Vouchers over refunds: group unsuccessful seeking review of Canadian Transportation Agency’s March 2020 statement

The Federal Court of Appeal dismissed an application for judicial review by a non-profit organization, Air Passenger Rights (“APR”).  APR applied for judicial review regarding a statement posted by the intervener, Canadia Transportation Agency, in March 2020 regarding refunds and vouchers for flight cancellations.

Administrative law – Canadian Transportation Agency – Public interest – Judicial review application – Availability

Air Passenger Rights v. Canada (Attorney General), [2024] F.C.J. No. 1526, Federal Court of Appeal, August 12, 2024, Y. de Montigny C.J., J.B. Laskin and E. Walker JJ.A.

Air Passenger Rights (“APR”), a non-profit entity, provides education and advocacy work for air travel passengers.  APR applied for judicial review of a “statement on vouchers” (the “Statement”) published by the intervener, Canadian Transportation Agency (“CTA”) on or about March 25, 2020.

The Statement was published on a CTA webpage titled “Important Information for Travellers During COVID-19”.  The Statement was issued in response to the mass cancellation of flights that occurred during the first weeks of the COVID-19 pandemic in Canada in March 2020.  APR alleges that the Statement violated the CTA’s Code of Conduct. APR alleged that the CTA published the Statement for the improper purpose of assisting airlines by stifling the surge in credit card chargebacks they were then facing. APR also asserts that the Statement misled air passengers regarding their refund rights.

The Respondent, Attorney General of Canada, argued that the Statement is not amenable to judicial review pursuant to the provisions in the Federal Courts Act.  APR argued the Statement was subject to judicial review because of its effect on passengers’ rights.

The Federal Court of Appeal (“the Court”) concluded that APR’s argument was based on the actions taken by third parties (airlines and credit card companies) in reliance on the Statement, which had a prejudicial effect on passengers’ access to refunds.  APR argued that the Statement had the practical effect of facilitating the airlines’ retention of passengers’ money.

The Court held this argument was not persuasive because the actions of third parties were not the actions of the CTA and the CTA was not responsible for the decisions made by those third parties.  The prejudicial effects flowed from the interpretation and use of the Statement by third parties.

The Court then considered a new argument advanced by the APR after the hearing based on paragraph 61 in the decision in Sierra Club Canada Foundation v Canada (Environment and Climate Change), 2024 FCA 86 (“Sierra”).

APR argued that its evidence demonstrates that the CTA acted in response to airline pressure, assisting those airlines to evade their obligations to provide refunds for cancelled flights. APR argues that this conduct was improper and gives rise to a reasonable apprehension of bias.  The Court rejected this argument.  The Court held that the decision in Sierra did not support this argument by APR.

The Court dismissed APR’s application for judicial review, with costs awarded to the Respondent in the amount of $3,000.

This case was digested by Scott J. Marcinkow of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact him directly at [email protected].