Decision No. 47-AT-A-2020

July 2, 2020

APPLICATION by John Liland and Jonathan Liland against Air Canada pursuant to subsection 172(1) and 67(3) of the Canada Transportation Act, SC 1996, c 10, regarding John Liland’s disability-related needs.

Case number: 
18-50126

SUMMARY

[1] John Liland and Jonathan Liland (applicants) filed an application with the Canadian Transportation Agency (Agency) against Air Canada pursuant to subsections 172(1) and 67(3) of the Canada Transportation Act, SC 1996, c 10 (CTA), concerning the carrier’s refusal to transport the applicants with John Liland’s oxygen unit and the applicants’ subsequent inability to access medication packed in their checked baggage.

[2] The applicants seek the following:

    • an acknowledgement that the oxygen unit John Liland brought on board was on Air Canada’s list of approved personal oxygen concentrators (POCs) and is not considered a flight hazard;
    • disclosure of all documents related to Air Canada’s internal investigation into the matter; and
    • a plan from Air Canada to prevent injury to the dignity and self-respect of passengers with a disability in similar circumstances in the future.

[3] On December 24, 2019, the Agency issued Decision No. LET-AT-A-104-2019 (Decision) wherein it found, in part, that John Liland is a person with a disability who encountered an obstacle when travelling with Air Canada. Air Canada was then provided with the opportunity to either:

    • explain, taking into account any proposals from the applicant, how it proposed to remove the obstacle through a general modification to a rule, policy, practice, technology, or physical structure or, if a general modification is not feasible, an individual accommodation measure; or
    • demonstrate that it could not remove the obstacle without experiencing undue hardship.

[4] On January 17, 2020, Air Canada filed an answer to the Decision (answer). The applicants did not file a reply.

[5] Having addressed in the Decision all other issues raised by the applicants, the Agency will address in this decision whether Air Canada can remove the obstacle encountered by John Liland without experiencing undue hardship.

[6] For the reasons set out below, the Agency finds that the obstacle can be removed without causing Air Canada undue hardship and orders Air Canada to issue a bulletin to its flight deck employees reminding them of its existing policy regarding travel with POCs. Air Canada is to provide a copy of the bulletin to the Agency’s Chief Compliance Officer, through its Secretariat, as soon as possible and by no later than July 30, 2020.

BACKGROUND

[7] John Liland requires supplementary oxygen at all times because he has chronic obstructive pulmonary disease (COPD). He also uses a wheelchair.

[8] John Liland was travelling with his son, Jonathan Liland, with Air Canada on a round-trip from Calgary, Alberta, to Comox, British Columbia, via Vancouver, British Columbia. On August 22, 2017, on the first flight segment of the return trip, Flight No. AC8314 from Comox to Vancouver, the pilot did not allow John Liland to travel with his oxygen unit. The pilot and the first officer did not allow the oxygen unit on board because they believed that the unit may have been an oxygen generator, which would have been a safety hazard. Air Canada provided John Liland with the choice to disembark or to travel without the oxygen unit. The applicants disembarked from the aircraft.

[9] In the Decision, the Agency made the following findings:

    • the oxygen unit John Liland was travelling with was a POC approved for travel by Air Canada;
    • John Liland is a person with a disability for the purposes of Part V of the CTA;
    • John Liland encountered an obstacle to his mobility when he was refused transportation due to alleged safety concerns about his oxygen unit;
    • John Liland’s inability to access medication packed in his checked baggage does not constitute an obstacle to his mobility;
    • Air Canada did not properly apply the terms and conditions set out in Rule 75(5)(d) of its Domestic Tariff General Rules Applicable to the Transportation of Passangers and Baggage, CTA(A) No. 3 (Tariff) by refusing to transport John Liland with his oxygen unit;
    • Air Canada effectively refused to transport Jonathan Liland;
    • Air Canada is liable for the applicants’ expenses arising from its refusal to transport the applicants, but no further order is necessary, as the parties had reached an agreement on this matter; and
    • the Agency will not consider the issue of Air Canada’s internal investigation into the incident.

THE LAW

[10] The accessibility-related portion of the application was filed pursuant to subsection 172(1) of the CTA, which, at the time of the application, read 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.

[11] As outlined in the letter that opened the pleadings in this case, the first steps in dealing with an application are to consider whether the applicant is a person with a disability for the purposes of Part V of the CTA and, if so, whether they encountered an obstacle.

[12] If it is determined that the applicant is a person with a disability and that they encountered an obstacle, the Agency opens pleadings on whether and how that obstacle can be removed without the respondent experiencing undue hardship.

AIR CANADA’S POSITION

[13] Air Canada maintains its position set out in previous pleadings: that while the incident John Liland experienced was unfortunate, it was caused by John Liland’s lack of knowledge about the oxygen unit he was carrying, such that Air Canada had to make a safe and prudent decision to refuse to transport the POC. Air Canada sets out that it must prioritize safety as obligated by the Canadian Aviation Regulations (SOR/96-433) (CARS). Further, it submits that the CARS and the Aeronautics Act, RSC 1985, c A‑2 give the pilot-in-command the “ultimate authority and full liability” for the safety of the flight. Air Canada maintains that the pilot must preserve this discretion when in doubt about the safety of an item being carried on board an aircraft.

[14] Air Canada submits that it already has a policy and procedures in place to ensure that passengers requiring a POC are able to travel. Air Canada asserts that changes to policies and procedures are justified when an event is likely to reoccur, or when a problem is systemic. It argues that the situation experienced by John Liland was unique and is not likely to reoccur, especially now that John Liland is aware that his oxygen unit is a POC—not an oxygen generator—and will be able to confirm this in the future.

[15] Air Canada proposes that if the Agency disagrees with its position, it be given an opportunity to make submissions on the feasibility of the accommodation measures the Agency proposes, as Air Canada argues that the question of whether an obstacle can be removed without undue hardship depends on how and by what means the Agency proposes that the obstacle should be removed.

ANALYSIS AND DETERMINATIONS

[16] The onus is on the carrier to explain how it proposes to remove the obstacle or to demonstrate that it cannot remove the obstacle without experiencing undue hardship.

[17] Air Canada argues that no changes to its policy and procedures should be made because the pilot must retain their discretion over safety when in doubt. The Agency concurs that pilots must retain discretion over the safety of their aircraft. It has consistently found, such as in Decision No. 61-C-A-2018 (Brighouse v Air Canada), that safety is paramount; and, at times, a pilot must make the necessary decisions to ensure that safety, up to, and including, the decision to refuse transportation to a passenger. The Agency cautioned, however, that “This decision should not be made in an arbitrary manner or be based on irrelevant considerations.”

[18] In this case, the Agency found in the Decision that the pilot and first officer did not take reasonable steps to verify whether the oxygen unit accompanying John Liland was a pre‑approved POC. While the Agency acknowledges that Air Canada has a policy and procedures to ensure the safe transportation of POCs for persons requiring oxygen during travel, a policy is only effective insofar as employees are aware of it and give it the attention that it deserves. This was not the case in the applicants’ situation. Had the pilot and other crew members consulted Air Canada’s policy, they would have seen that the make and model carried by John Liland was on the list of POCs authorized for travel. The Agency finds that a bulletin to employees would provide education so as to ensure that future passengers are not refused transportation because they are travelling with a POC.

[19] The Agency acknowledges Air Canada’s request for an opportunity to submit pleadings on the feasibility of any accommodation measures contemplated by the Agency; however, the Agency is not ordering a change to a policy or to procedures as an accommodation measure. Moreover, imposing a requirement to remind employees of an existing policy does not affect Air Canada’s pilots’ authority over their aircraft, nor does such a requirement hinder a pilot’s discretion when they are presented with safety concerns. The issuance of a bulletin reminding Air Canada’s employees of its policy and procedures regarding travel with POCs is neither unreasonable nor impracticable to implement and does not warrant further submissions from Air Canada.

CONCLUSION

[20] The Agency finds that Air Canada has not discharged its burden to explain how removing the obstacle would cause it undue hardship, such that the obstacle faced by the applicants is undue.

ORDER

[21] The Agency orders Air Canada to issue a bulletin to its flight deck employees about Air Canada’s policy and procedures for the carriage of POCs. Air Canada is to send a memo including this bulletin directly to the pilot, first officer, and other members of the crew involved in the incident of August 22, 2017, detailed in the application. Air Canada is to provide a copy of the bulletin and memo it has sent to its employees to the Agency’s Chief Compliance Officer, through its Secretariat, as soon as possible and by no later than July 30, 2020.

Member(s)

Elizabeth C. Barker
J. Mark MacKeigan
Mary Tobin Oates
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