Decision No. 634-AT-A-2007

December 14, 2007

File No. U3570/07-23

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APPLICATION

[1] On May 24, 2007, Elizabeth Hardy filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. Air Canada filed its answer to the application on August 3, 2007, and Ms. Hardy filed her reply on August 28, 2007. Further submissions and information were provided by the parties.

[2] 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 December 31, 2007.

PRELIMINARY MATTER

[3] Pursuant to subsection 172(3) of the CTA, the Agency may, on determining that there is an undue obstacle to the mobility of a person with a disability, require the taking of appropriate corrective measures and/or direct that compensation be paid for any expense incurred by that person arising out of the undue obstacle. The Agency cannot however order fines for misconduct or award compensation for damages and therefore will not consider Ms. Hardy's claims in this regard.

ISSUES

[4] The issues to be addressed are:

• whether Ms. Hardy is a person with a disability for the purpose of applying the accessibility provisions of the CTA; and,
• whether the manner in which Air Canada responded to Ms. Hardy's request to be reseated because the passenger seated next to her smelled of smoke constituted an undue obstacle to her mobility, and if so, what corrective measures should be taken.

FACTS

[5] Ms. Hardy's family physician explains that Ms. Hardy has a history of asthma, which manifests itself as coughing, shortness of breath and wheezing, and is usually precipitated by exposure to strong smells such as cigarette smoke, colognes, perfumes or chemicals, but can be also be triggered by exercise. Her physician adds that when Ms. Hardy develops asthma secondary to smells, the first treatment is to remove her from the source of the smell; after which, she is usually treated with inhalers.

[6] Ms. Hardy travelled on Air Canada Flight No. AC1047 from Dallas, Texas, United States of America to Toronto, Ontario, Canada on May 24, 2007 with a colleague and his wife. She was assigned aisle seat 20C in the Economy Class cabin, which was fully occupied, with the exception of two crew seats in row 27, reserved for the flight attendant and Service Director.

[7] Ms. Hardy did not advise Air Canada in advance of travel of her medical condition or possible related seating needs.

[8] After reaching altitude, Ms. Hardy approached the flight attendant to request a different seat assignment as the passenger seated next to her smelled heavily of smoke. Ms. Hardy inquired about the possibility of occupying one of the two empty seats in row 27. The flight attendant denied the request as these seats were reserved for the crew, and later called on the Service Director to address the situation. During discussions with the Service Director, Ms. Hardy indicated that she has asthma and, ultimately, she was moved to Economy Class seat 14C.

ANALYSIS AND FINDINGS

[9] The Agency must first determine whether the evidence supports a conclusion that Ms. Hardy is a person with a disability and that she encountered an obstacle while travelling with Air Canada from Dallas to Toronto on May 24, 2007.

Is Ms. Hardy a person with a disability?

[10] Ms. Hardy submits that she has asthma which is usually triggered by strong smells such as cigarette smoke, colognes, perfumes or chemicals, as confirmed in a letter from her doctor. She adds that this is the non-allergic version of asthma. Further, Ms. Hardy submits that she is a person with a disability for the purposes of Part V of the CTA based on: the letter from her doctor which confirms that she has asthma; recognition from the Americans with Disabilities Act that asthma is a disability; the Asthma Society of Canada's statement that asthma and allergies are related, but are not the same thing; confirmation on the Web sites of the Asthma Society of Canada and the Asthma and Allergy Foundation of America that asthma causes difficulty in breathing; and, the World Health Organization dimensions of disability with respect to asthma.

[11] Air Canada explains that the description provided by Ms. Hardy's doctor that she may experience or suffer from coughing, shortness of breath and wheezing, "are not allergic reactions per se, i.e., non-allergic asthma". Air Canada adds that these symptoms along with the description of the events that occurred on May 24, 2007 are insufficient to conclude that Ms. Hardy is a person with a disability for the purposes of Part V of the CTA.

[12] With respect to the determination as to whether Ms. Hardy is a person with a disability for the purpose of applying the accessibility provisions of the CTA, the Agency has in the past, in obvious situations, made determinations that a category of persons are persons with a disability for the purposes of Part V of the CTA. Where there is a clear disability, there is no need to examine the underlying health condition to conclude that a person is a person with a disability for the purposes of Part V of the CTA.

[13] The Agency has endorsed a methodological approach to the determination of the existence of disability in cases where the existence of a disability is not obvious or apparent as the underlying health condition presents a wide spectrum of experience with a range of severity of symptoms and mobility limitations that prevents the Agency from determining the existence of a disability simply from the existence of the condition. The Agency applied such an analysis to cases involving persons with allergies. In Decision No. 243-AT-A-2002 dated May 10, 2002, the Agency concluded that an allergy, per se, is not a disability for the purposes of Part V of the CTA. However, 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, which can be attributed to their allergies. 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."

[14] Although the Agency accepts Ms. Hardy's evidence that she has a history of asthma, the Agency is of the opinion that Ms. Hardy's health condition would require further evidence to enable the Agency to make a determination as to whether she is a person with a disability for the purpose of applying the accessibility provisions of the CTA. In light of the distinct nature of this case, the Agency's decision as to whether it must seek additional information or expert evidence in this regard will be dictated by its conclusion as to whether Ms. Hardy encountered an obstacle when she travelled with Air Canada.

Was Ms. Hardy's mobility restricted or limited by an obstacle?

[15] As noted above, the Agency is of the opinion that whether additional information or expert evidence regarding Ms. Hardy's condition is necessary is dependent on whether the evidence on file supports a conclusion that the manner in which Air Canada responded to Ms. Hardy's request to be reseated because the passenger seated next to her smelled of smoke constituted an obstacle to her mobility.

The Agency's approach to the determination of obstacles

[16] Under Part V of the CTA, the mandate of the Agency is to eliminate undue obstacles to the mobility of persons with disabilities from the federal transportation network. The word "obstacle" is not defined in the CTA, but lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement. Obstacles or barriers to the mobility of persons with disabilities may result from, for example, federal transportation service providers' facilities; equipment; and/or policies, procedures, or practices; or a failure by transportation service providers to comply with such and/or to take positive action to enforce compliance with policies, procedures and practices, including a failure to provide appropriate training to employees and contractors.

[17] In considering whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency generally will look to the incident described in the application to determine whether the applicant has established in the application (that is, on a prima facie basis) that:

• a distinction, exclusion or preference resulted in an obstacle to the mobility of a person with a disability;
• the obstacle was related to the person's disability; and,
• the obstacle discriminates by imposing a burden upon, or withholding a benefit from a person with a disability.

[18] An individual is not required to have experienced difficulties in travel in order to make an application to the Agency under Part V of the CTA such that the design of facilities and equipment or the proposed application of a policy in the future may trigger its jurisdiction.

[19] 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 and, thus, have a negative impact on the mobility of the person.

The case at hand

[20] As the evidence of the parties concerning the events that occurred on May 24, 2007 is often contradictory, the Agency must decide whether Ms. Hardy has provided sufficient evidence to outweigh the opposing evidence presented by Air Canada.

[21] In any dispute, it is important to determine which party has the obligation to prove a point in contention. In civil matters, the general rule is that the applicant bears a legal burden of persuasion and is therefore required to establish, on the balance of probabilities, that is, on the preponderance of the evidence, that his or her version is the correct one. This principle is equally applicable to allegations of obstacles under Part V of the CTA. The onus is therefore on Ms. Hardy to satisfy the Agency that her version of events is more probable than Air Canada's version.

Discussions prior to the seat reassignment

[22] Ms. Hardy states that before take-off, she noticed a very heavy smell of cigarette coming from the passenger seated next to her in seat 20A and that his air vent was on, which aggravated the smell. Ms. Hardy submits that she turned her air vent on and pointed it at her face in an attempt to remove the odour and breathe more easily, and that after reaching cruising altitude, she approached the flight attendant to request a different seat.

[23] According to Ms. Hardy, when her seating request was denied, she returned to her seat and tried to turn her head to the aisle to breathe. Ms. Hardy submits, however, that the tightening in her chest continued and, as such, she moved to row 27. Ms. Hardy further submits that when the flight attendant approached the galley, she again asked for a seating change, this time explaining that she has asthma and is allergic to smoke, information which Ms. Hardy had not previously provided to the flight attendant. Ms. Hardy indicates that she also told the flight attendant that she was experiencing breathing difficulties due to the heavy smell of smoke from the man seated next to her. Ms. Hardy notes that the flight attendant repeated that she could not sit in row 27, but that she would consult with the Service Director. Ms. Hardy advises that the Service Director came back to the galley, at which time she repeated her condition and added that she was experiencing tightening in her chest and that she did not have her puffer. Ms. Hardy indicates that she referred to a similar situation where she had removed herself from the irritant and had gotten fresh air, and advised that if this did not remedy the situation, as had occurred in the past, she would require oxygen and would tell the Service Director if this was necessary.

[24] The Service Director, however, submitted a different version of events in her signed statement, which Air Canada filed with the Agency. The Service Director indicates that Ms. Hardy did not mention her asthma or tightening in her chest until after she insisted on a Business Class seat and was refused, which Ms. Hardy denies.

[25] Ms. Hardy maintains that, instead of accommodating her seating request, the Service Director asked her why she did not have her puffer, to which she provided an explanation. Ms. Hardy asserts that the Service Director told Ms. Hardy that she was a liability to the carrier, to which Ms. Hardy replied that the liability was with the Service Director as she has a medical condition and the Service Director was refusing to accommodate her request.

[26] Conversely, the Service Director states that she inquired as to whether Ms. Hardy needed first aid and whether she had an asthma puffer or medication with her, and asserts that Ms. Hardy replied "no to everything and said she has been told that the puffer could explode in flight", which Ms. Hardy denies. According to the Service Director, Ms. Hardy then started to verbally threaten her with statements regarding the carrier's liability in the event she was to have an "asthma attack", which Ms. Hardy denies.

[27] On the one hand, Ms. Hardy submits that after a back and forth discussion with the Service Director on various other matters, she started to cry and told the Service Director that she was upset because she was refusing to change her seat and was putting her health at risk. Ms. Hardy further submits that the Service Director then stated that Ms. Hardy had not given her a chance to address the issue and walked away. The Service Director, on the other hand, states that Ms. Hardy began crying following her objections to Ms. Hardy's statements regarding the carrier's liability. According to the Service Director, Ms. Hardy stated that the Service Director was harassing her, which Ms. Hardy denies. The Service Director submits that she asked Ms. Hardy to sit in the crew seat while she found her another seat. Ms. Hardy was then relocated from seat 20C to seat 14C.

Discussions following the seat reassignment

[28] The Agency notes that there are further discrepancies in the evidence presented by Ms. Hardy and the Service Director with respect to the various discussions that occurred after Ms. Hardy was reseated.

[29] On the one hand, Ms. Hardy submits that the Service Director approached her to ask for personal information, including her medical condition, to complete an incident report. Ms. Hardy submits that during these discussions, the Service Director also asked whether she would be going to the hospital, to which she indicated that she would if she continued to have chest pains after landing but, for the time being, she was stable as she was away from the smell of smoke. Ms. Hardy adds that the Service Director repeatedly insisted on an ambulance upon landing but Ms. Hardy explained that she had her vehicle at the airport and she was capable of driving herself. According to Ms. Hardy, when she repeated her refusal for an ambulance and indicated that she was fully able to make the decision regarding her health, the Service Director stated that she would notify the Captain and let him decide.

[30] The Service Director, on the other hand, states that during the beverage service, she asked how Ms. Hardy was feeling and was told that her chest was tightening. Ms. Hardy denies making such a statement, indicating that the tightening was stabilizing; she was away from the asthma trigger; and it had been over one hour since she had been relocated to seat 14C.

[31] The Service Director indicates that she then inquired about Ms. Hardy's medical needs, to which Ms. Hardy responded that she would be going to the hospital upon landing and that if anything happened to her on the way to the hospital, Air Canada would be liable. The Service Director submits that she asked Ms. Hardy further questions concerning her medical needs and Ms. Hardy became aggressive and made various statements. The Service Director states that Ms. Hardy was advised that it was the staff's duty to inform the Captain of any "ill" passenger in case the passenger's condition worsened and that, as Service Director, she had done so.

[32] The Service Director indicates that she asked Ms. Hardy whether she wore a medic alert bracelet and whether she had allergies to medication, etc. in the event that this information had to be communicated to "STATMD" if her condition worsened before landing. Ms. Hardy asserts that the Service Director did not mention anything about "STATMD" or calling a medical service.

[33] In addition to the foregoing discrepancies in Ms. Hardy's and the Air Canada Service Director's version of events, the Agency notes that Ms. Hardy and the Service Director also disagree on their subsequent discussions surrounding the requirement that Ms. Hardy receive medical clearance for future travel. Air Canada advises that the discussions that took place between Ms. Hardy and the Service Director prompted the latter to report to the Captain Ms. Hardy's non-compliance with Air Canada procedures and the police were called to meet the flight on arrival at the Toronto-Lester B. Pearson International Airport (hereinafter the Toronto airport).

[34] In response, Ms. Hardy denied many of Air Canada's allegations, including that she had advised that she would be proceeding to the hospital upon landing, had threatened the crew with a lawsuit, had refused the carrier's accommodation, had become aggressive and had not complied with the carrier's procedures.

[35] Although Ms. Hardy requested and was granted a forty-five-day extension to provide notes from the police officer who met her flight concerning the incident as well as statements from a colleague and his wife who witnessed the events, her subsequent submission included only notes from the police officer. Ms. Hardy verbally confirmed to Agency staff that statements from the two passengers would not be forthcoming as she considered the police notes, as described below, sufficient to make her case.

Finding

[36] Notwithstanding the above discrepancies in the evidence provided concerning the manner in which Air Canada responded to Ms. Hardy's request to be reseated, the Agency notes that Ms. Hardy was assigned another seat by Air Canada, away from the passenger seated next to her who smelled of smoke, when she mentioned her medical condition to the carrier's personnel, i.e., on her second attempt to be moved. The evidence on file demonstrates that Ms. Hardy did not inform Air Canada's personnel of her health condition during her first request to be reseated. This conclusion is also supported by the written statement from Air Canada's Service Director. The Agency notes that, upon being informed that Ms. Hardy has asthma and is allergic to smoke, the flight attendant sought the assistance of the Service Director to address the seating request. Ultimately, Ms. Hardy was reseated to seat 14C.

[37] With respect to the description of events that occurred, the Agency must determine which of the different versions of events is more probable.

[38] Both parties were provided with a full opportunity to file any documentation or submissions to support their description of what had transpired on May 24, 2007. Air Canada provided written submissions from the Service Director of the flight and a Lead Agent at Air Canada's Customer Relations Department who had spoken to Ms. Hardy after the incident. Ms. Hardy could have provided a statement from two persons who witnessed the event, but she did not do so even though she mentioned that such a statement would be filed. She instead preferred to rely only on her own statement, which in her view was sufficiently corroborated by the cryptic notes written by the police officer who spoke with her on arrival at the Toronto airport.

[39] In this regard, the notes written by the police officer, obtained by Ms. Hardy under the Municipal Freedom of Information and Protection of Privacy Act, indicate in part: re Elizabeth Hardy; unruly passenger; arguing with the flight attendant; asthma; no criminal action. Given that the police officer's notes provide no information regarding what transpired after Ms. Hardy changed seats, this cannot be considered as supportive of Ms. Hardy's version of the events that took place after she was moved to seat 14C.

[40] On the basis of the evidence presented, the Agency is not satisfied that Ms. Hardy's version of events is sufficiently convincing or that her version is more probable than Air Canada's version.

[41] Accordingly, the Agency finds that the evidence of Ms. Hardy is insufficient to support an inference that the events occurred as she described.

[42] The Agency finds that Ms. Hardy has not met the burden of proof with respect to her allegations in this matter, despite being provided with every opportunity to do so during the pleadings.

[43] In light of the above, the Agency is satisfied that Air Canada met Ms. Hardy's seating needs and therefore finds that the manner in which Air Canada responded to her request to be reseated because the passenger seated next to her smelled of smoke did not constitute an obstacle to Ms. Hardy's mobility. In light of the Agency's finding that the manner in which Air Canada responded to Ms. Hardy's request to be reseated because the passenger seated next to her smelled of smoke did not constitute an obstacle to her mobility, the Agency will not require the further evidence that would be necessary to make a determination as to whether Ms. Hardy is a person with a disability for the purposes of applying the accessibility provisions of the CTA.

[44] Accordingly, the Agency contemplates no further action in this matter.

Members

• Gilles Dufault
• John Scott
• Beaton Tulk