A-222-81
Air Canada (Applicant)
v.
Nancy Bain and Canadian Human Rights Com
mission (Respondents)
Court of Appeal, Pratte and Ryan JJ. and Lalande
D.J.—Montreal, December 16, 1981; Ottawa,
January 4, 1982.
Judicial review — Human rights — Application to set aside
a finding of the Human Rights Tribunal that the applicant
had engaged in a discriminatory practice when it had refused
two unrelated adults the reduction in fare which was available
to husbands and wives travelling together — Reduced fare
also applied to unmarried persons who live together
Whether Air Canada was guilty of discrimination on the
ground of marital status — Whether the Tribunal had the
jurisdiction to investigate the complaint — Application
allowed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28 — Canadian Human Rights Act, S.C. 1976-77, c. 33, ss.
3, 4, 5, 41(2)(a) — Aeronautics Act, R.S.C. 1970, c. A-3, ss.
10, 14(m), 15 — National Transportation Act, R.S.C. 1970, c.
N-17, ss. 3, 21, 22(d) — Air Carrier Regulations, C.R.C. 1978,
Vol. 1, c. 3, ss. 112(1),(3),(4),(8),(10), 113(2)(a), 115.
Application to review and set aside a decision of the Human
Rights Tribunal. The Tribunal found that Air Canada had
engaged in a discriminatory practice when it had refused to two
unrelated adults the reduction in fare which was available to
husbands and wives travelling together. The Tribunal held that
it had jurisdiction to inquire into the complaint, found the
complaint substantiated, but refused to make any order against
Air Canada on the ground that it did not have the jurisdiction
to make such an order in the circumstances. The applicant
submits that the Tribunal had no jurisdiction to investigate the
complaint on the ground that a complaint of discrimination in
respect of tolls against an air carrier is allegedly within the
exclusive jurisdiction of the Canadian Transport Commission.
Held, the application is allowed. Nothing in the Aeronautics
Act or the Air Carrier Regulations completely takes away the
jurisdiction of the Canadian Human Rights Commission and
the Tribunal appointed by it to investigate complaints against
air carriers alleging discriminatory practices attributable to
discriminatory rates or tolls. However, even if the Tribunal had
jurisdiction, its decision should be set aside on the ground that
Air Canada, in refusing to the respondent Bain and her com
panion the benefit of the family fare, did not engage in a
discriminatory practice within the meaning of the Canadian
Human Rights Act. Miss Bain's complaint, which the Tribunal
found substantiated, was that Air Canada had, in the provision
of services available to the general public, been guilty of
discrimination on the ground of marital status. It cannot be
said that the Air Canada Family Fare Plan discriminated
between travellers on the basis of their marital status. The
reason why the respondent could not take advantage of the
family fare was that she was not related to her travel compan
ion so that the two of them could be said to form a family; that
reason was not that she was single. Married or not, a person
who travels with a friend is not entitled to the family fare. The
denial of an advantage to a single person cannot constitute
discrimination based on marital status if that same benefit is
equally denied in identical circumstances to married persons. It
can be argued that the family fare is a fare for families or
couples travelling together and that, as a consequence, the
marital status that is material to determine its discriminatory
character is the status of the couple that is travelling together
and not the status of each one of the two persons of whom that
couple is composed. The easy answer to that argument is that,
even if the discriminatory character of the Family Fare Plan
had to be assessed in that manner, the Plan could not be said to
discriminate on the basis of marital status. The Plan is avail
able not only to married persons travelling together; it is also
available to persons who, while unmarried, live together more
or less permanently and, for that reason, constitute a "de facto"
family.
APPLICATION for judicial review.
COUNSEL:
R. P. Saul for applicant.
R. G. Juriansz for respondent Canadian
Human Rights Commission.
SOLICITORS:
Air Canada Law Branch, Montreal, for
applicant.
Deputy Attorney General of Canada for
respondent Canadian Human Rights Com
mission.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an application under section
28 of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, to review and set aside a decision of
a Human Rights Tribunal appointed pursuant to
the provisions of the Canadian Human Rights Act,
S.C. 1976-77, c. 33. By that decision, the Tribunal
found that Air Canada, the applicant herein, had
engaged in a discriminatory practice when it had
refused to two unrelated adults travelling together
the reduction in fare which was available to hus
bands and wives travelling together.
On or about April 7, 1978, Miss Nancy Bain of
Vancouver, who was planning a trip to Eastern
Canada with a friend, phoned Air Canada and
inquired about the fares and any possible discounts
they could get. The travel agent informed her that
if she was married and travelling with her hus
band, she could benefit from a reduction in fare.
She said that she was not married and would be
travelling with a friend. She was then told that she
could nevertheless qualify for the reduced fare if
she and her travel companion were living together.
Apparently, Miss Bain did not pursue the conver
sation. A few days later, she filed a complaint
against Air Canada with the Canadian Human
Rights Commission alleging discrimination on the
ground of marital status. The Commission
appointed a Tribunal to inquire into that com
plaint. The Tribunal held a public hearing at
Vancouver on December 3, 1980. In the course of
that hearing, counsel for the Commission, who was
also representing Miss Bain, and counsel for Air
Canada filed an agreed statement of facts reading
as follows:
1. Air Canada is a company incorporated by Special Act of
Parliament for the principal purpose of carrying on business as
an international and domestic air carrier.
2. Air Canada has since October, 1953, offered a group fare
known as the "Family Fare".
3. In April, 1978 the Family Fare was offered to a group which
defined as follows:
(i) a husband and wife, or
(ii) a husband and wife and one or more accompanying
son(s) or daughter(s), 2 through 21 years of age, or
(iii) either a husband or wife and one or more accompanying
son(s) or daughter(s), 2 through 21 years of age.
4. In May, 1979 this group was amended by changing (iii)
above to read:
(iii) one parent and one or more accompanying son(s) or
daughter(s), 2 through 21 years of age.
5. The following definitions apply to this group:
(a) a husband or wife means of legal or common law status,
(b) a parent includes: step parents, adoptive parents and
legal guardians,
(c) son(s) or daughter(s) includes: stepchildren, legally
adopted children, and legally assigned wards.
6. To this group travelling together between points wholly
within Canada Air Canada will charge the following percent
age of the applicable one way adult fare.
Head of Family 100%
First accompanying member of family 83%
Additional accompanying member(s) 83%
Additional minor accompanying member(s) 66-2/3%
7. The following definitions apply to this fare:
(1) Head of Family: may mean husband, wife or parent.
(2) First accompanying member: shall be a spouse or if a
second spouse is not accompanying the group a son or
daughter, 2 through 21 years of age.
(3) Additional accompanying members: shall be a son or
daughter, 2 through 21 years of age, when there is a First
Accompanying Family member.
8. The Family Fare would not apply to two or more adult
persons travelling together who are not related in the manner
set forth above.
9. On April 21, 1978 Nancy Bain Filed a complaint with the
Canadian Human Rights Commission alleging that the Family
Fare is discriminatory.
10. It is agreed that the applicable section of the Human Rights
Act, if that Act applies to Air Canada, is Section 5(b).
Before the Tribunal, counsel for Air Canada
first argued that the Tribunal had no jurisdiction
to inquire into the complaint which was, in his
view, within the exclusive jurisdiction of the
Canadian Transport Commission. He also argued
that, upon the merits, Miss Bain's complaint had
to be dismissed. In its decision, the Tribunal
asserted that it had jurisdiction to inquire into the
complaint, found that complaint substantiated but
refused to make any order against Air Canada
under paragraph 41(2)(a) of the Canadian
Human Rights Act on the ground that it did not
have the jurisdiction to make such an order in the
circumstances. That is the decision against which
this section 28 application is directed.
Counsel for the applicant reiterated its submis
sion that the Tribunal had no jurisdiction in the
matter and should, for that reason, have refrained
from investigating Miss Bain's complaint. He
referred to various sections of the National Trans
portation Act, R.S.C. 1970, c. N-17 (sections 3,
21, 22(d)), the Aeronautics Act, R.S.C. 1970, c.
A-3 (sections 10, 14(m), 15) and the Air Carrier
Regulations, C.R.C. 1978, Vol. I, c. 3 (sections
112(1),(3),(4),(8),(10), 113, 115) which, in his
view, showed that a complaint of discrimination in
respect of tolls against an air carrier is within the
exclusive jurisdiction of the Commission. Counsel
added that the fact that the Tribunal clearly
lacked the power, under paragraph 41(2)(a), to
order Air Canada to change its rates was merely a
consequence of its lack of jurisdiction to investi
gate the complaint.
That argument did not convince me. If the
tariffs and tolls of air carriers were fixed by the
Canadian Transport Commission, I would be
inclined to agree that there would be little purpose
in investigating a complaint of discrimination
against an air carrier when neither the investigat
ing tribunal nor the air carrier could put an end to
that discrimination. However, this is not the case
here. Tariffs and tolls of air carriers are not fixed
by the Canadian Transport Commission. True, the
Commission has the power to regulate tolls and
tariffs in the manner prescribed by the Aeronau
tics Act and it has regulated that subject in the Air
Carrier Regulations. Under the Regulations, an
air carrier must file its tariffs with the Commission
and cannot charge tolls different from those men
tioned in tariffs filed with the Commission or tolls
that have been disallowed or suspended by the
Commission. Moreover, the Commission has the
power, under section 10 of the Aeronautics Act to
determine whether an air carrier has complied
with paragraph 113(2)(a) of the Air Carrier
Regulations which prescribes that:
113. ...
(2) No air carrier shall in respect of tolls
(a) make any unjust discrimination against any person ...
However, I see nothing in those provisions which
would completely take away the jurisdiction of the
Canadian Human Rights Commission and the Tri
bunal appointed by it to investigate complaints
against air carriers alleging discriminatory prac
tices attributable to discriminatory rates or tolls.
That is not to say, however, that the provisions of
the National Transportation Act and the
Aeronautics Act have no bearing on the jurisdic
tion of a Human Rights Tribunal. A tribunal
normally has the power to inquire into the com
plaint that is referred to it and make the orders
provided for in sections 41 and 42. However, a
tribunal could not make an order which would
otherwise be authorized by sections 41 and 42 if
that order would require the person against whom
it is made to act illegally. For that very reason, the
Tribunal whose decision is here under attack could
not order Air Canada to ignore the tariffs filed
with the Commission and carry passengers at rates
different from those mentioned in those tariffs.
However, I do not see why that Tribunal could not
order Air Canada to file a new tariff with the
Commission. The Tribunal, in my view, possessed
that power under paragraph 41(2)(a) and could
exercise it without contradicting in any way the
National Transportation Act, the Aeronautics Act
and the Air Carrier Regulations.
However, I do not consider it necessary to
express any definite opinion on that question of
jurisdiction. Indeed, even if the Tribunal had juris
diction, I am of opinion that its decision should
nevertheless be set aside on the ground that Air
Canada, in refusing to Miss Bain and her compan
ion the benefit of the family fare, did not engage in
a discriminatory practice within the meaning of
the Canadian Human Rights Act.
Sections 3, 4 and 5 of that Act read as follows:
3. For all purposes of this Act, race, national or ethnic origin,
colour, religion, age, sex, marital status, conviction for which a
pardon has been granted and, in matters related to employ
ment, physical handicap, are prohibited grounds of discrimina
tion.
4. A discriminatory practice, as described in sections 5 to 13,
may be the subject of a complaint under Part III and anyone
found to be engaging or to have engaged in a discriminatory
practice may be made subject to an order as provided in
sections 41 and 42.
5. It is a discriminatory practice in the provision of goods,
services, facilities or accommodation customarily available to
the general public
(a) to deny, or to deny access to, any such good, service,
facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
Miss Bain's complaint, which the Tribunal
found substantiated, was that Air Canada had, in
the provision of services available to the general
public, been guilty of discrimination on the ground
of marital status. In my view, it cannot be said, in
the circumstances, that Miss Bain was the victim
of discrimination by reason of her marital status
or, to put it more generally, that the Air Canada
Family Fare Plan discriminated between travellers
on the basis of their marital status. Miss Bain was
single and intended to travel with a friend. The
reason why she could not take advantage of the
family fare was that she was not related to her
travel companion so that the two of them could be
said to form a family; that reason was not that she
was single. Married or not, a person who travels
with a friend is not entitled to the family fare. The
denial of an advantage to a single person cannot
constitute discrimination based on marital status if
that same benefit is equally denied in identical
circumstances to married persons.
It can be argued, however, that the family fare
here in question is a fare for families or couples
travelling together and that, as a consequence, the
marital status that is material to determine its
discriminatory character is the status of the couple
that is travelling together and not the status of
each one of the two persons of whom that couple is
composed. The easy answer to that argument is
that, even if the discriminatory character of the
Family Fare Plan had to be assessed in that
manner, the Plan could not be said to discriminate
on the basis of marital status. The Plan is not only
available to married persons travelling together; it
is also available to persons who, while unmarried,
live together more or less permanently and, for
that reason, constitute a "de facto" family.
For these reasons, I would allow the application,
set aside the decision of the Tribunal and refer the
matter back for disposition on the basis that the
provisions of the Air Canada Family Fare Plan are
not discriminatory on the basis of marital status.
* * *
RYAN J.: I concur.
* * *
LALANDE D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.