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Agency Rulings
Decision No. 646-AT-A-2001
December 12, 2001
IN THE MATTER OF the jurisdictional question, arising in the context of an application received by the Canadian Transportation Agency from Linda McKay-Panos against Air Canada, of whether obesity is a disability for the purposes of Part V of the Canada Transportation Act, S.C., 1996, c. 10; and
IN THE MATTER OF a hearing held in Calgary, Alberta from September 24 to 27 and October 1 to 3, 2001.
File No. U 3570/97-21
TABLE OF CONTENTS
TRIBUNAL
PARTICIPANTS
APPEARANCES
ABBREVIATIONS
INTRODUCTION
HEARING PARTICIPATION
Air Transport Association of Canada
Arleen Reinsborough
HEARING PROCEDURES
ISSUE
POSITIONS OF THE PARTIES
Amicus curiae
A. Witnesses for the amicus curiae
Jerome E. Bickenbach
(i) Models of disability
(ii) Health-related quality of life
(iii) Obesity as a disease
(iv) Part V of the CTA
Dr. David C.W. Lau
(i) Characterization of obesity
(ii) Health-related quality of life and indicators of disability in obese persons
(iii) Obesity as a disease
B. The amicus curiae's final oral argument
Linda McKay-Panos
Air Canada
A. Witnesses for Air Canada
Professor David Allison
(i) Characterization of obesity
(ii) Health-related quality of life and indicators of disability in obese persons
(iii) Obesity as a disease
(iv) Models of disability
Dr. Lawrence Cheskin
(i) Characterization of obesity
(ii) Health-related quality of life and indicators of disability in obese persons
(iii) Obesity as a disease
(iv) Models of disability
Lawrence Mentz
(i) United States Law
B. Air Canada's final oral argument
ANALYSIS AND FINDINGS
A. Obesity and its implications for health and health-related quality of life
(i) Obesity as a disease
(ii) Obesity and associated health problems, co-morbidities and health-related quality of life
B. Obesity in the context of the ICF model of disability
(i) Impairment dimension of disability
(ii) Activity limitation dimension of disability
(iii) Participation restriction dimension of disability
C. The Agency's approach to the assessment of whether obesity is a disability
SUMMARY OF FINDINGS
CONCLUSION
TRIBUNAL
| Gilles Dufault | Chairman of the Panel, Canadian Transportation Agency |
| Keith Penner | Member, Canadian Transportation Agency |
| Richard Cashin | Member, Canadian Transportation Agency |
PARTICIPANTS
| Elizabeth Barker | Counsel, Canadian Transportation Agency |
| Eric Harvey | Counsel, Canadian Transportation Agency |
APPEARANCES
| Ritu Khullar | Counsel for Linda McKay-Panos |
| Peter Engelmann | Appointed amicus curiae |
| Yavar Hameed | Assistant to amicus curiae |
| Professor Jerome E. Bickenbach | Witness for the amicus curiae |
| Dr. David C.W. Lau | Witness for the amicus curiae |
| Gérard Chouest | Counsel for Air Canada |
| Marywyatt Sindlinger | Counsel for Air Canada |
| Professor David Allison | Witness for Air Canada |
| Dr. Lawrence Cheskin | Witness for Air Canada |
| Lawrence Mentz | Witness for Air Canada |
ABBREVIATIONS
The following abbreviations are used in this Decision:
ACAA refers to the United States Air Carrier Access Act
Agency refers to the Canadian Transportation Agency
ATR refers to the Air Transportation Regulations
BMI refers to Body Mass Index
CHRA refers to the Canadian Human Rights Act
CTA refers to the Canada Transportation Act
ICF refers to the International Classification of Functioning, Disability and Health
NHANES-III refers to the Third National Health and Nutrition Examination Survey
U.S. DOT refers to the United States Department of Transportation
W.H.O. refers to the World Health Organization
INTRODUCTION
On November 19, 1997, Linda McKay-Panos filed an application with the Canadian Transportation Agency (hereinafter the Agency) about the seating Air Canada provided to her between Calgary and Ottawa in August 1997. Ms. McKay-Panos also raised concerns with respect to the carrier's policy of imposing higher fares to accommodate passengers who require additional seating space due to their obesity. On January 23, 1998, Air Canada filed its answer to the complaint and on February 3, 1998, Ms. McKay-Panos filed her reply.
Following a preliminary review of this file, the Agency found that any decision rendered in this matter could have a significant impact on the federal transportation network. Therefore, in its Decision No. LET-A-112-1998 dated April 3, 1998, the Agency advised that it intended to consult more widely on the issues raised before making its decision on this application and that it intended to appoint an Inquiry Officer to conduct the consultations.
In its Decision No. 214-AT-A-1998 dated May 11, 1998, the Agency appointed a staff person as an Inquiry Officer pursuant to subsection 38(1) of the Canada Transportation Act (hereinafter the CTA) to conduct further consultations with both parties to this complaint as well as with other interested parties. The Inquiry Officer was required to report to the Agency on the results of these consultations and to provide an analysis of several issues, including whether obesity should be considered a disability for the purposes of the CTA. On April 12, 1999, the Inquiry Officer released an Interim Report and invited interested parties to submit comments and suggestions concerning the content of the Interim Report. A number of submissions were filed in response. After a thorough analysis of the report and the comments received, the Agency determined that the Interim Report was inconclusive as to whether obesity should be considered a disability and, accordingly, the Agency decided that it would not adopt the recommendations and conclusions contained in the Interim Report. The Agency also advised, in its Decision No. LET-AT-A-296-2000 dated October 3, 2000, that the Inquiry Officer had discharged her obligations under the appointment.
The Agency advised the parties that it would proceed with its consideration of the application filed by Ms. McKay-Panos against Air Canada and invited pleadings from the parties on the preliminary jurisdictional issue of whether obesity constitutes a disability for the purposes of Part V of the CTA. On December 13 and 15, 2000 and on January 3, 2001, the Agency received the respective submissions of Ms. McKay-Panos and Air Canada on the jurisdictional issue.
In its Decision No. LET-AT-A-46-2001 dated February 2, 2001, the Agency advised the parties that it had determined that expert evidence was required to pursue its consideration of the matter and to make a decision on the preliminary issue. The Agency also advised that it intended to hold an oral hearing to gather further information from the parties and, in particular, expert evidence on this issue. The Agency further explained that it required expert evidence to be presented and tested at the hearing to assist it in rendering a decision. In that same Decision, the Agency also pointed out that no advocacy organization had emerged to present expert evidence in support of the view that obesity is a disability and that it therefore deemed it appropriate to issue a request for proposals for an independent person to act as amicus curiae. The Agency also requested the parties to provide its comments on this proposed approach.
On February 5, 2001, Air Canada requested a copy of the Request for Proposals that the Agency intended to issue in order to understand the details of the relationship between the amicus curiae and the Agency before it could provide comments. On February 8, 2001, Ms. McKay-Panos filed her comments and advised that she had no objection to the appointment of an amicus curiae provided the person's role was to present evidence that obesity should be considered a disability. She also mentioned that if the amicus curiae were independent, at a minimum she would require the opportunity to cross-examine.
By Decision No. LET-AT-A-75-2001 dated February 16, 2001, the Agency provided the parties with a copy of the proposed Request for Proposals on a confidential basis in order to protect the integrity of the tender process. In addition, the Agency advised of its intention to hold a pre-hearing meeting on March 2, 2001 to discuss a number of issues. On February 21, 2001, Air Canada filed its comments in response to Decision No. LET-AT-A-46-2001.
On March 2, 2001, a pre-hearing meeting was held in Calgary to discuss outstanding issues, one of which was the appointment of an amicus curiae.
Agency counsel conducted a tender process in conformity with Treasury Board Guidelines, following which a recommendation was made to appoint Peter Engelmann. This was done by the Secretary of the Agency on April 10, 2001.
Pursuant to subsection 29(1) of the CTA, the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.
HEARING PARTICIPATION
Air Transport Association of Canada
A letter dated February 22, 2001 from the Air Transport Association of Canada (hereinafter ATAC) was received by the Agency. In that letter, ATAC raised concerns with the Agency's approach to addressing the jurisdictional issue of whether obesity is a disability. ATAC also mentioned the proposed March 2, 2001 pre-hearing meeting and its understanding that the Agency would discuss with the parties its intention to engage an amicus curiae. ATAC requested standing to have an ATAC representative appear at that meeting to make representations on the procedures the Agency would employ. ATAC also indicated that, in the event that the Agency decided to proceed with a hearing, it would seek standing as an intervener.
In its Decision No. LET-AT-A-98-2001 dated February 28, 2001, the Agency, inter alia, advised ATAC that it would be appropriate for it to attend the meeting as an observer. The Agency also pointed out that it would determine the nature of ATAC's participation rights, if any, on the basis of relevant criteria including whether the proposed participation would be of assistance to the Agency in making its decision.
While ATAC's representative did attend the March 2 pre-hearing meeting, ATAC did not seek participation rights in the hearing.
Arleen Reinsborough
Ms. Reinsborough also has an application before the Agency which is similar in nature to that of Ms. McKay-Panos. The Agency advised Ms. Reinsborough on February 26, 2001 that her application is on hold pending the disposition of the preliminary jurisdictional issue. On February 13, 2001, Ms. Reinsborough applied to the Agency for participation rights in the hearing. In its Decision No. LET-AT-A-222-2001 dated May 3, 2001, the Agency advised Ms. Reinsborough that the sole purpose of the hearing was to have the expert evidence on the issue of whether obesity is a disability heard and tested. The Agency also informed Ms. Reinsborough that the Agency had appointed an amicus curiae in the proceeding to present expert evidence in support of the position that obesity is a disability. The Agency did not grant the requested participation rights, however, it welcomed Ms. Reinsborough to attend the hearing as an observer if she so wished.
HEARING PROCEDURES
On May 11, 2001, Agency counsel held a pre-hearing conference with the parties. The Agency subsequently issued its Procedural Direction by Decision No. LET-AT-A-262-2001 dated May 31, 2001 to govern the pre-hearing process. Agency counsel held a second pre-hearing conference on September 4, 2001 and the Agency issued a second Procedural Direction to govern the hearing by Decision No. LET-AT-A-395-2001 dated September 5, 2001. The hearing was convened in Calgary, Alberta beginning on September 24, 2001. Parties to the hearing were Linda McKay-Panos, Air Canada, and the amicus curiae.
ISSUE
The issue to be addressed is whether obesity is a disability for the purposes of the accessibility provisions of the CTA.
POSITIONS OF THE PARTIES
The positions put forth by the parties are discussed first in terms of their briefs filed with the Agency prior to the hearing, followed by the testimony provided by each witness as they appeared during the hearing and, lastly, in terms of counsels' final oral arguments.
Amicus curiae
In his brief filed with the Agency on July 10, 2001, the amicus curiae notes that he will address the jurisdictional issue by presenting two models of disability: the social model and the medical model. The amicus curiae further notes that he will establish that obesity is a disability under either model but that the social model is more appropriate for the Agency to use in its consideration of disability cases. The amicus curiae puts forth two conclusions based on the expert reports prepared by his witnesses, Jerome E. Bickenbach and Dr. David Lau: (i) obesity meets the definition of disability under a social model of disability; and (ii) obesity is a disability and a chronic disease.
Regarding the social model of disability, as adopted by the World Health Organization (hereinafter WHO) and as applied by the Supreme Court of Canada, the amicus curiae's brief states that this model is relevant and appropriate for the Agency and the purposes of Part V of the CTA. The amicus curiae further asserts that obesity should be considered a disability.
Alternatively, the amicus curiae argues that obesity is a disability and a disease according to the medical model of disability. While the amicus curiae notes that the issue of obesity as a disease is distinct from the issue of obesity as a disability, he argues that obesity is a disease according to the medical model in order to legitimize it and remove the stigmatization associated with the notion of blameworthiness. The amicus curiae asserts that it is the functional limitations imposed by a specific situation or activity which determine whether a disease can be classified as a disability.
A. Witnesses for the amicus curiae
Jerome E. Bickenbach
Jerome E. Bickenbach is a lawyer, holds a doctorate in philosophy and is a professor in the Departments of Philosophy and Law and an adjunct professor in the Faculty of Medicine and the School of Rehabilitation Therapy at Queen's University, Kingston, Ontario.
The amicus curiae sought to qualify Professor Bickenbach as an expert in disability studies, comparative international policies and law associated with disabilities, and the development and application of the WHO's model of disability, the International Classification of Functioning and Disability, World Health Organization, 2001 (hereinafter ICF).
The Agency considered the submissions made by the parties in respect of the foregoing and accepted the qualification of Professor Bickenbach sought by the amicus curiae. The Agency agreed to weigh the evidence of Professor Bickenbach in the area of U.S. transportation law.
(i) Models of disability
Professor Bickenbach's report, entitled Understanding Obesity Under a Social Model of Disability, presents the medical and social models of disability, in addition to a synthesis of these two models, and examines obesity in light of these.
Professor Bickenbach describes the medical model as one for which a disability is "a problem with the physiology or psychology of the person" with a causal history relating to a trauma, disease or congenital condition. According to the medical model of disability, one has to improve the functioning of the body or mind in order to treat the disability.
By contrast, Professor Bickenbach states that the social model of disability is one for which disability is the result of an interaction between features of the person and features of the person's physical and social environment. Professor Bickenbach notes that the social model reflects the fact that disabilities are highly dependent on context, culture, attitudes, physical structures, and numerous other environmental factors.
Professor Bickenbach notes that the use of the term "disability" depends on the legislative, social policy or health policy context and that confusion surrounding how the term should be defined led the WHO to construct a universal language of disability known as the ICF, described by the WHO as a multi-purpose classification designed to provide a standard language and framework for the description of health and health-related states.
During his examination-in-chief, Professor Bickenbach explains that the WHO is charged by its constitution to provide classification instruments in the health field. He notes that the WHO is obligated by the United Nations to discharge this mandate. Professor Bickenbach further notes that the WHO is required to obtain international agreement on matters pertaining to terminology, diseases, and disabilities in order that it can obtain accurate and comparable health information to support its epidemiological functions.
Further during his examination-in-chief, Professor Bickenbach notes that the ICF has been adopted by the 191 member states of the WHO, including Canada. Additionally, Professor Bickenbach explains that use of the ICF is essential in order to understand how a disease, disorder or injury affects a person's functioning.
In terms of the classification of diseases, disorders and injuries, Professor Bickenbach explains that the International Statistical Classification of Diseases and Related Health Problems, Tenth Revision, World Health Organization, 1992-1994 (hereinafter the ICD) is, like the ICF, a major classification instrument of the WHO. Professor Bickenbach notes that, in the future, there will be a triad of classifications: the ICD, the ICF, and a classification referred to as the WHO QOL, which is a quality-of-life instrument. Professor Bickenbach notes that it is the intent that all three instruments are going to be brought together in an integrated package within the next ten years.
In his report, Professor Bickenbach describes the ICF as a synthesis of the medical and the social models of disability containing a complete classification of body functions and structures. Professor Bickenbach notes that the ICF identifies three dimensions of disability, namely: impairments, activity limitations, and participation restrictions.
Professor Bickenbach's report provides the following definitions of the three dimensions of disability:
Impairment - problem in body function or structure, where 'problem' is understood broadly to include the absence of a function or structure, a decrement in power or strength of a function, or a deviation in functioning
Activity Limitation - incapacity, inability or other inherent difficulty in executing a task or action
Participation Restriction - problem experienced in the actual involvement in life situations, in the sense of restrictions on the performance of desired, required or socially expected actions, tasks and roles in the person's actual environment
Professor Bickenbach states that the ICF makes it clear that disability analysis must consider the purposes that one has in mind. Accordingly, if the focus is treatment planning or medical intervention studies, one is primarily interested in disability as an impairment. If the focus is physiotherapy, occupational rehabilitation or other capacity enhancements, one is primarily interested in disability as an activity limitation. Finally, if the focus is on how features of the social and physical environment can be modified to accommodate the impairments or capacity limitations of a person, one is primarily concerned with disability as a participation restriction. During questioning by Agency counsel, Professor Bickenbach asserts that the ICF would be an appropriate tool for the Agency to use to identify a disability in the context of complaints from passengers who use transportation services because it is a classification that provides a large and liberal interpretation of disability, which is relevant to human rights adjudications.
Professor Bickenbach notes that a disability can mean having an impairment, an activity limitation, a participation restriction or, more typically, a combination of these dimensions. During his examination-in-chief, Professor Bickenbach clarifies that each of the dimensions qualifies equally as a disability. Professor Bickenbach expresses the view that an impairment is usually present in order for there to be a disability and that a biomedical underpinning is needed in order to distinguish the negative, socially-constructed experiences of disability from similar ones that result from race or gender discrimination, poverty, or religious intolerance. Notwithstanding this, Professor Bickenbach notes that, in the human rights context, there have been cases where people have been found to have been discriminated against because of perceived impairments. In such cases, while there is no real impairment, there is a participation restriction arising out of discrimination based on the perceived impairment.
Professor Bickenbach's report examines obesity in terms of each of the three dimensions under the ICF model and concludes that there can be no doubt that obesity is a disability.
Regarding the impairment dimension, Professor Bickenbach notes that the category of "weight maintenance functions" listed in the body function section of the ICF, which classifies impairments of the digestive, metabolic and endocrine systems, explicitly includes obesity. Professor Bickenbach also notes that, to the extent that obesity is associated with physical body dimensions that are abnormal, obesity also involves several structural bodily impairments. Under cross-examination by counsel for Air Canada, Professor Bickenbach confirms that the ICF also classifies 'overweight' as a disability based on its inclusion in the impairments of weight maintenance functions. Based on the foregoing, Professor Bickenbach concludes that obesity is a disability at the impairment level.
With respect to the activity limitation dimension, Professor Bickenbach states that it is a matter of clinical determination or common sense observation whether obesity is a disability in the sense of activity limitations. Professor Bickenbach asserts that obesity is associated with limitations in a person's capacity with respect to a wide variety of mobility activities listed in the ICF, including: changing and maintaining basic body positions; transferring oneself; and walking and moving. Although Professor Bickenbach notes that the clinical determination in a particular case depends on such factors as the degree of obesity, age, gender, and co-morbidities or life-threatening complications, he states that it is uncontroversial that obesity constitutes a 'class of activity limitations'.
During his examination-in-chief, Professor Bickenbach clarifies that whether there will be activity limitations in a particular case or from a population health point of view is an empirical issue and not an a priori matter or a definitional matter like it is for impairment. Professor Bickenbach further notes that a person can be disabled for one purpose and not for another.
Regarding the participation restriction dimension, Professor Bickenbach expresses the view that obesity is also a disability in this sense. During examination-in-chief, Professor Bickenbach specifically refers to stigma and denial of opportunity as being examples of participation restrictions arising out of the social reception of obesity. By way of specific example, Professor Bickenbach expresses the view that an obese person who wishes to travel, but finds that the seating is inadequate, faces a participation restriction in terms of the seat size being an environmental barrier which creates the restriction. However, he notes that it is not an a priori matter; rather, it is a question of clinical or other observation and the extent of participation restrictions will depend on the features of the physical, human-built, and social environment that constitute the context in which the obese individual lives, learns, works, plays and socially interacts. During his examination-in-chief, Professor Bickenbach notes that, in terms of stigmatization, it is "intuitively obvious" that obese persons will experience problems.
In his report, Professor Bickenbach cautions against making inferences from impairments to activity limitations and from these to participation restrictions. During his examination-in-chief, Professor Bickenbach clarifies that the ICF requires empirical evidence in respect of each of the three dimensions and that to make an inference in the abstract, without detailed information about the context, is prejudicial. Additionally, under cross-examination by counsel for Air Canada, Professor Bickenbach notes that, in assessing impairments there needs to be "deviational neutrality" such that assumptions about the consequences of an impairment for a person should not be made. Professor Bickenbach further clarifies that any assumptions would need to be tested and data would be required before concluding that there is a link between a particular impairment and an activity limitation or participation restriction.
Professor Bickenbach agrees with counsel for Air Canada that the consequences of a given impairment may be inconsequential, harmful or beneficial and cannot be predicted without knowing the context. By way of clarification, counsel for Air Canada provides an example of monotone speech which is listed as an impairment of the function of pitch modulation in patterns of speech in the ICF. In the example, counsel for Air Canada discusses how monotone speech might prove to be a disability for a person seeking to perform as an actor in theatre but that it might prove to be of no consequence for a person who is employed as a partner in a law firm. Counsel for Air Canada notes that, in the strict language of the ICF, both persons would have a disability vis-a-vis the impairment dimension but that, in the latter case, there are no activity limitations or participation restrictions.
Under further cross-examination by counsel for Air Canada, Professor Bickenbach agrees with counsel that, as a first step in determining whether a person has a disability, the Agency can assess whether commonsense observation, such as in the case of quadriplegia, is sufficient to determine whether there are activity limitations. Professor Bickenbach, however, qualifies his agreement by noting that there are persons with "invisible impairments" such as communication difficulties, for whom commonsense observation would be ineffective.
Professor Bickenbach also agrees with counsel for Air Canada that, in order for the Agency to determine whether it should inquire into the complaint of a person who is overweight or possibly obese, the Agency requires evidence that the health condition results in an activity limitation or a participation restriction in the persons's use of transportation services. Professor Bickenbach further agrees that, in order to be able to address the case of a particular individual and determine whether he or she faces activity limitations or performance restrictions, evidence about the individual's physical state would need to be presented.
Regarding the case of a complaint on behalf of a large class of persons, in response to Air Canada counsel's suggestion, Professor Bickenbach agrees that it would be necessary to conduct some form of sampling which would allow the Agency to extrapolate the results with reasonable confidence to the population as a whole in order to obtain data pertaining to impairments, activity limitations, and participation restrictions about the class of persons.
Counsel for Air Canada asserts that, in order for the Agency to determine whether obese persons are persons with disabilities, the Agency must either: (i) consider each person who is obese and make the decision on a case-by-case basis, or (ii) refer to samples taken on a proper basis and make inferences about the entire population of obese persons on the basis of the samples. Additionally, counsel for Air Canada asserts that it is not sufficient to show that the members of a class of persons are at risk of disability given, in fact, that everyone is at risk of disability. Professor Bickenbach agrees with the assertions put forth by counsel for Air Canada but notes that it is not appropriate in the context of human rights adjudication to infer from judgements about a sample set what actual activity limitations a person experiences.
During questioning by Agency counsel concerning the scope of the ICF, Professor Bickenbach notes that very short and very tall stature, which are statistically abnormal, would be classified as impairments. Professor Bickenbach clarifies that the ICF classifies stature according to a dysfunction of the endocrine system as opposed to a mere structural issue and that this reflects the fact that the range of normality for stature is not static as evidenced by the noticeable increase in average height for young females over recent years. Professor Bickenbach confirms that the ICF requires a dysfunction of the endocrine system in order to qualify very short or very tall stature as a disability. Professor Bickenbach agrees with Agency counsel that it is possible that an impairment, such as that which exists for someone who is unusually tall, can have a beneficial consequence for one purpose and be a disability for another. Finally, Professor Bickenbach clarifies that the ICF views disability as resulting from the interaction between an impairment and a particular context, such that the notion of disability, per se, is not a valid notion.
(ii) Health-related quality of life
During his examination-in-chief, Professor Bickenbach states that it is essential to distinguish disability from quality of life because the latter is a subjective report of a person's reaction to disability. Professor Bickenbach explains that there is quality evidence of what is termed to be a "disability paradox", namely, that persons with the most objectively severe disabilities have disproportionately higher quality of life than persons with minimal disabilities. Professor Bickenbach further explains that this paradox arises because such persons have reached an inner peace and view their lives as being very worthwhile. Professor Bickenbach emphasizes that the subjective reaction to disability which is measured by health related quality of life has no correlation with the fact of disability, which is an "objective phenomena".
(iii) Obesity as a disease
Professor Bickenbach asserts that the trend in public health analysis of obesity is to view it as a biomedical health condition or disease and as a multi-dimensional disability under the ICF model. Professor Bickenbach notes in his report that the WHO has long classified obesity as a disease in its classification of diseases, the ICD. Additionally, Professor Bickenbach notes that, in 1997, the WHO issued a press release which stated that "obesity is now well-recognized as a disease in its own right". Professor Bickenbach also cites other examples of health associations which have viewed obesity as a disease, including the American Association of Clinical Endocrinologists, the American College of Endocrinology, and the National Heart, Lung and Blood Institute.
During his examination-in-chief, Professor Bickenbach notes that whether a disease is present is irrelevant to the understanding of a person's activity limitations. Additionally, Professor Bickenbach notes other matters which, in his opinion, are myths about disabilities, including that a disability must be something rare and severe to the point that the person is permanently incapacitated.
(iv) Part V of the CTA
During questioning by Agency counsel, Professor Bickenbach expresses the view that Part V of the CTA is human rights legislation and anti-discrimination legislation. Professor Bickenbach states that Part V is "participation-oriented" and the language pertaining to the elimination of obstacles in the transportation network indicates a desire on the part of Parliament to ensure that there is full inclusion and equal participation in travel by Canadians. Additionally, Professor Bickenbach expresses the view that the absence of a definition for disability in Part V of the CTA implies that, consistent with the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, (U.K.), 1982, c. 11 (hereinafter the Charter), Parliament was permitting a judicial definition to be developed that was responsive to social context. Further, Professor Bickenbach comments that Part V of the CTA suggests a mandate to facilitate usage of transportation in terms of design, construction, modification of signage and premises, and communication of information. Finally, during cross-examination by counsel for Air Canada, Professor Bickenbach notes that, in the context of human rights adjudication, the guidance given to adjudicators is that disability assessments should be conducted on the basis of the individual case and not by inferring judgments about activity limitations from a sample set.
Dr. David C.W. Lau
Dr. Lau is a medical doctor with a specialization in internal medicine, endocrinology and metabolism and holds a doctorate in medical science. He is on staff at the Foothills Medical Centre in Calgary, Alberta and at the Calgary Regional Health Authority and is a professor in the Department of Biochemistry and Molecular Biology at the University of Calgary.
The amicus curiae sought to qualify Dr. Lau as an expert in matters of diagnosis, treatment and research pertaining to obesity. The Agency accepted the qualification of Dr. Lau requested by the amicus curiae.
(i) Characterization of obesity
In his report filed with the Agency, entitled Obesity - Prevalence, definition, determinants, etiology, health impact, treatment and prognosis, Dr. Lau notes that obesity is considered to be a complex nutritional disorder characterized by an excess of body fat and relative resistance to therapy. Dr. Lau states that, regardless of a person's pattern of environmental, genetic or metabolic circumstances, obesity is the result of an imbalance in favour of food intake or energy consumption over energy expenditure.
Dr. Lau's report provides an operational definition of obesity in terms of Body Mass Index (hereinafter BMI), which is the classification of obesity adopted by the WHO. BMI is a ratio of weight to squared height (kg/m2 or [lbs/ft2x 4.89]). During his examination-in-chief, Dr. Lau notes that, while the most accurate measure of excess body fat is achieved using a technique known as underwater weighing, due to its impracticality, BMI, a surrogate measure, is used as the best practical measure of overall body fat or adiposity. However, under questioning by Agency counsel, Dr. Lau concurs that BMI values for athletic persons may not accurately reflect the level of obesity due to increased muscle mass but notes that it would be unusual for athletic individuals to have a BMI which exceeds thirty-five. Dr. Lau further notes that, because of the limitation in the effectiveness of BMI vis-a-vis persons with increased muscle mass and the correlation between fat distribution and health conditions, the WHO now recommends that health practitioners also assess the distribution of fat using a waist circumference measurement.
The following WHO classification of weight in relation to BMI for adults is provided in Dr. Lau's report:
| Classification | BMI (kg/m2) |
| Underweight | < 18.5 |
| Normal | 18.5 - 24.9 |
| Overweight | 25.0 - 29.9 |
| Obese | > 30.0 |
| Class I | 30 - 34.9 |
| Class II | 35 - 39.9 |
| Class III | > 40.0 |
Dr. Lau notes that the etiology of obesity has genetic, environmental and possibly metabolic influences. Dr. Lau states that it is clear that genetics are not responsible for the "epidemic of obesity" given that the population gene pool has not substantially changed over the past two decades. However, Dr. Lau notes that genetic predisposition can influence obesity in approximately 30 percent of cases. Dr. Lau further notes that, in a minority of cases, excess weight gain is attributable to a clearly definable metabolic abnormality, which includes such conditions as hypothyroidism, adult growth hormone deficiency, and Cushing's disease. Dr. Lau asserts that lifestyle and the environment account for most of the reasons why people gain weight.
Dr. Lau's report notes that the WHO has recently recognized obesity as the greatest public health crisis, next to smoking. Dr. Lau notes that approximately 13 percent of men and 14 percent of women in Canada are obese and that the prevalence of obesity among children is increasing at an alarming rate.
(ii) Health-related quality of life and indicators of disability in obese persons
In his report, Dr. Lau states that limitations resulting from negative perceptions of body image and poor self-esteem among obese persons are prevalent and notes that numerous studies have documented stigmatization in most areas of social functioning for obese persons.
Dr. Lau notes that a report published by Sullivan, Karlsson, Sjöstrom, et al. entitled Swedish obese subjects (SOS) - an intervention study of obesity, shows that the rates of anxiety and depression on psychological tests were three to four times higher among obese persons than among matched non-obese persons. Under cross-examination by counsel for Air Canada, Dr. Lau clarifies that this study was conducted on persons who were massively obese (i.e., male subjects had BMIs of 34 or greater and female subjects had BMIs of 38 or greater) and awaiting bariatric forms of surgery designed to decrease the absorption of nutrients. Further during cross-examination, counsel for Air Canada presented some statistics which show that at least 77.4 percent of obese men and approximately 96 percent of non-obese men do not exhibit evidence of anxiety or depression according to the hospital anxiety and depression scale or "HAD". Counsel for Air Canada also presented HAD statistics for women which show percentages that are comparable to those for the male test population. Dr. Lau acknowledges that the statistics show that the majority of obese persons in the study did not exhibit evidence of anxiety or depression but asserts that there remains a six-fold increase in the probability of anxiety and depression among obese persons. Dr. Lau further notes that the degree of obesity is important in predicting correlated negative health consequences and co-morbidities. Dr. Lau notes several such co-morbid conditions, including type 2 diabetes, gall bladder disease, coronary heart disease, hypertension, and osteoarthritis, and expresses the view that a relative risk of more than one for these co-morbidities is considered to be clinically and statistically significant. During his examination-in-chief, Dr. Lau specifies that one cannot infer from BMI that an obese person will develop co-morbidities; rather, it is dependent on body fat distribution.
Dr. Lau asserts that it is well known that obesity causes significant functional limitations in a "severity-dependent manner". Dr. Lau notes that mobility limitations may result from excessive demands for muscular work or from skeletal or postural changes and that these can prevent obese persons from strenuous activities and hinder participation in exercise. Dr. Lau further testifies that obesity is associated with many health conditions which can lead to disability.
Under questioning by counsel for Ms. McKay-Panos, Dr. Lau provides examples of how some of his Class III obese patients have difficulties ambulating and are unable to use public transportation to access his clinic. Additionally, under questioning by Agency counsel, Dr. Lau notes that a number of his patients encounter difficulties because they need to use stools as opposed to regular seating, which have armrests and are not sufficiently large. Dr. Lau testifies that he could not specify a BMI beyond which he can say, with any certainty, that people would not fit into a seat but that such individuals would have Class III obesity. Dr. Lau further testifies that this presumption does not preclude a person who has a BMI of 41 to 45 from fitting into a seat into which another person, who has a BMI of 39.5 but who has a certain distribution of fat around the waistline, cannot. Dr. Lau also expresses the opinion that the majority, if not 100 percent, of persons with a BMI of 30 can fit into an aircraft seat.
During his examination-in-chief, Dr. Lau states that he does not provide an opinion on whether obese persons are persons with disabilities because he does not consider himself to be an expert in the area of disability. However, Dr. Lau comments that the determination of whether obesity is a disability needs to be made in light of the "functional impairment of the individual, whether that person is able to conduct his or her occupation and in a context whether the person is able to carry on the activity as per an otherwise non-obese individual.".
(iii) Obesity as a disease
In his report filed with the Agency, Dr. Lau states that obesity is a common but serious chronic disease. Dr. Lau asserts that obesity is a longstanding and sometimes lifelong disease, which is preventable but not necessarily curable.
During his examination-in-chief, Dr. Lau states that he is of the opinion that obesity is a disease based on the following five assertions: (i) the WHO considers obesity to be a disease; (ii) obesity qualifies under the definition of disease contained in any medical dictionary; (iii) there are at least five or six single gene mutations that directly lead to the development of obesity; (iv) it is acceptable to define obesity as a disease in terms of a single symptom (i.e. excess body fat) as is done in respect of other diseases such as diabetes, for which a certain sugar level is the defining criterion; and (v) the fat cells in massively obese persons multiply excessively compared to the same cells in non-obese persons.
During further examination-in-chief, Dr. Lau notes that, although many obese persons suffer no obvious health problems as a consequence of their obesity, some diseases are asymptomatic but nonetheless still present.
B. The amicus curiae's final oral argument
In his final oral argument, the amicus curiae expresses the view that, in addition to addressing the question of whether obesity is a disability, the Agency must address the threshold issue of what is a disability or who is a person with a disability.
The amicus curiae asserts that the Agency should adopt, in whole or in part, the ICF model and definition of disability. The amicus curiae notes that the Supreme Court of Canada adopted the ICF model of disability in two cases, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665 (hereinafter Boisbriand) and Granovsky v. Canada (Minister of Employment and Immigration), [2001] 1 S.C.R. 703 (hereinafter Granovsky), which are discussed below. The amicus curiae expresses the view that the model of disability adopted by the Agency should be reasonable vis-a-vis human rights jurisprudence and the approach taken should be purposive and not set too high a threshold for the definition.
The amicus curiae notes that the Canadian Human Rights Act, R.S. 1985, c. H-6 (hereinafter CHRA) administered by the Canadian Human Rights Commission has a broad and liberal definition of disability and that, because the CTA incorporates a reference to the Commission, Parliament recognizes that the CTA deals with "quasi-constitutional rights". The amicus curiae expresses the view that, in order to effect the purpose of the legislation which it administers, the Agency should interpret it in a broad and liberal manner and, in cases of conflict with other types of legislation, the human rights legislation should prevail. The amicus curiae emphasizes that he is not suggesting that there is any conflict between the CTA and the CHRA but that the two acts should be read together in determining what is a disability.
The amicus curiae expresses the view that all three dimensions of disability - impairments, activity limitations, and participation restrictions - are reasonable definitions of disability. The amicus curiae also expresses the view that the definitions of disability that have been established and considered in Canadian human rights jurisprudence are reasonable definitions.
The views of the amicus curiae on the threshold question of disability are expressed in his discussion of the City of Boisbriand case. The amicus curiae notes that, in this case, the Supreme Court of Canada recognized that there need not be "functional limitations" in order for a disability to be present. The amicus curiae cites a section from the Supreme Court of Canada's ruling on the Boisbriand case which states that tribunals and courts have recognized that, even in the absence of functional limitations, various health problems, including obesity, may constitute grounds for discrimination. The amicus curiae asserts that the Boisbriand case shows that a finding of disability (on the basis of discrimination) can be made on the basis of an impairment; an impairment together with a participation restriction; or, in the case of discrimination based on a perceived disability, on the basis of a participation restriction alone. The amicus curiae further asserts that functional limitations "come into play in a hearing...at Phase II when we look at how activity limitations and structural barriers are obstacles, if at all." The amicus curiae clarifies that one undertakes an individual assessment when examining the issue in the human rights context.
The amicus curiae provides details of the Granovsky case in order to elucidate the Supreme Court of Canada's view of how one should examine the issue of disability in light of section 15 of the Charter. The amicus curiae expresses the view that the case shows that the true focus of disability analysis pursuant to section 15 of the Charter is neither on the impairment nor any associated functional limitations but rather on the problematic response of the state to either or both of these circumstances. The amicus curiae notes that the ruling of the Court states, "It is the state action that stigmatizes the impairment or which attributes false or exaggerating importance to the functional limitations, if any.". The amicus curiae notes that a text by Professor Bickenbach on disabilities and the WHO's international classification of diseases are cited with approval in the case.
In his discussion of the Granovsky case, the amicus curiae notes that the judgment states that disabilities do not need to be immutable. The amicus curiae uses the case to support his assertion that a person does not need to meet all three dimensions of disability in the ICF, i.e., impairment, activity limitation, and participation restriction, in order to be a person with a disability and to be, at the same time, a functioning member of society. Finally, the amicus curiae notes the Supreme Court of Canada's recognition that not all physical or mental impairments give rise to functional limitations and that this does not diminish the fact that there is a disability.
The amicus curiae highlights the explicit inclusion of obesity as an impairment in the ICF in addition to the medical evidence from Dr. Lau and Dr. Cheskin (reference may be made to page 21 for a discussion of Dr. Cheskin's evidence) and asserts that these are sufficient to show that obesity is a disability at the impairment level. Additionally, the amicus curiae notes that examples of activity limitations faced by obese persons were provided in the testimony of the various witnesses and that medical and statistical evidence of participation restrictions in the form of stigmatization and discrimination were similarly provided.
The amicus curiae expresses the view that, to require the entire class of obese persons to have bodily impairments and "functional limitations" in all cases in order for obesity to be a disability, represents an incorrect approach to the issue because it fails to examine disability based on an individual assessment, something which must happen at the next phase of the inquiry by the Agency. The amicus curiae further notes that, in order to know how many other obese persons face such limitations, one would have to, as suggested by Dr. Cheskin, make a determination on a case-by-case basis. The amicus curiae notes that both Professor Allison and Dr. Cheskin, witnesses for Air Canada, express the view that some obese persons face certain "functional limitations". The amicus curiae expresses the view that there "is no reason to hold obesity to a higher standard than any other alleged disability... it is common sense to assume that an obese person faces certain obstacles and has certain functional limitations.".
Finally, the amicus curiae expresses the view that the U.S. Notice of Proposed Rulemaking as presented by Lawrence Mentz, witness for Air Canada (reference may be made to page 23 for a discussion of Mr. Mentz's evidence), does not demonstrate that the United States Department of Transportation found that obesity is not a disability and that this offers no assistance to the Agency in determining whether obesity is a disability.
Linda McKay-Panos
Ms. McKay-Panos puts forth the position that obesity is a disability for the purposes of Part V of the CTA.
As noted above, Ms. McKay-Panos initially chose not to present evidence of her own, however, during the hearing, counsel for Ms. McKay-Panos requested leave to present evidence from Ms. McKay-Panos to establish three points: (i) that Ms. McKay-Panos has filed a complaint; (ii) that Ms. McKay-Panos is obese; and (iii) that Ms. McKay-Panos had difficulty fitting into the seat which she was assigned on the flight which gave rise to the basis of her complaint. The Agency considered the application for leave by counsel for Ms. McKay-Panos and decided that it would not hear evidence on the merits of the complaint during the hearing as this would be contrary to the terms of reference of the hearing as previously established by the Agency.
Given the foregoing, Ms. McKay-Panos' position is discussed here in terms of her brief filed with the Agency prior to the hearing and in her final oral argument.
In her brief, Ms. McKay-Panos argues that, because "disability" is not defined in the CTA, the Agency must determine the definition of the word and that, in so doing, the Agency must bear in mind the purposes of Part V of the legislation. Additionally, Ms. McKay-Panos expresses the opinion that the Agency must also examine other legislation which defines "disability" and case law which discusses the meaning of disability in various contexts. Ms. McKay-Panos emphasizes that, in arriving at a definition of "disability", regard must be given to jurisprudence from the Supreme Court of Canada, to a contextual analysis, and to the social model of disability as identified by the amicus curiae and approved by the Supreme Court of Canada.
Additionally, in her brief, Ms. McKay-Panos notes that the CTA already implicitly contemplates a contextual social model of disability because sections 170 to 172, inclusively, address "undue obstacles" to the transportation of persons with disabilities. Ms. McKay-Panos asserts that a contextual analysis is required in order to determine whether a particular policy, practice or rule creates an obstacle vis-a-vis a specific disability.
Ms. McKay-Panos' brief concludes that obesity is a disability for the purposes of Part V of the CTA. Ms. McKay-Panos notes that, while this question has been answered in many different and often inconsistent ways, support for her conclusion can be found in a careful and contextual analysis of case law, including that from the Supreme Court of Canada.
In her final oral argument, counsel for Ms. McKay-Panos notes that she adopts and agrees with the submissions of the amicus curiae made during his final oral argument.
Counsel for Ms. McKay-Panos expresses the view that the Agency should bear in mind three contextual factors when hearing the evidence, namely: (i) the factual context; (ii) the social context; and (iii) the legal context.
Regarding the factual context, counsel for Ms. McKay-Panos states that the Agency can look to the pleadings of the case in order to establish the basic premised facts for the hearing. In particular, counsel reminds the Agency that Ms. McKay-Panos had filed a complaint with the Canadian Human Rights Commission at the same time as she filed her application for an inquiry with the Agency and that this complaint is in abeyance pending the outcome of the Agency's inquiry into her complaint. Counsel for Ms. McKay-Panos emphasizes that this fact illustrates the concurrency of the jurisdiction of the Agency and the Canadian Human Rights Commission to deal with these types of issues in the same way.
Counsel for Ms. McKay-Panos further notes the following: (i) every witness agrees and acknowledges that there is stigma and discrimination associated with obesity and suffered by obese persons, notably women; (ii) the factual context is all important for the assessment of activity limitations and participation restrictions; (iii) the higher the level of obesity, the more health problems are faced by obese persons; and (iv) obesity is a serious health problem.
Regarding the social context, counsel for Ms. McKay-Panos notes that all of the witnesses agree that obese persons face stigma and discrimination. Counsel also notes that some of the witnesses agree that obese women likely suffer more in this respect than do obese men.
Concerning the legal context, counsel for Ms. McKay-Panos notes that section 15 of the Charter, the guarantee of equality provision, is the constitutional framework within which the Agency operates. It is further noted that section 32 of the Charter provides that it applies to Parliament and the Government of Canada and section 24 provides a potential remedy in the courts where there has been a breach of a Charter right.
Counsel for Ms. McKay-Panos refers the Agency to numerous cases, some of which are discussed here.
Counsel for Ms. McKay-Panos first refers the Agency to the Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 and Vriend v. Alberta, [1998] 1 S.C.R. 493 to highlight that the unifying theme behind the notion of protection in section 15 of the Charter is that of respect for human dignity.
Counsel for Ms. McKay-Panos then refers the Agency to the Eaton v. Brand County Board of Education, [1997] 1 S.C.R. 241 to illustrate what values are being protected under the Charter with respect to disability. Counsel cites specific paragraphs in the case, including the following extract:
Exclusion from the mainstream society results from the construction of our society based solely on 'mainstream' attributes to which disabled persons will never be able to gain access....the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which result in discrimination against them.
Counsel for Ms. McKay-Panos further directs the attention of the Agency to the Eldrige v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 (hereinafter Eldridge) in order to illustrate that discrimination and stereotype towards persons with disabilities are invidious in our society and that it is not necessary that every person in a group consider themselves to have a disability in order for there to be a legal finding that a health condition is a disability.
The case of British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 is cited by counsel for Ms. McKay-Panos in support of her position that there needs to be consistency between Charter analysis and human rights analysis and, additionally, that society needs to rethink how it defines "normal". Specifically, counsel notes that the court ruled in this case that standards in a workplace or otherwise should be designed to reflect all members of society insofar as reasonably possible; this being the notion of "universal design".
In order to underscore her view that the approach that the Agency should take is a human rights approach to interpreting disability, counsel for Ms. McKay-Panos next directs the Agency's attention to House of Commons Debates, Vol 129, No. 332, 2nd Sess., 33rd Parl., June 17, 1988 at 16572-16573 (hereinafter House of Commons debates) from June 17, 1988 and, specifically to statements made by the Minister of State (Transport):
...the amendments will require the National Transportation Agency and the Canadian Human Rights Commission to co-ordinate their activities in relation to the transportation of disabled persons...The laws of a country are a reflection of the values of its people. I invite Honourable Members today to join with the Government in this co-operative effort so that this legislation can be placed alongside the other laws of Canada that reflect its tradition for protecting human rights and values in Canada.
Additionally, counsel refers to a 1992 omnibus piece of legislation entitled An Act to amend certain Acts with respect to persons with disabilities, S.C. 1992, c. 21 which was designed to implement the federal government's strategy for addressing integration of persons with disabilities into mainstream Canadian society. Specifically, counsel for Ms. McKay-Panos refers the Agency to statements made by the Secretary of State of Canada, including the following:
Travelling without barriers is one of the most central concerns of people with disabilities. Without accessible transportation, full participation in Canadian life is not possible. For this reasons, Bill C-78 proposes to amend the National Transportation Act to directly acknowledge for the first time the importance of accessible transportation. The proposed amendment to the declaratory clause of the Act would ensure that our national transportation system meets the needs of travellers with disabilities.
Counsel for Ms. McKay-Panos emphasizes that the intent of the legislature at that time was to incorporate constitutional values and human rights values into how accessible transportation matters should be addressed.
Counsel for Ms. McKay-Panos submits that, even if the Agency wanted to explicitly reject the human rights approach, basic statutory interpretation principles would force the Agency to adopt it. Counsel explains that, even in respect of quasi-constitutional legislation, the statute must be read harmoniously with the scheme and object of the legislation and the intention of Parliament. As noted above, counsel asserts that there is historical evidence of an intent by Parliament that a human rights approach be taken with respect to legislation governing federally-regulated transportation. Finally, counsel notes that the Interpretation Act of Canada, R.S., c. I-23 deems that all legislation is "remedial and shall be given such fair, large, and liberal construction and interpretation as best assures the attainment of its objects.".
With respect to her assertion that the Agency needs to provide a reasonable definition for "disability", counsel for Ms. McKay-Panos emphasizes that the Agency must develop a legal definition and not a medical one. Counsel notes that Ms. McKay-Panos endorses the ICF model of disability supported by the amicus curiae and the WHO and expresses the view that it is a model that the Agency has already recognized in Decision No. 321-A-1997 dated May 26, 1997 relating to an accessible transportation complaint by George Berger, wherein the Agency determined that physical disability is not necessarily related to the medical certificate or medical condition. Finally, counsel for Ms. McKay-Panos expresses the view that a biomedical model of disability, if adopted by the Agency, would set too high a threshold.
Air Canada
In its brief filed with the Agency on August 29, 2001, Air Canada presents the position that obesity is not a disability for the purposes of the accessibility provisions of the CTA.
Air Canada states that obesity is not a disability under either the social or the medical model of disability. To the extent that the medical model is found to be appropriate, Air Canada asserts that obesity cannot be classified as a disease and, even if it were classified as such, there is no evidence that it is a disability. Air Canada acknowledges the association between obesity and numerous health conditions and diseases but states that, the most that can be asserted is that the prevalence of certain health conditions is higher in obese persons than in non-obese persons but that this is insufficient to conclude that obesity is a disability. Additionally, Air Canada submits that the analysis of obesity must have regard for empirically established associations between obesity and conditions which result in activity limitations and that a presumption of disability is neither scientifically sound nor therapeutically desirable. Finally, Air Canada submits that obese persons should not be blamed for their obesity and that the cause of obesity is not relevant to the instant issue.
Air Canada called three witnesses to support its position that obesity is not a disability for the purposes of Part V of the CTA: Professor David Allison, Dr. Lawrence Cheskin, and Mr. Lawrence Mentz.
A. Witnesses for Air Canada
Professor David Allison
Professor Allison holds a doctorate in clinical and school psychology and is a Professor of Biostatistics and Associate Director of the National Institutes of Health-fundDecember 12, 2001 at the University of Alabama at Birmingham.
Air Canada sought to qualify Professor Allison as an expert in statistics with particular expertise in: the identification of data relevant to assessing the association of body weight and various indicators of functional limitations and restrictions; the identification and analysis of that data using commonly accepted statistical methods; the identification and explanation of literature relevant to the definition of disease; the application of that literature as indication of obesity; and the epidemiology, genetic and environmental causes and the psychological aspects of obesity.
The Agency considered the submissions made by the parties in respect of the foregoing and accepted the qualification of Professor Allison sought by Air Canada.
(i) Characterization of obesity
In his report filed with the Agency entitled A Report on Obesity, Disease and Disability, Professor Allison characterizes obesity as a condition of excess accumulation of fat for which there are numerous causes ranging from and including "combinations of environmental, behavioural, and genetic aspects of energy intake, partitioning and expenditure." Professor Allison expresses the view that obesity is a very important public health problem which, during his examination-in-chief, he notes is increasing in prevalence. Under cross-examination by the amicus curiae, Professor Allison further notes that 80 to 85 percent of obese persons who do not undergo surgery remain obese for the majority of their lives.
(ii) Health-related quality of life and indicators of disability in obese persons
In his report, Professor Allison notes that there is an association between impairment of function and obesity but that there is no direct or inevitable co-occurrence between them.
Regarding the relationship between obesity and health-related quality of life, Professor Allison's report makes the following remarks concerning certain data presented in a paper published by K.R. Fontaine, L.J. Cheskin and Ivan Barofsky, "Health Related Quality of Life in Obese Persons Seeking Treatment" (1966) 43:3 Journal of Family Practice 265-279: (i) with respect to "physical functioning", approximately 36 times in 100 trials the obese person will report a higher health-related quality of life than the non-obese person; and (ii) with respect to "bodily pain", approximately 26 percent of the time, the obese person will report suffering less bodily pain than the non-obese person.
During his examination-in-chief, Professor Allison notes that, on average, obese persons have lesser health-related quality of life than do non-obese persons but that there is substantial variability within these two groups and that any one person from the non-obese group may have far lesser health-related quality of life than a person from the obese group and vice-versa.
Regarding the relationship between indicators of disability and obesity, Professor Allison's report presents the results of his analysis of data from the Third National Health and Nutrition Examination Survey (NHANES-III). Professor Allison examines the relationship between various BMI ranging from less than 18 to in excess of 40 and the following four indicators of disability: being confined to a wheelchair or stretcher; experiencing difficulty walking 1/4 mile; locomotor difficulty; and experiencing difficulty stooping, crouching, or kneeling.
Professor Allison sets out the following conclusions from his study of the NHANES-III data in his report:
- Unusually thin people (BMI<18) are generally at just as much or more at risk of impairment as severely obese people.
- Above a BMI of 18 there is a monotonic increasing relation between BMI and risk of impairment.
- For no category of impairment considered do the majority (i.e., more than 50 percent) of obese people have the impairment. This remains true even if very severe levels of obesity are considered (i.e., BMI>40).
Under cross-examination by the amicus curiae regarding the results of his analysis, Professor Allison acknowledges that he did not consider that many or some of the people in the NHANES-III study may be thin because they are suffering from various diseases but notes that this was because the objective of the study was not to show what is the independent causal relationship of the impairment or indicator of disability.
When asked by the amicus curiae under cross-examination what he considers to be an appropriate definition for disability, Professor Allison states that, in general, when someone is said to have a disability, it means that the person cannot, due to some impairment, participate in important aspects of life that most people are expected to be able to participate in most of the time.
Additionally, when asked by the amicus curiae about the conclusion in his report that there is a demonstrated association between obesity and various functional limitations and adverse health conditions, Professor Allison states that it is not accurate to say that obesity in and of itself is a disability because there are obese persons and non-obese persons who have disabilities and not all persons in either category are persons with disabilities.
Under cross-examination by counsel for Ms. McKay-Panos, Professor Allison states that, in order to make a determination whether an obese person has a disability, it is necessary to assess whether the person has functional limitations. Additionally, Professor Allison agrees with counsel for Ms. McKay-Panos that obese persons, and especially obese women, face stigma and discrimination.
(iii) Obesity as a disease
In his report, Professor Allison expresses the view that obesity cannot be properly classified as a disease because it "lacks a universal concomitant group of symptoms or signs and the impairment of function which characterize disease according to traditional definitions."
During his examination-in-chief, Professor Allison clarifies that there is nothing in the essential nature of obesity that qualifies it to be referred to as a disease in the English language uses of the word 'disease'; neither in medical nor ordinary English language dictionaries. More specifically, Professor Allison states that there is no additional characteristic beyond the defining characteristic of obesity (i.e., an excess of accumulation of fat) that is inevitably present and there is no evidence to show that the majority of obese persons definitively have deviations from normal structure or function. Finally, Professor Allison states that he does not accept Dr. Lau's assertion that elevated fat cell proliferation in Class III obese persons supports the notion that obesity is a disease because Dr. Lau did not present evidence that this is a sign that is present in all obese persons and not in non-obese persons.
In his report, Professor Allison expresses the opinion that, even should it be agreed that obesity is a disease, it would not necessarily mean that it is a disability. Conversely, Professor Allison asserts that should it be agreed that obesity is not a disease, it might still be a disability.
(iv) Models of disability
During his examination-in-chief, Professor Allison expresses the view that there are different definitions of disability appropriate for the examination of whether obesity is a disability, including the ICF model of disability.
Dr. Lawrence Cheskin
Dr. Cheskin is a medical doctor with a specialization in internal medicine and gastroenterology. Dr. Cheskin is the director of the Division of Gastroenterology and the director of Nutrition Support Service at the Johns Hopkins Bayview Medical Centre. Dr. Cheskin is the founder and director of the Johns Hopkins Weight Management Center. Dr. Cheskin is also an Associate Professor of Medicine at the Johns Hopkins University School of Medicine and an Associate Professor of International Health (Human Nutrition) at the Johns Hopkins School of Hygiene and Public Health.
Air Canada sought to qualify Dr. Cheskin as a medical doctor with expertise in the diagnosis, treatment, and prevention of obesity in addition to expertise in the state of health and health-related quality of life of persons who are obese. The Agency accepted the qualification of Dr. Cheskin being sought by counsel for Air Canada.
(i) Characterization of obesity
In his report filed with the Agency entitled Obesity: Neither Disease nor Disability, Dr. Cheskin states that obesity is a finding on physical examination. Dr. Cheskin expresses the opinion that a BMI of greater than thirty provides a reasonable practical definition of obesity. Under cross-examination by the amicus curiae, Dr. Cheskin agrees that obesity is a chronic medical condition and a major public health problem with significant societal costs.
(ii) Health-related quality of life and indicators of disability in obese persons
In his report, Dr. Cheskin notes that studies of health-related quality of life in obese persons examine various domains, including general health, vitality, bodily pain, mental health, and physical and social functioning. Dr. Cheskin expresses the opinion that obesity has, on average, a significant negative impact on all of these domains. However, Dr. Cheskin emphasizes that he does not consider that every impediment to functioning, decline in well-being, or presence of disease amounts to disability. Dr. Cheskin expresses the view that the significance of the impediment and the importance of the function must first be assessed before concluding that a person has a disability. Additionally, Dr. Cheskin notes that the degree of functional impediment cannot be predicted with any certainty merely from knowing that an individual is obese, regardless of the class of obesity, and can only be determined on a case-by-case basis.
During his examination-in-chief, Dr. Cheskin notes that more than the majority of the obese patients whom he has seen as a physician do not consider themselves to be disabled nor does he consider them to be so. Under cross-examination by counsel for Ms. McKay-Panos, Dr. Cheskin expresses the view that, when a person's health is impaired and there are impediments, it is a matter of a person's health-related quality of life and not a matter of disability.
During his examination-in-chief, Dr. Cheskin advises that, when he assesses whether an obese patient is disabled, which is usually done in the context of an application for disability benefits, he examines whether the patient demonstrates an "impairment of an activity". Dr. Cheskin expresses the opinion that for obese persons who are, in fact, disabled, it is the health condition and not the obesity that is the disabling factor.
Under cross-examination by the amicus curiae, Dr. Cheskin states that he does not consider obesity, per se, to be a disability. Dr. Cheskin clarifies that there would need to be a requirement for an activity limitation or a participation restriction at the level of the individual but that there may be conditions that, due to their nature, "virtually automatically" result in disability or a structural impairment or inability.
When questioned by the amicus curiae on the relevance of the indicators of disability taken from the NHANES-III survey which were chosen by Professor Allison for an assessment of activity limitations or obstacles faced by obese persons, Dr. Cheskin agrees that, in respect of an assessment pertaining to travel on a plane or in a train, sitting for long periods of time would be relevant. Dr. Cheskin also agrees that, if the concern was the ability to actually sit in a seat on a plane, train or bus, in the absence of specific evidence dealing with transportation, evidence of whether a person is able to sit in other aspects of their lives may be relevant. Additionally, Dr. Cheskin notes that getting up from a sitting position and carrying something that weighs ten pounds or more would be relevant indicators for an assessment of disability in respect of an obese person during travel.
In his report, Dr. Cheskin states that obesity is associated with increased risks of morbidity and mortality. Dr. Cheskin emphasizes that "associated with" does not impart the same meaning as "equal to". By way of example, Dr. Cheskin notes that cigarette smoking is associated with lung cancer and emphysema but knowing that a person smokes does not mean that he or she has or will have either of these diseases.
Dr. Cheskin's report further notes that similar health risks are found in obese and non-obese persons. Dr. Cheskin states that there may be no significant health risks in many individuals who are technically obese but for whom the excess fat is distributed elsewhere than around the waist. For these reasons, Dr. Cheskin expresses the view that it is unsound to rely on a particular weight or fat distribution measure as the cut-off point for defining a disability.
Dr. Cheskin makes the conclusion that it is "effectively ...open season on spurious and misleading assertions that any and all of the conditions that confer health risks, or that sometimes lead to true disability, are disabilities, if we decide that obesity, per se, at any level, constitutes a disability.".
(iii) Obesity as a disease
Dr. Cheskin expresses the view that obesity is a physical finding, a significant risk factor for many diseases, and sometimes a "marker" for a particular disease but that it is not, itself, a disease. Additionally, Dr. Cheskin states that obesity is usually not caused by a treatable disease but by a chronic ingestion of more food energy than is used by the body.
During his examination-in-chief, Dr. Cheskin expresses the view that obesity is not a disease because excess adiposity, the defining sign of obesity, is also the definition of obesity and a definition should not, according to the ICF, be circular. Additionally, when asked to express an opinion on the reasons given by Dr. Lau as to why he considers obesity to be a disease, Dr. Cheskin replies that: (i) he agrees that it is reasonable for the WHO to classify obesity as a disease, especially when the purpose is to highlight the importance of a health-related problem; (ii) it is appropriate to regard obesity as a disease in the rare cases where the person has a genetic mutation resulting in the inability to produce leptin (a hormone that is responsible for controlling food intake) because this is an etiology that inevitably gives rise to obesity; (iii) it is "within the range of possible interpretations" to consider a condition for which the person has no manifestations and which can be diagnosed using a simple test to be a disease; and (iv) the abnormal behaviour observed in fat cells of obese persons is limited to a subset of the obese.
Dr. Cheskin expresses the opinion that the fact that obesity is associated with increased risks of morbidity and mortality and has a negative impact on health-related quality of life, does not support the assertion that obesity is a disease or a disability. Finally, Dr. Cheskin expresses the opinion that a person may have a disease without having a disability and vice-versa.
Under cross-examination by the amicus curiae, Dr. Cheskin notes that he is not aware of any international organization or large national organization that has said that obesity is not a disease and acknowledges that the National Institutes of Health, the ICF, and the Food and Drug Administration have recognized obesity as a disease. Additionally, Dr. Cheskin notes that he is reluctant to label obesity a disease because there are components of recovery within the patient's control that he believes would be, to some extent, reduced if the disease label is used.
(iv) Models of disability
During his examination-in-chief, Dr. Cheskin expresses the view that certain impairments listed in the ICF are not reliable markers of disability and that obesity is one such impairment because "so many people who are obese are not disabled" in terms of activity limitations and participation restrictions. Dr. Cheskin expresses the opinion that activity limitations are the "crux" of the determination of disability and that participation restrictions are also very important.
Dr. Cheskin notes that health-related quality of life is relevant to the assessment of disability in obese persons and that this must be examined at the level of the individual.
Lawrence Mentz
Lawrence Mentz is an attorney-at-law licensed to practise in the United States.
Air Canada sought to qualify Mr. Mentz as a lawyer qualified to practise in the State of New York and in the District of Columbia and as an expert in the laws and regulations of the United States pertinent to the obligations of air carriers in respect of the carriage of passengers who are obese.
The Agency considered the submissions made by the parties in respect of the foregoing and accepted the qualification of Mr. Mentz sought by counsel for Air Canada. The Agency will take into account the submissions of the parties in weighing the evidence given by Mr. Mentz.
(i) United States Law
In his legal opinion filed with the Agency prior to the hearing, Mr. Mentz notes that the U.S. statute applicable to the transportation and treatment of passengers with disabilities is the Air Carrier Access Act, 49 U.S.C. § 41705 (1986) (hereinafter the ACAA). Mr. Mentz further notes that Part 382 of Title 14 of the U.S. Code of Federal Regulations contains a general prohibition of discrimination against passengers with disabilities, including a prohibition against U.S. air carriers imposing additional charges for accommodating passengers with disabilities.
Mr. Mentz states that there have not been any decisions by the U.S. Department of Transportation (hereinafter U.S. DOT) arising from enforcement proceedings against air carriers relating to the question of whether obesity is a disability or relating generally to obese passengers but that U.S. DOT has addressed the issue in the context of proposed amendments to Part 382 regulations. Mr. Mentz advises that a Notice of Proposed Rulemaking concerning seating accommodations for individuals with disabilities and the stowage of collapsible wheelchairs, 61 Fed. Reg. 56481 (1966) to amend Part 382 sought comments on whether U.S. DOT should change its approach to viewing the practice by air carriers of charging for two seats occupied by obese passengers as being consistent with the ACAA and as being non-discriminatory.
Mr. Mentz advises that, in 1998, U.S. DOT adopted its final rule on amendments establishing procedures for providing seating accommodations for individuals with disabilities and to clarify the general nondiscrimination obligations of carriers, 63 Fed. Reg. 10528 (1998). With respect to seating accommodations for obese passengers, U.S. DOT reiterated that air carriers are not required to provide more than one seat to a passenger per ticket, such that an obese passenger who occupies two seats could be required to purchase two tickets. Mr. Mentz concludes that, based on these pronouncements by U.S. DOT and, in the absence of any contrary U.S. DOT authority, obesity, per se, is not considered a disability under either the Part 382 regulations or the ACAA. During his examination-in-chief, Mr. Mentz elaborates on his conclusion by asserting that U.S. DOT does not consider obesity to be a disability because it allows air carriers to charge for a second seat, which is prohibited under Part 382 regulations in cases of accommodation for persons with disabilities.
Under cross-examination by the amicus curiae, Mr. Mentz clarifies that the 1996 proposed amendments to Part 382 of the regulations did not include a proposed rule pertaining to accommodation for obese passengers and that U.S. DOT was simply seeking comments on its approach to addressing inquiries about obese passengers. Additionally, Mr. Mentz agrees with the amicus curiae that there is no indication in the final rule issued by U.S. DOT in 1998 that it received any comments regarding the matter nor that U.S. DOT is of the view that obesity is not a disability.
B. Air Canada's final oral argument
Counsel for Air Canada began its final oral argument by stating that it accepts the ICF model for the purposes of the hearing and asks the Agency panel to evaluate the evidence put forth by Air Canada using the ICF to guide it.
Concerning how courts have viewed obesity, Air Canada notes that, to the best of its knowledge, no tribunal has found that obesity is, in itself, a disability; rather, tribunals have found that certain obese persons have disabilities in certain circumstances. Air Canada expresses the view that, where courts have found that obese persons are disabled, it has been on the basis of perceived disability; usually in an employment context. Air Canada asserts that, while it is appropriate in such cases to find that obesity is a disability, it cannot be said that obesity, per se, is a disability. Air Canada asserts that there is a large number of obese persons who do not have a relevant disability in the context of transportation. Nonetheless, Air Canada supports the position that there are some persons whose obesity causes them to have a disability.
Air Canada explains that in the Boisbriand case, the Supreme Court of Canada cites, with approval, the case of Saskatchewan (Human Rights Commission) v. St. Paul Lutheran Home of Melville (Sask. C.A.), [1993] S.J. No. 59. Air Canada explains that, in this case, the Saskatchewan Court of Appeal unanimously rejected the view that obesity per se is a disability. Air Canada notes, however, that the Court of Appeal recognized that obesity might be a disability in some circumstances and that this position is accepted by the Supreme Court of Canada. Air Canada emphasizes that the Saskatchewan Court of Appeal's decision explicitly allows for an obese person in the future to prove that he or she has a disability caused by obesity:
In conclusion, we should like to say that our decision here is case specific. In other words, we are not saying that a case of employment discrimination grounded in obesity can never succeed. It may be that a case of discrimination grounded in physical disability attributable to obesity can succeed if it is established that obesity is, in fact, an illness or that the obesity at issue was caused by illness. We are not saying that such a case would succeed. We are only saying that our decision is not to be taken as foreclosing that possibility.
Air Canada acknowledges that there are certain conditions which could be identified as ones which, in themselves, deserve to be recognized as disabilities. Air Canada also asserts that the amicus curiae's position that it is common sense to assume that obese persons face obstacles is contrary to the position advocated by the WHO, the ICF and Professor Bickenbach.
Air Canada notes that it recognizes that one of the primary objectives of Part V of the CTA is to remove undue obstacles and that the legislation should be given a broad, liberal, and purposive approach. However, it expresses the view that the Agency is not "a human rights type of commission or tribunal".
Air Canada notes that, in order to take remedial action in a complaint filed pursuant to Part V of the CTA, the Agency must determine that: (i) there is a person with a disability; (ii) the person has encountered an obstacle and; (iii) the obstacle is undue. With respect to the issue at hand, Air Canada submits that "the very most that has been hinted in the case brought by the complainant and the amicus curiae...is that perhaps obese people encounter an obstacle." Air Canada further submits that the 'obstacle' is that certain obese people cannot fit in certain seats. However, Air Canada asserts that, while it agrees that there are some obese persons whose obesity causes disabilities, no evidence has been presented to establish which obese persons face obstacles and what disabilities they have. Additionally, Air Canada asserts that it is improper to rely on the obstacle and make that the disability.
Air Canada clarifies what it considers to be the issue to be determined by asserting that it is not whether: (i) a particular obese individual is disabled; (ii) such an individual is disabled by obesity; (iii) there exist some obese individuals who may be disabled. Air Canada asserts that there is no justification for ruling that obesity is a disability; rather, there needs to be an inquiry into an individual case as to whether the obesity of a person causes that person some disability.
Air Canada asserts that, in order to prove that obesity results in disability, there is something more than unusual stature that is required. Air Canada supports this view by noting that an informed consideration of the ICF shows that it would be contrary to common sense if physical stature alone were sufficient to establish disability. Air Canada emphasizes that, under cross-examination, Professor Bickenbach agreed with Air Canada's position that impairment alone is insufficient to determine disability. Air Canada supports this view by noting that, if impairment alone were sufficient and given that the ICF classifies both obesity and overweight as impairments of the weight maintenance functions, at least 60 percent of the North American population would be disabled. Additionally, Air Canada notes that, while physical stature may result in obstacles in getting into a seat, a finding of disability must go beyond this; otherwise, the conclusion would be that most athletes of large stature are persons with disabilities.
Air Canada states the view that it is necessary to go beyond impairment and find either an activity limitation or a participation restriction in order to determine that there is a disability. Air Canada further expresses the opinion that the activity limitation or participation restriction would need to be "significant"; in other words, an activity or level of participation which society considers the majority of people ought to be able to undertake. Despite these views, Air Canada also notes that it agrees with the position of the Supreme Court of Canada as reflected in the Granovsky case, which is discussed above in the section setting out the final oral argument of the amicus curiae, that when a person is treated as having a disability and consequently is precluded from participating in society, that is a disability in itself.
Air Canada emphasizes that the determination of whether there exists an activity limitation or a participation restriction must be fact-driven and that the ICF does not allow one to make any assumptions in this regard. However, Air Canada acknowledges that, from a practical perspective, reliance may also be placed on common sense and it recognizes that there are some impairments, such as quadriplegia, for which one can conclude that there are inevitably relevant activity limitations and participation restrictions. Nonetheless, Air Canada reminds the Agency that, even for conditions like quadriplegia, one should inquire specifically as to what the person can participate in and do.
Air Canada asserts that obesity is an impairment of the type for which common sense is not very effective in determining whether a person has a relevant limitation or restriction. Air Canada further expresses the opinion that there is a paradox surrounding the classification by the ICF of overweight and obesity as an impairment. Air Canada explains that, in order to be classified as an impairment, a condition must be a significant deviation from a statistical norm; however, given that more than half of the North American population is either overweight or obese, Air Canada asserts that being of such weight no longer represents a significant deviation from the norm.
Regarding the evidence put forth on the question of whether obesity is a disease, Air Canada asserts that, even if it were agreed that obesity is a disease on the basis that it is one which may show no symptoms akin to asymptomatic diabetes, there would still be no evidence of any relevant activity limitation or participation restriction which would support the conclusion that obesity is a disability.
With respect to the evidence put forth by the parties regarding the association between various co-morbidities and obesity, Air Canada asserts that the evidence, in fact, shows that the majority of persons who are obese are not affected by the co-morbidities. Air Canada acknowledges that the statistics do show that the prevalence of co-morbidities increases with increasing BMI and that, at the highest levels of obesity, the prevalence approaches 25 percent. However, Air Canada emphasizes that this also shows that 75 percent of obese persons do not develop the co-morbidities. Air Canada notes that the absence of a direct correlation between obesity and any co-morbidity supports the conclusion that obesity is not, itself, a disability. Additionally, Air Canada asserts that, even if there were a direct correlation between obesity and a co-morbidity such as diabetes, one can still not assume that there would be an activity limitation or participation restriction which would allow one to conclude that there is a disability. Finally, while Air Canada acknowledges that obese persons have an increased risk for certain health conditions, the mere fact of increased risk does not justify the conclusion that obesity is a disability.
With respect to the evidence put forth by the parties regarding the association between reduced health-related quality of life and obesity, Air Canada draws the same conclusions as it does with the evidence regarding the association between co-morbidities and obesity; namely, that the association is accidental and occasional and not an essential and directly correlated association which is necessary for a finding that obesity is, per se, a disability.
While Air Canada notes that disabilities usually manifest themselves in the form of activity limitations and that this would be the expected form of disability pertinent to transportation, it acknowledges that disabilities may also arise in the context of participation restrictions. However, Air Canada also expresses the view that this would be unusual in the context of transportation and that participation restrictions normally arise in employment cases when there are discriminatory policies in place.
In terms of social stigma faced by persons who are obese, Air Canada expresses the opinion that the evidence pertaining to this problem supports the conclusions it makes regarding the association between obesity and activity limitations. By way of example, Air Canada notes that the results from the Swedish study on obese subjects show that the increase in anxiety and depression was in respect of a limited segment of the obese population and that, again, there is no direct correlation with obesity.
Regarding the position of U.S. DOT vis-a-vis obesity as a disability, Air Canada expresses the view that there are indications that U.S. DOT has concluded that obesity is not a disability. Air Canada argues that the issue has been raised and considered by U.S. DOT. In making this argument, Air Canada first notes that the ACAA requires air carriers to provide a seat that the passenger can "readily access and use.". Air Canada asserts that, if obesity were considered by U.S. DOT to be a disability and if an obese person being unable to access and use a regular seat were a disability, another seat would need to be provided without charge. Air Canada argues that because U.S. DOT allows air carriers to charge an obese passenger for a second seat, it "must have decided that the inability to access a single seat is not a disability.".
ANALYSIS AND FINDINGS
In making its findings, the Agency has considered all of the evidence submitted prior to and during the oral hearing into the preliminary jurisdictional issue, however it is not related here in its entirety as it is contained in the official transcripts and submissions filed by the parties which may be found in the public file.
The Agency's legislative mandate with respect to persons with disabilities is found in Part V of the CTA. Part V contains a regulation making authority and a complaint adjudication authority, both for the express purpose of removing undue obstacles to the mobility of persons with disabilities from the federal transportation network. The two provisions are linked in that the regulation making authority provides an inclusive list of subject matters which is adopted in the complaint adjudication authority.
Subsection 170(1) of the CTA states that:
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
(a) the design, construction or modification of, and the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them;
(b) the training of personnel employed at or in those facilities or premises or by carriers;
(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.
Subsection 172(1) of theCTA states that:
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.
Ms. McKay-Panos' complaint against Air Canada was filed pursuant to subsection 172(1) of the CTA and the Agency must now determine whether she is a person with a disability for the purposes of Part V of the CTA. In order to so determine, the Agency must consider whether obesity is a disability for the purposes of Part V of the CTA and it decided that, in order to do so, it needed to hear expert evidence and have it tested in an oral hearing.
There is no definition in the legislation for the terms 'disability' or 'persons with disabilities'. In the vast majority of cases decided by the Agency, the question of whether the applicant is a person with a disability has not been contentious. In the case of obesity, however, the issue is more complex and is new to the Agency. As such, the Agency requires further consideration and analysis. During the closing arguments, the parties have indicated their agreement that Part V of the CTA deals with an important issue, the transportation of persons with disabilities, and that, as such, this legislation should be given a broad, liberal, and purposive interpretation. In this respect, the Agency is of the opinion that the interpretation of Part V of the CTA is at the core of the issue before it.
Canada's national transportation policy, found in section 5 of the CTA, makes it clear that one objective of the legislation is to ensure that the federal transportation network is accessible, without undue obstacles, to persons with disabilities:
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 travellers, 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. [Emphasis added]
The historical context of the enactment of these provisions provides additional indication of the purpose to be achieved. In February 1981, the House of Commons Special Committee on the Disabled and the Handicapped tabled a report entitled "Obstacles" that included conclusions as to how obstacles encountered by persons with disabilities negatively affected their life and their participation in society. When dealing with transportation, "Obstacles" recommended a series of actions aimed at removing obstacles encountered by persons with disabilities when travelling. These recommendations led to the inclusion of the provisions that are now, with modifications, found in Part V of the CTA.
On June 17, 1988, the Minister of State (Transport), stated the following in the House of Commons debates regarding the enactment of the accessible transportation provisions in the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.) (the predecessor to the CTA):
It is truly a pleasure to rise in the House today and introduce for second reading a Bill which provides the means for ensuring that Canadians with disabilities are provided fair and dignified access to our national transportation system ... Accessible transportation is key to providing persons with disabilities the opportunity for full integration into the mainstream of Canadian life ... The laws of a country are a reflection of the values of its people. I invite Hon. Members today to join with the Government in this co-operative effort so that this legislation can be placed alongside the other laws of Canada that reflect its tradition for protecting human rights and values in Canada. [Emphasis added]
Finally, the Agency notes that section 171 of the CTA requires the Agency and the Canadian Human Rights Commission to "... 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.".
As a result of the above, the Agency concludes that Part V of the CTA is, by its nature, human rights legislation aimed at removing undue obstacles to the mobility of persons with disabilities in Canada's transportation system. As such, the direction of the Supreme Court of Canada for interpreting such provisions provides useful assistance. In C.N.R. v. Canada (Human Rights Commission) [1987] 1 S.C.R. 1114, that Court indicated at page 1134:
24. Human rights legislation is intended to give rise, among other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained. See s. 11 of the Interpretation Act, R.S.C. 1970, c. I-23, as amended.
Thus, the interpretation of Part V of the CTA and the phrase 'persons with disabilities' requires a consideration of the objectives enunciated in section 5 of the CTA as articulated by the specific provisions in question. Based on the direction of the Supreme Court of Canada, the Agency finds, consistent with the proposition of the parties, that this legislation should be given a broad, liberal, and purposive interpretation.
It is with this framework in mind that the Agency now turns to the analysis of the evidence tendered in this file to assist the Agency in determining whether obesity is a disability for the purposes of Part V of the CTA.
The Agency has carefully considered all of the evidence pertaining to the question of whether obesity is a disability for the purposes of Part V of the CTA. The principal points of evidence presented by the parties and those which the Agency considers to be most important in the determination of this matter are analyzed below in terms of the following issues: A. Obesity and its implications for health and health-related quality of life; B. Obesity in the context of the ICF Model of Disability; C. The Agency's approach to the assessment of whether obesity is a disability.
The Agency has considered the evidence presented by Mr. Mentz on behalf of Air Canada in respect of the United States legislation applicable to the obligations of air carriers in respect of the carriage of obese persons. While this evidence was found to be informative, the Agency finds that the interpretation of the legislation made by the U.S. DOT is not binding on the scope of Part V of the CTA. As such, no analysis of this evidence is provided herein.
A. Obesity and its implications for health and health-related quality of life
The Agency notes that there was general agreement among the parties that obesity is a chronic health problem with a complex etiology, which is generally regarded as resulting from an imbalance in favour of energy consumption over energy expenditure. The Agency further notes that the parties agreed that a BMI which is equal to or greater than 30 represents a reasonable operational definition of obesity.
(i) Obesity as a disease
There was a substantial amount of evidence presented by the amicus curiae and Air Canada on the question of whether obesity is a disease, with the amicus curiae presenting evidence to suggest that obesity is a disease and Air Canada presenting evidence to support the contrary. While the amicus curiae indicated that he does not believe that it is necessary to find that obesity is a disease to determine if it is a disability, he noted that his objective in presenting such evidence was to remove the stigmatization associated with obesity while addressing the inappropriate attitudes held by society towards it.
The notion that a health condition needs to be a disease in order for it to be considered a disability is reflective of attitudes towards disabilities which reveal themselves in many contexts within society. The Agency considers it important to note the views of the parties on certain of these attitudes, namely those pertaining to causality, immutability, voluntariness, and severity. The Agency notes that Professor Bickenbach commented that it is a common misconception that a disability must be something rare and of such severity that the person is permanently incapacitated. The Agency also notes that the amicus curiae and Air Canada expressed the view that personal responsibility for a health condition is irrelevant in determining whether there is a disability. Finally, the Agency notes that the amicus curiae and Air Canada both expressed the view that the cause of obesity is not relevant to the present matter. The Agency finds it noteworthy that there is agreement among the parties that the foregoing attributes of health conditions are not relevant for the determination of disability for the purposes of Part V of the CTA.
The Agency notes that, while there was disagreement between the amicus curiae and Air Canada as to whether obesity is a disease, there was a consensus among the parties that it is not necessary for a health condition to be a disease in order for it to be a disability. The Agency agrees with the parties that a health condition can be considered to be a disability for the purposes of the accessibility provisions of the CTA without it being a disease. Many health conditions, such as quadriplegia, undeniably result in disabilities; however, in many cases these health conditions are not diseases, for example, when they result from trauma. As such, while the Agency finds that the evidence presented in respect of whether obesity is a disease is informative, it is of the opinion that the matter is not determinative of the issue of whether obesity is a disability for the purposes of Part V of the CTA.
(ii) Obesity and associated health problems, co-morbidities and health-related quality of life
Uncontradicted evidence was presented that there is an association between obesity and numerous health problems, some of which can shorten a person's life, and that the prevalence of certain of these is greater among obese persons than among non-obese persons.
The amicus curiae presented evidence in support of the position that obesity is associated with many health problems, including co-morbidities, which can lead to disability. He also presented evidence which indicated that the degree of obesity is a significant factor in whether such health problems will arise.
Air Canada, on the other hand, argued that one cannot conclude that obesity is a disability based merely on the fact that there is an association between obesity and many health problems, including co-morbidities, and that there is an increased prevalence of such problems among obese persons. The Agency accepts this argument and notes, in support of this position, the evidence given that there are persons who, because they have a BMI in excess of 30, are technically obese but do not have health problems. The Agency notes that individuals and, in particular, athletes, may meet the definition of obesity but do not necessarily have health problems because of this.
The Agency notes that Air Canada also argued that there needs to be a direct correlation between obesity and a co-morbidity or reduced heath-related quality of life in order for one to conclude that obesity is a disability. The Agency finds that the correlation between obesity and a co-morbidity or reduced health-related quality of life is not a relevant factor in the determination of the present matter.
Finally, the Agency notes the assertion made by Professor Bickenbach that health-related quality of life, which reflects a self-assessment of the impacts of disability on one's life, does not substantiate the existence of disability, as this must be done in an objective manner.
Accordingly, the Agency finds that the evidence presented in respect of the health problems, co-morbidities and health-related quality of life associated with obesity does not determine whether obesity is a disability for the purposes of Part V of the CTA.
B. Obesity in the context of the ICF model of disability
The parties agreed that it is appropriate for the Agency to consider the preliminary jurisdictional question of whether obesity is a disability for the purposes of Part V of the CTA in the context of a model of disability and that the WHO's ICF model of disability is an appropriate model for this purpose.
The Agency notes the evidence given by Professor Bickenbach that the ICF was developed in consultation with representatives of member states of the WHO, classification experts, professional organizations, and representatives from various international organizations of the allied health professions and disability rights groups and that the ICF was written in such a way so as to ensure common understanding and use by all member states. The Agency also notes that the development of the ICF was a consensus-building operation involving arbitration, a complex linguistic evaluation process, and a balancing act between science and political demands. Finally, the Agency acknowledges that the ICF was ratified by the WHO's 191 member states in May 2001. The Agency recognizes the value of the WHO's classification instruments, including the ICF, for assessing the implications of a health condition, both medically and socially.
In view of the fact that the Agency's mandate in accessible transportation is participation-oriented, the Agency is of the opinion that the ICF could be useful in the future in its analysis of disability issues.
The Agency notes that the amicus curiae argued that the impairment, alone, is relevant to the preliminary jurisdictional issue of whether obesity is a disability for the purposes of Part V of the CTA, such that activity limitations and participation restrictions need only be considered by the Agency in its determination of whether a person with a disability encountered an obstacle to his or her mobility in the context of the federal transportation network. The Agency is of the view that the activity limitations and/or participation restrictions experienced by a person may be relevant to the determination of whether a health condition is a disability. Accordingly, the Agency has analyzed the evidence given in respect of the present matter in terms of the impairment, activity limitation, and participation restriction dimensions of disability reflected in the ICF.
(i) Impairment dimension of disability
Evidence was presented that the WHO's ICF model of disability views an 'impairment' as being a problem in body function or structure, including the absence of a function or structure, a decrement in power or strength of a function, or a deviation in functioning. Evidence was also presented that the ICF recognizes obesity as a body function impairment pertaining to the maintenance of acceptable BMI.
The Agency notes the assertion made by the amicus curiae that each of the ICF dimensions of disability provides a reasonable definition of disability. The Agency further notes the amicus curiae's assertion that, because of the inclusion of obesity as an impairment in the ICF, obesity is a disability at the impairment level.
The Agency finds, however, that impairment alone, in the present matter, is insufficient to determine the existence of a disability. The Agency notes Air Canada's argument that basing disability on impairment alone can lead to inappropriate conclusions regarding disability. The Agency further notes Air Canada's observation that, based on current average body weights for the North American population, using such an approach would mean that approximately 60 percent of this population would be technically disabled as 'overweight', defined as a BMI which is between 25 and 29.9, is also included in the ICF as an impairment.
The Agency notes that there was a consensus of the parties that there needs to be an activity limitation and/or a participation restriction in order for a health condition to be a disability.
The Agency also notes that there was agreement among the parties that the Agency's examination of whether a health condition is a disability for the purposes of Part V of the CTA requires an analysis to be conducted in the context of the federal transportation network. The Agency accepts the positions of the parties in this regard, as reflected in the following discussions on the activity limitation and participation restriction dimensions of disability.
(ii) Activity limitation dimension of disability
Professor Bickenbach noted that the ICF model of disability views an 'activity limitation' as being an incapacity, inability or other inherent difficulty in executing a task or action.
In respect of activity limitations, the amicus curiae commented that the Supreme Court of Canada has found that a 'functional limitation' need not be present in order for there to be a finding of disability. However, the Agency notes that, where courts and tribunals have held this view, it has been in the context of complaints regarding discrimination on the basis of perceived disability. In the present case, the Agency must determine whether a particular health condition constitutes a disability for the purposes of Part V of the CTA in order to ascertain whether people with this health condition are entitled to benefit from those provisions. As such, the issue of perception is not relevant to the Agency's task at hand.
The Agency notes that Professor Bickenbach asserted that whether there will be activity limitations in a particular case or from a population health point of view requires fact-based evidence and is neither an a priori matter nor a definitional matter like it is for the impairment dimension. The Agency further notes Professor Bickenbach's statement that it is prejudicial to make inferences about activity limitations (or participation restrictions) from impairments. Finally, the Agency notes that Air Canada agreed with these assertions and, inasmuch as Ms. McKay-Panos asserted that a contextual analysis is required, that she, too, agreed with Professor Bickenbach's assertions.
The Agency notes that there was uncontradicted evidence that some obese persons experience certain activity limitations. In particular, the Agency notes that Professor Allison presented evidence that there is an increasing relation between BMI and the risk of experiencing a functional disability. However, the Agency notes that the evidence presented by Professor Allison showed that, for none of the indicators of disability examined did the majority of obese persons experience the activity limitation. The Agency also notes that the medical experts agreed that there is no specific BMI beyond which activity limitations and/or participation restrictions will inevitably be present.
The Agency notes that there was disagreement between the parties as to whether Professor Allison's study examined indicators of disability which are relevant to the context of the federal transportation network. However, the Agency is of the view that it does not have to make a finding on the nature of the disagreement because, while the Agency finds that the evidence which Air Canada presented in this regard was informative, it does not determine whether obesity is a disability for the purposes of Part V of the CTA.
(iii) Participation restriction dimension of disability
Evidence was presented that participation restrictions are generally attitudinal or structural in nature. In terms of attitudinal-type participation restrictions, there was agreement among the parties and the experts that obese persons face stigma and discrimination in many facets of their functioning in society.
However, the Agency notes that the ICF model of disability requires that the identification of a disability be made in light of a specific context. With respect to the determination of whether a person experiences a participation restriction, the ICF requires the consideration of whether the person has a disability in respect of a specific function by determining if the person can or cannot participate in that specific function. Consistent with this, Professor Bickenbach expressed the view that whether there is a participation restriction is not an a priori matter and must be determined on a case-by-case basis.
C. The Agency's approach to the assessment of whether obesity is a disability
The Agency notes that the position of the amicus curiae, as accepted by Ms. McKay-Panos, was that the parties agreed that some obese persons experience activity limitations and/or participation restrictions and that evidence was presented in support of this. The Agency notes, however, that the amicus curiae also expressed the view that, in order to determine the extent of such activity limitations or participation restrictions, and in order to be consistent with a human rights approach, the Agency would need to undertake an assessment on an individual case basis.
The Agency notes the position of Air Canada that, in order for the Agency to determine whether obese persons are persons with disabilities, it must either make a determination on a case-by-case basis or it must rely on sample studies of the obese population and make inferences from the sample results about the entire population of obese persons. In respect of the latter approach, the Agency notes that Professor Bickenbach asserted that it is inappropriate in the context of human rights adjudication to make inferences about activity limitations and participation restrictions from the results of a sample study. The Agency notes that Professor Bickenbach further asserted that the ICF model of disability requires empirical evidence in respect of each of the dimensions of disability and that to make inferences in the abstract and in the absence of detailed information about the context, is prejudicial. Finally, the Agency notes that Professor Bickenbach expressed the view that the consequences of a given impairment may be inconsequential, harmful or beneficial and cannot be determined without knowing the context.
The Agency notes that Air Canada expressed the view that it may be appropriate in the case of some impairments to rely on common sense to conclude that there are activity limitations and/or participation restrictions which inevitably occur while the amicus curiae argued that it is common sense to assume that obese persons face obstacles and have certain functional limitations. The Agency notes that Air Canada disagreed with the amicus curiae on this position and asserted that it is contrary to that advocated by the WHO, the ICF and Professor Bickenbach.
The Agency agrees that there are health conditions or impairments for which it may be reasonable in some contexts to rely on common sense to conclude that there will be activity limitations and/or participation restrictions as a result of the underlying impairment. However, despite Professor Bickenbach's assertion that it is intuitively obvious that obese persons will face stigma and denial of opportunity and, while it is indisputable that the social reception of obesity is often discriminatory, the Agency finds that no evidence was presented which would support the conclusion that obese persons necessarily experience participation restrictions in the context of the federal transportation network. In addition, the Agency finds that the medical evidence given in respect of the nature of obesity is such that it is not reasonable to assume that every obese person will experience activity limitations and/or participation restrictions.
In light of the foregoing, the Agency finds that the determination of whether an obese person experiences activity limitations and/or participation restrictions in a particular context requires an analysis of each case based on its own merits.
SUMMARY OF FINDINGS
In summary, the Agency finds that:
(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.
CONCLUSION
The Agency concludes that, based on the submissions of the parties and the evidence heard and tested during the oral hearing, obesity, per se, is
not a disability for the purposes of Part V of the CTA. Notwithstanding this, the Agency finds that the evidence suggests 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.
Therefore, the Agency will continue to examine, on a case-by-case basis, whether a person who is obese is in fact a person with a disability for the purposes of the accessible transportation provisions of the CTA.
In light of the above, the Agency will now proceed to inquire into the applications filed by Linda McKay-Panos and other persons who are obese, in order to determine whether, in each case, they in fact have a disability for the purposes of Part V of the CTA.