January 12 2011

On October 13 2010 the Federal Court released its reasons for setting aside a decision of the Canadian Human Rights Tribunal, which in turn had issued
a decision inconsistent with a prior decision of the Canadian Transportation Agency dealing with the same passenger complaint.
(1)

This latest (but not last) in a series of decisions addresses an important jurisdictional issue: the comparative competence of the agency and the tribunal
to address complaints regarding discrimination based on disability in the Canadian transportation network. The Federal Court found that Parliament intended that the agency should handle certain disability-related complaints, and that within this category of complaint the apparatus defined by the Canadian Human Rights Act does not provide an alternative recourse.

These proceedings arise out of a decision made by Air Canada in Summer 2004. The complainant, Mr Eddie Morten, is profoundly deaf and has extreme visual disabilities. He has no light perception in his left eye and extremely limited vision in his right. An ophthalmologist who reviewed Morten’s medical records stated that he sees the world as through the smoky barrel of a rifle. Furthermore, he suffers from nystagmus, a condition which causes objects in his limited visual field to appear to move erratically, and which has an adverse effect on balance and coordination.

Air Canada decided that Morten would require an attendant to travel on one of its flights. Morten disagreed and filed a complaint with the Canadian Transportation Agency in February 2005. The agency upheld Air Canada’s decision. Morten did not seek to appeal the agency’s decision, but rather made a complaint to the Canadian Human Rights Commission in Autumn 2005. Air Canada sought to have the commission’s investigation stayed on the grounds that the matter had already been dealt with by the agency, but the tribunal disagreed and allowed the commission to continue its investigations.

The latter found a prima facie case of discrimination and referred the matter to the tribunal for a formal determination.

The hearing before the tribunal took place over an 11-day period in Spring 2008 and the tribunal released its decision on January 26 2009. In that decision it made two basic determinations. In the first place, it found that the commission retained jurisdiction to consider the alleged violation of human rights even though the agency had made a prior determination on the same set of facts. Having come to this conclusion, it proceeded to consider again whether Air Canada had acted reasonably in requiring an attendant for Morten. It concluded that it was not possible, on the record, to determine whether such a decision could be justified. The tribunal ordered Air Canada to develop an attendant policy in conjunction with the commission and Morten, notwithstanding the fact that the agency had already approved the policy and its application.

Both the Canadian Transportation Agency and Air Canada commenced proceedings for judicial review of the tribunal’s decision. The agency asserted its exclusive jurisdiction to determine disability-related disputes which arise within the Canadian transportation network. Air Canada supported this position and also sought reversal of the factual determination that there was no adequate basis for the finding that an attendant should be required.

The judicial review application was heard in March 2010 and an order granting the review and setting aside the tribunal’s decision was released on September 30 2010. Reasons for that order were released a few weeks later in mid-October. Justice O’Keefe of the Federal Court elected not to address the factual issues, but confined himself to addressing the question of jurisdiction. After a review of the facts and case law, he concluded that “one could conceive of cases” in which “the Commission and Tribunal might have jurisdiction”, but that they had exceeded their jurisdiction in the present case.

The commission was able to point to a number of decisions which accord particular respect to its jurisdiction under the Canadian Human Rights Act. That
act is often said to have a special privileged status and the jurisdiction of the commission is not easily ousted. It has often been found to survive the
concurrent jurisdiction of other administrative decision makers.

On the other hand, the fact of the agency’s jurisdiction over disability complaints that arise in the transportation context has been emphatically stated by the Supreme Court of Canada in CCD v Via Rail. That decision affirmed that Parliament has “charged the Agency with the public responsibility for assessing barriers” to transportation in the Canadian transportation network. The court emphasised that the agency, and not the commission, has the expertise necessary to make these determinations. Furthermore, the court confirmed that the agency, in making these determinations, is to apply the human rights principles which have been developed in the case law interpreting existing human rights legislation. In short, Part V of the Canada Transportation Act, under which the agency obtains this jurisdiction, is itself human rights legislation. Thus, the argument came down to this: should the commission’s undoubtedly broad jurisdiction to deal with human rights complaints survive the creation of a more specific regime under which certain complaints, with a human rights component, were assigned to the agency?

The Supreme Court of Canada has also given some guidance in a case involving the intersection of human rights and employment standards. In Canada v Vaid, a case decided in 2005, the court concluded that while the Canadian Human Rights Act is applicable to parliamentary employees, such an employee is not entitled to have his or her case determined by the commission merely because he or she has alleged violation of his or her human rights. It is still necessary to look at the facts giving rise to the dispute and consider alternative remedies.

Mr Vaid’s complaint was determined to be an employment dispute with a human rights component. As such, he was required to make any complaint under a specialised statute dealing with the terms of employment of parliamentary employees. The commission was without jurisdiction to consider the complaint.

In the present case, the Federal Court adopted the reasoning in Vaid and noted the importance of the fact that the Supreme Court has confirmed that the
agency must, in its disability decisions, adopt the same principles as those approved for human rights adjudications. The fact that the Supreme Court spoke on this issue after the agency’s decision in Morten’s case was not found to be material. Given these considerations, the Federal Court determined that the agency’s jurisdiction was exclusive under the facts of the case.

With respect to the scope of this exclusivity, the reasons give some guidance. It is to apply whenever complaints “relate to a carrier’s policies, tariffs
or transportation regulations”. Within that context, the tribunal has no jurisdiction to sit in appeal of an agency decision.

The Federal Court’s decision is under appeal.

For further information on this topic please contact
Gerard A Chouest
or
Carlos P Martins
at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (
chouest@lexcanada.com
or
cmartins@lexcanada.com).

(1) Canadian Transportation Agency v Morten, 2010 FC 1008.

Reproduced from http://www.ilonewsletters.com/Newsletters/Detail.aspx?g=4859b12a-bbd2-48ae-b312-702c10d9c451