With the winter session starting at the Supreme Court of Canada (“SCC”) on January 21, 2008, I’ve decided to review a decision that was handed down by the Canadian Transportation Agency on Thursday, January 10, 2008, which echoes the March 2007 SCC decision in Council of Canadians with Disabilities v VIA Rail, 2007 SCC 15 [VIA Rail]. The CTA’s decision can be found here.

In 2002, several disabled passengers and the Council of Canadians with Disabilities launched a complaint against three airlines, Air Canada, West Jet, and Air Canada Jazz, regarding the airlines’ policy of charging additional fares to people with disabilities for their personal caregivers, or extra seating that they may be otherwise require on airplanes. In the decision earlier this week, the Canadian Transport Agency ordered that the three air carriers drop any additional charges for disabled passengers. These airlines must provide second seats at no extra charge to disabled passengers who must travel with caregivers, as well as the “clinically obese” who cannot fit into a single seat.

The rubric offered in the judgment is that obesity per se is not a disability, but that it can be disabling in the context of flight travel. The case-by-case test is now that obesity is considered to be a “disability” if the passenger cannot lower the armrest between the two seats; in such a case, as per the terms of the judgment, that person must be given an adjacent seat free of charge. The new policy does not apply to people who are only uncomfortable in a plane seat, or people who travel with a companion for personal reasons, or only require assistance on the ground, but not in the air. The airlines have 12 months to develop and implement a standardized screening method in order to determine which passengers are entitled to additional seats.

In addition, the Canadian Transportation Agency found that the “airlines failed to demonstrate that implementation of a one-passenger-one-fare policy will impose undue hardship on them.” As such, they must accommodate the disabilities of the applicants.

In March 2007, the SCC released VIA Rail, which has been discussed here at TheCourt.ca on March 28, 2007, in a post written by Corey Wall. Similar to the one-passenger-one-fare policy implemented in this decision, the SCC there upheld the Court of Appeal decision requiring the modification of several of VIA Rail’s economy coach cars to make them wheelchair accessible. In this decision, Justice Abella, writing for the majority, focused on rights for the disabled; in particular, the failure of VIA to “provide specific evidence of hardship.” She succinctly stated the law pertaining to accommodation: “This is the goal of the duty to accommodate: to render those services and facilities to which the public has access equally accessible to people with and without physical limitations.”

The decision of the Canadian Transportation Agency has certainly been controversial, and we may not yet have seen the end of this matter. The airlines will have the opportunity to appeal the decision, and potentially, the courts may review the decision, as they did in VIA Rail. Lorne Gunter recently expressed criticism of the decision in separate articles written for The National Post and The Edmonton Journal.

Gunter stated that “the spirit of the Canadian Transportation Agency’s decision…is decent, it’s the solution that’s wrong,” explaining that the airlines and passengers should not be forced to pay for the regulator’s public policy; rather, he suggests that voluntary donation options while purchasing airline tickets be used to fund the new policy. Further, he finds several potential problems raised by this decision, such as the inability to differentiate between the clinically obese and those obese through lifestyle.

While I understand his concern about imposing an additional cost burden on the airline and its shareholders, and on passengers if ticket prices increase, I believe that the objective behind this ruling outweighs any detriment it may cause to the airline, its shareholders or passengers. While the use of donations to offset the costs to these groups is a possibility, this proposal does not guarantee that there will be enough money donated to fund the additional free seats needed. Perhaps a combination of the donation option in conjunction with placing the costs on the airlines is the most appropriate solution.

As Justice Abella stated in VIA Rail, there is a duty to render facilities to which the public has access equally accessible to people with disabilities. Individuals who require the assistance of a caregiver on flights, or who are unable to fit in a single seat should not be required to pay extra money to fly as a result of their disability. The extra charge may place disabled people in a position where they are not able to finance the additional airfare. Similar to the requirement to fund projects (for example, ramps, elevators, washrooms etc) which provide equal accessibility in locations such as schools, hospitals, shopping malls, office buildings, and airports, the disabled should not have to pay to enjoy access to services and areas which are available to the general public.

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