The Quebec Superior Court of Justice recently ruled against Air Canada in a class action brought by passengers with disabilities, their attendants and obese passengers who had been required to pay for additional seats on flights.(1)
The court held that Air Canada was required to compensate passengers and their attendants for the discriminatory practice but it limited the class of individuals who were eligible for compensation to those who had purchased their tickets in Quebec.
The representative plaintiff in this class action was severely disabled. He lived in a long-term care home in Baie-Comeau, Quebec and his condition required constant assistance. On several occasions he had travelled to Montreal on flights operated by Air Canada. Given his disability, he had required an attendant to accompany him for each of these flights.
On each occasion he had assumed the cost of his attendant's seat on the plane as well as his own, as required by Air Canada's fare policy.
The policy stipulated, among other things, that passengers with a disability must travel with an attendant who may assist with everyday needs during the flight (eg, eating, using the washroom or taking medication) and, in case of changes in cabin pressure or an emergency, services not provided by the crew.
The plaintiff argued that:
- Air Canada was liable for committing a contractual fault by levying fees for the additional seat required for passengers with a disability, disregarding the obligations imposed on Air Canada by:
- the Civil Code of Quebec;
- the Canada Transportation Act; and
- the Canadian Human Rights Act;
- the attendant's travel expenses should be borne by Air Canada, which is obliged to do all that is reasonably possible to accommodate passengers with disabilities;
- the additional expense constituted an undue obstacle to mobility contrary to the Canada Transportation Act, in addition to it being discriminatory;
- with respect to the claims on behalf of the attendants who had paid for their own ticket to accompany a person with a disability, these claims had been proper because they were related to the disabled passengers' claims; and
- for obese persons, the reasoning was similar because Air Canada required payment for two seats for the benefit of a single person whose particular condition did not allow for the use of a single seat.
Air Canada argued that:
- the court had no jurisdiction to hear the case;
- its pricing practices were not discriminatory;
- its rate policies did not constitute undue obstacles to mobility contrary to the Canada Transportation Act; and
- the claims by class members who were attendants should not succeed because these passengers could not claim to have been personally discriminated against based on a disability.
Finally, Air Canada urged the court to limit the scope of the class action to those parties who had purchased tickets in Quebec.
The court began by addressing preliminary issues, including:
- the attendants' claims;
- whether the class should be limited to those parties who had purchased tickets in Quebec;
- the nature of the claim; and
- the question of jurisdiction.
The court held that the attendants who had paid for their own seat to accompany a person with a disability were entitled to compensation, reasoning that an attendant could not be considered the same as any other passenger. Rather, an attendant must be considered an accessory to the transport of the person with the disability. Therefore, the court held that the attendants who had paid for their own seats were properly included in the collective action.
The court limited the class of people eligible for reimbursement from Air Canada to those passengers who had bought tickets in Quebec.
The court reasoned that the claim was based on whether Air Canada had committed a contractual fault within the meaning of Article 1458 of the Civil Code of Quebec.
In contrast to other Canadian provinces, Quebec has a civil law regime which is codified in the Civil Code of Quebec. Given the significant differences between the civil and common law, and given the absence of evidence from the plaintiffs on the law applicable in the other provinces, the court limited the class members to only those persons who had bought tickets in Quebec.
The court held that the essential nature of the class action was a claim for contractual liability for breaching an obligation which had been imposed by the Civil Code of Quebec, the Canada Transportation Act and the Canadian Human Rights Act.
The question of jurisdiction had been finally decided in a previous decision in this case. Regardless, the Quebec Court of Appeal's decision in WestJet v Chabot (2016 QCCA 584) established that the court had jurisdiction to hear and decide a class action based on contractual civil liability where damages had been claimed against an airline for the improper performance of a contractual obligation.
Once the preliminary issues had been addressed, the court framed the issue of whether Air Canada was liable for a contractual fault as follows:
- Has Air Canada committed a discriminatory practice by requiring payment of two airline tickets, either for:
- an attendant in the context where the passenger has a disability; or
- an obese person who requires two seats?
- If there is a discriminatory practice, does that constitute a fault within the meaning of Article 1458 of the Civil Code of Quebec?
- If there is a fault, can Air Canada exonerate itself by invoking a valid defence?
The court found that Air Canada's practice of requiring passengers with a disability and obese passengers to purchase two seats was discriminatory. Relying on a Canadian Transportation Agency's decision from 2008, the court found that the fact that a person must pay for an additional seat because of their disability constituted an undue obstacle to their mobility within the meaning of the Canada Transportation Act.
As Air Canada presented no evidence to challenge the veracity of the Canadian Transportation Agency's decision, the decision was presumed to be accurate.
The court also held that the practice of requiring payment for two seats was a discriminatory practice within the meaning of the Canadian Human Rights Code.
The court found that there was no valid defence because imposing a 'one passenger one ticket' rate as an accommodation measure would not result in excessive costs for Air Canada.
Therefore, the practice constituted a fault within the meaning of the Civil Code of Quebec. The failure to perform a specific duty imposed by a law or a regulation is in principle a civil fault, since there is a violation of a norm of conduct fixed by the legislature.
The court held that damages could be awarded based on the cost of the second fare for each passenger with a disability or who was obese.
However, the court declined to award non-pecuniary damages for humiliation and punitive damages as the plaintiffs had presented no evidence for these heads of damages.
This decision confirms that carriers that do not abide by a 'one passenger one ticket' policy may be liable for discriminating against passengers with disabilities and obese passengers who require more than one seat.(2)
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