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20 July 2011
On June 16 2011 the Canadian Transportation Agency released another in a series of decisions which have considered how persons with allergies to nuts should be accommodated when travelling by air.(1) Although the agency's conclusions will eventually have an impact on all carriers operating in Canada, the decisions are strictly binding only on Air Canada, as they result from a complaint brought against that carrier.
The recent decision is primarily concerned with the distinction between meals and snacks which may contain trace amounts of peanuts (or nuts generally) as a result of accidental contamination by nut products and meals and snacks which contain nuts as visible or otherwise known components. However, to understand the significance of the decision, it is necessary to place it in a wider context.
The Canada Transportation Act gives the agency responsibility for eliminating, within the Canadian transportation network, undue obstacles to the mobility of persons with disabilities. The agency, with the support of the Supreme Court of Canada, has given a very broad definition of 'disability'. Some 10 years ago, the agency adopted the language and procedures of the World Health Organisation and its International Classification of Functioning and Disability. Any person with an "impairment" (itself very broadly defined) coupled with an "activity limitation" or a "participation restriction" will qualify as a person with a disability. Using this approach to disability, in 2002 the agency determined that some persons who have allergies may be disabled for the purposes of the act.
Having reached this conclusion, the agency has received and considered a number of complaints from individuals who allege allergies of different sorts. Among these are persons who claim to be allergic to nuts. As the agency determined that there was insufficient evidence of the possible impact of exposure to nuts on board an aircraft, it received the evidence of two medical doctors with appropriate expertise. The testimony of these expert witnesses included a description of the nature and severity of allergic reactions to nuts, as well as consideration of the likely forms of exposure. On the basis of this evidence, the agency found that the complainants were indeed persons with disabilities who encountered obstacles to their mobility in the transportation system.
This being the case, the agency was asked to define an appropriate accommodation for these allergy sufferers. A number of alternatives were put forward, including a complete ban on serving nuts or food containing nuts and the adoption of procedures which would require flight attendants to intervene by injecting epinephrine in some cases.
In the course of determining how broad a form of accommodation to require, the agency considered the air filtration systems in place in Air Canada's aircraft. In a decision released in January 2010 it concluded that "the risk of an allergic reaction due to the inhalation of peanut or nut particles on aircraft is significantly reduced on modern generation aircraft", and agreed that the risk of a serious allergic reaction from ingestion of air-borne nut protein is slight. This then turned attention to limiting the possibility of accidental ingestion of food containing nuts and made it unnecessary to consider further the most draconian measure of a complete ban. The agency also gave no further consideration to the controversial suggestion that flight attendants be required to administer epinephrine.
In the decision of January 2010 the agency announced that the appropriate accommodation would be the creation of a buffer zone. It directed Air Canada to state its position on two points: how much advance notice it would require to create a buffer zone and what would be the appropriate size of a zone.
In October 2010, after having received additional representations, the agency released a further decision to define the accommodation more specifically. It determined the following:
This was where things stood before the decision of June 16 2011. Air Canada was, with reason, concerned with the breadth of the order that it serve, in the buffer zone, only nut-free foods. It claimed that this order would cause it "undue hardship" (which is a key phrase for determining the scope of a duty to accommodate) as "there are currently no flight kitchens able to deliver" on a "nut-free" promise.
The agency went some distance to meet Air Canada's concerns. It recognised that it would be unreasonable to require Air Canada to guarantee that food served on board would be nut free. It received evidence of the way in which food is prepared in flight kitchens and accepted that the possibility of cross-contamination cannot be eliminated.
However, Air Canada also pointed out that it deals with more than 50 caterers, which in turn obtain their supplies from many sources. This makes it very difficult, if not impossible, to control the composition of meals served. Finally, it pointed out that the total exclusion of nut products would cause a problem for certain passengers who rely on nuts as a main source of protein. This applies in particular to passengers who prefer vegetarian and similar diets.
With respect to the last argument, the agency responded that its proposed order would not prevent the service of special meals containing nuts. Such meals could be served outside of the buffer zone.
With respect to the effective impossibility of controlling the composition of meals, the agency noted that Air Canada does inform its caterers of certain products which must not be used or added to food purchased by Air Canada. The existing list of prohibited items includes "any item containing Peanut". The agency concluded that Air Canada can issue appropriate instructions to its caterers to allow it to restrict service within the buffer zone to snacks and meals which "do not contain peanuts or nuts as visible or known components".
The result of the June 2011 ruling is that the October 2010 order is varied. Whereas the original version ordered Air Canada to refrain from serving any nut products in the buffer zone, the amended version is limited. Air Canada is ordered "to only serve within the buffer zone snacks and meals which do not contain peanuts or nuts as visible or known components, but which may contain traces of peanuts or nuts as a result of cross-contamination".
As noted previously, strictly speaking, this order binds only Air Canada. However, any carrier operating in Canada should recognise that if it is challenged on its nut service policy, a similar order is likely to be the result.
For further information on this topic please contact Gerard A Chouest or Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (email@example.com or firstname.lastname@example.org).
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Gerard A Chouest