Letter Decision No. LET-AT-A-73-2020

SUMMARY

[1] WestJet filed an application with the Agency, pursuant to section 32 of the CTA, requesting that the Agency review Decision No. 66-AT-A-2010, Decision No. 430‑AT‑A‑2011 and Decision No. 227-AT-A-2012, regarding the accommodation for persons whose allergies to cats constitute a disability. WestJet argues that the coming into force of the Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244(ATPDR) constitutes a change in the facts and circumstances that warrants a review of the Agency’s order with respect to buffer zones in Decision No. 227‑AT-A-2012.

[2] The Agency notes that the issues raised by WestJet’s application are also relevant to Decision No. 228-AT-A-2011 and Decision No. 134-AT-A-2013, wherein the Agency issued similar orders regarding buffer zones as an accommodation for persons whose allergies to peanuts and/or nuts constitute a disability. WestJet’s application has thus prompted the Agency to consider whether it should review, rescind or vary Decision No. 227-AT-A-2012, Decision No. 228-AT-A-2011 and Decision No. 134-AT-A-2013 (Allergy Decisions).

[3] The Agency will address the following issues:

1. Has there been a change in the facts or circumstances pertaining to the Allergy Decisions?
2. If there has been a change in the facts or circumstances, is it significant enough to warrant a review, a rescission and/or a variance of the Allergy Decisions?

[4] The parties involved in the cases that led to the issuance of the Allergy Decisions are invited to submit their positions with regard to these issues in accordance with the following time limits:

• WestJet, Air Canada and Jazz Aviation LP, as represented by its general partner, Aviation General Partner Inc. (Jazz Aviation) may file submissions on or before December 3, 2020;
• the original applicants and interveners may file responding submissions within ten business days from the date of receipt of WestJet’s, Air Canada’s and Jazz Aviation’s submissions; and
• WestJet, Air Canada and Jazz Aviation may file reply submissions within five business days from the date of receipt of the responding submissions of the original applicants and interveners.

BACKGROUND

Allergy Decisions

[5] The Agency issued the Allergy Decisions in the early 2010s in response to six applications filed against three Canadian air carriers regarding the applicants’ allergies and the accommodations required in the aircraft environment.

[6] The Agency’s jurisdiction to remove undue obstacles to the mobility of persons with disabilities in the federal transportation network is, as it was then, set out in Part V of the CTA. During the period of these three cases, the Agency applied a three-step process to adjudicating complaints pursuant to Part V of the CTA. This process, as set out in Decision No. 227‑AT-A-2012, was as follows:

…. The Agency must determine whether:

1. 1. the person who is the subject of the application has a disability for the purposes of the CTA;
   2. an obstacle exists because a person was not provided with appropriate accommodation to address their disability-related needs. An obstacle is a rule, policy, practice, physical barrier, etc. that has the effect of denying equal access to services offered by the transportation service provider that are available to others; and,
   3. the obstacle is “undue.” An obstacle is undue unless the transportation service provider demonstrates that there are constraints that make the removal of the obstacle either unreasonable, impracticable or impossible, such that to provide any form of accommodation would cause the transportation service provider undue hardship. If the obstacle is found to be undue, the Agency will order corrective measures necessary to remove the undue obstacle.

HUYER AND NUGENT v. AIR CANADA

[7] Sophia Huyer and Rhonda Nugent, on behalf of her daughter Melanie Nugent, each filed applications against Air Canada concerning their allergies to peanuts and nuts. In addition to hearing pleadings from the parties involved in this case, the Agency also heard from expert witnesses on the appropriate accommodation before it issued its final decision on June 16, 2011, in Decision No. 228-AT-A-2011.

[8] At paragraph 64 of that Decision, the Agency ordered that when Air Canada is given advance notice by persons with disabilities due to their allergy to peanuts or nuts, , Air Canada is obligated to create a buffer zone, the size of which is dependent on the class of seating where the passenger with a nut or peanut allergy is seated. The Agency also ordered that Air Canada not serve or allow other passengers to consume nuts or peanuts within that buffer zone.

ROSENBAUM v. AIR CANADA AND JAZZ AVIATION

[9] Steven Rosembaum filed an application against Air Canada and Jazz Aviation with respect to his two minor sons’ peanut, nut and sesame seed allergies. The Agency stayed this case until the issuance of Decision No. 228-AT-A-2011, referenced above, because the issues addressed in both cases were similar. When the case was resumed, Mr. Rosembaum was then provided with the opportunity to comment on whether the accommodation measures ordered in Decision No. 228-AT-A-2011 were sufficient for his sons, and if not, to provide evidence, including medical evidence, that a different accommodation was needed to address his sons’ disability-related needs.

[10] The Agency found in Decision No. 134-AT-A-2013, issued on March 28, 2013, that the accommodation set out in Decision No. 228-AT-A-2011 equally applied to this case, such that the Agency ordered Jazz Aviation, at paragraph 43, to continue to provide the accommodation ordered in Decision No. 228-AT-A-2011, as it pertains to nut and peanut allergies. In addition, the Agency ordered Air Canada and Jazz Aviation to provide a seating separation for persons with allergies to foods other than peanuts and nuts, including sesame seeds, upon request, “in combination with precautions that person[s] with severe allergies would be expected to take in their daily lives”.

COVELL AND DAVIAU v. AIR CANADA AND SPENCE v. AIR CANADA, JAZZ AVIATION AND WESTJET

[11] The Agency joined applications filed by Katherine Covell and Sarah Daviau, each against Air Canada, and an application by Dr. J. David Spence against Air Canada, Jazz Aviation and WestJet into one proceeding as the Agency found in Decision No. 66‑AT‑A-2010 that all three applications raised a common issue with regard to the applicants’ allergies to cats.

[12] During the case, the Agency considered evidence from expert witnesses in other cases regarding allergies. The Asthma Society of Canada (now Asthma Canada), the International Air Transportation Association, the Canadian Lung Association and People for the Ethical Treatment of Animals were granted intervener status “for the purpose of bringing a specific perspective within their expertise, interest and experience with respect to the issue of appropriate accommodation”, as set out in Decision No. 430-AT-A-2011.

[13] The Agency issued its final determination in this case in Decision No. 227-AT-A-2012 on June 14, 2012, in which it addressed separate orders to WestJet, Air Canada and Jazz Aviation. The Agency ordered the following of WestJet at paragraph 134:

… when at least 48 hours advance notification is provided by persons with a cat allergy disability, [the carrier is] to provide the following appropriate accommodation, with best efforts to do the same when less than 48 hours advance notification is provided:

• • a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a cat allergy disability and cats carried as pets in the cabin, including during boarding and deplaning and between their seat and a washroom.

[14] The Agency ordered Air Canada, at paragraph 135 of Decision No. 227-AT-A-2012, to provide the same accommodation as WestJet with respect to its fleet and the CRJ 705 and CRJ 100/200 aircraft operated by Jazz Aviation. The Agency also ordered Jazz Aviation, at paragraph 136 of that Decision, to ban cats from the aircraft’s cabin when it receives advance notice that a passenger with a cat allergy disability will be travelling on a flight operated on a Dash 8-100/300 aircraft.

[15] The Agency then addressed all three carriers with its order at paragraph 137 by specifying that if their current or future aircraft do not contain HEPA filters, they are required to ban cats when a person with a cat allergy disability is travelling. Finally, at paragraph 138, the Agency ordered the three carriers to develop and implement policies and procedures and to provide training regarding the accommodations ordered.

Ministerial inquiry

[16] In February 2015, the Minister of Transport directed the Agency to conduct an inquiry into the issue of passenger allergies to peanuts, nuts and sesame seeds on board aircraft with 30 or more seats that are used in the federal transportation network. The Agency’s Inquiry Officer completed the report on the Ministerial Inquiry into Allergies to Peanuts, Nuts and Sesame Seeds in Commercial Air Travel (Ministerial Inquiry) in 2016.

[17] During the inquiry, the Inquiry Officer sought independent expertise on how passengers with peanut, nut and sesame seed allergies could be affected if allergens were introduced to them via inhalation, ingestion and topical (dermal) exposure while on board an aircraft. In addition to seeking expert advice, the Inquiry Officer also undertook consultations with air carriers and allergy associations. Finally, the Inquiry Officer examined the allergy policies of Canadian and foreign air carriers, as well as whether any foreign jurisdiction had any related guidelines or regulations.

[18] Ultimately, the Inquiry Officer found that the following measures would be most effective for mitigating the risk of anaphylaxis due to exposure to peanut, nut and sesame seed allergens:

• a buffer zone, consisting of the row in which the allergic passenger sits or the pod-seat, as applicable;
• an announcement to other passengers within the buffer zone that they must refrain from eating peanuts, nuts or sesame seeds or foods containing these;
• not serving meals or snacks containing peanuts, nuts or sesame seeds in the buffer zone (recognizing that any food may contain trace amounts of the allergens);
• advising passengers with allergies to peanuts, nuts and sesame seeds who provide advance notification of their allergies that they are expected to take the same precautions they take during their daily living, including carrying their allergy medication on their person; wiping down their seat area to remove any allergens; bringing their own food;
• abatement, by allowing passengers to wipe down their seating areas;
• having policies on air carrier websites in order to inform passengers on how to make arrangements for accommodation and what their responsibilities are; and,
• training flight crews on signs and symptoms of an allergic reaction.

[19] The Agency accepted the Inquiry Officer’s report in Decision No. 178-AT-A-2016, which was issued on June 8, 2016. The Agency also acknowledged in that Decision that the information contained in the Inquiry Officer’s report may warrant a review of Decision No. 228-AT-A-2011 and Decision No. 134-AT-A-2013.
Accessible Canada Act, SC 2019, c 10

[20] The passing of the Accessible Canada Act into law had the effect of amending the CTA on July 11, 2019, including the addition of new provisions in Part V. One of these new provisions, subsection 172(3) of the CTA, provides the Agency with the authority to find that a barrier exists, even when a carrier is in compliance with the relevant regulatory requirements.

ATPDR

[21] The Agency began consultations in 2016 to develop new accessibility regulations in the context of the federal transportation network as part of the Agency’s Regulatory Modernization Initiative. Several rounds of consultations were held between 2016 and 2019 with persons with disabilities (including disability rights organizations), the industry, members of the Agency’s Accessibility Advisory Committee and the general public. These consultations were informed in part by the Accessible Transportation Discussion Paper for Regulatory Modernization. Consultations held in 2016 and 2017 were summarized in A What We Heard Summary Report on Accessible Transportation.

[22] Following this consultative process, the Agency developed the ATPDR, which build on two existing regulations, six codes of practice and best practices from Canadian and other jurisdictions to create one comprehensive and legally binding regulation. The ATPDR were pre-published in Part I of the Canada Gazette on March 9, 2019, after which stakeholders were provided with a 30-day comment period. The final version of the ATPDR were published in Part II of the Canada Gazette on July 10, 2019.

[23] Most of the provisions of the ATPDR came into force on June 25, 2020, including section 53, which sets out the obligation for air, rail, marine and bus carriers, as defined by Part 2, to establish an allergy buffer zone. It reads as follows:

Duty to establish buffer zone

(1) On the request of a person who has a disability due to a severe allergy, a carrier must ensure that a buffer zone is established around the passenger seat of the person to assist them in avoiding the risk of exposure to the allergen by taking the following measures:

(a) providing the person with a passenger seat that is in a bank of seats other than the bank of seats in which the source of the
     allergen is located and other than the bank of seats facing that bank of seats; and

(b) notifying the passengers who are sitting in the same bank of seats as the person that a passenger with a severe allergy is present
     and informing them of the allergen.

Definition of bank of seats

(2) In this section, bank of seats means passenger seats that are immediately adjacent to each other and does not include passenger seats
     that are across the aisle.

WestJet’s application for section 32 review

[24] WestJet filed an application with the Agency, pursuant to section 32 of the CTA, on June 9, 2020, requesting that the Agency review Decision No. 66-AT-A-2010, Decision No. 430‑AT-A-2011 and Decision No. 227-AT-A-2012. WestJet argues that the coming into force of the ATPDR constitutes a change in the facts and circumstances that warrants a review of those decisions, specifically the order for a five-row buffer zone set out in Decision No. 227-AT-A-2012.

PRELIMINARY MATTERS

WestJet’s application

[25] WestJet includes in its application a request that the Agency review Decision No. 66‑AT‑A-2010, Decision No. 430-AT-A-2011 and Decision No. 227-AT-A-2012, all of which were issued in the Covell, Daviau and Spence case, although it specifies that the relief that it is seeking is that the Agency review the order contained in Decision No. 227‑AT‑A‑2012. The Agency will not address Decision No. 66-AT-A-2010 and Decision No. 430-AT-A-2011 in its review, which will focus on the order set out in Decision No. 227-AT-A-2012.

Own-motion review

[26] On its own motion and pursuant to section 32 of the CTA, the Agency determines that it is appropriate to review its orders in the Allergy Decisions concurrently, as the Agency’s orders in all three decisions require buffer zones greater than one row of seats.

[27] The applicants, the interveners and the respondents involved in the cases that led to the issuance of the Allergy Decisions are invited to file submissions on whether and how the Agency should rescind or vary its orders in these decision.

THE LAW

[28] Section 32 of the CTA states:

The Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

[29] Subsection 172(3) of the CTA now states:

If the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency may determine that there is an undue barrier in relation to that matter but if it does so, it may only require the taking of appropriate corrective measures.

ANALYSIS AND PRELIMINARY DETERMINATION

[30] The Agency examined section 32 of the CTA in depth in Decision No. 488-C-A-2010 (Fowlie Decision). The test set out by the Agency in the Fowlie Decision is described in Decision No. 86-C-A-2017, as follows:

The burden of proof rests on the applicant requesting the review pursuant to section 32 of the CTA to provide the Agency with sufficient evidence demonstrating that the two following criteria have been met:

Since the decision, there has been a change in the facts or circumstances pertaining to the decision that was not known or was undiscoverable by the applicant at the time of the hearing.

The change in the facts or circumstances is significant enough to warrant a review, rescission and/or variance of the decision.

[31] The Agency finds, on a preliminary basis, that the first part of the legal test for a review of the Allergy Decisions is met in that the results of the Ministerial Inquiry and the ATPDR are new facts and circumstances that were not known or discoverable at the time of the hearing of the cases that led to the issuance of the Allergy Decisions.

[32] Thus, the issues that remain before the Agency are the following:

• whether the Agency should finalize its preliminary finding that the first part of the test for a review of the Allergy Decisions is met; and
• whether the Agency should find that the new facts and circumstances are significant enough to warrant a rescission or a variance of the Allergy Decisions pursuant to section 32 of the CTA.

[33] The ATPDR constitute a set of common requirements that are designed to ensure equal access of persons with disabilities, including those with severe allergies, to the federal transportation network. Those requirements were established following extensive consultations with a wide range of stakeholders and experts, including persons with disabilities and disability rights organizations. The Agency will not be revisiting these requirements during its review of the Allergy Decisions. That said, subsection 172(3) of the CTA allows the Agency to find that an undue barrier to the mobility of persons with disabilities exists, even when the Agency is satisfied that regulations have not been contravened. In such cases, the Agency may order additional corrective measures in specific circumstances where it finds that the regulations are insufficient to remove undue barriers to individuals or groups with particular disabilities. Therefore, in addressing the second issue set out above, the Agency will consider whether the original applicants in the Allergy Decisions have specific needs that are not adequately addressed by the standard that is established in section 53 of the ATPDR, such that corrective measures can be justified, consistent with subsection 172(3) of the CTA.

NEXT STEPS

[34] The parties to the cases that led to the issuance of the Allergy Decisions are invited to file their positions on the following issues:

1. whether the Agency should finalize its preliminary finding that the Ministerial Inquiry and the ATPDR are new facts and circumstances that were not known or discoverable at the time of the hearing of the cases that led to the issuance of the Allergy Decisions; and
2. if so, whether the Agency should find that the new facts and circumstances are significant enough to warrant the rescission or the variance of the Allergy Decisions pursuant to section 32 of the CTA.

[35] WestJet, Air Canada and Jazz Aviation may file their respective submissions with the Agency by 5:00 p.m. Gatineau local time on December 3, 2020.

[36] The original applicants and interveners will then have until 5:00 p.m. Gatineau local time on the tenth business day after the date of receipt of WestJet’s, Air Canada’s and Jazz Aviation’s submissions to file their submissions.

[37] WestJet, Air Canada and Jazz Aviation may then submit their reply submissions by 5:00 p.m. Gatineau local time on the fifth business day from the date of receipt of the original applicants’ and interveners’ responding submissions.

[38] Other interested persons may file a position statement with the Agency. The deadline to file such position statements is December 3, 2020.

[39] The parties are reminded to copy all other parties on all submissions. All correspondence and pleadings should refer to Case No. 20-05413 and be filed through the Agency’s Secretariat e-mail address at secretariat@otc-cta.gc.ca.

Note: Due to the time limits involved and the widespread availability of technology, submissions by ordinary mail will no longer be accepted by the Agency unless, in exceptional circumstances, a person has requested and received approval from the Agency to use ordinary mail. In those instances, extended time limits will be established for the exchange of pleadings and the processing of the case will take longer.