Introduction
Facts
Canadian Human Rights Tribunal decision
Federal Court decision
Federal Court of Appeal decision
Comment
Introduction
Eddy Morten, a deaf and blind passenger, filed a complaint against Air Canada due to its denial of his request to travel without a personal attendant (for further details please see "Jurisdiction of Canadian Transportation Agency affirmed"). The complaint has worked its way through two administrative tribunals - the Federal Court and most recently, the Federal Court of Appeal. In the most recent and probably final decision on the matter, the Federal Court of Appeal in essence restored the decision of the initial decision maker, the Canadian Transportation Agency. The agency had dismissed Morten's complaint and found that Air Canada's attendant policy did not constitute an undue obstacle to the mobility of a person with a disability.
Facts
Morten is profoundly deaf and has extreme visual disabilities. He has no light perception in his left eye and only extremely limited vision through the right. He also suffers from nystagmus, a condition that causes objects in his limited visual field to appear to move erratically and hinders balance and coordination.
In the summer of 2004, 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 action on the basis that the carrier's decision was justified in light of its safety-related concerns. It was reasonable to conclude that Morten would require the assistance of an attendant in the event of an emergency evacuation or decompression.
Instead of seeking to appeal the agency's decision, Morten filed the same complaint with the Canadian Human Rights Commission in the autumn of 2005.
Canadian Human Rights Tribunal decision
Air Canada brought a motion to the Canadian Human Rights Tribunal to have the commission's investigation stayed on the basis that the matter had already been dealt with by the agency. The tribunal disagreed, the investigation proceeded and the commission subsequently referred the matter to the tribunal for a full hearing on the merits of the complaint.
The tribunal conducted an 11-day hearing in 2008. There were numerous witnesses, including several experts. In January 2009 the tribunal released its decision. It found that it had jurisdiction to consider the complaint, although the agency had made a prior determination on the same set of facts. The tribunal held that it was not possible to determine whether Morten should be allowed to travel unattended until he was provided with the opportunity to have his individual level of self-reliance assessed fairly and accurately. To that end, Air Canada was ordered to develop an attendant policy in conjunction with the commission and Morten. While the tribunal purported not to order what that policy should provide, it essentially restrained any independent decision making by its expressed views of what could be done consistent with aviation safety regulations.
Federal Court decision
Air Canada brought an application to the Federal Court for judicial review of the tribunal's decision. It argued that the tribunal did not have – or alternatively ought not to have exercised – jurisdiction to adjudicate. It also argued that the tribunal committed several errors of law and misinterpreted the evidence. The agency also brought an application for judicial review of the tribunal decision, arguing that the agency has exclusive jurisdiction to adjudicate disability-related disputes which arise within the Canadian transportation network.
The Federal Court set aside the tribunal decision on the basis that the commission and tribunal exceeded their jurisdiction in the present case. In light of its decision on jurisdiction, the Federal Court declined to review the merits of the decision.
Federal Court of Appeal decision
The commission appealed the Federal Court decision to the Federal Court of Appeal.(1) On appeal, the agency reiterated its position that it has exclusive jurisdiction over such transportation-related complaints. It relied on the Supreme Court's decision in CCD v Via Rail, which established that the agency has a special role to play in applying its expertise to human rights complaints in the transportation context, and that the relevant section of the agency's enabling act is essentially human rights legislation. Air Canada supported the agency's position, but argued that in the alternative, if it should be found that the agency and the tribunal have concurrent jurisdiction, then the tribunal should have declined to hear the complaint which had been previously adjudicated. The decision should therefore be set aside on the basis of the common law finality doctrines, namely issue estoppel, abuse of process and collateral attack.
The Federal Court of Appeal held that for the purpose of the appeal, it was sufficient to assume, without deciding, that the tribunal did have concurrent jurisdiction with the agency to deal with a complaint concerning discrimination within the federal transportation network. The Federal Court of Appeal then applied the recent Supreme Court decision of British Columbia (Workers' Compensation Board) v Figliola, a case that involved two administrative tribunals with concurrent jurisdiction over a complaint.
In Figliola the Supreme Court held that when a tribunal is considering a request that it not hear a proceeding because the subject matter of the proceeding has previously been the subject of adjudication by another tribunal, the tribunal should be guided less by precise doctrinal catechisms and more by the goals of fairness and finality in decision making. The avoidance of re-litigation of issues already decided by a decision maker with the authority to resolve them is to be given particular importance. Applying these principles to the tribunal's decision in Morten, the Federal Court of Appeal concluded that the tribunal was complicit in an attempt to appeal collaterally the merits of the agency's decision, and that the tribunal improperly dismissed Air Canada's preliminary motion for a stay on technical grounds without considering the unfairness inherent in serial forum shopping. The Federal Court of Appeal held that any concern about the agency's application of human rights principles ought to have been addressed through the appeal process for agency decisions, and noted that Air Canada advised Morten, after he had failed to file an application for leave to appeal in the time specified, that it would not seek to take advantage of this failure if Morten were to drop the commission proceedings and seek appeal in the normal course.
Comment
CCD v Via Rail was not about competing tribunals; in that case the Supreme Court was not comparing the agency's jurisdiction over a particular complaint to that of the tribunal. The issue of whether the agency and the tribunal have concurrent jurisdiction over discrimination complaints in the transportation network has not yet been decided by an appellate court. As things now stand, the only direct authority on the subject is from the Federal Court decision in Morten – a decision which upholds the exclusive jurisdiction of the agency in relation to complaints concerning accessibility of the federal transportation network.
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Endnotes
(1) Canada (Human Rights Commission) v Canadian Transportation Agency 2011 FCA 332.