Decision No. 4-AT-A-2010

Introduction

[1] Sophia Huyer and Rhonda Nugent, on behalf of her daughter Melanie Nugent, filed applications with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) regarding difficulties they experienced relating to peanut and nut allergies when travelling with Air Canada.

[2] In Decision No. LET-AT-A-177-2008, the Agency established that it would make its determinations in the aforementioned allergy cases in two stages. In the first stage, the Agency will determine whether the applications were filed by, or on behalf of, persons with disabilities for the purposes of Part V of the CTA and if so, whether the applicants, or persons on whose behalf the applications were filed, encountered obstacles to their mobility. In order to determine whether an obstacle was faced, the Agency must determine the service required to meet their disability-related needs, i.e., the appropriate accommodation, and then determine whether that service was provided. Should an obstacle be found to exist, the Agency will open pleadings to determine whether it is undue.

Issues

[3] The applications raise the following issues:

• Whether Dr. Huyer is a person with a disability and if so, whether she encountered an obstacle in light of Air Canada's response to her accommodation request in respect of two flights she travelled on in 2006.
• Whether Melanie Nugent is a person with a disability and if so, whether she encountered an obstacle in light of Air Canada's response to the Nugents' accommodation request in respect of a flight they travelled on in 2006.

[4] The applications also raise the broader issue of whether the lack of a formal policy to accommodate persons who have an allergy to peanuts or nuts constitutes an obstacle to the mobility of Dr. Huyer and Melanie Nugent and to persons whose allergy to peanuts or nuts results in a disability for the purposes of Part V of the CTA.

Legislative framework

[5] The Agency's legislative mandate with respect to persons with disabilities is found in Part V of the CTA, which contains a regulation-making authority [subsection 170(1)] and a complaint adjudication authority [subsection 172(1)], both for the express purpose of removing undue obstacles to the mobility of persons with disabilities from the federal transportation network. The scope of the Agency's jurisdiction to eliminate undue obstacles by both regulation and adjudication is partly defined by an inclusive list of matters contained in subsection 170(1), which is incorporated by reference into subsection 172(1).

[6] The Supreme Court of Canada, in its decision in the case of Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, provided significant direction to the Agency on the execution of this mandate, including the confirmation that Part V of the CTA is human rights legislation. This means identifying and remedying undue obstacles for persons with disabilities in the transportation context in a manner that is consistent with the approach for identifying and remedying discrimination under human rights law. In particular, the Supreme Court clarified that 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 by demonstrating that reasonable accommodation has been provided, meaning up to the point of undue hardship.

Experts

[7] Given the complex nature of the issues and in light of the importance of these issues to both the airline industry and to persons who have difficulty travelling by air when allergens are present in the aircraft cabin, the Agency decided to obtain expert evidence on allergies.

[8] To that end, the Agency retained Dr. Gordon Sussman, a medical doctor with a specialty in clinical immunology and allergy, as an expert on allergies. He is a Professor in the Department of Medicine with 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 on allergy and allergy-related issues. He was retained by the Agency to provide a report on a variety of issues related to allergies. Dr. Sussman's qualifications were provided to the parties and no objections were raised by the parties to the appointment of this expert. Additionally, the parties were provided with an opportunity to comment on the terms of reference provided by the Agency to Dr. Sussman.

[9] Dr. Sussman's report, Report to the Canadian Transportation Agency, November 22, 2007, addresses, among other matters, the nature of allergies and their impact on persons, means of managing exposure and reaction to allergens, comments on a subsequent report filed by an expert in allergies retained by Air Canada, and comments on the effectiveness of measures of accommodation in the aircraft cabin.

[10] Air Canada retained Dr. Peter Vadas as its expert. Dr. Vadas is head of the Allergy, Asthma and Clinical Immunology Department of St. Michael's Hospital in Toronto. The applicants did not contest Dr. Vadas's qualifications and the Agency accepts Dr. Vadas as an expert on allergies. Dr. Vadas prepared a report, CTA Proceedings: Allergies, October 15, 2007, which Air Canada filed with the Agency.

[11] On November 20, 2008, upon Air Canada's request, the applicants and Air Canada were provided with the opportunity to cross-examine Dr. Sussman regarding his report. The applicants were also provided with the opportunity to cross-examine Dr. Vadas, however, none chose to do so. Although the applicants did not participate in the cross-examination of Dr. Sussman, they were provided with copies of the transcript and had the opportunity to file comments. However, no further pleadings were submitted by the applicants with respect to the cross examination.

Facts and submissions

[12] Air Canada states that it does not serve peanuts or peanut snacks on any flights, however, it serves other nuts and "nut type" snacks. Air Canada further states that it serves smokehouse almonds in business class and, on its long-haul international flights, it serves a mix of nuts in business class. In economy class, almonds and cashews can be purchased from its On Board Café. Air Canada has replaced its other packaged snacks with non-peanut alternatives wherever possible.

[13] Air Canada states that it cannot make any guarantees with respect to meals being free from peanuts, peanut byproducts or any other food to which a person may be allergic, as it would be impossible to manage with the many caterers, their suppliers and sub-suppliers which provide food products for Air Canada flights. Air Canada submits that it can neither be responsible for passengers who may bring peanuts or other products on board nor for any residue that may remain on board. Air Canada states that it will not stop the planned service of food to which a passenger may be allergic as this would be unfair to its other passengers. Air Canada further submits that if a passenger is allergic or sensitive to products that may be found in the aircraft cabin, it is the passenger's responsibility to bring the proper medication and to have the proper protection.

Travel by Dr. Huyer

[14] On April 1, 2006, Dr. Huyer travelled on Flight No. AC848 between Toronto, Ontario and London, England. Dr. Huyer's Passenger Name Record (PNR), a computer record which contains reservations information for passengers, including identification of disability-related needs, does not indicate that she informed Air Canada of her allergy to nuts prior to travel. Once on board, Dr. Huyer informed carrier personnel of her allergy to nuts and requested that the carrier refrain from serving them. The in-charge flight attendant referred the matter to Air Canada's Station Operation Control (STOC) and boarding gate staff. Air Canada made the decision not to withdraw the service of nuts as they had already been loaded on board and it was too late to replace them with an alternate snack. Air Canada gave Dr. Huyer the choice to either remain on the flight or deplane. Dr. Huyer hesitated in making a decision and Air Canada's STOC then decided to remove Dr. Huyer from the aircraft. Air Canada rebooked her on the next flight that was departing approximately two and a half hours later and ensured that all nuts were removed from that flight and replaced with an alternate snack. Air Canada also made an announcement to all passengers requesting that they refrain from consuming products containing nuts or peanuts.

[15] On May 20, 2006, Dr. Huyer travelled on Flight No. AC873 between Frankfurt, Germany and Toronto. Dr. Huyer's PNR sets out that on May 9, 2006, she informed Air Canada of her allergy to nuts. Once on board, Dr. Huyer reminded cabin crew personnel of her allergy and requested that they refrain from serving nuts. Air Canada's personnel advised Dr. Huyer that the service of nuts would not be withdrawn, but gave Dr. Huyer the choice of remaining on the aircraft or deplaning. Dr. Huyer chose to remain on the aircraft, but the captain decided that as a condition of taking the flight, Dr. Huyer had to sign a waiver which set out the following:

[16] Air Canada personnel did offer to move Dr. Huyer to a seat in the last row of the aircraft, but Dr. Huyer declined that offer and decided to enclose herself in a washroom on the aircraft for approximately 40 minutes during the time that nuts were being served.

Travel by Melanie Nugent

[17] On April 21, 2006, Melanie Nugent travelled with her family from St. John's, Newfoundland and Labrador to Orlando, Florida via Toronto and returned from Orlando to St. John's via Montréal, Quebec on May 2, 2006. Ms. Nugent, for each flight segment, informed carrier personnel at the check-in counter of Melanie's severe peanut allergy and she was advised to speak to in-charge flight attendants so that announcements could be made on board the aircraft. The Nugents experienced no difficulties on both segments of their outbound flight and on the first leg of their return flight, and they were satisfied with the accommodation they were provided.

[18] On the last leg of the Nugents' trip, from Montréal to St. John's, Ms. Nugent was informed by onboard carrier personnel that an announcement would not be made and that cashews would be served on the flight. Carrier personnel offered to accommodate the Nugents by moving them to the back of the aircraft where they would have been separated from all passengers by 6 rows and separated from the business class cabin, where cashews were being served, by 12 rows. However, this offer of accommodation was refused. Ms. Nugent's request to speak with the captain was denied, following which, she proceeded toward the cockpit anyway. At the same time, Mr. Nugent stood up and announced Melanie's allergy to the passengers and requested that they refrain from eating peanuts.

Analysis and determinations

The Agency's approach to the determination of disability

[19] In determining whether there is an obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first establish whether the application was filed by, or on behalf of, a person with a disability.

[20] In Decision No. 243-AT-A-2002 (Jurisdictional Decision) 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 who have a disability for the purposes of Part V of the CTA 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.

[21] 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 which are reported in Decision No. 646-AT-A-2001. In that decision, 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. 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.

[22] As reflected in Decision No. 335-AT-A-2007, the Agency finds that the ICF is an appropriate model to determine whether a person with an allergy is a person with a disability for the purposes of Part V of the CTA. Also, as reflected in the Jurisdictional Decision, the Agency is of the 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 or participation restrictions in the context of the federal transportation network.

i. Impairment

[23] 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). 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).

[24] 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, the Agency found that an allergy is an impairment.

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

[25] 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.

[26] 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.

[27] The Agency notes that activity limitations may be slight in nature. However, 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. In the Jurisdictional Decision, the Agency determined that fact-based evidence of the presence of activity limitations and/or participation restrictions 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.

Is Dr. Huyer a person with a disability?

Impairment

[28] A letter from her physician states that Dr. Huyer has been diagnosed with a severe allergy to nuts and that when exposed to any environment in which peanuts are present, she experiences symptoms such as skin reactions, tongue swelling, "etc." The letter also sets out that Dr. Huyer is in possession of Epi-pens and always has appropriate antihistamines with her. Her physician adds that the closed-off environment of an aircraft cabin with recycled air could be particularly hazardous. A letter from her doctor of naturopathic medicine sets out that she has an extreme sensitivity to nuts and nut-containing products. He explains that her sensitivity to nuts and nut-containing products is so extreme that she does not have to ingest them; rather, the mere presence of these in her immediate environment is enough to cause concern. Ms. Huyer submits that she also has asthma, and she experiences a direct and immediate reaction to both airborne and ingested allergens.

[29] Air Canada submits that the reports from Dr. Huyer's physician and her doctor of naturopathic medicine do not confirm that she is allergic to products other than peanuts. Air Canada also asserts that Dr. Huyer has not proven that she is allergic to tree nuts and, more specifically, that she is allergic to almonds. In response, Dr. Huyer filed clarifications from her physician which state that she experiences symptoms when exposed to nuts, including all tree nuts and ground nuts. Dr. Huyer's doctor of naturopathic medicine also clarified that his reference to nuts and products containing nuts in his previous letter includes, but is not limited to, all ground and tree-sourced nuts, peanuts, cashews, almonds, filberts, brazil nuts, pecans and all other nuts and nut products.

[30] Based on the medical evidence filed, Dr. Huyer has allergies to peanuts and nuts and, therefore, the Agency finds that Dr. Huyer has an impairment.

Activity limitations/participation restrictions

[31] Dr. Huyer's medical evidence shows that she is at risk of experiencing a serious, and possibly anaphylactic, allergic reaction if exposed to peanuts or nuts. As a result of her severe allergy, Dr. Huyer must take measures to ensure that she is able to travel safely.

[32] Regarding the need for such measures, during the cross-examination, Dr. Sussman stated that accidental exposure to an allergen (e.g. eating trace amounts of the implicated food, using contaminated utensils, or transferring the allergen from hands and clothing) is the most common cause of anaphylaxis.

[33] Dr. Sussman states that it must be recognized that all individuals with peanut and other serious food allergies could potentially have critical and life-threatening reactions. He indicates that these individuals are afraid of accidental exposure by necessity and currently, avoidance of the "allergic food" is the only available preventative treatment. Dr. Sussman also states that individuals with severe allergies live with an extreme fear of serious allergic reactions, especially when they are confined to an environment with possible allergens.

[34] Dr. Vadas notes that some individuals will become increasingly more sensitive to accidental exposures to an allergen, leading to progressively more severe reactions. He states that once someone becomes allergic, they will react with each and every exposure.

[35] In light of the foregoing, the Agency finds that Dr. Huyer experiences both activity limitations, related to the allergic reactions she can have, and participation restrictions, related to additional measures or precautions to be taken in order for her to travel safely by air.

Agency conclusion

[36] As noted above, the Agency finds that Dr. Huyer has an impairment and experiences activity limitations and participation restrictions when exposed to peanuts or nuts when travelling by air.

[37] The Agency, therefore, finds that Dr. Huyer is a person with a disability for the purposes of Part V of the CTA as a result of her allergy to peanuts and nuts.

Is Melanie Nugent a person with a disability?

Impairment

[38] Letters from Melanie Nugent's physician set out that she has been diagnosed with a peanut allergy. Allergy tests show that she has a strong allergic reaction to peanuts and may have an anaphylactic reaction. Her physician notes that it is possible for an anaphylactic reaction to lead to death if it is not treated properly. Melanie has been advised to wear a Medic-Alert bracelet, avoid ingesting peanuts and to carry an Epi-Pen. Her physician indicates that if Melanie comes into contact with, i.e., ingests or inhales, peanuts or any foods with traces of peanuts, she would likely have an allergic reaction that would include respiratory distress, wheezing and swelling of her tongue and mouth and would require an immediate injection of adrenaline (i.e., use of an Epi-pen) which may need to be repeated every five minutes until symptoms have resolved. Her physician also notes that once an allergic reaction occurs, it is likely that Melanie would need to be transported to the nearest emergency room for observation and/or more definitive management, and that this would be especially true if more than one dose of adrenaline was required.

[39] Additionally, Ms. Nugent notes that Melanie's physicians recommend that Melanie avoid all nuts, including cashews, due to the severity of her peanut allergy.

[40] In his report, Dr. Vadas discusses food associations. For example, a person with an allergy to peanuts is at increased risk of developing an allergy to tree nuts or seeds.

[41] Dr. Sussman also discusses food associations in his report. He emphasizes the cross-reactivity between some foods and explains that an individual who reacts to one allergen may react to other allergens with similar epitopes (i.e., a localized region on the surface of an antigen that is capable of eliciting an immune response and of combining with a specific antibody to counter that response). Dr. Sussman states that approximately 50 percent of people with peanut allergies also have allergies to tree nuts, examples of which include pecans, Brazil nuts and hazelnuts. During his cross-examination, Dr. Sussman explained that cashews are not, strictly speaking, tree nuts. They are part of the mango family, which also includes pistachio and mango. People who are allergic to cashews will often also react to pistachios, but not to mangos, and maybe not to tree nuts. Dr. Sussman also explains that, strictly speaking, almonds are part of the plum family. Almonds cross-react with plums, nectarines and peaches and are not classified as a tree nut.

[42] As set out above, Ms. Nugent has been advised by Melanie's physicians that Melanie needs to avoid all nuts due to the severity of her allergy to peanuts. Although Air Canada questioned whether Melanie Nugent has an allergy to nuts, the evidence of the experts shows that cross-reactivities between different allergens exist. There may be differing opinions as to whether almonds or cashews are tree nuts. However, the Agency notes that the specific recommendation from Melanie's physicians, as submitted by Ms. Nugent, is that Melanie must avoid all nuts, not just tree nuts. In light of this specific recommendation, and in light of the expert evidence on the existence of cross-reactivities between allergens, the Agency finds that Melanie must avoid all nuts, including almonds and cashews.

[43] Based on the evidence filed, the Agency finds that Melanie Nugent has an allergy to peanuts and must avoid nuts and, therefore, the Agency finds that Melanie Nugent has an impairment.

Activity limitations/participation restrictions

[44] Melanie Nugent's medical evidence shows that she is at risk of experiencing a serious allergic reaction if exposed to peanuts and, as noted above, the Agency has accepted that she must also avoid nuts. As a result of her allergy, Melanie must take measures to ensure that she is able to travel safely. The Agency also notes the expert evidence, as set out above in paragraphs 32-34, which indicates the possibility and implications of an accidental exposure to an allergen. In light of the foregoing, the Agency finds that Melanie Nugent experiences both activity limitations related to the allergic reactions and participation restrictions based on her need for additional measures or precautions.

Agency conclusion

[45] As noted above, the Agency finds that Melanie Nugent has an impairment and experiences activity limitations and participation restrictions when travelling by air and when exposed to peanuts or nuts.

[46] The Agency, therefore, finds that Melanie Nugent is a person with a disability for the purposes of Part V of the CTA as a result of her allergy to peanuts and her need to avoid nuts.

The Agency's approach to the determination of obstacles

[47] In making a determination as to whether an individual encountered an obstacle to their mobility, it must be determined whether their disability-related needs were met. In order to determine whether an individual's disability-related needs were met, the Agency must first establish what service is required to meet their disability-related needs. The service responsive to a person's disability-related needs is referred to as "appropriate accommodation". However, this is not necessarily the accommodation that the individual may prefer. And sometimes the accommodation sought by an applicant exceeds the transportation service provider's duty to accommodate.

[48] The determination of what is the "appropriate accommodation" is made by the Agency, and is separate and distinct from whether the accommodation would result in "undue hardship" for the transportation service provider. In determining what constitutes the appropriate accommodation, the principal test is that of effectiveness.

[49] The service provider will meet its duty to accommodate if the accommodation provided results in an equal opportunity for the person with a disability to attain the same level of transportation services and privileges experienced by others in the federal transportation network. It must be noted that at the stage of assessing whether the appropriate accommodation has been provided based on the facts of the case before it, the Agency does not consider the ability of the service provider to provide accommodation. Any constraints which may affect the service provider's ability to provide the service will only be assessed at the undueness stage, which only arises if the Agency finds that an individual encountered an obstacle. If it is determined that the individual was provided with appropriate accommodation, they cannot be said to have encountered an obstacle.

[50] In considering whether a situation constitutes an "obstacle" to the mobility of a person with a disability in a particular case, the Agency generally will look to the incident described in the application to determine whether the applicant has established in the application (that is, on a prima facie basis) that:

• a distinction, exclusion or preference resulted in an obstacle to the mobility of a person with a disability;
• the obstacle was related to the person's disability; and,
• the obstacle discriminates by imposing a burden upon, or withholding a benefit from a person with a disability.

Determination of appropriate accommodation

[51] In the present case, the Agency must determine what services provide the appropriate accommodation to meet the disability-related needs of persons, including Dr. Huyer and Melanie Nugent, whose allergy to peanuts or nuts results in a disability for the purposes of Part V of the CTA. In making this determination, the Agency will consider the positions of Dr. Huyer and Melanie Nugent, as well as the evidence provided by the Agency's expert, Dr. Sussman, by Air Canada's expert, Dr. Vadas, and by Air Canada itself.

[52] Dr. Huyer submits that it is a hazard for her to be in an aircraft on which nuts are served and she requires that Air Canada not serve nuts in its snack service to any passengers when she is travelling. Throughout her submissions, Dr. Huyer has made various suggestions to deal with this issue, including:

1. abolishing nuts on board all Air Canada aircraft;
2. continuing to serve nuts on board, but if a passenger indicates a severe nut allergy, service of nuts will be immediately suspended, no questions asked, or providing passengers with severe nut allergies with an official Air Canada letter which they can use to clarify with cabin crew that nuts will not be served on board; and,
3. establishing an anaphylaxis policy requiring training for Air Canada staff and outlining appropriate emergency procedures.

[53] With respect to nuts brought on board by passengers, Dr. Huyer argues that Air Canada should make an announcement to request that all passengers refrain from consuming products containing nuts or peanuts.

[54] Ms. Nugent submits that to travel safely, Melanie requires Air Canada to make an announcement requesting that all passengers on board the aircraft refrain from eating peanuts or snacks that contain peanuts. Ms. Nugent also submits that all nuts, including cashews, should not be served to business class passengers.

Expert evidence

Types of allergic reactions

[55] Dr. Sussman indicates that there are several categories of allergic responses with different consequences and manifestations, the most serious being death. Dr. Sussman explains that the symptom constellation of anaphylaxis includes itching and skin rashes generally called hives, stomach and uterine cramping, swelling of the skin or mucous membranes angioedema), and high output cardiac failure or anaphylactic shock. Anaphylactic shock clinically includes weakness, dizziness, a drop in blood pressure, and unconsciousness. Dr. Sussman states that, broadly speaking, anaphylaxis is defined as an allergic reaction of rapid onset that can potentially cause death. Dr. Sussman adds that with no definitive marker of anaphylaxis and no definitive test to determine which individuals are predisposed to anaphylaxis, including life threatening anaphylactic reactions, all individuals with allergies to anaphylactic inducing allergens must be considered to have potentially serious allergies.

[56] Dr. Vadas also notes symptoms of allergic reactions, which include, but are not limited to: rashes, sneezing, itching, vomiting, systemic reactions, cardiac involvement, constriction in the throat which can lead to asphyxiation, etc. In discussing the ingestion of allergens, Dr. Vadas explains that when allergens are absorbed from the stomach into the bloodstream, a systemic reaction may involve the skin, cardiovascular system, respiratory tract, gastrointestinal tract or genitourinary systems. He describes skin manifestations as including, among other things, itching, hives and swelling of the eyes, tongue, throat. Dr. Vadas explains that airway involvement may be localized to the upper airway with obstructive symptoms or the lower airway with asthmatic symptoms. Gastrointestinal involvement may produce nausea, vomiting, cramps and diarrhea. Cardiovascular involvement has a number of manifestations which may be severe. Blood pressure may fall leading to a sensation of dizziness or light-headedness. If the blood pressure falls low enough, a person will become unconscious because of inadequate oxygen delivery to the brain. With low blood pressure, oxygen delivery to the heart muscle will also be compromised and it can lead to angina, heart attack or abnormal heart rhythm. Dr. Vadas explains that this can be fatal, as can upper or lower airway manifestations and that typically, involvement of the airways or cardiovascular system is deemed to be potentially life-threatening.

Food allergens

[57] Dr. Vadas states that the Canadian Food Inspection Agency has identified 9 foods as causing the vast majority of food-induced allergic reactions: "These nine priority foods are peanut, tree nuts, fish, shellfish, wheat, soy, milk, egg and sesame seed. Of these nine foods, reactions to peanuts, tree nuts and shellfish account for the majority of the near-fatal and fatal anaphylactic reactions."

[58] Dr. Sussman reports the same list of commonly recognized allergens. He states that while any food can cause an anaphylactic reaction, peanuts and tree nuts account for 94 percent of fatal anaphylaxis cases.

Triggers for allergic reactions

[59] Dr. Sussman states that exposures to allergens can generally be categorized as ingested, injected or inhaled. He explains that only a minute quantity or brief exposure to an allergen is necessary to cause a "major immunologic event".

[60] Dr. Vadas states that allergic reactions can be triggered by various routes of exposure such as topical, via the mucous membranes, or by ingestion. Dr. Vadas notes that routes of exposure may be "mixed"; explaining, by way of example, that with casual skin contact there is the potential to transfer food allergen from the skin to the mouth, resulting in ingestion and potentially leading to a systemic reaction. Like Dr. Sussman, he explains that a potent food allergen may trigger a severe reaction in susceptible individuals with "only a tiny exposure".

[61] With respect to inhalant allergies, Dr. Sussman explains that the allergens have to be aerosolized or carried on a particle such as dust, pollen, or powder to travel to the susceptible individual and then inhaled by the individual to cause an allergic reaction. Similarly, Dr. Vadas states that food proteins are usually not volatile, however, under certain circumstances, food allergens may become airborne when present as a fine dust or when carried into the air as water vapour or steam. Dr. Vadas explains that it is quite normal to develop an aversion to the smell of a food to which one is allergic. He further explains that this is a normal defence mechanism warning that person away from possible accidental exposure to that food. However, he notes that it is important not to confuse the aversion to a smell with the potential for airborne food proteins to cause allergic reactions. The aroma or smell of a food is usually due to the presence of volatile aromatic esters which are non-allergenic compounds. By contrast, Dr. Vadas explains that allergies are caused by food proteins.

[62] Dr. Vadas notes that respiratory reactions have been associated with aerosolized foods and cites the example of fish proteins in his report. He also states that critical levels above which symptoms may exist for aeroallergens have not yet been defined for certain food allergens, such as peanuts, tree nuts, fish, etc. Dr. Sussman states that there is a lack of data on the dispersion patterns of specific food allergens. He notes that dispersion patterns depend on the dose of food allergen exposure and would differ depending on the specific food.

[63] Dr. Sussman states that he is unaware of a documented anaphylactic fatality due to an inhalational exposure, although there are case reports of serious reactions from inhaling shellfish vapours and other food allergens. He explains that these reactions are asthmatic responses rather than anaphylactic shock. During his cross-examination, Dr. Sussman further explained that food allergens are generally thought of as causing reactions after a person ingests them. In his opinion, the data with respect to inhaled food allergens is lacking. However, Dr. Sussman clarified that this does not mean that there are no case reports of people inhaling food allergens and having very severe reactions; rather, they are anecdotal case reports and have not been well documented. In contrast, Dr. Vadas notes that there are a few well-documented examples of individuals who have had severe and fatal anaphylactic reactions to airborne food protein, in particular, the vapours of shellfish being cooked. Dr. Sussman states that the risk of severe reactions to airborne peanuts and tree nuts is unknown, but is probably related to the dose and location of the exposure. He is of the opinion that allergic individuals in the immediate vicinity of the allergen would be at the greatest risk of experiencing a reaction and submits that there would be a greater risk for a serious peanut or tree nut allergic reaction if individuals with allergies ate contaminated food or used eating utensils with trace amounts of the allergen.

[64] During his cross-examination, Dr. Sussman expressed the opinion that there is very little chance that airborne allergens will cause or trigger severe anaphylactic reactions. However, he clarified that this is not to say that there is no risk from inhalation or from contact. It is Dr. Sussman's opinion that accidental contamination is of greater concern. He states that accidental exposure to an allergen (e.g. eating trace amounts of the implicated food, using contaminated utensils, or transferring the allergen from hands and clothing) is the most common cause of anaphylaxis.

Implications of exposure to allergens

[65] As indicated earlier, Dr. Vadas notes that some individuals will become increasingly more sensitive to accidental exposures to an allergen, leading to more and more severe reactions. He states that once someone becomes allergic, they will react with each and every exposure.

[66] As indicated earlier, Dr. Sussman submits that it must be recognized that all individuals with peanut and other serious food allergies could potentially have critical and life-threatening reactions. These individuals are afraid of accidental exposure by necessity and presently, avoidance of the allergic food is the only available preventative treatment. Dr. Sussman states that while the exact risk of severe allergies in aircraft cabins is unknown, individuals with severe allergies live with an extreme fear of serious allergic reactions, especially when they are confined to an environment with possible allergens. He notes that, as there is no comprehensive and conclusive clinical marker to confirm an anaphylactic reaction, all individuals with allergies to anaphylactic-inducing allergens must be considered to have potentially serious allergies. Dr. Sussman explains how this lack of a more exact laboratory marker for anaphylaxis creates an environment of fear for individuals with this type of allergy.

Recommendations from allergy experts

[67] In his report, Dr. Sussman states his opinion that there is no need to serve peanuts to passengers on the aircraft and that not serving them reduces the risk of airborne exposure, accidental ingestion and contamination. He states that similarly, there is no need to serve any other foods that may potentially cause reactions, but expresses the view that an allergen-free environment would be impossible to implement. He notes that even with such a guideline in place, some allergic individuals may still be at risk of an allergic event, for example due to other passengers inadvertently bringing products containing peanuts and tree nuts or other allergens on board.

[68] Dr. Sussman recommends that individuals should be offered seats in an "allergen-safe" area in which other passengers in their immediate vicinity will not have food to which the individuals are allergic. While Dr. Vadas states that such an exclusion zone would not guarantee that an allergic individual would not come into contact with aerosolized food protein, he notes that an exclusion zone would serve the dual purpose of ensuring that a food allergic individual would likely experience lower levels of airborne exposure to food allergens as a result of distancing and would greatly reduce the likelihood of topical or skin contact. However, he explains that it would not take into account non-aeroallergen routes of exposure such as topical exposures from contaminated surfaces or ingestion of traces of allergen in food. Dr. Vadas further explains that when considering the issue of an exclusion zone, it does stand to reason that there would be very significant safety concerns in allowing passengers adjacent to a peanut allergic (or other food allergic) individual to consume peanut products (or other food allergens relevant to the allergic passenger).

[69] Dr. Sussman also recommends that a general announcement be made to inform all passengers that there is an individual with an allergy on board the aircraft.

[70] Finally, Dr. Sussman recommends that all air carrier personnel be educated and trained in the proper use of an Epi-pen.

Air filtration and circulation

[71] Dr. Vadas submits that the concentration of food allergens will be higher in enclosed environments with recirculated air. He notes that peanut protein has been detected in the filter system of commercial airlines demonstrating that peanut protein becomes aerosolized in flight and remains suspended in the aircraft cabin long enough to be trapped within the filter system.

[72] In response to interrogatories posed by the Agency and, more specifically, in response to a request to provide further information on the effectiveness of the filtration systems on its aircraft in removing allergens in cabin air, Air Canada submits that it uses High Efficiency Particulate Arrestor (HEPA) filters on its aircraft. Air Canada states that HEPA filters are self-contained units that cannot be overhauled or reused. They are replaced before the end of their service life of between 3,000 and 5,000 hours, depending on the aircraft manufacturer and filter manufacturer recommendations for the specific type. Air Canada explains that HEPA filters are the most efficient filters available on the market. Air Canada submitted a paper entitled HEPA Filtration Facts, which describes how HEPA filters capture a minimum of 99.97 percent of contaminants at 0.3 microns in size. The paper sets out that the 0.3 micron benchmark is used in efficiency ratings because it approximates the most difficult particle size for a filter to capture. HEPA filters are "even more efficient in removing particles that are smaller or larger than 0.3 microns".

[73] Air Canada further submits, in response to the same question noted above, that there are a number of common misconceptions regarding the quality of cabin air which are addressed in two publications it submitted: The Airplane Cabin Environment: Issues Pertaining to Flight Attendant Comfort by Elwood H. Hunt and David R. Space and Cabin Air Comfort by David Carlile. Air Canada explains that among the misconceptions addressed, one is that cabin air has a higher level of particle contamination. It submits that tests have shown that the mean particle concentration in cabin air is lower than or equal to fresh air particle concentration. Air Canada further submits that the particle contamination level has been shown to be lower than in the average work environment. Air Canada explains that low particle contamination on the aircraft is due to a variety of factors, including the direct control of the location of passengers relative to the air ventilation system, the effectiveness of the filtering system and the much larger quantity of outside air flow per cubic volume than in most other environments.

[74] As set out above, in response to a request by the Agency to provide further information on the effectiveness of the filtration systems on Air Canada's aircraft in removing allergens in cabin air, Air Canada submits that another misconception is that disease is easily spread through the ventilation system of the aircraft. Air Canada explains that the recirculation filters in aircraft are similar to filters used in critical wards in hospitals and in industrial "clean rooms". The above-noted Airplane Cabin Environment paper submitted by Air Canada provides the examples of organ transplant and burn units in describing critical wards in hospitals. It submits that on measurement, the concentration of germs per cubic metre was found to be lower in an aircraft cabin than the recommended germ concentration in hospital operating theatres, new-born baby wards and intensive care wards. Air Canada explains that "in contrast", the filtration systems in a typical building are incapable of removing microbial contaminants including bacteria and viruses from recirculated air.

[75] In the Airplane Cabin Environment paper, it is explained that the outside air supplied to the cabin of the Boeing 767 aircraft is provided by engine compressors, cooled by air-conditioning packs and mixed with an equal quantity of filtered and recirculated air. It is also explained that this is typical of modern generation aircraft. Approximately 20 cubic feet per minute (cfm) of air per passenger is provided, of which half is filtered recirculated air and half is outside air. This results in a complete cabin air exchange every two to three minutes.

[76] The paper also explains that low contaminant levels in the cabin are realized due to the tight control over outgassing of components used in the aircraft furnishings, direct control over the location of passengers relative to the supply and exhaust, the effectiveness of the recirculation system to remove essentially all microbials and particulates from the recirculated air, the dry, sterile and dust-free outside supply air during flight and the supply of a much larger quantity of outside airflow per cubic volume of space compared to most environments.

[77] The paper describes that air enters the passenger cabin from overhead distribution outlets which are designed to create carefully controlled circular airflow patterns in the cabin. The exhaust air leaves the cabin through return air grilles located in the sidewalls near the floor. The cabin ventilation system is designed and balanced so that air supplied at one seat row leaves at approximately the same row, minimizing airflow in the fore and aft directions. By controlling fore and aft airflow, the potential for spreading passenger-generated contaminants is minimized.

[78] Finally, the authors address perceptions of the cabin environment and, among them, contaminant build-up in the cabin. It is noted that a perception persists that there is a build-up of contaminants in the cabin on newer model aircraft due to the incorporation of recirculation systems and a subsequent reduction in the outside airflow. However, they state that study results from credible independent organisations (including the US Department of Transportation) show that the high efficiency filtration system and a large quantity of outside airflow supplied to the cabin maintain low particulate levels in the cabin.

Agency analysis and finding of appropriate accommodation

[79] Dr. Vadas and Dr. Sussman both indicate that it is impossible to create an allergy-free environment in the aircraft cabin. Therefore, in the particular context of the present applications, the appropriate accommodation to be determined by the Agency will be the service that is required to mitigate the risk of exposure to an allergen.

[80] Both experts agree that a minute exposure to an allergen is enough to cause an allergic reaction. Both experts also state that, for an individual to experience an allergic reaction to a food allergen from an inhalational exposure, the allergen would have to be aerosolized or carried on a particle such as dust, pollen or powder or be carried into the air as water vapour or steam. While the experts have differing opinions with respect to the existence of documented cases of fatal anaphylactic responses from inhaling food allergens, both experts agree that the greater risk is that of accidental ingestion of the allergen. Dr. Vadas is of the opinion that allergic individuals in the immediate vicinity of the allergen would be at greater risk of experiencing a reaction. Dr. Sussman expresses the opinion that there is very little chance that airborne allergens will cause a severe anaphylactic reaction.

[81] Dr. Vadas states that the concentration of food allergens will be higher in enclosed environments with recirculated air. However, the evidence shows that in modern generation aircraft, there is a complete cabin air exchange, consisting of an equal quantity of outside and recirculated filtered air, every two to three minutes. Evidence has also been provided that indicates that ventilation systems for modern generation aircraft and, more specifically, for Boeing aircraft, are designed so that the air exits the cabin at approximately the same row that it enters the cabin.

[82] The evidence shows that the recirculated air is filtered through HEPA filters which are of similar quality to those used in critical wards in hospitals and industrial "clean" rooms and they capture a minimum of 99.97 percent of contaminants at 0.3 microns in size which is the most difficult particle size for a filter to capture.

[83] In light of the evidence, the Agency finds that the risk of an allergic reaction due to the inhalation of peanut or nut particles on aircraft is significantly reduced on modern generation aircraft as a result of both the aircraft air filtration and circulation systems. The Agency accepts the expert evidence that the greater risk of a serious allergic reaction is from ingestion due to an accidental exposure.

[84] While both Dr. Huyer and Melanie Nugent have very serious allergies to peanuts or nuts and the expert evidence focuses on the most serious types of allergic reactions, including anaphylaxis and asthmatic responses, the Agency's examination of the matter is not limited to this end of the spectrum of allergic reactions. However, in relying on the expert evidence and the evidence on air circulation and filtration, in addition to that of the applicants, the accommodation that the Agency determines to be appropriate will necessarily cover a broad spectrum of allergic reactions, from the less severe to the life-threatening ones.

[85] Dr. Huyer submits that nuts should not be served or sold in any aircraft on which she is travelling. Ms. Nugent submits that to travel safely, Melanie requires Air Canada to make a general announcement requesting that all passengers on board the aircraft refrain from eating peanuts or snacks that contain peanuts. Although one of Dr. Sussman's recommendations is to not serve nuts, he acknowledges that an allergen-free environment is impossible. Moreover, a ban may serve to provide passengers with allergies to nuts with a false sense of security as it would be impossible to guarantee that other passengers would not bring nuts, or products which contain nuts on board the aircraft. In their daily life, persons with allergies must deal with the risk of exposure to allergens and take measures to mitigate allergic reactions, as demonstrated by Ms. Nugent. She explains that not everyone starts their day as the Nugents do - sending Melanie to school with a peanut-free lunch, ensuring that Melanie is carrying an Epi-pen on her person in addition to the one kept at her school, ensuring that there are wet wipes in her Epi-pen bag, providing hand sanitizer and reminding her to not put her hands in her mouth or near her eyes.

[86] While the Agency recognizes that persons who have allergies, whether these be at the severe end of the spectrum or at the less severe end of the spectrum, must take measures in their daily lives to mitigate the risks of accidental exposure to allergens, the Agency also recognizes that travelling by air poses challenges in this regard. While a person on the ground can usually take steps to avoid exposure to an allergen, a person travelling by air is more captive to their environment such that the risk of exposure is elevated.

[87] In the case of more severe allergies, including those that are life threatening, persons who experience an allergic reaction on board an aircraft will not have the same level of opportunity to seek the required medical attention that a person who is on the ground would. The evidence also shows that while any food can cause an allergic reaction, peanuts and tree nuts are among those that cause the vast majority of food-induced allergic reactions, including near-fatal and fatal reactions. Accordingly, the Agency is of the opinion that persons whose allergy to peanuts or nuts results in a disability for the purposes of Part V of the CTA require accommodation to travel by air.

[88] In light of the above and based on the evidence, the Agency finds that the service needed to mitigate the risk of exposure to peanut or nut allergens - that is, the appropriate accommodation - is to separate persons who are allergic to peanuts or nuts from other passengers who may be eating peanuts or nuts or products that contain them. More specifically, the Agency finds that the appropriate accommodation is an exclusion or buffer zone where passengers within that zone will be advised that they can only eat foods that are peanut-free or nut-free and that they will only be offered peanut-free or nut-free foods as part of Air Canada's onboard snack or meal service. Such a buffer zone, in addition to the aircraft air filtration and circulation systems, would also address any risk of allergic reactions due to inhalational exposure.

[89] The Agency finds that when advance notice is provided, the appropriate accommodation for passengers with disabilities due to their allergy to peanuts or nuts is to be seated in a buffer zone. However, the Agency recognizes that, for operational reasons, it may not always be possible to provide a buffer zone when a passenger has not provided advance notice. For example, the carrier may need to reassess the seating plan for the flight and may need to arrange for a replacement snack within the buffer zone. Therefore, the Agency finds that when advance notice is not provided, the appropriate accommodation is for the carrier to make its best effort to provide the buffer zone and, if unable to do so, to place the passenger on the next practicable flight and provide a buffer zone at that time.

[90] The Agency notes that in the cases of Dr. Huyer and Melanie Nugent, Air Canada offered to move the passengers to a different seat, placing them at some distance from the areas where nuts were being served or sold. This action indicates that Air Canada itself recognizes separation as an appropriate measure to address the needs of persons with allergies to peanuts or nuts.

[91] Additionally, as the Agency has already determined that a buffer zone is the appropriate accommodation for persons with disabilities due to their allergy to peanuts or nuts and passengers within that zone must be notified of the allergy and asked to refrain from eating peanuts or nuts and products that contain them, the Agency finds that there is no need to make a general announcement to the entire aircraft, as recommended by Dr. Sussman.

[92] Finally, Dr. Sussman recommends that all air carrier personnel be educated and trained in the proper use of an Epi-pen. Air Canada filed an excerpt from its flight attendant manual which sets out possible reactions by people with "true food allergies" who may eat the wrong food; for some, one bite of the wrong food can lead to serious illness or even death. It is also set out that this is one of the reasons why some passengers bring their own food and beverages on board. The manual states that Air Canada cannot and does not guarantee that a particular food item is free from a particular allergen; that it was not in contact with allergenic foods or oils; and that a particular food item is not present on board. However, the manual does refer flight attendants to related material on First Aid - Anaphylactic Shock if a passenger develops an allergic reaction to a food item, although it is not clear what specific actions flight attendants might take in response to such a situation.

[93] The Agency has determined that a buffer zone provides the appropriate accommodation to persons with disabilities due to their allergy to peanuts or nuts. Such persons in their daily living also need to routinely take whatever measures they can to deal with an allergic reaction, including having Epi-pen(s) and/or other medications at their ready disposal. Therefore, the Agency is of the opinion that it is not necessary to require Air Canada personnel to be educated and trained in the proper use of an Epi-pen. The Agency finds that the primary responsibility for the use of medication to address allergic reactions rests with the persons with disabilities due to their allergy to peanuts or nuts.

Air Canada's response to Dr. Huyer's accommodation requests on Flight No. AC848 on April 1, 2006 between Toronto and London

[94] As set out in the Facts and Submission section, once onboard the aircraft, Dr. Huyer informed carrier personnel of her allergy to nuts and requested that the carrier refrain from serving them. Air Canada made the decision to serve nuts and gave Dr. Huyer the choice either to remain on the flight or to deplane. Dr. Huyer hesitated in making a decision and Air Canada's Station Operation Control then decided to remove Dr. Huyer from the aircraft. Air Canada confirmed her on a flight that was departing approximately two and a half hours later. On that flight, the nuts that were supposed to be served were replaced with an alternate snack and an announcement was made to all passengers requesting that they refrain from consuming products containing nuts or peanuts.

[95] Dr. Huyer submits that it was inappropriate for Air Canada to remove her from a flight because of a "health situation" which, in her view, is easily addressed.

[96] Air Canada submits that Dr. Huyer's behaviour was unreasonable. It submits that it may be possible, in some cases, to replace certain snacks that may contain nuts, but this is at a cost and requires advance planning. Air Canada submits that on Dr. Huyer's April 1 flight, the almonds had been on board for more than an hour when Dr. Huyer informed the onboard personnel of her allergy.

[97] With respect to the later flight that Dr. Huyer travelled on, departing approximately two and a half hours after Flight No. AC848, Air Canada submits that its caterer had, by chance, other snacks that were used to replace the almond service in business class, but this was at a cost to Air Canada and a disappointment to many of its customers who happen to like the almond snack. It served packaged snacks of a lower quality. Air Canada adds that as a gesture of goodwill, an announcement was made to all passengers to request that they refrain from consuming products containing peanuts or nuts. With respect to the latter gesture, Dr. Huyer states that she appreciated this gesture and does not expect Air Canada to take any action beyond this concerning nuts brought on board by passengers.

[98] With respect to providing advance notice, Dr. Huyer submits that she is constantly told to have her nut allergy noted on her file, but that this is not always possible when booking a reservation via the Internet or through customer service. She submits that the only opportunity she has to ensure that information regarding her allergy is noted on her file is when she checks in prior to her flight. Dr. Huyer further submits that through the years, she has made numerous efforts to inform Air Canada of her health condition before flights and before the day of the flight. She explains that she has had travel agents include the information in her booking, has called Air Canada customer service to have the information entered in her file, and has called the Air Canada medical officer to ask that the information be entered in her file. Her experience is that when she speaks with the in-charge flight attendant or purser on board the aircraft, she is told they do not have any information regarding her allergy, such that she no longer makes repeated attempts to have this information placed on her file. Dr. Huyer also submits that prior to her April 1, 2006 flight, she had written a letter to Air Canada dated December 5, 2005 and that Air Canada was aware of her allergy.

[99] Dr. Huyer states that as an Aeroplan Elite member, she is among the first passengers to board the aircraft which means that apart from the information about her allergy to nuts that Air Canada should already have, the flight crew on an international flight normally has at least one hour before departure to deal with her situation. In practice, however, Dr. Huyer submits that when she boards the aircraft and informs the crew of her allergy, she is told to take her seat and wait for the purser to speak with her, which generally occurs just before the cabin doors close. Dr. Huyer argues that any responsibility for delaying flights lies with Air Canada staff and/or crew. Dr. Huyer further submits that the fact that Air Canada was able to accommodate her situation by removing all nuts on an April 6, 2006 flight on which she travelled indicates that she did not make an unreasonable request.

[100] While it is clear that Dr. Huyer has notified Air Canada in the past regarding her allergy, each reservation is placed on a new file and there is no evidence that she informed Air Canada of her allergy, in the context of her April 1 flight, in advance of the flight. Accordingly, the Agency finds that Dr. Huyer did not provide advance notification of her allergy to nuts in the context of her April 1 flight.

[101] The Agency has determined that the appropriate accommodation for persons with disabilities due to their allergy to peanuts or nuts, when advance notice is not provided, is for the carrier to make its best effort to provide a buffer zone and, if unable, to place the passenger on the next practicable flight and provide a buffer zone at that time. In the case of Dr. Huyer's April 1 flight, the Agency has determined that she did not provide advance notice. As the almonds that were part of its snack service were already on board, Air Canada decided to confirm Dr. Huyer on the next flight, departing approximately two and a half hours later, on which it replaced the nuts it had planned to serve with an alternate snack and made an announcement to all passengers requesting that they refrain from consuming products containing nuts or peanuts.

[102] The Agency finds that Dr. Huyer was provided with appropriate accommodation. Faced with no advance notice for the flight in question, which was already catered, Air Canada placed Dr. Huyer on a subsequent flight where nuts were not served or sold and where an announcement was made to request that passengers refrain from eating nuts. Therefore, the Agency finds that Dr. Huyer did not encounter an obstacle to her mobility with respect to Air Canada's response to her accommodation request on Flight No. AC848 on April 1, 2006 between Toronto and London.

Air Canada's response to Dr. Huyer's accommodation requests on Flight No. AC873 on May 20, 2006 between Frankfurt and Toronto

[103] Dr. Huyer's PNR shows that on May 9, 2006, she informed Air Canada of her allergy to nuts. Once on board, Dr. Huyer reminded carrier personnel of her allergy and requested that the carrier refrain from serving almonds to its business class passengers. Air Canada submits that due to Dr. Huyer's repeated failure to provide timely notice to the carrier with respect to her allergy prior to a given flight, it did not have an alternate snack available to serve to its business class passengers and, therefore, it could not accommodate her request to refrain from serving the almond snack. Air Canada submits that the in-charge flight attendant discussed the situation with the captain and it was agreed that they should continue to serve almonds in business class as they did not have an alternate snack available. Air Canada advised Dr. Huyer that it would not accommodate her request and gave her the choice of remaining on the aircraft or deplaning. Dr. Huyer chose to remain on the aircraft but, by order of the captain, was required to sign a waiver.

[104] Air Canada submits that following Dr. Huyer's decision to remain on the aircraft, she was offered the possibility of moving to the last row of the aircraft so she would be as far away as possible from the almonds that would be served in business class. Dr. Huyer declined the offer and spent approximately 40 minutes in the aircraft washroom while passengers were being served nuts. Dr. Huyer submits that the air circulation in the aircraft is such that moving to a different seat cannot be considered a useful preventative measure. Dr. Huyer is of the opinion that the dust from nuts can reach the back of the aircraft cabin through air circulation.

[105] Air Canada submits that Dr. Huyer's behaviour was unreasonable. It submits that it may be possible, in some cases, to replace certain snacks that may contain nuts, but there is a cost involved and this requires advance planning. Air Canada is of the opinion that Dr. Huyer chose to wait until she was boarding to disclose her allergy in a manner that would alarm the crew and disrupt her May 20 flight.

[106] Dr. Huyer submits that she was not disruptive, nor was the delay of the aircraft due to her behaviour. She explains that she informed the onboard personnel of her allergy as soon as she boarded the aircraft; however, they did not speak with her about it until 20 to 30 minutes later, after the doors to the aircraft had been closed. Dr. Huyer submits that there was a spirited discussion, on both sides, which lasted approximately 10 minutes. In her opinion, this does not constitute a disruption or delay of flight.

[107] Although Air Canada submits that Dr. Huyer waited until she was boarding to disclose her allergy, the Agency finds, based on the evidence in her PNR, that Dr. Huyer advised Air Canada of her allergy on May 9, 2006, several days in advance of her travel on May 20, 2006.

[108] Once Dr. Huyer made onboard carrier personnel aware of her allergy and requested that almonds not be served in business class, Air Canada gave Dr. Huyer the choice to remain onboard the aircraft or deplane. Following Dr. Huyer's decision to remain on board the aircraft, the captain required her to sign a waiver releasing Air Canada, the captain and the entire crew from any liability related to her medical condition, specifically her extreme allergic response to nuts and nut products. The Agency finds this requirement to be inappropriate as there was no foundation in policy to support the captain's ad hoc decision, nor did Air Canada defend it. Dr. Huyer was extremely concerned about her well-being and the requirement for her to sign a waiver would have only served to exacerbate her concerns. Moreover, by requiring her to surrender legal rights against the carrier, Air Canada placed her at a disadvantage in comparison to other passengers.

[109] Nonetheless, the Agency has found that the appropriate accommodation for persons with disabilities due to their allergy to peanuts or nuts, when advance notice is provided, is to seat them in a buffer zone. Following Dr. Huyer's decision to remain on the aircraft, Air Canada offered to move her to a seat in the last row of the aircraft to separate her from the business class where almonds would be served. Dr. Huyer declined the offer and expressed her opinion that the air circulation in the aircraft is such that moving to a different seat cannot be considered a useful preventative measure and that the dust from nuts can reach the back of the aircraft cabin through air circulation.

[110] Dr. Huyer's opinion as to the nature of air circulation in the aircraft cabin is contrary to the evidence before the Agency with respect to the manner in which air circulates in the cabin, the efficacy of the circulation system in modern generation aircraft and the effectiveness of aircraft HEPA filtration. Furthermore, the expert evidence shows that the risk of inhalational exposure due to aerosolization of an allergen, to the extent that any such risk exists, is further mitigated by providing the appropriate accommodation, i.e., a buffer zone.

[111] In the present case, Dr. Huyer declined the offer to relocate her to the last row of the aircraft away from the allergen. Consequently, the Agency finds that Dr. Huyer did not encounter an obstacle to her mobility with respect to Air Canada's response to her accommodation request on Flight No. AC873 on May 20, 2006 between Frankfurt and Toronto.

Air Canada's response to Ms. Nugent's accommodation request on Flight No. AC626 between Montréal and St. John's on May 2, 2006

[112] Ms. Nugent submits that she informed onboard personnel of Melanie's severe allergy to peanuts and requested that Air Canada make an announcement requesting that passengers refrain from eating peanuts or snacks containing peanuts. Ms. Nugent further submits that she was informed that the announcement would not be made and that carrier personnel were required to offer cashews to its passengers. The Nugents made their way to the front of the aircraft in an unsuccessful attempt to speak with the captain and Mr. Nugent loudly announced Melanie's allergy to the passengers on board the flight.

[113] Air Canada submits that Ms. Nugent requested not only an announcement, but that its passengers not be served cashews in business class. Air Canada further submits that upon entering the aircraft, Ms. Nugent told onboard personnel that "you need to make an announcement that no nuts will be served on this flight." Air Canada explains that it offered to reseat the Nugents at the rear of the aircraft where there would be 6 rows of empty seats between them and the rest of the passengers and 12 rows separating them from business class where cashews were being served, but the offer to be reseated was refused. Air Canada submits that its onboard personnel indicated that they would not advertise the cashews for sale as part of its "buy on board" service but, if a passenger requested them, they could not refuse to serve them to the passengers. Air Canada indicates that on this particular flight, no one purchased cashews, however, the business class passengers did eat cashews.

[114] Air Canada explains that the communications system on its aircraft is to be used for safety announcements that are necessary to the operation of the aircraft and safety of all passengers. Air Canada submits that it is not to be used for an announcement of "all the intolerances and allergies of every individual passenger that walks in and makes a request". Air Canada submits that as the element to which Melanie Nugent was allergic, i.e., peanuts, was not going to be served, its personnel was justified in refusing to make a public announcement.

[115] With respect to the communications system being used for the safety of all passengers, Ms. Nugent argues that as passengers on the aircraft, her family should be considered part of the "all".

[116] The Agency has determined that the appropriate accommodation for persons with disabilities due to their allergy to peanuts or nuts, when advance notice is provided, is to be seated in a buffer zone, including an announcement to the other passengers within that zone. In cases where advance notice is not provided, the carrier must make its best effort to provide the buffer zone and, if unable to do so, to place the passenger on the next practicable flight where it can provide a buffer zone, including an announcement within that zone. In the present case, Air Canada offered to reseat the Nugents at the rear of the aircraft where they would have been separated from all passengers by 6 rows and separated from the business class cabin, where cashews were being served, by 12 rows. Therefore, although the Nugents declined Air Canada's offer, the Agency finds that the Nugents were offered appropriate accommodation. Consequently, the Agency finds that Melanie Nugent did not encounter an obstacle to her mobility with respect to Air Canada's response to her accommodation request on Flight No. AC626 between Montréal and St. John's.

Whether the lack of a formal accommodation policy regarding peanuts or nuts constitutes an obstacle to the mobility of Dr. Huyer and Melanie Nugent and to persons whose allergy to peanuts or nuts results in a disability for the purposes of Part V of the CTA

[117] While the applicants are concerned that serving nuts within the aircraft cabin increases the risk of experiencing an allergic reaction, the evidence leads to the conclusion that an exclusion or buffer zone, where passengers within that zone will be advised that they can only eat foods that are peanut-free or nut-free and that they will only be offered peanut-free or nut-free foods as part of Air Canada's onboard snack or meal service, is the appropriate accommodation for persons with disabilities due to their allergy to peanuts or nuts. Therefore, there is no need for Air Canada to change its policy or practice of serving/selling nuts as long as Air Canada provides this appropriate accommodation.

[118] While the Agency determined that appropriate accommodation was provided or offered in the particular cases of Dr. Huyer and Melanie Nugent, the accommodation was provided on an ad-hoc basis and was not the result of a clear policy to accommodate persons with disabilities due to their allergy to peanuts or nuts.

[119] The Agency is concerned by the lack of a formal policy to accommodate the needs of persons with disabilities due to their allergy to peanuts or nuts. The Agency is of the opinion that in making their travel plans, persons with disabilities are entitled to the same certainty that other people enjoy of being able to travel as scheduled. For most people, this certainty is provided through their reservation. Persons with disabilities must also be assured that their disability-related travel needs will be accommodated by the carrier. The experiences of Dr. Huyer and Melanie Nugent highlight the fact that Air Canada's lack of a formal policy to provide accommodation to persons with disabilities due to their allergy to peanuts or nuts does not provide that assurance or certainty, resulting in situations where individuals with disabilities due to their allergy to peanuts or nuts must either travel despite significant apprehension about their health and well-being or change their travel plans.

[120] Dr. Huyer submits that Air Canada has no clear policy or strategy to deal with the needs of persons with allergies to nuts and she explains that there is approximately a 50-percent chance that she will encounter carrier personnel who will accommodate her "situation". Dr. Huyer submits that many times carrier personnel have been very good, both in understanding the seriousness of the situation, and in providing accommodation. However, she submits that there is also a 50-percent chance that carrier personnel will not accommodate her situation. Dr. Huyer points out that, based on her experience, it appears to be entirely up to the flight crew to choose whether to refrain from serving nut snacks in response to the request of a person with a severe allergy to nuts.

[121] In a letter to Air Canada, Dr. Huyer requested some sort of reassurance that Air Canada was dealing with the situation in a proactive manner and she would also like to be confident that, on her next trip, her situation would be dealt with professionally.

[122] Dr. Huyer submits that having an increasingly common life-threatening allergy to one particular snack food should not restrict anyone from travelling in an aircraft, nor should she have to leave or drastically restrict her career, for which travel is an important component, because of her health condition that is easily accommodated.

[123] Ms. Nugent also addresses the lack of certainty that results from the lack of a policy. She notes that on three of the four flights that were part of the Nugents' trip to Florida, carrier personnel provided them with "as safe a trip as they could have expected" and had no reservations about making an announcement to the entire aircraft regarding Melanie's allergy. However, the Nugents were met with a different response from carrier personnel on their fourth flight.

[124] While both experts agree that an allergen-free environment would be impossible to create, they discussed the risks of accidental exposure to an allergen. Dr. Sussman explained that individuals with serious food allergies are afraid of accidental exposure by necessity and that currently avoidance is the only available preventative treatment. Both experts also advocate the benefits of a buffer zone.

[125] It is clear from the evidence that there is a need for a formal policy to accommodate persons with disabilities due to their allergy to peanuts or nuts. Such a policy would remove the uncertainty that an individual experiences each and every time they travel, mitigating the risk that they will be exposed to an allergen with the possibility of experiencing serious consequences as a result. An exclusion or buffer zone where passengers within that zone will be advised that they can only eat foods that are peanut-free or nut-free and that they will only be offered peanut-free or nut-free foods as part of Air Canada's onboard snack or meal will also address the risk of other passengers eating peanuts or nuts.

[126] Therefore, the Agency finds that Air Canada's lack of a formal policy to provide accommodation to persons with disabilities due to their allergy to peanuts or nuts, and the lack of certainty this creates, is an obstacle to the mobility of Dr. Huyer and Melanie Nugent and to persons whose allergy to peanuts or nuts results in a disability for the purposes of Part V of the CTA.

Conclusion

[127] With respect to the specific incidents that resulted in the applications filed by Rhonda Nugent, on behalf of her daughter Melanie, and by Dr. Huyer, the Agency has determined that Melanie Nugent and Dr. Huyer did not encounter obstacles to their mobility as Air Canada accommodated their needs, albeit in an ad-hoc manner.

[128] However, the Agency has found that the lack of a formal policy to accommodate the needs of persons with allergies to peanuts or nuts, and the uncertainty this creates, constitutes an obstacle to the mobility of Dr. Huyer and Melanie Nugent and to persons whose allergy to peanuts or nuts results in a disability for the purposes of Part V of the CTA.

[129] The Agency has determined that a buffer zone, including an announcement within that zone, is the appropriate accommodation for persons with disabilities due to their allergy to peanuts or nuts. With respect to the buffer zone, Air Canada is directed to provide a submission, including supporting rationale, within 30 days from the date of this Decision, on:

• what constitutes adequate advance notification of a person's need for accommodation in the form of a buffer zone as a result of their peanut or nut allergies; and,
• the recommended size of buffer zone for each of its aircraft types.

[130] Following Air Canada's submission, Dr. Huyer and Ms. Nugent will have 10 days to file their comments on the submission, following which, the Agency will finalize its determination with respect to the appropriate accommodation. If Air Canada accepts to implement the appropriate accommodation as so determined, it will be required to submit a formal policy for review and approval by the Agency. This shall include a clear description of the process Air Canada would implement to ensure that the appropriate accommodation will be provided to persons with disabilities due to their allergy to peanuts or nuts. In the event that Air Canada does not accept to implement the appropriate accommodation, it will be provided with an opportunity to file its arguments on undueness. The timing for these submissions will be established by the Agency upon its final determination of appropriate accommodation.