SCC decision helps those who want public interest standing at tribunals

SCC decision helps those who want public interest standing at tribunals
Aaron Dantowitz says a recent ruling gives guidance on issue of public interest standing before administrative decision-makers.

A decision by the Supreme Court of Canada reflects a trend toward expanding the circumstances where tribunals will grant public interest standing to people who don’t have a direct private interest in the matter, according to a Toronto lawyer.

The SCC ruling in Delta Air Lines Inc. v. Lukács is noteworthy to lawyers who practise administrative law because the decision could be used to persuade tribunals to have a more flexible approach in who is granted standing in their proceedings.

“It’s going to be a benefit for those who want to have more access on a public interest basis to tribunal hearings,” says Christopher Wirth, partner at Keel Cottrelle LLP. 

Wirth says the decision reflects a “growing trend” toward expanding the circumstances when someone can obtain public interest standing before a tribunal.

In the case, a Halifax mathematician, Gábor Lukács, became engaged in a legal battle with Delta Airlines over policies related to obese passengers.

After Lukács — who is not obese — filed a complaint with the Canadian Transportation Agency alleging the airlines’ policies were discriminatory and violated Air Transportation Regulations, the complaint was dismissed, and Lukács could not obtain private or public interest standing.

However, the Federal Court of Appeal ruled that “a strict application of the law of standing as applied in courts was inconsistent with the Agency’s enabling legislation.”

The SCC also stated the agency “did not reasonably exercise its discretion to dismiss [Lukács’s] complaint” and did not use a “flexible approach” in determining who could obtain public interest standing.

“[T]he Agency presumed public interest standing is available and then applied a test that can never be met. Any valid complaint against an air carrier would impugn the terms and conditions established by a private company. Such a complaint can never, by its very nature, be a challenge to the constitutionality of legislation or the illegality of administrative action,” said the ruling.

The SCC also concluded that “the total denial of public interest standing is inconsistent with a reasonable interpretation of the Agency’s legislative scheme.”

“Applying the tests for private and public interest standing in the way the Agency did would preclude any public interest group or representative group from ever having standing before the Agency, regardless of the content of its complaint,” said the ruling.

“In effect, only a person who is herself targeted by the impugned policy could bring a complaint. This is contrary to the scheme of the Act.”

For these two reasons, the SCC sent the matter back to the agency to reconsider whether to grant Lukács public standing. However, Wirth says, “they sent it back telling the agency how to properly approach the analysis in making that decision.

“A fair underlying reading of the decision would suggest that the court is providing the agency with guidance that it needs to be more open and be prepared to consider granting public interest to someone in these circumstances,” he says.

Wirth says the decision will provide an even stronger basis for those seeking to expand the circumstances when a person or group can obtain public interest standing.

“What the court has said here is agencies, which are public bodies, shouldn’t strictly take . . . the test that the civil courts have adopted in determining whether or not to grant standing in civil proceedings and, instead, must take a flexible and discretionary approach in determining whether in the particular circumstances it’s appropriate to grant public interest standing to someone seeking it when they don’t have a direct private interest in the matter,” he says.

Aaron Dantowitz, partner at Stockwoods LLP, says the ruling gives important guidance on the issue of achieving standing before administrative decision-makers.

“Mainly, [it says] that the decision-maker has to make sure that the way that it determines standing takes into account the legislative scheme that it operates in, and it’s not necessarily going to be appropriate to use the same tests for standing that have been developed by courts for court proceedings,” says Dantowitz.

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