Letter Decision No. LET-AT-A-47-2023

Summary

[1] Kandi Smiley filed an application with the Canadian Transportation Agency (Agency) against Air Canada concerning Air Canada’s alleged failure to accommodate her disability-related needs by not accepting her dog as planned on her scheduled flight on August 21, 2019. Ms. Smiley asserted that her dog was a service dog, but Air Canada treated it as an ESA.

[2] Ms. Smiley seeks training for Air Canada employees and monetary compensation for “effects to dignity and emotional effects”.

[3] In Decision LET-AT-A-42-2022 (Disability Decision), issued on October 4, 2022, the Agency found that Ms. Smiley is a person with a disability. The Agency further found, on a preliminary basis, that Ms. Smiley’s dog is not a service dog.

[4] In Decision LET-AT-A-6-2023 (Barrier Decision), issued on February 14, 2023, the Agency confirmed its preliminary finding that Ms. Smiley’s dog is not a service dog under federal accessibility regulations made under the Canada Transportation Act (CTA) and, rather, is an ESA. The Agency also found that Ms. Smiley faced a communication barrier with respect to the Medical Assistance Desk’s (Meda Desk) failure to:

• properly assess the information Ms. Smiley provided about the size of her ESA so that it could notify her in advance of the problem with space on the smaller aircraft used for her flight and potentially change her reservation to a later flight on a larger aircraft; and
• properly inform Ms. Smiley of the possibility that she could not travel with her ESA on her scheduled flight.

[5] Following the completion of Part 1 of the Agency’s two-part approach with the issuance of the Disability and Barrier Decisions, the Agency declined to proceed immediately to open pleadings on Part 2 of its approach, to determine whether the barrier was undue. Instead, it decided to consider the issue of travel with ESAs in the context of a number of cases that were joined together, including Ms. Smiley’s (ESA proceeding). The applications were joined in Decision LET-AT-55-2022 (Preliminary ESA Decision) to provide an efficient process to consider, from a broader perspective, whether carriers should be required to transport ESAs within the federal transportation network and, if so, under what conditions. The Agency indicated that once a final decision was issued in the ESA proceeding, it would return to consider Part 2 of its approach in Ms. Smiley’s case.

[6] The Agency provided parties and interested persons with an opportunity to respond to the Agency’s Preliminary ESA Decision. The Agency received submissions from most parties, including Ms. Smiley and Air Canada, which it took into consideration. On June 23, 2023, the Agency issued Decision 105-AT-C-A-2023 in the ESA proceeding (Final ESA Decision). In the Final ESA Decision, the Agency found, amongst other things, that while domesticated dogs may generally be suitable as ESAs, the unrestricted carriage of emotional support dogs (ESDs) would cause undue hardship for carriers due to health safety risks, animal behaviour and welfare concerns, and the impacts of fraudulent representation of pets as ESDs. One of the conditions identified by the Agency to manage the risks inherent in the carriage of ESDs is that the ESD must fit comfortably in an appropriate animal carrier that must fit and be kept under the seat in front of the person with a disability for the duration of the trip by air.

[7] Following the issuance of the Final ESA Decision, the Agency issued Decision LET‑AT‑A‑26-2023 on August 9, 2023, and returned to Ms. Smiley’s case to open pleadings on Part 2 of its approach, which is described in the law section below. The Agency noted that Ms. Smiley’s ESA is too large to fit in an animal carrier under the seat in front of her on an aircraft, but indicated that the Agency would not address the future acceptance or carriage of Ms. Smiley’s ESA in the proceeding because the barrier identified by the Agency in Part 1 is related to the communication of information by Air Canada when it accepted Ms. Smiley and her ESA for carriage, and this decision is limited to this issue.

[8] Accordingly, in this decision the Agency will address whether Air Canada can remove the communication barrier identified in Part 1 without experiencing undue hardship and, if so, whether remedies should be ordered.

[9] For the reasons set out below, the Agency:

1. finds that the barrier Ms. Smiley faced is undue;
2. orders Air Canada to implement a corrective measure to address the barrier; and
3. orders Air Canada to compensate Ms. Smiley for pain and suffering in the amount of CAD 1,000 and for expenses in the amount of CAD 30.

Preliminary matter

[10] Air Canada rescinded its policy on the carriage of ESAs and stopped accepting them in the cabin on March 1, 2021. In its submission, Air Canada stated that it has no intention of accepting ESAs on board as a matter of policy and referred to an absence of evidence that the Agency would impose the acceptance of ESAs on board through regulation.

[11] However, in the Final ESA Decision, the Agency found that carriers have an obligation to accept ESDs, free of charge, under certain conditions. Therefore, as indicated in Decision LET-AT-C-A-36-2023 (Maxwell v Air Canada), the Agency expects Air Canada to implement an appropriate policy with respect to ESDs.

The law

[12] 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.

[13] 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.

[14] In this decision, the Agency will address Part 2 of this approach.

[15] If the Agency finds that a person with a disability faced an undue barrier or has been adversely affected by a contravention of regulations, it may order the carrier to take appropriate corrective measures, to reimburse the person for expenses incurred and wages lost as a result of the contravention or undue barrier, to compensate the person for their pain and suffering and to compensate the person if the undue barrier or contravention of regulations is the result of a wilful or reckless practice.

Undue hardship and corrective measure

Positions of the parties

[16] Air Canada provides no arguments in respect of undue hardship. However, it proposes the following corrective measure:
 

• to include in its interaction scripts for its Meda Desk personnel:

• • an explanation of the general process around ESAs; and
  • warnings that the passenger might not be able to travel as planned, if, for example, an ESA is assessed as unsuitable for carriage at any point of the trip; there is not enough space on the aircraft due to the size of the ESA, the size and configuration of the aircraft; or the equipment planned for a flight changes.

and

• to obtain from passengers travelling with an ESA a response indicating their understanding of the explanation and warning above.

[17] Ms. Smiley did not comment on undue hardship or the corrective measure.

Analysis and determination

[18] Air Canada did not provide any arguments in respect of undue hardship and proposes a corrective measure to address the barrier. Therefore, the Agency finds that Air Canada did not demonstrate that it cannot remove the barrier without experiencing undue hardship.

[19] The Agency finds that, in order for the corrective measure Air Canada proposes to appropriately remove the barrier, Air Canada must, in developing its scripts, include the obligation set out in the Final ESA Decision to carry ESDs under certain conditions: for example, on condition that the ESD fits comfortably in an appropriate animal carrier that fits under the seat in front of the person with a disability. The scripts must also set out that Air Canada’s Meda Desk personnel correctly assess the size of ESDs and their animal carriers in order to determine if the ESD will fit in an animal carrier under the seat.

[20] The Agency orders Air Canada to provide a copy of its updated interaction scripts with respect to ESAs for the Agency’s approval, through the Agency’s Secretariat, by no later than January 26, 2024.

Compensation for pain and suffering

Positions of the parties

Ms. Smiley

[21] Ms. Smiley states that she needed four years of therapy to be able to travel away from home and that those years were almost completely negated by her experience with Air Canada.

[22] Ms. Smiley submits that the incident triggered an episode of Post-Traumatic Stress Disorder (PTSD) and that she was very embarrassed and ashamed about having an episode in public. Ms. Smiley submits that she was able to travel again months later by using the tools she learned in therapy, but that she is still nervous about travelling by air and that this nervousness and anxiety may never go away.

Air Canada

[23] Air Canada submits that Ms. Smiley’s submissions are contradictory because her initial complaint only alleged that the incident caused her stress, embarrassment and humiliation.

[24] Air Canada submits that there is no medical evidence to support Ms. Smiley’s submissions. Air Canada refers to the Medical Information Form (MIF) submitted on January 31, 2022, in which Ms. Smiley’s doctor reports that her symptoms have continued for more than 10 years and does not make reference to any setback. Air Canada submits that, because there is no medical evidence to demonstrate the alleged setback, there is no ground for the Agency to award compensation for pain and suffering.

Analysis and determination

[25] The Agency has authority to order compensation for the pain and suffering experienced by a person with a disability arising out of an undue barrier to their mobility. Pain and suffering can be expressed in various forms, including stress, anxiety, depression, physical pain or suffering, humiliation or loss of dignity, and any combination of these factors. The Agency assesses pain and suffering on a case-by-case basis.

[26] To determine the amount of compensation that it will award for pain and suffering, the Agency must weigh the evidence before it, taking into account considerations such as the extent and duration of the distress experienced by the applicant. The award must be fair and reasonable, but compensation for pain and suffering is difficult to quantify. As the Supreme Court of Canada recognized in Andrews v Grand & Toy Alberta Ltd., placing a value on non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one because money cannot provide true restitution.

[27] The failure of the Meda Desk to correctly assess the information provided by Ms. Smiley and the subsequent lack of communication from Air Canada resulted in Air Canada’s inability to carry her on her scheduled flight, which, in turn, caused her to have a PTSD episode in public. Although Ms. Smiley did not corroborate her claim of pain and suffering with medical records, reports or other documentary evidence, the Agency finds that such corroboration is not necessary in this case. The MIF Ms. Smiley filed during this proceeding describes the seriousness of her condition, including panic attacks and anxiety. Given the nature of her medical condition, the Agency accepts her claim that the incident had a negative impact on her. However, the Agency also notes that Ms. Smiley was able to travel by air again a few months later.

[28] Therefore, the Agency finds that the evidence in this case does not demonstrate an impact so extreme as to warrant compensation at or approaching the maximum amount allowed by the CTA. The Agency finds that it is appropriate to award compensation for pain and suffering to Ms. Smiley in the amount of CAD 1,000.

Compensation for wilful and reckless practice

Positions of the parties

Ms. Smiley

[29] Ms. Smiley states that she was not treated as someone who has a medical or mental issue and that the way the situation was handled was very unprofessional. She submits that she had provided all necessary information to Air Canada in advance of travel to prevent any issues.

Air Canada

[30] Air Canada states that the Agency has not found any unprofessional, wilful or reckless conduct on the part of Air Canada personnel and did not suggest that there might have been any. Air Canada submits that the Agency only indicated that if the miscommunication with the Meda Desk had not occurred, the interaction at the boarding gate would presumably not have occurred.

Analysis and determination

[31] Unlike awards of compensation for pain and suffering, compensation for wilful or reckless practice is intended to discourage those who deliberately or carelessly disregard their obligations. In the context of discrimination cases, Canadian appellate courts have generally found that wilfulness requires that the discriminatory act and the infringement of the person’s rights be intentional, whereas recklessness usually denotes acts that disregard or show indifference for the consequences such that the conduct is done wantonly or heedlessly. In Hughesv Canada (Attorney General), the Federal Court clarified that a finding of recklessness does not require proof of intention to discriminate. The focus of this analysis is on the respondent’s conduct and not the effect of the conduct on the applicant. For this reason, the applicant is not required to provide evidence of loss.

[32] In determining whether such compensation is appropriate and the amount of any such compensation, the Agency may take into account considerations such as the nature and gravity of the act and the duration of the discriminatory conduct, including whether it was repeated or sustained.

[33] The Meda Desk’s failure to properly assess the information Ms. Smiley provided about the size of her ESA and to properly inform her of the possibility that she could not travel with her ESA on her scheduled flight resulted in the last-minute requirement to move Ms. Smiley to a flight departing two hours later. While Ms. Smiley’s disability made this last-minute change difficult for her to manage, Air Canada’s conduct does not appear to be an intentional infringement of her rights; nor is there any evidence of bad faith on the part of Air Canada or its personnel. Furthermore, neither Air Canada’s conduct nor that of its personnel denotes acts that disregard or show indifference for the consequences such that the conduct is done wantonly or heedlessly.

[34] The Agency therefore finds that Air Canada’s conduct was neither wilful nor reckless.

Compensation for expenses

Positions of the parties

Ms. Smiley

[35] Ms. Smiley indicates that she had to buy food for herself and her son. She does not indicate how much she spent for food and has no receipt. Ms. Smiley also states that her brother, who lives 75 minutes from the airport, encountered additional travel because of the incident.

Air Canada

[36] Air Canada submits that Ms. Smiley should not be reimbursed for any expenses, given that she continued to travel with Air Canada rather than travelling with a competitor. Air Canada also submits that Ms. Smiley still travels with Air Canada even though her ESA is not accepted for carriage. If the Agency finds that expenses should be awarded, Air Canada submits that an Air Canada e-coupon of CAD 200 would be a reasonable award.

Analysis and determination

[37] The Agency has the authority to direct that compensation be paid for any expense incurred by a person with a disability arising out of an undue barrier.

[38] The Agency notes that, under the Air Passenger Protection Regulations, passengers experiencing a flight delay of at least two hours after their scheduled departure time for reasons within the carrier’s control may be entitled to food and drink.

[39] Ms. Smiley indicates that she purchased food for herself and her son and that her brother encountered additional travel because of the incident. While the Agency has authority to compensate a person with a disability for expenses that they incurred arising from an undue barrier, it does not have the authority to award expenses to individuals other than the person with disability.

[40] Although Ms. Smiley does not indicate what amount she seeks for meal expenses and has no receipt, the Agency finds it reasonable that she would have bought food as a result of being rebooked on a flight departing two hours later.

[41] The Agency finds it appropriate to award compensation for expenses to Ms. Smiley in the amount of CAD 30 for the food she bought for herself and her minor son, who was fifteen at the time.

Order

[42] The Agency orders Air Canada to:

1. provide updated interaction scripts with respect to ESAs to its Meda Desk personnel. Air Canada must, in developing its scripts, include the obligation set out in the Final ESA Decision to carry ESDs under certain conditions. The scripts must also set out that its Meda Desk personnel must correctly assess the size of ESDs and the animal carrier in order to determine if the ESD will fit in an animal carrier under the seat; and
2. compensate Ms. Smiley for pain and suffering in the amount of CAD 1,000 and for expenses in the amount of CAD 30.

[43] Air Canada is to provide a copy of its updated interaction scripts with respect to ESAs for the Agency’s approval, through the Agency’s Secretariat, by no later than January 26, 2024, and provide a copy to Ms. Smiley, following which Ms. Smiley will have five business days to file a reply with the Agency and provide a copy to Air Canada.

[44] Air Canada is to pay the amount of compensation for pain and suffering and expenses as soon as possible and no later than January 26, 2024,  and to confirm with the Agency’s Director General, Determinations and Compliance Branch, through the Agency’s Secretariat, that the payment has been made.

[45] All correspondence and pleadings should refer to Case 21-00896 and be filed through the Agency’s Secretariat email address: secretariat@otc-cta.gc.ca.

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Legislation or Tariff referenced	Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10	169.5; 172(1); 172(2); 172.1(2)
Andrews v Grand & Toy Alberta Ltd., [1978] 2 SCR 229	261
Hughes v Canada (Attorney General), 2019 FC 1026	89
Air Passenger Protection Regulations, SOR/2019-150	14