Decision No. 29-AT-C-A-2020
APPLICATION by Suha Kormod (applicant) against Porter Airlines Inc. (Porter).
SUMMARY
[1] The applicant, accompanied by an Emotional Support Animal (ESA), was told to disembark the aircraft when Porter identified the ESA’s behaviour as posing a safety risk. The applicant filed an application with the Canadian Transportation Agency (Agency) against Porter pursuant to:
- subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), with respect to the carrier’s failure to transport the applicant and the ESA; and
- subsection 110(4) of the Air Transportation Regulations,SOR/88-58, as amended (ATR), regarding Porter’s refusal to transport the applicant.
[2] The applicant sought a full refund of the flight tickets, a reimbursement of the train ticket from Toronto, Ontario, to Montréal, Quebec, in the amount of CAD 166.11, as well as a complimentary ticket to go anywhere Porter travels, with approval for the ESA to travel with her, as well as approval to use the seat next to her for the ESA if one is available. The applicant also requested that the Porter agent who told her to disembark the outbound flight receive a reprimand and training relating to ESAs. The applicant has received a partial refund of the flight tickets.
[3] In Decision No. LET-AT-C-A-67-2019 (Decision), the Agency found that the applicant is a person with a disability who encountered an obstacle to her mobility when she was told to disembark the aircraft and was, thus, unable to travel with the ESA. However, the Agency further found, on a preliminary basis, that the obstacle was not undue. The applicant was given the opportunity to justify why the Agency should not finalize this preliminary finding.
[4] For the reasons set out below, the Agency finalizes its preliminary finding from the Decision, finds that the obstacle cannot be removed without causing Porter undue hardship, and dismisses the application.
BACKGROUND
[5] On November 3, 2017, the applicant was travelling with an ESA from Montréal, Quebec, to Newark, New Jersey, via Toronto, Ontario, and was scheduled to return on November 5, 2017. The applicant and the ESA travelled from Montréal to Toronto, but the applicant was told to disembark the aircraft for the flight segment from Toronto to Newark when Porter identified the ESA’s behaviour as posing a safety risk.
[6] The applicant submits that, after this incident, Porter refused to allow her and the ESA to take another flight to go back home to Montréal and that she had to purchase a train ticket to go back to Montréal.
[7] In the Decision, the Agency:
- denied the applicant’s request that her remedy include a complimentary ticket to go anywhere Porter travels, holding that, with respect to incidents that occurred before the Accessible Canada Act, S.C., 2019, c. 10,came into force on July 11, 2019, the Agency does not have the jurisdiction to order payment of compensation for pain and suffering, or inconvenience;
- dismissed the portion of the application filed under subsection 110(4) of the ATR regarding Porter’s refusal to transport the applicant, finding that Porter properly applied the terms and conditions set out in its applicable tariff provisions (Rule 25 of its Canadian General Rules Tariff No. CGR-1 Containing Rules Governing the Transportation of Passengers and Baggage Applicable Between Points in Canada Between Points in the United States and Canada, NTA(A) No. 241) and that, for this reason, no compensation was owed to the applicant;
- found that the applicant is a person with a disability for the purposes of Part V of the CTA and that she encountered an obstacle to her mobility when she was told to disembark the aircraft and was, thus, unable to travel with the ESA; and
- found, on a preliminary basis, that in light of the ESA’s behavior, the obstacle was not undue, and gave the applicant an opportunity to justify why the Agency should not finalize this preliminary finding and dismiss the application.
[8] On October 16, 2019, the applicant filed her response to the Decision. On November 7, 2019, Porter filed its answer. The applicant did not file a reply to Porter’s answer.
PRELIMINARY MATTERS
[9] The applicant takes issue with the Agency’s findings in the Decision with respect to the obstacles to her mobility that she encountered in this case. The Agency’s findings on this issue were final and, under section 32 of the CTA, it only has authority to review, rescind or vary them if there has been a change in the facts or circumstances pertaining to the decision. As explained in greater detail below, the Agency is of the opinion that the applicant has not demonstrated that there are new or changed facts or circumstances that warrant reviewing, rescinding or varying the findings in that Decision.
How the applicant was treated
[10] The applicant argues that the Decision did not address the tone used by one of the Porter agents dealing with her on the second flight segment from Toronto to Newark.
[11] The applicant’s account in the application describes her interaction with a Porter agent upon boarding the flight, but does not specifically refer to the tone used by the Porter agent and how it would have been inappropriate. The applicant claims that the Porter agent told her that “she would kick [her] off the plane”. In its answer, Porter denies that its agents “acted in a rude or threatening manner”.
[12] While the tone used by the Porter agent who interacted with the applicant upon boarding may have been sharp, the Agency did not consider it to be an obstacle in these circumstances.
Information provided by the carrier
[13] The applicant states that the Decision did not address the fact that she was told during the second flight segment that the ESA could not be considered an ESA due to its size. Porter did not comment on this.
[14] The Agency did not find the issue of the coding used for the ESA to be an obstacle to the applicant’s mobility because Porter was prepared to carry the animal regardless of whether it was considered an ESA or a service animal. The coding had no bearing on Porter’s decision to disembark the applicant from the aircraft; that decision was due to the behaviour of the ESA.
Insufficient floor space for the ESA
[15] In her response to the show cause direction, the applicant raises a new claim that the floor space available at the seat for the ESA was insufficient for the animal to lie down comfortably. The applicant states that the floor space available for the ESA on both flights was not what is recommended in the Agency’s Implementation Guide Regarding Space for Service Dogs Onboard Large Aircraft. The applicant submits that the ESA did attempt to lay down on the floor as requested, but that it was not possible for the ESA to comply with the command because the floor space was insufficient, which created “a sense of nervousness”.
[16] The applicant submits that at the time of the incident, she was not aware of how much space the carrier would provide for the ESA. The applicant indicates that although the flight was booked on the day of travel, Porter accepted the ESA knowing its size and the space required and failed to provide sufficient floor space.
[17] Porter points out that the applicant raises new arguments and alleges new failures to accommodate that were not part of the application or the applicant’s reply to Porter’s answer to the application. Porter submits that the new allegation that it did not provide adequate floor space, which the applicant claims was the cause of the ESA’s unsafe behaviour, is outside the scope of the application and not related to the Agency’s preliminary finding. Further, Porter argues that the new allegations are not supported by any evidence.
[18] Before the Agency rendered the Decision, the applicant had two opportunities to raise insufficient floor space as an issue, but never mentioned this, nor made the claim that the ESA could not lie down on the floor for that reason. Rather, the applicant indicated that the ESA had never flown before and that Porter did not provide sufficient time for it to settle down. Insufficient floor space was only raised as a claim after the applicant received the Agency’s Decision on her original allegations. The Agency finds that the applicant has not produced a new fact or circumstance that would warrant a review of the Decision pursuant to section 32 and, in any event, finds the credibility of this assertion to be lacking under the circumstances.
THE LAW
[19] The accessibility-related portion of the application was filed pursuant to subsection 172(1) of the CTA, which reads as follows:
The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.
[20] As outlined in the letter that opened the pleadings, the first steps in dealing with this application were to consider whether the applicant is a person with a disability for the purposes of Part V of the CTA and, if so, whether she encountered an obstacle.
[21] If it is determined that the applicant is a person with a disability and that she encountered an obstacle, the Agency would typically open pleadings to give the respondent the opportunity to either explain how it proposes to remove the obstacle or provide accommodation, or to demonstrate that it cannot remove the obstacle without experiencing undue hardship, after which, the applicant would have an opportunity to reply. However, in this case, the Agency made preliminary findings on undue hardship and gave the parties an opportunity to respond before finalizing the decision.
POSITIONS OF THE PARTIES
The applicant
[22] The applicant reiterates that on the first flight segment from Montréal to Toronto, the ESA was allowed to sit on the unoccupied seat next to her. In support of that argument, the applicant provides a picture dated November 3, 2017, showing a dog on a seat next to the applicant. The time of the picture shows 6:41 p.m., which the applicant says coincides with her first flight segment. Further, the applicant suggests that insufficient floor space for the ESA to lie down comfortably may be why a Porter agent allowed the ESA to sit on her lap during the first flight segment.
[23] The applicant also refers to the Decision which states that:
With respect to the second additional accommodation—allowing the ESA to sit on the seat next to the applicant or on their lap—it is doubtful that an agitated 57‑pound ESA could actually sit calmly in either location and, in any event, permitting it to do so would have had serious safety implications. In the case of turbulence or an emergency, an unrestrained animal of that size located above floor level could become airborne, posing a safety hazard not only to the applicant, but also to others on the flight.
[24] The applicant argues that the above is a supposition, as she travelled with the ESA sitting next to her for the first flight segment without incident. The applicant submits that the ESA was restrained, that she was holding the ESA the entire time, and that Porter did not suffer any undue hardship by permitting this.
[25] The applicant denies Porter’s allegation that the ESA is untrained. The applicant provides a letter attesting that the ESA has been trained to work as a therapy assistance dog.
[26] The applicant points out that in several paragraphs of the Decision, it states that the ESA “was not calm, not trained and that [she] did not have control over the animal.” The applicant claims that “excessive panting does not mean that the dog is not calm or exhibiting unacceptable behaviour”. The applicant suggests that the excessive panting was related to nervousness. The applicant argues that comments about the fact that the ESA was “agitated, erratic and jumping on seats” are also untrue and that the ESA “did not present any dangerous behaviour such as growling, barking, agitation, erratic, or jumping on seats.”
Porter
[27] Porter submits that the applicant did not demonstrate how the requested accommodations do not constitute undue hardship for Porter and requests that the preliminary finding issued in the Decision be finalized.
ANALYSIS AND DETERMINATIONS
[28] In the Decision, the Agency found that the applicant encountered an obstacle to her mobility when she was told to disembark the aircraft and was, thus, unable to travel with the ESA. However, the Agency went on to find, on a preliminary basis, that the obstacle was not undue, because Porter was justified in refusing to transport the applicant and the ESA in light of the behaviour of the ESA. The issue to be decided now is whether the applicant has demonstrated that the Agency should not finalize this preliminary finding and dismiss the application.
[29] The leading jurisprudence on the assessment of undue hardship is the Supreme Court of Canada’s decisions in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. 3 and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868. This jurisprudence is reflected in Agency decisions, such as Decision No. 379-AT-R-2016 (Rector v. VIA), where the Agency has found that to establish undue hardship, a service provider must demonstrate that:
- the source of the obstacle is rationally connected to the provision of the transportation service;
- the source of the obstacle was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; and
- it cannot provide any form of accommodation without incurring undue hardship.
[30] The Agency’s preliminary analysis of these factors is set out in the Decision and the Agency adopts and relies on that analysis in this decision.
[31] Having considered the submissions of both parties, the Agency confirms that the source of the obstacle that the applicant encountered was Porter’s ESA policy, which defines the circumstances in which Porter will accept ESAs for air travel. The Agency finds that there is a rational connection between the content of the ESA policy and Porter’s stated purpose to “seek to remove travel obstacles for persons with disabilities, subject always to the primary superseding obligation to ensure the safety of its passengers, crew and aircraft.”
[32] The Agency also concludes that Porter adopted its ESA policy based on an honest and good faith belief that it was necessary in order to provide safe transportation services to its passengers, including those travelling with ESAs.
[33] The Agency further finds, based on the evidence before it, that Porter applied its policy to the applicant in good faith. As noted in the Decision, Porter took a number of measures at the outset of the second flight to accommodate the applicant and the ESA: it relocated the passenger seated beside them to provide additional space for the ESA on the floor, it gave the applicant extra time to calm the ESA, and it offered to assist the applicant by retrieving dog treats from her carry-on baggage in the overhead compartment. At the same time, consistent with its policy, Porter refused the applicant’s request to allow the ESA to sit on the seat next to her.
[34] The question that remains, then, is whether Porter could have provided any additional form of accommodation without incurring undue hardship. The applicant argues that Porter should have:
- given her additional time to settle the ESA; and
- allowed the ESA to sit on the seat next to her or on her lap.
Additional time to settle the ESA
[35] The applicant disputes Porter’s claims that the ESA was “clearly untrained”, providing evidence that it was trained by Tri-L Canine Center “in basic and advanced obedience and general socialization…. in order to enable [the ESA] to work as a therapy assistance dog for [the applicant]”. However, the training of the ESA is of little relevance in this case, as Porter refused transportation to the applicant due to the behaviour of the ESA on the day in question.
[36] Porter states that the ESA was “unable to rest calmly on the floor at [the applicant’s] feet, being the designated area for the safe carriage of ESAs” and that the purser observed that the ESA was “agitated and its behaviour clearly erratic” and that it was “nervous and jumping on seats”. The applicant did not reply to Porter’s allegations about the ESA’s behaviour before the Agency rendered the Decision, but now denies that the ESA was agitated, erratic and jumping on seats. However, the applicant acknowledged in the original application that the ESA was nervous, fidgeted and was not lying on the floor. On a balance of probabilities, the Agency finds that Porter’s description of the ESA’s behaviour is more probable than that of the applicant.
[37] The Agency confirms its preliminary analysis in the Decision that in light of the behaviour of the ESA, Porter had a reasonable basis for safety-related concerns. Even if the applicant was personally prepared to assume certain risks, the risks were significant and extended to other passengers and the crew on the flight.
[38] The applicant has not provided any evidence to support her assertion that the safety‑related risks would have abated with the passage of time. Even if the applicant had eventually been able to settle the ESA, Porter had a reasonable basis for concern that the ESA would become agitated again, which could have resulted in in-flight safety risks.
[39] For these reasons, the Agency finds that the safety risks involved in providing the additional accommodation proposed by the applicant would have caused undue hardship to Porter.
Allowing the ESA to sit on the seat next to the applicant or on her lap
[40] The applicant continues to argue that because Porter allowed the ESA to sit on the seat beside her on the first flight segment, Porter should be required to provide this accommodation in the future, and that its refusal to do so in her case was unreasonable. The Agency has already found that the record does not support the applicant’s allegation that Porter authorized her ESA to sit on a seat during the first flight segment, particularly in light of Porter’s explicit denial and the fact that authorizing this would be inconsistent with safety requirements. As noted in the Decision, the safety requirements in Porter’s ESA policy are consistent with the regulatory requirements and/or guidance documents issued by Transport Canada, the Agency, and the United States’ Department of Transportation. Even if the ESA did, in fact, sit on a seat for the first leg of the trip, that does not make this an appropriate arrangement for other flights and it does not eliminate the serious safety implications for the applicant and other passengers.
[41] The Agency finds that the safety risks involved in providing the applicant with this accommodation would have resulted in undue hardship for Porter.
CONCLUSION
[42] In light of the above, the Agency finds that although the applicant encountered an obstacle to her mobility when Porter refused to transport her with the ESA on November 3, 2017, that obstacle was not undue. The Agency, therefore, dismisses the application.
Member(s)
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