Mar 4, 2015

The mainstream media is abuzz with the Supreme Court of Canada’s decision, released last week, denying leave to appeal to Air Canada, Jazz Air LP v Canada (Canadian Transportation Agency), 2008 FCA 168 [Air Canada]. At issue in Air Canada was a policy decision of the Canadian Transport Agency (“Agency”), No. 6-AT-A-2008, commonly referred to as the the “One-Person-One-Fare Policy.”

While the Supreme Court of Canada’s validation of the “One-Person-One-Fare Policy” has attracted considerable media attention, the coverage has been sorely lacking in nuance. Even those sympathetic to the policy have tended to oversimplify it as a handout to the obese. In reality, both the policy and the Agency’s finding in its support disclose a careful balancing of the interests of airline carriers on the one hand, and those of Canadians with disabilities, (including, but not limited to the obese) on the other.

The Decision

As summarized on the Agency’s website, the thrust of the decision was that Air Canada, Air Canada Jazz, and West Jet could no longer charge more than one fare to persons with disabilities who:

• are accompanied by an attendant for their personal care or safety in flight, as required by the carriers’ domestic tariffs; or
• require additional seating for themselves, including those determined to be functionally disabled by obesity.

The airlines, (as well as Gander International Airport, who is also implicated) have until January 10, 2009 to comply with the decision, which, according to the Agency will affect about 80 000 persons with disabilities.

In reaching its decision, the Agency determined that “the additional fares that are charged by Air Canada and WestJet in respect of certain persons with disabilities who require additional seating to accommodate their disabilities … represent an economic disadvantage which effectively limits travel opportunities in respect of employment, education, leisure, medical care and emergencies available to persons who require additional seating to travel by air.”

Section 172(1) of the Canada Transportation Act, SC 1996, c 10, [CTA] vests the Agency with the authority to concern itself with the existence of “an undue obstacle to the mobility of persons with disabilities.” In determining the appropriate evidentiary burden for establishing an “undue obstacle,” the Agency endorsed a “Charter values” approach, positing that s. 172(1) should be interpreted in a manner broadly analogous to s. 15(1) of the Charter. The Agency accordingly looked to the “undue obstacle” set out in British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3, which placed the burden on the respondent to establish on a balance of probabilities that the discrimination in question:

• is rationally connected to a legitimate objective;
• was adopted by the respondent with an honest and good faith belief that it was necessary to the fulfilment of that legitimate objective; and
• is reasonably necessary for the accomplishment of its objective, such that it is impossible for the respondent to accommodate the applicant without imposing undue hardship on the respondent.

Requiring airlines to accommodate persons with disabilities by providing them with an extra seat, was found not to constitute an undue hardship. Drawing on the Supreme Court of Canada decision in Council of Canadians with Disabilities v VIA Rail Canada Inc, [2007] 1 SCR 650, citing British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), [1999] 3 SCR 868, the court noted that while the costs associated with the elimination of barriers to access were legitimate considerations, tribunals needed to be cautious of “putting too low a value on accommodating the disabled.” In the Agency’s view, (based largely on the evidence submitted by the Applicant), the total cost of implementing the proposed policy was likely to translate into an increase of roughly 77 cents for Air Canada flights, and 44 cents for West Jet flights.

In view of the fact that the evidence before it was subject to interpretation, the Agency left open a window for reversing its decision. “Section 32 of the CTA” it explained, “provides the Agency with the power to review a decision when there is sufficient justification to do so.” “Such a change in circumstances could arise” the agency explained, “if the parties’ experience with implementing and administering the policy required by the Decision is significantly different from the evidence and its interpretation which formed the basis of this Decision.”

It remains to be seen whether, and to what extent, the airlines will comply with the decision, or whether they will attempt to seek recourse under s. 32 of the Act. Whatever the case, the Supreme Court of Canada show of deference to the decision of the Canadian Transport Agency appears to be most reasonable.

Gabor Lukacs commented
The link/decision number in the article is incorrect. The decision in Air Canada, Jazz Air LP v Canada (Canadian Transportation Agency), 2008 FCA 168 was an interlocutory one with respect to exclude the CTA's materials from the file. It was not a decision on the merits.