Decision No. 110-AT-A-2021

October 15, 2021

APPLICATION by Rosalie Finlay regarding the constitutionality of the remedial powers of the Canadian Transportation Agency (Agency).

Case number: 
17-02594

SUMMARY

[1] Rosalie Finlay was scheduled for a round-trip travel with Sunwing Airlines Inc. (Sunwing) to Varadero, Cuba, in May 2015. She alleged that during her return flight her wheelchair was damaged. She filed an application with the Agency alleging that she faced undue obstacles to her mobility in the federal transportation system as a result of Sunwing’s alleged mishandling of her wheelchair. In addition to seeking damages against Sunwing, Ms. Finlay sought to challenge the Agency’s remedial powers based on the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (UK), 1982, c 11 (Charter). Ms. Finlay settled her claim against Sunwing, but she still wished to continue with the Charter-based portion of her application. On December 2, 2020, she filed a notice of constitutional question. Ms. Finlay seeks a declaration that the monetary limitations on general damages found in sections 172 and 172.1 of the Canada Transportation Act, SC 1996, c 10 (CTA) are of no force and effect and should be struck down on the basis that they are in violation of section 15 of the Charter, and that the violation cannot be saved by section 1 of the Charter.

[2] In Decision No. LET-AT-A-32-2021 (Decision), the Agency found on a preliminary basis that Ms. Finlay’s Charter-basedchallenge should be dismissed on the grounds of mootness, lack of standing and lack of jurisdiction to grant the relief sought. The Agency provided Ms. Finlay until May 6, 2021, to show cause why the Agency should not dismiss the application pursuant to section 42 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Rules) or, alternatively, decline to hear the matter pursuant to section 37 of the CTA. The Attorney General of Canada (AGC) and Council of Canadians with Disabilities (CCD) were given until May 20, 2021, to comment on the Agency’s preliminary findings and on Ms. Finlay’s submissions.

[3] For the reasons set out below, the Agency finds that Ms. Finlay failed to show cause why the Agency should not dismiss the application for lack of jurisdiction and mootness and why it should not decline to exercise its discretion to hear the matter pursuant to section 37 of the CTA. Therefore, the Agency dismisses the application.

THE LAW

[4] Section 37 of the CTA states:

The Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.

[5] At the time of the incident, in May 2015, section 172 of the CTA did not empower the Agency to order compensation for general damages.

[6] Certain accessibility-related provisions of the CTA, including section 172, were amended by the Accessible Canada Act, SC 2019, c 10 (ACA). Section 172 was replaced with sections 172 to 172.4. The amended section 172 and new section 172.1 of the CTA, which came into force in July 2019, provide the Agency with the authority to award general damages of up to CAD 20,000.

[7] The full text of the previous section 172 and current sections 172 to 172.4 of the CTA is set out in the appendix.

[8] Section 15 of the Charter states:

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without
     discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or
     physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged
      individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or
      mental or physical disability.

[9] Section 1 of the Charter guarantees the rights and freedoms set out in it, subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[10] Under subsection 42(1) of the Rules, the Agency may, by notice to the applicant and before considering the issues raised in the application, require that the applicant justify why the Agency should not dismiss the application if the Agency is of the preliminary view that:

(a) the Agency does not have the jurisdiction over the subject matter of the application;

(b)  the proceeding would constitute an abuse of process; or

(c) the application contains a fundamental defect.

POSITIONS OF THE PARTIES

Ms. Finlay

STANDING

[11] Ms. Finlay argues that her standing is unaffected by the legislative changes to the CTA in 2019 or the settlement between herself and Sunwing because she was not eligible for an award of general damages in the first place. In addition, she submits that she has a direct and sustained interest in the Agency’s remedial authority based on her losses from the 2015 incident and her desire to continue to travel on the federal transportation network. She submits that the Agency’s inability to provide an adequate remedy was unconstitutional and that the amendments to the CTA do not resolve the unconstitutionality. For those reasons, she claims that she has standing in relation to both the previous and current remedial provisions of the CTA.

PUBLIC INTEREST STANDING

[12] Ms. Finlay further submits that she has public interest standing. Citing Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45,she submits that an inadequate remedy in the face of discrimination in transportation at the federal level is a Charter violation, whichis a serious issue, and that she has a genuine interest as a person with a disability who travels on the federal transportation network. Additionally, she submits that her case is a reasonable and effective means of bringing the matter before the courts, because the Agency is well positioned to examine and determine the matter, and that the federal government can represent and defend the legislation. Ms. Finlay also states that the funding that she received from the Court Challenges Program was granted in part for this reason.

REMEDIAL JURISDICTION

[13] Ms. Finlay submits that she is not seeking a monetary remedy but rather “a recognition that both previously, and now, her inability to recover an adequate remedy is unconstitutional” and that such a finding is within the purview of the Agency pursuant to Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54 (Martin). Ms. Finlay also submits that “[w]hile the Agency may not be able to order the precise relief sought, it can confirm that the legislation unconstitutionally restricts Ms. Finlay’s ability to recover an adequate remedy”. Ms. Finlay further submits that the Agency could use its authority under section 172.3 of the CTA to provide “an effective remedy”, though she does not mention what such an effective remedy may be.

[14] In addition, Ms. Finlay cites R v Conway, 2010 SCC 22, regarding the benefits to Canadians of asserting their Charter rights in an accessible forum and the benefits of having tribunals determine constitutional questions if the “essential factual character falls within the tribunal’s specialized statutory jurisdiction”. She submits that the Agency is an accessible forum for her as it is already seized of her complaint and has relevant expertise.

[15] Finally, Ms. Finlay argues that, according to Okwuobi v Lester B. Pearson School Board et al, 2005 SCC 16 (Okwuobi), an adjudicative body’s inability to issue a declaration of invalidity is not a reason to bypass the exclusive jurisdiction of that body.

MOOTNESS

[16] Ms. Finlay submits that the matter is not moot, even if a controversy may no longer exist between herself and Sunwing and if the Agency is now empowered to award general damages, given that the limitation of the amount that can be awarded is still a live issue. She claims that a decision on the matter will have a practical effect on her rights.

[17] In the alternative, Ms. Finlay submits that the Agency should use its discretion to hear the case because it meets the three criteria set out in Borowski v Canada (Attorney General), [1989] 1 SCR 342 (Borowski) and provides arguments with regard to the first two criteria. Regarding the adversarial context, she claims that the AGC and the Agency may participate to create one. With respect to judicial economy, she submits that forcing her to bring the case before a court does not foster judicial economy, as the Agency has the first level of constitutional jurisdiction and specialized expertise and it would create additional expense and delay. She also remarks that if her request is not heard, the Agency will have to enforce a “constitutionally suspect limit” on compensation sought by another person with a disability, who may lack the resources to challenge the legislation.

The AGC

[18] The AGC declined to make submissions on the preliminary issues but requested to be advised of the Agency’s decision so that it may consider intervening on the ultimate constitutional issues if the application is not dismissed on a preliminary basis.

CCD

[19] CCD did not file any submissions in response to the Decision.

ANALYSIS AND DETERMINATIONS

[20] There is a distinction between the Agency’s authority to dismiss an application, pursuant to section 42 of the Rules, and the Agency’s discretion to decline to hear an application, pursuant to section 37 of the CTA.

[21] Section 42 of the Rules provides that an application may be dismissed if, among other things, the Agency does not have jurisdiction over the subject matter of the application.

[22] Section 37 of the CTA provides that the Agency “may” inquire into, hear, and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.

[23] The Agency has, therefore, considered whether the application should be dismissed either pursuant to section 42 of the Rules or on the ground of mootness and whether the Agency should decline to hear the case pursuant to section 37 of the CTA.

Paragraph 42(1)(a) of the Rules – jurisdiction

[24] As stated in the Decision, the Agency has the power to consider and decide constitutional issues in the course of proceedings properly before it. However, this power does not include the authority to strike down legislative provisions, as sought by Ms. Finlay. The Supreme Court of Canada’s decision in Martin, quoted by Ms. Finlay, clearly establishes the limited authority of an administrative tribunal with regard to Charter-based challenges to a provision of its enabling statute: “if it finds a breach and concludes that the provision is not saved under s. 1, [the tribunal is] to disregard the provision on constitutional grounds and rule on the applicant’s claim as if the impugned provision were not in force”.

[25] Ms. Finlay further cites paragraph 44 of the Supreme Court of Canada’s decision in Okwuobi, which indicates that a tribunal’s lack of authority to issue a formal declaration of invalidity is not “a reason to bypass the exclusive jurisdiction of the Tribunal”. However, paragraph 45 of Okwuobi provides that the tribunal’s authority regarding provisions it deems unconstitutional is to not apply them in its ruling on the claim, such as is stated in Martin. Therefore, the Agency could hear the Charter-based challenge, even though it has no authority to grant the remedy Ms. Finlay seeks, which is a declaration of invalidity. However, as determined below, there is no longer a live issue before the Agency, as Ms. Finlay has settled the claim against Sunwing. Given that the Agency does not have the jurisdiction to make a declaration that sections 172 and 172.1 of the CTA are invalid, this aspect of Ms. Finlay’s application falls within paragraph 42(1)(a) of the Rules, which supports the dismissal of the application.

Mootness

[26] According to the doctrine of mootness, a court may decline to decide a case that raises merely a hypothetical or abstract question. The Supreme Court of Canada described the doctrine of mootness in Borowski:

The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties…. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision.

[27] In R. v Smith, 2004 SCC 14, the Supreme Court of Canada summarized Borowski and listed factors to be considered in the exercise of a court’s discretion on whether to hear a matter that is moot:

  1. the existence of a truly adversarial context;
  2. the presence of particular circumstances, which justify the expenditure of limited judicial resources to resolve moot cases; and
  3. the respect shown by the courts to limit themselves to their proper adjudicative role as opposed to the making free-standing, legislative-type pronouncements.

[28] In the original application, Ms. Finlay raised the Agency’s lack of jurisdiction to make awards of damages under section 172 of the CTA, which has since been amended under theACA in July 2019. Under section 172 and 172.1, the Agency now has the power to make awards of damages. Accordingly, the issue in relation to the previous provision no longer exists, and it has become a hypothetical question.

[29] Furthermore, in the original application, Ms. Finlay sought compensation from Sunwing to recover the expenses associated with replacing her wheelchair, an order reading in a right to compensation for general damages for pain and suffering into the CTA, general damages in the amount of CAD 60,000 for pain and suffering, and an advanced order for legal costs. However, Ms. Finlay has resolved her complaint against Sunwing and she no longer seeks relief against it. As a result, there is no live controversy between the parties to be resolved.

[30] The Agency finds that this case is moot; however, it retains the jurisdiction to hear a case, even if it is moot.

[31] Ms. Finlay argues that participation by the Agency or the AGC could create an adversarial context. However, in accordance with the principles of natural justice, the Agency cannot participate in the proceedings as it is the decision maker. The AGC is entitled, under section 57 of the Federal Courts Act, RSC 1985, c F-7, to present evidence and make submissions concerning a constitutional question before a federal tribunal, but its intervention is not guaranteed and would not necessarily create an adversarial context. For this reason, the Agency finds that there is not, at present, evidence of an adversarial context.

[32] In addition, a decision on Ms. Finlay’s Charter-based challenge would have no practical effect for Ms. Finlay other than the incurrence of additional expense and delay, as such a decision would have limited, if any, future application. The Supreme Court of Canada specified in Martin, at paragraph 31, that:

A determination by a tribunal that a provision of its enabling statute is invalid pursuant to the Charter is not binding on future decision makers, within or outside the tribunal’s administrative scheme. Only by obtaining a formal declaration of invalidity by a court can a litigant establish the general invalidity of a legislative provision for all future cases.

[33] Based on these considerations, the Agency finds that Ms. Finlay has not established how the particular circumstances justify the expenditure of the Agency’s judicial resources to consider her application despite the fact that it has been rendered moot.

Section 37 of the CTA

[34] The Supreme Court of Canada confirmed in Delta Air Lines Inc. v Lukács, 2018 SCC 2, that section 37 provides the Agency with a discretion as to whether to hear a complaint and that it may decline to hear an application even if there are no strict legal grounds preventing the complaint from being advanced. The Supreme Court of Canada held that the Agency may consider whether the claim is in good faith, timely, vexatious, duplicative, whether it raises a serious issue to be tried and whether the complaint is based on sufficient evidence. The Court also determined that the Agency could consider whether the claim is in line with the Agency’s workload and prioritization of cases.

[35] The Agency has already determined that there is no issue to be tried between Ms. Finlay and Sunwing under the CTA. In light of the absence of any practical effects of a decision on the constitutionality of the Agency’s remedial powers in this case, and the scarce resources available to the Agency, the Agency exercises its discretion under section 37 of the CTA to not hear Ms. Finlay’s application.

Standing

[36] In light of the Agency’s findings regarding section 42 of the Rules, mootness and section 37 of the CTA, it has determined that there is no need to address the issue of standing.

CONCLUSION

[37]For the reasons set out above, the Agency finds that Ms. Finlay failed to show cause why the Agency should not dismiss her application on the ground of lack of jurisdiction pursuant to section 42 of the Rules and on the ground of mootness and why the Agency should not decline to hear the case pursuant to section 37 of the CTA. The application is, therefore, dismissed.


APPENDIX TO DECISION NO. 110-AT-A-2021

PROVISIONS OF THE CANADA TRANSPORTATION ACT, SC 1996, C 10 (CTA) IN FORCE PRIOR TO THE ACCESSIBLE CANADA ACT, SC 2019, C 10 (ACA)

Inquiry re obstacles to persons with disabilities

172 (1) The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

Compliance with regulations

(2) Where the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.

Remedies

(3) On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.

PROVISIONS OF THE CTA AS AMENDED BY THE ACA

Inquiry — barriers to mobility

172 (1) The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue barrier to the mobility of persons with disabilities.

Remedies

(2) On determining that there is an undue barrier to the mobility of persons with disabilities, the Agency may do one or more of the following:

(a) require the taking of appropriate corrective measures;

(b) direct that compensation be paid for any expense incurred by a person with a disability arising out of the barrier, including for any costs
     of obtaining alternative goods, services or accommodation;

(c) direct that compensation be paid for any wages that a person with a disability was deprived of as a result of the barrier;

(d) direct that compensation be paid up to a maximum amount of — subject to the annual adjustments made under
     section 172.2 — $20,000, for any pain and suffering experienced by a person with a disability arising out of the barrier;

(e) direct that compensation be paid up to a maximum amount of — subject to the annual adjustments made under
     section 172.2 — $20,000, if the Agency determines that the barrier is the result of a wilful or reckless practice.

Compliance with regulations

(3) If the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied
     with or have not been contravened, the Agency may determine that there is an undue barrier in relation to that matter but if it does so,
     it may only require the taking of appropriate corrective measures.

Inquiry — subsection 170(1)

172.1 (1) The Agency may, on application, inquire into a matter concerning any regulations made under subsection 170(1) to determine if the applicant has suffered physical or psychological harm, property damage or economic loss arising out of — or has otherwise been adversely affected by — a contravention of any provision of those regulations.

Remedies

(2) On determining that an applicant has suffered physical or psychological harm, property damage or economic loss arising out of — or has otherwise been adversely affected by — a contravention referred to in subsection (1), the Agency may do one or more of the following:

(a) require the taking of appropriate corrective measures;

(b) direct that compensation be paid to the applicant for any expense incurred by them arising out of the contravention, including for any
     costs of obtaining alternative goods, services or accommodation;

(c) direct that compensation be paid to the applicant for any wages that they were deprived of as a result of the contravention;

(d) direct that compensation be paid to the applicant up to a maximum amount of — subject to the annual adjustments made under
     section 172.2 — $20,000, for any pain and suffering experienced by them arising out of the contravention;

(e) direct that compensation be paid to the applicant up to a maximum amount of — subject to the annual adjustments made under
     section 172.2 — $20,000, if the Agency determines that the contravention is the result of a wilful or reckless practice.

Annual adjustment

172.2 (1) For the purpose of paragraphs 172(2)(d) and (e) and 172.1(2)(d) and (e), the maximum amount shall be adjusted annually so that in any calendar year following the one during which this section comes into force it is equivalent to the product of:

(a) the amount that would have been the maximum amount for that following calendar year if no adjustment had been made under this
     section with respect to that year, and

(b) the ratio that the Consumer Price Index for the preceding calendar year bears to the Consumer Price Index for the calendar year next
     before that preceding calendar year.

Consumer Price Index

(2) For the purpose of subsection (1), a reference to the Consumer Price Index for any 12-month period means the average of the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, for each month in that 12-month period.

Publication of adjusted amount

(3) When a maximum amount is adjusted in accordance with this section, the Agency shall publish the maximum amount as so adjusted as
      soon as it is determined.

Interest

(4) A direction to pay compensation under any of paragraphs 172(2)(b) and (c) and 172.1(2)(b) and (c) may include an award of interest at
      a rate and for a period that the Agency considers appropriate.

Inquiry — transportation of persons with disabilities

172.3 The Agency may on its own initiative, with the Minister’s approval and on any terms that he or she considers appropriate, inquire into any matter or thing that concerns transportation to which the legislative authority of Parliament extends and that relates to the mobility of persons with disabilities.

Participant funding program

172.4 The Agency may establish a participant funding program to facilitate the participation of persons with disabilities in hearings that are held for the purposes of inquiries made under section 172, 172.1 or 172.3.

Member(s)

Elizabeth C. Barker
Allan Matte
Mary Tobin Oates
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