The Supreme Court of Canada Friday sent a bid by air passenger rights advocate Gabor Lukacs to complain about Delta Airline’s policy on seating obese passengers back to the Canadian Transportation Agency — which had denied Lukacs standing in the first place.
The CTA had said that since Lukacs, who weighs 170 pounds, is not himself obese, he has no right to private standing — and since his complaint is not based on constitutional grounds, he has no public interest standing, either.
In a 6-3 decision, retiring Chief Justice Beverley McLaughlin, writing for the majority, said the CTA was not reasonable in dismissing Lukacs complaint.
“The agency,” she wrote, “presumed public interest standing is available (for Lukacs) and then applied a test that can never be met.” She said the CTA took the approach that public interest standing can only be granted if a constitutional matter is at stake — and given Delta is a private company, that was not an issue.
The ruling is a victory for Lukacs, a Halifax-based math professor who represented himself at the October hearing before the top court. He has, in the last decade, successfully filed two dozen complaints against several airlines with the CTA. He does this work voluntarily and without compensation.
It’s due to Lukacs’ efforts, for instance, that Canadians have the right to $800 compensation if they’re bumped off an overbooked flight and delayed for more than six hours.
In this case, Lukacs — armed with an email sent by Delta to a passenger outlining the airline’s practice of making “large” or obese passengers buy two seats or risk being bumped to a later flight — complained to the CTA.
The agency, a semi-judicial tribunal charged with regulating the airlines, is supposed to ensure Canadians with disabilities don’t face discrimination as passengers.
Lukacs asked that the CTA order Delta to end its policy on obese passengers. But without considering whether obese passengers were being treated unfairly, the CTA dismissed the complaint on the basis of Lukacs’ standing.
Lukacs then went to the Federal Court of Appeal which, in a 3-0 decision, set aside the dismissal and told the CTA to think again about his complaint.
It was Delta, not the CTA, which appealed to the top court in a challenge to Lukacs’ qualifications, objecting that he isn’t obese and didn’t raise any Charter issues.
But that’s a test for standing developed for civil courts, not for administrative tribunals such as the CTA. The majority on the top court found the CTA was being inflexible in sticking to such a narrow test.
It said the CTA should consider other standards in determining Lukacs’ standing, such as whether the complaint is in good faith, is timely, is vexatious or in line with the agency’s workload.
Justices Rosalie Abella, Andromache Karakatsanis and Michael Moldaver dissented, saying the CTA’s denial of standing was reasonable.
For Lukacs, the victory is bittersweet because of a clause in the new proposed passengers’ bill of rights currently sitting with a Senate committee. Transport Minister Marc Garneau’s bill, C-49, specifically prohibits anyone but “a person adversely affected” from filing a complaint about an airline with the CTA.
Lukacs feels the clause frustrates the work of public interest advocates like himself. He has acquired detailed knowledge of airline regulations and doesn’t charge passengers for his work on their behalf. Of course, those passengers will be free to hire lawyers — but the cost might be a deterrent for them.
“Today we have won the battle, but the fight is far from over,” Lukacs said this morning from his home in Halifax.
“The Canadian Transportation Agency and the airlines would just love to shut the door to public interest advocates, but the Supreme Court of Canada has said no, that’s not what the purpose of the law is,” he said.
The Senate Transport Committee will continue to study C-49 even though Garneau urged senators to pass it before Christmas.
“We’re very proud the Senate has put its foot down and is not willing to be a rubber stamp for the government,” Lukacs said.
The court awarded Lukacs his costs, which will cover the expense of his flight to Ottawa for the hearing last fall, as well as money spend on putting together dozens of copies of his submission.
Whatever happens, Lukacs is unlikely to go away. In late December he filed a complaint with the Federal Court of Appeal over the CTA’s effective waiver of the fine it levied on Air Transat for holding passengers on the tarmac for several hours without adequate food or water.
Source: iPolitics, January 19, 2018