Decision No. 416-AT-A-2010

October 14, 2010

October 14, 2010

APPLICATION by Dr. Diane Sawchuck against Air Canada.

File No. U3570/10-3


Introduction

[1] Dr. Diane Sawchuck, whose allergy to perfume triggers symptoms including asthma, filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) against Air Canada with respect to the wearing of perfume by its flight attendants.

[2] Dr. Sawchuck seeks that Air Canada adopt a scent-free policy for its flight attendants while on board the aircraft.

[3] Air Canada currently has a policy on the wearing of perfume by flight attendants. Air Canada filed excerpts of its Initial Flight Attendant Training document, which asks flight attendants to keep fragrances subtle and sets out that strong or heavy scents should be avoided. Air Canada adds that reminders, which are provided to flight attendants as online communication referred to as e-Pub, state that fragrances must be subtle and that strong and heavy scents must be avoided.

[4] In her application, Dr. Sawchuck also describes her allergy to cats. In Decision No. LET-AT-A-67-2010, the Agency adjourned the portion of Dr. Sawchuck's application related to her allergy to cats pending the outcome of similar applications currently being determined by the Agency.

Issues

[5] Is Dr. Sawchuck a person with a disability for the purposes of Part V of the CTA, due to her allergy to perfume and, if so, does Air Canada's existing policy constitute an undue obstacle to Dr. Sawchuck's mobility? If the existing policy does constitute an undue obstacle, what corrective measures should be ordered, if any?

The Law

[6] 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.

[7] The Supreme Court of Canada, in Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, 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 that identifying and remedying undue obstacles for persons with disabilities in the transportation context must be done 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 existence of an obstacle to the mobility of a person with a disability in the federal transportation network has been established by the applicant, the onus 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.

Analysis and findings

The Agency's approach to the determination of disability

[8] An application pursuant to section 172 of the CTA must be filed by or on behalf of a person with a disability. While there are situations where a disability is self-evident (e.g. a person who uses a wheelchair), there are cases where additional evidence is required to establish both the disability and the need for accommodation. In assessing those cases, the Agency uses the World Health Organization's International Classification of Functioning, Disability and Health (ICF), an internationally accepted tool for the consistent classification of disability.

[9] The ICF contains a complete classification of body functions and structures, and identifies three dimensions of disability, i.e. impairments, activity limitations and participation restrictions.

[10] The Agency's assessment process with respect to these dimensions of disability has been clearly set out in a number of cases before the Agency, the most recent being Decision No. 60-AT-A-2010.

[11] The distinction between an activity limitation and a participation restriction is important. The activity limitation associated with an impairment relates to the presentation of symptoms and resulting difficulties, irrespective of the context. While an activity limitation pursuant to the ICF may be slight in nature, the Agency, as stated in previous decisions, is of the opinion that, for the purposes of a determination pursuant to Part V of the CTA, a limitation must be significant enough to result in an inherent difficulty in executing a task or action.

[12] The participation restriction manifests itself in the context of what the ICF calls "life situations". In this case, this means an interaction between the person with the impairment and the federal transportation network.

[13] The existence of a participation restriction in the context of the federal transportation network is dependent upon the existence of an activity limitation and is evidenced by a person's inability to access the services available within that network as other persons without the activity limitation can.

[14] To be classified as being a person with a disability, the applicant has an evidentiary burden to demonstrate that they have an impairment that results in an activity limitation and that they experience a participation restriction in the context of the federal transportation network.

This case

Impairment

[15] The Agency notes 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 notes that this category explicitly includes allergies and, therefore, the Agency finds that an allergy is an impairment.

[16] Dr. Sawchuck submits that she is highly allergic to perfume and that her allergy to perfume aggravates her asthma. A note from her physician, Dr. Ayling, states:

I confirm that she has significant allergies to cat and dog dandor [sic] as well as many perfumes. She reacts on exposure to these substances with severe asthma. It is critical that she not be exposed to these specific allergens when at all possible especially when in confined spaces such as an airplane cabin.

[17] While Air Canada submits that the letter from Dr. Ayling is "rather laconic" and insufficient to constitute evidence of an impairment, the Agency points out that the note confirms that Dr. Sawchuck is allergic to perfume.

[18] Based on the evidence submitted, the Agency accepts that Dr. Sawchuck is allergic to perfume. The Agency therefore finds that Dr. Sawchuck has an impairment.

Activity limitation

[19] Air Canada submits that even if the evidence were sufficient to demonstrate impairment, Dr. Sawchuck has not met her evidentiary burden to demonstrate that she has encountered an activity limitation and a participation restriction. The carrier requests that her complaint, with respect to perfume and scents, be dismissed.

[20] As set out above, the activity limitation associated with an impairment relates to the presentation of symptoms and resulting difficulties, irrespective of the context. The Agency is of the opinion that provided the evidence establishes that the applicant experiences an allergic reaction that is significant enough to result in an inherent difficulty in executing a task or action, this is sufficient to demonstrate the existence of an activity limitation.

[21] The Agency recognizes that persons who have allergies experience wide-ranging symptoms, the severity and duration of which can vary greatly depending on the nature of the allergy, the concentration and proximity of allergens present and the length of time to which the person is exposed to the allergens.

[22] Dr. Sawchuck submits that she has experienced many, less severe asthmatic reactions to the perfume worn by cabin crew and that there have been many times when she has needed ice water because, with the scents, her asthma and the hot cabin, she came close to passing out. Dr. Sawchuck also states that "While I carry both Ventolin [sic] and epinephrine, I would not want to have to deal with that (nor would the crew) at 10,000 feet."

[23] In response to interrogatories by Air Canada for details regarding the previous incidents, which the Agency required that she answer to the best of her knowledge, Dr. Sawchuck states that it is impossible to know details such as flight numbers and seat allocations on flights that occurred over the past few years.

Montréal-Vancouver flight

[24] Dr. Sawchuck refers to symptoms she experienced on an Air Canada flight from Montréal, Quebec to Vancouver, British Columbia. However, these symptoms only related to the hot temperature in the aircraft cabin. Dr. Sawchuck herself states that the flight crew was not wearing perfume. The Agency will only consider the symptoms related to her impairment, i.e. her allergy to perfume, to determine whether Dr. Sawchuck has demonstrated that she encountered an activity limitation associated with this impairment.

[25] Accordingly, the Agency does not consider this submission by Dr. Sawchuck to be relevant to the case before the Agency and will not take this submission into account.

Flight to Australia

[26] Dr. Sawchuck also provides an example of a reaction related to her allergy to perfume which she experienced on a flight to Australia. In response to interrogatories by Air Canada, she clarifies that it was a Qantas Airways Limited (Qantas) flight and not an Air Canada flight. As Qantas is not the respondent named in Dr. Sawchuck's application, it is not necessary to address Qantas' dress code policy for its crew in this case.

[27] In addition, although the evidence provided by Dr. Sawchuck with respect to the Qantas flight may be indicative of the symptoms she may experience in proximity to perfume, there are inconsistencies in her evidence (e.g. in her application Dr. Sawchuck refers to a female flight attendant who wore a strong scent, while in response to Air Canada's interrogatories, she refers to a male flight attendant who wore strong after-shave) and Air Canada is in no position to, and should not be required to, challenge this evidence for a flight operated by another air carrier.

[28] Accordingly, as with the earlier flight referenced by Dr. Sawchuck, the Agency does not consider this submission by Dr. Sawchuck to be relevant to the case before the Agency, and will not take it into account.

Washington-Montréal flight

[29] Dr. Sawchuck provides details with respect to Air Canada flight AC7655 (operated by Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc.) from Washington, District of Columbia, United States of America to Montréal, on June 9, 2010. Dr. Sawchuck submits that very strong perfume worn by a flight attendant was overwhelming every time the attendant walked past her and that the perfume was noticeable from at least five rows away. Dr. Sawchuck describes experiencing symptoms including itchy eyes and throat, sneezing and tightness in her chest. Dr. Sawchuck indicates that as she occupied a window seat, it was difficult to move; that there was really nowhere to move to as the aircraft was small and the perfume was so strong. Dr. Sawchuck adds that she opened the air vents to maximum and took an antihistamine. She states that while she did not seek medical assistance, her travelling companion was a doctor, who was aware of her allergic reaction.

[30] Air Canada notes that although Dr. Sawchuck alleges, in her initial application, having many less severe asthmatic reactions to the perfume worn by cabin crew, she cannot relate any incident of an "asthmatic attack" to a specific Air Canada flight. Air Canada also points out that the only incident with Air Canada that she can describe and which allegedly relates to the flight attendant wearing perfume was on flight AC7655, which she took after the filing of her application. Air Canada adds that Dr. Sawchuck did not seek medical assistance during or after flight AC7655, but instead alleviated the symptoms she described, i.e. itchy eyes and throat, sneezing and tightness in her chest, by opening the air vents to maximum and taking an antihistamine.

[31] Air Canada submits that this incident resulted in minor reactions of the same nature as those alleged by the applicant in Decision No. 370-AT-A-2009, in which the Agency decided that the evidence was "insufficient to support a conclusion that Dr. Kerr's allergic reaction to flowers is significant enough to result in an activity limitation in the context of using the federal transportation network."

[32] Air Canada indicates that notwithstanding that it provided Dr. Sawchuck with a list of over 40 flights she had taken with Air Canada between January 1, 2008 and April 30, 2010, she is unable to substantiate any of her allegations of the "many allergic reactions to perfume worn by crew." The carrier submits that Dr. Sawchuck has not met her evidentiary burden to demonstrate that she has encountered an activity limitation and a participation restriction. Air Canada therefore submits that Dr. Sawchuck is not a person with a disability by reason of her allergy to perfume.

[33] Although Dr. Sawchuck has taken at least 40 Air Canada flights since 2008, she recalls only one incident on an Air Canada flight in which she had an allergic reaction to perfume worn by a flight attendant. Dr. Sawchuck describes her reactions to perfume on past flights only in general terms. In addition, she has never needed or cannot recall needing medical assistance on those flights. As such, the Agency finds that Dr. Sawchuck has not encountered an inherent difficulty in executing a task or action sufficient to demonstrate an activity limitation.

[34] Therefore, the Agency finds that Dr. Sawchuck has not sufficiently demonstrated an activity limitation as a result of her allergy to perfume.

[35] In this case, as the Agency has determined that Dr. Sawchuck did not experience an activity limitation as a result of her allergic reaction to perfume, it is not necessary for the Agency to assess participation restriction. Nevertheless, even if the evidence had supported a finding of a significant enough reaction to perfume to constitute an activity limitation, for the reasons set out below, the Agency is of the opinion that Dr. Sawchuck has not demonstrated that she experienced a participation restriction in relation to her allergy to perfume.

[36] As pointed out by Air Canada, Dr. Sawchuck has travelled over 40 times with Air Canada since 2008, yet she had only one reaction to a flight attendant's perfume on an Air Canada flight. With respect to Air Canada's interrogatories, the Agency accepts that it might be difficult for Dr. Sawchuck to provide some of the details requested by Air Canada (e.g. dates as well as flight and seat numbers). However, Dr. Sawchuck's failure to describe the symptoms she experienced (e.g. the nature of the symptoms, their duration and what alleviated the situation) upon exposure to perfume worn by flight attendants on Air Canada flights indicates that she did not experience a participation restriction.

[37] As Air Canada further points out, during the one incident involving the Air Canada flight operated by Jazz Air LP, as represented by its general partner, Jazz Air Holding GP Inc., Dr. Sawchuck was able to alleviate her symptoms by opening the air vents and taking an antihistamine and she did not seek medical assistance during or after the flight.

[38] Air Canada claims that Dr. Sawchuck has not provided sufficient fact-based evidence to conclude that she experienced a participation restriction. Air Canada also submits that it is the applicant's responsibility to adduce fact-based evidence, which the carrier says is severely lacking in this case.

[39] The Agency notes that Dr. Sawchuck has never sought assistance, medical or otherwise, during or after her reactions to perfume, has never followed up on an incident by filing a report with Air Canada and has never informed Air Canada of her allergy to perfume in advance of a flight.

[40] The Agency finds that these actions and inactions are not consistent with Dr. Sawchuck's assertion that her reactions to perfume result in a participation restriction.

Conclusion

[41] The Agency concludes that Dr. Sawchuck has not met her evidentiary burden to demonstrate that, for the purposes of Part V of the CTA, she is a person with a disability due to her allergy to perfume as she has not shown that she experienced an activity limitation. The Agency therefore dismisses the application.

Members

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

Member(s)

Raymon J. Kaduck
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