Transportation Notes: Standing And Waiting ' Determination Of Passenger Rights Advocate's Standing To Bring Application Still Stuck On The Tarmac

• Published date: 15 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Aviation, Trials & Appeals & Compensation
• Law Firm: WeirFoulds LLP
• Author: Mr Carlos Martins and Andrew MacDonald

On July 31, 2017, 20 commercial flights destined for Toronto or Montreal were redirected to Ottawa due to unexpected severe thunderstorms. With the sudden influx of traffic at the Ottawa airport, all 20 diverted flights were delayed on the tarmac for at least one hour. Two of those flights, both operated by Air Transat, experienced particularly lengthy waits, with one delayed by nearly five hours and the other by nearly six.

After an investigation and inquiry, Air Transat was sanctioned by the Canadian Transportation Agency (the "Agency"), which issued a number of orders against the carrier, including requiring it to compensate affected passengers for any out-of-pocket expenses incurred as a result of the ordeal. In addition, the Agency's enforcement wing levied an administrative monetary penalty of $295,000 against Air Transat - at the time, this was by far the largest such penalty ever imposed on an airline. However, the Agency stipulated that a "credit" would be applied against the penalty in respect of any amounts Air Transat paid to passengers beyond the expenses compensation it had been ordered to pay. Air Transat had offered up to $500 to each of the 590 passengers on the affected flights.

G'bor Luk'cs, an air passenger rights advocate based in Halifax, sought to challenge the Agency's decision to allow for this credit mechanism to offset the penalty and brought an application for judicial review. Luk'cs was not a passenger on either of the affected flights, so he sought public interest standing to bring his application.

In September 2019, after a number of interlocutory proceedings to sort out the correct court and procedure, the Federal Court (the "FC") determined that Luk'cs did not meet the test for public interest standing and grounded his application (Luk'cs v Canada (Transportation Agency), 2019 FC 1148). However, in the summer of 2021, the Federal Court of Appeal (the "FCA") set aside that decision and sent Luk'cs's application back to make another attempt at take off (2021 FCA 141).

Preparing for Departure: Background Facts and Application to Federal Court of Appeal

The Agency received 72 complaints from passengers on the two affected Air Transat flights. The complaints described inadequate supply of food and drink, high temperatures, and several passengers suffering physical illness. No passenger on either flight was disembarked during the delays. At least one passenger called 911.

The Agency opened an inquiry, which included an...