Decision No. 411-AT-A-2009

September 30, 2009

File No. U3570/13

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BACKGROUND

[1] In Decision No. 336-AT-A-2008 dated June 26, 2008, as varied (Decision), the Canadian Transportation Agency (Agency) made its final findings in applications against Air Canada and WestJet concerning issues raised by persons who require that medical oxygen be available to them when travelling by air. In the Decision, the Agency found that the most appropriate accommodation for domestic travel is passenger-supplied oxygen, in whatever form is permitted. In Canada, the regulatory regime permits passenger-supplied gaseous oxygen and portable oxygen concentrators (POCs). With respect to the former, the Agency found that, insofar as Air Canada eliminates the undue obstacles related to the carrier's Medipak oxygen service, Air Canada's provision of an oxygen service would constitute a reasonable alternative to the most appropriate accommodation as it relates to passenger-supplied gaseous oxygen on domestic flights.

[2] Specifically, the Agency found that where Air Canada does not provide the most appropriate accommodation by permitting passenger-supplied gaseous oxygen on domestic flights, Air Canada is required to continue to provide a gaseous oxygen service and, insofar as it chooses to do so through its Medipak service or alternatively through a third-party supplier, it is required to implement specific corrective measures to address a number of undue obstacles.

[3] Air Canada proceeded to implement the corrective measures with respect to its Medipak service and has completed this with the exception of the measure to provide a continuous service, i.e., the provision of oxygen prior to boarding (check-in), during connections and until arrival in the general public area at the final destination, whether it be done through the use of Medipaks or other means. In this regard, Air Canada was required to file with the Agency, within ninety (90) days from the date of the Decision, its detailed proposal for the implementation, within one (1) year from the date of the Decision, of a continuous domestic oxygen service. The proposal was to include details on how persons with disabilities will receive the oxygen service at airports and what measures will be put in place to address flight irregularities that might impact on a person's oxygen supply, such as delays and flight diversions.

[4] Air Canada initially advised that it would use a third-party supplier to provide the continuous oxygen service and provided preliminary details. Subsequently, in a June 1, 2009 submission, Air Canada indicates that, following numerous conversations with the main oxygen service suppliers in Canada, it has come to the conclusion that there is no capacity or expressed interest by third parties to provide oxygen ground service on "commercially reasonable terms". Air Canada explains that, in applying a "five-point risk analysis matrix" recently issued by the International Civil Aviation Organization, Air Canada has determined that, under certain conditions and restrictions and with the application of certain security measures, the acceptance of passenger-supplied gaseous oxygen on domestic flights could be an acceptable risk to Air Canada such that it no longer intends to provide an oxygen service.

ISSUE

[5] The Agency has reviewed and considered Air Canada's submission and has found, pursuant to section 32 of the Canada Transportation Act, that there has been a change in the facts or circumstances pertaining to the Decision since it was issued. Given that Air Canada's proposal with respect to its domestic services is now to provide what was determined by the Agency in the Decision to be the most appropriate accommodation for persons who require oxygen when travelling by air, the Agency finds it appropriate to vary the Decision. The issue to be considered by the Agency is the nature of the variance to be made to the Decision as a result of the new facts and, in particular, whether Air Canada's policies and procedures to be employed for the acceptance of passenger-supplied gaseous oxygen on domestic flights will provide a reasonable level of accommodation.

ANALYSIS AND FINDINGS

Air Canada's policies and procedures

[6] What follows is the Agency's consideration of the various elements of Air Canada's proposed policy and procedures for the acceptance of passenger-supplied gaseous oxygen on domestic flights and the Agency's findings with respect to the reasonableness of the level of accommodation that would be provided to persons with disabilities pursuant to such a policy and procedures.

1. Advance notice

[7] The proposed policy requires passengers wishing to bring their own gaseous oxygen supply to advise Air Canada in advance, at least 48 hours prior to departure. Air Canada will make every reasonable effort to accommodate requests made less than 48 hours in advance.

[8] As set out in the Decision, the Agency's requirements regarding reasonable advance notice for disability-related services on domestic flights are contained in the following provisions in Part VII of the Air Transportation Regulations, SOR/88-58, as amended (ATR):

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 ... (2) is not made within the time limit provided thereunder, the air carrier shall make a reasonable effort to provide the service.

[9] Air Canada's proposed requirement of 48 hours' advance notice to accept the use of passenger-supplied gaseous oxygen, with reasonable efforts being made to accommodate requests made less than 48 hours in advance, reflects subsections 151(2) and 151(3) of the ATR and is in compliance with the regulatory requirements. As such, the Agency finds that Air Canada's requirement to be advised 48 hours prior to departure when passengers wish to bring their own gaseous oxygen supply is reasonable.

2. Fitness for Air Travel Form

[10] Air Canada's proposed policy requires passengers wishing to use their own gaseous oxygen supply to complete Air Canada's Fitness for Air Travel Form (FFT form) at least 48 hours prior to departure.

[11] As set out in the Decision, air carriers are responsible for the safety of their passengers and crew in flight. Persons with disabilities who require oxygen to travel by air require accommodation from carriers, whether it be to obtain approval to travel with their own oxygen or to obtain an oxygen service from the carrier. In providing this accommodation, carriers require information from the person to understand the person's disability-related needs and how best to meet them. The Agency has long recognized that, insofar as carriers must provide additional services to meet the needs of persons with disabilities, they are entitled to this information.

[12] In the Decision, the Agency found that Air Canada's requirement that FFT forms be completed by the physicians of persons who use oxygen, despite the related costs and inconvenience, does not constitute an undue obstacle to the mobility of persons with disabilities who require that oxygen be available when travelling by air. The fact that an individual would now be using their own oxygen cylinders does not eliminate the need for Air Canada to have information about what the person is bringing on board its aircraft and what that individual may need in terms of assistance from its personnel, particularly in case of emergency.

[13] As such, the Agency finds that Air Canada's requirement to have the FFT form completed by persons with disabilities who will be using their own gaseous oxygen is reasonable.

3. Advance check-in

[14] Air Canada's proposed policy requires passengers to check in two hours prior to flight departure to allow for the inspection of their oxygen cylinders.

[15] The Agency notes that the recommended general check-in time posted on Air Canada's Web site for travel within Canada is one hour prior to departure. Air Canada notes that this allows sufficient time to check in, drop off checked baggage and pass through security. The Agency accepts that transportation service providers must consider their operational requirements while ensuring the delivery of an efficient service to all passengers. The Agency has also long recognized that in carrying out their responsibilities in terms of providing accommodation services, carriers may require persons with disabilities to arrive at the terminal earlier than the general public. In this case, the Agency recognizes Air Canada's need for an adequate period of time to inspect persons' oxygen cylinders, the additional time required to pass through security, and the need for pre-boarding to place and secure the oxygen cylinder. The Agency finds that Air Canada's requirement for advance check-in is reasonable.

4. Limit on number of passengers using oxygen per flight

[16] Air Canada's proposed policy limits the number of passengers who may use gaseous oxygen on each flight.

[17] There is no regulatory requirement with respect to the number of cylinders permitted on board aircraft. Furthermore, Transport Canada's Commercial and Business Aviation Advisory Circular (CBAAC) leaves it up to air carriers to establish their own policies and procedures with respect to the carriage and use of medical oxygen on board their aircraft. Evidence on the Agency's record in this proceeding is that it is common industry practice for air carriers to limit the number of passengers using oxygen on flights. For example, WestJet will only permit a maximum of two passengers requiring oxygen per flight and each of those passengers may only bring a maximum of two cylinders.

[18] Above and beyond oxygen, limits on the numbers of persons with disabilities on a given flight is a common industry practice. The Agency recognizes the potential time required of carrier personnel to meet the needs of persons with disabilities before, during and upon arrival of a flight, e.g. the provision of pre-boarding assistance or switching over to the onboard emergency oxygen cylinder to use the washroom. In light of the above, the Agency finds that Air Canada's proposal to limit the number of passengers who use gaseous oxygen on each flight is reasonable.

5. Limit on types of passenger-supplied oxygen cylinders, approved suppliers and the vetting process for suppliers not yet approved

[19] At the outset, Air Canada's proposed policy limits the approved oxygen suppliers to Praxair and VitalAire. It also proposes to only accept the Praxair "Grab ‘n Go" and the VitalAire "Easy Ox" D-size cylinders from these suppliers. Air Canada explains that it has been looking into potential oxygen service suppliers for a few years and it understands that, together, Praxair and VitalAire represent over 80 percent of the Canadian market. However, Air Canada will vet other oxygen suppliers that are requested by passengers when sufficient advance notice is provided. Following the vetting process, if approved, these other suppliers will be added to the list of approved suppliers.

[20] Air Canada intends to design and/or obtain restraining devices to secure the oxygen cylinders onboard aircraft. In order to ensure the safe and secure carriage of passenger-supplied gaseous oxygen, as well as receive Transport Canada certification on the restraining device, which would be certified for a specific size and weight, Air Canada states that it must ensure that the cylinders meet the standards identified in the CBAAC and that they will safely fit in the restraining devices that will be developed. Should Air Canada decide to use a padded sleeve that is anchored underneath the seat, it would be necessary to ensure that the sleeve will protect the cylinder from damage.

[21] In making its determination to approve the two types of cylinders noted above, Air Canada states that it has assessed them based on the following factors:

• the regulator and cylinder are fixed units, mitigating the risk of a regulator being knocked off inadvertently; it also makes it impossible for a passenger to change the regulator on board which is prohibited as per the CBAAC;
• both cylinders are similar in size and weight so that Air Canada's engineers would know what dimensions need to be taken into account for Transport Canada certification for the restraining device;
• in-flight training for both models can be conducted via a bulletin as they are quite simple to operate;
• the durations calculated by flow rate are similar in both models; a master chart can therefore be utilized to determine the number of cylinders required per itinerary.

[22] Air Canada states that if another cylinder is approved following the vetting process, it would have to amend the flight attendant training. In addition, if the size and weight is different, Air Canada would have to obtain Transport Canada certification for the restraining device.

[23] With respect to the consideration of other oxygen service suppliers, Air Canada submits that if a passenger is using another oxygen supplier, and sufficient advance notice is provided to allow it to vet the supplier, it will be added to the approved list. In order to approve another supplier, in addition to the factors set out above, an Air Canada engineer or dangerous goods specialist will contact the supplier to verify the following:

• the physician verification process that each oxygen supplier conducts to ensure that the prescribing physician is valid from a corporate security point of view;
• the supply of oxygen to the oxygen supplier's facilities, as well as the delivery system from the oxygen supplier's facilities to the customer's home; and,
• that the suppliers meet safety and quality standards, which Air Canada is obligated to meet pursuant to the International Air Transport Association's Operational Safety Audit and Transport Canada's Safety Management System, and also to comply with the CBAAC.

[24] Air Canada points out that the verification may entail one or more site visits.

[25] The Agency accepts Air Canada's right to implement a vetting process to address safety and operational concerns related to the transportation of gaseous oxygen cylinders, including the acceptance of particular cylinder types. However, the Agency has concerns regarding the following implications for persons with disabilities resulting from the limit on approved suppliers and the vetting process for suppliers not yet approved.

[26] The time needed for the vetting process, which might include additional time to modify Air Canada's personnel training program and seek Transport Canada certification, may negatively impact on persons' abilities to travel as planned with their own gaseous oxygen supply. Additionally, to avoid delays in travel, persons with disabilities might be required to incur additional expenses relating to the rental or purchase of equipment already approved by Air Canada, such as the Praxair or VitalAire equipment.

[27] The Agency is concerned that, according to Air Canada's own submission, approximately 20 percent of the population of persons who use medical oxygen do not use Praxair or VitalAire as their oxygen supplier. As such, there may be situations where a person with a disability is travelling to/from a community that is not served by these suppliers. The rental or purchase of the approved equipment could involve additional costs for the transportation of the cylinders to the area not served by the suppliers, including possible transfer costs to and from terminals. Furthermore, these added costs to persons with disabilities who require medical oxygen to travel by air may be recurring expenses if Air Canada does not approve additional oxygen suppliers. Finally, there may be circumstances where a person with a disability may incur additional expenses due to the restrictions with respect to the type of cylinders that are approved.

[28] There is no regulatory requirement with respect to limitations on the size of oxygen cylinders that are permitted on board aircraft. Furthermore, Transport Canada's CBAAC leaves it up to air carriers to establish their own policies and procedures with respect to the carriage and use of medical oxygen on board their aircraft. However, the CBAAC indicates that medical oxygen generally comes in two sizes, "D" and "E"; "E" being the larger of the two. The CBAAC also indicates that air operators utilizing aircraft with 20 or more passenger seats, have stated that "D" size cylinders will be the maximum size of oxygen cylinder permitted on board. Given the information set out in the CBAAC with respect to industry practice regarding accepted cylinder types and, given the large size of the "E" type cylinder, the Agency accepts Air Canada's decision to not accept "E" type cylinders as being reasonable. However, there is information on the Agency's record regarding the acceptance of smaller cylinder types by other carriers, such as the "M-6" cylinder accepted by WestJet. Upon request, other cylinder types, such as the "M-6", should be considered for acceptance.

[29] The Agency also finds that Air Canada's requirement that regulators be fixed is reasonable, given the concerns related to the removal of regulators set out in the CBAAC.

[30] Air Canada has chosen to pre-approve only two oxygen suppliers, leaving approximately 20 percent of medical oxygen users dependent on its vetting process. While the Agency has accepted Air Canada's right to implement a vetting process to address safety and operational concerns related to the transportation of gaseous oxygen cylinders, Air Canada has provided little detail about how long this process will take or why additional suppliers cannot be approved in advance of the new system being implemented in December 2009. The Agency is of the opinion that, having made the decision to proceed in this manner, Air Canada must accept responsibility for any negative impacts its vetting process has on persons with disabilities.

[31] In order to ensure that Air Canada's proposal provides reasonable accommodation for persons with disabilities who require medical oxygen to travel on domestic flights, Air Canada must address the concerns set out in paragraphs 26 and 27 of this Decision. Persons with disabilities who require medical oxygen to travel by air must receive the same level of accommodation set out in the Decision and must not experience any additional burden or receive a lesser service or incur any additional expense as a result of Air Canada's proposal.

[32] Accordingly, the Agency finds it appropriate to require Air Canada to ensure that persons with disabilities who require oxygen to travel on domestic flights are not prevented from travelling as planned and do not incur additional expenses related to medical oxygen, as a result of the following circumstances:

• while their oxygen supplier is being vetted;
• in situations where their regular supplier is not approved; and,
• in situations where there is no approved supplier in their area, thereby leading to shipping costs.

[33] In terms of the requirement to ensure that persons subject to the foregoing circumstances are not prevented from travelling as planned, in recognition of the need for time in order for Air Canada to make alternate arrangements for the provision of oxygen using an approved supplier and approved oxygen cylinders, this requirement applies in respect of requests by persons with disabilities that are made at least 48 hours in advance of flight departure. Regarding requests by persons with disabilities that are made with less than 48 hours advance notice, Air Canada is required to make reasonable efforts to ensure that the persons are not prevented from travelling as planned.

6. Timing

[34] Air Canada advises that its engineering department has started the process of identifying and designing the anchoring mechanisms for passenger-supplied oxygen cylinders, testing them on Air Canada's fleet, and having them approved by Transport Canada.

[35] Air Canada states that this process could not be completed by the June 26, 2009 implementation date for the corrective measure pertaining to a continuous oxygen service and requests an extension until December 26, 2009.

[36] In light of the time needed to complete the above-noted processes, the Agency accepts as reasonable an implementation date of no later than December 26, 2009 provided Air Canada has reasonable interim measures in place.

7. Interim measures

[37] To address the time period between the required implementation date of June 26, 2009 and until such time as Air Canada accepts passenger-supplied gaseous oxygen on domestic flights, Air Canada proposes to implement interim measures whereby it will refund passengers for the gaseous oxygen they use between check-in and boarding, landing and baggage delivery and during connections on wholly domestic itineraries. Air Canada submits that, while this does not equate to Air Canada providing a continuous oxygen service, it will provide a reasonable alternative.

[38] In order to obtain the refund, passengers will be required to submit to Air Canada's customer relations department their itinerary and receipts, including method of payment and a declaration that they (as opposed to an insurance carrier, employer or medical service) paid for these services. Air Canada Customer Solutions will verify that a FFT form was completed and that the oxygen was required.

[39] Air Canada's proposed interim measure provides for the reimbursement of oxygen used to the point of "...landing and baggage delivery...". However, the corrective measures set out in Decision No. 336-AT-A-2008 with respect to continuous oxygen called for the provision of oxygen prior to boarding (check-in), during connections and until arrival in the general public area at the final destination (emphasis added).

[40] To ensure that Air Canada's interim measures provide a reasonable level of accommodation for persons with disabilities who require medical oxygen on domestic flights, Air Canada must address the above-noted concern. To do so, Air Canada must ensure that the proposed refunds to be issued in the interim are provided for oxygen used between check-in and boarding, during connections, and until arrival in the general public area at the final destination in relation to domestic flights.

[41] Air Canada has advised the Agency that a team is preparing the necessary tools and communiqué with respect to the interim solution in order for its agents to provide instructions to passengers on how to make a claim for a refund and to direct them to the appropriate form on its Web site. The Agency notes that Air Canada has posted information with respect to obtaining a refund on its Web site.

Summary of findings

[42] The Agency finds that Air Canada's overall policies and procedures with respect to permitting passenger-supplied gaseous oxygen on its domestic flights are reasonable, subject to Air Canada addressing the Agency's concerns regarding:

• the limitations pertaining to approved suppliers and cylinder types and the vetting process for those not yet approved; and
• the interim measures.

[43] Air Canada must ensure that persons with disabilities who require medical oxygen to travel by air receive the same level of accommodation set out in the Decision. As such, they must not experience any additional burden or a lesser service, or incur any additional expense as a result of Air Canada's proposal. In implementing its policies and procedures, Air Canada is required to address these concerns by ensuring that persons with disabilities who require oxygen to travel on domestic flights are not prevented from travelling as planned and do not incur additional expenses related to medical oxygen, as a result of the following circumstances:

• while their oxygen supplier is being vetted;
• in situations where their regular supplier is not approved; and,
• in situations where there is no approved supplier in their area, thereby leading to shipping costs.

[44] In terms of the requirement to ensure that persons subject to the foregoing circumstances are not prevented from travelling as planned, in recognition of the need for time in order for Air Canada to make alternate arrangements for the provision of oxygen using an approved supplier and approved oxygen cylinders, this requirement applies in respect of requests by persons with disabilities that are made at least 48 hours in advance of flight departure. Regarding requests by persons with disabilities that are made with less than 48 hours advance notice, Air Canada is required to make reasonable efforts to ensure that the persons are not prevented from travelling as planned.

[45] Air Canada must also ensure that the proposed refunds to be issued in the interim are provided for oxygen used between check-in and boarding, during connections, and until arrival in the general public area at the final destination in relation to domestic flights.

CONCLUSION

[46] The Agency varies Decision No. 336-AT-A-2008 as it relates to paragraphs 346 to 354, which pertain to Air Canada's domestic air services.

[47] In light of the concerns noted above and to ensure that the policies and procedures associated with Air Canada's proposal to permit passenger-supplied gaseous oxygen on domestic flights are reasonable, including its proposed interim measures, Air Canada is required to implement the following corrective measures:

• Until such time as it accepts the use of passenger-supplied gaseous oxygen on domestic flights, implement the interim measures it has proposed whereby it will refund passengers for the gaseous oxygen they use between check-in and boarding, landing and baggage delivery and during connections and until arrival in the general public area at the final destination on wholly domestic itineraries.
• Communicate its interim refund process to all passengers who have had to make their own arrangements for a ground supply of oxygen on wholly domestic itineraries.
• By no later than December 26, 2009, allow passenger-supplied oxygen on its domestic flights, as proposed by Air Canada and as set out above, and implement the following corrective measures at the same time:
• Ensure that persons with disabilities who require oxygen to travel on domestic flights are not prevented from travelling as planned and do not incur additional expenses related to medical oxygen, as a result of the following circumstances.
  • while their oxygen supplier is being vetted;
  • in situations where their regular supplier is not approved; and,
  • in situations where there is no approved supplier in their area, thereby leading to shipping costs.

[48] In terms of the requirement to ensure that persons subject to the foregoing circumstances are not prevented from travelling as planned, in recognition of the need for time in order for Air Canada to make alternate arrangements for the provision of oxygen using an approved supplier and approved oxygen cylinders, this requirement applies in respect of requests by persons with disabilities that are made at least 48 hours in advance of flight departure. Regarding requests by persons with disabilities that are made with less than 48 hours advance notice, Air Canada is required to make reasonable efforts to ensure that the persons are not prevented from travelling as planned.

[49] Air Canada must also ensure that its domestic tariff reflects its new policy and related procedures with respect to the acceptance of passenger-supplied gaseous oxygen.

[50] Furthermore, paragraph 346 states that, in the event that Air Canada does not provide the most appropriate accommodation by permitting passenger-supplied gaseous oxygen on its domestic flights, Air Canada is required to continue to provide a gaseous oxygen service and, insofar as it chooses to do so by using its Medipak service or alternatively through a third-party supplier, it is still required to implement the corrective measures set out at paragraphs 347 to 354. While Air Canada now proposes to provide the most appropriate accommodation by permitting passenger-supplied gaseous oxygen on domestic flights, the obligations set out in the above-noted paragraphs are to take effect should Air Canada decide to not permit passenger-supplied gaseous oxygen on its domestic flights. The Agency therefore varies paragraph 346 by removing "continue to" from the obligation set out therein.

Members

• Geoffrey C. Hare
• J. Mark MacKeigan