Decision No. 463-AT-A-2006

August 30, 2006

August 30, 2006

APPLICATION by Don Nason pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, regarding the presence of two cats in the passenger cabin on an Air Canada flight between Halifax, Nova Scotia and Toronto, Ontario on January 13, 2000.

File No. U3570/00-86


APPLICATION

[1] On September 7, 2000, Don Nason filed with the Air Travel Complaints Commissioner the application set out in the title. On December 12, 2000, Mr. Nason advised that he wanted the Canadian Transportation Agency (hereinafter the Agency) to investigate his complaint pursuant to the accessibility provisions of the Canada Transportation Act (hereinafter the CTA).

[2] As a result of a jurisdictional challenge as to whether an allergy is a disability for the purposes of Part V of the CTA, which Air Canada brought before the Agency in response to two other applications concerning allergies, the Agency decided to address the jurisdictional question as a preliminary matter in this and other applications. In its Decision No. LET-AT-A-312-2001 dated July 5, 2001, the Agency opened pleadings with respect to its jurisdiction on the allergy applications filed pursuant to section 172 of the CTA.

[3] On August 2, 2001, Air Canada submitted a request for an extension of time to respond to Decision No. LET-AT-A-312-2001 and in its Decision No. LET-AT-A-373-2001 dated August 13, 2001, the Agency granted Air Canada's request.

[4] On September 12, 2001, Air Canada submitted a request for an additional extension of time to respond to Decision No. LET-AT-A-312-2001 and in its Decision No. LET-AT-A-402-2001 dated September 17, 2001, the Agency granted Air Canada's request.

[5] Further to pleadings on the jurisdictional question, the Agency issued Decision No. 243-AT-A-2002 dated May 10, 2002 (hereinafter the Decision). In the 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 in the population of persons who have allergies, who have a disability for the purposes of Part V of the CTA. The Agency indicated that it would therefore proceed on a case by case basis, to decide whether a person who has an allergy is a person with a disability for the purposes of the accessibility provisions of the CTA.

[6] In its Decision No. LET-AT-A-140-2002 dated May 10, 2002, the Agency provided Mr. Nason with an opportunity to file additional submissions in light of the jurisdictional decision, to support his position that his particular allergy is a disability and whether he had encountered an undue obstacle for the purposes of the accessibility provisions of the CTA. Mr. Nason was informed that reference may be made to the conclusion reached by the Agency in the Decision that fact-based evidence of the presence of activity limitations and/or participation restrictions in the context of the federal transportation network is necessary to support a conclusion that a person with an allergy is a person with a disability. On May 19, 2002, Mr. Nason filed his submission in response. A subsequent submission was filed by Mr. Nason on June 30, 2002. On July 26, 2002, Air Canada filed its answer to Mr. Nason's submission and on September 27, 2002, Mr. Nason filed his reply.

[7] In its Decision No. LET-AT-A-27-2003 dated February 4, 2003, the Agency found that it would be appropriate to adjourn this case pending the Federal Court of Appeal's consideration of an appeal of Decision No. 567-AT-A-2002 dated October 23, 2002 (In the matter of the jurisdictional question, arising in the context of an application received by the Agency from Linda McKay-Panos against Air Canada, on whether obesity is a disability for the purposes of Part V of the CTA) which concerned the manner in which the Agency determines a disability for the purposes of Part V of the CTA.

[8] On January 13, 2006, the Federal Court of Appeal issued its decision in Linda McKay-Panos' appeal. Accordingly, the Agency will now continue its investigation into the adjourned applications that raise issues with respect to allergies.

[9] Pursuant to subsection 29(1) of the CTA, the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.

BACKGROUND

[10] In Decision No. 243-AT-A-2002, the Agency determined that it would rely on the concepts relating to the determination of a disability which are reported in Decision No. 646-AT-A-2001 dated December 12, 2001 (with respect to an application filed by Linda McKay-Panos against Air Canada). The Agency recognized that the International Classification of Functioning and Disability, World Health Organization, 2001 (hereinafter the ICF) could be useful in the Agency's analysis of disability issues and found that the ICF is an appropriate model of disability for determining whether a person with an allergy is a person with a disability for the purposes of Part V of the CTA.

[11] 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. These concepts are discussed in more detail in Decision No. 646-AT-A-2001.

[12] In Decision No. 243-AT-A-2002, the Agency stated that:

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

[13] In that same Decision, the Agency also advised that "... the determination of whether a person with an allergy experiences activity limitations and/or participation restrictions in the context of the federal transportation network requires an analysis of each case based on its own merits." In this regard, the Agency found 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."

PRELIMINARY MATTER

[14] Although Mr. Nason's submission of June 20, 2002 and his reply of September 27, 2002 were filed after the prescribed deadlines, the Agency, pursuant to section 5 of the Canadian Transportation Agency General Rules, SOR/2005-36, accepts these submissions as relevant and necessary for its consideration of the matter.

ISSUES

[15] The issues to be addressed are:

  1. whether Mr. Nason has a disability for the purposes of Part V of the CTA; and
  2. if so, whether Air Canada's policy with respect to the carriage of cats in the aircraft cabin constituted an obstacle to Mr. Nason's mobility.

FACTS

[16] Mr. Nason travelled on Air Canada Flight No. AC153 between Halifax and Toronto on January 13, 2000.

[17] Mr. Nason was seated across the aisle from two cats, however, he did not experience an allergic reaction.

POSITIONS OF THE PARTIES

Mr. Nason

[18] Mr. Nason states that he has an eye disorder attributable to cats. Mr. Nason further states that he experiences breathing problems that can incapacitate him for days as a result of exposure to cats and advises that he has restricted himself from going any place where cats are present or have been, as he has to be very cautious and no cure or medication is available. Mr. Nason indicates that he was extremely lucky that he did not experience an allergy attack during his flight with Air Canada.

[19] Mr. Nason indicates that the stock answer from Air Canada is "Did you bring your allergy medication?" and he states that over the counter antihistamines are not guaranteed to control an allergic reaction and there are no prescriptions available for this disability. In a subsequent submission, Mr. Nason indicates that the only available source of relief is over the counter antihistamines, but asserts that "they seldom do anything but turn one into a zombie." Mr. Nason claims that he has given up on doctors vis-a-vis allergies.

[20] Mr. Nason indicates that he attempted to provide past medical records to Air Canada, however, neither of his doctors were available.

Air Canada

[21] Air Canada submits that Mr. Nason's application does not provide evidence or arguments sufficient to demonstrate that he has an allergy. Air Canada further submits that even if Mr. Nason had provided corroborating medical evidence of his alleged condition, it would be insufficient to amount to a disability for the purposes of Part V of the CTA.

ANALYSIS AND FINDINGS

[22] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

[23] The Agency's mandate pursuant to section 172 of the CTA is to inquire into matters to determine whether there was an undue obstacle to the mobility of persons with disabilities when they travel and, if so, require the taking of appropriate corrective measures. In this regard, the Agency considers the particular facts of the case brought before it by the parties in order to determine whether Mr. Nason is a person with a disability.

[24] Since August 2000, the Agency has received approximately 19 applications regarding the presence of allergens in the context of air travel. The Agency recognizes that these issues are long-standing and complex and, as such, the Agency has determined that a two-stage process is appropriate. In this regard, the Agency intends to issue a decision(s) on disability and obstacle followed by a decision on undueness, if required. In the case at hand, should Mr. Nason be found to be a person with a disability and should he be found to have encountered an obstacle to his mobility, then Air Canada will at a later date be required to address whether its policy with respect to the carriage of cats in the aircraft cabin constitutes an undue obstacle to Mr. Nason's mobility.

Whether Mr. Nason is a person with a disability

[25] An application must be filed by, or on behalf of, a person with a disability. As noted above, the Agency, in Decision No. 243-AT-A-2002, determined that the ICF is an appropriate model of disability for determining whether a person with an allergy is a person with a disability for the purposes of Part V of the CTA. As such, the Agency's analysis of whether Mr. Nason is a person with a disability for the purposes of Part V of the CTA, as reflected below, is expressed in terms of the ICF model of disability as detailed in Decision No. 646-AT-A-2001.

(i) impairment

[26] The ICF provides that impairments are problems in body function or structure such as a significant deviation or loss.

[27] In referring to the ICF classification, the Agency accepts that the category of "hypersensitivity reactions", which is included in the immunological system functions in the ICF (b435, page 58), encompasses "functions of the body's response of sensitization to foreign substances, including infections". This category includes immune response (specific and non-specific); hypersensitivity reactions; functions of lymphatic vessels and nodes; functions of cell-mediated immunity; antibody-mediated immunity; response to immunization; impairments such as in autoimmunity, allergic reactions, lymphadenitis and lymphoedema. Specifically, the following sub category includes hypersensitivity reactions:

  • b4351: Hypersensitivity reactions; functions of the body's response of increased sensitization to foreign substances, such as in sensitivities to different antigens.
  • Inclusion: impairments such as hyper sensitivities or allergies.

[28] The Agency notes Air Canada's general position that "an allergy is not a disease nor impairment per se". In this regard, the Agency, in its Decision No. 243-AT-A-2002, found that an allergy is an impairment and, therefore, rejected Air Canada's position to the contrary.

[29] Additionally, the Agency accepts Mr. Nason's assertion that he is allergic to cat dander. Therefore, the Agency concludes that Mr. Nason has an impairment for the purposes of the ICF.

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

[30] 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.

[31] With respect to participation restrictions, the ICF model of disability defines "participation restriction" as problems 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.

[32] While the Agency notes that an activity limitation may be slight in nature, the Agency is of the opinion that for the purposes of its analysis, a limitation must be significant enough to result in an incapacity, inability or other inherent difficulty in executing a task or action. In Agency Decision No. 243-AT-A-2002, the Agency determined that fact-based evidence of the presence of activity limitations and/or participation restrictions in the context of the federal transportation network is necessary to support a conclusion that a person with an allergy is a person with a disability for the purposes of Part V of the CTA.

[33] The Agency notes that although Mr. Nason was seated across the aisle from two cats, he did not experience an allergic reaction. Furthermore, Mr. Nason did not provide any further fact-based evidence to substantiate an activity limitation or a participation restriction that would support the existence of a disability for the purposes of Part V of the CTA resulting from his allergy to cats.

[34] In light of the foregoing, the Agency finds that Mr. Nason has not provided sufficient evidence to demonstrate that he is a person with a disability for the purposes of Part V of the CTA.

CONCLUSION

[35] Based on the above finding, there is no need for the Agency to consider whether Mr. Nason encountered an obstacle to his mobility and the Agency hereby dismisses his application.

Members

  • Gilles Dufault
  • Guy Delisle
  • Beaton Tulk
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