Responding Memorandum of Fact and Law of Joanne Neubauer and the Council of Canadians With Disabilities

PART I – FACTS

A. Overview

1. The Council of Canadians with Disabilities ("CCD") is the national voice of persons with disabilities in Canada. It is composed of representatives from provincial disability organizations across Canada and from major national disability organizations. The late Eric Norman and Joanne Neubauer, persons with disabilities, encountered obstacles to their mobility when attempting to fly with Air Canada, Jazz Air ("Air Canada") and West Jet (collectively, "the carriers"). They were successful in an application before the Canadian Transportation Agency ("Agency") seeking corrective measures for undue obstacles caused by the carriers' fare policies. Ms. Neubauer and CCD ("the respondents") now respond to Air Canada's motion for leave to appeal Agency Decision No. 6-AT-A-2008 ("the decision"). The estate of Mr. Norman does not join in responding to this motion, but reserves its right to join in the appeal if leave is granted.

2. Canada's National Transportation Policy [section 5 of the Canada Transportation Act ("the Act")] requires that transportation modes under federal jurisdiction are to be "accessible to persons with disabilities." Part V of the Act mandates the Agency to eliminate "undue obstacles to the mobility of persons with disabilities."

Canada Transportation Act, S.C. 1996, c. 10, ss. 5 and 170 Respondents' book of authorities, Appendix A, Tab 1

3. The respondents, together with the late Mr. Norman, observed that rail, bus and marine transportation charged only one fare to all passengers, even those who required additional seat(s) due to disability – for a personal care attendant, by reason of disabling obesity, or for other disability-related reasons. Air carriers were the only federal transportation mode that did not adhere to what all parties refer to as a "one-person, one fare" ("IPIF") policy. The respondents filed a Part V application with the Agency, claiming that the carriers' practice of charging multiple fares to persons with disabilities constituted an undue obstacle to their mobility.

4. In March 2007, the Supreme Court of Canada, in its monumental Council of Canadians with Disabilities v. VIA Rail decision ("CCD v. VIA"), determined that Part V of the Act is human rights legislation. That case was factually similar to the case at bar (involving a challenge to the inaccessibility of VIA's passenger rail cars) and involved an appeal from a decision of the same Agency. This Supreme Court decision provides clear, recent and binding guidance about how the Agency is to exercise its Part V jurisdiction in response to individual applications.

Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650 Respondents' book of authorities, Appendix B, Tab 5

5. The carriers did not contest that their fare policies were an obstacle to the mobility of those who require additional seating due to disability. Part V of the Act, as interpreted by the Supreme Court in CCD v. VIA, thereupon shifted the onus to the carriers to prove on a balance of probabilities that the obstacle was not "undue" and that offering a IPIF policy would cause them "undue hardship." The Agency found that the carriers failed to discharge this burden.

6. In this motion, Air Canada takes no issue with the process followed by the Agency in hearing the application. It does not suggest that it offered better accommodation in place of a IPIF policy, nor that the policy would have generated undue "operational constraints" for it. While Air Canada's memorandum of fact and law confusingly identifies twelve "points in issue" (paragraph 5), nine "questions of law" (paragraph 12), and seven "issues" (paragraphs 13 to 76), all its arguments relate to the Agency's finding that the carriers had not discharged their burden of showing that the cost of implementing a IPIF policy would cause them undue hardship.

7. The decision and corrective order also affects the Gander International Airport Authority and the Air Transport Association of Canada. Neither seeks leave to appeal the decision.

B. Structure and purpose of the Canada Transportation Act

8. While an appeal lies from the Agency to the Federal Court of Appeal with leave, the appeal lies only on a question of law or jurisdiction. The findings of the Agency on questions of fact within its jurisdiction are binding and conclusive. Once leave has been granted, the Court may draw only those inferences that are not inconsistent with facts found by the Agency.

Canada Transportation ACT, supra, ss. 31, 41(1) and 41(3) Respondents' book of authorities, Appendix A, Tab 1

9. The Act provides an alternate remedy for complaints about findings of fact. The Agency has the power to reopen its decisions in order to receive additional information, as follows:

s. 32 The Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

In addition, the Governor in Council has discretion to vary or rescind any decision, order, rule or regulation of the Agency. For instance, in CCD v. VIA, the Court held the Agency would be free to review its final decision in light of an expert report not prepared until after that decision was issued. In this case, evidence from the carriers of the actual cost of an IPIF policy, once implemented, could constitute evidence that might cause the Agency to review its decision.

Canada Transportation ACT, supra, ss. 32, 40 Respondents' book of authorities, Appendix A, Tab 1

CCD v. VIA, supra, paras. 236-237 Respondents' book of authorities, Appendix B, Tab 5

10. As Air Canada acknowledges, the Agency is a senior administrative tribunal with broad and deep knowledge of economic, financial, logistical and operational matters affecting the Canadian transportation industry. It has knowledge respecting how economic conditions in the industry are likely to affect carriers. Both its legislative and adjudicative mandate give the Agency a firm understanding of accessibility issues for persons with disabilities. In light of its expertise, the Agency was given the jurisdiction to determine the ultimate question arising in this case: whether a IPIF policy would cause undue hardship to the carriers.

Moving party's memorandum of fact and law, para. 75

CCD v. VIA, supra, para. 93 Respondents' book of authorities, Appendix B, Tab 5

11. The Supreme Court of Canada has found that the Agency "is expected to bring its transportation policy knowledge and experience to bear on its interpretations of its assigned statutory mandate." The Supreme Court has also warned courts against "unravel[ing] the essence of the decision and undermin[ing] the very characteristic of the Agency which entitles it to the highest level of deference from a court – its special expertise."

CCD v. VIA, supra, paras. 88-98 Respondents' book of authorities, Appendix B, Tab 5

12. Making transportation services accessible to persons with disabilities figures prominently in the National Transportation Policy, which is set out in the Act. The "object" underlying the Agency's accessible transportation jurisdiction [Part V] is "eliminating undue obstacles in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities", as is expressly set out in section 170(1). Section 172 is the mechanism through which the regulations are enforced and inquiries conducted into matters relating to the mobility of persons with disabilities. Some applications under section 172 may be restricted to the way a particular carrier treated a particular individual on a particular day, but others may not. When the purpose of the legislation is the elimination of obstacles, it is clear some obstacles may have a broad impact on many people with disabilities.

Canada Transportation ACT, supra, ss. 5, 170(1) and 172 Respondents' book of authorities, Appendix A, Tab 1

Decision, Appendix C Moving party's motion record, Vol. 1, Tab B, pg. 208

13. In exercising its Part V jurisdiction, the Agency has extensive authority to govern its own process. It has the all the powers of a superior court to compel attendance, examine witnesses, order production of documents, inspect documents and enforce its orders, and the powers of the Federal Court to award costs. The Agency also has broad legislative jurisdiction to enact regulations directed toward eliminating undue obstacles in the federal transportation system.

CCD v. VIA, paras. 93 and 230 Respondents' book of authorities, Appendix B, Tab 5

14. In CCD v. VIA, the Court addressed the "undue hardship" issue arising under the Act:

(i) Determining "undue hardship" falls squarely within the Agency's jurisdiction. Given that the Agency's jurisdiction to entertain a complaint under section 172(1) turns almost exclusively on its own discretionary decision-making, section 172(1) is a jurisdiction- granting, not jurisdiction-limiting, provision.

CCD v. VIA, para. 75 Respondents' book of authorities, Appendix B, Tab 5

(ii) The "undueness" inquiry falls squarely within [the Agency's] statutory mandate.

CCD v. VIA, para. 99 Respondents' book of authorities, Appendix B, Tab 5

(iii) The "immediacy or obviousness" to a reviewing court of a defective stand in the analysis is not, in the face of the inevitable subjectivity involved, a reliable guide to whether a given decision is untenable or evidences an unreasonable interpretation of the facts or the law.

CCD v. VIA, para. 103 Respondents' book of authorities, Appendix B, Tab 5

(iv) To engage in a wide-ranging review of a tribunal's specific conclusions when its interpretation cannot be said to be irrational or unreasonable, would be an unwarranted trespass into realm of re-weighing and re-assessing evidence. Where an expert specialized tribunal has charted an appropriate analytical course for itself, with reasons that serve as a rational guide, reviewing courts should not lightly interfere with its interpretation and application of its enabling legislation.

CCD v. VIA, para. 104 Respondents' book of authorities, Appendix B, Tab 5

(v) In the absence of specific evidence of undue hardship, the Agency's rejection of VIA's economic arguments was inconsistent with the rule established by the Supreme Court that "impressionistic evidence of increased expense will not generally suffice."

CCD v. VIA, para. 109 Respondents' book of authorities, Appendix B, Tab 5

C. Application before the Canadian Transportation Agency

15. On November 19, 2002, the respondents, together with the late Eric Norman, brought an application, pursuant to section 172 of the ACT, asking the Agency to inquire into whether the carriers' fare policies created an undue obstacle to the mobility of persons with disabilities and, if so, to order corrective measures. Mr. Norman was disabled by paraplegia and Ms. Neubauer by severe rheumatoid arthritis. They were joined by the intervenor, Linda McKay-Panos, a person disabled as a result of her obesity who requires additional seating to travel by air.

16. The respondents sought to have the carriers implement a 1P1F regime for domestic air travel. This regime would have four aspects:

1. any person required by airline tariffs to travel with an attendant (to meet disability-related personal care or safety needs in-flight) would be entitled to have the attendant travel free of charge;
2. any person who is disabled by obesity and who cannot lower the armrest of a seat safely and with dignity would be entitled to a second adjacent seat free of charge or a larger seat at no additional charge;
3. any other person who requires additional seating to accommodate a disability would be entitled to that seating free of charge; and
4. the Gander International Airport Authority ("GIAA") and the Air Transport Association of Canada ("ATAC") would not collect airport improvement fees on additional seats provided to persons with disabilities.

17. In response, the carriers conceded that their fare policies imposed an obstacle to the mobility of persons with disabilities. They asserted, though, that the obstacle was not undue. They further asserted that the implementation of a 1P1F rule would result in undue and unreasonable hardship to them, including an increase in the financial burden already borne in accommodating persons with disabilities, as well as prejudice to their competitive advantage.

18. The applicants adduced expert evidence before the Agency, as follows:

1. Adele Furrie, an expert on disability demographics and the design and analysis of disability data, especially as it relates to persons with disabilities in Canada who may require more than one aircraft seat;
2. Dr. David Lewis, an expert in the economic impact of accommodating the transportation needs of persons with disabilities on both transportation service providers and persons with disabilities. He gave evidence on the financial and economic effects of 1P1F on the airline industry, airline passengers and the general public; and
3. Robert Brown, a former chief executive officer of Pricewaterhouse Coopers with expertise on accounting practice and the impact of taxation on the corporate bottom line.

19. The intervenor put forward opinion evidence from Laurie Ringaert as an expert in disability studies, in anthropometrics, and in universal design.

20. The carriers adduced expert evidence from:

1. Professor Frederick Lazar, an expert respecting the economic significance of the air transport industry, the economic factors affecting entry to an carrying on business in that industry, and the impact of regulations on that industry;
2. Richard Crosson, a chartered accountant able to give opinion evidence respecting the potential financial implications of transactions which impact the sale of tickets for transportation by air, as well as methods of asset valuation;
3. Brenda Pask, a chartered accountant qualified as an expert to give evidence on the financial impact to WestJet Airlines of a 1P1F rule;
4. Dr. Michael Tretheway, an expert on economic theory who gave evidence respecting whether a 1P1F policy would impose any competitive disadvantage on the carriers; and
5. Professor David Allison, a biostatistician who gave expert evidence on the prevalence of obesity and the link between body mass index and girth.

21. The Agency produced expert evidence from:

1. Professor Peter Katzmarzyk, who gave expert evidence evaluating the evidence of Professor Allison and other submissions respecting obesity; and
2. Richard Fisher, an aviation consultant who provided an expert report evaluating the evidence of the applicants and carriers in terms of the cost to the carriers of travel by persons with disabilities and those requiring additional seats.

22. The Agency also received voluminous viva voce and affidavit evidence from many lay witnesses. These included: the individual applicants Ms. Neubauer and Mr. Norman; a Transport Canada employee called by the Agency; and a total of 38 additional witnesses for the carriers.

Decision, paras. 74-86 Moving party's motion record, Vol. 1, Tab B, pgs. 30-31

23. The Agency thoroughly investigated and considered all issues raised by the parties, including conducting extensive written pleadings and holding a 23-day oral hearing. The oral hearing was held for the express purpose of affording the carriers an opportunity to present and test evidence respecting the undueness of obstacles and proposed corrective measures. In the course of over four years, the carriers had a full and fair opportunity to make their case.

Decision, paras. 88-91 and Appendix D, particularly para. 19 Moving party's motion record, Vol. 1, Tab B, pgs. 32, 209-224

24. Of significance to this motion, a recurring issue throughout was the carriers' refusal to produce evidence of the actual numbers of persons with disabilities who travel by air using additional seating. During the hearing, carrier expert Mr. Crosson advised the Agency that his data on numbers of persons with disabilities who require extra seats would come from carrier "reservation and passenger management systems".[1] At the conclusion of the May 2005 oral hearings, the Agency Chair stated:

It would be most helpful if the carriers could, between this hearing and the next, track the number of persons with disabilities who request and receive, or who are required to use an additional seat or seats in order to accommodate their disability, as well as the number of persons who are obese and who, as a result, require an additional seat for themselves.[2]

When the carriers did not produce this data, the respondents requested through interrogatories that the carriers provide information regarding the actual number of flights taken from 2001 to 2005 by members of the target population. The respondents's expert Dr. Lewis had advised that this information would provide the Agency with the best evidence of the cost of the carriers' current accommodation policies, as well as of the potential cost of a 1P1F policy to the carriers. The carriers steadfastly refused to produce this actual data. They acknowledged their burden of proving undue hardship and accepted that they elected not to produce the requested data "at their peril".[3] In light of that submission, the Agency ultimately acceded to their request to be allowed to choose "the manner in which [their] case should be developed".

Decision, paras. 228 and 777 and Appendix D, paras. 28-32 Moving party's motion record, Vol. 1, Tab B, pgs. 54, 174, 215-217

25. Belatedly, after closing their case, the carriers produced an addendum submission from their expert Mr. Crosson, in response to the applicants' concerns that the carriers had failed to produce evidence on the cost of a 1P1F policy. Over the objection of the applicants, the Agency admitted this evidence (which still did not provide the answers sought by the applicants). As such, the carriers were given every opportunity to make their case.

Decision, paras. 61 and 777 Moving party's motion record, Vol. 1, Tab B, pgs. 26 and 174

26. As a result of these tactical decisions by the carriers respecting the evidence they would produce, the parties were obliged to turn to various surrogates for the missing actual data. Mr. Fisher, the expert called by the Agency, summed it up this way:

I'm not sure if I want to use the word fuzzy or not, but you get into an area where you are dealing with a higher level of uncertainty than you would had there been a concrete number at the beginning stating that, on a factual basis, this is the number of persons with disabilities traveling who require an attendant. Yes it would have been nice to have the real number.[4]

Decision, paras. 228 and 777 and Appendix D, paras. 28-32 Moving party's motion record, Vol. 1, Tab B, pgs. 54, 174, 215-217

C. The decision of the Canadian Transportation Agency

27. By decision dated January 10, 2008, the Agency allowed the application. It found that the fare policies of the carriers amounted to an undue obstacle to the mobility of persons with disabilities. Having made that finding, the Agency exercised its authority under section 172(3) of the Act to make the following order:

1. the carriers are prohibited from charging a fare for additional seats to the following persons with disabilities:
   • those who are required by the carriers' tariff to be accompanied by an attendant;
   • those who are disabled by obesity; and
   • all other persons who require additional seating to accommodate a disability; and
2. the GIAA shall not charge or collect an airport improvement fee for additional seats needed by persons with disabilities who are required by the carriers' tariff to travel with an attendant.

Decision, paras. 914-919 Moving party's motion record, Vol. 1, Tab B, pgs. 201-202

28. The Agency allowed a twelve-month grace period for the order to be implemented.

Decision, paras. 915, 918 and 919 Moving party's motion record, Vol. 1, Tab B, pgs. 201-202

29. The 1P1F regime is limited to air transportation services provided to passengers within points in Canada ("domestic air services"). It excludes domestic segments of international trips.

Decision, para. 2 and Appendix B Moving party's motion record, Vol. 1, Tab B, pgs. 14 and 205

30. The carriers have tariffs defining the persons whose personal and safety needs require them to be accompanied by an attendant as a condition of travel. The corrective order is limited to those persons. It does not include persons with disabilities who prefer to travel with an attendant but are not required by the carriers to do so.

Decision, para. 136 Moving party's motion record, Vol. 1, Tab B, pg. 43

31. In reaching its decision, the Agency properly considered the legislative framework and the applicable case law. The Agency pointed out that Part V of the Act is human rights legislation meant to ensure that persons with disabilities are not unduly discriminated against within the federal transportation network. The Agency noted principles of accessibility, including the fundamental concepts that persons with disabilities must be treated with dignity and are entitled to reasonable accommodation to remove undue obstacles. The Agency took guidance from the CCD v. VIA case and provided the parties with ample opportunity to make submissions on its relevance. Nowhere in this motion does Air Canada assert that the Agency erred in its statement or application of the legislative framework or this guiding case law.

Decision, paras. 92-107 Moving party's motion record, Vol. 1, Tab B, pgs. 33-38

CCD v. VIA, supra Respondents' book of authorities, Appendix A, Tab 5

32. Based on those principles, the Agency applied the following test to reach its decision:

1. Do the fare policies mount an obstacle to the mobility of persons with disabilities?
2. If so, the onus shifts to the carriers to prove, on a balance of probabilities, that obstacle is not undue, by demonstrating that the source of the obstacle is reasonable and bona fide, meaning it:
   1. is rationally connected to a legitimate objective;
   2. was adopted by the carriers with an honest and good faith belief that it was necessary to the fulfillment of that legitimate objective; and
   3. is reasonably necessary for the accomplishment of the objective, such that it is impossible for the carriers to accommodate the disability without imposing undue hardship on the carriers.

Decision, paras. 171-176 Moving party's motion record, Vol. 1, Tab B, pgs. 50-51

CCD v. VIA, supra, at paras. 119-120 Respondents' book of authorities, Appendix B, Tab 5

33. The first element (the existence of an obstacle) was conceded by the carriers. The onus then shifted to them to establish that the obstacle was not undue.

Decision, paras. 155, 177 and 203 Moving party's motion record, Vol. 1, Tab B, pgs. 47, 51 and 56

34. With respect to the rational connection element, the Agency accepted that the source of the obstacle (their policy of setting fares on a per seat basis) was rationally connected to a legitimate objective (the recovery of costs incurred to provide the service and to provide economic benefit to the carriers) which is recognized in section 5 of the Act.

Decision, paras. 205-207 Moving party's motion record, Vol. 1, Tab B, pg. 56

35. Respecting the good faith element, the Agency also accepted that the carriers acted honestly and in good faith in adopting the policy to set fares on a per seat basis, and that the carriers were motivated by business reasons rather than an intention to discriminate.

Decision, paras. 208-210 Moving party's motion record, Vol. 1, Tab B, pgs. 56-57

36. Therefore, the decision focused exclusively on whether implementing a 1P1F policy to address the needs of persons with disabilities would cause undue hardship on the carriers. The carriers bore the burden of proving undue hardship on a balance of probabilities. The Agency devoted nearly 150 pages of its reasons to a comprehensive and thoughtful consideration of the issue of undue hardship, and concluded that the carriers had failed to establish this element.

37. The carriers' main argument (and the only one relevant to this motion) was that the economic and financial implications of the cost of implementing a 1P1F policy would amount to undue hardship on the carriers. As noted above, the carriers refused to produce any concrete evidence respecting the actual cost of accommodating members of the target population. Therefore, to determine the estimated cost of accommodation through the 1P1F policy, the Agency fully considered and weighed the evidence and arrived at the following findings of fact:

Incidence (the number of times that the carriers may be expected to provide accommodation to persons under the 1P1F policy):

• the number of persons who require additional seating to accommodate their attendants would comprise 3.6 percent of the total number of persons with disabilities traveling by air (around 25,000 of 715,000 people);[5]
• the number of persons who require additional seating due to disabling obesity is 2 percent of the adult Canadian population (around 480,000 of 24.4 million people);[6]
• it was not necessary to estimate separately the extremely small number of persons who require additional seating for other disability-related reasons;[7]
• persons who require additional seating as a result of obesity have a ten percent propensity to travel using domestic air services as compared to the general population, as a result of the severity of their obesity;[8]
• therefore, the number of 1P1F eligible Canadians who travel by air is 80,598;[9]
• the number of trips taken by the target population would average 2.5 one-way trips per person per year, such that the number of 1P1F trips taken by eligible persons who travel by air would be 201,496 per year;[10] and
• of that number, only 83,076 trips per year would be eligible domestic trips.[11]

Calculation of costs based on the incidence rate – the Agency considered competing expert evidence respecting the cost methodology to be employed, and accepted the "Yield Management Methodology" propounded by the carriers' expert Professor Lazar. [12] Applying that methodology, the Agency estimated the annual net cost of a 1P1F policy would total $8,554,102.00 (or $0.77 per domestic passenger trip for Air Canada and $0.44 for WestJet) for the carriers, taking into account the relevant revenue losses/gains and tax implications. [13]

38. The carriers also argued that undue hardship would be caused by losses in competitive advantage caused by a 1P1F policy, in that carriers required to adopt a 1P1F policy would receive most of the demand by persons with severe disabilities for additional seating to travel by air. Further, the carriers asserted that non-disabled passengers would ultimately subsidize the cost of the 1P1F policy for passengers with disabilities ("cross-subsidization"). The Agency rejected both arguments after considering all the expert evidence on the issue, noting in part that the carriers together comprised approximately 90 percent of the domestic market, and also that the Supreme Court recognizes cross-subsidization as being reasonable for the achievement of accommodation for persons with disabilities.

Decision, paras. 715-747 Moving party's motion record, Vol. 1, Tab B, pgs. 161-168

39. The Agency went on to weigh the costs of a 1P1F policy in light of the carriers' ability to absorb the costs. After an extensive examination of the evidence, the Agency concluded that, as compared to the carriers' gross passenger revenues, the costs of a 1P1F policy would not be material, in particular because the impact for both carriers would be within the margin of error in terms of general revenue expectations. As such, costs constraints did not constitute undue hardship which would justify a lack of accommodation of persons with disabilities.

Decision, paras. 759-829 Moving party's motion record, Vol. 1, Tab B, pgs. 170-184

40. The carriers also argued that it would be operationally impossible to have an effective screening mechanism to determine eligibility under a 1P1F policy. The Agency found that this position was unreasonable on its face, given that eligibility screening mechanisms are common in society and that both carriers already had some level of disability-screening processes in place.

Decision, paras. 830-881 Moving party's motion record, Vol. 1, Tab B, pgs. 184-195

41. The Agency concluded that the carriers had failed to meet their burden of proving that they would experience undue hardship if required to accommodate persons with disabilities by implementing the 1P1F policy.

Decision, paras. 882-885 Moving party's motion record, Vol. 1, Tab B, pgs. 195-196

42. In light of that conclusion, it was not necessary for the Agency to consider whether alternative measures proposed by the respondents would be reasonable (such as a 50% discount on certain fares or ad hoc accommodation). In obiter, though, the Agency commented negatively on these alternatives, noting that such measures did not provide any certainty to persons with disabilities that their disability-related transportation needs would be met.

Decision, paras. 886-893 Moving party's motion record, Vol. 1, Tab B, pgs. 196-197

43. After reiterating the principles of accessibility which have long been recognized as fundamental in Canadian society, the Agency ordered the corrective measures described above.

Decision, paras. 894-919 Moving party's motion record, Vol. 1, Tab B, pgs. 198-202

PART II – STATEMENT OF POINTS IN ISSUE

44. In its statement of points in issue, Air Canada lists twelve points which it states are in issue. In its statement of submissions, Air Canada recharacterizes these points into nine and then seven issues. The respondents will address these issues in the following manner:

1. the test for granting leave to appeal;
2. there is no arguable case that the Agency erred in law in assessing the evidence (Air Canada's issues 1, 2, 3 and 5);
3. there is no arguable case that the Agency erred in law by departing from the legal test for assessing the economic conditions within which the financial impact of the 1P1F policy should be considered (Air Canada's issue 4);
4. there is no arguable case that the Agency erred in law in assessing the relevance of historical accommodation (Air Canada's issue 6); and
5. there is no arguable case that the Agency erred in law in its assessment of undue obstacles and undue hardship (Air Canada's issue 7).

PART III – STATEMENT OF SUBMISSIONS

Issue 1 – The test for granting leave to appeal

45. Section 41 of the Act prohibits parties from seeking leave to appeal decisions of the Agency, except on questions of law or questions of jurisdiction. A party may not seek leave to appeal from findings of fact. The Act provides that the Agency's determination "on a question of fact within its jurisdiction is binding and conclusive".

Canada Transportation ACT, supra, ss. 31, 41(1) Respondents' book of authorities, Appendix A, Tab 1

46. Even if leave to appeal is granted, the appellate court is permitted to draw only those factual inferences which are not inconsistent with the facts expressly found by the Agency. As such, findings of fact made by the Agency are inviolable.

Canada Transportation ACT, supra, s. 41(3) Respondents' book of authorities, Appendix A, Tab 1

47. Motions for leave to appeal serve a screening function. Before the court and other parties become engaged in a lengthy and costly exercise of an appeal, a party seeking to appeal must demonstrate that it has an "arguable case" with "serious points to urge" on a question of law or jurisdiction. The respondents adopt the submissions of Air Canada in this respect.

Moving party's memorandum of fact and law, para. 11

48. Air Canada does not raise any jurisdictional questions in this motion. Questions of law will be reviewed by an appellate court on a standard of whether the decision, taken as a whole, was demonstrably unreasonable. [14]

CCD v. VIA, supra, paras. 102-103 Respondents' book of authorities, Appendix A, Tab 5

49. This limitation on the right of appeal reflects the Legislature's recognition that the Agency is a senior tribunal with much expert knowledge and experience in fact-finding in the transportation context. It also reflects the fact that the proper remedy for a party complaining of findings of fact is the reconsideration authority of the Agency pursuant to section 32 of the Act.

CCD v. VIA, supra, paras. 88-90, 98, 138, 236-237 Respondents' book of authorities, Appendix A, Tab 5

Issue 2 – There is no arguable case that the Agency erred in law in assessing the evidence (Air Canada's issues 1, 2, 3 and 5)

50. Questions of law are questions about the scope, effect or application of a rule of law. However, they also include certain questions relating to factual findings. An error of law is made if a factual finding is perverse, capricious or made without regard to the evidence before the tribunal. If a tribunal has turned its mind to the right question and there is any evidence on the record upon which a tribunal could properly have reached a factual conclusion, then there has been no reviewable error of law or jurisdiction.

Canadian National Railways Co. v. Bell Telephone Co. of Canada, [1939] S.C.J. No. 17 at p. 5 Respondents' book of authorities, Appendix B, Tab 4

British Columbia Hydro & Power Authority v. Westcoast Transmission Co., [1981] F.C.J. No. 32 (F.C.A) at paras. 19, 20 and 74 Respondents' book of authorities, Appendix B, Tab 2

Equity Waste Management of Canada Corp. v. Halton Hills (Town) (1997), 35 O.R. (3d) 321 (C.A.) at para. 46 Respondents' book of authorities, Appendix B, Tab 6

51. There is no recent jurisprudence relating to Agency decisions which provides guidance on delineating errors of law from errors of fact – presumably because the privative clause precluding appeals on errors of fact is so clear. However, binding precedent may be found in the decision of the Supreme Court of Canada in Canada National Railway Co. v. Bell Telephone Co. That case concerned a decision by the Agency's predecessor, the Board of Railway Commissioners, a statutory court endowed, like the Agency, with legislative and administrative powers. That Board's decisions were subject to a virtually identical set of privative clauses to those found in ss. 41(1), 41(3) and 31 of the ACT, permitting appeals with leave only on questions of law or jurisdiction. According to Chief Justice Duff on behalf of a unanimous Court:

The effect of this [privative] section is that where a question of fact is within the jurisdiction of the Board, then the determination of that question of fact by the Board is final and conclusive. I do not think it is consistent with this provision, according to its true intendment, that the determination by the Board of an issue of fact within its jurisdiction should be susceptible of review on appeal to this Court, even by leave of the Board. The Board is not bound by the ordinary rules of evidence. In deciding upon question of fact, it must inevitably draw upon its experience in respect of the matters in the case number of cases, which come before it, as well as upon the experience of its technical advisers. Thus, the Board may be in a position in passing upon question of fact in the course of dealing with, for example, an administrative matter, to Act with a sure judgment on facts and circumstances which to a tribunal not possessing the Board's equipment and advantages might yield only a vague or ambiguous impression.

The Chief Justice concluded that the allegations that there was insufficient evidence to justify the Board's opinion that the "protection, safety and convenience of the public" standard had not been met and could not amount to an error of law, stating:

Obviously, the intention of Parliament was to charge the Board with responsibility in respect of this subject of allocation of costs, and there can be no ground for supposing that subsection 3 of section 52 was intended to make it possible to bring before this Court for determination as question of law questions which, in pith and substance, are within the administrative discretion of the Board and in respect of which the Board, subject to the appeal to the Governor in Council, is charge by the Act with exclusive responsibility.

Thus under the Railway Act privative clauses, comparable in every respect to those currently in the ACT, where the Board is acting without its jurisdiction and has not committed a reviewable error of law interpreting its statute, any errors of fact which it may commit are not reviewable.

Canadian National Railways Co. v. Bell Telephone Co. of Canada, supra, at pgs. 9 Respondents' book of authorities, Appendix B, Tab 4

52. In their submissions on this motion, the carriers appear to be under the mistaken impression that an appeal is available on errors of fact or that this is a judicial review proceeding where the remedy for an omission to make a relevant finding of fact would be to remit the case back to the trier of fact. Even if this were so, the errors alleged by the carriers would not meet the standard for granting of leave to appeal.

Minister of Human Resources v. Rafuse, [2002] F.C.J. No. 91 (F.C.A.) at para. 13 Respondents' book of authorities, Appendix B, Tab 8

Equity Waste Management of Canada Corp v. Halton Hills (Town), supra Respondents' book of authorities, Appendix B, Tab 6

53. None of Air Canada's alleged Agency errors of fact –inexplicably mischaracterized as errors of law – are perverse or capricious, made without regard to the evidence, or demonstrably unreasonable. Indeed, Air Canada does not say that they are. It merely says that they are wrong.

54. Each of the factual findings alleged to be erroneous: (1) involves the application of complex econometric models; (2) involves reliance on data not derived from the carriers' actual experience; and (3) requires extrapolation from data regarding the general population to data regarding persons with such severe disabilities that they require additional seating. The absence of actual data was a direct result of a tactical decision by the carriers: a risk they themselves accepted "at their peril". The Agency is recognized by Air Canada, as well as by the courts, as having the economic expertise to assess whether costs would cause undue hardship.

See paragraph 24 above

Trip rate – there is no arguable case that the Agency erred in finding that the average number of flights taken persons eligible for 1P1F would be 2.5 one-way flights per year (Air Canada's issue 1)

55. One of the findings of fact the Agency was compelled to make, in the absence of actual data from the carriers, concerned the average number of trips taken by persons who would be eligible for IPIF. In order to make this finding, the Agency was dependent upon the parties, who provided two studies and made a calculation. The calculation was based on Transport Canada trip data, which indicated that 10 million people took approximately 63 million trips, or just over six one-way trips per person per year.

Decision, para. 461 Moving party's motion record, Vol. 1, Tab B, pg. 108

56. The studies posed a problem in that neither stated on their face whether "trip" meant a one-way or a two-way trip. Agency expert Richard Fisher presented an American study that stated "persons with disabilities in the United States who travel by air take, on average, two trips (assumed to be round-trips) every two years, or one round-trip (two one-way trips) per year." [15]

Decision, para. 470 Moving party's motion record, Vol. 1, Tab B, pgs. 109-110

57. The other study was Canadian, conducted by carrier expert Dr. Tretheway's firm. Air Canada suggests in this motion that this establishes, beyond doubt, that Dr. Tretheway's assumption that "trip" means "two-way trip" is correct. It is not so simple. People in airports were asked how many "trips" they took per year. Dr. Tretheway said, "Now we hope that they interpret this as round trip," but he had no more knowledge of whether his assumption was correct than would the Agency. He could not say whether people answering his survey meant two-way, one-way or segments of trips with connections in between. He admitted:

After having done this proceeding and hearing this debate about this, I've already had a phone conversation with the folks back home and say we ought to re-test that question to find out if people are answering it the right way. But nevertheless, that's how the answer -- what it's intended to be. [16]

Moving party's memorandum of fact and law, para. 22

Based on his assumption that all the people surveyed were referring to two-way trips, Dr. Tretheway concluded that the average Canadian air traveller takes between 10 and 12 one-way trips per year. That figure is approximately double the Transport Canada figure and at least five times higher than the American figure for persons with disabilities.

58. The carriers are not candid in stating Dr. Lewis endorsed their conclusion concerning the 4.94 trip rate for persons requiring IPIF. When asked for his opinion on this, Dr. Lewis said:

Number one, it seemed too close to the general population number to be consistent with the fact, which is my second point, that measured trip rates among people with disabilities in general, are about half that of the general population. And my third point, that the people with more severely disabling conditions 0tend to be less mobile and travel less than those with less -- moderate condition, ergo, I presumed or came to the conclusion that the 4.94 number is on the high side. [17]

Moving party's memorandum of fact and law, paras. 13-14

59. Dr. Lewis went on to indicate his concern about the methodology and validity of the Canadian study, indicating it was "bias[ed] to the higher side." [18]

60. When the Agency's decision on this issue is considered as a whole, it will be seen that it fully and fairly considered all the evidence. Its reasons indicate it appreciated the positions taken by the parties and the evidence in support of their positions. Far from misinterpreting Dr. Tretheway's study, the Agency fully appreciated that the "problem with the way that data was expressed from the surveys is related to their lack of definition for 'trips'…" [19].

The Agency chose to interpret the study in a way that was open to it, was supported by Dr. Lewis, and was roughly in line with the Transport Canada data and the American study. Any other interpretation would have meant there was a "large difference" between them.

Decision, paras. 470 and 471 Moving party's motion record, Vol. 1, Tab B, pgs. 109-110

61. The foregoing should indicate precisely why the Act's privative clause precludes a Court from reviewing the Agency's findings of fact. Because of its special expertise, the Agency is in the best position to grapple with the complexities, contradictions and constraints posed by the evidence. No arguable case exists for overturning its findings of fact concerning trip rates.

Number of persons and travel propensity – There is no arguable case that the Agency erred in finding that 3.6% of all persons with disabilities who travel by air require an attendant and that such persons have a 10% propensity to travel (Air Canada's issue 2)

62. The distinct issues of: (1) the number of persons traveling by air who are required by the airlines to be accompanied by an attendant, and (2) travel propensity, are further examples of how the carriers' tactical decision to withhold actual data meant the parties, and ultimately the Agency, had to engage in a lengthy and complex analysis based on less than ideal data.

Decision, paras. 287-334 Moving party's motion record, Vol. 1, Tab B, pgs. 73-83

63. Contrary to Air Canada's statement in its memorandum, the report of Dr. Lazar is not restricted to "persons with disabilities who travel by air." Rather, as is correctly stated by the Agency, the study concerns all long distance trips of 80 kilometers or more, 88.7% of which are by car, van or truck and only 3.9% of which are by air. The Agency goes on to carefully explain why this inflates the figure upon which Air Canada seeks to rely.

Decision, paras. 294 and 296 Moving party's motion record, Vol. 1, Tab B, pgs. 74-75

Moving party's memorandum of fact and law, para. 32

64. It is not the Agency which has "misunderstood and ignored evidence", but rather Air Canada. It neglected to inform its own expert, Professor Lazar, that "they have a tariff that establishes the criteria for determination of whether a person requires an Attendant." Upon learning of this, Professor Lazar revised his opinion, stating the numbers would be "extremely small" and the costs of accommodating them with an IPIF policy would be "quite small, probably much smaller than the cost of challenging this." [20] Despite this retraction, Air Canada persists in asserting that Professor Lazar's original figure is correct.

Decision, para. 300 Moving party's motion record, Vol. 1, Tab B, pg. 75

Moving party's memorandum of fact and law, para. 31

65. With respect to the US DOT study referenced in Air Canada's memorandum, Dr. Lewis clearly dissociated himself from the portions upon which the carriers sought to rely, because the source documents have never been located. Professor Lazar disputed this, [21] as the Agency noted:

While Dr. Lazar stated he went behind the US DOT Evaluation report to confirm the origin of the 22 percent figure in the American Travel Survey and determined that it is accurately quoted, when he was given the opportunity to look at the American Travel Survey to confirm his testimony, he was unable to provide a reference to the 22 percent.

Not surprisingly, the Agency declined to rely on the study because it was not possible for it to assess the reliability and reasonableness of this figure.

Moving party's memorandum of fact and law, para. 33

Decision, para. 306 Moving party's motion record, Vol. 1, Tab B, pg. 77

66. The issue of travel propensity involves the Agency in determining the percentage of persons eligible for IPIF who would use domestic air services.

Decision, para. 398 Moving party's motion record, Vol. 1, Tab B, pg. 97

67. In its memorandum, Air Canada misstates Dr. Lewis' evidence on the travel propensity rate for persons with disabilities generally. Dr. Lewis agreed with the carriers' experts that persons with disabilities travel approximately 50% less than the general population. The Agency simply adopted this group's agreed-upon travel propensity rate of 18.8% in its decision.

Moving party's memorandum of fact and law, para. 34

Decision, paras. 407 and 432 Moving party's motion record, Vol. 1, Tab B, pgs. 98 and 102-103

68. Air Canada takes no issue with the Agency's finding that persons who would be eligible for IPIF are "more severely disabled than the general population of persons with disabilities" and, for reasons spelled out in the decision, have a lower travel propensity rate of 10%.

Decision, paras. 401-420 Moving party's motion record, Vol. 1, Tab B, pgs. 97-101

69. With respect to the travel propensity of persons who are so disabled by their obesity as to be eligible for IPIF, the carriers adduced no evidence. They relied on the evidence of the intervenor's structural design expert to the effect that obese people might travel "a little bit more" than persons with disabilities generally. Unfortunately for the carriers, this witness was addressing a question concerning the 23% of the general population who are obese rather than the 2% of the general population who are so morbidly obese as to be eligible for IPIF.

Decision, paras. 421-432 Moving party's motion record, Vol. 1, Tab B, pgs. 101-103

70. Using the same type of analysis as it used to determine the travel propensity rate of persons who are required to be accompanied by an attendant, the Agency went on determine that the morbidly obese would have a travel propensity of 10%. While Air Canada disagrees with the Agency's conclusion, it takes no exception to the steps it followed in reaching it.

Decision, paras. 421-453 Moving party's motion record, Vol. 1, Tab B, pgs. 101-106

76. Air Canada does take exception to the Agency's use of an agreed statement of facts concerning South West Airlines' ("South West") voluntary program of offering IPIF to persons who are so morbidly obese that they cannot be seated in one seat. [22] South West adopted the policy because it considered it to be in its business interests to do so. Since it was the only American carrier with such a policy, and has a low load factor or seat occupancy rate (as noted by Air Canada), it would have been expected that morbidly obese people would have had a strong incentive to fly South West (i.e., high propensity). However, less than one-half of one percent of South West Airlines passengers seek and receive IPIF. Air Canada's "notice" complaint is difficult to reconcile with the fact that the agreed statement was accepted into evidence and all parties were "given the opportunity" to assert its relevance. The Agency expressed satisfaction at having the kind of actual data which the carriers decided not to provide. However, contrary to Air Canada's claim that the Agency "relied heavily" on this agreed statement, it should be noted this data was merely used as a reality check by the Agency to corroborate a conclusion at which it had already arrived by the means described in the decision.

Moving party's memorandum of fact and law, paras. 36 and 37

Decision, para. 449 Moving party's motion record, Vol. 1, Tab B, pgs. 105-106

Market noise – There is no arguable case that the Agency erred in law in the methodology it used to assess the financial impact of the 1P1F policy (Air Canada's issue 3)

71. Air Canada argues that the Agency erred in law by adopting a methodology different from the methodology proposed by the expert, Dr. Lewis, on the issue of whether the financial impact of a 1P1F policy would fall within the range of "market noise".

72. As stated above, the carriers reversed their position and decided to submit expert evidence on the issue of the financial impact of a 1P1F policy on them.

See paragraph 24 above

Decision, paras. 777-786 Moving party's motion record, Vol. 1, Tab B, pgs. 174-176

73. Dr. Lewis responded at the eleventh hour to Mr. Crosson's evidence concerning the value impact of a 1P1F policy by introducing the context of market noise to assist in evaluating the real world significance of value impact changes on the carriers. The carriers took no issue with the "use of market noise as a valid context for assessing the significance of the cost of a 1P1F policy". They did, however, take issue with some of his methodological calculations. The Agency corrected Dr. Lewis and it is with this that Air Canada takes issue.

Decision, paras. 787-802 Moving party's motion record, Vol. 1, Tab B, pgs. 176-179

74. The Agency is not bound by statute or regulation to any particular methodology for making factual determinations respecting financial impact. So long as its decision demonstrates that it considered the methodologies proposed, it is free to choose a methodology, even if it is one that was proposed by neither party. As stated by this Court, in the context of an appeal from a decision of the National Energy Board respecting whether certain tolls charged to customers by Transcanada Pipelines were just and reasonable:

… I agree that the Board did not adopt the evidence of any particular witness for or against the appellant. But that does not mean the evidence was discarded or ignored. In cost of capital proceedings, the Board is entitled, on the basis of evidence before it and the use of its own judgment, to choose a methodology for determining cost of capital and to estimate the cost of capital for a forthcoming year. Very often, the Board's estimate will not reflect the precise estimates of one side or the other or of one witness or the other. Having regard to all the evidence, the Board will determine its own estimate. … [E]ven if the Board's estimate is outside that range [of estimates put forward in the evidence], if the Board shows that it considered the evidence submitted and provides adequate reasons for its opinion, the Board will not be found to have ignored evidence.

Transcanada Pipelines Ltd. v. Canada (National Energy Board), 2004 FCA 149 at para. 58

Tax Implications – There is no arguable case that the Agency erred in its findings respecting the tax consequences to WestJet of the 1P1F policy (Air Canada's issue 5)

75. WestJet submitted a report of accountant Brenda Pask which confirmed that, while it had been showing a profit for accounting purposes, it had been reporting a loss for tax purposes.

Decision, para. 680 Moving party's motion record, Vol. 1, Tab B, pgs. 152-153

76. In response, the respondents submitted a report from accountant Robert Brown. Mr. Brown pointed out that WestJet, in its audited financial statements contained in its 2006 Annual Report, "recognized a benefit on $291.7 million of non-capital losses which are available for carry forward to reduce future taxable income." Mr. Brown merely indicated to the Agency that, according to generally accepted accounting principles, this showed that WestJet itself recognized benefits attributable to its loss carry forwards as reflected in its audited financial statements. Mr. Brown indicated he had no reason to disagree with WestJet management or its auditors.

Decision, paras. 689 and 698 Moving party's motion record, Vol. 1, Tab B, pgs. 155-157

77. Therefore, contrary to Air Canada's argument in this motion that the Agency preferred Mr. Brown's evidence to that of Ms. Pask, it would be more correct to say that the Agency adopted the position of WestJet management, as reviewed and approved by its auditors.

Moving party's memorandum of fact and law, para. 51

78. Air Canada also asserts that the Agency was obliged to accept the evidence of Ms. Pask as uncontradicted, albeit in the face of contradictory evidence from Mr. Brown, simply because Ms. Pask was not cross-examined. This argument is specious. While Ms. Pask's evidence (filed after the completion of the oral hearing) was not contradicted by cross-examination, it was answered by WestJet's own Annual Report and Mr. Brown's evidence. In its reasons, the Agency discusses in detail the viva voce evidence of Mr. Brown, including his cross-examination by the carriers. There is no arguable case that the factual findings on the tax implications of a 1P1F policy were perverse or capricious.

Decision, paras. 676-700 Moving party's motion record, Vol. 1, Tab B, pgs. 152-157

Moving party's memorandum of fact and law, para. 51

Issue 3 - there is no arguable case that the Agency erred in law by departing from the legal test for assessing the economic conditions within which the financial impact of the 1P1F policy should be considered (Air Canada's issue 4)

79. Air Canada asserts that the Agency erred in law in finding that evidence of economic conditions would be relevant only if the carriers established that they would be driven into insolvency by the costs of a 1P1F policy. Air Canada accepts that the Agency correctly stated the test in its reasons – that undue hardship may be proved without proving that the costs of accommodation would lead to insolvency – but say that the Agency failed to properly apply the test it had correctly stated.

Moving party's memorandum of fact and law, paras. 12(f) and 48-50

Decision, para. 821 Moving party's motion record, Vol. 1, Tab B, pg. 183

80. The Agency's reasons for decision expressly state its finding that the carriers failed to prove that the impact of a 1P1F policy "would be harmful to them to the point that it would be unreasonable, impracticable or impossible for them to provide the accommodation requested" [emphasis added]. This finding is a proper application of the legal test. It is applied consistently throughout the decision.

Decision, paras. 9, 15, 30, 70, 175, 186, 192, 197, 200, 805, 821, 824, 826, 857 and 904 Moving party's motion record, Vol. 1, Tab B, pgs. 16, 17, 20, 29, 51, 53, 54, 55, 179, 183, 184, 190 and 199

81. While the Agency asked itself whether the carriers "could weather a future economic downturn", this was not an erroneous or irrelevant consideration. The Supreme Court has recognized that a relevant factor for the Agency to consider is the likelihood that imposing the cost of the accommodation would "threaten the survival of an enterprise or alter its essential character." In this case, the Agency stated that it would almost certainly find undue hardship if the carriers demonstrated that the cost of a 1P1F policy would threaten their viability, but that it would also consider evidence of undue hardship which fell short of that threshold. In assessing the evidence adduced, the Agency recognized that the airline industry is cyclical and that the carriers had already established mechanisms for weathering economic downturns. Thus, the Agency found that, "to simply state … that an economic downturn is, in and of itself, likely insufficient to demonstrate that the carriers… cannot incur a cost." This reflects a proper understanding of the legal test. While undue hardship may involve something less than insolvency, the Agency is not bound at law to find undue hardship simply if the carriers show any negative impact on their ability to weather a future economic downturn. There is no arguable case that the Agency erred in its application of the legal test in this respect.

CCD v. VIA, supra, at para. 132 Respondents' book of authorities, Appendix B, Tab 5

Decision, para. 773, 821 and 824 Moving party's motion record, Vol. 1, Tab B, pgs. 173 and 183

Moving party's memorandum of fact and law, para. 49

Issue 4 - there is no arguable case that the Agency erred in law in assessing the relevance of historical accommodation (Air Canada's issue 6)

82. The respondents accept that there is no dispute respecting the forms of accommodation already provided to persons with disabilities (most of which are mandated pursuant to the Air Transportation Regulation) and the costs of that accommodation to the carriers – called the "historical costs of accommodation". This issue turns on whether it is arguable that the Agency erred in rejecting the carriers' submission that their existing forms of accommodation already provide sufficient assistance for persons who would benefit from 1P1F.

Moving party's memorandum of fact and law, paras. 12(h), 52-63

Decision, paras. 750-753 Moving party's motion record, Vol. 1, Tab B, pgs. 168-169

83. In assessing this evidence, the Agency found that, while the carriers identified the historical costs of accommodation provided to persons with disabilities as a group, they did not identify the component costs associated with providing services to the particular sub-group of disabled persons who would benefit from a 1P1F policy. Air Canada says that this approach was erroneous because the Agency has focused on the costs of accommodating one particular aspect of a person's disability (i.e., the need for additional seating) rather than the costs of providing accommodation for that person's disability as a whole (i.e., wheelchair assistance, pre-boarding and deplaning assistance, and moving within the aircraft).

Decision, para. 758 Moving party's motion record, Vol. 1, Tab B, pg. 170

Moving party's memorandum of fact and law, paras. 56(b), 61-63

84. With respect, there is no arguable case that the Agency erred in taking this approach. Air Canada acknowledges the words of the Supreme Court of Canada, quoted by the Agency, that "It has never been the case that all forms of disability are engaged when a particular one is said to raise an issue of discrimination." In that case, the Court went on to say:

While there are undoubtedly related conceptual considerations involved, they may nonetheless call for completely different remedial considerations.  A "reasonable accommodation", "undue hardship", or "undue obstacle" analysis is, necessarily, defined by who the complainant is, what the application is, what environment is being complained about, what remedial options are required, and what remedial options are reasonably available. 

Decision, para. 62 Moving party's motion record, Vol. 1, Tab B, pg. 26

Moving party's memorandum of fact and law, para. 62

CCD v. VIA, supra, para. 224 Respondents' book of authorities, Appendix B, Tab 5

85. In this case, the Agency properly applied the principles put forth by the Supreme Court. A person with a disability who requires additional seating but cannot afford to pay for it will never benefit from the other forms of accommodation offered by the carriers. Even if the carriers spent more than $13 million providing wheelchair assistance and pre-boarding assistance to persons with disabilities who travel, it would have no impact on alleviating the obstacle to the travel of persons who are unable to fly because they cannot afford to pay multiple fares.

86. Air Canada further argues that the Agency's failure to properly balance the needs of the carriers (in terms of historical costs) against the needs of persons who would benefit from a 1P1F policy. In the decision, after noting that the carriers did not produce evidence of the particular costs of accommodating the target population, the Agency found that it would balance historical costs into its consideration of the carriers' overall operating and fixed costs, as well as its consideration of the additional cost of a 1P1F policy.

Moving party's memorandum of fact and law, paras. 56(b) and 57 to 60

Decision, para. 758 Moving party's motion record, Vol. 1, Tab B, pg. 170

Issue 5 – there is no arguable case that the Agency erred in law in its assessment of undue obstacles and undue hardship (Air Canada's issue 7)

87. Air Canada says the Agency erred in finding that the carriers bore the burden of adducing evidence to prove that they would be unable to bear the cost of a 1P1F policy. It interprets the Agency's straightforward statement of the burden of proof as the Agency's requirement that the carriers adduce expert evidence on the "ultimate issue" of undue hardship.

88. This very argument was made before the Agency. In the decision, the Agency demonstrates that it turned its mind to this issue, by providing detailed reasons on the carriers' arguments, as well as reasons for its decision to reject those arguments. As such, there is no arguable case that an error of law or jurisdiction was made.

Decision, paras. 804 and 805 Moving party's motion record, Vol. 1, Tab B, pgs. 179-180

CCD v. VIA, supra, at paras. 109 and 222 Respondents' book of authorities, Appendix B, Tab 5

89. The Agency's finding was based on principles articulated by the Supreme Court of Canada in CCD v. VIA. The Court accepted that it was proper for the Agency to make assessments of the impact of a proposed corrective measure by examining evidence including: the carrier's budget, corporate plan, performance targets, total revenues, cost-recovery ratio, operational funding surplus, and contingency fund. This is in keeping with the Court's finding that impressionistic evidence of increased expense will generally not suffice.

CCD v. VIA, supra, at paras. 109 and 222 Respondents' book of authorities, Appendix B, Tab 5

90. The Agency's use of the phrase "significance of the impact of the costs" in its reasons is bluntly characterized by Air Canada as shorthand for the "ultimate issue". The Agency's reasons for decision, however, demonstrates that the Agency was requesting evidence of the economic ramifications of a 1P1F policy on the carriers' business plans and operations: that is, evidence of "hardship". The Agency's reasons reveal that it was well aware that the determination of whether that hardship was "undue" would remain in its domain.

91. During the hearing, the Agency made the carriers aware of the Agency's view it would appreciate additional evidence on the financial significance of a 1P1F policy on the carriers. The carriers had full notice of the evidence being sought, but chose to forego – repeatedly – every opportunity to provide it.

See paragraphs 23-25 above

92. Air Canada's position is even more puzzling in light of its concession that the ultimate issue rule is not applied in absolute terms in Canada. The rule is used mainly to prohibit expert evidence on the assessment credibility, which is a prime function of the trier of fact. Evidence on the ultimate issue is permissible where it is necessary and relevant, criteria which would easily have been met in this case.

Moving party's memorandum of fact and law, para. 70

Sopinka, et al., The Law of Evidence in Canada, 2nd ed (Markham, Ont.: Butterworths, 1999)at paras. 12.70, 12.71, 12.73-12.76, and 12.79 Respondents' book of authorities, Appendix B, Tab 10

93. It is noteworthy that the Mohan case cited by Air Canada is readily distinguishable on the basis that the issue in that case related to issues touching upon credibility: whether expert evidence is admissible to show that character traits of an accused person do not fit the psychological profile of the putative perpetrator of the offences charged.

Moving party's memorandum of fact and law, para. 70

R. v. Mohan, [1994] 2 S.C.J. No. 36 Respondents' book of authorities, Appendix B, Tab 7

94. In light of the gap left in the evidentiary record by the carriers, there is no arguable case that the Agency's decision on this issue could be overturned on appeal.

Conclusion

95. Reflecting societal values, Canadian law recognizes the historical vulnerabilities of persons with disabilities and the fundamental principle that such persons are entitled to have intrinsic worth and dignity validated through accommodations of their disabilities. As such, transportation law requires that persons with disabilities are prima facie entitled to have undue obstacles to their mobility accommodated, unless accommodation would create an undue hardship on the transportation industry.

96. In the hearing before the Agency, the carriers – immensely profitable business enterprises – were faced with establishing that the costs of accommodating the disabilities of the target population would cause undue hardship. Despite being presented with full opportunities to do so, the carriers never produced the best evidence, which was available only to them: concrete data on the number of persons who may benefit from a 1P1F policy. Being unable or unwilling to produce that evidence, however, the carriers pinned their hopes instead on impressionistic evidence. Only because of this tactical decision was the Agency compelled to embark upon an assessment of voluminous opinion and lay evidence in order to make factual findings. In this motion, discovering that the Agency did not weigh the evidence exactly as they would have wished, Air Canada now complains that the Agency erred.

97. The essential issue raised by Air Canada is whether the implementation of a 1P1F policy would cost it too much. While failing to establish that the costs would be unreasonable, impracticable or impossible for it to bear, Air Canada continues to argue about the cost of the accommodations. The admonishment of the Supreme Court of Canada in this respect should be heeded: tribunals "must be wary of putting too low a value on accommodating the disabled."

Decision, para. 743 Moving party's motion record, Vol. 1, Tab B, pgs. 166-167

98. The Agency made this decision properly within its jurisdiction and mandate to safeguard the human rights of persons with disabilities. The carriers have failed to show any arguable case that the Agency erred in so doing.

PART IV – ORDER SOUGHT

99. The respondents seek the following relief:

1. an Order dismissing this motion for leave to appeal; and
2. an order that the moving party pay the respondents' costs of this motion on a solicitor-and-client basis.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

David Baker

Kelley Bryan

February 29, 2008

PART V – LIST OF AUTHORITIES

Legislation

Canada Transportation ACT, S.C. 1996, c. 10, ss. 5, 31, 32, 40, 41(1)(3), 170(1), 172

Jurisprudence

British Columbia Hydro & Power Authority v. Westcoast Transmission Co., [1981] 2 F.C. 646 (T.D.)

British Columbia (Public Service Employee Relations Commission) v. BSGSEU, [1999] 3 S.C.R. 3

Canadian National Railways Co. v. Bell Telephone Co. of Canada, [1939] S.C.R. 308

Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650

Equity Waste Management of Canada Corp. v. Panorama Investment Group Ltd. (1997), 35 O.R. (3d) 321 (C.A.)

R. v. Mohan, [1994] 2 S.C.R. 9

Rafuse v. Canada (Pension Appeals Board), [2002] F.C.J. No. 91 (F.C.A.)

Transcanada Pipelines Ltd. v. Canada (National Energy Board), 2004 FCA 149

Other

Sopinka, et al., The Law of Evidence in Canada, 2nd ed. (Markham, Ont.: Butterworths, 1999)

Footnotes

• [1] Transcript of Proceedings (June 2, 2005), pg. 726 Respondents' motion record, pg. 65.
• [2] Transcript of Proceedings (June 3, 2005), pgs. 981-983 Respondents' motion record, pg. 66-68.
• [3] Written submission of Mr. Chouest (July 28, 2005) at pg. 3 Respondents' motion record, pg. 3.
• [4] Transcript of Proceedings (November 29, 2006), pg. 3181 Respondents' motion record, pg. 69.
• [5] Decision, paras. 235-334 Moving party's motion record, Vol. 1, Tab B, pgs. 61-83. The Agency preferred the evidence of the applicants' expert, Dr. Lewis, over the evidence of the carriers' expert, Professor Lazar, who had estimated that persons who required an attendant would amount to 18.5% of the total population of air travelers.
• [6] Decision, paras. 338-396 Moving party's motion record, Vol. 1, Tab B, pgs. 83-96. The Agency accepted the carriers' position on this issue.
• [7] Decision, para. 397 Moving party's motion record, Vol. 1, Tab B, pgs. 96-97. The Agency noted that the carriers had failed to adduce evidence on this issue although they were they only parties in the position to do so.
• [8] Decision, paras. 421-451 Moving party's motion record, Vol. 1, Tab B, pgs. 101-106.
• [9] Decision, paras. 452-453 and Table 2 Moving party's motion record, Vol. 1, Tab B, pgs. 106-107.
• [10] Decision, paras. 454-482 and Table 3 Moving party's motion record, Vol. 1, Tab B, pgs. 107-112. In this respect, the Agency preferred the evidence of carriers' expert, Dr. Tretheway.
• [11] Decision, paras. 483-493 Moving party's motion record, Vol. 1, Tab B, pgs. 112-115.
• [12] Decision, paras. 494-612 Moving party's motion record, Vol. 1, Tab B, pgs. 115-138.
• [13] Decision, paras. 613-701 and Table 21 Moving party's motion record, Vol. 1, Tab B, pgs. 139-158.
• [14] Previous jurisprudence respecting the standard of review must be considered in light of the CCD v. VIA decision.
• [15] Moncrieff Management Limited Report and Resume on Air Travel for Persons with Disabilities who Require Additional Seating due to their Disabilities (August 11, 2006), pg. 2-13 Respondents' motion record, pg. 10.
• [16] Transcript of Proceedings (November 17, 2006), pgs. 1901-1902 Respondents' motion record, pg. 70-71.
• [17] Transcript of Proceedings (November 28, 2006), pg. 3127 Respondents' motion record, pg. 72.
• [18] Transcript of Proceedings (November 28, 2006), pg. 3128 Respondents' motion record, pg. 73.
• [19] Transcript of Proceedings (November 29, 2006), pg. 3188 Respondents' motion record, pg. 74.
• [20] Transcript of Proceedings (November 15, 2006), pgs. 1498-1505 Respondents' motion record, pgs. 75-82.
• [21] Transcript of Proceedings (November 28, 2006), pgs. 2983-2984 Respondents' motion record, pgs. 83-84.
• [22] Agreed Statement of Fact on South West Airlines' Customer of Size Policy Respondents' motion record, pg. 58-64.