Air Canada's submission, the Agency issued Decision No. LET‑AT‑A‑30-2010 in which it required further information and clarifications from Air Canada in order to complete its review as to whether there had been a change in the facts or circumstances pertaining to the Revised Decision. On March 8, 2010, Air Canada filed a submission which provided the information required in Decision No. LET-AT-A-30-2010 and in which it requested that the Agency vary the Oxygen Decision as reflected below.
ISSUE
[7] Has there been a change in facts or circumstances since the issuance of the Oxygen Decision which would warrant the Agency varying the Oxygen Decision, specifically as it relates to paragraphs 327, 349 and 354, as set out below?
ANALYSIS
[8] In its March 8, 2010 submission, Air Canada requested that the Agency rescind the Oxygen Decision by deleting the following conclusions related to appropriate accommodation, continuous service and fees:
[327] As previously noted, the Agency has found that passenger-supplied oxygen, in whatever form is permitted, is the most appropriate accommodation for persons with disabilities who require oxygen to travel by air [...].
[349] Air Canada's oxygen service must be a continuous service, i.e., include the provision of oxygen prior to boarding (check-in), during connections and until arrival in the general public area at the final destination, whether it be done through the use of Medipaks or other means.
[354] Air Canada is required, in respect of domestic tickets purchased thirty (30) days after the date of this Decision, to provide its oxygen service free of charge on board the aircraft, with the exception of fees related to the cost of oxygen itself and any non-reuseable pieces of equipment as set out in paragraph 330. In addition, within one (1) year from the date of this Decision, Air Canada shall provide this service free of charge prior to boarding (check-in), during connections and until arrival in the general public area at the final destination.
Appropriate accommodation
[9] Air Canada submits that from February 9, 2009 to February 10, 2010, there were 430 passenger/segments where POCs were used, representing 41 percent of oxygen users. For the same period, there were 621 passenger/segments where its Medipak service was used, representing 59 percent of oxygen users. Air Canada further submits that in 2008, there were 1697 passenger/segments where its Medipak service was used. Although its computer system could not gather accurate information with respect to POC use for 2008, Air Canada submits that only a minimal number of passengers used POCs during this period.
[10] Air Canada submits that the figures noted above "can be further clarified by the following factors":
It has progressively increased the number of types of POCs that it accepts.
It is often the carrier of choice for medical evacuation agencies as well as various agencies responsible for arranging transportation from remote areas for patients to receive medical care.
[11] Air Canada also filed a statement from ClaimSecure, a company that processes benefits claims for extended health care, dental and drug benefits for various employers and insurance companies. ClaimSecure states that there is a marked increase in the purchase/rental of "personal oxygen concentrators", which Air Canada clarifies are not all portable. The Agency is aware that personal oxygen concentrators must be distinguished from POCs. Personal oxygen concentrators, while including POCs, also include larger oxygen concentrators that are not suitable for air travel. Nonetheless, ClaimSecure states that there is a marked increase in POC rentals which is due, in part, to the fact that people who require medical oxygen when travelling will rent a POC as the preferred method of dispensing oxygen.
[12] Air Canada submits that POC use is growing. It further submits that although the use of gaseous oxygen prevails, it is no longer the appropriate accommodation and POCs are as useful and appropriate a method of accommodation as gaseous oxygen.
[13] In the Oxygen Decision, the Agency reflected evidence heard during the 2007 hearing that POC technology is changing rapidly to meet the needs of persons who require oxygen and that the technology will continue to improve such that it is reasonable to expect that POCs will become the preferred solution for persons who require oxygen.
[14] The Agency acknowledges that there appears to be a significant increase in POC usage by Air Canada passengers requiring medical oxygen supply while travelling by air and that this trend is likely to continue. However, the Agency finds that data provided by Air Canada with respect to the February 2009 to February 2010 period, which indicates that 59 percent of the oxygen used on its domestic passenger/segments was delivered by gaseous oxygen, does not reflect a significant enough change in facts or circumstances to warrant a variance of the Agency's determination of the appropriate accommodation as requested by Air Canada. Consequently, the Agency will not rescind the Oxygen Decision by deleting its conclusion related to appropriate accommodation.
[15] With respect to passenger-supplied gaseous oxygen, Air Canada submitted approximate costs and the time lines required to begin accepting passenger-supplied gaseous oxygen as it proposed to do in June 2009. While the appropriate accommodation continues to be passenger-supplied oxygen, in whatever form is permitted by regulations, the Agency also set out in the Oxygen Decision that it accepts Air Canada's oxygen service as an equally responsive alternative to passenger-supplied gaseous oxygen so long as the related undue obstacles were eliminated. Therefore, Air Canada continues to have the choice of accepting passenger-supplied gaseous oxygen or continuing to provide its oxygen service.
[16] As the Agency has determined that it will not vary the Oxygen Decision by deleting its conclusion related to appropriate accommodation, it will not consider Air Canada's request to vary the Oxygen Decision by deleting paragraphs 349 and 354. The Agency accepted Air Canada's Medipak service, with the undue obstacles removed, as an equally responsive alternative to the appropriate accommodation. Paragraphs 349 and 354 relate to corrective measures that were ordered to remove the undue obstacles with Air Canada's Medipak service.
CONCLUSION
[17] The Agency finds that data provided by Air Canada with respect to the use of POCs does not reflect a significant enough change in facts or circumstances to warrant a variance of the Agency's determination of the appropriate accommodation. Consequently, the Agency will not vary the Oxygen Decision by deleting its conclusion related to appropriate accommodation. As the Agency is not varying its determination of appropriate accommodation, it will not consider Air Canada's request to delete the conclusion related to fees for its oxygen service on board the aircraft nor the conclusion related to the provision of a continuous oxygen service.
[18] Although the Agency will not consider Air Canada's request to delete the conclusion related to the provision of a continuous oxygen service, in light of the fact that there has been only one request for a refund since Air Canada implemented the interim measure where it refunds passengers for the gaseous oxygen they use on the ground, the Agency varies paragraph 349 of Decision No. 336-AT-A-2008 as follows:
[349] Air Canada's oxygen service must be a continuous service, i.e., include the provision of oxygen prior to boarding (check-in), during connections and until arrival in the general public area at the final destination, whether it be done through the use of Medipaks or other means, including a refund to passengers for the gaseous oxygen they use. Should Air Canada continue to choose to provide a refund, it is required to communicate its refund process to all passengers who have to make their own arrangements for a ground supply of oxygen on wholly domestic itineraries.
Members
- Geoffrey C. Hare
- J. Mark MacKeigan
Member(s)
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