Saturday, June 2, 2018

2018 Ontario general election Doug Ford Jr. populist disaster waiting to happen!





On March 13, 2018, Ford told The Globe and Mail he wanted to implement a populistagenda if elected. He said he was open to greater privatization of marijuana and alcohol sales in Ontario as well as abolishing the relatively new "foreign-buyers tax" on real estate. Ford said he would condense the party platform adopted under former leader Patrick Brown, reducing about ten percent of it,[56] into a five-point plan focusing on health, education, creating jobs, getting rid of the province's cap-and-trade program for carbon emissions, and reducing electricity rates.[57][58] Ford's position on the carbon tax has been criticized for overlooking the fact that if the province does not accept a price on carbon, the federal government will impose one and on the basis that by dropping the carbon tax, the province would lose $4 billion in revenues leaving a Ford government unable to fund its promises. Ford has responded claiming that he would make up the shortfall by finding "efficiencies" in government spending.[56]
Ford stated that he would allow the introduction of a private member's bill requiring minors to consult with their parents before obtaining an abortion. When asked about it later he said it was not "on the top of [his] priority list".[56][59][60][61] He was critical of the sex educationcurriculum introduced in Ontario in 2015, and has stated that he believes it needs to be revised.[62][63] Liberal campaign co-chair Deb Matthews accused Ford of wading into "divisive social conservative issues" with his remarks.[64]
Ford held a rally in Hamilton, Ontario, on April 3, 2018, where he announced that if elected his government would allow Hamilton City Council to reallocate the $1.3 billion allocated for the city's proposed rapid transit system to roads or other infrastructure if the council and people of Hamilton so decided.[65] Hamilton mayor Fred Eisenberger responded saying that city council had already decided the issue and that cancelling the LRT would mean $100 million would "be thrown away".[66] Ted McMeekin, a local Liberal MPP, criticized Ford's announcement saying "He paints himself as a responsible fiscal person but sees nothing wrong with writing a blank cheque for $1.2 billion."[66]
Ford blamed Ontario's high hydro rates for the loss of manufacturing jobs and blasted the Liberal Party for "cronyism".[67][68][69] Ford has said he would revive manufacturing in Ontario by easing regulations, cutting taxes including the planned carbon tax, and ensuring competitive electricity rates.[70] When asked what he would do to lower hydro rates, Ford did not outline any concrete proposal, saying that he would need to conduct a proper review.[71]
In regards to Northern Ontario, Ford criticized the Liberal government for not proceeding quickly enough to develop the Northern Ontario Ring of Fire,[72] saying that he'd get on a bulldozer himself if necessary.[73][74] His comments in regards to Ring of Fire development have been criticized as being "simplistic" and disregarding the patience required to negotiate with Indigenous peoples in regards to land claims and ensuring Indigenous communities receive a share of any economic gains.[74]



On April 19th, Ford attacked Hydro One CEO Mayo Schmidt, calling him "Kathleen Wynne's $6-million dollar man" in reference to his reported annual salary, and calling on Schmidt and Hydro One's board of directors to resign "immediately".[75] Ford vowed to fire them all if elected, although PCPO energy critic Todd Smith later clarified that the government cannot dismiss Hydro One's CEO directly.[76]









Monday, March 12, 2018

Delta Air Lines Inc. v. Lukács SUPREME COURT OF CANADA



Supreme Court Judgments

Delta Air Lines Inc. v. Lukács
Collection Supreme Court Judgments
Date 2018-01-19
Neutral citation 2018 SCC 2
Case number 37276
Judges McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from Federal Court of Appeal
Notes SCC Case Information: 37276

















SUPREME COURT OF CANADA




Citation: Delta Air Lines Inc. v. Lukács, 2018 SCC 2

Appeal Heard: October 4, 2017

Judgment Rendered: January 19, 2018

Docket: 37276




Between:

Delta Air Lines Inc.

Appellant



and



Gábor Lukács

Respondent



- and -



Attorney General of Ontario, Canadian Transportation Agency, International Air Transport Association and Council of Canadians with Disabilities

Interveners





Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.




Reasons for Judgment:

(paras. 1 to 32)

McLachlin C.J. (Wagner, Gascon, Côté, Brown and Rowe JJ. concurring)


Dissenting Reasons:

(paras. 33 to 67)

Abella J. (Moldaver and Karakatsanis JJ. concurring)




Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.














delta air lines inc. v. lukács

Delta Air Lines Inc. Appellant

v.

Gábor Lukács Respondent

and

Attorney General of Ontario,

Canadian Transportation Agency,

International Air Transport Association and

Council of Canadians with Disabilities Interveners

Indexed as: Delta Air Lines Inc. v. Lukács

2018 SCC 2

File No.: 37276.

2017: October 4; 2018: January 19.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

on appeal from the federal court of appeal

Administrative law — Boards and tribunals — Canadian Transportation Agency — Inquiry into complaint — Standing — Public interest standing — Complainant alleging air carrier’s practices regarding transportation of obese persons are discriminatory — Agency dismissed complaint on basis that complainant lacked standing — Whether Agency reasonably exercised its discretion to dismiss complaint — Canada Transportation Act, S.C. 1996, c. 10, s. 37 .

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

Cases Cited

By McLachlin C.J.

Referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Quebec (Attorney General) v. Guérin, 2017 SCC 42; Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Lukács v. Porter Airlines Inc., Canadian Transportation Agency, Decision No. 121‑C‑A‑2016, April 22, 2016; Pathmanathan v. Canada (Minister of Citizenship and Immigration), 2013 FC 353, 17 Imm. L.R. (4th) 154; Petro‑Canada v. Workers’ Compensation Board (B.C.), 2009 BCCA 396, 276 B.C.A.C. 135; Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267.

By Abella J. (dissenting)

Fraser v. Canada (Attorney General) (2005), 51 Imm. L.R. (3d) 101; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650; Lukács v. Porter Airlines Inc., Canadian Transportation Agency, Decision No. 121‑C‑A‑2016, April 22, 2016; Amalgamated Transit Union, Local 279 (Re), Canadian Transportation Agency, Decision No. 431‑AT‑MV‑2008, August 20, 2008; Lukács v. Canadian Transportation Agency, 2014 FCA 76, 456 N.R. 186; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Norman Estate v. Air Canada, Canadian Transportation Agency, Decision No. 6‑AT‑A‑2008, January 10, 2008.

Statutes and Regulations Cited

Air Transportation Regulations, SOR/88‑58, ss. 111, 113, 113.1.

Canada Transportation Act, S.C. 1996, c. 10, ss. 5 , 17 , 25 , 37 , Part V.

Canadian Transportation Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014‑104, s. 5(1).

Authors Cited

Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law. Oxford: Hart, 1997, 279.

Jones, David Phillip, and Anne S. de Villars. Principles of Administrative Law, 5th ed. Toronto: Carswell, 2009.

Sossin, Lorne. “Access to Administrative Justice and Other Worries”, in Flood, Colleen M., and Lorne Sossin, eds., Administrative Law in Context, 2nd ed. Toronto: Emond Montgomery, 2013, 211.

APPEAL from a judgment of the Federal Court of Appeal (Webb, Scott and de Montigny JJ.A.), 2016 FCA 220, 408 D.L.R. (4th) 760, [2016] F.C.J. No. 971 (QL), 2016 CarswellNat 4268 (WL Can.), setting aside a decision of the Canadian Transportation Agency, No. 425‑C‑A‑2014, November 25, 2014, dismissing a complaint for discriminatory practices. Appeal allowed in part, Abella, Moldaver and Karakatsanis JJ. dissenting.

Carlos P. Martins and Andrew W. MacDonald, for the appellant.

Gábor Lukács, on his own behalf.

Heather Mackay and Edmund Huang, for the intervener the Attorney General of Ontario.

Allan Matte and Mante Molepo, for the intervener the Canadian Transportation Agency.

David Neave and Derek Bell, for the intervener the International Air Transport Association.

Byron Williams, Joëlle Pastora Sala and Alyssa Mariani, for the intervener the Council of Canadians with Disabilities.

Benjamin Zarnett, as amicus curiae, and Jane Scholes.



The judgment of McLachlin C.J. and Wagner, Gascon, Côté, Brown and Rowe JJ. was delivered by



The Chief Justice —

[1] The respondent, Dr. Gábor Lukács, filed a complaint with the Canadian Transportation Agency (“Agency”), alleging that the appellant, Delta Air Lines Inc. (“Delta”), applied discriminatory practices governing the carriage of obese persons. The Agency dismissed this 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.

[2] The question is whether the Agency’s decision was reasonable. I conclude that it was not. I would remit the matter to the Agency to reconsider whether to hear the complaint.

I. Facts and Decisions Below

[3] On August 24, 2014, Dr. Lukács submitted a complaint to the Agency alleging that Delta’s practices in relation to the transportation of obese passengers are discriminatory and contrary to s. 111(2) of the Air Transportation Regulations, SOR/88-58 (“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’s 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. [A.R., at p. 38]

[4] On September 5, 2014, the Agency issued a letter decision in response to this complaint. It stated: “It is not clear to the Agency that, on the basis of his submission, Mr. Lukács has an interest in Delta’s practices governing the carriage of obese persons. As such, his standing (or locus standi) in this matter is in question”: (Decision No. LET-C-A-63-2014, September 5, 2014, reproduced in A.R., at p. 1). The Agency called for submissions on the standing question.

[5] In its ultimate decision, which is at issue in this case, the Agency denied Dr. Lukács standing and dismissed his complaint: Decision No. 425-C-A-2014, November 25, 2014. To do so, 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 to have some other “sufficient interest” (para. 64). It then determined that he lacked public interest standing because his complaint did not challenge the constitutionality of legislation or the illegal exercise of an administrative authority (para. 74).

[6] The Federal Court of Appeal allowed Dr. Lukács’ appeal: 2016 FCA 220, 408 D.L.R. (4th) 760. The Court of Appeal held that a strict application of the law of standing as applied in 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 (para. 27). The Court of Appeal held that in refusing to examine Dr.Lukács’ complaint, the Agency “unreasonably fettered its discretion” (para. 30). Ultimately, the Court of Appeal 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 [Dr. Lukács’] complaint” (para. 32).

II. Analysis

A. Standard of Review

[7] The standard of review to be applied in this case is reasonableness. This was the finding of the Court of Appeal (paras. 14-15) and is not disputed by the parties.

[8] Where an administrative body interprets its own statute and is required to exercise discretion under it, it is presumptively entitled to deference: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 53-54;Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 39; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 22; Quebec (Attorney General) v. Guérin, 2017 SCC 42, at paras. 33-35. There is no contention that the presumption of reasonableness is rebutted in this case. As the Court of Appeal found, the issue “falls squarely within the Agency’s expertise” (para. 15).

B. The Legislative Scheme and the Agency’s Discretion

[9] The Agency is charged with implementing the Canada Transportation Act, S.C. 1996, c. 10 (“Act ”) and the Regulations. This legislative scheme requires the Agency to balance a range of interests in order to ensure a competitive, safe, and accessible transportation network for all Canadians: s. 5 .

[10] To meet these objectives, s. 37 of the Act bestows broad discretion on the Agency to hear and determine complaints:

37 The Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.

[11] With respect to international carriers, including Delta, the Regulations prohibit any terms or conditions of carriage which are unjustly discriminatory (s. 111(2)) and empower the Agency to take action against any such term or condition (s. 113.1). The parties agree that s. 37 of the Act grants the Agency broad discretion to hear complaints regarding international carriers, including Dr. Lukács’ complaint against Delta in this case.

C. The Agency’s Decision

[12] A decision is reasonable if it is justifiable, transparent, and intelligible, and falls within “a range of possible, acceptable outcomes”: Dunsmuir, at para. 47. Courts are required to pay “respectful attention to the reasons offered or which could be offered in support of a decision”: ibid., at para. 48, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart ed., The Province of Administrative Law (1997), 279, at p. 286. A reviewing court must refer “both to the process of articulating the reasons and to outcomes”: ibid., at para. 47.

[13] The question in this case is whether the Agency reasonably exercised its discretion to dismiss Dr. Lukács’complaint. On a respectful reading of the Agency’s reasons, I conclude that it did not. The decision does not satisfy the requirements of justification, transparency, and intelligibility for two reasons. First, the Agency presumed public interest standing is available and then applied a test that can never be met. This approach to standing unreasonably fettered the Agency’s discretion. Second, the total denial of public interest standing is inconsistent with a reasonable interpretation of the Agency’s legislative scheme. I will address each of these points in turn.

[14] In this case, the Agency had discretion under s. 37 of the Act to determine whether to hear Dr. Lukács’ complaint. The Agency did not advert to this discretion, however, and appeared to approach the standing question as if bound by the tests for standing as applied in civil courts. As such, it found that it would hear the complaint only if Dr. Lukács could satisfy the test for either private interest standing or public interest standing.

[15] The Agency held that to establish private interest standing, complainants must show that they are “aggrieved”, “affected”, or have some other “sufficient interest” (para. 64). While the Agency appears to have accepted that a complainant does not need to have suffered discrimination, it held that the complainant does need to be a person to whom the impugned policy applies. Dr. Lukács, who was not a “‘large person’ for the purpose of Delta’s policy”, did not therefore have private interest standing (ibid.).

[16] Nor, the Agency held, could Dr. Lukács claim public interest standing. The Agency stated the relevant test as follows, at para. 68:

1. Is there a serious issue as to the validity of the legislation?



2. Is the party seeking public interest affected by the legislation or does the party have a genuine interest as a citizen in the validity of the legislation?



3. Is there another reasonable and effective manner in which the issue may be brought to the court?

The Agency recognized this Court’s direction in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 36, that these factors are not technical requirements and must be weighed cumulatively. Nonetheless, the Agency proceeded to deny standing based on a rigid application of the second factor of the test. It concluded that standing must be denied because the complaint was “not related to the constitutionality of legislation or to the non-constitutionality of administrative action” (para. 74).

[17] This brings us to the first problem: the Agency applied a test for public interest standing that could arguably never be satisfied. One of the Agency’s functions is the regulation of air carriers, which are private, non-governmental actors. Any valid complaint against an air carrier would impugn the terms and conditions established by a private company. A complaint regarding these terms and conditions can never, by its very nature, be a challenge to the constitutionality of legislation or the illegality of administrative action. In sum, theAgency 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. 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.

[18] The Agency’s application of the test is also inconsistent with the rationale underlying public interest standing. In determining whether to grant public interest standing, courts must take a “flexible, discretionary approach”:Downtown Eastside, at para. 1. This requires balancing the preservation of judicial resources with access to justice: ibid. at para. 23. The whole point is for the court to use its discretion, where appropriate, to allow more plaintiffs through the door.As the Agency rightly put it, the objective is to hear from those plaintiffs or complainants “with the most at stake” (para. 52).The Agency’s decision in this case, however, exhibits no balancing; it does not allow those with most at stake to be heard. Rather, it uses public interest standing simply to bar access. Downtown Eastside makes clear that at least someplaintiffs will be granted public interest standing. The Agency’s decision, in contrast, allows no complainants to have public interest standing. The Agency did not maintain a flexible approach to this question and in so doing unreasonably fettered its discretion. While the public interest standing test was designed to protect courts’ discretion, the Agency eliminated any of its own discretion under this test.

[19] The second problem with the decision is that the impact of the tests for private and public interest standing, applied as they were in this decision, cannot be supported by a reasonable interpretation of how the legislative scheme is intended to operate. Applying these tests 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. A complaint by the Council of Canadians with Disabilities, like the one brought in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, would not be heard. In effect, only a person who is herself targeted by the impugned policy could bring a complaint.

[20] This is contrary to the scheme of the Act . Parliament has seen fit to grant the Agency broad remedial authority. Section 5 (d) of the Act requires the Agency to promote accessible transportation. And ss. 111 and 113 of the Regulations allow the Agency to act to correct discriminatory terms and conditions before passengers actually experience harm. Indeed, these provisions empower the Agency to investigate based on a complaint or of its own motion. 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. This does not mean that every complaint from a public interest group must be heard. It is unreasonable, however, for the Agency to apply a test that would prevent it from hearing the complaint of any such group.

[21] For these reasons, I conclude that the Agency’s decision fails to meet the indicia of reasonableness enumerated in Dunsmuir.

[22] Delta acknowledges that the Agency’s reasons are deficient. It argues, however, that the reviewing court is required to examine not only the reasons given, but the reasons that could be given to support the Agency’s decision: see Alberta Teachers, at para. 53; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 12. Specifically, it urges this Court to look to the justifications for denying standing enumerated in Lukács v. Porter Airlines Inc., Canadian Transportation Agency, Decision No. 121-C-A-2016, April 22, 2016.

[23] Supplementing reasons may be appropriate in cases where the reasons are either non-existent or insufficient. In Alberta Teachers, no reasons were provided because the issue had not been raised before the decision maker (para. 51). In Newfoundland Nurses, the reasons were alleged to be insufficient (para. 8). These authorities are distinguishable from this case, where the Agency provided detailed reasons that enumerated and then strictly applied a test unsupported by the statutory scheme.

[24] The requirement that respectful attention be paid to the reasons offered, or the reasons that could be offered, does not empower a reviewing court to ignore the reasons altogether and substitute its own: Newfoundland Nurses, at para. 12; Pathmanathan v. Canada (Minister of Citizenship and Immigration), 2013 FC 353, 17 Imm. L.R. (4th) 154, at para. 28. I agree with Justice Rothstein in Alberta Teachers when he cautioned:

The direction that courts are to give respectful attention to the reasons “which could be offered in support of a decision” is not a “carte blanche to reformulate a tribunal’s decision in a way that casts aside an unreasonable chain of analysis in favour of the court’s own rationale for the result” [para. 54, quoting Petro-Canada v. Workers’ Compensation Board (B.C.), 2009 BCCA 396, 276 B.C.A.C. 135, at paras. 53 and 56].

In other words, while a reviewing court may supplement the reasons given in support of an administrative decision, it cannot ignore or replace the reasons actually provided. Additional reasons must supplement and not supplant the analysis of the administrative body.

[25] In my view, 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. Of course, it could also have exercised its discretion without any reference to standing at all. But it did neither of these things. The reviewing court must not do them in the Agency’s place for three principal reasons.

[26] First, to do so would require erasing the public interest standing test and its application, as set out by the Agency, and replacing them with reasons and justifications formulated by this Court. Delta has not pointed to any administrative law authority that would justify this approach.

[27] Second, it would undermine, if not negate, the vital role of reasons in administrative law. Dunsmuir still stands for the proposition that reviewing courts must look at both the reasons and the outcome. While this does not require “two discrete analyses” (Newfoundland Nurses, at para. 14), it means that reasons still matter. If we allow reviewing courts to replace the reasons of administrative bodies with their own, the outcome of administrative decisions becomes the sole consideration. With that approach, as long as the reviewing court could come up with some possible justification — even if it contradicted the reasons given by the administrative body — the decision would be reasonable. This goes too far. It is important to maintain the requirement that where administrative bodies provide reasons for their decisions, they do so in an intelligible, justified, and transparent way.

[28] Finally, this would amount to the reviewing court assuming the role of the Agency by developing and applying a complaints procedure under the Act . It would be ironic to allow the appeal in the name of deference and then stipulate how the Agency should determine when to hear a complaint: see Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267, at para. 11.

[29] With respect, I am of the view that this is the approach taken by Abella J. in this case. Abella J. explains that the outcome is reasonable because Dr. Lukács’ complaint is not “an effective and reasonable means of bringing the issue before the Agency” (para. 64) and because he provides no explanation for why an affected passenger could not have submitted his or her own complaint (para. 65). These are not justifications that were provided by the Agency, which set out that the public interest test requires a complaint that raises the constitutionality of legislation or the illegal exercise of administrative authority. The Agency then dismissed Dr. Lukács’ complaint on the sole basis that his complaint did neither of these things. I do not see how my colleague’s justifications can be used to supplement the Agency’s reasons, unless the Agency’s own formulation and justification of the legal test is struck from the reasons and these justifications are put in their place. This goes beyond paying respectful attention to the reasons or appropriately supplementing them. It amounts instead to replacing the Agency’s reasons with those of this Court and effectively leaving the Agency with a standing test not of its own making.

[30] I would agree with Abella J., however, that 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 this matter back to the Agency for reconsideration in its entirety. In its order, the Court of Appeal stipulated that the Agency must reconsider the matter “otherwise than on the basis of standing” (para. 32). I would not structure the order so strictly so as to foreclose the possibility that the Agency could reasonably adapt the standing tests of civil courts in light of its statutory scheme. As my colleague observes, s. 25 of the Act confers on the Agency “all the powers, rights and privileges that are vested in a superior court” (para. 56) with respect to all matters within its jurisdiction. This language indicates the legislator’s intention to give deference to the Agency’s determination of its complaints process.

[31] Of course, there are numerous other ways that the Agency could exercise its discretion under s. 37 of the Act , including 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 may also wish to consider whether the claim raises a serious issue to be tried or, as Abella J. has done, whether the complaint is based on sufficient evidence. It is not for this Court to tell the Agency which of these methods is preferable. Deference requires that we let the Agency determine for itself how to use its discretion, provided it does so reasonably.

III. Conclusion

[32] I would allow the appeal in part to vary the order of the Court of Appeal, with costs to the respondent. The matter should be remitted to the Agency to reconsider the matter in whole, whether on the basis of standing or otherwise.



The reasons of Abella, Moldaver and Karakatsanis JJ. were delivered by



Abella J. —

Introduction

[33] Gábor Lukács, a mathematician who describes himself as an “air passenger rights advocate”, complained to the Canadian Transportation Agency asserting that Delta Air Lines Inc.’s practices regarding “large” persons were contrary to a tariff provision of the Air Transportation Regulations, SOR/88-58.

[34] Mr. Lukács’ complaint was based on an email concerning a passenger who had told Delta that another passenger’s size made him feel discomfort. Delta had apologized to that customer for the discomfort and explained that under its guidelines, “large” passengers are either moved to a part of the plane with more space or, if the plane is full, asked if they wish to take a later flight. The discomforted passenger did not file a complaint with the Agency. Mr. Lukács did.

[35] Mr. Lukács did not make a complaint about disability.[1] He chose instead to bring a tariff complaint under s. 111(2) of the Regulations, which states:

(2) No air carrier shall, in respect of tolls or the terms and conditions of carriage,



(a) make any unjust discrimination against any person or other air carrier;



(b) give any undue or unreasonable preference or advantage to or in favour of any person or other air carrier in any respect whatever; or



(c) subject any person or other air carrier or any description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatever.

His complaint was not supported by any facts. Nor was there any suggestion that Mr. Lukács spoke for, or represented, any “large” persons.

[36] Mr. Lukács acknowledged that he was not raising any disability-related issues and was not seeking better or special treatment for “large” passengers, since he acknowledged that imposing such policies on Delta “would be beyond the scope of the present complaint”. Instead, Mr. Lukács was seeking to have Delta’s practices regarding “large” passengers stopped.

[37] The Agency invited Mr. Lukács and Delta to file submissions on whether Mr. Lukács had standing. The Agency concluded that Mr. Lukács lacked both private interest and public interest standing. It held that private interest standing prioritizes those who have a direct personal interest in the issue being litigated, those whose interests are affected more than those of the general public, and those who are seeking to gain something more than simply righting a wrong. It is, as a result, only made out if a complainant is “aggrieved” or “affected” or has some other “sufficient interest” (citing D. P. Jones and A. S. de Villars, Principles of Administrative Law (5th ed. 2009), at pp. 646-47). Since Mr. Lukács brought forward no evidence that he fell within Delta’s guidelines, Mr. Lukács was found not to be an “aggrieved” or “affected” or a “sufficient[ly] interest[ed]” person able to get private interest standing.

[38] Mr. Lukács argued that the applicable test for public interest standing should be the one he said was applied by the Ontario Superior Court in Fraser v. Canada (Attorney General) (2005), 51 Imm. L.R. (3d) 101. He referred to the following three factors:

1. Is there a serious issue to be tried?



2. Does the party seeking public interest standing have a genuine interest in the matter?



3. Is the proceeding a reasonable and effective means to bring the issue before the court (or tribunal)?



(Canadian Transportation Agency, Decision No. 425-C-A-2014, November 25, 2014, at para. 66)

[39] The Agency, noting that the Ontario Superior Court in Fraser actually framed the second factor differently — “Does the UFCW have a genuine interest in the validity of the legislation?” (emphasis added) — ultimately chose not to apply Mr. Lukács’ proposed test and adopted instead the three-part framework developed by this Court in Thorson, McNeil, Borowski, Finlay, Canadian Council of Churches, and Downtown Eastside[2], which was in fact the test applied in Fraser. The framework can be summarized as follows:

1. Is there a serious justiciable issue as to the validity of the legislation (or the legality of the administrative acts)?



2. Is the party seeking public interest standing affected by the legislation directly or does the party have a genuine interest as a citizen in the validity of the legislation?



3. Is the proposed suit, in all the circumstances, a reasonable and effective means of bringing the matter before the court?

Applying this jurisprudence, and based on the nature of his complaint, the Agency concluded that Mr. Lukács also lacked public interest standing.

[40] At the Federal Court of Appeal, Mr. Lukács acknowledged that he lacked a personal and direct interest in this case and therefore no longer claimed private interest standing.

[41] The Federal Court of Appeal found that the Agency’s decision to dismiss the complaint based on the public interest standing test developed by the courts was unreasonable. It concluded that since tribunals are entitled to use less formal procedures, they should use standing rules that are less formal than the ones used by courts. The issue was returned to the Agency to determine whether it would inquire into Mr. Lukács’ complaint on a basis other than the rules of standing developed by the courts.

[42] In my respectful view, based on the purposes and provisions in its governing statute, while the Agency is not required to apply the same standing rules used by courts, nothing in its governing statute prevents it from doing so. Nor is its conclusion that Mr. Lukács lacked standing unreasonable. I would therefore allow the appeal.

Analysis

[43] The issue is whether the Agency can develop and apply its own standing rules and, if so, whether they can be similar to those applied by courts. All of the parties agree that reasonableness is the applicable standard of review.

[44] The intention of Parliament was for the Agency to have the authority to interpret and apply its wide-ranging governing statute dealing with national transportation issues, address policy, and balance the multiple and competing interests before it (Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, at para. 107). There is nothing in the Agency’s mandate that circumscribes its ability to determine how it will decide what cases to hear.

[45] Like the courts, the Agency is entitled to apply a gatekeeping or screening mechanism that is principled and for the same principled reason, namely, to avoid an arbitrary and undisciplined ad hoc approach to standing. And, like the courts, a principled gatekeeping function enables the Agency to balance, in a transparent and effective manner, the various competing interests and demands before it, such as access and resources.

[46] The Agency’s approach to public interest standing is based on this Court’s jurisprudence and reflects traditional gatekeeping rationales:

. . . applying standing to public law accomplishes three key objectives. First, it ensures that scarce judicial resources are economized. Second, it ensures that the most urgent cases (those that actually affect people, as opposed to theoretical cases) are heard as quickly and efficiently as possible. Finally, it ensures that the best evidence is before the decision maker: the evidence of someone actually affected.



(Lukacs v. Porter Airlines Inc., Canadian Transportation Agency, Decision No. 121-C-A-2016, April 22, 2016, at para. 19; see also Amalgamated Transit Union, Local 279 (Re), Canadian Transportation Agency, Decision No. 431-AT-MV-2008, August 20, 2008.)

[47] Mr. Lukács argued, however, that the courts’ law of standing is inappropriate in a tribunal context because, in his view, the assumptions that justify the use of standing in the civil courts context are absent. His argument, at its core, is for universal standing, namely that everyone who brings a claim before the Agency is entitled to have it heard.

[48] This claim for universal standing ignores why standing rules exist. As Cromwell J. explained in Downtown Eastside, “it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter” (para. 1). Standing rules allow tribunals to preserve and properly allocate scarce judicial resources, screen out “the mere busybody”, and ensure that contending points of view are fully canvassed (Downtown Eastside, at para. 25).

[49] Standing rules also ensure that tribunals have the “benefit of contending points of view of the persons most directly affected by the issue” (Downtown Eastside, at para. 29).

[50] And, as in courts, standing enables a 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. And all this to ensure that the most timely and effective use can be made of a tribunal’s ability to implement its mandate.

[51] Requiring a tribunal to adjudicate even marginal or inadequately substantiated complaints, on the other hand, grinds the operation of a tribunal to a halt and can be “devastating” to private litigants. As Cory J. warned in Canadian Council of Churches:

It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants. [p. 252]

[52] 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. Alltribunals have a public interest mandate because all legislation does. This does not mean that all litigants who want to bring a claim can automatically do so. The question is what the tribunal’s enabling legislation mandates or precludes (L. Sossin, “Access to Administrative Justice and Other Worries”, in C. M. Flood and L. Sossin, eds., Administrative Law in Context (2nd ed. 2013), 211, at p. 214).

[53] 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. That discretion is found in ss. 17 , 25 and 37 of the Canada Transportation Act, S.C. 1996, c. 10 . Under s. 37 of the Act , the Agency has the authority to determine which complaints it will inquire into:

37 The Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.

The Agency’s power to process and resolve complaints is framed in discretionary language. The Agency may inquire into, hear and determine a complaint. I agree with Mr. Lukács that anyone can bring a complaint, but his view that there is no discretion to decide which complaints to hear reads out the word “may” from s. 37.

[54] Under s. 17 of the Act , the Agency may 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. It states:

17 The Agency may make rules respecting



(a) the sittings of the Agency and the carrying on of its work;



(b) the manner of and procedures for dealing with matters and business before the Agency, including the circumstances in which hearings may be held in private; and



(c) the number of members that are required to hear any matter or perform any of the functions of the Agency under this Act or any other Act of Parliament.

These rules are codified in the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (“Rules”).

[55] Under s. 5(1) of the Rules,[3] the Rules are to be interpreted so as to facilitate the optimal use of Agency and party resources, and the promotion of justice. Examining the Agency’s mandate through the lens of efficiency, Dawson J.A. noted that “[e]fficient processes are the result of a number of factors, not the least of which are rules of procedure that establish efficient procedures and that are flexible and able to react to changing circumstances” (Lukács v. Canadian Transportation Agency, 2014 FCA 76, 456 N.R. 186, at para. 54). Formulating and applying screening or gatekeeping rules represents one way in which the Agency can legitimately realize these goals.

[56] And, under s. 25 of the Act , the Agency has “all the powers, rights and privileges that are vested in a superior court” to deal with “all matters necessary or proper for the exercise of its jurisdiction”, including compelling the attendance and examination of witnesses, ordering the production and inspection of documents, entering and inspecting property and enforcing its orders. Like s. 17 of the Act, s. 25 reflects a choice on the part of Parliament to grant the Agency expansive, discretionary authority to manage its own processes and procedures, including judicial powers.

[57] The Federal Court of Appeal in this case acknowledged that the Agency has the discretion not to hear every case:

As recently stated by this Court in Lukacs v. Canada (Transport Agency), 2016 FCA 202 (F.C.A.) at paragraphs 31-32, the Act does not create a general obligation for the Agency to deal with each and every complaint regarding compliance with the Act and its various regulations. Section 37 of the Act , in particular, makes it clear that the Agency “may” inquire into, hear and determine a complaint. There is no question . . . that the Agency retains a gatekeeping function and has been granted the discretion to screen the complaints that it receives to ensure, among other things, the best use of its limited resources.



(2016 FCA 220, 408 D.L.R. (4th) 760, at para. 16)

Yet after accepting that the Agency has discretionary gatekeeping authority, the Federal Court of Appeal went on to constrain that discretion by saying that the gatekeeping exercise could not be based on the approach used by courts.

[58] The legislature has given the Agency wide discretionary authority over how to exercise its mandate. It is not a fettering of discretion for a tribunal to exercise this discretionary authority differently from how a reviewing court would exercise it. This, with respect, results in the court unduly fettering the Agency’s discretion, not the Agency fettering its own.

[59] There is no doubt that one can envision other tests for standing, but once we accept that gatekeeping is a legitimate exercise of the Agency’s discretion in accordance with its mandate, what is the court’s authority for replacing the Agency’s test with one it prefers? As McIntyre J. cautioned in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, when he wrote: “. . . courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility” (para. 7).

[60] A tribunal’s standing rules will not necessarily survive scrutiny simply because the tribunal is authorized by statute to develop its own procedures. But when a tribunal like the Agency chooses to apply and exercise its broad legislative mandate by borrowing an approach long sanctioned by the courts as an effective and principled way to determine which cases it will hear, reviewing courts should not be overly eager to substitute their own vision of how that tribunal’s procedural mandate should be applied. To do so, in effect, undermines not only the legitimacy of the standing rules developed and applied by the courts, it undermines public confidence in the tribunal by suggesting it lacks the indicia of an adjudicative body with sufficient institutional maturity to apply the same rules as a court. Put colloquially, if it’s good enough for the courts, it’s good enough for tribunals. I recognize that the application of court-like procedures to the tribunal context may not, in certain circumstances, be appropriate, but where, as here, the adopted procedures flow from the same concerns and rationales, I see no reason for a tribunal to feel immunized from access to a procedure courts have found helpful.

[61] This does not mean that tribunals are required to follow the same procedures courts use, but when they do, this should not be a stand-alone basis for quashing them. Unless we are prepared to say that the courts’ standing rules are inappropriate, I see no reason to conclude that their propriety is diminished when applied by a tribunal. In this case, the Agency developed its standing rules in full accordance with its legislative mandate. There is no basis for interfering with them.

[62] There is no doubt that the test for public interest standing is a high threshold and results in some individuals or groups being unable to raise issues they consider significant. Yet courts routinely apply this threshold as a transparent way to determine the most effective use of their time, resources and expertise. No less are tribunals entitled to apply high thresholds in order to preserve their ability to manage resources and expertise in accordance with their mandate. Access to justice demands that courts and tribunals be encouraged to, not restrained from, developing screening methods to ensure that access to justice will be available to those who need it most in a timely way (Hryniak v. Mauldin, [2014] 1 S.C.R. 87). That is why courts developed standing rules in the first place.

[63] The test applied by the Agency effectively foreclosed Mr. Lukács’ ability to make out a case for public interest standing in this case. But, in my respectful view, that does not end the matter. The question to be determined is whether the outcome reached by the Agency was reasonable. Mr. Lukács has brought a complaint with no underlying facts, no representative claimants and no argument. He wants to engage the Agency in a fishing expedition that will have the effect of distracting it from its ability to exercise its mandate on behalf of those with a prima facie legitimate claim.

[64] Even if the Agency had applied the lower public interest standing test proposed by Mr. Lukács, I do not see how he would have been successful in having his complaint inquired into. It is therefore unnecessary to remit the matter back to the Agency. His complaint regarding Delta’s practices 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. He submitted no evidence that any of Delta’s passengers, including the passenger whose email he relied on, had actually been affected by the issue he raised before the Agency. In fact, he submitted no evidence at all even though the Agency has an open complaint procedure whereby complainants are invited to make and substantiate their complaints through an accessible online application.

[65] Nor has he provided any explanation for why a passenger affected by Delta’s practices could not have submitted his or her own application to the Agency, “thereby provid[ing] the Agency with direct and concrete evidence upon which to adjudicate” (Porter, at para. 65). Such direct and concrete evidence seems all the more necessary given the Agency’s decision dealing with, and Mr. Lukács’ acknowledged familiarity with the Agency’s best known disability case, setting out the “one-person - one-fare” policy, which states that “the determination of whether a person is disabled by reason of obesity is dependent on the facts and circumstances in each individual case and must be assessed on a case-by-case basis” (Norman Estate v. Air Canada, Decision No. 6-AT-A-2008, January 10, 2008, at para. 128).

[66] The Agency’s decision to deny Mr. Lukács’ complaint on the basis that he lacked standing was therefore reasonable in all the circumstances.

[67] I would allow the appeal and restore the Agency’s decision. Delta is not seeking costs.



Appeal allowed in part with costs to the respondent, Abella, Moldaver and Karakatsanis JJ. dissenting.

Solicitors for the appellant: Bersenas Jacobsen Chouest Thomson Blackburn, Toronto.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitor for the intervener the Canadian Transportation Agency: Canadian Transportation Agency, Gatineau.

Solicitors for the intervener the International Air Transport Association: DLA Piper (Canada), Vancouver.

Solicitor for the intervener the Council of Canadians with Disabilities: Public Interest Law Centre, Winnipeg.




[1] Disability complaints are brought under Part V of the Canada Transportation Act, S.C. 1996, c. 10 , which deals with the “Transportation of Persons with Disabilities”.


[2] Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265, Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575, Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, and Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 S.C.R. 524.


[3] 5 (1) These Rules are to be interpreted in a manner that facilitates the most expeditious determination of every dispute proceeding, the optimal use of Agency and party resources and the promotion of justice.

Saturday, August 12, 2017

Canada (Transport) v. Canadian Union of Public Employees Court (s) Database Federal Court of Appeal Decisions Date 2017-08-04 Neutral citation 2017 FCA 164 File numbers A-74-16 Date: 20170804 Docket: A-74-16 Citation: 2017 FCA 164

Canada (Transport) v. Canadian Union of Public Employees

Court (s) Database Federal Court of Appeal Decisions
Date 2017-08-04
Neutral citation 2017 FCA 164
File numbers A-74-16
Date: 20170804


Docket: A-74-16
Citation: 2017 FCA 164

CORAM:
NEAR J.A.
RENNIE J.A.
GLEASON J.A.


BETWEEN:

CANADA (MINISTER OF TRANSPORT)
Appellant

and

CANADIAN UNION OF PUBLIC EMPLOYEES and SUNWING AIRLINES INC.
Respondents

Heard at Toronto, Ontario, on March 30, 2017.

Judgment delivered at Ottawa, Ontario, on August 4, 2017.

REASONS FOR JUDGMENT BY:

GLEASON J.A.
CONCURRED IN BY:
NEAR J.A.
RENNIE J.A.


Date: 20170804


Docket: A-74-16
Citation: 2017 FCA 164

CORAM:
NEAR J.A.
RENNIE J.A.
GLEASON J.A.


BETWEEN:

CANADA (MINISTER OF TRANSPORT)
Appellant

and

CANADIAN UNION OF PUBLIC EMPLOYEES and SUNWING AIRLINES INC.
Respondents

REASONS FOR JUDGMENT

GLEASON J.A.

[1]               The Minister of Transport appeals from the judgment of the Federal Court (per Brown, J.) in Canadian Union of Public Employees v. Canada (Transport), 2016 FC 120 [Reasons] in which the Federal Court granted, in part, the judicial review application brought by the respondent, the Canadian Union of Public Employees (CUPE).
[2]               In its application, CUPE sought to set aside what it characterizes as two decisions, one verbal and the other in writing, granting ministerial approval to the respondent, Sunwing Airlines Inc., for a change to its flight attendant manual (FAM). The change in question made certain steps to be taken by flight attendants in carrying-out emergency evacuation procedures optional as opposed to mandatory. The Transport Canada Cabin Safety Inspector who granted the approval advised Sunwing to undertake a risk assessment before making the change to the FAM, but did not review that assessment before he approved the FAM amendment and provided no reasons for his decision authorizing the change.
[3]               The Federal Court set aside the Canada Cabin Safety Inspector’s written decision, finding it to be unreasonable but dismissed the application in respect of the Inspector’s earlier verbal decision. While I do not agree with all of the Federal Court’s reasoning as I believe that the Inspector made only one decision in this case, I concur that the decision in question is unreasonable as there is no way to determine if or why the Inspector was satisfied that the change in procedure would not compromise the safety of passengers and crew members in the event of an emergency evacuation. I would therefore dismiss this appeal with costs payable by the Minister in favour of CUPE in the amount agreed to by the parties.
I.                   Background

[4]               It is useful to begin by reviewing the relevant factual background.
[5]               Prior to the circumstances giving rise to this appeal, Sunwing staffed its fleet of 737-800 aircraft with one flight attendant for every 40 passengers. At the time, this was the applicable minimum staffing threshold required for these aircraft under section 705.104 of the Canadian Aviation Regulations, SOR/96-433 (CARs) in the absence of a ministerial exemption, authorizing fewer flight attendants. (The CARs were subsequently amended to set a 1:50 threshold as the minimum ratio of flight attendants to passengers on aircraft with a capacity of 50 passengers or more.)
[6]               In June 2013, Sunwing applied for an exemption from the minimum staffing requirements, seeking authorization to have only one flight attendant for every 50 passengers. On October 18, 2013, the Minister granted Sunwing a conditional exemption from section 705.104 of the CARs. One of the conditions for the exemption required that Sunwing demonstrate it was able to complete a partial evacuation simulation within 15 seconds.
[7]               Sunwing conducted partial evacuation simulations on November 22 and 27, 2013, which Transport Canada observed. The first three demonstrations were conducted in accordance with the procedures contained in Sunwing’s FAM. One of these procedures called for the mandatory issuance by the flight attendants of a “blocking command” to get passengers to assist in crowd control during evacuation procedures. The command involved shouting to passengers something like, “You there in the yellow shirt, block the aisle” or something similar to direct passengers to not block exit doors and thereby allow the flight attendants to open the doors and deploy the evacuation slides as quickly as possible.
[8]               The Sunwing flight attendants assigned to perform the partial evacuation simulation initially participated in two simulation attempts on November 22, 2013 and in a third attempt on November 27, 2013. In all three, they failed to carry-out the required procedures within 15 seconds. At a debriefing meeting held after the third failed attempt, the Transport Canada Cabin Safety Inspector suggested making the blocking command discretionary as a strategy for shaving seconds off of Sunwing’s testing time. He noted that the issuance of the command might be slowing things down and that when he was a flight attendant he had been able to get to the doors to open them before any passenger blocked his passage.
[9]               Sunwing conducted a final test later that same day, during which the flight attendants did not issue a blocking command. This time, without the command, they were able to complete all requirements for a partial evacuation within the 15 second time limit. Following this successful test, the Transport Canada Cabin Safety Inspector advised Sunwing management that Sunwing should make a formal application for approval of the change to its FAM and that it should conduct an internal risk assessment as part of that process.
[10]           In response, Sunwing did two things. First, on November 29, 2013, it completed a risk assessment using a standard template form. In it, Sunwing concluded that any risk to safety from making the blocking command non-mandatory would be mitigated by the fact that it would be unlikely for passengers to be blocking the doors that an attendant needed to access during an evacuation. The assessment is cursory and provides no indication of how this conclusion was reached. Moreover, it appears from the cross-examination of Sunwing representatives that no reliable testing was conducted to verify the accuracy of the conclusions drawn in the risk assessment.
[11]           Second, also on November 29, 2013, Sunwing sent the Transport Canada Cabin Safety Inspector a written request for approval of the amendment to the FAM regarding the change to the blocking command protocol. This request took the form of a “Cabin Safety Bulletin” outlining the change for which Sunwing sought approval from Transport Canada. Although this bulletin mentions that a risk assessment had been conducted in relation to the change, the assessment was not attached to the bulletin, described in the bulletin or detailed in the letter to Transport Canada.
[12]           On the same day (November 29, 2013), Transport Canada approved Sunwing’s Cabin Safety Bulletin and the amendment to Sunwing’s FAM. The decision, authored by the Transport Canada Cabin Safety Inspector, simply states:
Sunwing Airlines Inc.’s Cabin Crew Safety Bulletin No. 2013-10 meets the requirements of the Flight Attendant Manual Standard (TP12295) and therefore, in accordance with Subsection 705.139(3) of the Canadian Aviation Regulations is hereby approved.

[13]           Another Transport Canada inspector determined that Sunwing met the outstanding condition for approval of the staffing exemption and granted it an exemption to allow for a 1:50 flight attendant to passenger staffing ratio. That decision was judicially reviewed by CUPE, the flight attendants’ bargaining agent, but that application was dismissed for mootness after the CARs were amended to provide for a 1:50 threshold as the minimum ratio of flight attendants to passengers on aircraft with a capacity of 50 passengers or more: Canadian Union of Public Employees v. Canada (Transport), 2015 FC 1421.
[14]           CUPE also applied for judicial review of both the verbal approval of the FAM amendment on November 27, 2013 and of the follow-up written approval dated November 29, 2013. This application is the subject of the present appeal.
II.                The Relevant Statutory and Regulatory Framework

[15]           Prior to reviewing the Federal Court’s reasons, it is necessary to briefly detail the relevant statutory and regulatory backdrop to the Cabin Safety Inspector’s decision.
[16]           The CARs were enacted in 1996 pursuant to a number of provisions in the Aeronautics Act, R.S.C. 1985, c. A-2 (the Act). One of these enabling provisions was section 4.7(2) of the Act, which at the time stated:
4.7(2) For the purposes of protecting passengers, crew members, aircraft and aerodromes and other aviation facilities, preventing unlawful interference with civil aviation and ensuring that appropriate action is taken where that interference occurs or is likely to occur, the Governor in Council may make regulations respecting aviation security.

4.7(2) Pour la protection des aéronefs, de leurs passagers et équipages, des aérodromes et autres installations aéronautiques, ainsi que pour la prévention des atteintes illicites à l’aviation civile et la prise de mesures efficaces lorsque de telles atteintes surviennent ou risquent de survenir, le gouverneur en conseil peut, par règlement, régir la sûreté aérienne.

The current iteration of this provision is paragraph 4.71(2)(a):
Aviation security regulations

Règlements sur la sûreté aérienne

4.71 (1) The Governor in Council may make regulations respecting aviation security.

4.71 (1) Le gouverneur en conseil peut, par règlement, régir la sûreté aérienne.

Contents of regulations

Teneur des règlements

(2) Without limiting the generality of subsection (1), regulations may be made under that subsection

(2) Les règlements visés au paragraphe (1) peuvent notamment :

(a) respecting the safety of the public, passengers, crew members, aircraft and aerodromes and other aviation facilities.

a) régir la sécurité du public, des aéronefs et de leurs passagers et équipages ainsi que des aérodromes et autres installations aéronautiques.

[17]           The impugned decision in this matter was made pursuant to section 705.139 of the CARs. It provides:
Flight Attendant Manual

Manuel de l’agent de bord

705.139 (1) Every air operator, other than an air operator that is authorized solely for the transport of cargo in its air operator certificate, shall establish and maintain, as part of its company operations manual, a flight attendant manual for the use and guidance of flight attendants in the operation of its aircraft.

705.139 (1) L’exploitant aérien, autre que l’exploitant aérien qui est autorisé aux termes de son certificat d’exploitation aérienne à transporter uniquement du fret, doit établir et tenir à jour un manuel de l’agent de bord, qui fait partie du manuel d’exploitation de la compagnie, pour aider les agents de bord dans l’utilisation de ses aéronefs.

(2) A flight attendant manual shall contain the instructions and information necessary to enable flight attendants to perform their duties safely and shall contain the information required by the Flight Attendant Manual Standard.

(2) Le manuel de l’agent de bord doit contenir les instructions et les renseignements permettant aux agents de bord d’exercer leurs fonctions en toute sécurité, ainsi que les renseignements qu’exige la Norme relative au manuel des agents de bord.

(3) The Minister shall, where the Flight Attendant Manual Standard is met, approve those parts of a flight attendant manual, and any amendments to those parts, that relate to the safety and emergency information contained in Part A of the Flight Attendant Manual Standard.

(3) Lorsque la Norme relative au manuel des agents de bord est satisfaite, le ministre approuve les parties du manuel de l’agent de bord portant sur les renseignements visant les procédures de sécurité et les procédures d’urgence contenues dans la partie A de cette norme et toutes les modifications qui sont apportées au manuel.

(4) An air operator shall provide a copy of its flight attendant manual, including any amendments to that manual, to each of its flight attendants.

(4) L’exploitant aérien doit fournir à chacun de ses agents de bord un exemplaire du manuel de l’agent de bord et toutes les modifications qui y sont apportées.

(5) Every flight attendant who has been provided with a copy of a flight attendant manual pursuant to subsection (4) shall keep it up to date with the amendments provided and shall ensure that the appropriate parts are accessible when the flight attendant is performing assigned duties on board an aircraft.

(5) L’agent de bord qui a reçu un exemplaire du manuel de l’agent de bord en application du paragraphe (4) doit le tenir à jour en y insérant les modifications qui lui sont fournies et s’assurer que les parties applicables sont à portée de la main durant l’exercice des fonctions qui lui sont assignées à bord d’un aéronef.

[18]           The Flight Attendant Manual Standard is published by Transport Canada. It is a standardized template that forms the basis for a commercial airline’s FAM. Part A of the Flight Attendant Manual Standard outlines topics pertaining to safety measures and emergency information that must be included in an airline’s FAM. Part A must be accessible to flight attendants while they are working. Part B allows space for an airline to include other non-mandatory information. Part A is divided into six sections, and each section includes a number of headings and sub-headings that must be included by an airline in its FAM.
[19]           Section 2 of Part A deals with “Emergency Procedures” and includes 27 headings. There are a number of headings covering topics related to evacuations and emergency landings, including headings 2A.18 and 2A.19, which cover “Emergency Evacuation Commands” and “Emergency Evacuation Commands – Application” respectively. However, the Flight Attendant Manual Standard is only prescriptive insofar as topics to be covered in a FAM are concerned. With some exceptions (none of which are pertinent here), the Flight Attendant Manual Standard only identifies what issues must be addressed in a FAM (e.g. “blocked/jammed exit commands” under subsection 2A.19) without providing any sort of compliance standards.
[20]           As noted in subsection 705.139(1), an airline’s FAM forms part of the airline’s company operations manual, which is described in sections 705.134 and 705.135 of the CARs:
Requirements relating to Company Operations Manual

Exigences relatives au manuel d’exploitation de la compagnie

705.134 (1) Every air operator shall establish and maintain a company operations manual that meets the requirements of section 705.135.

705.134 (1) L’exploitant aérien doit établir et tenir à jour un manuel d’exploitation de la compagnie conforme aux exigences de l’article 705.135.

(2) An air operator shall submit its company operations manual, and any amendments to that manual, to the Minister.

(2) L’exploitant aérien doit soumettre au ministre le manuel d’exploitation de la compagnie et toutes les modifications qui y sont apportées.

(3) Where there is a change in any aspect of an air operator’s operation or where the company operations manual no longer meets the Commercial Air Service Standards, the air operator shall amend its company operations manual.

(3) L’exploitant aérien doit modifier le manuel d’exploitation de la compagnie lorsque des changements sont apportés à tout élément de son exploitation ou que le manuel n’est plus conforme aux Normes de service aérien commercial.

(4) The Minister shall, where the Commercial Air Service Standards are met, approve those parts of a company operations manual, and any amendments to those parts, that relate to the information required by section 705.135.

(3) L’exploitant aérien doit modifier le manuel d’exploitation de la compagnie lorsque des changements sont apportés à tout élément de son exploitation ou que le manuel n’est plus conforme aux Normes de service aérien commercial.

Contents of Company Operations Manual

Contenu du manuel d’exploitation de la compagnie

705.135 (1) A company operations manual, which may be issued in separate parts corresponding to specific aspects of an operation, shall include the instructions and information necessary to enable the personnel concerned to perform their duties safely and shall contain the information required by the Commercial Air Service Standards.

705.135 (1) Le manuel d’exploitation de la compagnie, qui peut être publié en parties distinctes portant sur des éléments particuliers de l’exploitation, doit comprendre les instructions et les renseignements permettant au personnel concerné d’exercer ses fonctions en toute sécurité et doit contenir les renseignements qu’exigent les Normes de service aérien commercial.

(2) A company operations manual shall be such that

(2) Le manuel d’exploitation de la compagnie doit :

(a) all parts of the manual are consistent and compatible in form and content;

a) d’une partie à l’autre, être uniforme et compatible sur les plans de la forme et du contenu;

(b) the manual can be readily amended;

b) être facile à modifier;

(c) the manual contains an amendment control page and a list of the pages that are in effect; and

c) contenir une liste des modifications et une liste des pages en vigueur;

(d) the manual has the date of the last amendment to each page specified on that page.

d) porter, sur chaque page modifiée, la date de la dernière modification apportée à la page.

[21]           The Commercial Air Service Standards that must inform an operator’s company operations manual provide various standards that track the specific regulatory requirements described in the CARs. Similar to the Flight Attendant Manual Standard, this document does not provide specific compliance standards for each mandatory topic.
[22]           Transport Canada has developed a Cabin Safety Inspector Manual (CSIM) that outlines the roles and responsibilities of the department’s Cabin Safety Inspectors. These inspectors are responsible for ensuring airlines’ compliance with various requirements as well as the CARs. Many of the Minister’s functions under the CARs are delegated to Cabin Safety Inspectors.
[23]           Under section 4.7 of the CSIM, Cabin Safety Inspectors are specifically identified as being responsible for assessing whether FAMs (or amendments to FAMs) will be approved under subsection 705.139(3) of the CARs. A Cabin Safety Inspector’s general role with respect to such verifications is described under section 4.12 “Documentation Review”, which states:
When reviewing […] the Flight Attendant Manual and […] Company Operations Manual […], the Cabin Safety Inspector should be familiar with the aircraft type(s) in the air operator’s fleet.

A preliminary review should be performed prior to a comprehensive review of any Cabin Safety documents and should be conducted promptly after receipt of the operator’s submission. If after preliminary review, the submission appears to be complete and of acceptable quality, or if the deficiencies are minor and can be quickly resolved, then a comprehensive review of the submission may begin.

If the submission is incomplete, unacceptable or obviously cannot be approved, the process is terminated and the Cabin Safety Inspector should return the submission with an explanation of the deficiencies. This should be completed promptly to alleviate any misconceptions the air operator may have on the progress of the submission.

[24]           The overall purpose of the CSIM is provided in section 1.1:
The Cabin Safety Inspector Manual (CSIM) has been prepared for use by Cabin Safety Inspectors.

The content of the manual directs the activities of Cabin Safety Inspectors and provides procedural guidance regarding routine cabin safety tasks.

Each Cabin Safety Inspector must have a thorough knowledge of the contents of this manual and adhere to the policies and procedures contained herein.

Consistent application of the procedures and guidelines will enable cabin safety matters to be conducted in a uniform manner on a national basis.

Cabin Safety Inspectors may encounter new or unique issues and situations for which no specific guidance has been provided. Consultation with Cabin Safety Standards is recommended in such circumstances. This process will increase awareness by all Cabin Safety Inspectors and achieve consistency nationally.

III.             The Federal Court’s Decision

[25]           The Federal Court accepted CUPE’s contention that, in the instant case, the Cabin Safety Inspector made two decisions: a verbal one on November 27, 2013 and a subsequent written decision on November 29, 2013. The Court determined that the reasonableness standard applied to the review of both decisions. Noting that subsection 705.139(3) of the CARs and its application had not been discussed in the jurisprudence, the Federal Court held that the applicable standard of review is reasonableness because “the Minister of Transport and his delegates at Transport Canadas are engaged in a discrete and special administrative regime [where the] decision-makers […] have special expertise” (Reasons at para. 54). Given the factual nature of the decisions being challenged in this matter, the Federal Court noted that Cabin Safety Inspectors’ decisions should be “afforded a wide range of appreciation” (Reasons at para. 55). Although rejecting the notion that the presence of safety concerns narrows the range of what would be considered reasonable as a matter of law, the Federal Court nevertheless recognized that safety was an important contextual factor.
[26]           With this in mind, the Federal Court determined that the verbal approval was reasonable while the written approval was not. In terms of the former, the Federal Court’s determination turned in part on the fact that the verbal approval was preliminary in nature.
[27]           In concluding that the written approval was unreasonable, the Federal Court came to four sequential determinations. The Court first held that the CSIM, a Transport Canada guideline aimed at ensuring safety, provides a benchmark for the process that should be undertaken by Cabin Safety Inspectors when they are asked to make approvals under the CARs. Second, the Federal Court concluded that ministerial approvals under the CARs (at least where safety is implicated) require a substantive review of the safety implications of a request. The Federal Court noted that the comprehensive review process identified in the CSIM would provide the necessary substantive administrative review required to make a decision under subsection 705.139(3) presumptively reasonable. Third, the Court determined that no comprehensive review took place in this case. Fourth, the Court concluded that the decision approving the change to Sunwing’s FAM was unreasonable as no comprehensive review had taken place. The Court concluded at paragraph 75 of the Reasons that:
[…] The failure to conduct the required “comprehensive review” casts doubt on the integrity of the ultimate decision and has the potential to undermine confidence in the application of Transport Canada’s air passenger safety mandate. Specifically, this failure could jeopardize passenger and crew safety in an emergency evacuation, as outlined below. Therefore in my view the failure to conduct a “comprehensive review” was in this case unreasonable, in particular because the Risk Assessment Transport Canada requested was neither reviewed nor considered by Transport Canada itself.

IV.             Analysis

[28]           As this is an appeal from a judicial review decision of the Federal Court, this Court is required to determine if the Federal Court selected the appropriate standard of review and, if so, whether the Federal Court applied that standard correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, [2013] 2 S.C.R. 559. Thus, this Court is required to step into the shoes of the Federal Court and re-conduct the requisite analysis.
[29]           In terms of that analysis, as noted, I believe that only a single reviewable decision was made in this case, namely, the Cabin Safety Inspector’s November 29th approval of Sunwing’s proposed change to its FAM. The approval given on that date was the one that was required by subsection 705.139(3) of the CARs. All that transpired two days earlier in the debriefing session is that the Cabin Safety Inspector indicated that he would approve an amendment to make the blocking command optional. However, the actual application for approval of that change was not made until November 29th and the decision in respect of it was made later that same day.
[30]           I concur with the Federal Court that the reasonableness standard applies to the review of this decision as the matters at issue involve the application of the CARs, the specialized regulations governing aeronautics promulgated under the Act. In addition, the matters at issue are largely, if not entirely, factual in nature and engage the expertise of the Cabin Safety Inspector in assessing the safety implications of the proposed changes to Sunwing’s FAM. These factors all point to the selection of reasonableness as being the applicable standard of review: Dunsmuir v. New Brunswick, 2008 SCC 9 at paras. 53-56, [2008] 1 S.C.R. 190 [Dunsmuir]; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 at paras. 22-24, [2016] 2 S.C.R. 293 [City of Edmonton].
[31]           As noted by the Supreme Court of Canada in Dunsmuir at paragraph 47, the hallmarks of a reasonable decision are that the decision is transparent, intelligible and justifiable as a possible outcome that is defensible in light of the relevant law and the facts in issue before the administrative decision-maker.
[32]           In assessing whether a decision meets the tripartite requirements of transparency, intelligibility and justification, a reviewing court must have regard to both the reasons given by the decision-maker (where it gives reasons) and the record before the decision-maker. Where necessary, the reviewing court may use the record to supplement the reasons if it finds in the record support for the decision under review: City of Edmonton, at paras. 36-38; Dunsmuir at para. 48; Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 56, [2011] 3 S.C.R. 654 [Alberta Teachers]. Indeed, for a decision to be upheld as being reasonable, it may not even be necessary for the decision-maker to have provided any reasons at all if the record allows the reviewing court to discern how and why the decision was reached and the decision-maker’s conclusion is defensible in light of the facts and applicable law: City of Edmonton at paras. 36-38; Alberta Teachers at para. 55.
[33]           Here, I agree with CUPE that in making the decision at issue, the Transport Canada Cabin Safety Inspector was required to be satisfied that the proposed change to Sunwing’s FAM would not compromise the safety of passengers or crew on a Sunwing flight in the event of an emergency evacuation. Although the Minister of Transport contended otherwise in its memorandum of fact and law, during the hearing counsel for the Minister conceded that, for the decision to be reasonable, it was necessary for the Inspector to have concluded that the proposed FAM amendment did not compromise safety.
[34]           This concession was appropriate as it seems to me that it is incontrovertible that the role of an inspector under subsection 705.139(3) of the CARs is to assess the safety of the proposed amendments to an operator’s FAM as opposed to engaging in a sterile exercise of merely ensuring that a proposed FAM amendment meets the requirements of the Flight Attendant Manual Standard by simply saying something about one of the topics that must be covered in a FAM. Were it otherwise, the role of the inspector would be superfluous.
[35]           Moreover, one of the enabling provisions under which the CARs were promulgated provides that the purpose of these regulations is aviation safety. In addition, fostering flight safety is specifically recognized as being a key requirement for the contents of an operator’s operations manual, of which a FAM is a part, as subsection 705.135(1) of the CARs provides that the manual, in addition to covering the mandatory topics, “shall include the instructions and information necessary to enable the personnel concerned to perform their duties safely […]”.
[36]           In several cases, in examining other provisions in the CARs or in the Act, several courts (including this one) have noted that at least one of the purposes of the Act and the CARs and one of the roles of the Minister or his delegates in making decisions under them, is fostering aviation safety: see, for example, R. v. 264544 Alberta Ltd., [1986] 1 W.W.R. 365 at para. 11, 65 A.R. 217 (A.B.C.A.); Aztec Aviation Consulting Ltd. v. Canada, [1990] B.C.W.L.D. 1707 at paras. 5 and 20, 33 F.T.R. 210 (F.C.T.D.); Swanson Estate v. Canada, [1992] 1 F.C. 408 at para. 27, 80 D.L.R. (4th) 741; Bahlsen v. Canada (Minister of Transport), [1997] 1 F.C. 800 at para. 75, 141 D.L.R. (4th) 712 (F.C.A.); R. v. Biller, [1999] 8 W.W.R. 629 at para. 41, 174 D.L.R. (4th) 721 (S.K.C.A.); Gill v. Canada (Minister of Transport), 2015 BCCA 344 at paras. 26-31, 388 D.L.R. (4th) 593; Sierra Fox Inc. v. Canada (Federal Minister of Transport), 2007 FC 129 at para. 6, 308 F.T.R. 219.
[37]           In the instant case, the need for the Transport Canada Cabin Safety Inspector to have been satisfied that the proposed amendment to the FAM did not compromise safety is underscored by the requirements of Transport Canada’s CSIM, providing for a substantive review of proposed FAM amendments. This contemplates that an inspector will undertake a review of the contents and implications of proposed amendments.
[38]           Thus, to approve Sunwing’s proposed change to its FAM to make the blocking command optional as opposed to mandatory, the Cabin Safety Inspector was required to be satisfied that the amendment did not compromise the safety of passengers or crew on board Sunwing’s flights. And, for the Inspector’s decision to be upheld under the reasonableness standard of review, this Court must be able to ascertain whether the Inspector made such a determination, and, if so, whether there was a reasonable basis for it. In the present case, in the absence of reasons for the decision, the Court must have regard to the record to assess the reasonableness of the Inspector’s decision.
[39]           In light of the record, I cannot conclude that the requisite analysis was undertaken by the Inspector or discern how he could have concluded that the proposed FAM amendment did not compromise safety. In detailing the steps to be undertaken by Sunwing in making the change to its FAM, the Inspector reminded Sunwing that it was required to undertake a risk assessment, yet that assessment was never reviewed by the Inspector. Moreover, the assessment was cursory and there appears to have been little or no evidence to support the conclusions reached in the assessment.
[40]           In light of these facts and of the importance of ensuring that changes to aircraft emergency evacuation procedures are safe, I do not believe that the Inspector’s decision can be upheld as being reasonable. The decision cannot be said to be transparent, intelligible or justifiable as we simply do not know if, how or why the Inspector could have concluded that the proposed change did not compromise safety. Not only did the inspector fail to review Sunwing’s risk assessment, there is in addition no evidentiary basis to substantiate the assumption that passengers would not likely block a Sunwing flight attendant who needs to open an emergency exit to evacuate the aircraft. Thus, it is impossible to see how the Inspector could have been satisfied that the proposed amendment to the FAM did not compromise safety. In short, the record reveals that a mandatory safety requirement was abrogated without there being evidence to support the assumption that it was not required. The Inspector’s decision therefore cannot stand.
[41]           Thus, I concur with the Federal Court that the Cabin Safety Inspector’s November 29, 2013 decision should be set aside and would accordingly dismiss this appeal, with costs. The parties jointly submitted that costs should be payable only by the Minister in the event that CUPE were successful and that they should be fixed in the all-inclusive amount of $3,000.00. I concur that this is appropriate and would therefore order the Minister to pay costs to CUPE in the amount of $3,000.00, all-inclusive.
“Mary J.L. Gleason”
J.A.
“I agree.
D. G. Near J.A.”
“I agree.
Donald J. Rennie J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD


DOCKET:
A-74-16


STYLE OF CAUSE:
CANADA (MINISTER OF TRANSPORT) v. CANADIAN UNION OF PUBLIC EMPLOYEES and SUNWING AIRLINES INC.


PLACE OF HEARING:

TORONTO, ONTARIO

DATE OF HEARING:

MARCH 30, 2017

REASONS FOR JUDGMENT BY:
GLEASON J.A.

CONCURRED IN BY:
NEAR J.A.
RENNIE J.A.

DATED:

AUGUST 4, 2017

APPEARANCES:

Joseph Cheng

FOR THE APPELLANT

Stephen J. Moreau

FOR THE RESPONDENT
CANADIAN UNION OF PUBLIC EMPLOYEES

Paul Michell
FOR THE RESPONDENT
SUNWING ARILINES INC.
SOLICITORS OF RECORD:

Nathalie G. Drouin
Deputy Attorney General of Canada

FOR THE APPELLANT

Cavalluzzo Shilton McIntyre Cornish LLP
Barristers & Solicitors
Toronto, Ontario
FOR THE RESPONDENT
CANADIAN UNION OF PUBLIC EMPLOYEES
Lax O’Sullivan Lisus Gottlieb LLP
Barristers & Solicitors
Toronto, Ontario
FOR THE RESPONDENT
SUNWING AIRLINES INC.