Court Ends WestJet Challenge

Dale Smith, www.blacklocks.ca
The Supreme Court will not hear a challenge of federal regulations that require disabled air passengers travelling with attendants to pay two fares. A Vancouver woman appealed a WestJet order of one fare per seat regardless of medical necessity.

“It’s disappointing for advocates but I understand why regulators saw it this way,” said Dr. Ravi Malhotra, professor of disability law at the University of Ottawa; “This was an attempt to change a whole ruling.”

Sarah Cheung booked a 2014 WestJet flight from Vancouver to Honolulu but was denied use of her orthotic device – the airline later reversed its policy – and was denied free seating for her attendant. Cheung was diagnosed with spinal muscular atrophy as an infant and requires an aide to help her manage her wheelchair, she told regulators.

In a complaint to the Canadian Transportation Agency, Cheung explained: “Due to my physical limitations and as reiterated in my physician’s letter, I require an attendant.” The Agency dismissed free seating for Cheung’s helper, ruling in 2015: “The issue here is whether the principle of one-person, one-fare should be extended to WestJet’s transborder and international air services.”

“In the absence of a proceeding that would provide the Agency with the breadth of perspective required to properly assess and evaluate this significant remedy, the Agency cannot discharge its responsibilities in a fair and informed way,” regulators wrote in dismissing Cheung’s complaint. “The Agency is limited by the legislative mandate provided to it in the Canada Transportation Act which does not, at this time, include its own motion powers to conduct broader, more systemic investigations.”

Supreme Court justices declined to hear Cheung’s appeal of the ruling. “Advocates need to work to get the right evidence before tribunals,” said Prof. Malhotra; “I think regulators are worried about implications for the market. Unfortunately, a lot of great cases are lost when you don’t have the right evidence before the tribunal.”

In a separate 2015 case, an Ontario advocate for the blind complained to the Transportation Agency that she had no assistance with her wheelchair or luggage when boarding a Caribbean Airlines flight at Toronto’s Pearson International Airport. The airline and Greater Toronto Airport Authority blamed each other for the lapse.

Donna Jodhan, the passenger who filed the complaint, earlier won a 2012 Court of Appeal judgment requiring that the Government of Canada make its websites accessible to the vision impaired. Federal attorneys had argued information was available to the blind by telephone.