Decision No. 647-AT-A-2006
Follow-up - Decision No. 52-AT-A-2007
November 24, 2006
APPLICATION by Dorreen Henderson pursuant to subsection 172(1) of the Canada Transportation Act, S.C. 1996 c. 10, regarding the process followed by Air Canada in assessing her fitness to travel on round-trip flights between Kelowna and Vancouver, British Columbia.
File No. U3570/06-4
APPLICATION
[1] On February 9, 2006, Dorreen Henderson filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.
[2] In Decision No. LET-AT-A-51-2006 dated February 17, 2006, the Agency requested Air Canada to file its answer to Ms. Henderson's application within 30 days from the date of receipt of the Decision. Ms. Henderson was provided with 10 days from the date of receipt of the carrier's answer to file a reply. On February 27, 2006, Air Canada filed its answer to the application and on March 16, 2006, Ms. Henderson filed her reply to the carrier's answer.
[3] In Decision No. LET-AT-A-51-2006, the Agency also informed Ms. Henderson that it found it appropriate to stay the portion of her application that relates to the cost of Air Canada's oxygen service pending the outcome of the Agency's consideration of a group of other applications that raised the same issue.
[4] In Decision No. LET-AT-A-181-2006 dated July 6, 2006, the Agency required further information from Air Canada. On August 1, 2006, Air Canada requested clarifications, which Agency staff provided on the same day. On August 6, 2006, Air Canada filed its response to Decision No. LET-AT-A-181-2006 and on August 14, 2006, Ms. Henderson filed a reply to the carrier's response. Additional submissions were filed by Air Canada on August 15, 2006 and by Ms. Henderson on August 16 and October 10, 2006.
[5] In Decision No. LET-AT-A-235-2006 dated September 11, 2006, the Agency required further information from Ms. Henderson. On September 19, 2006, Ms. Henderson requested an extension of time which was granted. On September 28, 2006, Ms. Henderson filed her response and on October 9, 2006, Air Canada filed its comments.
[6] 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 29, 2006.
PRELIMINARY MATTER
[7] Although Ms. Henderson's reply to Air Canada's answer was filed after the prescribed deadline, the Agency, pursuant to section 4 of the Canadian Transportation Agency General Rules, SOR/2005-35 (hereinafter the General Rules), accepts the submission as being relevant and necessary to its consideration of this matter. Further, the Agency, pursuant to section 4 of the General Rules, accepts Air Canada's August 15, 2006 submission, as well as Ms Henderson's August 16 and October 10, 2006 submissions, even though they were filed after the close of pleadings.
ISSUE
[8] The issue to be addressed is whether the process followed by Air Canada in assessing Ms. Henderson's fitness to travel constituted an undue obstacle to her mobility and, if so, what corrective measures should be taken.
FACTS
[9] Ms. Henderson has chronic obstructive pulmonary disease (hereinafter COPD), cor pulmonale and lymphocytic vasculitis. Ms. Henderson uses medical oxygen on a regular basis and uses crutches or a walker.
[10] In October 2005, Ms. Henderson made arrangements to travel with Air Canada on December 18, 2005 from Kelowna to Vancouver, returning on an Air Canada code-share flight that was operated by Jazz Air LP, represented by its general partner, Jazz Air Holding GP Inc. carrying on business as Air Canada Jazz on December 26, 2005.
[11] A letter from Ms. Henderson's physician, Dr. Ramesh Sharma dated November 14, 2005, sets out that Ms. Henderson has COPD requiring oxygen but that she should be able to cope without it for the duration of the flights.
[12] Air Canada's policy sets out that medical approval is necessary for persons with COPD and persons who require oxygen and that the person's doctor must complete Air Canada's Fitness for Air Travel Medical Information form (hereinafter the FFT form), which is required by Air Canada's Medical Services before they can travel. On December 8, 2005, Air Canada sent an FFT form to Dr. Sharma who completed and returned it to Air Canada on December 12, 2005.
[13] In addition to addressing Ms. Henderson's conditions, including COPD, the completed FFT form specifies that:
- Ms. Henderson's present symptoms and severity are stable; she is able to cope without oxygen for several hours at a time;
- a 25 percent to 30 percent reduction in the ambient partial pressure of oxygen will not affect Ms. Henderson's medical condition and/or such a reduction in pressure will not result in hypoxia (a deficiency of oxygen reaching the tissues of the body);
- Ms. Henderson experiences shortness of breath on exertion;
- Ms. Henderson uses oxygen at home at a flow rate of 3 liters per minute intermittently;
- oxygen is not needed in flight; and
- Ms. Henderson is able to walk without assistance and uses crutches or a walker.
[14] Dr. Sharma also completed the portion of the FFT form titled "Chronic Pulmonary Condition" next to which he checked the "Yes" option and noted that:
- Ms. Henderson has not had recent arterial gases;
- she does not retain carbon dioxide;
- her condition has not recently deteriorated;
- she can walk 100 metres at a normal pace or can climb 10-12 stairs without symptoms; and
- she has never taken a commercial aircraft in these same conditions.
[15] Dr. Sharma also sets out in the FFT form that this is a relatively short trip and, therefore, no problem was anticipated.
[16] Ms. Henderson's Passenger Name Record for her reservation sets out that she was approved by Air Canada's clinic to travel subject to her using oxygen at a flow rate of 4 liters per minute and for wheelchair assistance. It also sets out that Air Canada informed Ms. Henderson on December 13, 2005 that she was required to travel with the carrier's oxygen service at a round-trip cost of $300. Ms. Henderson paid for and used the oxygen service on the round-trip flights between Kelowna and Vancouver.
POSITIONS OF THE PARTIES
[17] Ms. Henderson states that she can go for up to 1 or 2 hours without oxygen when necessary, especially if she remains seated, and that she spoke to her physician, Dr. Sharma, about travelling by air without oxygen. Ms. Henderson submits that Dr. Sharma agreed that this should not be a problem, as set out in his letter.
[18] Ms. Henderson states that approximately two weeks prior to travel, in response to inquiries by the carrier, she informed Air Canada that she uses oxygen and has COPD, but that she had a letter from her doctor stating that she could travel by air for the 55-minute flight without oxygen as her daughter would be meeting her in Vancouver with an oxygen tank. Ms. Henderson submits that Air Canada informed her that it would send a form to her doctor which he must complete and that, following its completion, Air Canada's medical team would make a decision as to whether she could travel without oxygen. Ms. Henderson states that Air Canada informed her that Dr. Sharma's letter was not sufficient to show that she did not require oxygen on board its flights. Ms. Henderson believes that her physician knows her medical condition better than doctors who have never seen or treated her.
[19] Ms. Henderson states that after her telephone conversation with Air Canada, she became stressed because her grandchildren were anticipating her visit for Christmas, which she was also eagerly anticipating until she received the call from Air Canada. Ms. Henderson submits that three days before her departure flight, Air Canada informed her that she would have to use oxygen at a flow rate of 4 liters per minute during the flight and prepay the $300 fee, otherwise her reservation would be cancelled. Ms. Henderson states that she agreed to purchase the oxygen to avoid disappointing her grandchildren.
[20] Air Canada submits that the FFT form, completed by Ms. Henderson's physician, confirmed her inability to travel by air without oxygen. Air Canada asserts that the required flow of oxygen was determined to be 4 liters per minute.
[21] Air Canada submits that the aircraft altitude can be as high as 8000 feet, leading to a reduction of available oxygen of about 30 percent. Air Canada explains that the average healthy individual tolerates such reductions by physiological mechanisms of increased ventilation and/or deeper breaths. In considering a potential need for in-flight medical oxygen, Air Canada states that it considers the person's medical condition on the ground and the particular environment of the aircraft cabin while in altitude, which is a hypoxic environment. Air Canada states that, although most individuals can become acclimated to a hypoxic environment, it is more difficult for passengers with respiratory disorders. Air Canada points out that in Ms. Henderson's case, she has COPD and already uses oxygen intermittently on the ground.
[22] Air Canada submits that the statement made by Ms. Henderson's physician that "she should be able to cope without oxygen" is indicative of a misunderstanding of the aircraft cabin environment. Air Canada states that it feared that, without oxygen in the cabin, Ms. Henderson could become severely ill which could require an emergency landing. Air Canada states that such circumstances affect all the other passengers.
[23] Air Canada explains that its Occupational Health Services (hereinafter ACOHS) employ licensed physicians and nurses, and the physicians are certified and appointed by Transport Canada as Civil Aviation Medical Examiners. The Transport Canada training provided to the physicians includes the particularities of the cabin environment, the hypoxic environment and the confined space, and additionally, a considerable number of the physicians have received "flight surgeon" training from the Canadian Military, which provides a more in-depth knowledge of the effects of hypoxia on the human body.
[24] Air Canada states that if its medical clinic disagrees with the conclusion of the passenger's physician, its ACOHS physician will communicate with the passenger's physician to discuss the matter and that, most often, the passenger's physician is not familiar with the particularities of the hypoxic cabin environment or the type of dispensed oxygen provided. Further, in the overwhelming majority of cases, the discussion between the ACOHS physician and the passenger's physician will result in an agreement as to what is required. In the case of a discrepancy, Air Canada will always choose the more cautious behaviour.
[25] In this regard, Air Canada submits that there was a verbal communication between ACOHS and Dr. Sharma, but states that it could not find the specific note of the conversation. Air Canada refers to its Occupational Health Services Medical Clearance form (hereinafter the medical clearance form) that states "MD office aware and agrees with O2 at 4 LPM", and indicates that this form was completed by an ACOHS employee. Air Canada explains that "because the condition of travel was different to that requested by her medical provider, this was communicated by the Vancouver ACOHS staff to such provider who, from the note on the medical clearance form, agreed with the findings". However, in a subsequent submission, which was in response to a letter from Dr. Sharma where he confirmed that all correspondence with Air Canada regarding Ms. Henderson was via facsimile only, Air Canada submits that the note on the medical clearance form indicates a bilateral exchange between an ACOHS nurse and someone at Dr. Sharma's office, which may not have been Dr. Sharma himself, and which resulted in the conclusion that there was an agreement as to the required level of oxygen.
[26] Ms. Henderson states that as she had no choice, and was forced to purchase Air Canada's on-board medical oxygen if she wished to travel, she used the oxygen at a flow rate of 2 liters per minute for the entire trip. She submits that she has cor pulmonale and, as a result, too much oxygen is of more danger to her than too little. Ms. Henderson explains that this is something Dr. Sharma took into consideration when allowing her to travel by air without oxygen. She states that he certainly never agreed to her travelling by air subject to her using oxygen at the flow rate of 4 liters per minute.
ANALYSIS AND FINDINGS
[27] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
[28] An application must be filed by a person with a disability or on behalf of a person with a disability. In the present case, Ms. Henderson has COPD, cor pulmonale, and lymphocytic vasculitis. Ms. Henderson uses medical oxygen on a regular basis and uses crutches or a walker. As such, Ms. Henderson is a person with a disability for the purpose of applying the accessibility provisions of the CTA.
[29] 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
[30] The word "obstacle" is usually understood to mean something that impedes progress or achievement. As the word obstacle is not defined in the CTA, it must be read in its immediate legislative context which is, for the purposes of Part V of the CTA, the mobility of persons with disabilities, mobility being achieved by having proper access to federal transportation services. In this way, the obstacle must be directly related to a person's disability such that an issue cannot be considered to be an obstacle simply because it is experienced by a person with a disability.
[31] 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 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 may find obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience call into question whether the person had proper access to effective transportation services.
The case at hand
[32] Although Ms. Henderson has COPD and uses medical oxygen on the ground on a regular basis, she had informed Air Canada that she would not require its on-board medical oxygen service on her round-trip flights between Kelowna and Vancouver. She had a letter from Dr. Sharma indicating that she should be able to cope without oxygen for the duration of the flights. Further information to this effect was communicated to Air Canada by Dr. Sharma on the completed FFT form.
[33] Ms. Henderson felt stressed while awaiting Air Canada's decision as to whether it would allow her to travel without its on-board medical oxygen. Air Canada informed Ms. Henderson that she would have to purchase its on-board medical oxygen, overruling the assessment of her personal physician with the result that she was disinclined from travelling, but ultimately decided to proceed with her travel plans and therefore incurred an expense of $300.
[34] In light of the foregoing, the Agency finds that the process followed by Air Canada in assessing Ms. Henderson's fitness to travel constituted an obstacle to Ms. Henderson's mobility.
Whether the obstacle was undue
[35] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.
[36] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.
The case at hand
[37] The Agency has found that the process followed by Air Canada in assessing Ms. Henderson's fitness to travel constituted an obstacle to Ms. Henderson's mobility. The Agency will now consider whether the obstacle is undue.
[38] Although Ms. Henderson has COPD and uses medical oxygen on the ground on a regular basis, she had a letter from Dr. Sharma indicating that she should be able to cope without oxygen for the duration of her flights. In addition, Dr. Sharma indicated on the FFT form that Ms. Henderson's condition was stable and that she was able to cope without oxygen for several hours at a time, and that as this was a relatively short trip, no problems were anticipated. The FFT form also indicated that while she uses oxygen intermittently at home at a flow rate of 3 liters per minute and experiences shortness of breath on exertion, oxygen was not needed in flight for the trip in question.
[39] Air Canada's position is that the statement made by Dr. Sharma that "she should be able to cope without oxygen" is indicative of a misunderstanding of the aircraft cabin environment where the altitude can be as high as 8000 feet representing a reduction of available oxygen of about 30 percent, creating a hypoxic environment which most individuals can become acclimated to, but which is more difficult for passengers with respiratory disorders.
[40] The Agency notes that Air Canada initially claimed that its ACOHS had verbally communicated with Dr. Sharma, which it could only substantiate with the note on its medical clearance form "MD office aware and agrees with O2 at 4 LPM" as it could not find the specific note of the conversation. However, in response to Dr. Sharma's contradictory statement that all communications with Air Canada regarding Ms. Henderson were done solely via facsimile, Air Canada submitted that the note indicates that there was a bilateral exchange between its ACOHS nurse and someone at Dr. Sharma's office, who may not have been Dr. Sharma himself. Based on Dr. Sharma's submission and different versions of events filed by Air Canada, the Agency accepts Dr. Sharma's statement that there was no verbal communication with anyone at Air Canada with respect to Ms. Henderson.
[41] The Agency is concerned with the process Air Canada followed to arrive at its decision to require Ms. Henderson to travel with its on-board medical oxygen. It is Air Canada's policy that if its medical clinic disagrees with the conclusion of the passenger's physician, its ACOHS physician will communicate with the passenger's physician to discuss the matter. Given that Dr. Sharma informed Air Canada through the completed FFT form that 1) Ms. Henderson should be able to cope without oxygen for the duration of her flights; 2) her condition was stable and she was able to cope without oxygen for several hours at a time; 3) as this was a relatively short trip, no problems were anticipated, and; 4) although she uses oxygen at home at a flow rate of 3 liters per minute intermittently and experiences shortness of breath on exertion, oxygen was not needed in-flight, there was clearly a difference between Dr. Sharma's assessment and Air Canada's assessment of Ms. Henderson's in-flight needs.
[42] Air Canada states that in the overwhelming majority of cases, the discussion between the ACOHS physician and the passenger's physician will result in an agreement as to what is required. However, contrary to Air Canada's own policy, its ACOHS physician did not speak to Dr. Sharma to discuss this matter. This lack of dialogue, therefore, did not provide an opportunity for the ACOHS physician and Dr. Sharma to possibly come to an agreement as to whether Ms. Henderson needed to travel with Air Canada's medical oxygen service. The Agency is of the opinion that even if a dialogue took place as suggested by Air Canada, i.e., between its ACOHS nurse and someone from Dr. Sharma's office other than Dr. Sharma himself, it would have been inappropriate to discuss Ms. Henderson's condition and her needs with anyone other than her personal physician.
[43] The Agency is of the opinion that, had Air Canada followed its policy and had its ACOHS physician discussed the matter with Dr. Sharma, the discussion may have resulted in a better understanding where either Dr. Sharma agreed with Air Canada's position, or Air Canada may have had a better understanding of Ms. Henderson's condition and agreed with Dr. Sharma's position. While the Agency recognizes that even with such a dialogue, Air Canada's decision may have been the same, the Agency would accept the carrier's assessment where Air Canada would have reached its conclusion based on a full understanding of Dr. Sharma's position regarding Ms. Henderson's fitness to travel without oxygen and taking into account whether there were safety implications in allowing Ms. Henderson to travel without its medical oxygen service.
[44] Based on the foregoing, the Agency finds that the process followed by Air Canada in assessing Ms. Henderson's fitness to travel constituted an undue obstacle to her mobility.
CONCLUSION
[45] Based on the above findings, the Agency hereby directs Air Canada to take the following measure within sixty (60) days from the date of this Decision:
- Issue a bulletin to its ACOHS employees to ensure that when there is a disagreement between the passenger's physician and the ACOHS physician related to that person's fitness to travel, the ACOHS physician communicates with the passenger's physician to discuss the matter as per Air Canada's existing policy; and provide the Agency with a copy of this bulletin.
Members
- Gilles Dufault
- Beaton Tulk
- Date modified: