r v. NICOLE CHABOT, 2016 QCCA 584

WestJet v. Chabot 2016 QCCA 584 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N°: 500-09-025380-155 (500-06-000588-117) DATE: April 6, 2016 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A. WESTJET Appellant – Defendant / petitioner v. NICOLE CHABOT, in her capacity as tutor to her minor child X NICOLE CHABOT RESPONDENTS – Plaintiffs / respondents JUDGMENT [ 1 ] The appellant appeals from an interlocutory judgment rendered on May 26, 2015, by the Superior Court, District of Montreal (the Honourable Mr.

Justice Martin Castonguay), which dismissed its declinatory exception. [ 2 ] For the reasons of Hogue, J.A., with which Vauclair and Mainville, JJ.A. agree, THE COURT : [ 3 ] DISMISSES the appeal, with legal costs. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A. Mtre Vincent de L’Étoile Mtre François LeBel langlois kronström desjardins For the appellant Mtre David Bourgoin Mtre Benoît Gamache BGA Barristers Solicitors For the respondents Date of hearing: November 27, 2015

REASONS OF HOGUE, J.A. [ 4 ] Is the Superior Court deprived of its jurisdiction, in favour of the Canadian Transportation Agency (the “Agency”) to hear and decide a class action in which damages are claimed from an airline? [ 5 ] This is what the appellant WestJet alleges. It appeals from an interlocutory judgment rendered on May 26, 2015, by the Superior Court, [1] District of Montreal (the Honourable Mr. Justice Martin Castonguay), which dismissed its declinatory exception.

It argues that the Canada Transportation Act [2] (the “CTA”) implicitly confers upon the Agency the exclusive jurisdiction to decide any dispute relating to the mobility of persons with disabilities in the transportation network under the federal Parliament’s authority and that the Superior Court is thus deprived of the jurisdiction it would otherwise have.

GENERAL BACKGROUND [ 6 ] In 2008, at the request of Éric Norman, Joanne Neubauer, and the Council of Canadians with Disabilities (the “CCD”), the Agency made a ruling in accordance with subsection 172(2) of the CTA , declaring that Air Canada and WestJet’s pricing policies for domestic flights, which impose one fare per seat, constitute an “undue obstacle” to the mobility of persons with disabilities in the federal transportation network. [3] [ 7 ] The Agency then ordered Air Canada and WestJet to modify their current policies and procedures to institute a “one person, one fare” regime (1P1F policy) for persons with disabilities and/or those who are obese., It was henceforth no longer possible for these carriers to charge fees for the additional seat used by passengers (or their attendant) who are members of the following three groups: [4] - those persons who are required, under the terms of the carriers’ tariff to be accompanied by an attendant; - those persons who are disabled by obesity; - those other persons who require additional seating for themselves to accommodate their disability to travel by air. [ 8 ] The two airlines were given twelve months to implement this new policy. [5] [ 9 ] The Agency’s decision, however, targeted only additional fares charged on domestic flights. [6] The Agency did not make any decisions as to fares charged on international flights.

A passenger has filed a complaint, however, but the Agency recently decided that it was not appropriate in the context of processing this complaint to consider the possibility of broadening the scope of the “one person, one fare” principle to transborder and international flights. [7] [ 10 ] Following the Agency’s decision, a motion for authorization to institute a class action against Air Canada and WestJet was brought before the Superior Court by Serge Picard (and Jacqueline Picard) and by P.A., in his capacity as curator to his brother N.A. [8] Serge Picard wished to bring this action against WestJet, whereas P.A. wanted to bring it against Air Canada. [ 11 ] Relying in part on the Agency’s decision, they claimed reimbursement of all additional charges paid on domestic flights because of the illegal and discriminatory practice of both carriers, as well as compensatory and punitive damages. [9] [ 12 ] On October 3, 2011, Catherine La Rosa, J., authorized the bringing of a class action against Air Canada, but dismissed the authorization against WestJet.

She justified this dismissal of the motion concerning WestJet by the fact that Serge Picard did not have the requisite interest because there was no evidence that he was [ translation ] “disabled to such a degree as to require the services of an attendant within the intended meaning of the word”. [10] PROCEEDINGS [ 13 ] Nicole Chabot, in her capacity as tutor to her son X and in her own personal capacity (the “respondents”), therefore brings her own motion for authorization to institute a class action before the Superior Court against WestJet. [ 14 ] She seeks authorization to bring this class action on behalf of a Canada-wide group for the rates applied on domestic flights and those charged on international ones, for the period subsequent to 2005. [11] She raises basically the same arguments as those raised by Picard. [ 15 ] This motion for authorization was granted on October 29, 2013.

The judge conferred the status of representative upon her, personally and in her capacity, but limited the groups covered by the action to Quebec residents. He defined the groups as follows: [12] [ translation ] All persons with a disability or who are recognized as functionally disabled by obesity, who reside in Quebec, and who, on a flight operated by WestJet or one of its agents, have paid additional charges to WestJet or one of its agents for the seat of an attendant and/or

for a place adapted to their condition since December 5, 2005. and All natural persons in Quebec who, since December 5, 2005, have paid charges to WestJet or one of its agents for a seat operated by WestJet or one of its agents while they were acting as attendant for a person with a disability. [ 16 ] The class action was brought on February 13, 2014. [ 17 ] WestJet appeared and, on June 30, 2014, filed a motion for a declinatory exception.

It argued that the Superior Court, which would otherwise have had jurisdiction to hear this action, was implicitly deprived of this jurisdiction by the CTA , which assigned it exclusively to the Agency. [ 18 ] The judge disagreed and dismissed the motion for declinatory exception. Interpreting the CTA , he was of the view that Parliament did not intend to grant the Agency exclusive jurisdiction and thus did not intend to withdraw jurisdiction from the Superior Court. [ 19 ] It is from this judgment that WestJet appeals.

POSITION OF APPELLANT [ 20 ] WestJet makes three submissions, each in its view justifying the conclusion that the Superior Court should not hear the class action brought: (

a) Parliament, by enacting the CTA , implicitly conferred upon the Agency the exclusive jurisdiction to decide any such dispute and, therefore, implicitly withdrew this jurisdiction from the Superior Court. This appears from the wording of the CTA, in its opinion; (

b) Even if the Superior Court had jurisdiction, a fact it does not acknowledge, it would be concurrent with that of the Agency, and the Superior Court should decline jurisdiction in favour of the Agency in light of the latter’s expertise; (

c) If the Superior Court does have residual jurisdiction allowing it to award damages, it should not be exercised before the Agency has decided whether there is an obstacle to the mobility of persons with disabilities, which it has done only with respect to the charges imposed by WestJet on domestic flights. ANALYSIS [ 21 ] First, the nature and scope of the class action brought by the respondents must be understood.

Is it an action to regulate WestJet by imposing a fare, or is it an action based on the Superior Court’s jurisdiction to adjudicate? [ 22 ] The distinction is an important one when analyzing the jurisdiction of the Superior Court as opposed to that of the Agency, because the CTA awards two separate jurisdictions to the Agency to deal with the mobility of persons with a disability, one to regulate and the other to adjudicate:

(1) L’Office peut prendre des règlements afin d’éliminer tous obstacles abusifs, dans le réseau de transport assujetti à la compétence législative du Parlement, aux possibilités de déplacement des personnes ayant une déficience et peut notamment, à cette occasion, régir :

a) la conception et la construction des moyens de transport ainsi que des installations et locaux connexes — y compris les commodités et l’équipement qui s’y trouvent — , leur modification ou la signalisation dans ceux-ci ou leurs environs;

b) la formation du personnel des transporteurs ou de celui employé dans ces installations et locaux;

c) toute mesure concernant les tarifs, taux, prix, frais et autres conditions de transport applicables au transport et aux services connexes offerts aux personnes ayant une déficience;

d) la communication d’information à ces personnes. 170

(1) The Agency may make regulations for the purpose of eliminating undue obstacles in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting : (

a) the design, construction or modification of , and the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them; (

b) the training of personnel employed at or in those facilities or premises or by carriers; (

c) tariffs, rates, fares, charges and terms and conditions of carriage applicable in respect of the transportation of persons with disabilities or incidental services; and (

d) the communication of information to persons with disabilities. [Emphasis added.] 172

(1) Même en l’absence de disposition réglementaire applicable, l’Office peut, sur demande, enquêter sur toute question relative à l’un des domaines visés au paragraphe 170(1) pour déterminer s’il existe un obstacle abusif aux possibilités de déplacement des personnes ayant une déficience.

(2) L’Office rend une décision négative à l’issue de son enquête s’il est convaincu de la conformité du service du transporteur aux dispositions réglementaires applicables en l’occurrence.

(3) En cas de décision positive, l’Office peut exiger la prise de mesures correctives indiquées ou le versement d’une indemnité destinée à couvrir les frais supportés par une personne ayant une déficience en raison de l’obstacle en cause, ou les deux. 172

(1) The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

(2) Where the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.

(3) On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.

[ 23 ] The Superior Court does not have the jurisdiction to regulate means of transportation in Canada, including the direct or indirect imposition of the type of regulations contemplated in subsection 170(1) of the CTA for the mobility of persons with disabilities. [ 24 ] In the Canadian constitutional framework, while judicial and legislative functions are not necessarily officially distinct from each other, [13] the fact remains that a court of original general jurisdiction such as the Superior Court cannot take on a legislative or regulatory power that does not fall within its inherent powers without a legislative mandate to do so.

The judicial function therefore generally relies on a pre-existing legislative framework and generally consists in settling particular disputes by applying pre-existing legal rules. [14] Thus, in the absence of an enabling statutory provision, the judicial function of the Superior Court does not include the jurisdiction to impose a regulatory framework governing economic activities such as airline rates. [ 25 ] Thus, insofar as the purpose or effect of the class action brought by the respondents is to regulate WestJet’s rates, the Superior Court does not have jurisdiction.

If, however, the purpose or effect of the action instead calls on its adjudicative powers, then the question is whether this jurisdiction has been withdrawn from the Superior Court by virtue of the adjudication powers conferred upon the Agency under

section 172 of the CTA . [ 26 ] What is the case here? [ 27 ] The motion to institute proceedings certainly contains some ambiguity regarding what it asks of the Superior Court. The respondents raise many of WestJet’s pricing policies and the pricing regulation of the CTA in support of the action. [ 28 ] It is therefore largely WestJet’s pricing policy that is at issue in this dispute, rather than the failure to accommodate those with disabilities by other means.

Paragraph 22 of the motion to institute proceedings states that WestJet [ translation ] “did not offer any rate reduction for an attendant on these flights and its policy was that each passenger, whether an attendant or not, had to pay the ticket price to board”. It is therefore the fact that the pricing policy did not offer a rebate that is at the heart of the class action. The pricing policy falls exclusively to the Agency.

While the Agency may make regulations pursuant to subsection 170(1) of the CTA to govern the rates and conditions in respect of the mobility of persons with disabilities to fix systemic accessibility issues, the courts of original general jurisdiction cannot. [ 29 ] On the other hand, the conclusions of the motion to institute proceedings call upon the adjudicative powers of the Superior Court and seek mainly (if not exclusively) compensatory, not regulatory remedies: [ translation ] CONDEMN the defendant to pay the plaintiffs an amount equivalent to the fares paid for an attendant to board, with interest at the legal rate and the additional indemnity under

article 1619 of the Civil Code of Québec , from the date of service of the motion for authorization; CONDEMN the defendant to pay the members who were victim of the alleged discrimination an amount to be determined in moral damages, with interest at the legal rate and the additional indemnity under

article 1619 of the Civil Code of Québec , from the date of service of the motion for authorization; CONDEMN the defendant to pay the plaintiffs an overall amount to be determined in punitive damages, with interest at the legal rate and the additional indemnity under

article 1619 of the Civil Code of Québec , from the date of service of the motion for authorization; ORDER the collective recovery of the compensatory and punitive damages; ORDER that the moral damages for hardship, trouble, and inconvenience be the object of individual claims according to the requirements of articles 1037 to 1040 of the Code of Civil Procedure ; CONDEMN the defendant to any other relevant remedy deemed just and reasonable; … [ 30 ] A pragmatic and functional analysis of the grounds of the present class action leads to the conclusion that this proceeding is based primarily on the powers of adjudication of the Superior Court, rather than on the regulatory powers of the Agency set out under subsection 170(1) of the CTA .

While it does call on notions of rates, the action in essence does not seek to regulate WestJet and its rates but instead to obtain an indemnity to compensate for the lack of appropriate corrective measures to alleviate obstacles to the mobility of persons with disabilities. [ 31 ] This action, adjudicative in nature, is based on a pre-existing legislative framework, namely the elements of the National Transportation Policy set out in paragraph 5(

c) CTA and sections 2 , 3 , and 5 of the Canadian Human Rights Act . [ 32 ] The question is therefore whether Parliament withdrew adjudicative powers from the Superior Court in favour of the Agency’s adjudicative powers under

section 172 CTA . [ 33 ] This is the question that must be answered first because, if it is the case, there is no need to consider the other two grounds, which are merely alternative arguments. Can the adjudicative powers of the Superior Court be withdrawn by a statute that implicitly confers these powers on a specialized tribunal, the Agency in this case? [ 34 ] WestJet does not dispute that the Superior Court, which is the court of original general jurisdiction in Quebec, has a general, inherent and residual jurisdiction that is constitutionally protected. [15] This jurisdiction allows it to validly hear any case that is not

assigned to the exclusive jurisdiction of another court or specialized tribunal. The respondents do not dispute that this jurisdiction may belimited by the legislator and entrusted to another tribunal in certain circumstances. [35]

Article 31 C.C.P., C.Q.L.R., c. C-25 (now replaced by

article 33 C.Q.L.R. c. C-25.01), recognizes this clearly. Its wording,however, requires a “specific” provision in the statute assigning this same jurisdiction exclusively to another tribunal for the SuperiorCourt’s jurisdiction to be thus limited: 31. La Cour supérieure est le tribunal de droitcommun; elle connaît en première instance detoute demande qu’une disposition formelle de laloi n’a pas attribuée exclusivement à un autretribunal. 31.

The Superior Court is the court of originalgeneral jurisdiction; it hears in first instanceevery suit not assigned exclusively to anothercourt by a specific provision of law. [36] While recognizing that the CTA does not expressly confer upon the Agency adjudicative powers in these matters, WestJetargues that it does so implicitly. It suggests that a close reading of the CTA justifies a conclusion that Parliament intended that only theAgency should rule on any dispute relating to the mobility of persons with disabilities in the federal transportation network.

This implicitaward of exclusive adjudicative powers to the Agency is, in its view, sufficiently specific to find that the requirements under

article 31C.C.P. have been met. [37] But is this so? [38] Even before it was codified under

article 31 C.C. P., the principle was stated in Fortier v. Longchamp,[16] rendered in 1942 bythe Supreme Court. In that case, the Court writes that the main issue in dispute is to determine [translation] “whether it is the SuperiorCourt or the Public Service Commission that has jurisdiction”.[17] It further states:[18] [translation] In the province of Quebec, the Superior Court is the court of original general jurisdiction, authorized to hear any case that is not assignedto the exclusive jurisdiction of other courts (Southern Canada Power Company Limited v. Mercure [

(1940) Q.R. 70 K.B. 353, at 355.]).It is therefore the ordinary and proper court before which an action such as the appellant’s must be brought, unless a special statute hasdecided otherwise. [Emphasis added.] [39] After

article 31 C.C.P. was codified in 1965, this same principle was asserted by the Court in a short judgment stating that thelimit placed on the Superior Court’s jurisdiction had to be express and specific:[19] [translation] Considering that unless the jurisdiction of the courts of original general jurisdiction is specifically and expressly withdrawn byParliament, we must assume that it remains with those courts. [40] A few years later, the Court rendered Colleret v.

Gingras (estate of),[20] in which it reiterated this principle while emphasizingthe requirement that a limitation placed on the Superior Court’s jurisdiction be expressed in a specific statutory provision and theprinciple that such provisions should be interpreted narrowly:[21] [translation] Regarding jurisdiction in first instance,

article 31 C.C.P. states the general rule. The Superior Court is the court of original generaljurisdiction. For it to lose its jurisdiction, two conditions must be met: (

a) a specific provision of the law; (

b) exclusive assignation to another court. Moreover, it appears from the above that the provisions limiting the general jurisdiction of the Superior Court are exceptional provisionsthat should consequently be interpreted narrowly; in case of doubt, the rule applies. [Emphasis added.] [41] These basic conditions are reasserted by the Supreme Court in 1998 in Ordon Estate v.

Grail, which adds that theserequirements apply whether the law applicable to the case the court is hearing is federal, provincial or constitutional:[22] It is well settled, and the defendants do not dispute, that as a general rule provincial superior courts have plenary and inherent jurisdictionto hear and decide all cases that come before them, regardless of whether the law applicable to a particular case is provincial, federal orconstitutional: Valin v. Langlois (1879), 1879 CanLII 29 (SCC), 3 S.C.R. 1, at pp. 19-20; Ontario (Attorney General) v.

PembinaExploration Canada Ltd., (SCC), [1989] 1 S.C.R. 206, at p. 217; Canada (Human Rights Commission) v. CanadianLiberty Net, (SCC), [1998] 1 S.C.R. 626, at paras. 26 to 32. This general rule is subject to important exceptions. In particular with reference to these appeals, Parliament may, within constitutionallimits, derogate from the jurisdiction of the provincial courts by conferring jurisdiction upon federal courts constituted by statutepursuant to s. 101 of the Constitution Act, 1867. ... .

As a statutory court, the Federal Court of Canada has no jurisdiction except that assigned to it by statute. In light of the inherent generaljurisdiction of the provincial superior courts, Parliament must use express statutory language where it intends to assign jurisdiction to theFederal Court. In particular, it is well established that the complete ouster of jurisdiction from the provincial superior courts in favour ofvesting exclusive jurisdiction in a statutory court (rather than simply concurrent jurisdiction with the superior courts) requires clear andexplicit statutory wording to this effect.

This latter principle finds early expression in the judgment in Peacock v. Bell (1677), 1 Wms.Saund. 73, 85 E.R. 84, at pp. 87-88. And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which speciallyappears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is soexpressly alleged. This basic principle continues to be applied up to the present day: see Albon v. Pyke (1842), 4 Man. & G. 421, 134 E.R. 172, at p. 174;Board v.

Board, (UK JCPC), [1919] A.C. 956 (P.C.), at pp. 962-63; Re Minister of Social Welfare and Rehabilitationand Dube (1963), (SK CA), 39 D.L.R. (2d) 302 (Sask. C.A.), at p. 307; Canada (Human Rights Commission) v.Canadian Liberty Net, supra, at paras. 29-32; P.-A. Côté, The

Interpretation of Legislation in Canada (2nd ed. 1990), at pp. 477 to 481. [Emphasis added.] [42] More recently, this Court has rendered several judgments justifying a conclusion that this requirement still continues to beinterpreted as rigorously. The following passages are eloquent:[23] [translation] Although they need not be repeated, there are many reasons of principle to leave it to the specialized courts to decide first the questionsover which — by the express intention of Parliament — they possess exclusive jurisdiction. [Emphasis added.] [43] Acier Leroux Inc. v. Tremblay:[24] With the exception of

section 66.2, which is in

Part VII, the provisions of the Competition Act to which Mr. Tremblay has referred in hisproceeding are part of the Competition Tribunal's jurisdiction as they are found within

Part VIII of that Act. But is that enough to holdthat the Superior Court lacks jurisdiction? I do not believe that Parliament could have so intended. First, the language used in section 8(1) to grant jurisdiction, which is the only provision in either statute dealing with jurisdiction, is notcast in terms that would suggest that the jurisdiction is an exclusive one …. … Accordingly, this argument of Acier Leroux also fails, with the result that I am of the opinion that Mr.

Tremblay's proceeding wasproperly initiated in the Superior Court. [Emphasis added; citations omitted.] [44] Association provinciale des constructeurs d’habitations du Québec inc. v.

Société d’habitation et de développement deMontréal:[25] [translation] The Superior Court, by exercising the discretionary power it possesses in such cases, may refuse to decide the declaratory action or theaction in nullity when its purpose is to circumvent or stifle the proceeding that the legislator has expressly assigned to the exclusivejurisdiction of a specialized body with a view to settling the issue raised. [Emphasis added.] [45] Case law does not appear to have tempered the condition under

article 31 C.C.P., and the requirement thereunder that exclusiveadjudicative powers assigned to a statutory tribunal must be so assigned by a specific provision still applies. [46] The trial judge, however, appears to have accepted the submission that exclusive jurisdiction may be implicitly assigned whenhe wrote:[26] [translation] Authors and case law also teach us that exclusive jurisdiction may be implicitly assigned to an administrative tribunal depending on thecontext of the statute in question. [Emphasis added.] [47] He supported his assertion with the remarks of Professor Garant.

A careful reading of these remarks, however, leads me to findthat they do not support the appellant’s position. When Professor Garant claims that a provision may implicitly confer exclusivejurisdiction upon an administrative tribunal, he refers to a provision that obliges the parties to a dispute to submit that dispute to thespecialized tribunal in question:[27] [translation]

More recently, the Court of Appeal clearly narrowed the scope of Zarolega and Bertho and recognized the jurisdiction of the Superior Court because there is nothing in the regulation indicating that the arbitration process is mandatory. The legislator making it mandatory for the lower court to hear and settle a dispute would be a specific assignation of exclusive jurisdiction .

In any event, it is necessary to consider whether the legislative intent was to entrust the outcome of the dispute on a particular matter to the lower court. [Emphasis added.] [ 48 ] By making it mandatory for the parties to bring the dispute before a specific court, the legislator clearly excludes any other court that would otherwise have had jurisdiction. It is, in my opinion, a specific and express provision, within the meaning of

article 31 C .C.P ., which cannot be interpreted otherwise than as conferring exclusive jurisdiction. [ 49 ] WestJet maintains, however, that exclusive adjudicative powers may be implicitly conferred upon an administrative tribunal even where there is no such provision. [ 50 ] It refers to Cuddy Chicks Ltd. v. Ontario , [28] Weber v. Ontario Hydro , [29] Québec (Commission des droits de la personne et des droits de la jeunesse) v. Québec (Procureur général) , [30] Canada (Chambre des communes) v. Vaid [31] and Vaughan v.

Canada [32] in support of its submissions. [ 51 ] None of these judgments, in my opinion, justify the argument that it has put forth. [ 52 ] The appellant’s proposition must be distinguished from the situation that often occurs where courts are called upon to interpret a statute to determine whether a given dispute falls under the jurisdiction of a specialized tribunal to which an exclusive jurisdiction was clearly given. [ 53 ] Indeed, legislative provisions conferring exclusive jurisdiction are rarely worded so clearly and specifically as to avoid any debate regarding what is or is not included in the scope of the jurisdiction assigned to the specialized tribunal.

The question that often arises is therefore not whether the law confers exclusive jurisdiction, but rather whether the exclusive jurisdiction expressly and specifically assigned by the statute covers the dispute between the parties. In other words, the debates that often arise concern the scope of the exclusive jurisdiction assigned to the specialized tribunal. [ 54 ] In such situations, there is nothing to prevent a solution being sought by interpreting the law to discover an implicit legislative intent.

Such an approach presupposes the existence of a provision conferring exclusive jurisdiction, which must be specific and express. [ 55 ] The judgments in Weber , [33] Commission des droits de la personne et des droits de la jeunesse , [34] and Vaid [35] on which the appellant relies, are examples of this approach. In each case, a legislative provision specifically assigned exclusive adjudicative powers to a specialized tribunal, or in those cases an arbitrator, either expressly or by making it mandatory for the action to be brought before the arbitrator, which amounts to the same thing.

The issue was whether the dispute was covered by the wording used by Parliament or the legislature to define the scope of the jurisdiction assigned exclusively and expressly to the arbitrator. [ 56 ] That situation also occurred in many other cases in contexts other than labour relations. [36] [ 57 ] Recently, this Court was asked to decide a similar issue in Immeubles Carosielli inc. v.

Club Optimiste Montréal Colombo inc. [37] After having noted that the Act respecting the Régie des alcools, des Courses et des Jeux [38] had a provision assigning exclusive jurisdiction to the Régie des alcools, des courses et des jeux, the Court considered whether the action brought by the appellant fell under that exclusive jurisdiction. On that occasion, my colleague Kasirer, J.A. wrote: [39] [ translation ] With respect, I find that the judge should have personally verified whether a specific provision of the law assigned exclusive jurisdiction over this dispute to the Régie.

In my view, it was ill-advised to refer the case to the Régie for the latter to make this verification instead of the Superior Court. If such a provision assigning jurisdiction did not exist — and the judge clearly indicates in paragraph [46] of her reasons that counsel for the parties have failed to identify one — it should have been immediately found that the power over this dispute fell under the inherent and residual jurisdiction of the Superior Court as the “court of original general jurisdiction / tribunal de droit commun”.

In other words, it was up to the Superior Court to answer this question categorically. [Emphasis added; citations omitted.] [ 58 ]

Section 172 of the CTA , supra , therefore does not deprive the Superior Court of its adjudicative powers because it may be called upon to interpret the CTA in the context of the class action. This provision allows the Agency to rule on some complaints within a specific legislative framework without stripping the Superior Court’s jurisdiction over similar proceedings based on contractual liability. The possibility of the Superior Court being asked to rule on certain provisions of the CTA does not mean that we must conclude that Parliament withdrew its adjudicative powers. [40] That is certainly neither the effect nor the scope of

section 172 of the CTA . [ 59 ] Therefore, it would not be appropriate to take the interpretive approach suggested by the appellant. The CTA does not contain any specific and express provision assigning exclusive jurisdiction over disputes such as this one to the Agency, and this is sufficient to find that the Superior Court has retained its jurisdiction to hear and ultimately decide the class action.

Should the Superior Court nevertheless have declined jurisdiction in favour of the Agency considering the latter’s expertise? [ 60 ] In the alternative, the appellant submits that, in the event of concurrent jurisdiction, the Superior Court should decline jurisdiction in favour of the Agency in light of the latter’s expertise and Parliament’s intention to confer the task of deciding such questions upon it.

Declining jurisdiction would also be justified by (1) the prior analysis that the Agency must perform to determine whether or not there is an undue obstacle and (2) the complaint that (was) pending before the Agency to determine whether WestJet’s rate on international flights is also an undue obstacle to the mobility of persons with disabilities.

[ 61 ] While the Superior Court may in some exceptional circumstances decide to decline jurisdiction in favour of a specialized tribunal, I am of the opinion that it should not do so here. [ 62 ] The essence of the class action in this case is an action in contractual liability for breach of an obligation under the Civil Code of Québec and the Canadian Human Rights Act ( CHRA ), [41] since the respondents rely on the appellant’s pricing policy to criticize it for its discriminatory practice, which they qualify as [ translation ] “abusive and wrong”.

The actual result sought by the respondents is to obtain damages to compensate for the harm allegedly caused by the appellant’s faults. The monetary compensation is claimed under three heads: [42]

(1) Full reimbursement of the ticket price to board the WestJet plane, an amount subject to a later assessment.

(2) An amount of $1,000.00 in damages for hardship, trouble, and inconvenience and loss of enjoyment of life;

(3) An amount of $500 in punitive damages because of the unlawful and careless interference with rights protected under the Canadian Human Rights Act ,

section 5 in particular. [ 63 ] There is no provision in the CTA addressing damages explicitly. The trial judge nevertheless considered that they could be [ translation ] “likened to ‘relief’ within the meaning of the CTA”. Indeed,

section 27, which deals with the powers of the Agency, states that in addition to making “orders”, the Agency may, if just and proper, grant “any further or other relief”. [ 64 ] Subsection 172(3), which applies specifically to matters of mobility for persons with disabilities, states that the Agency may require (1) “the taking of appropriate corrective measures” and/or (2) “that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle”. [ 65 ] Thus, in its 2008 decision, in addition to making an “order”, the Agency granted “further relief” consisting in the imposition of an obligation to “take appropriate corrective measures”, that is, to modify the current policies and procedures to implement the 1P1F policy. [43] [ 66 ] Thus, the Agency did not impose the payment of an indemnity, even though it could have.

This relief does not appear to have been sought by the plaintiffs.

Had it been awarded, the fact remains that the scope of this indemnity would have been limited, as it can cover only “any expense incurred by a person with a disability arising out of the undue obstacle”. [44] [ 67 ] Under its ordinary meaning, an expense is disbursements or costs generated by something. [45] The CTA deals with expenses when it defines the term “tariff”: “schedule of fares, rates, charges , and terms and conditions of carriage applicable to the provision of an air service and other incidental services”, [46] which is consistent with the ordinary meaning.

The indemnity the Agency could have awarded in this case was therefore limited to the “charges”, that is the overall expenses incurred by the purchase of boarding passes that correspond only to the first head of damage sought by the respondents. [47] [ 68 ] Could it also have based itself on

section 27 of the CTA to award moral damages (trouble and inconvenience) and punitive damages, like those claimed by the respondents in the class action? [ 69 ] In a decision from 2005, the Agency itself found that it could not do so, and we must take this into account. After having determined that there was an undue obstacle to the mobility of the complainant, who was disabled, it declared: [48] [68] With respect to Mr.

Breno’s claim for compensation for mental anguish and suffering, the CTA does not contain any provision that would empower the Agency to award damages arising from mental anguish or suffering . … [70] With respect to the request for reimbursement submitted by Mr. Breno, the Agency notes that the only expenses that can be reimbursed pursuant to subsection 172(3) CTA are those incurred by a person with a disability arising out of an undue obstacle. Upon reviewing Mr.

Breno’s request for reimbursement, the Agency has determined that the expenses he incurred as a result of the denied boarding (i.e., the telephone call to Italy, the parking expense, and the caregiver fee) meet the requirements of the CTA and that, as such, they are eligible as they were incurred as a direct consequence of the denied boarding which the Agency determined was an undue obstacle . [Emphasis added.] [ 70 ] This

interpretation of the CTA by the Agency is consistent with the mission it has been given. The objective of

Part V of the CTA is mainly to “eliminate undue obstacles to the mobility of persons with disabilities from the federal transportation network”.

It is intended to “eliminate” [49] these obstacles rather than compensate harm. [ 71 ] In these circumstances, the analysis need not be continued to determine whether the Superior Court should have declined jurisdiction in the event of concurrent jurisdictions since, in any event, it would be inadvisable for the Superior Court to decline jurisdiction in favour of the Agency when the latter considers that it does not have jurisdiction to award part of the respondents’ claim.

Can the Superior Court award damages with respect to the fares imposed on international flights before the question is even brought before the Agency, who would decide whether there was an obstacle to the mobility of some persons? [ 72 ] The class action brought by the respondents is based on contractual liability. To succeed, the respondents will have to show that the appellant committed a contractual fault, since they opted for a contractual remedy.

The fault will perhaps arise from non-compliance with a provision of the CTA , but also from obligations imposed by the Civil Code of Québec and the Canadian Human Rights Act . The notion of fault in the circumstances is not the same as the notion of obstacle to mobility under the CTA , although the respondents also rely on the latter notion. Although I do not decide this point here, it is possible that the notion of fault includes that of obstacle, but it may

certainly include other acts, actions, or instruments used or adopted by the appellant. [ 73 ] The objective pursued by the CTA in conferring upon the Agency the power to identify whether there are obstacles to mobility and to offer relief is different from the power of the Superior Court to determine whether a fault was committed and, if so, to award damages necessary to compensate for the prejudice this fault may have caused.

The aim of each of these exercises is not the same. [ 74 ] There is no reason for the Superior Court to suspend its analysis to let the Agency decide on the existence of undue obstacles to mobility in the international air transportation network.

It will proceed itself with a determination of whether the appellant committed a contractual fault according to the rules applicable to an action in liability. [ 75 ] That being the case, the Superior Court will be able to render a single judgment and, as the case may be, grant full relief for the harm suffered by several persons. [ 76 ] I would therefore dismiss the appeal, with legal costs. MARIE-JOSÉE HOGUE, J.A.