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OTHER HUMAN RIGHTS DECISIONSObesity as a Disability
The issue of whether obesity constitutes a disability within the meaning of certain provisions of the Canada Transportation Act (CTA)331 was raised before the Canadian Transportation Agency. The issue arose from a complaint made against Air Canada regarding both specific seating arrangements on a Calgary to Ottawa flight, and the airline's general policy of charging a higher fare to accommodate passengers who required additional seating space due to their obesity.332
The Agency's mandate and authority regarding disabilities generally is found in Part V of the CTA, which provides for the issuance of regulations designed to eliminate undue obstacles to the mobility of persons with disabilities in the transportation network under federal control, and establishes a complaint adjudication authority. Even in the absence of specific regulations, the Agency is empowered to adjudicate matters raised in applications relevant to undue obstacles to the mobility of persons with disabilities. It was under this authority that the present application was brought. However, whether obesity constituted a disability under Part V was considered a preliminary jurisdictional issue to be heard at a special hearing before which a number of expert witnesses testified.
In its decision following the special hearing, the Agency recognized that Part V of the CTA is by nature human rights legislation that should be given a broad, liberal and purposive interpretation. It also took note that section 171 of the CTA specifically requires the Agency and the Canadian Human Rights Commission to "...coordinate their activities in relation to the transportation of persons with disabilities in order to foster complementary policies and practices and to avoid jurisdictional conflicts."333 It was with these principles in mind that the Agency considered the evidence presented, and the arguments made, regarding the issue of obesity.
Expert testimony regarding the characterization of obesity as a disease diverged. However, none of the parties before the Agency took the view that the causes of obesity, medical or otherwise, determined the issue of whether it constituted a disability. In this regard, the Agency found that a health condition can be considered to be a disability for the purposes of accessibility under Part V without it being a disease. It cited as an example the hypothetical case of accidental quadriplegia. By the same token, evidence that tends to establish a relationship between obesity and other health problems and co-morbidities (which the Agency found to be weak) does not dispose of the question of whether obesity is a disability. More relevant and appropriate standards, concluded the Agency, can be found in the notions of impairment, activity limitations and/or participation restrictions, all of which are set out in the World Health Organization's International Classification of Functioning, Disability and Health (ICF).
With respect to impairment generally, the Agency noted the ICF model views it as a problem in body function or structure, a decrement in power or strength of a function or a deviation in functioning. The ICF model views obesity as a body function impairment based on an individual's BMI (Body Mass Index). The Agency observed, however, that based on this model fully 60% of the North American population would be overweight and technically disabled. It concluded therefore that impairment alone (at least in the present case) was insufficient to determine that a disability existed.
Turning to the notion of activity limitation, the Agency noted that the ICF model considers a limitation to be an incapacity, inability or other inherent difficulty in executing a task or function. Expert testimony suggested that any conclusion regarding a limitation must be based on the facts of a given case. In other words, such a determination cannot be made a priori or by definition, as is the case with impairment. The Agency found that while some obese persons experience certain activity limitations, a considerable percentage of them do not. If further emphasized that the medical evidence showed that there is no specific BMI beyond which activity limitations will inevitably be present. The Agency took a similar view with respect to participation restrictions, pointing to the view of experts that the assessment of such restrictions must be done on a case-by-case basis. While the Agency did not disagree with testimony to the effect that obese persons face stigma and denial of opportunity generally and that social attitudes towards them are often discriminatory, it found that no evidence was presented to support the conclusion that obese persons necessarily experience participation restrictions in the context of the federal transportation network. It reached the same conclusion regarding activity limitations.
In light of its findings regarding the facts-based nature of activity limitations and participation restrictions, the Agency ruled that obesity perse is not a disability within the meaning of Part V of the CTA. However, it supplemented its ruling with the observation that "the evidence suggests 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."334 Accordingly, the Agency indicated that it would continue to examine applications raising such issues on a case-by-case basis. A decision regarding the merits of the specific application against Air Canada, which had given rise to the special hearing, has yet to be issued.
