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Case Comment - Greaves v. Air Transat
Published in the January 2009 issue of Transportation Notes - View Article
Occasionally, the End of the Line reports on cases that may still, technically, be appealed but chances of that occurring seem quite unlikely. This is one of those cases.
In mid-January, the Federal Court declined to interfere with a decision of the Canadian Human Rights Commission commenced by a passenger, Jocelyn Greaves, against Air Transat.
Ms. Greaves is a 62-year-old black woman who requires a cane to assist her with walking and does not have normal bladder and bowel control.
On October 11, 2005, Ms. Greaves was a passenger on an Air Transat flight from Toronto to London (UK). She was travelling in an aisle seat near the front of the economy class section of the aircraft. In the course of the flight, she alleged that one of the flight attendants in the economy section of the aircraft directed her to use the first class cabin lavatory facilities when Ms. Greaves indicated that she would have trouble accessing the economy class washroom. Ms. Greaves also alleged that when she attempted to use the first class facilities, she was denied access by the flight attendants working in that area — and that she was treated in a rude and discriminatory manner, causing her to lose her bladder and bowel control. It was her assertion that she was not given any assistance after the incident to deal with the effects of her incontinence.
After the incident, she wrote to Air Transat to complain about what had happened, and was, in turn, given a letter of apology and a voucher which could be credited to the cost of a future Air Transat flight. Ms. Greaves was not satisfied with this response, and, instead, demanded another $25,000 and, further, that Air Transat conduct an inquiry into the incident, develop a responsive policy within three months and cover her legal fees. Air Transat declined to settle on those terms.
She then initiated a complaint with the Canadian Human Rights Commission, attributing the alleged actions of the Air Transat flight crew to discrimination based on her age, skin colour, gender and disability.
The Commission appointed an investigator who sought submissions from both Ms. Greaves (who also submitted a report from her physician regarding the scope of her disability) and the air carrier.
In carrying out her duties, the investigator considered a to-scale seating plan of the aircraft in question, secured written evidence from two flight attendants, conducted an oral interview of another, and spoke to three passengers on the flight (two from first class, and one who sat parallel to Ms. Greaves in economy class).
The investigator noted that the evidence of the flight crew and Ms. Greaves diverged on key points, so, where appropriate, she gave particular weight to the evidence of the passengers.
In the end, the investigator found that the economy class facilities were actually closer to Ms. Greaves’ seat than were the first class facilities, and, further, that she could, in fact, gain access to the economy washrooms, despite her physical limitations.
Secondly, the investigator noted that Ms. Greaves had stated that she left her seat only to use the washroom, but the passengers’ recollections were that she also used the first class cabin to stretch, stand and get assistance from the flight crew with her drinks.
Third, the investigator accepted the passengers’ views that Ms. Greaves was treated politely by the crew.
Finally, the investigator noted that the passenger sitting parallel to Ms. Greaves did not notice any smell evidencing the alleged incontinence.
The Commission dismissed the complaint.
Ms. Greaves brought an application for a judicial review by the Federal Court of Canada—claiming that the investigation was flawed, conducted in a biased manner and came to incorrect conclusions.
Justice Teitelbaum reviewed the actions of the investigator and found that her methods were unbiased and appropriate. He particularly noted the fact that the investigator relied on the evidence of passengers where there was a difference in the testimony of the air carrier and the complainant.
Justice Teitelbaum also noted, with respect to Ms. Greaves’ complaint that the investigator did not fully appreciate the extent of Ms. Greaves’ disabilities, that the onus was on the complainant to bring this to light in a report filed by her physician.
The judicial review was denied with costs.
Greaves v. Air Transat Inc. 2009 F.C. 9