Top Court Orders Transportation Agency to Consider Obese Passenger Complaint

Delta Airlines Inc. v. Gábor Lukács (2018 SCC 2)  This decision of the Supreme Court of Canada was released on January 19, 2018.

Dr. Gábor Lukács filed a complaint with the Canadian Transportation Agency (“Agency”) alleging that Delta Airlines Inc. (“Delta”) had applied discriminatory practices governing the carriage of obese persons.  The Agency dismissed the complaint on the basis that Dr. Lukács failed to meet the tests for private interest standing and public interest standing as developed by and for courts of civil jurisdiction.  The question was whether the Agency’s decision was reasonable.  Chief Justice McLachlin (Justices Wagner, Gascon, Cote, Brown and Rowe, concurring) concluded that it was not and remitted the matter to the Agency to reconsider whether to hear the complaint. 

Facts

Dr. Lukács’ complaint alleged discrimination on behalf of Delta’s obese passengers with respect to the air transportation regulations.  In support of his complaint, he attached an email from Delta in response to a passenger's negative experience of sitting next to another passenger who “required additional space”.  In the email Delta apologized and explained:  “Sometimes we ask the passenger to move to a location in the plane where there is more space.  If the flight is full we may ask the passenger to take a later flight.  We recommend that large passengers purchase additional seats so they can avoid being asked to rebook and so we can guarantee comfort for all.” 

On September 5, 2014, the Agency issued a letter decision in response to the complaint.  It stated:  “It is not clear to the Agency that on the basis of his position,  Dr. Lukács has an interest in Delta’s practices governing the carriage of obese persons.  As such, his standing in this matter is in question.”  The Agency called for submissions on the standing question.

In its ultimate decision, the Agency denied Dr. Lukács’ standing and dismissed the complaint.  It applied the tests for private interest standing and public interest standing as they have been developed by and for civil courts.  It found Dr. Lukács lacked private interest standing because he was not himself obese and so could not claim to be “aggrieved” or “affected” or have some other “sufficient interest”.  It then determined that he lacked public interest standing because his complaint did not challenge the constitutionality of legislation or the illegal exercise of administrative authority. 

The Federal Court of Appeal allowed Dr. Lukács’ appeal.  It held that a strict application of the law of standing as applied in the courts was inconsistent with the Agency’s enabling legislation.  Moreover, it was contrary to the Agency’s objective to refuse to examine a complaint based solely on whether a complainant had been directly affected or had public interest standing.  The Federal Court of Appeal directed the matter be returned to the Agency to determine otherwise than on the basis of standing.  

The Supreme Court of Canada held as follows.

The standard of review to be applied in this case is reasonableness.  Where an administrative body interprets its own statute and is required to exercise discretion under it, it is presumptively entitled to deference. 

However, in this case the Agency did not reasonably exercise its discretion to dismiss Dr. Lukács’ 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 Dr. Lukács 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.  This is not what parliament intended when they conferred a broad discretion on the Agency to decide whether to hear complaints.  The Agency did not maintain a flexible approach to the question and in doing so 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 test for private and public interest standing in the way the Agency did would preclude any public interest or representative group from ever having standing before the agency regardless of the content of its complaint.  In effect, only a person who was in herself targeted by the impugned policy could bring a complaint.  This is contrary to the scheme of the act.  Parliament has granted 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 bringing it prevents the Agency from hearing potentially highly relevant complaints and hinders it ability to fill the statutory schemes objective. 

Justice Abella, writing for the dissenting judges (Justices Moldaver and Karakatsanis) held that there was no basis for interfering because the Agency’s mandate gave the Agency wide discretion in terms of power to process and resolve complaints.  The standing rules exist to enable a court or tribunal to economize and prioritize its resources.  Tribunals are not required to follow the same procedures the courts use.  Here the decision to deny Dr. Lukács’ complaint was reasonable in the circumstances.  He brought a complaint on no underlying facts, no  representative claimants and no argument.  His complaint was purely theoretical and his interest in the issue was academic.  Accordingly, the proposed suit did not constitute an effective and reasonable means of bringing the issue before the Agency.  It was therefore unnecessary to remit the matter back to the Agency.

Regards,

Blair

Supreme Court of Canada Extends Human Rights Protection from Employment Discrimination to Co-Workers

In British Columbia Human Rights Tribunal v. Schrenk 2017 SCC62, a majority of the Supreme Court of Canada found that the British Columbia Human Rights Code’s (“Code”) prohibition against discrimination “regarding employment” prohibits discrimination against employees even where the discriminatory conduct was carried out by a co-worker and not the employer.  The court held that the Code applies whenever the discrimination has a “sufficient nexus” with employment. 

In this case the complainant Sheikhzadeh-Mashgoul (the “Complainant”) filed a complaint with the British Columbia Human Rights Tribunal (“Tribunal”) against the respondent Schrenk (the “Respondent”) alleging employment discrimination based on religion, place of origin and sexual orientation. 

The Complainant worked for an engineering company as a civil engineer on a road improvement project.  The engineering company had certain supervisory powers over employees of a construction company, the primary contractor on the project.  The construction company employed the Respondent as a site foreman and superintendent.  When the Respondent made racist and homophobic statements to the Complainant, he was initially removed from the site but when the harassment continued, the construction company terminated his employment.

The Complainant immigrated to Canada from Iran and identified as Muslim.  When the Respondent learned of the Complainant’s origin and religion he made jokes about being blown up by a suicide bomb, called the Complainant a “fucking Muslim piece of shit”, and asked him whether he was going to call  his gay friend.  After the Complainant complained the Respondent persisted and shouted “go back to your mosque where you came from”.  Such behaviour resulted in the Respondent being removed from the work site.  However, subsequently he sent unsolicited emails to the Complainant in which he made derogatory insinuations about his sexual orientation. 

The Respondent brought an application to dismiss the complaint in which he argued that his alleged conduct was not discrimination “regarding employment” and was consequently beyond the jurisdiction of the Tribunal.  The Respondent’s argument was simple:  he was not in a position of economic authority over the Complainant.  He was neither the Complainant’s employer nor his superior in the workplace.  His conduct, however egregious, could not be considered discrimination “regarding employment” within the meaning of the Code.  

The Tribunal held that it had jurisdiction to deal with the complaint and denied the Respondent’s application to dismiss the complaint.  The British Columbia Supreme Court dismissed the Respondent’s application for judicial review, but the Court of Appeal allowed his appeal and found that the Tribunal had erred in law by concluding that it had jurisdiction over the complaint.

A 6 – 3 majority of the Supreme Court (Moldaver, Karakatsanis, Wagner, Gascon, Rowe and Abella) disagreed with the Court of Appeal and allowed the appeal (Justice Moldaver wrote the majority decision with a separate concurring decision written by Justice Abella).  Justices McLachlin, Cote and Brown dissented. 

The majority held as follows. 

The case involved the interpretation of the meaning of the words “employment” and “person” in the Code.   Reading the Code in line with the modern principle of statutory interpretation and the particular rules that apply to the interpretation of human rights legislation the prohibition against discrimination against employees prohibits discrimination whenever that discrimination has a sufficient nexus with the employment context.  This may include discrimination by their co-workers even when those co-workers have a different employer.   The discrimination in the case had sufficient nexus to the Complainant’s employment because the Respondent was integral to the Complainant’s workplace, the impugned conduct had occurred in the Complainant’s workplace and the Complainant’s work environment was negatively affected.   This contextual interpretation furthers the purposes of the Code by recognizing how employee vulnerability stems not only from economic subordination to their employers but also from being a captive audience to other perpetrators of discrimination such as a harassing co-worker. 

In separate reasons, Justice Abella found that the analysis requires that the meaning of employment discrimination be considered in a way that is consistent with the Supreme Court’s well settled human rights principles and not just the particular words of the Code.  Applying these principles leads to the conclusion that an employee is protected from discrimination related to or associated with his or her employment, whether or not he or she occupies a position of authority.  As a result, the Tribunal had jurisdiction to hear the complaint.

The dissenting three judges held that the prohibition against workplace discrimination in the relevant section of the Code applied only to employer-employee or similar relationships and authorized claims against those responsible for ensuring that workplaces are free of discrimination.  If the section were interpreted to allow claims against anyone in the workplace most of the next section which provides a separate protection against discrimination by unions and associates would be redundant.  The Code required the Complainant to focus on the employer, i.e. the people responsible for maintaining a discrimination free workplace.  Where the employer fails to intervene or prevent or correct discrimination the section is engaged.   

Importantly in this case, the court expanded human rights code protection against employment discrimination to encompass discrimination outside of the confines of the traditional employer-employee relationship. 

Regards,

Blair