IT’S NOT JUST PEANUTS ANYMORE:
CARRIER LIABILITY FOR
CONTAGEOUS DISEASES AND
ALLERGIC REACTIONS
8th Annual McGill Conference on International
Liability and Insurance
Louise-Hélène Sénécal,
Air Canada Legal Department
April 18, 2015
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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April 2015
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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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April 2015
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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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April 2015
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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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April 2015
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ALLERGY TO PEANUTS (CONT’D)
Canadian Transportation Agency
Determined 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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April 2015
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ALLERGY TO PEANUTS ( CONT’D)
Canadian Transportation Agency
BUFFER ZONE
In 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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April 2015
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ALLERGY TO CATS
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April 2015
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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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April 2015
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ALLERGY TO DOGS
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April 2015
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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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April 2015
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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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April 2015
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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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April 2015
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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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April 2015
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