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Carriage of Passengers with Severe Impairments
Published in the January 2009 issue of Transportation Notes - View Article
The Canadian Human Rights Tribunal recently decided a case based on the claim of Eddie Morten, an individual with severe hearing and visual impairments, who asserts the right to travel by air without an attendant. Air Canada took the position that it would be unable to communicate essential safety information to Mr. Morten in the event of an emergency and that, accordingly, an attendant would be required.
Mr. Morten first brought his claim before the Canadian Transportation Agency, asserting that Air Canada’s policy constituted an undue obstacle to his mobility contrary to the provisions of the Canada Transportation Act. The Agency, in consultation with Transport Canada, upheld Air Canada’s position and dismissed the claim.
Rather than appealing the decision of the Agency, Mr. Morten then brought a complaint before the Canadian Human Rights Commission. Air Canada sought to have that claim dismissed on the basis that the complaint was an attempt to do a back-door appeal of the Agency decision. However, the Tribunal refused to dismiss the claim and the complaint was investigated by the Commission.
The Commission found a prima facie case of discrimination and, in accordance with the procedure laid down in the Canadian Human Rights Act, referred the matter to a Tribunal. The Tribunal conducted a public hearing over a period of three weeks in the spring of 2008. Its decision was released on January 26, 2009.
The Tribunal found that it was not able to order Air Canada to allow Mr. Morten to travel without an attendant, at least at this stage. His ability to fly without an attendant has not been established. However, the Tribunal also found that Air Canada had not undertaken a proper assessment of Mr. Morten’s abilities. Failure to undertake this assessment was in itself the result of a discriminatory practice, and Air Canada has been ordered to develop an attendant policy in keeping with principles enunciated by the Tribunal and to assess Mr. Morten in accordance with that policy.
We will discuss some of the implications of this order, but before doing so will set out in some further detail the circumstances of the case.
Mr. Morten is profoundly deaf. He cannot receive and process auditory signals to any degree. He has no light perception in one eye and his visual acuity in his remaining eye is very compromised. He has some severely limited central vision and suffers from nystagmus, a condition which, at times, prevents him from fixing his vision on a specific object. His own treating ophthalmologist stated, in a filed report, that in his view it is obvious that Mr. Morten should not travel by air without an attendant. Although this report was in evidence, the Tribunal made no reference to it in its decision.
Mr. Morten has also demonstrated an impressive degree of independence in his daily life. He is physically fit and has taken considerable pains to overcome his impairments. He clearly has managed to do so over a wide range of activities.
However, the evidence did make it clear that there is one limitation he is not able to overcome: in the case of an emergency evacuation, it would not be possible for a flight attendant to communicate the detailed information which may be required to facilitate the safest possible evacuation. In Air Canada’s view, regulations enforced by Transport Canada require it to devise some way to communicate this information in the course of an emergency evacuation. Air Canada called a witness who has held the position of Flight Attendant Manager and is thus familiar with regulatory requirements. She testified that she could not devise a way of conveying the essential information to Mr. Morten. Although the Tribunal reviewed this evidence, it gave little attention to the conclusion, stating that it “is not particularly relevant as the Tribunal has not ordered that Mr. Morten be able to fly independently without a prior assessment.” It is somewhat difficult to understand this conclusion, as it is clear that if assessed against the standard described by the Flight Attendant Manager, Mr. Morten must certainly be found unable to fly without an attendant.
Rather, the Tribunal based its conclusions largely on a decision of the US Department of Transport (DOT) in a 1987 enforcement action against Southwest Airlines. The Tribunal reviewed the 1987 decision in some detail. Based on this case and its reading of the regulations (discussed below), the Tribunal concluded that an air carrier can require an attendant only if that is required for communicating a pre-flight briefing.
A former Associate Administrator for Regulations and Certification in the FAA gave evidence at the hearing. He explained in great detail the fact that, since the 1987 case, the US DOT and the FAA received and considered numerous submissions on the issue of attendant travel. He reviewed the relevant provisions of 14 CFR Part 382 (“Non-discrimination on the Basis of Disability in Air Travel”) and explained that position stated in the 1987 case has been significantly modified with the result that a carrier subject to Part 382 can indeed deny carriage to a person with severe hearing and visual impairments if it concludes that it would be unable to communicate crucial safety information to the individual at any critical stage of flight. The requirement is not limited to the pre-flight briefing. Although this testimony was uncontradicted, the Tribunal made no reference to it.
The Tribunal concluded that it is highly likely that further accommodation is possible and necessary. It compared Mr. Morten’s abilities to other passengers who have physical impairments which restrict their mobility and suggested that it is not reasonable to impose an attendant requirement on someone with severe hearing and visual impairments while allowing persons with severe mobility impairments to travel unattended.
Air Canada has been ordered to “work with the CHRC and Mr. Morten to develop an attendant policy that takes into account the communication strategies utilized by people like Mr. Morten, the inherent risk posed by passengers with compromised mobility who are currently allowed to fly unaccompanied, and the fact that in emergency situations, many able-bodied passengers are unable to receive, process and act on safety-related emergency instructions.”
This result raises some significant questions. The decision would require Air Canada to develop an attendant policy and include this in its tariff. This would apparently give the Human Rights Commission and Tribunal a role in the oversight of air carrier tariffs. Of course, this is a role which has been historically played by the Canadian Transportation Agency. Furthermore, the policy is to define what is required in the name of safety and the Human Rights Commission is to be consulted in determining what is appropriate. It is not apparent how harmony between aviation regulations administered by Transport Canada, on the one hand, and the Commission’s directions, on the other, is to be assured.
Finally, the Tribunal awarded damages for hurt feelings. Because Mr. Morten found Air Canada’s policy “disempowering” and because he has suffered “headaches, tight muscles, stomach problems, sleeplessness, and the inability to just put this away and forget about it” he was awarded monetary damages of $10,000.
As of the time this article goes to press, the period of time for filing an appeal has not expired.
Morten v. Air Canada
2009 CHRT 03