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How and when should public interest standing be established before an administrative agency? This is the question at the heart of the Supreme Court of Canada’s (“SCC”) recent decision in Delta Air Lines Inc v Lukács, 2018 SCC 2 [Delta]. The matter arose after Dr. Gábor Lukács, an “air passenger rights advocate,” filed a complaint in 2014 with the Canadian Transportation Agency (“CTA”) alleging that several of Delta Air Lines’s (“Delta”) practices discriminate against obese people contrary to section 111(2) of the Air Transportation Regulations, SOR/88-58 (“Regulations”).
Factual and Legal Background: Dr. Lukács’ Standing Before the CTA
Delta’s current policy is to encourage obese people to book more than one seat ahead of their flights. Should a situation arise where there is not enough room for an obese person to sit in the seat they had booked, they are either moved to a more spacious part of the plane or encouraged to take a later flight. Dr. Lukács pursued his complaint after receiving an email from a former Delta customer who claimed that these policies had made him feel uncomfortable (Delta, para 3).
The CTA dismissed Dr. Lukács’ complaint on the basis that he had failed to meet either of the tests for private or public interest standing developed by courts of civil jurisdiction: concerning the former, the CTA found that Dr. Lukács had failed to establish a “sufficient interest” in Delta’s policies pertaining to obese people since “he himself was not obese”; with regard to the latter, the CTA found that Dr. Lukács lacked public interest standing since he was not challenging the constitutionality of legislation or the impermissible exercise of administrative discretion (Delta, para 5).
The Federal Court of Appeal allowed Dr. Lukács’ appeal of the CTA’s decision in 2016, finding that the CTA had “unreasonably fettered its discretion” by applying the law of standing in a manner that was inconsistent with the purpose of the CTA’s enabling legislation (Delta, para 6). On appeal to the SCC, Chief Justice McLachlin, writing for the majority, allowed the appeal in part, returning the matter to the CTA to be reconsidered “whether on the basis of standing or otherwise” (Delta, para 32). `
The Chief Justice Chastises the CTA for its Application of the Public Interest Standing Test
Chief Justice McLachlin began her analysis by outlining the statutory mandate of the CTA. Ultimately, she found, the CTA is required to implement the provisions of the Canada Transportation Act,?SC 1996, c. 10?(“Act”) so as to “ensure a competitive, safe, and accessible transportation network for all Canadians” (Delta, para 9). This mandate, she emphasized, requires the CTA to “balance a range of interests” (Delta, para 9). To this end, section 37 of the Act grants the CTA a broad discretion to “inquire into, hear and determine [complaints]” relating to “any act, matter or thing prohibited … under any Act of Parliament that is administered … by the [CTA].”
Applying the SCC’s administrative review framework from Dunsmuir, the Chief Justice proceeded to assess whether the CTA’s decision fell within “a range of possible, acceptable outcomes” (Delta, para 12). On this basis, she found that the CTA had not reasonably exercised its discretion concerning Dr. Lukács’ complaint. Under section 37 of the Act, the CTA already had the necessary discretion to decide whether it would hear Dr. Lukács’ complaint. Yet rather than exercise this discretion, the Chief Justice explained, the CTA had erroneously proceeded on the assumption that it was bound by the test for public interest standing developed by and for civil courts (Delta, para 14).
The CTA had thus taken the civil requirement for public interest standing—namely that the parties seeking standing have an interest in the validity of legislation—and rigidly applied it within the context of its enabling legislation (Delta, para 16). In essence, the CTA had imposed a test on Dr. Lukács that he could never meet. “In sum,” the Chief Justice concluded, “the [CTA] suggests the availability of public interest standing to bring a complaint of this type and then, in the same breath, precludes any possibility of granting it” (Delta, para 17).
On a more fundamental level, however, the Chief Justice further concluded that the CTA’s understanding of private and public interest standing was inconsistent with a reasonable interpretation of its legislative objectives (Delta, para 19). In her view, to apply the test for public interest standing that the CTA had in Dr. Lukács’ case would preclude most public interest groups from seeking standing before the agency. This could not have been what Parliament had envisioned when it granted the CTA a broad and remedial mandate to address complaints under section 37 of the Act (Delta, para 20).
In her closing remarks, the Chief Justice noted that it would be inappropriate for the Court to substitute its reasons for the reasons offered by the CTA as to when public interest standing should be granted. On occasion, courts may supplement the reasons of administrative bodies where those reasons are inadequate or insufficient; nevertheless, courts cannot simply swap out the reasons of administrative bodies for their own. To do otherwise would be in this case to “allow the appeal in the name of deference and then stipulate how the [CTA] should determine when to hear a complaint” (Delta, para 28).
Justice Abella Restores the CTA’s Standing Decision on the Grounds of Deference
It was primarily on this final point that Justice Abella, writing for the minority, diverged from the Chief Justice’s reasoning. With regard to the question of standing, Justice Abella noted that it was not for the Court to second-guess the CTA’s decision to apply the test developed by the civil courts. “[W]hile the [CTA] is not required to apply the same standing rules used by the courts”, she emphasized, “nothing in its governing statute prevents it from doing so” (Delta, para 42).
As a matter of principle, Justice Abella found that the submissions that had been put forward by Dr. Lukács could not stand. “His argument,” as she had interpreted it, “is for universal standing, namely that everyone who brings a claim before the [CTA] is entitled to have it heard” (Delta, para 47). This, she stressed, would be to circumvent the discretion that Parliament had afforded to the CTA to decide such matters; ultimately, she warned, “reviewing courts should not be overly eager to substitute their own vision of how that tribunal’s procedural mandate should be applied” (Delta, para 60).
The SCC Offers Little Guidance for Future Public Interest Standing Cases
Although grounded in compelling administrative reasoning, Justice Abella’s dissent evades the underlying incoherence of the CTA’s decision to dismiss Dr. Lukács complaint. As the Chief Justice correctly emphasized in her reasons, the CTA’s application of the civic test for public interest standing would make it virtually impossible for anyone to seek anything other than private standing before the agency. Nevertheless, the Chief Justice’s reasons offer little guidance for how future cases of public interest standing before administrative agencies are to be decided. At a minimum, the majority’s decision precludes agencies such as the CTA from rigidly applying the standing tests developed by the civil courts. In the absence of a more purposive vision, it seems inevitable that cases such as Dr. Lukács’ will continue to find their way onto the dockets of appellate courts.