Focus On

AIR TRANSPORTATION - Regulation - Complaints about air carriers

Thursday, June 25, 2020 @ 5:59 AM  


Lexis Advance® Quicklaw®
Motion by Air Passenger Rights (APR) for interlocutory injunctive relief. APR was an advocacy group on behalf of airline passengers. In response to the COVID-19 pandemic, the Canadian Transportation Agency (CTA) issued two public statements online to the effect that it was reasonable for airlines to provide passengers with travel vouchers rather than refunds when flights were cancelled due to the pandemic. APR applied for judicial review of the statements, alleging they violated the CTA code of conduct and misled passengers as to their rights in circumstances when airlines were unable to provide transportation. Within the context of its application, APR sought an order requiring CTA to remove the statements from their website and offer clarification related to refunds. APR further sought an order enjoining the CTA from addressing passenger complaints regarding refunds based on a reasonable apprehension of bias arising from the CTA’s public statements.

HELD: Application dismissed. APR satisfied the serious issue component of the test for injunctive relief with respect to the issue that a reasonable apprehension of bias arose in connection with the CTA’s stance on passenger complaints. However, APR failed to establish a strong prima facie case in respect of the mandatory relief sought, as the administrative action challenged was not amenable to judicial review. The statements on the CTA website were not decisions, determinations, orders or legally binding rulings, nor did they affect rights, impose legal obligations or cause prejudicial effects. In addition, APR did not establish that irreparable harm would occur in the absence of the relief sought given the current inability to address bias concerns in the context of an actual passenger complaint. Noting the current extraordinary circumstances, the statements simply suggested that having airlines provide affected passengers with vouchers or credits for future travel could be an appropriate approach in the present context. Passengers remained at liberty to file complaints with the CTA if unsatisfied with a voucher and to pursue judicial remedies if unsatisfied with the CTA's response. The court declined to address the balance of convenience.

Air Passengers Rights v. Canada (Transportation Agency), [2020] F.C.J. No. 630, Federal Court of Appeal, A.L. Mactavish J.A., May 22, 2020. Digest No. TLD-June222020007