Decision No. 2-AT-A-2012

January 3, 2012

APPLICATION by Malcolm Johnson against Air Canada.

File No.: 
U3570/11-05203

INTRODUCTION

Malcolm Johnson filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) against Air Canada with respect to additional fees charged for economy class seats that afford extra leg room. Mr. Johnson submits that, due to his height, he cannot sit in a “regular seat” without endangering his health due to restricted circulation in his legs from cramped seating.

Mr. Johnson requests that Air Canada eliminate the additional fees charged to persons who, due to their height, need economy class seats that afford extra leg room. In addition, Mr. Johnson asks that Air Canada reimburse him “for all previous flights where [he had to pay] for extra leg room seating”.

ISSUE

Is Mr. Johnson a person with a disability for the purposes of Part V of the CTA due to his height?

THE LAW

The Agency’s legislative mandate with respect to persons with disabilities is found in Part V of the CTA, which contains a complaint adjudication authority [subsection 172(1)] for the express purpose of removing undue obstacles to the mobility of persons with disabilities from the federal transportation network.

Given that Part V of the CTA is human rights legislation, the Agency identifies and remedies undue obstacles for persons with disabilities in the transportation context in a manner that is consistent with the approach for identifying and remedying discrimination under human rights legislation.

The Agency applies a specific three-step process to determine whether there is an undue obstacle to the mobility of the person with a disability. It must determine:

  1. whether the person has a disability for the purposes of the CTA;
  2. whether that person encountered an “obstacle” (a rule, policy, practice, physical barrier, etc. that directly or indirectly discriminates against a person with a disability and has the effect of denying the person the same benefits and privileges that are available to others in the federal transportation network); and
  3. whether the obstacle was “undue”. This requires the Agency to decide whether the service provider has done all it could have done to accommodate the person with a disability without facing undue hardship.

ANALYSIS AND FINDINGS

The Agency’s approach to the determination of disability

In determining whether there is an obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first establish whether the application was filed by, or on behalf of, a person with a disability.

While there are situations where a disability is self-evident (e.g. a person who uses a wheelchair), there are cases where additional evidence is required to establish both the disability and the need for accommodation. In assessing those cases, the Agency may use the World Health Organization’s International Classification of Functioning, Disability and Health (ICF), an internationally accepted tool for the consistent classification of disability, and/or medical documentation.

The Agency views a disability as comprising three dimensions: impairment, activity limitation and participation restriction, all of which must be established in order for a disability to exist for the purposes of Part V of the CTA.

The ICF explains that an impairment is a loss or abnormality in body structure or physiological function (including mental functions).

Activity limitations are difficulties an individual may have in executing activities and relate to the presentation of symptoms and resulting difficulties, irrespective of the context. The ICF model states that an activity limitation may range from a slight to a severe deviation in terms of quality or quantity in executing the activity in a manner or to the extent that is expected of people without the impairment. The Agency is of the opinion that, for the purposes of an application pursuant to Part V of the CTA, a limitation must be significant enough to result in an inherent difficulty in executing a task or action.

Participation restrictions are problems an individual may experience in life situations. The presence of a participation restriction is determined by comparing an individual’s participation to that which is expected of an individual without a disability in that culture or society. For the purposes of Part V of the CTA, this would mean an interaction between the person with the impairment and the federal transportation network.

In order to be found to be a person with a disability for the purposes of Part V of the CTA, the applicant has an evidentiary burden to demonstrate that they:

  1. have an impairment;
  2. experience an activity limitation that is significant enough to result in an inherent difficulty in executing a task or action; and
  3. experience a participation restriction in the context of the federal transportation network.

Impairment

As set out above, the ICF explains that an impairment is a loss or abnormality in body structure or physiological function (including mental functions). The ICF clarifies that “abnormality” refers to a significant variation from established statistical norms (i.e., as a deviation from a population mean within measured standard norms).

A note from Mr. Johnson’s physician states that Mr. Johnson is 202 cm tall and “has a length from back to knee of 70 cm and from knee to floor of 69 cm”. The physician explains that the concern for Mr. Johnson is lack of mobility which, during flight, can lead to an increased risk of deep venous thrombosis (DVT). The physician recommends that Mr. Johnson “qualify for extra seating”. Mr. Johnson adds that the risk of DVT arises from his inability to move in his seat and severe pressure on his knees and legs.

Mr. Johnson submits that his physician recognizes the “abnormality of [his] height of 202 cm”.

Agency analysis

While Mr. Johnson submits that his physician recognizes the “abnormality of [his] height”, the physician makes no such reference in his note. The physician provides Mr. Johnson’s height, and leg measurements, but he does not state that they constitute a loss or abnormality in body structure or physiological function. Moreover, with respect to the abnormality of a body part, the evidence would have had to establish a significant variation from established statistical norms.

The physician states that Mr. Johnson’s lack of mobility in the context of air travel as a result of cramped seating can lead to an increased risk of DVT. However, a risk of developing a medical condition does not equate with having a condition.

Mr. Johnson did not provide evidence to demonstrate either a loss or abnormality in body structure or physiological function associated with his height. As such, the Agency finds that Mr. Johnson has not met his evidentiary burden of demonstrating the existence of an impairment, which is a pre-requisite to a positive finding of disability. There is no need, therefore, for the Agency to consider whether Mr. Johnson has demonstrated the existence of the two other elements of disability, i.e., an activity limitation and a participation restriction in the context of air travel.

CONCLUSION

In light of the foregoing, the Agency finds that Mr. Johnson has not met his evidentiary burden of demonstrating that, for the purposes of Part V of the CTA, he is a person with a disability due to his height. Therefore, the application is dismissed.

Member(s)

  • J. Mark MacKeigan
  • Geoffrey C. Hare