Decision No. 66-AT-A-2010

February 25, 2010

February 25, 2010

APPLICATIONS by Katherine Covell and Sarah Daviau against Air Canada and an application by Dr. J. David Spence against Air Canada, Air Canada Jazz and WestJet.

File Nos. U3570/09-22
U3570/09-24
U3570/09-32


INTRODUCTION

[1] Katherine Covell, Sarah Daviau, and Dr. J. David Spence (applicants) filed applications with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), against Air Canada. Dr. Spence's application is also against Air Canada Jazz and WestJet. The applications involve Air Canada, Air Canada Jazz, and WestJet's (respondents) policies that allow the carriage of pets in aircraft cabins, primarily as they relate to cats. In Dr. Spence's case, Air Canada advised that, as flights operated by Air Canada Jazz are operated on behalf of Air Canada and the passengers on these flights are subject to the terms and conditions in Air Canada's tariffs, Air Canada is responding for Air Canada Jazz as well. References to Air Canada in this Decision, as they relate to Dr. Spence, should therefore be read to include Air Canada Jazz.

[2] All three applicants request that the respondents' pet policies be disallowed. However, Ms. Covell states that, failing a change of policy, she requests that she be given priority over cats, such that cats should not be allowed in the cabin of an aircraft for which she holds a ticket. Furthermore, Ms. Covell argues that when she attempts to book a flight, she should be alerted prior to booking if a cat is already scheduled to be carried on the flight in question.

PRELIMINARY MATTERS

Combining the applications

[3] In light of the commonality of the issue raised in the applications, the Agency, pursuant to section 6 of the Canadian Transportation Agency General Rules, SOR/2005-35, has combined the three applications in one proceeding.

Examination of disability limited to cat allergies

[4] In response to the three applications, Air Canada states that while the only described allergy is to cats, the request is to ban all pets, including dogs, to which none of the applicants appear to be allergic.

[5] Ms. Covell indicates that her requested change in policy is in the context of cats in the cabin. She notes that statistics indicate that cat allergies are twice as common as dog allergies, and that service cats are rarely used outside therapeutic settings, such as those for children suffering from Autism Spectrum Disorder. She fully supports allowing service dogs on flights. Ms. Covell's medical evidence notes that she has allergenic asthma, for which one of the most serious triggers is exposure to cats.

[6] Ms. Daviau asks that Air Canada provide an animal-free passenger cabin but clarifies that this request does not extend to service animals. However, Ms. Daviau's medical evidence refers to a "severe cat allergy" and an allergy to "animal dander (especially cats)".

[7] Dr. Spence submits that there is not sufficient reason to allow any pet inside a passenger cabin, although he accepts that such an exclusion should not apply to service animals for persons with disabilities. He states that dogs are much less of a problem than cats. Dr. Spence states that while he is not allergic to dogs, there is no doubt that other Canadians have allergies to dogs. Dr. Spence's medical evidence relates to his allergy to cat dander.

[8] While the applicants raise concerns regarding Air Canada and WestJet's policies to carry pets in the aircraft cabin, their specific concerns relate to the carriage of cats in the cabin. Additionally, their medical evidence is insufficient to support claims of allergies to other animals that are allowed to be carried in the aircraft cabin pursuant to the respondents' pet policies. As the Agency does not have the power to investigate an issue regarding accessible transportation on its own motion, the scope of the Agency's examination of disability in the cases at hand is currently limited to the respondents' pet policies as they relate to the carriage of cats in the aircraft cabin.

Lack of incidents

[9] The respondents refer to the lack of evidence of incidents in which the applicants experienced allergic reactions while travelling with pets in the aircraft cabin. The respondents assert that, as a result, the applicants have not provided sufficient evidence to establish that they are persons with disabilities for the purposes of Part V of the CTA. Air Canada alleged that there is no evidence that the applicants faced obstacles to their mobility.

i) Disability determinations

[10] The parties' submissions regarding the existence of incidents experienced by the applicants, as they pertain to disability, are discussed below in the portion of the decision dealing with disability determinations, in particular activity limitations and participation restrictions.

ii) Obstacle determinations

[11] Air Canada has argued that no evidence was presented and no allegations made that the applicants faced obstacles to their mobility. Air Canada submits that the applicants have travelled but that there have been no reports of major incidents and that the applicants have failed to demonstrate that they encountered obstacles. Air Canada submits that the only allegation is that there is a general risk of allowing pets in the aircraft cabin and that potentially problems can occur. Air Canada asserts in the three cases: "All we have is speculation."

[12] The Supreme Court of Canada in Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SCC 15 (CCD v. VIA) stated that

...the planned existence of an obstacle to mobility can be sufficient to trigger the Agency's jurisdiction to inquire into matters relating to design, construction, or modification of the means of transportation. The applicant is not required to establish that the obstacle is already part of the federal transportation system, or that someone has actually experienced an incident.

[13] The Supreme Court of Canada confirms the Agency's jurisdiction under subsection 172(1) of the CTA to investigate and eliminate undue obstacles to the mobility of persons with disabilities, including instances where an incident has not yet occurred but the removal of a potential obstacle could eliminate its future occurrence.

[14] In light of the above, the Agency finds Air Canada's argument to be without merit.

ISSUE

[15] Are Ms. Covell, Ms. Daviau, and Dr. Spence persons with disabilities for the purposes of Part V of the CTA as a result of their allergies to cats?

LEGISLATIVE FRAMEWORK

[16] The Agency's legislative mandate with respect to persons with disabilities is found in Part V of the CTA, which contains a regulation-making authority [subsection 170(1)] and a complaint adjudication authority [subsection 172(1)], both for the express purpose of removing undue obstacles to the mobility of persons with disabilities from the federal transportation network. The scope of the Agency's jurisdiction to eliminate undue obstacles by both regulation and complaint adjudication is partially defined by an inclusive list of matters contained in subsection 170(1), which is incorporated by reference into subsection 172(1).

[17] The Supreme Court of Canada, in its CCD v. VIA Decision, provided significant direction to the Agency on the execution of this mandate, including the confirmation that Part V of the CTA is human rights legislation. That means identifying and remedying undue obstacles for persons with disabilities in the transportation context must be done in a manner that is consistent with the approach for identifying and remedying discrimination under human rights law. In particular, the Supreme Court clarified that once the existence of an obstacle to the mobility of a person with a disability in the federal transportation network has been established by the applicant, the onus then shifts to the respondent transportation service provider to prove, on a balance of probabilities, that the obstacle is not undue by demonstrating that reasonable accommodation has been provided, meaning up to the point of undue hardship.

RESPONDENT POLICIES

Air Canada and Air Canada Jazz

[18] Air Canada's Pet in Cabin policy (PETC policy) allows dogs and cats in a pet carrier or kennel, as part of the carry-on baggage allowance, with an advance reservation and additional fees (with the exception of some international destinations). On Air Canada-operated flights, it accepts four pets per aircraft, with a maximum of two in executive class. However, pets are not accepted in Air Canada Executive First Suites (all wide-bodied aircrafts with lie-flat beds) because of cabin configuration. Air Canada Jazz accepts two pets per aircraft. The PETC policy sets out that, in extenuating circumstances, there may be a need to exceed the maximum number of pets allowed in an aircraft.

[19] Air Canada has a specific policy regarding service animals, which are not subject to the pet allowances per aircraft; service animals will be accepted even when the maximum number of pets allowed has been reached.

[20] The PETC policy specifies that cats and dogs must be small enough to fit and stay comfortably in a carrier under the seat in front of the passenger. The pet carrier must be leak proof and well ventilated and must be large enough to allow the animal to stand up, turn around and lie down comfortably. No part of the pet may protrude from the carrier. The pet must remain in the carrier and under the seat during take-off and landing; while in flight, the pet carrier may be placed on the customer's lap, but the pet cannot be removed from the carrier and the carrier must remain closed. However, Air Canada's Web site sets out that the pet must remain at all times in a closed pet carrier stowed under the seat.

[21] With respect to customers with allergies, the PETC policy sets out that, if a customer does not wish to travel on a particular flight due to the presence of a pet on board, the call centre agent or the airport agent will:

  • explain that Air Canada has never promised an animal-free cabin in the past as service animals must be accepted for travel in the cabin;
  • if the customer wishes to travel on another flight, advise that Air Canada will do its best to accommodate him/her on the next available flight that does not have a pet or service animal booked (call centre agents explain that rebooking will only be done on the day of travel as it is not possible to predict whether a pet or service animal will be booked on any flight);
  • advise that Air Canada has joined the great majority of carriers that allow pets on board; and
  • airport agents will indicate that they or flight personnel will try to reassign seats or move people around in the event that an animal is on board.

[22] Air Canada sets out in its answers to the applications that rebooking is subject to the customer providing a medical certificate supporting their "severe allergy."

[23] Air Canada further states that customers may verify 24 hours in advance of a flight whether there will be a pet on board and, if so, Air Canada will ensure that the passenger is seated as far away as possible from the pet in a given cabin.

[24] The PETC policy further sets out that, if the customer still does not wish to travel, the call centre or airport agent should advise the customer that a refund is possible if the customer provides documentation from a doctor validating that, due to allergies, the customer is ill-advised to travel in an aircraft cabin that could contain cats and/or dogs.

WestJet

[25] WestJet sets out in its policy that it accepts animals as carry-on baggage, except on charter flights and, with certain exceptions, some international destinations. WestJet will accept, for a fee, the carriage of cats, dogs, birds and rabbits in pet kennels. The pet kennel must be leak proof, with the door secured, and must fully enclose the animal. WestJet also recommends that the pet kennel be large enough for the animal to comfortably lie down, turn around and stand in its natural position. The animal must remain under the seat for the flight duration.

[26] WestJet accepts a maximum of four kennels in each aircraft cabin. WestJet has a separate policy regarding the carriage of service animals.

[27] WestJet specifies that even with its best efforts to reduce the risk of allergic reaction, it cannot guarantee an allergen-free environment for two reasons: WestJet cannot deny travel to a guest accompanied by a service animal and the clothing of other guests may have come into contact with various animals.

[28] If a passenger with an allergy to animals expresses discomfort sitting beside an animal in a kennel or a service animal, the flight attendant will relocate the person with an allergy to another seat, if possible. If a guest does not wish to travel on a flight on which animals are travelling in the cabin or on which other allergy risks exist, the available options are to either

  • reaccommodate the guest on the next available flight at no additional cost, or
  • provide a full refund to the guest if the flight has not yet departed.

[29] WestJet states that it is unable to make special provisions for guests who have an allergy to food items or animals. A guest who is severely allergic to certain foods or animals should travel with any necessary medication in the event he/she is exposed to allergens which may trigger an allergic reaction. If a guest is severely allergic and is not comfortable with WestJet's inability to provide an allergen-free travelling environment, a recommendation will be made to the guest to consider an alternate means of transportation.

[30] WestJet indicates that it has held discussions with organizations, including the Asthma Society of Canada and the National Asthma Patient Alliance, to gather facts and determine potential accommodations for person who have pet allergies. WestJet notes that several potential accommodation proposals were discussed with these groups as recently as October 13, 2009. By way of example, WestJet comments that it is reviewing the potential inclusion in its policies of seating arrangements that would provide a buffer zone between guests with pets and guests with allergies, or providing a notice, where possible, to travellers with allergies that certain flights will contain pets in the cabin. WestJet indicates that such steps would be taken on a case by case basis by inflight crew.

USE OF INFORMATION

[31] Air Canada submitted Aeroplan information in respect of the three applicants which indicates the frequency of their travel. It is not clear for what purpose Air Canada collected the Aeroplan information nor whether it has been used with the applicants' consent in the context of the Agency's investigation of the cases at hand. Nevertheless, as there is no indication of whether a cat was on board at the time any of the applicants travelled, the Agency will not assign any weight to this information.

ANALYSIS AND DETERMINATIONS

The Agency's approach to the determination of disability

[32] In determining whether there is an obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first establish whether the application was filed by, or on behalf of, a person with a disability.

[33] In Decision No. 243-AT-A-2002 (the Jurisdictional Decision), the Agency found that the model of disability analysis reflected in the International Classification of Functioning and Disability, (World Health Organization, 2001) [the ICF] was relevant and appropriate to its consideration of whether an allergy is considered a disability for the purposes of Part V of the CTA.

[34] The ICF is a model of disability analysis which contains a complete classification of body functions and structures, and identifies three dimensions of disability, namely, impairments, activity limitations and participation restrictions.

[35] In the Jurisdictional Decision, the Agency noted that the following framework may be applicable to a broad range of health conditions and is valid for the Agency's determination with respect to whether a person with an allergy is considered a person with a disability of the purposes of Part V of the CTA:

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

[36] In the Jurisdictional Decision, the Agency concluded that an allergy, per se, is not a disability for the purposes of Part V of the CTA. Notwithstanding, the Agency found that there may be individuals in the population of persons who have allergies, who have a disability for the purposes of Part V of the CTA which can be attributed to their allergies. Therefore, the Agency decided to examine, on a case by case basis, whether a person who has an allergy is a person with a disability for the purposes of the accessibility provisions of the CTA.

[37] The Agency set out in the Jurisdictional Decision that, to find that a person has a disability for the purposes of the CTA it is necessary to find that the person experiences activity limitations and/or participation restrictions.

[38] In its subsequent application of the above-noted framework to individual cases, the Agency found that an individual is a person with a disability when it determined that the individual experienced both activity limitations and participation restrictions in the context of the federal transportation network.

[39] This reflects the Agency's opinion that in applying the ICF model to an application pursuant to section 172 of the CTA, the evidence must support a finding of a participation restriction or the reasonable foreseeability of one, in the context of the person's equal access to the services within the federal transportation network. While an individual may conceivable be found to have a disability in another context, the CTA grants jurisdiction to the Agency only for the purpose of eliminating undue obstacles to the mobility of persons with disabilities in that network.

[40] The distinction between an activity limitation which, in the case of allergies, is the allergic reaction, and a participation restriction, is important. The activity limitation associated with an impairment relates to the presentation of symptoms and resulting difficulties, irrespective of the context. While an activity limitation may be slight in nature, as noted in previous decisions, the Agency is of the opinion that, for the purposes of an application pursuant to Part V of the CTA, a limitation must be significant enough to result in an inherent difficulty in executing a task or action. The participation restriction manifests itself in the context of what the ICF calls "life situations" which, in this case, means an interaction between the person with the impairment and the environment of the aircraft cabin in the context of the pet policies.

[41] Absent the existence of a participation restriction in the context of the federal transportation network, the person would not be found to be a person with a disability for the purposes of Part V of the CTA. Furthermore, the existence of a participation restriction in the context of the federal transportation network is dependent upon the existence of an activity limitation and is evidenced by a person's inability to access the services available within that network as other persons without the activity limitation can.

[42] Accordingly, the Agency finds that the person must experience both an activity limitation, and a participation restriction in the context of the federal transportation network in order to be found to be a person with a disability for the purposes of Part V of the CTA.

Impairment

[43] The ICF model of disability defines impairment as a loss or abnormality of a body part (i.e., structure) or the loss or deviation in body function (i.e., physiological function). Abnormality is used strictly to refer to a significant variation from established statistical norms (i.e., as a deviation from a population mean within measured standard norms). In the Jurisdictional Decision, the Agency noted that the category of "hypersensitivity reactions," which is included in the functions of the hematological and immunological systems of the ICF, encompasses "functions of the body's response of increased sensitization to foreign substances, such as in sensitivities to different antigens." The Agency further noted that this category explicitly includes allergies and found that an allergy is an impairment.

[44] Dr. Murdoch Smith, Ms. Covell's physician, states that she has allergenic asthma that has, among its most serious triggers exposure to cats, particularly cat dander. Dr. W.R. Salmaniw, Ms. Daviau's doctor, states that she has severe allergies to animal dander, especially that of cats, which can lead to, among other reactions, asthmatic attacks. Dr. Larry M. Brownscombe states that Dr. Spence has asthma and that he is very sensitive to exposure to cats and is allergic to cat dander.

[45] Air Canada did not contest the medical evidence filed with respect to Ms. Covell and Ms. Daviau having allergies to cats, nor did WestJet contest Dr. Spence's medical evidence about his allergy to cats.

[46] However, Air Canada submits that, absent clear reference, the vague allegations at the first paragraph of the letter from Dr. Brownscombe to the effect that Dr. Spence is very sensitive to exposure to cats to the degree that being in a house that has contained cats leads to pruritus (severe itching of the skin), wheezing and the increased use of his inhaled steroids for at least three days is either a reference to a hypothetical situation or is an event for which Dr. Brownscombe has not treated Dr. Spence. Air Canada also points out that the letter from Dr. Brownscombe does not contain a declaration that he is Dr. Spence's treating physician or that he has examined Dr. Spence.

[47] In response, Dr. Spence states that Dr. Brownscombe is his personal physician, which was confirmed in a subsequent letter from Dr. Brownscombe. Dr. Spence adds that Dr. Brownscombe prescribes his asthma medication. Based on the evidence and the submissions filed, the Agency accepts that Dr. Brownscombe is Dr. Spence's physician and that Dr. Spence has asthma and is very sensitive to exposure to cats.

[48] Based on the medical evidence filed, the Agency accepts that Ms. Covell, Ms. Daviau and Dr. Spence have allergies to cats. The Agency therefore finds that Ms. Covell, Ms. Daviau and Dr. Spence have an impairment.

Activity Limitations

[49] The ICF model of disability defines activity limitations as difficulties an individual may have in executing activities. The model states that an activity limitation may range from a slight to a severe deviation in terms of quality or quantity in executing the activity in a manner or to the extent that is expected of people without the health condition. With respect to allergies, the Agency is of the opinion that the activity limitation is the allergic reaction that a person may experience when exposed to an allergen.

[50] The Agency is of the opinion that, for the purposes of its analysis of activity limitations, in order to find that a person with an allergy is a person with a disability, they must have an activity limitation significant enough to result in an inherent difficulty in executing a task or action. By way of example, an allergy which only requires an antihistamine to address the reaction would not result in a finding that the individual experiences an activity limitation. This is consistent with the Agency's conclusion in Decision No. 370-AT-A-2009 regarding a person whose allergic reaction was limited to throat and eye irritation and a runny nose. The panel found that this level of allergic reaction was not significant enough to be considered to have an activity limitation. However, the Agency is of the opinion that a person's medical condition does not have to be at the most severe end of the spectrum in order for the person to have an activity limitation.

Participation restrictions

[51] Participation restriction is defined in the ICF model of disability as a problem an individual may experience in involvement in life situations. The presence of a participation restriction is determined by comparing an individual's participation in a certain situation or environment to that of an individual without a disability in that same situation or environment.

Evidence of activity limitations and participation restrictions

[52] In the Jurisdictional Decision, the Agency determined that fact-based evidence 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. The Agency may identify impairment, activity limitations and participation restrictions through one of, or some combination of:

  • common sense observation;
  • the person's evidence or account of his/her condition; and,
  • other evidence, including expert evidence.

[53] The Agency determines on a case by case basis what evidence needs to be produced. Typically, the Agency accepts the evidence of the applicant with respect to the impairment, the activity limitation and the participation restriction. The fact that a respondent contests the existence of a disability does not automatically require the Agency to seek more or different evidence. Self-reported testimony, signed medical reports and other appropriate documentation may be presented. The Agency will tend to give more weight to evidence that is objectively verifiable and will take evidence into consideration only to the extent that it can be linked to the specific circumstances and the specific applicant that the application addresses.

[54] As reflected in the Jurisdictional Decision, the Agency recognizes that persons who have allergies experience wide-ranging symptoms, the severity and duration of which can vary greatly depending on the nature of the allergy, the concentration and proximity of allergens present, and the length of time to which the person is exposed to the allergens.

The cases at hand

[55] In the cases under consideration, the activity limitations relate to the applicants' allergic reactions when exposed to cat allergens. Therefore, consistent with the opinion expressed at paragraph 50 above, the Agency is of the opinion that, provided the evidence establishes that the applicant experiences an allergic reaction that is significant enough to result in an inherent difficulty in executing a task or action (such as impaired breathing), this is sufficient to demonstrate the existence of an activity limitation. With respect to participation restrictions, the evidence must establish that, as a result of the applicant's activity limitation (i.e., allergic reactions) when exposed to cats, he/she cannot travel in the same manner as passengers without cat allergies.

[56] The respondents suggest that, in the absence of an incident in which the applicants experienced an activity limitation (i.e., allergic reaction) and/or participation restriction when exposed to cats in the aircraft cabin, the applicants have not provided the fact-based evidence required to establish the existence of an activity limitation and/or participation restriction. However, as set out above, the Agency is of the opinion that the absence of such incidents does not preclude the applicants from establishing the existence of an activity limitation and participation restriction. The Agency is also of the opinion that a lack of reported incidents does not conclusively indicate that no problems have been encountered by persons with allergies.

[57] The Agency therefore rejects the respondents' argument that, in the absence of an incident in which an applicant experienced an activity limitation (i.e., an allergic reaction) or a participation restriction when exposed to cats in the aircraft cabin, the applicants have not provided sufficient evidence to establish the existence of an activity limitation or a participation restriction.

Does Mrs. Covell experience activity limitations, and participation restrictions in the context of air travel?

[58] Dr. Smith states that Ms. Covell has allergenic asthma that has among its most serious triggers exposure to cats, particularly cat dander. Ms. Covell submits that, as she is highly allergic to cat dander, she cannot be in an aircraft if there are any cats and that it makes no difference how large the aircraft, nor the location of the cat(s). Ms. Covell adds that her reaction is a severe asthma attack requiring urgent medical attention. Ms. Covell's position is supported by her physician, Dr. Smith, who indicates that Ms. Covell has an extreme and almost immediate reaction when exposed to cats, which takes the form of bronchial constriction with restricted oxygen and breathing difficulty, which usually lasts for approximately 72 hours after the exposure. Dr. Smith states that, during this time, Ms. Covell may need oxygen or hospitalization.

[59] Dr. Smith indicates that bronchial dilators have not always been sufficient to facilitate Ms. Covell's breathing and have caused other problems including rapid heart rate, restlessness, anxiety, nervousness, trembling and sweating. Dr. Smith explains that this is partly due to an interaction with Ms. Covell's blood pressure medication. Dr. Smith states that it is therefore very important that she avoid any exposure to cats and that she not be exposed to triggers for her asthma while travelling. He adds that Ms. Covell travels by air frequently as part of her employment such that the ability to maintain "healthy air travel" is essential to her job.

[60] Air Canada states that no explanation is provided as to the type of exposure that would trigger the reaction, nor is there a description of the type of contact (physical or not) and the distance required to avoid a reaction. In response, and in reference to an expert which she states is from a national allergy association, Ms. Covell submits that it is commonly stated in allergy information provided by a wide range of medical sources "that it does not take a lot of animal dander to cause an allergic reaction, and it is so small and light that it remains airborne for long periods of time. Consequently, it is often readily available to be breathed in and begin causing a problem."

[61] Air Canada submits that Ms. Covell has not provided evidence where hospitalization was needed, the circumstances thereof and the treatment needed. Air Canada submits that Ms. Covell has failed to demonstrate that she has an activity limitation and/or a participation restriction of such intensity as to result in an inherent difficulty in performing a task or action.

[62] Air Canada argues that Ms. Covell has failed to demonstrate that she is a person with a disability pursuant to Part V of the CTA and adds that her application should be dismissed.

[63] Ms. Covell states that she has tried taking a short flight with a cat in the cabin, with the maximum possible space between her and the cat, but still became very sick. She had to change a scheduled Air Canada flight segment in March 2005 from Halifax to Sydney, when a passenger wanted to keep her cat in the cabin. She states that as it was the last flight of the evening, she had to stay overnight in a Halifax hotel and take a flight home the next morning.

[64] Ms. Covell explains that the restrictions placed on her due to the lack of guaranteed cat-free flights relate to the lack of assurance that she will arrive at meetings on time, unless she travels one or more days earlier than necessary, which is not always possible. She adds that although Air Canada will allow her to change flights, if required, there is no guarantee that the next flight will be free of cats. Ms. Covell points out that this is particularly difficult when travel involves a number of flight segments, which is often her case.

Agency analysis

[65] In terms of activity limitations, Ms. Covell's physician states that she has allergenic asthma that has, among its most serious triggers, exposure to cats and particularly cat dander. Ms. Covell's physician describes her allergic response to cats, which takes the form of bronchial constriction with breathing difficulties and can last for 72 hours after the exposure, as being extreme and almost immediate. Ms. Covell's physician further explains that, during this time, she might need oxygen or hospitalization.

[66] Air Canada submits that no explanation was provided as to the type of exposure that would trigger a reaction, nor was a description provided of the type of contact and the distance required to avoid a reaction. However, the Agency is of the opinion that applicants are not required to identify the precise circumstances under which they will experience a reaction, in order to establish the existence of an activity limitation. As reflected in paragraph 54, the Agency recognizes that persons who have allergies experience wide ranging symptoms, the severity and duration of which can vary greatly depending on the nature of the allergy, the concentration and proximity of allergens present, and the length of time to which the person is exposed to the allergens.

[67] While Air Canada also indicates that Ms. Covell has not provided any evidence that she needed hospitalization, the Agency is of the opinion that a person's medical condition does not have to be at the most severe end of the spectrum to establish an activity limitation.

[68] Based on the medical evidence and submissions by Ms. Covell, the Agency finds that Ms. Covell experiences activity limitations in the form of the allergic reactions she experiences when exposed to cats, the nature of which is significant enough to result in an inherent difficulty in executing a task or action.

[69] In terms of participation restrictions, Ms. Covell asserts that she cannot be in an aircraft if there is a cat and that it makes no difference how large the aircraft nor the location of the cat. Ms. Covell's physician supports her position in this regard and notes that it is very important that Ms. Covell avoid any exposure to cats and that she not be exposed to triggers for her asthma while travelling. Ms. Covell refers to travel on Air Canada flights in 2005 and notes that, in respect of one flight, she distanced herself from a cat as much as possible and, on another occasion, she had to change a flight to avoid being exposed to a cat. The Agency accepts the description of Ms. Covell's actions regarding the flights in question as fact-based evidence addressing the determination of participation restrictions.

[70] The Agency finds that Ms. Covell needs to avoid or reduce exposure to cat allergens and that the presence of cats in the aircraft cabin creates a participation restriction in that she cannot travel in the same manner as others without cat allergies.

Agency conclusion

[71] The Agency finds that Ms. Covell has an impairment and experiences activity limitations, and participation restrictions if exposed to cats when travelling by air.

[72] The Agency, therefore, finds that Ms. Covell is a person with a disability for the purposes of Part V of the CTA as a result of her allergy to cats.

Does Ms. Daviau experience activity limitations, and participation restrictions in the context of air travel?

[73] Dr. Salmaniw, Ms. Daviau's physician, states that she has a severe cat allergy and that the best advice is that she avoid cats and use antihistamines or allergy shots if her condition worsens. Her doctor adds that exposure to animal dander, especially cat dander, causes increased wheezing and asthmatic attack. Dr. Salmaniw indicates that there is no anaphylaxis, but Ms. Daviau feels unwell, experiences shortness of breath, and chest tightness. Dr. Salmaniw also describes the medication Ms. Daviau takes, which includes extra puffs from her "puffer" if she is exposed to allergens, especially cat allergens.

[74] In response to Air Canada's statement that her doctor provided no explanation as to the type of contact necessary to generate an allergic reaction, Ms. Daviau submits that the reference to "severe" in her doctor's letter implies that any type of exposure to cats causes her a significant health issue.

[75] Ms. Daviau states that before a flight, she must pre-plan for a likely sinus infection, allergic reaction or asthma attack during the flight by obtaining antibiotics and extra asthma medication in advance to help manage an allergic reaction.

[76] Air Canada notes that there is no risk of anaphylaxis for Ms. Daviau and it appears that "a few extra puffs of medication" would solve the issue of any reaction. Ms. Daviau explains that her doctor simply indicates that her "puffer" provides a possible short-term fix. She states that taking continual "puffs" of such medication on a long-haul flight would likely cause a different, more serious medical issue. She also argues that if a few "puffs" of any medication solved a severe allergy problem, the concern would not have been raised by so many people.

[77] Air Canada also states that there is no support by her doctor of any ongoing medical problems once at destination. In response, Ms. Daviau specifies that, as her doctor is not located at her destination, he would not be aware if a condition arose at her destination. She states that she has, in the past, become accustomed to becoming ill during and after air travel. Ms. Daviau submits that the fact that she has not needed to seek medical attention at destination or upon her return is merely a result of her pre-planning.

[78] Air Canada adds that there is no allegation whatsoever that Ms. Daviau has recently travelled by air or is even contemplating travel by air. Ms. Daviau responds that her recent air travel activity is not relevant and states that all Canadians should be able to travel at anytime within Canada without having to worry about medical issues resulting from a flight when reasonable alternatives are available to the carrier. Regardless, Ms. Daviau states that the main reason she has not travelled by air lately is that most of the destinations she wants to visit are in the United States and, as Air Canada pointed out, most U.S. carriers allow pets in the aircraft cabin. She submits that she would risk an allergic or asthmatic reaction with each flight and then a subsequent illness while at her destination and upon return. She adds that she has travelled in both the United States and in Europe and she suffered during flights and felt ill throughout the time at her destination due to a sinus infection. Because of this, she has tried to limit her travel to within Canada.

[79] With respect to the allegation that there is a general risk due to allowing pets in the aircraft cabin and, in Ms. Daviau's case, particularly cats, Air Canada submits that this is only speculation. Ms. Daviau expressed concern regarding this statement and questions: "Does someone have to die from an allergy or asthma attack before something is done to remove the risk?"

[80] Air Canada submits that Ms. Daviau has failed to demonstrate that she has an activity limitation and participation restriction of such intensity as to result in an inherent difficulty to perform a task or action. Air Canada asserts that Ms. Daviau has therefore failed to demonstrate that she is a person with a disability pursuant to Part V of the CTA and adds that her application should be dismissed.

Agency analysis

[81] In terms of activity limitations, Ms. Daviau's physician states that she has a severe allergy to cats and that exposure to animal dander, especially that of cats, causes increased wheezing and asthmatic attack and results in her feeling unwell and experiencing shortness of breath and chest tightness.

[82] Air Canada notes that there is no evidence of a risk of Ms. Daviau experiencing anaphylaxis as a result of exposure to cats and that she can address a reaction by using her "puffer". Furthermore, Air Canada states that there is no supporting evidence by her doctor of any ongoing medical problems once she arrives at her destination.

[83] Based on the medical evidence and submissions by Ms. Daviau, the Agency finds that she experiences activity limitations in the form of the allergic reactions she experiences when exposed to cats, the nature of which is significant enough to result in an inherent difficulty in executing a task or action.

[84] In terms of participation restrictions, Ms. Daviau states that before a flight, she must pre-plan for a likely sinus infection, allergic reaction or asthma attack during the flight by obtaining antibiotics and extra asthma medication in advance to help manage an allergic reaction. She also notes that she has not travelled lately by air to destinations outside of Canada because of her allergy and that she has been avoiding travel to destinations served by carriers that accept cats in the aircraft cabin. The Agency accepts the description of Ms. Daviau's actions as fact-based evidence addressing the determination of participation restriction.

[85] The Agency finds that Ms. Daviau needs to avoid or reduce exposure to cat allergens and that the presence of cats in the aircraft cabin creates a participation restriction in that she cannot travel in the same manner as others without cat allergies.

Agency conclusion

[86] The Agency finds that Ms. Daviau has an impairment and experiences activity limitations, and participation restrictions if exposed to cats when travelling by air.

[87] The Agency, therefore, finds that Ms. Daviau is a person with a disability for the purposes of Part V of the CTA as a result of her allergy to cats.

Does Dr. Spence experience activity limitations, and participation restrictions in the context of air travel?

[88] Dr. Larry M. Brownscombe, Dr. Spence's physician, sets out that Dr. Spence is allergic to cat dander and has asthma. He also states that Dr. Spence is very sensitive to exposure to cats to the degree that being in a house that has contained cats leads to pruritus (severe itching of the skin), wheezing and the increased use of his inhaled steroids for at least three days. Dr. Brownscombe further states that Dr. Spence has a history of paroxysmal atrial fibrillation (cardiac arrhythmia or abnormal heart rhythm) and although he may need epinephrine to resolve an allergic reaction, this treatment would be best avoided due to his underlying cardiac condition.

[89] Dr. Spence's physician asserts that being on an aircraft with exposures to cats would result in a higher inoculum, given that the closed space and recirculation of air may lead to more acute exacerbation of his asthma, potentially requiring epinephrine and oxygen supplementation.

[90] Air Canada refers to expert reports produced in respect of applications before the Agency involving Air Canada regarding allergies to peanuts and nuts. Air Canada comments that none of the experts recognized pruritus or any other form of skin rash as a possible reaction to airborne allergens; rather this is associated with topical contact.

[91] WestJet states that Dr. Spence's medical evidence suggests that his more severe allergic reactions require epinephrine rather than other forms of medication like steroids. WestJet suggests that, if Dr. Spence can treat his more severe reactions with medication other than epinephrine, he should use this form of treatment while on board an aircraft. WestJet submits that if Dr. Spence is required to use epinephrine to treat his more severe allergic reactions, he likely uses epinephrine when he comes in contact with dander or other allergens in his daily life, whether on board an aircraft or not, and notwithstanding his paroxysmal atrial fibrillation. WestJet asserts that Dr. Spence should not be considered to have a disability.

[92] In response, Dr. Spence states that epinephrine is dangerous for him due to his paroxysmal atrial fibrillation. With respect to WestJet's comments on steroids, Dr. Spence indicates that they also have severe adverse effects.

[93] Dr. Spence submits that policies to accept pets for carriage in aircraft cabins cause significant discomfort for many Canadians who have allergies to cats, but also pose a significant risk of aggravating asthma and even causing fatal asthmatic attacks. Dr. Spence states that, regardless of whether an allergy is a disability, it constitutes a life-threatening condition that is at risk of being triggered by pets in an aircraft. He submits that allowing pets in aircraft is no different from allowing smoking in an aircraft; the smoking ban, which is not based on disability, recognizes the risk of passive smoke.

[94] Air Canada asserts that Dr. Spence has failed to demonstrate that he has an activity limitation and participation restriction of such intensity as to result in an inherent difficulty to perform a task or action and, as such, Dr. Spence has failed to demonstrate that he is a person with a disability pursuant to Part V of the CTA. Air Canada adds that Dr. Spence's frequent travelling without incident indicates the contrary. Air Canada further asserts that Dr. Spence's application should be dismissed.

[95] With respect to the allegation by Dr. Spence that there is a general risk of allowing pets, and in particular cats, in the cabin of an aircraft, Air Canada submits that this is only speculation. Air Canada states that, up to 2005, it accepted pets in the aircraft cabin and that WestJet and other major U.S. carriers, as well as European carriers, accept pets in their cabins. Air Canada submits that no reports of major incidents have been alleged or presented.

[96] Dr. Spence relates to an incident on an Air Canada flight several years ago where he treated and saved the life of a passenger who experienced a severe allergic reaction. While Air Canada states that it no longer has a record of this, it subsequently states that the passenger being assisted was reacting to a pet. Air Canada states that the incident did not impair Dr. Spence as he was the one who provided the medical assistance.Air Canada further states that Dr. Spence assisted someone reacting to a pet "without any allegations of his own participation restrictions or activity limitations."

[97] Furthermore, Air Canada submits that there is no allegation that Dr. Spence has changed his travelling pattern nor is there an allegation that "accommodation is not possible."

[98] For its part, WestJet states that it is widely conceded that it is impossible to make an aircraft allergen-free. WestJet submits that, given that Canadian air carriers are required to transport service animals in the cabin, and the fact that up to 40 percent of Canadian homes have pets, it is clear that animals and animal dander will always be present in aircraft cabins. However, WestJet submits that Dr. Spence's physician's submission that air is recirculated in the cabin is incorrect as its Boeing 737 next generation aircraft continuously introduces fresh air into the cabin while in flight.

[99] WestJet further states that it understands that airborne allergens may be associated with respiratory distress in some rare cases, but that the more severe allergic reactions are not associated with airborne allergens.

[100] WestJet submits that Dr. Spence's allergy is not a disability pursuant to the CTA.

[101] Dr. Spence reiterates that the pet policy is unacceptable because it places passengers with severe allergies at risk of death or other severe allergic reactions. He adds that a policy that permits pets to travel in the aircraft cabin, while allowing passengers to travel on other flights at times that may not meet their schedule, is "perverse". Dr. Spence submits that pets can travel in the luggage compartment, emphasizing that "passengers with allergies must breathe".

Agency analysis

[102] With respect to the incident related by Dr. Spence where he treated a passenger in-flight who had a severe allergic reaction, the Agency notes that Air Canada states that it no longer has a record of this. However, in a subsequent submission, it categorically states that the other passenger was reacting to a pet to support its position that Dr. Spence does not experience activity limitations, nor participation restrictions, as he did not report experiencing a reaction himself. No evidence was put forward by either party to show that Dr. Spence was allergic to the same allergen as the affected passenger. In light of these contradictions and inadequacies in the record, the Agency does not give any weight to arguments regarding this incident.

[103] The Agency finds that the evidence provided by Dr. Spence supports the existence of allergic reactions, including: wheezing and difficult breathing, which may require an increase in his inhaled steroids for a period of three days, and the potential requirement for epinephrine and oxygen supplementation. The Agency, therefore, finds that Dr. Spence has provided sufficient evidence to support a conclusion that he experiences an allergic reaction when exposed to cats that is significant enough to result in an inherent difficulty in executing a task or action. The Agency therefore finds that Dr. Spence has established that he experiences activity limitations.

[104] Notwithstanding that Dr. Spence provided no evidence with regard to incidents during air travel, the Agency finds that Dr. Spence's evidence establishes that, in light of his allergy to cats, it is reasonably foreseeable that he must avoid or reduce the risk of exposure to cat allergens in the aircraft cabin, as a result of the respondents' pet policies, and therefore he would not be able to travel in the same manner as others without cat allergies. Dr. Spence's situation is exacerbated by the fact that, while he may need epinephrine to resolve an allergic reaction, this should be avoided due to his underlying cardiac condition. The Agency accepts Dr. Spence's submission as providing fact-based evidence addressing the determination of participation restrictions.

[105] The Agency finds that Dr. Spence needs to avoid or reduce exposure to cat allergens and that the presence of cats in the aircraft cabin creates a participation restriction in that he cannot travel in the same manner as others without cat allergies.

Agency conclusion

[106] The Agency finds that Dr. Spence has an impairment and experiences activity limitations, and participation restrictions if exposed to cats when travelling by air.

[107] The Agency, therefore, finds that Dr. Spence is a person with a disability for the purposes of Part V of the CTA as a result of his allergy to cats.

NEXT STEPS

[108] Having determined that Ms. Covell, Ms. Daviau, and Dr. Spence are persons with disabilities for the purposes of Part V of the CTA, as the next step, the Agency will examine whether the respondents' pet policies constitute an obstacle to the mobility of the applicants. As part of this examination, the Agency will determine appropriate accommodation for the applicants, which will be based on effectiveness of potential solutions. Should the Agency find that an obstacle exists, it will assess whether the obstacle is undue.

[109] The Agency will communicate under separate cover with the parties to address the Agency's further procedures with respect to the next steps.

Members

  • John Scott
  • Raymon J. Kaduck
  • J. Mark MacKeigan

Member(s)

Raymon J. Kaduck
J. Mark MacKeigan
John Scott
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