Decision No. 40-AT-A-2019

July 11, 2019

APPLICATION by Pierre Bergeron (applicant) against WestJet pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) regarding his disability‑related needs.

Case number: 
18-00496

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against WestJet regarding the accommodation measures provided in relation to his allergy to dogs.

[2] The applicant requests a refund of $1,060 for expenses incurred with regard to his application and time spent on it, $4,800 in punitive and exemplary damages and an obligation for WestJet to create regulations/policies aimed at clearly informing all passengers that there will be animals on board.

[3] For the reasons set out below, the Agency finds that, as WestJet acknowledges that it did not try to relocate the applicant to another seat on board the aircraft and as it did not demonstrate that to do so would result in undue hardship, the applicant encountered an undue obstacle to his mobility within the meaning of subsection 172(1) of the CTA.

[4] The Agency also finds that the measure proposed by WestJet eliminates the undue obstacle to the applicant’s mobility. Therefore, the Agency orders WestJet to send an internal communication to all in‑flight personnel on the importance of making a reasonable effort to provide another seat away from the allergen source to persons who identify themselves as having severe allergies to animals with less than 48 hours’ advance notice, no later than August 8, 2019. The Agency finds that no compensation is owed to the applicant.

BACKGROUND

[5] On December 24, 2017, the applicant travelled from Edmonton, Alberta, to Toronto, Ontario. When he was getting ready to board the aircraft, he noticed that a passenger was about to board the aircraft with a German shepherd-type dog. The applicant states that he immediately informed the WestJet flight attendant of his allergy. The applicant still found himself seated in the same row as the dog, separated only by the aisle.

[6] On December 11, 2018, the Agency issued Decision No. LET-AT-A-91-2018 (Decision), in which it found that the applicant is a person with a disability and that he encountered an obstacle to his mobility because he was seated near a dog during his flight, which caused him difficulties breathing, itchy eyes and severe symptoms for two days. In the Decision, the Agency also provided WestJet with an opportunity to either:

  • explain how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or
  • demonstrate that it cannot remove the obstacle without experiencing undue hardship.

[7] WestJet had until December 27, 2018, to file an answer to the Decision, after which the applicant had three business days to file his reply to the Decision.

[8] Following a request for an extension of time, WestJet filed its answer on January 9, 2019, and the applicant filed his reply on January 18, 2019.

[9] On January 28, 2019, after the close of pleadings, WestJet filed an additional answer to the Decision and proposed a measure to eliminate the obstacle to the applicant’s mobility.

PRELIMINARY MATTERS

WestJet’s additional answer

[10] WestJet’s answer dated January 28, 2019, was filed after the close of pleadings and did not include a request to file a document whose filing is not otherwise provided for in the Rules, pursuant to subsection 34(1) of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules).

[11] Despite this, the answer filed by WestJet is relevant to this proceeding, and the applicant did not object to the filing of the answer. The Agency therefore accepts WestJet’s additional answer and will place it on the public record, in accordance with section 6 and subsection 5(2) of the Dispute Adjudication Rules.

The Agency’s jurisdiction with respect to the compensation claimed

[12] The applicant claims $4,800 in [translation] “punitive and exemplary damages for the two consecutive days with severe symptoms” following his flight from Edmonton to Toronto on December 24, 2017, during which he states to have experienced symptoms related to his allergy.

[13] The Agency does not have the jurisdiction to order compensation for pain and suffering or loss of enjoyment, as stated in previous decisions, such as Decision No. 30-AT-C-A-2018 (Saghbini v. Air Canada), Decision No. 18‑C‑A‑2015 (Enisz v. Air Canada) and Decision No. 55‑C‑A‑2014 (Brine et al. v. Air Canada).

[14] However, the Agency notes that WestJet has offered compensation in the amount of 500 WestJet dollars as a goodwill gesture for the difficulties encountered by the applicant. The Agency encourages WestJet to maintain that offer to the applicant.

THE LAW AND RELEVANT TARIFF PROVISIONS

[15] The application was filed pursuant to subsection 172(1) of the CTA, which reads as follows:

The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

[16] The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a three-part approach:

Part 1: The Agency considers whether the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA.

Part 2: If it is determined that the applicant, or the person on whose behalf the application is being filed, is a person with a disability for the purposes of Part V of the CTA, the Agency determines whether they encountered an obstacle. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.

Part 3: If it is determined that the applicant is a person with a disability and that they encountered an obstacle, the Agency provides the respondent with an opportunity to either:

- explain how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an accommodation measure; or

- demonstrate that it cannot remove the obstacle without experiencing undue hardship.

[17] In this Decision, the Agency will address the third part identified above.

[18] Rules 71(D) and 71(E) of WestJet’s local domestic tariff, CTA(A) No.1 (Tariff) provide as follows:

(D) Advance Notice

Where a Guest requests a service set out in this rule at least 48 hours prior to departure, the Carrier will provide the service. Such requests should be made by the Guest at the time of Reservation, and as far in advance of travel as possible. The Carrier will make a reasonable effort to accommodate persons with a disability who fail to make Reservations 48 hours in advance.

The Guest shall advise the Carrier of the nature of his/her disability and the nature of the assistance required. Guests requesting travel under the Carrier’s One Person One Fare program or Medical Seating Program must submit their application according to the timeline outlined on the Carrier’s website.

(E) Seating Restrictions and Assignments

When a person identifies the nature of his or her disability, the Carrier will provide the Guest an appropriate seat assignment.

[…]

POSITIONS OF THE PARTIES

The applicant

[19] The applicant states that WestJet decided, at the last minute, to accommodate a passenger travelling with an emotional support dog. The applicant indicates that he disagrees with the fact that, although he had booked that flight and had informed the flight attendant of his allergy at the time of boarding, priority was given to the last‑minute passenger who was travelling with a dog. The applicant states that he does not believe that he should have been the passenger to whom WestJet offered to take a different flight.

[20] The applicant indicates that he is of the opinion that finding him another seat and giving him access to his medication, even at the last minute, does not constitute undue hardship.

[21] The applicant refers to Decision No. 227-AT-A-2012 (Covell and Daviau v. Air Canada and Spence v. Air Canada, Air Canada Jazz and WestJet). He states that this Decision provides that a carrier is [translation] “required to provide a seating separation in situations where no notice is given by a passenger with a disability as a result of an allergy to cats”, and that this should also apply to dogs.

WestJet

[22] WestJet submits that the information on its website regarding the transportation of animals in the cabin and the importance for passengers to keep their medication in their carry-on bag is clear. WestJet is of the opinion that the carrier and the passengers have a shared responsibility, that passengers must manage their own mitigation measures and that this responsibility cannot solely be assumed by the carrier.

[23] WestJet submits that it cannot eliminate all sources of allergens, including animal allergens, given that it accepts the pets and service dogs on aircraft, but argues that it has mitigation measures, policies and procedures in place to accommodate a passenger with an allergy at the last minute.

[24] WestJet states that the passenger travelling with an emotional support dog had booked his seat in advance, and was not a last-minute passenger as the applicant asserts. WestJet states that the applicant asked the flight attendant for the dog to be removed from the aircraft. WestJet explains that this is not its policy under these circumstances and that as the flight was full, the applicant was offered the option to take another flight.

[25] WestJet admits that the applicant informed it of his allergy on December 24, 2017, at the time of boarding his flight, and not ten days after his flight as it previously stated. According to WestJet, the “Federally Approved Flight Attendant Manual” states that when a passenger self‑identifies as having a severe allergy, the flight attendant must relocate the passenger with a severe allergy to another seat on board the aircraft, away from the trigger source, if possible, and if this is not possible, offer alternate travel arrangements. WestJet admits that there is no information that shows that the applicant was offered to move to another seat on board the aircraft and that the flight attendant may not have to properly apply the policy. WestJet states that this is likely due to the fact that the flight was full and that the time before take-off was limited. WestJet adds that the fact that the applicant did not notify it of his allergy 48 hours prior to travel also limited its ability to find a timely, suitable solution or to adequately deal with the seating issue in advance.

[26] WestJet states that it commits to send an internal communication to all in‑flight personnel on the importance to provide another seat away from the allergen source to persons who identify themselves as having severe allergies to animals with less than 48 hours’ advance notice.

ANALYSIS AND DETERMINATIONS

[27] The Agency notes that WestJet has confirmed that the passenger travelling with a dog was not a last-minute passenger and that his seat as well as that of his dog had been booked in advance. The fact that the applicant booked his seat before or after the passenger travelling with a dog is not important in this case because both passengers were entitled to travel and to be provided with accommodation measures to accommodate their disability‑related needs.

[28] Although the applicant said that he was surprised that a dog was permitted to travel on board the aircraft, persons with disabilities who require a service animal have had the right to travel with their animal on board an aircraft for many years. In addition, several carriers, including WestJet, allow pets to travel on board aircraft. Although the applicant requests that WestJet create [translation] “regulations/policies aimed at clearly informing all passengers that there will be animals on board”, the Agency notes that WestJet’s policies concerning service animals and pets are clear and easily accessible on its website.

[29] The applicant indicates that Decision No. 227-AT-A-2012 provides that a carrier is [translation] “required to provide a seating separation in situations where no notice is given by a passenger with a disability as a result of an allergy to cats”, and that this should also apply to dogs. The Agency notes that this Decision rather indicates, in paragraphs 34 and 38, the following:

WestJet’s proposed policy and procedures, as they relate to the advance notification required to provide the seating separation, are consistent with the following provisions contained in Part VII of the Air Transportation Regulations, SOR/88-58, as amended (ATR), which apply to domestic air services:

    • 151(2) Where, at least 48 hours before the scheduled time of departure of a person’s flight, the person requests an additional service that is set out in an air carrier’s tariff, the air carrier shall provide the person with the service, in accordance with any conditions in respect of the service that are set out in the tariff.
    • 151(3) Where a request for a service referred to in subsection [(1) or] (2) is not made within the time limit provided thereunder, the air carrier shall make a reasonable effort to provide the service.

[…]

The Agency is satisfied that the 48-hour advance notification proposed by WestJet is necessary and the proposed measures to address situations when less than 48 hours notification is provided are acceptable.

[30] The applicant did not give WestJet 48 hours’ advance notice regarding his allergy to dogs.

[31] In accordance with Part VII of the ATR on terms and conditions of carriage of persons and Rule 71(D) of WestJet’s Tariff which provides that the carrier will make a reasonable effort to accommodate persons with a disability who fail to make reservations 48 hours in advance, WestJet was required to make a reasonable effort to accommodate the applicant.

[32] WestJet indicates that, based on its policies, when a passenger self‑identifies as having a severe allergy, the flight attendant must relocate the passenger with a severe allergy to another seat on board the aircraft, away from the allergen source, if possible, and if it is not possible, offer the passenger alternative travel arrangements. Although WestJet offered the applicant to take a different flight, it did not first try to relocate him to another seat to ensure that he was seated some distance away from the dog. WestJet admitted that this is a breach of its policies.

[33] Notwithstanding that the flight was full, the Agency expects WestJet’s personnel to make a reasonable effort to accommodate persons with disabilities, even when accommodation requests are made at the last minute. For example, in the applicant’s situation, WestJet’s personnel could have tried to relocate the applicant to another seat to ensure that he was seated some distance away from the dog, for instance, by making an announcement to all passengers to see whether someone would volunteer to switch seats with him.

[34] The Agency agrees that the parties have a shared responsibility regarding the events that took place on December 24, 2017. The applicant had the responsibility, as a passenger, to inform WestJet of his allergy to dogs, preferably at least 48 hours before his flight departure, and to ensure that he had his allergy medication in his carry-on bag. WestJet, for its part, had the responsibility to make a reasonable effort to accommodate the applicant, even though he did not give 48 hours’ advance notice.

[35] The Agency finds that, as WestJet acknowledges that it did not try to relocate the applicant to another seat on board the aircraft and as it did not demonstrate that to do so would result in undue hardship, the applicant has encountered an undue obstacle to his mobility within the meaning of subsection 172(1) of the CTA.

LEGAL FEES

[36] The applicant requests a refund of $1,060 for expenses incurred with regard to his application and time spent on it. Specifically, he requests compensation for the time spent filling out forms required by the Agency in order to complete his application, as well as compensation for lost time at work in order to attend medical appointments. The applicant also requests a refund of medical exam fees and fees paid to the doctor to fill out the form requested by the Agency.

[37] In accordance with subsection 25.1(1) of the CTA, the Agency has all the powers that the Federal Court has to award costs in any proceeding before it. The Agency has broad discretion regarding the awarding or denial of costs, and decides each application on a case-by-case basis. Given the fact that the applicant had partial responsibility for the events that happened, namely, he did not inform WestJet of his allergy to dogs 48 hours before his flight departure; he did not bring his allergy medication with him in his carry-on bag; and he made an unreasonable request to have the passenger travelling with a dog removed from the aircraft, in addition to the fact that it was Christmas Eve and the flight was full, the Agency finds that no costs should be awarded in this matter.

ORDER

[38] The Agency orders WestJet to send an internal communication to all in‑flight personnel on the importance of making a reasonable effort to provide another seat away from the allergen source to persons who identify themselves as having severe allergies to animals with less than 48 hours’ advance notice, no later than August 8, 2019. In addition, WestJet must confirm to the Chief Compliance Officer that it sent the internal communication to its personnel no later than August 8, 2019.

Member(s)

Elizabeth C. Barker
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