Mckay-Panos Factum

Court File No. A-100-03

FEDERAL COURT OF APPEAL

BETWEEN:

LINDA MCKAY-PANOS

Appellant

- and -

AIR CANADA and THE CANADIAN TRANSPORTATION AGENCY

Respondents

- and -

COUNCIL OF CANADIANS WITH DISABILITES

Intervener

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MEMORANDUM OF FACT AND LAW OF THE INTERVENER
THE COUNCIL OF CANADIANS WITH DISABILITIES

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TO:

And to :

And to :

INDEX TO MEMORANDUM OF FACT AND LAW

Overview

Part I: Facts

1. The Identification of Disabilities
   
   
2. The Obstacles Encountered by the Appellant
   
   
3. The Agency's Decision to Bifurcate
   
   
4. The Agency's Decision

Part II: Statement of Point in Issue

Part III: Submissions

1. Standard of Review
   
   
2. The Agency's Jurisdiction Over Undue Obstacles
   
   
3. The Disability is Contextually Grounded in the Obstacle
   
   
4. Disregarding the Range of Obstacles
   
   
5. Restrictive Definition to Close the "Floodgates"
   
   
6. The Unprincipled Creation of a Disability Hierarchy
   
   
7. Unintended Procedural Consequences for the "Deserving" Disabled
   
   
8. Impairments beyond De Minimus Are Disabilities
   
   
9. Making the Most Relevant Obstacles Irrelevant
   
   
10. Conclusion

Part IV: Order Sought

MEMORANDUM OF FACT AND LAW
OF THE COUNCIL OF CANADIANS WITH DISABILITIES

OVERVIEW

1. This case concerns the process to be followed and the criteria to be applied when determining who is entitled to the protection of Part V of the Canada Transportation Act, S.C. 1996, c. 10 (the "CTA"). Section 172 gives the Canadian Transportation Agency (the "Agency") the authority to compensate for out of pocket expenses and/or direct that corrective measures be taken in those cases where it finds that "there is an undue obstacle to the mobility of persons with disabilities."

2. The criteria endorsed in the majority opinion places an applicant in a perfect "Catch 22" situation: requiring that a person who is already acknowledged to have a disability additionally prove that they have encountered obstacles while traveling, but ruling that the obstacles that were encountered are irrelevant. Failure to meet this standard means the individual is not entitled to the protection of Part V of the CTA ( "Part V"). It also creates a discriminatory and unprincipled hierarchy between those whom the Agency presumes to have a disability [i.e. the "per se disabled"], and those whom it does not.

3. The panel as a whole endorsed a bifurcated procedure for determining whether an applicant is a person with a disability. This procedure is both inconsistent with the purposes and practices of the CTA, and contrary to the direction of the Supreme Court of Canada that the existence of a disability was to be determined in the context of the action alleged to be discriminatory, and not in isolation from it. The United States, Supreme Court (the "USSC") when applying the Americans with Disabilities Act (the "ADA"), has taken the opposite approach, resulting in a "Catch 22" definition of disability, applied through a bifurcated hearing process. The American approach not only punishes those it denies the ADA's protection, but it punishes those it exists to protect as well. With this decision the majority has adopted the American over the Canadian approach to determining whether a person has a disability.

   PART I FACTS

   A. The Identification of Disabilities

4. Linda McKay-Panos (the "appellant") is a morbidly obese person. There is no dispute but that for the purposes of the International Classification of Functioning, Disability and Health (the "ICF") she is a person with a "disability" in that she is a person with an "impairment."

   Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 8-9, 24 ]
   Calgary Decision No. 646-AT-A 2001, dated December 12, 2001 [Appeal Book at 47]

5. The ICF is an internationally accepted tool for the consistent classification of disability. In 2001 the World Health Assembly adopted the ICF as the successor to the International Classification of Impairment, Disabilities and Handicaps (the "ICIDH"), which had been endorsed by the Supreme Court of Canada in the case of Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665 ("Boisbriand"). No issue arises in this case as a consequence of differences between the ICF and its predecessor, the ICIDH. All parties agreed to the use of the ICF.

   Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 21]
   Calgary Decision No. 646-AT-A 2001, dated December 12, 2001, [Appeal Book at 71]

6. The ICF model identifies three dimensions of disability:

   1. Impairment- a 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;
   2. Activity Limitation- an incapacity, inability or other inherent difficulty in executing a task or action; and
   3. Participation Restriction- a 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 actually environment.

   According to the ICF, having a "disability" can mean having an impairment, an activity limitation, a participation restriction or more typically, a combination of these dimensions. Each of these dimensions qualifies equally as a disability. Following the ICF model and the Supreme Court of Canada's Granovsky decision, it was agreed that neither the etiology nor the mutability of a person's disability is a relevant consideration when deciding whether the person is entitled to the protection of Part V of the CTA. Thus while the appellant's obesity was caused by Stein-Leventhal Syndrome, this was not regarded as relevant to a determination of whether or not she was a person with a disability for the purposes of Part V.

   Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 at para. 27
   Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 24]
   Calgary Decision No. 646-AT-A 2001, dated December 12, 2001 [Appeal Book at 46 - 47]

   B. The Obstacles Encountered by the Appellant

7. Not having traveled by air for many years, the appellant called Air Canada (the "respondent")'s telephone reservation service, and explained both her weight and size. She was seeking seating that would allow her to travel with dignity, safety and comfort. She hoped to avoid paying a premium rate to be accommodated in this manner, but was willing to pay more if necessary. The respondent's ticket agent made derogatory comments relating to her disability, then proceeded to situate the appellant in the least suitable seat on the aircraft. The airline's Computer Reservation Service made no provision for identifying the dimensions of the seat, and thus was of no assistance. The ticket agent was inadequately trained to address the appellant's requirements and exhibited a discriminatory attitude towards the appellant.

   Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 9-10, 17-18]
   Complaint of Linda McKay-Panos dated November 15, 1997 [Appeal Book at 27-30, and 36]

8. The appellant was compelled to sit in seats that caused her intense physical pain, she was humiliated in from of the persons seated next to her, who were inconvenienced by her presence. There was no mechanism for reallocating seating once it had been initially assigned. Her discomfort and the indignity to which she was subjected were compounded by the fact she was denied meals, was hit by passing service carts and was treated in an abusive and discriminatory fashion by Air Canada personnel.

   Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 9-10, 25-26]
   Complaint of Linda McKay-Panos dated November 15, 1997 [Appeal Book at 27-30]

9. The respondent's tariffs provided that the appellant be charged full fare for seating that did not meet her requirements, denied her access to seating that would meet her requirements in business class without paying a premium fare, and charged her a double fare when it refused to reimburse her original fare after she paid a premium fare to be permitted to sit in a business class seat.

   Complaint of Linda McKay-Panos dated November 15, 1997 [Appeal Book at 27-32]
   Answer of Air Canada dated January 23, 1998 [Appeal Book at 33- 35]
   Reply of Linda McKay-Panos dated December 12, 2001 [Appeal Book at 36-37]

10. The appellant's treatment by the respondent caused her to suffer physical pain, humiliation and indignity. At one point, she was reduced to tears by her treatment at the hands of the respondent.

    Complaint of Linda McKay-Panos dated November 15, 1997 [Appeal Book at 27-32]
    Answer of Air Canada dated January 23, 1998 [Appeal Book at 33- 35]
    Reply of Linda McKay-Panos dated December 12, 2001 [Appeal Book at 36-37]

11. The appellant therefore encountered the following obstacles:

    1. Seating inadequate to accommodate a morbidly obese person of the appellant's dimensions:
    2. A Computer Reservation Service that was incapable of matching the dimensions of a passenger with the dimensions of seat's in the respondent's aircraft;
    3. Ticket agents who were inadequately trained to match the dimensions of a passenger with the seating dimensions and other amenities (such as food trays) on the respondent's aircraft;
    4. Ticket agents and cabin staff who displayed a discriminatory attitude towards a person with a disability;
    5. Cabin staff who were inadequately trained in maneuvering their food carts; and
    6. A tariff, which charges obese persons premium or additional fares for seating that, accommodates their dimensions.

    Comparable issues have been routinely held by the Agency in other Part V cases to constitute obstacles in the context of different disabilities.

    Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 9-10, 25-26]
    Complaint of Linda McKay-Panos dated November 15, 1997 [Appeal Book at 27-32]
    Answer of Air Canada dated January 23, 1998 [Appeal Book at 33- 35]
    Reply of Linda McKay-Panos dated December 12, 2001 [Appeal Book at 36-37]

    C. The Agency's Decision to Bifurcate

12. After the appellant filed her application, Air Canada responded and the appellant replied. Air Canada did not dispute any of the facts alleged by the appellant and they should therefore be accepted as proven.

    Complaint of Linda McKay-Panos dated November 15, 1997 [Appeal Book at 27-32]
    Answer of Air Canada dated January 23, 1998 [Appeal Book at 33- 35]
    Reply of Linda McKay-Panos dated December 12, 2001 [Appeal Book at 36-37]

13. The Agency's practice, as provided for in the CTA and the Agency's Rule of Practice, calls for decisions to generally be made quickly following receipt of written submissions from the parties. On its own Motion, the Agency decided to bifurcate the hearing of this case and make the issue of the appellant's disability a preliminary issue, separate and apart from the context of the obstacles encountered by the appellant. First the Agency ordered an Inquiry Officer pursuant to s. 38(1) of the CTA. Then it directed an oral hearing, one of only three ever held to hear a Part V application, to decide the issue of whether the appellant's obesity represented a disability for the purposes of Part V.

    Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 8]
    Calgary Decision No. 646-AT-A 2001, dated December 12, 2001 [Appeal book at 42-43 and 75]

    D. The Agency's Decision

14. The majority of the Agency panel (the "majority") decided that the appellant's application did not have a disability for the purposes of Part V and dismissed her application solely on this basis. The dissenting minority member found the appellant did have a disability for the purposes of Part V. Neither the majority nor the minority addressed the issue of disability as part of a process of identifying the obstacles that the appellant faced, however the minority considered the alleged obstacles the appellant had faced to be relevant.

    Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 9 and 25-26]

15. The Agency decided in its Interim Decision on the Jurisdiction Issue of ("the Calgary Decision") that the existence of "impairment alone is insufficient to support the conclusion that obesity is a disability for the purposes of Part V of the CTA." The Agency's "Analysis and Findings" in the Calgary Decision makes no reference to either of the Supreme Court of Canada's decisions in Boisbriand or Granovsky. It does acknowledge that it departs from the ICF in this regard.

    Calgary Decision No. 646-AT-A 2001, dated December 12, 2001[Appeal Book at 67-76]

16. The Agency went on to find that "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."

    Calgary Decision No. 646-AT-A 2001, dated December 12, 2001[Appeal Book at 75]

17. Without specifying what disabilities are "per se" disabilities; the Agency decided that "obesity 'per se'" is not a disability for the purposes of Part V of the CTA.

    Calgary Decision No. 646-AT-A 2001, dated December 12, 2001[Appeal Book at 75]

18. In reaching their final decision, the majority again makes no reference to either Boisbriand or Granovsky. Departing from the Agency's conclusion in the Calgary Decision that: "…Part V if the CTA is by its nature human rights legislation. … Based in 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," the majority in their Final Decision decide not to give a broad and purposive interpretation to the word "disability". It goes on to hold that a decision under Part V involves three steps that are "clearly delineated" in the CTA:

    1. There is a person with a disability;
       
       
    2. This person encountered an obstacle; and
       
       
    3. The obstacle was undue.

    The majority followed the logic of a "clear delineation" between "disability" and "obstacle" to reach its decisive conclusion:

    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.

    While acknowledging the existence of the other obstacles faced by the appellant, the majority concludes with the statement "…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."

    Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 15]

19. The member in the minority disagreed with each of the foregoing conclusions of the majority, thereby explaining how he could have joined in the Calgary Decision but dissented from the majority's Final Decision.

    Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 17-26]

    PART II STATEMENT OF POINT IN ISSUE

20. Did the majority of the Agency panel hearing this case commit an error of law and jurisdiction by failing to interpret disability in Part V of the CTA in accordance with the Agency's statutory mandate and with the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (the "Charter"), and out of the context of a finding with respect to the obstacles alleged to exist by the appellant

    PART III SUBMISSIONS

    A. Standard of Review

21. In order to determine the appropriate standard of review applicable to the majority's decision it is necessary to apply a pragmatic and functional analysis. This analysis requires consideration of four factors, which in the present case are: (1) the absence of a privative clause in the CTA; (2) the expertise of the Agency relative to that of the Court to engage in statutory interpretation of human rights legislation; (3) the jurisdictional nature of the issue to be determined; and (4) the purposes of section 172 of the CTA. The intervener adopts the submissions of the appellant at paragraphs 35 through 42 of her memorandum of fact and law ("memorandum") with respect to this issue, and it concurs with her that the issue to be decided in this case is reviewable on a "correctness" standard.

    Canada Transportation Act, S.C. 1996, c. 10, s. 41 and 172
    Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services,), [2004] S.C.J. No. 51 at paras. 6-16

22. While the Agency is entitled to some deference on matters within its jurisdiction, the issue of the correct definition of "disability" is clearly jurisdictional. For that reason alone, and because issues of statutory interpretation are "ultimately within the province of the judiciary", this Court has consistently decided that the standard for cases comparable to the one under appeal should be one of correctness.

    Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services,), [2004] S.C.J. No. 51 at paras. 10
    Canadian Pacific Railway Co. v. Canada (CTA), [2003] 4 F.C. 558 (C.A.) at paras. 5 and 18-19
    CNR. Co. v. Canada (CTA), [1999] F.C.J. No. 1961 (C.A.) at para. 3
    CNR. Co. v. Brocklehurst, [2001] 2 F.C. 141 (C.A.) at para 11

23. The Agency in its Calgary Decision and subsequent cases has recognized that its section 172 "undue obstacle" jurisdiction involves exercising human rights principles pursuant to a human rights mandate. By making it mandatory that the Agency and the Canadian Human Rights Commission "coordinate their activities in relation to transportation of persons with disabilities in order to foster complementary policies and practices and to avoid jurisdictional conflicts", section 171 confirms the human rights essence of the Agency's Part V jurisdiction. To the extent section 5 provides additional guidance concerning the issue of "undueness" not found in human rights legislation, this in no way alters the fundamental human rights nature or Part V and is, in any event, a factor that is a distinct determination that chronologically follows after a determination that an "obstacle to the mobility of a person with a disability" exists has already been made. The courts have consistently held that tribunals do not have any greater expertise than the Court in interpreting human rights principles. Application of a functional and pragmatic form of analysis leads inevitably therefore to the conclusion that the standard of review of the majority's interpretation of the words "persons with disabilities" is correctness.

    Canada Transportation Act, S.C. 1996, c. 10, s. 5, 171 and 172
    Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554
    CTA Dec. No. 646-AT-A-2001 AB 69
    CTA Dec. No. 175-AT-R-2003
    VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (C.A.)
    ("Lemonde") at paras. 34-44

    B. The Agency's Jurisdiction Over Undue Obstacles

24. The purpose of Part V is specifically related to the accessibility of the federal transportation network to persons with disabilities. The Agency is granted jurisdiction to move toward the elimination of undue obstacles to the mobility of persons with disabilities in two ways: the initiation of regulations pursuant to section 170 of the CTA (which require the prior approval of the governor in council), or on an individual application pursuant to section 172. The Agency may on application "inquire into any matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made". Section 5 of the CTA sets out the national transportation policy, and in so doing both emphasizes Part V's purpose of ensuring the inclusion of persons with disabilities, and identifies a number of factors that are to be borne in mind when the Agency assesses the undueness of any particular obstacle.

    Canada Transportation Act, S.C. 1996, c. 10, s. 5, 170-172

25. The intervener adopts the submissions of the appellant concerning the "Mandate of the Agency to Promote Inclusion and Accessibility", found at paragraphs 53 to 65 of her memorandum, her submissions that "The CTA must be interpreted in conformity with the Charter" at paragraphs 66 through 76 and her conclusion that "The majority decision is inconsistent with the purposes of the CTA and Charter principles". The intervener respectfully differs with the Part V analytical framework she endorses at paragraphs 81 through 84 of her memorandum for that follow reasons.

26. The majority mistakenly held in this case that an application under section 172 involves the following "three steps":

    1. There is a person with a disability;
       
       
    2. This person encountered an obstacle; and
       
       
    3. The obstacle was undue.

    It is submitted that the Supreme Court of Canada has identified the correct analytical framework to be applied in cases involving humans rights legislation, such as Part V. Adapted to reflect the language of Part V, that analytical framework would be as follows:

    1. A person encounters an obstacle to his or her mobility;
       
       
    2. The obstacle is based on that person's disability; and
       
       
    3. The obstacle is undue.

    Granovsky v. Canada (Minister of Employment and Immigration) [2000] 1 S.C.R. 703 at paras. 42-53
    Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 13] (majority)

27. It is noteworthy that in a Part V obesity decision less than two months after the decision under appeal by the same panel of the Agency, the majority changed its analytical framework as follows:

    To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA , the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle.

    Because the majority found in this case that no obstacle existed to the applicant's mobility, it held that it was not necessary to rule on whether or not her obesity constituted a disability.

    Reinsborough v. Air Canada, Decision No. 671-AT-A-2002

    C. The Disability is Contextually Grounded in the Obstacle

28. The majority's error in this case led it to examine the issue of whether or not the appellant had a disability, without regard to the context giving rise to her application. This is precisely what the Supreme Court of Canada directed should not be done. To cite but one example, if the issue of disability is disengaged from the context of the alleged obstacle, it would be impossible to make out a case based on a transportation provider's perception that a person is disabled: one of several obstacles outlined by the appellant in her application.

    Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City);
    Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City)
    ("Boisbriand") [2000] S.C.J. No. 24
    Agency Decision No. 567-AT-A-2002 AB 4

29. The majority then demonstrates that they reject the logic of the ICF model as well as the decisions of the Supreme Court of Canada which were based on the ICF's previous incarnation: the ICIDH model. The majority explicitly rejects the essence of the socio-political model endorsed by the Court in both Boisbriand and Granovsky with the statement, "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." This begs the question of whether the majority believes that obesity fundamentally does differ from these other disabilities. The question remains open but unanswered.

    Agency Decision AB No. 567-AT-A-2002 at 15

30. That the obstacle could create the disability was precisely the message of the Supreme Court of Canada, which held "the very nature of discrimination is often subjective." The Court in fact makes specific reference to the case of a person who was obese and was found to have been a person with a disability. It's citing of a Saskatchewan Human Rights Board of Inquiry obesity case called Davison, notwithstanding that it had been overturned on appeal, suggests all pre-existing law, even that based upon the express language of the Sakatchewan Human Rights Code, should be reviewed in light of Boisbriand.

    Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City);
    Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City)
    [2000] S.C.J. No. 24 para. 39 and 48
    Davison v. St. Paul Lutheran Home (1992), 15 C.H.R.R. D/81, reversed at[1991] S.J. No. 602, and see also (1994) 108 D.L.R. (4th ) 671 (C.A.)
    Nowell-Smith & O'Reilly "A Triumph of Substance Over Form in How Discrimination Law Treats Obesity" [2003] Can. Bar. Rev. 681 at 690
    Saskathewan Human Rights Code, S.S. 1979, c.S-24, s. 2(d.1)

    D. Disregarding the Range of Obstacles

31. Having separated the obstacle from the disability makes it more convenient for the majority to disregard major elements of the appellant's application that do not relate exclusively to "the seat". Even a cursory reading of her application would indicate that she was, if anything, more concerned about the respondent's tariffs, the misinformation she received over the telephone and the abusive treatment she received at the hands of the respondent's staff, all of which have a substantial subjective element. They are also typical of the types of obstacles the Agency routinely confronts while exercising its Part V mandate. Since the appellant's evidence on these issues was uncontradicted, the majority clearly erred by overlooking these obstacles in its consideration of the case. This precise point [i.e. that it is overly simplistic to suggest an obese person faces only the obstacle represented by the aircraft seat] was made even more effectively by the dissenting member in the Reinsborough case, than he made it in the case under appeal.

    Reinsborough v. Air Canada, Decision No. 671-AT-A-2002

32. Having in this manner decided "that most of the evidence pertaining to activity limitations relates to the seat", the majority next errs by holding that the existence of this particular obstacle "is irrelevant to the question of whether she has a disability for the purposes of the CTA." This is a classic and complete "Catch 22", whereby the only relevant facts you can use to prove your case are precisely the facts you are not permitted to introduce.

    Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 15]

    E. Restrictive Definition to Close the "Floodgates"

33. This is not an approach, which originated with the majority's decision. Whether they were aware of it or not, they were following the lead of the United States Supreme Court ( the "USSC"), which has reversed its earlier liberal interpretations of the term "disability", and become markedly restrictive in a series of recent cases. The Supreme Court of Canada was well aware of these cases when it decided Boisbriand and Granovsky, going out of its way to signal that it was not inclined to follow the American example.

    Granovsky v. Canada (Minister of Employment and Immigration) [2000] 1 S.C.R. 703 at para 36

34. Unlike the Agency interpreting Part V of the CTA, it should be noted that the U.S. courts at least had a legislative justification for adopting a restrictive interpretation. According to the Americans with Disabilities Act ( the "ADA"), in order to be considered eligible for protection persons must be considered as having an "impairment" that "substantially limits one or more major life activities", and must also demonstrate that they are "otherwise qualified" to exercise the right in question. Thus for example, in Sutton v. United Airlines, the case to which the Supreme Court of Canada directly refers in Granovsky, the USSC held:

    When the major life activity under consideration is that of working, the statutory phrase "substantially limits" requires, at minimum, that plaintiffs allege they are unable to work in a broad class of jobs…."the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working."

    It should also be noted that the Court in this case was following regulations enacted by the Equal Employment Opportunity Commission (EEOC). The words "persons with disabilities" in s. 172 of the CTA are not limited in any comparable manner, either by statute or regulation.

    Americans with Disabilities Act 42 U.S.C. s. 12102 (2) (A) (B) and (C)
    Sutton v. United Airlines, (1999) 527 U.S. 471, 491

35. While the restrictive interpretation adopted in the United States was presumably done in an attempt to restrict access to the ADA's protection to those who "need it most", it has been severely criticized because its unprincipled approach has resulted in it being almost impossible to say who is entitled to protection. As stated to a European Community forum by America's leading disability rights expert:

    By raising the bar for proving disability to such an extremely high level, the courts have frequently made the standard almost equivalent to proving that one is unable to work or function in society, thus making it highly difficult to prove that one is simultaneously "qualified". This has been referred to as a "Catch-22" by some courts and commentators.

    The consequence of the Court's interpretation of the definition of disability is that approximately nine out of ten plaintiffs in ADA cases have their lawsuits dismissed in response to defendants' motions for summary judgment or motions to dismiss, without any judicial consideration of their claims of having been subjected to discrimination. And that does not even count those potential ADA claimants who do not file their actions or who give up after administrative proceedings because of the definitional hurdles they will face. The primary cause of these problems is that the courts in the United States have all too often not taken a civil/human rights approach to the definition of "disability" under the ADA, but, rather, have treated the definition as if it were the eligibility criterion for a welfare or benefits program.

    Equality and Disability: The Challenge and Potential of Framework Directive 2000/78/EC for Persons with Disabilities, (Bruylant: Brussels) (forthcoming) pp.53-54 .

    F. The Unprincipled Creation of a Disability Hierarchy

36. If one considers the reasoning of the majority in the case under appeal, it is clear that they believe they know who the people are who should benefit from the protections of Part V of the CTA, but it is even clearer that they have failed to articulate any principles that will assist either future Agency members, persons with disabilities or transportation providers to determine which side of the line a particular disability falls on. Thus when the majority says "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", it begs the question of how they say obesity differs from these other disabilities i.e. on what basis does the majority say deafness is inherently a disability and obesity is not. The question remains unanswered. When the majority says "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" the question is begged how these activities differ in any way from the activity and participation limitations experienced by the appellant. Finally when the majority states that obese persons are not per se disabled, it is meaningless because no indication is given as to who the per se disabled are. The majority may not be able to explain what they are looking for, although they certainly are clearly confident they will know it when they see it.

    Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 14 - 16]

37. By suggesting that obesity is not a per se disability, like some other disabilities, the Agency creates a hierarchy amongst disabilities for which no support can be found in the statute. The Supreme Court of Canada has explicitly rejected both the adoption of hierarchies and the kind of stereotypical thinking that underlies their creation.

    Battlefords and District Co-operative Ltd., v Gibbs [1996] 3 S.C.R. 566 at para 27-28

    G. Unintended Procedural Consequences for the "Deserving" Disabled

38. In addition to excluding many persons from the ADA's protection who were clearly intended to be covered, the bifurcation of hearings and dealing with the question of "disability" as a preliminary issue, in isolation from the conduct alleged to be discriminatory, has had a devastating impact on those persons with disabilities who remain covered because of:

    1. Lengthening and increasing the cost of proceedings;
    2. Causing bifurcation of proceedings to decide motions for summary judgment;
    3. Increasing the need for expert evidence unrelated to the alleged discriminatory incident; (eg. Whether the discriminatory attitudes exhibited were isolated or widespread across a sector) and
    4. Requiring the production of confidential medical records and other invasions of privacy unrelated to the alleged discrimination.

    Thus the court's rulings have not only hurt those who have been excluded from the law's coverage but those who remain covered as well. As Burgdorf noted, many potential ADA claimants are not filing what would otherwise be valid actions, or withdrawing those they have filed. All persons with disabilities suffer procedurally from an unprincipled definition of disability.

    The United States Supreme Court's harsh and restrictive approach to defining disability -an approach that places difficult, technical, and sometimes insurmountable evidentiary burdens on persons who have experienced discrimination- was unwarranted and highly unfortunate. The U.S.A.'s experiences with the definition of disability under the ADA underscore the critical importance of approaching this issue from a human rights perspective.

    Equality and Disability: The Challenge and Potential of Framework Directive 2000/78/EC for Persons with Disabilities, (Bruylant:Brussels) (forthcoming) p. 59.

39. Neither the nature of the transportation experience nor the procedures that the Agency has previously followed when exercising its Part V jurisdiction are compatible with the approach adopted by the majority. Obese people need to know when they call the airline whether they are entitled to be accommodated with dignity and comfort or not. Airlines need to know how to answer when they call. When booking a flight from Toronto to Ottawa one should not be expected produce voluminous medical records, reveal intimate personal details or recite a list of obstacles they may or may not encounter on a flight, depending on the approach being followed by a particular airline. Historically the Agency has ensured that virtually all its Part V hearings are informal, and based on the written submissions of parties who are not represented by counsel. Section 29(1) of the CTA requires that the Agency "make its decision as expeditiously as possible, but no later than one hundred and twenty days after the originating documents are received". "Informal" and "speedy" no longer describes Part V applications by persons who are obese. As has occurred in the United States, respondents will quickly learn that there is no downside to demanding preliminary adjudication on the extent of the applicant's disability. Even if the respondent loses, it has made the process more intrusive and difficult for persons with a disability who the Supreme Court of Canada has recognized as disadvantaged within society generally, including within the litigation process. With compensation in Part V cases capped at the level of the applicant's out of pocket expenses by s. 172(3), what incentive do they have to retain counsel or endure exposure of the most intimate and private details of their personal circumstances?

    Canada Transportation Act, S.C. 1996, c. 10, s. 29(1)
    National Transportation Agency General Rules, SOR 88-23 s. 38
    Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 56

40. When deciding that a large and liberal interpretation of the word "disability" should be applied in human rights cases, the Supreme Court of Canada was mindful of the disadvantage experienced by persons with disabilities. It was clearly intended that as many persons with the widest possible range of disabilities, or perceived disabilities, enjoy the benefit of human rights law. The de minimus limits it identified (i.e. the common cold and eye colour) indicate the broad scope it intended be given the word disability. This in no way meant the Court was unaware of the need to balance competing interests or to engage in the principled priorization of claims, as it demonstrated in Granovsky. Nevertheless, the Court has made it clear that the limits are to occur where the onus is fairly allocated and where principled and non-discriminatory distinctions can be made. It clearly did not feel that such limits should be imposed as part of the process of defining disability.

    Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 56
    Quebec (Commission des droits de la personne et des droits de (la jeunesse) v Montreal (City) ; Quebec (Commission des droits de la personne et des droits de la jeunesse v. Boisbriand (City), [2001] 1 S.C.R. 665 at para 82
    Granovsky v. Canada (Minister of Employment and Immigration) [2000] 1 S.C.R. 703.

    H. Impairments beyond De Minimus Are Disabilities

41. The Agency found as a fact that persons with a body mass index (BMI) greater than thirty are obese, and that obesity is a chronic medical condition. Pursuant to the ICF Model of disability, which was the only one seriously examined, and which was adopted by the parties, the Agency concluded that obesity is explicitly recognized as a disability at the impairment level.

42. According to principles established by the Supreme Court of Canada, it is not necessary to go any further, once it is acknowledged that a person has an impairment, until the issue becomes whether or not the conduct alleged to be discriminatory [i.e. the "obstacle"] is based upon. The Agency, by failing to acknowledge Ms. McKay Panos' impairment was sufficient to found her application, disregarded the direction of the Supreme Court of Canada in Granovsky:

    The true focus of the s. 15 (1) disability analysis is not on the impairment as such, nor even any associated functionally limitations, but is on the problematic response of the state to either or both of these circumstances.

    Granovsky v. Canada (Minister of Employment and Immigration) [2000] 1 S.C.R. 703 at para. 26.

43. The Court, in cases such as Boisbriand, made reference to the predecessor to the ICF and to factors such as activity and participatory limits, not in order to narrow the definition of disability, but to point out that even in the absence of physical or mental limitations ["impairments"] it was still possible to make a finding that allegedly discriminatory conduct was based on disability. Such an approach is derived from the unassailable premise that the undue obstacle jurisdiction of the Agency under s. 172 of the CTA is remedial in nature. In this regard it is closely comparable to human rights legislation, and to s. 15 (1) of the Charter of Rights and Freedoms. As such the words "persons with disabilities" in s. 172 are to be accounted a large and liberal interpretation, as they are under human rights legislation and the Charter, recognizing that the limiting functions, to they extent they are necessary are to take place during the "undueness" portion of the analysis.

    Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City);
    Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2001] 1 S.C.R. 665 at paras. 28-32.

44. In the Calgary Decision, the Agency erroneously concluded that the "impairment, alone, is insufficient to support the conclusion that obesity for the purposes of Part V of the CTA." Again, this appears to have passed without serious objection from either the appellant or the amicus curiae, even though it clearly contradicts both the ICF model and the evidence of Jerome Bickenbach, whose writings on the subject have been repeatedly accepted by the Supreme Court of Canada in its relevant decisions.

    Calgary Decision No. 646-AT-A 2001, dated December 12, 2001 [Appeal Book at 72-75]

45. The ICF makes it clear that the mutability and the etiology of an impairment are not relevant to its status as disability. The Supreme Court has expressly adopted this as the law. The ICF also expressly recognizes that its purpose is facilitative, thus meeting any of the 3 criteria: impairment, activity limitation or participation limitation should be sufficient to establish the existence of a disability. Thus, it does not matter whether a person has impairment, or is perceived as having an impairment. It does not matter if the discrimination is "direct", and involves a subjective misperception of the functional abilities of a person or "adverse impact," and involves a failure to accommodate a person who because of an impairment faces "built in headwinds." The important point is that activity and participation limitations only arise as relevant considerations when impairment has not been shown to exist, or at the stage of demonstrating that the relevant differentiation is based on the person's disability [ real or perceived].

    Eaton v. Brant County Board of Education, [1996] S.C.J. No. 98 (SCC) at para. 6
    Granovsky v. Canada (Minister of Employment and Immigration) [2000] 1 S.C.R. 703 at para 27.

46. Where an impairment has been shown to exist the only issue that remains is whether the impairments are so trivial as to be unworthy of consideration in a human rights context. The examples cited by the Court of the common "cold" or "eye colour" should give the respondent little solace. The case of a person shown to be obese, if not morbidly obese, is in no way comparable to the de minimus examples cited by the Court.

    Commission des droits de la personne et des droits de (a jeun esse) v. Montreal (City) ; Quebec/ Commission des droits de la personne et des droits de la jeunesse v. Boisbriand (City), [2001] 1 S.C.R. 665 at paras 82

    I. Making the Most Relevant Obstacles Irrelevant

47. Notwithstanding that the Agency expressly decided in its Calgary Decision that the "WHO [World Health Organization]'s ICF model of disability is an appropriate model for deciding whether obesity is a disability for the purposes of Part V of the CTA, the majority ultimately decided that the ICF should not be a "determinant factor". It is not clear from their decisions whether any of the ICF analysis survives, since having found obesity to be an impairment they reject the logic of the ICF model's conclusion that once a person has demonstrated a BMI of over 30 they are to be considered "disabled".

    Calgary Decision No. 646-AT-A 2001, dated December 12, 2001 [Appeal Book at 71-72]
    Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book at 15]

48. By confusing the issue of "disability" with the more complex issue of "differentiation based on disability", the Agency mistakenly raises the disability bar. In the Calgary Decision it was not clear where the bar was being raised to when it stated:

    (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.

    Calgary Decision No. 646-AT-A 2001, dated December 12, 2001 [Appeal Book at 75]

49. The majority took from the Calgary Decision that:

    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 the obstacle when assessing the obstacle, not when assessing the disability of an applicant. …

    Calgary Decision No. 646-AT-A 2001, dated December 12, 2001 [Appeal Book at 75]

50. This logic, which is aptly criticized by the minority, is noteworthy for going further than any of the American decision in by placing applicants in an absolute and complete Catch 22: Any obstacles you encounter are irrelevant, but you still must prove that you have encountered obstacles. Even at its worst in Sutton, where discrimination in one job is not enough to meet the statutory requirements that a person be "substantially limited" in employment, at least the evidence of the treatment that the person encountered in that one job is considered relevant and therefore admissible.

    Finial Decision, Decision No. 567-AT-A-2002 [Appeal Book 15-16.

    J. Conclusions

51. By introducing a hierarchy of disabilities an by opening the door to bifurcated disability hearing the majority have opened Part V to the serious consequences now occurring in the United States. These consequences can be avoided by following a principled approach of allowing disability status to be determined in the context of the obstacle identification, and following the guidelines established by the Supreme Court of Canada.

    PART IV ORDER SOUGHT

52. The intervener, the Council of Canadians with Disabilities, seeks an Order from this Court that:

    1. the within appeal be allowed;
    2. this Court determine that the appellant is a person with a disability who has encountered obstacles for the purposes of Part V of the Mrs.;
    3. the matter be remitted back to the Agency to proceed to the next stage of the application, i.e. the determination of whether the obstacles she encountered were undue; and
    4. such further and other Order as this Honourable Court determines to be appropriate.

All of which is respectfully submitted this 19th day of January 2005.

---

LIST OF AUTHORIITES

STATUTES

Canada Transportation Act, S.C. 1996, c. 10, s. 5, 171 and 172

Saskathewan Human Rights Code, S.S. 1979, c.S-24, s. 2(d.1)

Americans with Disabilities Act 42 U.S.C. s. 12102 (2) (A) (B) and (C)

Canada Transportation Act, S.C. 1996, c. 10, s. 29(1)

National Transportation Agency General Rules, SOR 88-23 s. 38

CASELAW

Granovsky v. Canada (Minister of Employment and Immigration), [2001] 1 S.C.R. 703

Canada Transportation Act, S.C. 1996, c. 10, s. 41 and 172

Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services,), [2004] S.C.J. No. 51

Canadian Pacific Railway Co. v. Canada (CTA), [2003] 4 F.C. 558 (C.A.)

CNR. Co. v. Canada (CTA), [1999] F.C.J. No. 1961 (C.A.)

CNR. Co. v. Brocklehurst, [2001] 2 F.C. 141 (C.A.)

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554

VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (C.A.) ("Lemonde")

Granovsky v. Canada (Minister of Employment and Immigration) [2000] 1 S.C.R. 703

Reinsborough v. Air Canada, Decision No. 671-AT-A-2002

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) [2000] S.C.J. No. 24

Davison v. St. Paul Lutheran Home (1992), 15 C.H.R.R. D/81, reversed at [1991] S.J. No. 602, and see also (1994) 108 D.L.R. (4th ) 671 (C.A.)

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624

Eaton v. Brant County Board of Education, [1996] S.C.J. No. 98 (SCC)

ARTICLES BOOKS

Nowell-Smith & O'Reilly "A Triumph of Substance Over Form in How Discrimination Law Treats Obesity" [2003] Can. Bar. Rev. 681

Robert L. Burgdorf Jr., "Perspectives on the Directive from U.S. Law: Disability Nondiscrimination Law as a Key Element of Human Rights Law," in eds. Oliver De Schutter and Jean-Yves Carlier, Equality and Disability: The Challenge and Potential of Framework Directive 2000/78/EC for Persons with Disabilities, (Bruylant:Brussels) (forthcoming)