Air Passenger Rights v. Canadian Transportation Agency

(Federal) (Civil) (By Leave)


Administrative law - Injunctions, Judicial review - Administrative law — Injunctions — Judicial review — Judgments and orders — Interlocutory orders — What is the correct test for availability of judicial review in the federal courts — What is the national and consistent approach to irreparable harm in the RJR MacDonald framework for litigants seeking interim relief in the public interest — RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385.


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In response to border closures, travel bans and advisories, and flight cancellations, the respondent issued two public statements on its website suggesting it could be reasonable for airlines to provide passengers with travel vouchers rather than refunds for flights cancelled for pandemic-related reasons. It was also stated that any complaint brought to the Agency would be considered on its own merits. The applicant advocacy group commenced an application for judicial review of the public statements and brought a motion for an interlocutory order requiring the statements to be removed from the respondent’s website and seeking to enjoin the respondent’s members from dealing with passenger complaints on refunds, due to a reasonable apprehension of bias. The applicant argued that the statements purport to relieve airline carriers from the obligation to provide passenger refunds both for flight cancellations beyond their control and within their control, and submits that the statements are an unsolicited advance ruling on how passenger complaints about lack of refunds will be decided.

The Federal Court of Appeal dismissed the motion. It determined that irreparable harm had not been established to support an interlocutory order enjoining members of the respondent from dealing with passenger complaints. There was no evidence before the court that the members had been involved in making the statements and, even if they had, actual passenger complaints could address the concern of bias in applications for judicial review brought before the court. The request for an order to remove the two statements from the respondent’s website required the applicant to establish a strong prima facie case for the underlying application for judicial review. This could not be done, given that the administrative actions being challenged in the judicial review application (the statements) are not amenable to judicial review.