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JUDICIAL REVIEW AND STATUTORY APPEAL - When available

Thursday, November 12, 2020 @ 6:36 AM  


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Motion by the Canadian Transportation Agency (CTA) to strike the judicial review application filed by the respondent Air Passenger Rights (APR). The judicial review application related to two statements that were published on the website of the CTA prompted by the COVID-19 pandemic that generally, it was appropriate for airlines to offer travel vouchers for cancelled flights. Following the filing of its application for judicial review, APR brought a motion seeking an interlocutory order that would require the removal of the statements from the CTA’s website and to enjoin the CTA from dealing with passenger complaints with respect to refunds on the basis that a reasonable apprehension of bias existed on their part because of the CTA’s public statements. The motion judge found that no irreparable harm was established, and that APR did not establish that these statements affected rights, imposed legal obligations, or caused prejudicial effects on either APR or airline passengers. The respondent argued that since the statements at issue in this judicial review application did not affect legal rights, imposed legal obligations or caused prejudicial effects, the application for judicial review should be struck. APR wanted the court to review facts which it alleged created a reasonable apprehension of bias in future cases.

HELD: Motion dismissed. The finding by the motion judge that the impugned statements did not affect legal rights, imposed legal obligations or caused prejudicial effects were made in relation to the part of the judicial review application with respect to the request for an order compelling the CTA to remove these statements from its website. APR lost its motion for an interlocutory injunction in relation to this aspect at the irreparable harm stage, not the serious issue to be tried stage. The proper course was to raise the issue of reasonable bias in those cases where the decision of the CTA would affect the legal rights of the parties. The absence of a precedent on this issue should not also necessarily lead to the conclusion that an application for judicial review should be struck. APR should not be deprived of its argument simply because there was no precedent.

Air Passenger Rights v. Canada (Transportation Agency), [2020] F.C.J. No. 971, Federal Court of Appeal, W.W. Webb J.A., October 2, 2020. Digest No. TLD-November92020008