Canada: When A Tribunal's Reasons Won't Fly: SCC In Lukács Addresses Supplemental Reasons And Public Interest Standing

In Delta Air Lines Inc. v. Lukács, 2018 SCC 2 ("Lukács"), the Supreme Court of Canada addressed two important issues in administrative law. First, the Court addressed the role that a Tribunal's reasons play in judicial review for substantive error. Second, the Court addressed principles relating to public interest standing, including standing before regulatory tribunals.

Background

Dr. Lukács was a self-described airline passenger advocate. Although not an obese person himself, he took issue with a policy of the appellant airline that sometimes resulted in obese passengers being moved to a different section of the airplane or bumped from the flight altogether. Dr. Lukács filed a complaint with the Canadian Transportation Agency (the "Agency"), which regulates airlines in Canada. The Agency dismissed Dr. Lukács' complaint on the grounds that he did not satisfy the tests for private interest standing or public interest standing that have been developed by and for the civil courts in Canada.

The Federal Court of Appeal allowed the appeal, held that the Agency's decision was unreasonable, and remitted the matter back to the Agency for redetermination (2016 FCA 220). The Federal Court of Appeal looked at the Agency's enabling statute, which was designed to let "any person" make a complaint to the Agency. The Federal Court of Appeal held that a person did not need to be directly personally affected by a decision of the Agency in order to bring a complaint. The Federal Court of Appeal held that the Agency had fettered its discretion by adopting the public interest standing test from the civil courts. The airline appealed to the Supreme Court.

Supreme Court of Canada Majority Decision

Chief Justice McLachlin wrote the majority decision dismissing the appeal and holding the Agency's decision unreasonable. The two key points addressed were the role of reasons in judicial review for substantive error, and the principles governing public interest standing.

First, the majority was emphatic that, in this case, the reviewing court could not substitute its own reasons for the reasons that were given by the tribunal.[1] The majority stated that "[s]upplementing reasons may be appropriate in cases where the reasons are either non-existent or insufficient." (para 23). The majority explained it like this:

[W]hile 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. (para 24)

The majority declined to supplement the Agency's reasons in this case for three reasons. Firstly, the appellant airline had not pointed to any administrative law authority justifying the court applying its own test for public interest standing. Secondly, for a reviewing court to simply replace a tribunal's reasons would undermine the crucial role that reasons play in administrative law. The majority stressed that 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." (para 27). Thirdly, the majority noted that it would be ironic for it to apply a deferential standard of review while at the same time telling the Agency what its complaint procedure should look like.

Second, the majority discussed the principles and rationale underlying public interest standing. The court reiterated the holding of Downtown Eastside that the courts must take a "flexible, discretionary approach" (para 18).[2] The majority held that:

The whole point is for the court to use its discretion, where appropriate, to allow more plaintiffs through the door. (para 18)

In this case, the Agency had adopted the civil test for public interest standing, but applied the three prongs as absolute technical requirements as opposed to factors to be weighed contextually. In particular, under the Agency's approach, the second prong of the test—whether the party is affected by the decision or has a genuine interest in the validity of the legislation—could never be satisfied by any public interest complainant, since any challenge of an airline's terms and conditions is not a challenge to the validity of legislation. Such a strict test was at odds with the Agency's role to regulate air carriers. The majority relied on the scheme of the Agency's enabling legislation, especially the Agency's broad powers to receive and hear complaints.

The majority remitted the matter back to the Agency for reconsideration.

Supreme Court of Canada Dissent

Justice Abella authored the dissent, joined by Moldaver and Karakatsanis JJ. The dissent would have allowed the appeal and restored the Agency's decision. The dissent wrote that it was Parliament's intent for the Agency to have authority to interpret and apply its wide-ranging statute dealing with national transportation issues. Like the courts, the Agency was entitled to apply a principled screening or gatekeeping function to balance competing interests. Contrary to the Federal Court of Appeal, the dissent argued that the Agency should be allowed to apply the same standing test as the courts:

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. (para 61; emphasis in original)

The dissent also noted that Dr. Lukács had failed to present the Agency with evidence regarding (a) the Agency's actual complaint process; (b) whether any passenger had actually been affected by the airline's policy; and (c) any reason why passengers actually affected by the airline's policy would not be able to bring their own complaint.

Commentary

The Lukács decision is significant because it addresses concerns raised within the administrative law community following the controversial Edmonton East decision from late 2016.[3] We previously summarized and discussed the Edmonton East decision here. In Edmonton East,  the tribunal had provided written reasons but had not addressed the jurisdictional issue that was challenged on judicial review. At the Supreme Court, Karakatsanis J. for the majority (notably McLachlin C.J. was in the dissent) effectively wrote a whole new set of reasons for that tribunal, addressing the jurisdictional issue and reinstating the tribunal's decision.

Now, in Lukács, the majority has held that a reviewing court may supplement a set of reasons where the reasons at first instance are "either non-existent or insufficient". However, where the tribunal provides detailed reasons that are nonetheless unreasonable, Lukács says that the reviewing court cannot supplement the reasons. This creates an odd scenario in which the more meagre a tribunal's reasons, the more a reviewing court will step in to "supplement" the reasons—the result of which will likely be a "supplemental" reasonable chain of analysis to buttress the tribunal's decision. This is opposite the intuitive scenario in which the worse a tribunal's reasons are, the more likely a court would intervene to overturn the decision.

There may continue to be uncertainty about what a reviewing court should do when it is confronted with a situation where the tribunal provided some reasons at first instance, but did not provide reasons in respect of one or more issues forming the grounds for the judicial review application. One way to read Lukács harmoniously with Edmonton East is to say that where the tribunal failed to address an issue underpinning the judicial review challenge, the tribunal's reasons fall into the "insufficient" category, allowing the reviewing court to "supplement" the tribunal's reasons. However it is still far from clear where the line is drawn between "insufficient" and "unreasonable" when reviewing a tribunal's chain of analysis using its reasons.[4] For example, wouldn't the failure of the tribunal to consider a key issue be unreasonable?

The decision in Lukács is also significant because it reaffirms that there should be an open door for public interest litigants with genuine complaints. It is not a free pass for any litigant to walk through the door. But the majority's decision affirms that, before both administrative tribunals and the courts proper, people should be able to bring complaints even if they are not directly or adversely affected. In other words, there needs to be a judicial or quasi-judicial route for concerned persons to remedy injustices. Significantly, the Chief Justice chose to underscore the courts and tribunals as an accessible means to obtain justice in what is likely one of her final authored decisions following a long and accomplished tenure leading Canada's highest court.

Case Information

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

Docket: 37276

Date of Decision: January 19, 2018

Footnotes

1 Recall that in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, the Supreme Court held that, so long as reasons are given that allow a reviewing court to figure out why the tribunal reached its decision, the requirement of procedural fairness is satisfied, and the analysis moves to whether the reasons are within the range of reasonable outcomes.

2 Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 SCR 524 ("Downtown Eastside").

3 Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 SCR 293 ("Edmonton East").

4 The upshot of all the confusion may be, simply, that "deference as respect" has completely failed as a juridical test that can be applied in practice.

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