The April 29 decision, WestJet v. Gauthier, 2025 BCCA 134, considered the Canadian Transportation Agency’s 2008 decision prohibiting WestJet and Air Canada from charging additional fares for extra seating or space required on domestic flights to accommodate those with certain disabilities.
The agency concluded that “per-seat pricing for domestic flights imposed undue obstacles to the mobility of people with disabilities.” WestJet had changed its domestic tariffs to incorporate one person, one-fare policies. This, however, did not extend to international travel.
Carriers were not prohibited from charging for extra seating to accommodate disabilities “for the purpose of a transportation service between Canada and a foreign country.” As such, WestJet continues to charge per-seat fares for international travel, including the domestic segments of international itineraries. It incorporates its international tariffs into its standard-form contracts with passengers.
In 2020, the agency passed the AT Regulation, providing that a carrier is “prohibited from charging for the services it must provide to persons with disabilities, except for additional seating” respective of flights between Canada and a foreign country.
The plaintiffs who brought the class action against WestJet and Air Canada are wheelchair users who need extra space for accommodation. The proposed class is defined as all persons in Canada except Quebec who paid or must pay additional fares for extra seating or space that they require due to their disabilities on international flights.
The action asserts that the contracts for carriage of class members contravened provincial consumer protection legislation, and are unconscionable, void and unenforceable at common law. Relief included a declaration that WestJet was unjustly enriched, rescission of any contract requiring payment of the additional fares, recovery of paid additional fares, damages and injunctive relief.
In its appeal, WestJet argued that the lower court had no jurisdiction because this was a discrimination claim “that depends for its legitimation” on the Canada Transportation Act, the Canadian Human Rights Act or the public policy expressed therein. It also said the claim is bound to fail because the regulation permitted per-seat fare charging for international travel, “which practice is neither unconscionable nor subject to provincial consumer protection legislation, based on federal paramountcy.”
Justice Gail Dickson did not find that the claim was based on a right arising out of these acts or public policy. The plaintiffs did not seek remedies under the acts, the pleadings were based on an “independent common law right to have an unconscionable contract set aside and on equitable principles of unjust enrichment.”
The B.C. Supreme Court has the jurisdiction to adjudicate such claims. The right to have a contract set aside based on unconscionability, pursuant to equitable and restitutionary principles, is common law.
Justice Dickson found the plaintiffs did not seek “to enforce a right to extra seating to accommodate disabilities free of charge, pursuant to the provisions or underlying policy of human rights legislation,” nor to advance the new common law tort of discrimination.
She went on to find that the plaintiffs pleaded material facts to support the unconscionability doctrine in the “inequality of bargaining power stemming from the claimant’s weakness or vulnerability and an improvident transaction,” noting they were the weaker party as their only options are either to pay the extra fare or not travel by air.
They alleged this makes them unduly disadvantaged as WestJet “effectively charges them a ‘premium’ that makes it ‘more difficult and sometimes cost prohibitive’ to fly, causes them ‘economic distress,’ exacerbates the disadvantages they face, and is unfair.”
The court also did not find that the regulatory scheme “ousts the jurisdiction of the courts to adjudicate the respondents’ common law cause of action, expressly or by necessary implication.” Neither of the acts included an exclusive jurisdiction clause.
There exists a presumption that Parliament did not intend to abrogate common law entitlements. There was also nothing in the scheme suggesting a legislative intention “to deprive plaintiffs of access to the courts they would otherwise enjoy.”
Further, the regulation did not positively entitle airlines to charge per-seat fares in this context, and regardless of existing common law rules and principles. Not prohibiting airlines from charging per-seat fares internationally was not the same “as an outright, statutorily-specified permission.”
The court found it was arguable that this leaves airlines unregulated on the matter of per-seat pricing for international travel, but this “does not confer upon them an unbounded entitlement” to charge disabled individuals such fares, nor did the agency ever state such.
The agency did state, however, that “one-fare requirement ‘only applies to domestic travel … due to the need for further analysis and consultations at the international level.’” If the entitlement to charge existed, it “would be inconsistent with the object of the Canada Transportation Act, the intention of Parliament, and the Agency’s enabling provision.”
Justice Dickson said it was arguable that WestJet’s interpretation of the regulation “is inconsistent with the ameliorative purpose of the legislation, which is the removal of barriers to the mobility of persons with disabilities.”
She noted that the purpose of the Act “includes the protection of the right of persons with disabilities to an accessible federal transportation system and the removal of barriers to their mobility.”
The plaintiff’s arguments would not frustrate that purpose and allow harmonious interpretation of provincial and federal legislation, the court found. The paramountcy doctrine would not apply.
The appeal was dismissed. Justices Lauri Ann Fenlon and Janet Winteringham agreed.
Counsel for the appellant were Kathryn McGoldrick and Michael Dery of Alexander Holburn Beaudin + Lang LLP.
Counsel for the respondents were David Jones, Rebecca Coad and Briana Leibel of CFM Lawyers LLP.
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