Docket: 16-A-17
Citation:
2016 FCA 174
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CORAM:
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GAUTHIER J.A.
WEBB J.A.
GLEASON J.A.
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BETWEEN:
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GÁBOR LUKÁCS
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Appellant
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and
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CANADIAN
TRANSPORTATION AGENCY AND NEWLEAF TRAVEL COMPANY INC.
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Respondents
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REASONS
FOR ORDER
GLEASON J.A.
[1]
The appellant, Dr. Gábor Lukács, is seeking
leave to appeal Decision 100-A-2016 of the Canadian Transportation Agency,
issued on March 29, 2016 [the Decision]. In the Decision, the Agency made two determinations.
First, it decided that resellers of domestic air service are no longer required
to hold licences under the Canada Transportation Act, S.C. 1996, c. 10
[the CTA], so long as they do not hold themselves out as an air carrier
operating an air service. Second, in application of the foregoing, the Agency
held that the respondent, Newleaf Travel Company Inc., was such a reseller and
therefore not required to hold a licence. In so deciding, the Agency modified
its previous interpretation of subsection 55(1) and paragraph 57(a) of the CTA
that it had applied to several other domestic resellers of air services.
[2]
Dr. Lukács submits the Agency made an error of
law as its changed interpretation of subsection 55(1) and paragraph 57(a) of
the CTA is unreasonable. He also alleges that the Agency lacked jurisdiction to
undertake the inquiry which led to the new interpretation of the licencing
requirements applicable to resellers of domestic air services. The issues in
the proposed appeal therefore raise questions that fall within the scope of
section 41 of the CTA.
[3]
Newleaf does not contest this but rather says
that Dr. Lukács lacks standing to commence this appeal as he was not a party to
the proceeding before the Agency. It also asserts that Dr. Lukács has failed to
raise an arguable case in respect of the issues that he has raised.
[4]
Contrary to what Newleaf asserts, the materials
filed do raise an arguable case and Dr. Lukács does have standing to commence
this appeal, either as a private or public interest applicant.
[5]
Dr. Lukács participated in the consultation
before the Agency undertaken with respect to the change in the interpretation
of the licencing requirements applicable to domestic resellers of air service,
which is sufficient to afford him standing to launch this appeal.
[6]
Even if this were not the case, he would possess
standing as a public interest litigant. The test for public interest standing
involves consideration of three inter-related factors: first, whether there is
a justiciable issue, second, whether the individual seeking standing has a
genuine interest in the issue, and, third, whether the proposed proceeding is a
reasonable and effective way to bring the matter before the courts: Canada
(Attorney General) v. Downtown Eastside Sex Workers United Against Violence
Society, 2012 SCC 45, [2012] 2 S.C.R. 524 at paras. 36-37. As leave is
being granted, this appeal raises a justiciable issue. It is undisputed that
Dr. Lukács is an air passenger rights advocate, who has frequently brought
applications to this Court in respect of Agency decisions, and therefore does
have a genuine interest in the issues raised in this appeal. Finally, an appeal
by someone like Dr. Lukács is an effective way for the issues raised in this
appeal to be brought before the Court as Newleaf would not challenge the
Decision rendered in its favour.
[7]
Thus, leave should be granted to Dr. Lukács to
commence this appeal.
[8]
Dr. Lukács requests that this appeal be
expedited and joined for hearing with an earlier judicial review application he
commenced, challenging the jurisdiction of the Agency to embark upon the
inquiry that led to the Decision (Federal Court of Appeal File A-39-16). The
judicial review application in File A-39-16 is being conducted on an expedited
basis. If the judicial review application is not rendered moot by this appeal,
it makes sense that this appeal and the judicial review application be heard
one immediately after the other by the same panel of this Court as there is
considerable overlap between the files. It also is appropriate to expedite this
appeal due both to the fact that the judicial review application is being
expedited and to the nature of the issues raised in the appeal.
[9]
I would therefore order that the appeal be
conducted on an expedited basis if Dr. Lukács files his Notice of Appeal within
thirty days of the date of this Order. I would also order that if this matter
is expedited, this appeal be heard immediately following the judicial review
application in File A-39-16 if that application proceeds to hearing. The other
issues raised by the parties regarding production of materials should be dealt
with in a separate procedural Order issued concurrently with this Order.
[10]
While Dr. Lukács seeks his costs in respect of
this motion for leave, it is more appropriate that they be in the cause.
"Mary J.L. Gleason"
“I agree
Johanne Gauthier J.A."
“I agree
Wyman W. Webb J.A."
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