Docket: A-405-13
Citation: 2014
FCA 288
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CORAM:
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NADON J.A.
GAUTHIER
J.A.
SCOTT J.A.
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BETWEEN:
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AIR CANADA
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Appellant
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and
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MARLEY GREENGLASS AND CANADIAN
TRANSPORTATION AGENCY
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Respondents
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REASONS FOR JUDGMENT
NADON J.A.
[1]
On August 2, 2013, the
Canadian Transportation Agency (the Agency) rendered its Final Decision
(Decision No. 303-AT-A-2013 or the “Final Decision”)
concerning the application of Mrs. Marley Greenglass (the applicant) made
pursuant to subsection 172(1) of the Canada Transportation Act, S.C.
1996, c.10 (the Act) against Air Canada’s
policy which allows the carriage of pet dogs in aircraft cabins particularly as
it affects individuals, such as the applicant, who have an allergy to dogs. At
paragraphs 62 to 68 of the Final Decision, the Agency ordered Air Canada to
comply with the following accommodation measures:
CONCLUSION
[62] The Agency
therefore orders Air Canada to develop and implement the policies and
procedures necessary to provide the following appropriate accommodation and to
provide the requisite training to its staff to ensure the provision of the
appropriate accommodation.
With respect to
dogs carried as pets
[63] 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.
[64] 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 in the
aircraft cabin in which a person with a disability as a result of their allergy
to dogs is travelling.
[65] 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
[66] 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.
[67] 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 completed their booking. A person with a dog allergy
disability and a person travelling with a service dog will not be accepted on
the same flight using an aircraft that does not have HEPA filters or which does
not provide 100 percent unrecirculated fresh air.
[68] Air Canada has until September 16,
2013 to comply with this order.
[2]
On October 10, 2013,
Pelletier J.A. granted leave to Air Canada to appeal the Agency’s Final
Decision and on November 29, 2013, Air Canada filed its Notice of Appeal.
[3]
The facts underlying this
appeal are simple. In short, on a flight from Toronto to Phoenix, Arizona, the applicant
was seated in a row directly behind a passenger accompanied by a dog. The
presence of the dog caused “health issues” for
the applicant, resulting in her flight being delayed. She took medication and
put on a charcoal filter mask to prevent things from getting worse. Ultimately,
the dog was moved, but by that time the applicant was feeling unwell and had to
increase her medication throughout the flight. During the flight, the applicant
had a second “attack” and it took her several
days to recover.
[4]
On February 7, 2012, the applicant
filed her application against Air Canada’s policy providing for the carriage of
pets in aircraft cabins as it relates to her dog allergy.
[5]
On March 6, 2012, the Agency
adjourned her application pending the adjudication of a decision in an
investigation into WestJet, Air Canada and Air Canada Jazz’s policies with
respect to persons whose allergy to cats results in a disability for the
purposes of the Act.
[6]
On June 14, 2012, the Agency
issued its final decision regarding cat allergies (the “Cat
Allergy Decision”). As part of this decision, the Agency determined the
appropriate accommodation measures that the airlines had to adopt for persons
allergic to cats (Decision No. 227-AT-A-2012).
I.
The Decision under Review
[7]
In addition to its Final Decision,
the Agency made three other decisions which are relevant to this appeal as they
form part and parcel of the Final Decision. These decisions are referred to as:
the Initial Opening Pleading Decision, rendered on January 16, 2013; the Second
Opening Pleading Decision, given on March 7, 2013; and the Show Cause Decision,
rendered on June 5, 2013. A brief review of these decisions is necessary to
fully understand the Final Decision and the issues which arise in this appeal.
A.
The Initial and Second Opening
Pleading Decisions
[8]
On January 16, 2013, the
Agency opened pleadings in the applicant’s application and gave her an
opportunity to complete her application following which Air Canada would have
the opportunity to file a response.
[9]
The Initial Opening Pleading
Decision (this decision is numbered No. LET-AT-A-10-2013) set out a three step
process for resolving applications through formal adjudication: first, the applicant
would have to establish that she was a person with a disability for the
purposes of the Act; second, the applicant would have to establish that
she had encountered an “obstacle”, i.e. that she needed, and was not provided
with, accommodation; third, the Agency would determine whether the obstacle was
an undue obstacle and whether corrective measures were therefore required to
eliminate it.
[10]
With respect to the third
step, the Agency explained that an obstacle will not be considered “undue” if the service provider can justify its
existence by showing that the removal of the obstacle would be unreasonable,
impractical or impossible, such that any formal accommodation would cause the
service provider undue hardship.
[11]
The Initial Opening Pleading
Decision found, on a preliminary basis, that the accommodation measures ordered
by the Agency in the Cat Allergy Decision constituted the appropriate
accommodation needed to meet the disability-related needs of persons who are
disabled by an allergy to dogs.
[12]
The Agency asked the
applicant to provide a letter or medical certificate from a physician or
allergist giving answers to a number of questions posed by the Agency. The
Agency also requested that the applicant describe in detail how Air Canada’s
policy to allow the carriage of pets in the aircraft cabin affected her ability
to engage in air travel.
[13]
The applicant did not respond
to the Initial Opening Pleading Decision as required. Consequently, the Agency
closed her file (this decision is numbered No. LET-AT-A-28-2013).
[14]
On February 21, 2013, the applicant
resubmitted her application and informed the Agency that she was seeking the
same accommodation which the Agency provided for those suffering from cat
allergies in its Cat Allergy Decision.
[15]
On March 7, 2013, the Agency
reopened the applicant’s file and sent the Second Opening Pleading Decision to
the parties (this decision is numbered No. LET-AT-A-46-2013). In this decision,
the Agency again set out the findings in the Cat Allergy Decision and noted the
applicant’s request that the accommodation measures adopted in that decision be
provided to individuals with a dog allergy disability.
[16]
On April 4, 2013, Air Canada
filed its response to the Second Opening Pleading Decision in which it raised
the issue of its obligations with respect to service dogs. On April 7, 2013,
the applicant filed a reply to Air Canada’s submissions and pleadings were
considered closed.
B.
Show Cause Decision
[17]
On June 5, 2013, the Agency
issued its Show Cause Decision (this decision is numbered No. LET-AT-A-82-2013)
in which it made three final determinations and one preliminary determination.
[18]
First, the Agency determined
that the applicant was a person with a disability within the meaning of the Act.
Second, it determined that the same accommodation which it provided to
individuals in the Cat Allergy Decision was appropriate in this case. The
Agency noted that Air Canada had submitted an internet article from the website
“My Health News Daily” (published on July 26, 2012)
which indicated that there were differences between cat and dog dander. More
particularly, the article indicated that cat protein was so small and light
that it could remain airborne for many hours. The article then quoted Dr. Mark
Larche, Immunology Professor at McMaster University, to the effect that dog
allergens do not remain airborne in the same way that cat allergens do. Based
on this article, Air Canada submitted that the five row seating separation between
cats and individuals with an allergy to cats, as recommended in the Cat Allergy
Decision, may not be necessary for persons with a dog allergy.
[19]
The Agency dismissed this
argument in the following terms at paragraph 46 of the Show Cause Decision:
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.
[20]
The Agency therefore
concluded that, when at least 48 hours advance notification was provided by
persons with a dog allergy disability (or best efforts were made when less than
48 hours notice is given), the appropriate accommodation with respect to
service dogs was a seating separation of a minimum five rows between dogs and
individuals with a dog allergy on aircraft with either High Efficiency
Particulate Air (HEPA) filters or which provide for 100 percent unrecirculated
fresh air. For non-HEPA or unrecirculated fresh air aircraft (such as
Bombardier Dash 8’s), the appropriate accommodation was to provide the booking
priority to whomever completed their booking first, whether it be the
individual with the service dog or the person suffering from a dog allergy.
[21]
Third, the Agency concluded
that Air Canada’s current policy with respect to the carriage of dogs in
aircraft cabins constituted an obstacle to the mobility of individuals with a dog
allergy, including the applicant.
[22]
Lastly, the Agency
preliminarily concluded that Air Canada’s policy relating to the carriage of
dogs in the aircraft cabin constituted an undue obstacle to the applicant’s
mobility and that of other individuals suffering from a dog allergy. The Agency
requested that Air Canada show cause why this preliminary finding should not be
finalized and the applicant was provided with the opportunity to reply to any
submissions made in that regard by Air Canada.
C.
Final Decision
[23]
In its Final Decision, the
Agency finalized its preliminary finding from the Show Cause Decision with
respect to Air Canada’s policy constituting an undue obstacle to the
applicant’s mobility and that of other persons with a dog allergy. Before
reaching its conclusion, the Agency refused to consider the additional submissions
made by Air Canada with respect to the Agency’s determination in the Show Cause
Decision concerning the appropriate accommodation in this case. In brief, Air
Canada argued that a key report, namely that of Dr. Sussman entitled “Report Addendum: Cat and Dog Dander in the Aircraft Cabin,
May 23, 2008”referred to in both the Show Cause Decision and the Cat
Allergy Decision, needed to be amended in order to take account of the specific
situation of individuals with a dog allergy. Similarly, the Agency refused to
consider further submissions made by the applicant concerning the need to amend
Dr. Sussman’s report.
[24]
The main part of the Final Decision
addressed the interpretation and application of a set of regulations from the
United States Department of Transportation entitled Nondiscrimination on the
Basis of Disability in Air Travel, 14 C.F.R. §
382 (2008) (the “U.S. Regulations”).
Because of the conclusion which I have reached with regard to Air Canada’s
arguments on procedural fairness, I need not address nor discuss the Agency’s
findings on specific components of the U.S. Regulations.
II.
Appellant’s Submissions
[25]
Air Canada makes a number of
submissions as to why this appeal should be allowed. It says that the Agency
reversed the burden of proof and made a decision in the absence of evidence,
thus violating procedural fairness. It also argues that the Agency’s refusal to
consider its arguments regarding alternative appropriate accommodation violated
procedural fairness. Lastly, it argues that the decision is unreasonable in
that the effect of the Final Decision is that Air Canada will be forced to
discriminate against people requiring service dogs in a manner that is
specifically prohibited by the U.S. Regulations. Again, because of the
conclusion that I have reached on the procedural fairness issue, I need not
address Air Canada’s last submission.
III.
Standard of Review
[26]
As indicated above, I intend
to restrict my analysis to the procedural fairness issues raised by Air Canada.
In this respect, there can be no doubt that these issues must be assessed
against a standard of correctness (See Mission Institution v. Khela,
2014 SCC 24, [2014] 1 S.C.R. 502 at paragraphs 79 and 83).
IV.
Analysis
[27]
In my view, the procedural
fairness issues which Air Canada raises stem mainly from the wording of the Initial
and Second Opening Pleading Decisions by which the Agency attempted to set the ‘ground
rules’ pursuant to which it would adjudicate the applicant’s application. As it
turned out, the process resulted in a denial of procedural fairness to Air
Canada. It goes without saying that this result was not intentional. However, in
the end, it appears that form took over substance and the process became rigid
and inflexible. Air Canada was prevented from submitting evidence on a number
of crucial issues such as obstacle and appropriate accommodation. This
situation occurred by reason of the approach taken by the Agency and the manner
in which it communicated its ‘game plan’ to the parties.
[28]
Because I conclude that in
the particular circumstances of this case Air Canada was deprived of procedural
fairness, I would allow this appeal. My reasons for so concluding are as
follows.
[29]
I begin with page 10 of
Appendix A of the Initial Opening Pleading Decision where the Agency informed
the parties that it was the applicant’s burden to establish her need for
accommodation and that her need was not met by Air Canada’s policy. The text
found at page 10 of Appendix A is as follows:
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.
[30]
The Agency repeated this
statement at paragraph 37 of the Show Cause Decision.
[31]
This theme was reiterated by
the Agency in a decision (Decision No. 430-AT-A-2011) rendered on December 15,
2011, which forms part and parcel of its Cat Allergy Decision where, at paragraph
225, it said that “the Applicants have not provided
persuasive evidence that seat row separation is ineffective and the burden, at
the obstacle phase, lies upon them to show that this is the case”.
[32]
The above language suggests
that it was up to the applicant to prove her need for accommodation and that
her need had not been met by Air Canada. However, at page six of the Initial Opening
Pleading Decision, the Agency appears to be saying something different. There
it states that the applicant must establish her need for accommodation if that
need differs from the Agency’s preliminary finding of appropriate accommodation
in the Cat Allergy Decision. In other words, the Agency seems to be saying that
the applicant need not do anything unless she wants accommodation other than
what the Agency found in the Cat Allergy Decision. The relevant passages read
as follows:
−
The applicant will have
until February 6, 2013 to establish that she is a person with a disability, and
that she requires an accommodation measure that is different from the Agency’s
preliminary finding of appropriate accommodation to meet her disability-related
needs and those of persons with a disability as a result of their allergies to
dogs, should this be her view;
−
The respondent will have
until February 20, 2013 to respond to the applicant’s 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 any other alternative suggested by the applicant and to propose another
form of accommodation;
−
The applicant will then have
until February 25, 2013 to file a reply.
[33]
To make matters slightly
more complicated, at page two of the Second Opening Pleading Decision, which
allowed the applicant to reinstitute her application, after indicating that the
applicant was requesting the same accommodation provided in the Cat Allergy
Decision, the Agency proceeded to inform Air Canada that it had until March 28,
2013 (this date was extended to April 4, 2013) to file submissions in response
to the applicant’s submissions on disability and obstacle/appropriate
accommodation and to file undue hardship arguments. The relevant passages read
as follows:
On February 21, 2013,
Mrs. Greenglass filed the attached application and Disability Assessment Form
in regards to her allergy to dogs. Mrs. Greenglass requests that the
aforementioned accommodation determined by the Agency for persons with a cat
allergy disability be provided by Air Canada to persons with a dog allergy
disability.
The respondent has until
March 28, 2013 to respond to the applicant’s 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, following which the applicant will have
until April 4, 2013 to file a reply.
[34]
The difference in substance
between the two texts reproduced immediately above is that, at the time of the Initial
Opening Pleading Decision, the applicant had not indicated that she was adopting
the accommodation described by the Agency in the Cat Allergy Decision, whereas
at the time of the Second Opening Pleading Decision, she had done so.
[35]
Air Canada argues that the
Agency reversed the burden of proof when it allowed the applicant to import the
Cat Allergy Decision without any supporting arguments or evidence. It submits a
number of legal arguments in support of this position. I am far from convinced,
on the authorities, that Air Canada’s assertion is correct. However, I am
satisfied that Air Canada was misled by the two opening pleading decisions, the
relevant passages of which I have already reproduced. More particularly, the
implication of the Agency’s direction to Air Canada that it would have to
respond to the applicant’s submissions by March 28, 2013 is that there would actually
be submissions made by the applicant on the questions of obstacle/appropriate
accommodation.
[36]
With hindsight, it is clear
to me that the Agency considered that the applicant had already made her
submissions when she adopted the accommodation determined in the Cat Allergy
Decision. Therefore, Air Canada should not have waited for the applicant’s
submissions, but should have responded to the accommodation measures determined
by the Agency in the Cat Allergy Decision on the understanding that those
measures had been put forward by the applicant and that they would be adopted
by the Agency unless rebutted.
[37]
However, also with the
benefit of hindsight, it is obvious to me that Air Canada plainly misunderstood
the Agency’s opening pleading decisions and did not, prior to the rendering of
the Show Cause Decision, adduce any evidence concerning obstacle/appropriate
accommodation other than the internet article described above.
[38]
I am satisfied that Air
Canada understood that the applicant was obliged to demonstrate why she
required the measures prescribed by the Agency in the Cat Allergy Decision,
i.e. a seat separation of at least five rows on planes with HEPA filters or
with systems which provide 100 percent unrecirculated fresh air and the
exclusion of all dogs from the planes without such systems, and not a different
form of accommodation. As the applicant adduced no evidence, Air Canada did not
adduce the evidence which it says it could have produced to counter the importation
of the Cat Allergy Decision. In particular, Air Canada argues that it would
have submitted evidence to the effect that less disruptive measures could be
implemented to accommodate both those travelling with dogs and those suffering
from dog allergies. However, as events unfolded, that evidence was not
submitted because of the Agency’s refusal to entertain it.
[39]
The only evidence which Air
Canada did adduce was the internet article. In the Show Cause Decision, the
Agency considered that article and held that it did not explain how the
airborne features of dog allergens differed from those of cat allergens and the
consequences or implications of any difference for persons such as the
applicant. Therefore, there was no evidence to support the view that different
measures of accommodation would suffice to meet the needs of persons with a dog
allergy disability. The Agency further held that there was also no evidence
that dog dander particles would not be effectively captured by HEPA filters or
that an airflow of 100 percent unrecirculated fresh air would not rid the cabin
of such particles.
[40]
In the absence of any
evidence on the part of Air Canada, the Agency concluded that the accommodation
measures which it had ordered in the Cat Allergy Decision constituted the
appropriate accommodation needed to address the needs of persons who were
disabled by reason of an allergy to dogs, whether they be service dogs or pets.
[41]
After finding that Air
Canada’s policy with respect to the carriage of dogs in an aircraft cabin
constituted an obstacle to the applicant’s mobility and that of other persons
with a dog allergy, the Agency turned to the question of whether the obstacle
was undue. To this question, it gave a preliminary answer which was that Air
Canada’s policy constituted an undue obstacle to the mobility of the applicant
and of other persons with a dog allergy disability. Consequently, at paragraph
89 of the Show Cause Decision, the Agency indicated that it would provide Air
Canada with an opportunity to submit evidence with regard to this preliminary
finding. It stated, at paragraph 90, that “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”.
[42]
In response, Air Canada made
detailed submissions regarding the operational conflict that the Agency’s
proposed accommodation created with the U.S. Regulations and further argued
that the burden created by those measures was undue since less intrusive
measures could be put in place while still fulfilling the needs of persons such
as the applicant. More particularly, Air Canada argued that as its goal was to
minimize situations where it would have to displace or remove a passenger from
a flight, particularly where that person was a person with a disability, it
intended to propose alternatives with regard to the carriage of dogs on board
aircrafts that were not equipped with HEPA-type filters.
[43]
Air Canada concluded its submissions
by requesting that the Agency remove its conclusion in the Show Cause Decision that
a person with a dog allergy disability and a service dog could not be accepted
on the same aircraft if that aircraft did not have HEPA filters or did not provide
100 percent unrecirculated fresh air.
[44]
However, in its Final Decision,
the Agency refused to consider the above submissions on the ground that they
had not been filed within the time given to Air Canada to do so. The Agency
explained that it had given Air Canada an opportunity to provide evidence and
submissions regarding the question of obstacle and appropriate accommodation
when it rendered its Second Opening Pleading Decision, adding that the purpose
of the Show Cause Decision was not to give Air Canada a second chance to
address the same question, but rather to allow it to comment on the Agency’s
preliminary finding of undue obstacle. Consequently, Air Canada’s submissions,
as well as those made by the applicant on the same topic, were deemed out of
time and, as a result, not considered.
[45]
Thus Air Canada was unable,
for all intents and purposes, to either adduce evidence or provide submissions
with regard to the important questions of obstacle and appropriate
accommodation. Air Canada argues, and I agree entirely, that the Agency’s
rationale seems to have been that the undue character of the proposed
accommodation could be examined in a vacuum independent of the existence of
other possibly less intrusive remedies.
[46]
It appears to me that in the
grander scheme of things, fairness required that Air Canada be given the
opportunity to make submissions with regard to alternative accommodation, even
at the “undue obstacle” stage of the Agency’s
inquiry. It is safe to say that had the Agency allowed Air Canada to make these
submissions, they would not have had any impact on the applicant’s application
other than to the extent that different measures of accommodation might have
been found.
[47]
It is clear that there was a
breakdown in communications between Air Canada and the Agency. Air Canada
understood from the two opening pleading decisions that it was to respond to
the applicant’s submissions on, inter alia, obstacle and appropriate
accommodation. When the applicant made no submissions, Air Canada believed that
it had nothing to which it needed to respond. This explains why it submitted
practically no evidence other than an internet article. This, in due course,
led to further procedural problems.
[48]
I have no hesitation in
saying that common sense has not prevailed in the present matter. The Agency
determined important issues, not only for the applicant and all those having
dog allergies, but also for Air Canada. It did so without the benefit of any
real evidence being adduced by the parties and, more particularly, by Air
Canada. This was the result of Air Canada’s apparent difficulty in fully
understanding the meaning of the various directions given by the Agency in its opening
pleading decisions.
[49]
Had common sense prevailed,
one would have expected the Agency, at some point in time, to realize that it
was disposing of these important issues without, in effect, the full participation
of Air Canada. I concede, as I must, that the Agency is entitled to establish
its rules and procedures. However, in the end, the rules and procedures are
there to serve the interests of justice. In my view, justice in this case
required that Air Canada be given the opportunity of adducing evidence on the
issues of obstacle, appropriate accommodation and undue hardship. That has not
really taken place in this case.
V.
Disposition
[50]
Consequently, I would allow
the appeal, set aside the Final Decision, rendered by the Agency on August 2,
2013 and return the matter to the Agency for reconsideration in the light of
these reasons. In view of the particular circumstances of this case, I would
not make any order as to costs.
"M Nadon"
“I agree.
Johanne Gauthier J.A.”
“I agree.
A.F. Scott J.A.”
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