Date:
20130625
Docket:
A-460-12
Citation:
2013 FCA 169
CORAM: SHARLOW
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
GÁBOR
LUKÁCS
Appellant
and
CANADIAN TRANSPORTATION AGENCY
and PORTER AIRLINES INC.
Respondents
REASONS FOR JUDGMENT
OF THE COURT
(Delivered
from the Bench at Halifax, Nova Scotia, on June 25, 2013)
DAWSON J.A.
[1]
The
appellant, Mr. Lukács, appeals from an interlocutory decision of the Canada
Transportation Agency. This Court granted leave to appeal the issue of whether
the Agency erred in law by rendering an interlocutory decision without a quorum
of at least two members of the Agency.
[2]
A
preliminary issue was raised by the respondent Porter Airlines Inc.: is the
appeal moot and, if so, should this Court exercise its discretion to hear the
appeal?
[3]
The
mootness issue arises on the following facts. The appellant filed a complaint
with the Agency in respect of Porter's International Tariff Rule 18, which
relates to its liability for damages and expenses caused due to flight delays
or cancellations. In response, Porter sought a 60 day extension in which to
file its answer. The appellant opposed Porter’s request for an extension and
sought an order staying the impugned tariff pending adjudication of his
complaint. A single member of the Agency granted a 30 day extension to Porter
and refused the appellant’s request for a stay (LET-C-A-92-2012).
[4]
The
appellant then filed a motion asking that at least two members of the Agency
review the legal status of LET-C-A-92-2012 (on the ground that it was decided
by a single member of the Agency) and order that Chairman Hare, who made the
impugned order, recuse or disqualify himself. In LET-C-A-126-2012 Chairman Hare
dismissed the motion. This is the decision under appeal.
[5]
After
this Court granted leave to appeal the interlocutory decision, the Agency
issued its final decision in respect of the appellant's complaint. A portion of
Porter's International Tariff Rule 18 was disallowed by the Agency. This
decision was made by two members of the Agency, including Chairman Hare. No
application was made for leave to appeal this decision.
[6]
The
appellant argues that the present appeal is not moot because the result of the
appeal will affect the validity of both the final decision and also another
proceeding before the Agency.
[7]
We
disagree. The Agency has rendered its final decision and there was no
application for leave to appeal that decision. The order under appeal in large
part considered the propriety of the previous order that granted an extension
to Porter to file its answer and refused to stay the impugned tariff while the
complaint was adjudicated. After the issuance of the final decision no
practical purpose would be served by considering the validity of the extension
and stay refusal.
[8]
Chairman
Hare's refusal in the decision under appeal to recuse himself is not relevant
to the validity of the final decision. That decision was never challenged by
the appellant and an appeal from the Chairman's interlocutory refusal to recuse
himself cannot be used to collaterally attack the Agency’s final decision.
[9]
The
fact that the issue of the validity of decisions made by one member may remain
live in other cases before the Agency does not prevent that issue from being
moot between these parties.
[10]
Having
found the appeal to be moot, it is necessary to consider whether we should
exercise our discretion to hear this appeal, notwithstanding its mootness. The
relevant factors to be considered are:
1. Is
there a continued adversarial relationship?
2. Do
concerns over judicial economy trump the potential impact of the decision under
appeal?
3. Will
the exercise of discretion be seen as an intrusion into the legislative branch?
[11]
We
agree that there is a continued adversarial relationship between the parties.
Written memoranda have been filed and the parties are ready to argue the
underlying appeal if it is not dismissed for mootness. In our view, however,
the determinative factor is concern over judicial economy.
[12]
The
Agency's internal policy under which the decision in issue was made by a single
member has been rescinded. An amendment to the Canada Transportation Agency
General Rules which provides for a single member quorum is pending. These
factors militate against considering the moot question of the validity of the
interlocutory decision under appeal.
[13]
The
appellant argues that the pending amendments to the General Rules are invalid.
In our view this raises a new legal issue that could raise new legal arguments
by the respondents that are outside the scope of the issue on which leave was
granted. The Agency seeks to uphold the internal policy as a valid exercise of
the Chairman’s authority under section 13 of the Canada Transportation Act,
S.C.1996, c.10 (Act). The validity of the proposed rules would appear to depend
upon whether the rules are instruments that fall within subsection 36(1) of the
Act, which requires regulations made by the Agency to be approved by the
Governor-in-Council. This is an issue that does not arise on the facts of this
case. Therefore, we express no opinion upon the issue.
[14]
Accordingly,
in the exercise of our discretion we decline to consider the appeal.
[15]
The
Agency filed its own motion to dismiss the appeal on the ground of mootness. It
is unnecessary for us to address either the merits or the appropriateness of
the decision-maker bringing such a motion.
[16]
Accordingly,
despite the very articulate submissions of the appellant, the appeal will be
dismissed without costs.
“Eleanor
R. Dawson”
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-460-12
(APPEAL
FROM A DECISION OF THE CANADIAN TRANSPORTATION AGENCY DATED AUGUST 9, 2012)
STYLE OF CAUSE: Gábor
Lukács v. Canadian Transportation Agency and Porter Airlines Inc.
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: June 25, 2013
REASONS FOR JUDGMENT
OF THE COURT BY: SHARLOW, DAWSON AND STRATAS JJ.A.
DELIVERED FROM THE
BENCH BY: DAWSON J.A.
APPEARANCES:
|
Gábor Lukács
|
ON
HIS OWN BEHALF
|
|
Odette
Lalumière
|
FOR
THE RESPONDENT CANADIAN TRANSPORTATION AGENCY
|
|
Martha A. Healey
|
FOR
THE RESPONDENT PORTER AIRLINES INC.
|
SOLICITORS
OF RECORD:
|
Canadian
Transportation Agency
Gatineau, Quebec
|
FOR THE RESPONDENT CANADIAN
TRANSPORTATION AGENCY
|
|
Norton Rose Canada
LLP
Ottawa, Ontario
|
FOR THE RESPONDENT PORTER
AIRLINES INC.
|
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