46 A U G U S T 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m
will encourage curious busybodies to
launch complaints in which they do not
have a demonstrated or sufficient inter-
est," stated Delta's counsel, Carlos Mar-
tins, in the written leave submissions. If
the decision is allowed to stand, it could
lead to "opening floodgates to unneces-
sary proceedings," wrote Martins, a part-
ner at Bersenas Jacobsen Chouest Thom-
son Blackburn LLP in Toronto (Martins
declined to comment as the appeal is still
to be heard by the Supreme Court).
Ehsan Monfared, a Toronto lawyer who
practises aviation law, suggests the Federal
Court of Appeal did not show appropriate
deference to the specialized expertise of
the agency. "They are masters of their own
domain," says Monfared, an associate at
Clark & Company. Delta is also arguing in
its written submissions on appeal that one
of the sections in the transportation act on
which the Federal Court relied does not
apply to international carriers. Monafred
agrees and suggests that there may be a
disincentive for foreign carriers to provide
services in this country if "any person" can
lodge a complaint.
The floodgates and busybody warn-
ings by the airline are not surpris-
ing, says Janna Promislow, an admin-
istrative law professor at Thompson
Rivers University in Kamloops, B.C.
"Busybodies, though, sometimes have a
point," she explains. "The discretion to
hear a complaint or not is about what is
being reviewed." In the administrative
law context, it may be more important
ADMINISTRATIVE BODIES SUCH AS
THE AGENCY ARE NOT COURTS.
THEY ARE PART OF THE EXECUTIVE
BRANCH, NOT THE JUDICIARY.
JUSTICE YVES DE MONTIGNY, Federal Court of Appeal
L E G A L R E P O RT \ L I T I G AT I O N
BabinBessnerSpry_IH_May_16.indd 1 2016-04-05 2:35 PM
