Digests

Transportation

Applications for judicial review of decision by Canadian Human Rights Tribunal (Tribunal) concerning complaint by respondent Eddy Morten against Air Canada—Applicants challenging jurisdiction of Tribunal—Respondent, suffering from visual, hearing impairment, advised by Air Canada that he could not fly without attendant—Decision confirmed without individualized assessment—Respondent filing complaint with Canadian Transportation Agency (Agency) under Part V of Canada Transportation Act, S.C. 1996, c. 10 (CTA), Part V alleging Air Canada’s decision constituting undue obstacle to mobility—Agency finding obstacle not undue, as predicated on safety risks—Respondent subsequently filing complaint with Canadian Human Rights Commission (Commission)—Tribunal concluding Air Canada discriminating against respondent, ordering Air Canada’s attendant policy be formalized with respect to persons with visual, hearing impairment by revising applicable tariffs—Also rejecting argument that tariffs, amendments to tariffs within exclusive jurisdiction of Agency, concluding that CTA not requiring Agency’s prior approval of tariffs—Issues: (1) proper standard of review, (2) whether Tribunal acting without jurisdiction in hearing respondent’s case—Tribunal’s account of evidence entitled to deference—Lack of experience, expertise in aeronautical laws not meaning Tribunal’s account of evidence must be correct—Parliament’s intention was for Agency, not Commission, Tribunal, to handle complaints relating to carrier’s policies, tariffs, transportation regulations—Not proper for Tribunal to sit on appeal of Agency’s decision—Matter herein falling to be heard by Agency, including human rights aspect of case since test applicable when assessing undue obstacle under CTA, s. 5 same one that is applied by human rights tribunals across country when assessing undue hardship—Application allowed. 

Canada (Transportation Agency) v. Morten (T-239-09, 2010 FC 1008, O’Keefe J., judgment dated October 13, 2010, 34 pp.)