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

[Rania]

wonderful.
----- Original Message ----- 
From: <mworkman at ualberta.ca>
To: "National Association of Blind Students mailing list" 
<nabs-l at nfbnet.org>
Sent: Tuesday, June 09, 2009 2:28 PM
Subject: [nabs-l] More on Eddy Morten and Air Canada


> 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
>
>
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