Delta Air Lines Inc. v. Lukacs: Supreme Court weighs in on Canadian Transportation Agency’s application of civil courts’ tests of standing

The Supreme Court of Canada recently released its decision in Delta Air Lines Inc. v. Lukacs, 2018 SCC 2, in which it considered whether the Canadian Transportation Agency (the “Agency”) acted reasonably in dismissing the complaint of Gabor Lukacs against Delta on the basis that he met neither of the tests for standing that have been developed and applied by the civil courts.

Dr. Lukacs, who refers to himself as an “air passenger rights advocate”, filed a complaint with the Agency in which he argued that Delta’s practices in relation to the transportation of obese passengers were discriminatory. Dr. Lukacs is not obese. Rather, his complaint was based on an email sent by Delta to a passenger who had complained to the airline that he was uncomfortable during a flight as a result of being seated beside another passenger “who required additional space”. In its email apologizing for the passenger’s discomfort, Delta stated that it encourages “large passengers” to book additional seats in order to “guarantee comfort for all”, but that if a passenger requires more space when onboard the flight, the passenger may be asked to move to another location on the plane, or, if the flight is full, to take a later flight. Dr. Lukacs claimed that these practices were contrary to section 111(2) of the Air Transportation Regulations, which prohibits unjust discrimination in an airline’s conditions of carriage.

In its consideration of the complaint, the Agency questioned whether Dr. Lukacs had an interest in Delta’s practices governing the carriage of obese persons. In the civil courts, litigants must have either private or public interest standing. Private interest standing requires the claimant to establish that they have a direct personal interest in the subject matter, while public interest standing requires the court to apply a three-part test, one aspect of which is whether the claimant has a real stake or a genuine interest in the claim. Previous Supreme Court of Canada case law states that the test for public interest standing is to be applied in a flexible and discretionary way.

Dr. Lukacs argued that he had private interest standing on the basis that the practices at issue were in respect of the carriage of “large”, and not “obese”, persons, and that the fact that he was six feet tall and 175 pounds meant he could be considered a “large person”. The Agency rejected this argument. It was not satisfied that he was a “large person” for the purpose of Delta’s policy, and was unable to conclude that he was “aggrieved” or “affected” or that he had some other “sufficient interest” to establish private interest standing.

The Agency also held that Dr. Lukacs did not have public interest standing. In the Agency’s view, he did not meet the second aspect of the test, which it interpreted as requiring him to have been affected by legislation or government administrative action, or have a genuine interest in the validity of legislation or government action. His complaint was against a private company, and did not question the validity of any legislation or administrative action.

The majority of the Supreme Court of Canada found that, in dismissing Dr. Lukacs’ complaint on the basis that he failed to meet the civil courts’ tests for standing, the Agency did not reasonably exercise its discretion to hear the complaint. First, the Agency applied the test for public interest standing in a rigid way that arguably meant that test could never be met, as the Agency does not deal with complaints based on the validity of legislation or administrative action. The majority also found that the Agency’s application of the test was inconsistent with the rationale underlying public interest standing, which is for the court to use its discretion, where appropriate, to facilitate access to justice, not to bar it.

Second, the majority found that the effect of the Agency’s decision was that only a person targeted by a policy or practice could bring a complaint, and, therefore, that public interest groups would never be able to do so. In the majority’s view, this was contrary to the broad remedial discretion provided to the Agency under the Canada Transportation Act (the “Act”) to inquire into and decide complaints, which, in part, permits the Agency to correct discriminatory terms and conditions before passengers actually experience harm. Refusing a complaint based solely on the identity of the complainant prevented the Agency from hearing potentially relevant complaints, hindering its ability to fulfil the Act’s objectives.

The Court remitted the matter to the Agency for reconsideration in its entirety, indicating that it was for the Agency to determine how to exercise its discretion to hear and decide the complaint. In doing so, the Agency was not precluded from considering the standing tests of civil courts, provided these were reasonably adapted in light of the statutory scheme. Other ways suggested by the majority in which the Agency could exercise its discretion included examining whether the complaint is in good faith, timely, vexatious, duplicative, or in line with the Agency’s workload and prioritization of cases. The Agency could also consider whether the complaint raises a serious issue to be tried or is based on sufficient evidence.

We await the reconsideration decision of the Agency, and are hopeful that it will provide sufficient guidance regarding whether and how the Agency will adjudicate future complaints brought by an unaffected party.