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Medical Oxygen in Commercial Air Carriage

Published in the June 2008 issue of Transportation Notes - View Article

On June 26, 2008, the Canadian Transportation Agency released two decisions on an issue which has long been on the regulatory agenda: the nature of the obligations of an air carrier to accommodate passengers who require supplemental oxygen to travel by air. Although the decisions will affect all carriers operating in Canada, it is directly applicable only to the carriers who were parties to the proceedings, Air Canada and WestJet.

The first of the decisions (#336-AT-A-2008) deals with the broad issues of appropriate accommodation. It will have far-reaching implications. The second (#337-AT-A-2008) is much more narrow in scope and we will accordingly deal with it briefly at this point.

At issue in Decision No. 337 is whether Air Canada is responsible for any service failures which gave rise to undue obstacles to a number of individual oxygen users who traveled on its services. There were allegations of failure to provide services requested, failure to provide an adequate supply of oxygen and deficiencies in the service. The Agency found that, since the complaints were filed, Air Canada has implemented changes in its delivery system. That system is “highly complex involving well-defined and controlled tasks by specialized employee groups and departments”. The Agency expressed the view that passengers who use medical oxygen provided by Air Canada can expect an appropriate level of service. Accordingly it is taking no further action on the individual complaints.

Decision No. 336-AT-A-2008 (hereinafter “the Decision”) involves much more complex issues. This is a case in which technological developments which affect the way in which supplemental oxygen users can be accommodated came of age while the proceedings were underway. A brief comment on the historical background will assist in understanding the legal issues ultimately determined in the proceeding.

The Decision addresses 26 applications which were filed by medical oxygen users in the period between March 2000 and June 2005. During that period of time there was only one delivery system for persons who require medical oxygen to travel by air: compressed gaseous oxygen. The most important underlying question concerned the way in which this oxygen should be supplied. Should passengers be allowed to supply their own oxygen, using whatever third party supplier they think best? Alternatively, should the air carrier take charge of the supply?

For any itinerary involving a point of departure or destination in the United States, the U.S. Code of Federal Regulations, 14 C.F.R. § 125.219 (hereinafter “the FAA rule”) supplied the answer. It is not permissible to carry passenger-supplied oxygen on any such flight. Indeed, the FAA rule purports to apply to flights which overfly US territory. Where the FAA rule applies, there is no choice. The carrier must control the delivery system.

Transport Canada does not impose a rule similar to the FAA rule. As far as we are aware, no other national aviation regulator does. Accordingly, there is no regulatory prohibition on the transportation or use of passenger-supplied oxygen within Canadian airspace. Thus, for a purely domestic itinerary which does not cross U.S. airspace, the position is clear. As a matter of law, the carrier is allowed to permit passengers to use their own supply on board the aircraft. As soon as the aircraft enters U.S. airspace however, the legal position becomes more complicated.

The major Canadian scheduled air carriers, Air Canada and WestJet, reacted differently to this challenge. At the time the complaints were made, Air Canada provided medical oxygen on all its services, whether domestic, transborder or international. It controlled the oxygen supply and thus the FAA rule did not pose a problem. In company with, we believe, every carrier which provides such a service, it charged a fee to recover part of the cost of providing the service. On the other hand, WestJet did not provide its own medical oxygen service. For its domestic services, it permitted passengers to use oxygen provided by their normal supply company. Given the FAA rule, it was not able to accommodate passengers traveling to the United States.

Thus, when the applications were filed, the options were few. However, this began to change in the fall of 2005. In September of that year a Notice of Proposed Rule Making (NPRM) was published in the U.S. Federal Register. The NPRM addressed the proposed allowance of certain respiratory assistance devices which are now generically referred to as personal oxygen concentrators, or POCs. In September 2006, the Department of Transportation issued a Final Rule which identifies acceptable POCs and defines the circumstances in which they may be used. Thus approximately one year prior to commencement of the hearing before the Canadian Transportation Agency, an alternative was added to the mix. By the time the hearings began in the fall of 2007, WestJet had begun to accept POCs on all its flights. Air Canada began accepting POCs on all but its longest haul routes in February of 2008.
In the course of the public hearings, which took place in October and November, 2007, the more important issues debated included: What are the medical conditions which result in the need for supplemental oxygen in travel by air? In cases where no positive regulation prevents the carriage of passenger-supplied gaseous oxygen, should an air carrier be required to permit it? If the carrier is permitted to control the oxygen supply, can it impose a charge to defray the costs of providing the service? How should those costs be measured? Should the carrier be responsible for providing a supply of oxygen from arrival at the airport of departure through to the public area in the airport of arrival? Are POCs adequate substitutes for gaseous oxygen?

The applications were brought under Part V of the Canada Transportation Act which vests the Agency with a jurisdiction to remove undue obstacles to the mobility of persons with disabilities within the national transportation network. We have commented on this legislation extensively in earlier editions and do not propose to examine the issues which define the ambit of Agency jurisdiction in this Note.

Immediately prior to the release of the decision, WestJet was accepting passenger-supplied gaseous oxygen on domestic routes and passenger-supplied POCs on all routes. Air Canada continued to provide a gaseous oxygen service on all routes and allowed passenger-supplied POCs on almost all routes.

The Agency’s task was to examine how oxygen users are being accommodated and determine whether that accommodation is reasonable. It began the essential analysis with comments on the distinctions between ideal, appropriate and reasonable accommodation.

Ideal accommodation is normally what the passenger wants. This will often be the appropriate accommodation. In the case at hand, ideal accommodation would give the passenger the right to choose the oxygen delivery system, subject only to prohibitory regulations. Thus, the passenger would be able to elect his own third party supplier wherever permitted by law and would have the option of carrier supplied oxygen (which should be “continuous during all stages of the passenger’s trip, reliable and free of charge”) in all other cases.
The Agency recognized that the ideal accommodation would require a carrier to have two delivery systems. This, the Agency decided, would be too onerous. The Agency concluded that the reasonable, and most appropriate, form of accommodation is to allow “passenger-supplied oxygen, in whatever form it is permitted”. The forms in which oxygen is permitted, subject to exceptions, are gaseous oxygen in cylinders and POCs.
It appears that the only jurisdiction with an express prohibition against passenger-supplied gaseous oxygen is the United States. What then of flights operated by a Canadian carrier to Europe or some other destination where there is no express prohibition of passenger-supplied gaseous oxygen? Should passenger-supplied oxygen be permitted? The Agency considered the commercial reality of alliances and code share agreements and answered in the negative. It recognized that Canadian carriers will depend on partners in other countries to provide their international services. It recognized that many of those partners are not willing to accept passenger-supplied oxygen and concluded that it should not impose a requirement that passenger-supplied gaseous oxygen be accepted on international flights.

The rules which emerge from this Decision are as follows:

An air carrier will provide appropriate accommodation if it allows the passenger the choice of his own supply of gaseous oxygen or his own POC, wherever this choice is not precluded by positive regulation.
An air carrier who provides this level of appropriate accommodation is not required to provide an oxygen service itself and is thus not subject to the requirement of providing a “continuous supply” as discussed below.
An air carrier may refuse to permit passenger-supplied oxygen.

An air carrier which does refuse to permit passenger-supplied oxygen is subject to a number of requirements which will be phased in over time. At present, Air Canada is the only carrier directly subject to this part of the Decision. Unless and until it permits passenger-supplied oxygen domestically, it faces the following timetable:

It must continue to provide an oxygen service.
In respect of domestic tickets purchased on July 26, 2008 or thereafter, the service must be provided free of charge.
It must provide a “continuous service” beginning June 26, 2009. A continuous service is an oxygen service available to the passenger prior to boarding, during connections and until arrival in the general public area at the airport of final destination.
Towards the end of 2008, it must provide humidified oxygen in some cases.
It must devise a method to minimize the extent to which the box in which an oxygen cylinder is contained encroaches on the space at the passenger’s seat.
In the case of international services, it must either allow POCs (as it currently does on almost all routes) or furnish a service which will be subject to all the requirements described immediately above.

The Decision also clarifies a few ancillary points. A carrier is entitled to insist on medical clearance and advance notice as a condition of acceptance. However, any advance notice requirement must be accompanied by an agreement to make reasonable efforts to accommodate late requests.

CTA, Decisions 336 and 337,
June 26, 2008