R.C. v. District School Board of Niagara

ate: 2013-08-13
Docket: 2010-04640-I; 2012-12245-I
URL: http://canlii.ca/t/g034z
Citation: R.C. v. District School Board of Niagara, 2013 HRTO 1382 (CanLII), <http://canlii.ca/t/g034z> retrieved on 2013-08-20
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HUMAN RIGHTS TRIBUNAL OF ONTARIO



______________________________________________________________________

B E T W E E N:

R.C. and S.C. by her next friend R.C.

Applicants

-and-



District School Board of Niagara

Respondent

-and-



Ontario Human Rights Commission and Canadian Civil Liberties Association

Intervenors



______________________________________________________________________



DECISION

______________________________________________________________________



Adjudicator: David A. Wright



Date: August 13, 2013



File Numbers: 2010-04640-I; 2012-12245-I



Citation: 2013 HRTO 1382



Indexed as: R.C. v. District School Board of Niagara

______________________________________________________________________





APPEARANCES







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R.C. and S.C. by her next friend R.C., Applicants

) )



Self-represented




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District School Board of Niagara, Respondent

) ) )



Derek Bell and Ranjan Agarwal, Counsel and Jessica Mathewson, Student-at-Law




)

















)






Ontario Human Rights Commission, Intervenor

) )



Cathy Pike and Sunil Gurmukh, Counsel




)

















)






Canadian Civil Liberties Association, Intervenor

) )



Stuart Svonkin and Sarah Whitmore, Counsel




)




































INTRODUCTION

[1] This Application relates to events that occurred when S.C. was in grade five at a school in the respondent District School Board of Niagara (the “Board”). Under Board policy at the time, the Gideons International In Canada (the “Gideons”) were permitted to distribute their version of the New Testament to grade five students in a Board school, if the principal in consultation with the school council agreed. The Gideons were the only religious group permitted to do so. Parental consent forms were distributed to the class, and the distribution to students whose parents had agreed took place outside class time. When S. was in grade five, she brought home a consent form, although the distribution to her class never in fact happened. The School Council subsequently decided not to approve the distribution.

[2] The C. family identifies as atheist. S.C. and her father, R.C., each of whom has made an Application, allege that the Board policy discriminated against them with respect to services because of creed, contrary to s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). After the events in question, the Board changed its policy to allow other religious organizations to also distribute religious texts in the schools in certain circumstances, although no materials other than the Gideon Bible have been distributed. The applicants assert that the policy change has not addressed the discrimination and that the new policy is also discriminatory. They seek no financial compensation, but ask that the Tribunal order that the policy be rescinded and that no religious literature of any kind be distributed in the schools.

[3] These facts and the parties’ thoughtful arguments on all sides raise various significant issues, including whether atheism falls within the meaning of “creed” in the Code and whether optional creed-related activities may take place in a public school outside school hours. For the reasons that follow, I find that discrimination because a person is atheist falls within the definition of creed, that the Board discriminated against the applicants through its policy permitting only the Gideons to distribute religious literature in schools, and that the new policy does not comply with the Code. The Code does not require, however, that the public schools be free of optional religious activities outside classroom hours, so long as all creeds are treated with substantive equality. I leave to the elected Board trustees in Niagara to decide whether to continue to permit distribution of literature from creeds in their schools and if so, to design a new policy that complies with the Code. I remain seized to deal with any disputes that may arise over the next year about whether any new policy complies with the Code.

FACTUAL BACKGROUND

[4] The procedural history of this matter, including the granting of intervenor status to the Ontario Human Rights Commission (“Commission”) and the Canadian Civil Liberties Association (“CCLA”), is set out in two previous Interim Decisions: 2012 HRTO 583 (CanLII), 2012 HRTO 583 and 2012 HRTO 1591 (CanLII), 2012 HRTO 1591. The hearing was held on February 5 and 6, 2013.

[5] At the hearing, R.C. testified on behalf of the applicants and Warren Hoshizaki, Director of Education, testified on behalf of the respondent. The parties do not disagree about the relevant facts.

R.C. and S.C.

[6] The C. family has three children; S. is the youngest. She is now in grade eight. R. describes himself as an atheist or non-theist. He rejects the idea that there is a deity of any kind and believes that the suggestion there is one is false. When asked whether his daughter is an atheist, R. noted that there is some debate about whether children are capable of having religious views, and testified that he is hesitant to label a child by her parents’ beliefs. However, R. says that anyone discussing the issue with her would conclude that S. is a non-believer.

Board Policies

[7] When the Board was formed in 1998, it adopted the approach to religious publications of one of its predecessor boards, the Lincoln County Board of Education, which allowed only the Gideons to distribute religious materials in the schools. Board Policy G-22, Religious Publications, dated October 1998, read as follows:

It is the policy of the District School Board of Niagara to accept the offer of the Gideon’s [sic] International in Canada to present New Testaments to all Grade 5 pupils who wish to have them, in schools where the Principal, in consultation with the School Council, agrees.

[8] Administrative Procedure 1-12, The Distribution of Religious Publications/ Presentations as Authorized by Board Policy, dated November 1998, reads as follows:

1. No student should receive a religious publication without a signed parent permission slip.

2. Any religious presentation should be held outside of instructional time and preferably after school hours (this may not be practicable in bused schools).

3. Attendance by students at the religious presentations must be optional. It is advisable for elementary school Principals to seek parental permission in these circumstances. Secondary Principals are to use their discretion.

4. A staff member, preferably the Principal or Vice-Principal, should be in attendance when the religious publications are being presented.

5. NO religious instruction or indoctrination is to be allowed during the presentation.

The “New Testament Answer Book”

[9] The Gideon Bibles are small pocket-size books, covered with portraits of diverse young people, with the title “The New Testament Answer Book” on the front and “the little red answer book” on the back. Before the Biblical text, which includes the New Testament, Psalms and Proverbs, there are various preliminary sections. These include indexes of specific passages of the Bible including those that assist with “life’s big questions”, “where to find help” for specific types of situations, “Christian Virtues”, and various Bible stories. The Ten Commandments are included, as is the text of John 3:16 in multiple languages.

[10] The first two pages are called “Directions for Your Journey”. This section begins and ends as follows:

No matter where you are on your personal journey, we’re glad you’re holding this book. It will help you navigate the twists and turns of your life and point you to the only One who can truly help you find your way Home.

…

Hang onto this book and draw from it regularly. The key message you’ll discover is that God loves you. No matter what you’ve done or who you’ve become today, He loves you and forgives you. All He’s asking is that you surrender your old life to Him and begin a brand new one.

Are you ready to start a new journey in your life?

[11] The section called “Reading Daily” states that the “Book is given to you with only one request – that you read it every day”. It tells the reader:

Read prayerfully. Pray before you read and afterwards. Ask God to open your mind to understand His Word. Ask Him to reveal to you Jesus Christ as Saviour and Lord.

The November 2009 Distribution and the First Request to Distribute “Just Pretend”

[12] In 2004, when his oldest child was in grade 5, R.C. decided to attend the Gideons’ presentation to see how it unfolded. In the library after class, the Gideons’ representative made a short verbal presentation that included encouraging the children to read the Bible each day. There was a new principal when the family’s middle child was in grade five, and the issue did not arise because that principal did not allow the distribution.

[13] In November of 2009, after another new principal took over, the following note was sent home with grade five students, including S.C.:

Dear Parents/Guardian of Grade 5 Pupil:

Each year around this time, the Gideons International offer a copy of the New Testament (part of the Bible) to all students in Grade 5. This presentation will be made in this school in the near future. It will be done in compliance with the policies of the District School Board of Niagara. The book is free of charge, participation is voluntary, and the presentation is made without religious instruction.

Board policy requires that in order for a child to receive the book, signed permission must be provided by the parent or guardian. If you permit your child to receive it, please sign the attached permission form and return it to the school before Tuesday November, 24, 2009. [sic]

[14] The applicant contacted the principal and proposed that he be permitted to distribute a book called “Just Pretend: A Freethought Book for Children”, which promotes atheism. It is published by the “Freedom From Religion Foundation”. The book compares God to Santa Claus as something that is “just pretend”. It portrays God as a myth that some people believe in but that is demonstrably not true. It suggests that “the Bible, the Koran and the Vedas are filled with mistakes and wild stories”. It concludes as follows:

No one can tell you what to think.
Not your teachers.
Not your parents.
Not your minister, priest or rabbi.
Not your friends or relatives.
Not this book.

You are the boss of your own mind.
If you have used your mind to find out what is true, then you should be proud.
Your thoughts are free.

If you are an atheist, then you know that God Is Just Pretend.

[15] Although the book reflects his beliefs, R.C.’s purpose in making this request was not to promote atheism among the school’s grade five children. He believed that other parents might be upset about being asked to consent to their children receiving such materials in the same way he felt offended in being asked to consent to his children receiving the Gideons’ materials, and it would encourage a change in policy to eliminate the distribution of religious texts. As he stated in a subsequent letter to the school council:

We believe that if non-theistic materials were distributed in an Ontario Public School that fact would set off an enormous controversy. People would insist that the Public School system is not the place for people with a religious agenda; and that is exactly our point! Gideon’s [sic] are a group with a religious agenda, and the DSBN, and this Principal, are actively acting to allow them access to the schools to forward that agenda.

[16] At the meeting of the School Council (made up of parents) on November 30, 2009, it decided that neither the Gideon Bible nor Just Pretend should be distributed in the school. On December 3, 2009, the principal wrote to the parents who had consented advising them that the distribution would not be taking place.

Changes to the Policy

[17] R.C. continued advocating for changes to the Board’s practices, and a lawyer sent a letter on his behalf in December 2009 alleging that Policy G-22 violated the Code and asking that it be rescinded. This Application was filed in January 2010 and delivered to the respondent in March 2010.

[18] The Board’s Policy Advisory Committee considered the issue and decided between three options: (i) rescinding Policy G-22; (ii) expanding it to make it more inclusive; or (iii) revising it to reflect that there be no distribution of religious publications during instructional time or before or after school hours. A change intended to implement the second option was approved by the Policy Advisory Committee and the Board in February 2010. Although it was reviewed, there were no changes to Administrative Procedure 1-12.

[19] Policy G-22 now reads as follows:

Any requests for the distribution of religious publications in schools must be approved by the Director or designate and subsequently by the Principal, in consultation with the School Council and with pre-approved parental consent.



Application of the Policy

[20] R.C. made a second request to distribute “Just Pretend” in early 2010 after Policy G-22 was amended. In a letter signed by Mr. Hoshizaki, the Board refused the request for two reasons. First, the Board took the position that pursuant to Canadian Civil Liberties Assn. v. Ontario reflex, (1990), 71 O.R. (2d) 341 (“CCLA”) school boards are “entitled to sponsor the study of all religions without imposing the view of any particular religion”. It stated that atheism is not a religion pursuant to the criteria set out in Syndicat Northwest v. Amselem,2004 SCC 47 (CanLII), [2004] 2 S.C.R. 551. Second, the letter stated that “Just Pretend” is a “secondary publication as opposed to a globally recognized sacred text or authoritative source of any religion (or even any belief)” and not listed in the Multifaith Information Manual (“MIM”) created by the Ontario Multifaith Council. The letter stated that decisions about which materials to approve are based on this manual, which “lists the recognized sacred texts of which there is global association and recognition”.

[21] After receiving this letter, R.C. contacted representatives of various organizations listed in the MIM and encouraged them to submit a request to the Board to distribute religious materials. The only request made in response was submitted on May 31, 2010 to the Board’s general inquiries e-mail by the Secretary of the Canadian Council of Imams (“Council of Imams”) and reads in relevant part as follows:

We at the Canadian Council of Imams extend gratitude for opening your schools to receive and distribute MultiFaith literature.
How can we send some books and brochures on the Islamic Faith?

[22] The response was sent by e-mail on July 27, 2010 by the Board’s Consultant: Cultural and Linguistic Diversity and reads as follows:

Thank you for your request surrounding distribution of religious materials. Here is a link to the DSBN Policy: [internet link omitted]

Also, I am pleased to let you know that our school libraries and classrooms have a very wide and inclusive collection of books, including books about Ramadan and other aspects of Islamic culture, as well as other faith groups. We also recognize and value multifaith celebrations in schools.

If you would like further information, please feel free to contact me.

[23] In late 2010, the applicant asked what groups had been approved to distribute religious material in public schools. The Board’s in-house lawyer replied in December 2010, advising that the Board had received one request to distribute Gideon Bibles, which was approved because the text was listed in the MIM. The letter stated that this was the only request the Board had received other than his.

[24] The MIM is produced by the Ontario Multifaith Council on Spiritual and Religious Care, which works in support of chaplains and spiritual caregivers. It appears to be meant primarily as a resource for individuals providing spiritual care to individuals of multiple faiths. It has chapters on Bahá’í, Buddhism, Christianity and 23 Christian denominations, Hare Krishna, Hinduism, Islam, Jainism, Judaism, Native Spiritual Traditions, Rastafari, Sikhism, Wiccan Church of Canada, and Zoroastrianism. For each, the MIM provides information about religious practices, including the titles of any scriptures and sacred writings required. The chapters are typically prepared by adherents of that faith.

[25] In the December 2010 correspondence with R.C., the Board suggested that the MIM allows it to objectively determine whether a text falls within its policy “by reference to an accepted list of religious texts”. Mr. Hoshizaki’s testimony made clear, however, that this is not the case. First, the MIM does not include every creed. Falun Gong (Huang v. 1233065 Ontario, 2011 HRTO 825 (CanLII), 2011 HRTO 825) has been found to be a creed under the Code, but is not referred to in the MIM. Mr. Hoshizaki stated that if someone sought to distribute Falun Gong literature, he or his staff would have to do further research. Second, the MIM does not always clearly set out what are sacred as opposed to secondary texts. For example, the first chapter, on Bahá’í, lists as scriptures “Works by the Báb (forerunner), Baháu’liáh, and His son Abdu’l-Baháí. The works of Shoghi Effendi (grandson of Abdu’l-Bahá’) are considered authoritative, but not sacred”. When asked in cross-examination by Commission counsel what he would do if someone wanted to distribute a work of Shoghi Effendi, Mr. Hoshizaki stated that Board staff would have to do research to assist in making a decision.

[26] The absence of clear guidance in the MIM about a proposed text is not limited to Bahá’í. The section on the Catholic Church states as follows under the heading, “Scriptures and Religious Books”:

• The authorized translations of the bible used by Roman Catholics include the New Jerusalem, New American and New Revised Standard Version (Catholic edition).

• Other religious books include lectionaries and sacramentaries used in the celebration of Mass (also called the Eucharist), Sunday and daily missals for general use, the Roman Ritual (now ordinarily divided into separate liturgical books for the celebration of each sacrament) and hymnals (e.g. Catholic Book of Worship, Glory and Praise).

Books and booklets of traditional and modern prayers for private use are available in a variety of forms.

It is not clear whether a book of modern Catholic prayers, for example, would be considered a globally recognized sacred text or authoritative source, or instead secondary materials.

ANALYSIS

Does Atheism Fall Under the Ground of “Creed” In the Code?

[27] Section 1 of the Code reads as follows:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

“Creed” is translated in the French version of s. 1 as “la croyance”.

[28] The respondent submits that atheism is a not a creed, and that the Application should be dismissed on the basis that the Code does not protect against discrimination because a person is atheist. The applicant and the CCLA take the position that atheism is a creed. The Commission takes the position that the issue need not be decided, because even if atheism is not a creed, discrimination against a person who does not have a creed is included in the protection against discrimination because of creed. The Commission notes that it is revising its policy on creed and does not ask that the Tribunal adopt the definition of creed in its 1996 Policy on creed and the accommodation of religious observances.

[29] As I wrote in Landau v. Ontario (Finance), 2011 HRTO 1521 (CanLII), 2011 HRTO 1521 at para. 12:

While it may be helpful to refer to particular rules of statutory interpretation, the fundamental principle in interpreting any statute, including the Code, is to take a purposive and contextual approach. Statutes are interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Rizzo v. Rizzo Shoes Ltd. (Re),1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21; Ontario Human Rights Commission v. Christian Horizons,2010 ONSC 2105 (CanLII), 2010 ONSC 2105 at para. 42. In applying this principle in the context of the Code, rights are to be interpreted broadly and exceptions narrowly.

[30] In my view, a purposive interpretation of the prohibition on discrimination because of “creed” in the Code includes a prohibition on discrimination because a person is atheist. To accept the respondent’s submissions would be to find that the Code only protects core beliefs about oneself, humankind and nature linked to one’s self-definition when they accept the existence of a deity or have particular practices. The purpose of prohibiting discrimination because of creed includes ensuring that individuals do not experience discrimination in employment, services and the other social areas in the Code because one rejects one, many or all religions’ beliefs and practices or believes there is no deity.

[31] It is well-established that creed in the Code encompasses, at least, discrimination because of religion: Loomba v. Home Depot Canada, 2010 HRTO 1434 (CanLII), 2010 HRTO 1434 at para. 96; Ataellahi v. Lambton County (EMS), 2011 HRTO 1758 (CanLII), 2011 HRTO 1758 at paras. 6-8. Protection against discrimination because of religion, in my view, must include protection of the applicants’ belief that there is no deity, a profoundly personal belief about the lack of existence of a divine or higher order of being that governs their perception of themselves, humankind and the world. The applicants’ beliefs relate to religion, and engage the purpose of ensuring that people are treated equally regardless of their views and practices on religious matters. It is not necessary in this case to decide whether creed may in some cases encompass core beliefs about fundamental matters other than religion.

[32] In defining what is included within the ground of creed, the Tribunal has often relied on freedom of religion jurisprudence under s. 2(a) of the Canadian Charter of Rights and Freedoms and to Charter values. Indeed, the Tribunal is required to consider Charter values when interpreting statutes, particularly those that are ambiguous. See Doré v. Barreau du Québec, 2012 SCC 12 (CanLII), 2012 SCC 12 at para. 35; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42 (CanLII), 2013 SCC 42; Taylor-Baptiste v. Ontario Public Service Employees Union, 2013 HRTO 180 (CanLII), 2013 HRTO 180 at paras. 32-36. Because freedom of religion under s. 2(a) of the Charter encompasses both the freedom to practice religion and a requirement of non-discrimination as between religions, this jurisprudence can be particularly useful in dealing with creed claims: Dallaire v. Les Chevaliers de Colomb, 2011 HRTO 639 (CanLII), 2011 HRTO 639 and Huang, above at para. 29.

[33] In R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295, the seminal case on freedom of religion, the Supreme Court held that protection of freedom of religion and conscience under the Charter includes both belief and non-belief. At paras. 94 and 123, Dickson C.J. wrote:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that…

The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injury his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously-held beliefs and manifestations and are therefore protected by the Charter. Equally protected, and for the same reasons, are expressions and manifestations of religious non-belief and refusals to participate in religious practice.

[emphasis added]

[34] In R. v. Edwards Books and Art, 1986 CanLII 12 (SCC), [1986] 2 SCR 713, the Court stated as follows at para. 97:

The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs in turn govern one’s conduct and practices.

[emphasis added]

[35] In S.L. v. Commission scolaire des Chênes, 2012 SCC 7 (CanLII), 2012 SCC 7, the Court held that the protection against discrimination because of religion within s. 2(a) includes protection of the absence of religious beliefs. The Court held as follows, at para. 32:

Therefore, following a realistic and non-absolutist approach, state neutrality is assured when the state neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected.

[emphasis added]

[36] The respondent relies on the following passage from Amselem, above, which it says precludes the finding that atheism falls under the protection against discrimination because of creed:

In order to define religious freedom, we must first ask ourselves what we mean by “religion”. While it is perhaps not possible to define religion precisely, some outer definition is useful since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion. Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow the individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

[37] This passage does not suggest that the Court now requires, contrary to its clear statement in Big M, that a belief system accept the existence of a deity and/or have an organized set of practices to fall within the protection of freedom of religion or against discrimination because of creed. The belief that there is no deity, superhuman or controlling power is equally connected to “spiritual faith, self-definition and spiritual fulfilment” as a belief that one exists. The Court in Amselem notes that religion tends to involve a belief in such a power, and typically involves a particular and comprehensive system and faith and worship, but it does not state that these are requirements for a set of beliefs about the nature of the world and the divine to fall within freedom of religion. Amselem also relies upon the above quotation from Edwards Books, and in no way repudiates the statement in Big M that non-belief falls within freedom of religion. Finally, the more recent decision in S.L.makes clear that non-belief is protected under freedom of religion.

[38] The interpretation proposed by the respondent would lead to results that are clearly inconsistent with the purpose of protecting against creed-based discrimination. It would allow discrimination against persons because they do not accept a particular religion, so long as they are not adherents of another set of beliefs and practices. The Tribunal recently recognized, in Freitag v. Penetanguishene (Town),2013 HRTO 893 (CanLII), 2013 HRTO 893 at paras. 19-23, that the protection against creed-based discrimination can be engaged by the fact that a person does not share the religious beliefs of others, and the respondent’s position is inconsistent with that analysis.

[39] The difficulty with the respondent’s position is illustrated by the following example of its consequences. If an employer decided to dismiss all employees who did not share the religious faith of the president of the company, those who belonged to other religions would have a claim, but not those who are atheist, agnostic or who do not have a view on religion. It would allow the province, a service provider or an employer to enforce particular views and practices on those with atheist views or no clear views about such matters, but not on those who actively believe in a different religion. This is not a purposive interpretation of the Code.

[40] I also rely on the fact that international human rights law includes protections for atheism as part of freedom of religion. As the Supreme Court held in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para. 70, “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review”. Article 18(1) of the International Covenant on Civil and Political Rights, which has been ratified by Canada, reads as follows:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

[41] Although the wording includes “religion or belief”, Article 18 in my view has the same purposes as the protection of creed in the Code. Article 2 of the 1993 General Comment on this article by The Office of the High Commissioner for Human Rights, General Comment No. 22, UN Doc. CCPC/C/21/Rev.1/Add/4L makes clear that atheistic beliefs and non-belief are protected in this fundamental international human rights treaty:

Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms “belief” and “religion” are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.

[42] Finally, I rely upon the French translation of “creed” in the Code, croyance. This reflects a broader understanding of creed that reflects beliefs rather than only identification with a formal set of religious views.

[43] For all these reasons, I conclude that a liberal and purposive interpretation of the prohibition on discrimination because of “creed” includes atheism and that discrimination because a person is atheist is prohibited by the Code.

Did the Respondent Discriminate Against the Applicants when its Policy Permitted Only the Gideons to Distribute Religious Literature in Schools?

[44] Allowing only the Gideons, a Christian group, to distribute religious literature in the Board’s schools under the version of the policy in place when S.C. was in grade five discriminated against the applicants. S.C. was a student and R.C. was a parent in a school board where, pursuant to policy, representatives of one creed and no others, including atheists, were permitted to distribute religious texts to students in the schools. They were asked to consent to S.C. receiving the text of one creed with which she did not identify and there was no opportunity for her to receive literature from any other creed that wished to provide it.

[45] There was considerable argument about the appropriate legal analysis to determine whether there is substantive discrimination following the Supreme Court’s decision in Quebec (Attorney General) v. A., 2013 SCC 5 (CanLII), 2013 SCC 5. There is no need for an extensive discussion of the test in this Decision. I assume, for the purposes of this case, that the Charter jurisprudence on the approach to discrimination applies in these circumstances, as argued by the respondent. The majority of the Supreme Court’s analysis in A. of the approach to discrimination is set out in the reasons of Abella J., since Deschamps J., speaking on behalf of three judges, expressed her agreement with that analysis (see para. 385) as did McLachlin C.J. (see para. 418), although the Chief Justice added some additional comments.

[46] The analysis involves one key question: whether there has been a violation of the norm of substantive equality (para. 325). This involves looking at whether the conduct is discriminatory, focusing on the impact on those affected and does not include a consideration of the motives for, reasonableness of, or attitude behind the distinction (paras. 328-330, 335). There is no particular formula; it is a flexible and contextual inquiry that, depending on the case, may involve consideration of factors such as historical disadvantage, correspondence with actual characteristics, impact on other groups and the nature of the interest affected (paras. 418, 531).

[47] In this case, there is no question that the first version of the policy, permitting students to receive literature in the public schools from one creed, but not others, violated the norm of substantive equality. It promoted prejudice and stereotyping by suggesting that non-Christians, including atheists, are less worthy and valuable than others of having their creed included in the public school system. It perpetuated historical disadvantage of non-Christians, including atheists, in public institutions.

Historical Disadvantage

[48] The historical disadvantage of non-Christians is shown in reported decisions. For example, prior to litigation under the Charter, Canadian law prohibited sale of goods on Sunday for Christian religious purposes (Big M, above). Disadvantage of non-Christians was also present in the Ontario public school system, which included Christian prayer as part of opening or closing of the school day (Zylberberg v. Sudbury Board of Education (Director) 1988 CanLII 189 (ON CA), (1988), 65 OR (2d) 641) and Christian religious indoctrination in its curriculum (Canadian Civil Liberties Assn. v. Ontario reflex, (1990), 71 OR (2d) 341 (“CCLA”)).

Interest Affected

[49] The interest affected, the education of children, is particularly important and the impact on others is significant when one creed only is given priority and public recognition in a school setting. As set out in Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 SCR 825 at para. 42:

A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium. The school is an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate.

[50] I also take into account that the selective granting of permission to one creed to distribute religious materials was to grade five students. Children may be particularly vulnerable at such an age to the message sent when their school formalizes the delivery of religious views by one faith that does not include the creed with which they or their family identify. In Baker, above, the Supreme Court emphasized the importance of giving particular consideration to children’s interests, needs and rights (para. 73).

[51] Important interests of both R.C. and S.C. were affected. S.C. experienced discrimination with respect to educational services provided to her. R.C. also experienced discrimination with regard to a significant interest. As recognized by the Supreme Court of Canada, the interest in raising a child according to one’s own religious beliefs is constitutionally protected. See B.(R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 SCR 315. When a public school is not neutral with respect to creed, it discriminates with respect to services against both parents and children whose creed is marginalized.

Other Contextual Factors

[52] There is no basis on which to suggest that giving priority to Christians in distribution of religious materials in schools corresponds with their needs or promotes equality.

[53] For these reasons, I conclude that both R.C. and S.C. experienced discrimination with respect to services under the pre-2010 policy. The respondents have articulated no valid education-related purpose for restricting the distribution of religious literature to representatives of one creed, and the policy as it stood when S.C. was in grade five cannot be justified pursuant to s. 11 of the Code.

REMEDY

[54] Section 45.2 (1) of the Code reads as follows:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

[55] The applicants seek no monetary compensation for the discrimination they experienced in 2009. They seek an order that the new policy be rescinded and no religious literature be permitted. I agree with the respondent that in the circumstances, there is no need to make an order about the old policy that has now been repealed. In order to decide whether to grant a remedy that the new policy be changed, I must consider whether it complies with the Code and is sufficient to promote compliance with the Code in the future in light of the 2009 discrimination. Put differently, if the Board’s own changes have remedied the discrimination, there is no need for the Tribunal to provide a remedy. If they have not, the Tribunal should order changes, under the third paragraph of s. 45.2 (1).

Does the Code prohibit Distribution of Religious Materials in Public Schools outside the School Day?

[56] The first issue is whether the Tribunal’s remedial order must prohibit the distribution of any religious materials in the public school system outside classroom time, even if the policy is neutral and ensures that there is no coercion or perception by a reasonable person that the Board favours one creed.

[57] The respondent emphasizes that a school does not provide only formal learning during the classroom day. There are numerous optional extra-curricular activities within a school building before and after school and during breaks in which students can participate, and the respondent argues they should be evaluated differently than what happens within the classroom. In the respondent’s view, the distribution of religious literature under the new policy facilitates parents’ and students’ access to materials they may wish to receive, and is a valid and important part of the school’s role in the community.

[58] The CCLA and the applicant suggest that as soon as schools go beyond neutral religious education and facilitate any religious message from a creed, there is discrimination. They suggest that religion should be in the schools only through the academic study of religions. They argue that the act of sending home and returning a permission slip identifies those students who do not attend a distribution and singles out those who do not share the creed whose materials are distributed. The distribution of the forms and the presence of the principal or vice-principal at the distribution, they say, subtly identifies the school with the religious message being sent by those distributing the text. The CCLA argues that because religious indoctrination by the school is prohibited under s. 2(a) of the Charter (see CCLA, above at para. 7) optional religious activities in the school are also prohibited. It equates the distribution and return of permission forms to the requirement to opt out of Christian religious exercises discussed in Zylberberg, above.

[59] In my view, optional religious activities outside the instructional day are permitted under the Code if all creeds are treated equally, there is no subtle or formal coercion to participate, and the school makes clear that it is not favouring any of them. Equal treatment without discrimination because of creed does not require that all activities relating to creed other than education about diverse religions be banished from the public schools. I agree with the respondent that, under a carefully developed policy that ensures equality between all creeds, it can permit distribution of religious and creed literature outside the school day with parental consent.

[60] To find that there can be no promotion of religious ideas or practices in public schools for those who want to participate in them would be to prohibit activities like optional religious clubs in high schools or the provision of prayer rooms. In my view, the Code ensures equality because of creed, but does not ban creed from all public spaces. Indeed, such a policy could be contrary to Code values of diversity and inclusion. Creed-based activities outside the classroom need not be eliminated, so long as participation is optional, no pressure is applied on students to participate, the school is neutral and it makes clear that it is facilitating such optional activities for all creeds, not promoting any particular creed.

[61] I do not agree with the CCLA that the distribution of permission forms and the return of those forms to participate in optional activities outside the school day is equivalent to requiring students to self-identify to receive an exemption from mandatory religious opening exercises during the school day, found to violate freedom of religion in Zylberberg, above. The Supreme Court has recognized that children can understand that others have different views on matters of religion and faith without being unduly influenced. See S.L., above at para. 40;Chamberlain v. Surrey School District No. 36, 2002 SCC 86 (CanLII), 2002 SCC 86 at paras. 65-66. Allowing students to opt into an activity outside the classroom, given the large number of such activities in which students may or may not participate, is not discriminatory if it is made clear that all creeds may engage in such activities in an equal manner in the school and the school is not endorsing any of them. This is fundamentally different from including formal worship during the school day and requiring students to opt out if they do not want to participate.

Does the Revised Policy Ensure Neutrality and Non-Discrimination?

[62] I find that that the new policy does not conform with the above principles. Neither the text of the new policy nor the manner in which it has been applied complies with the Code.

The Text of the Policy

[63] The new Policy G-22 is merely a grant of discretion to approve distribution of religious materials. Any such distribution must be approved by the Director of Education, then by the principal in consultation with the school council. There are no written guidelines about what will be approved, and nothing to ensure that creeds are treated equally across the Board’s schools in relation to requests to distribute materials. While I accept based on his testimony that Mr. Hoshizaki takes seriously the need to treat requests based on consistent criteria, there is no guidance to principals or school councils as to how to carry out their functions. This poses the serious risk that requests to distribute materials from different creeds will be treated differently. The lack of consistency, even before the new policy, is demonstrated by the fact that different principals at S.C.’s school took different approaches to whether the Gideon Bible would be distributed.

[64] The lack of clarity in the policy has placed the Board in the position of deciding on a case-by-case basis which pieces of literature may be distributed, and the criteria for doing so have been inconsistent. Although the Board’s letter to Mr. C. when he asked to distribute “Just Pretend” suggested that only materials in the MIM could be distributed, Mr. Hoshizaki’s testimony made clear that in light of the fact that some creeds are not included in the MIM, he may need to have staff research the issue if a request is made. He also acknowledged that staff may have to do research to determine whether some of the diverse books listed in the MIM can be distributed. The Board cannot be in a position of making such choices in individual cases without being seen to judge the validity of particular religions and religious texts and lose its neutral stance.

[65] Second, I agree with the applicant that merely changing the policy to permit the distribution of materials of other creeds was not sufficient, in particular in light of the previous discriminatory practice. The most important equality rights at issue in this case are those of the students and their parents to equal treatment in education, not those of persons who wish to distribute materials in the schools. From the perspective of grade five children, the effect of having only the Gideon Bible distributed in their school under the new policy is similar that under the old policy. To ensure compliance with the Code under an amended policy, the Board had the responsibility to make at least some efforts to encourage a diversity of literature and awareness of the policy under which the materials could be distributed.

[66] Third, the policy failed to ensure that a clear statement was included in the communication with parents about any distribution confirming that all creeds are permitted to distribute materials to students with parental consent. This would have avoided any impression that the Board was favouring a particular creed by allowing the distribution.

The Application of the Policy post-2010

[67] I also find that the manner in which the discretion was exercised was discriminatory. The respondent in its letter to R.C. relied upon the MIM. As Mr. Hoshizaki acknowledged, the MIM does not include information about every creed, including some recognized in this Tribunal’s jurisprudence, and the information about each religion is prepared by that religion. It is intended to assist in pastoral care and multifaith understanding, not in judging texts according to a consistent standard. In particular, it left out any material about the applicant’s creed.

[68] There was also discrimination in the attempted restriction of the policy to “recognized sacred texts of which there is global association and recognition” and not secondary materials. The MIM itself makes clear that not every creed is text-based or has “sacred texts”; for example it states that Native Spiritual Beliefs “have no written scriptures but ceremonies and beliefs are learned by word of mouth and actual experience”. As the applicant testified, atheists have no such “sacred text” so providing materials that reflect the creed of atheism means distributing publications like “Just Pretend”. The policy was discriminatory because its definition of acceptable materials violated substantive equality by excluding the kinds of materials central to many creeds. The restriction to sacred or foundational texts excludes some creeds and is therefore discriminatory. The requirement that there be “global recognition” may also have the effect of excluding emerging or non-traditional creeds.

[69] Moreover, the standard was not consistently applied. The Gideon Bible includes what appears to be “secondary material” in addition to biblical text. A standard that was relied upon to reject “Just Pretend” was not applied to the Gideon Bible.

[70] The Board made no efforts to publicize the policy or to ensure that other creeds were aware that they could provide materials. Indeed, when it received the request by the Council of Imams to distribute materials on Islam, the Board’s response was inconsistent with a policy of substantive equality between creeds. The Council of Imams asked, during the school year, to send religious material to be distributed in the schools. The Board responded two months later, in the summer, with a link to the policy, which is itself vague, and no information as to how to actually provide the materials as requested. Whether intentional or not, a reasonable reading of the e-mail would lead a reader to believe that the Board was not interested in encouraging or even facilitating the distribution of materials other than the Gideon Bible and the Board did not take the opportunity to ensure that there was more than one creed’s materials distributed in the schools.

Justification

[71] The Board suggests that if the new policy is discriminatory, it is justified under s. 11 of the Code as a reasonable and bona fiderequirement in order to promote the objective of giving students and their families access to seminal texts from religions. The Board argues that it would undermine its objective if the Board had to distribute materials that were not seminal texts such as “Just Pretend”. The Board argues that the new policy therefore complies with the Code and remedies the 2009 discrimination, and that the Tribunal should therefore not order that it be changed.

[72] I need not engage in an extensive analysis of whether the respondent has met each aspect of the test for justification under British Columbia (Public Service Employee Relations Commission) v. BCGSEU¸ 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”). The third step of that test requires that the requirement be reasonably necessary to accomplish its purpose or goal, and that the respondent could not accommodate the differences without experiencing undue hardship. Assuming that the other steps in the test are met, there is no evidence or reason why the respondent’s objective of giving students access to texts of creeds would be undermined by permitting optional attendance, with parental permission, at a distribution of atheist literature or materials that discuss traditional native spirituality. The desire to restrict the policy to the manner in which some creeds convey their core beliefs (seminal or authoritative texts) cannot justify an exclusion of creeds that convey their core message in other ways.

[73] I understand that some parents and students may not agree with some of the content of atheist literature like “Just Pretend”. However, the applicant and others do not agree with some of the content of the Gideon Bible. If the Board decides to have a policy permitting distribution of religious literature, it must be prepared to accept that some parents and students might object to materials that others, with parental permission, are receiving. If it is prepared to distribute permission forms proposing the distribution of Christian texts to committed atheists, it must also be prepared to distribute permission forms proposing the distribution of atheist texts to religious Christians. It cannot design its criteria in a way that would permit communication of materials setting out their beliefs by some, but not all creeds.

The Role of the Board

[74] For these reasons, I find that the Board’s 2010 policy is also contrary to the Code, and will order a remedy to promote compliance with the Code. The decision about whether and how to redesign the policy should be that of the Board, the elected body that decides upon educational policy in Niagara. It is the Board’s choice whether to end the practice of distributing religious literature or to design a new policy that complies with this Decision and to decide upon the details of the policy.

[75] In view of the discrimination found in this Decision, policy G-22 will be declared invalid. The Tribunal’s Order will provide that no distribution of religious materials shall take place in the Board’s schools unless the Board designs a new policy consistent with the Codeprinciples set out in this Decision. In order to ensure that any new policy complies with the Code, the Order will provide the Board with six months to develop any new policy and provide it to the applicants and intervenors. I will remain seized for one year to deal with any disputes about whether any new policy complies with the Code. This will facilitate and promote the primary place of local democratically elected representatives while ensuring that a remedy at the Tribunal is available in an expeditious manner if any party believes there continues to be discrimination.

[76] I want to conclude by thanking all counsel and R.C., who was self-represented, for their helpful and thoughtful arguments and the collegial and highly respectful approach they all took to the argument of the case.

ORDER

[77] The Tribunal orders as follows:

1. Both Applications are allowed.

2. Board policy G-22 as it now reads cannot be relied upon by the Board.

3. Unless it develops a new policy consistent with the Code principles set out in this Decision, the Board shall not permit the distribution of religious publications in its schools.

4. If the Board intends to develop a new policy permitting distribution of creed and religious publications in its schools, it shall finalize the policy within six months, and provide a copy of the new policy to the applicants and intervenors.

5. If any party to this case believes that the new policy or practices under it are inconsistent with the Code, it may write to the Registrar no later than one year from the date of this Decision and request that I decide the issue.

6. I shall remain seized of these Applications for the purpose of dealing with disputes about any new Board policy raised with the Registrar within one year of today’s date.

Dated at Toronto, this 13th day of August, 2013.

“Signed by”

__________________________________

David A. Wright

Associate Chair

Swedish high jumper Emma Green Tregaro has repainted her nails after being warned by the IAAF that the rainbow colours she sported in qualification in support of gay rights were a breach of regulations.

Swedish high jumper Emma Green Tregaro has repainted her nails after being warned by the IAAF that the rainbow colours she sported in qualification in support of gay rights were a breach of regulations.




Russian pole vault gold medallist Yelena Isinbayeva has provoked a furore at the World Athletics Championships over her outspoken anti-gay remarks, which she later tried to play down saying she was "misunderstood" and opposed to discrimination against homosexuals.




And she had called Green Tregaro "unrespectful" to Russia after painting her nails in the colours of the rainbow flag that symbolises support for gay rights while competing in Moscow, a move that garnered acclaim elsewhere in the world.




Anders Albertsson, general secretary of the Swedish athletics federation, said before Saturday's high jump final that they had talked with track and field's governing body, the IAAF, over the issue and Green Tregaro had revarnished her nails.




"We have been informally approached by the IAAF saying that this is by definition, a breach of the regulations. We have informed our athletes about this," Albertsson said.




"The code of conduct clearly states the rules do not allow any commercial or political statements during the competition."




Albertsson added that he had not put pressure on Green Tregaro to change the colour of her fingernails, but "understood from Swedish media her nails are now red".




"If she knows she might be breaking the rules, that's a decision she takes,

we don't have any objections on how they paint their fingernails," Albertsson

said.




Russian President Vladimir Putin signed a law in June that punishes the dissemination of information about homosexuality to minors. But activists say

it can be used for a broad crackdown against gays.




Fears it could be used against participants at the 2014 Sochi Winter Olympics have sparked calls for a boycott of the event in some quarters and Russian officials have said all athletes will have to obey the law at the Games.

medical marijuana clinic

Their predicament underlines the uncertain environment for doctors interested in marijuana therapy, even as evidence suggests it has value for some conditions.

Under new rules being phased in by Health Canada, physicians will arguably have an even bigger role in the process than they had under previous regulations, writing prescriptions that patients can then take to a licensed marijuana producer, with no need for a government permit.

At the same time, though, professional organizations like the Canadian Medical Association and regulators like Ontario’s College of Physicians and Surgeons are alerting doctors to the potential pitfalls of prescribing dried pot, as opposed to approved medications that contain cannabis.

Without good scientific evidence around the proper dosages, safety and efficacy, it is unclear how doctors can fulfill their duty to ensure patients get safe and effective treatment, says the college.

“We would advise physicians to exercise caution,” Prithi Yelaja, a spokeswoman for the regulator, said in an email response to questions.

Since the federal government first allowed medical use of marijuana in 2001, a smattering of physicians have been willing to assess whether patients suffer from one of the conditions eligible for the plant. Those include cancer, severe arthritis, multiple sclerosis and epilepsy.

In Vancouver, the Medicinal Cannabis Resource Centre helps people with therapeutic-pot applications, its non-physician staff referring eligible patients to affiliated doctors, Dr. Arnold Shoichet being the most prominent among them.

Dr. Schecter’s proposed clinic, which originally was supposed to open this summer in north-end Toronto, would appear to go a step further, operating as a physician’s office staffed by him and a colleague. Patients who secured a prescription could seek out an independent producer — though none have been licensed by Health Canada yet — or pick up their cannabis at the clinic, the website says. The new rules allow doctors to “transfer” marijuana to patients, but not actually produce and sell it.

The details of exactly what the clinic would do, however, are in flux, said Dr. Schecter. Lawyers have suggested they must be careful of the “optics” around the practice, he said. But to limit revenue by relying solely on medicare billings for consultations with patients may not be a sustainable business model, admitted the physician.

Dr. Schecter said the key is to assess patients with proper diligence, noting that he has seen some of Dr. Kamermans’ former patients and would not have prescribed marijuana to them.Looming over the plan is the case of Dr. Rob Kamermans, the rural-Ontario physician who signed 4,000 medical-marijuana approvals in little over a year — charging fees on top of medicare billings — and now faces fraud, forgery and other charges.

“He went about it in the wrong way,” argued the physician. “I respect the fact he really put himself out there and tried to help people … [But] it’s too bad he didn’t take better care of himself.”

The CMA states bluntly that there is “no clinical evidence” to back up the medical use of marijuana, though that view appears arguable. According to the Mayo Clinic, for instance, there is class-A scientific evidence — including randomized clinical trials — that suggests it is effective against chronic pain and some symptoms of multiple sclerosis.

Dr. Schecter said he is working closely with Canadian Consortium for the Investigation of Cannabinoids, a network of academic researchers and physicians who want to build a base of scientific evidence for cannabis as a treatment.

National Post

CRTC proposes a new approach to national news services

OTTAWA-GATINEAU, August 8, 2013 — Today, the Canadian Radio-television and Telecommunications Commission (CRTC) invited Canadians to participate in a review of its policy on the licensing of Canadian national news television services. It also invited comments on the distribution conditions for these services and for foreign news services.

“The diversity of voices is an essential component of our society, particularly as they relate to news and information in the Canadian broadcasting system” said Jean-Pierre Blais, Chairman of the CRTC. “Television news channels provide an important public service by ensuring that Canadians are exposed to different opinions and perspectives on matters that concern all citizens. We are concerned that, under the existing rules, Canadian news services are not being given a pride of place in our broadcasting system.”

During the CRTC’s public hearing that began on April 23, 2013, Canadians presented evidence suggesting that the policy on specialty Canadian national news services should be reviewed. The CRTC will focus specifically on the challenges that face new players in this sector, particularly in terms of their distribution. These challenges are not unique to any given service, but rather an indication of a wider and more systemic issue regarding the distribution of Canadian national news services under equitable and commercially reasonable conditions.

The CRTC invites Canadians to comment on a proposed regulatory framework that includes the following:

• distributors must offer all Canadian national news services (not necessarily on basic service)
• distributors must place Canadian news services in close proximity in their channel lineup
• national news services must be available in a package and on a stand-alone basis
• national news services should be offered in the most appropriate packages according to their content.

Those who wish to participate in the CRTC’s proceeding are invited to submit their comments by September 9, 2013. Comments may be submitted by completing the online form, by writing to the Secretary General, CRTC, Ottawa, Ontario, K1A 0N2, or by fax at 819-994-0218.

About Canadian television news services

Despite the significant technological changes currently underway, Canadians still overwhelmingly access news affecting their country and their community through the Canadian broadcasting system. Nearly 12 million households subscribe to a cable or satellite television service. Canadians collectively watched more than 138 million hours of news programming in 2011-2012, 45% of which was on specialty news services.

Currently, non-Canadian news services are, for the most part, distributed in popular packages and have significant access to Canadian viewers. On average, non-Canadian news services receive wholesale fees from cable and satellite companies of $0.73 per subscriber per month, while Canadian news services receive monthly wholesale fees of $0.36 per subscriber, which are half the fees paid to non-Canadian services.

Broadcasting Notice of Consultation CRTC 2013-394

The CRTC

The CRTC is an independent public authority that regulates and supervises broadcasting and telecommunications in Canada.

- 30 -

CRTC grants mandatory distribution to three new television services Canadians living with a visual impairment, francophones and citizens of the North will be better served by the Canadian broadcasting system

CRTC grants mandatory distribution to three new television services

Canadians living with a visual impairment, francophones and citizens of the North will be better served by the Canadian broadcasting system

OTTAWA-GATINEAU, August 8, 2013 — Today, the Canadian Radio-television and Telecommunications Commission (CRTC) approved a limited number of applications for mandatory distribution on cable and satellite companies’ digital basic television service.

“Canadians across the country will have access to programming that meets a real and exceptional need, and that would not be widely available without our intervention,” said Jean-Pierre Blais, Chairman of the CRTC. “We are making sure, however, that television services remain affordable for Canadians by imposing reasonable rates for services offered on the basic service.”

The CRTC examined 22 applications for mandatory distribution orders from services that already had such an order and wished to renew it, from existing services seeking to obtain a first distribution order and from new services.

After an in-depth examination of these applications, the CRTC approved two new services for mandatory distribution on the basic service of all distributors in the country, and one service for mandatory distribution on the basic service of satellite companies in Nunavut and the Northwest Territories. The CRTC also granted a new distribution order on a discretionary basis. Lastly, the CRTC renewed five existing mandatory distribution orders.

New services that meet a real and exceptional need

As a result of the mandatory distribution on basic of the new service AMI TV in French, Francophone Canadians living with a visual impairment will have access to programming in their language that is particularly relevant to their needs. This service offers audiovisual content specifically adapted to the needs of people who are blind or partially sighted. A similar English-language service has been offered since 2009.

French-language minority communities will also be better reflected on television and have access to two additional French-language services. Nouveau TV5 will be distributed on a mandatory basis on the basic service across the country. It will offer programming devoted to diversity within the Canadian francophone community and official language minority communities.

The CRTC also granted a distribution order to ensure that ARTV is carried by all distributors. However, Canadians can choose whether to subscribe to this service.

These two orders are positive measures to foster the development of official language minority communities.

Citizens of the North will have better access to legislative debates as the service operated by the Legislative Assemblies of Nunavut and the Northwest Territories will be added to the basic service of satellite television subscribers in those two territories.

Renewal of existing distribution orders

Canadians living with visual disabilities will continue to have access to AMI-TV in English, AMI Audio and Canal M, as the CRTC renewed their mandatory distribution orders on the basic service of all distributors in the country.

The CRTC also renewed the mandatory distribution order for the Aboriginal Peoples Television Network (APTN). This is the only service in the country to exclusively offer content by and for Aboriginal peoples. As such, it contributes in an exceptional manner to Canadian expression and reflects attitudes, opinions, ideas, values and artistic creativity that would otherwise not be seen on television.

Finally, Canadians will continue to have access to the parliamentary debates and public affairs programming provided by Cable Public Affairs Channel (CPAC), as the CRTC renewed its mandatory distribution on the basic service of all distributors.

These orders are valid for five years.

Affordability of the basic service

The CRTC considered the need of consumers to have access to affordable television services. Each application was examined in order to ensure reasonable rates that will allow services to fulfill their mandate, without unduly increasing television subscribers’ bills. In doing so, the CRTC has imposed lower rates than were requested by four services: AMI TV in French, Canal M, APTN and Nouveau TV5. All the successful applications are for services operated by not-for-profit organizations.

Other applications

Given its exceptional nature, the CRTC has set the bar very high for obtaining a mandatory distribution order. The CRTC’s policy requires that a service seeking such an order must clearly demonstrate its exceptional nature and that it achieves important public policy objectives under theBroadcasting Act.

The applications from the following services were denied, not having successfully demonstrated to the CRTC that they met the criteria for a mandatory distribution order:

• Accents
• All Points Bulletin
• Canadian Punjabi Network
• Described Video Guide
• Dolobox TV
• EqualiTV
• Fusion
• Maximum Television Canada
• Starlight: The Canadian Movie Channel
• Sun News Network
• La télévision des ressources naturelles
• Vision TV

In addition, the mandatory distribution order on the basic service in French-language markets granted to Avis de recherche will expire in two years.

The CRTC today also issued a notice of consultation inviting comments from Canadians on a new approach regarding national news television services.

Today’s decision follows a proceeding that included a public hearing held from April 23 to May 2, 2013. The Commission received and considered over 135,000 interventions from Canadians regarding these applications.

Broadcasting Regulatory Policy CRTC 2013-372

Broadcasting Notice of Consultation CRTC 2013-394

Reference document:

Broadcasting Notice of Consultation CRTC 2013-19

The CRTC

The CRTC is an independent public authority that regulates and supervises broadcasting and telecommunications in Canada.

- 30 -

Follow us on Twitter @CRTCeng

Media Relations:
communications@crtc.gc.ca
Tel: 819-997-9403, Fax: 819-997-4245

General Inquiries:
   Tel: 819-997-0313, TDD: 819-994-0423, Fax: 819-994-0218
   Toll-free # 1-877-249-CRTC (2782)
   TDD - Toll-free # 1-877-909-CRTC (2782)
   Ask a question or make a complaint

These documents are available in alternative format upon request.

Additional information on the CRTC’s decision

Under section 9(1)(h) of the Broadcasting Act, the Canadian Radio-television and Telecommunications Commission (CRTC) may require cable and satellite distribution companies to carry certain services under the terms specified by the CRTC. To obtain a distribution order, a programming service must demonstrate to the CRTC that it:

• makes an exceptional contribution to Canadian expression and reflects Canadian attitudes, opinions, ideas, values and artistic creativity;
• contributes, in an exceptional manner, to the overall objectives for the digital basic service and specifically contributes to one or more objectives of the Act, such as Canadian identity and cultural sovereignty; ethno-cultural diversity, including the special place of Aboriginal peoples in Canadian society; service to and the reflection and portrayal of persons with disabilities; or linguistic duality, including improved service to official language minority communities; and
• makes exceptional commitments to original, first-run Canadian programming in terms of exhibition and expenditures.

i) Services receiving a mandatory distribution order for a period of five years

Service	Wholesale rate requested (French-language / English-language markets	Maximum wholesale rate, English-language market	Maximum wholesale rate, French-language market
AMI TV (English)	$0.20 / $0.00	$0.20	$0.00
AMI TV (French)	$0.00 / $0.30	$0.00	$0.28
AMI Audio	$0.04 / N/A	$0.04	N/A
Le Canal M	N/A / $0.04	N/A	$0.02
Cable Public Affairs Channel (CPAC) / La Chaîne d'affaires publiques par câble	$0.12 / $0.12	$0.12	$0.12
Aboriginal People's Television Network (APTN) / Le Réseau de télévision des peuples autochtones	$0.40 / $0.40	$0.31	$0.31
Nouveau TV5	$0.30 / $0.30	$0.24	$0.28
The Legislative Assemblies of Nunavut and the Northwest Territories / Les assemblées législatives du Nunavut et des Territoires du Nord-Ouest (mandatory distribution on the basic service in Nunavut and the Northwest Territories only)	$0.00 / N/A	$0.00	N/A
ARTV (must be offered, but not necessarily on the digital basic service)	N/A / N/A	N/A	N/A

ii) Service whose mandatory distribution order will expire in two years

Service	Wholesale rate requested (French-language / English-language markets	Wholesale rate, English-language market	Wholesale rate, French-language market
Avis de recherche	N/A / $0.08	N/A	$0.06

PLICATION by Marley Greenglass against Air Canada. File No.: U3570/13-01171

PLICATION by Marley Greenglass against Air Canada.

File No.: U3570/13-01171




INTRODUCTION

[1] Marley Greenglass filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) against Air Canada regarding its policy that allows the carriage of pets in aircraft cabins, as it relates to Mrs. Greenglass’s allergy to dogs.

[2] The Agency stayed Mrs. Greenglass’s application pending the adjudication of cat allergy cases and the issuance of Decision No. 227-AT-A-2012 (Allergy Decision), which sets out the Agency’s final determination of the accommodation measures to be provided by Air Canada, Air Canada Jazz and WestJet to persons whose allergy to cats results in a disability for the purposes of Part V of the CTA.

[3] Following the issuance of the Allergy Decision, the Agency found, on a preliminary basis, that the accommodation measures relating to cat allergies provided by Air Canada pursuant to the Allergy Decision also constitute the appropriate accommodation needed to meet the disability‑related needs of persons who are disabled by an allergy to other pets accepted in the cabin, including dogs. The Agency then advised Mrs. Greenglass that, if she believed that the accommodation measures ordered by the Agency in the Allergy Decision did not address her disability-related needs as it relates to her allergy to dogs, she was required to establish, through evidence, including medical evidence, that she needed a different form of accommodation. Mrs. Greenglass requested that the accommodation measures determined by the Agency for persons with a cat allergy disability be provided by Air Canada to persons with a dog allergy disability.

[4] In response to the Agency’s preliminary finding, Air Canada filed comments with respect to its obligation to carry service dogs and the implications regarding the accommodation measures to be provided to persons with a dog allergy disability, and Mrs. Greenglass subsequently responded to Air Canada’s comments. The Agency recognized, in Decision No. LET-AT-A-82-2013 (Show Cause Decision), that service dogs are commonly used by persons with disabilities, including as part of air travel, and agreed to consider the parties’ submissions with respect to the carriage of service dogs in the cabin in its determination of the accommodation measures to be provided to persons with a dog allergy disability.
THE LAW

[5] When adjudicating an application pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:
the person who is the subject of the application has a disability for the purposes of the CTA;
an obstacle exists because the person was not provided with appropriate accommodation to address their disability-related needs. An obstacle is a rule, policy, practice, physical barrier, etc. that has the effect of denying equal access to services offered by the transportation service provider that are available to others; and,
the obstacle is “undue.” An obstacle is undue unless the transportation service provider demonstrates that there are constraints that make the removal of the obstacle either unreasonable, impracticable or impossible, such that to provide any form of accommodation would cause the transportation service provider undue hardship. If the obstacle is found to be undue, the Agency may order corrective measures necessary to remove the undue obstacle.
BACKGROUND

[6] In the Show Cause Decision, the Agency made three final determinations and one preliminary finding.
Final determinations

[7] The Agency made final determinations with respect to disability, appropriate accommodation and obstacle.
Disability

[8] The Agency found that Mrs. Greenglass is a person with a disability for the purposes of Part V of the CTA as a result of her allergy to dogs.
Appropriate accommodation

[9] The Agency found that the following provides the appropriate accommodation required to meet the needs of Mrs. Greenglass and persons with disabilities as a result of their allergies to dogs when at least 48 hours advance notification is provided by persons with a dog allergy disability, with best efforts to do the same when less than 48 hours advance notification is provided:
With respect to dogs carried as pets

[10] On aircraft with air circulation/ventilation systems using High Efficiency Particulate Air(HEPA) filters or which provide 100 percent unrecirculated fresh air:
a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a dog allergy disability and pet dogs, including during boarding and deplaning and between their seat and a washroom; or,
a ban on pet dogs in the aircraft cabin in which a person with a disability as a result of their allergy to dogs is travelling.

[11] On aircraft without air circulation/ventilation systems using HEPA filters and which do not provide 100 percent unrecirculated fresh air:
a ban on pet dogs in the aircraft cabin in which a person with a disability as a result of their allergy to dogs is travelling;

[12] When advance notification of less than 48 hours is provided by persons with a dog allergy disability, a ban on pet dogs is to be provided if no person travelling with a pet dog has already booked their travel on the selected flight. If a person travelling with a pet dog has already been booked on the flight, persons with a dog allergy disability must be provided with the same flight ban accommodation within 48 hours on the next flight available on which there is no person with a pet dog already booked. If the next available flight is beyond the 48-hour period, persons with a dog allergy disability must be given priority and provided with the accommodation measures applicable when the 48-hour advance notice is given by the person with a dog allergy disability.
With respect to service dogs

[13] On aircraft with air circulation/ventilation systems using HEPA filters or which provide 100 percent unrecirculated fresh air:
a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a dog allergy disability and service dogs, including during boarding and deplaning and between their seat and a washroom.

[14] On aircraft without air circulation/ventilation systems using HEPA filters or which do not provide 100 percent unrecirculated fresh air:
give the booking priority to whoever of the person with a dog allergy disability and the person travelling with a service dog first completed their booking. A person with a dog allergy disability and a person travelling with a service dog will not be accepted on the same flight using an aircraft that does not have HEPA filters or which does not provide 100 percent unrecirculated fresh air.
Obstacle

[15] The Agency found that, as Air Canada does not currently provide the appropriate accommodation measures, Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which a person with a disability due to an allergy to dogs is travelling, constitutes an obstacle to the mobility of Mrs. Greenglass and of other persons with a dog allergy disability.
Preliminary finding

[16] The Agency also made a preliminary finding in the Show Cause Decision, which will be addressed in this Decision.
Undue obstacle

[17] The Agency found, on a preliminary basis, that Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which a person with a disability due to an allergy to dogs is travelling, constitutes an undue obstacle to the mobility of Mrs. Greenglass and of other persons with a dog allergy disability.

[18] The Agency provided Air Canada with an opportunity to show cause why the Agency should not finalize its preliminary finding with respect to undue obstacle, and Mrs. Greenglass was provided with an opportunity to file a reply to Air Canada’s answer to the show cause direction.

[19] In this Decision, the Agency will finalize its preliminary finding. The Agency’s final finding will be based on the preliminary finding set out in the Show Cause Decision and on the submissions filed by the parties in this case.
PRELIMINARY MATTER
Comments on appropriate accommodation

[20] Air Canada refers to the appropriate accommodation determined by the Agency in the Show Cause Decision as being a “proposed accommodation”. In addition, Air Canada provides comments on the Report Addendum: Cat and Dog Dander in the Aircraft Cabin, May 23, 2008by Dr. Sussman (the expert on allergies retained by the Agency as part of its adjudication of other allergy complaints, including the cat allergy cases) and the impact of Dr. Sussman’s findings on the determination of appropriate accommodation.

[21] Mrs. Greenglass suggests that Dr. Sussman’s report be updated to include studies that have been prepared since 2008.

[22] In Decision No. LET-AT-A-46-2013, the Agency provided Air Canada with an opportunity to comment on obstacle/appropriate accommodation, in addition to filing undue hardship arguments with respect to the Agency’s preliminary finding of appropriate accommodation and to propose another form of accommodation. Following this, the Agency finalized its determination of appropriate accommodation in the Show Cause Decision. The Show Cause Decision did not provide Air Canada with an opportunity to re-argue its case regarding obstacle/appropriate accommodation, but rather to comment on the Agency’s preliminary finding of undue obstacle. Similarly, the Show Cause Decision did not provide Mrs. Greenglass with an opportunity to comment on the Agency’s final determinations with respect to obstacle/appropriate accommodation.

[23] The Agency will therefore not consider Air Canada’s further arguments with respect to appropriate accommodation. In addition, the Agency will not consider Mrs. Greenglass’s submission regarding Dr. Sussman’s report.
Mrs. Greenglass’s reply

[24] In her reply to Air Canada’s answer to the Agency’s Show Cause Decision, Mrs. Greenglass asks that “the issue of any animals in the cabin be readdressed” for all air carriers under the Agency’s jurisdiction. In making such a request, Mrs. Greenglass is seeking to expand the scope of her complaint to encompass the carriage of other animals in the aircraft cabin and the related policies of other air carriers.

[25] Expanding the scope of Mrs. Greenglass’s application at this point of the proceedings, as suggested by Mrs. Greenglass, would require that the Agency re-open the pleadings on the basis of an amended application, which would unduly prolong the adjudication process. The Agency rejects Mrs. Greenglass’s request to expand the scope.
PRELIMINARY FINDING – DOES AIR CANADA’S POLICY/PROCEDURE, AS IT RELATES TO THE CARRIAGE OF DOGS IN THE AIRCRAFT CABIN IN WHICH A PERSON WITH A DISABILITY DUE TO AN ALLERGY TO DOGS IS TRAVELLING, CONSTITUTE AN UNDUE OBSTACLE TO THE MOBILITY OF of MRS GREENGLASS AND OF OTHER PERSONS WITH A DOG ALLERGY DISABILITY?
Show Cause Decision

[26] The Agency found, on a preliminary basis, that Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which a person with a disability due to an allergy to dogs is travelling, constitutes an undue obstacle to the mobility of Mrs. Greenglass and of other persons with a dog allergy disability.

[27] In the Show Cause Decision, the Agency noted that, pursuant to the U.S. Department of Transportation’s (DOT) Regulation 14 CFR Part 382 (Part 382), Air Canada may, in some situations, require advance notice from a person travelling with a service or emotional support/psychiatric service dog (service dogs) on flights to and from the United States of America. The Agency also found that, in situations where advance notice is not provided, Air Canada did not demonstrate that it could not implement procedures to enable it to establish a seating separation with limited time available after a person travelling with a service dog checks‑in, for example, by reseating either the person with a service dog or the person with a dog allergy disability. Moreover, the Agency expressed the opinion that Air Canada would infrequently be required to establish a seating separation on the day to travel, given:
that the lack of advance notice by a person with a disability travelling with a service dog is limited to flights to and from the United States of America;
that the number of service dogs carried (which, according to data provided by Air Canada, would represent approximately 2.74 service dogs per day system-wide) in relation to the very large number of flights that Air Canada operates on an annual basis, including to and from the United States of America, is immaterial; and,
the fact, as pointed out by Dr. Sussman, that dog allergies are much less common than cat allergies, and Air Canada’s evidence that it has only received 20 Fitness for Travel forms with respect to passengers with cat allergies since the implementation of the cat allergy accommodation ordered by the Agency; considering that dog allergies are less common, it would be a rare circumstance in which both a person with a service dog and a passenger with a dog allergy disabilitywould require accommodation on the same flight.

[28] The Agency also found that, on aircraft without air circulation/ventilation systems using HEPA filters and which do not provide 100 percent unrecirculated fresh air, the appropriate accommodation is for Air Canada to give the booking priority to whoever of the person with a dog allergy disability and the person travelling with a service dog first completes their booking. The Agency acknowledged that this may result in Air Canada having to deny boarding to a person travelling with a service dog, thereby contravening Part 382.117, which requires air carriers to accept service animals for carriage. However, for the reasons set out above, the Agency expressed its opinion that only in rare situations would Air Canada have to deny boarding to a person travelling with a service dog on flights to and from the United States of America. Moreover, if this situation were to arise, the Agency noted that Part 382.9 provides a conflict of laws waiver mechanism to give appropriate consideration to requirements of foreign law applicable to foreign carriers, which would allow Air Canada to ask for a waiver of its obligation to accept service dogs on flights to and from the United States of America on which a person with a dog allergy disability has first completed their booking and which uses an aircraft without an air circulation/ventilation system using HEPA filters and which does not provide 100 percent unrecirculated fresh air.

[29] The Agency found that Air Canada had not demonstrated that it cannot establish a seating separation prior to departure to meet the needs of persons with a dog allergy disability on flights that will include a dog (whether it be a service animal or a pet).
Positions of the parties
Air Canada

[30] In its response to the Show Cause Decision, Air Canada provided arguments, as set out below, in respect of denied boarding and advance notice; seating assignment; assessment of disability; and booking priority.
Denied boarding and advance notice

[31] Air Canada states that, pursuant to Part 382.19, a carrier cannot refuse to provide transportation due to a person’s disability, except as otherwise provided under Part 382. Air Canada submits that Part 382 does not contain any provisions that would permit a carrier to deny transportation based on “conflicting disabilities.” Air Canada adds that, even if it were to argue, pursuant to Part 382.19(c)(1), that a carrier can determine that there is a disability-related safety basis for refusing to provide transportation, it would result in the carrier giving preferential treatment to one disability over another.

[32] In terms of the aircraft for which Air Canada has concerns regarding denied boarding, Air Canada points out that its 60 Bombardier Dash-8 aircraft, which do not have HEPA‑type filters, are operated by Air Canada Express and are used exclusively for short distances within Canada and on transborder routes to and from the United States of America. Air Canada states that there are 60 Air Canada flights per day to and from the United States of America using such aircraft. Air Canada submits that the prevalence of these aircraft in terms of a possible conflict of law is of the “utmost significance.”

[33] Air Canada states that, pursuant to Part 382.25, a carrier cannot require a passenger with a disability, whether it be a passenger with a dog allergy disability or a person travelling with a service dog, to provide advance notice of their intention to travel. Air Canada submits that due to the lack of advance notice in some cases, “conflicting disability situations” at the gate would be more frequent. Air Canada adds that, in these situations, it is “much more difficult” to reassign seats in order to provide the required seating separation or advise a passenger that they may not travel as planned.
Seating assignment

[34] Air Canada states that, pursuant to Part 382.87, a carrier cannot exclude a passenger with a disability from any seat or, conversely, require that a passenger with a disability sit in a particular seat on the basis of disability, except to comply with the Federal Aviation Administration (FAA) or the applicable foreign government safety requirements. Air Canada submits that providing a seating separation to accommodate a person with a dog allergy disability could require that a person travelling with a service dog be seated in a particular seat not of their choosing. Air Canada contends that providing a seating separation at the last minute when no advance notice is provided could result in the contravention of provisions of Part 382. These provisions provide, in part:

382.81(c) For a passenger with a disability traveling with a service animal, [the carrier] must provide, as the passenger requests, either a bulkhead seat or a seat other than a bulkhead seat.

382.87(d) If [the carrier] has already provided a seat to a passenger with a disability to furnish an accommodation required by this subpart, [it] must not (except in the circumstance described in §382.85(a)(2)(ii)) reassign that passenger to another seat in response to a subsequent request from another passenger with a disability, without the first passenger’s consent.

382.87(e) [The carrier] must never deny transportation to any passenger in order to provide accommodations required by this subpart.
Assessment of disability

[35] Air Canada states that under Part 382, carriers generally may not require proof of disability, although they may require a medical certificate for travellers with severe allergies in Canada. Air Canada asserts that this may create confusion over whether a passenger’s allergy should be treated by the carrier as a disability for flights to and from the United States of America.
Booking priority

[36] Finally, in terms of giving priority to whoever of the person with a dog allergy disability and the person travelling with a service dog first completes their booking, Air Canada states that the date on which a booking was completed may not be “accessible or accurately accessible” at the airport.
Mrs. Greenglass
Denied boarding and advance notice

[37] With respect to Air Canada’s concerns that it would be placed in a position of contravening the United States of America legislation by applying measures imposed by the Agency, Mrs. Greenglass suggests that Air Canada should immediately seek a waiver from the DOT to determine whether an issue actually exists.
Assessment of disability

[38] Mrs. Greenglass is of the opinion that a person with a dog allergy disability should not have to substantiate their disability; conversely, she adds that a doctor’s note indicating the severity of the disability should be sufficient. She submits that if a person with a dog allergy disability has to substantiate their disability, then a person using a service dog should also have to substantiate their need for a service animal.
Booking priority

[39] Mrs. Greenglass argues that Air Canada should provide more details on the system limitations that would prevent its gate agents to determine who of the person with a dog allergy disability and the person travelling with a service dog would be denied boarding. Mrs. Greenglass also argues that Air Canada should explain how its system could be modified to provide this information and that guidelines should be developed to address these situations where one passenger will be denied boarding.

[40] Mrs. Greenglass is of the opinion that it is unfair for a person who booked months in advance to have to worry about checking-in at the airport unusually early to “protect themselves;” rather, she suggests giving the priority to the person who first booked their travel. She believes that persons travelling with a service animal, like persons with an animal allergy disability, must pre‑register in order to avoid conflict at the gate.
Analysis and final finding
Denied boarding and advance notice

[41] Air Canada notes that Part 382 does not contain a provision that would permit a carrier to deny transportation based on “conflicting disabilities.”

[42] However, the Agency notes that the guidance material for Part 382 accepts a first-come, first‑served approach as being a non-discriminatory one to address competing disability needs. It states, in part:

It is unlikely that the mere presence of an animal in the same cabin would [...] produce a severe allergic reaction rising to the level of a disability. However, if there was strong evidence that this was the case, it could be necessary to rebook one of the passengers on another flight. Since one disability does not trump another, the carrier should consider a disability-neutral means of determining which passenger would have to be rebooked (e.g., which passenger made the earlier reservation). We emphasize that we expect any such situation to be extremely rare, and that carriers should not rebook a passenger absent strong evidence that the mere presence of an animal in the cabin, even in a location distant from the allergic passenger, would produce an allergic reaction rising to the level of a disability.

[43] The Agency is also of the opinion that a first-come, first-served approach would ensure a non‑discriminatory treatment of “conflicting disabilities”. In light of the foregoing, the Agency is of the opinion that it may not be necessary for Air Canada to ask for a waiver of Part 382.19 in situations where a person with a dog allergy disability and a person travelling with a service dog wish to travel on the same flight to and from the United States of America using an aircraft which does not have HEPA filters or does not provide 100 percent unrecirculated fresh air. Nevertheless, the Agency is of the opinion that nothing precludes Air Canada from requesting a waiver, should it be of the view that it would facilitate the implementation of the appropriate accommodation.

[44] Air Canada raises a concern with respect to the number of flights to and from the United States of America operated using Dash-8 aircraft in terms of a possible conflict of law. While it is possible that both a person with a dog allergy disability and a person with a service dog may wish to travel on the same flight, the carrier’s duty to accommodate is not diminished. In addition, as set out above, the Agency is of the opinion that Air Canada may be able to book passengers with “conflicting disabilities” on a first-come, first-served basis, without a conflict of law. The Agency finds that Air Canada has not demonstrated undue hardship in terms of the number of flights operated between Canada and the United States of America using Dash-8 aircraft.

[45] In response to Air Canada’s concern that, because Part 382 does not allow it to require advance notice of a person’s disability-related needs, passengers would only be notified of the impossibility to travel at the airport, as set out in the Show Cause Decision, the Agency is of the opinion that it would be a rare circumstance in which both a person travelling with a service dog and a passenger with a dog allergy disability would require accommodation on the same flight. Air Canada provided no evidence to the contrary in its answer to the Show Cause Decision. In addition, as reflected in the Show Case Decision, if Air Canada is concerned about such an occurrence, it may want to reduce its likelihood by informing its customers of the risk of not being able to travel when planned through communication of a first-come, first-served approach.

[46] Notwithstanding, if, as a result of the inability to require advance notice, Air Canada must establish a seating separation with little time before a flight, the Agency is of the opinion that Air Canada did not establish that it would face undue hardship as a result. Air Canada submits that it would be “much more difficult” to reassign seats in order to implement a seating separation. However, difficulty in providing accommodation does not mean that it is unreasonable, impracticable or impossible to provide accommodation.
Seating assignment

[47] Air Canada refers to Part 382.87(a) which states that a carrier cannot exclude a passenger with a disability from sitting in a particular seat or, conversely, require that a passenger with a disability sit in a particular seat, except to comply with the FAA or the applicable foreign government safety requirements.

[48] Although the Agency fully expects that passengers with a dog allergy disability would agree to sit in a certain area of the aircraft in order to be seated at least five rows away from a passenger travelling with a service dog, the Agency notes that the guidance material in respect of Part 382 reflects that ability of a carrier to provide specific seating and possibly reseat passengers to separate those travelling with a service animal and those disabled by an allergy to animal dander. In addition, Part 382.83(a)(1) permits carriers to “block” seats in order to provide seating accommodation to persons with disabilities, including those travelling with a service animal. In light of the foregoing, the Agency is of the opinion that Air Canada would not be prevented from providing a seating separation to accommodate those with a dog allergy disability.

[49] In light of the above, the Agency rejects Air Canada’s argument with respect to providing a seating separation at the last minute when no advance notice is given could possibly result in the contravention of Part 382.87(e).

[50] The Agency recognized, in the cat allergy cases, that the ability of any passenger to reserve their preferred seat is always subject to its availability. For example, there are situations where two persons with disabilities need the same seat. A first-come, first-served approach could be used in those situations.

[51] Finally, the Agency notes that Air Canada is required, pursuant to Decision No. 227-AT-A-2012, to implement a seating separation to accommodate cat dander allergies in respect of flights to and from the United States of America. Specifically, Air Canada is required to provide a seating separation in situations where no advance notice is given by a passenger with a cat allergy disability. The Agency is of the opinion that Air Canada should be equally able to provide a seating separation in situations where no advance notice is given by a passenger with a dog allergy disability.

[52] In light of the foregoing, the Agency finds that Air Canada did not establish that it would face undue hardship as a result of seating assignment requirements.
Assessment of disability

[53] Air Canada submits that Part 382 does not generally allow carriers to require proof of disability. However, U.S. DOT’s guidance material on Part 382 sets out the following:

There may be situations in which, with respect to a passenger who brings a very serious potential allergy situation to the attention of your personnel, it is appropriate to seek a medical certificate for the passenger.

[54] The Agency does not require carriers to ask for medical information from their passengers. The Agency is of the opinion that it is up to Air Canada to determine whether it requires medical information to establish whether a passenger has a dog allergy disability and to implement whatever related process it considers necessary, as it has done in respect of cat allergy disabilities.

[55] Therefore, the Agency finds that Air Canada did not establish that it would face undue hardship as it relates to assessing disability.
Booking priority

[56] Air Canada submits that the date on which a booking was completed may not be “accessible or accurately accessible” at the airport, but it provided no explanation for its view. The Agency notes that Air Canada has sophisticated computer systems which capture a substantial amount of information about a passenger’s booking or reservation. Air Canada did not present any evidence of undue hardship in ensuring that information is available to its check-in personnel.

[57] In fact, in the cat allergy cases, Air Canada proposed a policy to address situations in which both a person with a cat allergy disability and a person travelling with a pet cat wish to sit in Air Canada’s Executive Class or Comfort Plus seating. Air Canada’s proposal, which the Agency accepted, was that priority would be given to whoever had already booked a seat in the particular class of service. The Agency is of the opinion that Air Canada would similarly be able to implement a process to determine whether a person travelling with a service dog or a person with a dog allergy disability has already booked a seat on a certain flight.
Final finding and conclusion

[58] The Agency finds that Air Canada has not met its burden of demonstrating that it would face undue hardship if it were required to provide the appropriate accommodation determined by the Agency for persons with a dog allergy disability.

[59] Accordingly, the Agency finds that Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which a person with a dog allergy disability is travelling, constitutes an undue obstacle to the mobility of Mrs. Greenglass and of other persons with a dog allergy disability.
CONCLUSION

[60] The Agency makes the following final determination:

The Agency finds that Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which a person with a disability due to an allergy to dogs is travelling, constitutes an undue obstacle to the mobility of Mrs. Greenglass and of other persons with a dog allergy disability.
ORDER

[61] The Agency finds that Air Canada has not established that it would face undue hardship that would prevent it from providing the appropriate accommodation to persons with a dog allergy disability. Therefore, the Agency finds that Air Canada’s policy/procedure, as it relates to the carriage of dogs in the aircraft cabin in which a person with a disability due to an allergy to dogs is travelling, constitutes an undue obstacle to the mobility of Mrs. Greenglass and of other persons with a dog allergy disability.

[62] The Agency therefore orders Air Canada to develop and implement the policies and procedures necessary to provide the following appropriate accommodation and to provide the requisite training to its staff to ensure the provision of the appropriate accommodation.
With respect to dogs carried as pets

[63] On aircraft with air circulation/ventilation systems using HEPA filters or which provide 100 percent unrecirculated fresh air:
a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a dog allergy disability and pet dogs, including during boarding and deplaning and between their seat and a washroom; or,
a ban on pet dogs in the aircraft cabin in which a person with a disability as a result of their allergy to dogs is travelling.

[64] On aircraft without air circulation/ventilation systems using HEPA filters or which do not provide 100 percent unrecirculated fresh air:
a ban on pet dogs in the aircraft cabin in which a person with a disability as a result of their allergy to dogs is travelling.

[65] When advance notification of less than 48 hours is provided by persons with a dog allergy disability, a ban on pet dogs is to be provided if no person travelling with a pet dog has already booked their travel on the selected flight. If a person travelling with a pet dog has already been booked on the flight, persons with a dog allergy disability must be provided with the same flight ban accommodation within 48 hours on the next flight available on which there is no person with a pet dog already booked. If the next available flight is beyond the 48-hour period, persons with a dog allergy disability must be given priority and provided with the accommodation measures applicable when the 48-hour advance notice is given by the person with a dog allergy disability.
With respect to service dogs

[66] On aircraft with air circulation/ventilation systems using HEPA filters or which provide 100 percent unrecirculated fresh air:
a seating separation that is confirmed prior to boarding the flight and that provides a minimum of five rows between persons with a dog allergy disability and service dogs, including during boarding and deplaning and between their seat and a washroom.

[67] On aircraft without air circulation/ventilation systems using HEPA filters or which do not provide 100 percent unrecirculated fresh air:
give the booking priority to whoever of the person with a dog allergy disability and the person travelling with a service dog first completed their booking. A person with a dog allergy disability and a person travelling with a service dog will not be accepted on the same flight using an aircraft that does not have HEPA filters or which does not provide 100 percent unrecirculated fresh air.

[68] Air Canada has until September 16, 2013 to comply with this order.


Member(s)

Raymon J. Kaduck
J. Mark MacKeigan