Letter Decision No. LET-AT-A-21-2002

January 23, 2002

Application by the Council for Canadians with Disabilities for intervener status in the application by Linda McKay-Panos pursuant to subsections 172(1) and (3) of the Canada Transportation Act, S.C., 1996, c. 10, concerning the seating accommodation provided by Air Canada to her on flights operated between Calgary and Ottawa in August 1997 and Air Canada's policy of imposing higher fares to accommodate passengers who require additional seating space due to obesity.

File No.: 
U3570/97-21

In its letter dated December 20, 2001, the Council for Canadians with Disabilities (CCD) sought intervener status in the above-noted application. In its Decision No. LET-AT-A-495-2001 dated December 27, 2001, the Canadian Transportation Agency (Agency) acknowledged receipt of CCD's application and provided the opportunity to Air Canada and Ms. McKay-Panos to file a reply with the Agency by January 9, 2002.

By letter dated January 9, 2002, Air Canada has filed a reply to CCD's application for intervener status in the complaint by Ms. McKay-Panos against Air Canada. Ms. McKay-Panos did not file a reply.

In its Decision No. 646-AT-A-2001 dated December 12, 2001, the Agency determined, among other matters, that it 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 Canada Transportation Act (CTA). By Decision No. LET-AT-A-477-2001 of the same date, the Agency opened pleadings into the application by Ms. McKay-Panos in order to determine whether she has a disability for the purposes of the accessible transportation provisions of the CTA. Therefore, it is in this context that the Agency shall consider CCD's request that it be granted intervener status in Ms. McKay-Panos' application.

In its application, CCD notes that it is "the national cross-disability organization representing the 17% of the Canadian population that has a disability. ..." CCD explains the timing of its application for intervener status and states that it had not addressed the issue of obesity as a disability at a corporate level until June 2000 when its members asked that CCD "...advance the cause of justice and equality for obese persons." CCD notes that it "...is seeking intervener status at this point in time for the limited purposes of (i) making submissions with respect to the procedure to be followed during the next stage of the hearing of this application and (ii) supporting the applicant's position that she is a person with a disability who faces an "obstacle" in that she cannot reasonably be seated in an economy seat on the Air Canada flight in question." CCD also notes that it reserves the right to seek intervener status in Ms. McKay-Panos' application in relation to a determination by the Agency of whether Ms. McKay-Panos encountered an obstacle to her mobility and whether the obstacle was undue.

In its reply, Air Canada opposes CCD's application for intervener status for several reasons, including that, unlike the preliminary issue, the present phase of the inquiry does not raise broad issues of public interest which make interventions appropriate. Air Canada states that CCD was aware that the Agency was examining the broader issue of whether obesity is a disability earlier during pleadings but chose not to intervene. Air Canada notes that the absence of an advocacy organization prepared to intervene to support the view that obesity is a disability led the Agency to retain the services of an amicus curiae. Air Canada also argues that CCD has no interest or expertise in the issue of whether Ms. McKay-Panos has a disability. Air Canada refers the Agency to the case of R. v. Finta[1993] 1 S.C.R. 1138 at 1144 and submits that CCD's arguments will not provide a "supplemental or useful perspective that is not already argued by the applicant."

The Agency has carefully considered CCD's application and Air Canada's reply.

Concerning CCD's request that it be granted intervener status for the purposes of filing written submissions in support of Ms. McKay-Panos' position that she is a person with a disability, the Agency notes that CCD does not argue that it has an interest in the issue. Also, the Agency finds that there is no indication in CCD's application that it is in a position to provide relevant and useful information in respect of Ms. McKay-Panos' particular circumstances.

Further, the Agency agrees with Air Canada that CCD has not demonstrated expertise which would bear on the issue of whether Ms. McKay-Panos is a person with a disability for the purposes of the accessible transportation provisions of the CTA.

Regarding CCD's request that it be allowed to make submissions with respect to the procedure to be followed should the Agency inquire into whether Ms. McKay-Panos encountered an obstacle to her mobility and whether the obstacle was undue, the Agency is of the view that such submissions are premature and not relevant to the issue at hand. Accordingly, the Agency is not prepared to consider them at this time.

Based on the foregoing reasons, the Agency has decided not to grant CCD's request for intervener status in the application by Ms. McKay-Panos pursuant to section 172 of the CTA.

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