Letter Decision No. LET-AT-A-8-2024

February 21, 2024

Application by Christopher Basaraba against WestJet regarding a barrier to mobility related to mask exemption

Case number: 
23-19389

Summary

[1] Christopher Basaraba filed an application with the Canadian Transportation Agency (Agency) against WestJet regarding WestJet’s denial of a mask exemption request during the COVID-19 pandemic.

[2] Mr. Basaraba seeks compensation for pain and suffering in the amount of CAD 20,000, a special compensation in the amount of CAD 20,000 and an unspecified amount for expenses incurred to rent a car to drive from Fort McMurray, Alberta, to Calgary, Alberta, to attend an important medical appointment on April 4, 2022, including gas and meals.

[3] The Agency will address the following issues:

  1. Is Mr. Basaraba a person with a disability?
  2. Did Mr. Basaraba face a barrier?
  3. Did WestJet contravene any applicable accessibility regulations?

[4] For the reasons set out below, the Agency finds that:

  1. Mr. Basaraba is a person with a disability.
  2. Mr. Basaraba faced a barrier when WestJet refused to accept his medical note in support of his mask exemption request, thereby preventing him from travelling on his scheduled flight.
  3. No accessibility regulations made under the CTA are applicable to this incident. The Agency therefore has authority to order any of the remedies listed under the CTA if it finds during Part 2 of this proceeding that the barrier is undue.

Background

[5] Mr. Basaraba was scheduled to travel with WestJet from Fort McMurray to Calgary, on April 3, 2022. After boarding the aircraft, he presented a medical note exempting him from wearing a mask to the flight attendants and the captain but was nonetheless disembarked and refused transportation.

The law

Accessibility

[6] 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. 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.

[7] In this decision, the Agency will address Part 1 of its two-part approach.

Scope of the Agency’s remedial powers

[8] When the Agency finds that there is an undue barrier or that a person with a disability was adversely affected by a contravention of accessibility regulations, it has the power under the CTA to require that the respondent take appropriate corrective measures and, where appropriate, compensate that person for any expenses arising out of, or for lost wages incurred as result of, the undue barrier or contravention. The Agency also has the power under the CTA to award compensation for pain and suffering arising out of an undue barrier or contravention, or where the undue barrier or contravention is the result of a wilful or reckless practice, up to a maximum of CAD 20,000 each (subject to annual adjustments).

[9] However, where the Agency finds that the carrier has complied with or not contravened the applicable regulations but nonetheless finds an undue barrier, the CTA limits the scope of the Agency’s remedial powers to corrective measures – no monetary award is available. As a result, the Agency must determine whether there are any accessibility regulations that are applicable in a given case in order to determine what remedies may be available to the applicant.

[10] In this decision, the Agency will also address whether there are any accessibility regulations made under the CTA that are applicable and, if so, whether WestJet complied with them.

1. Is Mr. Basaraba a person with a disability?

[11] Mr. Basaraba is a lung cancer survivor with severely reduced lung function. He has a medical note dated January 11, 2021, indicating that he has difficulty breathing when wearing a mask due to a medical condition and exempting him from wearing a mask. Mr. Basaraba also indicates that he has another unspecified cancer.

[12] WestJet recognizes that Mr. Basaraba is a person with a disability.

[13] In light of the above, the Agency finds that Mr. Basaraba is a person with a disability.

2. Did Mr. Basaraba face a barrier?

Positions of the parties

Mr. Basaraba

[14] Mr. Basaraba states that he was initially scheduled to travel on a charter flight from the airport at his remote worksite. However, his employer booked him a last-minute flight with WestJet after an issue arose with the charter flight.

[15] Mr. Basaraba states that he presented his medical note at the check-in counter and boarding gate on April 3, 2022, without issue, while not wearing a mask. Mr. Basaraba also states that staff at the airport security screening questioned him about not wearing a mask but allowed him to proceed without a mask upon presentation of his medical note.

[16] After boarding the aircraft, Mr. Basaraba indicates that he presented his medical note to two flight attendants who requested him to disembark to speak with the captain. Mr. Basaraba indicates that he explained to the captain that he had a medical exemption and that he needed to return home for an important medical appointment, but the captain refused him transportation. Mr. Basaraba states that he had to rent a car and drive through the rest of the day and night from Fort McMurray to Calgary to attend his medical appointment scheduled the next day.

[17] Mr. Basaraba submits that Transport Canada’s requirements about wearing a mask also applied to the security screening authority. Therefore, he submits that the acceptance of his medical note by the security personnel indicates that the security screening authority’s interpretation of whether his note qualified as a “medical certificate” is inconsistent with WestJet’s evaluation. Further, Mr. Basaraba indicates that his medical note was consistently accepted by other air carriers he travelled with during the COVID‑19 pandemic, including the charter carrier he took directly to and from his remote worksite, and submits that those air carriers were also subject to the same Transport Canada requirements.

[18] Mr. Basaraba submits that the term “medical certificate” is not defined by Transport Canada. Therefore, WestJet’s position that his medical note was non­compliant is based on its own rules requiring an additional form to be submitted 14 days in advance of the flight. Mr. Basaraba submits that strict application of WestJet’s self-imposed 14‑day advance review of medical certificates would, as in this case, prevent anyone with a valid mask exemption from travelling with WestJet unless they booked the flight at least two weeks in advance.

[19] Mr. Basaraba states that he frequently travels domestically by air for work and was always accommodated with a mask exemption upon presentation of his medical note, including twice with WestJet in 2021 and twice in early 2022. Mr. Basaraba states that he did not know to submit his medical note to WestJet in advance, as that had not been required for his previous flights, and that he could not have done so anyway because his flight was booked at the last minute by his employer. Mr. Basaraba indicates that, in case his employer books him other flights with WestJet, he has now submitted his medical note to WestJet’s Medical Desk and has been approved for an exemption from the masking requirement.

WestJet

[20] WestJet states that, at the time of Mr. Basaraba’s travel, its website provided COVID-19 information indicating that it required all passengers, six years of age or older, to wear a non-medical mask or face covering over their nose, mouth and chin during travel.

[21] WestJet indicates that, in 2020, Transport Canada ordered that all passengers wear a mask during flights, unless they provided a medical certificate indicating that they were unable to do so. Transport Canada published a form with guidelines for the formatting and requirements of such a medical certificate. WestJet states that it implemented a requirement for passengers seeking a medical exemption from the Transport Canada mask obligation to provide a medical certificate, including the information set out in the Transport Canada form, 14 days or more in advance of their flight. WestJet indicates that these requirements and an online application for an exemption were also available on its website at the time of Mr. Basaraba’s travel.

[22] WestJet submits that the incident report completed by the customer service agent contains no indication that Mr. Basaraba presented a medical certificate or note prior to boarding the flight.

[23] WestJet provides a witness statement from the lead flight attendant indicating that, upon boarding, the lead flight attendant and Mr. Basaraba discussed the legal requirement to wear a mask. The lead flight attendant offered a mask to Mr. Basaraba who presented him with his medical note. The lead flight attendant determined that the medical note did not meet the requirements and advised the captain. WestJet states that Mr. Basaraba’s medical note did not include his date of birth and the healthcare provider’s licence number, nor attested that Mr. Basaraba’s disability rendered him unable to wear a non-medical mask or face covering, as required by the Transport Canada form. WestJet further submits that the medical note, dated 15 months prior to the flight, was too old to be relied upon. WestJet submits that Mr. Basaraba needed to provide a medical certificate instead of a medical note, and with advance notice, so that it could verify the mask exemption information and ensure the safety of all passengers.

[24] WestJet provides a witness statement from the captain indicating that they spoke to Mr. Basaraba outside the aircraft. The captain indicates that Mr. Basaraba was wearing a mask at that point, but that it was not positioned properly as his nose was uncovered. The captain submits that he contacted the Flight Standards division (management pilots who can be consulted if needed) and determined that he could not accept Mr. Basaraba’s medical note in place of the “required medical certificate.” Mr. Basaraba then agreed to wear a mask, but the captain was concerned about Mr. Basaraba’s health being affected by wearing a mask and did not permit him to travel on the flight.

Analysis and determination

[25] Transportation service providers have a duty to accommodate persons with disabilities. A person with a disability will face a barrier to their mobility if they demonstrate that they need — and were not provided with — accommodation to meet their disability-related needs, thereby being denied equal access to services available to others in the federal transportation network.

[26] It is undisputed that Mr. Basaraba requested an exemption from wearing a mask during travel and presented a medical note to support his request at the airport on the day of his flight. Although WestJet argues that it followed Transport Canada’s requirements, that the medical note was outdated and did not contain all the necessary information, and that Mr. Basaraba’s request was not made 14 days in advance, the fact remains that WestJet refused to accept Mr. Basaraba’s medical note, denied his mask exemption request, and refused to permit him to travel with a mask out of concern for his health. As a result, Mr. Basaraba was unable to travel on his scheduled flight and had to drive a considerable distance from Fort McMurray to Calgary. In light of the above, the Agency finds that Mr. Basaraba faced a barrier when WestJet refused to accept his medical note in support of his mask exemption request, thereby preventing him from travelling on his scheduled flight.

[27] The Agency notes that most of WestJet’s arguments to explain its decisions relate to undue hardship factors, and as such, will be considered by the Agency after the close of pleadings on Part 2.

3. Did WestJet contravene any applicable accessibility regulations?

[28] Although WestJet states that it followed Transport Canada’s Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, 36, dated August 9, 2021, Transport Canada’s Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, 58 (Interim Order), dated March 24, 2022, was in fact the order in effect at the time of the incident on April 3, 2022. However, the sections identified by WestJet are the same in both versions.

[29] WestJet states that it complied with the Interim Order, the Canadian Aviation Regulations and Part 2 of the Accessible Transportation for Persons with Disabilities Regulations.

[30] The CTA provides that, if the Agency is satisfied that regulations made under the CTA 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.

[31] The Interim Order and the Canadian Aviation Regulations are not regulations made under the CTA. The Accessible Transportation for Persons with Disabilities Regulations are made under the CTA, but they do not address the specifics of the alleged barrier.

[32] Therefore, as no regulations made under the CTA apply in this case, if, during Part 2 of this proceeding, the Agency finds that Mr. Basaraba faced an undue barrier, the Agency may order any of the remedies provided for under the CTA, including damages for pain and suffering and for wilful or reckless practice.

Next Steps

[33] As set out above, the Agency finds that Mr. Basaraba is a person with a disability and that he faced a barrier when WestJet refused to accept his medical note in support of his mask exemption request, thereby preventing him from travelling on his scheduled flight.

[34] Mr. Basaraba seeks compensation for pain and suffering in the amount of CAD 20,000, a special compensation in the amount of CAD 20,000 and an unspecified amount for expenses incurred to rent a car to drive from Fort McMurray to Calgary, including gas and meals. To support such a claim, Mr. Basaraba has until 5:00 pm Gatineau local time on March 6, 2024, to provide the following to the Agency, with a copy to WestJet:

(1) the reason(s) the Agency should award compensation for pain and suffering;

(2) any medical evidence to support the claim for compensation for pain and suffering;

(3) evidence of the expenses he incurred arising out of the barrier, including for any costs of obtaining alternative goods, services or
     accommodation;

(4) if applicable, evidence of any wages that he was deprived of as a result of the barrier; and

(5) if applicable, the reason(s) the Agency should find that the barrier was the result of a wilful or reckless practice.

[35] The Agency provides WestJet with the opportunity to respond to Mr. Basaraba’s submission on compensation and to file its answer to Part 2. In its answer, WestJet must either:

  • explain, taking into account any proposals from Mr. Basaraba, 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 could not have removed the barrier without experiencing undue hardship.

[36] WestJet has ten business days from receipt of Mr. Basaraba’s submission on compensation to file both its response to Mr. Basaraba’s submission on compensation and its answer to Part 2 with the Agency, with a copy to Mr. Basaraba. Mr. Basaraba will then have five business days to file a reply with the Agency, with a copy to WestJet.

[37] The submissions on compensation will be considered if the Agency finds an undue barrier following the close of pleadings on Part 2.

[38] All correspondence and pleadings should refer to Case 23-19389 and be filed through the Agency’s Secretariat email address at secretariat@otc-cta.gc.ca.


Legislation or Tariff referenced Numeric identifier (section, subsection, rule, etc.)
Canada Transportation Act, SC 1996, c 10 169.5; 170(1); 172(1); 172(2); 172(3); 172.1(2)
Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244 Part 2
Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, 58 18; 19; 21
Canadian Aviation Regulations 602.46

Member(s)

Elizabeth C. Barker
Mark MacKeigan
Date modified: