Ottawa, Ontario, this 25th day of July, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
- and -
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review, pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, of a decision of the Canadian Human Rights Commission (the "Commission"), that it has jurisdiction under the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended ("CHRA"), to investigate a complaint filed by Georgina Sasvari (the "respondent") against Transport Canada (the "applicant").
Background
[2] On November 21, 1998, the respondent, who is disabled, boarded but was not allowed to fly on, an Air Transat flight to St. Maarten in the Dutch West Indies. The respondent boarded the flight with her dog which she uses to assist her in maintaining her balance and for various other tasks.
[3] Air Transat refused to carry the respondent's dog in the passenger cabin as the respondent did not have written certification from a professional service animal institution that the dog had been trained to assist her. The refusal was in accordance with Air Transat's policy. Air Transat had adopted as its policy, the contents of section 149 of the Air Transportation Regulations, SOR/88-85 (the "Regulations"), which applied only to domestic and not international flights.
[4] On January 27, 1999, the respondent, pursuant to subsection 172(1) of the Canada Transportation Act, S.C. 1996, c. 10, as amended ("CTA"), submitted a complaint to the Canadian Transporation Agency (the "Agency"), regarding Air Transat's refusal to carry her dog in the aircraft's passenger cabin.
[5] The Agency dismissed the respondent's complaint on May 25, 1999. The Agency found that Air Transat's refusal to accept the respondent's dog in the passenger cabin did not constitute an undue obstacle to her mobility.
[6] The respondent petitioned the Governor-in-Council pursuant to the CTA to review the Agency's decision. The Governor-in-Council declined to vary or rescind the Agency's decision on August 23, 2000.
[7] In April 2000, the respondent filed a complaint against Air Transat with the Commission, regarding Air Transat's refusal to carry her dog in the aircraft's passenger cabin. The respondent stated that Air Transat discriminated against her and the provision of services by refusing to carry her service animal in the passenger cabin, contrary to section 5 of the CHRA.
[8] The Commission dismissed the respondent's complaint against Air Transat on December 3, 2002. The Commission stated in its decision:
. . . The evidence does not support the complainant's allegation that the respondent discriminated against her by refusing to accommodate her on the grounds of her disability.
[9] On July 10, 2003, the respondent filed a complaint against the Agency with the Commission alleging that she had been discriminated against by the Agency under section 5 of the CHRA.
[10] In its decision dated April 13, 2004, the Commission decided, pursuant to subsection 41(1) of the CHRA to deal with the respondent's complaint against the Agency.
[11] An application for judicial review regarding the decision of the Commission was commenced on May 13, 2004.
[12] The respondent filed a complaint against Transport Canada with the Commission on January 20, 2003. The respondent alleged that she had been discriminated against by Transport Canada under section 5 of the CHRA. The respondent alleged that section 149 of the Regulations has a discriminatory effect on individuals who require the assistance of a service dog for their mobility.
[13] Transport Canada responded to the respondent's complaint and requested that the Commission refuse to deal with the respondent's complaint under subsection 41(1) of the CHRA on the grounds that Transport Canada was not a proper respondent to the complaint and that the Commission lacked jurisdiction with respect to the complaint.
[14] The Commission appointed an investigator who prepared a report for the respondent's complaint. The investigator's report recommended that the Commission deal with the respondent's complaint on the grounds that the matter is within the Commission's jurisdiction, and Transport Canada was one of the parties responsible for the alleged discriminatory policy.
[15] The Commission, in a letter dated April 13, 2004, decided pursuant to subsection 41(1) of the CHRA to deal with the respondent's complaint. The Commission decided that:
The matter is within the Commission's jurisdiction; and, the respondent is one of the parties responsible for the alleged discriminatory policy.
[16] This is the judicial review of the decision of the Commission respecting Transport Canada.
Issues
[17] 1. What is the standard of review applicable to the Commission's decision?
2. Did the Commission exceed its jurisdiction?
3. Is the respondent's complaint an abuse of process?
Applicant's Submissions
[18] Standard of Review
The applicant submitted that the matter at issue is one of law, and therefore, a standard of correctness is appropriate.
[19] Jurisdiction of the Commission
The applicant prefaced its arguments with a reference to the finding in Ontario Association of Architects v. Association of Architectural Technologists of Ontario (2003), 1 F.C. 331 (F.C.A.), that additional evidence may be admitted in a judicial review application on matters related to procedural fairness and jurisdiction.
[20] The applicant made the same argument as the Agency in Court file T-932-04, that it does not fit within the definition of a service provider under section 5 of the CHRA, which states:
| 5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination. |
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5. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, pour le fournisseur de biens, de services, d'installations ou de moyens d'hébergement destinés au public:
a) d'en priver un individu;
b) de le défavoriser à l'occasion de leur fourniture. |
[21] The applicant also cited University of British Columbia v. Berg (1993), 102 D.L.R. (4th) 665, [1993] 2 S.C.R. 353, and Gould v. Yukon Order of Pioneers (1996), 133 D.L.R. (4th) 449, [1996] 1 S.C.R. 571, as the source of the test for a service to the public. It reiterates the argument made in Court file T-932-04 that the service is air travel, and the service provider is Air Transat, not Transport Canada.
[22] In addition, the applicant addressed the question of the Commission=s exercise of discretion under paragraph 41(1)(c), as it affected the discharge of its duties under what the applicant described as subsection 44(1) of the CHRA.
[23] Section 41 states as follows:
| 41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;
(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;
(c) the complaint is beyond the jurisdiction of the Commission;
(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint. |
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41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants:
a) la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts;
b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale;
c) la plainte n'est pas de sa compétence;
d) la plainte est frivole, vexatoire ou entachée de mauvaise foi; e) la plainte a été déposée après l'expiration d'un délai d'un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances. |
[24] I will presume that the applicant was actually referring to subparagraph 44(3)(b)(ii), not subsection 44(1), since this is the full text of section 44:
| 44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied
(a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or
(b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act,
it shall refer the complainant to the appropriate authority.
(3) On receipt of a report referred to in subsection (1), the Commission(a) may request the Chairperson of the Tribunal to institute an inquiry under section 49 into the complaint to which the report relates if the Commission is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and (ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or
(b) shall dismiss the complaint to which the report relates if it is satisfied
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
(4) After receipt of a report referred to in subsection (1), the Commission
(a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and
(b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3). |
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44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête.
(2) La Commission renvoie le plaignant à l'autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas:
a) que le plaignant devrait épuiser les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts;
b) que la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale.
(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission: a) peut demander au président du Tribunal de désigner, en application de l'article 49, un membre pour instruire la plainte visée par le rapport, si elle est convaincue:
(i) d'une part, que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci est justifié, (ii) d'autre part, qu'il n'y a pas lieu de renvoyer la plainte en application du paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
b) rejette la plainte, si elle est convaincue:
(i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié,
(ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e).
(4) Après réception du rapport, la Commission:
a) informe par écrit les parties à la plainte de la décision qu'elle a prise en vertu des paragraphes (2) ou (3);
b) peut informer toute autre personne, de la manière qu'elle juge indiquée, de la décision qu'elle a prise en vertu des paragraphes (2) ou (3). |
[25] The applicant also argued that the Commission made another error, which it characterized as one of law, but could equally be considered one of fact. The applicant submitted that by allowing the complaint to proceed, the Commission found that the applicant has responsibility for making the Regulations.
[26] The applicant submitted that under section 170 of the CTA, it is clearly the Agency, not the applicant, that has responsibility for making regulations pertaining to the carriage of people with disabilities:
| 170. (1) The Agency may make regulations for the purpose of eliminating undue obstacles in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting
(a) the design, construction or modification of, and the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them;
(b) the training of personnel employed at or in those facilities or premises or by carriers;
(c) tariffs, rates, fares, charges and terms and conditions of carriage applicable in respect of the transportation of persons with disabilities or incidental services; and(d) the communication of information to persons with disabilities.
(2) Regulations made under subsection (1) incorporating standards or enactments by reference may incorporate them as amended from time to time.
(3) The Agency may, with the approval of the Governor in Council, make orders exempting specified persons, means of transportation, services or related facilities and premises from the application of regulations made under subsection (1). |
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170. (1) L'Office peut prendre des règlements afin d'éliminer tous obstacles abusifs, dans le réseau de transport assujetti à la compétence législative du Parlement, aux possibilités de déplacement des personnes ayant une déficience et peut notamment, à cette occasion, régir:
a) la conception et la construction des moyens de transport ainsi que des installations et locaux connexes - y compris les commodités et l'équipement qui s'y trouvent -, leur modification ou la signalisation dans ceux-ci ou leurs environs;
b) la formation du personnel des transporteurs ou de celui employé dans ces installations et locaux;
c) toute mesure concernant les tarifs, taux, prix, frais et autres conditions de transport applicables au transport et aux services connexes offerts aux personnes ayant une déficience;d) la communication d'information à ces personnes.
(2) Il peut être précisé, dans le règlement qui incorpore par renvoi des normes ou des dispositions, qu'elles sont incorporées avec leurs modifications successives.
(3) L'Office peut, par arrêté pris avec l'agrément du gouverneur en conseil, soustraire à l'application de certaines dispositions des règlements les personnes, les moyens de transport, les installations ou locaux connexes ou les services qui y sont désignés. |
[27] The applicant provided affidavit evidence regarding the Agency's on-going responsibility for the Regulations. The applicant noted that while the Minister of Transport has some regulation-making authority under the CTA, this does not extend to the Regulations that govern the carriage of persons with disabilities.
[28] The applicant submitted that according to Canada Post Corporation v. Barette (2000), 27 Admin. L.R. (3d) 268, [2000] 4 F.C. 145, wherever the Commission fails to turn its mind to issues raised by the person against whom the complaint is made, it neglects a duty imposed by law. The applicant contended that the Commission failed to turn its mind to the fact that Transport Canada does not issue the Regulations and does not fit within section 5 of the CHRA.
[29] Section 149 of the Regulations Does Not Apply
The applicant submitted that section 149 of the Regulations applies only to domestic flights, not to international flights, pursuant to section 146 of the Regulations. Section 146 states:
| 146. (1) This Part applies to an air carrier in respect of any domestic service operated by the air carrier with an aircraft that has 30 or more passenger seats. 146(2) |
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146. (1) La présente partie s'applique au transporteur aérien pour ce qui concerne tout service intérieur qu'il exploite au moyen d'un aéronef d'au moins 30 sièges passagers. |
[30] Since section 149 of the Regulations also falls under Part VII, section 146 applies to it. The applicant argued that since the respondent was taking an international flight from Toronto to St. Maarten when the incident occurred, it would not be applicable to her particular situation.
[31] Abuse of Process
The applicant submitted that the Commission erred in accepting the respondent=s complaint when it is clearly an abuse of process. The applicant stated that repeated attempts to litigate essentially the same dispute constitutes such an abuse, and that the motivation of the individual seeking to re-litigate is not determinative of whether such abuse exists (see Toronto (City) v. Canadian Union of Public Employees Local 79 (2003), 3 SCR 77 and Black v. NsC Diesel Power Inc. (2000), F.C.J. No. 725 (F.C.T.D.) (QL)).
[32] The applicant also argued that the Commission and the Agency are required to coordinate their activities with regard to the transportation of persons with disabilities in order to avoid jurisdictional conflicts. The applicant submitted that since the Agency, which is a tribunal, already investigated and dismissed the respondent=s complaint, the respondent should not be allowed to re-litigate it in another forum.
[33] The applicant repeated the arguments made in Court file T-932-04 that the subject matter of the complaint is the same as that in the respondent=s original complaint to the Commission against Air Transat.
[34] The applicant argued that the respondent's complaint is a collateral attack on the previous decisions of the Commission and the Agency, and that the Commission erred in law in agreeing to accept it. The applicant also noted that since the respondent already has a complaint against the Agency lodged with the Commission, this heightens the abusive nature of the complaint against the applicant.
Respondent's Submissions
[35] Standard of Review
The respondent repeated her arguments from Court file T-932-04, that human rights legislation in Canada is quasi-constitutional, and for this reason, a high degree of deference is generally given to decisions of human rights commissions. The respondent also repeated the argument that the only discretion the Commission has to refuse a complaint is laid out in subsection 41(1) of the CHRA, and any refusal must fit into one of the enumerated exceptions. Since the decision on whether or not to let a complaint proceed at the preliminary stage is discretionary, the respondent argued that a standard of patent unreasonableness is applicable.
[36] Jurisdiction of the Commission
The respondent repeated her arguments from Court file T-932-04 that the focus of this complaint is section 149 of the Regulations, not the denial-of-service incident at Air Transat that was the subject of the first complaint. The respondent argued that since the service under section 5 of the CHRA targeted by the complaint is the regulation of access to air travel, and not the specific services provided by Air Transat, that the Agency and the applicant come under section 5.
[37] With regard to the regulation-making power of the applicant, the respondent argued that the applicant does have shared responsibility for the Regulations, citing the information on the applicant's website indicating that it has responsibility for the CTA and develops regulations as part of that responsibility.
[38] While the respondent appeared to concede that the Agency develops the Regulations, the respondent argued that the Agency does not have the legislative authority to give legal effect to a proposed regulation or amendment. The respondent argued that the Agency must take its proposed regulations to the Minister of Transport, which must then recommend them for approval by the Governor-in-Council, and only then can they become law.
[39] The respondent argued that insofar as a particular regulation developed by the Agency and recommended by the applicant contravenes the CHRA, both parties are responsible.
[40] The respondent noted that the Commission had not actually made a finding as to where responsibility for the Regulations lies, it has just taken the preliminary step of accepting a complaint for investigation, based on the respondent=s allegation that it appears the responsibility is shared.
[41] Section 149 of the Regulations Does Not Apply
The respondent submitted that the focus of the complaint is the discriminatory nature of the Regulation, not the specific incident with Air Transat that made her aware of the Regulation. The respondent argued that since the Air Transat incident is not the subject of the complaint, the issue of whether section 149 of the Regulations applied to domestic or international flights is irrelevant. The respondent is challenging the Regulation=s compliance with the CHRA, whichever flights it governs.
[42] Abuse of Process
The respondent noted that while the applicant has discussed subsection 41(1) of the CHRA in its other arguments, it had not made reference to it in its arguments on abuse of process. The respondent repeated the arguments from Court file T-932-04 concerning the non-application of general common law doctrines to the Commission=s actions B the Commission is governed by its statute, and under section 41, the Commission must accept all complaints unless they fall into one of the exceptions.
[43] Therefore, the applicant must establish either that the Commission exercised its discretion under subsection 41(1) in a patently unreasonable manner, or that the Commission failed to exercise its discretion under subsection 41(1) at all and therefore, committed an error of law. The respondent repeated her reference to the Commission=s decision in Parisien v. Ottawa-Carleton Regional Transit Commission, File No. T699/0402, Ruling No. 1, [2002] C.H.R.D. No. 23 (QL), on this point.
[44] The respondent also repeated the prematurity arguments from Court file T-932-04 B the complaint is only at the preliminary stage of being accepted for investigation, and the full nature of, and evidence supporting the complaint will only become apparent further on in the process, at which time the applicant could then object.
[45] In the alternative, the respondent submitted that since the doctrine of abuse of process would preclude the claim from proceeding, the test for applying it to a human rights claim is a stringent one. The respondent cited several decisions of human rights tribunals and the Commission on this point, but no jurisprudence. The key passage comes from Jeffrey v. Dofasco Inc., [2001] O.H.R.B.I.D. No. 8 at paragraph 12:
An abuse of process is something that would shock the public, conduct which would Aviolate those principles of fundamental justice which underlie the community=s sense of fair play and decency@ or is vexatious or oppressive in character....It will be found in only the most exceptional circumstances. Accordingly, a moving party has a heavy burden to meet this test. Not surprisingly, there have been very few cases dismissed for abuse of process before the Board, and the only [sic] in the most egregious of circusmtances.
[46] Finally, the respondent noted that both the complaint before the Agency and the first complaint to the Commission focused on the respondent=s individual encounter with Air Transat, they were not challenges to the Regulations. The respondent stated that she is not attempting to re-litigate a settled question or shop for jurisdictions, she is bringing a complaint on the fresh and unresolved subject matter of whether the Regulations are in contravention of the CHRA.
Analysis and Decision
[47] Issue 1
What is the standard of review applicable to the Commission's decision?
As I indicated in Court file T-932-04, the standard of review to be applied to a review of the Commission's decision pursuant to subsection 41(1) of the CHRA to deal with the complaint is patent unreasonableness. For ease of reference, I will repeat my discussion of the standard of review in Court file T-932-04.
[48] Both the Federal Court of Appeal and the Federal Court have made determinations with respect to the standard of review to be applied to the Commission's decisions made pursuant to section 41 of CHRA. In Canada Post Corp. v. Canada (Canadian Human Rights Commission) (re Canadian Postmasters and Assistant's Assn.), [1997] F.C.J. No. 578, Rothstein J. stated at paragraphs 4 and 5:
As to the role of the Court in cases under section 41, it is to be noticed that the power of the Commission to make decisions under that section is stated in the following terms:
41.. . . the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission . . .
[emphasis added]
In The Minister of Citizenship and Immigration v. Williams, court file A-855-96, F.C.A., April 11, 1997, [1997 F.C.J. No. 393,Strayer J.A., in respect of subsection 70(5) of the Immigration Act, states at page 11:
It is striking that subsection 70(5) says that no appeal may be made under subsection 70(1) "where the Minister is of the opinion..." not "where a judge is of the opinion..." that the deportee constitutes a danger. Nor did Parliament put the matter in objective terms whereby a certificate precluding further appeal could only be issued where it is "established" or "determined" that the appellant constitutes a danger to the public in Canada. Instead the power to make such a finding is stated in subjective terms: the test is not whether the permanent resident is a danger to the public but whether "the Minister is of the opinion" that he is such a danger. There is ample authority that, unless the overall scheme of the Act indicates otherwise through e.g. an unlimited right of appeal of such an opinion, [footnote omitted] such subjective decisions cannot be judicially reviewed except on grounds such as that the decision-maker acted in bad faith, or erred in law, or acted upon the basis of irrelevant considerations.
I think the same approach is called for with respect to section 41 of the Canadian Human Rights Act. The decision is one for the Commission and the determination is set forth in subjective and not objective terms. Thus the scope for judicial review of such a decision is narrow. Only considerations such as bad faith by the Commission, error of law or acting on the basis of irrelevant considerations are applicable.
Where a question of jurisdiction was at issue, the approach of the Court has been expressed by Thurlow A.C.J. (as he then was) in Attorney General of Canada v. Cumming, [1980] 2 F.C. 122 at pages 132-33:
The preferable course for the Court is to leave the Tribunal free to carry out its inquiries and not to prohibit it save in a case where it is clear and beyond doubt that the Tribunal is without jurisdiction to deal with the matter before it.
I think it follows that if substantial deference by the Court is applicable when questions of jurisdiction are at issue, at least the same degree of deference if not more, would be applicable to other types of decisions under section 41 e.g. discretionary, factual or even mixed fact and law decisions.
[49] Justice Rothstein's decision was confirmed by the Federal Court of Appeal in Canada Post Corp. v. Canada (Canadian Human Rights Commission) (re Canadian Postmasters and Assistant's Assn.), [1999] F.C.J. No. 705. The Court of Appeal stated at paragraphs 4 and 5:
Canada Post claims that the Motions Judge wrongly deferred to the Commission's decision with regard to the absence of bad faith, considering the Motions Judge himself made some reference to possible dubious conduct on the part of the Association. Moreover, says Canada Post, the words "bad faith" in subparagraph 41(1)(d) have a legal connotation which calls for less deference on the part of the Court than the other words "trivial", "frivolous" and "vexatious" which are more fact oriented.
Despite Counsel's able argument, we find no merit in it. The Motions Judge, appropriately in our view, interpreted the legislative framework under which the Commission's decision was made. Parliament makes it clear, by the words "it appears to the Commission", that whether "bad faith" exist in the circumstances of this case, is one for the Commission to make.
[50] In my view, it has been decided that the standard of review to be applied to the Commission's decisions made under subsection 41(1) of CHRA is patent unreasonableness. I would come to the same conclusion by applying the pragmatic and functional approach outlined in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. As the Court of Appeal has already set the standard of review for section 41 decisions, I will not carry out the analysis.
[51] Issue 2
Did the Commission exceed its jurisdiction?
By virtue of subsection 41(1) of the CHRA, the Commission must deal with the respondent's complaint unless it appears to the Commission that the respondent's complaint is beyond its jurisdiction (paragraph section 41(1)(c) of CHRA).
[52] In Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, the Supreme Court of Canada stated at pages 890 to 893 that the Commission has no power to decide questions of law with the exception that the Commission has the power to interpret and apply its enabling statute. The Commission, in the present case, can look at the CHRA, its enabling statute, to determine whether it has jurisdiction to deal with the respondent's complaint.
[53] A review of subsection 41(1) of the CHRA makes it clear that the Commission shall deal with any complaint filed with it unless, inter alia, it appears to the Commission that the complaint is beyond its jurisdiction. The Commission's jurisdiction for the present case would flow from section 5 of the CHRA. The question that must be determined is whether the applicant is providing a service that is customarily available to the public. It follows that if the applicant is not providing a service that is customarily available to the public, the Commission has no jurisdiction to hear the respondent's complaint.
[54] The complaint filed by the respondent stated:
ALLEGATION
Transport Canada pursues a discriminatory policy which denies access to air travel to an identifiable group of individuals with disabilities who require the presence of a service dog at their side at all times, contrary to section 5 of the Canadian Human Rights Act.
PARTICULARS
I have a disability and rely on a service dog for mobility. I use my service animal by leaning on his shoulders and haunches for balance. He provides me with stability when I walk on stairs and on uneven surfaces. He helps me pick things up from the ground, pulls me around on a scooter and revives me if I fall into a state of unconsciousness.
On November 21, 1998 on a flight between Toronto and St. Marteen, Air Transat refused to carry my service animal in the aircraft passenger cabin, pursuant to section 149 of the Air Transportation Regulations, SOR/88-58, which governs the carriage of service animals. It requires that service animals travelling with passengers be harnessed, certified in writing and trained by a professional service animal institution. My dog did not have the required certification. I did have a note from my doctor confirming my reliance on my dog for mobility. It was refused.
I submitted an official complaint to the Canadian Transportation Agency regarding the treatment I received. My complaint was dismissed on May 25, 1999. I also filed a complaint with the Canadian Human Rights Commission against Air Transat about the treatment I received. My complaint was dismissed on October 31, 2002.
Since 1986, the United States of America's Air Carrier Access Act (ACAA) permits service animals to accompany people with disabilities on flights, without written certification by a professional service animal institution. The credible verbal assurances of the disabled person using the animal is sufficient.
I believe that section 149 of the Air Transportation Regulations, SOR/88-85 is discriminatory to people with disabilities who require the assistance of a service dog for their mobility.
[55] The applicant submitted that the Commission exceeded its jurisdiction for the following reasons:
1. Transport Canada is not the regulator with respect to section 149 of the Regulations
2. Transport Canada is not a service provider within the meaning of section 5 of the CHRA;
3. Section 149 of the Regulations does not apply to the facts of this case; and
4. The complaint amounts to an abuse of process.
[56] I propose to deal first with the argument that the applicant is not a service provider. As can be seen from the complaint, the incident that started the chain of events in this case was the refusal of Air Transat to allow the respondent's service dog in the passenger compartment of its aircraft for a trip to St. Maarten. The respondent had purchased a ticket from Air Transat for the trip to St. Maarten.
[57] Transport Canada did not make Regulation 149 of the Regulations. The Regulation was prepared and enforced by the Agency. Transport Canada's only role was to make a recommendation to the Governor-in-Council for the regulations that were prepared by the Agency to be approved.
[58] In the present case, Transport Canada had no involvement with the service being provided to the respondent by Air Transat. It was a step further removed from the matter than was the Agency. Transport Canada was not involved in regulating at all. It did not prepare the regulation in question, and did not enforce the regulation.
[59] Section 149 of the Regulations applies only to domestic flights operated by air carriers (see subsection 146(1) of the Regulations). Air Transat adopted section 149 as its policy for international flights.
[60] I agree with the applicant that Transport Canada was not a service provider to the respondent within the meaning of section 5 of the CHRA. The service provider was Air Transat.
[61] When the Commission decided to deal with the respondent's complaint, it decided that it had jurisdiction to deal with the complaint.
[62] I conclude that the complaint was therefore beyond the jurisdiction of the Commission pursuant to paragraph 41(1)(c) of the CHRA as the applicant did not provide a service to the respondent.
[63] I am of the view that since the respondent's complaint was beyond the jurisdiction of the Commission, it could not appear to the Commission that the complaint was within the jurisdiction of the Commission.
[64] It was patently unreasonable for the Commission to decide the complaint did not appear to be beyond the jurisdiction of the Commission.
[65] Due to my finding on this issue, I need not deal with the other issues in this case.
[66] The decision of the Commission is set aside.
[67] The applicant requested costs of the application. The respondent submitted that costs should not be awarded against her. I agree with the respondent that no award of costs should be made against her as the matter raised issues of public importance.
ORDER
[68] IT IS ORDERED that:
1. The decision of the Commission is set aside.
2. There shall be no award of costs.
J.F.C.
Ottawa, Ontario
July 25, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-940-04
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
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GEORGINA SASVARI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 25, 2005
REASONS FOR ORDER AND ORDER: O'KEEFE J.
APPEARANCES:
Michael Roach
Lisa Cirillo
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada
Downtown Legal Services
Toronto, Ontario