Decision No. 567-AT-A-2002
Decision is set aside - Federal Court of Appeal Decision (2006FCA 8)
October 23, 2002
File No. U3570/97-21
On November 19, 1997, Linda McKay-Panos filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.
On December 12, 1997, Air Canada requested an extension until January 23, 1998 to file its answer to the application, and the Agency, by Decision No. LET-A-334-1997 dated December 16, 1997, granted Air Canada the requested extension.
On January 23, 1998, Air Canada filed its answer to the application, and on February 3, 1998, Ms. McKay-Panos filed her reply to the carrier's answer.
Further to these pleadings, the Agency initiated a series of consultations aimed at gathering additional information that would assist in its findings. These consultations are explained in Decision No. 646-AT-A-2001 dated December 12, 2001(hereinafter the Calgary Decision).
This application has raised for the first time before the Agency the question of whether obesity is a disability for the purposes of Part V of the Canada Transportation Act (hereinafter the CTA). To deal with this issue, the Agency held an oral hearing in Calgary from September 24 to 27 and October 1 to 3, 2001. Further to the hearing, the Agency issued the Calgary Decision on December 12, 2001. In that Decision, the Agency, after analyzing the expert evidence heard and tested during the hearing, concluded that obesity, per se, is not a disability for the purposes of Part V of the CTA but that there may be persons who are obese who may have a disability for the same purposes because of their obesity. The Agency also indicated that it would therefore proceed on a case-by-case basis to decide whether a person who is obese is also a person with a disability for the purposes of the accessible transportation provisions of the CTA.
In accordance with the Calgary Decision, the Agency decided to open pleadings to assess whether Ms. McKay-Panos has a disability. Ms. McKay-Panos filed her submission on this question on January 29, 2002. Air Canada filed its answer to Ms. McKay-Panos' submission on March 1, 2002 and Ms. McKay-Panos filed her reply to the carrier's answer on March 20, 2002.
Concurrently, on December 20, 2001, the Council of Canadians with Disabilities (hereinafter CCD) applied to intervene in the proceedings. The Agency advised both parties of CCD's request and invited them to file their comments with the Agency. Air Canada filed its comments on CCD's request on January 9, 2002. Ms. McKay-Panos did not file comments. In its Decision No. LET-AT-A-21-2002 dated January 23, 2002, the Agency refused to grant CCD intervener status.
The issue to be addressed is whether Ms. McKay-Panos has a disability for the purposes of Part V of the CTA.
POSITIONS OF THE PARTIES
Ms. McKay-Panos explains that on June 14, 1997, she contacted Air Canada to book a return ticket to travel between Calgary and Ottawa, leaving Calgary on August 21, 1997 and returning on August 24, 1997. Ms. McKay-Panos states that during the telephone conversation, she informed the Air Canada agent of her weight and size and asked whether the seats would accommodate her. She also offered to purchase two economy-class seats or one business-class seat. Ms. McKay-Panos submits that the carrier's agent told her that there was no need for her to purchase two seats as a bulkhead seat provides more room than any other economy-class seats. She adds that the Air Canada agent also confirmed that bulkhead seats are assigned to larger people.
Ms. McKay-Panos contends that when she boarded the aircraft in Calgary on August 21, 1997, she had great difficulty forcing herself into her passenger seat. She indicates that neither herself nor the person seated beside her could access the chair tables because her hips spread into the armrests, which is where the chair tables are located on bulkhead seats. She was also bumped into by flight attendants or their carts. She explains that during the one-hour stopover in Toronto, she was in great pain and had to stand for the whole hour. When the aircraft took off for the Toronto-Ottawa portion of her trip, she was offered a seat in an available business-class seat.
Ms. McKay-Panos indicates that on August 22, 1997, she "was in terrible pain and was unable to get out of bed for several hours." She states that, as a result, she telephoned Air Canada to make arrangements for her return flight and that she was advised, at that time, that the subject flight was oversold and that she could not move to another economy class-seat. She was, however, advised by the Air Canada agent that she could buy a business-class seat for the Toronto-Calgary portion of her return flight. Ms. McKay-Panos adds that when she arrived at the Ottawa Airport on August 24, 1997, she asked the Air Canada agent at check-in whether changes could be made to her seating accommodation. According to Ms. McKay-Panos, she was informed that it was impossible to make any changes to her seating accommodation as the flight was oversold and that she could ask for a reconsideration of her request upon arrival of her flight at the Toronto airport. Ms. McKay-Panos advises that upon her arrival at Toronto, Air Canada refused to move her into the business class at no extra charge. Consequently, she purchased a business-class ticket for the Toronto-Calgary portion of her flight for the sum of $972.
Ms. McKay-Panos contends that the Calgary Decision indicates that the Agency will use the International Classification of Functioning, Disability and Health (hereinafter the ICF) developed by the World Health Organization (hereinafter the WHO). The framework of the ICF involves three elements for determining whether a person has a disability or not: an impairment, activity limitations and participation restrictions.
With respect to the element of impairment, Ms. McKay-Panos indicates that obesity is an impairment for the purposes of the analysis of disability and she was morbidly obese in 1997, as confirmed by her physician. In terms of activity limitations, Ms. McKay-Panos contends that the activity at issue is the requirement to be seated as a passenger in a seat. She refers to her experience detailed above, particularly to the difficulty she experienced in forcing herself into the passenger seat, the pain she suffered, the difficulty she experienced to access the chair table and the fact that she was bumped into by flight attendants as evidence that she has limitations in performing the activity. As for participation restrictions, Ms. McKay-Panos explains that she suffered a limitation in accessing public transportation in Canada. This limitation is found in the difficulties she experienced when making her travel arrangements.
Ms. McKay-Panos contends that she suffered from stereotypes and discrimination and was subject to rude and judgmental treatment. Ms. McKay-Panos argues that she was not treated with dignity because of her obesity. Finally, the extra charge to purchase a second economy-class seat or a business-class seat means that she cannot equitably participate in travelling by air, an activity that is available to ordinary Canadians for both professional and personal purposes. Ms. McKay-Panos concludes that she meets the requirements of the ICF and that, therefore, she has a disability.
Air Canada explains that its policy relating to persons who require additional seating space is to offer the option of purchasing a second seat at 50 percent of the full adult fare or at 100 percent of the applicable excursion fare. Alternatively, a single seat in the executive class can be purchased or, when possible, the use of two seats for the single applicable fare is granted on a stand by basis.
Air Canada indicates that the situation experienced by Ms. McKay-Panos has led the company to review the information provided to customers who are obese. Air Canada states that when it realized that although assigning bulkhead seats to persons who need an additional seat to carry a fragile item, such as a musical instrument, is appropriate, the same is not true when the second seat is required because of the size of the passenger. To prevent a recurrence of similar situations, Air Canada issued a new directive highlighting the fact that such seats are not appropriate for persons who are obese and has so advised the agent who had recommended that Ms. McKay-Panos reserve a bulkhead seat.
Concerning the circumstances of the flight operated on August 21, 1997, Air Canada advises that the load factor of this flight was 98.5 percent, which may have contributed to Ms. McKay-Panos not being offered alternate seating by the in-flight personnel. Air Canada further indicates that Ms. McKay-Panos's request to purchase an executive-class ticket for the Toronto-Calgary portion of her return flight was given priority. Also, Air Canada has given a new directive to in-flight personnel that when persons who are obese are seated in a bulkhead seat, the person is to be offered another location that preferably has an empty seat adjacent to it. Finally, Air Canada has offered Ms. McKay-Panos a reimbursement in the amount of $972, the cost of her business-class ticket.
Air Canada considers that the approach followed by Ms. McKay-Panos to convince the Agency that she has a disability disregards the mandate of the Agency as found in section 170 of the CTA. Air Canada submits that the Agency cannot focus on the obstacle when assessing whether Ms. McKay-Panos has a disability nor can it consider Air Canada's fare structure at this stage as they are only relevant to the undueness analysis. If the Agency were to accept this approach, it would render nugatory the requirement of a disability in section 170 of the CTA.
Air Canada also refers to the matter of Cook v. Rhode Island, 10 F. 3d 17 (1st Cir. 1993) to illustrate the fact that when courts or tribunals have accepted obesity as a disability, it was on the basis of attitudes towards an obese person, stereotypes and prejudice. Air Canada argues that there is no evidence that the attitudes were based on discrimination and that there is no evidence that they led to participation restrictions. After its consideration of Ms. McKay-Panos's allegations respecting participation restrictions, Air Canada concludes that the only evidence introduced by Ms. McKay-Panos relates to the obstacle. According to Air Canada, Ms. McKay-Panos has failed to identify activity limitations or participation restrictions capable of supporting the argument that she is a person with a disability.
ANALYSIS AND FINDINGS
Mandate of the Agency
The arguments presented by Ms. McKay-Panos appear to be based on an interpretation of the Calgary Decision which, in her view, allows the Agency to conclude that she has a disability simply by applying the ICF. The Agency accepts that it must interpret Part V of the CTA with a broad and purposive approach, but the question for the Agency is to what extent and in what ways can the ICF be used by the Agency to interpret the intent of Part V of the CTA.
In the Calgary Decision, the Agency referred to its legislative mandate. The Agency raises the following points in order to explain, in part, the Agency's conclusion in that Decision.
Section 5 of the CTA sets out Canada's transportation policy. The relevant portions are as follows:
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.
With respect to the transportation of persons with disabilities, the purposes of the CTA is to make Canada's transportation network accessible to these persons. However, this accessibility is not meant to be unlimited. Section 5 of the CTA refers to undue obstacles, not all obstacles. Paragraph 5(g) of the CTA imposes on each carrier the obligation of not creating, as far as is practicable, undue obstacles. These qualifications indicate that a carrier is not faced with an absolute obligation but with one that is modulated by the circumstances. In the matter of VIA Rail Canada Inc. v. National Transportation Agency,  2 F.C. 25, at pages 40-41, the Federal Court of Appeal commented on section 3 of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.). In its relevant sections, this provision is similar to section 5 of the CTA provision:
 In determining whether the obstacle was undue, the Agency should have first considered the aim of the National Transportation Act. This is found in s. 3(1), which provides that the nation's transportation network should be, inter alia, economic, efficient, viable and effective. The network must serve the needs of all travellers, including those with disabilities. In my opinion, the possibility that the economic and commercial objectives of the Act, the needs of non-disabled passengers and those of disabled passengers might be inconsistent in some circumstances was contemplated by Parliament and addressed by subs. 3(1)(g). This provision provides that each carrier, so far as practicable, should conduct its business under conditions which do not constitute an undue obstacle to the mobility of disabled persons. The use of the words "so far as practicable", in addition to the use of the term "undue" provides further support for my view that the Agency was required to undertake a balancing of interests such that the satisfaction of one interest does not create disproportionate hardship affecting the other interest.
The Agency is of the opinion that this indicates that Canada's transportation policy can be interpreted broadly for the purpose of accomplishing its aim and purpose. However, the Agency cannot, by adopting a broad and purposive interpretation of the provisions of the CTA, go beyond the parameters set out by Parliament.
Part V of the CTA articulates the policy respecting accessible transportation of persons with disabilities. Read in conjunction, sections 170 and 172 of the CTA give the Agency the concurrent powers to make regulations for the purposes of eliminating undue obstacles to the mobility of persons with disabilities in the federal transportation network and to inquire into matters for which regulations could be made. In the latter case, the Agency has, under subsection 172(3) of the CTA, the ancillary power of ordering corrective measures or compensation for expenses incurred by the person with a disability arising out of the undue obstacle.
To act under section 172 of the CTA and order corrective measures, the Agency must be satisfied that:
- There is a person with a disability;
- This person encountered an obstacle; and
- This obstacle was undue.
These three steps are clearly delineated by Parliament and the Agency must take the CTA as it finds it. In the matter of Canadian National Railway Company v. Brocklehurst,  2 F.C. 141 and in the matter of Canadian National Railway Company v. Gordon Moffatt, et al, the Federal Court of Appeal reiterated that the Agency, as an administrative tribunal, can not modify or add to the CTA without acting ultra vires.
The Calgary Decision
It is with this legislative framework in mind that the Agency must now apply the approach developed in the Calgary Decision. The following excerpt from this Decision establishes the guiding principles and conclusion.
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.
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.
It is important to mention that concepts like "impairment", "activity limitations" and "participation restrictions" are taken from the ICF. The ICF combines components of the medical and social models of disability. Unlike the medical model, which focuses only on the medical condition of the person, the ICF looks at the medical condition (called impairment by the ICF) to then consider the activity limitations resulting from the impairment. The activity limitations are defined as difficulties an individual may have in executing a task or an action. Finally, under participation restrictions, consideration is given to the person's involvement in life situations to assess how this person is restricted to participate in life in society as a result of her activity limitations. In the Calgary Decision, the Agency commented that "the ICF could be useful in the future in its analysis of disability issues."
The ICF is a multipurpose classification designed to serve various disciplines and different sectors. In a document entitled "ICF - Introduction", the WHO explains:
Since ICF is inherently a health and health-related classification it is also used by sectors such as insurance, social security, labour, education, economics, social policy and general legislation development, and environmental modification. It has been accepted as one of the United Nations social classifications and is referred to in and incorporates The Standard Rules on the Equalization of Opportunities for Persons with Disabilities.7 Thus ICF provides an appropriate instrument for the implementation of stated international human rights mandates as well as national legislation.
ICF is useful for a broad spectrum of different applications, for example social security, evaluation in managed health care, and population surveys at local, national and international levels. It offers a conceptual framework for information that is applicable to personal health care, including prevention, health promotion, and the improvement of participation by removing or mitigating societal hindrances and encouraging the provision of social supports and facilitators. It is also useful for the study of health care systems, in terms of both evaluation and policy formulation.
Considering that the scope and purposes of the ICF are very broad, the Agency is of the view that the ICF must be applied with care considering that the Agency's mandate is limited by Parliament to the very specific field of transportation. If the Agency were to accept the ICF as its main framework in applying the CTA, it would amount to an abrogation of the powers of Parliament by adding into the legislation an extraneous element that Parliament never considered.
It is clear to the Agency that Ms. McKay-Panos has relied on the ICF to develop her position that she has a disability. The Agency notes that Ms. McKay-Panos developed her arguments by explaining that obesity is an impairment and that her activity limitations result from the requirement of sitting in a seat that cannot accommodate her because of its dimensions. Ms. McKay-Panos also contended that this results in participation restrictions because she cannot access Canada's transportation network like other Canadians.
If the Agency were to accept that Ms. McKay-Panos has properly applied the ICF to her situation, it appears that Ms. McKay-Panos has assumed that meeting the standards of the ICF would equal being considered a person with a disability for the purposes of Part V of the CTA. However, the Agency never suggested that this would be the conclusion when it marked the ICF as a "useful" tool in the Calgary Decision. To allow the ICF model to be a determinant factor in deciding that an individual is a person with a disability would, in effect, create a category of persons, namely those who are obese, as persons with disabilities for the purposes of Part V of the CTA. But the Agency, in the Calgary Decision, explicitly stated that obesity, per se, is not a disability for the purpose of Part V of the CTA.
The Agency does not accept this way of proceeding because it requires the Agency, when assessing the disability of a person, to focus on the obstacle, namely the seat. Such an approach disregards the three steps delineated by the CTA which directs the Agency to consider the obstacle when assessing the obstacle, not when assessing the disability of an applicant. It is not the obstacle that makes a person deaf, blind or paraplegic and the Agency does not agree that it should be different in the case of obesity. The Agency considers that the ICF, as a useful tool, must be read in conjunction with the CTA, not the contrary. Otherwise, it would be tantamount to saying that the ICF supersedes the CTA, a conclusion that the Agency, as an administrative Tribunal, has no authority to reach. Under the framework of Part V of the CTA, before the Agency discusses the obstacle, it must predetermine that Ms. McKay-Panos is in fact a person with a disability.
The Agency finds that being unable to fit comfortably in the seat should not be enough evidence of the existence of a disability as many people experience discomfort in the seat because of, among other things, its size and leg room. The question to be decided here is separate from the service issue relating to the size of seats in aircraft.
Is Ms. McKay-Panos a person with a disability for the purposes of Part V of the CTA?
Ms. McKay-Panos has filed with the Agency a letter signed by her physician who confirms that on August 12, 1997, she was morbidly obese. The Calgary Decision concludes that obesity, per se, is not a disability, but that some individuals among the population of persons who are obese can have a disability. The Agency notes here that the Calgary Decision specifically refers to some "individuals" who may qualify under Part V of the CTA. It does not, however, allow for the creation of a sub group of obese persons, for example, those who are morbidly obese, to be so included on an a priori basis.
It is also clear from the Calgary Decision that to conclude that a person who is obese is also a person with a disability, fact-based evidence of activity limitations and participation restrictions is required. When considering the evidence submitted by Ms. McKay-Panos, the Agency notes that most of the evidence pertaining to activity limitations relates to the seat, which, as stated earlier, is irrelevant to the question of whether she has a disability for the purposes of the CTA.
Further, the Agency finds that Ms. McKay-Panos has not identified activity limitations relating to accessing the transportation system. Ms. McKay-Panos can on her own, like the majority of Canadians, access airports, check her luggage, present herself to security points in airports and reach the boarding gate. In the specific circumstances of this case, and on the basis of the above, the Agency finds that Ms. McKay-Panos has no disability for the purposes of Part V of the CTA.
In reaching this conclusion, the Agency does not question that Ms. McKay-Panos may in general have health problems, impairments, limitations or restrictions caused by her obesity. However, Ms. McKay-Panos does not present any compelling evidence demonstrating that she is a person with a disability for the purposes of Part V of the CTA. Given the mandate of the Agency under the CTA, the Agency concludes that she has no disability for the purposes of the CTA.
Accordingly, the Agency hereby dismisses the application.
DISSENTING OPINION OF GILLES DUFAULT
I have considered all of the evidence on file since the application was filed on November 19, 1997. I have read the decision and reasons of the majority, and I respectfully disagree with the majority in both its reasoning and its conclusion. Accordingly, I am dissenting in this matter.
Linda McKay-Panos claims that her obesity is a disability for the purposes of Part V of the CTA. For the first time since the National Transportation Agency of Canada was granted jurisdiction over the matter of accessible transportation in 1988, this application has caused the Agency to undertake a more rigorous examination of what its framework of analysis should be when determining whether a person has a disability. Until the application of Ms. McKay-Panos was filed in November 1997, the existence of disability was generally not disputed because applicants were all subject to conditions that made it more obvious or more generally accepted that they were persons with disabilities.
In coming to my own conclusions, I have considered the file of Ms. McKay-Panos in its entirety. The history of this application and of the pleadings entertained by the Agency is summarized in Agency Decision No. 646-AT-A-2001, which addresses the preliminary question of whether obesity is a disability. That Decision was issued following a hearing held in Calgary and for this reason, like the majority, I will refer to it as "the Calgary Decision". Further pleadings were filed after the Agency's issuance of the Calgary Decision to give the parties an opportunity to make submissions on the issue of whether Ms. McKay-Panos has a disability pursuant to Part V of the CTA.
Summary of issues
At the outset, let me say that there are a number of critical issues where I disagree with the majority. In the interest of clarity, I will enumerate them below and then deal with each issue separately and in more detail.
1. The Calgary Decision
In my view, there were three important ancillary findings made unanimously by the Agency (the same panel of Agency members that is currently considering the present case). They are:
- Part V of the CTA is, by its nature, human rights legislation.
- As human rights legislation, Part V of the CTA should be given a broad, liberal and purposive interpretation.
- The World Health Organization's International Classification of Functioning, Disability and Health (hereinafter the ICF) was accepted for purposes of the jurisdictional question and could be useful in the future in the Agency's analysis of disability issues.
The majority, in reaching its conclusion in the present case, has chosen to interpret and apply those findings in a manner which I find to be significantly inconsistent with the Calgary Decision and with the principles of the findings themselves.
2. The use of the ICF model in the case of Ms. McKay-Panos
The Agency, in the Calgary Decision, clearly accepted the model of disability analysis contained in the ICF and, in fact, based its summary of findings on this model. However, the majority has decided not to apply the ICF to the case of Ms. McKay-Panos.
I disagree with its position. I am of the opinion that the ICF model provides a useful, appropriate and important analytical framework for the Agency, both in general and, in particular, in the case of Ms. McKay-Panos.
3. The seat
Air Canada argued, and the majority has accepted, that the aircraft seat cannot enter into the Agency's analysis of whether Ms. McKay-Panos is a person with a disability as the seat is only relevant to the later determination of whether the person has encountered an obstacle in the transportation network. Air Canada submitted that this same factor could not be used in both the analysis of the disability and the analysis of the obstacle.
I am of the view that the aircraft seat is integral to the experience of travelling by air and that it is entirely appropriate for the Agency, in assessing the abilities of a person (whether those abilities are inherent, as in the case of activity limitations, or imposed by society, as in the case of participation restrictions), to consider the seat in determining whether a person is disabled for the purposes of Part V of the CTA.
Discussion of issues
1. The Calgary Decision
a) Part V of the CTA is, by its nature, human rights legislation
The role of the Agency is, for the most part, that of the economic regulator of the federal transportation network in Canada. Its mandate is largely found in the CTA. Contained in that legislation is Part V, the purpose of which is to provide the Agency with the responsibility to eliminate undue obstacles to the mobility of persons with disabilities in the federal transportation network. Furthermore, Canada's national transportation policy, as set out in section 5 of the CTA, provides, among other objectives, that the federal transportation network must be accessible, without undue obstacles, to persons with disabilities.
While the Agency is not a human rights tribunal, Parliament vested in the Agency a mandate of a human rights nature in Part V of the CTA. To me, the fact that the Agency is specifically required, under section 171 of the CTA, to co-ordinate its activities with those of the Canadian Human Rights Commission in relation to the transportation of persons with disabilities is a clear confirmation of the nature of this mandate. Therefore, in my view, it is indisputable that Part V of the CTA is human rights legislation.
b) As human rights legislation, Part V of the CTA should be given a broad, liberal and purposive interpretation
The Agency made this finding in the Calgary Decision as a guiding principle to be applied in its interpretation of its legislation. This finding was based on rulings of the Supreme Court of Canada. Furthermore, I note that Air Canada agreed with the application of this principle to the Agency's work under Part V of the CTA. At pages 1491-1492 of the transcripts from the Calgary hearing, counsel for Air Canada stated:
We do not suggest that you should take a narrow or conservative approach. We recognize that at least one of the important objectives of Part V of the Canada Transportation Act is to remove undue obstacles and that it is important legislation which should be given a broad, liberal, and purposive approach. We have no quarrel about that.
I am in agreement with the majority's assertion that "...the Agency cannot, by adopting a broad and purposive interpretation of the provisions of the CTA, go beyond the parameters set out by Parliament." (page 5 of the present Decision). However, I note that Parliament, in promulgating the accessibility provisions of the CTA, has not defined the concept of disability for the Agency. Rather, in my view, Parliament has left this task to the Agency, to be performed in the context of the execution of its mandate under Part V of the CTA. And by doing so, Parliament has permitted the Agency to adopt the broad, liberal and purposive approach needed to ensure that this important concept is defined and applied over time and in the context of society as it stands at the time of the interpretation, not frozen in time at the time that the legislation was promulgated.
c) the ICF
The Agency, in the Calgary Decision, determined that the ICF could be useful in the future in its analysis of disability issues. There were many reasons for the Agency to make that conclusion, as set out in the Calgary Decision. For example, there was a recognition that the activity limitation and/or participation restriction experienced by a person may be relevant to the determination of whether a health condition is a disability. There was also the acceptance by the Supreme Court of Canada of this approach to identifying and analyzing disability. And there was the acceptance of Air Canada of this approach to analyzing disability, which will be discussed in greater detail below. At page 1491 of the transcripts from the Calgary hearing, counsel for Air Canada indicated:
First of all, we do accept for the purposes of this hearing the ICF model. We do not urge this panel to take a biomedical or any other approach. We ask that you evaluate the evidence we have put forth under the interpretive guideline of the ICF model.
While counsel for Air Canada went on to qualify this statement with Air Canada's own interpretation of the CTA and the ICF, the fact remains that Air Canada accepted the ICF model as an appropriate guideline for disability analysis by the Agency.
In my view, the Agency accepted the ICF model in the Calgary Decision. In the summary of findings provided by the Agency in the Calgary Decision, and reproduced at page 6 of the present Decision, the Agency spoke of the necessity of finding impairments and activity limitations and/or participation restrictions in order to determine that an individual is a person with a disability for the purposes of Part V of the CTA. By doing so, the Agency specifically used the language and notions of the ICF model of disability analysis in paragraphs (ii), (iii), (iv), (v) and (vi) of those findings.
Finally, given the direction provided by the Agency in the Calgary Decision, it is understandable why the subsequent submissions of Ms. McKay-Panos were focussed on a disability analysis based on the ICF.
2. The use of the ICF in the case of Ms. McKay-Panos
I am of the opinion that the ICF is an appropriate model to be used by the Agency in the case of Ms. McKay-Panos.
The ICF is a participation-oriented model of disability analysis and the Agency's mandate is clearly participation oriented. Although the majority has already set out the World Health Organization's introduction to the ICF in the present decision, the significance of it to me is such that I believe it bears repeating here:
Since ICF is inherently a health and health-related classification it is also used by sectors such as insurance, social security, labour, education, economics, social policy and general legislation development, and environmental modification. It has been accepted as one of the United Nations social classifications and is referred to in and incorporates The Standard Rules on the Equalization of Opportunities for Persons with Disabilities. Thus ICF provides an appropriate instrument for the implementation of stated international human rights mandates as well as national legislation.
ICF is useful for a broad spectrum of different applications, for example social security, evaluation in managed health care, and population surveys at local, national and international levels. It offers a conceptual framework for information that is applicable to personal health care, including prevention, health promotion, and the improvement of participation by removing or mitigating societal hindrances and encouraging the provision of social supports and facilitators. It is also useful for the study of health care systems, in terms of both evaluation and policy formulation. [Emphasis added]
Although this is simply a brief introduction of the ICF from the World Health Organization, the evidence that the Agency heard at the Calgary hearing, both from Jerome Bickenbach, the developer of the socio-political model of disability analysis which formed the basis for the ICF, and from others, made it clear to me that it was applicable to the Agency's work under Part V of the CTA.
The issue of obesity is a very complex one and the evidence heard at the Calgary hearing underlined this fact. Given the nature and mandate of the Agency, we, as Agency members, are not medical experts and we are not social policy experts. The fact that we may choose, at one time or another, to apply standards or models developed to assist in the determinations that must be made in the exercise of our mandate is not "an abrogation of the powers of Parliament by adding into the legislation an extraneous element that Parliament never considered", as the majority asserts at page 7 of the present Decision. Rather, I view it as a necessary and prudent approach to decision-making to ensure the quality of the decisions made in very diverse, complex and sometimes technical matters. I see the use of an analytical framework such as the ICF model to be similar to the Agency's use of market-based economic models in cost of capital methodology determinations or generally accepted accounting principles and the like in other complex and technical areas.
Furthermore, the use of a model of disability analysis such as the ICF is, in my view, necessary to assess whether or not physical conditions which are not obvious disabilities, such as obesity, are disabilities for the purposes of Part V of the CTA.
I note that this approach was recently supported by the Supreme Court of Canada. In Quebec (Commission des droits de la personne et des droits de la jeunesse) c. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) c. Boisbriand (City)  1 S.C.R. 665 (Boisbriand), the Supreme Court of Canada provided the following comments on the ICF and its use:
74 Increasingly, the international community relies on the Classification of the World Health Organization ("WHO") entitled International Classification of Impairments, Disabilities, and Handicaps: A Manual of Classification Relating to the Consequences of Disease (1980). For example, during the International Year of Disabled Persons, the United Nations adopted a World Programme of Action concerning Disabled Persons, G.A. Res. 37-52 (1982), which was intended to foster rehabilitation and promote equality for persons with a handicap, as this term is defined by the WHO: Proulx, supra, at pp. 324-28.
75 The following definition of the term "handicap" appears in the International Classification of Impairments:
In the context of health experience, a handicap is a disadvantage for a given individual, resulting from an impairment or a disability, that limits or prevents the fulfilment of a role that is normal (depending on age, sex, and social and cultural factors) for that individual.
76 I completely agree with Philippon J. that the ground "handicap" must not be confined within a narrow definition that leaves no room for flexibility. Instead of creating an exhaustive definition of this concept, it seems more appropriate to propose a series of guidelines that will facilitate interpretation and, at the same time, allow courts to develop the notion of handicap consistently with various biomedical, social or technological factors. Given both the rapid advances in biomedical technology, and more specifically in genetics, as well as the fact that what is a handicap today may or may not be one tomorrow, an overly narrow definition would not necessarily serve the purpose of the Charter in this regard.
77 Generally, these guidelines should be consistent with the socio-political model proposed by J. E. Bickenbach in Physical Disability and Social Policy (1993). This is not to say that the biomedical basis of "handicap" should be ignored, but rather to point out that, for the purposes of the Charter, we must go beyond this single criterion. Instead, a multi-dimensional approach that includes a socio-political dimension is particularly appropriate. By placing the emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a "handicap". In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes.
While these comments are made respecting the concept of "handicap" as found in the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12, I am of the opinion that they remain relevant to the issue presently before the Agency as it is immaterial whether one uses the term "handicap" or "disability".
To my mind, the directions of the Supreme Court of Canada on the issue clearly support the appropriateness of the Agency to apply the ICF model when seized with the question of whether an applicant, like Ms. McKay-Panos, has a disability. Furthermore, as mentioned earlier, Air Canada supported this approach.
However, at the Calgary hearing and in its submission of March 1, 2002, Air Canada developed an argument based on the statutory mandate of the Agency. Air Canada argued that, as the CTA establishes a distinction between the existence of the disability and the fact that an obstacle is encountered, it would be wrong for the Agency to focus on the obstacle (in this case, the seat) and infer from it the existence of a disability. This argument has been accepted by the majority but, in my view, this argument is flawed and I cannot accept it.
In my opinion, if Air Canada accepts that Part V of the CTA should be interpreted with a broad, liberal and purposive approach and that the ICF model should provide interpretive guidelines to the Agency, it is then inconsistent with these two propositions for Air Canada to go on to suggest that the Agency should take a strict approach when interpreting its statutory mandate and remove from its analysis the relevant component of the activity limitation or participation restriction that the ICF requires one to consider, namely the seat. It amounts to Air Canada saying a theoretical yes and a practical no at the same time.
In the Calgary Decision, the Agency indicated that the ICF could be useful in its analysis of disability issues; however, the Agency did not state that the ICF took precedence over the CTA. Furthermore, the application of the analytical framework provided by the ICF to the Agency's task would not amount to the ICF taking precedence over the CTA. The Calgary Decision does not fetter the discretion of the Agency and, in applying the ICF, the Agency would not act ultra vires. Instead, the Agency would fully exercise its jurisdiction by electing to follow the recommendations of the Supreme Court of Canada which considers that the socio-political model proposed by J. E. Bickenbach and incorporated in the ICF is appropriate and by recognizing that the ICF provides useful guidance for determining whether a person has a disability.
3. The seat
In my view, the accessibility of the federal transportation network means that each phase of the transportation cycle is accessible and allows a person with a disability to travel between point A and point B in a public transportation mode without encountering undue obstacles.
It is clear that the transportation cycle involves many relevant components such as, at the point of origin, accessing the airport, checking luggage, proceeding through screening at security points, and boarding the aircraft to access the seat; while travelling, sitting in accordance with regulatory requirements and accessing on-board amenities; and, at the point of destination, deboarding the aircraft, exiting the security area and retrieving luggage. In my opinion, of all these components, the seat is the most important element and central to the transportation experience when travelling on an aircraft.
The majority considers that once Ms. McKay-Panos accessed the airport, checked her luggage and boarded the aircraft, she has access to the federal transportation network. I strongly disagree with that position as I see no valid reason as to why the majority removes the seat from this analysis, particularly when one considers that the Canadian Aviation Regulations, SOR/96-433, require passengers, for obvious safety reasons, to be seated with the seat belt fastened when on an aircraft (see subsections 605.22, 605.25 and 705.40 of the Canadian Aviation Regulations). Unlike the majority, I consider that the seat is an integral part of the federal transportation network and accessing it is crucial for any person travelling by air. The seat cannot be trivialized as a mere service issue as it is no less important to the accessibility of the air transportation network than are the stairs or the jetway leading to aircraft and, for that matter, the structure of the doorway of the aircraft.
Air Canada has suggested that the obstacle is the seat itself instead of associating the seat with activity limitations or participation restrictions as per the ICF model. When discussing the ICF during the hearing in Calgary, Air Canada used the example of monotone speech to illustrate that this condition may limit a person's capacity to participate in life as a Shakespearian actor, but be of no consequence for the same person to be a lawyer involved in drafting briefs. In both cases, the impairment is compared to the essential elements of the activity to be performed in order to assess the capacity of a person to participate in this activity. This is why the ICF is participation-oriented. This is also why it is impossible to disregard the seat, as Air Canada suggests, in determining whether or not an air traveller has experienced activity limitations or participation restrictions because being seated in the seat is integral to the travelling experience. Furthermore, to accept Air Canada's suggestion that the seat is the obstacle and, as such, cannot be considered when assessing the disability of an applicant would close the door to any seat-related complaint from a person who is obese.
As stated above, prior to the Calgary Decision, the existence of disability has been obvious in most, if not all, of the accessibility complaints the Agency has considered (in this regard, the majority cites examples of blindness, deafness and paraplegia - all obvious cases of disability). The ICF and the socio-political model of disability require one to examine disability in its context. As illustrated by Air Canada's example of monotone speech, discussed above, a person may be disabled (experience activity limitations and/or participation restrictions related to an impairment) in one context but not in another. The Calgary Decision acknowledged this. That Decision also found that the existence of an activity limitation and/or participation restriction must be in the context of the federal transportation network. In most cases, it is difficult, if not impossible, to disassociate the obstacle from the context.
Furthermore, the CTA does not prohibit the Agency from examining or referring to the obstacle in its determination of whether a person has a disability for the purposes of Part V of the CTA and in the context of the federal transportation network. I would argue that to examine disability without reference to the obstacle is to do so in a vacuum, without reference to the context that appears to be so necessary when using the ICF model of disability analysis.
In keeping with my analysis set out above, I will now turn to the case of Ms. McKay-Panos in order to determine whether she has a disability for the purposes of Part V of the CTA. The Calgary Decision has set out the test for making this determination. I will take each aspect of the test and apply each of them to the case of Ms. McKay-Panos.
(i) there must be an impairment in order to find that there is a disability for the purposes of Part V of the CTA;
The ICF, which the Agency, in the Calgary Decision, recognized could be useful in the analysis of disability issues, offers the following definitions:
...impairments are problems in body functions or structures such as a significant deviation or loss. The body being the human organism as a whole including the brain and its functions, body functions being the physiological functions of the body systems (including psychological functions) and body structures being anatomical parts of the body such as anatomical, limbs and their components.... Impairment represents a deviation from certain generally accepted population standards in the bio-medical stature of the body and its functions.(ICIDH, page 10).
In the ICF, weight problems are considered to be a body function and are classified under "Functions of the digestive, metabolic and endocrine systems." Under classification No. b530 "Weight maintenance functions", the ICF includes functions of maintenance of acceptable BMI [body mass index], impairment such as underweight, cachaxia, wasting, overweight, emaciation and such as in primary and secondary obesity." (ICIDH, page 63) Thus, according to the ICF, obese persons have an impairment.
Ms. McKay-Panos filed a document signed by her physician who confirms that in August 1997, she was morbidly obese. This evidence was not contradicted by Air Canada. During the hearing in Calgary, the Agency heard evidence of the significant impact of morbid obesity on the functions of a person. From that evidence, it is clear to me that persons who are morbidly obese have a high level of functional difficulties considering the extent of the medical and other problems they experience. Morbid obesity is at one extreme end of the scale and affects three percent of the population, according to statistics provided at the hearing by Dr. David Allison, an Air Canada expert witness. This condition truly "represents a deviation from certain generally accepted population standards in the bio-medical stature of the body and its functions." Based on the foregoing, I have no difficulty in finding that Ms. McKay-Panos has an impairment.
I note that this finding does effectively create a category of persons who have an impairment, namely those who are morbidly obese. However, an individual who belongs to this category of persons, limited here to those who are morbidly obese, needs to meet, on an individual basis, the next steps of the analysis in order to be considered a person with a disability for the purposes of Part V of the CTA. Therefore, I disagree with the majority when it suggests that "... the ICF model...would, in effect, create a category of persons, namely those who are obese, as persons with disabilities for the purposes of Part V of the CTA. ..." (page 8 of the present Decision)
I also note that in her submission of December 13, 2000, Ms. McKay-Panos indicates that her obesity is symptomatic of another medical condition, namely the Stein-Leventhal syndrome, or polycystic ovarian disease or syndrome. While this fact is not needed to come to the conclusion that Ms. McKay-Panos has an impairment under the ICF, it clearly supports the finding of a bio-medical component and underlines the complexity of her condition.
(ii) impairment, alone, is insufficient to support the conclusion that obesity is a disability for the purposes of Part V of the CTA;
In view of my conclusion under (i) above, I will now consider the next steps of the analysis:
(iii) 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
(iv) act-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.
The ICF defines activity limitations as difficulties an individual may have in executing activities as a result of an impairment, as assessed against a generally accepted population standard. The standard or norm against which an individual capacity or performance is compared is that of an individual without a similar health condition. The ICF makes clear that disability analysis must consider the purpose that one has in mind and in accepting to use the model as a guide, one has to look at the activities of the individual.
Under the ICF, participation restrictions are problems an individual may experience in life situations as a result of activity limitations. The purpose of participation restrictions is to assess how activity limitations affect the capacity of an individual to participate in real life situations. As with activity limitations, the ICF assesses participation restrictions against a generally accepted population standard. In this way, if an individual, because of his/her activity limitations, experiences difficulties in travelling that the average person does not, it can be said that this individual experiences participation restrictions.
The general intention of a traveller is to travel from point A to point B. In this regard, an air carrier is in the business of moving persons from a point of origin to a point of destination. When a passenger buys a ticket, he rents a space on board the aircraft to be carried from point A to point B. On an aircraft, the space rented is a seat and all of the features and amenities that go with it, whether those features or amenities are built into the seat, such as the chair table, earphone and/or computer plugs and the safety belt, or whether those amenities are service areas, such as washrooms.
I am of the view that an aircraft seat is more than a simple chair. An aircraft seat is the environment within which the passenger lives for the duration of the flight and the seat has effectively been designed and constructed to serve that purpose. Because of the limited space on an aircraft, all of the activities and the well-being of the passenger are centred around the seat that the passenger is occupying. In addition, the passenger is required to sit in that seat with the seat belt fastened in circumstances prescribed by the air safety regulations.
Sitting in the seat and accessing the built-in features or amenities are the essential activities of an airline passenger during most of the trip and, consequently, the seat must be considered in relation to its design and the amenities it offers to an average passenger. The seats on aircraft such as the ones on board which Ms. McKay-Panos travelled on August 21 and 24, 1997 have been designed so that the average passenger can perform the following functions:
- transfer to and from the seat easily for safety purposes;
- sit in the seat without experiencing discomfort or pain;
- plug in earphones and/or a computer;
- use the seat reclining device;
- use the chair table in order to read, write and/or eat;
- meet the safety regulations on board the aircraft which demand that passengers be seated and have their seat belt fastened under prescribed circumstances.
The test to determine whether a passenger with an impairment has experienced an activity limitation is therefore to find if the passenger can perform the above-mentioned functions. The undisputed evidence of Ms. McKay-Panos on the circumstances of her flights and on the difficulties she experienced when using her assigned seat leads me to conclude that she could not perform most of the above enumerated functions. She could not use an aircraft seat like the average person for whom the seat is designed and she therefore experienced activity limitations.
Furthermore, the impact of these difficulties on the capacity of Ms. McKay-Panos to travel are significant. The fact that she was unable to return to Calgary in her assigned seat supports this conclusion. As a result, she also experienced participation restrictions.
For the above reasons, I conclude that Ms. McKay-Panos has a disability for the purposes of Part V of the CTA. Accordingly, I would have considered the remaining issues of whether she encountered obstacles and, if so, whether these obstacles were undue.