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Judicial Review - Against Rules, Not Decisions. Air Passenger Rights v. Canada (Attorney General)
In Air Passenger Rights v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed a JR challenging a Canada Transportation Agency (CTA) policy, a 'Statement on Vouchers':[1] Air Passenger Rights (APR) seeks judicial review of a Statement on Vouchers published by the intervener, Canadian Transportation Agency (CTA), on or about March 25, 2020, and a CTA webpage titled "“Important Information for Travellers During COVID-19”" that referred to the Statement. The Statement was issued in response to the mass cancellation of domestic and international flights that occurred during the first weeks of the COVID-19 pandemic in Canada in March 2020. This was a period of air travel chaos and uncertainty for travellers and airlines alike. APR asserts that the Statement and webpage violated the CTA’s Code of Conduct and gave rise to a reasonable apprehension of bias on the part of the CTA as a whole and on the part of CTA members who endorsed the Statement. APR alleges that the CTA published the Statement for the improper purpose of assisting airlines by stifling the surge in credit card chargebacks they were then facing. APR also asserts that the Statement misled air passengers regarding their refund rights in the event of flight cancellations.
[2] APR is a Canadian non-profit entity established to continue the work of Dr. Gábor Lukács, a long-standing advocate for the rights of air passengers. Its mandate includes education for air passengers and the public of their rights in relation to air travel, enforcement of those rights, appearances before Parliamentary committees regarding air passenger protection, and participation in the CTA consultation processes that resulted in the Air Passenger Protection Regulations, S.O.R./2019-150 (the Regulations).
[3] APR has assumed responsibility for the extensive litigation undertaken by Dr. Lukács in furtherance of his work regarding the interests of air travellers and seeks public interest standing to bring this application.
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[6] For the reasons that follow, I find that the Statement is not amenable to judicial review because it does not affect legal rights, impose legal obligations or cause prejudicial effects. The Statement contains non-binding guidance only and expressly reserves the rights of air travel passengers to submit claims to the CTA, each of which will be examined on its merits. I would therefore dismiss this application.
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[16] An application for judicial review may be brought by the Attorney General of Canada or by anyone directly affected by a "“matter in respect of which relief is sought”" (ss. 18.1(1) of the FC Act). A "“matter”" is not restricted to a decision or order. It extends to "“any matter in respect of which a remedy may be available”" under section 18 of the FC Act (Air Canada v. Toronto Port Authority Et Al, 2011 FCA 347 at para. 24 (Toronto Port Authority), citing Krause v. Canada, 1999 CanLII 9338 (FCA), [1999] 2 F.C. 476 (C.A.)). Further, subsection 18.1(3) of the FC Act provides that the Federal Courts may on judicial review grant relief relating to the failure, refusal or unreasonable delay to do any "“act or thing”" and to a "“decision, order, act or proceeding of a federal board, commission or other tribunal”". In Democracy Watch 2021 (at para. 29), the Court confirmed that a reviewable matter is broader than a decision but cautioned that the matter must include something in respect of which a remedy may be available under subsection 18.1(3).
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[18] I agree that the Court may review the conduct of an administrative body in issuing statements, guidance, bulletins or other matters that fall "“short of formal decisions or orders”" (Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72 at para. 94 (Canadian Council for Refugees)). The fact that the Statement does not take the form of a formal decision or order is not determinative of its justiciability. However, not all administrative conduct is subject to judicial review: "“One such situation is where the conduct attacked in an application for judicial review fails to affect legal rights, impose legal obligations, or cause prejudicial effects”" (Toronto Port Authority at para. 29, citing Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, and Democracy Watch v. Conflict of Interest and Ethics Commissioner, 2009 FCA 15; see also Sganos v. Canada (Attorney General), 2018 FCA 84 at para. 6 (Sganos)).
[19] The Court confirmed the parameters within which matters involving administrative actions are reviewable in paragraph 94 of Canadian Council for Refugees:[94] Applications for judicial review are possible where a matter - usually administrative conduct or inaction — affects legal rights, imposes legal obligations or causes real prejudicial effects: Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488 at paras 21-25; Democracy Watch v. Conflict of Interest and Ethics Commission, 2009 FCA 15, 387 N.R. 365. As a result, there are examples of judicial reviews for administrative conduct or inaction falling short of formal decisions or orders […]. (My emphasis.) [20] APR refers to a number of cases in support of its argument that the Statement is justiciable as a manifestation of the CTA’s improper conduct and/or reasonably indicative of bias. In my view, the decisions in Apotex Inc. v. Canada (Health), 2015 FC 1161 (Apotex), CNG Transmission Corp. v. Canada (National Energy Board) (T.D.), 1991 CanLII 13583 (FC), [1992] 1 FC 346, 48 F.T.R. 20 (CNG) and C.D. Lee Trucking Ltd. v. Industrial Wood and Allied Workers of Canada, 1998 CanLII 6678 (BCSC) (C.D. Lee)), are of limited utility to APR’s justiciability arguments. The conduct attacked in each of the three applications resulted in binding decision(s) that clearly affected the legal rights of and had prejudicial effects on the affected applicant.
[21] APR also argues that the circumstances of the present case are indistinguishable from those before the Ontario Courts in E.A. Manning Ltd. v. Ontario Securities Commission, 1994 CanLII 10560 (ON SC), 18 O.R. (3d) 97, [1994] O.J. No. 1026 (QL) (Div. Ct.) (E.A. Manning Div. Ct.) and E.A. Manning Ltd. v. Ontario Securities Commission, 1995 CanLII 1706 (ON CA), 23 O.R. (3d) 257), [1995] O.J. No. 1305 (QL) (C.A.) (E.A. Manning CA). At issue in the E.A. Manning cases was an application for an order of prohibition to prevent the Ontario Securities Commission (the Commission) from proceeding with two hearings relating to alleged improper sales practices. The appellant companies raised issues of bias and reasonable apprehension of bias arising principally from the adoption by the Commission of Policy Statement 1.10. Previously, the Ontario Court of Appeal had concluded that the Commission acted outside of its statutory mandate in adopting Policy 1.10 by seeking to impose a "“de facto legislative regime complete with detailed substantive requirements”:" Ainsley Financial Corp. v. Ontario Securities Commission, 1994 CanLII 2621 (ON CA), 21 O.R. (3d) 104, [1994] O.J. No. 2966 (QL) (C.A.) at para. 21 (Ainsley CA). In E.A. Manning CA, the Court noted that the Policy was held in Ainsley CA to have crossed the line between a non-mandatory guideline and a mandatory pronouncement having the same effect as a statutory instrument (E.A. Manning CA at para. 21). In effect, the Commission had already determined that the E.A. Manning parties were guilty of the practices set out in the Policy Statement (E.A. Manning Div. Ct. at paras. 40, 51-55).
[22] In my view, the Commission’s impugned Policy 1.10 and the Statement are fundamentally different in scope and effect. The Ontario Court of Appeal described Policy 1.10 as setting out "“a minutely detailed regime complete with prescribed forms, exemptions from the regime, and exceptions to the exemptions”" (Ainsley CA at para. 19). The prejudicial effects of the adoption by the Commission of the Policy on the E.A. Manning companies were both obvious and at the centre of the dispute before the Ontario courts.
[23] In contrast, the Statement contains only general guidance. It is a one-page statement from the CTA that expressly preserves the appeal and review rights of air passengers. The Statement was issued by the CTA, and not by one or more of its individual members, and states that: "“any specific situation brought before the CTA will be examined on its merits…”" Each air passenger retains all legal rights available to them under the Transportation Act and the FC Act, including the right to file a complaint with the CTA. If the complainant is not satisfied with the resulting decision, they have the right to file an appeal of the CTA’s decision on a question of law or jurisdiction under subsection 41(1) of the Transportation Act or an application for judicial review of the decision in this Court.
[24] The question for the Court is whether APR has established that the Statement prejudicially affected the rights of airline passengers whose flights were cancelled amidst the disruption of the COVID-19 pandemic in Canada. The test is one of causation (Democracy Watch at para. 43): Did the Statement cause the prejudicial effects outlined by APR?
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[30] APR’s evidence and arguments are not persuasive. The actions of third parties are not the actions of the CTA, nor is the CTA responsible for the decisions taken by airlines and credit card companies. APR’s evidence demonstrates only that third parties used the Statement to justify refund and credit card chargeback refusals. The prejudicial effects asserted by APR flow not from the Statement or the conduct of the CTA but from the interpretation and use of the Statement by third parties. APR asks the Court to consider the Statement from the public’s perspective but there is little evidence in the record of that perspective outside of a limited number of email chains in which frustrated air travellers vented their dissatisfaction with the Statement. In any event, the public’s possible interpretation of the Statement does not establish prejudicial effect or justiciability.
[31] In concluding this section of my analysis, I find that the Statement and references to the Statement on the CTA Information webpage are not justiciable. APR has not established that the Statement affected or caused prejudicial effects on the rights of air passengers to refunds for flight cancellations due to the COVID-19 pandemic. While APR has demonstrated the frustrations experienced by a number of air travellers in dealing with Canadian airlines and credit card companies in the aftermath of mass flight cancellations, those frustrations were caused by the third parties. Similarly, any denial of refunds and chargeback credits was imposed or acceded to by the airlines and credit card companies. Third-parties’ mischaracterization of the Statement, whether as a ruling or approval, was not endorsed by the CTA and does not transform the Statement into a mandatory pronouncement.
[32] The Statement is written in simple language and conveys a possible way forward in unprecedented circumstances, subject to the adjudication of each case on its own merits. It is drafted using permissive language and addresses one topic. It does not purport to provide a detailed overview of the state of Canadian legislation and jurisprudence regarding the right to refunds, nor does the Statement alter an air passenger’s legal entitlement to a refund for certain cancelled flights. Although APR asserts that the Statement misinforms the travelling public about their refund rights, it has pointed to no requirement that the CTA reference the relevant refund legislation, tariff and case law when issuing an interim statement that makes clear reference to travellers’ ability to file a complaint despite the guidance in the Statement. . Harold The Mortgage Closer Inc. v. Chief Executive Officer of the Financial Services Regulatory Authority of Ontario
In Harold The Mortgage Closer Inc. v. Chief Executive Officer of the Financial Services Regulatory Authority of Ontario (Div Court, 2024) the Divisional Court considered a motion to quash a JR, here which challenged the issuance of a 'notice of proposal' by the 'Financial Services Regulatory Authority' (FSRA) tribunal to revoke and refuse to renew a mortgage broker license, to impose administrative penalties - and as well of the FSRA's publication of tribunal enforcement policy documents, and more. The applicants also filed for a full de novo hearing before the Financial Services Tribunal in relation to this matter.
Here the court addresses the Authority's "publication decisions" - including aspects of the public 'notice of proposal', which the court does not quash out of concern that the 'notice of proposal' contained some defamatory-like statements which had been shown to "to slag them in the marketplace":[8] Under the applicable statutory scheme, the applicants will be entitled to a full hearing process before the tribunal in respect of the allegations contained in the regulator’s notice of proposal. A very high degree of procedural protection is available to the applicants in light of the serious nature of the relief sought against them. The hearing is a full trial de novo. It is not just an appeal from the notice of proposal. The hearing outcome will be based on the evidence to be admitted, after pre-hearing disclosure, cross-examination of witnesses, and submissions.
[9] The regulator rightly distinguishes two types of claims brought by the applicants. They each result in different outcomes.
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[23] The other aspect of the case involves the regulator’s publication decisions. The regulator submits that it did not exercise a statutory power of decision when it adopted its publication guidelines. They are not binding on anyone and do not have the force of law. They just tell the marketplace when to expect enforcement steps to be publicized by the regulator.
[24] Similarly, the regulator submits that it has no statutory duty to publish the applicants’ request for a hearing although the applicants dispute the facts in the notice of proposal and ask the regulator to be fair and balanced.
[25] The applicants can also show that competitors have used the notice of proposal as published by the regulator to slag them in the marketplace. They submit that the regulator’s decisions to publish the notice of proposal and the decision to refuse to publish their request for hearing impair its reputation and impact its legal rights.
[26] As I am not quashing these requests for judicial review, I will say little about them. The SCC has recognized peoples’ legal interest in their reputation. While I am dubious that the applicant has standing to challenge the publication guidelines or that the publication of the guidelines was an exercise of a statutory power, to the extent that the guidelines become an excuse or justification for the regulator’s publication decisions, I would not put challenging them beyond the applicants’ reach.
[27] But the real focus of the applicant is on the regulator’s decision to publish the notice of proposal and the decision to refuse to publish the request for a hearing. It is not impossibly far-fetched that ss. 3 and 6 of the Financial Services Regulatory Authority of Ontario Act impose constraints (if not a duty) on the activity of the regulator especially where reputational harm of a registrant is at risk (or is intended rightly or wrongly). Moreover, since the notice of proposal is not a dead letter in the tribunal hearing, issues of procedural fairness may arise concerning the regulator’s conduct if it affects the fairness of the hearing.
[28] I cannot say that it is plain and obvious that the applicants have no rights vis-à-vis the regulator’s decisions about what to publish or not publish concerning the applicants. I expressly leave open to the panel of the Divisional Court the possibility that it may find this issue too best dealt with first before the Financial Services Tribunal. But while the validity of the notice of proposal and its contents is squarely before the tribunal, I am less sure that this issue will necessarily be before the tribunal.
[29] I am in no way endorsing the strength of the claims to challenge either the guidelines themselves or the publication decisions surrounding the notice of proposal, I do not accept the regulator’s submissions that it is plain and obvious that they are either unreviewable private decisions or decisions that do not impair the legal rights or interests of the applicants.
[30] Mr. Solmon asks me to defer to the panel the question of whether the applicants need or ought to be granted more time to bring their applications under s. 5 (2) of the JRPA. Having quashed the claims against the notice of proposal, perhaps this is no longer an issue. Regardless, in my view, the panel that hears matters on their merits is generally better armed to assess the equities involved in the balancing of interests under s 5 (2). I therefore defer that issue to the panel. . Caruso v. The Law Society of Ontario
In Caruso v. The Law Society of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) a JR by an Ontario paralegal challenging the accepted constitutional governage of immigration consultants, specifically whether LSO By-law 4 ['Licensing'] governed the issue as opposed to s.91(2) ['Representation or Advice'] of the Immigration and Refugee Protection Act.
In these quotes the court considers it's discretionary JR jurisdiction over a challenge to the LSO By-laws:Court’s Jurisdiction
[29] In the ordinary course, this issue (the proper interpretation of By-Law 4) would come to the Divisional Court as an appeal under s. 49.38 (b) of the Law Society Act from a discipline proceeding against a paralegal who did not comply with the LSO’s interpretation of By-Law 4.
[30] In the present case, the parties have agreed that the matter can proceed to the Divisional Court, even though Mr. Caruso was not subject to a discipline proceeding.
[31] The enactment of By-Law 4 by the LSO was clearly an “exercise ... of a statutory power”, within the meaning of s. 2(1) 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (JRPA), and the remedy sought by the Applicant is a declaration in relation to that exercise of a statutory power, bringing the relief requested within the jurisdiction of the Divisional Court under ss. 2(1) and 6(1) of the JRPA.
[32] While there may be some circumstances where it would be preferable to wait for an appeal from a Law Society Tribunal discipline hearing before the Divisional Court weighs in on the merits of the declarations sought, I am satisfied that this is not such a case. Firstly, the Law Society’s interpretation of By-Law 4 has been made abundantly clear to its members. Second, that interpretation has already been accepted by the Law Society Tribunal in other discipline cases: Law Society of Upper Canada v. Ghaneshirazi, 2017 ONLSTH 208, at paras. 7 and 12; Law Society of Ontario v. Belovari, 2023 ONLSTH 33, at paras. 41 and 43. In these circumstances, it is neither necessary nor appropriate to require Mr. Caruso to violate the clear direction of the Law Society and invite disciplinary proceedings before permitting him to seek the declarations sought in this case. . Mammarella v. Ontario College of Teachers
In Mammarella v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considered a JR of a specific tribunal 'rule change' (not of a case decision or order), here of the 'Rules of Procedure of the Discipline and Fitness to Practise Committee' of the Ontario College of Teachers (OCT) relating to third party evidence disclosure.
The case (which also considers private and public interest 'standing' arguments at paras 4-9) questions whether a JR may be brought against Rules as such - as opposed to against orders or decisions of a specific case before the tribunal:[7] The rule in question relates to proceedings before the Discipline Committee and the Fitness to Practise Committee and the applicant is not currently the subject of either type of proceeding. He was previously the subject of discipline proceedings and brought a third party record application that was addressed applying the test in R. v. O’Connor, after which allegations of sexual abuse were withdrawn. Other allegations resulted in a finding of professional misconduct. Those discipline proceedings concluded in December 2022. The applicant submits that his prior discipline experience and current membership in the OCT are sufficient for private interest standing. We disagree.
[8] The applicant has no personal and direct interest in the rule change because he is not currently the subject of proceedings under which that rule would apply. If he were, he could attempt to challenge the rule as unfair within the context of the related discipline or fitness to practice proceedings. This application is unlike Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, where the appellant lawyer was subject to the mandatory professional development rules at issue and was suspended for non-compliance.
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[10] Even if the applicant had standing, we would dismiss this application. Subsection 25.1(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, provides that a tribunal may make rules governing the practice and procedure before it, and these two committees have done so. The applicant accepts that the OCT can change the rules but submits that this change is different because it imposes a different test for the production of third party records and is unreasonable.
[11] The applicant submits that the rule in R. v. Mills is stricter, limiting access to third party records, and in turn limiting a member’s ability to obtain exculpatory information. The applicant submits that it also should not be applied outside the context of sexual offences yet fails to address the fact that R. v. O’Connor also arose in that context. The applicant relies on the absence of reasons for the Committees’ decision to change the rule. The applicant further challenges the memorandum put forward to the Committees in support of the then proposed change.
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