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

clinton waterbury clinton.waterbury at gmail.com
Wed Jun 10 21:23:10 UTC 2009

Wow...  This is something that untill fixed, will make me not want to  
fly air canada.  This is a travisty.
On Jun 9, 2009, at 12:28 PM, mworkman at ualberta.ca wrote:

> 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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