IT’S NOT JUST PEANUTS ANYMORE: CARRIER LIABILITY FOR CONTAGEOUS DISEASES AND ALLERGIC REACTIONS

8th Annual McGill Conference on International Liability and Insurance

April 18, 2015

Louise-Hélène Sénécal,Air Canada Legal Department

ALLERGIES

LEGAL FRAMEWORK

No specific reference in US 14 CFR Part 382;

Referenced in guiding material

No specific reference in Canadian Air Transport Regulations

Canadian Transportation Agency rules by decisions.

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ALLERGIES – CANADIAN TRANSPORTATION AGENCY (CTA)

Canadian Transportation Agency uses model of disability analysis reflected in the International Classification of Functioning and Disability, (World Health Organization, 2001) [the ICF]

there must be an impairment in order for there to be a disability for the purposes of Part V of the CTA;

impairment, alone, is insufficient to support the conclusion that a health condition is a disability for the purposes of Part V of the CTA; and

in order to find that a person has a disability for the purposes of the CTA, it is necessary to find that the person experiences activity limitations and/or participation restrictions in the context of the federal transportation network.

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8th Annual McGill Conference on International Liability and Insurance

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ALLERGIES – CANADIAN TRANSPORTATION AGENCY (CTA) (CONT’D)CONCLUSION

An allergy, per se, is not a disability for the purposes of Part V of the CTA.

However, CTA found that there may be individuals in the population of persons who have allergies, who have a disability for the purposes of Part V of the CTA which can be attributed to their allergies.

Requirement to examine on a case by case basis

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8th Annual McGill Conference on International Liability and Insurance

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ALLERGIES

Peanuts and tree nuts

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ALLERGY TO PEANUTS

UNITED STATES

Failed. US Law preventing the banning of products if no solid medical evidence of danger

In Canada, however…………….

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8th Annual McGill Conference on International Liability and Insurance

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ALLERGY TO PEANUTS (CONT’D)

Canadian Transportation AgencyDetermined that an allergy to peanuts as well as tree

nuts was a disability

That although there was no clear danger of airborne reaction, there was a danger of accidental touching or consumption.

Imposed that 2 carriers, Air Canada (including its regional carriers) and WestJet, implement “buffer zones” around passengers who are allergic to nuts or peanuts.

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8th Annual McGill Conference on International Liability and Insurance

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ALLERGY TO PEANUTS ( CONT’D)

Canadian Transportation Agency

BUFFER ZONEIn Economy = Seat bank + 1 in front +1 behind

In Business = either seat bank or pod

Special briefing to passengers in buffer zone to refrain from eating nuts or peanuts. NO GENERAL ANNOUNCEMENT.

Carrier not to serve nuts/peanuts or meals or snacks known to contain nuts or peanuts in buffer zone.

Passenger seeking buffer zone must advise 48 hours in advance and provide medical support. But carrier to try to accommodate if within this timeframe.

See Nugent & Huyer vs. Air Canada 228-AT-A-2011 | CTA Decision | 2011-06-16

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8th Annual McGill Conference on International Liability and Insurance

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ALLERGY TO CATS

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ALLERGY TO CATS

CTA Decision requires exclusionary buffer zone– See 227-AT-A-2012 | CTA Decision | 2012-06-14

Not possible to carry cats and a person with a disability by reason of an allergy to cats on an aircraft without HEPA filters (Dash-8).

Boarding sequence ordered.

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8th Annual McGill Conference on International Liability and Insurance

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ALLERGY TO DOGS

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ALLERGY TO DOGS

Initial CTA decision against AC mirroring decision on cats– See Marley Greenglass vs. Air Canada 303-AT-A-2013 | CTA Decision | 2013-

08-02

Overturned at the Federal Court of Appeal further to a JR– See Air Canada vs. Greenglass and CTA 2014 FCA 288 (CanLII)

Issue of conflict of disabilities

Disability by reason of an allergy to dogs vs disability with a service animal or emotional support animal

US 14 CFR Part 382 Guiding material:It is unlikely that the mere presence of an animal in the same cabin would [...] produce a severe allergic reaction rising to the level of a disability. However, if there was strong evidence that this was the case, it could be necessary to rebook one of the passengers on another flight. Since one disability does not trump another, the carrier should consider a disability-neutral means of determining which passenger would have to be rebooked (e.g., which passenger made the earlier reservation). We emphasize that we expect any such situation to be extremely rare, and that carriers should not rebook a passenger absent strong evidence that the mere presence of an animal in the cabin, even in a location distant from the allergic passenger, would produce an allergic reaction rising to the level of a disability.

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8th Annual McGill Conference on International Liability and Insurance

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OTHER ALLERGY /SENSITIVITY CASES

Multiple Chemical Sensitivities:

CTA - Tatlock vs. Air Canada 245-AT-A-2010 Allergies to flowers:

CTA Kerr vs. Air Canada 370-AT-A-2009 Allergies to fish:

CTA Butler vs. Air Canada 206-AT-A-2010 Allergies to perfume/scented products:

CTA Sawchuck vs. Air Canada 416-AT-A-2010

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8th Annual McGill Conference on International Liability and Insurance

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LIABILITY ISSUES

Olympic Airways vs. Husain 540 US 644 (2004)

US Supreme Court ruled that failure to act after being alerted and asked constituted an “accident” pursuant to the Warsaw Convention.

Could be transposed to accommodation for any allergy.

Would cover physical damages (including death) resulting from the accident.

Consequently quasi-strict liability for carriers.

Would not cover the panic attack or stress from fear of getting an allergic reaction.

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LIABILITY ISSUES (CONT’D)

US 14 CFR Part 382 does not offer private right of action.

In Canada, at least in Common Law Provinces: breach of Human Rights is not a tort, per se.– Seneca College v. Bhadauria, [1981] 2 SCR 181

Other basis of claim, such as the Carriage by Air Act can intervene.

Quebec, not so clear:

2 class action proceedings have been certified following a CTA decision dictating accommodation (no decision on the merits rendered yet).

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