APPEAL ALLOWED IN PART

Delta Air Lines Inc. v. Lukács, 2018 SCC 2 – Administrative law — Boards and tribunals — Canadian Transportation Agency

On appeal from a judgment of the Federal Court of Appeal (2016 FCA 220) setting aside a decision of the Canadian Transportation Agency (No. 425-C-A-2014).

L filed a complaint with the Canadian Transportation Agency alleging that Delta Air Lines’ practices in relation to the transportation of obese passengers are discriminatory and contrary to s. 111(2) of the federal Air Transportation Regulations. The Agency dismissed the complaint on the basis that L failed to meet the tests for private interest standing and public interest standing as developed by and for courts of civil jurisdiction. It found L lacked private interest standing because he was not himself obese, and so could not claim to be aggrieved or affected or to have some other sufficient interest. It also determined that L lacked public interest standing because his complaint did not challenge the constitutionality of legislation or the illegal exercise of an administrative authority. The Federal Court of Appeal allowed L’s appeal and held that a strict application of the law of standing as applied in courts was inconsistent with the Agency’s enabling legislation. The court directed that the matter be returned to the Agency to determine, otherwise than on the basis of standing, whether it will inquire into, hear and decide L’s complaint.

Held (6-3): The appeal should be allowed in part. The matter is remitted to the Agency to reconsider the matter in whole, whether on the basis of standing or otherwise.

Per McLachlin C.J. and Wagner, Gascon, Côté, Brown and Rowe JJ.:

The Canada Transportation Act bestows broad discretion on the Agency to hear and determine complaints. In this case, the Agency did not reasonably exercise its discretion to dismiss L’s complaint. A decision is reasonable if it is justifiable, transparent and intelligible, and falls within a range of possible, acceptable outcomes. The Agency’s decision that L lacked standing does not satisfy these requirements for two reasons. First, the Agency presumed public interest standing is available and then applied a test that can never be met. Any valid complaint against an air carrier would impugn the terms and conditions established by a private company. Such a complaint can never, by its very nature, be a challenge to the constitutionality of legislation or the illegality of administrative action. The imposition of a test that can never be met could not be what Parliament intended when it conferred a broad discretion on this administrative body to decide whether to hear complaints. The Agency’s application of the test is also inconsistent with the rationale underlying public interest standing, which is for the court to use its discretion, where appropriate, to allow more plaintiffs through the door. The Agency did not maintain a flexible approach to this question and in so doing unreasonably fettered its discretion.

Second, the total denial of public interest standing is inconsistent with a reasonable interpretation of the Agency’s legislative scheme. Applying the tests for private and public interest standing in the way the Agency did would preclude any public interest group or representative group from ever having standing before the Agency, regardless of the content of its complaint. In effect, only a person who is herself targeted by the impugned policy could bring a complaint. This is contrary to the scheme of the Act. Parliament has seen fit to grant the Agency broad remedial authority and to allow the Agency to act to correct discriminatory terms and conditions before passengers actually experience harm. To refuse a complaint based solely on the identity of the group bringing it prevents the Agency from hearing potentially highly relevant complaints, and hinders its ability to fulfill the statutory scheme’s objective.

While a reviewing court may supplement the reasons given in support of an administrative decision, it cannot ignore or replace the reasons actually provided. This is not a case where merely supplementing the reasons can render the decision reasonable. The Agency clearly stated a test for public interest standing and applied that test. The Agency could have adapted the test so that the complainants under its legislative scheme could actually meet it. It could also have exercised its discretion without any reference to standing at all. But it did neither of these things and the reviewing court must not do them in the Agency’s place.

The Court of Appeal should not have held that standing rules could not be considered by the Agency in its reconsideration of the matter. The better approach is to send the matter back to the Agency for reconsideration in its entirety. Deference requires that the Agency determines for itself how to use its discretion, provided it does so reasonably.

Per Abella, Moldaver and Karakatsanis JJ. (dissenting):

There is nothing in the Agency’s mandate that circumscribes its ability to determine how it will decide what cases to hear. Parliament has given the Agency wide discretion to choose, according to its own institutional constraints and demands, how it will promote its overall mandate to regulate and adjudicate national transportation issues. The Agency’s power to process and resolve complaints is framed in discretionary language, giving the Agency the authority to make its own rules about how it carries on its work, as well as the manner of, and procedures for, dealing with matters before the Agency. In this case, the Agency developed its standing rules in full accordance with its legislative mandate. There is no basis for interfering with them.

Standing rules exist to enable a court or tribunal to economize and prioritize its resources, and ensure that it benefits from contending points of view that are advanced by those best placed to advance them. The Agency is entitled to apply a gatekeeping or screening mechanism which enables it to balance, in a transparent and effective manner, the Agency’s various competing interests and demands, such as access and resources.

Tribunals are not required to follow the same procedures courts use, but when a tribunal like the Agency chooses to apply and exercise its broad legislative mandate by borrowing an approach to standing long sanctioned by the courts as an effective and principled way to determine which cases it will hear, reviewing courts should not interfere merely because the court might have applied the mandate differently. Where, as here, the adopted standing procedures flow from the same concerns and rationales as those relied on by courts, there is no reason for a tribunal to be immunized from access to a procedure courts have endorsed. Access to justice demands that both courts and tribunals be encouraged to develop screening methods to ensure that access to justice will be available to those who need it most in a timely way. The fact that a tribunal’s governing legislation has a public interest dimension does not preclude it from adopting similar rules of standing to those used by the courts.

The Agency’s decision to deny L’s complaint on the basis that he lacked standing was reasonable in the circumstances. L brought a complaint with no underlying facts, no representative claimants and no argument. His complaint is purely theoretical, his interest in the issues is academic, and the proposed suit does not constitute an effective and reasonable means of bringing the issue before the Agency. It is therefore unnecessary to remit the matter back to the Agency.

Reasons for judgment: McLachlin C.J. (Wagner, Gascon, Côté, Brown and Rowe JJ. concurring)

Dissenting Reasons: Abella J. (Moldaver and Karakatsanis JJ. concurring)

Neutral Citation: 2018 SCC 2

Docket Number: 37276

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16958/index.do