Decision No. 370-AT-A-2009

September 1, 2009

APPLICATION by Norma Kerr regarding difficulties she experienced as a result of her allergy to flowers while travelling with Air Canada.

File No. U3570/01-2

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Introduction and issues

[1] On January 2, 2001, Joel W. Kideckel, on behalf of his wife, Norma Kerr, filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), concerning the difficulties Ms. Kerr experienced when travelling with Air Canada on July 23, 2000 from Toronto, Ontario, Canada to Los Angeles, California, United States of America.

[2] Part V of the CTA sets out the Agency's mandate to eliminate undue obstacles to the mobility of persons with disabilities in the federal transportation network. To determine whether there is an undue obstacle to the mobility of persons with disabilities, the Agency must first decide whether the applicant (or the person on behalf of whom the applicant filed the application) is a person with a disability and whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue.

[3] In Ms. Kerr's case, the issues to be addressed are:

1. whether Ms. Kerr is a person with a disability for the purposes of Part V of the CTA; and,
2. if so, whether Air Canada's practice with respect to the carriage of flowers in the aircraft cabin constituted an obstacle to her mobility.

Finding

[4] The Agency finds that Ms. Kerr has not provided sufficient evidence to demonstrate that she is a person with a disability due to her allergy to flowers for the purposes of Part V of the CTA.

Preliminary matter

Air Canada's proceedings under the Companies' Creditors Arrangement Act

[5] On April 1, 2003, Air Canada was placed under court-sanctioned protection from its creditors to facilitate the carrier's operational, commercial, financial and corporate restructuring. As part of this process, the Ontario Superior Court of Justice (Ontario Superior Court) issued an order pursuant to the Companies' Creditors Arrangement Act, R.S.C., 1985, c. C-36 (CCAA) staying all proceedings against or in respect of Air Canada and certain of its subsidiaries (Stay Order). As a consequence, the Agency was unable to continue processing this file. On August 23, 2004, the Ontario Superior Court issued an order pursuant to the CCAA (Sanction Order) which lifted the Stay Order as of September 30, 2004. The Sanction Order also extinguished all claims of a financial nature against Air Canada which arose on or before April 1, 2003.

Extinguishment of claims

[6] Subsequent to its emergence from protection under the CCAA, Air Canada filed a submission stating that individual applications for compensation or for a finding that an undue obstacle existed in the transportation of a passenger with a disability for events that occurred on or prior to April 1, 2003 are "claims" against Air Canada and thus extinguished. The Agency disagreed and sought clarification from the Ontario Superior Court which governed Air Canada's emergence from protection from its creditors. Air Canada requested that the Agency stay all affected applications pending the Ontario Superior Court's decision. The Agency granted Air Canada's request.

[7] All accessible transportation applications before the Agency against Air Canada and its subsidiaries in relation to incidents that occurred on or before April 1, 2003, including this application, were put on hold for a second period as a result of a disagreement between the Agency and Air Canada on the scope of the Sanction Order. However, the Agency subsequently determined that the best way to deal with the affected applications was to proceed with their consideration. On June 30, 2005, the Agency determined that it would not continue with its motion before the Ontario Superior Court for an interpretation of the Sanction Order. The Agency took the position that although the financial aspect of a claim is extinguished, the investigation and remedial measures of a claim relating to an undue obstacle concerning an incident that occurred on or before April 1, 2003 were not. As a result, the stay with respect to this application, among others, was lifted by the Agency.

[8] In 2006, Air Canada sought a declaration by the Ontario Superior Court with respect to monetary penalties imposed by the Minister of Transport prior to April 1, 2003. The Ontario Superior Court rendered a decision stating that monetary penalties were "claims" for the purposes of the CCAA, the claims procedures, and the Sanction Order. Air Canada's interpretation of the Ontario Superior Court's decision is that all applications involving incidents predating April 1, 2003 are extinguished in their entirety. The Agency disagreed with Air Canada's interpretation, and has set out its position in Decision No. 299-AT-A-2008, in which the Agency maintained that the Ontario Superior Court's decision is strictly limited to monetary penalties.

[9] The Agency is of the opinion that Ms. Kerr's application is not extinguished by the Sanction Order because Part V of the CTA is human rights legislation aimed at removing undue obstacles to the mobility of persons with disabilities in Canada's transportation system. As human rights legislation is quasi-constitutional and is the manifestation of public policy concerning matters of general concern, it is fundamental to capture the spirit of protecting human rights and preventing discrimination. Accordingly, the Agency concedes that any order made pursuant to subsection 172(3) of the CTA which directed Air Canada to reimburse applicants who incurred costs as a result of undue obstacles to their mobility which arose on or before April 1, 2003 are covered by the definition of "claims" and are thus extinguished. However, the Agency maintains its opinion that Air Canada is not relieved from its legal obligations to comply with regulatory requirements, particularly in respect of human rights protection afforded to persons with disabilities.

Background

[10] Between August 2000 and June 2001, eight applications were filed by or on behalf of applicants with allergies against Air Canada. These applications gave rise to the jurisdictional question of whether an allergy is a disability for the purposes of Part V of the CTA. On May 10, 2002, the Agency issued Decision No. 243-AT-A-2002 (Jurisdictional Decision) in which it concluded that an allergy, per se, is not a disability for the purposes of Part V of the CTA. However, the Agency found that there may be individuals in the population of persons who have allergies who have a disability which can be attributed to their allergies. Therefore, the Agency decided 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.

[11] In the Jurisdictional Decision, the Agency also found that, in determining whether persons who have allergies are persons with disabilities for the purposes of Part V of the CTA, it would rely on the concepts relating to the determination of a disability reported in Decision No. 646-AT-A-2001. The Agency found that the International Classification of Functioning, Disability and Health, World Health Organization, 2001 (ICF) could be useful in the Agency's analysis of disability issues and found that it is an appropriate model of disability for determining whether a person with an allergy is a person with a disability for the purposes of Part V of the CTA.

Expert participation

[12] In Decision No. LET-AT-A-95-2007, the Agency informed the parties that it was in the process of retaining an expert in the field of allergies to assist it in this and other allergy-related applications due to the complex nature of the issues and in light of their importance to both air carriers and persons who have difficulty travelling by air when allergens are present in the aircraft cabin. In Decision No. LET-AT-A-188-2007, the Agency informed the parties that it had retained Dr. Gordon Sussman as its expert in this matter.

[13] Dr. Sussman is a medical doctor with a specialty in clinical immunology and allergy. He is a professor in the Department of Medicine at the University of Toronto and, in addition to running his own private practice, is a staff physician at St. Michael's Hospital in Toronto. Dr. Sussman has published literature on allergies and allergy-related issues.

[14] Dr. Sussman filed two reports:

1. Report to the Canadian Transportation Agency/Office des transports du Canada, November 8, 2007;
2. Report Addendum: Cat and Dog Dander in the Aircraft Cabin, May 23, 2008.

[15] Air Canada retained Dr. Peter Vadas as an expert in the field of allergies. Dr. Vadas is a specialist in allergy and clinical immunology at St. Michael's Hospital in Toronto. He is an associate professor in the Department of Medicine at the University of Toronto and serves as director of the Division of Allergy and Clinical Immunology at St. Michael's Hospital. Air Canada filed a report prepared by Dr. Vadas, entitled CTA Proceedings: Allergies, October 15, 2007.

[16] On November 20, 2008, Dr. Sussman was cross-examined by Air Canada regarding his reports. Parties were provided with copies of the transcript from the cross-examination and an opportunity to file their comments with respect to that testimony.

Facts, evidence and submissions

[17] Mr. Kideckel, his wife Norma Kerr, and their son travelled from Toronto to Los Angeles on July 23, 2000. They were assigned seats in row 17. Shortly after they were seated onboard the aircraft, a passenger carrying flowers sat down in the row immediately behind them. Ms. Kerr advised a flight attendant that she is highly allergic to flowers and asked to be relocated to a vacant seat in business class where she would be separated from the cabin in which the flowers were located.

[18] The flight attendant informed Ms. Kerr that such a decision would have to be made by the gate agent. Mr. Kideckel claims that the gate agent stated that she did not care about Ms. Kerr's health. When his wife returned to the aircraft, she appealed to the pilot who was standing with a flight attendant at the entrance. According to Mr. Kideckel, the pilot stated that he did not care about Ms. Kerr's health issues and said he would rather take the chance of having to make an emergency landing if she became ill than allowing Ms. Kerr to move to business class.

[19] Mr. Kideckel explains that his wife did not have an ulterior motive in requesting to be moved to the business-class cabin; she simply wanted to be as far away from the flowers as possible, as prolonged exposure to them "could result in an anaphylactic reaction and hospitalization."

[20] Mr. Kideckel states that the carrier's personnel then moved three passengers from row 19 in economy class into business class and assigned his wife to the vacated seats in row 19, the row immediately behind the passenger with the flowers. Mr. Kideckel states that, at that point, the passenger carrying the flowers realized the seriousness of the situation and agreed to have the flowers covered in plastic and stored in a forward cabin storage unit. Mr. Kideckel states that, despite this remedy, the exposure had been longer than necessary and could have resulted in a problem based on the residual scent of the flowers and petals which could have fallen from the bouquet.

[21] Mr. Kideckel also maintains that Ms. Kerr was subject to verbal abuse from one of the flight attendants during the flight, and that the pilot and this flight attendant were unpleasant to Ms. Kerr when she disembarked from the plane.

[22] In response to Mr. Kideckel's complaint, Air Canada explains that airlines cannot guarantee an allergy-free environment as they have no control over products worn, used or carried onboard by passengers, caterers or other service personnel. The carrier adds that it understands the reasons for Ms. Kerr's request to be seated in business class, but that the upgrading of passengers is not a common practice within its operation and is confined to situations where the carrier is no longer able to fulfil its commitment to economy-class ticket holders because the economy cabin is full.

[23] The Agency provided Ms. Kerr with the opportunity to file additional submissions to support her position that her particular allergy is a disability and whether she had encountered an undue obstacle per the accessibility provisions of the CTA. In her response, she states that allergic reactions range from mild to life-threatening and that deference must be given to the person with the allergy as that individual is the one with the knowledge and history to assess the level of risk. Ms. Kerr states that, while she has been treated in hospital on a number of occasions for serious allergic reactions, she has also had less serious reactions and these have impacted on her health and her ability to participate in normal life activities. She argues that the absence of an "a priori physical presentation" can be problematic as a person may initially appear well but the potential for serious illness still exists. She adds that prevention is the best solution, and avoidance of the allergen is the safest way of preventing serious reactions.

[24] Ms. Kerr claims that she has avoided many trips and has experienced extreme limitations and restrictions in her ability to participate in life, including travelling for pleasure, to visit family and ill relatives, and for celebrations. She argues that she has no doubt that the potential for illness and possible death constitutes a disability and an undue obstacle to her mobility.

[25] Ms. Kerr states that she understands that an airline cannot guarantee an allergy-free environment, but that the carrier's staff should work with passengers who present the potential for serious allergy problems to do whatever is necessary to ensure the health, comfort and safety of that passenger. She asserts that substances that are obvious triggers for allergic reactions should be removed from the aircraft or the passenger should be moved away from the trigger.

[26] Air Canada maintains that Ms. Kerr did not provide any evidence or arguments necessary to demonstrate that she has an allergy and that she has a disability attributable to her allergy to flowers. The carrier states that there is no medical evidence of her alleged allergic condition and that her complaint is based only on her allegation that she is allergic to flowers. Air Canada states that Ms. Kerr's condition, as she describes it, does not amount to a disability for the purposes of Part V of the CTA.

[27] In her reply, Ms. Kerr reiterates the symptoms she experiences when in the presence of scented flowers and, particularly, roses (the flowers being carried on her flight) and further possible health consequences, which she claims include potentially fatal anaphylactic reactions. She states that her allergy to flowers is one of many, and she has required emergency medical treatment on multiple occasions. She claims that the fact that she would not be able to access such treatment while travelling in an airplane constitutes a disability.

[28] The Agency required Ms. Kerr to submit a letter or medical certificate describing the allergic reactions and consequences she can experience when in the presence of flowers and explaining in detail how the allergic reactions can be managed. In response, Ms. Kerr submitted a letter from her physician stating that Ms. Kerr has multiple food, drug and environmental allergies, including allergies to flowers, and that, in the past, her reactions have ranged from hives to an anaphylactic reaction. The physician adds that if Ms. Kerr is exposed to roses, a mild reaction, such as a throat or eye irritation or a runny nose could occur, which could be treated with an antihistamine, but if the reaction involved breathing difficulties or face, lip or tongue swelling, she would have to inject herself with an EpiPen. Ms. Kerr's physician states that the effects of an EpiPen wear off within 20 minutes and, therefore, the aircraft would have to make an emergency landing and Ms. Kerr would need to be hospitalized.

[29] Air Canada considers the letter provided by Ms. Kerr's physician to be insufficient for the Agency to use as a basis for determining whether Ms. Kerr is a person with a disability. The carrier maintains that the doctor's letter lists a series of substances to which Ms. Kerr is allergic and describes reactions in general terms and that it does not state whether proximity to, or physical contact with, roses would cause an allergic reaction. Air Canada states that, in view of the letter from Ms. Kerr's physician, the evidence suggests that Ms. Kerr's reaction could amount to a throat or eye irritation or a runny nose if she come into contact with roses.

[30] Air Canada does not have a specific policy on the carriage of flowers on board, providing that carriage does not contravene any import restrictions. The carrier states that Ms. Kerr and her son were reassigned seats within the economy class cabin, which was the service they purchased. Further, the passenger carrying the flowers agreed to have them covered with plastic, which Air Canada's flight crew facilitated by providing the plastic wrap. Air Canada states that it does not have a policy or procedure to reassign seats to passengers who express concerns regarding the presence of certain allergens during a flight. However, flight attendants are trained to use good judgment in each situation. Air Canada does not provide upgrades to the executive class cabin in such cases.

[31] Air Canada added that it understands Ms. Kerr suffered no reaction whatsoever on the flight and submitted a copy of Ms. Kerr's Passenger Name Record, which had no indication of a medical condition or disability.

[32] Ms. Kerr states that Air Canada misconstrued the "spirit and intent" of her physician's letter. She argues that her doctor's comments were intended to indicate that flowers are but one of the things to which Ms. Kerr is allergic, and that the comments were general in nature because "exposure" represents any exposure from smell to touch. She asserts that Air Canada's conclusion that she would risk a runny nose or throat or eye irritation if she were exposed to flowers is a clear misrepresentation of the facts and ignores the potentially life-threatening risk to which she was exposed.

[33] Ms. Kerr submits that, as a result of exposure to the flowers during the flight, she experienced severe throat, eye, nose and sinus irritation for the first four days of her trip, causing her stress in response to fear of a more serious reaction. Further, she submits that, Air Canada's unresponsiveness to her situation made her fearful of travelling with the carrier in the future.

Analysis and findings

The Agency's approach to the determination of disability

[34] As reflected in the Jurisdictional Decision, the Agency finds that the ICF is an appropriate model of disability for determining whether a person with an allergy is a person with a disability for the purposes of Part V of the CTA. The ICF model of disability analysis contains a complete classification of body functions and structures, and identifies three dimensions of disability, namely: impairments, activity limitations, and participation restrictions.

[35] Also reflected in the Jurisdictional Decision is the Agency's opinion that:

1. there must be an impairment in order for there to be a disability for the purposes of Part V of the CTA;
2. impairment, alone, is insufficient to support the conclusion that a health condition is a disability for the purposes of Part V of the CTA; and
3. in order to find that a person has a disability for the purposes of the CTA, it is necessary to find that the person experiences activity limitations and/or participation restrictions in the context of the federal transportation network.

Is Ms. Kerr a person with a disability for the purposes of Part V of the CTA?

[36] The Agency's analysis as to whether Ms. Kerr is a person with a disability for the purposes of Part V of the CTA is expressed in terms of the ICF model of disability.

i. impairment

[37] The ICF model of disability defines impairment as a loss or abnormality of a body part (i.e., structure) or body function (i.e., physiological function, including mental functions). Abnormality is used strictly to refer to a significant variation from established statistical norms (i.e., as a deviation from a population mean within measured standard norms).

[38] In the Jurisdictional Decision, the Agency noted that the category of "hypersensitivity reactions", which is included in the functions of the haematological and immunological systems of the ICF, encompasses "functions of the body's response of increased sensitization to foreign substances, such as in sensitivities to different antigens." The Agency further noted that this category explicitly includes allergies and, as such, found that an allergy is an impairment.

[39] The letter from Ms. Kerr's physician clearly states that she is allergic to flowers. Therefore, the Agency concludes that Ms. Kerr has an impairment for the purposes of the ICF.

ii. activity limitations and/or participation restrictions in the context of the federal transportation network

[40] The ICF model of disability defines activity limitations as difficulties an individual may have in executing activities. The model states that an activity limitation may range from a slight to a severe deviation in terms of quality or quantity in executing the activity in a manner or to the extent that is expected of people without the health condition. While the Agency notes that an activity limitation may be slight in nature, the Agency is of the opinion that for the purposes of its analysis, a limitation must be significant enough to result in an inherent difficulty in executing a task or action. For example, a person whose allergic reaction is limited to a runny nose would not be considered by the Agency to have an activity limitation in the context of using the federal transportation network.

[41] Participation restriction is defined in the ICF model of disability as a problem an individual may experience in involvement in life situations. The presence of a participation restriction is determined by comparing an individual's participation to that which is expected of an individual without a disability in that culture or society.

[42] In the Jurisdictional Decision, the Agency determined that fact-based evidence of the presence of activity limitations and/or participation restrictions in the context of the federal transportation network is necessary to support a conclusion that a person with an allergy is a person with a disability for the purposes of Part V of the CTA.

[43] The Agency's process invites the participation and input of each of the parties at each step in its investigation and, therefore, Ms. Kerr had the opportunity to file evidence in support of her contention that her allergy to flowers constitutes a disability for the purposes of Part V of the CTA. In addition, the Agency specifically requested Ms. Kerr to submit a letter or medical certificate from her physician describing the allergic reaction and the consequences she can experience when she is in the presence of flowers and explaining how the allergic reaction can be managed.

[44] Ms. Kerr described a potential range of reactions, from mild to life-threatening. She maintained that the passenger with the allergy should be deferred to, as he or she is the most qualified at the time to evaluate the potential level of risk. Ms. Kerr also stated the absence of an "a priori physical presentation" can be difficult as a person may appear well initially but the potential for serious illness still exists.

[45] Air Canada took the position that Ms. Kerr's response did not provide sufficient evidence to demonstrate that she has an allergy and that she has a disability attributable to her allergies. Air Canada submitted that there was no medical evidence of her alleged allergic condition and her complaint was based only on her word that she was allergic to flowers. Air Canada contended that Ms. Kerr's condition, as she described it, did not amount to a disability for the purposes of Part V of the CTA.

[46] In response to Air Canada, Ms. Kerr stated that when "in the presence of such flowers I experience headache, congestion, sneezing, itching, possible hives and gastro-intestinal upset, itchy throat, etc. The occurrence of these conditions has lead to further illness, including respiratory infection [?] There also exists the potential for any allergic reaction to become an anaphylactic reaction, which can lead to death." She maintains that the absence of access to appropriate treatment while travelling in an airplane constitutes a disability.

[47] Ms. Kerr asserted that Air Canada misconstrued the "spirit and intent" of her physician's letter and that Air Canada's conclusion that she would risk a running nose or a throat or eye irritation if she were exposed to flowers was a clear misrepresentation of the facts and ignored the potentially life-threatening risk to which she was exposed. However, the Agency is of the opinion that the letter from Ms. Kerr's physician does not sufficiently set out the nature of the allergic reactions that Ms. Kerr can experience if exposed to flowers.

[48] More specifically, it is not clear whether the potential breathing difficulties or face, lip or tongue swelling only relate to Ms. Kerr's other food, drug, and environmental allergies or can also relate to Ms. Kerr's allergy to flowers. Moreover, the Agency notes the evidence of Dr. Vadas, Air Canada's allergy expert, and that of Dr. Sussman, the Agency's allergy expert. Dr. Vadas states that inhalant allergens usually cause symptoms, including itchy, watery eyes; runny or stuffy nose; and sneezing, and that such allergens affect more than 20 percent of the general population. He adds that inhalant allergic reactions usually give rise to nuisance symptoms but, in the presence of coexistent asthma, such allergic reactions may be severe or life-threatening, especially if the person is also experiencing a respiratory tract infection or is exposed to environmental irritants. Dr. Vadas explains that when the airway or cardiovascular system is involved, it is deemed to be potentially life-threatening. Additionally, during his cross-examination by Air Canada, Dr. Sussman stated that, with respect to airborne allergens, inhalant allergens (pollens, animal dander, dust, dust mites and moulds) do not generally give rise to a risk of life-threatening reactions. Dr. Sussman explained that the allergic reaction is more likely to be respiratory symptoms and stated that "[i]n my opinion, there is very little chance that airborne allergens will cause, or trigger, severe anaphylactic reactions."

[49] Finally, although Ms. Kerr was seated in close proximity to roses, she did not experience an allergic reaction while on board the aircraft and submitted no evidence in support of her statement that she experienced a delayed reaction of severe throat, eye, nose and sinus irritation for the first four days of her trip.

[50] The Agency finds that the evidence shows that Ms. Kerr may experience a mild reaction if exposed to scented flowers. This reaction can cause, for example, throat and eye irritation as well as a runny nose. However, the Agency finds that the evidence is insufficient to support a conclusion that Ms. Kerr's allergic reaction to flowers is significant enough to result in an activity limitation in the context of using the federal transportation network. As previously stated, the Agency is of the opinion that, for the purposes of its analysis, a limitation must be significant enough to result in an inherent difficulty in executing a task or action. The Agency also finds that Ms. Kerr did not provide sufficient fact-based evidence of the presence of a participation restriction in the context of using the federal transportation network.

Conclusion

[51] In light of the foregoing, the Agency finds that Ms. Kerr has not provided sufficient evidence to demonstrate that, for the purposes of Part V of the CTA, she is a person with a disability due to her allergy to roses. As a result, the Agency will not address whether Ms. Kerr encountered an obstacle to her mobility and contemplates no further action regarding this application.

Members

• John Scott
• Raymon J. Kaduck
• J. Mark MacKeigan