Decision No. 227-AT-A-2012

BACKGROUND

[1] Katherine Covell, Sarah Daviau and Dr. J. David Spence (applicants) filed applications 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. Dr. Spence’s application is also against Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc. carrying on business as Air Canada Jazz, Jazz and Jazz Air (Air Canada Jazz) and WestJet. The applications involve the policies of Air Canada, Air Canada Jazz and WestJet (respondents) that allow the carriage of cats as pets in aircraft cabins.

THE LAW

[2] 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.

[3] 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, 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 will order corrective measures necessary to remove the undue obstacle.

[4] The Agency’s determination in respect of this three-step process for this case is set out below.

DISABILITY DETERMINATION

[5] In Decision No. 66-AT-A-2010, the Agency determined that Ms. Covell, Ms. Daviau and Dr. Spence are persons with a disability for the purposes of Part V of the CTA as a result of their allergy to cats (“person(s) with a cat allergy disability”). The Agency advised that the next step would be an examination of whether the respondents’ pet policies permitting the carriage of cats in the cabin constitute obstacles to the mobility of the applicants and of persons with a cat allergy disability for the purposes of Part V of the CTA in the context of air travel. Further, the Agency would determine the appropriate accommodation to meet the disability-related inflight needs of the applicants and persons with a cat allergy disability.

APPROPRIATE ACCOMMODATION AND OBSTACLE DETERMINATIONS

i) APPROPRIATE ACCOMMODATION

[6] In Decision No. 430-AT-A-2011 (Obstacle Decision), the Agency expressed its opinion that an allergen-free environment, including one free of cat allergens, is impossible to implement in an aircraft cabin given that carriers cannot control the presence of animal dander on passengers’ clothing and personal effects. The Agency therefore set out that the question to be answered was what measure(s) needed to be taken to effectively address the risk of exposure to airborne allergens in the aircraft cabin due to the presence of cats; that is, what is the appropriate accommodation for persons with a cat allergy disability taking into account the respondents’ pet policies that allow the carriage of cats in aircraft cabins?  For the purpose of these cases, the presence of cats outside aircraft cabins, such as in airports, will not be addressed.

[7] The Panel majority determined that the following provides the accommodation required to meet the needs of persons with a cat allergy disability, including the applicants:

1. a ban on cats carried as pets in the aircraft cabin in which a person with a cat allergy disability is travelling (ban accommodation); or,
2. the following set of measures:
   
   1. air circulation/ventilation systems using High Efficiency Particulate Air (HEPA) filters (i.e., those rated between 85 and 99.99 percent removal efficiency) or which provide 100 percent unrecirculated fresh air; and,
   2. a seating separation which is confirmed prior to boarding the flight and which provides a minimum of five rows between a person with a cat allergy disability and cats carried as pets in the aircraft cabin.

ii) OBSTACLE

[8] The Panel majority determined in the Obstacle Decision that, as the respondents did not provide either of the above-noted equally responsive accommodation measures, they were not meeting the disability-related needs of persons with a cat allergy disability.

[9] The Agency therefore determined that the respondents’ policies, for the carriage of cats in the aircraft cabin constitute an obstacle to the mobility of the applicants and of persons with a cat allergy disability for the purposes of Part V of the CTA.

[10] The respondents were directed to advise the Agency whether or not they intended to implement one of the above-noted equally responsive means of providing appropriate accommodation on the aircraft they operate. In the event that the respondents did not agree to implement any of the foregoing means of providing appropriate accommodation, they were required to file their proposal for an alternative equally responsive in meeting the needs of persons with a disability. In the alternative, they could file additional arguments on undue hardship. The burden lies solely on the respondent to demonstrate that any form of accommodation would result in undue hardship.

[11] In response, the respondents advised that they would implement one of the equally responsive means of providing appropriate accommodation and filed their proposed policies.

[12] In reviewing the submissions made by the respondents, the Agency noted deficiencies in the proposed policies and required that they be addressed in order for the carriers to provide appropriate accommodation as set out in the Obstacle Decision.

[13] The applicants were provided an opportunity to file comments following the respondents’ submission of a formal policy or proposed equally responsive alternatives, or any additional undueness arguments. Ms. Covell and Ms. Daviau filed comments on the carriers’ proposed policies and procedures and Dr. Spence limited his comments to observations regarding the Agency’s order.

[14] In addition to filing comments on the proposed policies filed by WestJet, Air Canada and Air Canada Jazz, some of the applicants commented on the effectiveness of the appropriate accommodation identified by the Agency in the Obstacle Decision and suggested that additional measures be implemented. As the Agency has already determined which measures are required to provide appropriate accommodation, the Agency will not consider the applicants’ comments in this regard.

[15] Air Canada advised that, as flights operated by Air Canada Jazz are operated on behalf of Air Canada and the passengers on these flights are subject to the terms and conditions set out in Air Canada’s tariffs, Air Canada’s submissions were also filed on behalf of Air Canada Jazz. References to Air Canada should, therefore, be read to include Air Canada Jazz, except as otherwise noted.

(iii) UNDUE OBSTACLE

[16] Having found that the respondents’ current pet policies constitute obstacles, the Agency must determine whether the obstacles are undue and, if so, what corrective measures should be ordered. For this determination, the Agency will consider all pleadings filed by the parties and the interveners.

ISSUES

[17] In this Decision, the Agency examines the following issues in respect of WestJet and Air Canada:

Issue 1: Do the respondents’ current pet policies, as they relate to the carriage of cats in the aircraft cabin in which persons with a cat allergy disability are travelling, constitute undue obstacles to the mobility of the applicants and of persons with a cat allergy disability for the purposes of Part V of the CTA?

Issue 2: Do the respondents’ proposed revised pet policies provide appropriate accommodation and are corrective measures required?

WESTJET

ISSUE 1: DOES WESTJET’S CURRENT PET POLICY, AS IT RELATES TO THE CARRIAGE OF CATS IN THE AIRCRAFT CABIN IN WHICH PERSONS WITH A CAT ALLERGY DISABILITY ARE TRAVELLING, CONSTITUTE AN UNDUE OBSTACLE?

[18] WestJet did not file undue hardship arguments that would prevent it from implementing appropriate accommodation. Accordingly, the Agency finds that the obstacle created by its current pet policy, as it relates to the carriage of cats in the aircraft cabin in which persons with a cat allergy disability are travelling, is undue.

ISSUE 2: DOES WESTJET’S PROPOSED REVISED PET POLICY PROVIDE APPROPRIATE ACCOMMODATION AND ARE CORRECTIVE MEASURES REQUIRED?

WESTJET’S PROPOSED POLICY AND PROCEDURES

[19] WestJet’s proposed policy provides that the seating separation would be at least five rows between persons with a cat allergy disability and cats carried as pets in the aircraft cabin (not including the row occupied by the persons with a cat allergy disability).

[20] WestJet’s proposed policy takes into account that its aircraft are equipped with air circulation/ventilation systems using HEPA filters and reflects its existing policy of limiting the number of cats that can be carried in the cabin and requiring that the cats remain in a pet carrier during the flight.

[21] To facilitate the provision of the seating separation, WestJet would require persons with a cat allergy disability to self-identify at the time of booking, at check-in and on board the aircraft.

Analysis

[22] The Agency accepts WestJet’s proposed policy regarding a seating separation which is in addition to the air circulation/ventilation systems using HEPA filters that are used in WestJet’s aircraft and WestJet’s existing policy that limits the number of cats that can be carried on a given flight and requires that they remain in a pet carrier.

ADEQUATE ADVANCE NOTIFICATION

[23] The Obstacle Decision required the respondents to specify in their proposed policies what constitutes adequate advance notification of a person’s need for accommodation.

WestJet

[24] WestJet’s proposed policy provides that it will guarantee a seating separation of at least five rows between persons with a cat allergy disability and cats carried as pets in the aircraft cabin (not including the row occupied by the persons with a cat allergy disability), when the persons notify the carrier at least 48 hours prior to departure of their flight.

[25] When WestJet receives notification of a person’s disability within 48 hours of flight departure, it will make best efforts to provide the accommodation. Where the minimum five-row seating separation cannot be provided, WestJet will offer the persons with a cat allergy disability alternate flight arrangements at no extra cost or reimburse the persons if the request is made prior to departure.

Applicants

[26] Ms. Daviau raises concerns regarding the 48-hour advance notification that WestJet requires in respect of a person’s “severe” cat allergy given that the carrier is prepared to accept animals in the passenger cabin at the last minute. Ms. Daviau expresses frustration that “the person with the “severe” allergy is always the one getting moved and not the person travelling with a cat.”

[27] WestJet’s position is that confirming the seating separation is not always possible due to the possibility of last minute bookings of persons travelling with cats (i.e., within 48 hours of departure, including “walk-up” bookings made at the airport on the day of departure). Ms. Daviau submits that this is unacceptable as it does not comply with the Obstacle Decision.

[28] Ms. Daviau asserts that in accordance with the Obstacle Decision, it should be persons travelling with cats in the cabin who are denied transportation on a particular flight if they book within the 48-hour period or suddenly arrive at the airport. She points out that although it would be very unusual for her to book within the 48 hour timeframe in advance of a flight, she may need to in situations of a family emergency, but notes that WestJet’s proposed policy might not allow this.

[29] Ms. Daviau questions what would happen if, as a person with an allergy, she agreed to take a later flight but the next flight results in the same issue arising. Ms. Daviau wonders whether the same thing could happen repeatedly – leaving the person with a “severe” allergy continuously being “bumped” to another flight. She expresses the opinion that this is not acceptable and questions whether WestJet would ever consider doing the same thing to a person who uses a wheelchair.

[30] Ms. Daviau suggests that, in such situations, it is more logical and reasonable to “bump” the person wishing to carry a cat in the aircraft cabin rather than the person with a disability due to a “severe” allergy. As an alternative, Ms. Daviau proposes that the person who wishes to travel with a cat could be given the option of putting the cat in the cargo area and still travel.

[31] Ms. Covell is also concerned with the 48-hour advance notification provision in WestJet’s proposed policy. She states that perhaps this will work out for originating flights but when there are multiple segments, it is not unusual for one segment to be delayed and subsequent segments altered. Ms. Covell submits that this suggests that there may be many occasions where the 48-hour advance notification of a person’s cat allergy is simply impossible. Ms. Covell points out that, in such cases, WestJet submits that it will do its best to move the person with the “severe” allergy - not the cat. She submits that while this is a practical response from the carrier’s perspective, the approach provides little assurance of accommodation and “suggests a priority given to the desires of the pet owner over the basic human rights of the allergy sufferers.”

Analysis

[32] WestJet’s proposed policy and procedures provide certainty to persons with a cat allergy disability that they will receive a minimum seating separation of five rows from pet cats in the cabin when they provide at least 48 hours advance notification.

[33] Concerning situations where WestJet receives notification of a person’s cat allergy disability less than 48 hours prior to departure, the carrier’s proposed policy and procedures provide that it will make best efforts to provide the accommodation. Although Ms. Daviau and Ms. Covell both express concerns regarding the lack of guaranteed accommodation in such situations, as reflected in previous Agency decisions, the Agency is of the opinion that persons with disabilities who require accommodation need to provide transportation service providers with adequate notification of their disability-related needs. This reflects the fact that transportation service providers may need time to make arrangements to ensure that personnel and/or equipment is available to provide the necessary accommodation. In situations where persons with a disability provide transportation service providers with less advance notification than is normally required, transportation service providers will make reasonable efforts to provide the appropriate accommodation.

[34] WestJet’s proposed policy and procedures, as they relate to the advance notification required to provide the seating separation, are consistent with the following provisions contained in Part VII of the Air Transportation Regulations, SOR/88-58, as amended (ATR), which apply to domestic air services:

• 151(2) Where, at least 48 hours before the scheduled time of departure of a person's flight, the person requests an additional service that is set out in an air carrier's tariff, the air carrier shall provide the person with the service, in accordance with any conditions in respect of the service that are set out in the tariff.
• 151(3) Where a request for a service referred to in subsection [...] (2) is not made within the time limit provided thereunder, the air carrier shall make a reasonable effort to provide the service.

[35] The Agency is also of the opinion that the principle that a person with a disability needs to provide sufficient advance notification of their disability-related needs is equally applicable to international air services.

[36] WestJet submits that when a person with a cat allergy disability self-identifies and provides less than 48 hours advance notification of their need for accommodation in the form of a seating separation, WestJet will attempt to provide the accommodation by trying to reassign seats of persons that have a pet in the cabin prior to departure. In addition, WestJet states that when a passenger, which appears to the Agency to include both a person with a cat allergy disability and a person with mere sensitivity, expresses discomfort sitting “beside” a pet in a kennel or a service animal, the flight attendant will relocate the person as far away as possible from the trigger source, whenever possible.

[37] The Agency is of the opinion that, given that the Boeing 737 aircraft operated by WestJet have in excess of 100 seats, all within the same class of service, and that the carrier limits the number of pet cats that can be carried at any given time in the cabin, combined with meaningful and reasonable best efforts to provide the seating separation even in situations where a person with a “severe” cat allergy notifies the carrier of their need for accommodation less than 48 hours prior to departure, it is highly unlikely that WestJet will not be able to provide the five-row seating separation.

[38] The Agency is satisfied that the 48-hour advance notification proposed by WestJet is necessary and the proposed measures to address situations when less than 48 hours notification is provided are acceptable.

SEPARATION MAINTAINED DURING BOARDING/DEPLANING AND ON BOARD

[39] As set out in the Obstacle Decision, the respondents were required to provide a clear description of how a seating separation would be maintained during boarding/deplaning and while persons with a cat allergy disability are on board the aircraft (e.g. for accessing an onboard washroom).

[40] WestJet proposes to implement processes in respect of boarding and deplaning and access to an aircraft washroom that ensure that persons with a cat allergy disability do not pass by a row where a cat is located.

[41] WestJet proposes that persons with a disability due to a “severe” allergy to cat dander would be seated in the forward part of the aircraft, ensuring access to the front washroom without passing cats in the aircraft cabin as these will be assigned space in the rear of the aircraft. To minimize exposure to cat dander in the aircraft cabin during boarding and deplaning, WestJet would ask persons with a cat allergy disability to board last and to deplane first.

Analysis

[42] The Agency is satisfied that the policy and procedures proposed by WestJet are adequate to ensure that the seating separation will be maintained during boarding, deplaning and while persons with a cat allergy disability access the onboard washroom.

PROCESS TO ENSURE THAT APPROPRIATE ACCOMMODATION IS PROVIDED

[43] The Obstacle Decision required the respondents to provide a clear description of the process that they will implement to ensure that the appropriate accommodation will be provided to persons with a cat allergy disability.

[44] WestJet describes the following procedures in support of its proposed seating separation policy.

Call Centre

[45] Due to the unique nature of each person’s situation, securing the proposed accommodation will not be possible via the Internet or through other online mediums. Persons seeking the accommodation will be directed to the WestJet Call Centre to ensure that there is an open dialogue to fully assess the person’s particular needs.

[46] With the required advance notification and self-identification as a person with a cat allergy disability to the Call Centre, the Passenger Name Record (PNR) will be updated with the Special Services Request (SSR) code/remark “ALRG” to inform all down-line agents (airport, inflight) of the need for the seating separation. The person’s booking will also have a unique identifier number associated with the PNR.

[47] The call centre agent will assign the passenger an appropriate seat to confirm the minimum five-row separation and ensure access to an aircraft washroom without passing a row where a cat in a kennel is booked. If required, the agent will move passengers with kennels to other seats to secure the seating separation.

[48] A Call Center agent will also verify, 48 hours prior to departure, that the seating separation is still intact and access to the washroom is still unrestricted by the presence of a cat in a kennel in the cabin. If this is not the case, passengers with kennels will be moved to seats that ensure that this accommodation is secured.

[49] Persons who plan to bring pets in the cabin are requested to notify the carrier 48 hours in advance of a flight.

Airports

[50] WestJet’s proposed airport procedures are to address bookings made less than 48 hours prior to departure, including “walk up” bookings. In such situations, airport agents will seek to ensure the minimum five-row separation exists when they are made aware upon check-in of a person’s “severe” allergy to cat dander. To the extent possible, the five-row seating separation will be established through reassigning seats of persons who have a pet in the cabin (PETC) SSR code associated with their PNR.

[51] Airport agents will be instructed to board persons with a cat allergy disability last.

In-flight

[52] WestJet has also proposed that if a person with a pet allergy expresses discomfort sitting beside a pet in a kennel (which WestJet clarified applies in situations where the person did not provide at least 48 hours advance notification that they had a cat allergy disability), the flight attendant will, when possible, relocate them to another seat as far away as possible from the trigger source. If the person with the allergy does not want to travel on the same flight as the cat, they will be reaccommodated on the next available flight, at no extra cost.

Analysis

[53] The Agency is satisfied that if WestJet’s Call Centre, airport, and in-flight personnel follow the proposed procedures, they will be informed of the needs of persons with a cat allergy disability and will take measures to ensure that they are provided with the appropriate accommodation.

TRAINING TO BE PROVIDED TO EMPLOYEES

[54] The Obstacle Decision required the respondents, in respect of the appropriate accommodation that the respondents accepted to implement, to include in their proposed policies a requirement that training be provided to employees regarding the appropriate accommodation.

[55] WestJet states that its front line agents would receive training on the proposed policy and procedures and that an internal reference database called the General Reference tool would be provided to airport agents with the procedures to follow.

Analysis

[56] The Agency accepts WestJet’s commitment to train its personnel in respect of its proposed policy to provide appropriate accommodation to persons with a cat allergy disability.

CONCLUSION

[57] The Agency has reviewed WestJet’s submissions and the applicants’ comments and finds that the implementation of the carrier’s proposed policy and procedures will provide for appropriate accommodation.

AIR CANADA

ISSUE 1: DOES AIR CANADA’S CURRENT PET POLICY, AS IT RELATES TO THE CARRIAGE OF CATS IN THE AIRCRAFT CABIN IN WHICH PERSONS WITH A CAT ALLERGY DISABILITY ARE TRAVELLING, CONSTITUTE AN UNDUE OBSTACLE?

[58] In response to the Obstacle Decision, Air Canada raised constraints with respect to the proposed ban accommodation (same flight ban accommodation) in respect of the Dash 8‑100/300 aircraft operated by Air Canada Jazz and proposed a first-come, first‑served approach and filed related policies and procedures.

[59] The Agency’s analysis of Air Canada’s submissions is set out below, first, concerning the Dash 8-100/300 aircraft and, second, concerning Air Canada’s remaining fleet.

[60] As indicated in the Law section above, 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.

AIR CANADA JAZZ’S DASH 8-100/300 AIRCRAFT

[61] Air Canada’s submissions concerning the Dash 8-100/300 aircraft are assessed in terms of:

1. does Air Canada’s proposed first-come, first-served policy provide an equally responsive alternative to the same flight ban accommodation; and, if not
2. has Air Canada established undue hardship with respect to the same flight ban accommodation?

A) Does Air Canada’s proposed first-come, first-served policy provide an equally responsive alternative to the same flight ban accommodation?

Air Canada

[62] With respect to flights operated by Air Canada Jazz using Dash 8-100/300 aircraft, Air Canada proposes the implementation of a first-come, first-served policy. The proposed policy provides that when the person with a cat allergy disability attempts to book a flight operated using a Dash 8-100/300 series aircraft, Air Canada would verify whether there is already a person travelling with a pet cat booked on the flight. If not, Air Canada states that the person with a cat allergy disability would be booked and no subsequent bookings for persons travelling with cats would be accepted. Conversely, Air Canada submits that if a person travelling with a pet cat has already made a reservation to travel on a flight, the person with a cat allergy disability must be offered another flight at no additional cost.

Applicants

[63] Ms. Daviau submits that the idea that it is acceptable to “bump” a person with a “severe” disability “lacks all common sense.” Ms. Daviau further submits that this would not be acceptable to persons with other disabilities. She is of the view that a “human’s right to breathe freely has to come before a cat owner’s right to travel with a cat below their seat.”

Analysis

[64] The Agency established in the Obstacle Decision that, while a first-come, first-served approach would ensure that cats are not carried in the cabin in which persons with a cat allergy disability are travelling, such an approach does not provide the appropriate accommodation identified by the Agency nor does it provide an equally responsive alternative because it equates the rights of persons with disabilities with the preferences of persons who wish to travel with a pet cat. The Agency is of the opinion that priority must be given to the rights of persons with a disability when advance notification is provided. The Agency considers that such a priority must be maintained unless it imposes undue hardship on the transportation service provider.

Conclusion

[65] Accordingly, the Agency finds that Air Canada’s proposed first-come, first-served policy does not constitute an equally responsive alternative to the same flight ban accommodation. As such, the Agency will now examine whether the implementation of the same flight ban accommodation in respect of the Dash 8-100/300 aircraft will result in undue hardship on Air Canada.

B) Has Air Canada established undue hardship with respect to the same flight ban accommodation?

[66] Air Canada raised constraints with respect to the same flight ban accommodation relating to contracts of carriage and code-share flights. The Agency will assess these constraints and related comments by the applicants and interveners to determine whether Air Canada has demonstrated that the obstacle posed by its current pet policy is not undue on the basis that its removal would result in undue hardship.

1. Contracts of carriage

Air Canada

[67] Air Canada submits that, when a person has booked and notified that they are travelling with a pet cat in the cabin before any notification is given that a person with a disability due to a “severe” cat allergy (i.e., the person experiences at least wheezing, coughing or shortness of breath) wants to travel on the same flight, or before a person booked on this flight has been confirmed as having such a disability, a “crystallized contract of carriage” is completed between Air Canada and the person travelling with the cat.

Applicants

[68] Ms. Daviau submits that, while she understands that there is a contract of carriage between Air Canada and the person travelling with a cat, there is also an understanding between Air Canada and any future passenger who wishes to book a seat after that first passenger has booked that they will be able to travel if there is a seat (any seat) available. In such cases, the contract of carriage for the person travelling with a cat could still be honoured, but simply altered, by requiring that the cat travel in the cargo area. She submits that, in this way, both passengers can get to their destination.

[69] Alternatively, Ms. Daviau suggests a policy that would allow the person travelling with a cat to choose another flight if the cat’s presence in the cabin will harm a person’s health, which may result in such persons “being continuously bumped to another flight” if they insist on carrying their cat in the cabin. Ms. Daviau submits that, perhaps, such an experience will make passengers realize that travelling with a cat is a health concern for many people and that they should leave their cat at home when they travel again.

[70] In addition, Ms. Daviau suggests that this would be easier from a carrier’s perspective in that both passengers could travel on the same flight.

2. Code-share flights

Air Canada

[71] Air Canada states that it is not alone in permitting cats in aircraft cabins and that many carriers worldwide have the same or similar policies. Air Canada explains that the exclusion of cats in the cabin would present a particular problem on code-share flights with U.S. carriers.

[72] Air Canada explains that in a code-share operation, the marketing carrier's terms and conditions of carriage apply and not those of the operating carrier. Air Canada states that, in situations where a carrier with which it operates a code-share flight does not place limits on pets carried in the cabin, Air Canada cannot limit the carriage of pets for the section of the flight sold under its partner's code.

Interveners

[73] The International Air Transportation Association (IATA) supports Air Canada’s position in respect of code-share flights with U.S. carriers.

[74] The Asthma Society submits that Air Canada’s code-share argument implies that Air Canada is able to set the terms for any portion of a code-share flight which it operates, especially in respect of all domestic flights. The Asthma Society adds that certain international carriers, such as British Airways, Thompson, Emirates, Qantas, Air Pacific and Gulf Air have already found a solution that allows them to prohibit pets in their cabins. The Asthma Society also states that pets are only allowed in cargo on all flights to or from Australia and South Africa. The Asthma Society suggests that based on the operations of their “airline peers,” it must be possible for Canadian carriers to restrict the carriage of cats on a portion of their flights.

[75] The Lung Association comments that Air Canada’s objections to a ban on cats in aircraft cabins are unconvincing. The Lung Association submits that it is well within the authority of the Agency to order whatever it sees as necessary accommodation for persons with disabilities and that this would have to be provided by any airline flying within or to/from Canada, including those airlines with which Canadian airlines operate code-share flights.

Analysis

1. Contracts of carriage

[76] Air Canada refers to a “crystallized contract of carriage” with a person travelling with a cat when the person has confirmed their seat prior to the booking of a person with a cat allergy disability.

[77] Terms and conditions of carriage are set by the carrier and the ticket constitutes the contract of carriage between a passenger and a carrier. The implementation of the same flight ban accommodation for the Dash 8-100/300 aircraft requires that no cats be carried as pets in the cabin in which persons with a cat allergy disability are travelling. Air Canada has not shown that it could not include, as a condition of carriage, that travel with a cat is subject to priority being given to persons with a cat allergy disability who have provided the requisite advance notification (see the section on “Adequate advance notification” below).

[78] Further, although Air Canada seems to indicate that there would be implications relating to tickets issued prior to the implementation of a ban to persons travelling with cats, it did not provide any evidence in respect of the significance of such implications.

[79] Accordingly, the Agency finds that Air Canada has not established that the implementation of the same flight ban accommodation constitutes undue hardship as it relates to the contract of carriage.

2. Code-share flights

[80] The Agency acknowledges that the marketing carrier’s terms and conditions apply in respect of code-share flights. However, while Air Canada states that it must operate pursuant to the terms and conditions of marketing carriers, it did not provide any evidence that it is currently operating code-share flights pursuant to code-share agreements on behalf of marketing carriers that allow the carriage of pets in the aircraft cabin.

[81] Nonetheless, even if this were the case, Air Canada did not show that it could not modify any such code-share agreements to implement the ban on cats carried as pets in the aircraft cabin in which persons with a cat allergy disability are travelling. Moreover, Air Canada has not presented any evidence to show that, in respect of future code-share agreements, it could not negotiate the inclusion of the condition that travel with a pet cat is subject to priority being given to persons with a cat allergy disability who have provided proper advance notification.

[82] Accordingly, the Agency finds that Air Canada has not established that the implementation of the same flight ban accommodation constitutes undue hardship as it relates to code-share flights.

Conclusion

[83] The Agency finds that Air Canada has not demonstrated that it would be an undue hardship to implement the appropriate accommodation on the Dash 8-100/300, i.e., a same flight ban on cats carried as pets in the aircraft cabin in which persons with a cat allergy disability are travelling.

[84] The Agency therefore finds that the obstacle that is created by Air Canada’s current pet policy regarding the carriage of cats in the aircraft cabin of the Dash 8-100/300 aircraft operated by Air Canada Jazz is undue.

AIR CANADA’S AIRBUS, BOEING AND EMBRAER AIRCRAFT AND AIR CANADA JAZZ’S CRJ 705 AND CRJ 100/200 AIRCRAFT

[85] As previously indicated, Air Canada chose to implement the appropriate accommodation identified by the Agency for its Airbus, Boeing and Embraer aircraft and Air Canada Jazz’s CRJ 705 and CRJ 100/200 aircraft. As such, Air Canada did not file undue hardship arguments and, instead, filed proposed policies and procedures in respect of a seating separation for these aircraft. The Agency therefore finds that the obstacle created by Air Canada’s existing pet policy, as it relates to the carriage of cats in these aircraft in which persons with a cat allergy disability are travelling, is undue.

ISSUE 2: DO AIR CANADA’S PROPOSED REVISED PET POLICIES PROVIDE APPROPRIATE ACCOMMODATION AND ARE CORRECTIVE MEASURES REQUIRED?

[86] Air Canada filed proposed policies and related procedures regarding the Airbus, Boeing and Embraer aircraft operated by Air Canada and the CRJ 705 and CRJ 100/200 aircraft operated by Air Canada Jazz.

[87] Air Canada has confirmed that it accepts the requirement for air circulation/ventilation systems using either HEPA filters (as are employed in its fleet of Airbus, Boeing and Embraer aircraft and in Air Canada Jazz’s CRJ 705 aircraft) or 100 percent unrecirculated fresh air (as applies in Air Canada Jazz’s CRJ 100/200 aircraft). In addition, Air Canada’s existing policy limits the number of cats that can be carried in the cabin and requires that they remain in a pet carrier. The Agency accepts those measures in support of the accommodation for persons with a cat allergy disability.

[88] The Agency’s following analysis of the proposed policies and procedures focuses on those additional aspects that directly support the provision of the appropriate accommodation for persons with a cat allergy disability.

AIR CANADA’S AIRBUS, BOEING AND EMBRAER AIRCRAFT AND AIR CANADA JAZZ’S CRJ 705 AND CRJ 100/200 AIRCRAFT

[89] Air Canada describes a seating separation in its policies and procedures in terms of a five-row “buffer zone” in which persons with a “severe” allergy to cats are seated and specified seating areas for persons travelling with a pet cat in the cabin of Air Canada’s fleet (i.e., Airbus, Boeing and Embraer aircraft) and Air Canada Jazz’s CRJ 705 and CRJ 100/200 aircraft.

[90] Air Canada further describes the seating separation in terms of the class of cabin in which a person with a cat allergy disability is sitting, as set out below.

Economy class cabin

[91] Air Canada’s proposed policy and procedures indicate that persons with a cat allergy disability would be seated in a “buffer zone,” which would consist of the last five rows in the Economy class cabin, including the seats across the aisle. Air Canada’s proposed policy and procedures also specify that persons travelling with a cat will be seated in the third row in the Economy class cabin.

Executive Class and Comfort Plus cabins

[92] Air Canada’s proposed policy and procedures indicate that in the Executive Class and the Comfort Plus cabins, the first row would be for persons with a disability as a result of their “severe” allergy to cats. The proposed policy and procedures indicate, however, that the configuration of the Executive Class and the Comfort Plus cabins does not allow for the implementation of a five-row seating separation, such that a person with a disability as a result of their “severe” allergy to cats and persons travelling with a pet cat would not be seated in the Executive Class and the Comfort Plus cabin at the same time.

[93] Air Canada’s proposed policy and procedures set out that persons who notify Air Canada’s Meda Desk of their “severe” allergy to cats and book an Executive Class or Comfort Plus fare would be accommodated in these classes of service when a person travelling with a pet cat has not already booked a seat in these same classes of service and notified Air Canada that they are travelling with a pet cat. If Air Canada receives a request by a person travelling with a cat to travel in either of these classes of service subsequent to a person with a cat allergy disability doing so, the person travelling with a cat would be offered another seat in the Economy class cabin or on another flight in Executive Class or Comfort Plus cabins at a fare applicable to the initially requested flight. Conversely, the same options would be offered when seating in Executive Class or Comfort Plus is not available upon request by a person with a cat allergy disability because a person travelling with a cat has already been confirmed to travel in these classes of service.

Executive First cabin

[94] Air Canada’s proposed policy does not permit pets in the Executive First class cabins equipped with pod seats as there is no room to put the pet carrier.

Analysis

Economy class cabin

[95] With respect to the seating of persons with a cat allergy disability, Air Canada proposes a “buffer zone” of five rows at the back of the Economy cabin. Persons travelling with a cat will be seated in the third row of the Economy cabin.

[96] In light of the size of the aircraft operated by Air Canada and the size of the CRJ 705 and CRJ 100/200 aircraft operated by Air Canada Jazz, the Agency is satisfied that Air Canada’s proposed seating measures related to the Economy class cabin in these aircraft will allow Air Canada to ensure that the minimum five-row seating separation will be provided.

Executive Class and Comfort Plus cabins

[97] Air Canada’s proposed policy suggests that persons with a cat allergy disability will be seated in the first row of the Executive class and Comfort Plus cabins, when seating in these classes of service is available.

[98] Air Canada explains that the configuration of these classes of service does not permit both a person with a cat allergy disability and a person travelling with a cat to be seated in the same cabin because of the limited number of rows.

[99] The Agency accepts Air Canada’s proposed policy as it relates to the Executive Class and Comfort Plus cabins on the following bases: firstly, on the basis that the ability of any passenger to reserve their preferred seat is always subject to its availability; and secondly, on the basis that, while persons with a cat allergy disability may not always be able to reserve the class of service they prefer, the proposed policy ensures that they will always be offered the appropriate accommodation on their selected flight, subject to seat availability. The appropriate accommodation determined by the Agency in these cases  is to ensure that persons with a cat allergy disability can be accommodated in the aircraft rather than in a specific seat. In this regard, the Agency recognizes that there are situations where passengers, whether they request accommodation or not, are not able to obtain their preferred seat because it is already reserved.

ADEQUATE ADVANCE NOTIFICATION AND MEDICAL APPROVAL TO TRAVEL

[100] The Obstacle Decision required the respondents to specify in their proposed policies what constitutes adequate advance notification of a person’s need for accommodation to address their allergy to cats.

[101] Air Canada’s proposed policy and procedures require an advance notification of 48 hours and a medical approval via its Fitness for Travel Form (FFT form) in order for persons with a disability as a result of their “severe” allergy to cats to be provided with the seating separation. Air Canada explains that other persons with disabilities, including, but not limited to those allergic to peanuts or tree nuts, must complete this form. Air Canada states that the medical clearance for persons with a disability as a result of their “severe” allergy to cats would be valid for 10 years for adults and three years for children under 12 years of age.

[102] In cases where the Meda Desk is not provided with the required 48 hours advance notification, Air Canada states that it will make every reasonable effort to accommodate a person with a disability as a result of their “severe” allergy to cats.

Applicants

[103] Ms. Covell raises concerns that the requirements for being accepted as a person with a “severe” allergy to cats appear to be much more stringent than those in respect of a need/desire by a passenger to keep their cat with them to provide comfort.

[104] Ms. Daviau states that finding a doctor and paying for the medical note can be prohibitive for many people. Ms. Daviau also questions what a person with a disability will do if they need to travel at the last minute and cannot get the medical approval process completed in time. She suggests that Air Canada should eliminate this medical assessment from its process. She submits that, although the FFT form is currently in use, she challenges this practice.

Analysis

[105] While Ms. Daviau and Ms. Covell question Air Canada’s fitness for travel assessment process, the Agency has long recognized that insofar as carriers must provide additional services to meet the needs of persons with a disability, they are entitled to information, such as that required from persons’ physicians via the FFT form. Moreover, the Agency recognizes that carriers need information from the person’s physician to assess that person’s fitness to travel and to determine how best to meet their disability-related needs.

[106] The Agency also recognizes that it takes time for carriers to assess a person’s fitness to travel and to arrange disability-related services. As previously noted in respect of WestJet’s advance notification requirements, the Agency is of the opinion that a 48-hour advance notification period, which is consistent with the ATR, is reasonable. Air Canada’s proposed policy and procedures in this regard provide certainty to persons with a cat allergy disability that they would receive a minimum seating separation of five rows from pet cats in the cabin when they provide at least a 48-hour advance notification. In situations where Air Canada receives notification of a person’s cat allergy disability less than 48 hours prior to departure, the carrier’s proposed policy and procedures provide that it would make its best efforts to provide the accommodation. Again, this is consistent with the ATR and considered by the Agency to be reasonable.

[107] The Agency is satisfied that the 48-hour advance notification proposed by Air Canada is necessary and the proposed measures to address situations when less than 48 hours advance notification is provided are acceptable.

[108] The Agency sees no reason to conclude that the 48-hour advance notification period required by Air Canada in respect of its fleet and the CRJ 705 and CRJ 100/200 operated by Air Canada Jazz would not also be sufficient to provide accommodation on the Dash 8-100/300 aircraft. Moreover, this 48-hour advance notification period is consistent with the ATR. The Agency therefore accepts that a 48-hour advance notification requirement for Air Canada Jazz’s Dash 8‑100/300 aircraft is necessary in recognition of the carrier’s need, as discussed above in respect of its other aircraft, for sufficient time to assess the fitness for travel of persons with a cat allergy disability and to ensure that there will be no pet cats in the same cabin.

[109] Accordingly, where persons with a cat allergy disability provide at least 48 hours advance notification, those persons will be given priority. Where persons with a cat allergy disability wish to travel on a Dash 8-100/300 aircraft and have not provided at least 48 hours advance notification of their need for accommodation, the Agency is of the opinion that the same flight ban accommodation must be provided in situations where persons travelling with a cat do not already have a confirmed reservation. If this is not the case, the persons with a cat allergy disability must be provided with the same flight ban accommodation within 48 hours on an appropriate alternative flight on which there is no person travelling with a cat already booked.

SEPARATION MAINTAINED DURING BOARDING/DEPLANING AND ON BOARD

[110] As set out in the Obstacle Decision, the respondents were required to provide a clear description of how a seating separation would be maintained during boarding/deplaning and while persons with a cat allergy disability are on board the aircraft (e.g. for accessing an onboard washroom).

[111] Air Canada’s proposed policy and procedures provide that persons with a cat allergy disability would be assigned a “Meda code” on their boarding cards which would allow them to pre-board the aircraft.

[112] Air Canada states that, as persons with a disability as a result of their “severe” allergy to cats would be seated in the last five rows of the Economy class cabin, they would be near the washrooms in the aft portion of the aircraft. Air Canada submits that these persons would likely not cross through the seating separation and pass near the seat of a person travelling with a pet cat when accessing the washroom.

[113] Air Canada notes that the configuration of its Executive Class and Comfort Plus cabins does not allow for the implementation of a five-row seating separation such that Air Canada’s proposed policy and procedures reflect that a person with a disability as a result of their “severe” allergy to cats would not be seated in the Executive Class or in the Comfort Plus cabin at the same time as a person travelling with a pet cat.

Analysis

[114] Air Canada’s proposed policy and procedures address the boarding process for persons with a cat allergy disability who are travelling in Economy class. However, they do not address how the five-row seating separation will be maintained during the deplaning process, nor during boarding and deplaning when the aircraft has different classes of service and/or while persons with a cat allergy disability are on board an aircraft where washrooms are only located at the front end of the aircraft.

[115] To ensure the effectiveness of the seating separation in addressing the risk of exposure to airborne allergens from cats carried in the aircraft cabin, the Agency is of the opinion that this separation must be maintained during boarding/deplaning, and while persons with a cat allergy disability is on board the aircraft (e.g., for accessing an onboard washroom). Air Canada has not raised constraints that would prevent it from doing so. Therefore, the Agency finds that Air Canada’s policy and procedures must clearly set out the seating location and the related boarding/deplaning processes that will ensure that the five-row seating separation is maintained during boarding/deplaning, and while persons with an allergy to cats are on board the aircraft (e.g., for accessing an onboard washroom), including in situations where washrooms are only located at the front end of the aircraft.

PROCESS TO ENSURE THAT APPROPRIATE ACCOMMODATION IS PROVIDED

[116] The Obstacle Decision required the respondents to provide a clear description of the process that they will implement to ensure that the appropriate accommodation will be provided to persons with a cat allergy disability.

[117] Air Canada describes the following processes in support of its proposed seating separation policy.

Executive class and Comfort Plus cabins

[118] In terms of the reservation process for the Executive Class and the Comfort Plus cabins, Air Canada explains that following a determination by the Meda Desk that a person has a “severe” cat allergy, the person’s reservation in the Executive Class or the Comfort Plus cabin would be confirmed if there is no person travelling with a cat already booked in the same class of service. The person travelling with a pet cat who subsequently attempts to book a seat in the Executive Class or the Comfort Plus cabin on that flight would be offered another seat in the Economy cabin or in the same class of service on another flight at a fare applicable to the initially requested flight. Conversely, further to notifying Air Canada that they are travelling with a pet cat, the reservation of a person travelling with a pet cat in the Executive Class and the Comfort Plus cabin would be confirmed if there is no person with a disability as a result of their “severe” allergy to cats already booked in these classes of service. The person with a disability as a result of their “severe” allergy to cats who subsequently attempts to book a seat in the Executive Class or the Comfort Plus cabin on that flight would be offered another seat in the Economy Class cabin or in the same class of service on another flight at a fare applicable to the initially requested flight.

[119] Persons with a cat allergy disability would be assigned a seat in the first row in the Executive Class or the Comfort Plus cabin and, if seating in these classes of service is not possible and the person travels in Economy Class, the procedures as set out below in respect of the Economy class cabin, would apply.

Economy class cabin

Call Centre procedures

[120] Air Canada’s procedures include that, upon request for the seating separation, its Call Centre personnel would verify whether there is a person travelling with a pet cat on board the flight. The Call Centre personnel would then confirm the reservation as per the Meda Desk procedures described below, including adding the code that indicates that the person has an allergy to cats and has been approved for travel and related remarks.

[121] The person would be assigned a seat within the last five rows in the Economy Class cabin or in the first row in the Executive Class or the Comfort Plus cabin.

Meda Desk procedures

[122] Air Canada’s procedures indicate that Meda Desk agents will process the FFT form completed by a person’s treating physician to establish whether the person has a “severe” cat allergy. Air Canada would offer to create a file for the person indicating long-term medical approval of 10 years for adults and three years for accompanied children under 12 years of age.

[123] The Meda Desk agents would inform the person that they will be allowed to pre-board the aircraft and that a “buffer zone” will be created on the aircraft. The person would be informed of what the “buffer zone” consists of and would be advised to carry their asthma inhaler pump and to bring their wet wipes, filter mask, hand sanitizer, seat cover, or any items that they normally consider in their precautions.

Airport and Gate procedures

[124] Air Canada’s proposed procedures indicate that its airport employees would first retrieve the Departure Control System (DCS) record to ensure that the person with a “severe” cat allergy has received medical clearance to travel. If this is not the case and if the person has the FFT form and the Meda Desk is open, Air Canada will make every reasonable effort to accommodate the person.

[125] Once medical clearance has been provided, it appears in the DCS record, on the passenger’s boarding pass and on the Passenger Information List to notify the in-flight personnel that the person has a disability as a result of their “severe” allergy to cats and requires a seating separation. Check-in personnel would determine whether a person travelling with a pet cat is booked on the flight and, if this is the case, they would ensure that the five-row “buffer zone” has been created; if this has not been done, the procedures relating to the creation of the zone would be applied. If the reservation is for the Executive Class or the Comfort Plus cabin and there is already a person travelling with a pet cat booked in these classes of service, another seat in the Economy Class cabin or another flight would be offered to the person with a cat allergy disability. The procedures further indicate that if the check-in personnel are unable to confirm at check-in that the person will be accommodated, they would advise the Check-In Manager who would co-ordinate with the gate agent to ensure that the accommodation is provided.

[126] The gate personnel would advise the flight service director of the names and the seat numbers of the person with the “severe” allergy to cats, the person travelling with a pet cat and the “buffer zone” row numbers.

[127] The procedures further indicate that if the accommodation cannot be confirmed at the gate, the gate personnel would advise the in-flight services personnel who would co-ordinate with the gate agent.

In-Flight Service procedures

[128] If a person with a disability as a result of their “severe” allergy to cats requests a seating separation once on board the aircraft without having obtained prior approval from the Meda Desk, the person would be informed that they cannot travel. The person would be advised to contact the Meda Desk for medical approval.

Analysis

[129] With respect to Air Canada’s Airbus, Boeing and Embraer aircraft and Air Canada Jazz’s CRJ 705 and CRJ 100/200 aircraft, the Agency is satisfied that the proposed procedures to be implemented by Air Canada are adequate to ensure that the minimum five-row seating separation is provided when advance notification of at least 48 hours prior to flight departure is given and that best efforts will be made when less notification is provided. The Agency notes, however, that Air Canada’s procedures provide limited instructions regarding situations when persons travelling with a pet cat attempt to book a flight to ensure that a minimum five-row seating separation will be provided, at all times, if persons with a cat allergy disability have already booked a seat on the same flight. For example, there are no instructions in the proposed procedures regarding requests by persons who want to travel with a pet cat in the Executive Class or the Comfort Plus cabins. The Agency is of the opinion that Air Canada must include in its procedures instructions to its personnel to ensure that the appropriate accommodation is provided.

[130] With respect to Air Canada Jazz’s Dash 8-100/300 aircraft, the Agency finds that Air Canada Jazz must establish procedures regarding reservations handled by its Call Centre personnel, medical clearance administered by the Meda Desk and processes undertaken by its check-in, gate and in-flight services personnel to ensure that the same flight ban accommodation will be provided to persons with a cat allergy disability who wish to travel on such aircraft.

TRAINING TO BE PROVIDED TO EMPLOYEES

[131] The Obstacle Decision required the respondents to include in their proposed policies a requirement that training is provided to employees regarding the appropriate accommodation to be implemented.

[132] Air Canada did not provide any details regarding the training necessary to ensure that its personnel provide the appropriate accommodation for persons with a cat allergy disability.

Analysis

[133] Although Air Canada’s policies and procedures did not contain a commitment to provide its personnel with training, it goes without saying that, to implement a new policy and procedures, carriers must provide such training. Moreover, it is a regulatory requirement, which is reflected in the Agency’s Personnel Training for the Assistance of Persons with Disabilities Regulations (PTR) that transportation service providers train their personnel on how to provide accommodation to persons with disabilities. Accordingly, the Agency finds that Air Canada and Air Canada Jazz must provide training for their personnel to ensure that they will provide appropriate accommodation on all aircraft operated by them, including the Dash 8-100/300 aircraft.

ORDER

[134] WestJet is ordered, when at least 48 hours advance notification is provided by persons with a cat allergy disability, to provide the following appropriate accommodation, with best efforts to do the same when less than 48 hours advance notification is provided:

• a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a cat allergy disability and cats carried as pets in the cabin, including during boarding and deplaning and between their seat and a washroom.

[135] Air Canada is required to provide the following appropriate accommodation on its fleet and the CRJ 705 and CRJ 100/200 aircraft operated by Air Canada Jazz, when at least 48 hours advance notification is provided by persons with a cat allergy disability, with best efforts to do the same when less than 48 hours advance notification is provided:

• a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a cat allergy disability and cats carried as pets in the cabin, including during boarding and deplaning and between their seat and a washroom.

[136] Air Canada Jazz is ordered to implement the following appropriate accommodation on its Dash 8-100/300 aircraft:

1. when at least 48 hours advance notification is provided by persons with a cat allergy disability, a ban on cats carried as pets in the aircraft cabin in which persons with a cat allergy disability are travelling; and,
2. when advance notification of less than 48 hours is provided by persons with a cat allergy disability, a ban on cats carried as pets if no person travelling with a pet cat has already booked on the selected flight. If a person travelling with a pet cat has already booked,  persons with a cat allergy disability must be provided with the same flight ban accommodation within 48 hours on the next flight available on which there is no person with a pet cat already booked. If the next available flight is beyond the 48-hour period, persons with a cat allergy disability must be given priority as per 1) above.

[137] Should WestJet’s, Air Canada’s or Air Canada Jazz’s current or future fleet contain aircraft that do not have an air circulation/ventilation system using HEPA filters or that do not provide 100 percent unrecirculated fresh air, they are ordered to implement the measures associated with the same flight ban accommodation to provide appropriate accommodation.

[138] WestJet, Air Canada and Air Canada Jazz are ordered to develop and implement policies and procedures necessary to provide the above-noted appropriate accommodation and in doing so, they must ensure that they address any deficiencies noted in this Decision. For the sake of clarity, the respondents can decide how to provide the required five-row seating separation in terms of where in a cabin or in a class of service persons with a cat allergy disability and persons travelling with cats are seated. WestJet, Air Canada and Air Canada Jazz are also ordered to provide the necessary training to their staff to ensure the provision of the appropriate accommodation.

[139] WestJet, Air Canada and Air Canada Jazz are provided with 45 business days from the date of this Decision to comply with this order.

Member(s)

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DISSENTING OPINION OF MEMBER RAYMON J. KADUCK ON APPROPRIATE ACCOMMODATION.

[140] As noted in Decision No. 430-AT-A-2011, I dissent with respect to the finding by my colleagues that a five row separation constitutes appropriate accommodation for the applicants, as the only empirical evidence on file suggests that two rows is sufficient and that all orders should be adjusted to that standard. The reasons for my dissent are contained in that Decision. In all other respects, I agree with my colleagues that the order is appropriate, including: adequate advance notification; maintenance of seats separation during boarding/deplaning and on board; process to ensure that appropriate accommodation is provided; and, training to be provided to employees.