Docket: A-167-14
Citation:
2016 FCA 202
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CORAM:
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WEBB J.A.
SCOTT J.A.
DE MONTIGNY J.A.
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BETWEEN:
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DR. GȦBOR
LUKȦCS
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Applicant
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and
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CANADIAN
TRANSPORTATION AGENCY
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Respondent
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REASONS
FOR JUDGMENT
SCOTT J.A.
[1]
This is an application for judicial review of a
decision of the Canadian Transportation Agency (the Agency) refusing to render
a decision regarding a complaint filed by Dr. Gábor Lukács (the applicant)
alleging that Expedia, Inc. (Expedia) advertised flight ticket prices in violation
of Part V.1 of the Air Transportation Regulations, S.O.R./88-58 (the
ATR). More specifically, it was alleged that Expedia failed to include fuel
surcharges under the heading “Air Transportation Charges”
and included airline-imposed service charges under the heading “Taxes, Fees and Charges”. The applicant is now
seeking a mandamus order from this Court to force the Agency to hear his
complaint.
[2]
For the reasons that follow, I would this
dismiss the application.
I.
The facts
[3]
The applicant is a frequent advocate for
Canadian air passengers’ rights. In the past, he has filed several complaints
and litigated a number of cases before the Agency.
[4]
On February 24, 2014, the applicant filed a
complaint with the Agency alleging that Expedia had been advertising prices on
its website in a format that did not comply with sections 135.8 and 135.91 of
the ATR.
[5]
The applicant asked the Agency to order Expedia
to modify its website to comply with the ATR. More specifically, that Expedia’s
website include fuel surcharges under the heading “Air
Transportation Charges” and cease to improperly list airline-imposed
charges in “Taxes, Fees and Charges” under the
heading “YR – Service Charge”.
[6]
Further to an informal exchange of emails between
the applicant and the Agency, which had taken the position that it would not commence
a formal pleadings process as this was an enforcement matter, the Chair and
Chief Executive Officer of the Agency replied to the applicant in a formal
letter, dated March 27, 2014, which reads as follows:
Dear Mr.
Lukács:
This is in response to your letters dated
February 24 and March 15, 2014 to the Secretary of the Agency, wherein you
refer to alleged non-compliance by Expedia Inc. with Part V.1 of the Air
Transportation Regulations (ATR).
The Federal Court of Appeal has recently
confirmed that the Agency performs two distinct roles, first as an adjudicative
body, and second, as an economic regulator. The matter that you have raised
falls squarely within the second part of the mandate of the Agency.
Enforcement of the air pricing advertising
provisions of the ATR is being achieved by application of the administrative
monetary penalty provisions of the Canada Transportation Act (CTA). The
Canadian Transportation Agency Designated Provisions Regulations
(Designated Provisions Regulation) were amended specifically for that purpose.
The DEO [Designated Enforcement Officer] is empowered to exercise discretion
and judgement in deciding how best to achieve compliance and where necessary
enforce through the imposition of administrative monetary penalties. For your
information, this approach has been highly successful in achieving compliance
with the regulations amongst advertisers of air services.
To be clear, no decision by an Agency Panel
is required for the DEO to undertake an investigation of a potential
contravention of a provision listed in the Designated Provisions Regulations.
Therefore, the Agency will not be conducting an inquiry into the matter you
have raised. Further, there is no role for the public to participate in an
investigation, should the DEO decide that an investigation is warranted, except
as requested by the DEO where the DEO determines that information relevant to
the investigation is required. The role of the public is limited to apprising
the DEO of concerns they may have with respect to compliance. The Agency’s Web
site provides an e-mail address for this purpose.
I note that you refer to the Canada
Transportation Agency General Rules (General Rules) as the basis for having
an Agency Panel assigned. However, the General Rules do not require the Agency
to conduct an inquiry into a matter filed by the public with respect to alleged
non-compliance with Part V.1 of the ATR or of other provisions of the ATR or
the CTA which do not specifically provide for a complaint mechanism.
…
[7]
As part of this application, the respondent
filed the affidavit of Ms. Simona Sasova, Manager of Enforcement at the Agency who
was in charge of the investigation on this file. Ms. Sasova explained that
Expedia made some changes to its website. However, she admitted that even
though Expedia was not completely complying with the ATR, she was satisfied that
the changes made met the objective of the ATR, that is to properly inform consumers
of the actual costs of their airfares.
[8]
On September 4 and 15, 2014, the applicant
cross-examined Ms. Sasova on her affidavit. Dissatisfied with her answers, the
applicant brought a motion before this Court requiring costs of the September
15 cross-examination. He also wanted Ms. Sasova to attend another
cross-examination at her own cost.
[9]
His motion was dismissed by Gauthier J.A. on
November 25, 2014.
II.
Legislation
[10]
The relevant legislation has been appended to
these reasons.
III.
The issues
[11]
After reviewing both parties’ submissions, I
would frame the issues as follows:
(a)
What is the standard of review?
(b)
Does the Agency have a statutory duty to hear
and decide a complaint regarding compliance with Part V.1 of the ATR?
(c)
Are the other requirements for an order in mandamus
met?
(d)
Should the applicant be awarded increased costs,
or his disbursements and an allowance for time?
IV.
First issue - The standard of review
[12]
The applicant asserts that an order in mandamus
is sought on the premise that no decision has been made by the Agency.
Consequently, there is no decision to defer to (Apotex v. Canada (Attorney
General), [1994] 1 F.C. 742, [1993] F.C.J. No. 1098 [Apotex]).
[13]
The Agency refers to Ermineskin First Nation
v. Canada, 2008 FC 1065, 2008 CarswellNat 3384 to point out that the
standard of reasonableness applies on the discretionary aspects of a mandamus
application.
[14]
In Canadian National Railway Company v.
Canadian Transportation Agency, 2013 FCA 270, 454 N.R. 125, a similar
argument on the applicable standard of review was made in favour of applying
the standard of correctness. Sharlow J.A. rejected the argument:
[3] Generally,
this Court reviews the Agency’s decisions, including its interpretation of the
governing statute, the Canada Transportation Act, S.C. 1996, c. 10, on
the standard of reasonableness (Council of Canadians with Disabilities v.
VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650).
[4] In applying the reasonableness
standard of review, the Court is guided by paragraph 47 of Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, which reads as follows:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[5] CN argues that the standard of
review in this case should be correctness because CN is challenging the
Agency’s decision with respect to “jurisdiction limiting issues”. I do not
accept that characterization of the issues in this appeal. In substance, CN is
challenging the Agency’s interpretation of the statutory provisions defining
its mandate.
[15]
Similarly, in the context of an application for an
order for mandamus, deference should be given to the Agency’s interpretation
of its home statute, which means that the standard of reasonableness will apply
to the question of the Agency’s statutory duty. That said, the range of
outcomes is fairly narrow given that this is a straight question of statutory
interpretation.
V.
Second issue - Does the Agency have a statutory
duty to hear and decide a complaint regarding compliance with Part V.1 of the
ATR?
A.
The position of the parties
(1)
The applicant
[16]
The applicant asserts that he meets all of the
criteria identified in Apotex and his representations focussed primarily
on establishing the Agency’s duty under the Act.
[17]
In the applicant’s view, the Canada
Transportation Act, S.C. 1996, c. 10, (the Act) imposes a statutory duty on
the Agency to render decisions on complaints because subsection 29(1) indicates
in clear mandatory language that the Agency “shall make
its decision in any proceedings before it”.
[18]
The applicant relies equally on the term “any proceedings”, found in section 1 of the Canadian
Transportation Agency General Rules, S.O.R./2005-35, to argue that it
includes a complaint or any matter commenced by application to the Agency.
[19]
At the hearing, the applicant also directed the
Court towards the legislative history of the Act, arguing that it supports his
view that Parliament’s intention was to create an obligation on the Agency to
hear any complaint on a matter within its jurisdiction. The applicant also turned
to the testimony of Ms. Moya Greene, Assistant Deputy Minister of Transport Canada,
who stated before the Standing Committee on Transport during the study of
section 29 that the Agency “does not have discretion to
say ‘well, that one I’m not going to look at’. The agency must decide the
matter, and must decide the matter with dispatch”. In the applicant’s
view, section 29 was enacted to ensure access to the Agency.
[20]
The applicant alleges that sections 26 and 37 of
the Act grant the Agency the power to inquire into complaints, regardless of
whether they have been “designated” or not as
giving rise to administrative monetary penalties under the Canadian
Transportation Agency Designated Provisions Regulations, S.O.R./99-244 (the
DPR).
[21]
In his view, the purpose of the DPR is not to
limit the public’s right to have their complaints determined, but to provide
the Agency with an additional enforcement mechanism that it can initiate unilaterally,
even in the absence of a complaint.
[22]
The applicant also referred to Witvoet v.
First Air et al., 378-C-A-2000 (CTA) [Witvoet], wherein the Agency
considered section 29 of the Act and found that it had a duty to render a
decision notwithstanding the fact that the complaint was related to a violation
of a designated provision.
[23]
Finally, the applicant asserts that the Agency
also hears applications to review “warning letters”
issued by enforcement officers pursuant to sections 135.8 and 135.91 of the ATR.
It is unclear where this power comes from. The applicant suggests that it is unusual
that the Agency reviews enforcement matters only to the benefit of airlines,
and not to members of the public filing complaints.
(2)
The Agency
[24]
Before this Court, the Agency enumerated the
specific provisions of the Act that provide its mandate to adjudicate applications
and complaints, such as section 116 of the Act regarding complaints by shippers
against railways, and underlined that there is no complaint provision with
respect to Part V.1 of the ATR.
[25]
With respect to Ms. Greene’s comments on the
obligation to decide a complaint under section 29 of the Act, the Agency noted
that her testimony was provided in response to concerns that provisions of the
Act might limit the ability of shippers to file complaints against railways,
which is addressed by a specific complaint provision. The Agency also argued
that those comments cannot override the actual wording of the Act.
[26]
For the Agency, section 29 of the Act is simply
a statutory deadline provision requiring decisions to be rendered “expeditiously”. As such, that section does not grant
substantive jurisdiction on the Agency.
[27]
Turning to the definitions of “application”, “complaint”
and “proceeding” in the Canadian
Transportation Agency General Rules, S.O.R./2005-35, the Agency asserts
that they are not the source of its jurisdiction as they only establish procedures
to deal with complaints initiated under specific provisions of the Act. The
Agency also underlined that these Rules have since been repealed and replaced
by the Canadian Transportation Agency Rules (Dispute Proceedings and Certain
Rules Applicable to All Proceedings), S.O.R./2014-104, which provide no
definition of the word “complaint”.
[28]
Finally, the Agency indicated that properly
read, section 37 of the Act are discretionary as their text states that it “may inquire into”, which does not create a general
obligation and leaves room for the proper exercise of discretion.
B.
Analysis
[29]
Both parties acknowledge that the legal test for
an order of mandamus was clearly set out by this Court in Apotex.
Eight requirements must be satisfied before an order of mandamus is to
be issued:
(1) there must be a legal duty to act;
(2) the duty must be owed to the applicant;
(3) there must be a clear right to performance of that duty;
(4) where the duty sought to be enforced is discretionary, certain
additional principles apply;
(5) no adequate remedy is available to the applicant;
(6) the order sought will have some practical value or effect;
(7) the Court finds no equitable bar to the relief sought; and
(8) on a balance of convenience an order of mandamus should be
issued.
[30]
I am of the view, for the reasons that follow,
that the Agency has no statutory duty to inquire into complaints that fall
within Part V.1 of the ATR. Although the Agency has the power to launch an
inquiry, it may look into alternative methods to address a complaint, including
investigations by a designated enforcement officer leading ultimately to the
imposition of monetary penalties.
[31]
The Agency is right in stating that the Act
creates no general obligation to deal with any complaint regarding compliance
with the Act and its regulations. Part I – Administration of the Act - contains
the provisions that create the Agency and generally defines the Agency’s
powers. The Agency possesses broad powers to require a person to comply with
the Act, as provided by section 26 of the Act.
[32]
As for complaints, section 37 provides that “[t]he Agency may inquire into, hear and determine a
complaint concerning any act, matter or thing prohibited, sanctioned or
required to be done under any Act of Parliament that is administered in whole
or in part by the Agency”. That language is permissive and imposes no
obligation to hear every complaint. If Parliament had intended to create an
obligation to assess every complaint contemplated, it would have used the term “shall” instead of “may”.
[33]
Moreover, Ms. Greene’s testimony at the
committee stage cannot modify the clear vocabulary used by Parliament. In fact,
it appears that Ms. Greene was only responding to a specific concern that
provisions of the Act might limit the ability of shippers to file complaints
against railways.
[34]
Also, I must underline that subsection 29(1)
does not support the applicant’s theory. The provision only creates an
obligation to render decisions within a certain timeframe, as illustrated by
the heading. It creates no obligation to hear any given
complaint:
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Time for making decisions
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Délais
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29(1) The Agency shall make its
decision in any proceedings before it as expeditiously as possible, but no
later than one hundred and twenty days after the originating documents are
received, unless the parties agree to an extension or this Act or a
regulation made under subsection (2) provides otherwise.
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29(1)
Sauf indication contraire de la présente loi ou d’un règlement pris en vertu
du paragraphe (2) ou accord entre les parties sur une prolongation du délai,
l’Office rend sa décision sur toute affaire dont il est saisi avec toute la
diligence possible dans les cent vingt jours suivant la réception de l’acte
introductif d’instance.
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[35]
As I review the statutory scheme, I must point
out that the Act and the ATR enable the Agency to inquire into certain
complaints or to determine certain types of applications. For example:
•
In Part II – Air
Transportation, the Act identifies specific types of complaints related to air
carriers and determines the Agency’s powers with respect to them. The following
subject matters are identified:
o Failure to comply with discontinuance of
license (section 65);
o Unreasonable fares or rates (section 66);
o Fares or rates not set out in tariff
(subsection 67.1(1);
o Unreasonable or unduly discriminatory terms
or conditions (subsection 67.2(1).
•
In Part III of
the Act – Railway Transportation, the Act grants the Agency powers to determine:
o Applications by shippers (subsection
132(1));
o Applications by the company to determine the
carrier’s liability (subsection 137(2));
o Applications by railway companies regarding
running rights and joint track usage (section 138);
o Applications by a party to the negotiations
to determine the net salvage value of a railway line (subsection 144(3.1)).
[36]
In the present case, the applicant’s complaint
concerns compliance with the ATR’s requirements on air transportation
advertising prices, governed by Part V.1. The ATR does not contain complaint provisions
regarding advertising prices (Part V.1) similar to section 135.4 for unjust or
unreasonable tariffs (Part V). Even though the Agency can inquire into such
complaints given section 37 of the Act, there is no specific complaint
provision as for other types of applications.
[37]
Consequently, with respect to the applicant’s
position that the Agency did rely on section 29 of the Act to enforce
violations of other provisions that are also “designated”,
which means they were giving rise to administrative monetary penalties under
the PDR, I note that the Agency referred to this section in Witvoet only to
establish the deadline to render its decision after having made the
discretionary decision to hear the complaint. Witvoet must also be
distinguished as it concerned Part V of the ATR. As mentioned above, Part V.1
of the ATR, which was enacted in 2012, contains no specific complaint provision
comparable to section 135.4 for unjust or unreasonable tariffs (Part V).
[38]
Finally, I do not find that any argument of
substance can be based on the repealed definitions found in the Agency’s
procedural rules (Canadian Transportation Agency General Rules,
S.O.R./2005-35, s.1 (repealed); Canadian Transportation Agency Rules
(Dispute Proceedings and Certain Rules Applicable to All Proceedings),
S.O.R./2014-104).
[39]
As the Agency has no statutory duty to inquire
into all complaints, I must conclude that on the first leg of the test, mandamus
cannot be obtained. It follows that the Third issue – Are the other
requirements for an order in mandamus met? - does not arise.
VI.
Fourth issue - Should the applicant be awarded
increased costs, or his disbursements and an allowance for time?
A.
The position of the parties
(1)
The applicant
[40]
Without regards for the outcome of the case, the
applicant seeks disbursements and an allowance for time on the basis that his case
is not frivolous, and is in the nature of public interest litigation.
[41]
The applicant also asks for increased costs
against the Agency, claiming that the affidavit of Ms. Sasova created the
impression that Expedia’s website had become compliant with the ATR, when it
was not fully the case. It is argued that to demonstrate that Expedia’s
compliance with the Regulations remained an outstanding issue, and to have the
Agency concede this point, required extensive cross-examination.
(2)
The Agency
[42]
In response, the Agency points out that self-represented
litigants are not normally entitled to costs.
[43]
Furthermore, the Agency submits that, as an
administrative decision-maker, costs are normally not awarded against it when
responding to a court proceeding to address its jurisdiction and where there
has been no misconduct on its part (Lang v. British Columbia (Superintendent
of Motor Vehicles), 2005 BCCA 244, 254 D.L.R. (4th) 111). The
Agency underlines that it was acting in good faith in referring the matter to
the enforcement branch. For those reasons, no costs should be awarded against
it.
[44]
As for Ms. Sasova, it is argued that she
acknowledged in her affidavit and early in cross-examination that Expedia was
not fully compliant. This Court has dismissed a request by the applicant to
have Ms. Sasova personally bear the costs of the cross-examination on a motion
to re-attend. As such, there was no need for such an extensive
cross-examination. The request for increased costs should consequently be denied
according to the Agency.
B.
Analysis
[45]
As the applicant is unsuccessful on this
application, he should not be awarded disbursements or an allowance for time as
claimed. I acknowledge that awards are sometimes granted to unsuccessful
self-represented litigants, on a matter involving the public interest where the
issue is not frivolous (Lukács v. Canada (Transportation Agency), 2014
FCA 76 at paragraph 62, 456 N.R. 186). However, while the issue was not per
se frivolous and concerned the Agency’s jurisdiction, the claim was
marginal and the Agency showed no signs of bad faith. I do not think this case
warrants an award of costs against the Agency.
[46]
Additionally, I am not convinced that Ms.
Sasova’s affidavit and cross-examination should give rise to any increased
costs. Rule 400 of the Federal Courts Rules, S.O.R./98-106 grants the
Court discretion to sanction the reprehensible conduct of a party; this is not
the case here (Apotex v. Pfizer Canada, 2009 FCA 8 at paragraph 47,
[2009] 4 F.C.R. 223). It is also awarded to ensure adequate compensation in complex
or costly cases (Ultima Foods v. Agro-Farma Canada, 2013 FC 238 at paragraphs
22-26, 2013 CarswellNat 1185). Admittedly, Ms. Sasova’s affidavit could have
been clearer with respect to Expedia’s degree of compliance or whether she had
exercised her discretion not to pursue the matter further. Nonetheless, since Ms.
Sasova believed she was rightfully exercising her discretion as the Enforcement
officer in these circumstances, I do not think it can be said that there was
any bad faith on her or the Agency’s part.
VII.
Conclusion
[47]
For those reasons, I would dismiss the
application for judicial review, without costs.
"A.F. Scott"
“I agree.
Wyman W. Webb J.A.”
“I agree.
Yves de Montigny
J.A.”
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