On November 20, 2008 the Supreme Court of Canada rejected an
application by Air Canada, Air Canada Jazz and WestJet for leave to
appeal a Canadian Transportation Agency (the "CTA")
decision that orders certain Canadian carriers, namely Air Canada,
Air Canada Jazz and WestJet, to amend their current air fare
policies to implement a one-person, one-fare (1P1F) policy. The
application to the Supreme Court was brought after the Federal
Court of Appeal's May 2008 rejection of the airlines'
application for leave to appeal the CTA decision.
The high court's approval means that the airlines must move
quickly to amend their current fare policies in order to comply
with the 1P1F policy which is scheduled to come into effect in
January 10, 2009.
The policy enables persons with a disability to pay one fare
regardless of the number of seats that they require to accommodate
their disability. The policy applies to those persons who are
required, under the terms of the carriers' tariff to be
accompanied by an attendant and those persons with a disability,
the nature of which requires accommodation by additional seats.
While the policy will apply to persons disabled by obesity, the CTA
specifically stated that the policy does not apply to obese persons
except those who are disabled by obesity. However, it is not clear
how this distinction will be drawn by the carriers in practice.
Indeed, the CTA did not dictate how passengers will be screened for
the application of the policy and leaves it in the hands of the
carriers to establish proper screening mechanisms.
The decision applies to domestic air services and not to
international routes. Because the three affected airlines represent
over 90 percent of the domestic market, the CTA dismissed concerns
that the order would put them at a competitive disadvantage in the
domestic air services market. It should be emphasized that the
policy does not apply to foreign airlines operating in or to
Canada, however, some observers believe that the CTA may endeavour
to extend the application of its ruling in the future.
In dismissing the carriers' cost-based objections to the
policy, the CTA noted that it was not necessary for a carrier to
establish that the accommodation would threaten its survival or
alter its essential character but only that the impact on revenues
would have financial implications which would result in undue
hardship. The CTA estimated that 0.32 % of the carriers'
domestic passengers will require this form of accommodation
resulting in a 0.09% and 0.16% impact on passenger revenues of Air
Canada and West Jet respectively, which the CTA characterized as
"immaterial" and not an undue hardship. It has been
estimated that this equates to annual costs of C$7 million for Air
Canada and C$1.5 million for WestJet.
The CTA also dismissed the carriers' safety concerns and
determined that the establishment of screening mechanisms to assess
the eligibility under the 1P1F policy also did not result in undue
hardship to the carriers.
The policy does not specifically require the carriers to provide
the accommodation in all fare classes. It may therefore be open to
the affected airlines that offer premium class service to restrict
the application of the 1P1F policy to economy seats only.
To our knowledge, Canada is the first jurisdiction to implement
a 1P1F policy for airlines. While the European Union implemented a
regulation concerning the obstacles faced by disabled persons and
persons with reduced mobility when travelling by air, it did not
regulate fares. In the United States, if a carrier determines that
a passenger requires an attendant, contrary to the passenger's
self-assessment, then the carrier may not charge an additional
amount for the attendant's transportation. Additionally, while
some airlines voluntarily provide for various discounts or rebates
to particular classes of disabled persons, these are discretionary
policies, not prescribed by law.
The CTA decision continues to receive a surprising amount of
coverage in the Canadian and international press. There is
certainly divided opinion in the public debate about whether the
one-fare policy is fair. Nonetheless, now that all legal recourse
has been exhausted, IPIF seems certain to be implemented in Canada
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
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