Decision No. 56-AT-A-2002

January 31, 2002

January 31, 2002

APPLICATION by Alain Horchower pursuant to subsections 172(1) and (3) of the Canada Transportation Act, S.C., 1996, c. 10, concerning the difficulties he experienced with Air Transat A.T. Inc. carrying on business as Air Transat on Flight No. TS914 between Calgary, Alberta, Canada and Paris, France on August 9, 1999.

File No. U 3570/00-37


APPLICATION

On June 16, 2000, Alain Horchower filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. Agency staff sought clarification regarding his application by telephone and the information provided to staff was communicated to Air Transat A.T. Inc. carrying on business as Air Transat (hereinafter Air Transat) by letter dated June 28, 2000.

On July 14, 2000, Air Transat filed its answer to the application, including its Passengers Accident/Incident Report (hereinafter the Incident Report); written statements of the flight director, dated November 12, 1999, and of a flight attendant involved in Mr. Horchower's care after he collapsed, dated December 10, 1999; and a copy of a letter dated October 10, 1999 from the lawyers retained by Mr. Horchower to Air Transat and a copy of Air Transat's reply of December 13, 1999.

On July 25, 2000, Mr. Horchower filed his reply, including his own statutory declaration sworn on July 21, 2000, with exhibits attached, which includes a report from Radiology Consultants Associated dated September 30, 1999.

Agency staff requested information on the incident directly from the physician who treated Mr. Horchower on the flight and from a passenger identified in the Incident Report. The Agency received their respective statements on September 18 and December 4, 2000.

Furthermore, Agency staff requested further information from all parties, including: from Air Transat, affidavit evidence from the flight attendants who dealt directly with Mr. Horchower and from passengers who were seated near Mr. Horchower on the flight in question; and further details and substantiation from Mr. Horchower, supporting the expenses claimed to have been incurred as a result of the incident.

Additional submissions were received from both parties, both at the request of Agency staff and otherwise. Specifically, Mr. Horchower filed submissions on: August 31, September 8, 18 and 29, November 6, 15, and 20 (including a letter dated August 9, 1999 from the physician who treated him on the flight), and December 11, 2000 (including Mr. Horchower's itinerary, flight coupon and boarding pass); and February 19 and 22, 2001. Air Transat filed submissions on: August 11 and 28 (including the affidavits of the flight director and a flight attendant, both sworn on August 23, 2000), September 11 and 13, October 2 and 4 (including affidavits of two other flight attendants, both sworn on October 3, 2000), November 21, 29 (including the affidavit of a passenger, sworn on November 27, 2000, the configuration chart for the Lockheed L-1011-500 aircraft, and excerpts from Air Transat's Cabin Attendant Manual) and 30 (including further excerpts from Air Transat's Cabin Attendant Manual), December 11, 2000 (including further excerpts from Air Transat's Cabin Attendant Manual); and February 13, 2001.

Pleadings were closed by Agency Decision No. LET-AT-A-103-2001 on March 5, 2001.

Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter 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 extension of the deadline until January 31, 2002.

PRELIMINARY MATTER

On September 8, 2000, Mr. Horchower requested that the Agency seek additional information from passengers who sat near him on the flight in question. On September 20, 2000, by Decision No. LET-AT-A-281-2000, the Agency advised that it would determine if such additional information is required following its review of material to be filed by Air Transat.

On November 6, 2000, Mr. Horchower requested that Air Transat provide him with the identity of the passengers seated next to him so that he could locate them, and, on November 20, 2000, he asked the Agency to require Air Transat to provide a complete passenger list to both the Agency and to him, if possible.

The Agency is of the view that the passenger lists of air carriers are, by their nature, confidential and are consistently treated as such by the air industry. Furthermore, while the Agency accepts that the information may be relevant to this application, the Agency is of the opinion that it is not necessary for its consideration of this application. As such, Air Transat will not be required to provide the confidential passenger list for the flight in question to Mr. Horchower.

Furthermore, given the circumstances of this case and the information provided in the pleadings, the Agency finds that it is not necessary to request the passenger list from Air Transat for the purposes of conducting further inquiries of passengers on board the flight in question.

ISSUE

The issue to be addressed is whether the level of assistance received by Mr. Horchower at three stages on Air Transat Flight No. TS914 from Calgary to Paris on August 9, 1999 constituted undue obstacles to his mobility and, if so, what corrective measures should be taken.

FACTS

Mr. Horchower has a history of sarcoidosis, a condition that can cause inflammation of the lungs and shortness of breath. As a result of his condition, he periodically requires the use of supplementary oxygen when travelling by air.

On August 9, 1999, Mr. Horchower travelled with Air Transat on Flight No. TS914 from Calgary to Paris. No request for assistance was made at the time of reservation.

During the flight, Mr. Horchower requested oxygen from an in-flight crew member. Before it was provided, he left his seat, took a few steps and collapsed to the floor, unconscious. After he regained consciousness, oxygen was provided to him, as required, for the remainder of the flight. Mr. Horchower disembarked in Paris with no assistance.

Air Transat's policy and procedures with respect to the provision of on-board oxygen state that oxygen is provided for all passengers and crew in emergency situations resulting primarily from cabin decompression. For normal operating conditions and as required by safety regulations, all its aircraft are equipped with oxygen bottles for use in emergencies by individual passengers in obvious distress.

Where a request for oxygen is received from a passenger not in obvious distress, crew members are trained to visually assess the situation, ask key questions with respect to the passenger's general physical state, and consequently provide oxygen and/or seek medical assistance on board as needed. With respect to passengers who are in constant need of oxygen during pressurized flights, such as those with chronic respiratory illness, Air Transat is not equipped to provide such a service. However, these passengers may bring their own breathing equipment, including oxygen, on board as long as it is certified for cabin use by Transport Canada.

Where a passenger experiences a period of unconsciousness during a flight, Air Transat's standard procedure is to request that wheelchair assistance be provided to the person for deboarding.

POSITIONS OF THE PARTIES

Mr. Horchower submits that he does not pre-request oxygen when making reservations to travel by air as he only requires oxygen from time to time. He asserts that his need for oxygen in an aircraft depends upon the quality of the air in the cabin and the altitude at which the plane is flying. However, he maintains that he always requests to pre-board the plane as a passenger with a disability. He indicates that he pre-boarded the plane on August 9, 1999, after showing the carrier's personnel evidence of his disability in the form of a handicapped parking pass and an Alberta Vehicle Registration Certificate showing the endorsement "disabled placard". He adds that at no time did the flight attendant inquire about the nature of his condition or whether he needed further assistance.

Mr. Horchower indicates that during the course of the flight, he started experiencing specific symptoms of sarcoidosis and he asked a member of the flight crew for oxygen. He submits that he was told that he would have to wait until the beverage service had been completed. Mr. Horchower states that after waiting approximately 45 minutes, he requested oxygen for a second time and his request was once again denied for the same reasons. Mr. Horchower submits that after a further 15 to 20 minutes, his symptoms became more severe and he attempted to get the attention of a flight attendant by tossing a blanket toward her. He adds that he was reprimanded by the flight attendant and that his request was again denied.

Mr. Horchower states that his seat, 20D, was only a few feet away from the galley area and that he could see a bottle of oxygen from his seat. He submits that after his request for oxygen was refused for the third time, he rose from his seat and attempted to move down the aisle to obtain the oxygen. Before he could reach the bottle, he lost consciousness and fell to the floor. Mr. Horchower indicates that he was told that he was unconscious for a few minutes, after which he slowly regained consciousness. He was provided with oxygen for the remainder of the flight. He adds that "[d]espite my weakened condition, Air Transat did not provide any other assistance for the rest of the flight", and that it refused to provide him with the wheelchair assistance he had requested for deplaning. Mr. Horchower submits that, in addition to the severe pain and discomfort brought on by the sarcoidosis symptoms and bruising from the fall, he fractured three ribs in his fall.

Mr. Horchower maintains that, as a result of this incident, he was ordered to stay in France under the care of a physician until September 21, 1999 and that his entire trip was spent convalescing in France. He asserts that, consequently, he was not able to attend scheduled business appointments in Europe and that he incurred substantial medical expenses and increased travel costs. At the request of Agency staff, he subsequently filed a summary that he prepared of the additional funds that he claims to have expended as a result of the incident.

Mr. Horchower indicates that he is extremely concerned about this incident as he has travelled by air with other carriers and has never experienced difficulty in obtaining oxygen when he needed it. He submits that the situation was brought about due to the conduct of Air Transat's flight crew.

Air Transat answers that, based on the statements provided by two of its crew members, it vigorously disputes Mr. Horchower's allegations that his requests for oxygen were consistently denied and that he was ignored by in-flight crew members, both before and after his loss of consciousness. It confirms that Mr. Horchower did lose consciousness and fall to the cabin floor, but, based on the statements of its crew members, Air Transat strongly denies all other allegations, including Mr. Horchower's allegations about the cause for his loss of consciousness.

Air Transat, in its letter of December 13, 1999 to Mr. Horchower's lawyer, states that Mr. Horchower did not pre-board the aircraft on August 9, 1999; rather, he boarded with the rest of the passengers in the regular manner. Air Transat disputes Mr. Horchower's contention that he identified himself to the carrier's personnel as a person with a disability before boarding the aircraft.

Air Transat maintains that at no time prior to Mr. Horchower's loss of consciousness did any of its crew members receive a request for oxygen, although an affidavit subsequently filed by Air Transat indicates that Mr. Horchower made one request for oxygen immediately prior to his collapse. Air Transat asserts that numerous passengers seated close to Mr. Horchower were interviewed, including a physician and a nurse who later came to his aid, and that no one mentioned "having observed any repeatedly denied requests for oxygen". Rather, Air Transat states that they confirmed Mr. Horchower's "rapid consumption of alcohol and his subsequent unruly behaviour (which included the throwing of a blanket at a flight attendant)".

Air Transat asserts that when Mr. Horchower collapsed, its crew attended to his needs, administered oxygen, and monitored his condition. It submits that Mr. Horchower's condition improved steadily throughout the remainder of the flight; that he did not complain to the physician about, nor did he appear to be in, any pain or discomfort; and that he even expressed gratitude to the crew for their assistance. Air Transat submits that the captain requested a wheelchair for Mr. Horchower to use upon landing in Paris, but before wheelchair assistance could be provided, Mr. Horchower disembarked on his own. Air Transat indicates that all necessary assistance was provided to Mr. Horchower.

In support of its position, Air Transat provided the Incident Report completed by the flight director with the assistance of the physician who treated Mr. Horchower; statements from the flight director and a flight attendant involved in Mr. Horchower's care after he collapsed; and a copy of correspondence between Air Transat and the lawyers retained by Mr. Horchower to pursue a civil action against Air Transat.

Air Transat's Incident Report includes the following notes made by the physician about the nature/severity of the injury, sickness or incident:

  • Synoppal attach. - Had Been Drinking Alcohol
  • Hx of Sarcoidosis, Heart Disease Including Valvular Disease
  • Has Home Oxygen - Is On Prednisone - Had Increased Dose to 25 mg For This Trip

The Incident Report also indicates that first aid, in the form of oxygen, was administered by the flight attendant for two periods of time and that, on both occasions, the oxygen was stopped as Mr. Horchower told them he was feeling better.

The statement of the flight director indicates that 20 to 25 minutes after take-off, Mr. Horchower asked him for a drink, to which he replied that they would be starting the beverage and meal service in the next 15 minutes. He indicates that "[d]uring the meal service, Mr. Horchower drank at least 4 wine bottles and 1 Grand-Marnier (Splits of Wine)". He states that "About 1 hour later, several Flight Attendants (F/As) came to tell me that Mr. Horchower was being very demanding and rude to them. He was asking for more alcohol. I went to tell him that 'it would be prudent, health-wise to, stop drinking for a little while' and that 'we would stop serving him drinks for the next 2 hours'. He replied that 'he was capable of drinking a lot more before feeling dizzy'. I then told the F/As to stop serving him alcohol.".

The flight director states that, about 90 minutes later, he was advised by a passenger that Mr. Horchower had fallen. He notes that the physician and the flight attendant who made the other statement were with Mr. Horchower and that medical assistance was given immediately. He indicates that he called for a cardiologist at the request of the physician and that both the cardiologist and the physician told him that Mr. Horchower was "well now but needed oxygen". He indicates that he moved passengers from the four middle seats of row 18 in order to permit Mr. Horchower to lie down and that he completed the Incident Report a few minutes later with the assistance of the physician who filled in the Nature/Severity of the Incident portion of the form. The flight director indicates that he and the rest of the crew members attended to Mr. Horchower's needs for the remainder of the flight and that he asked the captain to request a wheelchair for Mr. Horchower in Paris. He asserts that he advised Mr. Horchower of this and asked that he stay in his seat until the end of deplaning for this assistance; however, upon landing, he noted that Mr. Horchower was not in his seat. A flight attendant told him that Mr. Horchower told her that 'he was feeling good and did not need help' and left.

According to the flight attendant's statement, he first took notice of Mr. Horchower when he was advised by another flight attendant of Mr. Horchower's conduct in throwing something at her, asking her for something more to drink. The flight attendant indicates that later he was standing in the galley, forward of Mr. Horchower's seat, when he heard Mr. Horchower fall and saw that he appeared to be unconscious. He states that he moved immediately to sit beside him and ordered other passengers back, with the exception of a physician and a nurse who came to assist him, and that he prepared oxygen while the physician checked for Mr. Horchower's vital signs. The flight attendant recalls that, shortly after receiving oxygen, Mr. Horchower began regaining consciousness and he advised them of his medical conditions "relating to his heart, lungs and circulation" and the numerous medications that he takes for these conditions. The flight attendant adds that, at the request of the physician, he asked the flight director to locate a cardiologist and when the cardiologist came forward, she examined Mr. Horchower, determined that he did not require her assistance, but suggested administering the oxygen until he felt better. The flight attendant confirms that he cleared a row of four seats for Mr. Horchower to lie down on and that he, other members of the cabin crew and the physician continued to check on his condition for the remainder of the flight. The flight attendant asserts that Mr. Horchower took his medication, appeared to be well and left the aircraft during general deplaning, despite being asked to remain on board for wheelchair assistance. Finally, the flight attendant indicates that "[o]ther passengers, including the nurse sitting beside and near Mr. Horchower, commented upon him having consumed too much alcohol, especially in light of his numerous self-claimed medical conditions and medications".

Mr. Horchower replies that the statements made by the two crew members are incorrect. He submits that he finds it interesting that Air Transat suggests that he was in no distress or pain when he left the aircraft, as he states that he had made repeated requests for ice for his lower back following his fall, which was provided to him. Mr. Horchower adds that some passengers on the flight made comments to him such as: "Ils sont gonflés; ils auraient pu arrêter le service pour te donner l'oxygène." ["They've got nerve; they could have interrupted the service to give you oxygen."], "Surtout quand on avait deux docteurs dans l'avion." ["Especially as there were two doctors on board."], and "You must have hurt yourself badly. We heard your fall from the back of the plane."

In addition, in the statutory declaration provided with his reply, Mr. Horchower states that although he ordered three bottles of wine and a bottle of Grand Marnier, the content of each was only approximately 3 oz., he only consumed three bottles of wine over a period of two hours. Mr. Horchower insists that the Grand Marnier was never opened. He adds that he was not experiencing any effects of alcohol consumption, that alcohol consumption has no impact on his medical condition and that he was never advised by a flight attendant or a flight director that he was being refused further alcohol during the flight. Mr. Horchower reiterates that he made three requests for oxygen, all of which were refused; he asserts that he made his first request for oxygen approximately two hours into the flight, after the meal service had been completed and coffee had been served, that his second request for oxygen was made to the same flight attendant 20 minutes later, and that his third request was made by throwing the blanket at a different flight attendant; he preboarded the flight after showing evidence of his disability to the attendant outside of the aircraft; and he requested a wheelchair to exit the aircraft but was refused. He adds that he was told that there were difficulties getting one and that he could simply walk off the aircraft. Finally, he appended a doctor's report from Radiology Consultants Associated dated September 30, 1999 which states that his exam/service on September 28, 1999 indicates that three ribs were fractured.

In the letter dated October 10, 1999 from Mr. Horchower's lawyer to Air Transat, it is asserted that his first request was made four hours into the flight, following a failed attempt to get the attention of the in-flight crew by pressing the call button, that his second request was made to a different flight attendant 15 minutes later, and that his third request was made after throwing a blanket at the first flight attendant 20 minutes later.

Air Transat subsequently filed affidavits sworn by the flight director and the flight attendant, which contained substantially the same information as their statements, with the following exceptions: the flight director's affidavit indicates that Mr. Horchower collapsed 2 hours after he ordered that he stop being served alcohol, that he asked the crew to clear a row of seats for Mr. Horchower, and it does not include anything about his preparation of the Incident Report or the information he received from the flight attendant about Mr. Horchower deboarding on his own; the flight attendant's affidavit indicates that when Mr. Horchower threw the blanket at the other flight attendant, he was asking for an alcoholic drink, that he collapsed approximately half-way through the flight, and it does not include anything about his conversation with Mr. Horchower during his recovery from his collapse regarding his medical problems and his medications or that he self-administered his medication while recovering from his collapse.

Mr. Horchower expresses his opinion that Air Transat's answer relies entirely on two "eyewitness" reports. The flight attendant indicates that his first awareness of Mr. Horchower took place at the time he threw a blanket at a crew member; as such, Mr. Horchower asserts that this person has no knowledge of any of the events preceding that time and that, consequently, he is in no way an "eyewitness". The flight director indicates that he observed Mr. Horchower consume four small bottles of wine and one small bottle of Grand Marnier; however, Mr. Horchower denies consuming "that amount of liquor, or anything close to that". He adds that, in his view, the flight director could not have specific knowledge such as that about a particular passenger and submits that no weight should be given to his evidence.

In response to a request from Agency staff, Air Transat later submitted affidavits of the two flight attendants who had direct contact with Mr. Horchower before his collapse.

In her affidavit, the first flight attendant indicates that she was working with the second flight attendant in the section where Mr. Horchower was seated. She states that Mr. Horchower was constantly requesting alcoholic beverages and that as he became more and more inebriated, the flight director informed him that no other alcoholic beverages would be served to him. According to her, this made Mr. Horchower angry and did not stop him from requesting further drinks. She also states that no request for oxygen was ever made to her by Mr. Horchower; rather, she states that Mr. Horchower only wanted more drinks.

The flight attendant also states that she witnessed Mr. Horchower throw a blanket at the second flight attendant. She states that at that time Mr. Horchower became aggressive. She states that although she did not witness Mr. Horchower collapse, she heard a loud noise and, upon exiting the kitchen where she had been standing, she saw Mr. Horchower lying unconscious in the aisle. With the help of her colleagues, they moved Mr. Horchower to the front of the aircraft.

In her affidavit, the second flight attendant indicates that she was working with the first flight attendant in the section where Mr. Horchower was seated. She recalls that Mr. Horchower requested alcoholic beverages on several occasions, which were served to him, and that the flight director subsequently decided to serve no other alcoholic beverages to Mr. Horchower as he was inebriated. She states that this "obviously made him angry" and that he continued to request alcoholic beverages despite being advised that he would not be served any more. She indicates that she later passed on a request from Mr. Horchower to the flight director that the temperature be lowered in the cabin.

The flight attendant asserts that she was later struck in the back by a blanket thrown by Mr. Horchower, who explained "in an unfriendly tone" that he wanted to get her attention in order to get a glass of water. She asked that he use the call button to draw her attention and then brought him a glass of water. She states that a few moments later, he indicated to her that "he was very warm and that he had health problems which necessitated oxygen". The flight attendant states that this was the first request that Mr. Horchower made to her for oxygen and that she went directly to the front of the aircraft to request permission to use oxygen. When she returned with the oxygen, Mr. Horchower had already collapsed. One of the other flight attendants was already assisting him and they requested the services of a doctor. They moved Mr. Horchower to the front of the aircraft once they received authorization from the physician to do so.

Air Transat states that these affidavits, as well as the affidavits of the flight director and the other flight attendant, support the statement of facts established by Air Transat, including that the excessive consumption of alcoholic beverages by Mr. Horchower may have caused his fainting and that he only requested oxygen once immediately before he fainted.

Air Transat also provided the Agency with an affidavit of a passenger seated near Mr. Horchower who also witnessed the incident. In this affidavit, the passenger submits that, at the time of boarding, she noticed that the passenger sitting behind the person occupying the seat to her left was very noisy and exuberant. She states that she later found out that this passenger was Mr. Horchower. According to her, she does not remember hearing any request for oxygen from Mr. Horchower and as soon as he collapsed, the flight attendants went to help him and they brought him to the first class section. She submits that she is extremely satisfied with the service provided by Air Transat's flight attendants.

Mr. Horchower submits that this passenger's affidavit should be disregarded as she described the passenger seated in 20A, while the seat he occupied was 20D.

Mr. Horchower submits that Air Transat's staff may have assumed or thought that he had too much to drink, while he was actually starting to have some medical and physical problems relating to the oxygen deprivation from his sarcoidosis condition, and their refusal to provide oxygen is inexcusable when it is based upon an assumption that is not investigated. According to Mr. Horchower, all they had to do was investigate or inquire into the reason for his request for oxygen and this whole matter would never have arisen. He adds that one of the affidavits clearly indicates that one of the attendants had little or no training related to first-aid administration of oxygen as she felt that she had to seek permission before providing him with the requested oxygen.

OTHER EVIDENCE

The physician who attended to Mr. Horchower after his collapse provided information on the incident, at the request of Agency staff. He indicates that approximately three hours before arrival of the flight in Paris, he heard a loud "thump" sound approximately three seats behind his, in the area adjacent to the galley. When he saw that a man had collapsed, he immediately went to assist the person. The physician states that when he turned the man over, the man began to make some laboured shallow breaths, and he became increasingly alert. The physician submits that from the moment of the collapse, an Air Transat flight attendant was in attendance and oxygen was immediately made available and administered by a mask.

The physician advises that he obtained the passenger's medical history from him, in particular, that he has sarcoidosis involving the lung and that he had experienced collapses before, and discussed his cardiac status. The physician also indicates that some collaborative history was obtained from passengers sitting next to him, that he had been drinking alcohol heavily during the flight. He discussed the case with a cardiologist who presented herself in response to a request for assistance from the flight crew and they agreed that his primary problem was pulmonary and not cardiac and, thus, the passenger was left in his care.

The physician adds that the flight attendants asked him for direction in the ongoing care of Mr. Horchower for the remainder of the flight and that they offered to move three or four passengers out of a row to allow for a lateral, bed-like surface. With the physician's agreement, they performed this task and Mr. Horchower was moved to the row immediately behind the physician's seat so that he could attend to him for the rest of the flight.

He states that, for the remainder of the flight, Mr. Horchower rested, either lying down or sitting up, and used oxygen periodically. He noted that Mr. Horchower was able to disembark under his own strength in Paris.

The physician submits that "the care provided by the flight crew was prompt and exemplary".

Finally, the physician added a discussion of sarcoidosis and offered the opinion that "A respiratory condition that requires oxygen usually implies severe pulmonary compromise. The use of oxygen on a periodic basis is rarely appropriate, but one could envisage an individual with borderline pulmonary function, traveling on a commercial airlines at altitude (albeit pressurized) becoming compromised and benefiting from oxygen. However, it would be essential for this to be specifically recommended by a specialist such as a respirologist with appropriate previous warning given to the airlines. In these circumstances the patient would bring their own oxygen. It is inappropriate for just anyone to request oxygen on personal demand....From my recollection of the history this patient gave me, this was not the first time he had had difficulties with his lungs, indeed he wore a medical alert bracelet with this diagnosis. He should have sought appropriate medical advice and taken precautions prior to the flight. If the patient had indeed been consuming a significant amount of alcohol, there would be all the more reason for flight crew to be wary of responding to what may have appeared to be inappropriate requests.".

In response to the physician's statement, Mr. Horchower indicates that he is very troubled by the failure of Air Transat to locate the passengers who were sitting in the seats beside him, as they are, in Mr. Horchower's view, clearly the only real witnesses to the relevant matters leading up to his collapse. He adds that Air Transat's failure to obtain their statements, and its reliance only upon attendants who had no direct knowledge of the matter, is deeply troubling. According to Mr. Horchower, the physician has no knowledge of what, if any, drinks he had. Mr. Horchower submitted a copy of a note written by the physician immediately following the incident, in which the physician enumerated the events that occurred and the actions he took. Mr. Horchower alleges that this supports that the physician was concerned with Mr. Horchower's health and he points out that the physician did not refer/allude to his alcohol consumption or symptoms in this note. Mr. Horchower states that, more importantly, the observations contain no suggestion that he remained or appeared to be intoxicated after he received oxygen. Once he received the oxygen, his recovery was complete, with the exception of the physical injuries he sustained.

Another passenger provided information on the incident at the request of Agency staff. The passenger indicates that he observed an individual "throwing a blanket in the general direction at the crew member near the galley". He states that, shortly after this incident, the same individual left his seat, took only one or two steps towards the galley and collapsed on the floor in front of him. This passenger indicates that he and a physician attended to him almost immediately. They turned him over and the doctor asked that oxygen be administered, which oxygen was provided by the crew and administered. He confirms that a call was made for a cardiologist; he recalls that a nurse who specializes in this area came forward and commented to him that this was most likely a "pre-existing condition". The passenger indicates that Mr. Horchower regained consciousness, appeared to be in stable condition and was moved to the last row forward of the galley so that he could lie down. He states that he was attended by the physician throughout the flight and remained on oxygen the whole time. He submits that the individual in question "consumed upwards of four bottles throughout the flight".

This passenger states that once they arrived in Paris, he noted that Mr. Horchower was ambulatory again and that he "even pushed his wa[y] in front of me to get on the bus to the terminal".

He concludes that he "observed no lack of attention or care by the airline to this particular passenger".

Air Transat is of the view that this passenger's statement supports its position that Mr. Horchower was inebriated in that the passenger seems to first recall seeing Mr. Horchower at the bar in the airport in Calgary prior to departure and confirmed that Mr. Horchower was belligerent upon landing in Paris.

Mr. Horchower is of the view that this passenger's statement supports his position on the events leading up to his collapse, including the timing between when he threw the blanket at the flight attendant and the time when he collapsed. Mr. Horchower denies that he was in the bar at the airport in Calgary prior to departure and the allegation that he was inebriated. With respect to the allegation that he was belligerent when the aircraft landed. Mr. Horchower comments that he was in severe pain at the time and simply wanted to get off the airplane and seek medical attention.

ANALYSIS AND FINDINGS

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

An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. Horchower has a history of sarcoidosis, a medical condition which sometimes requires him to use oxygen when he travels by air and, as such, is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.

Whether the applicant's mobility was restricted or limited by an obstacle

The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federally-regulated transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.

In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.

The case at hand

The Agency had identified three separate level of service issues in Mr. Horchower's application: the level of service provided to Mr. Horchower prior to his collapse, after his collapse and upon deboarding.

1. The level of service provided prior to Mr. Horchower's collapse

The Agency notes that there is a marked disagreement between Mr. Horchower and Air Transat regarding what transpired before Mr. Horchower's collapse in the aircraft.

The evidence submitted by Air Transat and the statements received from both the physician and the other passenger all tend to support the position of Air Transat in this regard: that Mr. Horchower was drinking alcohol, that Mr. Horchower was a difficult passenger, and that Mr. Horchower collapsed.

The carrier acknowledged that Mr. Horchower made a request for oxygen, but that there was only one request of this nature made and that the flight attendant was in the process of responding to the request when Mr. Horchower collapsed. The flight attendants who served Mr. Horchower on that flight indicated that all other requests were for alcoholic drinks save a comment about the temperature of the cabin and a request for water. The flight director indicated that he first became aware of Mr. Horchower when he requested an alcoholic drink 20 to 25 minutes into the flight and that he later made the decision to stop serving Mr. Horchower alcohol. The flight attendants working in Mr. Horchower's section of the aircraft confirmed that this decision was conveyed to Mr. Horchower.

Mr. Horchower claimed that he made three requests for oxygen before he collapsed; however, his evidence is inconsistent both on when the requests were made and to whom they were made. He initially reported to the Agency that his first request for oxygen was refused, that his second request was refused 45 minutes later, and that his third request was made after throwing the blanket at the flight attendant 15 or 20 minutes after the second request. However, in the letter dated October 10, 1999 from his lawyer to Air Transat, it is asserted that his first request was made four hours into the flight, following a failed attempt to get the attention of the in-flight crew by pressing the call button, that his second request was made to a different flight attendant 15 minutes later, and that his third request was made after throwing a blanket at the first flight attendant 20 minutes later. In his statutory declaration, Mr. Horchower asserted that he made his first request for oxygen approximately two hours into the flight, after the meal service had been completed and coffee had been served, that his second request for oxygen was made to the same flight attendant 20 minutes later, and that his third request was made by throwing the blanket at a different flight attendant.

Although the other two flight attendants who witnessed Mr. Horchower throwing the blanket at the flight attendant thought that Mr. Horchower was trying to get her attention to order another alcoholic drink, the flight attendant who was hit recalled that Mr. Horchower requested a glass of water.

There is no evidence to support Mr. Horchower's position that he made repeated requests for oxygen which were denied by the in-flight crew. The evidence of the flight attendants who served him that day indicates that they did not receive repeated requests for oxygen from Mr. Horchower. When the flight attendant did receive a request for oxygen, she stated that she sought the permission to do so.

There is, however, agreement by the parties that Mr. Horchower was consuming alcohol on the flight. While there is disagreement between the parties on the amount of alcohol consumed by Mr. Horchower on the flight, the evidence indicates that it was in quantities that the in-flight crew viewed as excessive and the physician saw cause to note on the Incident Report.

On balance, the Agency accepts the position of Air Transat, as supported by the evidence submitted by the carrier, that Mr. Horchower made one request for oxygen which the flight attendant was in the process of responding to when the passenger collapsed. While this incident was most unfortunate and there is no doubt that Mr. Horchower suffered a collapse and pain as a result of his medical condition, the Agency cannot find that this was, in any way, as a result of the actions of the carrier's personnel. As such, the Agency is of the view that the level of service provided to Mr. Horchower prior to his collapse by Air Transat's personnel did not constitute an obstacle to his mobility.

The Agency is of the view that, where a person knows that his or her disability could result in a need for special accommodation in order to avoid a medical emergency while in transit, the person has a responsibility to identify this potential need for accommodation to the carrier prior to travelling in order to allow the carrier to be prepared to meet the person's needs should they arise. The reasonableness of this position is obvious and is supported by the statement of the physician in this case.

2. The level of service provided after Mr. Horchower's collapse

Mr. Horchower stated in his application that he was dissatisfied with the level of assistance provided to him by carrier personnel after his collapse. He indicated that "[d]espite my weakened condition, Air Transat did not provide any other assistance for the remainder of the flight".

The Agency notes that there is considerable evidence on file to show the contrary. Air Transat submitted affidavits from four members of the in-flight crew, the flight director and three flight attendants, and from a passenger who was seated near Mr. Horchower. Furthermore, the Agency obtained statements from the physician who cared for Mr. Horchower after his collapse and from another passenger who assisted the physician. The Agency notes that all of this evidence is, for the most part, consistent with respect to the level of assistance provided to Mr. Horchower after his collapse and the Agency accepts it as fairly and accurately describing what occurred.

It is understandable that Mr. Horchower may not have been aware of the level of assistance provided to him after his collapse as he was recovering from a brief period of unconsciousness. Following his review of the evidence, Mr. Horchower did acknowledge aspects of the care provided to him after his collapse, including the assistance of both the physician and the passenger who assisted the physician, the administration of oxygen for the remainder of the flight, and the clearing of a row of seats near the physician so that he could lie down and be monitored.

The Agency notes that, following Mr. Horchower's collapse, members of the in-flight crew took immediate action to assist Mr. Horchower and they provided whatever assistance the physician requested, including locating a cardiologist for a consultation. Accordingly, the Agency is of the view that the level of care provided to Mr. Horchower after his collapse was reasonable in the circumstances and, thus, did not constitute an obstacle to his mobility.

3. The level of service provided to Mr. Horchower at the time of deboarding

In his application, Mr. Horchower stated that Air Transat refused to provide wheelchair assistance for deboarding at the airport in Paris. He later submitted that he was informed that there were difficulties in obtaining a wheelchair and that he could simply walk off the aircraft. Furthermore, in answer to one passenger's allegation that Mr. Horchower was rude to him in pushing past him to board the bus to get from the aircraft to the terminal, Mr. Horchower acknowledges that he was in a hurry to deboard as he was in pain and wanted to seek medical attention.

Air Transat submitted that its policy, where a passenger suffers a loss of consciousness on a flight, is to provide wheelchair assistance for deboarding. The affidavit of the flight director indicates that he asked the captain to forward this request to the airport in Paris and that he advised Mr. Horchower to remain on the aircraft while the other passengers deboarded so that wheelchair assistance could be provided to him. He indicated that he was later advised by another flight attendant that Mr. Horchower had decided to deboard the aircraft on his own with the rest of the passengers as he was feeling better. The affidavit of one of the flight attendants indicates that he, too, advised Mr. Horchower to remain on the aircraft so that wheelchair assistance could be provided to him.

On balance, the Agency accepts that Mr. Horchower deboarded the aircraft on his own before the carrier had an opportunity to provide the wheelchair assistance and, as such, the level of service provided to Mr. Horchower at the time of deboarding did not constitute an obstacle to Mr. Horchower's mobility.

Compensation

Subsection 172(3) of the CTA provides that:

On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.

Accordingly, in this case, the Agency has concluded that there were no obstacles to Mr. Horchower's mobility and, as such, he is not entitled to compensation under subsection 172(3) of the CTA.

CONCLUSION

In light of the above findings, the Agency has determined that there were no obstacles to Mr. Horchower's mobility and, consequently, no corrective measures or compensation will be ordered.

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