August 06 2008
Disability discrimination legislation specifically applying to the air transport sector has been introduced in many countries. Canada’s legislation was recently tested and resulted in a landmark decision that requires certain Canadian air carriers to adopt a ‘one person, one fare’ policy for persons with a disability.
On May 5 2008 Canada’s Federal Court of Appeal dismissed the applications for leave to appeal taken from a decision of the Canadian Transportation Agency(1) ordering Air Canada and its affiliates Air Canada Jazz and WestJet (the Canadian carriers) to adopt a ‘one person, one fare’ policy. The decision being appealed was issued on January 10 2008 by the Canadian Transportation Agency and ordered the Canadian carriers to adopt a ‘one person, one fare’ policy for persons with disabilities. The airlines were given one year within which to implement the policy. Essentially, the agency ruled that the Canadian carriers must offer a single fare to:
The case began with complaints made to the Canadian Transportation Agency by two individuals who, as a result of disabilities, required attendants for air travel. Joanne Neubauer of Victoria, British Columbia suffered from severe rheumatoid arthritis. Eric Norman of Gander, Newfoundland had a rare disease resulting in paraplegia. The applicants complained that the Canadian carriers’ fare policies, which call for charges on a per-seat basis, meant that they had to pay twice to travel by air and that this constituted an undue obstacle to the mobility of persons with a disability. (Mr Norman died of cancer before the proceeding was concluded and the complaint was continued by his estate.) The Council of Canadians with Disabilities, representing persons with disabilities across Canada, joined in the complaint.
A third complainant was granted intervener status after the Federal Court of Appeal determined that a person who is obese may be disabled for purposes of air travel if unable to fit in an airline seat.(2) Linda McKay-Panos represented the perspective of those who, by reason of their obesity, require accommodation in air travel, including the possibility of the use of two seats.
The outcome followed a protracted hearing process that involved extensive written pleadings, expert reports, evidence taken over the course of weeks at two hearings before the Canadian Transportation Agency and, ultimately, applications for leave to appeal to Canada’s Federal Court of Appeal.
The Canadian carriers have until August 2008 to seek leave to appeal to the Supreme Court of Canada in respect of this momentous decision.
The Canadian Transportation Agency decision means that the air carriers may not charge a fare for additional seats provided to persons with disabilities who:
The agency’s decision makes clear that it does not apply to:
Eligibility for the policy must be assessed by the air carriers on a case-by-case basis.
The ‘one person, one fare’ policy applies to persons on flights within Canada and does not apply to the domestic segment of transborder and international trips or foreign airlines operating flights into or from Canada.
Equal access to transportation services for persons with disabilities - regardless of the nature of the disability - is a longstanding principle in Canada. The Canadian Transportation Agency’s legislative mandate under the Canada Transportation Act includes accessible transportation provisions which empower the agency to eliminate undue obstacles to the mobility of persons with disabilities within the federal transportation network.
In an earlier decision involving rail transport the Supreme Court of Canada ruled that the accessible transportation provisions of the act are in essence human rights legislation. The Supreme Court articulated that the principles of the Canadian Human Rights Act must be applied by the Canadian Transportation Agency when identifying undue obstacles to the mobility of persons with disabilities. The principle of reasonable accommodation must guide the agency in identifying remedies to undue obstacles.(3)
The Canadian Transportation Agency decision was also guided by the Supreme Court ruling that:
Applying these principles, the Canadian Transportation Agency found that the Canadian carriers’ policy of charging additional fares for seating required by persons with disabilities to travel on domestic flights constituted an undue obstacle. The agency also found that the Canadian carriers had failed to demonstrate that the cost (in terms of related economic and financial implications) and operational constraints that they would face in implementing a ‘one person, one fare’ policy would constitute undue hardship.
Has the Canadian Transportation Agency struck the right balance in weighing the interests of persons with disabilities and their right to be accommodated with the interest of the Canadian air carrier industry and the public at large? As populations age and statistics show a rise in obesity rates in the general population, these factors suggest that the ruling is troublesome for air carriers. In particular, the attendant administrative costs of establishing a screening mechanism that treats passengers fairly is of concern. Will the ruling motivate air carriers to implement a fare structure for passengers that is premised on the weight of the passenger (rather than charging on a per-seat basis)? At a time when the price of fuel has skyrocketed, resulting in the imposition of fuel surcharges, new charges for checking a second bag and other passenger charges, the agency’s order to implement a ‘one passenger, one fare’ policy is controversial. It is questionable whether the Canadian Transportation Agency has struck the right balance.
For further information on this topic please contact Catherine A Pawluch at Gowling Lafleur Henderson LLP by telephone (+1 416 862 7525) or by fax (+1 416 862 7661) or by email (email@example.com).
(1) Estate of Norman v Air Canada, Jazz Air LP (January 10 2008), Canadian Transportation Agency Decision 6-AT-A-2008, online at www.cta-otc.gc.ca/rulings-decisions/decisions/2008/A/AT/6-AT-A-2008_e.html. Leave to appeal to Federal Court Appeal refused (08-A-11, May 5 2008).
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