Decision No. 206-AT-A-2010

May 19, 2010

May 19, 2010

APPLICATION by Janice Butler, on behalf of Laura Butler, against Air Canada.

File No. U3570/09-23


Introduction

[1] Janice Butler filed an application, on behalf of her daughter Laura Butler, with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) regarding concerns related to Laura's allergy to shellfish and finfish which, for the purposes of this Decision, are referred to, in common terms, as seafood and fish.

Issues

[2] Is Laura a person with a disability? If so, does Air Canada's policy of serving seafood and fish, including the lack of information in advance of travel to identify the flights on which they are being served, constitute an undue obstacle to her mobility?

Background

[3] Laura is allergic to seafood and fish. She travelled from St. John's, Newfoundland and Labrador to Halifax, Nova Scotia, Canada on May 1, 2009 and was scheduled to travel from Halifax to London, United Kingdom on the same day. Due to her concerns that fish would be served on the Halifax to London flight, she rescheduled her flight and travelled from Halifax to London on May 2, 2009.

Positions of the parties

[4] Mrs. Butler submits that Laura has a life-threatening allergy to all seafood and fish. Mrs. Butler adds that Laura has been advised by physicians, on numerous occasions, that she would be placing herself at risk of anaphylaxis if she were to go into an enclosed environment where fish is being cooked.

[5] Mrs. Butler asserts that there is a lack of transparency with respect to Air Canada's meal service, which makes it impossible for individuals with food allergies to make an informed choice about whether they can travel safely. Mrs. Butler is of the opinion that Air Canada must increase its transparency regarding food and develop a protocol to establish a consistent approach for the management of passengers with food allergies. Mrs. Butler suggests that Air Canada should consider providing one flight per week that does not serve a particular food allergen, and that it improve and enhance its training for personnel who may interact with individuals with food allergies.

[6] Mrs. Butler points out that she contacted Air Canada in January 2009 to discuss Laura's allergy and to obtain information regarding the meal service on the flights between St. John's and London. Air Canada was unable to confirm which food would be served.

[7] Mrs. Butler explains that as soon as Laura purchased her ticket, Mrs. Butler contacted Air Canada and requested that an allergy alert be placed on Laura's file. Mrs. Butler further explains that at that time, the Air Canada reservation agent advised her that Laura should confirm what food will be served with the gate agent and reconfirm this information with the flight attendant upon boarding the aircraft.

[8] Air Canada submits that it will attempt to accommodate passengers, on a case by case basis, who advise it in advance of their food allergies. Air Canada notes that, in this case, it was advised in advance of Laura's allergy and a note was placed on her reservation record. Air Canada provided a copy of Laura's personal name record which includes this notation. Mrs. Butler asserts that this brief alert, despite her in-depth inquiries about the food service and her explanation of Laura's allergy, speaks to the inadequacy of Air Canada's communication strategy.

[9] Mrs. Butler points out that Laura followed the advice provided by the reservation agent and encountered no problems on her flight between St. John's and Halifax. She explains, however, that in Halifax, the gate agent told Laura that there would be fish on the flight between Halifax and London and instructed her to ask the flight attendants which fish would be served. While there are differences in Mrs. Butler's and Air Canada's account of the events that occurred on board the aircraft, both parties agree that Air Canada's crew would be eating a meal containing salmon. In light of her concerns about a potential allergic reaction to the fish, which she thought would be cooked on board the aircraft, Laura disembarked from the aircraft. She was then advised by an Air Canada employee that a medical restriction was being placed on her file and that she would need to be seen by a doctor before being permitted to travel on future Air Canada flights.

[10] On the morning of May 2, 2009, Mrs. Butler travelled from St. John's to Halifax by air to assist Laura in making arrangements to travel from Halifax to London. At the Halifax airport, an Air Canada employee assisted Laura by:

  • having the medical restriction removed from her file;
  • speaking with the caterer to determine what meals would be served on the May 2 flight;
  • having the caterer remove the fish option for the crew's meal;
  • marking her bags so that they would be held until she boarded the aircraft; and
  • placing a note in her file explaining her food allergy.

[11] In its answer to Mrs. Butler's application, Air Canada explains that food is not cooked on board the aircraft; rather, it is heated in individual casseroles covered in foil. Air Canada also explains that crew meals are consumed in the galley and that, although cabin air is recirculated through HEPA filters, not all of the air is recycled. In fact, the air from the galleys and the lavatories is not recirculated.

[12] Air Canada maintains that Laura's experience was a result of her misunderstanding of the nature and extent of her own condition and that she was never exposed to any risk related to her allergy. Mrs. Butler states that Laura has the education and life experience to understand the full implications of her allergy, which she has successfully managed for many years.

[13] Air Canada points out that Laura's medical evidence shows that she should not eat seafood or fish and should not be exposed to seafood steam. Air Canada states that Laura would not have been served fish or seafood and it explains that steam is only created when liquids reach the boiling point of 100°C and that this is only achieved with water on board an aircraft, not food. In any case, Air Canada points out that Laura's medical evidence indicates that when exposed to seafood steam, she experiences a sore throat and difficulty swallowing, which Air Canada describes as "light symptoms." Mrs. Butler maintains that despite contacting Air Canada on numerous occasions, neither she nor Laura have ever been told that the fish served on board its aircraft is precooked and simply reheated. Mrs. Butler adds that individuals with food allergies learn to make accommodations in all aspects of their life, including travel. However, they need facts and information in order to do so.

ANALYSIS

The Agency's approach to the determination of disability

[14] In determining whether there is an obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first establish whether the application was filed by, or on behalf of, a person with a disability.

[15] Usually, a disability is self-evident (e.g. a person who uses a wheelchair). In other cases, where the alleged disability is less apparent, the Agency has applied the World Health Organization's International Classification of Functioning, Disability and Health (ICF), the description and application of which are set out in detail in Decision No. 60-AT-A-2010.

[16] The ICF contains a complete classification of body functions and structures, and identifies three dimensions of disability, i.e. impairments, activity limitations and participation restrictions:

  • impairments are problems in body function or structure such as a significant deviation or loss;
  • activity limitations are difficulties an individual may have in executing activities; and
  • participation restrictions are problems an individual may experience in involvement in life situations.

[17] In Decision No. 60-AT-A-2010, the Agency found that to be classified as having a disability, the applicant has an evidentiary burden to demonstrate that they have an impairment that results in activity limitations. They must also demonstrate that they experience participation restrictions in the context of the federal transportation network in order for the Agency to assert jurisdiction under Part V of the CTA.

[18] The same analytical approach is applied in this case.

The case at hand

Impairment

[19] In Decision No. 243-AT-A-2002, the Agency noted that the category of "hypersensitivity reactions", which is included in the functions of the haematological and immunological systems of the ICF, encompasses "functions of the body's response of increased sensitization to foreign substances, such as in sensitivities to different antigens." The Agency further noted that this category explicitly includes allergies and, therefore, the Agency found that an allergy is an impairment.

[20] A letter from Laura's physician indicates that she has severe (anaphylactic) hypersensitivity to fish and seafood.

[21] Based on the medical evidence filed, the Agency accepts that Laura has an allergy to fish and seafood and, therefore, the Agency finds that she has an impairment.

Activity limitations

[22] While Laura's medical evidence addresses the symptoms she may experience when both ingesting fish or seafood and inhaling seafood steam, Mrs. Butler's application does not raise concerns regarding ingestion. Rather, Mrs. Butler's application pertains to the lack of transparency regarding Air Canada's meal service, and the meals that are served to other passengers and Air Canada's flight crew. Furthermore, Mrs. Butler indicates that Laura has never consumed the food served on board an aircraft. Consequently, the Agency's decision will focus on the medical evidence with respect to the inhalation of seafood steam.

[23] According to Mrs. Butler, Laura has been told by physicians, on numerous occasions, that she would be placing herself at risk of anaphylaxis if she were to go into an enclosed environment where fish is being cooked.

[24] Air Canada submits that according to the physician's letter, Laura's reaction to seafood steam is "a sore throat and difficulty swallowing." Air Canada is of the opinion that Laura's allergic reaction is "in line with the light symptoms which the Agency found to be too light to amount to a disability" in a previous decision regarding a person's allergy (Decision No. 370-AT-A-2009). Air Canada adds that Laura's reaction to seafood steam does not constitute an activity limitation or participation restriction of a sufficient significance to result in an inherent difficulty in executing a task or action.

[25] Laura's medical evidence does indicate that if she inhales seafood steam, she can develop a sore throat and experience difficulty swallowing. The Agency finds that this evidence does not support a conclusion that Laura's allergic reaction to the inhalation of seafood steam is significant enough to result in an activity limitation. As previously stated, the Agency is of the opinion that, for the purposes of its analysis, a limitation must be significant enough to result in an inherent difficulty in executing a task or action.

[26] The Agency also determined, in Decision No. 60-AT-A-2010, that the existence of a participation restriction in the context of the federal transportation network is dependent upon the existence of an activity limitation and is evidenced by a person's inability to access the services available within that network as other persons without the activity limitation can. In this case, as the Agency has determined that Laura does not experience an activity limitation as a result of her allergic reaction when she inhales seafood steam, the Agency will not assess participation restriction.

[27] Nevertheless, even if the evidence had supported a finding of a significant enough reaction to seafood steam to constitute an activity limitation, the Agency accepts Air Canada's evidence that the meals on its aircraft are reheated, not cooked, and that there is no steam. As Mrs. Butler's evidence shows that Laura's allergic reaction is triggered by steam, it is reasonable to conclude that no reaction would have occurred as a result of the meals being reheated.

Conclusion

[28] In light of the foregoing, the Agency finds that Laura has not met her evidentiary burden to demonstrate that, for the purposes of Part V of the CTA, she is a person with a disability due to her allergy to seafood steam. As a result, the Agency will not address whether she encountered an obstacle to her mobility, and dismisses the application.

[29] With respect to the issue raised by Mrs. Butler about the lack of information provided by Air Canada, the Agency always encourages parties to enter into meaningful communication before a matter becomes a formal dispute, especially when a passenger expresses disability-related concerns. In this instance, as the Agency has found that Laura is not a person with a disability due to her allergy to seafood steam, the Agency is not in a position to impose any requirements or make any recommendations in respect of the dialogue between the parties.

Members

  • John Scott
  • Raymon J. Kaduck
  • J. Mark MacKeigan

Member(s)

Raymon J. Kaduck
J. Mark MacKeigan
John Scott
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