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News Release

Canadian Transportation Agency Dismisses Complaint Filed by Linda McKay-Panos Against Air Canada

OTTAWA - October 23, 2002 - The Canadian Transportation Agency today issued a decision dismissing an application by Linda McKay-Panos against Air Canada concerning the seating accommodation that was provided by Air Canada to her and Air Canada's policy of imposing higher fares to accommodate passengers who require additional seating space due to obesity.

In its majority Decision No. 567-AT-A-2002, two of the three Agency members found that although Ms. McKay-Panos may have health problems, impairments, limitations or restrictions caused by her obesity, Ms. McKay-Panos does not have a disability for the purposes of the accessibility provisions of Part V of the Canada Transportation Act (CTA). For the Agency to act under section 172 of the CTA and order corrective measures, the Agency must be satisfied that: 1) there is a person with a disability; 2) this person encountered an obstacle; and 3) that obstacle was undue.

Today's decision follows an earlier Decision No. 646-AT-A-2001 related to Ms. McKay-Panos's complaint concerning the jurisdictional question of whether obesity is a disability for the purposes of Part V of the CTA.

That decision was issued on December 12, 2001, subsequent to an oral hearing that took place in Calgary from September 24 to October 3, 2001. At that time, the Agency analyzed expert evidence and concluded that obesity, per se, is not a disability for the purposes of Part V of the CTA, but that there may be individuals, in the population of persons who are obese, who have a disability for the purposes of Part V of the CTA which can be attributed to their obesity. In that same decision, the Agency advised that it would proceed to examine applications, including that filed by Ms. McKay-Panos, on a case-by-case basis to decide whether a person who is obese is in fact a person with a disability for the purposes of Part V of the CTA.

The Calgary decision notes that concepts put forward at the hearing, such as "activity limitations" and "participation restrictions", are taken from the World Health Organization's model of disability, known as the International Classification of Functioning, Disability and Health (ICF). In today's decision, the Agency said: "It appears that Ms. McKay-Panos has assumed that meeting the standards of the ICF would equal being considered a person with a disability for the purposes of Part V of the CTA. However, the Agency never suggested that this would be the conclusion when it marked the ICF as a 'useful' tool in the Calgary decision. To allow the ICF model to be a determinant factor in deciding that an individual is a person with a disability would, in effect, create a category of persons, namely those who are obese, as persons with disabilities for the purposes of Part V of the CTA."

When considering the evidence submitted by Ms. McKay-Panos, the Agency noted that most of the evidence pertaining to the activity limitations related to the aircraft seat. The Agency found that Ms. McKay-Panos had not identified activity limitations relating to accessing the transportation system, since she can physically access airports, check her luggage, present herself to security points in airports and reach the boarding gate, like the majority of Canadians.

The Agency concluded that "it is not the obstacle that makes a person deaf, blind or paraplegic and the Agency does not agree that it should be different in the case of obesity. When considering the evidence submitted by Ms. McKay-Panos, the Agency notes that most of the evidence pertaining to activity limitation relates to the seat, which...is irrelevant to the question of whether she has a disability for the purposes of the CTA."

According to its decision, "The Agency finds that being unable to fit comfortably in the seat should not be enough evidence of the existence of a disability, as many people experience discomfort in the seat."

A third panel member dissented and concluded that Ms. McKay-Panos has a disability for purposes of Part V of the CTA. In his view, there were important findings made unanimously by the Agency panel in the Calgary decision that the majority in this decision chose to interpret and apply in an inconsistent manner. The dissent relies on the Supreme Court of Canada's direction to adopt a broad, liberal and purposive approach to the interpretation of human rights legislation such as Part V of the CTA; and the fact that the ICF was accepted by the Agency and supported by the parties as being an appropriate analytical framework to adopt and apply in determining the existence of disability. In the dissenting member's view, "The use of a model of disability analysis such as the ICF is, in my view, necessary to assess whether or not physical conditions which are not obvious disabilities, such as obesity, are disabilities for the purposes of Part V of the CTA."

With respect to the seat, the dissent states: "Because of the limited space on an aircraft, all of the activities and the well-being of the passenger are centred around the seat that the passenger is occupying....Unlike the majority, I consider that the seat is an integral part of the federal transportation network and accessing it is crucial for any person travelling by air."

Prior to this complaint, the Agency had never received a complaint concerning obesity. Since then, the Agency has received two other complaints, on which it has yet to rule, from passengers who are obese and who were dissatisfied with how the airline accommodated them.

The Canadian Transportation Agency is an independent, federal, quasi-judicial administrative tribunal which has jurisdiction over, among other things, accessibility of the federally regulated transportation network for persons with disabilities. The Agency's mission is to administer transportation legislation and Government of Canada policies to help achieve an efficient and accessible transportation system.

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For further information, please contact:

Normand Bergeron
Senior Communications Adviser
(819) 953-8926

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