[nabs-l] More on Eddy Morten and Air Canada

[mworkman at ualberta.ca]

Since people seem to be interested in this story, I thought I would pass on
an article from the ARCH Disability Law Centre's latest news letter, which
came out today.  It's not quite as pithy as a news story, but it is pretty
informative, and I think most of you will be pleased by the outcome.

Marc

Eddy Morten v. Air Canada - Air Canada's Blanket Policy for Deaf-Blind
Passengers Discriminatory
By Laurie Letheren, Staff Lawyer

In its January 26 2009 decision, the Canadian Human Rights Tribunal [The
Tribunal] found that Air Canada's decision that Mr. Eddy Morten who is
deaf-blind was required to travel with an attendant and that he cover the
costs of having the attendant fly with him. The Tribunal found that this
blanket decision did not allow for individual assessments of disabled
travelers and it had a discriminatory impact on Mr. Morten as a person with
a disability.

At the Tribunal hearing Mr. Morten described many examples of how he travels
independently around the city where he lives.  He is accompanied by his
guide dog when he travels.  He spoke of the methods that he uses to
communicate when travelling. For quick communication such as asking for
directions, Mr. Morten will ask a person to spell the words in block letters
on his palm. He indicated that people have no trouble understanding very
quickly how to communicate with him.

Mr. Morten also explained that he travels with a backpack which has a large
button indicating that he is deaf-blind. He gave an example of travelling on
public transit.  If a transit employee approached him to ask if he needed
help, the transit employee would tap him on the shoulder and put Mr.
Morten's hand on a badge on the employee's shirt. By this he could identify
the person as a transit employee. He would let the person know that he is
not lost by writing O K on a hand.

If he takes a taxi, his guide dog accompanies him.  Mr. Morten writes out
the address where he wishes to go and the driver tells him the amount of the
fare by drawing the number on his palm.

When Mr. Morten made a reservation with Air Canada he indicated that he was
deaf-blind.  Once Air Canada had this information about Mr. Morten's
disability, the reservations attendant decided he needed an attendant to fly
with him and he would be required to pay the cost of the attendant. The Air
Canada Meda desk confirmed the reservation attendant's decision. The Meda
desk is part of Air Canada's reservations department. The practice that is
to be followed when a person making a reservation indicates that they are a
person with a disability who may require some accommodations while flying is
that the Meda desk is to receive information from the passenger and from his
or her medical provider relating to the accommodations they may need while
flying. The persons who work on the Meda desk are not medically trained. The
medical information is to be passed to Air Canada's Occupational Health
Services department who review the medical information and determine whether
the passenger can fly on Air Canada with or without conditions. The
Occupational Health Services is staffed by licensed physicians, occupational
health nurses and medical officer assistants.

The Occupational Health Services is to consider whether a person would be
self-reliant in air travel. This involves considerations of passenger's
ability to understand emergency announcements, the ability to make his or
her need for assistance known and the ability of the passenger to move from
his or her seat should that be necessary in an emergency.

An Air Canada witness stated that when determining whether a person with a
disability is self-reliant the tests applied are to determine whether an
individual would be able to act on emergency instructions. The Air Canada
witness said that if the individual was not able to see or hear the cabin
crew to receive information about safety procedures in an emergency
situation, that individual would be considered non self-reliant for airline
travel.

At the Tribunal, Air Canada agreed that the proper procedure was not
followed when Mr. Morten made his reservation. It was not for the
reservations department or the Meda desk to decide that Mr. Morten required
an attendant to fly on Air Canada. The appropriate procedure was to the
questionnaire used to determine fitness to fly sent to Mr. Morten and his
doctors and then reviewed by the Occupation Health Services department of
Air Canada.

Mr. Morten's physician was not asked to complete the fitness to fly form
until after Mr. Morten objected to the decision that he had to fly with an
attendant and the form was not received by Mr. Morten's doctor until a
couple of weeks before he was to travel. The completed form was not received
by the Occupation Health Services office before the date that Mr. Morten was
to fly.

The Tribunal concluded that the evidence is clear that Air Canada imposed on
Mr. Morten, as a condition of flying that was not imposed on other
passengers. Placing this condition of flying on Mr. Morten was directly
related to his disability and the Tribunal found that this condition imposed
by Air Canada was discriminatory. Requiring Mr. Morten to fly with an
attendant affected his freedom to travel and increased his cost of
travelling.

Once the Tribunal found that the requirement to fly with an attendant
discriminated against Mr. Morten they had to consider whether the
discrimination could be justified.

In deciding whether Air Canada was justified in imposing the attendant
requirement the Tribunal had to consider if the purpose of this restriction
was rationally connected flying; whether the requirement was adopted in the
good faith belief that it was necessary for passenger safety and whether
allowing Mr. Morten to travel alone would have imposed undue hardship on Air
Canada, considering health, safety and cost.

Air Canada acknowledges that an individual assessment of each passenger's
needs is not impossible especially since individual assessment is the
procedure that Air Canada's medical staff uses to determine fitness to fly.

The Tribunal concluded that Air Canada could not justify the discriminatory
policy that had been applied when Mr. Morten made his reservation. Air
Canada had not taken any steps to assess Mr. Morten's individual needs and
capabilities and because of this failure it could not justify the
discrimination.  The Tribunal stated "Decisions not to accommodate the needs
of disabled persons must be founded on their actual capacities and the real
risks posed thereby, rather than on discriminatory assumptions based on
stereotypes of disability."

The Tribunal ordered:
Air Canada needs to work with the [Canadian Human Rights Commission] 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 comprised 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.

It is only after doing this that Air Canada can truly and fully redress the
discriminatory practice it visited upon Mr. Morten and prevent its
recurrence.

The Tribunal also made the following order to address the personal suffering
that Mr. Morten had experiences as a result of Air Canada's decision:

Given the impact that this discriminatory practice has had on Mr. Morten's
sense of accomplishment, his efforts to develop his independence over the
years and the effects on his physical well-being, we consider that an award
of $10,000 is an appropriate amount for pain and suffering.

The full decision of the Tribunal can be read at
http://www.canlii.org/en/ca/chrt/doc/2009/2009chrt3/2009chrt3.html