Decision No. 684-AT-A-2006

December 12, 2006

December 12, 2006

APPLICATION by Audrey King pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, regarding Air Canada's requirement that Ms. King carry a ventilator on board the aircraft that could last for the 4-hour and 8-minute maximum duration of Ms. King's flights from Toronto, Ontario, Canada to St. Louis, Missouri, United States of America on May 31, 2005 and from St. Louis to Toronto on June 5, 2005.

File No. U3570/05-14


Application

[1] On April 1, 2005, the Canadian Transportation Agency (hereinafter Agency) received the application set out in the title from Ms. King and on April 7, 2005, Ms. King filed further information regarding her application.

[2] On April 13, 2005, Agency staff contacted Air Canada in order to attempt to resolve Ms. King's concerns through facilitation.

[3] In its May 2, 2005 submission, Air Canada confirmed that after discussions between medical specialists, Ms. King would be accepted for travel without oxygen provided she carried a ventilator in the aircraft cabin with her. In the same submission, Air Canada requested an extension of time to file its answer to the application which the Agency granted in Decision No. LET-AT-A-163-2005, dated May 20, 2005.

[4] On May 26, 2005, Air Canada requested that Ms. King's case be kept in abeyance until 15 days after her return from her trip and on June 1, 2005 in Decision No. LET-AT-A-171-2005, the Agency placed Ms. King's case in abeyance pending a written statement of her intentions as to whether she wished to proceed with her application. On June 16, 2005, Ms. King submitted her request to proceed with her application and provided additional information.

[5] In Decision No. LET-AT-A-193-2005 dated July 4, 2005, the Agency required Air Canada to file its answer to Ms. King's application within 30 days of the receipt of the Decision. On August 1, 2005 Air Canada submitted its answer and on August 10, 2005, Ms. King filed her reply.

[6] Ms. King filed a further submission on November 28, 2005 to which Air Canada provided its comments on December 9, 2005. In Decision No. LET-AT-A-325-2005 dated December 21, 2005, the Agency accepted these submissions as being relevant and provided Ms. King with 10 days to respond to Air Canada's December 9, 2005 submission. On December 28, 2005, Ms. King filed her response.

[7] In Decision No. LET-AT-A-180-2006 dated July 6, 2006, the Agency required further information from Air Canada and on August 1, 2006, Air Canada requested clarification regarding the information required by the Agency, which the Agency provided on the same day. On August 6, 2006, Air Canada filed its response. Ms. King filed her reply on August 16, 2006.

[8] 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.

Issue

[9] The issue to be addressed is whether Air Canada's requirement that Ms. King carry a ventilator on board that could last for the 4-hour and 8-minute maximum duration of her flight constituted an undue obstacle to her mobility and, if so, what corrective measures should be taken.

Facts

[10] Ms. King has post-polio syndrome and quadriplegia and uses a powered wheelchair. Ms. King also has sleep apnea/chronic respiratory failure, and uses a ventilator when she sleeps.

[11] On February 10, 2005, Ms. King made arrangements for herself and her attendant to travel with Air Canada on May 31, 2005 from Toronto to St. Louis, with a return flight on June 5, 2005. At the time of booking, Ms. King requested permission to carry her ventilator in the aircraft cabin so that it would not get lost during the course of travel. She also requested Air Canada's 50 percent attendant air fare reduction and, as a result, Ms. King's physician was required to complete Air Canada's Fitness for Air Travel form (hereinafter FFT form ).

[12] Air Canada's policy sets out that persons who require an attendant must be medically approved before they can travel. In this regard, Air Canada's Medical Services requires a completed FFT form. In Ms. King's case, Air Canada faxed an FFT form on February 12, 2005 to Ms. King's family physician, Dr. Terry Bates, who completed it and returned it to Air Canada on February 15, 2005. In addition to addressing Ms. King's need for an attendant, the completed FFT form specifies that Ms. King:

  • experiences chronic respiratory failure;
  • does not use or require oxygen, either at home or in-flight;
  • does not experience shortness of breath;
  • uses a ventilator, but only at night; and
  • must be permitted to carry her ventilator on board the aircraft because, although it is unlikely to be used in flight, it is life-supporting in nature.

[13] Dr. Bates also completed the portion of the FFT form titled "Chronic Pulmonary Condition" next to which Dr. Bates crossed out the "Yes" option but noted that "In fact, her condition is with her muscles of breathing - not her lungs." Dr. Bates also set out the results of recent arterial blood gas tests for Ms. King; that she had taken a commercial aircraft having the same conditions as her planned flight with Air Canada; and specifying that Ms. King has travelled frequently with no problems and, most recently, in 2004, from Toronto to Osaka, Japan.

[14] Air Canada informed Ms. King on March 11, 2005 that she was required to travel with the carrier's oxygen service at a round-trip cost of $300. Following this communication, Ms. King's family physician and respirologist contacted Air Canada to voice their disagreement with the carrier's requirement for medical oxygen service, to no avail.

[15] However, during Agency staff's attempt to facilitate a resolution to Ms. King's application prior to her departure, Air Canada agreed to an option put forward by Ms. King, that she travel with a ventilator instead of purchasing the carrier's medical oxygen. Air Canada required, however, that the ventilator have the capacity to function for the entire 4-hour and 8-minute maximum duration of the flight, which is twice the scheduled flying time from Toronto to St. Louis. Ms. King chose the ventilator option. As the maximum duration of Ms. King's ventilator battery is only approximately 2 hours and 45 minutes, she obtained, at her own cost, another ventilator with a battery able to operate for over 4 hours and 8 minutes. Ms. King travelled as scheduled with this ventilator.

Positions of the parties

Ms. King's condition and travel needs

[16] Ms. King submits that, similar to the term "legally blind", which implies but does not mean that a person sees nothing, the term "chronic respiratory failure" (hereinafter CRF) does not mean that the person fails to breathe. As well, with the appropriate mechanical ventilatory support, a person with CRF may lead an active, healthy, productive and independent life, in spite of disability. Ms. King explains that persons with Obstructive Sleep Apnea (hereinafter OSA) also suffer from CRF in that they have a permanent, unless surgically correctable, respiratory failure situation. She states that if their condition is not treated with Continuous Positive Airway Pressure (hereinafter CPAP) or Bilevel Positive Airway Pressure (hereinafter Bi-PAP) devices when sleeping, their airways collapse and they stop breathing, often hundreds of times each night. Ms. King indicates that on a lengthy flight at high altitude, sleeping OSA patients risk hypobaric hypoxia unless they use their ventilators.

[17] Air Canada explains that Ms. King's diagnosis indicated CRF and "respiratory paresis" such that her physiological mechanisms to adapt to an environment where the aircraft cabin altitude can be as high as 8000 feet, representing a reduction of available oxygen of about 30 percent, are impaired and it is this impairment that is of concern. Air Canada further explains that its concern is that if Ms. King is unable to adequately compensate for the hypoxic environment, she could de-saturate (deoxygenate) substantially and become significantly ill, compromising both her safety and the safety of flight operations, and that there is no data available that would help all persons objectively understand how Ms. King would react in the hypoxic cabin environment.

[18] Ms. King explains that in the event of any emergency during flight, which might render her unconscious, oxygen would be of no assistance as her disability is "restrictive" and not "obstructive" in nature. In other words, when she is awake, she can voluntarily control her breathing and change her rate, depth and rhythm of breathing. She stipulates that when she is deeply asleep or unconscious, the musculature required to exchange gases, i.e., the bellows of breathing, are dysfunctional and, as such, any oxygen that might be provided to her would not be drawn in. Ms. King states that she would therefore require mechanically assisted ventilation in such an instance, not oxygen. She adds that mechanical respiration compensates for her weak intercostal muscles, and not oxygen.

[19] Ms. King further explains that she carries her ventilator in the cabin to protect this very expensive life-sustaining equipment, not because she needs to use it on board. Ms. King states that in the unlikely event of breathing problems during the short two-hour non-stop flight from Toronto to St. Louis, she would use her ventilator. She states that she has travelled extensively over a 35-year period and with the exception of a 2004 trip to Japan, she has never used her ventilator or oxygen, and indicates that during the 12-hour flight to Japan, at a sustained high altitude, she used oxygen and her ventilator in-flight, for prophylactic reasons.

[20] Furthermore, Ms. King believes that Air Canada's initial requirement that she travel with oxygen service arose because of her trip to Japan with Air Canada in 2004. Ms. King recounts that due to the uncertainty regarding the extensive and exhausting 25-hour trip, which included a 12-hour transpacific flight at high altitude and, as a prophylactic precautionary measure, she and her respiratory physician, Dr. Goldstein, decided that having low flow oxygen as a "stand-by" would be helpful. In this regard, Ms. King states in an e-mail dated March 16, 2005 to Dr. Bates that, although there was no genuine clinical need for oxygen for the trip to Japan, Dr. Goldstein felt that the "stand-by"would "not harm". In a subsequent e-mail dated March 30, 2005 to Dr. Edward Oppenheimer, Ms. King states that Air Canada's refusal to transport her anywhere unless they carry oxygen for her seems to have arisen from last year's arterial blood gas test results. The test was done to determine whether or not she needed to carry oxygen on her flight to Japan. She indicates that prior to the lab visit, she "deliberately stressed herself to simulate the possible worst case scenario of fatigue, many hours without the vent, few hours of sleep and so on. In other words, I went to bed very late, got up early and did not use my air pipe at all that day". Ms. King explains that she did not mention her "self-stress test" to anyone and she breathed as minimally as possible at the time of the arterial blood gas test.

Assessment

[21] With respect to her trip to St. Louis, Ms. King raises concerns with the manner in which Air Canada reached its conclusions. In particular, she submits that Air Canada:

  • refused to consider any current and updated clinical records, or the advice and expert opinions of her respiratory specialist and family physician;
  • prescribed a treatment, i.e., oxygen and/or continuous ventilator during flight on the basis of one outdated clinical record, rejecting the expertise and opinions of her personal physicians and without personally examining her;
  • made an arbitrary unilateral judgement regarding her "physiological inability to cope with changing cabin pressures" on the basis of a single past clinical record;
  • did not understand the inappropriateness of oxygen as an alternative to assisted ventilation with respect to neuromuscular respiratory impairments;
  • refused to consider her previous uneventful airline travel history of 35 years;
  • refused to consider the relatively short duration of her trip from Toronto to St. Louis, in comparison with the previous year's flight to Japan.

[22] Air Canada submits that persons who require an attendant or oxygen must be medically assessed to determine their fitness to travel by air with or without conditions. Air Canada adds that this medical assessment is done because accepting a passenger who would not be fit to travel by air in the particular conditions of an aircraft environment could force the aircraft to make an unscheduled landing. Additionally, Air Canada states that in the event that a person requests a discount for an attendant, the completed FFT form also serves to confirm the need for the attendant.

[23] Air Canada explains that a completed FFT form is sent to Air Canada's Occupational Health Services (hereinafter ACOHS) where a medical professional reviews it and determines whether the person should receive "medical clearance". The carrier elaborates that, if necessary, the medical professional will communicate with the person's physician. Air Canada submits that ACOHS physicians are certified by Transport Canada and the training provided to the physicians includes the particularities of the cabin environment, the hypoxic environment and the confined space. Additionally, Air Canada submits that 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 the FFT form completed by Ms. King's physician revealed that oxygen had been prescribed by her physician on a previous flight and that Ms. King has CRF. Dr. Bekeris, an ACOHS physician, explains that when this matter first came to his department's attention, the requirement for oxygen as a condition of travel was applied on the basis that by supplementing Ms. King with oxygen, the oxygenation would be maintained at ground level, thus avoiding the requirement for the ventilatory compensatory mechanisms. Air Canada states that further discussion with Ms. King's physicians did not result in assurances that the concerns stemming from the medical form could be dismissed and adds that Dr. Bekeris of ACOHS spoke to Dr. Bates who refused to acknowledge the effect of a pressurized cabin. Ms. King states that there was a total lack of any opportunity for direct communication, patient examination or involvement of the passenger. Ms. King further states that Air Canada did not let her have a copy of medical forms that were sent to her physician.

[25] Ms. King takes issue with a statement made by Dr. Bekeris during the facilitation process, as indicated in Air Canada's August 1, 2005 submission, describing both her and her providers as "having a weakness in understanding" with respect to information needed to demonstrate how Ms. King will react in a hypoxic cabin environment, and states that this assessment, to her knowledge, has not been objectively validated by a third party or qualified professional and is, therefore, merely judgmental. Ms. King counters that she is cognizant of the "hypobaric hypoxia" which occurs at high altitudes and always requests to carry her ventilator in the cabin, although she never required it during flight. She points out that it was this knowledge that led her to seek advice prior to her extensive and unusual 2004 trip to Japan.

[26] Ms. King further submits that she has a post-graduate education in neuro-developmental psychology, she has authored books and articles on issues related to disability and ventilator dependence and has 30 years of employment as a rehabilitation psychologist in a major medical healthcare facility. Ms. King currently has a Status Appointment as Clinical Lecturer with the Faculty of Medicine, University of Toronto, Rehabilitation Sciences Division, Department of Physical Therapy. Ms. King states that she does not dispute the competency of ACOHS physicians in understanding the cabin environment at high altitudes and its effect upon generic human physiology.

[27] Ms. King states that, "in fairness and with an attitude of facilitation rather than obstruction", Air Canada should have considered the highly unusual one-time circumstance of the 2004 flight to Japan when the carrier interpreted its policies and procedures. Ms. King submits that Air Canada failed to consider other information in her case. In particular, she points out that although Air Canada requires that the person's physician provide positive and negative information in completing the FFT form, its medical office disregards all positive information in arriving at its decision.

[28] Air Canada states that it will never take a chance on the security and safety of individuals and will choose to err on the side of caution. It indicates that many of its policies and conditions of carriage are predicated on minimizing the impact of emergency situations, even if such situations seldom occur. Air Canada refers to the Agency's Decision No. 435-AT-A-2005 dated July 8, 2005, in the case of Eddy Morten v. Air Canada, which it submits reflects the Agency's review and acceptance of this priorization.

...the Agency is of the opinion that Air Canada took into account the particular nature of Mr. Morten's disability, as well as the safety issues that it considered relevant, and, while acknowledging the difficulties encountered by Mr. Morten, the Agency accepts Air Canada's assessment that Mr. Morten is required to travel with an attendant due to safety-related concerns in the event of an emergency evacuation or decompression.

[29] In response, Ms. King states that the essential issue is that Air Canada will never take a chance on the security and safety of all individuals and will choose to err on the side of caution. Ms. King asserts that a balance must be struck between Air Canada's safety needs and the obstacles and restrictions imposed upon individual passengers who identify their needs as well as the "fairness" thereof, particularly in situations where the passenger has a long history of successful flying experience and is knowledgeable and responsible.

[30] Ms. King questions whether given the travel challenges that exist for travellers with disabilities, choosing "to err on the side of caution" should be balanced with fairness and reason and should be inclusive of all information provided.

[31] Air Canada explains that notwithstanding the filing of Ms. King's complaint against it prior to her travel, Dr. Bekeris communicated with the two physicians named by Ms. King, Dr. Bates and Dr. Goldstein, to further understand her condition. Air Canada states that the opinions of the medical practitioners were taken into consideration. Air Canada submits that neither of Ms. King's physicians had experience with specific conditions of air travel and neither would affirm that she would not need oxygen during the flight. Based on these conversations, and the fact that her record indicates a need for medical oxygen on a previous flight, Air Canada required, for the safety and comfort of Ms. King as well as the other passengers, that she travel with medical oxygen. Air Canada submits that Ms. King offered the option of the ventilator as an alternative to oxygen as she uses it at night and would be carrying it when she travelled.

[32] In response to Air Canada's contention that neither of Ms. King's physicians would affirm that she would not need oxygen during the flight, Ms. King declares that no doctor, particularly in today's litigious environment, could or would ever guarantee that any passenger, with or without a disability, would not require oxygen during a flight.

Additional requirements

[33] Ms. King questions why Air Canada's requirements escalated from requiring her to have medical oxygen, to: 1) carrying a ventilator in the cabin, 2) carrying an extra battery necessary to operate her ventilator for the 2-hour and 15-minute duration of the flight, and 3) having a ventilator as would function for the 4-hour and 8-minute maximum duration of the flight. Ms. King also questions how Air Canada ultimately made its determination that her ventilator needed to be used during the flight, as no valid simulated assessment of her breathing capacity in hypoxic environment was provided prior to the flight. Ms. King presumes that this determination was made from Air Canada's need "to err on the side of caution" although she wonders why this "ultimate and most imposing restriction" was applied at the end and not presented at the outset.

[34] After informing Ms. King that she would be accepted for travel between Toronto and St. Louis provided that she carry a proper ventilator with a dry cell battery with her in the cabin, Air Canada initially stated that further instructions from its medical office required Ms. King to carry an extra dry-cell battery necessary to operate her ventilator for the 2-hour and 15-minute duration of the flight from Toronto to St. Louis, otherwise she would be required to have oxygen made available throughout the flight. Air Canada explains that this was due to the medical office opinion that, as Ms. King lacks the physiological response mechanisms to deal with the effects of hypoxia, she should undertake her adaptive mechanisms immediately after take off and discontinue at landing, as the effects of hypoxia can commence as soon as the aircraft starts to climb.

[35] In an effort to clinically refute Air Canada's opinion that she lacks the physiological response mechanisms in high altitude cabin environments, Ms. King filed on May 13, 2005 the results of arterial blood gas studies that she underwent on that day. Ms. King states that the low PaO2 (partial pressure of oxygen in arterial blood) measure of 74 or so, which is what caused all this concern, is now at a PaO2 of 103, the normal being 85 to 107. As such, Ms. King states that she does have the physiological ability to exchange gases and cope with changing cabin pressures and therefore questioned whether Air Canada would continue to require that she travel with the extra battery. In response, Air Canada submits that Ms. King's arterial blood gas tests, undertaken on May 13, 2005, which were not requested by the carrier, do not change its previous position. Air Canada notes that the data is consistent that there is not a pulmonary (lung) gas exchange impairment, but that the data does not help in understanding how Ms. King will react in the hypoxic cabin environment.

[36] Ms. King believes that Dr. Bekeris's recognition, upon receiving up-to-date arterial blood gas test results from her, that the data is consistent that there is not a pulmonary gas exchange impairment, further weakens his assumption that she lacks the physiological response mechanisms in the air cabin environment. Dr. Bekeris states that an objective method of understanding Ms. King's response to a hypoxic environment would be if her providers arranged an exercise whereby she breathed a hypoxic gas mixture that simulated a cabin altitude of 8000 feet. Dr. Bekeris indicates that this would require objectively recording Ms. King's oxygenation while she breathed a gas mixture of 15 percent oxygen (instead of the usual 21 percent of air) over a period of 20 minutes.

[37] In a communication dated May 18, 2005, in which Dr. Bates informed Ms. King of his discussion with Dr. Bekeris the day before, Dr. Bates states"...Despite your great #'s, he demands that you USE your vent for the full flight or use O2!!!...". Dr. Bates indicates that he felt this not justified or fair.

[38] Finally, Air Canada indicates that its medical office requires Ms. King to have oxygen or a ventilator functioning for the maximum duration of the flight, 4 hours and 8 minutes, for her safety and the safety of the flight operations. Air Canada submits that although the scheduled duration of an Air Canada flight between Toronto and St. Louis is 2 hours and 10 minutes, the flight may be subject to various circumstances that could require it to continue longer than scheduled, such as a holding delay, weather or diversion to an alternate airport. In order to satisfy Air Canada's requirement, Ms. King submits that, at a personal expense greater than Air Canada's oxygen service, she arranged for the use of a PLV950 ventilator which provides six hours of battery power.

[39] Ms. King is of the opinion that given that some requirements may cause undue hardship for the passenger, the rationale for Air Canada's imposition must be clearly understood and must, in medical situations, be based on the following criteria:

  • current clinical knowledge;
  • up-to-date passenger medical records;
  • consultation with and reliance upon a passenger's physicians' advice and opinions;
  • consideration of past flight history; and
  • when in-flight therapy or treatment is prescribed by Air Canada physicians, a direct medical examination.

[40] Furthermore, Ms. King submits that a balance must be struck between Air Canada's safety needs and the obstacles and restrictions imposed upon individuals who identify their needs, particularly in situations where the passenger has a long history of successful flying experience and is knowledgeable and responsible. Ms. King describes herself as an experienced and knowledgeable traveller and submits that the added burden of unnecessary requirements imposed by Air Canada, which increased with every attempt to explain the requirements, created undue obstacles to her mobility.

Parties' conclusions

[41] Air Canada submits that its requirement that Ms. King carry a ventilator is not an obstacle to her mobility and the requirement cannot, therefore, be found to be undue. Ms. King submits that while the word "obstacle" is not defined in the CTA, "it has been recognized by the Agency when a carrier has created or has put in place a function or an equipment or a service or has failed to provide such a service and that such installation or failure constitutes an obstacle to the mobility of a person with a disability". Air Canada is of the opinion that the requirement to carry a ventilator does not meet that test. In response, Ms. King submits that she interprets an obstacle "to mean an undue, unwarranted and unnecessary hindrance, inconvenience, cost and discomfort".

[42] Ms. King states that her attendant must pull both of their luggage through the airport, as well as the ventilator, and she adds that the challenge for her attendant to also carry and stow an extra external and heavy battery would have been difficult, not to mention the cost of purchasing such a battery. As such, Ms. King indicates that rather than obtaining an external battery for her own ventilator, she arranged for the import and loan of a smaller LTV950 ventilator, which was shipped from the United States. Ms. King states that this ventilator cost her approximately $350. Ms. King advised that following her trip to St. Louis, her flights were uneventful and states that contrary to Air Canada's direction to its personnel regarding the requirement that her ventilator needed to be used during the flight, she did not use the ventilator. Additionally, Ms. King indicates that she carried out her own testing on board her flights between Toronto and St. Louis with a pulse oximeter, which measures one's oxygen saturation levels. She submits that the oximeter tests showed that she was within normal oxygen saturation parameters.

[43] Furthermore, Ms. King claims that using the ventilator continuously during flight involves the unceasing application of a mask, which Ms. King contends would have precluded her from eating, drinking and conversing, not to mention the discomfort and embarrassment involved.

[44] Ms. King states that she seriously considered cancelling her trip from Toronto to St. Louis because of the continuous challenges and frustrations experienced in attempting to mediate this dispute. However, as Co-Chair of the Ninth International Conference on Post-Polio Health and Ventilator-Assisted Living, she believed that her responsibilities overrode the obstacles and frustrations experienced.

[45] Ms. King is of the opinion that an extraordinary and unnecessary amount of time was wasted, with undue distress on both sides. It is Ms. King's perception that her many attempts at resolving this matter were perceived as challenges to authority, rather than helpful information which could assist in arriving at a fair and appropriate decision. Ms. King states that Air Canada's requirements were increasingly obstructive and punitive in nature. Ms. King submits that Air Canada's duty is to ensure the safety and security of all passengers based on the policies and procedures derived for that purpose, while her duty is to fulfill her obligations in life, undertaking travel and all the reasonable inherent risks, as does every other citizen, without suffering undue and inappropriate obstacles while doing so. Ms. King submits that the Agency's duty will be to decide whether she was treated in a fair and appropriate manner given that, on a daily basis, thousands of airline passengers face potentially serious risks of hypobaric hypoxia, and to consider the future consequence of Air Canada's action in this instance for every citizen with a disability who chooses to disclose their respiratory needs and innocently, on one "extraordinary occasion", happens to generate a permanent record of once having travelled with oxygen.

[46] Ms. King states that, in conclusion, she now realizes that in her efforts to explain and share information, she was in effect damaging her own case and contributing to the obstacles and barriers ultimately imposed. She states that, in retrospect, she regrets her 2004 decision to seek advice about carrying oxygen to Japan and also realizes that she should have disclosed as few details as possible regarding her ventilator when planning her trip to St. Louis.

[47] Air Canada submits that Ms. King's uneventful flights between Toronto and St. Louis are not evidence that the requirements by Air Canada were wrong or undue. In addition, Air Canada states that it does not have the type of oxygen saturation monitor used by Ms. King, nor does it have the clinically verified results and Air Canada asserts that the tests have no medical value. Air Canada suggests that a more scientifically acceptable approach would involve testing Ms. King's while she breathed hypoxic gas. Air Canada states that with the medical information on hand, which did not comprise a test of Ms. King's respiratory capacity in a hypoxic environment, it was completely justified in requiring that she have medical oxygen on board for the duration of the flight or, alternatively, that she have a ventilator with a battery sufficient to power it for the maximum duration of the flight. Air Canada states that air travel has been known to affect even a healthy body's capacity to absorb the oxygen it needs, thus creating a state of hypoxia known as hypobaric hypoxia. The carrier submits that for persons who have respiratory impairments at ground level, air travel in a pressurized cabin increases such risk. Air Canada refers to a 2002 article entitled "Air Travel and Respiratory Diseases" by Dr. D.L. Morgan of the Department of Respiratory Medicine and Thoracic Surgery at the University Hospital of Leicester in the United Kingdom:

Apart from the usual health risks of airline flight, the principal additional challenge for patients with chronic respiratory disease is exposure to hypobaric hypoxia. Modern commercial airplanes fly at a height of around 10 700 metres, but the cabin pressure is maintained at the equivalent of 2400 metres in altitude rather than at sea level. The rapid reduction in pressure associated with ascent is accommodated safely by the normal lung. People with abnormal lungs may be vulnerable to the relatively minor pressure changes by enlargement of a pre-existing pneuothorax or rupture of an emphysematous bulla or other spaces containing air.

At cabin altitude even normal people can occasionally desaturate but will generally compensate by increasing alveolar ventilation. People with respiratory disease who use long term oxygen treatment will need to continue using oxygen during a flight. People with borderline hypoxaemia at sea level may also need supplementary oxygen to avoid becoming compromised at altitude. The need for supplementary oxygen can be predicted by careful prior assessment, but this is not widely used. The new guidelines point out that vulnerable patients can be identified by using a combination of pulse oximetry and identification predisposing risk factors such as abnormal spirometry. Those patients with a resting oxygen saturation below 92 percent or 92-95 percent on air with additional risk factors are recommended to have a formal hypoxic challenge test to identify whether they are able to compensate for the altitude. The normobaric challenge test simply entails the inhalation of 15.1 percent oxygen for 20 minutes and measurement of arterial blood gases. Supplementary oxygen is recommended for those patients whose arterial oxygen pressure remains blow 6.6 kPa. In addition to the need for oxygen the guidelines also address issues that may be common to all travellers, including the risks of dehydration, thromboembolism, and cross infection.

[48] Furthermore, Air Canada explains that when Ms. King raised concerns with respect to the cost of oxygen and the need thereof, an alternate solution of using her ventilator was determined. Air Canada submits that Ms. King's need for respiratory assistance could have been ruled out had she undergone the test suggested by Dr. Bekeris, which would have involved her breathing a hypoxic gas mixture that simulated a cabin altitude of 8000 feet.

[49] With respect to the pulse oximeter she used on board, Ms. King refers to her e-mail submission dated June 7, 2005 which identifies the type of finger monitor used; "...I did take a Nonin Onyx finger pulse oximeter which I used...". Ms. King states that this device was recommended by a colleague and pulmonologist, Dr. E.A. Oppenheimer, whose specialty is respiratory disorders of neuro-muscular origin, who identifies the Nonin as being particularly reliable and one which is used by pilots and those involved in aviation medicine.

Analysis and findings

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

[51] 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. King has quadriplegia and uses a powered wheelchair. Ms. King also has sleep apnea/chronic respiratory failure and uses a ventilator when she sleeps. As such, Ms. King is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[52] 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

[53] 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, such 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.

[54] 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

[55] Ms. King has sleep apnea and uses a ventilator when she sleeps. Ms. King's physician, Dr. Bates, supported her assessment that the continuous use of a ventilator in-flight was unjustified and, in fact, he indicated on the FFT form that Ms. King is dependent on the ventilator only at night. Air Canada's position is that Ms. King lacks the physiological mechanisms to deal with a hypoxic aircraft cabin environment and requires her to undertake adaptive mechanisms (ventilatory support or oxygen) immediately after take off and discontinue these at landing. In an attempt to clinically refute Air Canada's opinion that she lacks the physiological response mechanisms in a hypoxic cabin environment, Ms. King arranged for an arterial blood gas study, which Ms. King submitted is an invasive procedure involving a painful arterial puncture. Following its receipt of the results of this study, Air Canada acknowledged that while the data is consistent to indicate that there is not a pulmonary gas exchange impairment, it did not help with understanding how Ms. King would react in the hypoxic aircraft cabin environment.

[56] Therefore, Air Canada required Ms. King to carry a ventilator on board the aircraft that could last for the 4-hour and 8-minute maximum duration of the flight. As a result of Air Canada's requirement, Ms. King incurred the added expense and inconvenience of arranging for the loan of a PLV950 ventilator with six hours of battery power, as her attendant is physically unable to carry an extra battery in addition to their luggage, other equipment, and due to the other personal assistance required by Ms. King. In addition, Ms. King experienced lost sleep and discomfort in adjusting to the new ventilator in order to comply with Air Canada's request. Ms. King also pointed out that the continuous use of a ventilator would have precluded her from eating, drinking and conversing, and would have caused her discomfort and embarrassment. Finally, Ms. King found the consultations with Air Canada to be stressful to the point where she was disinclined from travelling and almost did not travel to St. Louis.

[57] In light of the foregoing, the Agency finds that Air Canada's requirement that Ms. King carry a ventilator on board the aircraft that could last for the 4-hour and 8-minute maximum duration of the flight constituted an obstacle to Ms. King's mobility.

Whether the obstacle was undue

[58] 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.

[59] 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

[60] Having found that Air Canada's requirement that Ms. King carry a ventilator on board the aircraft that could last for the 4-hour and 8-minute maximum duration of the flight constituted an obstacle to Ms. King's mobility, the Agency will now consider whether the obstacle is undue.

[61] While the Agency recognizes the principle of self-determination which requires transportation service providers to accept a person's own assessment of what his/her needs are and how they can best be met, the Agency also recognizes that a carrier's ability to meet the needs of passengers with disabilities might be affected by safety considerations. In this regard, the Agency notes that Air Canada assesses a person's fitness to travel in order to avoid situations where a person's condition may deteriorate in a cabin environment, to the point where the person's health and safety might be at risk and may require the carrier to perform an emergency landing. Such situations clearly have significant impacts on travellers and the carrier.

[62] Air Canada consulted with Ms. King's physician in accordance with its policy that if its medical clinic disagrees with the conclusion of the passenger's physician, the ACOHS physician will communicate with the passenger's physician to discuss the matter. While the Agency accepts Ms. King's assertion that with the exception of one trip to Japan, she has never required in-flight ventilatory assistance in 35 years of travelling, the Agency also accepts Air Canada's position that discussions between its ACOHS physician and Ms. King's physician did not result in assurances that would dismiss its concerns. While the FFT form does indicate that Ms. King is dependent on her ventilator only at night, it also indicates that it is unlikely to be used in-flight. The FFT form also indicates that Ms. King suffers from a chronic pulmonary condition, however it does note that this condition is with her muscles of breathing rather than her lungs. In a letter dated March 24, 2005, Dr. Goldstein indicated that if Ms. King should require any respiratory support during her trip, she would use her ventilator, and in a letter to Dr. Bates on March 16, 2005, Ms. King stated that "in the very unlikely event of breathing problems during the short 2 hour non-stop trip to St. Louis, I would use my ventilator."

[63] Air Canada consulted with Ms. King's physician regarding her disability. It was after these consultations that Air Canada concluded that Ms. King lacks the physiological response mechanisms to deal with the effects of hypoxia and that she should undertake adaptive mechanisms. In making that decision, Air Canada took into account the safety implications of Ms. King being unable to adequately compensate for the hypoxic environment, where she could de-saturate (deoxygenate) substantially and become significantly ill, compromising both her safety and the safety of flight operations.

[64] With respect to Air Canada's requirement that Ms. King travel with a ventilator that could last for the potential 4-hour and 8-minute maximum duration of the flight, the Agency accepts that there are various circumstances that could require a flight to continue longer than scheduled, such as a holding delay, weather or diversion to an alternate airport, and finds it reasonable for the carrier to require a battery that could last for the potential maximum duration of the flight. Notwithstanding, it would have been prudent for Air Canada to have informed Ms. King of this requirement upon accepting the condition that she travel with her ventilator, rather than informing her three weeks later.

[65] In light of the foregoing, the Agency is of the opinion that Air Canada took into account the particular nature of Ms. King's disability, as well as the safety issues that it considered relevant and, while acknowledging the difficulties encountered by Ms. King, the Agency accepts Air Canada's requirement that Ms. King carry a ventilator on board the aircraft that could last for the 4-hour and 8-minute maximum duration of the flight.

Other matter

[66] The Agency is of the opinion that there is another important matter on which it should comment.

[67] During Agency staff's attempt to facilitate a resolution to Ms. King's application prior to her departure, Air Canada agreed to an option put forward by Ms. King, that she travel with a ventilator instead of purchasing the carrier's medical oxygen. While the Agency recognizes that the outcome of this facilitation resulted in Air Canada conceding its requirement that Ms. King travel with oxygen, and agreeing to an alternative measure, the Agency finds it regrettable that it took its intervention to ensure that a full dialogue took place resulting in other options being considered.

Conclusion

[68] In light of the above findings, the Agency has determined that Air Canada's requirement that Ms. King carry a ventilator on-board that could last for the 4-hour and 8-minute maximum duration of the flight did not constitute an undue obstacle to Ms. King's mobility. Consequently, no corrective measures or compensation will be ordered.

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