Morten v. Air Canada

Morten v. Air Canada
Collection
Canadian Human Rights Tribunal
Date
2009-01-26
Neutral citation
2009 CHRT 3
File number(s)
T1207/1907
Decision-maker(s)
Craig, Wallace G.; Findlay, Kerry-Lynne; Sinclair, Grant, Q.C.
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
EDDY MORTEN
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
AIR CANADA
Respondent
DECISION
2009 CHRT 03 2009/01/26
PANEL: J. Grant Sinclair Kerry-Lynne D. Findlay, Q.C. Wallace Gilby Craig
I. INTRODUCTION
II. DECISION
III. PART ONE - DISCRIMINATORY PRACTICE
A. Mr. Morten's Medical Diagnosis
B. Mr. Morten's Independent Lifestyle
C. Mr. Morten and Air Canada's Requirement to Fly with an Attendant
D. Prima Facie Case 10
E. Has Air Canada Shown a Bona Fide Justification - s. 15(1)(g) of the CHRA?
F. Has Air Canada Established that Accommodation of Mr. Morten's Needs Would be Undue Hardship?
IV. PART TWO - REMEDY
A. The Positions of the Parties
B. Mr. Morten's Air Travel Experience
(i) Emergency Procedures
(ii) The X Emergency Sign
(iii) Reference to Dryden Crash Inquiry
C. Anthony Broderick
D. Craig Langston
E. The Air Canada Tariff
F. The ACpedia
G. Should Air Canada be Ordered to Permit Mr. Morten to Fly Unaccompanied on Air Canada?
H. What Order should issue against Air Canada?
V. THE ORDER
A. Hurt Feelings - Pain and Suffering
I. INTRODUCTION [1] Eddie Morten is the complainant in this case. He is in his mid-forties and very fit. Mr. Morten is profoundly deaf and blind in his left eye. He has very limited vision in his right eye.
[2] In August 2004, he booked a flight on Air Canada through his travel agent, to fly from Vancouver on September 29 to San Francisco return. His travel agent told the Air Canada reservations agent that Mr. Morten was deaf/blind and that he wanted to travel unaccompanied. Air Canada told his travel agent that he could not travel alone and would need an attendant to travel with him.
[3] Mr. Morten filed a complaint with the Canadian Human Rights Commission on September 19, 2005, alleging that Air Canada has discriminated against him because of his disability. He claims that by requiring that he travel with an attendant, Air Canada has singled him out and treated him adversely because of his disability. In this respect, he alleges that Air Canada has contravened s. 5 of the Canadian Human Rights Act (CHRA).
[4] Earlier in February 2005, Mr. Morten had filed a complaint with the Canadian Transport Agency (CTA) that Air Canada's requirement that he travel with an attendant was an undue obstacle to his mobility (s. 172, Canada Transportation Act).
[5] The CTA decided that it was not an undue obstacle and dismissed his complaint. Sometime after this, Air Canada later filed a motion with the Tribunal on August 7, 2007, asking that the Tribunal permanently stay the hearing of Mr. Morten's human rights complaint on the basis that the CTA decision was res judicata. The Tribunal dismissed the motion.
II. DECISION [6] We have concluded that Mr. Morten has established a prima facie case of discrimination against Air Canada. Air Canada has not met its obligation under s. 15(1)(g) of the CHRA to accommodate him to the point of undue hardship. Mr. Morten's complaint is substantiated.
[7] This decision has two parts, Part One - Discriminatory Practice and Part Two - Remedy.
III. PART ONE - DISCRIMINATORY PRACTICE A. Mr. Morten's Medical Diagnosis [8] Two medical experts, Dr. Arthur Pratt and Dr. Jon Waisberg, both specialists in ophthalmology, testified as to Mr. Morten's condition. They both agree that Mr. Morten has what is known medically as Ushers Syndrome.
[9] Dr. Arthur Pratt is Mr. Morten's treating ophthalmologist. He first consulted with Mr. Morten in May 2003 and last saw him in January 2008. He noted that people with Ushers Syndrome very often have retinitis pigmentosa, which is the case with Mr. Morten. Retinitis pigmentosa is a progressive, untreatable deterioration in the retina of the eye and it affects visual acuity. It is an inherited condition that generally manifests in adolescence and progresses to total blindness over a period of decades.
[10] Dr. Pratt's assessment of Mr. Morten is that he is completely blind in his left eye, i.e., has no light perception. In his right eye, he has some but severely limited central vision. His visual field is significantly constricted and he has no dark adaptation.
[11] Dark adaptation is the ability to adapt from a bright light environment to a dark environment. Initially it is difficult to see but very quickly, vision will return in that darkened environment. Those with Usher's Syndrome can not make that adaptation.
[12] Dr. Pratt noted that Mr. Morten also has nystagmus. Nystagmus is an ophthalmic condition where the patient develops involuntary oscillatory movement of one or both eyes, with the inability to fix on a specific object. It can happen at various frequencies and amplitudes. The result is that it further compromises visual acuity because the object is constantly moving. It can also affect balance and coordination.
[13] Persons who suffer from nystagmus often have increased amplitude of oscillation in stressful situations. In a normal or a non-stressful situation, often times patients can adapt by finding a specific head posture where the nystagmus can be significantly reduced.
[14] Dr. Waisberg did not do a clinical examination of Mr. Morten, but reviewed his medical records obtained from Dr. Pratt. His review of Mr. Morten's recent medical records indicates that he has advanced retinitis pigmentosa and nystagmus. His visual acuity at the present time is in the range of about 20/700 and his visual field of peripheral vision is severely restricted, probably in the range of 10 to 15 degrees.
[15] In comparison, the standard for legally blind is where the best eye has a visual acuity of 20/200 and the visual field is at least 20 degrees. These measurements compare the vision of the tested person to the standard of normal vision. This standard of 20/200 means the tested person can see at 20 feet what a normal visioned person can see at 200 feet.
[16] Dr. Waisberg summarized Mr. Morten's condition as:
loss of vision and vision field in his left eye; limited vision in right eye; markedly restricted visual field in right eye; Nystagmus which further compromises visual acuity in his right eye.
B. Mr. Morten's Independent Lifestyle [17] Mr. Morten's vision began to worsen when he was approaching his teen-age years. His first experience of flying was at age 13 when he travelled from his home in British Columbia to attend the Ross McDonald School for the Blind in Brantford, Ontario. He attended this school from age 13 to 20 when he returned home.
[18] While at this school, he was very active athletically as a member of the track and field and wrestling teams, often competing with other area high schools.
[19] When he returned home, he attended community college and travelled back and forth independently from his home to the college. He continued to be involved in wrestling and also later moved on to judo. He trained with the wrestling and judo teams at the University of British Columbia and Simon Fraser University.
[20] From 1987 to 1995, he worked full-time in Vancouver. He would travel from his home in Burnaby on the sky train. And he would also travel to his judo training sessions by bus and sky train.
[21] Mr. Morten said that he has always had some vision in his right eye but, around the age of 32, he noticed that he was having more difficulty seeing and reading.
[22] He decided to learn Braille, which he did. He also applied for and was approved for a guide dog by Canine of Canada, an organization that trains guide dogs. He now has a guide dog, Harmony, who accompanies him when he travels independently outside his home.
[23] Mr. Morten travels from his home to various destinations in the Vancouver area accompanied by Harmony. He says that when he is using cross walks or the traffic lights to cross the street, if the sun is in front and there is a glare on the traffic lights, he is not able to see them. What he does is watch the flow of traffic and waits until the traffic stops. He checks both sides, makes sure it is clear, and with Harmony he walks across the street. He says that he can see the shape of the buildings.
[24] In terms of his family, Mr. Morten has two sons, aged eight and eleven. They are both hearing. He has taught them American sign language (ASL) so that he can communicate with them.
[25] Mr. Morten said that he has responsibility for his sons and is engaged in a full parenting role with them. He does not depend on his sons for anything. Like any other parent, he takes them to various activities such as bowling, mini golf and swimming.
[26] Mr. Morten uses a computer with two different programs, one that converts text to Braille. The other program is called Zoom Text, which amplifies the text. It is like a large print screen.
[27] He uses the arrow keys on the computer to navigate around the screen and is able to read the text with the larger font sizes. But because he wants to retain his vision, he converts most things to Braille if it is a longer document. If it is a short document, then he uses Zoom Text.
[28] Mr. Morten spoke of other methods that he uses to communicate when travelling outside his home. For quick communication when necessary, Mr. Morten would demonstrate to the person that he would like them to spell the words in block letters on his palm as if they were writing them. They seem to understand very quickly how to communicate with him.
[29] Mr. Morten travels with his backpack which has a large button indicating that he is deaf/blind. For example, if he is travelling on the sky train and is about to get off the train, a security officer may approach him thinking that he is not sure where he is. He said that they would tap him on the shoulder and put his hand on their shoulder badge. By this he could identify them as a security officer, and know that they work for sky train. He would let them know that he is not lost by writing O K on their hand.
[30] Another example of Mr. Morten's moving about independently is the procedures he has developed to travel by taxi. He communicates with the taxi company using the TTY system whereby he types the message to a hearing operator who relays this to the taxi company and then back to him.
[31] When he phones the taxi company, he explains that he is deaf/blind and he has a guide dog, so that the driver will know. He prepares a card on which he has written his destination address. He shows this to the taxi driver.
[32] When he arrives at his destination, Mr. Morten asks the driver to write the amount of the fare on his palm. He then pays the taxi driver that amount.
C. Mr. Morten and Air Canada's Requirement to Fly with an Attendant [33] The events leading to Air Canada's decision that Mr. Morten could only fly with an attendant are recorded in his Passenger Name Record (PNR). The PNR records all the relevant information relating to a person's travel itinerary which is created when a reservation is made to travel on Air Canada.
[34] Mr. Morten's travel agent made his reservation on August 12, 2004. On August 17, 2004, his travel agent advised the reservation agent that he was deaf/blind and wanted to travel alone. His PNR records that the reservation agent advised that he could not travel alone. He would need an attendant and Air Canada could offer a discounted fare.
[35] The PNR records that the decision to deny Mr. Morten the ability to travel without an attendant was made by the reservation agent together with the Air Canada Meda desk who verified and confirmed the decision.
[36] The Meda desk is part of Air Canada's reservations department. They receive information from the passenger and from his/her medical provider relating to their special needs/disability as it may affect their ability to fly.
[37] The persons who work on the Meda desk are not medically trained. It is Air Canada's Occupational Health Services department (OHS) who reviews the medical information and determines whether the passenger can fly on Air Canada with or without conditions. The OHS is staffed by licensed physicians, occupational health nurses and medical officer assistants.
[38] Dr. Edward Bekeris is the Acting Senior Director of Occupational Health Services and Chief Medical Officer at Air Canada. He described the procedure used by the OHS in determining the fitness to fly of a person with a disability.
[39] The primary source of medical information is the Fitness for Air Travel (FFT) form which the Meda desk sends to the passenger's attending physician. The FFT form asks for information about the general health of the passenger, diagnosis, prognosis for the trip, any medical information that is relevant to the environment of air travel. If the information initially provided is not sufficient for this purpose, this process may involve the back and forth exchange of information with the passenger's medical advisor and the OHS.
[40] The possible outcomes of an assessment once all the information has been gathered are three: suitable for travel, unsuitable for air travel or suitable to travel but with conditions such as an attendant. It may happen that the assessment of fitness by Air Canada's OHS differs from that of the personal physician. If so, OHS attempts to reconcile any difference. If it's still not possible to resolve the difference, then the decision regarding suitability, non-suitability or suitability with conditions, is made by OHS.
[41] Dr. Bekeris said that OHS, in determining fitness for travel applies the criterion of self-reliance as it relates to travel by air. This involves considerations of cognitive functioning, communication and mobility.
[42] What is required for mobility to support a finding of self-reliance is whether an individual would be able to act on emergency instructions if there were a requirement for an emergency evacuation or sudden, rapid decompression of the aircraft cabin.
[43] The conditions that would give rise to concerns about mobility would be any impairment that precludes an individual from ambulating/walking. These may be chronic neurological problems or acute injuries that affect ambulation.
[44] If the result of an assessment was that the passenger was not self-reliant with respect to mobility, the likely outcome would be at least a condition of travel that the individual travel with an attendant.
[45] In a situation where the person is an elderly and ambulatory but only with a walker, they would be considered self-reliant. If there was an emergency evacuation, Dr. Bekeris said the possibilities would be to either present that individual with their walker or their mobility aid, or in the alternative, assist them with standing and walking. It would all depend if there was opportunity to do that. They may ask an able-bodied passenger to assist such a person at the time of evacuation.
[46] Or, Dr. Bekeris said, such a person conceivably could ambulate without assistance by supporting themselves with adjacent things such as seats, as an example.
[47] The other aspect of self-reliance and non self-reliance is cognitive including communication. The test of self-reliance that he applies is the ability of an individual to be able to receive and understand safety information in an emergency evacuation or a sudden or rapid cabin depressurization.
[48] Dr. Bekeris said they would be considered non self-reliant if they lacked one of those two abilities, either to receive or to assimilate/understand safety instructions. If on assessment, the individual was not able to make visual or auditory contact with the cabin crew sufficient to allow the communication of safety briefings in an emergency situation, that an individual would be considered non self-reliant for airline travel.
[49] Mr. Morten's PNR shows that on August 19, 2004, the Meda desk advised Mr. Morten's travel agent that Air Canada's policy requiring an attendant in his case is set out in Air Canada's CIC 57/8 - Meda Desk - Impaired - Vision - Hearing. CIC 57/8 is part of the reservation system and is used as a reference tool by the reservation agents.
[50] CIC 57/8 deals with two types of passengers, those who are hearing impaired and those with vision impairments. They are considered to be self-reliant. CIC 57/8 does not deal with safety issues. There are no criteria in this document for deciding when a deaf/blind person requires an attendant.
[51] Air Canada agrees that the proper procedure was not followed in Mr. Morten's case. 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 that the reservation should have been referred to the Meda desk, an FFT to be sent and when completed, sent to the OHS for assessment.
[52] Mr. Morten's PNR records that on September 10, 2004, a friend called the Meda desk and provided contact information for Mr. Morten's family doctor, Dr. Marvin Lemke.
[53] OHS faxed a FFT form to Dr. Lemke on September 14, 2004. He completed the FFT on September 16 but did not fax it back to Air Canada until September 29, 2004.
[54] In the completed FFT, Dr. Lemke indicated that Mr. Morten is fully independent - uses communication assist devices and a seeing-eye dog. He also indicated that Mr. Morten has Usher's syndrome - deaf/mute and reduced vision since birth.
[55] Dr. Bekeris did not receive Dr. Lemke's completed FFT. But, he said, in this case he would have asked for more information from Dr. Lemke to assess Mr. Morten's functioning in air travel.
D. Prima Facie Case [56] Has Mr. Morten made out a prima facie case of discrimination under s. 5 of the CHRA? The answer is yes and Air Canada concedes this.
[57] The evidence is clear that Air Canada imposed on Mr. Morten, as a condition of providing service, the requirement that he travel with an attendant. This requirement was not imposed on other passengers able-bodied or otherwise disabled. Its imposition was directly related to Mr. Morten's disability. It was adverse in that it affected his freedom to travel and increased his cost of travelling.
E. Has Air Canada Shown a Bona Fide Justification - s. 15(1)(g) of the CHRA? [58] To determine whether the prima facie discriminatory practice (adverse differentiation) has a bona fide justification, it is necessary to identify the standard that Air Canada applied to Mr. Morten when he sought to travel with Air Canada which has been found to be prima facie discriminatory.
[59] It is clear that the standard applied was a deaf/blind person can not fly on Air Canada without an attendant. Mr. Morten's PNR shows an entry indicating Air Canada policy is that we will not allow him to travel alone...
[60] What now must be determined for the purposes of s. 15(1)(g) is:
Whether the purpose or goal for which the standard was adopted is rationally connected to the function being performed - carriage by air; Whether the standard was adopted in the good faith belief that it was necessary for the fulfillment of the purpose or goal - passenger safety. (see B.C. Superintendent of Motor Vehicle v. B.C. (Council of Human Rights) [1999] 3 S.C.R. 868 at paras. 20, 25-26 (Grismer); B.C. (Public Service Employee Relations Commission v. B.C. Government & Services Employee Union [1999] 3 S.C.R. 3 at para. 54 (Meiorin). Clearly the answer to these two questions is yes.
F. Has Air Canada Established that Accommodation of Mr. Morten's Needs Would be Undue Hardship? [61] Section 15(2) of the CHRA further stipulates that for the discriminatory practice to be a bona fide justification, Air Canada must establish that the accommodation of Mr. Morten's request to travel alone would have imposed undue hardship on Air Canada, considering health, safety and cost.
[62] To establish this, Air Canada has the burden of demonstrating that its standard incorporates every possible accommodation to the point of undue hardship. The standard imposed on Mr. Morten, a blanket requirement that deaf/blind must fly with an attendant, creates the arbitrary category of deaf/blind without allowing for the possibility of differing degrees of visual and auditory impairment.
[63] This standard does not require individual assessment. On its own evidence, Air Canada acknowledges that individual assessment, which was not permitted by the standard applied to Mr. Morten and not offered to him, is not impossible. On the contrary, according to Dr. Bekeris, individual assessment in cases of a disability is the procedure that Air Canada's medical staff uses to determine fitness to fly.
[64] The evidence does make it clear that the standard imposed on Mr. Morten when he bought his ticket and the absence of any individualized assessment at that time, does not represent every possible accommodation available to Air Canada short of undue hardship.
[65] Therefore, Air Canada's prima facie discriminatory differentiation under s. 5 of the CHRA can not be considered to have a bona fide justification. Because the prima facie case has not been satisfactorily answered, Mr. Morten's complaint is substantiated.
IV. PART TWO - REMEDY A. The Positions of the Parties [66] Under s. 53(2)(a) of the CHRT, where the Tribunal finds that the complaint has been substantiated, it can order that the respondent cease the discriminatory practice and take measures in consultation with the Commission to redress the practice or to prevent the same from happening in the future.
[67] The Commission seeks an order that Air Canada cease applying its present policy that requires a deaf/bind person to travel with an attendant and allow Mr. Morten to travel on Air Canada without an attendant.
[68] The Commission also asks for a monetary award for hurt feelings and special compensation for Mr. Morten and that designated employees of Air Canada receive sensitivity training.
[69] Mr. Morten asks that he be allowed to travel independently with Air Canada and that he receive compensation for hurt feelings as a result of the discriminatory practice. He also requests that the Air Canada staff be trained on how to communicate with deaf/blind people.
[70] Air Canada's position is that it has redressed the practice which will prevent its reoccurrence. It has developed a new attendant travel policy which provides for a self-reliance standard. Under this process, OHS is mandated to do individualized assessments in cooperation with the passenger's doctor.
[71] Air Canada also takes the position that, unfortunately, Mr. Morten still could not fly without an attendant as he would not pass even the new standard of self-reliance. Air Canada bases this conclusion on the evidence of Dr. Pratt and Dr. Waisberg relating to Mr. Morton's impaired vision and deafness.
[72] If the Tribunal does not accept this argument, Air Canada says that in formulating a remedy, the Tribunal should order monetary compensation only. This proposition is based on recent Supreme Court jurisprudence which Air Canada argues confers primary jurisdiction on the CTA to adjudicate on human rights questions that arise in the transportation by air of persons with disabilities. (Council of Canadians with Disabilities v. Via Rail Canada Inc. [2007] 1 S.C.R. 650, 2007 S.C.C. 15)
[73] For this proposition, Air Canada also argues that the Canada Transportation Act and the Aeronautics Act together constitute an integrated legislative regime regulating air carriers. It is the CTA that is assigned the responsibility to administer this legislation including any human rights remedy. Thus the Tribunal should defer to the CTA and decline to exercise its jurisdiction to grant any remedy other than a monetary remedy.
B. Mr. Morten's Air Travel Experience [74] Mr. Morten has travelled by air internationally a number of times between 1980 and 2006 for both athletic and family reasons. He travelled to Amsterdam in 1980 where he participated in a wrestling competition and 5000 meter race. In 1987, he went to Paris for the European Open Blind Judo Championship. In 1990, he again travelled to Amsterdam for a judo competition. In 1991, he flew alone to Milan to visit relatives. He travelled to Rome in 1993 with his parents to visit family. And in 2002, he went to Rome with his judo team.
[75] In June 2004, Mr. Morten flew from Vancouver to San Francisco on Air Canada return. And on June 16, 2006, he flew from Vancouver to Baltimore return on Alaskan Airlines.
[76] In addition, he has prepared a set of index cards on various subjects. The cards are printed in English on one side and Braille on the other side. For example, one of his index cards reads I am deaf/blind, to talk to me, please write on my palm in large block letters. Another card says can I have a coffee please etc. He uses the index cards to communicate with the flight attendants during the flight. He has laminated the cards for frequent use and first used them when he flew to San Francisco in June 2004.
[77] When he boards the plane, he counts the number of rows to his seat so that he knows where he is seated. The flight attendant gives him the safety briefing card in Braille which sets out the type of aircraft, the emergency procedures and the location of the exits.
[78] Once seated, Mr. Morten will write a note for the flight attendant asking how many rows are in the plane and where the emergency exits are. They can respond by writing the answers on his hand or by tracking i.e., leading him by the hand to the exits.
[79] Mr. Morten says that he is familiar with the pre-take-off safety instructions such as seats upright, luggage stowed securely in the overhead compartments, requirement for oxygen masks, etc.
[80] He says that he is very sensitive to movement of the plane; he knows when they are ready to take off. At take-off, he can feel the ascent of the airplane, when the plane is circling and where the plane is in the air by the popping in his ears.
(i) Emergency Procedures [81] Mr. Morten said that from age 13 and later when he could see, he watched the flight attendants go through all of the procedures, the explanations about the decompression masks, about how to put on the life jackets and inflate them when necessary. He also became familiar with the emergency procedures on the safety cards, the emergency exits, and as he flew more, he became more knowledgeable.
[82] He said that he knows how to use the emergency chutes if they are deployed. If there were to be any problem in flight, such as turbulence, he would feel it and he would notice that the people around him were tensing or becoming nervous.
[83] He said that he can see the oxygen mask fall in front of him. In case of an emergency, he knows how to adopt the bracing position. He knows when to put the decompression mask on and when to activate it. He knows how to use the life vest if necessary.
(ii) The X Emergency Sign [84] Mr. Morten believes that many flight attendants know the emergency sign that you give to a deaf/blind person. You draw an X on the shoulder or the back which means that there is an emergency situation. This means that you are to exit immediately. If someone drew an X on his back, he would be guided by that person to get out or he would follow the crowd. Mr. Morten said that he would smell any things that are connected with fire or heat. In the event of an emergency, he would be able to see the person next to him.
(iii) Reference to Dryden Crash Inquiry [85] Mr. Morten was referred to an extract from the 1992 Report of the Commission of Inquiry into the Air Ontario crash at Dryden, Ontario. This report described the conditions in the aircraft cabin after the crash. The aircraft had broken into three parts, and there was cabin baggage strewn in the aisles, snow, mud and parts of trees had entered the cabin covering some of the passengers. Dark smoke permeated the cabin shortly after the crash, causing difficulty with visibility for the passengers in the central and forward areas of the cabin.
[86] A large number of seats had failed at their floor attachment points. These seats, along with their occupants, were strewn about, adding to the confusion. The accumulation of bodies, seats and debris was primarily concentrated in the left front side of the fuselage. In the centre section, there was an accumulation of debris varying in depth from two to three feet that in some cases totally covered the passengers and immobilized them.
[87] Portions of the overhead racks had also failed during the last stages of the impact sequence, spilling their contents onto passengers and into the aisle. These broken sections of overhead racks, some already in flames and dripping molten burning plastic, fell on a number of survivors.
[88] The interior lighting system was off, and the aircraft's emergency strip lighting, either malfunctioned or because of the debris was not visible. Passengers' evidence revealed that the only guidance for survivors to exit the aircraft was the daylight entering the cabin through the windows and various openings.
[89] Mr. Morten's view was that you can never predict what's going to happen. But he does not believe that deaf/blind passengers are in more jeopardy in airline crashes such as the Dryden accident. An able-bodied person or a blind/deaf or any other person with a disability would be at the same risk.
[90] In a situation where there is heavy smoke or fire, he is no more at risk than an able-bodied person who would not be able to see or hear. In fact, he may be able to cope better because that is his every day life experience.
[91] Mr. Morten did agree that given the obstructions in the aisle, his ability to avoid obstructions may not be as good as that of a sighted person. But this environment would be foreign to them and they wouldn't know how to navigate safely. He, on the other hand, believes that he would be able to manage because he has done it his entire life.
[92] Mr. Morten said that no one can predict how they would react in such a situation. Each occurrence would be different and everybody would have to manage the situation as it arises.
[93] If he had an attendant with him, they could be injured or panic and would be of no use to him trying to exit the aircraft. He could not imagine that having an attendant is the one thing that would save him. He suggested that, as a deaf/blind person, he should be assessed so that he could demonstrate whether he is capable of exiting the aircraft effectively in an emergency evacuation.
[94] Mr. Morten agreed that in these circumstances (Dryden accident), there would be little opportunity to communicate. People would be panicking and are thinking of safety first. Everybody's priority would be to evacuate immediately. Everybody's going to be looking for a way out.
[95] Mr. Morten agreed that the various types of communication that he normally has on a flight, such as his communication devices and his index cards may not be useful in an emergency evacuation.
[96] He also agreed that the survivability factors to successfully evacuate an aircraft after a crash would depend upon a number of things. First, it will depend upon being able to identify the possible points at which exit may be made. Then it will be necessary to assess the safety of these exits. And in assessing the safety of an exit point, there are many factors that will be relevant to that assessment such as, if there is a fire at that particular point. Is there dangerous debris outside of the aircraft? What is the distance between the exit point and the ground? Mr. Morten also agreed that his ability to identify and assess the possible exit points may require more time than a person with average eyesight.
[97] Sylvie Lepage was a flight attendant for Air Canada from 1973 to 1995. She then became the flight attendant manager and held that position until 2004. She has been responsible for the development of policies and procedures relating to cabin safety.
[98] Ms. Lepage was asked to assume the following facts. A man in his forties, extremely fit, deaf and limited sight in one eye who will not be able to hear the emergency safety briefings or see with clarity the non-verbal briefing. But if you use your hands to trace an X on his back, he will know there is an emergency and must exit at once.
[99] Ms. Lepage's opinion was that it would not be possible to relay the necessary safety instructions for emergency landing.
[100] The types of messages that she needs to convey in an emergency situation include moving quickly to an exit, releasing their seat belts in a timely fashion, putting on the life vest, leaving their luggage behind, all of this in a very quick and timely fashion.
[101] Further, exits from an aircraft which are useable at one time may no longer be useable in an emergency evacuation. This may occur during an evacuation. The evacuation may start at a certain exit but there may be a need to redirect the passengers to another exit.
[102] Ms. Lepage said in these circumstances they use non-verbal communication and verbal commands to redirect traffic flow away from an exit, which has become unusable.
[103] When using non-verbal communications, they would make gestures with their hands, gestures, exit blocked, fire, go that way, and would demonstrate that by crossing her two arms in form of her chest.
[104] Another non-verbal gesture would be extending two arms perpendicular and pointing forward which means go that way or go that way or go to the other side or go, change your direction.
[105] Ms. Lepage agreed that an X is adequate non-verbal communication. But it would not be feasible for a flight attendant to go from her assigned position in an emergency and walk down the aisle to a passenger who is deaf and blind and trace that X on the passenger's shoulder.
[106] Ms. Lepage was asked whether in an emergency situation, a passenger next to a deaf/blind person could draw an X on his shoulder to communicate that there is an emergency, particularly if the person is able-bodied and briefed prior.
[107] Ms. Lepage's response was that time is very critical during an emergency evacuation. There is much more to the safety briefing that needs to be relayed than just an X.
[108] Ms. Lepage was asked when an attendant who is at their assigned station, how do they get a passenger who is experiencing behavioural inaction such as panic, fear, frozen, who perhaps is two rows, three rows away, to come to the exit.
[109] Ms. Lepage said it's difficult to answer that question. It depends on the environment, the conditions in the cabin. The flight attendants can not leave their station but could shout firmly, could ask another passenger to push. Do whatever is possible without jeopardizing or slowing down the evacuation.
[110] Ms. Lepage said she would never leave her assigned station. The procedures are developed to ensure maximum survival. So they will use whatever techniques necessary to successfully evacuate the plane, which would include asking other passengers to help if that's what it takes.
C. Anthony Broderick [111] Anthony Broderick is the former Associate Administrator for Regulations and Certification in the Federal Aviation Administration (FAA) of the U.S.A. As such, he was the senior aviation safety official in the United States government. He retired from the position in 1996.
[112] The FAA is the organization in the United States that is primarily responsible for the safety and certification of all airlines, airplanes, pilots and support staff and the operation and maintenance of the air traffic control system in the United States.
[113] Part of his official responsibilities involved reviewing aviation accidents including the conditions that were observed in the cabins of aircraft involved in accidents. He also studied the impact of those conditions on the ability of occupants to successfully evacuate an aircraft.
[114] During Mr. Broderick's tenure at the FAA, the FAA examined the question of whether persons with disabilities on commercial flights should be subject to any conditions by reason of safety related considerations.
[115] Mr. Broderick referred to a number of investigation reports involving the emergency evacuation of aircraft. These included the 1991 Dryden accident, the 1983 Cincinnati accident, the 1991 Los Angeles accident and the 2005 Air France accident in Toronto. These investigation reports described the state of the aircraft and conditions in the cabin after the emergency landing, how many passengers survived the crash, the presence of smoke or fire in the cabin and access to the exits.
[116] Mr. Broderick said that the accident investigators of these accidents were not able to identify the ability or the capabilities of the passengers who died as opposed to those who survived to evacuate the aircraft. He said that it was impossible to do so unless you can interview the families of victims and find out if they had any particular disability.
[117] These investigation reports demonstrated that speed in evacuating the aircraft is critical. Further, all accident conditions are different. They are unpredictable and unique. Precisely what conditions will exist during an emergency evacuation are unpredictable. Conditions may change rapidly and continuously throughout an evacuation.
[118] Mr. Broderick also referred to the 1992 study of the Transportation Safety Board of Canada, A Safety Study of Evacuations of Large Passenger-Carrying Aircraft. The objective of this Study was to examine the Canadian experience with respect to the evacuations of large passenger carrying aircraft and it reviewed 21 evacuations from 1978 to 1991.
[119] This Study reported that from 1978-1991, there were 21 evacuations which involved 2,305 passengers and 135 crew. There were 91 fatalities and 78 serious injuries of which 36 fatalities and eight serious injuries occurred during the evacuation process.
[120] The Study noted a number of factors that adversely affected a successful evacuation. These included:
the presence of fire, smoke or toxic fumes in the cabin which severely restricted or totally obscured visibility or reduced the number of available exits. passengers had difficulty releasing seat belts which impeded egress for passengers who were trapped inside the aircraft. debris in the cabin was also a significant obstruction to the evacuation process. As a result of debris, the escape path and access to exits were blocked, passenger movement was hindered and the evacuation process was prolonged. In some evacuations, some of the primary exit doors were completely blocked by debris. Overhead bins collapsed on top of people, injuring and trapping many of them. there were difficulties operating emergency exit doors in a number of evacuations. There were problems related to the slides, the two most common problems were the angle of the slides and deployment. in a number of the evacuations, the crew and/or passengers were unable to hear the initial evacuation command and subsequent directions. Public address systems were inaudible and inoperable during the evacuations. Communication difficulties between the flight and cabin crew also jeopardized the evacuation process. what is particularly notable from this Study is the inappropriate passenger behaviour. Faced with an unexpected life-threatening situation, passengers typically reacted in one of two ways: panic (screaming, crying, hysteria, aggressiveness) or negative panic (inaction and freezing). Passengers often insisted on exiting the aircraft by the same door they entered. There were also several occasions when passengers seem to be fixated on a particular exit and made no attempt to look for an alternative escape route. as the chance for survival decreases, passenger motivation for survival increases,