OTTAWA - June 26, 2008 - The Canadian Transportation Agency issued a final Decision today which outlined undue obstacles to the mobility of air travellers with disabilities who require medical oxygen and ordered a series of corrective measures to be taken by Air Canada.
This Decision No. 336-AT-A-2008 follows the 2005 interim Decision where the Agency determined the existence of obstacles but did not have enough evidence to rule whether the obstacles were undue. The Agency decided to pursue its investigation through a public hearing held in 2007 in order to gather more information and explore possible corrective measures or alternatives to remove any undue obstacles as necessary.
WestJet allows passenger-supplied gaseous oxygen on domestic flights but not on transborder or international flights which meant that, in 2005, passengers requiring medical oxygen could not travel on these flights. The Agency found this to be a significant obstacle to these persons with disabilities at that time. Since then, WestJet has removed the obstacle voluntarily by amending its policies to allow the use of passenger-supplied portable oxygen concentrators (POCs), an approved and widely accepted new technology, on all its flights. As a result, the Agency found that no further action is required of WestJet.
Air Canada does not allow passenger-supplied gaseous oxygen, but provides its own gaseous oxygen service to passengers for a fee on all of its flights. In 2005, the Agency found there were systemic obstacles with this service. Since February 2008, Air Canada has also allowed the use of passenger-supplied POCs on its domestic, transborder and some international flights.
In today's Decision, the Agency ruled that passenger-supplied oxygen, in whatever form is permitted by safety and security regulations, is the most appropriate accommodation for persons with disabilities who require oxygen to travel by air with Air Canada and WestJet; specifically, passenger-supplied gaseous oxygen and POCs on domestic air services and passenger-supplied POCs on international air services. However, should Air Canada choose to continue to provide a gaseous oxygen service rather than allow passenger-supplied gaseous oxygen, the Agency is willing to accept Air Canada's service as providing a reasonable alternative to passenger-supplied gaseous oxygen on its domestic air services on the condition that it implements the Decision's corrective measures.
Air Canada must implement corrective measures within specified time frames but all must be completed within a one year period from the date of this Decision. Some of the key corrective measures include:
- modifying its Fitness for Travel form to seek only information on the person's oxygen-related needs;
- providing a continuous carrier-supplied oxygen service from the point of check-in, during connections and until arrival in the general public area at the final destination; and,
- providing its carrier-supplied oxygen service free of charge on board the aircraft and within terminals, except for the cost of the oxygen itself and any non reuseable pieces of equipment.
Where passenger-supplied POCs are permitted by foreign regulatory regimes but Air Canada does not yet allow their use, Air Canada must continue to provide its carrier-supplied gaseous oxygen service consistent with the Decision's corrective measures.
This Decision continues to ensure equal access to the federal transportation network for persons with disabilities, regardless of the nature of the disability.
The Canadian Transportation Agency is an independent tribunal which operates like a court to render decisions on a case-by-case basis. The Agency's jurisdiction with respect to persons with disabilities, stated in Part V of the Canada Transportation Act, is to ensure that persons with disabilities have proper access to effective transportation service. The Agency makes decisions and orders to eliminate undue obstacles to the mobility of persons with disabilities in the federal transportation network.
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Backgrounders on the Agency's Decision No. 336-AT-A-2008 on oxygen may be found in the Media Room at www.cta.gc.ca. The Decision No. 720-AT-A-2005 issued December 13, 2005, and related news release may also be found on the Agency's Web site.
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BACKGROUNDER
Medical Oxygen Decision
In its 2005 Decision, the Canadian Transportation Agency determined that persons who require medical oxygen to be available to them when they travel by air with Air Canada and WestJet encountered obstacles to their mobility. This Decision was the result of 25 complaints against Air Canada and one against WestJet filed between 2000 and 2005.
In 2005, WestJet allowed passenger-supplied gaseous oxygen on domestic flights but not on transborder or international flights. As passengers requiring medical oxygen could not travel on these flights, the Agency found this to be a significant obstacle to the mobility of persons with disabilities. Since that time, as WestJet has voluntarily amended its policies on the use of passenger-supplied portable oxygen concentrators (POCs) on all its flights, which removes the obstacle, the Agency finds that no further action is required.
Air Canada, at that time in 2005, provided only carrier-supplied gaseous oxygen service to passengers for a fee. The Agency found there were systemic obstacles with this service. Since February 2008, Air Canada has allowed the use of passenger-supplied POCs on its domestic, transborder and some international flights. Additionally, it continues to provide its own gaseous oxygen service to passengers for a fee on all of its flights.
Although the Agency determined that obstacles existed in 2005, it did not have enough evidence to assess whether the obstacles were undue and, if so, what corrective measures would be appropriate.
In order to determine whether an obstacle is undue, the Agency takes into account the context in which the complaint is made. The Agency must strike a balance between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles to their ability to access and use the federal transportation system. It is this balance that the Agency applies to the concept of undueness.
The Agency recognized that the issues were very complex. Therefore, the Agency decided to pursue the investigation through a public hearing which was held between October 29 and November 22, 2007, in order to gather further information to assist it in its determination of undueness.
During the hearing, the Agency heard from:
- one of the complainants;
- expert medical witnesses;
- advisors from an oxygen equipment and manufacturer and supply companies; and
- officials from Transport Canada in various areas, including Transportation of Dangerous Goods.
The Agency also gathered and examined additional information regarding:
- Canadian regulations for transportation and use of oxygen on aircraft;
- United States regulations on the transportation and use of oxygen on aircraft;
- other foreign jurisdiction regulations;
- types of oxygen delivery methods;
- two leading medical conditions that necessitate the use of oxygen;
- persons who require oxygen to travel by air; and
- oxygen industry standards and future trends.
Information was presented on three types of oxygen delivery methods: gaseous, liquid and oxygen concentrators.
Liquid oxygen equipment costs are generally higher but historically favoured because it lasted longer than gaseous oxygen. With technology advancements, gaseous oxygen can now be used with conserving devices which extends the life of the oxygen.
Recently, there has been another significant advancement - portable oxygen concentrators (POCs) - which are gaining rapidly in popularity as being more cost efficient than either gaseous or liquid technology. Evidence presented indicates that POCs can be used in airports and are widely accepted on board aircraft throughout the world. Only one device is needed for a person's trip when POCs are used with no need to ever refill the tank. POCs take oxygen from the air and concentrates it. This easily portable device can operate using batteries.
The Canadian regulatory regime permits air carriers to choose whether they wish to provide carrier-supplied oxygen or allow passenger-supplied oxygen. Although gaseous oxygen is considered a dangerous good, the regulations allow the transportation by air of gaseous oxygen for medical reasons to be exempted. Liquid oxygen is forbidden for transport by air. POCs are not classified as a dangerous good as the pressure inside the units is limited.
The United States permits the use of portable oxygen concentrators but does not allow passenger-supplied gaseous oxygen. The U.S. recently ruled that all air carriers operating flights that begin or end in the U.S. are to allow the use of portable oxygen concentrators effective May 2009. The Agency heard evidence that European regulations do not prohibit passenger-supplied gaseous oxygen on board aircraft but most full service carriers do not allow passenger-supplied gaseous oxygen on international flights. During the course of its investigation, the Agency heard no evidence as to the existence of jurisdictions that prohibit the use of approved passenger-supplied POCs in flight.
On June 26, 2008, the Agency released its final Decision on the complaints filed against Air Canada and WestJet regarding persons who require oxygen to travel by air. The Agency found undue obstacles to the mobility of persons with disabilities and ordered a series of corrective measures to be implemented by Air Canada only, given that WestJet had already removed obstacles.
The Decision states that the Agency is of the opinion that passenger-supplied oxygen, in whatever form is permitted, is the most appropriate accommodation for persons with disabilities who require oxygen to travel by air; on domestic flights, being gaseous oxygen or POCs.
However, the Agency found that with respect to international air services, the most appropriate accommodation is limited to passenger-supplied POCs.
The Agency focussed on what is reasonable accommodation and has decided to accept Air Canada's oxygen service as a reasonable alternative to passenger-supplied gaseous oxygen on its domestic flights on the condition that it implements the Decision's corrective measures.
The corrective measures ordered are:
- Amend its advance notice policy to make a reasonable effort to provide its oxygen service on less than 48 hours notice.
- Modify its Fitness for Travel form to seek only information on the person's oxygen-related needs.
- Provide a continuous carrier-supplied oxygen service from the point of check-in, during connections and until arrival in the general public area at the final destination.
- Ensure that the placement of the Medipak (the carrier-supplied oxygen service method) does not encroach unreasonably on the person's floor space.
- Reinstate the provision of oxygen humidifiers upon the passenger's physician's request.
- Provide its carrier-supplied oxygen service free of charge on board the aircraft and within terminals for domestic flights except for the cost of the oxygen itself and any non reuseable pieces of equipment.
Where passenger-supplied POCs are permitted by foreign regulations but Air Canada does not allow their use, Air Canada must continue to provide its carrier-supplied gaseous oxygen service as an alternative with corrective measures.
This Decision affects persons with disabilities that require oxygen when travelling by air. The two leading conditions that necessitate long-term oxygen therapy are chronic obstructive pulmonary disease (also referred to as chronic bronchitis or emphysema) and pulmonary fibrosis. Recent yearly figures provided by Air Canada show that oxygen was used on 1,751 one-way trips and WestJet states that oxygen was used on 1,044 one-way trips.
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BACKGROUNDER
The Canadian Transportation Agency's Decision Process Related to Accessibility of the Federal Transportation Network
The Canadian Transportation Agency is an independent tribunal which operates like a court to render decisions on a case-by-case basis. The Agency's jurisdiction as stated in Part V of the Canada Transportation Act, is to ensure that persons with disabilities have proper access to effective transportation services.
Accessibility of the federal transportation network means that each phase of the transportation cycle, which involves many components, is accessible and allows a person with a disability to travel throughout the network without encountering undue obstacles.
The Agency ensures accessibility through various mechanisms. Through the complaint mechanism, a person with a disability brings a problem that they experienced within the federal transportation network before the Agency. The Agency assesses whether the person has a disability for the purpose of the Canada Transportation Act, then proceeds with obstacle and undue obstacle determinations which includes a consideration of undue hardship. After which, the Agency renders a decision and may order corrective measures to eliminate undue obstacles to the mobility of persons with disabilities.
Obstacle
The word "obstacle" is not defined in the Canada Transportation Act. It is usually understood to mean something that impedes progress or achievement. The obstacle must be directly related to a person's disability and encountered within the federal transportation network. The Agency may find obstacles in cases where the person was able to travel but their experience calls into question whether the person had proper access to effective transportation services and was treated with dignity, as is their fundamental right as a person.
It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the constraints that transportation service providers will encounter in trying to meet the needs of persons with disabilities.
Undue Obstacle
Although, the term "undue" is not defined in the Canada Transportation Act, it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; or disproportionate.
Once the Agency has found that a feature of the federal transportation network represents an obstacle to persons with disabilities, it must then proceed to make a determination of whether that obstacle is undue. The Agency takes into account the context in which the complaint is made.
Weighing into this determination, the Agency considers the:
- significance and recurring nature of the obstacle;
- impact on persons with disabilities;
- transportation service provider's commercial and operational considerations;
- transportation service provider's responsibilities; and
- assessment of undue hardship.
The Agency must strike a balance between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles. It is this balance that the Agency applies to the concept of undue obstacles and undue hardship.
Ideal Accommodation
The Agency assesses what the complainants generally seek as accommodation. In some cases, this can be considered "ideal" in that it meets, in the complainant's opinion, all needs and preferences in order to travel. If the Agency agrees that the requested ideal accommodation is the most appropriate accommodation in the circumstances, the Agency focuses then on whether this constitutes reasonable accommodation with respect to the circumstances of the transportation service provider.
Most Appropriate Accommodation
The Agency determines what is considered the "most appropriate" accommodation, which is separate and distinct from its undue hardship determination. The Agency's specialized expertise in transportation allows it to exercise its discretion to eliminate alternatives to accommodation that are unrealistic (i.e. impossible or unreasonable).
The most appropriate accommodation will be one that respects the dignity of the individual, meets individual needs, and promotes the independence, integration and full participation of persons with disabilities within the federal transportation network.
Once the most appropriate accommodation is determined, the Agency then considers whether the requirement to provide the most appropriate accommodation would cause undue hardship to the service providers or whether there are reasonable alternatives to the most appropriate accommodation.
Even the most appropriate accommodation may still have some constraints faced by persons with disabilities. Examples of constraints may be not being able to board in their own wheelchair; arriving at a terminal earlier to allow time for boarding; or waiting for a longer period of time for deboarding assistance than persons without disabilities.
Reasonable Accommodation
The transportation service provider must show that alternative accommodation has been provided, up to the point of undue hardship. The Agency also considers if any alternatives exist to the most appropriate accommodation. Reasonable accommodation in each case is a matter of degree and depends on a balancing of the interests of persons with disabilities with those of the transportation service provider.
In the end, reasonable accommodation will be the most appropriate accommodation which would not cause undue hardship to the transportation service provider.
Undue Hardship
In order for the Agency to determine if an obstacle or most appropriate accommodation constitutes undue hardship, the transportation service provider must show that:
- no reasonable alternatives exist to better accommodate the person with a disability; or
- constraints exist such that removing the obstacle would be unreasonable, impracticable or impossible.
Examples of constraints that the Agency uses in its determination of undue hardship are those related to structural issues, safety issues, operational issues and financial/economic issues and include security measures, timetables or schedules that they must adhere to for commercial reasons, equipment design and the economic impact of adapting services.
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