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Human Rights (Fed) - Duty to Accomodate. Air Canada v. Rose
In Air Canada v. Rose (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from an order against "Air Canada to implement certain measures to accommodate persons with disabilities who use a power wheelchair and to specifically address certain matters in its accessibility plan under the Accessible Canada Act":[23] Air Canada’s argument concerning the test applied by the Agency to determine if Air Canada would suffer undue hardship is essentially an argument that the Agency did not balance the interests of persons with power wheelchairs and the interests of Air Canada.
[24] Air Canada emphasized various references to the balancing of interests in the decision of the Supreme Court of Canada in Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SCC 15 (VIA Rail). In particular, in paragraphs 133, 136, 137 and 138 of VIA Rail, the majority of the Supreme Court of Canada stated:[133] It bears repeating that “[i]t is important to remember that the duty to accommodate is limited by the words ‘reasonable’ and ‘short of undue hardship’. Those words do not constitute independent criteria. Rather, they are alternate methods of expressing the same concept”: Chambly [Commission scolaire régionale de Chambly v. Bergevin, 1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525], at p. 546, citing Central Okanagan School District No. 23 [Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970)], at p. 984. The factors set out in s. 5 of the Canada Transportation Act flow out of the very balancing inherent in a “reasonable accommodation” analysis. Reconciling accessibility for persons with disabilities with cost, economic viability, safety, and the quality of service to all passengers (some of the factors set out in s. 5 of the Act) reflects the reality that the balancing is taking place in a transportation context which, it need hardly be said, is unique.
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[136] Section 5 of the Canada Transportation Act, together with s. 172(1), constitute a legislative direction to the Agency to determine if there is an “undue obstacle” to the mobility of persons with disabilities. Section 5(g)(ii) of the Act states that it is essential that “each carrier or mode of transportation, as far as is practicable, carries traffic to or from any point in Canada under fares, rates and conditions that do not constitute . . . an undue obstacle to the mobility of persons, including persons with disabilities”. The Agency’s authority to identify and remedy “undue obstacles” to the mobility of persons with disabilities requires that it implement the principle that persons with disabilities are entitled to the elimination of “undue” or “unreasonable” barriers, namely those barriers that cannot be justified under human rights principles.
[137] The qualifier, “as far as is practicable”, is the statutory acknowledgment of the “undue hardship” standard in the transportation context. The fact that the language is different does not make it a higher or lower threshold than what was stipulated in Meiorin: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, 2000 SCC 27, at para. 46. The same evaluative balancing is required in assessing how the duty to accommodate will be implemented.
[138] That is precisely why Parliament charged the Agency with the public responsibility for assessing barriers, not the Canadian Human Rights Commission. The Agency uniquely has the specialized expertise to balance the requirements of those with disabilities with the practical realities — financial, structural and logistic — of a federal transportation system.
[Emphasis added by the Supreme Court.] [25] The Supreme Court also noted in paragraph 139 that "“[w]hat is ‘practicable’ within the meaning of s. 5(g)(ii) of the ""Canada Transportation Act is based on the evidence as to whether the accommodation of the disability results in an unreasonable burden on the party responsible for the barrier”". Therefore, whether any particular accommodation would result in an unreasonable burden is a question of fact.
[26] In paragraph 34 of its memorandum, Air Canada submits:... the Agency fails to consider factors such as impact of an ad hoc substitution of an aircraft on overall safety and quality of service to all other passengers within Air Canada’s network in its undue hardship analysis despite being provided evidence and submissions regarding these factors. [27] It is far from clear what "“impact … on overall safety … to all other passengers within Air Canada’s network”" should have been considered by the Agency. Air Canada, in its memorandum and in its oral submissions in this appeal, did not refer to any evidence to support a finding that overall safety to Air Canada’s other passengers would be impacted if there was an ad hoc substitution of aircraft.
[28] In paragraph 35 of its memorandum, Air Canada refers to various factors that were considered by the Agency:a) complexity arising from structural and logistical challenges to Air Canada’s network from an ad hoc substitution of aircraft (including but not limited to the unavailability at the U.S. station (or airport) of ground equipment and trained personnel to service the replacement aircraft);
b) departure from optimal operations of a pure station (a spoke airport where one particular aircraft type is used for all flights in and out of that station to simplify its operations, control costs, ensure operational flexibility and help recuperate from irregular operations);
c) Air Canada’s costs, its other passengers’ inconvenience and expense; and
d) low level of incidence of obstacles on Air Canada’s transborder routes (Mr. Rose being the only case in which a passenger with a mobility aid could not be accommodated by Air Canada on its transborder network). [29] Although Air Canada stated, in paragraph 34 of its memorandum, that the Agency did not consider the "“impact of an ""ad hoc substitution of an aircraft on overall ... quality of service to all other passengers within Air Canada’s network”", in paragraph 35 c) of its memorandum, Air Canada acknowledged that the Agency did consider "“Air Canada’s … other passengers’ inconvenience and expense”". The inconvenience and expense of Air Canada’s other passengers would be part of the "“quality of service to all other passengers within Air Canada’s network”".
[30] Having acknowledged that the Agency did consider the factors identified in paragraph 35 of its memorandum, Air Canada submitted that the Agency erred by considering these factors individually and not collectively (paragraphs 36 and 38 of its memorandum).
[31] In paragraphs 158 to 166 of the Show Cause Decision, the Agency addressed the evidence related to the substitution of an aircraft and the various issues that would arise if an aircraft were substituted. These paragraphs demonstrate that the Agency did consider the arguments of Air Canada concerning whether the substitution of an aircraft would result in Air Canada suffering undue hardship. However, the Agency concluded, based on the evidence presented by Air Canada including its own admissions that it regularly substitutes aircraft on little or no notice, that Air Canada had failed to establish that it would suffer undue hardship if Mr. Rose (or any other person who uses a power wheelchair that cannot fit through the cargo door of the aircraft scheduled for a particular flight) were to provide Air Canada with advance notice of their travel plans and the substitution of the aircraft was the only means by which that person could be accommodated.
[32] In paragraph 166 of the Show Cause Decision, the Agency noted:... in order to establish that the incremental financial cost to accommodate Mr. Rose would result in undue hardship, Air Canada must provide objective, real and quantifiable evidence that demonstrates that the new costs incurred by substituting an aircraft on an ad hoc basis would be so significant that the impact would create undue hardship. Air Canada has not provided this type of evidence. [33] Since the Agency, in the Show Cause Decision, directed Air Canada to show cause why it should not be required to implement the Agency’s proposed corrective measures, Air Canada submitted additional evidence, including a schedule showing the cost of substituting an aircraft that could accommodate Mr. Rose’s wheelchair. The cost information that was submitted is confidential.
[34] In paragraphs 12 to 17 of the Final Decision, the Agency set out Air Canada’s arguments with respect to why substituting an aircraft would result in undue hardship. In paragraph 24 of the Final Decision, the Agency stated:Air Canada presents numerous factors, considerations and impediments that it claims would make ad hoc aircraft substitution to accommodate a disability unfeasible. However, it does not explain how or why the factors presented as impediments to ad hoc aircraft substitution for disability-related accommodation do not prevent it from deploying spare aircraft in response to irregular operations, which it does on a daily basis. Similarly, because Air Canada regularly substitutes aircraft in the case of irregular operations, it is unlikely that doing so to accommodate a person with a disability would have a significant impact on the rights of other passengers or Air Canada’s ability to provide customer service. Air Canada has not demonstrated that this would be the case. [35] The Agency considered the evidence presented by Air Canada and concluded, based on this evidence, that Air Canada did not establish that it would suffer undue hardship if it had to substitute an aircraft. There is no merit to Air Canada’s argument that the Agency considered the factors individually and not collectively. Air Canada is essentially arguing that, based on the evidence presented, the Agency should not have ordered, as the final alternative accommodation, the substitution of "“an accessible aircraft on the chosen flight where Air Canada cannot accommodate the passenger in any other reasonable way”". However, whether this final accommodation measure would result in undue hardship to Air Canada is a question of fact or mixed fact and law which cannot be the subject of an appeal to this Court. There is no basis to find that the Agency erred in law by applying an incorrect analysis.
[36] Air Canada, in its reply submissions, argued that the Agency should have redone the undue hardship analysis in the Final Decision as a result of the additional evidence submitted by Air Canada. Air Canada did not point to any legal error committed by the Agency in not redoing the analysis. Rather, Air Canada simply referred to the large volume of additional evidence it had submitted.
[37] The Agency, in the Show Cause Decision, had directed Air Canada to show cause why the proposed corrective measures should not be implemented. Absent any legal error (and none was identified by Air Canada), whether the additional evidence was sufficiently different from the evidence that had been previously submitted such that a de novo review of the undue hardship analysis was warranted in rendering the Final Decision, is a question of fact (or mixed fact and law) and, therefore, cannot be considered in this appeal.
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(2) Section 44 of the ATPDR
[43] Air Canada also submitted, as part of its procedural fairness argument, that the Agency should have reconsidered section 44 of the ATPDR in its Final Decision.
[44] Section 44 of the ATPDR provides as follows:"An air carrier may refuse to transport a person’s mobility aid if "
"Le transporteur aérien peut refuser de transporter l’aide à la mobilité si, selon le cas : "
"(""a) the size of the door to the aircraft’s baggage compartment or the size of the aircraft’s baggage compartment is not large enough to accommodate the mobility aid; "
"a"") la taille de la porte de la soute à bagages ou la taille de la soute à bagages de l’aéronef n’est pas assez large pour permettre le transport de l’aide à la mobilité; "
"(""b) it would jeopardize aircraft airworthiness; or "
"b"") la navigabilité de l’aéronef serait mise en danger; "
"(""c) the weight or size of the mobility aid exceeds the capacity of the lift or ramp. "
"c"") le poids ou la taille de l’aide à la mobilité dépasse la capacité de la plateforme élévatrice ou de la rampe." [45] Section 2 of the ATPDR stipulates that nothing in the ATPDR limits a duty to accommodate:"For greater certainty, nothing in these Regulations is to be construed as "
"Il est entendu que le présent règlement n’a pas pour effet : "
"(""a) limiting the duty to accommodate under the ""Canadian Human Rights Act or any other Act of Parliament; or "
"a"") de restreindre quelque obligation d’adaptation sous le régime de la ""Loi canadienne sur les droits de la personne"" ou d’autres lois fédérales; "
"(""b) requiring any person to do anything that jeopardizes security, public health or public safety. "
"b"") d’obliger quiconque à faire quelque chose qui mettrait en danger la sûreté, la santé ou la sécurité publiques." ....
(3) Did the Agency "“Shift the Goalposts”"?
[51] Air Canada argues that the Agency "“shift[ed] the goalposts”" in relation to the financial information that would be sufficient for Air Canada to establish undue hardship, resulting in a breach of procedural fairness.
[52] Air Canada notes that the Agency, in its letter dated June 20, 2019 (LET-AT-A-46-2019), set out the terms of reference for the oral hearing to determine if Air Canada could remove the obstacles to Mr. Rose’s mobility identified by the Agency in its decision dated March 1, 2019 (LET-AT-A-28-2019) (noted above in paragraph 4 of these reasons). The terms of reference do not specifically identify financial costs.
[53] As noted above, in paragraph 166 of the Show Cause Decision, the Agency commented on the lack of financial information submitted by Air Canada:.... in order to establish that the incremental financial cost to accommodate Mr. Rose would result in undue hardship, Air Canada must provide objective, real and quantifiable evidence that demonstrates that the new costs incurred by substituting an aircraft on an ad hoc basis would be so significant that the impact would create undue hardship. Air Canada has not provided this type of evidence. [54] Air Canada was given an opportunity to submit financial information following the Show Cause Decision and Air Canada did so. It provided, on a confidential basis, a schedule showing the additional costs it would incur if it substituted various aircraft on the Toronto-Cleveland-Toronto route (the particular route that Mr. Rose wanted to take in 2016 but was unable to do so).
[55] The Agency, however, in the Final Decision, found that this incremental cost analysis was not sufficient to establish undue hardship:[27] In the Affidavit, Air Canada provides confidential evidence of the costs of substituting the CRJ-200 aircraft with an accessible aircraft on the Toronto-Cleveland route. Incremental financial costs may demonstrate that an accommodation is not feasible, if the evidence shows that the new costs would be so significant that the impact would create undue hardship. In this case, Air Canada has not provided sufficient context to allow the Agency to evaluate whether the documented costs represent a significant or prohibitive incremental cost in comparison with the cost of ad hoc aircraft substitution in cases of irregular operations, or Air Canada’s overall operating budget and financial standing. Without compelling evidence of economic impediments that could substantially affect the viability of Air Canada or its ability to absorb the incremental costs, the Agency finds that there is no reasonable basis for it to determine that the ad hoc substitution of an accessible aircraft would result in undue hardship. [56] With respect to what financial evidence is relevant, the Supreme Court in VIA Rail confirmed that the size of the expenditure and the size of the enterprise are relevant factors to be considered:[131] Since the Governor in Council has not prescribed standards for assessing undue hardship as authorized by s. 15(3) of the Canadian Human Rights Act, assessing whether the estimated cost of remedying a discriminatory physical barrier will cause undue hardship falls to be determined on the facts of each case and the guiding principles that emerge from the jurisprudence. A service provider’s refusal to spend a small proportion of the total funds available to it in order to remedy a barrier to access will tend to undermine a claim of undue hardship (Eldridge [Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624], at para. 87). The size of a service provider’s enterprise and the economic conditions confronting it are relevant (Chambly, at p. 546). Substantial interference with a service provider’s business enterprise may constitute undue hardship, but some interference is an acceptable price to be paid for the realization of human rights (Central Okanagan School District No. 23, at p. 984).
[Emphasis added.] [57] The Agency did not "“shift the goalposts”". Rather, the "“goalposts”" were set by the Supreme Court.
[58] The Agency noted, in the Show Cause Decision, that Air Canada had not provided "“objective, real and quantifiable evidence that demonstrates that the new costs incurred by substituting an aircraft on an ""ad hoc basis would be so significant that the impact would create undue hardship”". The onus was on Air Canada to determine what information would be required and to submit the necessary information. The Agency was following the decision of the Supreme Court in VIA Rail in confirming that the size of Air Canada’s enterprise and the impact that the incremental costs of an ad hoc substitution of aircraft would have on Air Canada are relevant factors. The Agency did not "“shift the goalposts”" with respect to the required financial information. Air Canada did not establish any breach of procedural fairness in this respect.
C. Air Canada’s Accessibility Plan Under the ACA
[59] Air Canada argued that the Agency exceeded its jurisdiction by ordering:Air Canada to specifically address in the updated version of its accessibility plan under the ACA, to be published no later than June 1, 2026, how it factors accessibility for persons with disabilities who use power wheelchairs into its:1. acquisition of aircraft for its transborder network, either through lease or purchase;
2. aircraft selection for its transborder routes; and
3. design of its transborder services, including the selection of and contract negotiations with regional carriers. [60] The Agency did not order Air Canada to adopt any particular strategy or plan in relation to the acquisition of aircraft, the selection of aircraft for its transborder routes or the design of its transborder services. Rather, it left the specific details to Air Canada.
[61] The Agency has general remedial powers under paragraph 172(2)(a) of the CTA:"(2) On determining that there is an undue barrier to the mobility of persons with disabilities, the Agency may do one or more of the following: "
"(2) En cas de décision positive, l’Office peut exiger : "
"(""a) require the taking of appropriate corrective measures; "
"a"") la prise de mesures correctives indiquées; "
"… "
"[…] " [62] In this case, the Agency found that there was an undue barrier to the mobility of persons who use power wheelchairs who want to take certain transborder flights. Since the Agency could require the taking of appropriate corrective measures (subject to Air Canada establishing that such corrective measures would result in undue hardship), there is no basis to find that the Agency could not require Air Canada to identify what appropriate corrective measures it will implement.
[63] Air Canada is simply being ordered to specifically address in its accessibility plan how it will factor accessibility for persons with disabilities who use power wheelchairs into its acquisition and selection of aircraft for its transborder network and its design of transborder services. In addressing how it will factor accessibility for persons with disabilities who use power wheelchairs into these various decisions, Air Canada will presumably indicate what steps it will take or decisions it will make that will not result in undue hardship to Air Canada.
[64] The Agency did not exceed its jurisdiction by ordering Air Canada to address how it factors accessibility for persons with disabilities who use power wheelchairs into its acquisition of aircraft, its selection of aircraft for transborder routes or the design of its transborder services. How it will actually factor this into its operation will be determined by Air Canada. . Jagadeesh v. Canadian Imperial Bank of Commerce
In Jagadeesh v. Canadian Imperial Bank of Commerce (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from a JR of a Canadian Human Rights Commission's dismissal of the appellant's complaint.
Here the court comments on an employer's 'duty to accomodate' in the face of an employee's disability:[123] An employer is required to provide a disabled employee with reasonable accommodation. It does not have to perfect, and it does not have to be the employee’s preferred form of accommodation.
[124] The search for accommodation is, moreover, a "“two-way street”", and there is an obligation on individuals seeking accommodation to assist in securing the appropriate accommodative measures: Haynes, above at para. 30, citing Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, [1992] S.C.J. No. 75 at para. 43.
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