Sarah Cheung v. Canadian Transportation Agency, et al.

(Federal) (Civil) (By Leave)




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Human rights – Duty to accommodate – Person with disability requesting accommodations by airline to assist her in international air travel – Whether Court of Appeal erred by denying leave to appeal from decision of Canadian Transportation Agency that WestJet had discriminated against applicant on a prima facie basis, but denied her a remedy without considering whether WestJet could establish undue hardship – Whether Agency breached its duty of procedural fairness by preventing applicant from making full submissions on undue hardship.

The applicant has spinal muscular atrophy and experienced certain difficulties in travelling between Vancouver, British Columbia and Honolulu, Hawaii in May, 2012. She uses a wheelchair with a removable custom orthotic positioning device (“OPD”) to support her body without which she could not sit upright without extreme discomfort. During flights, she also requires an attendant to assist her with her medication and personal care. The respondent, Westjet Airlines, refused to allow her to use her OPD during the international flight and to provide one extra seat, free of charge, for one attendant. She applied the Canadian Transportation Agency pursuant to s. 172(1) of the Canada Transportation Act, S.C. 1996, c. 10, as amended, to determine whether there was an undue obstacle to the mobility of a person with a disability. If not permitted the use of her OPD, Ms. Cheung sought three seats free of charge – two seats for two attendants and one additional seat to allow her to lie down.

Lower Court Rulings

October 13, 2015
Canadian Transportation Agency

Decision that refusal to permit applicant to use OPD during flight constituted undue obstacle to her mobility. No corrective measures required. One-person, one-fare principle not expanded to international routes
December 21, 2015
Federal Court of Appeal

Applicant’s application for leave to appeal dismissed