Transportation watchdog must revisit air passenger obesity complaint: Court

Lukacs cited an email from a Delta customer care agent responding to a concern raised by a traveller known as Omer about a fellow passenger who required additional space and who therefore made Omer feel “cramped.”

In the email, Delta apologized to Omer and set out the guidelines it follows to ensure that large passengers and people sitting nearby are comfortable.

It said Delta sometimes asks the large passenger to move to a location in the plane where there is more space. If the flight is full, the airline may ask the passenger to take a later flight. In addition, Delta recommended that large passengers purchase additional seats, to avoid being asked to rebook and ensuring the airline can guarantee comfort for all.

The agency rejected Lukacs’s complaint on the basis he lacked standing to make arguments, either as someone directly affected or in the public interest.

It noted Lukacs himself was not obese, and therefore couldn’t claim to be affected. The agency found he did not have public interest standing because his complaint didn’t challenge the constitutionality of legislation or the illegal exercise of an administrative authority.

Lukacs successfully challenged the decision in the Federal Court of Appeal, which ruled in 2016 that the transportation agency relied on overly narrow grounds — akin to those applied by courts — to deny him standing.

The appeal court ordered the transportation agency to reconsider whether to investigate the complaint, examining factors other than standing. The order prompted Delta to take its case to the Supreme Court.

The agency applied tests for standing in a way that would preclude any public interest group from ever having a chance to make arguments on a complaint, said Beverley McLachlin, who was the high court’s chief justice when the case was heard and penned reasons on behalf of the majority.

As a result, “potentially highly relevant complaints” might never be heard, McLachlin wrote.

Delta gained some ground in the decision, however, as the Supreme Court directed the transportation agency to consider all issues — including the question of standing — when it revisits Lukacs’s complaint.

The agency might be able to adapt the standing tests of civil courts to its own needs, McLachlin suggested.

The watchdog may also decide to look at whether the complaint is in good faith, timely, vexatious or based on sufficient evidence, and if it raises a serious issue or aligns with the agency’s workload and priorities, she wrote.

“Deference requires that we let the agency determine for itself how to use its discretion, provided it does so reasonably.”

Writing in dissent, Justice Rosalie Abella said it was appropriate for the agency to apply the same standing rules as those used by courts. “Put colloquially, if it’s good enough for the courts, it’s good enough for tribunals.”

In addition, Abella said Lukacs wanted to engage the agency “in a fishing expedition” based on a complaint “with no underlying facts, no representative claimants and no argument.”

Neither Delta nor its lawyer responded to requests for comment.

The transportation agency said it was reviewing the court decision, but declined further comment since the obesity complaint remains active.

While Lukacs’s complaint might eventually be investigated, he is concerned about a bill before Parliament that could make it harder to do his advocacy work.

The legislation, which would usher in a new air passenger rights regime, stipulates that complaints “may only be filed by a person adversely affected.”

— Follow @JimBronskill on Twitter

Jim Bronskill, The Canadian Press

by Canadian Press

Transportation watchdog must revisit air passenger obesity complaint: Court

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