Decision No. 37-AT-A-2008
January 29, 2008
APPLICATION by Dr. Terri E. Weinberg on behalf of her daughter Lauren Weinberg pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended, regarding Air Canada's refusal to assist Lauren Weinberg through the terminal at the Toronto-Lester B. Pearson International Airport and the difficulties Dr. Weinberg encountered with respect to arranging meals to accommodate her daughter's soy allergy while travelling with Air Canada between Toronto, Ontario, Canada and Los Angeles, California, United States of America.
File No. U3570/01-43
APPLICATION
[1] On August 8, 2000, Dr. Terri E. Weinberg, on behalf of her daughter Lauren Weinberg, filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. Air Canada filed its answer on August 9, 2002 and on August 14 and 20, 2002, Dr. Weinberg filed her reply. Further submissions were filed by Dr. Weinberg and Air Canada between January 6, 2005 and January 29, 2007.
[2] As a result of a jurisdictional challenge as to whether an allergy is a disability for the purposes of Part V of the Canada Transportation Act (hereinafter the CTA), which Air Canada brought before the Agency in response to two allergy-related applications, the Agency decided to address the jurisdictional question as a preliminary matter. In its Decision No. 243-AT-A-2002 dated May 10, 2002, the Agency concluded that an allergy, per se, is not a disability for the purposes of Part V of the CTA. Notwithstanding, the Agency found that there may be individuals in the population of persons who have allergies, who have a disability for the purposes of Part V of the CTA which can be attributed to their allergies. The Agency therefore determined that it would continue to examine, on a case-by-case basis, whether a person who has an allergy is a person with a disability for the purposes of the accessibility provisions of the CTA and proceeded with Dr. Weinberg's application.
[3] In Decision No. LET-AT-A-27-2003 dated February 4, 2003, the Agency adjourned Dr. Weinberg's case pending the Federal Court of Appeal's consideration of an appeal of Agency Decision No. 567-AT-A-2002 dated October 23, 2002, with respect to an application filed by Linda McKay-Panos against Air Canada (hereinafter the McKay-Panos decision) as this case raised the issue of the manner in which the Agency determines disability.
[4] In the meantime, from April 1, 2003 to September 30, 2004, all proceedings against Air Canada were stayed by order of the Ontario Superior Court of Justice pending Air Canada's emergence from creditor protection under the Companies' Creditors Arrangement Act, R.S.C., 1985, c. C-36.
[5] On January 13, 2006, the Federal Court of Appeal issued its decision in the appeal of the McKay-Panos decision wherein it accepted the manner in which the Agency determines disability, as applied in Decision No. 243-AT-A-2002.
[6] In its Decision No. LET-AT-A-207-2006 dated July 21, 2006, the Agency advised that it was now continuing its investigation with respect to Dr. Weinberg's application. The Agency recognized that the issues with respect to the presence of allergens on board aircraft are complex and, as such, the Agency determined that a two-stage process was appropriate for its consideration of applications regarding allergies. In this regard, the Agency indicated its intent to issue a decision on disability and obstacle followed by a decision on undueness, if required.
[7] As such, in its Decision No. 335-AT-A-2007 dated June 29, 2007 (hereinafter the Decision), the Agency's consideration was limited to whether Lauren Weinberg is a person with a disability and whether she encountered an obstacle to her mobility with respect to Air Canada's refusal to assist her through the terminal at the Toronto - Lester B. Pearson International Airport (hereinafter the Toronto airport) and with respect to the difficulties Dr. Weinberg encountered in arranging meals to accommodate her daughter's soy allergy while travelling with Air Canada between Toronto and Los Angeles. The Agency made the following determinations:
- Lauren Weinberg is a person with a disability;
- Air Canada's failure to accommodate Lauren Weinberg's disability-related needs at the Toronto airport by refusing to assist her through the terminal constituted an obstacle to her mobility; and
- the difficulties Dr. Weinberg encountered with respect to arranging meals to accommodate her daughter's allergy to soy while travelling with Air Canada between Toronto and Los Angeles did not constitute an obstacle to Lauren Weinberg's mobility.
[8] Having found that Air Canada's failure to accommodate Lauren Weinberg's disability-related needs by refusing to assist her through the terminal constituted an obstacle to her mobility, the Agency, in Decision No. LET-AT-A-128-2007 dated July 12, 2007, required Air Canada to address the undueness of this obstacle, which it did on August 13, 2007.
[9] Pursuant to subsection 29(1) of the CTA, the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.
ISSUE
[10] The issue to be addressed is whether Air Canada's failure to accommodate Lauren Weinberg's disability-related needs by refusing to assist her through the terminal constituted an undue obstacle to her mobility and, if so, what corrective measures should be taken.
FACTS
[11] Lauren Weinberg has a hypersensitivity to airborne volatile organic compounds (hereinafter VOCs) which may necessitate the assistance of others to ensure appropriate access to public places whenever and wherever VOCs have been in recent use. Dr. Weinberg filed a letter from Lauren's physician dated July 10, 2001, which sets out that Lauren has a seizure disorder and needs to avoid exposure to fresh latex, oil-based and acrylic paints as well as other VOCs including potent solvents, sealants or other materials known to offgas excessively.
[12] Prior to travel from Toronto to Los Angeles, Dr. Weinberg contacted Air Canada in an attempt to determine whether any painting would be taking place in Terminal 2 of the Toronto airport, and if so, to make arrangements for Lauren to be escorted through the terminal via the safest route possible. Following her communications with Air Canada, Dr. Weinberg, on the direction of Air Canada, contacted the Greater Toronto Airports Authority (hereinafter the GTAA) who informed Dr. Weinberg that major renovations would be taking place in the terminal during the period of her planned travel. Air Canada refused to provide assistance to escort Lauren through the terminal. Assistance was eventually provided by a GTAA representative after Dr. Weinberg discussed the situation with the GTAA.
ANALYSIS AND FINDINGS
[13] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
The Agency's approach to the determination of the undueness of obstacles
[14] Should the Agency make a finding that a feature of the federal transportation network represents an obstacle to some persons with disabilities, it must then proceed to make a determination of whether that obstacle is undue as it is only upon finding that an obstacle is undue that a transportation service provider may be ordered to take corrective measures to address the obstacle.
[15] In this way, once the applicant has established in the application the existence of an obstacle to the mobility of a person with a disability in the federal transportation network, the onus of proof then shifts to the respondent transportation service provider to prove, on a balance of probabilities, that the obstacle is not undue. To this end, the respondent must demonstrate that the source of the obstacle:
- is rationally connected to a legitimate objective, such as those objectives found in the national transportation policy contained in section 5 of the CTA;
- was adopted by the transportation service provider with an honest and good faith belief that it was necessary to the fulfilment of that legitimate objective; and
- is reasonably necessary for the accomplishment of its objective, such that it is impossible for the transportation service provider to accommodate the person with a disability without imposing undue hardship on the service provider.
[16] The transportation service provider must show that reasonable accommodation has been provided, meaning up to the point of undue hardship. What constitutes "reasonable accommodation" in each case is a matter of degree and depends on a balancing of the interests of persons with disabilities with those of the transportation service provider in the circumstances of the case, including the significance and recurrence or continuing nature of the obstacle and the impact of the obstacle on persons with disabilities as well as the transportation service provider's commercial and operational considerations and responsibilities.
[17] In most cases, there will be a range of alternatives available to address the needs of a person with a disability or a group sharing the same characteristics and, in each case, the most appropriate accommodation will be one that respects the dignity of the individual, meets individual needs, and promotes the independence, integration and full participation of persons with disabilities within the federal transportation network. In the end, reasonable accommodation will be the most appropriate accommodation which would not cause undue hardship to the transportation service provider.
[18] In order to establish undue hardship, a transportation service provider must show that it has considered and determined that there are no reasonable alternatives to better accommodate the person with a disability affected by the obstacle and that there are constraints that make the removal of the obstacle unreasonable, impracticable or, in some cases, impossible. Examples of constraints on respondent transportation service providers which the Agency may consider in its determination of undue hardship are those related to structural issues, safety issues, operational issues and financial/economic issues and include 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 constraints 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.
[19] It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the constraints 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 concepts of undueness and undue hardship.
The case at hand
[20] Part V of the CTA provides the Agency with jurisdiction to eliminate undue obstacles to the mobility of persons with disabilities from the federal transportation network and, as such, includes services provided by carriers and terminal authorities which are integral to transportation in Canadian air terminals, including assistance from the point of check-in at the terminal to the boarding area.
[21] In the Decision, the Agency found that Lauren Weinberg experiences significant activity limitations arising from her impairment. At the time of the incident, due to her seizure disorder, which is triggered by exposure to VOCs, she could not make her way through Terminal 2 at the Toronto airport without being escorted via a safe route due to the renovations and painting that were taking place. The Agency determined that Air Canada's failure to accommodate Lauren Weinberg's disability-related needs by refusing to assist her through the terminal constituted an obstacle to her mobility.
[22] Air Canada is of the opinion that there was no undue obstacle in the case at hand. In its response to the Decision, Air Canada cites three factors which, it maintains, made the removal or alleviation of the obstacle impracticable and even impossible:
- lack of information;
- lack of control; and
- seriousness of allegations.
Lack of information
[23] Air Canada submits that at the time of travel, no document from Lauren Weinberg's doctor was produced and consequently, this absence of knowledge constituted a constraint to Air Canada's ability to alleviate the obstacle. The carrier notes that the applicant travelled in 1998 and that the letter filed with the Agency from Lauren Weinberg's physician was dated July 10, 2001. The carrier points out that this letter, which sets out that Lauren Weinberg has a seizure disorder and needs to avoid exposure to fresh latex, oil-based and acrylic paints as well as other VOCs, was "obviously" not produced to Air Canada at the time of booking. Given this absence of information and knowledge, the carrier is of the opinion that it would have been impossible to identify when and why Dr. Weinberg's daughter needed assistance.
[24] The Agency accepts that Dr. Weinberg did everything in her power to ensure that Air Canada was informed of her daughter's condition so that she would receive the required assistance to safely navigate through the airport terminal to reach the aircraft boarding area. According to Dr. Weinberg, before booking her daughter's ticket, she contacted Air Canada's Customer Service department to discuss her daughter's health concerns and was advised that her daughter would only be assisted "were she in a wheelchair or were she a pet", and that Air Canada was under no obligation to provide the requested assistance. Dr. Weinberg submits that the carrier did not return her calls or speak with her.
[25] As noted in the Decision, the Agency has long held the opinion that it is the carrier's responsibility to provide assistance required by persons with disabilities to move from the check-in counter to the boarding gate and onto the aircraft. There are many situations where an air carrier is expected to provide assistance beyond the norm. The fact that persons with disabilities may require different levels of assistance as a result of disability-related needs does not change the carrier's ultimate responsibility towards the passenger.
[26] In the case at hand, the Agency questions why, when faced with an unusual request from a passenger with a disability, Air Canada's personnel chose to deny the request rather than open a dialogue to ensure that the needs of the passenger were clearly understood before assessing whether Air Canada had the ability to meet those needs. Furthermore, the Agency is of the opinion that it was unreasonable for Dr. Weinberg to have to make several calls to the carrier in an attempt to get the information she required and for her calls to go unreturned. Air Canada has not provided the Agency with any policies or procedures that were in place at the time of travel to explain the actions of its Customer Service department. If it was the case that the Customer Service agent did not understand or had questions about Lauren Weinberg's condition, the agent could have entered into a dialogue with Dr. Weinberg to ensure that her request was clearly understood and failing this, the agent could have referred Dr. Weinberg to the carrier's medical desk for further assessment and assistance. There is no evidence to indicate that Dr. Weinberg was reluctant to provide the carrier with her daughter's medical information. Air Canada was in the position to request a physician's note if deemed required and it would then have been in a better position to determine its ability to meet Lauren Weinberg's needs.
[27] Air Canada's handling of Dr. Weinberg's request for assistance for her daughter raises the concern that when passengers with disabilities request assistance for services that might be viewed as outside the "norm", they may experience a situation similar to that of Dr. Weinberg; more specifically, they may be denied accommodation before the carrier's personnel has attempted to enter into a dialogue in efforts to reach a full understanding of the person's needs before determining the carrier's ability to meet those needs. The Agency is concerned that persons with disabilities encountering such a barrier may simply accept the carrier's response and, as such, those decisions would determine whether the person with the disability would or could travel at all. The Agency is concerned that Air Canada lacks a policy that provides its front line agents with procedures regarding the handling of unusual requests for disability-related assistance and, as a consequence, how such requests are handled is left to the discretion of its personnel.
[28] After receiving no accommodation from Air Canada's Customer Service department, Dr. Weinberg took it upon herself to contact Air Canada's Office of the President to further pursue the assistance required by her daughter. Dr. Weinberg asserts that a letter documenting her daughter's health issues was faxed to the Office of the President at the time she first broached the issue with it. In response to Air Canada's claim that it was never provided with a physician's note, Dr. Weinberg contends that the Office of the President refused to even talk to her about options for her daughter until it received such documentation. Dr. Weinberg states that the Office of the President initially refused her request; however, Air Canada eventually agreed that if she personally made arrangements with GTAA officials to map out a safe route for her daughter, Air Canada's personnel would meet Lauren Weinberg at check-in and she would be escorted through the terminal should the need arise.
[29] While Air Canada agrees that Dr. Weinberg contacted the Office of the President, the carrier contends that all communications were verbal and that there was no exchange of documents. Air Canada expresses the opinion that given this lack of information and knowledge about Lauren Weinberg's condition, it would have been impossible to identify when and why she necessitated the assistance. In correspondence dated September 19, 2000, and filed with the Agency, Air Canada confirms that Dr. Weinberg contacted the Office of the President in 1998 and that at issue was Lauren Weinberg's allergy to paint fumes and her requirement for assistance through the terminal were there fresh paint to be used. The correspondence further states that Dr. Weinberg wanted guarantees that her daughter would not be exposed to paint fumes at the airport. Air Canada submits that Dr. Weinberg was advised that it could not guarantee that the aircraft and airport would be allergen-free nor would it guarantee that an Air Canada employee would escort them through the terminal. The carrier states that its Director of Operations in Toronto advised Dr. Weinberg that Air Canada was unable to assist her in this matter, but if the GTAA was willing to provide a person to escort them through the airport, the carrier would permit travel.
[30] The Agency recognizes that there are discrepancies between the parties' positions regarding the date of travel. While Air Canada asserts that the incident occurred in 1998, Dr. Weinberg submitted her application to the Agency on August 7, 2000 and contends that the incident took place in 1999. While neither party provided the Agency with fact-based evidence to support their positions, both parties agreed that the incident transpired and that at the time of travel, Terminal 2 of the Toronto airport was undergoing renovations. As noted in the Decision, there is no limitation period for the filing of applications in the CTA and, as such, the differences in opinion with respect to the timing of the incident are not fundamental considerations in determining whether the obstacle encountered by Lauren Weinberg was undue.
[31] The Agency also notes that there are differences in the parties' positions with respect to the communication and exchange of information that took place at the time of booking. Dr. Weinberg submits that Air Canada did not indicate that a lack of medical documentation was why it chose not to provide the service; rather, she submits that Air Canada advised her that it does not provide the requested service and further stated that its personnel were busy. Air Canada contends that as Dr. Weinberg never provided it with a physician's note, this lack of information constituted a constraint to Air Canada in alleviating the obstacle. However, it is not clear that Air Canada made any request to obtain a physician's note at the time of reservation, and had it done so, the Agency finds it reasonable to accept that Dr. Weinberg was willing to co-operate. While it is impossible for the Agency to determine the events that actually transpired, what is clear is that Air Canada was aware of Lauren Weinberg's condition and need for assistance in advance of her travel. It is also clear from the carrier's correspondence to the Agency, dated September 19, 2000, that Air Canada did not identify that a lack of information was at issue; rather, the carrier stated that it was "unable to assist in this matter, but if the GTAA was willing to provide a person to escort them through the airport, we could permit travel".
[32] Contrary to Air Canada's argument that an absence of knowledge constituted a constraint to its ability to alleviate the obstacle, the Agency is of the opinion that the carrier had multiple opportunities to obtain the required information. The Agency is of the opinion that it is ultimately the carrier's responsibility to identify all pertinent information needed to ensure the provision of adequate services, including information on the traveller which is deemed crucial. In this respect, Air Canada has produced no compelling evidence that it attempted to secure such information when Dr. Weinberg called the Customer Service department or when she contacted the Office of the President.
Lack of control
[33] Air Canada submits that at the time of travel, Terminal 2 of the Toronto airport was undergoing major renovations, which were under the exclusive supervision of the GTAA. The carrier contends that only the GTAA and the general contractor could ascertain which routes through the Terminal would not emit VOCs harmful to Lauren Weinberg. Air Canada further states that although the GTAA personnel managed to escort Lauren Weinberg through the terminal without incident, Air Canada was of the opinion that the GTAA may not have understood the risks and may not have acted reasonably or responsibly. Air Canada points out that the construction at Terminal 2 was an evolving project with multiple construction sites at various parts of the terminals at the same time. The carrier contends that work could be done periodically without notice and if only a wall was painted in a particular corridor, it would not cause that corridor to be closed. Air Canada submits that it had no way of determining where and when Lauren Weinberg would be exposed to fumes, paint or chemicals and to what degree this could affect her. Air Canada stresses that its lack of control over the various construction sites constituted a constraint that made the removal of the obstacle impossible and, as such, it would have been irresponsible for the carrier to undertake the risk of assisting Lauren Weinberg as requested.
[34] While the Agency acknowledges that renovations were under the supervision of the GTAA, as noted in the Decision, air carriers are expected to liaise with terminal operators, particularly at times when services are temporarily disrupted by circumstances such as construction, to ensure that an appropriate level of service is provided by each carrier to its passengers with disabilities. This responsibility is reflected in Part VII of the Air Transportation Regulations, SOR/88-58, as amended, which sets out the terms and conditions of domestic carriage of persons with disabilities and requires air carriers, to provide, among other things, services to persons with disabilities, which include providing assistance in proceeding to the boarding area, if those services are requested at least 48 hours in advance of travel.
[35] In the case at hand, Lauren Weinberg required changes to the route that would normally be taken, as well as assistance from the check-in counter to the departure lounge. While the terminal operators may have the most current information on a day-to-day basis with respect to work being done in the terminal, the responsibility to get passengers from check-in to the boarding gate rests with the carrier who may need to consult the terminal authority to understand how best to accommodate persons with disabilities. Air Canada provided no evidence that its Customer Service or Office of the President personnel took the initiative to contact the GTAA to discuss Lauren Weinberg's condition or to explore alternatives to accommodate her needs and the carrier failed to point out why it could not do so. Rather, Air Canada's Office of the President put the onus on the passenger to contact the GTAA to arrive at a solution. Although ultimately the GTAA assisted Dr. Weinberg in her efforts to ensure that a safe alternate route was provided for her daughter, the Agency is of the opinion that Air Canada has not shown that its personnel did all they could to meet Lauren Weinberg's needs.
Seriousness of allegations
[36] Lastly, Air Canada asserts that Dr. Weinberg emphasized the seriousness of the threat posed to her daughter by VOCs and the absolute need to avoid any contact with these chemicals. Air Canada expresses the view that in the Decision, the Agency seemed to treat the assistance requested by Dr. Weinberg much the same as a request for wheelchair assistance. Air Canada contends that such a request is much more complex and requires a "bespoke" solution of great technical complexity which would require Air Canada to determine:
- what level of VOCs is acceptable?
- how it is to be measured?
- is the level of VOCs in any particular location in the airport going to be stable?
- if changeable, how rapidly will it change?
- if, despite Air Canada's best efforts, VOCs contact Ms. Weinberg, what steps are required? and
- should medical personnel be on hand?
[37] The carrier explains that in considering the "very alarming" allegations of Dr. Weinberg and considering that most of the answers to these questions were totally beyond its control, it could not responsibly undertake to provide Lauren Weinberg with the requested assistance.
[38] The Agency notes that Air Canada asserts that Dr. Weinberg's "alarming allegations" emphasized that any exposure to VOCs was a serious threat to her daughter and that there was an absolute need to avoid contact with these allergens. Air Canada states that such a request required a solution of great technical complexity. The carrier is of the opinion that it would have been irresponsible for it to undertake the risk of assisting Lauren Weinberg as requested without having the answers to all of its questions.
[39] The Agency acknowledges that air carriers have a responsibility to undertake certain measures to ensure the health and safety of their facilities. Where health and safety requirements create a barrier for a person with a disability, the transportation service provider should assess whether the requirement can be waived or modified. The service provider is required to show an objective assessment of the risk as well as how alternative measures can provide equivalent access to the person with a disability. The service provider must show that reasonable accommodation has been provided, meaning up to the point of undue hardship. It may be able to claim undue hardship after the assessment of alternative measures is undertaken and a significant risk still remains.
[40] In the case at hand, Air Canada states that the situation required a solution of great technical complexity. Air Canada maintains that it could not guarantee zero exposure to VOCs and that it would be impossible or technically complex to determine how to achieve this. Air Canada states that as most of the answers to the questions surrounding the level of VOCs were totally beyond its control, the carrier could not responsibly undertake to provide Lauren Weinberg with the required assistance. The Agency, however, is not satisfied that the carrier has shown that it undertook any measures to assess the risk involved, nor did it explain any undue hardship as to why it could not do so. Furthermore, Air Canada did not show that it discussed alternatives with Dr. Weinberg, such as the option of rebooking her flights on alternate dates. The Agency is of the opinion that had Air Canada contacted the GTAA to see whether the ventilation system in the area of the route to be travelled would ensure a safe level of exposure to VOCs and had the GTAA been able to give such assurances, the situation encountered by Dr. Weinberg may have been avoided. If the GTAA had been unable to give such assurances, Air Canada would have been obliged to further discuss the situation with Dr. Weinberg and explore alternative methods of accommodation.
[41] Although Air Canada contends that the situation required a solution of great technical complexity, the Agency is of the opinion that Air Canada's position is based on faulty assumptions. The carrier states that Dr. Weinberg wanted "guarantees" from Air Canada that her child would not be exposed to paint fumes and states that it could not "guarantee" that there would be zero exposure to VOCs in the airport, nor could it "guarantee" that the aircraft would be allergen-free. In considering the submissions made by Dr. Weinberg, the Agency notes that she repeatedly states that she wanted to ensure that should painting be underway in the terminal at the time of travel, arrangements could be made to escort her daughter through the terminal via the "safest route possible" or to ensure that the risk to her daughter was minimized. Dr. Weinberg explains that, in the past, her daughter's condition has required the assistance of authorities both in schools and public institutions, such as museums and theatres, to ensure adequate accessibility. She reports that in every case, institutions have willingly assisted her by providing access routes to avoid problematic areas, and where renovations have made access impossible, alternate dates were suggested. Dr. Weinberg further submits that, in contrast to her experience with Air Canada, when her daughter travelled with Northwest Airlines, the carrier did its very best to ensure that her special needs were met and to ensure their access to travel.
[42] With respect to the foregoing, neither party provided evidence to the Agency that Lauren Weinberg's accommodation required Air Canada or the GTAA to undertake measures that would be technically complex. In a submission dated May 27, 2007, Dr. Weinberg explains that she proceeded to purchase her tickets after Air Canada's Office of the President "assured" her that provided the GTAA mapped out a "safe route" for her daughter to the boarding area, an Air Canada representative would be made available to escort them along the designated route and, if necessary, to an alternate departure lounge where they would be retrieved shortly before departure to board their flight.
[43] The Agency has long recognized the importance of communication in the effective and appropriate delivery of services to persons with disabilities, as it is only through open communication with them that transportation providers can understand their individual needs and how best to meet them. Open communication permits persons with disabilities some certainty in their travel experiences in knowing both that the service provider is aware of their needs and how it intends to accommodate them. The Agency also recognizes that persons with disabilities have the ability to assume risk to themselves. The Agency accepts that Dr. Weinberg, a medical doctor, acting on her daughter's behalf, understood the significance, probability and seriousness of the risk of exposure to VOCs to her daughter's health and further acknowledges that she routinely works with authorities to minimize such risks. As noted earlier, Dr. Weinberg purchased her tickets based on the assurances that were provided to her by Air Canada's Office of the President. In the case at hand, the Agency finds that Air Canada has overstated the complexity of the solution that was required to accommodate Dr. Weinberg's daughter due to its failure to recognize that persons with disabilities have the ability to assume risk to themselves. Had Air Canada made better efforts to communicate with Dr. Weinberg to understand the level of assurance she required and the risks she was willing to accept, it is possible that the situation experienced by Dr. Weinberg's daughter could have been avoided.
[44] In approaching the burden of proof, the Agency finds that Air Canada has failed to prove, on a balance of probabilities, that the accommodation requested would have created undue hardship, or to show that it considered any reasonable alternatives.
[45] In light of the above, the Agency finds that Air Canada's failure to accommodate Lauren Weinberg's disability-related needs by refusing to assist her through Terminal 2 at the Toronto airport constituted an undue obstacle to her mobility.
CORRECTIVE MEASURES
[46] Consequently, the Agency hereby directs Air Canada to take the following corrective measures within sixty (60) days from the date of this Decision:
- amend its policies to:
- ensure that its reservation personnel enter into a dialogue when receiving inquiries from persons who identify themselves as persons with disabilities;
- ensure that the service requested is clearly understood and identified and that all pertinent information is requested;
- ensure that reservation agents refer the passenger to the Meda Desk if required; and
- ensure that when assessing its ability to provide the service requested, before denying any service request, alternative accommodations are considered.
- amend its training program to incorporate the case at hand, without naming the Weinbergs, and emphasize the importance of recognizing that disabilities come in many different forms and that Air Canada has the responsibility to assess its ability to accommodate all types of disability-related requests for assistance.
- issue a bulletin to Air Canada's personnel which emphasizes that disabilities come in many different forms and the importance of an open dialogue, and which cautions staff to never simply dismiss a request for assistance in which the person identifies a disability or a particular service request even when it is a request that has not been encountered in the past.
[47] Air Canada must provide a copy of the bulletin, amended policies and training program to the Agency.
Members
- Gilles Dufault
- Beaton Tulk
- Date modified: