Decision No. 348-AT-A-2005

With Decision No. 719-AT-A-2005

June 1, 2005

File No. U3570/05-7

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APPLICATION

[1] On February 1, 2005, Barry Growe, on behalf of Lindsey Cook, filed with the Canadian Transportation Agency (hereinafter the Agency) an application regarding the issues set out in the title. Mr. Growe also raised concerns regarding the $14,560.00 cost for round-trip travel on a stretcher from Vancouver to Toronto.

[2] On March 10, 2005, Air Canada filed its answer to the application and on March 21, 2005, Mr. Growe filed his reply. On March 29, 2005, May C. Ong-Lam, MD, F.R.C.P.(C), Ms. Cook's physician, filed information regarding Ms. Cook's disability and her need to get on and off the stretcher when she travels.

[3] In its Decision No. LET-AT-A-114-2005 dated April 15, 2005, the Agency sought comments from Transport Canada on the safety-related aspects of the application and additional information from Air Canada. In its Decision, the Agency also advised the parties of its intention to hold an information gathering session if, upon review of the pleadings, it was determined that further information was needed to assist the Agency in rendering its decision. On April 18, 2005, Air Canada addressed the ambulance service issue, requested that the Transportation Safety Board of Canada (hereinafter TSB) participate in this file, and requested an extension of time to file its response to Decision No. LET-AT-A-114-2005. Mr. Growe filed comments on April 18 and 19, 2005 on Air Canada's answer to the ambulance-related issue. The Agency, in its Decision No. LET-AT-A-126-2005 dated April 19, 2005, granted Air Canada's request for an extension of time to April 29, 2005.

[4] The Agency, in its Decision No. LET-AT-A-130-2005 dated April 20, 2005, sought comments from TSB on the safety-related matters in this application.

[5] On April 25, 2005, Transport Canada filed its response to Decision No. LET-AT-A-114-2005 and Air Canada filed its response on April 28, 2005. On April 29, 2005, TSB filed its response to Decision No. LET-AT-A-130-2005 and indicated that the safety issues are one of a regulatory nature which can best be dealt with by Transport Canada.

[6] On April 29, 2005, Mr. Growe filed comments on Air Canada's response to Decision No. LET-AT-A-144-2005. On May 3, 2005, Mr. Growe filed additional information and clarifications and requested that Air Canada provide the measurement of the space between the row of seats when the back of the seat is collapsed to accommodate a stretcher.

[7] In its Decision No. LET-AT-A-143-2005 dated May 6, 2005, the Agency advised that it would hold an information gathering session in Vancouver, British Columbia on May 19 and 20, 2005 to assist the Agency in rendering its decision.

[8] In its Decision No. LET-AT-A-144-2005 dated May 6, 2005, the Agency requested that Air Canada provide additional information on specific dimensions of certain spaces within the aircraft prior to or at the information gathering session. On May 6, 2005, Air Canada requested an extension of time to file its response to Decision No. LET-AT-A-144-2005 and in the Agency's Decision No. LET-AT-A-148-2005 dated May 11, 2005, the Agency granted Air Canada's request for an extension of time until May 13, 2005.

[9] On May 12, 2005, Air Canada provided its response to Decision No. LET-AT-A-144-2005.

[10] An information gathering session was held in Vancouver, British Columbia on May 19, 2005. Participants included representatives for Air Canada and Transport Canada as well as Mr. Growe and Ms. Cook and her physician, May C. Ong-Lam and her physiotherapist, Howard Jones M.C.S.P., M.C.P.A., O.N.C.

FACTS

[11] Ms. Cook has fibro myalgia and, as a result, experiences frequent pain and stiffness in her joints, muscles, back and neck. She has frequent pain in her low back, mid-back, shoulders, neck, and jaw. Ms. Cook also gets frequent headaches. Ms. Cook's condition is somewhat controlled by medication and physical therapy. Ms. Cook does stretching exercises and takes three or four hot showers per day to keep from getting stiff and in order to relax her muscles.

[12] Mr. Growe contacted Air Canada on February 1, 2005 to inquire about travelling from Vancouver to Toronto by stretcher, at which time Air Canada indicated that the cost of the round trip is $14,560.00 plus taxes; that Ms. Cook would be secured to a stretcher in Vancouver and would not be permitted to get off the stretcher until she arrived in Toronto; and that Ms. Cook would have to be transferred by ambulance attendants onto Air Canada's stretcher without an opportunity to get off and stretch or use the washroom.

[13] Air Canada carries passengers who are required to lie down on its Aero-Medical stretcher, which Air Canada describes as follows:

• the stretcher deck measures 21" X 80" and can support small to medium build passengers;
  • the stretcher pad is 18" wide;
  • the stretcher top is 35" from the floor;
  • the stretcher is equipped with an adjustable harness with over the shoulder straps and waist and leg belts to restrain passengers during aircraft movement;
  • the stretcher can not be moved, raised or lowered; it is not equipped with wheels;
  • stretchers must be installed by Air Canada ground personnel at the location specified in each aircraft chapter;
• the stretcher straddles folded-down seats in Hospitality Class and is installed one seat away from the aisle, where it remains for the duration of the flight;
• in a two-seat configuration, the stretcher is secured next to the fuselage of the aircraft over existing seats with collapsed seat backs; when the configuration of the aircraft presents three seats on each side, such as in an Airbus A320, the stretcher is secured over the middle seat;
• this process requires Air Canada to block off six to nine seats depending on the configuration of the aircraft and depending on the aircraft model; and
• the two seats in the third row used for the stretcher installation are not folded down; a person could be seated in the aisle seat in this row.

[14] Air Canada operates Airbus A320 aircraft between Vancouver and Toronto, which has a bank of three seats. Most of Air Canada's A320s are certified to carry a stretcher.

[15] Air Canada's Safety and Emergency Procedures - Cabin Personnel manual states, in part, that persons with disabilities who are designated as non-ambulatory and non-self-reliant are not able to move within the aircraft cabin without assistance and are incapable of self-care during the flight. Persons with disabilities who are designated as non-ambulatory and non-self-reliant must travel with an assistant (personal attendant) during flight. Air Canada designates persons with disabilities travelling on a stretcher as non-ambulatory and non-self-reliant.

[16] Air Canada filed the training video used to train its station attendants on the installation of a stretcher within the aircraft cabin. The video also includes demonstrations and instructions on the fastening of the securement system with a person lying on a stretcher.

PRELIMINARY MATTERS

Additional fares and charges

[17] At the time that Mr. Growe filed his application, the Agency had before it another application that involves fares and charges for persons with disabilities who require additional seating due to their disabilities. As such, the Agency, in its Decision No. LET-AT-A-54-2005 dated February 11, 2005, determined that it would address the stretcher cost aspect of Mr. Growe's application in conjunction with its investigation of the other application.

Late filing

[18] Although Mr. Growe's March 21, 2005 reply to Air Canada's answer and Transport Canada's response to Decision No. LET-AT-A-114-2005 were filed after the prescribed deadlines, the Agency, pursuant to section 5 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts the submissions as being relevant and necessary to its consideration of this matter.

Transportation by ambulance to the airport

[19] With respect to Mr. Growe and Ms. Cook's request that she be able to travel to the airport in their passenger van rather than by ambulance, the Agency notes that Air Canada indicated that it does not require Ms. Cook to travel to the airport by ambulance and has no say on how Ms. Cook gets to the airport. As this matter is not in dispute, the Agency will not address this issue.

ISSUE

[20] The issue to be addressed is whether Air Canada's policy on stretcher service constitutes an undue obstacle to Ms. Cook's mobility, and if so, what corrective measures should be taken.

POSITIONS OF THE PARTIES

[21] The positions put forth by the parties are discussed in terms of the issues raised and the parties' respective comments provided to the Agency at the information gathering session and in writing prior to the session.

Mr. Growe and Ms. Cook

Requirement to remain on the stretcher

[22] Mr. Growe submits that in order for Ms. Cook to travel on a lengthy flight, without worsening her condition, she requires the following:

• to lie down on her side on a flat surface, i.e., a stretcher, softened by a foam pad, for most of the flight; and
• from time to time, to stand and walk briefly to stretch her muscles, as well as use the washroom, whenever other passengers are permitted to move about the aircraft.

[23] Mr. Growe states that it is essential that Ms. Cook be able to get up and move around during the five-hour flight from Vancouver to Toronto. Mr. Growe suggests that she could do this when the other passengers are permitted to move about the cabin. Ms. Cook notes that getting up helps her move her joints and shoulders and allows her to stretch her legs a bit.

[24] Ms. Cook explains that maintaining a balance between resting and being active during the day is important because if she is active for too long or rests too long, she gets stiff, which worsens her pain. Ms. Cook adds that fibro myalgia not only varies in severity, but also fluctuates from day to day and, at times, from morning to afternoon. She states that it is, therefore, important for her to pace herself in everything she does.

[25] Mr. Growe explains that they do not want Ms. Cook to travel if it is unsafe for her to do so. Mr. Growe is of the opinion that co-operation from Air Canada will enable them to address safety-related details. It is Mr. Growe's opinion that the best option is the removal of an aisle seat next to the stretcher so that Ms. Cook would have a wide space in which to step up and down from the stretcher; the second best option would be for the stretcher to be placed over aisle seats so that Ms. Cook could step directly down into the aisle; and the third option is to allow her to step up and down in the space between the rows of seats. Mr. Growe notes that if the third option must be used, it would be helpful if he could take measurements, a few days prior to departure, of the space between rows on the aircraft type that would be used for the flight.

[26] Mr. Growe submits that he can construct a stepping stool to allow Ms. Cook to get on and off the stretcher, in the same way as she gets onto their 31-inch high massage table, with the use of an 11-inch high stepping stool.

[27] Mr. Growe suggests that as they can plan their trip well in advance, they could determine the aircraft type that would be used, along with the exact height of the stretcher, including a foam cushion that Ms. Cook would lie on, which Air Canada's medical office indicated she could use on the stretcher. Mr. Growe submits that knowing the height of the stretcher would enable them to bring a stepping stool high enough to allow Ms. Cook to get up and down from the stretcher safely and comfortably. Mr. Growe states that the stepping stool would be made of plastic or Styrofoam and could be readily stowed out of the way when not in use and the stepping stool would be adjustable in the event that the type of aircraft was changed at the last minute.

[28] In this regard, Mr. Growe notes that this stepping stool will be smaller than an item of carry-on luggage and considerably lighter. It is Mr. Growe's opinion, based on his recent observations on a Vancouver-Toronto flight, that the space between seats allows enough space for this step.

[29] Mr. Growe is of the opinion that passengers will be no more at risk when Ms. Cook is on the stepping stool for 2-3 seconds ascending or descending than they are when other passengers move about the cabin during times deemed safe by the pilot. Mr. Growe states that as Ms. Cook steps up and down, he will "spot" her at all times. Mr. Growe points out that Ms. Cook is not prone to stumbling and is easy to support.

[30] Mr. Growe submits that Ms. Cook can move through a sitting position for 2-3 seconds. Mr. Growe explains that transient movement places entirely different stresses on the muscles of the back than staying seated in a chair and Ms. Cook has not sat in a chair for nearly 20 years. Mr. Growe indicates that after Ms. Cook lies down, she always needs to move a bit to adjust her position and she has learned how to do this carefully and safely.

[31] Mr. Growe explains that once Ms. Cook is on the stretcher, he would secure her shoulder harness/chest strap and leg belt when needed and if the stretcher were placed near a washroom, Ms. Cook would not need to go any farther than the washroom when she stands up either to stretch her muscles or to use the washroom, so that she would be able to return promptly to the stretcher if necessary. Mr. Growe points out that he would accompany Ms. Cook at all times.

[32] Mr. Growe states that Ms. Cook will need to spend most of the flight on her side, during which time she can use the waist and leg belts, if necessary. He adds that in the event that it is necessary to use the adjustable shoulder harness during takeoff, landing and turbulence, Ms. Cook could then lie on her back using a bolster and pillows placed under her legs.

[33] Mr. Growe submits that if the Agency's ruling goes against their request to allow Ms. Cook to move briefly on several occasions during the flight, Dr. Ong-Lam can give Ms. Cook medication to sedate her to allow her to remain on her back on the stretcher for five, six or seven hours if necessary to travel to Toronto. Mr. Growe adds, however, that they are concerned about this as a possible solution as it would result in Ms. Cook's muscles being in that position for a prolonged period of time and regardless of whether she is sedated or not, her back would be in a certain position that is not appropriate for her condition. Mr. Growe submits that their fear is that Ms. Cook could be quite disabled with pain for weeks, which will prevent her from having the visit she wishes to have with her parents. Mr. Growe further points out that it is about quality of life and Ms. Cook's ability to be upbeat with her parents when she visits with them. Mr. Growe notes that they have had visits with Ms. Cook's parents in the past when she was in pain and they managed as it was better than no visit but it was not ideal.

[34] Mr. Growe states that he is not asking Air Canada to do anything illegal and he is of the opinion that their request would not be tremendously onerous on Air Canada. In this regard, Mr. Growe is of the opinion that the kind of training involved in showing flight attendants how to verify that the restraint belts are properly fastened appears to him as being fairly straightforward such that only a brief training period would be required. Further, Mr. Growe indicates that he will leave it up to the Agency to determine whether this flight would require the training of 7,000 people.

[35] Mr. Growe submits that the Agency needs to make a decision about what is an acceptable risk to Ms. Cook, and to other passengers, but primarily to Ms. Cook, in using stepping stools, in getting up and down and lying on her side.

Requirement to retain ambulance attendants

[36] Mr. Growe submits that as Ms. Cook is an ambulatory person with a disability, it is unclear why she needs the involvement of ambulance attendants. He states that she is capable of walking into the airport and to the departure gate, where she could lie on her foam pad until it is time to board the aircraft. Mr. Growe adds that after ground personnel installs the stretcher, Ms. Cook could walk onto the aircraft and get onto the stretcher; similarly, she could disembark by walking off the plane.

[37] Mr. Growe submits that Air Canada's policies and procedures appear to have been written to address the transportation of non-ambulatory, severely ill patients. Mr. Growe requests that the Agency consider that these are not relevant to an ambulatory person with a disability who needs to lie on a stretcher during a flight, but who can walk to the aircraft; walk onto the aircraft; and, with a stepping stool, get on and off the stretcher without assistance, except for the assistance Mr. Growe provides in placing Ms. Cook's foam pad, pillows and the stepping stool.

[38] Mr. Growe explains that it is much better for Ms. Cook to walk onto the aircraft and simply step from a stepping stool onto the stretcher than for her to be shifted from one stretcher to another.

[39] Ms. Cook indicates that she would be able to transfer herself from one stretcher to another. By way of example, she refers to serious abdominal surgery that she has previously had. Ms. Cook explains that she had to learn to get in and out of the hospital bed without using her abdominal muscles and notes that she could move from the stretcher to the operating table and then back into her hospital bed from the stretcher.

Dr. Ong-Lam

[40] Dr. Ong-Lam, Ms. Cook's pharmacologist and pain specialist, states that Ms. Cook has been her patient for 16 years. Dr. Ong-Lam explains that Ms. Cook uses a stepping stool to get onto the examining table and then lies down. Dr. Ong-Lam indicates that Ms. Cook has severe pain, primarily in her back, neck and head and her sitting tolerance position is very low, close to zero, and is probably a maximum of five minutes. Dr. Ong-Lam indicates that Ms. Cook also has a hypersensitivity to chemicals, medication and various food allergies. Further, Dr. Ong-Lam notes that Ms. Cook's body is extremely sensitive to any changes in the environment.

[41] With respect to Ms. Cook's ability to lie down for the full five-hour flight, Dr. Ong-Lam states that ideally Ms. Cook should walk at least once every hour, to prevent her from getting sore and stiff. Dr. Ong-Lam is of the opinion that Ms. Cook would be able to stay on the stretcher for the full five-hour flight, however, this would result in her having pain and stiffness when she arrives at her destination.

[42] Dr. Ong-Lam refers to Ms. Cook's previous surgery and the fact that she was able to transfer herself between the stretcher and the surgical bed. As such, Dr. Ong-Lam is of the opinion that Ms. Cook can slide herself from the ambulance stretcher to the Air Canada stretcher.

Mr. Jones

[43] Mr. Jones, Ms. Cook's physiotherapist, explains that chronic muscular pain is now affecting most areas of Ms. Cook's body, especially muscles in her pelvic region, which become very painful if only subjected to minimal pressure, hence Ms. Cook's problem is not being able to sit even for short periods of time. Due to the chronic muscle spasms, which are easily triggered to produce areas of acute muscular distress, Ms. Cook has adopted a cautious controlled gait not to precipitate unbearable pain.

[44] Mr. Jones states that prolonged lying down or standing causes Ms. Cook's compromised muscles to stiffen even more and precipitate acute pain, which can take many hours or even two to three days to settle. Mr. Jones states that Ms. Cook's ability to walk or move has slowly progressed over several years to about a 30-minute period and her day is mainly spent either lying down or standing, dependent upon the fluctuation of her symptoms. Mr. Jones submits that when lying down, Ms. Cook has to get up every hour to avoid excessive stiffness which could significantly exacerbate her pain. Further, Mr. Jones notes that Ms. Cook's ability to sleep has greatly improved over the last few years and she can now sleep for approximately eight to nine hours during which time she has to get up once each night.

[45] Mr. Jones states that Ms. Cook would be able to lie on her back for the five-hour flight, however, she would have to move her limbs by stretching her hips out, stretching her arms so that they are not in the flexed position, and move her neck around a little bit. In this regard, Mr. Jones notes that stretching and raising her legs a little bit while on the stretcher will provide some comfort.

[46] Mr. Jones is of the opinion that the requirement for Ms. Cook to be secured to the stretcher for the entire five hours is excessive and would not be an advisable option.

[47] Mr. Jones also referred to Ms. Cook's surgery where she was able to move from a gurney to the hospital bed, which is the same movement as is involved in scooting along the stretcher, if she moves slowly and carefully.

Air Canada

Requirement to remain on the stretcher

[48] Air Canada states that it is very conscious of its obligation to facilitate the travel of passengers with disabilities and considerable investment is made in bettering the installations and services it provides; however, this task has to be measured against its obligation for its foremost priority, which is the safety of all passengers. Air Canada states that when a situation arises that puts the principle of accessibility in conflict with that of safety, and when other means of providing the accommodation are not possible, Air Canada will choose the safety of all passengers.

[49] Air Canada notes that the Canadian Aviation Regulations (hereinafter the CAR), which were adopted under the Aeronautics Act, R.S.C., 1985, c. A-2, are designed for the collective safety of all aircraft occupants and that the CAR specify that the air operator and, ultimately, the pilot in command, is responsible for the safe operation of the aircraft and the safety of all persons on board.

[50] Air Canada's Chief Engineer, Scott Brooks, who designed Air Canada's stretcher, states that the stretcher certification process took approximately one and a half years, from the design of the stretcher, to its manufacture, through to final certification.

[51] Air Canada explains that any installation on an aircraft or modification thereto needs to be certified against the CAR. This certification can sometimes be done by the certified engineers or personnel at Air Canada and other times requires certification by Transport Canada. Air Canada respectfully submits that safety related issues are within the purview of Transport Canada and that the Agency may not order any accommodation that would be in breach of the CAR.

[52] Air Canada states that the purpose of the stretcher is for medical evacuation or medical transportation of persons who are immobile. Air Canada explains that the stretcher is installed one seat away from the aisle and, as such, the person on the stretcher would have to crawl over the folded aisle seat in order to get to the aisle.

[53] Air Canada submits that it would not be possible, in the safety environment required on board an aircraft, for Ms. Cook to get off a stretcher and walk to stretch her legs. Air Canada adds that the positioning of the stretcher would not allow Ms. Cook to get off the stretcher in a safe and ergonomic fashion, thus risking the possibility of further aggravating her condition instead of getting the relief that appears to be sought.

[54] Air Canada points out that due to the angle for take-off and landing, the thrust applied during these manoeuvres, and the potential for turbulence, it is essential that passengers be attached securely to the stretcher. Air Canada adds that due to the position of the passenger on a stretcher during turbulence or rapid decent, it is essential that a passenger on a stretcher be secured to prevent being torpedoed forward and thus becoming a danger to himself/herself as well as to other occupants of the aircraft.

[55] Air Canada is of the opinion that tying the combined shoulder harness and waist belt is time consuming and complex. Air Canada states that it is paramount that Ms. Cook be strapped down properly for take-off, landing and for any period deemed necessary by the pilot-in-command, including situations where an urgent announcement is made by the pilot in command to go back to the seat and tie the seatbelt. Air Canada submits that Ms. Cook could not easily resume the position of lying on her back with the attached shoulder straps which would require the waist-belt to be detached and reattached to perform this.

[56] Air Canada states that, in its opinion, in cases of turbulence or emergencies, although it would be rather simple for an ambulatory passenger to return to his/her seat or to sit in the closest available seat and tie the seatbelt, this manoeuvre would not be possible, in a swift, efficient and safe fashion for someone to return to a stretcher and be secured. Air Canada also submits that a stretcher passenger cannot physically tie his/her own shoulder harness belt.

[57] With respect to the options suggested by Mr. Growe, Air Canada submits the following:

• removal of an aisle seat next to the stretcher is not possible as the seats in each row are attached together and constitute a bank of seats;
• as the stretcher is certified to be installed against the fuselage of the aircraft or, when there are banks of three seats, in the middle seat, installation on aisle seats would be against the stretcher certification and therefore against CAR 605.23; Air Canada's Chief Engineer explains that the aircraft seats are mounted to the floor structure, which is considered the primary structure of the aircraft;
• installing the stretcher on aisle seats would infringe CAR 525.815 pertaining to the width of the aisles; this would risk infringing on the space necessary to ensure the free flow of passengers in an emergency evacuation; and
• there is very little space left between the seats when the back of the seat that accommodates the stretcher has been collapsed. Air Canada explains that a passenger on a stretcher will not have his/her legs positioned next to these spaces and adds that in order to attempt to position herself next to the space (if any), Ms. Cook would have to sit up, what she alleges she cannot do, bend her head (crouch) as there would be insufficient space for her to do so otherwise, and would have to move her body and hips forward or backward (i.e., to scoot) and get off the stretcher, which is higher than normal hip level. Air Canada is of the opinion that these movements appear totally incompatible with the stated condition of Ms. Cook and, moreover, they appear unsafe, providing many occasions for injury.

[58] Air Canada adds that when the stretcher is installed against the fuselage, over the window seats, the height of the available space between the stretcher and the overhead compartment varies between 75 cm (29.53 inches) and 70 cm (27.56 inches). Further, Air Canada notes that when the stretcher is installed over the middle seats, the available space varies between 67.5 cm (26.57 inches) and 72.5 cm (28.54 inches). Air Canada explains that the variance in measurements is due to certain indentations to accommodate lighting and certain protrusions such as seat indicators and the retractable screen casing. Furthermore, when the aircraft is in operation, a screen drops down and this screen is immediately over the stretcher causing an obstacle that reduces the space by a further 20 cm (7.87 inches).

[59] Air Canada notes that all measurements provided were taken from a "bare" stretcher and do not take into account blankets or a foam cushion.

Use of a stepping stool during flight

[60] Air Canada states that although there is no CAR preventing the use of a stepping stool, it is of the opinion that having a passenger stand on an object that is not secured to the aircraft would be unsafe both for the passenger in question as well as for surrounding passengers as Ms. Cook could fall. Air Canada asserts that it is not prepared to permit this on its aircraft.

[61] Air Canada points out that regardless of the space available between the seats, the stepping stool could not have dimensions that exceed its cabin luggage allowances as it would have to be stowed either in the overhead bin or underneath a seat in front of Mr. Growe during take off and landing. The maximum measurements would be 23 cm (9.06 inches) x 40 cm (15.75 inches) x 55 cm (21.65 inches).

[62] Air Canada's Chief Engineer states that certification standards would not apply for the use of a stepping stool during flight except for the requirement that it be considered as carry-on baggage and therefore all the regulations for the stowage of carry-on baggage would apply. Air Canada's Chief Engineer notes that he does not have an opinion with regard to the difficulty in using a stepping stool, however, he points out that the design of the stretcher was never intended to allow someone to climb on or off. Further, Air Canada's Chief Engineer states that a passenger attempting to get onto and off of a stretcher could hurt himself/herself if he/she were to slip, in that the stretcher is 35 inches from the floor and there is a 3" (7.62 cm) edge caused by the 18" (46 cm) stretcher sitting on top of the 21" (53 cm) stretcher deck.

Additional foam cushion

[63] With respect to the use of an extra foam cushion on top of the stretcher, Air Canada's Chief Engineer states that this may be possible, however, Air Canada must take the following matters into consideration:

• the shoulder harness would have to be verified to be still functioning with the additional foam pad; and,
• the foam itself would need to be tested.

[64] Further, Air Canada's Chief Engineer explains that the complete stretcher configuration was tested as is, which was witnessed and verified using the loads passing through at the deck level. Air Canada's Chief Engineer notes that if a foam cushion is added and the loads are lifted higher than the deck level, the previous testing that was done is no longer valid.

Ms. Cook travelling on her side on the stretcher

[65] Air Canada's Chief Engineer notes that when an aircraft seat assembly is certified, the crash load conditions are measured. With respect to stretcher passengers, Air Canada's Chief Engineer indicates that the restraint system has two harnesses over the shoulder and a waist belt and leg strap, which must be fastened to restrain against all different load directions. Air Canada's Chief Engineer adds that the function of the harness is dependent on it being secured to the passenger. He explains that the only way to restrain someone who is lying down, to prevent that person from sliding forwards in the event of a crash, is with the use of the shoulder harness. The Chief Engineer further explains that the waist belt restrains the passenger from travelling vertically or horizontally.

[66] In light of the above, Air Canada submits that the shoulder harness is not compatible with a person lying on his/her side as the purpose of the harness is to prevent a person from shifting from side to side and moving forward or backward. Dr. Edward Bekeris, Senior Director, Occupational Health Services at Air Canada, submits that Ms. Cook's current impairment would not preclude her from using the stretcher restraint system but that, whether or not she could tolerate it, would depend on her personal experience. In addition, Air Canada expresses the opinion that tying the restraint system on the stretcher is not as simple a process as that required for the traditional waist/hip belt found on regular passenger seats.

Requirement to retain ambulance attendants

[67] Air Canada explains in its submission dated March 10, 2005 that it has adopted procedures that were approved by Transport Canada and provided excerpts of Publication 356 titled Safety and Emergency Procedures - Cabin Personnel which includes the following information:

* Delivery to/from aircraft and loading/unloading at origin, destination and connection points (regardless of duration of connection) will be handled by ambulance attendants retained by passenger.

[68] With respect to the above procedures, Air Canada states, in its letter dated April 18, 2005, that the passenger travelling on a stretcher must check in on a stretcher and be transferred to the aircraft stretcher by qualified ambulance persons.

[69] Air Canada submits that the ambulance attendants are needed to perform a proper transfer as it was intended when the stretcher was designed. Air Canada further submits that, for safety reasons, it would require Ms. Cook to be transferred in a lateral fashion, as intended, on the stretcher.

[70] Mr. Kurtz, Air Canada's in-flight training specialist in Vancouver, initially stated that the role for securing the passenger on Air Canada's stretcher is that of the carrier's ground personnel. He subsequently explains, however, that Air Canada's in-flight manual sets out that the patient is delivered by ambulance and then transferred from the ambulance to the aircraft stretcher by the ambulance attendants, such that the ambulance attendants would secure the person onto the stretcher.

[71] Air Canada states that Transport Canada regulations require that the carrier set out in its in-flight manual the embarking and disembarking process. With respect to Ms. Cook's request to be able to get on the stretcher herself, Air Canada refers to the procedures in its in-flight manual that require that an ambulance attendant transfer the passenger from the ambulance stretcher to the aircraft stretcher, tie the seat belts and secure the passenger who is travelling on the stretcher. Air Canada therefore states that if another process is used to embark Ms. Cook, such as with the use of a stepping stool, this process would need to be included in the in-flight manual.

[72] Air Canada submits that if it were to contemplate the possibility of Ms. Cook getting on the stretcher herself, someone would have to verify that she is securely attached. Air Canada states that it would have to be the flight attendant and this would have to be included in the in-flight manual.

[73] With respect to Ms. Cook's requests to be able to get off and on the stretcher during the flight and to board and deplane the aircraft without the assistance of ambulance attendants, Air Canada submits that it generally provides access to the public by installing liftable aisle armrests, expandable lavatories, seats with slightly extra leg room, etc., which assist in removing obstacles for passengers with disabilities when they travel. Air Canada points out that such accessibility features are available to many passengers with disabilities, however, Air Canada is of the opinion that Ms. Cook's situation and request is unique. As such, Air Canada submits that it is not possible to customize its services for one person. In this regard, Air Canada explains that in order to grant Ms. Cook's request, it would need to amend its Flight Attendant Manual; train all of its flight attendants, which number between 6,000 and 7,000; obtain the certification required for Ms. Cook to bring an additional foam cushion; as well as ensure that everything will work, and to do so without any compromise on its safety standards. In addition, Dr. Bekeris, in response to questions at the informational session, indicates that he is not aware of any situation where a passenger was allowed to travel on his/her side.

Flight Attendant Manual and training

[74] Air Canada notes that its manual provides procedures for stretcher installation and that it would need to be revised to reflect the use of a stepping stool during flight and the flight attendant procedures would also have to be revised for Ms. Cook to get on and off the stretcher. Air Canada notes that, currently, the flight attendants are not trained to verify the restraint system on a stretcher as it is not their responsibility. Further, Air Canada explains that the Flight Attendant Manual specifies that the ambulance attendant ties the seat belt and secures the passenger who is travelling on a stretcher.

[75] Air Canada indicates that the process to modify or make additions to the Flight Attendant Manual would entail the general manager of safety and regulatory affairs drafting a bulletin or an insert, which would be submitted to Transport Canada for approval and would involve a new set of procedures and a training program to meet the requirements of the operator. Air Canada states that the stretcher restraint system is not a seat belt that the passengers can tie themselves and, therefore, this would not be something the carrier can rely on them to do.

[76] Air Canada notes that if the manual were modified, training would have to be provided to its flight attendants to ensure that they are aware of the new procedures and how to properly comply with them.

[77] Mr. Kurtz explains that once a modification to the manual is approved, it would be issued to flight attendants as an insert. He adds that the training involved for this type of modification with respect to verifying the stretcher restraint system could not be done through a bulletin and would require a lesson plan, hands-on training, as well as a physical demonstration which would take perhaps an hour or two. Mr. Kurtz indicates that Air Canada has approximately 6,000 to 7,000 flight attendants. Further, Mr. Kurtz explains that flight attendants would need specific instructions on how to actually best assist people in and out of the stretcher and know how to do up the restraint devices. In addition, Mr. Kurtz states that all of the flight attendants receive the same training on every aircraft type to ensure that they all have the same knowledge. Mr. Kurtz initially stated that the current role for tying the passenger down on a stretcher is that of the ground staff and would not be a flight attendant's responsibility.

[78] Air Canada asserts that a request for it to provide the above training for approximately 7,000 in-flight crew personnel for one case is "absolutely exaggerated".

[79] Air Canada states that it sympathizes with Ms. Cook's desire to be able to travel in the most comfortable fashion and arrive as refreshed as possible, however, whether for safety or operational considerations, it is not possible to meet everything she has requested. Air Canada submits that the Agency should deny the application and declare that there is no undue obstacle to Ms. Cook's mobility given the reasons set out by Air Canada.

Transport Canada

[80] Transport Canada notes that there is no specific CAR that would prevent the passenger from getting up from the stretcher in-flight, except for the regulatory requirement that all passengers, whether they are ambulatory or not, remain seated while the "fasten safety belt" sign is illuminated. In addition, Transport Canada states that subsection 605.26(1) of the CAR directs all persons on board the aircraft to fasten safety belts during movement of the aircraft on the surface, during take-off and landing; and at any time during flight that the pilot-in-command considers it necessary that safety belts be fastened.

[81] Transport Canada states that section 705.40 of the CAR requires that the air operator establish procedures in its company operations manual to ensure passengers move to and from the aircraft and embark and disembark safely, which includes a requirement that all passengers are seated and secured in accordance with subsection 605.26(1). Transport Canada points out that Air Canada's Flight Attendant Manual does include approved procedures regarding the location and use of a stretcher on board the aircraft. Transport Canada notes that a review of Publication 356 identifies that it is the responsibility of ground personnel to ensure that the stretcher is installed properly.

[82] With respect to Ms. Cook's request to use a stepping stool during the flight, Transport Canada notes that a stepping stool would be considered carry-on baggage and falls within the stowage requirements of the air operator's carry-on baggage program and the regulatory requirement of section 602.86 of the CAR to have items stowed in a certified bin or restrained during take-off, landing and turbulence.

[83] Transport Canada adds that although Air Canada recommends in its safety briefings to keep the safety belt fastened at all times, passengers do exercise the option of moving within their seat or walking about the cabin when the safety belt sign permits and the same consideration could be given to Ms. Cook to shift her body within the confines of the stretcher's restraint system to permit her to travel on her side during the cruise phase of the flight. Transport Canada adds, however, that Ms. Cook should lie on her back for takeoff, landing and whenever the seatbelt sign is illuminated in-flight to better ensure her safety.

[84] Transport Canada states that any operational limitations associated with the implementation of any of the solutions suggested by Mr. Growe would need to be determined by the air operator.

Flight Attendant Manual and training

[85] Transport Canada submits that if Ms. Cook were permitted to get off the stretcher during flight, Air Canada's Flight Attendant Manual would have to address who would be responsible to ensure Ms. Cook was secured to the stretcher during flight and this would require Air Canada to submit to Transport Canada an amendment to the manuals, which would then be subject to certification. Transport Canada states that amendments to manual normally take the form of an insert or a transmittal dealing with the change until it is incorporated into the Flight Attendant Manual.

[86] Transport Canada indicates that Initial Part 3 of the Flight Attendant Training Standard requires flight attendants to be trained on passenger handling. Transport Canada notes that Section 3.6A.3 identifies the training requirements for structures including special handling considerations, seating, securing persons and equipment for all phases of flight and a safety briefing. Further, Transport Canada states that Section 3.6A.3 also requires the operator to have in its training program a description of the procedures for acceptance and carriage of "special attention passengers", including passengers transported in incubators and stretchers; persons with disabilities unable to sit upright; persons travelling with medical oxygen; persons travelling with an attendant; child restraint systems; service animals; unaccompanied minors; etc. Transport Canada explains that for each of these situations, the operator is required to identify the special handling considerations, including restrictions on securing persons and equipment for all phases of flight, and the safety briefing content.

[87] Transport Canada points out that as set out in Air Canada's approved training program and its Flight Attendant Manual, which is approved by the Minister of Transport, Air Canada flight attendants are not trained on the use of the restraint system for the stretcher, because it is the responsibility of the ground personnel. Transport Canada submits that in the event that Air Canada were to allow passengers using the stretcher installation to get off the stretcher during flight, ultimately the flight attendants would have to know how to secure that passenger back in again.

[88] Transport Canada states that, currently, Air Canada's procedures are such that it is the ground personnel's responsibility to "do it all"; the flight attendants basically brief the patient and the accompanying attendant on how to evacuate the passenger.

[89] In addition, Transport Canada is of the opinion that the stretcher restraint system is very different from what a passenger normally uses on board an aircraft and from what the flight attendants would be exposed to. In this regard, Transport Canada notes that the flight attendants would require training on how to secure the patient using the stretcher restraining device.

[90] Transport Canada notes that the attendant travelling with the passenger is required to receive a briefing regarding the procedures on how to evacuate the passenger using the stretcher in the event of an emergency, however, the flight attendants are still required to know how to verify that the passenger travelling on the stretcher has been properly secured, which is a separate matter that is not covered in the in-flight training or the Flight Attendant Manual.

ANALYSIS AND FINDINGS

[91] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings and at the information gathering session on May 19, 2005.

[92] An application must be filed by a person with a disability or on behalf of a person with a disability. The Agency notes that Ms. Cook has fibro myalgia, which causes severe pain in her back, neck and head, including stiffness in her joints and muscles. Although Ms. Cook is physically able to sit, lie down, stand and walk, she does so only for limited periods of time to limit pain and stiffness. Ms. Cook needs to use a stretcher in order to travel by air. As such, the Agency is of the opinion that Ms. Cook is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[93] To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.

Whether the applicant's mobility was restricted or limited by an obstacle

[94] The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.

[95] In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.

The case at hand

[96] Ms. Cook has a severe type of fibro myalgia such that remaining in one position or being active for too long causes her pain and stiffness in her back, neck and head.

[97] In order to minimize the pain and stiffness Ms. Cook would experience during her travel with Air Canada, she would like to bring a foam cushion that would add padding to Air Canada's stretcher; using a stepping stool to get on and off the stretcher during flight in order to stretch her muscles; and lie on her side while other passengers are permitted to move about the cabin. In addition, Ms. Cook is able to walk and therefore would prefer to board and deplane the aircraft on her own and use a stepping stool to get onto and off of the stretcher rather than having to transfer from an ambulance stretcher to Air Canada's stretcher.

[98] The Agency notes the evidence of Dr. Ong-Lam that Ms. Cook's sitting tolerance position is very low and that ideally, Ms. Cook should walk at least once every hour to prevent her from getting sore and stiff. Further, Mr. Jones, her physiotherapist, advised that it would be better for Ms. Cook if she were able to move her limbs and move her neck around a little bit. Mr. Jones expressed the opinion that the requirement for Ms. Cook to be secured to the stretcher for five hours is excessive and is not an advisable option.

[99] In this regard, the Agency reviewed Air Canada's policies and procedures for stretcher services which provide that passengers travelling on a stretcher must remain on the stretcher securely fastened on their back for the duration of the flight.

[100] The Agency recognizes that the optimum situation for Ms. Cook, to minimize her pain and stiffness, is to use a foam cushion, to be on her side while lying down and to stand and stretch approximately every hour, as submitted by Dr. Ong-Lam. However, Air Canada's policies and procedures would result in Ms. Cook having to take more medication to ease some of the additional pain and stiffness that she would most likely experience due to having to remain on her back, without an added foam cushion, for the 4.5-hour flight. The Agency accepts that remaining on her back on the stretcher for the duration of the flight would cause Ms. Cook acute pain, stiffness, and a longer recovery period at destination, which would also affect the enjoyment of her overall trip.

[101] The Agency also notes Mr. Growe's request that Ms. Cook be allowed to walk onto the aircraft and simply step from a stepping stool onto the stretcher, In this regard, the Agency has reviewed Air Canada's policy and procedures, as set out in its In-Flight Publication 356, Safety and Emergency Procedures - Cabin Personnel, sets out that the delivery of passengers travelling on stretchers to/from aircraft and loading/unloading at origin, destination and connection points (regardless of duration of connection) will be handled by ambulance attendants retained by the passenger. In light of Air Canada's policies and procedures, Ms. Cook would be required to make arrangements to have ambulance attendants handle her boarding and deplaning. To do so would add an additional step to Ms. Cook's travel arrangements, in that she must make arrangements for assistance to be provided by ambulance attendants to allow her to board and deplane the aircraft.

[102] In light of the above, the Agency finds that Air Canada's policy on stretcher service constitutes an obstacle to Ms. Cook's mobility.

Whether the obstacle was undue

[103] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

[104] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.

The case at hand

[105] The Agency notes Mr. Growe's statement that it is essential that Ms. Cook be able to get up and move around during the flight from Vancouver to Toronto, as well as Ms. Cook's submission that getting up helps her move her joints and shoulders, and allows her to stretch her legs a bit. The Agency also notes that in order for Ms. Cook to travel by stretcher with Air Canada in the way that would have the least negative impact on her physical condition, she would require: the ability to use a foam cushion on the stretcher; a stepping stool to get on and off the stretcher; and the ability to lie on her side while other passengers are permitted to move about the cabin. The Agency notes that Ms. Cook explains that such accommodation would allow her to arrive in Toronto with minimal pain and stiffness, as well as necessitate a lesser recovery time, which would allow for a better quality visit with her parents.

[106] While recognizing the difficulties Ms. Cook would face should the accommodations proposed by Mr. Growe not be provided by Air Canada, the Agency also notes that Air Canada's Chief Engineer, during the informational session on May 19, raised the following concerns with respect to Mr. Growe's proposal [Transcript pps 138-157 and p. 174 refer]:

• a passenger attempting to get onto and off of a stretcher could hurt himself/herself if he/she were to slip, in that the stretcher is 35 inches (88.9 cm) from the floor;
• with respect to the use of an extra foam cushion on top of the stretcher, the complete stretcher configuration was tested as is, which was witnessed and verified using the loads passing through at the deck level and if a foam cushion is added and the loads are lifted higher than the deck level, the previous testing that was done is no longer valid; and
• regarding Ms. Cook's desire to travel on her side on the stretcher, the only way to restrain someone who is lying down, to prevent that person from sliding forwards in the event of a crash, is with the use of the shoulder harness.

[107] The Agency has reviewed the evidence of the Chief Engineer and accepts that Air Canada's stretcher was designed, tested and certified based on the transportation of a person who is non-ambulatory and who would remain on his/her back on the stretcher for the duration of the flight using the restraint system. Furthermore, the Agency accepts that it was never the intent of the stretcher design to allow someone to get on or off the stretcher except by transfer from another stretcher. There could, therefore, be significant safety implications associated with the aforementioned accommodations as requested by Mr. Growe and Ms. Cook in that the stretcher would be used in a way for which it was not intended.

[108] Further, the Agency has considered Air Canada's position, which is supported by Transport Canada, is that it would need to amend its Flight Attendant Manual, train all of its flight attendants (which number between 6,000 and 7,000), obtain the certification required for Ms. Cook to bring an additional foam cushion and to do so without compromising its safety standards. Air Canada pointed out that its manual would need to be revised to reflect the use of a stepping stool during flight and the flight attendant procedures would also have to be revised for Ms. Cook to get on and off the stretcher. While the Agency notes Mr. Growe's submission that he could tie the stretcher restraint system for Ms. Cook, the Agency accepts Air Canada's submission that its flight attendants would need to be trained on verifying that the stretcher restraint system is securely fastened when the seatbelt sign is on as this is not currently their responsibility.

[109] The Agency is aware of the magnitude of the process to modify or make additions to the Flight Attendant Manual to incorporate Mr. Growe's suggested modifications. This includes the general manager of safety and regulatory affairs drafting a bulletin or an insert, which would be submitted to Transport Canada for approval and would involve a new set of procedures and a training program to meet the requirements of the operator. In this regard, Transport Canada stated at the informational session that "... [flight attendants] would require training on the patient using that [restraint system]." [Transcript p. 117] and that "... the Air Canada flight attendants are not trained on how to fasten the use of that restraint system for the stretcher, because it is the responsibility of the ground personnel. ..." [Transcript p. 119]. Therefore, if the manual were modified, training would have to be provided to its flight attendants to ensure that they are aware of the new procedures and how to properly comply with them.

[110] The Agency further notes Air Canada's position and the statement of Dr. Bekeris given at the informational session that Ms. Cook's specific requirements are unique and that it is not possible to customize its services for one person. In this regard, the Agency is of the opinion that the likelihood that Air Canada would face a similar request for such a level of accommodation is minimal.

[111] In light of the foregoing, and in balancing the right of Ms. Cook to travel by air without encountering undue obstacles to her mobility and Air Canada's commercial and operational considerations and responsibilities, the Agency is of the opinion that the implications to Air Canada of modifying its policy on stretcher service and making modifications to the Flight Attendant Manual as well as providing training to its flight attendants on any such modifications are such that they are not considered justified given the uniqueness of Ms. Cook's situation.

[112] Furthermore, while the Agency recognizes that Air Canada's policy on stretcher service does not allow Ms. Cook to travel under ideal conditions, Mr. Jones, Dr. Ong-Lam, Mr. Growe and Ms. Cook all acknowledge that it would, however, be possible for Ms. Cook to travel from Vancouver to Toronto in accordance with Air Canada's current policy on stretcher service.

[113] In light of the above, the Agency finds that Air Canada's policy on stretcher service does not constitute an undue obstacle to Ms. Cook's mobility. Consequently, the Agency contemplates no action in this matter.