Canadian Transportation Agency Decision on Use of Medical Oxygen by Air Travellers



    OTTAWA, June 26 /CNW Telbec/ - 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.

    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.

    For further information, please contact:

    News Media Enquiries: Jadrino Huot at 819-953-9957
    General Public Enquiries: info@cta-otc.gc.ca; 1-888-222-2592; TTY
    1-800-669-5575 (Canada only)

    The Canadian Transportation Agency is online at www.cta.gc.ca.

    To keep up-to-date with our latest news releases and other information,
    use our subscription service available on our home page under
    "subscription."


                                 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.

    For further information, please contact:

    News Media Enquiries: Jadrino Huot at 819-953-9957
    General Public Enquiries: info@cta-otc.gc.ca; 1-888-222-2592; TTY
    1-800-669-5575 (Canada only)

    The Canadian Transportation Agency is online at www.cta.gc.ca.

    To keep up-to-date with our latest news releases and other information,
    subscribe to our electronic mail service.


                                 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.
    




For further information:

For further information: News Media Enquiries: Jadrino Huot, (819)
953-9957; General Public Enquiries: info@cta-otc.gc.ca; 1-888-222-2592; TTY
1-800-669-5575 (Canada only); The Canadian Transportation Agency is online at
www.cta.gc.ca; To keep up-to-date with our latest news releases and other
information, use our subscription service available on our home page under
"subscription".


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