Decision No. 32-AT-A-2021

April 26, 2021

APPLICATION by WestJet, pursuant to section 32 of the Canada Transportation Act, SC 1996, c 10 (CTA), requesting that the Canadian Transportation Agency (Agency) review Decision Nos. 66-AT-A-2010, 430-AT-A-2011 and 227-AT-A-2012, and the Agency’s concurrent review of Decision Nos. 228-AT-A-2011 and 134-AT-A-2013, also pursuant to section 32 of the CTA.

Case number: 
20-05413

SUMMARY

[1] WestJet filed an application with the Agency, pursuant to section 32 of the CTA, requesting that the Agency review Decision Nos. 66-AT-A-2010, 430-AT-A-2011 and 227-AT-A-2012, regarding accommodations for persons whose allergies to cats constitute a disability. WestJet argues that the coming into force of the Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244 (ATPDR) constitutes a change in facts and circumstances that warrants a review of the Agency’s order with respect to buffer zones in Decision No. 227-AT-A-2012. WestJet asks that the Agency rescind its order with respect to buffer zones in Decision No. 227-AT-A-2012.

[2] WestJet’s application prompted the Agency to also consider whether it should review, rescind or vary related decisions, Decision Nos. 228-AT-A-2011 and 134-AT-A-2013, in addition to Decision No. 227-AT-A-2012 (collectively, the Allergy Decisions).

[3] Air Canada and Jazz Aviation LP (Jazz), two of the original respondents to the Allergy Decisions, support WestJet’s application and submit that the new facts and circumstances are significant enough to warrant a rescission, not just of the orders establishing buffer zones, but of the Allergy Decisions in their entirety. They assert that the ATPDR are a single consistent regulation that applies to all severe allergies and all carriers in all federal modes of transportation equally, levelling the playing field by replacing a series of complicated and inconsistent orders that required accommodation based on a variety of factors (including the type of allergen, the aircraft type, and the length of advance notice provided by the passenger).

[4] Accordingly, the Agency will address the following issues:

  1. Should the Agency finalize its preliminary finding, set out in Decision No. LET‑AT‑A-73-2020 (Letter Decision), that the first part of the test for a review of the Allergy Decisions is met, namely that the results of the Ministerial Inquiry and the ATPDR are new facts and circumstances that were not known or discoverable at the time of the hearing of the cases that led to the issuance of the Allergy Decisions?  
  2. If so, should the Agency find that the new facts and circumstances are significant enough to warrant the rescission or variance of the Allergy Decisions pursuant to section 32 of the CTA?
  3. If so, how should the Agency vary or rescind the Allergy Decisions?

[5] For the reasons set out below, the Agency finalizes its preliminary finding that the first part of the test for a review of the Allergy Decisions is met. The Agency also finds that the new facts and circumstances are significant enough to warrant a review of the Allergy Decisions, and rescinds its orders contained in the Allergy Decisions.

BACKGROUND

Allergy Decisions

[6] Sophia Huyer and Rhonda Nugent, on behalf of her daughter Melanie Nugent, each filed applications against Air Canada concerning their allergies to peanuts and nuts. In addition to hearing from the parties involved in this case, the Agency also heard from expert witnesses on the appropriate accommodation before it issued its final decision, Decision No. 228-AT-A-2011, in June 2011. In that decision, the Agency ordered that, when given advance notice by persons with disabilities due to their allergy to peanuts or nuts, Air Canada is obligated to create a buffer zone. The Agency also ordered that Air Canada not serve, or allow other passengers to consume, nuts or peanuts within that buffer zone.

[7] Steven Rosenbaum filed an application against Air Canada and Jazz with respect to his two minor sons’ peanut, nut and sesame seed allergies. The Agency found in Decision No. 134-AT-A-2013, issued in March 2013, that the accommodation set out in Decision No. 228-AT-A-2011 equally applied to this case, such that the Agency ordered Jazz to continue to provide the accommodation ordered in Decision No. 228-AT-A-2011, as it pertains to nut and peanut allergies. In addition, the Agency ordered Air Canada and Jazz to provide a seating separation for persons with allergies to foods other than peanuts and nuts, including sesame seeds, upon request, “in combination with precautions that person[s] with severe allergies would be expected to take in their daily lives”.

[8] In Decision No. 66-AT-A-2010, the Agency joined applications filed by Katherine Covell and Sarah Daviau, each against Air Canada, and an application by Dr. J. David Spence against Air Canada, Jazz and WestJet into one proceeding because all three applications raised a common issue: the applicants’ allergies to cats. The Agency issued its final determination in this case in Decision No. 227-AT-A-2012 in June 2012 in which it addressed separate orders to WestJet, Air Canada and Jazz, including that WestJet and Air Canada were to provide a buffer zone of five rows.

Ministerial Inquiry

[9] In February 2015, the Minister of Transport directed the Agency to conduct an inquiry into the issue of passenger allergies to peanuts, nuts and sesame seeds on board aircraft with 30 or more seats that are used in the federal transportation network. The Agency’s Inquiry Officer sought independent expertise, consulted with air carriers and allergy associations, and reviewed Canadian and foreign air carriers’ policies about the carriage of peanuts, nuts and sesame seed allergens. Ultimately, the Inquiry Officer listed several measures that would be most effective for mitigating the risk of anaphylaxis due to peanut, nut and sesame seed allergens, including, but not limited to, a buffer zone consisting of the row in which the allergic passenger sits or the pod-seat, as applicable. These findings were set out in the Inquiry Officer’s report on the Ministerial Inquiry into Allergies to Peanuts, Nuts and Sesame Seeds in Commercial Air Travel (Ministerial Inquiry) in 2016. The Agency accepted the Inquiry Officer’s report in Decision No. 178-AT-A-2016.

ATPDR

[10] Subsection 170(1) of the CTA allows the Agency to develop regulations “for the purpose of identifying or removing barriers or preventing new barriers … to the mobility of persons with disabilities”. Under this authority, the Agency developed the ATPDR over three years from 2016 to 2019, merging two existing regulations, six codes of practice and best practices from Canadian and other jurisdictions into one comprehensive and legally binding set of regulations. Most of the provisions of the ATPDR came into force on June 25, 2020, including section 53, which sets out the obligation for air, rail, marine and bus carriers, as defined by Part 2, to establish an allergy buffer zone of the bank of seats in which the person with an allergy is sitting and the bank of seats facing them, if applicable.

WestJet’s application for a section 32 review

[11] WestJet filed an application with the Agency, pursuant to section 32 of the CTA, on June 9, 2020, requesting that the Agency review Decision Nos. 66-AT-A-2010, 430‑AT‑2011 and 227-AT-A-2012. WestJet argues that the coming into force of the ATPDR constitutes a change in the facts and circumstances that warrants a review of those decisions, specifically the order for a five-row buffer zone set out in Decision No. 227-AT-A-2012. WestJet refers to the disparity between the one-row buffer set out in section 53 of the ATPDR and the order of a five-row buffer zone in Decision No. 227‑AT‑A-2012.

Letter Decision

[12] In the Letter Decision, the Agency declined to address WestJet’s request to review Decision Nos. 66-AT-A-2010 and 430-AT-A-2011. Because the relief WestJet seeks is a rescission of the order set out in Decision No. 227-AT-A-2012, the Agency indicated it would focus its attention on that decision.

[13] The Agency noted, however, that the issues raised by WestJet’s application are also relevant to Decision Nos. 228-AT-A-2011 and 134-AT-A-2013, where the Agency issued similar orders regarding buffer zones as an accommodation for persons whose allergies to peanuts and/or nuts constitute a disability. Accordingly, the Agency indicated it would review the Allergy Decisions in a single process.

[14] Further, in the Letter Decision, the Agency preliminarily determined that the Ministerial Inquiry and the ATPDR constituted new facts and circumstances that warranted a review of the Allergy Decisions such that the first part of the test for a review of the Allergy Decisions is met (elaborated on below). Parties to the cases that led to the issuance of the Allergy Decisions—including the seven original applicants, four original interveners and three original respondents—were provided with the opportunity to submit their positions on the following issues remaining before the Agency:

  • whether the Agency should finalize its preliminary finding that the first part of the test for a review of the Allergy Decisions is met; and
  • whether the Agency should find that the new facts and circumstances are significant enough to warrant a rescission or a variance of the Allergy Decisions pursuant to section 32 of the CTA.

[15] Air Canada filed a position on behalf of itself and Jazz on December 3, 2020. Four of the seven original applicants filed their positions between December 4, 2020, and December 18, 2020. Air Canada filed a reply on behalf of itself and Jazz on January 7, 2021, after which pleadings closed.

THE LAW

[16] Section 32 of the CTA sets out the review process for Agency decisions or orders:

The Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

[17] Subsection 172(1) of the CTA sets out the mechanism by which the Agency can inquire into whether there is an undue barrier to persons with disabilities:

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 barrier to the mobility of persons with disabilities.

[18] Subsection 172(2) sets out the Agency’s authority to award corrective measures and/or compensation if it determines there is an undue barrier to persons with disabilities.

[19] Subsection 172(3) of the CTA speaks to the Agency’s jurisdiction to order corrective measures that go beyond regulations:

If the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency may determine that there is an undue barrier in relation to that matter but if it does so, it may only require the taking of appropriate corrective measures.

[20] The obligation for carriers to establish a buffer zone is set out in section 53 of the ATPDR:

Duty to establish buffer zone

(1) On the request of a person who has a disability due to a severe allergy, a carrier must ensure that a buffer zone is established around
      the passenger seat of the person to assist them in avoiding the risk of exposure to the allergen by taking the following measures:

(a) providing the person with a passenger seat that is in a bank of seats other than the bank of seats in which the source of the
     allergen is located and other than the bank of seats facing that bank of seats; and

(b) notifying the passengers who are sitting in the same bank of seats as the person that a passenger with a severe allergy is present
     and informing them of the allergen.

Definition of bank of seats

(2) In this section, bank of seats means passenger seats that are immediately adjacent to each other and does not include passenger seats
     that are across the aisle.

[21] Paragraph 34(1)(c) of the ATPDR sets out conditions for priority boarding, which may be afforded to persons with severe allergies, as follows:

A carrier must permit a person with a disability, on request, to board in advance of other passengers if

(c)  in the case where the person is disabled due to a severe allergy, the person has requested to clean their passenger seat to remove any potential allergens.

POSITIONS OF THE PARTIES AND FINDING OF FACT

Original respondents’ positions

WESTJET

[22] WestJet argues that the coming into force of the ATPDR constitutes a change in the facts and circumstances that warrants a review of the Agency’s order with respect to the five-row buffer zone in Decision No. 227-AT-A-2012 (Allergy Order). WestJet requests that the Agency review Decision No. 227-AT-A-2012 because “the Agency has subjected WestJet to certain compliance requirements that are significantly more onerous than those contained in the ATPDR”. WestJet specifies that the Allergy Order is more burdensome than the one-row buffer zone stipulated in the ATPDR.

AIR CANADA AND JAZZ

[23] Air Canada and Jazz submit that they “unequivocally support finalizing the Agency’s preliminary finding” because the ATPDR were not in effect at the time the Allergy Decisions were issued such that the ATPDR constitute new facts and circumstances.

[24] Air Canada and Jazz also submit that the new facts and circumstances are significant enough to warrant a rescission, not just of the orders establishing buffer zones, but of the Allergy Decisions in their entirety. Air Canada and Jazz argue that the significance of the ATPDR “cannot be understated”. They submit that the ATPDR are a set of binding and enforceable accessibility requirements that have provided a “level playing field” for all carriers as they apply to all federal modes of transportation and not just to specific carriers. Air Canada and Jazz argue that if the Agency does not rescind the Allergy Decisions, Air Canada and Jazz will be subject to more onerous obligations than other carriers in the federal transportation network.

[25] Air Canada and Jazz submit that prior to the ATPDR, allergy accommodations on board aircraft were regulated through complicated and inconsistent orders in several Agency decisions. They point out that the accommodation required was based on a variety of factors, including the operating carrier, the type of allergen, the aircraft type, the length of advance notice provided by the passenger, whether a HEPA filter was present in the aircraft and the passenger’s seat location on board the aircraft. The ATPDR, by contrast, provide a single consistent regulation that applies to all severe allergies and all carriers equally.

[26] In their reply, Air Canada and Jazz respond to several of the original applicants’ submissions set out below, although they argue that none of these submissions are “directly relevant” to the issues the Agency set out in the Letter Decision.

Original applicants’ positions

KATHERINE COVELL

[27] Dr. Covell argues that the existing buffer zone of five rows is inadequate for addressing her allergy to cat dander, so a reduced buffer zone would be “even worse”. Dr. Covell submits that because cat dander is airborne, even a separation of the length of the cabin does not eliminate or even reduce her exposure to her allergen. She adds that being placed at the back of the aircraft when a cat is near the front makes the situation worse as she is on board the aircraft for a longer period. She submits she cannot travel on an aircraft with a cat as she cannot breathe.

[28] Dr. Covell argues that there are many areas in society where animals are not permitted, such as in most medical facilities, academic examinations and employment interviews. She points out that persons with anxiety appear to be able to cope in these situations. She submits that animals on board aircraft should be limited to service dogs, which are appropriately trained and, she concedes, needed.

SARAH DAVIAU

[29] Ms. Daviau submits that a passenger who brings a cat on board spends extra time holding and touching their cat not only on board the flight, but also before the flight in an effort to comfort the animal prior to travel in a crate. She claims that this causes a “double [and] triple impact” of cat dander and saliva being present on passengers’ clothing and person, which are then transferred to common surfaces in the aircraft such as headrests, overhead bins and washroom areas.

[30] Ms. Daviau argues that if the allergy buffer zone of five rows is reduced to one row, the allergen transfer will be increased in the area around her and likely cause her additional asthma flare-ups and pain in her ears and sinuses. Additionally, Ms. Daviau submits that following a flight with a cat, she experiences flu-like symptoms and side effects from the allergy and asthma medication she must take. She also claims that it causes her stress, especially if her return flight also has a cat on board the aircraft. She claims that the one‑row buffer zone will make these symptoms worse and will, thus, not be sufficient.

[31] Ms. Daviau submits that changing the buffer zone again will cause unnecessary confusion for carrier staff and misinterpretation of what the regulations are.

[32] Ms. Daviau states that she would prefer that cats were banned entirely from the passenger cabin as her allergy to cats is “more severe” than a “typical pet allergy sufferer”. She is asking that the Agency allow her special consideration so that she can continue to receive at least the five-row buffer zone.

DR. J. DAVID SPENCE

[33] Dr. Spence argues that while a one-row buffer zone may be appropriate for a nut allergy, cat allergens are more likely to be airborne. He states that cat allergen is “particularly buoyant and sticky; … ‘it easily remains airborne and may last in a home for up to 6 to 9 months after the source is removed.’” Dr. Spence also argues that a total ban on cats in aircraft would be preferable, but failing that, an accommodation of the five-row buffer zone would be needed. Dr. Spence requests that the Agency seek expert advice from the Canadian Society of Allergy and Immunology.

SOPHIA HUYER

[34] Dr. Huyer argues that there are some gaps in the studies that have concluded that airborne and skin contact with nut allergens do not cause “dangerous reactions”. She submits that although this kind of contact may not be dangerous, it can still cause allergic reactions. She submits that the effects of increased altitude on nut allergens have not been studied, especially as the air volume on board aircraft is limited and does not circulate frequently. Dr. Huyer also argues that the time it takes to land an aircraft in the case of an emergency would not be sufficient if a passenger were to experience a fatal incident. Dr. Huyer concludes that there is not enough scientific data to demonstrate that there is no risk to passengers with nut allergies at high altitude.

[35] Dr. Huyer goes on to compare the seriousness with which society approaches the need to protect its population from exposure to anthrax and COVID-19, or children in schools from nut allergens, with the risk that air carriers and the Agency place on people with nut allergies on board aircraft.

ANALYSIS AND DETERMINATIONS

[36] The test set out by the Agency for addressing requests pursuant to section 32 of the CTA is as follows:

The burden of proof rests on the applicant requesting the review pursuant to section 32 of the CTA to provide the Agency with sufficient evidence demonstrating that the two following criteria have been met:

    • Since the decision, there has been a change in the facts or circumstances pertaining to the decision that was not known or was undiscoverable by the applicant at the time of the hearing.
    • The change in the facts or circumstances is significant enough to warrant a review, rescission and/or variance of the decision.

Should the Agency finalize its preliminary finding that the first part of the test for a review of the Allergy Decisions is met?

[37] WestJet sought this finding in its application, and Air Canada and Jazz support finalizing the finding. The four original applicants who submitted positions to the Agency did not address whether the Agency should finalize its preliminary finding on this issue.

[38] The latest of the Allergy Decisions was issued in 2013. The Ministerial Inquiry began in 2015, and the report on its findings was published in 2016. The ATPDR were published in July 2019, following their development starting in 2016. Obviously, because the Ministerial Inquiry and the ATPDR postdate the Allergy Decisions, they were not known or discoverable when the Allergy Decisions were made. The Agency, therefore, finds that the Ministerial Inquiry and ATPDR are changes in facts and circumstances that occurred since the issuance of the Allergy Decisions.

[39] Further, the Ministerial Inquiry and ATPDR are facts and circumstances pertaining to the Allergy Decisions. The Ministerial Inquiry addressed issues directly related to Decision Nos. 228-AT-A-2011 and 134-AT-A-2013 and tangentially related to Decision No. 227‑AT‑A-2012, as the Inquiry Officer sought independent expertise on how passengers on board aircraft with 30 or more passenger seats may be affected when peanut, nut and sesame seed allergens are introduced to them via inhalational, ingestion and topical (dermal) exposure while on board an aircraft. The Ministerial Inquiry also addressed how allergen particles move throughout an aircraft environment.

[40] The Agency therefore finalizes its preliminary finding set out in the Letter Decision and finds that the first part of the test for a review of the Allergy Decisions is met, in that the Ministerial Inquiry and the ATPDR are new facts and circumstances pertaining to the Allergy Decisions that were not known or discoverable at the time of the hearing of the cases that led to the issuance of the Allergy Decisions.

Should the Agency find that the new facts and circumstances are significant enough to warrant a rescission or variance of the Allergy Decisions pursuant to section 32 of the CTA?

[41] WestJet, Air Canada and Jazz all argue that the ATPDR and the Ministerial Inquiry are new facts and circumstances significant enough to warrant a rescission or variance of the Allergy Decisions. Air Canada and Jazz reiterate the Agency’s preliminary position that the ATPDR and Ministerial Inquiry were the result of significant research, consultation, and rigorous procedural steps. All three carriers argue that the ATPDR are a set of binding principles that apply to all federal carriers equally. Moreover, Air Canada and Jazz point out that the ATPDR also treat all severe allergies equally, as opposed to the Allergy Decisions, which direct different orders to respond to different allergies. Finally, Air Canada and Jazz assert that subjecting them to a more burdensome standard than the ATPDR undermines the integrity of the ATPDR.

[42] None of the original applicants who submitted positions directly addressed this issue.

[43] The original applicants submitted the applications that led to the issuance of the Allergy Decisions pursuant to subsection 172 of CTA. Subsection 172(1) allows the Agency to inquire into whether there is a barrier (previously, “obstacle”) to the mobility of persons with disabilities. Notably, section 172 is a complaint-driven process, which means the Agency can only address an alleged barrier after an application has been submitted. Generally, the Agency’s inquiry into the barrier will be concerned with the facts that are relevant to the specific case before it. Further, the Agency’s powers to order corrective measures under subsection 172(2) are limited to the respondents involved in that case.

[44] Each of the individual applicants demonstrated to the Agency that they—and, in some cases, their minor children—were persons with disabilities, as a result of their severe allergies, who required accommodation in order to travel by air. Their applications brought an important issue to light and led to the Agency’s findings of undue obstacles to the mobility of persons who are disabled by certain allergies and to the issuance of the corrective measures orders in the Allergy Decisions. However, the corrective measures ordered were based on the evidence in each case that was before the Agency at that time. This, in turn, led to a patchwork of orders that varied depending on the nature of the allergen, the carrier respondent, the aircraft they operated, and several other factors.

[45] The Ministerial Inquiry, on the other hand, provided an opportunity several years later for the Inquiry Officer to address issues related to the Allergy Decisions, but in a much broader context. Up-to-date, independent expert opinion was obtained from a prominent allergist and immunologist and a National Research Council multidisciplinary group comprised of experts in aerospace engineering, indoor air quality, ventilation, environmental health, exposure science and biology. Further, the Ministerial Inquiry gathered input from four Canadian allergy associations, all Canadian air carriers that have 30 or more passenger seats (17 carriers at that time) and an additional 37 foreign air carriers.

[46] Similarly, the development of the ATPDR allowed the Agency to examine the issues addressed by the Allergy Decisions in a broader context. Subsection 170(1) of the CTA allows the Agency to address barriers to the mobility of persons with disabilities more systematically by making regulations to remove or prevent barriers. To this end, the Agency developed the ATPDR following extensive consultations with persons with disabilities, disability rights organizations, the industry, members of the Agency’s Accessibility Advisory Committee and the general public over a period of three years. The complaint-driven process of section 172 often addresses circumstances where a person with a disability has already encountered a barrier, and focuses on the appropriate remedy that should be granted as a result of the incident. Conversely, the focus of regulations is to address barriers before, instead of after, they occur.

[47] As a means to establish consistent industry standards for the reduction, removal or prevention of barriers to persons with disabilities, regulations are more appropriate than adjudication on a case-by-case basis involving individual applicants and limited numbers of carriers. Now that the ATPDR are in force and establish comprehensive industry standards regarding the accommodation of persons with disabilities arising from severe allergies, the Agency finds that the current circumstance—in which WestJet, Air Canada and Jazz are subject to more burdensome and complicated requirements than all other carriers in the federal transportation network—is a significant factor warranting a rescission or variance of the Allergy Decisions.

[48] Further, the Agency finds that the new information and expert opinions presented to the Agency during the Ministerial Inquiry and throughout the extensive consultation process that underpinned the establishment of the ATPDR are significant new facts. The Agency finds that this information and these expert opinions are relevant to the Allergy Decisions to such a degree that the Agency likely would have decided the Allergy Decisions differently had that information been available.

[49] In light of the above, the Agency finds that these new facts and circumstances are significant enough to warrant a rescission or variance of the Allergy Decisions pursuant to section 32 of the CTA.

How should the Agency rescind or vary the Allergy Decisions?

[50] In the Letter Decision, the Agency acknowledged that the ATPDR are a set of binding regulations designed to ensure equal access of persons with disabilities to the federal transportation network. Section 53 of the ATPDR, which sets out the requirement for a one-row buffer zone, has been in effect since June 25, 2020. The Agency stated in the Letter Decision that, in reviewing its orders set out in the Allergy Decisions, it would not revisit the requirements the ATPDR established for federal transportation carriers generally. Given the volume of information and expert opinions obtained from the Ministerial Inquiry and the many consultations held with disability rights advocates during the development of the ATPDR, the Agency expects that these requirements will generally meet the needs of most passengers with disabilities.

[51] Air Canada and Jazz argue that a review of the Allergy Decisions should not be limited to the buffer zones, but should extend to the other measures imposed in these decisions. The rationale for this position is that these decisions imposed complicated and inconsistent accommodation, which varied depending on a number of factors, including the type of aircraft, the nature of the allergen, and the length of notice given by the passenger. The up-to-date information and expert evidence assessed in the context of the Ministerial Inquiry and the establishment of the ATPDR indicated that a simpler and more consistent approach for all carriers in all modes of transportation would suffice to meet the needs of most persons who are disabled by severe allergies, which in turn supports rescinding all of the orders in the Allergy Decisions rather than only the buffer-zone requirements.

[52] That said, in the proceedings that led to the issuance of the Allergy Decisions, the Agency found that Dr. Huyer, Dr. Covell, Ms. Daviau and Dr. Spence demonstrated that they are persons with disabilities due to their allergies. The Agency noted in the Letter Decision that subsection 172(3) of the CTA now allows the Agency to order corrective measures that go beyond a regulatory minimum standard if a person with a disability demonstrates that such steps are necessary to remove barriers that remain despite the regulation and that are specific to their disability-related needs. The Agency stated in the Letter Decision that, in deciding whether to rescind or vary the Allergy Decisions, it would “consider whether the original applicants in the Allergy Decisions have specific needs that are not adequately addressed by the standard that is established in section 53 of the ATPDR, such that corrective measures can be justified, consistent with subsection 172(3) of the CTA”.

[53] The Agency notes that during this review process, Melanie Nugent did not file a position and Dr. Huyer did not make any claims that she would require an accommodation beyond the one-row buffer zone set out in section 53 of the ATPDR. The Agency, thus, finds that there is no evidence to support the need for a corrective measure specific to those applicants as it relates to the order in Decision No. 228-AT-A-2011. Therefore, the Agency rescinds its order in Decision No. 228-AT-A-2011 and does not order accommodation measures specific to those applicants.

[54] Similarly, neither Zack Rosenbaum nor the minor child represented by Mr. Rosenbaum, the applicants in the case that led to the issuance of Decision No. 134‑AT‑A‑2013, filed a position on the review of the Allergy Decisions. As such, the Agency finds that there is no evidence to support the need for a corrective measure specific to these applicants as it relates to the order in Decision No. 134-AT-A-2013. The Agency, therefore, rescinds its order in Decision No. 134-AT-A-2013 and does not order accommodation measures specific to those applicants.

[55] Dr. Spence does not address his needs in particular during this review process but argues that cat dander allergens act differently in the air than nut or peanut allergens. Although he provides citations to sources, only one of the three sources is publicly available and it does not speak to Dr. Spence’s individual needs.

[56] Dr. Covell submits that she cannot travel on board an aircraft with a cat because she cannot breathe, even with a five-row buffer zone. She claims that a one-row buffer zone would be worse. However, Dr. Covell does not provide during the review process any medical documentation to support her claims. It would therefore not be appropriate to grant the accommodation that Dr. Covell seeks in the context of this process.

[57] Ms. Daviau submits that she suffers more than the average pet allergy sufferer and that a reduction of the buffer zone from a five-row buffer zone to a one-row buffer would likely cause her to have more asthma flare-ups and pain in her ears and sinuses. She adds that managing these symptoms would require her to take additional medication and cause added stress. While Ms. Daviau also does not provide any medical documentation to support her claims during this review process, she does provide some description of her symptoms and mitigation strategies as evidence.

[58] The Agency noted in the Allergy Decisions that it expects that persons with allergies will take the same precautions on board an aircraft as they would in their daily lives, which may mean, among other mitigation strategies, wiping down surfaces prior to contact, as provided for in subsection 34(1) of the ATPDR, or taking medication when one comes into contact with an allergen. Further, given the volume of expert opinion that the Agency considered during the Ministerial Inquiry and in developing the ATPDR, the Agency concludes that it does not have a record before it that would provide a basis for ordering through this review process an accommodation for the original applicants that goes beyond the regulatory standard of a one-row buffer zone. For this reason and the reasons set out above, the Agency also rescinds its order set out in Decision No. 227-AT-A-2012 and does not order accommodation measures specific to Dr. Spence, Dr. Covell and Ms. Daviau at this time.

[59] Notwithstanding, the Agency recognized above that the minimum standards set out in the ATPDR may not meet the needs of all persons with disabilities. If the original applicants (or any other person with a disability) require accommodations that go beyond the regulatory standards, they may request from carriers such an accommodation, supported by medical evidence. If they are denied a necessary accommodation, they may seek relief from the Agency under section 172 of the CTA. Medical documentation from an applicant’s treating physician should be included in such an application to substantiate the need for accommodation beyond what the ATPDR provide in order for the Agency to consider granting such relief.

CONCLUSION

[60] Having found that the Ministerial Inquiry and the ATPDR are a change in facts and circumstances significant enough to warrant a review, rescission or variance of the Allergy Decisions, and that the original applicants have not met their burden to demonstrate that they need an accommodation measure specific to their needs that goes beyond the regulatory standard provided in section 53 of the ATPDR, the Agency rescinds the orders it set out in the Allergy Decisions.

Member(s)

Scott Streiner
Elizabeth C. Barker
Allan Matte
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