July 08 2015

The Quebec Superior Court recently rejected a motion brought by WestJet seeking to have a previously certified class action dismissed on the basis that the Canadian Transportation Agency (CTA) had exclusive jurisdiction over the subject matter of the suit.(1)

Background

In October 2013 the Quebec court certified a class action in that province for the recovery of compensatory, moral and punitive damages against WestJet. The class was composed of:

• persons residing in Quebec who were functionally disabled by reason of their obesity or otherwise and who were required to pay additional fees for an extra seat for an attendant and/or for a seat adapted to their condition on a WestJet flight; and
• all persons in Quebec who were required to pay fees for a seat on a WestJet flight when acting as an attendant for a disabled person.

The backdrop to the class action was a January 2008 decision of the CTA (Decision 6-AT-A-2008) in which WestJet (along with Air Canada and Air Canada Jazz) was prohibited from charging a fare for any additional seat required by persons who were disabled by reason of their obesity. By virtue of the CTA’s decision, all passengers who required additional seating to accommodate their disability, including where they were required to be accompanied by an attendant, became entitled to an extra seat at no additional cost.

The CTA’s decision in that case was based on the Supreme Court’s 2007 decision in Council of Canadians with Disabilities v Via Rail.(2)

Applicable law

To understand WestJet’s position, the Canada Transportation Act must be considered. Section 5 of the act declares that the objectives of Canada’s national transportation policy are most likely to be achieved when, among other conditions, “the transportation system is accessible without undue obstacle to the mobility of persons, including persons with disabilities”.

In order to achieve the national transportation policy’s objectives, the act grants the CTA broad powers, including “all the powers, rights and privileges that are vested in a superior court”. In addition, Part V of the act grants specific powers to the CTA with regard to persons with disability.

In its 2008 decision the CTA determined that additional fees charged by carriers to persons who were disabled by reason of their obesity constitute an undue obstacle to the mobility of persons with disabilities under Section 172 of the act. Section 172(3) gives the CTA the power to “require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both” where it has determined that there is an undue obstacle.

In that decision the CTA did not direct that any compensation be paid, instead ordering only that certain corrective measures be implemented within 12 months of the date of the decision.

Decision

WestJet based its argument that the CTA had exclusive jurisdiction over the subject matter of the class action in part on the Via Rail decision. In Via Rail the Supreme Court held that Section 172 of the act:

“is a clear example of a provision that reflects ‘a conscious and clearly-worded decision by the legislature to use a subjective or open-ended grant of power [which] has the effect of widening the delegate’s jurisdiction and therefore narrowing the ambit of judicial review of the legality of its actions’.”

However, as the judge noted, Via Rail was a judicial review application of a decision of the CTA. Via Rail involved an application to the CTA in which the design of a particular kind of rail carriage was alleged to constitute an undue obstacle for persons with disabilities. The CTA ruled against Via Rail, which applied for judicial review of that decision all the way to the Supreme Court.

It was in that context that the Supreme Court recognised the high degree of expertise of the CTA in transportation matters and notably, relating to the impact of the design and construction of rail carriages, on the conditions of travel of persons with disabilities.

Further, the judge specifically pointed to the Supreme Court’s finding that Section 172 “is a jurisdiction-granting, not a jurisdiction-limiting, provision”.

Having reviewed the act and the powers that it confers on the CTA, the Quebec court reviewed the status of superior courts in Canada. These courts are courts of inherent jurisdiction and of original general jurisdiction. As provided in the Quebec Code of Civil Procedure, the superior court “hears in first instance every suit not assigned exclusively to another court by a specific provision of law”.

Exclusive jurisdiction may be granted to an administrative tribunal explicitly or implicitly. What must be examined is the intention of the legislature. However, as the judge noted, even where an intention to grant exclusive jurisdiction over a given matter to a tribunal can be deduced, the superior courts may retain jurisdiction over questions relating to that matter.

The class action that WestJet was seeking to have dismissed sought damages for members of the class. In the court’s view, the powers conferred on the CTA under Section 172 did not grant it exclusive jurisdiction over applications regarding undue obstacles for persons with disabilities in Canada’s transportation system.

It was noted that, with respect to Part V of the act relating to passengers with disabilities, Section 170 provides that the CTA “may make regulations”; and that Section 172(1) provides that the CTA “may, on application, inquire into a matter”. The judge found that if Parliament had intended even implicitly to grant exclusive jurisdiction over matters relating to the transport of persons with disabilities, it would have employed a term other than ‘may’. The Supreme Court’s holding in Via Rail that the CTA had jurisdiction and recognising its expertise did not amount to a finding of exclusive jurisdiction.

In its January 2008 decision the CTA ordered non-monetary remedies for the future and chose not to award damages to the applicants. The court found that the evidence suggested that the CTA has adopted a “global and reparative” mission for transportation in Canada and, generally speaking, appears not to award monetary damages even where it has the power to do so.

The court held that this application of the law by the CTA aligns well with the goals articulated in Section 5 of the act. The judge held that the evidence suggested that the CTA’s focus is on the future and improving the transportation system for all Canadians, rather than on the compensation or indemnification of any single traveller.

WestJet’s final argument was that allowing the class action to proceed would encroach on federal jurisdiction over aviation because it would affect its tariff. This argument was rejected, with the court finding that it was wrong to claim that WestJet’s tariff would be affected if, at the end of the day, WestJet were ordered to pay damages for its past actions even if such an award might cause the carrier to change its tariff for the future.

In all the circumstances, the court concluded that the CTA did not possess exclusive jurisdiction over the claim for damages. The class action certified in 2013 will therefore proceed.

For further information on this topic please contact Carlos P Martins or Andrew W Macdonald at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (cmartins@lexcanada.com or amacdonald@lexcanada.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at http://www.lexcanada.com.

End Notes

(1) Chabot v Westjet 2015 QCCS 2288.

(2) 2007 SCC 15.

Reproduced from http://www.internationallawoffice.com/newsletters/detail.aspx?g=54c28d3d-5884-446c-afbc-2624be24d5fd