Decision No. 9-AT-A-2023

Summary

[1] Elizabeth Miller filed an application with the Canadian Transportation Agency (Agency) against WestJet regarding WestJet’s alleged failure to transport her small dog as an emotional support animal (ESA).

[2] Ms. Miller seeks an apology from WestJet for herself and her brother, training for WestJet personnel and an order for WestJet to transport ESAs.

[3] The Agency will address the following issues:

1. Is Ms. Miller a person with a disability?
2. Does Ms. Miller’s dog qualify as a service dog or as an ESA?
3. Did Ms. Miller face a barrier?

[4] For the reasons set out below, the Agency finds that Ms. Miller is a person with a disability with respect to Crohn’s disease, that her dog does not qualify as a service dog nor as an ESA, and that she did not face a barrier. Therefore, the Agency dismisses the application.

Background

[5] Ms. Miller states that before August 2021, she had been travelling with her dog as an ESA for the last eight years. On August 18, 2021, when Ms. Miller contacted WestJet’s Special Care Desk to request to travel with her dog as an ESA, she was informed that WestJet no longer accepted ESAs. On August 26, 2021, Ms. Miller travelled with her dog as a pet in the cabin from Toronto, Ontario, to Thunder Bay, Ontario, and returned on September 14, 2021. Ms. Miller travelled on a companion fare, as her brother worked for WestJet.

[6] Pleadings opened on the application on August 22, 2022. WestJet filed its answer on September 30, 2022, and Ms. Miller filed a reply on October 7, 2022. As Ms. Miller filed new documents with her reply, the Agency provided WestJet with an opportunity to submit comments on those documents. WestJet filed its comments on October 28, 2022, and Ms. Miller replied on October 31, 2022.

The law

Accessibility

[7] The Agency has authority to decide applications that claim the existence of an undue barrier to the mobility of persons with disabilities within the federal transportation network.

[8] As stated in Decision 33-AT-A-2019 (Interpretive Decision), the Agency determines whether there is an undue barrier to the mobility of a person with a disability using a two-part approach.

Part 1: The onus is on the applicant to demonstrate, on a balance of probabilities, that:

- they have a disability. A disability is any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment—or a functional limitation—whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society;

and

- they faced a barrier. A barrier is anything—including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice—that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. There needs to be some connection between the applicant’s disability and the barrier.

Part 2: If it is determined that an applicant has a disability and faced a barrier, the onus shifts to the respondent to either:

- explain, taking into account any proposals from the applicant, how it proposes to remove the barrier through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or, if a general modification is not feasible, an individual accommodation measure;

or

- demonstrate, on a balance of probabilities, that it cannot remove the barrier without experiencing undue hardship.

Service dogs

[9] The Accessible Transportation for Persons with Disabilities Regulations (ATPDR) define a service dog as a dog that has been individually trained by an organization or person specializing in service dog training to perform a task to assist a person with a disability with a need related to their disability.

[10] A carrier must, if requested by a person with a disability, accept a service dog for transport and permit the animal to accompany the person on board.

[11] A carrier may require a person with a disability to control the dog with a leash, tether or harness during travel and to provide, at the time that they make the reservation with the carrier, a declaration attesting that the service dog has been individually trained by an organization or person specializing in service dog training to perform a task to assist the person with a disability with a need related to their disability.

[12] Before departure, a carrier may also require an identification card or other document that is issued by an organization or person specializing in service dog training that identifies the person with a disability and attests that the service dog has been individually trained by the organization or person to perform a task to assist the person with a disability with a need related to their disability.

ESAs

[13] ESAs do not perform a task; rather, their presence provides comfort and emotional support to persons with mental health-related disabilities. Although there is no regulatory requirement to carry ESAs, carriers must accommodate the disability-related needs of persons with disabilities to the point of undue hardship.

1. Is Ms. Miller a person with a disability?

Positions of the parties

Ms. Miller

[14] Ms. Miller indicates that she has intellectual and functional limitations. She states that she has post-traumatic stress disorder (PTSD), Crohn’s disease, and trouble with executive functioning and working memory.

[15] In support of her claim of disability, Ms. Miller filed WestJet’s Medical/mental health professional form (WestJet’s medical form) in which a physician indicates that they are treating her for a mental or emotional disability as recognized in the Diagnostic and Statistical Manual of Mental Disorders (DSM). The physician did not check the box to certify that Ms. Miller requires an animal as an accommodation for air travel and/or for activity at the intended destination.

[16] Ms. Miller also filed the Agency’s Medical Information Form (MIF), completed by the same physician, which indicates that Ms. Miller has physical and mental impairments. The physician specifies that Ms. Miller “has mental impairment when under stress due to PTSD/Depression/Anxiety Bowel disease” and functional limitation due to Crohn’s disease.

[17] The physician further indicates that Ms. Miller experiences symptoms of Crohn’s disease such as pain, diarrhea, trouble eating and nausea, of which the severity can be mild to severe. Ms. Miller had surgery and has a permanent ileostomy bag. When travelling, Ms. Miller experiences stress and requires extra use of washrooms, and her ileostomy bag has an extra potential for leakage due to the long time seated with a seat belt. The physician indicates that the dog alerts Ms. Miller if the ileostomy bag becomes loose or is leaking and helps her with lifelong trauma.

[18] In regard to PTSD, depression and anxiety, the physician identifies Ms. Miller’s symptoms as stress, cognitive difficulties under duress, increased heart rate, trouble understanding, tunnel vision, attention deficit, anxiety and worry. The physician indicates that the severity and duration of these symptoms vary. The physician indicates an ESA as one of the interventions to address Ms. Miller’s symptoms.

[19] In a section of the MIF entitled “Management required in order for the Applicant to travel”, the physician indicates that Ms. Miller has been travelling with her ESA without incident for eight years. Further, the physician indicates that Ms. Miller uses meditation, yoga, diet, cannabidiol and Rick Simpson Oil to manage her symptoms in her daily life.

[20] Ms. Miller also filed a note from a social worker indicating that she is enrolled in a Life After Trauma program to work on her symptoms from Complex Post-Traumatic Stress Syndrome. The social worker indicates that Ms. Miller is often overwhelmed in the simplest of situations and that she moves to a freeze state and is numb to her surroundings. The social worker explains that “this freeze state is hard-wired into her brain from childhood and when Ms. Miller senses danger and her [a]mygdala fires off, her body goes into a protective state and she shuts down.” The social worker reports that Ms. Miller states that she becomes extremely overwhelmed and she cannot manage her environment, and that her dog makes it possible for her to move throughout the world. The social worker recommends that Ms. Miller be allowed to have her dog with her at all times.

WestJet

[21] WestJet refers to the MIF and states that although the physician indicates that Ms. Miller’s dog alerts her if her ileostomy bag becomes loose or is leaking, the physician provides no information about how this detection occurs. Further, WestJet points out that the physician provides no evidence as to how Ms. Miller’s dog assists her with her psychological conditions.

[22] In regard to the medical note dated August 15, 2022, WestJet submits that it fails to demonstrate disability in the context of air travel as the physician only writes that Ms. Miller’s dog assists her in managing her medical conditions in her day-to-day activities.

[23] Regarding the note from the social worker, WestJet states that social workers are not qualified to provide mental health diagnoses.

[24] WestJet submits that, therefore, Ms. Miller has failed to provide sufficient evidence to demonstrate disability as she has failed to provide information on the nature and severity of her symptoms and on the impact of those symptoms on her day-to-day life, including travel. Further, WestJet submits that she has also failed to provide sufficient evidence to demonstrate that she requires an ESA to accommodate her disability in order to travel.

Analysis and determination

[25] The Agency has consistently held that an applicant claiming the existence of an undue barrier to the mobility of persons with disabilities must first demonstrate that they have a disability for the purposes of Part V of the Canada Transportation Act (CTA).

[26] As indicated in the Interpretive Decision, the Agency’s understanding of disability is based on the social model of disability, which describes disability as resulting from the interaction between an impairment or functional limitation and the social and physical environment. Therefore, an applicant must demonstrate, on a balance of probabilities, that they have an impairment or functional limitation that, in interaction with a barrier, hinders their full and equal participation in society.

[27] In the case of some conditions, such as paraplegia, quadriplegia and blindness, a disability is self-evident, in the sense that the nature of the symptoms associated with the condition always constitute a disability in the context of transportation. Other conditions do not constitute disabilities per se as they have a range of symptoms, from mild to severe, that vary from person to person. In those cases, a finding of disability will depend on the severity of the individual’s symptoms and their impact on them, particularly in the transportation context.

[28] In the MIF, the physician indicates that Ms. Miller has Crohn’s disease and provides detailed information about Ms. Miller’s various symptoms and their severity. The detailed evidence provided by the physician in regard to Crohn’s disease clearly demonstrates how it impacts Ms. Miller’s daily life and travel. Therefore, the Agency finds that, in regard to Crohn’s disease, Ms. Miller is a person with a disability for the purposes of Part V of the CTA.

[29] In WestJet’s medical form, the physician indicates that Ms. Miller is being treated by them for a mental or emotional disability as recognized in the DSM. However, this form is insufficient to determine disability because it does not address the nature and severity of symptoms that Ms. Miller experiences and the impact of those symptoms on her daily life, including travel. As stated above, the Agency makes its determination of disability in the context of Part V of the CTA and the evidence before it. A physician’s note that asserts a mental or emotional disability as recognized in the DSM is evidence of a health impairment, but information about the nature and severity of the symptoms is essential to the Agency’s determination of disability.

[30] In the MIF, the physician identifies PTSD, depression and anxiety as impairments and they describe some symptoms related to those conditions. However, the physician indicates that the severity and the duration of Ms. Miller’s symptoms vary without specifying how severe those symptoms are nor how Ms. Miller is affected by them in her daily life or during travel. This is in contrast to the same physician’s evidence in relation to Ms. Miller’s Crohn’s disease, where they clearly identified her symptoms related to Crohn’s disease as being mild to severe and impacting significantly her day-to-day life and her ability to travel. In the case of the mental health conditions, on the other hand, the physician simply states that the symptoms vary and makes no reference to severity. They may therefore vary from no symptoms to mild symptoms, which would not be enough to support a finding of disability for the purposes of Part V of the CTA.

[31] In regard to the social worker’s note, although the note provides some information about Ms. Miller’s PTSD, social workers are not physicians. To make a determination of disability for the purposes of Part V of the CTA, the Agency relies on medical evidence regarding the severity of symptoms and their impact on daily life and travel. This is in line with the requirement that the MIF be completed by a physician or medical health professional.

[32] Accordingly, there is insufficient evidence on file to establish that Ms. Miller’s PTSD, depression and anxiety are sufficiently severe to impair her ability to access the federal transportation network. Therefore, the Agency finds that Ms. Miller did not meet her burden of proof to demonstrate that she is a person with a disability for the purposes of Part V of the CTA with respect to PTSD, depression and anxiety.

2.  Does Ms. Miller’s dog qualify as a service dog or as an ESA?

Positions of the parties

Ms. Miller

[33] Ms. Miller submits that her dog is an ESA. She states that her dog has received training and she provides two training certificates from Mother Knows Best Obedience School Inc. Ms. Miller indicates that her dog’s task, which is to alert her when her ileostomy bag becomes loose or is leaking, “does not require specific training because she is a dog using her sense of smell with her very connected owner.” Ms. Miller further indicates that she intends to have her dog trained to be a service dog when she can afford the specific training.

[34] Ms. Miller also filed a note, dated August 15, 2022, and signed by her physician, that states that her dog assists her in her day-to-day activities for her medical conditions. The physician indicates that she considers that the dog is a service animal that helps Ms. Miller cope with her disability.

WestJet

[35] WestJet submits that Ms. Miller did not provide sufficient documentationprior to travel for her dog to meet the requirements to travel as a service dog under the ATPDR. Specifically, WestJet submits that Ms. Miller has not provided any evidence that her dog has undergone the training required by the ATPDR.

[36] Regarding the physician’s note dated August 15, 2022, WestJet indicates that the website of the College of Physicians and Surgeons of Ontario indicates that the physician specializes in family medicine. Therefore, WestJet submits that the physician is not qualified to determine whether an animal meets the definition of a service dog under the ATPDR.

Analysis and determinations

[37] The ATPDR defines a service dog as a dog that has been individually trained by an organization or person specializing in service dog training to perform a task to assist a person with a disability with a need related to their disability.

[38] The MIF indicates that Ms. Miller’s dog performs a task related to her Crohn’s disease, which the Agency recognized as a disability. However, Ms. Miller acknowledges that her dog has not been individually trained by an organization or person specializing in service dog training to perform that task. The two training certificates from Mother Knows Best Obedience School Inc. relate to general obedience training rather than task training. Further, a physician is not qualified to determine whether a dog is a service dog under the ATPDR. Therefore, the Agency finds that, although Ms. Miller indicates that her dog performs a disability-related task for her, she has not demonstrated that her dog has the training necessary to be considered a service dog under the ATPDR.

[39] Should Ms. Miller wish to have her dog accepted as a service dog under the ATPDR, she requires an attestation by an organization or person specializing in service dog training that the dog has been individually trained by that organization or person to perform one or more tasks to assist her with a need related to her disability, including:

- a clear description of the task(s) the dog has been individually trained to perform to assist her with her disability-related need(s);

- the credentials of the trainer(s), including any qualifications, certifications and affiliations with professional service dog organizations such as Canadian Association of Service Dog Trainers and the Canadian Association of Guide & Assistance Dog Schools; and

- a clear description of the specific content of the training program(s) completed by the dog, including the duration of the program, the goals to be achieved by the dog, the involvement of Ms. Miller, the assessment methods used and the assessment results achieved by the dog and Ms. Miller.

[40] The Agency recognizes that the benefit of an ESA is the comforting value its presence may offer to persons with a mental health disability. However, Ms. Miller did not meet her burden of proof to demonstrate that she is a person with a disability in regard to her mental health conditions, PTSD, depression or anxiety. Therefore, the Agency finds that Ms. Miller has not demonstrated that her dog can be considered as an ESA.

[41] Without evidence that Ms. Miller’s dog is a service dog or an ESA, the Agency finds that it must be considered a pet.       

3.  Did Ms. Miller face a barrier?

Communication of information before travel

Positions of the parties

Ms. Miller  

[42] Ms. Miller submits that she faced a communication barrier prior to travel. On August 18, 2021, Ms. Miller contacted WestJet’s Special Care Desk by email to inform them that she would be travelling with her dog as an ESA. She was informed that, as of August 5, 2021, WestJet no longer accepted ESAs. The next day, she received another email from the Special Care Desk inviting her to choose one of the following options:

• having her dog travel as a pet in cabin in a pet carrier under the seat or in a pet carrier in the cargo compartment;
• travelling without her dog; or
• cancelling her reservation.

[43] Ms. Miller was also informed that it would be her responsibility to obtain the documentation required for her dog to travel as a service dog, if applicable.

[44] Ms. Miller wanted to speak with an agent from the Special Care Desk for information about how to certify her dog before travel. If that was not possible, Ms. Miller wanted to know whether there was a new regulation coming for ESAs and she wanted to obtain more information about travelling with her dog in a pet carrier. She explains that being prepared is helpful for her and that she was worried about not being able to have her dog certified in time and, if not, whether she could reach into the pet carrier to pet her dog during travel.

[45] Ms. Miller states that she was on hold for an hour and a half when she telephoned the Special Care Desk and that she was unable to talk to anyone. She adds that she telephoned the regular line and that it took at least four days before getting a call back.

WestJet

[46] WestJet submits that Ms. Miller was provided sufficient information on multiple occasions. WestJet points out that the Special Care Desk informed Ms. Miller on August 18, 2021, that she could travel with her dog as a pet in cabin, although ESAs were no longer accepted, and that the Special Care Desk sent an email to Ms. Miller on August 19, 2021, to inform her of several options available to her in lieu of having her dog travel as an ESA.

[47] WestJet further states that all of the information regarding WestJet’s acceptance of service dogs, the ending of the ESA program, and the requirements for travel with a pet in the cabin were also available on WestJet’s website.

Analysis and determination

[48] The evidence on file demonstrates that the information required for Ms. Miller to travel with her dog was both provided to Ms. Miller by the Special Care Desk by email and also available on WestJet’s website. The Special Care Desk was responding to Ms. Miller’s email; therefore, it appears that she could have asked them by email any other questions she had about travelling with her dog.

[49] Ms. Miller states that she tried to reach the Special Care Desk by phone without success, and that she also called the regular line but that it took at least four days before getting a call back. Based on this, it seems that she was able to talk to an agent from the general line before travel. However, Ms. Miller does not indicate what was discussed. Considering that Ms. Miller received the information by email and that the information was also available on WestJet’s website, the Agency considers that the level of service was acceptable in the circumstances.

[50] The Agency therefore finds that Ms. Miller did not face a barrier in regard to the communication of information before travel.

Service by WestJet personnel on August 26, 2021

Positions of the parties

Ms. Miller

[51] Ms. Miller submits that she had a negative experience with WestJet personnel when she checked in for her outbound flight at the airport in Toronto. She explains that she was nervous about her dog being in a pet carrier and told a customer service agent that it was a step back for WestJet to have removed the ESA program, that it was hard to afford the pet carrier and that she was concerned about travel. According to Ms. Miller, the customer service agent told her that riding as a companion was a privilege and kept repeating, at high volume, that she was insulting WestJet.

[52] Ms. Miller submits that she neither asked for the pet in the cabin fee to be waived nor said that she should not have been charged. Ms. Miller submits that, although the agent recognized that she was nervous, they showed no empathy. She indicates that she never needed calming down, just a kind ear, and that she was vulnerable, trying to connect but being misunderstood.

[53] Ms. Miller states that her dog had its head out of the pet carrier when she boarded the aircraft for her outbound flight and that one of the flight attendants ordered her to have her dog’s head in the bag. Ms. Miller further states that she put the pet carrier under the seat lengthwise and that it was fully under; however, the flight attendant made her put the bag the other way. Ms. Miller states that the flight attendant told her that she was a standby passenger and that they could remove her from the aircraft.

[54] Ms. Miller explains that she was seated in the back of the aircraft by the aisle and that it seemed like the flight attendant was intentionally hitting her every time she walked by. Ms. Miller states that when disembarking she heard the flight attendant say goodbye “in a singing snide voice.” Ms. Miller states that she did not turn around as she felt the flight attendant was directing some anger and attitude towards her.

[55] Ms. Miller submits that when she recounted what had happened to a different flight attendant, he told her that it was because she had two complaints against her for having an attitude.

[56] Ms. Miller indicates that there are factual inaccuracies in the statements of the customer agent and the flight attendant; they exaggerate her from being nervous to being an unruly passenger. In particular, Ms. Miller denies having said that her dog did not need to be in a pet carrier, that she was consulting with a legal team to bring a lawsuit against WestJet, that the flight attendant would not be included in the lawsuit if she allowed Ms. Miller to let her dog out of the carrier, and that the flight attendant would be hearing from her lawyer.

WestJet

[57] WestJet submits that both the customer service agent and the flight attendant completed incident reports regarding their interactions with Ms. Miller.

[58] The customer service agent states that Ms. Miller was travelling on standby, that she was nervous when she arrived at the counter and that she was upset to pay CAD 50 to travel with her dog as a pet in the cabin. The customer service agent indicates that Ms. Miller stated that WestJet was going downhill as a company. Ms. Miller also stated that it was unfair that WestJet took away the ESA program and argued that she should not be charged the pet in-cabin fee. The customer service agent indicates that she tried calming Ms. Miller down.

[59] The flight attendant notes that Ms. Miller’s dog was not fully contained within the pet carrier when she boarded the aircraft. Ms. Miller was asked to please ensure that the pet was enclosed in the pet carrier. The flight attendant states that Ms. Miller stated that her dog is an ESA and that it did not need to be in a pet carrier. The flight attendant states that she explained to Ms. Miller that WestJet was no longer accepting ESAs and that her dog was listed as a pet in the cabin and subject to different rules. The flight attendant indicates that Ms. Miller was aware of the rules and said that she was consulting with a legal team to bring a lawsuit against WestJet for a human rights violation. The flight attendant states that Ms. Miller told her that she would be included in the lawsuit if she did not show compassion and allow her dog to act as an ESA.

[60] The flight attendant further states that she provided Ms. Miller with the special briefing for passengers travelling with a pet. The flight attendant states that Ms. Miller then asked her if she could look the other way and permit the dog to remain outside of the pet carrier. The flight attendant indicates that Ms. Miller was informed that her dog needed to remain within the pet carrier, except when the seatbelt sign was turned off, at which time the pet carrier could be opened briefly to administer food, water and medication. The flight attendant states that Ms. Miller was quiet throughout the flight and that her dog remained under her seat in its pet carrier. The flight attendant submits that, during disembarkation, Ms. Miller told her that she would be hearing from Ms. Miller’s lawyer.

[61] WestJet indicates that the two incident reports were prepared on the day of the flight and that they contain detailed recollections from both employees regarding their interactions with Ms. Miller. WestJet specifies that customer service agents and cabin crew members undergo specialized and extensive training, so that they can perform their duties and responsibilities and provide excellent customer service. WestJet submits that the evidence demonstrates that Ms. Miller’s own behaviour was the root cause of these negative interactions, and it submits that, therefore, neither constitutes a barrier.

Analysis and determination

[62] The evidence submitted by the parties is contradictory. Ms. Miller alleges that the customer service agent and the flight attendant were unprofessional, whereas WestJet is of the opinion that it is Ms. Miller’s behaviour that was the root cause of these negative interactions. It is uncontested that Ms. Miller was nervous on that day and that her behaviour might have been misunderstood by the customer service agent and the flight attendant. However, both the customer service agent and the flight attendant provided the services required to Ms. Miller and explained the rules to travel with a pet in the cabin.

[63] In this case, as Ms. Miller is the applicant, she bears the burden of proof. Therefore, she must convince the Agency, on a balance of probabilities, that her version of events is more probable than that of WestJet. Based on Ms. Miller’s multiple emails filed as evidence, including their content and tone, and based on her refusal to accept the information that the Special Care Desk provided to her in writing, the Agency finds that WestJet’s version of events is more probable than Ms. Miller’s version of events.

[64] Therefore, the Agency finds that Ms. Miller has not met her burden of proof to demonstrate that her version of events is more probable than that of WestJet and that she faced a barrier.

Conclusion

[65] The Agency finds that Ms. Miller is a person with a disability with respect to Crohn’s disease, that her dog does not qualify as a service dog nor as an ESA, and that she did not face a barrier. Therefore, the Agency dismisses the application.

 

Legislation or Tariff cited	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	Part V; 169.5; 172(1); 172(2)
Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244	1(1); 51(1); 51(2); 51(4)