Decision No. 1-AT-C-A-2019

January 7, 2019

APPLICATION by Gábor Lukács against Delta Air Lines, Inc. (Delta).

Case number: 
18-01646

SUMMARY

[1] Mr. Lukács filed an application with the Canadian Transportation Agency (Agency) against Delta regarding Delta’s alleged policy concerning the transportation of large (obese) passengers (application).

[2] The application was originally dismissed by the Agency, but has since been returned for reconsideration following appeals to the Federal Court of Appeal (FCA) and the Supreme Court of Canada (SCC). When the matter was returned to the Agency, and before dealing with the merits of the application, the Agency identified the following two preliminary issues:

  1. Should the Agency address Mr. Lukács’ application under subsection 111(2) of the Air Transportation Regulations,SOR/88-58, as amended (ATR), section 172 of the Canada Transportation Act,S.C., 1996, c. 10, as amended (CTA), section 67.2 of the CTA, or under a combination of some of these provisions?
  2. How should the Agency exercise its discretion under section 37 of the CTA in respect of Mr. Lukács’ application?

[3] Submissions were received from the parties on these issues. For the reasons set out below, the Agency finds that the application deals with an issue of accessibility for persons with disabilities and should therefore be considered pursuant to section 172 of the CTA, and that the Agency will exercise its discretion not to deal with the application because the applicant does not wish for it to be considered pursuant to section 172 of the CTA. Further, the application lacks a reasonable evidentiary basis and hearing the application would be duplicative of other, more efficient and effective processes for addressing the matters it raises.

BACKGROUND

[4] On August 24, 2014, Mr. Lukács filed an application with the Agency regarding Delta’s alleged policy concerning the transportation of large (obese) passengers. Mr. Lukács alleged that Delta refuses to transport large passengers on flights for which they hold a confirmed reservation. Further, Mr. Lukács alleged that Delta requires large passengers to travel on later flights and requires them to purchase additional seats to avoid the risk of being denied transportation.

[5] On November 25, 2014, in Decision No. 425-C-A-2014, the Agency dismissed the application on the basis that Mr. Lukács lacked both private interest standing and public interest standing.

[6] On September 7, 2016, in Lukács v. Canadian Transportation Agency, 2016 FCA 220, the FCA allowed Mr. Lukács’ appeal, set aside the Agency’s decision, and remitted the matter to the Agency for reconsideration of whether to hear the application on a basis other than standing.

[7] On January 19, 2018, in Delta Air Lines Inc. v. Lukács, 2018 SCC 2, the SCC allowed Delta’s appeal of the FCA judgement in part and remitted the matter to the Agency “to reconsider the matter in whole, whether on the basis of standing or otherwise”.

[8] On March 26, 2018, Mr. Lukács filed a request under section 27 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014‑104 (Dispute Adjudication Rules) to include, as part of the record in his application, the witnessed statement of William Tait (section 27 request).

[9] On June 22, 2018, the Agency issued Decision No. LET-C-A-43-2018 granting Mr. Lukács’ section 27 request and providing the parties with an opportunity to file submissions on the following questions:

  1. Should the Agency address Mr. Lukács’ application under subsection 111(2) of the ATR, section 172 of the CTA, section 67.2 of the CTA, or under a combination of some of these provisions?
  2. How should the Agency exercise its discretion under section 37 of the CTA in respect of Mr. Lukács’ application?

THE LAW

[10] Subsection 111(2) of the ATR states that:

No air carrier shall, in respect of tolls or the terms and conditions of carriage,

(a) make any unjust discrimination against any person or other air carrier;

(b) give any undue or unreasonable preference or advantage to or in favour of any person or other air carrier in any respect whatever; or

(c) subject any person or other air carrier or any description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatever.

[11] Section 113 of the ATR states that the Agency may:

(a) suspend any tariff or portion of a tariff that appears not to conform with subsections 110(3) to (5) or section 111 or 112, or disallow any tariff or portion of a tariff that does not conform with any of those provisions; and

(b) establish and substitute another tariff or portion thereof for any tariff or portion thereof disallowed under paragraph (a).

[12] Section 37 of the CTA states that:

The Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.

[13] Subsection 67.2(1) of the CTA states that:

If, on complaint in writing to the Agency by any person, the Agency finds that the holder of a domestic license has applied terms or conditions of carriage applicable to the domestic service it offers that are unreasonable or unduly discriminatory, the Agency may suspend or disallow those terms or conditions and substitute other terms or conditions in their place.

[14] Subsection 172(1) of the CTA states that:

The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

SHOULD THE AGENCY ADDRESS MR. LUKACS’ APPLICATION UNDER SUBSECTION 111(2) OF THE ATR, SECTION 172 OF THE CTA, SECTION 67.2 OF THE CTA, OR UNDER A COMBINATION OF SOME OF THESE PROVISIONS?

Positions of the parties

MR. LUKÁCS’ POSITION

[15] Mr. Lukács states that the application should be considered primarily under subsection 111(2) of the ATR, the provision of the ATR under which it was initially brought. However, Mr. Lukács states that, in addition to considering the application under subsection 111(2) of the ATR, the Agency may also consider its “ramifications” under section 172 of the CTA “for passengers who are so large that their size amounts to a disability”.

[16] Mr. Lukács alleges that Delta’s policy for refusing to transport passengers “based on their girth or size is primarily an issue of generic discrimination”, is based on the passenger’s personal characteristics and not on their disability. He states that passengers who are so large that their size amounts to a disability recognized by the Agency are just a subset of the passengers that Delta may deem large. Mr. Lukács asserts that being deemed large by Delta does not necessarily correlate to a disability and that Delta’s policy discriminates against such large passengers.

[17] With respect to subsection 67.2(1) of the CTA, Mr. Lukács states that the FCA’s conclusion that his application was brought under that provision was in error; however, he asserts that the FCA did correctly state that the application was brought pursuant to subsection 111(2) of the ATR. Mr. Lukács indicates that he referred to subsection 67.2(1) of the CTA only as a “contextual aid”.

DELTA’S POSITION

[18] Delta submits that the basis for Mr. Lukács’ application is more unclear now than it was in 2014. Delta states that Mr. Lukács’ recent submission indicates that his claim is now brought under both subsection 111(2) of the ATR and section 172 of the CTA, which Delta argues is contrary to his 2014 claim.

[19] Further, Delta argues that it appears that Mr. Lukács is seeking to expand his application regarding Delta’s tariff in order to implement a “one-person-one-fare” rule on Canadian air travel to and from international destinations. Delta contends that this would require “an extremely technical and nuanced review” that would be of a much greater complexity than the domestic application of the policy.

[20] Delta states that Mr. Lukács’ response to the Agency’s questions has not provided any further clarity to the issue of the provision(s) under which the Agency should hear the application. Delta observes that although Mr. Lukács submits that section 67.2 of the CTA has some undefined application as a “contextual aid”, that section does not apply to non-Canadian air carriers like Delta.

[21] Delta submits that, in Mr. Lukács’ September 19, 2014 submission on standing, Mr. Lukács was adamant about the “limited scope” of his application and that “no disability-related accommodation is being sought.” Delta states that Mr. Lukács’ application did not raise any disability-related issues and that it was not seeking better or special treatment for large passengers. Delta argues that it is unclear from Mr. Lukács’ recent submissions whether he still views the scope of his application as “limited”.

[22] Finally, Delta submits that applications brought under section 172 of the CTA and those brought under subsection 111(2) of the ATR are vastly different from one another and each require different forms of analysis.

Analysis and determinations

SECTION 67.2 OF THE CTA

[23] Subsection 67.2(1) of the CTA provides that the Agency may, on complaint in writing by any person, suspend or disallow terms or conditions of carriage applicable to a domestic service that are unreasonable or unduly discriminatory. In Mr. Lukács’ submission dated September 19, 2014, in which he addresses the issue of standing, he relied on subsection 67.2(1) of the CTA and, specifically, on the wording “any person” contained in this provision. He emphasized these words to support his claim that he need not be affected by a particular policy and that “any person” can file a complaint. He repeated this assertion in his reply dated October 1, 2014. It is clear that Mr. Lukács’ original intention was that his complaint be considered under this provision which, in his view, granted him standing to pursue the matter.

[24] The FCA, in the appeals from Decision No. 425-C-A-2014, confirmed that the complaint was brought under this provision while leaving open the issue of the extent to which this provision applies to the issues raised in the complaint. The SCC did not address the issue of the applicability of subsection 67.2(1) of the CTA to Mr. Lukács’ application.

[25] In Mr. Lukács’ recent submissions, he clarified that the application was not brought under subsection 67.2(1) of the CTA, but, rather, that this provision could be used as a “contextual aid”. He states that it is “common ground” that the FCA’s reference to subsection 67.2(1) of the CTA was in error.

[26] The application was originally filed under subsection 67.2(1) of the CTA. This was confirmed by the FCA. Mr. Lukács now seeks to change his reliance on this provision. This provision clearly applies only to holders of a domestic licence. Delta does not hold a domestic licence. As a result, subsection 67.2(1) of the CTA does not apply to this case.

SUBSECTION 111(2) OF THE ATR

[27] Subsection 111(2) of the ATR, like subsection 67.2(1) of the CTA, prohibits unjust discrimination in the tolls or the terms and conditions of carriage. Subsection 111(2) of the ATR applies to holders of an international licence and, therefore, applies to Delta.

[28] However, the facts upon which Mr. Lukács’ application is based do not support his claim that it should be primarily considered under subsection 111(2) of the ATR. Both Omer’s and Mr. Tait’s concerns relate to girth. In Omer’s case, the girth of someone sitting next to him and, in Mr. Tait’s case, his own girth. Mr. Lukács specifies that his application is about Delta’s policy in relation to “large persons”, of which, he contends, persons who are disabled by obesity are only one subset of this group. However, it is clear from Delta’s evidence that it uses the adjective “large” as a euphemism for “obese” and that the policy is directed to persons who are disabled by their obesity such that they require additional seating space to accommodate their girth.

[29] This is clearly Mr. Tait’s understanding. In his letter to Delta, he specifically references the air carrier’s alleged “mal-treatment of persons with disabilities”, stating that air carriers have an obligation to accommodate persons with disabilities, and argues that Delta should be forced to adopt the one-person one-fare policy which has been required of Air Canada, WestJet and Jazz by Agency jurisprudence.

[30] In the case of Omer, the complaint is from someone who objected to being seated next to a passenger who did not fit in his seat. These facts do not support a claim of discrimination. Mr. Tait, however, objected to Delta’s failure to accommodate him. These facts are not merely an instance of the “generic” discrimination to which Mr. Lukács refers, but rather, support an allegation of discrimination on the basis of a disability.

[31] In any event, Mr. Lukács’ application and pleadings do not identify any Delta tariff provision or term or condition of carriage that is the source of the alleged discrimination nor seek any specified relief, despite the fact that the only remedies for a violation of section 111 of the ATR are for the Agency to suspend or disallow a discriminatory tariff provision pursuant to section 113 of the ATR and substitute another tariff provision for it. Therefore, proceeding under subsection 111(2) of the ATR would not be an effective means of addressing the issue raised in the complaint.

SECTION 172 OF THE CTA

[32] Mr. Lukács’ original application argued that Delta’s alleged policy regarding large (obese) passengers is discriminatory, contrary to subsection 111(2) of the ATR, and contrary to the findings of the Agency in Decision No. 6-AT-A-2008 concerning the accommodation of passengers with disabilities.

[33] When the issue of Mr. Lukács’ standing to pursue the complaint was raised, he stated clearly in his submission dated September 19, 2014, that he was not seeking disability-related accommodation. Specifically, he maintained that he was not seeking the same terms and conditions as were imposed by the Agency in Decision No. 6-AT-A-2008, which required certain domestic air carriers to amend their policies and procedures to incorporate a one-person one-fare regime for certain persons with disabilities, including those disabled by obesity. Mr. Lukács did, however, intend to rely on the reasoning of this decision to establish that Delta’s alleged policy is harmful and unduly discriminatory.

[34] In his submission dated July 10, 2018, . Mr. Lukács argues that the Agency may consider the ramifications of Delta’s alleged policy under section 172 of the CTA for persons who are so large that their size amounts to a disability, but he maintains that such persons are merely a subset of those passengers who may be the target of Delta’s policy.

[35] This argument is not persuasive, particularly given the record before the Agency. Omer does not allege any type of discrimination or mistreatment by Delta due to his personal characteristics, but merely references a passenger seated next to him who “required extra space”. Mr. Tait, as noted above, relies on Delta’s obligation to accommodate persons with disabilities. Finally, Mr. Lukács has not offered any instance of the “generic discrimination” to which he alludes in his most recent submissions.

[36] In terms of remedies, where the Agency finds that an application under section 172 of the CTA has merit, it has broad discretion to order corrective measures.

[37] The Agency finds that the application is most appropriately considered under section 172 of the CTA, based on the facts underlying the application and the breadth of remedies available.  

HOW SHOULD THE AGENCY EXERCISE ITS DISCRETION UNDER SECTION 37 OF THE CTA IN RESPECT OF MR. LUKÁCS’ APPLICATION?

Positions of the parties

MR. LUKÁCS’ POSITION

[38] Mr. Lukács states that his application is forward-looking and preventive in nature as it seeks to end discrimination based on an “immutable characteristic”. Mr. Lukács indicates that for the past four years, Delta did not dispute the policy’s existence, and on that basis argued its case before the FCA and the SCC. Mr. Lukács also indicates that Delta’s attempt to deny the existence of the policy at this stage is frivolous and vexatious. Mr. Lukács also asserts that Delta, which has the burden of proof at this preliminary stage, presented no evidence whatsoever.

[39] Mr. Lukács argues that the test applied by the Agency in Decision No. 121-C-A-2016 (Porter Decision) sought remedies for incidents that occurred in the past and that it would not be reasonable for the Agency to apply the same test to forward-looking applications.

[40] Mr. Lukács alleges that Delta’s policy discriminates against passengers based on their characteristics and that at least one passenger has been affected by the policy. Mr. Lukács submits that, given that the Agency’s mandate is to intervene before passengers actually experience harm, the number of passengers affected by the policy in question is irrelevant.

[41] Mr. Lukács argues that the Agency should hear and determine the application as it falls within the Agency’s core statutory mandate of eliminating discrimination in the air transportation of passengers. Further, Mr. Lukács contends that if the Agency deems necessary, it should appoint an inquiry officer to gather further evidence and hold an inquiry into the matter and invite stakeholders to make representations.

[42] Mr. Lukács asserts that the Agency should consider the following factors in determining how to exercise its discretion under section 37 of the CTA.

Objective of the statutory scheme

[43] Mr. Lukács states that the CTA and the ATR create a regulatory scheme for transportation in order to achieve policy objectives, which includes protecting consumers by eliminating unreasonable policies. The Agency has the ability to eliminate policies that it finds unreasonable and unjustly discriminatory in transportation.

Whether the application raises a serious issue

[44] Mr. Lukács submits that the issue raised in his application falls within the Agency’s jurisdiction and mandate, which is to eliminate unreasonable and unjustly discriminatory policies. By eliminating Delta’s policy, the Agency would be acting in a manner that is consistent with the objective of protecting consumers and their human rights.

Whether the application is duplicative

[45] Mr. Lukács states that his application does not duplicate any complaint that is currently pending before the Agency or any complaint pending against Delta before the Agency that raises the same issues.

Whether there is an equitable bar to hearing the application

[46] Mr. Lukács states that Delta did not contest, either before the Agency or the FCA, that he has a genuine interest in the application and that it was brought forward in good faith. Further, Mr. Lukács states that Delta did not assert that there is an equitable bar to the complaint.

DELTA’S POSITION

[47] Delta argues that the Agency should exercise the broad discretion granted to it by Parliament under section 37 of the CTA, and confirmed by the SCC, to decide not to hear the application. Furthermore, Delta states that the Agency should dismiss the application for reasons relating to Mr. Lukács’ lack of standing and for his failure to state his case.

[48] Delta states that, although the SCC did not establish a test for standing before the Agency, the SCC indicated that the test created in the Porter Decision was appropriate. Delta submits that the Agency could apply that test to Mr. Lukács’ application, and that it would “constitute a principled and reasonable exercise of its discretion” under section 37 of the CTA.

[49] Delta further argues that Mr. Lukács’ application should be dismissed, as the inclusion of the witnessed statement of Mr. Tait does not change the fact that the application “does not raise a serious issue, lacks a basis in sufficient evidence, and, is not an effective and reasonable means of bringing the matter before the Agency”. Delta further contends that Mr. Lukács’ interest in the matter is academic and, after almost four years of proceedings, he is asking the Agency to engage in a “fishing expedition”.

[50] Delta states that Mr. Lukács’ application was founded on a copy of an email sent by Delta to someone named Omer. Omer complained to Delta because he was seated next to a passenger who required additional space because of their physical size. The basis of Omer’s complaint seems to have been the exact oppositeof the basis of Mr. Lukács’ application. According to Delta: “it was not that a large passenger was required to move to a different seat, or required to purchase an additional seat, or refused transport, but that he was boarded and seated in his assigned seat” to the discomfort of Omer. Delta argues that the factual record Mr. Lukács relies on actually disproves his claim.

[51] Delta argues that all the evidence that Mr. Lukács has acquired over the last four or more years does not support his argument that “Delta refuses – or has refused – to transport large passengers, or that it requires – or has required – large passengers to purchase additional seats”. Delta suggests that what Mr. Lukács is doing is “asking the Agency to order Delta to stop doing something it is NOT doing”. Delta submits that further pursuing this application would not be a good use of the Agency’s resources.

[52] Delta argues that if large passengers were routinely being denied boarding due to Delta’s policy, the number of applications on this very issue would be significantly increased.

[53] Delta asserts that the Agency should take note of Mr. Lukács’ failure to bring forward even one other passenger who may have been or has been affected by such a policy which suggests that this is not a serious issue and that Mr. Lukács is unable to provide sufficient evidence to demonstrate that it is a serious issue.

Analysis and determinations

[54] Taking careful account of the guidance in the SCC decision remitting the application back to the Agency, the Agency has considered how to exercise the discretion it has to determine whether to hear applications – which is established, in part, by the use of the word “may” in section 37 of the CTA – in a manner consistent with its responsibility, as an administrative tribunal, to preserve access to justice.

[55] The Agency originally dismissed Mr. Lukács’ application on the basis that he failed to meet the test for private interest standing or public interest standing. The SCC held that the Agency’s application of public interest standing was unreasonably strict, but that the FCA should not have held that the standing rules could not be considered. Tests for standing could, the SCC ruled, be considered when determining whether or not to hear a complaint, but this is not the only manner in which the Agency can exercise its discretion:

Of course, there are numerous other ways that the Agency could exercise its discretion under s. 37 of the Act, including examining whether the complaint is in good faith, timely, vexatious, duplicative, or in line with the Agency’s workload and prioritization of cases. The Agency may also wish to consider whether the claim raises a serious issue to be tried or, as Abella J. has done, whether the complaint is based on sufficient evidence. It is not for this Court to tell the Agency which of these methods is preferable. Deference requires that we let the Agency determine for itself how to use its discretion, provided it does so reasonably. (Delta, supra, at para. 31)

[56] The SCC provided a non-exhaustive list of potential factors which may be considered by the Agency in the exercise of its discretion. It remains for the Agency to determine how to exercise its discretion under section 37 of the CTA. The only limitation imposed by the SCC is one of reasonableness.

[57] In the present case, three considerations weigh against proceeding with adjudication.

[58] First, the application is not appropriately framed in relation to the statutory scheme. Mr. Lukács wishes that the application be considered under section 111 of the ATR rather than section 172 of the ATR, despite the fact that it deals with: alleged discrimination on the basis of body size; is with respect to an alleged policy intended to address persons who are disabled by their obesity; relies on a witnessed statement that specifically describes concerns regarding the accommodation of persons with disabilities; and alleges breach of a provision the sole remedy for which is a suspension, disallowance and/or substitution of the non-compliant tariff provision where no tariff provision has been identified. As noted above, the Agency does not find Mr. Lukács’ reasoning in this regard persuasive. His suggestion that the application might nevertheless have unspecified “ramifications” for section 172 of the ATR and, further, that subsection 67.2(1) of the CTA might be of some unspecified assistance as a “contextual aid” obscures rather than clarifies matters. The Agency does not expect every application to be perfectly formulated, but this level of confusion weighs against hearing the application.

[59] Second, Mr. Lukács has provided scant evidence in support of his application. Mr. Lukács suggests that if the Agency requires evidence or submissions, an inquiry officer could be appointed or an inquiry held to obtain this evidence and receive the representations of stakeholders. Such steps are within the Agency’s authority, but they entail the expenditure of finite resources and are not typically undertaken to simply fill in the gaps in applications where applicants could themselves have offered more complete evidence. The evidentiary inadequacies in Mr. Lukács’ application also militate against hearing it.

[60] Third, proceeding to adjudicate Mr. Lukács’ application would be duplicative of other, more efficient and effective processes currently under way, namely the development of new accessible transportation regulations. Mr. Lukács correctly indicates that Parliament has given the Agency tools to prospectively prevent, and not just retrospectively address, harm to travellers. One of the most important of these tools is the making of regulations to remove and prevent undue obstacles to travellers with disabilities. Work on an integrated, binding set of accessible transportation regulations is well-advanced, and has involved consultations with the Agency’s Accessibility Advisory Committee, which is composed of numerous representatives of disability rights organizations and the transportation industry, and the receipt of over 190 submissions, including from Mr. Lukács.

[61] During these consultations, it became evident that the question of whether the one-person one‑fare requirement should be extended to international flights is highly complex, as some stakeholders and experts believe such a step could, in respect of non-Canadian air carriers, be inconsistent with certain of Canada’s international treaty obligations. Therefore, the Agency has determined that this question, along with several others, will continue to be considered in the second stage of work on accessible transportation regulations, which is expected to begin in late 2019.

[62] A broad regulatory review involving a wide range of relevant stakeholders and experts is a more efficient and effective method of addressing the issues raised in the application than proceeding with an adjudication of an individual application. It will allow the Agency to consider information and advice brought forward by, amongst others, numerous groups that represent passengers who would be directly affected by the issue in question, as well as the air carriers that would be required to accommodate them.

[63] The Agency also has pending before it a complaint brought by the Council of Canadians with Disabilities (CCD) – a national human rights organization composed of representatives from provincial disability organizations across Canada as well as major national disability organizations – against Air Canada. In this application, CCD alleges that the unavailability of one-person one-fare accommodation at the international level results in an undue obstacle to persons with disabilities. The Agency has stayed that proceeding, based, in part, on the regulatory modernization process outlined above. Should that process not resolve the matter, CCD’s complaint could proceed to adjudication. Mr. Lukács’ application would be duplicative of this proceeding as well.

[64] Finally, the Agency has previously held that proceeding by way of adjudication involving a single complainant is not the most appropriate means of addressing the systemic question of whether the one-person one-fare principle should be expanded to international air services. As a result, the Agency dismissed this aspect of an application in Decision No. 324-AT-A-2015. An application for leave to appeal from this decision was denied by the FCA on an order dated December 21, 2015. A further application to the SCC (Sarah Cheung v. Canadian Transportation Agency et al., 2016 CanLII 53915 [SCC]) for leave to appeal the FCA’s denial of leave was also dismissed.  

CONCLUSION

[65] Given that Mr. Lukács’ application is not appropriately framed in relation to the statutory scheme and that it lacks a reasonable evidentiary basis – and that adjudicating it would be duplicative of other, more efficient and effective processes addressing the same matters – the Agency has determined that it will exercise its discretion not to hear the application.

Member(s)

Scott Streiner
Elizabeth C. Barker
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