Decision No. 222-AT-A-2008

April 28, 2008

APPLICATION by Diane Barbeau regarding Sunwing Airlines Inc.'s refusal to carry ten boxes of dialysis solution in the passenger cabin of its aircraft.

File No. U3570/07-42

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INTRODUCTION

[1] On October 31, 2007, Diane Barbeau filed an application with the Canadian Transportation Agency (the Agency) regarding the refusal by Sunwing Airlines Inc. (Sunwing) to carry 10 boxes of temperature-sensitive liquid dialysis solution as carry-on baggage.

[2] When arranging a two-week holiday to Cuba with Sunwing, Ms. Barbeau asked Sunwing to carry 10 boxes of dialysis solution which she required to maintain her health while on holidays. After receiving the dimensions and weight of her boxes, Sunwing informed Ms. Barbeau that it could not carry all of the boxes inside its aircraft cabin but could carry the balance of her boxes in the aircraft's unheated cargo hold. Sunwing advised Ms. Barbeau she would need to provide protective packaging for her boxes. Ms. Barbeau found Sunwing's service proposal inadequate, cancelled her flights and received a full refund. Ms. Barbeau is of the opinion that Sunwing did not do enough to accommodate her request and that its actions created an obstacle to her mobility.

AGENCY JURISDICTION

[3] The Agency is responsible for removing undue obstacles from federally regulated transportation services and facilities in order for persons with disabilities to have equivalent access to the federal transportation network. Pursuant to the Canada Transportation Act, S.C., 1996, c. 10, as amended (the CTA), the Agency may investigate applications filed by, or on behalf of, a person with a disability.

[4] In her application, Ms. Barbeau states that she requires daily peritoneal dialysis treatments to survive while she awaits a kidney transplant. Ms. Barbeau provided the Agency with a medical note from her physician, a specialist in kidney disease, which confirms her condition.

[5] Based on her personal information, which is undisputed, the Agency accepts that Ms. Barbeau is a person with a disability for the purpose of applying the accessibility provisions of the CTA. Ms. Barbeau's application was investigated pursuant to section 172 of the CTA as it raised an accessibility issue that falls within the Agency's jurisdiction.

ISSUE

[6] Did Sunwing's refusal to carry 10 boxes of Ms. Barbeau's dialysis solution inside the passenger cabin of its aircraft constitute an undue obstacle to her mobility ? If so, what corrective measures should be ordered, if any?

PRELIMINARY MATTER

[7] In her submission, Ms. Barbeau raises two concerns relating to procedural fairness. Ms. Barbeau states that an Agency letter requesting further information from the parties gave Sunwing a second opportunity to present its case. Secondly, she contends that the Agency ought to have made its own enquiries to address the questions that were posed to the parties. Ms. Barbeau further states "...this request for ‘further information' would simply appear to be a covert means of assisting Sunwing...."

[8] The Agency acknowledges Ms. Barbeau's concerns. However, it is necessary to understand the Agency's role when adjudicating a complaint. The Agency's mandate includes the important responsibility of ensuring that persons with disabilities can access the federal transportation network without encountering undue obstacles when they travel.

[9] Upon determining that an individual faced an undue obstacle, the Agency may identify, and order the taking of, the appropriate corrective measures to eliminate them. The corrective measures can reach beyond the obstacle faced by the particular individual and may have the effect of addressing underlying systemic issues.

[10] As part of this process, the Agency may find it necessary to gather additional information from the parties as well as from external sources to: (1) assist the Agency in its determination of the most appropriate accommodation; (2) provide for a thorough understanding so that an issue is fully and fairly considered; and/or, (3) identify and prescribe a remedy.

[11] The Agency, as an administrative tribunal, is bound by procedural fairness in the adjudication of complaints, which means that the parties are informed of the evidence put before the decision-makers and provided with an opportunity to make meaningful representations. In the case at hand, the Agency determined that further information was required from both parties, which it requested, and provided both parties with an opportunity to comment on the submission of the other.

FACTS, EVIDENCE AND SUBMISSIONS

[12] Ms. Barbeau is dissatisfied with Sunwing's refusal to carry all of her boxes inside its aircraft cabin and feels that she had not been provided accommodation up to the point of undue hardship. Sunwing considers that the manner in which it proposed to accommodate her request did not constitute an obstacle to Ms. Barbeau's mobility as it met Ms. Barbeau's request to transport her boxes.

[13] The facts relevant to the parties' positions are not in dispute. Ms. Barbeau only requires her dialysis solution to be carried on her outbound flight. She will use all of her dialysis solution while in Cuba and will not carry any on her flight back to Canada. While in Cuba, she requires a two-week supply which amounts to sixty 2-litre pouches of dialysis solution. The pouches are packaged in square cardboard boxes (six pouches per box) measuring 12 inches x 11 inches x 11 inches and weighing approximately 13 kg.

[14] The Agency asked Ms. Barbeau to clarify whether she requires dialysis treatments while in transit to her destination, taking into account the potential for delays. Ms. Barbeau responded that, as a safeguard, she carries excess pouches to the airport and if the flight is on time she discards them just before boarding. Ms. Barbeau indicates that, generally, she does not require treatment on board the aircraft. However, she recounted that once, when returning from Europe on a six-hour flight, she underwent dialysis in the airport washroom and on the aircraft. Ms. Barbeau further indicates that although it is not medically recommended, she can forego treatments for up to one day.

[15] According to Sunwing, the high density seating configuration of its B737 aircraft places limitations on how much carry-on baggage it can accept, per person, in the passenger cabin of its aircraft. Other carriers operating the same aircraft type may have lower density seating configurations which permit them to accept more carry-on baggage, per person, in the passenger cabin of their aircraft. Sunwing's baggage allowance policy permits passengers to carry on one 5 kg piece of baggage and to check two pieces of baggage which may have a combined maximum weight of 20 kg. In Ms. Barbeau's case, Sunwing agreed to carry all of her liquid solution which weighs 130 kg without imposing additional fees.

[16] The Agency asked Sunwing to specify how many boxes it would have permitted Ms. Barbeau to carry on board the aircraft. Sunwing responded that it would have allowed two boxes in the passenger cabin of the aircraft and it would have carried the balance in the cargo hold.

ANALYSIS AND FINDINGS

[17] To determine whether there is an undue obstacle to the mobility of a person with a disability within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether that person's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue.

The Agency's approach to the determination of obstacles and accommodation

[18] The word "obstacle" is not defined in the CTA, but lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement. Obstacles or barriers to the mobility of persons with disabilities may result from, for example, federal transportation service providers' facilities; equipment; and/or policies, procedures, or practices; or a failure by transportation service providers to comply with, and/or to take positive action to enforce compliance with, policies, procedures and practices.

[19] In considering whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency 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 or self-evident 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.

[20] If it is determined by the Agency that the transportation service provider offered or provided the "most appropriate" accommodation that the situation required, the Agency will find that the person with a disability did not face an obstacle to their mobility.

[21] Applicants generally seek accommodation which, for them, is "ideal". This ideal accommodation is that which meets all of the needs of the person with a disability for them to travel. Often, the ideal accommodation sought by the person with a disability is also considered by the Agency to be the "most appropriate" accommodation. Sometimes, however, the ideal accommodation sought by an applicant is an accommodation that may be beyond the transportation service provider's duty to accommodate.

[22] The determination of what is the "most appropriate" accommodation is made by the Agency, and is separate and distinct from whether the accommodation would result in "undue hardship" for the transportation service provider. In determining what constitutes the most appropriate accommodation, the principal test — that of effectiveness — requires a balancing of parties' interests. Although primary consideration will be given to the preference of the individual involved, the Agency's specialized expertise in transportation allows it to exercise its discretion to determine what is reasonable and what is, in the Agency's opinion, beyond the transportation service provider's duty to accommodate.

[23] The service provider will meet its duty to accommodate — that is, its legal obligation to accommodate — and in doing so provide the most appropriate accommodation, if the accommodation provided in the federal transportation network results in an equal opportunity for the person with a disability to attain the same level of transportation services and privileges experienced by others.

Did Sunwing's refusal to carry 10 boxes of Ms. Barbeau's dialysis solution inside the passenger cabin of its aircraft constitute an obstacle to her mobility?

[24] In Ms. Barbeau's view, Sunwing's acceptance of all of her boxes of dialysis solution inside the aircraft cabin would have resulted in ideal accommodation. Ms. Barbeau questions why Sunwing could not accommodate all of her boxes of dialysis solution in the aircraft cabin as had been done for her in the past with other carriers using the same type of aircraft. She states that Sunwing's proposal, which placed the obligation on her to provide packaging to guarantee the temperature of her boxes in the unheated cargo hold, was unjust.

[25] In determining whether Ms. Barbeau faced an obstacle, the Agency must determine whether Ms. Barbeau's ideal accommodation is the most appropriate accommodation that the situation required. The accessibility of the federal transportation network means that each phase of the transportation cycle, which involves many relevant components, is accessible and allows a person with a disability to travel between point A and point B without encountering undue obstacles and be provided with equivalent access to all of the carrier's passenger services.

[26] Using the above-noted criteria, the Agency has determined that the most appropriate accommodation in Ms. Barbeau's case is to ensure:

• Ms. Barbeau is permitted to carry a sufficient supply of dialysis solution to support her condition from her point of check-in at Jean Lesage International Airport in Québec until she arrives at the airport in Cuba and reaches the general public area;
• because Ms. Barbeau's dialysis solution is temperature-sensitive, that the temperature requirements are met for the quantity of dialysis solution she requires to have on hand while within the federal transportation network; and,
• Ms. Barbeau is offered the level of checked baggage services equivalent to that available to other Sunwing passengers.

[27] With respect to the first and second aspects of accommodation, the facts of this case indicate that Ms. Barbeau requires liquid dialysis treatments four times per day. Ms. Barbeau indicates that with the exception of a six-hour flight home from Europe, she has not found it necessary to undergo a treatment while in transit. Although Ms. Barbeau did not provide the Agency with the specific number of pouches she would take as a safeguard for delays while in transit from Canada to Cuba, she indicates that she would need "some." Taking into account the approximate 4 hours for a flight from Canada to Cuba and the possibility for delays, the evidence on file supports the conclusion that one box, containing six pouches, would be a sufficient supply of dialysis solution to support Ms. Barbeau's condition during her movement in the federal transportation network. Therefore, the Agency finds that Sunwing would meet its duty to accommodate Ms. Barbeau if it offers to carry one box of dialysis solution inside the temperature controlled passenger cabin of its aircraft.

[28] The Agency, therefore, concludes that Sunwing's submission that it would carry two boxes of Ms. Barbeau's dialysis solution in the temperature controlled passenger cabin of the aircraft exceeded the most appropriate accommodation that this particular situation required. Had Ms. Barbeau required access to more than two boxes of liquid solution to maintain her condition while in transit, the Agency may have found that Sunwing's proposal limiting its acceptance to two boxes inside the temperature controlled passenger cabin of the aircraft constituted an obstacle to Ms. Barbeau's mobility, and the Agency would then have considered the matter of undueness.

[29] With respect to the third aspect of accommodation, Sunwing's responsibility is to ensure Ms. Barbeau benefits equally from the services and facilities Sunwing offers to its other passengers. In this case, Sunwing offered to carry the balance of Ms. Barbeau's liquid dialysis solution as checked baggage in the cargo hold and placed the responsibility on Ms. Barbeau to supply protective packaging for her baggage.

[30] The Agency recognizes that Ms. Barbeau faces serious challenges in making appropriate travel arrangements. The Agency also acknowledges it may be difficult for Ms. Barbeau to obtain protective packaging to maintain the required temperature control for her dialysis solution while it is carried in the hold of an aircraft, but the Agency finds, in this case, that it is the responsibility of Ms. Barbeau to tender her baggage in a manner which meets her needs and which can be transported by Sunwing. Sunwing's responsibility is to provide services that allow a passenger with a disability to benefit equally from services and facilities offered to other passengers. In this case, the Agency finds that Sunwing's offer to carry the balance of Ms. Barbeau's dialysis solution, without fee, is a concession extending beyond Sunwing's checked baggage services available to all of its passengers.

[31] The Agency also recognizes that services offered to passengers with disabilities can vary from one carrier to another and the Agency commends transportation service providers that provide passengers with their ideal accommodation when the request for accommodation is beyond that which the Agency considers most appropriate, as appears to have been made available to Ms. Barbeau by carriers other than Sunwing.

CONCLUSION

[32] The Agency finds that Sunwing's refusal to carry 10 boxes of Ms. Barbeau's dialysis solution in the passenger cabin of its aircraft did not constitute an obstacle to her mobility. Having found no obstacle, there is no need for the Agency to consider the aspect of undueness. The Agency will therefore not take any further action in this matter.

Members

• J. Mark MacKeigan
• John Scott