Decision No. 246-AT-A-2010
June 11, 2010
APPLICATION by Margaret Tatlock for an award of costs pursuant to section 25.1 of Canada Transportation Act, S.C., 1996, c. 10, as amended.
File No. U3570/96-21
APPLICATION
[1] On May 31, 2005, Ms. Tatlock filed an application with the Canadian Transportation Agency (Agency) pursuant to section 25.1 of the Canada Transportation Act (CTA) requesting an award of costs resulting from her participation in the written hearing of her application against Air Canada regarding its refusal to provide Ms. Tatlock with its onboard medical oxygen service.
BACKGROUND
[2] In Decision No. 604-AT-A-2006 dated October 31, 2006 (Decision), the Agency made a preliminary finding that Air Canada's refusal to provide Ms. Tatlock with its onboard medical oxygen service, which resulted in her cancelling her reservation and being unable to travel with Air Canada, constituted an undue obstacle to her mobility. The Agency provided Air Canada with an opportunity to address this preliminary finding and directed it to file specific evidence and related arguments to show cause why this obstacle is not undue.
[3] As part of its response, Air Canada filed, as required by the Agency's show cause direction, expert medical evidence to substantiate its decision not to provide its onboard medical oxygen service on the basis that it is neither appropriate nor required to accommodate Ms. Tatlock's disability relating to multiple chemical sensitivities (MCS).
[4] Ms. Tatlock was given an opportunity to reply to the evidence filed by Air Canada.
[5] The Agency considered the expert evidence and submissions filed by Air Canada, Ms. Tatlock's submissions and a report filed by Dr. John Molot, an MCS expert retained by the Agency. The Agency determined that the assistance of an MCS expert was essential to the Agency's understanding of the concerns involving MCS, such as the spectrum of reactions to irritants, consequences and how they are managed. The parties were provided with a copy of Dr. Molot's report in addition to a report by Dr. Gordon Sussman, an expert in allergies, that was prepared to assist the Agency in its investigation of applications concerning air travel by persons with allergies, which the Agency considered may be of assistance in reviewing Ms. Tatlock's application.
[6] By Decision No. 245-AT-A-2010 dated June 11, 2010, the Agency made its finding that Air Canada's refusal to provide Ms. Tatlock with its onboard medical oxygen service constituted an undue obstacle to her mobility and required that Air Canada allow her to use onboard medical oxygen delivered by whatever means is permissible by regulation and as chosen by Ms. Tatlock.
[7] In the Decision, the Agency noted that Ms. Tatlock is seeking an award of costs from Air Canada for solicitor and client costs in this matter. In Decision No. LET-AT-A-267-2005, the Agency determined that it would only consider Ms. Tatlock's request for an award of costs at the end of the proceedings as, at that time, the Agency would be in a better position to address it with a more balanced view of the issues and the participation of the parties during the proceedings.
ISSUE
[8] The issue to be addressed is whether the Agency should award costs to Ms. Tatlock.
POSITIONS OF THE PARTIES
[9] In a submission dated February 15, 2007, Ms. Tatlock referred to the fact that she had, at that point, been pursuing her application against Air Canada for almost two years and stated that it has stretched her resources, both personal and financial. Ms. Tatlock increased her request for reimbursement of her legal costs to $3,000 in light of the additional work since the filing of her application to provide further submissions. Ms. Tatlock states that it appears that Air Canada has spared no expense or effort and has had this matter handled by a senior staff lawyer. Ms. Tatlock submits that she could not have reasonably pursued this matter without legal counsel, and the remedial jurisdiction of the Agency includes "making her whole" by whatever means are appropriate. She adds that it would be a "hollow victory if she, as a person living on disability pensions, had to absorb this cost."
[10] In its February 27, 2007 submission, Air Canada asserts that an award of legal fees is not warranted in this case. Air Canada submits that the Agency usually does not award costs to a party unless the case is one where the applicant is acting on behalf of many other (often future) passengers with disabilities. Air Canada further submits that this is not the case here as the issues raised are entirely personal to Ms. Tatlock.
[11] On April 14, 2008, the Agency announced that it would retain an expert on the subject of MCS to assist the Agency with its investigation related to this application. In a submission dated April 28, 2008, Ms. Tatlock raised concerns that her personal and individual complaint had apparently expanded into a policy matter of considerable scope.
ANALYSIS AND FINDINGS
[12] Section 25.1 of the CTA reads as follows:
- Subject to subsections (2) to (4), the Agency has all the powers that the Federal Court has to award costs in any proceeding before it.
- Costs may be fixed in any case at a sum certain or may be taxed.
- The Agency may direct by whom and to whom costs are to be paid and by whom they are to be taxed and allowed.
- The Agency may make rules specifying a scale under which costs are to be taxed.
[13] The Agency has complete discretion regarding the award or denial of costs and each application is decided on its own merits. As a general rule, costs are not awarded and the Agency's practice has been to award these only in special or exceptional circumstances. In making its determination in a given case, the Agency considers a combination of factors such as the nature of the application, the length and complexity of the proceeding, whether the Agency held an oral hearing, whether parties have acted efficiently and in good faith or if a party has incurred extraordinary costs to prepare and defend its application, etc.
[14] In this case, while the Agency retained an expert in MCS in order to better understand the condition and assist it in its investigation of Ms. Tatlock's application, as well as any future applications regarding MCS, the related cost was borne by the Agency. Ms. Tatlock's application was narrow and focused only on her own personal situation. In addition, Ms. Tatlock did not demonstrate that she incurred particular or exceptional hardship in pursuing her application to its completion. Therefore, the Agency finds that Ms. Tatlock's case does not warrant a deviation from the Agency's practice of restricting the awarding of costs to very exceptional, broad-based applications resulting in significant accessibility benefits to the community as a whole and the community of persons with disabilities in particular.
CONCLUSION
The Agency has determined that costs will not be awarded to Ms. Tatlock.
Members
- John Scott
- Raymon J. Kaduck
- J. Mark MacKeigan
Member(s)
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