Following an application made by a passenger who had an allergic reaction to a dog on an airplane, the Canadian Transportation Agency ordered Air Canada to develop and implement specific policies and procedures necessary to accommodate persons with dog allergies who are traveling on its airplanes. Air Canada appealed the Agency’s decision on the basis that it was denied procedural fairness. The court found that Air Canada was denied procedural fairness in that the Agency refused to consider its submissions on a number of crucial issues. The matter was returned to the Agency for reconsideration.

Administrative law – Decisions of administrative tribunals – Canadian Transportation Agency – Human rights complaints – Disability – Duty to accommodate – Policies – Judicial review – Procedural requirements and fairness – Evidence

Air Canada v. Greenglass, [2014] F.C.J. No. 1286, 2014 FCA 288, Federal Court of Appeal, December 9, 2014, Nadon, Gauthier and Scott JJ.A.

The applicant had an allergic reaction on an airplane after being seated directly behind someone who was travelling with a small dog. The dog was traveling in a small carrier stored under the seat in front of the dog owner. The applicant’s allergic reaction caused the flight to be delayed. The applicant applied under s. 172(1) of the Canada Transportation Act to have the Canadian Transportation Agency inquire into Air Canada’s policy regarding dogs to determine whether the policy creates an undue obstacle to the mobility of persons with disabilities.

The Agency conducted its inquiry and ordered Air Canada to develop and implement policies and procedures necessary to provide appropriate accommodation to persons with dog allergies, including a requirement that there be a minimum of a five row seating separation between any dogs on flight and persons with allergies to dogs. Air Canada appealed the Agency’s decision to the Federal Court of Appeal, arguing that the Agency breached its duty of procedural fairness when it made its decision after refusing to consider additional submissions from Air Canada with respect to a preliminary determination concerning appropriate accommodations.

The court allowed the appeal. It found that Air Canada had been denied the opportunity to submit evidence on a number of crucial issues such as obstacle and appropriate accommodation. It held that the situation occurred by reason of the approach taken by the Agency and the manner in which it communicated its “game plan” for the parties’ submissions. The court concluded at paragraph 49 of the decision that, while the Agency is entitled to establish its rules and procedures, “[I]n the end, the rules and procedures are there to serve the interests of justice.” In the court’s 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. The court returned the matter to the Agency for reconsideration in light of the court’s reasons.

This case was digested by Kara Hill of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at khill@harpergrey.com or review her biography at http://www.harpergrey.com.

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