Tuesday, January 30, 2018

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. 


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.



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