Case Name:
McKay-Panos v. Air Canada

Between
Linda McKay-Panos, appellant, and
Air Canada and the Canadian Transportation Agency,
respondents, and
Council of Canadians With Disabilities, intervener

[2006] F.C.J. No. 28
2006 FCA 8
Docket A-100-03

Federal Court of Appeal
Edmonton, Alberta
Rothstein, Noël and Malone JJ.A.

Heard: December 15, 2005.
Judgment: January 13, 2006.
(45 paras.)

       Appeal from a decision of the Canadian Transportation Agency (Keith Penner, R. Cashin, G. Dufault) pursuant to s. 41 of the Canadian Transportation Act dated October 23, 2002.

Counsel:

Ritu Khullar and Jo-Ann Kolms, for the appellant.

Gerald A. Chouest, Tae Mee Park and Louise-Helene Senecal, for the respondent (Air Canada).

Elizabeth Barker, for the respondent (the Canadian Transportation Agency).

David Baker, for the intervener.


       The judgment of the Court was delivered by

 1      NOËL J.A.:— This is an appeal from a decision of the Canadian Transportation Agency (the "Agency") rendered on October 23, 2002, rejecting the complaint filed by Ms. McKay-Panos (the "applicant" or the "appellant") pursuant to section 172 of the Canada Transportation Act, S.C. 1996, c. 10 (the "Act" or the "CTA").

 2      In order to obtain the remedy which she was seeking, the applicant had to satisfy the Agency both that she was disabled by reason of her obesity and that she had encountered an undue obstacle in air travel. The majority of the three-member panel dismissed the application on the preliminary ground that the applicant did not satisfy the first condition.

Background and Facts

 3      The applicant is morbidly obese and attributes her condition to the Stein-Leventhal syndrome. No medical evidence establishes the cause of her obesity. However, it is not disputed that her morbidly obese condition has been medically established.

 4      The applicant had to fly from Calgary to Ottawa on August 21, 1997, returning on August 24, 1997. She booked her ticket directly with Air Canada by telephone on June 14, 1997. She gave the Air Canada agent her weight and size (the record only identifies her weight as being approximately 160 kg) and expressed concern that the seat would not accommodate her. She offered to purchase two economy class seats or one business class seat.

 5      The applicant claims that her request was met with several off-hand remarks and laughter. She was pre-assigned a bulkhead seat on all the flight segments based on the agent's understanding that it would provide her with more room. She was told that there was no need to purchase two seats.

 6      On boarding the aircraft in Calgary on August 21, the applicant discovered that the bulkhead seats were actually smaller than the other seats because the tray tables folded into the arm rests rather than the forward chair as they did in other seats. The applicant found that she could barely force herself into her seat. The passenger beside her could not access his tray table because her hips spread onto his arm rest. The flight attendants bumped into her with their serving carts.

 7      On the flight from Toronto to Ottawa, the flight attendant allowed the applicant to sit in a vacant business class seat. The applicant qualifies this gesture as the only act of human dignity that she experienced during her trip.

 8      Two days before her return flight, the applicant telephoned Air Canada to ask for assistance for her return flight. She was told that both the Ottawa-Toronto and Toronto-Calgary segments were overbooked, and no alternative seating was available. The agent advised her that she could purchase a business class seat for an additional $972 for the Toronto-Calgary segment, but she would not receive any credit for the economy class portion of the flight. It was suggested to her that once she arrives at the airport, the staff might be able to seat her in business class or otherwise accommodate her.

 9      At the Ottawa airport on August 24, 1997, the applicant was advised that no alternative seating was available on her flight to Toronto. She was told that she could again ask airport staff in Toronto for consideration on the flight to Calgary. In Toronto, the applicant was advised that it was against Air Canada policy to move passengers to business class even if the plane was not full. She decided to buy a business class ticket for $972.

 10      On November 19, 1997, Ms. McKay-Panos filed a complaint with the Accessible Transportation Directorate of the Agency. She requested an apology for the discourteous treatment which she claims she received and asked that Air Canada be required to provide alternative seating for large people who are prepared to pay a reasonable extra charge.

 11      In response, Air Canada apologized, offered to reimburse the cost of the business class ticket from Toronto to Calgary and implemented a number of measures to address the applicant's complaint, including issuing a directive highlighting the fact that bulkhead seats are not appropriate for persons who are obese.

 12      Air Canada also indicated that its policy for travel in North America is to offer persons who require additional seating the option of purchasing a second seat at 50% of the full adult fare or 100% of the applicable excursion fare. Alternatively, a single seat in executive class can be purchased or, if space permits, the use of two seats for the single applicable fare will be granted on a standby basis.

 13      The applicant acknowledged Air Canada's response but took issue with certain explanations regarding the treatment she was given by Customer Service staff in Toronto. She also felt that Air Canada's policy for persons who require additional seating did not adequately deal with her request for alternative seating.

Relevant Statutory Provisions

 14      The following relevant provisions of the CTA provide for the national transportation policy and the transportation of persons with disabilities:

NATIONAL
TRANSPORTATION POLICY

Declaration


5.

It is hereby declared that a safe, economic, efficient and adequate network of viable and effective transportation services accessible to persons with disabilities and that makes the best use of all available modes of transportation at the lowest total cost is essential to serve the transportation needs of shippers and travelers, including persons with disabilities, and to maintain the economic well-being and growth of Canada and its regions and that those objectives are most likely to be achieved when all carriers are able to compete, both within and among the various modes of transportation, under conditions ensuring that, having due regard to national policy, to the advantages of harmonized federal and provincial regulatory approaches and to legal and constitutional requirements,


...


(g)

each carrier or mode of transportation, as far as is practicable, carries traffic to or from any point in Canada under fares, rates and conditions that do not constitute


...


(ii)

an undue obstacle to the mobility of persons, including persons with disabilities,


...


and this Act is enacted in accordance with and for the attainment of those objectives to the extent that they fall within the purview of subject-matters under the legislative authority of Parliament relating to transportation.


...

PART V
TRANSPORTATION OF PERSONS WITH DISABILITIES

Regulations

170.(1) The Agency may make regulations for the purpose of eliminating undue obstacles in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting

...


(c)

tariffs, rates, fares, charges and terms and conditions of carriage applicable in respect of the transportation of persons with disabilities or incidental services; and

(d)

the communication of information to persons with disabilities.

       ...

       Coordination

171.

The Agency and the Canadian Human Rights Commission shall coordinate their activities in relation to the transportation of persons with disabilities in order to foster complementary policies and practices and to avoid jurisdictional conflicts.


Inquiry re obstacles to persons with disabilities

172.(1) The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

Compliance with regulations


(2)

Where the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.


Remedies


(3)

On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.


* * *

       POLITIQUE NATIONALE DES TRANSPORTS

       Déclaration

5.

Il est déclaré que, d'une part, la mise en place d'un réseau sûr, rentable et bien adapté de services de transport viables et efficaces, accessibles aux personnes ayant une déficience, utilisant au mieux et aux moindres frais globaux tous les modes de transport existants, est essentielle à la satisfaction des besoins des expéditeurs et des voyageurs -- y compris des personnes ayant une déficience -- en matière de transports comme à la prospérité et à la croissance économique du Canada et de ses régions, et, d'autre part, que ces objectifs sont plus susceptibles de se réaliser en situation de concurrence de tous les transporteurs, à l'intérieur des divers modes de transport ou entre eux, à condition que, compte dûment tenu de la politique nationale, des avantages liés à l'harmonisation de la réglementation fédérale et provinciale et du contexte juridique et constitutionnel :


[...]


g)

les liaisons assurées en provenance ou à destination d'un point du Canada par chaque transporteur ou mode de transport s'effectuent, dans la mesure du possible, à des prix et selon des modalités qui ne constituent pas :


[...]


(ii)

un obstacle abusif à la circulation des personnes, y compris les personnes ayant une déficience,


[...]


Il est en outre déclaré que la présente loi vise la réalisation de ceux de ces objectifs qui portent sur les questions relevant de la compétence législative du Parlement en matière de transports.


[...]

PARTIE V
TRANSPORT DES PERSONNES AYANT UNE DÉFICIENCE

Règlements

170.(1) L'Office peut prendre des règlements afin d'éliminer tous obstacles abusifs, dans le réseau de transport assujetti à la compétence législative du Parlement, aux possibilités de déplacement des personnes ayant une déficience et peut notamment, à cette occasion, régir :

[...]


c)

toute mesure concernant les tarifs, taux, prix, frais et autres conditions de transport applicables au transport et aux services connexes offerts aux personnes ayant une déficience;

d)

la communication d'information à ces personnes.

       [...]

       Coordination

171.

L'Office et la Commission canadienne des droits de la personne sont tenus de veiller à la coordination de leur action en matière de transport des personnes ayant une déficience pour favoriser l'adoption de lignes de conduite complémentaires et éviter les conflits de compétence.


Enquête : obstacles au déplacement

172.(1) Même en l'absence de disposition réglementaire applicable, l'Office peut, sur demande, enquêter sur toute question relative à l'un des domaines visés au paragraphe 170(1) pour déterminer s'il existe un obstacle abusif aux possibilités de déplacement des personnes ayant une déficience.

Décision de l'Office


(2)

L'Office rend une décision négative à l'issue de son enquête s'il est convaincu de la conformité du service du transporteur aux dispositions réglementaires applicables en l'occurrence.


Décision de l'Office


(3)

En cas de décision positive, l'Office peut exiger la prise de mesures correctives indiquées ou le versement d'une indemnité destinée à couvrir les frais supportés par une personne ayant une déficience en raison de l'obstacle en cause, ou les deux.

       [Emphasis added]

The Proceedings Before the Agency

 15      Because obesity as a disability was an issue which had never been considered, the Agency invited pleadings on the preliminary jurisdictional issue of whether obesity constitutes a disability for the purposes of Part V of the CTA. The issue as to whether there was an undue obstacle would be considered during a subsequent hearing, if obesity were found to constitute a disability. This preliminary hearing was held from September 24 to 27 and October 1 to 3, 2001 in Calgary and led to what came to be known as "the Calgary decision".

 16      During these proceedings, the Agency received expert evidence on models of disability, including the World Health Organization's International Classification of Functioning, Disability and Health (the "ICF model"), which identifies three elements for determining whether a person has a disability: impairment, activity limitations, and participation restrictions.

 17      Unlike the medical model, which focuses only on the medical condition of the person, the ICF model looks at the medical condition (called "impairment") and then considers the activity limitations resulting from the condition. The activity limitations are defined as difficulties an individual may have in executing a task or an action. Under participation restrictions, consideration is given to the impact of the activity limitations on the ability of the person to participate in basic life situations.

 18      Air Canada took the position that this model was appropriate for determining whether obesity is a disability for purposes of the CTA (Calgary decision, page 31). Consistent with this position, Air Canada also conceded that it is not necessary for a health condition to be a disease in order for it to be a disability under the CTA (Calgary decision, page 31), and that etiology (i.e., the cause of the condition) is not relevant to this determination (Calgary decision, page 18).

 19      On December 21, 2001, the Agency released the Calgary decision. It held that obesity, per se, is not a disability for the purposes of Part V of the CTA. However it recognized that there may be individuals in the population of persons who are obese, who have a disability for the purposes of Part V of the CTA which can be attributed to their obesity (Calgary decision, page 35).

 20      The Agency adopted the ICF model as a useful tool for the purpose of addressing these individual cases. Referring to this model, it held that an impairment was a prerequisite to a finding of disability but was not, in itself, sufficient to support a conclusion that a person has a disability for purposes of the CTA. In order to qualify, the impairment must give rise to activity limitations and/or participation restrictions in the federal transportation network (Calgary decision, page 35).

 21      The Agency summarized its conclusions as follows (Calgary decision, page 35):

(i)

the evidence presented on the question of whether obesity is a disease and in respect of the association between obesity and health problems, including co-morbidities, and health-related quality of life was useful to inform the Agency on the subject of obesity, but it does not determine whether obesity is a disability for the purposes of Part V of the CTA;

(ii)

there must be an impairment in order for there to be a disability for the purposes of Part V of the CTA;

(iii)

impairment, alone, is insufficient to support the conclusion that obesity is a disability for the purposes of Part V of the CTA;

(iv)

on the basis of the evidence presented, the Agency concludes that obese persons do not necessarily experience activity limitations and/or participation restrictions in the context of the federal transportation network;

(v)

in order to find that an obese person is disabled 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; and

(vi)

fact-based evidence of the presence of activity limitations and/or participation restrictions is necessary to support a conclusion that a person who is obese is a person with a disability.

 22      Having so decided, the Agency invited submissions on whether the applicant's obesity constituted a disability for the purposes of the CTA. In her submissions the applicant, adhering to the ICF model, argued that her obesity was an impairment and highlighted what she believed to be the most significant limitation which she encountered: the seat.

The Decision in Issue

 23      In a split decision, the Agency, composed of the same three-member panel that rendered the Calgary decision, dismissed the applicant's complaint. The majority concluded that the applicant inappropriately relied on the ICF model to establish her disability. It equated the limitation encountered by the applicant to an obstacle, and held that considering the obstacle in determining the applicant's disability was inconsistent with the scheme of the CTA. The majority went on to find that the applicant's obesity did not constitute a disability for the purposes of Part V of the CTA and dismissed her complaint on that basis.

 24      The dissenting member noted that the ICF model had been accepted in the Calgary decision and expressed the view that the majority, in refusing to consider the seat, was in effect revisiting the Calgary decision. Relying on the ICF model, he concluded that the applicant's obesity was an impairment and that she had been subject to an activity limitation because of the seat. He also found that she encountered participation restrictions in that she experienced difficulties in travelling that the average person does not. The dissenting member went on to hold that the applicant was disabled for purposes of the CTA and would have moved on to consider whether the seat was an undue obstacle.

 25      On January 14, 2003, the Federal Court of Appeal granted the applicant leave to appeal and the present appeal ensued. The appeal was not heard earlier by reason of an outstanding stay of proceedings arising out of Air Canada's recent bankruptcy which was lifted on September 30, 2004.

Position of the Parties

 26      On appeal, the applicant submits that the majority committed a reviewable error by discarding the Calgary decision which had gone unappealed. According to the appellant, the CTA contemplates a contextual assessment of disability since it requires that "undue obstacles" to the transportation of "persons with disabilities" be encountered (ss. 170(1) and 172(3) are relied upon). The applicant submits that the minority member properly applied the Calgary decision and arrived at the correct conclusion for the reasons that he gave.

 27      According to Air Canada, the majority properly concluded that the obstacle cannot be considered in assessing the applicant's disability. Counsel conceded that the applicant's obesity is an impairment pursuant to the ICF model, but argued that this is not sufficient to support a conclusion that she is disabled for purposes of the CTA. Counsel also stressed the fact that accepting obesity as a disability in this case could have important repercussions on the airline industry, having regard to the significant portion of the population which potentially fall within that category.

 28      The intervener argues that obesity per se is a disability under the CTA and that the Calgary decision improperly adopted a "bifurcated" process which does not accord with the Agency's statutory mandate to accommodate disabled persons. I must confess that I have found these submissions to be of limited assistance since they are directed against the Calgary decision which is not under appeal.

Analysis and Decision

Question in Issue

 29      In the course of its analysis, the majority states that in order to provide a corrective measure under subsection 172(3) of the Act, it must be satisfied that:

1.

there is a person with a disability;

2.

this person has encountered an obstacle; and

3.

this obstacle is undue.

According to the majority, "these three steps are clearly delineated by Parliament and the Agency must take the CTA as it finds it" (Reasons, page 7).

 30      It is the integrity of this three-step process which, according to the majority, would be jeopardized if the Agency were to consider the obstacle at the first stage. In particular, taking into account the obstacle in ascertaining whether a person is disabled would compromise the Agency's duty to address the obstacle at the second stage. The majority read into this three-stage process a statutory direction that the obstacle not be considered at the first stage.

 31      The exact reasoning of the majority is encapsulated in the following passage (Reasons, page 8):

The Agency does not accept [the ICF] way of proceeding because it requires the Agency, when assessing the disability of a person, to focus on the obstacle, namely the seat. Such an approach disregards the three steps delineated by the CTA which directs the Agency to consider the obstacle when assessing the obstacle, not when assessing the disability of an applicant. It is not the obstacle that makes a person deaf, blind or paraplegic and the Agency does not agree that it should be different in the case of obesity. The Agency considers that the ICF, as a useful tool, must be read in conjunction with the CTA, not the contrary. Otherwise, it would be tantamount to saying that the ICF supersedes the CTA, a conclusion that the Agency, as an administrative Tribunal, has no authority to reach. Under the framework of Part V of the CTA, before the Agency discusses the obstacle, it must predetermine that Ms. McKay-Panos is in fact a person with a disability.

 32      The sole issue in this appeal is whether the majority properly held that the CTA effectively directs that the obstacle not be considered in determining whether a person is disabled within the meaning of Part V.

Standard of Review

 33      It is not necessary to undertake a detailed analysis to determine the applicable standard of review in respect of this question. Whether the CTA rules out consideration of the obstacle at the first stage is a pure question of statutory construction. Section 41 of the CTA provides that an appeal lies from the Agency to this Court on questions of law or jurisdiction on leave being obtained. While not decisive, a statutory right of appeal suggests a more searching standard of review. Determining what constitutes a disability under Part V is clearly jurisdictional and this is not an issue with respect to which the Agency has had occasion to develop any meaningful experience. Statutory interpretation is ultimately the province of the judiciary. In my view, the applicable standard is correctness.

Disposition

 34      Despite having held that obesity can, on a case-by-case basis, be found to be a disability for purposes of the CTA and inviting the applicant to show through fact-based evidence that she experienced activity limitations, the majority refused to take into account the limitation which the applicant identified: the seat.

 35      In her response to the Agency's invitation, the applicant explained that her activity limitation mainly results from the requirement of sitting in a seat that cannot accommodate her dimension. As was noted earlier, the applicant had great difficulty forcing herself into the seat. Neither she nor the person next to her could access the tray tables because her hips spread onto the armrests and she was repeatedly bumped into by the service carts. As a result, she suffered what she described as terrible pain.

 36      The majority refused to consider this evidence. It explained that the ICF model was a useful tool but nothing more. The majority reasoned that applying this model would, in effect, result in a category of persons (i.e. those who are obese) qualifying as persons with disabilities under the Act. According to the majority, the ICF model cannot displace the CTA (Reasons, page 8).

 37      Although the majority correctly asserts that the determination of whether a person is disabled must be based on the CTA, it erred when it held that the CTA directs that the obstacle (i.e. the seat) cannot be considered in making this determination. There is no basis for the conclusion that considering the seat at the disability stage would pre-empt or compromise the exercise of the Agency's jurisdiction at a later stage.

 38      Under the CTA, no statutory consequence of any sort attaches to a finding that a person has encountered an obstacle. It is only if an obstacle is found to be "undue" that the jurisdiction of the Agency to provide a remedy is triggered. The word "obstacle" appears nowhere in the relevant provisions of the Act without the qualifier "undue". While an undue obstacle obviously assumes the existence of an obstacle, nothing flows from the recognition of the obstacle as such.

 39      It follows that the only obstacle of relevance under the CTA is an "undue obstacle" and the Agency in no way impedes or pre-empts its ability to act at that later stage by considering the obstacle at the first stage. Indeed, it is difficult to see how a person can be considered to be disabled under the Act unless he or she can show that an obstacle has been encountered on account of the alleged disability.

 40      In my view, it would require very clear words to hold that the existence of a disability is to be determined without regard to context. Arguably, no disability exists in the abstract. As was stated by Binnie J. for a unanimous Court in Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, a case involving workplace discrimination on account of an alleged disability:

28      A disability, unlike, for example, race or colour, may entail pertinent functional limitations. [...] An individual may suffer severe impairments that do not prevent him or her from earning a living. Beethoven was deaf when he composed some of his most enduring works. Franklin Delano Roosevelt, limited to a wheelchair as a result of polio, was the only President of the United States to be elected four times. Terry Fox, who lost a leg to cancer, inspired Canadians in his effort to complete a coast-to-coast marathon even as he raised millions of dollars for cancer research. Professor Stephen Hawking, struck by amyotrophic lateral sclerosis and unable to communicate without assistance, has nevertheless worked with well-known brilliance as a theoretical physicist. (Indeed, with perhaps bitter irony, Professor Hawking is reported to have said that his disabilities give him more time to think.) The fact they have steady work does not, of course, mean that these individuals are necessarily free of discrimination in the workplace. Nor would anyone suggest that, measured against a yardstick other than employment (access to medical care for example), they are not persons with daunting disabilities.

29      The concept of disability must therefore accommodate a multiplicity of impairments, both physical and mental, overlaid on a range of functional limitations, real or perceived, interwoven with recognition that in many important aspects of life the so-called "disabled" individual may not be impaired or limited in any way at all.[...]

[Emphasis added.]

 41      Parliament did not define the word "disability" under the CTA. The only statutory reference throughout is to "persons with disabilities" in both the singular and the plural forms (See the preamble to section 5 and 5(g)(ii), as well as sections 170(1), 171, and 172(1)-(3)). Nevertheless, there can be no doubt when regard is had to the scope and purpose of the accessibility provisions of the CTA that Parliament had in mind "persons with disabilities" in the context of the federal transportation network who are confronted with "an undue obstacle to [their] mobility" (section 172(3)). Whether a person comes within the class of persons contemplated by Parliament must be determined by reference to his or her impairment and the particular limitation encountered by reason of this impairment in the course of transport.

 42      In light of the concession that the applicant suffers from an impairment, and the fact that she has encountered an activity limitation on account of this impairment, the only conclusion open to the Agency was that the applicant is a person with a disability under the CTA.

 43      In holding that the applicant's obesity did not constitute a disability, the majority was obviously influenced by Air Canada's floodgate argument. It drew support from the decision of the Federal Court of Appeal in Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 at paragraph 39 (Reasons, page 5). In that case, Sexton J.A., writing for the Court explained that the Agency must engage in the delicate task of weighing the potentially diverging interests which the CTA seeks to advance in ensuring a viable and efficient transport network at competitive rates without undue obstacles to the mobility of persons with disabilities. However, as the Via Rail decision makes clear, it is at the undueness analysis stage that the Agency should engage in this weighing exercise and not at the disability stage.

 44      In this regard, the relative ease with which the existence of a disability can be established at the first stage should not be construed as preventing the Agency from having regard to all relevant considerations at the undue obstacle stage of the analysis including, for instance, etiology if it is shown to be relevant. It is for the Agency to determine in the first instance the scope of its review and since it has yet to conduct the undueness analysis, it would be inappropriate to rule out any consideration at this juncture.

 45      For these reasons, I would allow the appeal, set aside the decision of the Agency, and refer the matter back to the Agency so that it may determine whether the appellant, as a person with a disability, has encountered an undue obstacle to her mobility. The appellant should have her costs as against the respondent, Air Canada, and the intervener should assume its own costs.

NOËL J.A.
ROTHSTEIN J.A.:— I agree.
MALONE J.A.:— I agree.

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