Decision No. 19-AT-A-2013

INTRODUCTION

[1] Michel Provencher filed an application, on behalf of his daughter, 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 with respect to Air Canada’s refusal to transport his daughter without prior medical approval from Air Canada’s Meda Desk.

ISSUE

[2] Does the following Air Canada policy constitute an undue obstacle to the mobility of Mr. Provencher’s daughter?

Requiring a person who has epilepsy, and who requires accommodation to meet their disability‑related needs, to provide medical documentation signed by a physician or other health care practitioner by way of Air Canada’s prescribed form or otherwise and whatever other documentation it may require to assess the person’s fitness to travel.

THE LAW

[3] The Agency’s legislative mandate with respect to persons with disabilities is found in Part V of the CTA, 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. When adjudicating an application, 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 a person was not provided with appropriate accommodation to address their disability-related needs. An obstacle is a rule, a policy, a practice, a 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 will order corrective measures necessary to remove the undue obstacle.

FACTS, EVIDENCE AND SUBMISSIONS

[4] Mr. Provencher states that his daughter frequently travels by air. He adds that his daughter has refractory epilepsy and has a medical certificate signed by her pediatric neurologist, Dr. Lionel Carmant, which requests airlines with which his daughter travels to seat her adjacent to her parents and/or her attendant.

[5] Mr. Provencher indicates that on December 20, 2011, he booked a holiday package online with Air Canada Vacations for a trip to Holguin, Cuba. The flight section of the package was with Air Canada and the flight was scheduled for departure two days later, i.e., on December 22, 2011. Mr. Provencher states that after making the reservation, he contacted Air Canada to request adjacent seats.

[6] Mr. Provencher maintains that Air Canada refused to honor the medical certificate from Dr. Carmant and that Air Canada informed him that his daughter had to obtain a medical certificate completed and signed by a physician attesting her ability to travel. That medical certificate then had to be reviewed by Air Canada’s medical team in Vancouver.

[7] Mr. Provencher submits that Air Canada indicated that the medical certificate that it requires is specifically for epilepsy or respiratory problems. Mr. Provencher is of the opinion that this approach discriminates against persons who have epilepsy.

[8] According to Mr. Provencher, he expressed his concerns to Air Canada about the requirement to obtain a medical certificate 24 hours prior to departure. However, he was able to obtain one from his daughter’s neurologist, Dr. Sophie Gagnon, during the evening of December 20, 2011.

[9] On December 21, 2011, Mr. Provencher’s daughter received medical clearance from Air Canada to travel.

ANALYSIS AND FINDINGS

Disability determination

[10] The Agency requested that Mr. Provencher file the medical certificate referred to in the application, which he indicated was from Dr. Carmant, in support of a need for adjacent seating. Mr. Provencher did not submit the referenced medical certificate signed by Dr. Carmant. Instead, Mr. Provencher submitted a medical certificate dated December 20, 2011, signed by his daughter’s neurologist, Dr. Sophie Gagnon. The medical certificate states that Mr. Provencher’s daughter has infantile epilepsy (Doose Syndrome), that she is fit to travel by air and that she requires seating adjacent to her parents. However, it does not explain the severity of her condition.

[11] The Agency accepts that a person who has epilepsy may be a person with a disability for the purposes of the CTA, depending on the specific facts of a given case. In this case, the Agency is of the opinion that further evidence regarding Mr. Provencher’s daughter’s health condition would be required to enable the Agency to make a determination as to whether she is a person with a disability for the purpose of applying the accessibility provisions of the CTA. In light of the distinct nature of this case, the Agency’s decision as to whether it will seek additional information or expert evidence in this respect will be dictated by its conclusion as to whether Mr. Provencher’s daughter encountered an obstacle to her mobility when she travelled with Air Canada.

Obstacle determination

[12] The Agency views an obstacle in the federal transportation network as being a rule, a policy, a practice, a physical barrier, etc. which is either:

• direct, i.e., applies to a person with a disability; or
• indirect, i.e., while the same for everyone, has the result of withholding a benefit from a person with a disability; and
• denies a person with a disability equal access to services that are available to others such that accommodation is required from the service provider.

[13] The Agency has the power to investigate and eliminate undue obstacles to the mobility of persons with disabilities, including instances where an incident has not yet occurred but the removal of a potential obstacle could eliminate its future occurrence.

[14] 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.

[15] It is the applicant’s responsibility to provide sufficiently persuasive evidence to establish their need for accommodation and to prove that this need was not met. The standard of evidence that applies to this burden of proof is the balance of probabilities.

This case

[16] Mr. Provencher alleges that his daughter was subjected to differential treatment due to her disability. He states that requiring a traveller to obtain a medical certificate 24 hours prior to travel places the traveller in an impossible situation. He adds that his daughter’s medical certificate signed by Dr. Carmant requesting accommodation in the form of adjacent seats was proof of her ability to travel by air.

[17] Air carriers are responsible for the safety of their passengers and crew, and the Agency has long recognized that insofar as carriers must provide additional services to meet the needs of persons with disabilities, they are entitled to information, such as that required from persons’ physicians. Moreover, the Agency recognizes that carriers need information from persons’ physicians to assess their fitness to travel and to determine how best to meet their disability-related needs.

[18] Mr. Provencher states that, consistent with the medical certificate signed by Dr. Carmant, he requested adjacent seats. Mr. Provencher states that in light of this request for accommodation due to his daughter’s epilepsy, Air Canada requested medical information from a treating physician, to ensure that his daughter was medically fit to travel. Mr. Provencher also states that Air Canada advised him that an emergency landing costs the carrier a lot of money, not to mention the compensation Air Canada may have to provide to passengers affected by such a landing.

[19] As it relates to the opinion expressed by Mr. Provencher that a medical clearance requirement discriminates against persons who have epilepsy, the evidence in this file is to the effect that Air Canada requested medical information to process a request for accommodation for Mr. Provencher’s daughter. The Agency views this submission as equivalent to arguing that the clearance requirement constitutes an undue obstacle. There are many other health conditions in respect of which Air Canada may choose to require the filing of medical information, including documentation from a person’s physician or health practitioner.

[20] The Agency finds it reasonable for carriers to obtain the medical information they require to assess a person’s fitness to travel by way of their own medical assessment form in conjunction with whatever additional information, including documentation from a person’s physician or other health practitioner, that they consider necessary. Such a process is not dissimilar to those used by other entities such as other government bodies and health insurance companies to assess a person’s entitlement to benefits or services. Although disability-related accommodation is not a “benefit” but rather a means to ensure that a person with a disability has equal access to services offered by the transportation service provider that are available to others, the Agency recognizes the overriding need for the carrier to ensure the safety of the individual passenger as well as other passengers and flight crew. Furthermore, the Agency finds that this practice is consistent with policies and procedures that the Agency has long recognized and accepted.

[21] In light of the above, the Agency finds that Mr. Provencher did not demonstrate that it is not reasonable for his daughter to comply with Air Canada’s medical assessment process and that a different process is required. The Agency therefore finds that Mr. Provencher did not provide sufficient evidence to establish, on a prima facie basis, that Air Canada’s policy in question constitutes an obstacle to the mobility of his daughter.

[22] Moreover, the Agency recognizes that it takes time for carriers to assess a person’s fitness to travel and to arrange disability-related services, and is of the opinion that a 48-hour advance notification period, which is consistent with the Air Transportation Regulations, SOR/88-58, as amended, is reasonable. When a request is made less than 48 hours prior to travel, the air carrier is required to make a reasonable effort to accommodate the person with a disability.

[23] In this case, Mr. Provencher contacted Air Canada on December 20, 2011 to request adjacent seating as accommodation for his daughter on a flight scheduled for December 22. Although the request was made less than 48 hours prior to travel, on December 21, Air Canada provided medical clearance for Mr. Provencher’s daughter to travel as planned.

CONCLUSION

[24] The Agency finds that Mr. Provencher did not provide sufficient evidence to establish, on a prima facie basis, that Air Canada’s policy to require a person who has epilepsy, and who requires accommodation to meet their disability-related needs, to provide medical documentation signed by a physician or other health care practitioner by way of Air Canada’s prescribed form or otherwise and whatever other documentation it may require, constituted an undue obstacle to the mobility of his daughter. As a result, the Agency will not address whether Mr. Provencher’s daughter, for the purposes of Part V of the CTA, is a person with a disability due to her epilepsy.

[25] The Agency dismisses the application.