Date: 20200522

Docket: A-102-20

Citation: 2020 FCA 92

Present:  MACTAVISH J.A.

BETWEEN:

AIR PASSENGERS RIGHTS

Applicant

and

CANADIAN TRANSPORTATION AGENCY

Respondent

Dealt with in writing without appearance of parties.

Order delivered at Ottawa, Ontario, on May 22, 2020.

REASONS FOR ORDER BY:

MACTAVISH J.A.

 

Date: 20200522

Docket: A-102-20

Citation: 2020 FCA 92

Present:  MACTAVISH J.A.

BETWEEN:

AIR PASSENGERS RIGHTS

Applicant

and

CANADIAN TRANSPORTATION AGENCY

Respondent

REASONS FOR ORDER

MACTAVISH J.A.

[1]  As is the case with so many other areas of life today, the airline industry and airline passengers have been seriously affected by the COVID-19 pandemic. International borders have been closed, travel advisories and bans have been instituted, people are not travelling for non-essential reasons and airlines have cancelled numerous flights.

[2]  In response to this unprecedented situation, the Canadian Transportation Agency (CTA) issued two public statements on its website that suggest that it could be reasonable for airlines to provide passengers with travel vouchers when flights are cancelled for pandemic-related reasons, rather than refunding the monies that passengers paid for their tickets.

[3]  Air Passenger Rights (APR) is an advocacy group representing and advocating for the rights of the public who travel by air. It has commenced an application for judicial review of the CTA’s public statements, asserting that they violate the CTA’s own Code of Conduct, and mislead passengers as to their rights when their flights are cancelled. In the context of this application, APR has brought a motion in writing seeking an interlocutory order that, among other things, would require that the statements be removed from the CTA’s website. It also seeks to enjoin the members of the CTA from dealing with passenger complaints with respect to refunds on the basis that a reasonable apprehension of bias exists on their part as a result of the Agency’s public statements.

[4]  For the reasons that follow, I have concluded that APR has not satisfied the tripartite injunctive test. Consequently, the motion will be dismissed.

1.  Background

[5]  In early 2020, the effects of the COVID-19 coronavirus began to be felt in North America, rapidly reaching the level of a pandemic. On March 25, 2020, the CTA posted a statement on its website dealing with flight cancellations. The statement, entitled “Statement on Vouchers” notes the extraordinary circumstances facing the airline industry and airline customers because of the pandemic, and the need to strike a “fair and sensible balance between passenger protection and airlines’ operational realities” in the current circumstances.

[6]  The Statement on Vouchers observes that passengers who have no prospect of completing their planned itineraries “should not be out-of-pocket for the cost of cancelled flights”. At the same time, airlines facing enormous drops in passenger volumes and revenues “should not be expected to take steps that could threaten their economic viability”.

[7]  The Statement on Vouchers states that any complaint brought to the CTA will be considered on its own merits. However, the Statement goes on to state that, generally speaking, the Agency believes that “an appropriate approach in the current context could be for airlines to provide affected passengers with vouchers or credits for future travel, as long as these vouchers or credits do not expire in an unreasonably short period of time”. The Statement then suggests that a 24-month period for the redemption of vouchers “would be considered reasonable in most cases”.

[8]  Concurrent with the posting of the Statement on Vouchers, the CTA published an amendment to a notice already on its website entitled “Important Information for Travellers During COVID-19” (the Information Page), which incorporates references to the Statement on Vouchers.

[9]  These statements are the subject of the underlying application for judicial review.

2.  APR’s Arguments

[10]  APR submits that there is an established body of CTA jurisprudence that confirms passengers’ right to a refund where air carriers are unable to provide air transportation, including cases where flight cancellations are for reasons beyond the airline’s control. According to APR, this jurisprudence is consistent with the common law doctrine of frustration, the doctrine of force majeure and common sense. The governing legislation further requires airlines to develop reasonable policies for refunds when airlines are unable to provide service for any reason.

[11]  According to APR, statements on the Information Page do not just purport to relieve air carriers from having to provide passenger refunds where flights are cancelled for reasons beyond the airlines’ control, including pandemic-related situations. They also purport to relieve airlines from their obligation to provide refunds where flights are cancelled for reasons that are within the airlines’ control, including where cancellation is required for safety reasons.

[12]  APR further contends that the impugned statements by the CTA are tantamount to an unsolicited advance ruling as to how the Agency will treat passenger complaints about refunds from air carriers where flights are cancelled for reasons relating to the COVID-19 pandemic. The statements suggest that the CTA is leaning heavily towards permitting the issuance of vouchers in lieu of refunds, and that it will very likely dismiss passenger complaints with respect to airlines’ failure to provide refunds during the pandemic, regardless of the reason for the flight cancellation. According to APR, this creates a reasonable apprehension that CTA members will not deal with passenger complaints fairly.

3.  The Test for Injunctive Relief

[13]  The parties agree that in determining whether APR is entitled to interlocutory injunctive relief, the test to be applied is that established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385.

[14]  That is, the Court must consider three questions:

• 1) Whether APR has established that there is a serious issue to be tried in the underlying application for judicial review;

• 2) Whether irreparable harm will result if the injunction is not granted; and

• 3) Whether the balance of convenience favours the granting of the injunction.

[15]  The RJR-MacDonald test is conjunctive, with the result that an applicant must satisfy all three elements of the test in order to be entitled to relief: Janssen Inc. v. Abbvie Corp., 2014 FCA 112, 120 C.P.R. (4th) 385 at para. 14.

4.  Has APR Raised a Serious Issue?

[16]  The threshold for establishing the existence of a serious issue to be tried is usually a low one, and applicants need only establish that the underlying application is neither frivolous nor vexatious. A prolonged examination of the merits of the application is generally neither necessary nor desirable: RJR-MacDonald, above at 335, 337-338.

[17]  With this low threshold in mind, I will assume that APR has satisfied the serious issue component of the injunctive test to the extent that it seeks to enjoin members of the CTA from dealing with passenger complaints on the basis that a reasonable apprehension of bias exists on their part. However, as will be explained further on in these reasons, I am not persuaded that APR has satisfied the irreparable harm component of the injunctive test in this regard.

[18]  However, APR also seeks mandatory orders compelling the CTA to remove the two statements from its website and directing it to “clarify any misconceptions for passengers who previously contacted the Agency regarding refunds arising from COVID-19, and key stakeholders of the travel industry”. It further seeks a mandatory order requiring that the CTA bring this Court’s order and the removal or clarification of the CTA’s previous statements to the attention of airlines and a travel association.

[19]  A higher threshold must be met to establish a serious issue where a mandatory interlocutory injunction is sought compelling a respondent to take action prior to the determination of the underlying application on its merits. In such cases, the appropriate inquiry is whether the party seeking the injunction has established a strong prima facie case: R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196 at para. 15. That is, I must be satisfied upon a preliminary review of the case that there is a strong likelihood that APR will be ultimately successful in its application: C.B.C., above at para. 17.

[20]  As will be explained below, I am not persuaded that APR has established a strong prima facie case here as the administrative action being challenged in its application for judicial review is not amenable to judicial review.

[21]  APR concedes that the statements on the CTA website do not reflect decisions, determinations, orders or legally-binding rulings on the part of the Agency. It notes, however, that subsection 18.1(1) of the Federal Courts Act does not limit the availability of judicial review to formal decisions or orders, stating rather that applications may be brought “by anyone directly affected by the matter in respect of which relief is sought” [my emphasis].

[22]  Not every administrative action gives rise to a right to judicial review. No right of review arises where the conduct in issue does not affect rights, impose legal obligations, or cause prejudicial effects: Democracy Watch v. Canada (Attorney General), 2020 FCA 69, [2020] F.C.J. No. 498 at para. 19. See also Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, [2019] 2 F.C.R. No. 3, leave to appeal to SCC refused 38379 (2 May 2019); Democracy Watch v. Canada (Conflict of Interest and Ethics Commissioner), 2009 FCA 15, 86 Admin. L.R. (4th) 149.

[23]  For example, information bulletins and non-binding opinions contained in advance tax rulings have been found not to affect rights, impose legal obligations, or cause prejudicial effects: see, for example, Air Canada v. Toronto Port Authority at al., 2011 FCA 347, 426 N.R. 131; Rothmans, Benson & Hedges Inc. v. Minister of National Revenue, [1998] 2 C.T.C. 176, 148 F.T.R. 3. It is noteworthy that in its Notice of Application, APR itself states the CTA’s statements “purport[t] to provide an unsolicited advance ruling” as to how the CTA will deal with passenger complaints about refunds for pandemic-related flight cancellations.

[24]  I will return to the issue of the impact of the CTA’s statements on APR in the context of my discussion of irreparable harm, but suffice it to say at this juncture that there is no suggestion that APR is itself directly affected by the statements in issue. The statements on the CTA website also do not determine the right of airline passengers to refunds where their flights have been cancelled by airlines for pandemic-related reasons.

[25]  Noting the current extraordinary circumstances, the statements simply suggest that having airlines provide affected passengers with vouchers or credits for future travel “could be” an appropriate approach in the present context, as long as these vouchers or credits do not expire in an unreasonably short period of time. This should be contrasted with the situation that confronted the Federal Court in Larny Holdings Ltd. v. Canada (Minister of Health), 2002 FCT 750, relied on by APR, where the statement in issue included a clear statement of how, in the respondent’s view, the law was to be interpreted and the statement in issue was intended to be coercive in nature.

[26]  As a general principle, CTA policy documents are not binding on it as a matter of law: Canadian Pacific Railway Company v. Cambridge (City), 2019 FCA 254, 311 A.C.W.S. (3d) 416 at para. 5. Moreover, in this case the Statement on Vouchers specifically states that “any specific situation brought before the Agency will be examined on its merits”. It thus remains open to affected passengers to file complaints with the CTA (which will be dealt with once the current suspension of dispute resolution services has ended) if they are not satisfied with a travel voucher, and to pursue their remedies in this Court if they are not satisfied with the Agency’s decisions.

[27]  It thus cannot be said that the impugned statements affect rights, impose legal obligations, or cause prejudicial effects on either APR or airline passengers. While this finding is sufficient to dispose of APR’s motion for mandatory relief, as will be explained below, I am also not persuaded that it has satisfied the irreparable harm component of the test.

5.  Irreparable Harm

[28]  A party seeking interlocutory injunctive relief must demonstrate with clear and non-speculative evidence that it will suffer irreparable harm between now and the time that the underlying application for judicial review is finally disposed of.

[29]  APR has not argued that it will itself suffer irreparable harm if the injunction is not granted. It relies instead on the harm that it says will befall Canadian airline passengers whose flights have been cancelled for pandemic-related reasons. However, while APR appears to be pursuing this matter as a public interest litigant, it has not yet sought or been granted public interest standing.

[30]  As a general rule, only harm suffered by the party seeking the injunction will qualify under this branch of the test: RJR-MacDonald, above at 341; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, 38 D.L.R. (4th) 321 at 128. There is a limited exception to this principle in that the interests of those individuals dependent on a registered charity may also be considered under this branch of the test: Glooscap Heritage Society v. Minister of National Revenue, 2012 FCA 255, 440 N.R. 232 at paras. 33-34; Holy Alpha and Omega Church of Toronto v. Attorney General of Canada, 2009 FCA 265, [2010] 1 C.T.C. 161 at para. 17. While APR is a not-for-profit corporation, there is no suggestion that it is a registered charity.

[31]  I am also not persuaded that irreparable harm has been established, even if potential harm to Canadian airline passengers is considered.

[32]  Insofar as APR seeks to enjoin the CTA from dealing with passenger complaints, it asserts that the statements in issue were published contrary to the CTA’s own Code of Conduct. This prohibits members from publicly expressing opinions on potential cases or issues relating to the work of the Agency that may create a reasonable apprehension of bias on the part of the member. According to APR, the two statements at issue here create a reasonable apprehension of bias on the part of the CTA’s members such that they will be unable to provide complainants with a fair hearing.

[33]  Bias is an attitude of mind that is unique to an individual. As a result, an allegation of bias must be directed against a specific individual who is alleged to be unable to bring an impartial mind to bear on a matter: E.A. Manning Ltd. v. Ontario Securities Commission, 23 O.R. (3d) 257, 32 Admin. L.R. (2d) 1 (C.A.), citing Bennett v. British Columbia (Securities Commission) (1992), 69 B.C.L.R. (2d) 171, 94 D.L.R. (4th) 339 (C.A.).

[34]  As is the case with many administrative bodies, the CTA carries out both regulatory and adjudicative functions. It resolves specific commercial and consumer transportation-related disputes and acts as an industry regulator issuing permits and licences to transportation providers. The CTA also provides the transportation industry and the travelling public with non-binding guidance with respect to the rights and obligations of transportation service providers and consumers.

[35]  There is no evidence before me that the members of the CTA were involved in the formulation of the statements at issue here, or that they have endorsed them. Courts have, moreover, rejected the notion that a “corporate taint” can arise based on statements by non-adjudicator members of multi-function organizations: Zündel v. Citron, [2000] 4 FC 225,189 D.L.R. (4th) 131 at para. 49 (C.A.); E.A. Manning Ltd., above at para. 24.

[36]  Even if it subsequently turns out that CTA members were in fact involved in the formulation of the statements, APR’s argument could be advanced in the context of an actual passenger complaint and any bias concerns could be addressed in that context. Relief could then be sought in this Court if the complainant is not persuaded that they have received a fair hearing. The alleged harm is thus not irreparable.

[37]  APR also asserts that passengers are being misled by the travel industry as to the import of the CTA’s statements, and that airlines, travel insurers and others are citing the statements as a basis to deny reimbursement to passengers whose flights have been cancelled for pandemic-related reasons. If third parties are misrepresenting what the CTA has stated, recourse is available against those third parties and the alleged harm is thus not irreparable.

6.  Balance of Convenience

[38]  In light of the foregoing, it is unnecessary to deal with the question of the balance of convenience.

7.  Other Matters

[39]  Because it says that APR’s application for judicial review does not relate to a matter that is amenable to judicial review, the CTA argues in its memorandum of fact and law that the application should be dismissed. There is, however, no motion currently before this Court seeking such relief, and any such motion would, in any event, have to be decided by a panel of judges, rather than a single judge. Consequently, I decline to make the order sought.

[40]  APR asks that it be permitted to make submissions on the issue of costs once the Court has dealt with the merits of its motion. APR shall have 10 days in which to file submissions in writing in relation to the question of costs, which submissions shall not exceed five pages in length. The CTA shall have 10 days in which to respond with submissions that do not exceed five pages, and APR shall have a further five days in which to reply with submissions that do not exceed three pages in length.

"Anne L. Mactavish"

 

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:	A-102-20
STYLE OF CAUSE:	AIR PASSENGERS RIGHTS v. CANADIAN TRANSPORTATION AGENCY

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:	MACTAVISH J.A.
DATED:	May 22, 2020

WRITTEN REPRESENTATIONS BY:

Simon Lin	For The Applicant
Allan Matte	For The Respondent

SOLICITORS OF RECORD:

Evolink Law Group Burnaby, British Columbia	For The Applicant
Legal Services Directorate Canadian Transportation Agency Gatineau, Quebec	For The Respondent