Sizing up discrimination.

• Author: McKay-Panos, Linda
• Position: Human Rights Law

A recent decision of the Canadian Transportation Agency, Malcolm Johnson v Air Canada (Decision No. 2-AT-A-2012), brings to mind the issue of why some grounds are not covered by human rights legislation. Unlike the Canadian Charter of Rights and Freedoms, s. 15(1), which allows for discrimination suits based both on grounds listed (e.g., race, sex, age) and analogous grounds (e.g., sexual orientation), human rights statutes have closed grounds. If a ground is not listed in the legislation, it is not covered. So, the grounds of size and height are not currently covered in Canadian human rights legislation. Creative complainants have sometimes been successful in arguing for a broad definition of an existing ground. For example, in some jurisdictions, "gender" includes transgendered persons.

Mr. Johnson's human rights complaint was heard by the Canadian Transportation Agency ("Agency"), which has jurisdiction under Part V of the Canada Transportation Act, SC 1996, c 10 (CTA) to determine whether people with disabilities experience undue obstacles to their mobility when using the federal transportation network. He complained that Air Canada had charged extra fees for economy class seats that provided extra leg room. He argued that, due to his height, he could not sit in a regular seat without endangering his health due to restricted circulation in his legs from the cramped seating. Because size was not a recognized ground of discrimination, Mr. Johnson argued that he was a "person with a disability" under Part V of the CTA. (Part V of the CTA is considered to be human rights legislation.)

Subsection 172(1) of the CTA provides:

172. (1) The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities. In order to determine whether a person faces an undue obstacle to his or her mobility, the Agency must first establish that the complainant is a person with a disability. The Agency relies on the World Health Organization's International Classification of Functioning, Disability and Health (ICF) in order to classify a condition as a disability.

In Decision No. 2-AT-2102, the Agency notes that in order to be found to be a person with a disability under Part V of the CTA, the applicant must demonstrate that they:

1. have an impairment;

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