Top Canada Court favours right to two seats for disabled passengers at no extra cost!

Dear Friends

I am thrilled to see such turnaround happening around the Globe. Though it is applicable to the domestic flights only, it is a remarkable ruling from the top court of the country.

Here are the news for your information:

regards,

Subhash Chandra Vashishth

Disabled Passengers have the right to two seats: Canadian court decision

November 20, 2008

Canada's largest airline is trying to figure out which obese and disabled passengers will be eligible for additional seats at no charge after the country's Supreme Court rejected an appeal by the airlines.

The Canadian Transportation Agency issued an order last January requiring Air Canada and other domestic airlines to make additional seats free to disabled or obese passengers who need extra room.

The airlines' appeal was rejected twice, first by the Federal Court of Appeal in May, and then by the country's highest court on Thursday.

Air Canada spokesman Peter Fitzpatrick said Monday they are developing detailed eligibility rules for free seats. The ruling Thursday applies only to domestic flights and will be implemented January 9, 2009.

"It's been basically left to the airlines to determine how they are going to comply," Fitzpatrick said. "We're working on it now."

Under the ruling, airlines cannot charge extra for an obese person who needs an additional seat or a disabled person who needs space for a wheelchair or stretcher or who must be accompanied by an attendant.

David Baker, the Toronto lawyer who fought the case on behalf of disabled passengers, said the ruling will allow more disabled people to travel. Joanne Neubauer of Victoria, one of two people whose complaints sparked the case, said the news made her feel like "an equal citizen in this country."

Neubauer who suffers from rheumatoid arthritis and uses a motorized wheelchair.

Air Canada and WestJet, Canada's second largest carrier, said they will comply with the transportation agency's order. WestJet spokesman Richard Bartem said his company may consider extending the policy to international flights.

Bus, train and ferry companies have long made arrangements for free extra seats, but the airline industry had argued it would lose too much money by doing the same.

The transportation agency rejected claims that providing extra seats would impose an "undue hardship" on airlines, saying they can afford the financial burden.

The agency estimated the cost to Air Canada at about $7 million Canadian (A$8.7 million) a year and to WestJet at about $1.5 million Canadian (A$1.9 million) a year. The agency said that amounts to about 77 cents Canadian a ticket for Air Canada and 44 cents Canadian for WestJet.

To put it another way, the agency said the cost would be 0.09 per cent of Air Canada's annual passenger revenue and 0.16 per cent of WestJet's revenue.

Top court backs free seat ruling for some disabled, obese travellers

Last Updated: Thursday, November 20, 2008 4:08 PM ETCBC News

The Supreme Court of Canada has upheld a regulatory ruling requiring airlines to offer a free extra seat to certain disabled and obese people.

In a decision released without comment Thursday, Canada's top court rejected an application by Air Canada and WestJet for permission to appeal a Canadian Transportation Agency ruling issued earlier this year.

The court's decision means airlines must offer a "one person, one fare" policy to disabled people who require room for an attendant during the flight or require extra room for a wheelchair, or for people who are clinically obese and take up more than one seat.

Bus, train and ferry companies have long agreed to such arrangements, but the airline industry has argued it would lose too much money by doing the same.

The case has wound its way through various agencies and courts for years. It was originally brought forward in 2002 by three parties:

* Victoria resident Joanne Neubauer, who has rheumatoid arthritis and requires a personal attendant, wheelchair and crutches.* Eric Norman, a man from Gander, N.L., who had a rare disease that impaired his motor skills. He has since died.* The Council of Canadians with Disabilities.

Calgary law Prof. Linda McKay-Panos, who was later granted intervener status, has been arguing for the rights of obese travellers since she was charged for 1½ seats on a 1997 Air Canada flight.

McKay-Panos argued anyone who is clinically obese has a disability and should not have to pay for more than one seat. She has polycystic ovary syndrome, an incurable condition that can lead to obesity.

McKay-Panos said Thursday she was happy with the decision, but her main concern is how the airlines will implement the new regulations.

"I think whatever they do, it has to be done with dignity and not in public and [not be] humiliating or anything like that, and not in front of people on the airplane," she said.

Spokespeople for WestJet and Air Canada said they will comply with the decision.

Questions surrounding decision

But WestJet spokesman Richard Bartrem said there are still many unanswered questions.

"Will we be putting criteria in place to determine whether somebody travels with an attendant out of necessity or out of desire?" he said. "What is morbidly obese? How are we going to be able to make that determination and implement that respectfully, and consistently and fairly?"

In 2006, the agency held public hearings on air travel costs for people with disabilities.

This past January, the CTA ruled airlines must offer a single fare to people with disabilities who require an attendant during the flight and clinically obese passengers. It gave the airlines one year to implement the policy.

WestJet and Air Canada turned to the Supreme Court after the Federal Court of Appeal rejected their bid to appeal the ruling.

Laws against Discrimination against the Disabled that apply to the disabled also apply to their carers

Dear Friends,

There is some good legal interpretation happening here. The European Union's Highest Court has ruled that Employers can be found guilty of discriminating against the parent of a disabled child under the EU equality laws.

I feel this indicates a paradigm shift in the interpretation of Equality laws and shows higher sensitivity of the Court to relate the stress of the carer as related to disability.

The European Court of Justice says laws against the discrimination of the disabled also apply to their carers. It says in a recommendation issued Thursday for a British court case that a London law firm was wrong to refuse legal secretary Sharon Coleman her previous job after she gave birth to a son with breathing problems.

Coleman claims her employers said she was lazy when she asked for time off to care for her child. She says other workers with non-disabled children received better treatment and more flexible working hours.

The news could be read from source at: http://www.iht.com/articles/ap/2008/07/17/europe/EU-EU-Work-Equality.php

Supme Court: Javed Abidi Vs. Union of India | WP(C) 326 of 1997 | Dated 17.12.1998

Court:  Supreme Court of India

Bench:  K. Venkataswami, Justice and G.B. Pattanaik, Justice

Case No.:  W.P. (C) No. 326 of 1997

Case Title:  Javed Abidi vs Union of India & Others

Date of Judgement:  17 December 1998

Acts/Rules/Orders:  

Persons with Disabilities (Equal Opportunities, Protection  of Rights and Full Participation) Act, 1995 - Sections 2, 3(2), 9, 13 and 57; Constitution of India - Articles 14 & 32

In the Supreme Court of India

W.P. (C) No. 326 of 1997

Decided On: 17.12.1998

Appellants: Javed Abidi

Vs.

Respondent: Union of India & Ors.

Hon'ble Judges: K. Venkataswami and G.B. Pattanaik, JJ.

Subject: Constitution

Order
Pattanaik, J.

1.         Shri Javed Abidi has filed the present Writ Petition under Article 32 of the Constitution seeking direction to the Union of India to implement the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, alleging inter alia that though the Act is intended to grant opportunities to the people with disabilities for their full participation and the Act has come into operation with effect from 7.2.1996 but no effective steps are being taken for implementation of the provisions of the Act. 

The petitioner himself is an orthopaedically impaired person and has incurred the disability within the meaning of Section 2(i)(v) of the Act. He appeared in person in this Court and successfully presented his case indicating several infirmities as well as callousness of the different organisations of the State in implementing the provisions of the Act. In the Writ Petition the petitioner prayed for the following reliefs :-

"(a) Direct the Indian Airlines to immediately provide for aisle chairs in every aircraft;

(b) Direct the Indian Airlines to provide ambulift in all the airports of the country;

(c) Direct the Indian Airlines to provide 50% concession to all the disabled persons as defined in Section 2(I) of the Act because to provide this concession only to visually impaired persons is discriminatory and directly violative of the fundamental rights of the other disabled, as guaranteed under Article 14 of the Constitution of India;

(d) Direct the Central Government to appoint only disabled persons defined under Section 2(I) of the Act as per the provisions of Section 3(2)(I) and not to include any other person who is not a disabled person under the Act;

(e) Direct the Union of India to immediately appoint the Chief Commissioner and Commissioners as per Section 57 of the Act;

(f) Direct the Central Government to immediately constitute the Central Executive Committee as defined under Section 9 of the Act;

(g) Direct all the States of the country to form their own State Coordination Committee as defined under Section 13 of the Act;

(h) Direct all the State Governments to immediately constitute their respective State Executive Committee for the implementation of the Act;

(i)Direct the State Government to appoint a Commissioner for their States for proper implementation of the Act in the States of the Country"

As one of the grievances of the petitioner was that the Central Government has not constituted the Central Co-ordination Committee under Section 3 of the Act and States also have not constituted the State Co-ordination Committees as required under Section 13 of the Act, this Court issued notice to all the State Governments and the Union Territories by order dated 20th October, 1997, to get responses from them. Pursuant to the aforesaid notice the Union of India through its Secretary in the Ministry of Welfare Department filed an affidavit on 30th September, 1997, indicating the steps taken by the Union Government for implementation of the provisions of the Act including the Constitution of the Central Committee under Section 3 thereof. Different States also filed their respective affidavits indicating the constitution of the State Co-ordination Committees under Section 13. In view of the constitution of the Central Co-ordination Committee as well as the State Co-ordination Committees in most of the States. 

We do not think any further direction is necessary in that regard, but, we hope and trust that the respective Committees will discharge their obligation under the Act so as to achieve the objectives for which the Act has been enacted. It may be borne in mind that the Economic and Social Commission for Asian and Pacific Region held a meeting at Beijing on 1st to 5th December, 1992, and adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Region and India is a signatory to the said Proclamation. The Act in question was passed by the Parliament which intends to provide for the following as apparent from the Statements of Objects and Reasons:

"(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;

(ii) to create barrier free environment for persons with disabilities;

(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons;

(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;

(v) to lay down strategies for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and

(vi) to make special provision for the integration of persons with disabilities into the social mainstream."

The Committees constituted by the Central Government as well as by the respective State Governments must, therefore, make earnest endeavour to achieve the objectives, as indicated above, in exercise of their powers conferred under the Act.

2.         The petitioner also made a specific grievance in the Writ Petition alleging the lack of facilities like providing aisle chair and ambulift by the Indian Airlines which according to the petitioner is a social obligation of the Airlines and the said Airlines must provide these minimum facilities to permit easy excess to the disabled persons particularly those who are orthopaedically impaired and suffer from locomotor disability. The Indian Airlines in course of the hearing of this Writ Petition indicated the steps taken by it in relation to providing of aisle chair in the aircraft and providing ambulift at different airports. Initially Indian Airlines had indicated that providing ambulift at major airports would be a costly affair but in its last affidavit filed in this Court it has been indicated that the major airports are going to be provided with ambulift and aisle chairs are now available in aircrafts to be used by disabled persons. Having considered the affidavits filed by the Indian Airlines we are satisfied that effective steps have been taken in that regard and it is not necessary for issuing any further direction on that aspect.

3.         One of the major grievances of the petitioner is that the Indian Airlines is not giving any concession to such disabled persons for their movement by air even though such concessions are being given to only blind persons, who are also disabled persons under the Act. According to Mr. Abidi, the petitioner in this case, orthopaedically handicapped persons with locomotor disability require the relief of concession for their travel by air more as it becomes an impossible task for them to travel from one corner to the other corner of the country by train and there is no justification for the airlines not to grant such concession to such people when the concession is made available to the blind people. Mr. Soli J. Sorabjee, the learned Attorney General appearing for the Indian Airlines on the other hand impressed upon the Court that the concession to the blind people was being given much prior to the commencement of the Act. 

According to Mr. Sorabjee, the learned Attorney General the economic condition of the Indian Airlines is such that it is not feasible to grant any further concession to any other category of disabled people and the Act itself postulates for providing facilities to the disabled persons within the limits of economic capacity. Detailed affidavits have been filed indicating the present economic position of the Indian Airlines. It has also been indicated in the said affidavits that the airlines is now reconsidering the question to withdraw such facilities to several group of citizens or to move the respective departments of the Government to get the re-imbursement.

    

4.        According to Mr. Sorabjee granting such concession to only disabled persons suffering from locomotor disability may be construed to be a discriminatory attitude towards them and, therefore, the Court should not issue such direction, but he does not dispute the fact that blindness is one of the disability under Section 2(i) of the Act and the Airlines is granting concession for travelling by air to those suffering from the disability of blindness. While we agree with Mr. Sorabjee, learned Attorney General that the economic capacity is a germane consideration while deciding the question as to whether all persons suffering from disability as defined under Section 2(i) of the Act should be granted concession like blind persons for travelling by air, at the same time we cannot ignore the true spirit and object with which the Act was enacted. To create barrier-free environment for persons with disability and to make special provision for the integration of persons with disabilities into the social mainstream apart from the protection of rights, provision of medical care, education, training, employment and rehabilitation are some of the prime objectives of the Act.

In this context the question that arises for consideration is whether at least persons suffering from locomotor disability to a particular extent can be granted the facility of concession while travelling by air which facility is already being given to those suffering from the disability of blindness. When we consider the different types of disabilities mentioned in Section 2(i) of the Act and examine the same in relation to the difficulties one may face by travelling by train to far off places, say from Delhi to Trivandrum, those who are suffering from locomotor disability would stand by a separate class itself because of their imobility and the restriction of the limbs. 

It may not be difficult for a person with low vision or a person with hearing impairment or mental retardation or a person suffering from leprosy to travel by train even to far off places whereas a person suffering from locomotor disability above certain percentage of the same will find enormous difficulty in travelling by train or bus. We are considering the question of such disabled persons in the context of granting them the facility of concession for travelling by air.

Having considered the affidavits filed by different parties and having considered the submissions made by Mr. Sorabjee appearing for Indian Airlines as well as Mr. Abidi, petitioner in person and bearing in mind the discomfort and harassment a person suffering from locomotor disability would face while travelling by train particularly to far off places we are inclined to issue direction to the Indian Airlines to grant them the same concession which the Airlines is giving to those suffering from blindness. But each and every person suffering from such disability would not be entitled to get the concession in question as it would depend upon the degree of disability.

We think it appropriate to direct that those suffering from the aforesaid locomotor disability to the extent of 80% and above would be entitled to the concession from the Indian Airlines for travelling by air within the country at the same rate as has been given to those suffering from blindness on their furnishing the necessary certificate from the Chief District Medical Officer to the effect that the person concerned is suffering the disability to the extent of 80%. Such District Medical Officer wherein the disabled ordinarily reside will constitute a Board with Specialist in Orthopaedic and one other Specialist whom he thinks suitable for the purpose and examine the person and would grant necessary certificate for that purpose.

We are quite conscious of the financial position of the Indian Airlines but yet we are issuing the aforesaid direction keeping in view the broad objectives of the Act, as already narrated, and keeping in view the fact that concession is already being granted by the Airlines to the persons suffering from blindness. With these directions and observations the Writ Petition is disposed of.

5.        Before we conclude the matter we cannot but thank the petitioner who appeared in person and brought this matter to the notice of the Court which resulted in acceleration of the implementation of different provisions of the Act not only by the Union Government but also by the State Governments.

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