Canada (Attorney General) v. Sasvari, 2005 FC 1021

[24]                        I will presume that the applicant was actually referring to subparagraph 44(3)(b)(ii), not subsection 44(1), since this is the full text of section 44:

[25]                        The applicant also argued that the Commission made another error, which it characterized as one of law, but could equally be considered one of fact. The applicant submitted that by allowing the complaint to proceed, the Commission found that the applicant has responsibility for making the Regulations.

[26]                        The applicant submitted that under section 170 of the CTA, it is clearly the Agency, not the applicant, that has responsibility for making regulations pertaining to the carriage of people with disabilities:

[27]                        The applicant provided affidavit evidence regarding the Agency's on-going responsibility for the Regulations. The applicant noted that while the Minister of Transport has some regulation-making authority under the CTA, this does not extend to the Regulations that govern the carriage of persons with disabilities.

[28]          The applicant submitted that according to Canada Post Corporation v. Barette (2000), 27 Admin. L.R. (3d) 268, [2000] 4 F.C. 145, wherever the Commission fails to turn its mind to issues raised by the person against whom the complaint is made, it neglects a duty imposed by law. The applicant contended that the Commission failed to turn its mind to the fact that Transport Canada does not issue the Regulations and does not fit within section 5 of the CHRA.

[29]          Section 149 of the Regulations Does Not Apply

The applicant submitted that section 149 of the Regulations applies only to domestic flights, not to international flights, pursuant to section 146 of the Regulations. Section 146 states:

[30]                        Since section 149 of the Regulations also falls under Part VII, section 146 applies to it. The applicant argued that since the respondent was taking an international flight from Toronto to St. Maarten when the incident occurred, it would not be applicable to her particular situation.

[31]                        Abuse of Process

The applicant submitted that the Commission erred in accepting the respondent=s complaint when it is clearly an abuse of process. The applicant stated that repeated attempts to litigate essentially the same dispute constitutes such an abuse, and that the motivation of the individual seeking to re-litigate is not determinative of whether such abuse exists (see Toronto (City) v. Canadian Union of Public Employees Local 79 (2003), 3 SCR 77 and Black v. NsC Diesel Power Inc. (2000), F.C.J. No. 725 (F.C.T.D.) (QL)).

[32]          The applicant also argued that the Commission and the Agency are required to coordinate their activities with regard to the transportation of persons with disabilities in order to avoid jurisdictional conflicts. The applicant submitted that since the Agency, which is a tribunal, already investigated and dismissed the respondent=s complaint, the respondent should not be allowed to re-litigate it in another forum.

[33]          The applicant repeated the arguments made in Court file T-932-04 that the subject matter of the complaint is the same as that in the respondent=s original complaint to the Commission against Air Transat.

[34]          The applicant argued that the respondent's complaint is a collateral attack on the previous decisions of the Commission and the Agency, and that the Commission erred in law in agreeing to accept it. The applicant also noted that since the respondent already has a complaint against the Agency lodged with the Commission, this heightens the abusive nature of the complaint against the applicant.

Respondent's Submissions

[35]          Standard of Review

The respondent repeated her arguments from Court file T-932-04, 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. The respondent also repeated the argument that the only discretion the Commission has to refuse a complaint is laid out in subsection 41(1) of the CHRA, and any refusal must fit into one of the enumerated exceptions. Since the decision on whether or not to let a complaint proceed at the preliminary stage is discretionary, the respondent argued that a standard of patent unreasonableness is applicable.

[36]                        Jurisdiction of the Commission

The respondent repeated her arguments from Court file T-932-04 that the focus of this complaint is section 149 of the Regulations, not the denial-of-service incident at Air Transat that was the subject of the first complaint. The respondent argued that since the service under section 5 of the CHRA targeted by the complaint is the regulation of access to air travel, and not the specific services provided by Air Transat, that the Agency and the applicant come under section 5.

[37]          With regard to the regulation-making power of the applicant, the respondent argued that the applicant does have shared responsibility for the Regulations, citing the information on the applicant's website indicating that it has responsibility for the CTA and develops regulations as part of that responsibility.

[38]          While the respondent appeared to concede that the Agency develops the Regulations, the respondent argued that the Agency does not have the legislative authority to give legal effect to a proposed regulation or amendment. The respondent argued that the Agency must take its proposed regulations to the Minister of Transport, which must then recommend them for approval by the Governor-in-Council, and only then can they become law.

[39]          The respondent argued that insofar as a particular regulation developed by the Agency and recommended by the applicant contravenes the CHRA, both parties are responsible.

[40]          The respondent noted that the Commission had not actually made a finding as to where responsibility for the Regulations lies, it has just taken the preliminary step of accepting a complaint for investigation, based on the respondent=s allegation that it appears the responsibility is shared.

[41]          Section 149 of the Regulations Does Not Apply

The respondent submitted that the focus of the complaint is the discriminatory nature of the Regulation, not the specific incident with Air Transat that made her aware of the Regulation. The respondent argued that since the Air Transat incident is not the subject of the complaint, the issue of whether section 149 of the Regulations applied to domestic or international flights is irrelevant. The respondent is challenging the Regulation=s compliance with the CHRA, whichever flights it governs.

[42]          Abuse of Process

The respondent noted that while the applicant has discussed subsection 41(1) of the CHRA in its other arguments, it had not made reference to it in its arguments on abuse of process. The respondent repeated the arguments from Court file T-932-04 concerning the non-application of general common law doctrines to the Commission=s actions B the Commission is governed by its statute, and under section 41, the Commission must accept all complaints unless they fall into one of the exceptions.

[43]          Therefore, the applicant must establish either that the Commission exercised its discretion under subsection 41(1) in a patently unreasonable manner, or that the Commission failed to exercise its discretion under subsection 41(1) at all and therefore, committed an error of law. The respondent repeated her reference to the Commission=s decision in Parisien v. Ottawa-Carleton Regional Transit Commission, File No. T699/0402, Ruling No. 1, [2002] C.H.R.D. No. 23 (QL), on this point.

[44]          The respondent also repeated the prematurity arguments from Court file T-932-04 B the complaint is only at the preliminary stage of being accepted for investigation, and the full nature of, and evidence supporting the complaint will only become apparent further on in the process, at which time the applicant could then object.

[45]          In the alternative, the respondent submitted that since the doctrine of abuse of process would preclude the claim from proceeding, the test for applying it to a human rights claim is a stringent one. The respondent cited several decisions of human rights tribunals and the Commission on this point, but no jurisprudence. The key passage comes from Jeffrey v. Dofasco Inc., [2001] O.H.R.B.I.D. No. 8 at paragraph 12:

An abuse of process is something that would shock the public, conduct which would Aviolate those principles of fundamental justice which underlie the community=s sense of fair play and decency@ or is vexatious or oppressive in character....It will be found in only the most exceptional circumstances. Accordingly, a moving party has a heavy burden to meet this test. Not surprisingly, there have been very few cases dismissed for abuse of process before the Board, and the only [sic] in the most egregious of circusmtances.

[46]          Finally, the respondent noted that both the complaint before the Agency and the first complaint to the Commission focused on the respondent=s individual encounter with Air Transat, they were not challenges to the Regulations. The respondent stated that she is not attempting to re-litigate a settled question or shop for jurisdictions, she is bringing a complaint on the fresh and unresolved subject matter of whether the Regulations are in contravention of the CHRA.

Analysis and Decision

[47]                        Issue 1

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

As I indicated in Court file T-932-04, the standard of review to be applied to a review of the Commission's decision pursuant to subsection 41(1) of the CHRA to deal with the complaint is patent unreasonableness. For ease of reference, I will repeat my discussion of the standard of review in Court file T-932-04.

[48]                        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.

[49]                        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.

[50]                        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.

[51]                        Issue 2

Did the Commission exceed its jurisdiction?

By virtue of subsection 41(1) of the CHRA, the Commission must deal with the respondent's complaint unless it appears to the Commission that the respondent's complaint is beyond its jurisdiction (paragraph section 41(1)(c) of CHRA).

[52]                        In Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, the Supreme Court of Canada stated at pages 890 to 893 that the Commission has no power to decide questions of law with the exception that the Commission has the power to interpret and apply its enabling statute. The Commission, in the present case, can look at the CHRA, its enabling statute, to determine whether it has jurisdiction to deal with the respondent's complaint.

[53]                        A review of subsection 41(1) of the CHRA makes it clear 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. The Commission's jurisdiction for the present case would flow from section 5 of the CHRA. The question that must be determined is whether the applicant is providing a service that is customarily available to the public. It follows that if the applicant is not providing a service that is customarily available to the public, the Commission has no jurisdiction to hear the respondent's complaint.

[54]                        The complaint filed by the respondent stated:

ALLEGATION

Transport Canada 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.

[55]                        The applicant submitted that the Commission exceeded its jurisdiction for the following reasons:

1.         Transport Canada is not the regulator with respect to section 149 of the Regulations

2.         Transport Canada is not a service provider within the meaning of section 5 of the CHRA;

3.         Section 149 of the Regulations does not apply to the facts of this case; and

4.         The complaint amounts to an abuse of process.

[56]                        I propose to deal first with the argument that the applicant is not a service provider. As can be seen from the complaint, the incident that started the chain of events in this case was the refusal of Air Transat to allow the respondent's service dog in the passenger compartment of its aircraft for a trip to St. Maarten. The respondent had purchased a ticket from Air Transat for the trip to St. Maarten.

ORDER

[68]                        IT IS ORDERED that:

1.         The decision of the Commission is set aside.

2.         There shall be no award of costs.

"John A. O'Keefe"

J.F.C.

Ottawa, Ontario

July 25, 2005

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-940-04

STYLE OF CAUSE:                         ATTORNEY GENERAL OF CANADA

- 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:

                                                     Michael Roach

FOR APPLICANT

                                                     Lisa Cirillo

FOR RESPONDENT

SOLICITORS OF RECORD:

                                                     John H. Sims, Q.C.

                                                     Deputy Attorney General of Canada

FOR APPLICANT

Downtown Legal Services

Toronto, Ontario

FOR RESPONDENT