Letter Decision No. LET-AT-A-82-2013

[1] In Decision No. LET-AT-A-10-2013 (Opening Pleadings Decision,) the Agency found, on a preliminary basis, that the following accommodation measures relating to cat allergies provided by Air Canada pursuant to Decision No. 227-AT-A-2012, also constitute the appropriate accommodation needed to meet the disability-related needs of persons who are disabled by allergies to other pets accepted in the cabin, including dogs:

- when at least 48 hours advance notification is provided by persons with a cat allergy disability, 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.
• Should Air Canada’s current or future fleet contain aircraft that do not have an air circulation/ventilation system using HEPA filters or that do not provide 100 percent unrecirculated fresh air, it was ordered to implement a ban on cats carried as pets in the cabin on the same flight as a person with a cat allergy disability to provide appropriate accommodation.

[2] The Opening Pleadings Decision provided Air Canada with an opportunity to respond to Mrs. Greenglass’ submissions on disability and obstacle/appropriate accommodation, and to file undue hardship arguments with respect to the Agency’s preliminary finding of appropriate accommodation and to propose another form of accommodation. Mrs. Greenglass was subsequently provided with an opportunity to file a reply.

[3] In this Decision, the Agency finalizes its preliminary finding of appropriate accommodation and addresses other issues as set out below.

PRELIMINARY MATTER

Matter raised by Air Canada

[4] In its answer, Air Canada raises concerns regarding its obligation to carry service dogs and the implications for the accommodation measures to be provided to persons with a dog allergy disability.

[5] Mrs. Greenglass commented on the concerns raised by Air Canada in her reply.

Analysis and finding

[6] The Agency recognizes that service dogs are commonly used by persons with disabilities, including as part of air travel and agrees to consider the parties’ submissions with respect to the carriage of service dogs in the cabin in its determination of the accommodation measures to be provided to persons with a dog allergy disability.

ISSUES

[7] The Agency examines the following issues:

• Is Mrs. Greenglass a person with a disability as a result of her allergy to dogs? 
• If so, what is the Agency’s final determination of appropriate accommodation for Mrs. Greenglass and other persons with a dog allergy disability?
• Does Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which persons with a dog allergy disability are travelling, constitute an undue obstacle to the mobility of Mrs. Greenglass and of persons with a dog allergy disability?  If so, what corrective measures should be ordered?

THE LAW

[8] When adjudicating an application pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:

1. the person who is the subject of the application has a disability for the purposes of the CTA;
2. an obstacle exists because the 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 may order corrective measures necessary to remove the undue obstacle.

ANALYSIS AND FINDINGS

The Agency’s approach to determining disability

[9] While there are situations where a disability is self-evident (e.g. a person who uses a wheelchair), there are cases where additional evidence is required to establish both the disability and the need for accommodation. In assessing those cases, the Agency may use the World Health Organization’s (WHO) International Classification of Functioning, Disability and Health (ICF), an internationally accepted tool for the consistent classification of functioning and disability associated with health conditions, other related WHO publications, and/or medical documentation.

[10] In accordance with the ICF, the Agency views a disability as comprising three dimensions: impairment, activity limitation and participation restriction. The Agency’s decision precedents require that all three dimensions must be established in order for a disability to exist for the purposes of Part V of the CTA.

Impairment

[11] The ICF defines impairment as a loss or abnormality of a body part (i.e., structure) or the loss or deviation in body function (i.e., physiological function). The ICF clarifies that “abnormality” refers to a significant variation from established statistical norms. The existence of an impairment may be temporary or permanent.

[12] To determine whether a person’s health condition qualifies as an impairment, the Agency uses the ICF, other related WHO publications such as the International Classification of Diseases and Related Health Problems (ICD-10), and/or medical documentation.

[13] As reflected in previous Agency decisions regarding accommodation for persons with allergies, the category of “hypersensitivity reactions,” which is included in the functions of the hematological and immunological systems of the ICF, encompasses “functions of the body’s response of increased sensitization to foreign substances, such as in sensitivities to different antigens.” This category explicitly includes allergies. Based on the foregoing, the Agency has found that an allergy is an impairment.

Activity limitation

[14] Activity limitation, as defined in the ICF, is a difficulty an individual experiences while executing activities. The activity limitation associated with an impairment therefore relates to the presence of symptoms and resulting difficulties, irrespective of context.

[15] The ICF states that an activity limitation may range from a slight to a severe deviation in terms of quality or quantity in executing an activity in a manner or to the extent that is expected of people without the impairment.

[16] An activity limitation does not need to fall at the extreme end of this spectrum, although, for the purposes of the Agency’s determination of disability, the activity limitation must be significant enough to result in an inherent difficulty in executing a task or action.

[17] In previous decisions, the Agency has expressed its opinion that, in terms of allergies, the activity limitation is the allergic reaction that a person may experience when exposed to an allergen. The Agency also expressed its opinion that, provided the evidence establishes that the applicant experiences an allergic reaction that is significant enough to result in an inherent difficulty in executing a task or action (such as impaired breathing), this is sufficient to demonstrate the existence of an activity limitation.

Participation restriction

[18] The ICF defines participation restriction as a problem an individual may experience in involvement in life situations.

[19] Unlike an activity limitation, a participation restriction depends on the context – in this case, the federal transportation network. The Agency therefore determines the existence of a participation restriction by comparing the individual’s access to the federal transportation network with that of an individual without the related activity limitation. 

Burden of proof

[20] It is the applicant’s responsibility to provide sufficiently persuasive evidence to establish the existence of a disability in terms of impairment, activity limitation and participation restriction.

[21] The standard which applies to this burden of proof is the balance of probabilities, which requires the party who bears the burden to establish that their position is more probable than that of the opposing party. If the positions of both parties are equally probable, the party with the burden of proof will not have met their burden.

THIS CASE

Is Mrs. Greenglass a person with a disability due to her allergy to dogs?

[22] In support of her assertion that she has an allergy to dogs, Mrs. Greenglass filed the Agency’s disability assessment form completed by her physician.

Impairment

[23] Mrs. Greenglass submits that she is severely allergic to dogs and has asthma. The Agency’s disability assessment form completed by Mrs. Greenglass’ physician describes her condition as “asthmatic bronchitis and allergic rhinitis.”

[24] Air Canada did not comment on the medical evidence filed with respect to Mrs. Greenglass having an allergy to dogs.

Analysis and finding

[25] As noted above, the Agency has previously accepted that an allergy is an impairment based on the ICF model of disability. In light of the medical evidence filed, the Agency accepts that Mrs. Greenglass has an allergy to dogs. The Agency therefore finds that Mrs. Greenglass has an impairment.

Activity limitation

[26] On the disability assessment form, Mrs. Greenglass’ physician describes the functional limitations associated with Mrs. Greenglass’ asthmatic bronchitis and allergic rhinitis as shortness of breath and the related medication(s)/medical interventions as inhalational therapy, including beta agonists, oral steroids and injectable epinephrine.

[27] Air Canada notes that, although Mrs. Greenglass indicates that she is unable to be seated “in the proximity of a dog when flying,” there is no indication of that proximity. Air Canada refers to the previous cases regarding cat allergy disabilities adjudicated by the Agency and comments that “In the case of cats, evidence was adduced that some of the persons allergic could not be in the same room as a cat” and that the case of Mrs. Greenglass “appears to involve a different degree of sensitivity.”

Analysis and finding

[28] In Decision No. 66-AT-A-2010 in which the Agency determined that Ms. Covell, Ms. Daviau and Dr. Spence were persons with a disability for the purposes of Part V of the CTA as a result of their allergy to cats, the Agency expressed the opinion that applicants are not required to identify the precise circumstances under which they will experience an allergic reaction in order to establish the existence of an activity limitation. Additionally, that Decision reflected the Agency’s recognition that persons who have allergies experience wide ranging symptoms, the severity and duration of which can vary greatly depending on the nature of the allergy, the concentration and proximity of allergens present, and the length of time to which the person is exposed to the allergens.

[29] As reflected above, for the purposes of the Agency’s determination of disability, an activity limitation must be significant enough to result in an inherent difficulty in executing a task or action. Based on the medical evidence and submissions by Mrs. Greenglass, the Agency finds that Mrs. Greenglass experiences activity limitations in the form of the allergic reactions she experiences when exposed to dogs, the nature of which is significant enough to result in an inherent difficulty in executing a task or action.

Participation Restriction

[30] Mrs. Greenglass asserts that she is unable to sit in the proximity of a dog in an aircraft. Mrs. Greenglass explains that a dog in the row in front of her on a Toronto-Phoenix flight caused her “health issues,” resulting in her flight being delayed. She took medications (Benadryl, Ventalin, etc.) and put on a charcoal filter mask to help her avoid being in a “dire situation.” Mrs. Greenglass explains that, ultimately, the dog was moved but that, by that time, she was “in trouble” and she had to increase the amount of medication throughout the flight. She states that, while she did not need to use her Epipens, she had a second “attack” as a result of the first and it took her several days to recover.

Analysis and finding

[31] The Agency accepts the description of Mrs. Greenglass’ response to the presence of a dog on the flight in question as fact-based evidence of participation restrictions in the context of air travel. The Agency finds that Mrs. Greenglass needs to avoid or reduce exposure to dog allergens and that the current policy of allowing dogs in the aircraft cabin creates a participation restriction in that, as a result of this policy, she cannot travel in the same manner as others without dog allergies.

Conclusion

[32] The Agency finds that Mrs. Greenglass has an impairment, experiences activity limitations, and encounters participation restrictions if exposed to dogs when travelling by air.

[33] The Agency, therefore, finds that Mrs. Greenglass is a person with a disability for the purposes of Part V of the CTA as a result of her allergy to dogs.

The Agency’s approach to determining an obstacle

[34] The Agency views an obstacle in the federal transportation network as being a rule, policy, practice, physical barrier, etc. which is either:

• direct, i.e., applies to a person with a disability; or,
• indirect, i.e., while the same for everyone, has the result of withholding a benefit from a person with a disability; and,
• denies a person with a disability equal access to services that are available to others such that accommodation is required from the service provider.

[35] For an obstacle to exist, the problem must be related to the person’s disability. For example, a customer service issue does not become an obstacle merely because it is experienced by a person with a disability.

[36] Service providers have a duty to accommodate persons with disabilities. A person with a disability will face an obstacle to their mobility if they demonstrate that they need – and were not provided with – accommodation, thereby being denied equal access to services available to others in the federal transportation network.

[37] A service or measure that is required to meet a person’s disability-related needs is referred to as “appropriate accommodation.” If it is determined that the person was provided with appropriate accommodation, it cannot be said that they have encountered an obstacle. It is the applicant’s responsibility to provide sufficiently persuasive evidence to establish their need for accommodation and to prove that this need was not met. The standard of evidence that applies to this burden of proof is the balance of probabilities.

THIS CASE

What is the Agency’s final determination of appropriate accommodation for Mrs. Greenglass and persons with a dog allergy disability?

[38] As set out above, the Agency has found, on a preliminary basis, that the accommodation measures ordered by the Agency to address cat allergies also constitute the appropriate accommodation needed to meet the disability-related needs of persons who are disabled by allergies to other pets accepted in the cabin, including dogs. In making its final determination of appropriate accommodation, the Agency will also consider the parties’ submissions with respect to the carriage of service dogs.

[39] As reflected in Decision No. 430-AT-A-2011 (Appropriate Accommodation Decision,) the Agency’s determination of the accommodation measures that Air Canada needs to provide in order to address cat allergies was based on evidence that the HEPA filters used in Air Canada’s fleet are designed to eliminate between 99 and 99.97 percent of contaminants with a particle size of 0.3 micron. The Agency accepted that the size of animal dander (approximately 2.5 microns) is several times larger than the 0.3-micron particle size that can be captured by these filters. As such, the Agency found that these filters are effective in capturing airborne cat allergens. The Agency also found that an airflow of 100 percent unrecirculated fresh air in the cabin effectively contributes to addressing the risk of exposure to airborne allergens from cats carried in the aircraft cabin.

[40] Based on the above findings with respect to air filtration and airflow, the Agency ordered Air Canada to provide a five-row seating separation in aircraft with air circulation/ventilation systems using HEPA filters or which provide 100 percent unrecirculated fresh air, and a ban on pet cats on flights on which a passenger with a cat allergy disability is travelling in respect of aircraft that do not have HEPA filters or 100 percent unrecirculated fresh air.

[41] Although the above-noted accommodation measures pertained to persons with a cat allergy disability, the Agency established in the Opening Pleadings Decision that, given that animal dander is approximately 2.5 microns in size and the HEPA filters used in Air Canada’s fleet eliminate between 99 and 99.97 percent of contaminants with a particle size of 0.3 microns, these same filters will also address other animal dander. The Agency also established that an airflow of 100 percent unrecirculated fresh air will also remove any animal dander contained in the cabin air and replace it with fresh air. Consequently, the Agency found that the air filtration and airflow on Air Canada’s aircraft are as effective in capturing or expelling other animal allergens as they are in capturing or expelling cat allergens.

Positions of the parties

Air Canada

[42] Air Canada filed an article published on the Web site of “My Health News Daily” on July 26, 2012, which states that cat protein “enters the air on bits of cat hair and skin” and it is so small and light that it can stay airborne for hours. The article also quotes Dr. Mark Larché, immunology professor at McMaster University, who states that “Dog allergens don’t stay airborne the same way cat allergens do.” Air Canada submits that, as such, the cat-allergy accommodation that the Agency ordered it to provide, including the five-row seating separation, “may not be necessary to the same extent” for persons with a dog allergy disability.

[43] Air Canada submits that it cannot provide the cat-allergy accommodation to persons with a dog allergy disability because doing so would cause a “false sense of comfort” for these persons due to the carrier’s obligation to carry passengers with disabilities who travel with dogs as service animals. Air Canada submits that such dogs are more frequently carried in the cabin than service or emotional support cats.

Mrs. Greenglass

[44] Mrs. Greenglass agrees with the Agency’s preliminary finding that the accommodation to address cat allergies that the Agency ordered Air Canada to provide also constitutes the appropriate accommodation for persons with a dog allergy disability.

[45] In response to Air Canada’s comments with respect to service dogs, Mrs. Greenglass suggests that Air Canada should establish a policy to make a portion of the aircraft “animal free.” Mrs. Greenglass further recommends that Air Canada set aside a section of 10 to 15 seats on every flight “to accommodate passengers with allergies to dogs (and other pets.)” She explains that unsold seats in that section would be offered to the general public as late as possible, and once seats in that section are sold, Air Canada would have no obligation to accommodate people with animal allergies on that flight. Mrs. Greenglass explains that the rest of the aircraft could accommodate service dogs and if there are “walk-ons” at boarding, some passengers could be moved, if required, to ensure that the service dogs are not near the “animal free” section.

Analysis and final findings

[46] Although the article submitted by Air Canada states that dog allergens are different than cat allergens in terms of the manner that they stay airborne, Air Canada did not file any evidence that specifies how the airborne features of dog allergens differ from those of cat allergens and the implications of any differences for persons with a dog allergy disability. Air Canada has not filed reasons that would support a finding that different measures are required to meet the needs of persons with a dog allergy disability as compared to those with a cat allergy disability based on differences in the manner in which the allergens stay airborne. Moreover, Air Canada provided no evidence that dog dander particles would not be effectively captured by HEPA filters or that an airflow of 100 percent fresh air would not rid the cabin of such particles.

[47] Mrs. Greenglass suggests that an animal free section be established on every flight. The Agency agrees that such a measure would effectively address the risk of exposure to airborne allergens due to the carriage of dogs in the aircraft cabin. However, such a measure would also apply to flights on which there is no passenger with a dog allergy disability and, as such, would go beyond the scope of the Agency’s review of Mrs. Greenglass’ application. The Agency’s determination of appropriate accommodation in this case is limited to addressing the risk of exposure to airborne dog allergens solely as a result of the carriage of dogs in the aircraft cabin in which a person with a disability as a result of their allergy to dogs is travelling. While this measure could be voluntarily implemented by Air Canada in order to provide the accommodation measures, it could not be ordered by the Agency as it goes beyond the scope of the case at hand.

[48] Accordingly, the Agency finds that the accommodation measures ordered by the Agency to address cat allergies also constitute the appropriate accommodation needed to address the needs of persons who are disabled by their allergies to dogs (whether they be service animals or pets).

[49] More specifically, the Agency finds, on a final basis, that the following provides the appropriate accommodation required to meet the needs of Mrs. Greenglass and persons with disabilities as a result of their allergies to dogs accepted in the cabin, when at least 48 hours advance notification is provided by persons with a dog allergy disability, with best efforts to do the same when less than 48 hours advance notification is provided.

With respect to dogs carried as pets

[50] On aircraft with air circulation/ventilation systems using HEPA filters or which provide 100 percent unrecirculated fresh air:

• a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a dog allergy disability and dogs in the cabin carried as pets, including during boarding and deplaning and between their seat and a washroom; or,
• a ban on pet dogs in the aircraft cabin in which a person with a disability as a result of their allergy to dogs is travelling.

[51] On aircraft without air circulation/ventilation systems using HEPA filters or which do not provide 100 percent unrecirculated fresh air:

• a ban on pet dogs carried in the aircraft cabin in which a person with a disability as a result of their allergy to dogs is travelling.

[52] As it relates to the ban, when advance notification of less than 48 hours is provided by persons with a dog allergy disability, a ban on pet dogs is to be provided if no person travelling with a pet dog has already booked their travel on the selected flight. If a person travelling with a pet dog has already been booked on the flight, persons with a dog allergy disability must be provided with the same flight ban accommodation within 48 hours on the next flight available on which there is no person with a pet dog already booked. If the next available flight is beyond the 48‑hour period, persons with a dog allergy disability must be given priority and provided with the accommodation measures applicable when the 48-hour advance notice is given by the person with a dog allergy disability.

With respect to service dogs

[53] On aircraft with air circulation/ventilation systems using HEPA filters or which provide 100 percent unrecirculated fresh air:

• a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a dog allergy disability and service dogs, including during boarding and deplaning and between their seat and a washroom.

[54] On aircraft without air circulation/ventilation systems using HEPA filters or which do not provide 100 percent unrecirculated fresh air:

• give the booking priority to whoever of the person with a dog allergy disability and the person travelling with a service dog  first completes their booking. A person with a dog allergy disability and a service dog will not be accepted on the same flight using aircraft that do not have HEPA filters or which do not provide 100 percent unrecirculated fresh air.

[55] The Agency considers that, as one disability should not be treated more importantly than another, giving the booking priority to the person who first booked the flight represents a disability-neutral means of determining which passenger needs to be rebooked on an alternate flight.

Does Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which persons with a dog allergy disability are travelling, constitute an obstacle to the mobility of Mrs. Greenglass and of persons with a dog allergy disability?

Positions of the parties

[56] Air Canada reflected its policy/procedure with respect to pets carried in the cabin in its response to an initial complaint filed directly with the carrier by Mrs. Greenglass. In this regard, Air Canada asked that Mrs. Greenglass advise Air Canada of her “situation” for future travel and assured Mrs. Greenglass that it would make its best efforts to ensure she is not seated near a passenger travelling with a pet. Should pets already be booked on the flight she selected, Air Canada would reschedule Mrs. Greenglass.

[57] Mrs. Greenglass submits that she followed Air Canada’s procedures and contacted the carrier in advance of her flight from Toronto to Phoenix to inform it of her “situation.” She further submits that she explained her “situation” again at check-in, but that there still was a dog under the “business section seat immediately in front.” Mrs. Greenglass expresses the view that Air Canada failed to follow its procedures and suggests that more staff training is required to ensure that this does not happen with other travellers.

Analysis and final findings

[58] Air Canada does not provide any of the measures set out in the Agency’s final findings on appropriate accommodation at paragraphs 50 to 54 and, as such, is not meeting the disability-related needs of persons with a dog allergy disability.

[59] The Agency therefore finds that Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which a person with a dog allergy disability is travelling, constitutes an obstacle to the mobility of Mrs. Greenglass and of other persons with a dog allergy disability.

The Agency’s approach to determining whether an obstacle is undue

[60] An obstacle is undue unless the service provider can justify its existence. Once the Agency has determined that a person with a disability has encountered an obstacle, the service provider may either:

• provide the appropriate accommodation or offer an alternative that is equally responsive in meeting the disability-related needs of the person. In such a case, the Agency will determine what corrective measures are required to ensure that the appropriate accommodation is provided; or,

• justify the existence of the obstacle by demonstrating that it can neither provide the appropriate accommodation nor any other form of accommodation without incurring undue hardship. The burden of proof is on the service provider to demonstrate that providing the accommodation would result in undue hardship. If it fails to do so, the Agency will find that the obstacle is undue and order corrective measures to ensure accommodation is provided.

[61] In situations where the service provider is of the view that it cannot provide the accommodation that is responsive to the needs of the person with a disability, it must justify the existence of the obstacle.

[62] The test that a service provider must meet in order to justify the existence of an obstacle consists of three elements. The service provider must demonstrate that:

1. the source of the obstacle is rationally connected to the provision of the transportation service;
2. the source of the obstacle was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; and,
3. it cannot provide any form of accommodation without incurring undue hardship.

Burden of proof

[63] It is the responsibility of the service provider to provide sufficiently persuasive evidence to establish on a balance of probabilities that the obstacle is justified (i.e., that to provide any form of accommodation would result in undue hardship).

If a service provider meets this burden of proof, the Agency will find that the obstacle is not undue and will not order any corrective measures. 

Does Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which persons with a dog allergy disability are travelling, constitute an undue obstacle to the mobility of Mrs. Greenglass and of other persons with a dog allergy disability?

Positions of the parties

Air Canada

[64] Air Canada states that it can “apply a buffer zone between a passenger severely allergic to dogs and a dog carried as pet in cabin.” Air Canada submits that “the extreme rarity of cats as service animals or emotional support animals result in the accommodation nearly covering all cats that would be in the cabin.” However, Air Canada submits that this would not be the case for dogs. Air Canada explains that it carried approximately 1,000 service dogs in 2012 and that this does not include passengers who do not give prior notice that they are travelling with a service dog or an emotional support dog on flights to and from the United States.

[65] Air Canada references the Air Transportation Regulations, SOR/88‑58, as amended and states that although it requires notice from a passenger who wishes to travel with a service dog at least 48 hours in advance of departure, it will accommodate such requests when they are made on shorter notice. Air Canada adds that, pursuant to the U.S. Department of Transportation’s (DOT) rules, Nondiscrimination on the Basis of Disability in Air Travel (14 CFR Part 382,) as these apply to flights operated to and from the United States and domestic and international code shared flights marketed by a U.S. carrier, it is required to carry dogs as service or emotional support animals in the aircraft cabin even when it does not receive advance notice. Air Canada states that when it does not receive advance notice, it is prevented from implementing, in advance of departure, a seating separation for persons with a dog allergy disability, or advising the passenger with an allergy in advance of travel of the presence of a service or emotional support dog on their flight.

[66] Air Canada also comments that there are different breeds of dogs, some of which it submits are less allergenic than others, and refers to different sizes of service dogs, some of which may require up to two seats to accommodate them.

[67] With respect to the foregoing, Air Canada concludes that, if it were to provide the cat allergy accommodation to passengers with disabilities as a result of their severe allergies to dogs, but only in terms of dogs carried as pets in the cabin rather than to both these dogs and service and emotional support dogs, this would cause a false sense of comfort to these passengers.

[68] Air Canada also submits that the prevalence of dog allergies must be considered before any accommodation measures are imposed on it. Air Canada states that it has received 20 Fitness for Travel forms in respect of passengers with cat allergies since the implementation of the corrective measures ordered in the Appropriate Accommodation Decision. Based on Dr. Gordon Sussman’s (the expert on allergies retained by the Agency as part of its adjudication of other allergy complaints, including the cat allergy cases) statement that cat allergies are much more common than dog allergies, Air Canada asserts that service dogs are “considerably more prevalent than persons with disabilities by reason of a severe allergy to dogs.”

[69] Air Canada asserts that there is no need to establish the creation of a seating separation for persons with a dog allergy disability and that imposing such measures would create an undue burden on the carrier. Air Canada adds that, with every implementation of a form of accommodation, it must provide training, and modify its Flight Attendant Manual and submit it to Transport Canada for approval when the procedures involve the cabin environment.

Mrs. Greenglass

[70] Mrs. Greenglass questions why Air Canada could not establish a policy to make a portion of the aircraft “animal free,” if it only carried 1,000 service dogs, plus some “walk-ons” in 2012. Mrs. Greenglass submits that the rest of the plane could accommodate service dogs and “if walk-ons appear at boarding, some passengers can be moved (...) so that the service dogs are not near the animal free section.”

Analysis and findings

[71] Air Canada claims that its obligation, pursuant to the U.S. 14 CFR Part 382 Regulations, to carry service animals and emotional support animals without advance notice would prevent it from implementing, in advance of departure, a seating separation for persons with a dog allergy disability, or advising the passenger with an allergy in advance of travel of the presence of a service or emotional support dog on their flight. Although this is necessarily true when no advance notice is provided by a person travelling with a service or emotional support animal, as pointed out to Air Canada in Decision No. LET-AT-A-17-2012 during the adjudication of the cat allergy cases, section 382.27(c) of 14 CFR Part 382 allows carriers to require advance notice for certain services, including the transportation of emotional support service animals in the cabin. The Agency further notes that, in accordance with 382.27(c) of 14 CFR Part 382, carriers may:

• require advance notice for the transportation of a service animal on a flight segment scheduled to take 8 hours or more; and,  
• require a passenger with a disability to check-in one hour before the check-in time for the general public to receive the services and accommodations listed at section 382.17(c) of 14 CFR 382, which includes
• transportation of an emotional support or psychiatric service animal in the cabin; and
• transportation of a service animal on a flight segment scheduled to take 8 hours or more.

[72] As such, it is apparent that Air Canada can, in some situations, require advance notice from a person travelling with a service or emotional support/psychiatric service dog (service dogs) on flight to/from the United States. In situations where advance notice is not provided, Air Canada has not demonstrated that it could not implement procedures to enable it to establish a seating separation with limited time available after a person travelling with a service dog checks-in, for example, by reseating either the person with a service dog or the person with a dog allergy disability.

[73] Finally, although Air Canada stated that it carried in excess of 1000 service dogs in 2012, it provided no evidence that both a person travelling with a service dog and a person with a dog allergy disability travelling on the same flight would be a frequent occurrence. In fact, the Agency is of the opinion that Air Canada would infrequently be required to establish a seating separation on the day to travel, given:

• the lack of advance notice by a person with a disability travelling with a service dog is limited to flights to/from the United States;
• the number of service dogs carried (which, according to Air Canada’s number, would represent approximately 2.74 service dogs per day system-wide) in relation to the very large number of flights that Air Canada operates on an annual basis, including to/from the United States, is immaterial; and,
• the fact, as pointed out by Dr. Sussman, that dog allergies are much less common than cat allergies and Air Canada’s evidence that it has only received 20 Fitness for Travel forms in respect of passengers with cat allergies since the implementation of the cat allergy accommodation ordered by the Agency; considering that dog allergies are less common, it would be a rare circumstance in which both a person with a service dog and a passenger with a dog allergy disability would require accommodation on the same flight.

[74] The Agency found that, on aircraft without air circulation/ventilation systems using HEPA filters and which do not provide 100 percent unrecirculated fresh air, the appropriate accommodation is for Air Canada to give the booking priority to whoever of the person with a dog allergy disability and the person travelling with a service dog first completes their booking. The Agency is aware that this may result in Air Canada having to deny boarding to a person travelling with a service dog, thereby contravening 14 CFR Part 382.117, which requires air carriers to accept service animals for carriage. However, the Agency notes from Air Canada’s Web site that the aircraft types in its current mainline fleet are the same as those assessed during the Agency’s adjudication of the cat allergy cases, which have HEPA filters or provide 100 percent unrecirculated fresh air. Considering today’s high standards with respect to air filtration and circulation/ventilation systems, the Agency does not expect that Air Canada would acquire aircraft that do not provide these features, or that would meet lower air filtration and circulation/ventilation standards. In this unforeseen situation, for the same reasons set out above, the Agency considers that only in rare situations would Air Canada have to deny boarding to a person travelling with a service dog on flights to and from the United States. Nevertheless, the Agency is aware that 14 CFR Part 382.9 provides a conflict of laws waiver mechanism to give appropriate consideration to requirements of foreign law applicable to foreign carriers, which would allow Air Canada to ask for a waiver of its obligation to accept service dogs on flights to and from the United States on which a person with a dog allergy disability has first completed their booking and which uses an aircraft without air circulation/ventilation systems using HEPA filters and that do not provide 100 percent unrecirculated fresh air.

[75] With respect to Air Canada’s comment regarding the different breeds and sizes of dogs, the Agency is of the opinion that it has not demonstrated how this would cause or contribute to undue hardship in providing the appropriate accommodation. Similarly, the Agency is of the opinion that Air Canada has not demonstrated how the training to be developed for its staff to provide the appropriate accommodation, or any required modification to its flight attendant manual, would create an undue hardship.

[76] Air Canada also expresses the view that the prevalence of a dog allergy disability should be considered by the Agency before any corrective measures are ordered. However, a service provider’s duty to accommodate exists regardless of the number of persons with disabilities requiring accommodation, unless to provide accommodation would impose undue hardship on the carrier. Moreover, Air Canada has not demonstrated that there are constraints that would cause it undue hardship were it required to provide the above-noted appropriate accommodation measures to meet the needs of persons with a dog allergy disability.

[77] The Agency finds that Air Canada has not demonstrated that it cannot establish a seating separation prior to departure to meet the needs of persons  with a dog allergy disability on flights that will include a dog (whether they be service animals or pets).

[78] Accordingly, the Agency finds, on a preliminary basis, that Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which a person with a disability due to an allergy to dogs, is travelling, constitutes an undue obstacle to the mobility of Mrs. Greenglass and of other persons with a dog allergy disability.

CONCLUSION

[79] The Agency has made the following final determinations and preliminary finding:

Final determinations

Disability

[80] The Agency finds that Mrs. Greenglass is a person with a disability for the purposes of Part V of the CTA as a result of her allergy to dogs.

Obstacle/Appropriate accommodation

[81] The Agency finds that the following provides the appropriate accommodation required to meet the needs of Mrs. Greenglass and persons with disabilities as a result of their allergies to dogs when at least 48 hours advance notification is provided by persons with a dog allergy disability, with best efforts to do the same when less than 48 hours advance notification is provided:

With respect to dogs carried as pets

[82] On aircraft with air circulation/ventilation systems using HEPA filters or which provide 100 percent unrecirculated fresh air:

• a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a dog allergy disability and pet dogs, including during boarding and deplaning and between their seat and a washroom; or,
• a ban on pet dogs in the aircraft cabin in which a person with a disability as a result of their allergy to dogs is travelling.

[83] On aircraft without air circulation/ventilation systems using HEPA filters and which do not provide 100 percent unrecirculated fresh air, provide:

• a ban on pet dogs in the aircraft cabin in which a person with a disability as a result of their allergy to dogs is travelling;

[84] When advance notification of less than 48 hours is provided by persons with a dog allergy disability, a ban on pet dogs is to be provided if no person travelling with a pet dog has already booked their travel on the selected flight. If a person travelling with a pet dog has already been booked on the flight, persons with a dog allergy disability must be provided with the same flight ban accommodation within 48 hours on the next flight available on which there is no person with pet dog already booked. If the next available flight is beyond the 48-hour period, persons with a dog allergy disability must be given priority and provided with the accommodation measures applicable when the 48-hour advance notice is given by the person with a dog allergy disability.

With respect to service dogs

[85] On aircraft with air circulation/ventilation systems using HEPA filters or which provide 100 percent unrecirculated fresh air:

• a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a dog allergy disability and service dogs, including during boarding and deplaning and between their seat and a washroom.

[86] On aircraft without air circulation/ventilation systems using HEPA filters or which do not provide 100 percent unrecirculated fresh air:

• give the booking priority to whoever of the person with a dog allergy disability and the person traveling with a service dog first completed their booking. A person with a dog allergy disability and a service dog will not be accepted on the same flight using aircraft that do not have HEPA filters or which do not provide 100 percent unrecirculated fresh air.

[87] As Air Canada does currently not provide the appropriate accommodation measures, the Agency finds that Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which a person with disability due to an allergy to dogs is travelling, constitutes an obstacle to the mobility of Mrs. Greenglass and of other persons with a dog allergy disability.

Preliminary finding

Undue obstacle

[88] The Agency finds, on a preliminary basis, that Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which a person with disability due to an allergy to dogs is travelling, constitutes an undue obstacle to the mobility of Mrs. Greenglass and of other persons with a dog allergy disability.

DIRECTION TO SHOW CAUSE

[89] The Agency finds it appropriate to provide Air Canada with an opportunity to submit evidence, by way of a direction to show cause, to address its preliminary finding as set out above, followed by a reply period by Mrs. Greenglass.

[90] Air Canada is required to show cause why the Agency should not finalize its preliminary finding with respect to undue obstacle regarding the appropriate accommodation to be provided to persons with a disability due to an allergy to dogs.

[91] Accordingly, Air Canada has until June 26, 2013 to file its submissions with the Agency and provide a copy to Mrs. Greenglass, and upon receipt of the submissions, Mrs. Greenglass will have 7 days to file her reply with the Agency, with a copy to Air Canada. It is the parties’ responsibility to ensure that their submissions are filed within the stated time frames and that all submissions are sent, in written format, to the parties involved in this proceeding.

[92] To ensure that Agency proceedings are effective, the Agency will only grant extensions of time in exceptional circumstances. The factors taken into consideration by the Agency for any extension request can be accessed on line http://www.otc-cta.gc.ca/eng/extensions. Parties must provide clear and convincing evidence for any such request.

[93] Each party must ensure their submissions are limited to the show cause matters identified above in respect of which they are entitled to respond.