Canadian Transportation Agency v. Sasvari, 2005 FC 1022

[14]                        The applicant submitted that it is not the provider of the services that the respondent was denied. The applicant 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, to argue that there is a distinction between the public in general and a specific public served by a specific service provider.

[15]                        In Berg, supra,at page 383, the Supreme Court articulated this concept as follows:

Therefore, I would reject any definition of "public" which refuses to recognize that any accommodation, service or facility will only ever be available to a subset of the public. Students admitted to a university or school within the university, or people who enter into contracts of insurance with a public insurer, or people who open accounts with financial institutions, become the "public" for that service. Every service has its own public, and once that "public" has been defined through the use of eligibility criteria, the Act prohibits discrimination within that public.

[16]                        The test for defining the public was provided in Gould, supra:

. . . There is, therefore, a requisite public relationship between the service provider and the service receiver, to the extent that the public must be granted access to or admitted to or extended the service by the service provider. There is a transitive connotation from the language employed by the various provisions; it is not until the service, accommodation, facility, etc., passes from the service provider and has been held out to the public that it attracts the anti-discrimination prohibition. . . .

[17]                        And at paragraph 68:

A proper interpretation of s. 8(a), for the purposes of this appeal, is one which gives rise to a two-part analysis. The first step in the analysis involves a determination of what constitutes the "service", based on the facts before the court. Having determined what the "service" is, the next step requires a determination of whether the service creates a public relationship between the service provider and the service user. Inherent in this determination is a decision as to what constitutes "the public" to which the service is being offered, recalling that public is to be defined in relational as opposed to quantitative terms. In ascertaining a "public relationship" arising from a service, criteria including, but not limited to, selectivity in the provision of the service, diversity in the public to whom the service is offered, involvement of non-members in the service, whether the service is of a commercial nature, the intimate nature of the service and the purpose of offering the service will all be relevant. I would emphasize that none of these criteria operate determinatively; for example, the mere fact that an organization is exclusive with respect to the offering or providing of its service does not necessarily immunize that service from the reach of anti-discrimination legislation. A public relationship is to be determined by examining the relevant factors in a contextual manner.

[18]                        The applicant argued that regulation of air travel which is provided by third parties is not in itself a service. The applicant stated that the service in question is air travel and the respondent is indeed a member of its public, but the service provider is Air Transat, not the regulatory body.

[19]                        Issue Estoppel

The applicant further submitted that the Commission is estopped from proceeding with its investigation in any case because of the doctrine of res judicata, arguing that it applies to a decision of this nature. The applicant cited excerpts from J. Sopinka, S. N. Lederman & A. W. Bryant's, The Law of Evidence in Canada, 2d ed. (Toronto and Vancouver: Butterworths, 1999) discussing how all relief related to a cause of action must be claimed at first instance, and how the doctrine of res judicata applies when an issue has already been litigated and has been the subject of a decision.

[20]                        The applicant argued that the issue estoppel version of res judicata applied and cited the following test for it, adopted by the Supreme Court of Canada in Angle v. Canada (Minister of National Revenue) (1974), 47 D.L.R. (3d) 544, [1975] 2 S.C.R. 248">[1975] 2 S.C.R. 248:

1.          the same question has been decided;

2.          the decision was final; and

3.          the parties to the decision, or their privies, are the same as in that decision.

[21]                        The applicant argued that the issue of whether section 149 of the Regulations is discriminatory has been material to all the respondent's complaints to the Commission, the Commission's decision on her first complaint was final and laid this issue to rest, and the applicant is a privy to the first decision even though it was not named, because it was a party affected by the complaint.

[22]                        The applicant's argument that it is a privy is based on a passage out of The Law of Evidence in Canada, supra, which states that privity may arise out of a coincidence of interest, or a "participatory interest" (as per Verlysdonk v. Premier Petrenas Construction Co. Ltd. et al., 1987 60 O.R. (2d) 65).

[23]                        The applicant submitted that where such is the case, to the extent that "common sense" would suggest a court decision involving a litigant should also be binding on the alleged privy, the case law states that the Court should proceed as if the privy had actually been named as a party to the case.

[24]                        The applicant argued that if the Commission had decided in its first complaint that Air Transat was discriminating against the respondent by applying section 149 of the Regulations, then the applicant, as the regulatory body, would also have been liable and would have had to change its regulations. Ergo, it should have been named to the first complaint, and is in any case, a privy and therefore a de facto party.

[25]                        The applicant then cited the finding in Hoffman-LaRoche Ltd. v. Canada (Minister of National Health and Welfare), [1997] 2 FC 681 (F.C.T.D.), that a judicial decision inter partes operates as an estoppel both in favour of all parties and against them. The applicant argued that since, in its opinion, it is a privy and a de facto party to the first complaint, estoppel applies in this case.

Respondent's Submissions

[26]                        Standard of Review

The respondent argued 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.

[27]                        The respondent pointed out that the question at issue in all of the correspondence between the applicant and the Commission concerning the appropriateness of the complaint is whether the Commission should invoke its discretion under paragraph 41(1)(c) of the CHRA to refuse to investigate.

[28]                        Section 41(1)(c) of the CHRA states:

[29]                        The respondent argued that section 41 requires the Commission to take on all complaints unless it finds that the complaint falls into one of the above categories and exercises its discretion to refuse it. Since that would render this decision a discretionary one, the respondent argued that a standard of patent unreasonableness is appropriate.

[30]                        The respondent cited paragraph 22 of Slattery v. Canada (Human Rights Commission) (1994), 81 F.T.R. 1, [1994] F.C.J. No. 1017 (F.C.T.D.), which appears to allow for either a standard of correctness or patent unreasonableness regarding a discretionary decision:

There can be no doubt that establishment and management of a process for investigating complaints made under s. 40 is within the discretion of the CHRC under its enabling legislation. In the exercise of that discretion this Court should only intervene where it is persuaded the Commission has erred in law or has acted unreasonably. That standard is described by my colleague Mr. Justice Nadon in Slattery v. Canadian Human Rights Commission, supra, at pp. 30-33, referring to decisions of the Supreme Court in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, and [1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 per McIntyre, J. at p. 5. The decision of Nadon J. in Slattery, supra, has since been followed by my colleague Mr. Justice McKeown, in Singh v. Canadian Human Rights Commission et al., Unreported, Court file T-2148-93, May 20, 1994 (F.C.T.D.) [Please see [1994] F.C.J. No. 726].

[31]                        For ease of reference, I will excerpt here the segment of the companion Slattery, supra, case to which McKay J. appears to have been referring:

In the spirit of the Supreme Court of Canada in Mossop, deference must prevail over interventionism in so far as the CHRC deals with matters of fact-finding and adjudication, particularly with respect to matters over which the CHRC has been vested with such wide discretion, as in the case of the decision whether or not to dismiss a complaint pursuant to subsection 44(3).

[32]                        The respondent also cited the Ontario jurisprudence that has repeatedly found that a patent unreasonableness standard is applicable to discretionary decisions of the Ontario Human Rights Commission.

[33]                        The respondent submitted that an even greater degree of deference is warranted at the "screening out" stage of a human rights complaint, in the interests of allowing as many of the complaints as possible to receive a hearing, in the public interest (see Canada Post Corp. v. Canada (Canadian Human Rights Commission) (otherwise known as Re Canadian Postmasters and Assistants Assn.) (1997), 130 F.T.R. 241, [1997] F.C.J. No. 578, as recently cited in Canada Post Corp. v. Canada (Attorney General), [2000] F.C.J. No. 425 (QL)).

[34]                        Jurisdiction of the Commission

The respondent argued that the foundation of her complaint against the applicant is the regulation alleged to be discriminatory, not the individual denial of service by Air Transat. The complaint against Air Transat focused solely on the 1998 denial of service incident, while the complaint against the applicant focused solely on the discriminatory impact of section 149 of the Regulations.

[35]                        The respondent also noted that the Commission has only made a decision to investigate the complaint, it has not examined or made a finding on the merits of the complaint itself. The respondent submitted that there is not yet enough information before the decision-maker to indicate a lack of jurisdiction that would trigger paragraph 41(1)(c), and that the applicant can always raise the issue later in the process if such information emerges.

[36]                        Issue Estoppel

The respondent noted that the applicant has not referred to paragraph 41(1)(c) of CHRA in its arguments at all, and that this statutory provision controls the basis on which the Commission can refuse to take complaints. The respondent submitted that if an exception in paragraph 41(1)(c) does not apply, the Commission must take the complaint.

[37]                        The respondent submitted that the applicant must therefore establish either that the Commission exercised its discretion under paragraph 41(1)(c) in a patently unreasonable manner, or that the Commission failed to exercise its discretion under paragraph 41(1)(c) at all and therefore committed an error of law.

[42]                        Regarding the third branch of the test, the respondent submitted that the applicant was not a party or a privy to the first complaint. It was not named as a party, nor was it mentioned in the complaint, and its liability was not implicated at all.

Analysis and Decision

[43]                        Issue 1

What is the standard of review applicable to the Commission's decision?

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.

[44]                        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.

[45]                        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.

[46]                        Issue 2

2.         Did the Commission exceed its jurisdiction in:

(i)         accepting the respondent's complaint; and

(ii)        finding it was not barred by res judicata (specifically, issue estoppel)?

The Supreme Court of Canada in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. stated at pages 890 to 893 that the Commission has no power to decide questions of law with the exception that the Commission has power to interpret and apply its enabling statute. Thus, the Commission in this case, is entitled to look at CHRA, its enabling statute to determine whether it has jurisdiction to deal with the complaint.

[47]                        Subsection 41(1) states 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 (paragraph 41(1)(c) of CHRA). The Commission's jurisdiction for this complaint is found in section 5 of CHRA. The relevant question is whether the applicant is providing a service customarily available to the public. If the CTA is not providing a service customarily available to the public, the Commission does not have jurisdiction to deal with the complaint.

[48]                        In the present case, the respondent filed a complaint with the Commission which read as follows:

ALLEGATION

Canadian Transportation Agency 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.

[49]                        Section 149 of the Air Transportation Regulations, supra, only applies in respect of domestic services operated by the air carrier (see subsection 146(1) of the Regulations). Air Transat adopted section 149 as its policy for international flights.

[50]                        The applicant submitted that it was not providing any service to the respondent. It stated that the service provided to the respondent was provided to her by Air Transat and not by it. The applicant maintains that since it did not provide a service to the respondent, the Commission did not have jurisdiction to deal with the respondent's complaint.

[51]                        I am of the view that the service provided to the respondent was provided to her by Air Transat and not by the applicant. It was Air Transat that she paid to transport her to St. Maarten in the Dutch West Indies. Section 149 of the Regulations does not apply to other than domestic flights. The only reason why it came into play in this case is that Air Transat adopted it as its own policy on international flights. For these reasons, I conclude that CTA was not providing a service to the respondent within the meaning of section 5 of the CHRA.

[52]                        When the Commission decided to deal with the respondent's complaint; it decided that it had jurisdiction to deal with the complaint.

[53]                        My conclusion is that the complaint was beyond the jurisdiction of the Commission pursuant to paragraph 41(1)(c) of the CHRA because the applicant did not provide a service to the respondent.

[54]                        It also follows 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.

[55]                        It was patently unreasonable for the Commission to decide that the complaint did not appear to be beyond the jurisdiction of the Commission.

[56]                        Because of my finding on this issue, I need not deal with the other issues raised by the applicant.

[57]                        The decision of the Commission is set aside and the CHRC is prohibited from dealing further with the complaint.

[58]                        For the same reason as in Court file T-940-04, there shall be no order for costs.

ORDER

[59]                        IT IS ORDERED that the decision of the Commission is set aside and the Canadian Human Rights Commission is prohibited from dealing further with the complaint.

"John A. O'Keefe"

J.F.C.

Ottawa, Ontario

July 25, 2005

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-932-04

STYLE OF CAUSE:                         CANADIAN TRANSPORTATION AGENCY

- and -

GEORGINA SASVARI

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                       January 25, 2005

REASONS FOR ORDER AND ORDER:             O'KEEFE J.

DATED:                                              July 25, 2005

APPEARANCES:

                                                    Elizabeth Barker

FOR APPLICANT

                                                    Lisa Cirillo

FOR RESPONDENT

SOLICITORS OF RECORD:

                                                    Canadian Transportation Agency

                                                    Gatineau, Quebec

FOR APPLICANT

Downtown Legal Services

Toronto, Ontario

FOR RESPONDENT