Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A U G U S T 2 0 1 7 47 to consider whether an agency is ful- filling its mandate rather than decide on the basis of who is filing the complaint, she says. At the same time, says Promislow, "I can see Delta's point. There are very good reasons to think the courts should defer strongly" to the decision of an administrative tribunal. In terms of how the term "any per- son" should be interpreted, though, she does not think the Ontario Court of Appeal decision applies to deciding who can complain to an administrative agency. "Galganov is a case about stand- ing to apply for judicial review and not standing before an administrative agen- cy such as the Canadian Transportation Agency," she says. In support of its position, the air- line is also relying on the Supreme Court decision in 2012 in Canada v. Downtown Eastside Sex Workers United Against Violence Society. That decision granted standing to a public interest group and a former sex worker as part of a constitutional challenge to the country's prostitution laws. Delta cited a section of the ruling stating that, in the allocation of scarce judicial resources, those "with a personal stake in the out- come" should get priority. Lisa Kerr, a law professor at Queen's University in Kingston, Ont. and one of the lawyers who acted for the public interest group in the prostitution chal- lenge case, says it clearly met all the tests for standing before a court. The ruling itself, she says, "opened the door a little bit" for standing in the court context. But Kerr questions whether the same standard applies to standing before an administrative tribunal. "These are not courts adjudicating disputes. There are broad public responsibilities. I think the standing analysis has to be different," she says. The Ontario government, in its application to be an intervener in the Delta appeal, is also arguing that the law of public interest standing should not apply in the administrative context. Even if the Federal Court of Appeal decision is upheld, there are still "gate- keeper" protections for the transpor- tation agency, since it has the statu- tory discretion not to investigate a com- plaint, notes Promislow. "Dr. Lukács could have 'standing' and the CTA could still not decide to go forward and hear the complaint," she says, which the Federal Court of Appeal upheld in another complaint, this time over Expedia's advertising practices. In many cases, the issue may depend on the precise wording of a tribunal's statute, says Safayeni. "There is no one- size-fits-all answer," he suggests. "But they can't all close the door because of standing." For his part, Lukács rejects the "busybody" label and pointed out in his written submissions that the firm acting for Delta has noted his successful track record in case commentaries on past decisions. "From a moral point of view, it is troublesome if injustice to others is con- sidered to be not your business," says Lukács. "People who point out wrong- ful acts should be appreciated." WE CAN HANDLE ANY PITCH. LITIGATIONBOUTIQUE.COM WOODS LLP LITIGATION, ARBITRATION AND INSOLVENCY BOUTIQUE 2000 McGILL COLLEGE AVE. SUITE 1700, MONTREAL, QUEBEC H3A 3H3 T. 514-982-4545 Untitled-2 1 2016-10-04 2:21 PM

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