DR. GÁBOR LUKÁCS Appellant v. CANADIAN, 2015 FCA 269

Date: 20151127 Docket: A-366-14 Citation: 2015 FCA 269 CORAM: DAWSON J.A. RYER J.A. NEAR J.A. BETWEEN: DR. GÁBOR LUKÁCS Appellant and CANADIAN TRANSPORTATION AGENCY and BRITISH AIRWAYS PLC Respondents Heard at Halifax, Nova Scotia, on September 15, 2015. Judgment delivered at Ottawa, Ontario, on November 27, 2015. REASONS FOR JUDGMENT BY: NEAR J.A. CONCURRED IN BY: RYER J.A. DISSENTING REASONS BY: DAWSON J.A. Date: 20151127 Docket: A-366-14 Citation: 2015 FCA 269 CORAM: DAWSON J.A. RYER J.A. NEAR J.A. BETWEEN: DR.

GÁBOR LUKÁCS Appellant and CANADIAN TRANSPORTATION AGENCY AND BRITISH AIRWAYS PLC Respondents REASONS FOR JUDGMENT NEAR J.A. I. Introduction [ 1 ] The appellant appeals from a May 26, 2014 decision of the Canadian Transportation Agency (the Agency), which concerns the compensation that British Airways must pay to passengers to whom it denies boarding (Decision No. 201-C-A-2014). He contests both the substance of the decision and the fairness of the procedure leading up to it. This Court granted the appellant leave to appeal under

section 41 of the Canada Transportation Act , S.C. 1996, c. 10.

II. Facts [ 2 ] On January 30, 2013, the appellant filed a complaint with the Agency concerning a number of matters involving British Airways. On January 17, 2014, after an exchange of submissions by the parties, the Agency released its decision. [ 3 ] Only one of the matters figuring in the January 17, 2014 decision remains at issue in this appeal, namely the matter of “denied boarding compensation” . This term refers to the compensation that an airline must pay to passengers to whom it denies boarding as a result of overbooking a flight. The amount that British Airways is required to pay is set out in Rule 87(B)(3)(

B) of International Passenger Rules and Fares Tariff No. BA-1, NTA(

A) No. 306. [ 4 ] In his initial complaint, the appellant argued that Rule 87(B)(3)(

B) was unreasonable within the meaning of

section 111 of the Air Transportation Regulations , SOR/88-58 (the ATR ). The appellant put forward a number of arguments in support of this submission. [ 5 ] First, the appellant argued that the Rule should reflect British Airways’ obligations under European Union Regulation (EC) No. 261/2004, which applies to all flights departing from an airport in the United Kingdom (U.K.) and operated by European Union (E.U.) airlines (air carriers, or carriers) with a destination in the U.K. The appellant maintained that British Airways would not suffer any competitive disadvantage by amending the Rule to reflect the E.U.

Regulation. He further submitted that British Airways has complied with the Regulation for flights from the U.K. to Canada, but has failed to comply with the Regulation for flights from Canada to the U.K. The appellant stated that he was not asking the Agency to enforce the E.U. Regulation. Rather, he was asking the Agency to consider the reasonableness of the Rule, and appropriate substitutes, in light of the Regulation. [ 6 ] The Agency concluded that it would not require British Airways to incorporate the provisions of the Regulation.

The Agency based its conclusion on one of its previous decisions, Decision No. 432-C-A-2013 ( Nawrot et al v. Sunwing Airlines Inc.) , in which it considered an argument regarding the same E.U. Regulation and determined that it would only consider the reasonableness of carriers’ tariffs by reference to legislation or regulations that it is able to enforce.

The relevant paragraph of Decision No. 432-C-A-2013 reads as follows: [103] As to the reasonableness of carriers’ tariffs filed with the Agency, the Agency makes determinations on provisions relating to legislation or regulations that the Agency is able to enforce. Legislation or regulations promulgated by a foreign authority, such as the European Union’s Regulation (EC) 261/2004, do not satisfy this criterion.

If a carrier feels compelled or has been instructed by a foreign authority to include a reference in its tariff to that authority’s law, the carrier is permitted to do so, but it is not a requirement imposed by the Agency. [ 7 ] Second, the appellant argued that Rule 87(B)(3)(

B) was unreasonable because it was inconsistent with the principle of a flat rate of denied boarding compensation. Rule 87(B)(3)(

B) provides that when a passenger is denied boarding to a flight from Canada to the U.K., British Airways will pay the full value of the replacement ticket to the passenger’s next stopover, plus between $50 and $200. [ 8 ] The Agency concluded that the Rule may be unreasonable within the meaning of subsection 111(1) of the ATR because British Airways had not demonstrated how it would suffer a competitive disadvantage if it were to raise the amounts of denied boarding compensation. [ 9 ] Third and finally, the appellant argued that Rule 87(B)(3)(

B) purports to pre-empt the rights of passengers who accept denied boarding compensation to seek damages under other laws and, as such, fails to provide passengers with a reasonable opportunity to fully assess their compensation options. The Agency agreed, finding the Rule unreasonable within the meaning of subsection 111(1) of the ATR insofar as it purports to provide a “sole remedy” for denied boarding. [ 10 ] In the Order issued with its January 17, 2014 decision, the Agency provided British Airways with the opportunity to “show cause” why it should not be required to amend Rule 87(B)(3)(

B) to bring it in conformity with one of three denied boarding compensation schemes listed by the Agency, or to propose a new scheme that the Agency may consider to be reasonable. The Order also stipulated that the appellant would have the opportunity to file comments on British Airways’ answer to the show cause Order. [ 11 ] On March 17, 2014, British Airways filed its answer. In this answer, British Airways stated that it was choosing to implement one of the four schemes listed in the Order, namely “[t]he regime proposed by Air Canada during the proceedings related to Decision No. 442-C-A-2013 ( Azar v. Air Canada) ” . British Airways proposed amending Rule 87(B)(3)(

B) to provide that, on flights from Canada to the U.K., passengers who were denied boarding would be compensated in the amount of CAD$400 in cash or equivalent for delays of zero to four hours, and in the amount of CAD$800 for delays of over four hours. [ 12 ] On March 26, 2014, in accordance with the show cause Order, the appellant filed comments in response to the answer given by British Airways. [ 13 ] On March 28, 2014, British Airways filed a reply to the appellant’s March 26, 2014 submissions.

On April 1, 2014, the appellant wrote to the Agency seeking permission to provide submissions in response to British Airways’ March 28, 2014 reply. [ 14 ] In Decision No. LET-C-A-25-2014, dated April 16, 2014, the Agency struck from the record the submissions made by British Airways on March 28, 2014 and those made by the appellant on April 1, 2014. The Agency also directed the appellant to amend his March 26, 2014 comments by removing any submissions unrelated to the specific matter of the denied boarding compensation regime proposed by Air Canada in Decision No. 442-C-A-2013 ( Azar v.

Air Canada ). [ 15 ] On April 23, 2014, the appellant asked the Agency to reconsider its April 16, 2014 decision. On May 2, 2014, in Decision No. LET-C-A-29-2014, the Agency denied the appellant’s request for reconsideration. The appellant filed a redacted version of his March 26, 2014 submissions “under protest” shortly thereafter, on May 8, 2014.

[ 16 ] On May 26, 2014, the Agency issued Decision No. 201-C-A-2014 (the final decision), the decision at issue in this appeal. [ 17 ] In this decision, the Agency first summarized the appellant’s response, which was that the Proposed Rule was unreasonable because it only applied to flights from Canada to the U.K., and not to flights from the U.K. to Canada. In support of this argument, the appellant referenced Decision No. 227-C-A-2013 ( Lukács v.

WestJet ), in which the Agency had determined that: … The failure to establish conditions governing denied boarding compensation for flights to and from Canada is contrary to Decision No. 666-C-A-2001. Therefore, the Agency finds that if Proposed Tariff Rule 110(

E) were to be filed with the Agency, it would be considered unreasonable. (At para. 39; emphasis added) [ 18 ] In its analysis, the Agency determined that British Airways’ Proposed Rule was consistent with the proposal made by Air Canada in Decision No. 442-C-A-2013 in terms of the amount of compensation. However, the Agency determined that, in terms of its application, the Proposed Rule was inconsistent with Air Canada’s proposal in Decision No. 442-C-A-2013.

Air Canada’s proposal applied to flights from Canada to the E.U., whereas British Airways’ proposal applied only to flights from Canada to the U.K. [ 19 ] The Agency therefore concluded that the Proposed Rule was unreasonable, and that, as a result, British Airways had failed to show cause. The Agency ordered British Airways to file a Proposed Rule that would apply to flights from Canada to the E.U. III. Legislative Framework [ 20 ]

Section 110 of the Air Transportation Regulations requires air carriers operating international service in Canada to create and file with the Agency a tariff setting out the terms and conditions of carriage. The tariff is a contract between the carrier and its passengers. [ 21 ] Paragraph 122( c )(iii) of the ATR stipulates that carriers are required to include in their tariff terms and conditions relating to denied boarding compensation: 122. Every tariff shall contain 122. Les tarifs doivent contenir : … […] (

c) the terms and conditions of carriage, clearly stating the air carrier’s policy in respect of at least the following matters, namely,

c) les conditions de transport, dans lesquelles est énoncée clairement la politique du transporteur aérien concernant au moins les éléments suivants : … […] (iii) compensation for denial of boarding as a result of overbooking, (iii) les indemnités pour refus d’embarquement à cause de sur réservation, … […] [ 22 ]

Section 111 of the ATR sets out the requirements by which carriers must abide when setting terms and conditions of carriage: 111.

(1) All tolls and terms and conditions of carriage, including free and reduced rate transportation, that are established by an air carrier shall be just and reasonable and shall, under substantially similar circumstances and conditions and with respect to all traffic of the same description, be applied equally to all that traffic. 111.

(1) Les taxes et les conditions de transport établies par le transporteur aérien, y compris le transport à

titre gratuit ou à taux réduit, doivent être justes et raisonnables et doivent, dans des circonstances et des conditions sensiblement analogues, être imposées uniformément pour tout le trafic du même genre.

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

(2) En ce qui concerne les taxes et les conditions de transport, il est interdit au transporteur aérien : (

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

a) d’établir une distinction injuste à l’endroit de toute personne ou de tout autre transporteur aérien;

(

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

b) d’accorder une préférence ou un avantage indu ou déraisonnable, de quelque nature que ce soit, à l’égard ou en faveur d’une personne ou d’un autre transporteur aérien; (

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.

c) de soumettre une personne, un autre transporteur aérien ou un genre de trafic à un désavantage ou à un préjudice indu ou déraisonnable de quelque nature que ce soit.

(3) The Agency may determine whether traffic is to be, is or has been carried under substantially similar circumstances and conditions and whether, in any case, there is or has been unjust discrimination or undue or unreasonable preference or advantage, or prejudice or disadvantage, within the meaning of this section, or whether in any case the air carrier has complied with the provisions of this

section or

section 110.

(3) L’Office peut décider si le trafic doit être, est ou a été acheminé dans des circonstances et à des conditions sensiblement analogues et s’il y a ou s’il y a eu une distinction injuste, une préférence ou un avantage indu ou déraisonnable, ou encore un préjudice ou un désavantage au sens du présent article, ou si le transporteur aérien s’est conformé au présent

article ou à l’

article 110 . [ 23 ]

Section 113 of the ATR allows the Agency to disallow any tariff, or any portion of a tariff, that does not comply with the requirements of

section 111 : 113. The Agency may 113. L’Office peut : (

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

a) suspendre tout ou

partie d’un tarif qui paraît ne pas être conforme aux paragraphes 110(3) à (5) ou aux articles 111 ou 112, ou refuser tout tarif qui n’est pas conforme à l’une de ces dispositions; (

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

b) établir et substituer tout ou

partie d’un autre tarif en remplacement de tout ou

partie du tarif refusé en application de l’alinéa a ). IV. Positions of the Parties [ 24 ] The appellant submits that the Agency’s final decision is unreasonable, as it neglects to impose any denied boarding compensation on British Airways flights departing from the E.U., contrary to paragraph 122( c )(iii) of the ATR .

The appellant also submits that the Agency deprived him of a meaningful opportunity to reply to British Airways’ response to the show cause Order, and thus breached its duty of procedural fairness. [ 25 ] The appellant asks this Court to allow the appeal and to set aside the final decision of the Agency. He also asks the Court to set aside the Agency’s procedural decisions, to the extent that these decisions direct the appellant to delete portions of his submissions.

The appellant seeks his disbursements in any event of the cause and, if he is successful, a moderate allowance for the time that he devoted to this appeal. [ 26 ] The respondent British Airways submits that the Agency’s final decision is reasonable, and asks this Court to dismiss the appeal, with costs. The respondent Agency has not provided any written submissions in this appeal. V. Issues [ 27 ] There are two issues in this appeal:

1. Does the substance of the Agency’s final decision contain a reversible error? 2. Did the Agency breach its duty of procedural fairness? VI. Standard of Review [ 28 ] The standard of review applicable to the first issue, the Agency’s substantive decision, is reasonableness. The issue of whether British Airways had indeed “shown cause” is a question of mixed fact and law. As such, the standard of review is presumed to be reasonableness ( Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 51 , [2008] 1 S.C.R. 190).

Furthermore, the courts have generally reviewed decisions of the Agency – an administrative body with specialized expertise – on a deferential standard ( Canadian National Railway Company v. Canadian Transportation Agency , 2013 FCA 270 at para. 3 , 454 N.R. 125, citing Council of Canadians with Disabilities v. VIA Rail Canada Inc. , 2007 SCC 15 at para. 100 , [2007] 1 S.C.R. 650). [ 29 ] Issues of procedural fairness are reviewable on the correctness standard ( Mission Institution v. Khela , 2014 SCC 24 at para. 79 , [2014] 1 S.C.R. 502).

Correctness is therefore the standard of review applicable to the second issue in this appeal. VII. Analysis A.

Reasonableness of the Decision [ 30 ] The appellant submits that the final decision of the Agency is unreasonable because it imposes on British Airways a tariff relating to denied boarding compensation that only covers passengers travelling from Canada to the E.U., and not those travelling from the E.U. to Canada. [ 31 ] The appellant submits that this outcome is unreasonable because it is contrary to paragraph 122( c )(iii) of the ATR , and creates a legal loophole, defeating the purpose for which paragraph 122 ( c )(iii) of the ATR was enacted. [ 32 ] The appellant submits that paragraph 122( c )(iii), which requires carriers to include in their tariff a policy concerning denied boarding compensation, applies to both service from Canada to destinations abroad, and to service from destinations abroad to Canada.

The appellant supports this submission by reference to the Agency’s Decision No. 227-C-A-2013 ( Lukács v. WestJet ). The appellant also refers to the more recent Agency Decision No. 148-C-A-2015 ( Ahmad v. Pakistan International Airlines Corporation ).

The Agency found in both of these cases that an airline’s tariff must include provisions that deal with denied boarding compensation both to and from Canada. [ 33 ] As the appellant correctly points out, in Decision No. 227-C-A-2013, the Agency found that a tariff rule that WestJet had proposed was unreasonable because it did not set out compensation for flights to and from Canada. The relevant paragraph which the appellant has relied upon reads as follows: [39] Although WestJet proposes to revise Existing Tariff Rule 110(

E) by deleting text that provides that denied boarding compensation will not be tendered for flights to and from Canada, Proposed Tariff Rule 110(

E) only sets out compensation due to passengers who are denied boarding for flights from the United States of America. The failure to establish conditions governing denied boarding compensation for flights to and from Canada is contrary to Decision No. 666-C-A-2001. Therefore, the Agency finds that if Proposed Tariff Rule 110(

E) were to be filed with the Agency, it would be considered unreasonable. [ 34 ] Similarly, in Decision No. 148-C-A-2015 the Agency found as follows: [29] As PIA’s Tariff does not contain terms and conditions of carriage that clearly state its policy in respect of denied boarding and compensation for denied boarding as a result of overbooking for travel to and from Canada, the Agency finds that PIA contravened paragraph 122(

c) and subparagraph 122( c )(iii) of the ATR . [ 35 ] In the case before us the Agency appears to have implicitly decided that it is not necessary for an airline to include in its tariff a provision that clearly sets out its obligations with respect to denied boarding compensation for flights departing the E.U. and coming to Canada. The Agency found that British Airways need not reference E.U. Regulation (EC) No. 261/2004 in its Tariff. It is accepted by all parties to this appeal that British Airways is bound by E.U.

Regulation (EC) No. 261/2004 for its flights departing the E.U. to other countries, including Canada. [ 36 ] The Agency supported this finding on the basis of its prior Decision No. 432-C-A-2013, in which it stated: [103] As to the reasonableness of carriers’ tariffs filed with the Agency, the Agency makes determinations on provisions relating to legislation or regulations that the Agency is able to enforce. Legislation or regulations promulgated by a foreign authority, such as the European Union’s Regulation (EC) 261/2004, do not satisfy this criterion.

If a carrier feels compelled or has been instructed by a foreign authority to include a reference in its tariff to that authority’s law, the carrier is permitted to do so, but it is not a requirement imposed by the Agency. [ 37 ] In my view, the finding in paragraph 103 merely sets forth a policy decision that the Agency will not force an airline to incorporate by reference a provision of another jurisdiction’s legislation on the basis that the Agency cannot enforce the provisions of foreign legislation.

It does not specifically address whether a tariff must include a provision that deals with denied boarding compensation quite independent of another jurisdiction’s legislation for flights to and from Canada. [ 38 ] It is instructive to note that British Airways’ existing Tariff did in fact cover denied boarding compensation for flights

“between points in Canada and points in the United Kingdom served by British Airways” (Rule 87(B)). No clear explanation was provided by the Agency as to why this was no longer required. Further, in Decision No. 432-C-A-2013 at paragraphs 71 and 72, the Agency found that the absence of language providing that passengers affected by denied boarding will be eligible for compensation is unreasonable. In the case before us there is also no language dealing with denied boarding compensation for flights from the E.U. to Canada.

It seems to me that Decision No. 432-C-A-2013 offers little support for the proposition that British Airways need not set out clearly in its tariff its obligations with respect to denied boarding compensation both to and from Canada. [ 39 ] In addition, the option chosen by British Airways pursuant to the show cause Order was “The regime proposed by Air Canada during the proceedings related to Decision No. 442-C-A-2013 (Azar v. Air Canada)” . While the regime proposed by Air Canada in Azar v.

Air Canada dealt only with flights from Canada to the E.U. pursuant to the facts of that case, it is important to note that the tariff in respect of which the proposal applied also covers flights from the E.U. to Canada. This is pursuant to Rule 90(

A) of Air Canada’s tariff regime, which adopts by reference E.U. Regulation (EC) No. 261/2004 for flights originating in the E.U. and Switzerland. [ 40 ] The Agency decision in the case before us lacks clarity with respect to whether British Airways should address denied boarding compensation for flights to Canada from the E.U. In addition, there is an apparent tension between the decision before us and the Agency’s prior decisions, which seem to suggest that an airline tariff must include denied boarding compensation provisions for both flights to and from Canada.

In my view it is necessary for the Agency to address this tension and apparent inconsistency directly. In light of this, in my view this matter should be returned to the Agency for re-determination.

The Agency must clearly address how British Airways is to “meet its tariff obligations of clarity” so that “the rights and obligations of both the carrier and passengers are stated in such a way as to exclude any reasonable doubt, ambiguity or uncertain meaning” in situations where the tariff is silent with respect to denied boarding compensation for inbound flights to Canada (Decision No. 432-C-A-2013, referencing Decision No. 344-C-A-2013 ( Lukács v. Porter Airlines Inc. )).

In particular, the Agency must clarify whether the tariff must in all instances set out denied boarding compensation provisions for flights to and from Canada, or whether the fact that British Airways passengers from the E.U. to Canada are covered by E.U. Regulation (EC) No. 261/2004 is sufficient. B. Procedural Fairness [ 41 ] The appellant submits that the Agency breached its duty of procedural fairness when it ordered him to redact the majority of his March 26, 2014 submissions.

He submits that in doing so, the Agency deprived him of his right to make meaningful submissions in response to British Airways’ proposal. Given the decision to refer this matter back to the Agency there is no need to consider the procedural fairness issue raised by the appellant. The Agency is best positioned to determine the extent of submissions it will require for the redetermination of the issue set out above. VIII.

Conclusion [ 42 ] I would allow the appeal and remit the matter to the Agency for redetermination in accordance with these reasons. [ 43 ] This Court has previously seen fit to award this appellant his disbursements, on the basis that his appeal was in the nature of public interest litigation and that the issue raised was not frivolous ( Lukács v. Canada (Transportation Agency ), 2014 FCA 76 at para 62 , 456 N.R. 186). I would award the appellant costs in the amount of $250.00 and his disbursements in this Court, such amounts to be payable by British Airways. "David G. Near" J.A. "I agree. C.

Michael Ryer J.A." DAWSON J.A. (dissenting reasons) [ 44 ] I would dismiss this appeal for the following reasons. [ 45 ] As noted by the majority, on January 30, 2013, the appellant, Gábor Lukács, filed a complaint with the Canadian Transportation Agency. The complaint alleged that certain provisions relating to liability and denied boarding compensation contained in British Airways’ International Passenger Rules and Fares Tariff No. BA-1, NTA(

A) No. 306 were unclear and/or unreasonable. Amongst other relief, the appellant requested that the Agency disallow Rule 87(B)(3)(

B) of the Tariff and direct British Airways to incorporate into the Tariff the obligations contained in Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004. [ 46 ] Regulation (EC) No. 261/2004 deals with compensation to be paid to passengers in the event they are denied boarding. It applies to every flight departing from an airport in the United Kingdom, and every flight operated by a European Union carrier with a destination in the United Kingdom.

The appellant argued that British Airways’ Tariff should reflect its legal obligation under the regulation. [ 47 ] In response, British Airways noted that while it complies with Regulation (EC) No. 261/2004, it would be inappropriate for the Agency to enforce foreign laws by requiring carriers to include provisions of a European regulation in their Canadian contracts of carriage.

[ 48 ] In his reply to British Airways’ response, the appellant:

i) accepted British Airways’ evidence that it complies with the provisions of Regulation (EC) No. 261/2004 with respect to passengers flying from the United Kingdom to Canada; ii) submitted that British Airways was currently not complying with its obligations under Regulation (EC) No. 261/2004 with respect to passengers flying from Canada to the United Kingdom; iii) submitted that the Agency ought to substitute in the relevant portion of the Tariff a provision that reflects British Airways’ current practice with respect to denied boarding compensation paid to passengers flying from the United Kingdom to Canada; and iv) submitted that the Tariff should require British Airways to pay denied boarding compensation to passengers flying from Canada to the United Kingdom in the amounts prescribed by Regulation (EC) No. 261/2004. [ 49 ] In Decision No. 10-C-A-2014, the Agency rejected the appellant’s submissions on Regulation (EC) No. 261/2004, stating at paragraph 113 of the decision that it would “not require British Airways to incorporate the provisions of Regulation (EC) No. 261/2004 into British Airways’ Tariff, or make reference to that Regulation” .

In reaching this conclusion, the Agency quoted as follows from its earlier Decision No. 432-C-A-2013: As to the reasonableness of carriers’ tariffs filed with the Agency, the Agency makes determination on provisions relating to legislation or regulations that the Agency is able to enforce. Legislation or regulations promulgated by a foreign authority, such as the European Union’s Regulation (EC) 261/2004, do not satisfy this criterion.

If a carrier feels compelled or had been instructed by a foreign authority to include a reference in its tariff to that authority’s law, the carrier is permitted to do so, but it is not a requirement imposed by the Agency. [ 50 ] The order which accompanied the decision required British Airways “to amend its Tariff and conform to this Order and the Agency’s findings set out in [the] Decision” . [ 51 ] The order went on to provide, at paragraph 144, that: […] the Agency provides British Airways with the opportunity to show cause, by no later than February 17, 2014, why the Agency should not require British Airways, with respect to the denied boarding compensation tendered to passengers under Rule 87(B)(3)(B), apply either: 1.

The regime applicable in the United States of America; 2. The regime proposed by Mr. Lukács in the proceedings related to Decision No. 342-C-A-2013; 3. The regime proposed by Air Canada during the proceedings related to Decision No. 442-C-A-2013; or 4.

Any other regime that British Airways may wish to propose that the Agency may consider to be reasonable within the meaning of subsection 111(1) of the ATR . [ 52 ] Decision No. 442-C-A-2013, referred to in the third option offered to British Airways, dealt with the reasonableness of Air Canada’s tariff as it related to denied boarding compensation for travel from Canada to the European Union. The Agency found Air Canada’s existing denied boarding compensation in connection with flights from Canada to the European Union to be unreasonable.

In the result, the Agency ordered Air Canada to amend its tariff by filing its proposed denied boarding compensation amounts for travel from Canada to the European Union. [ 53 ] As argued by British Airways, the appellant did not seek leave to appeal Decision No. 10-C-A-2014 (British Airways’ memorandum of fact and law at paragraph 18). [ 54 ] In response to this decision, British Airways proposed to apply the compensation regime proposed by Air Canada as set out in Agency Decision No. 442-C-A-2013.

The text of British Airways’ proposed tariff was clear that it applied only to compensation payable for flights from Canada to the United Kingdom. The proposed tariff was silent with respect to compensation payable for flights from the United Kingdom to Canada. [ 55 ] The appellant replied to the proposal advanced by British Airways, challenging the reasonableness of the proposal on the ground that it failed to establish conditions governing denied boarding compensation for flights from the United Kingdom to Canada.

The appellant submitted that British Airways’ proposal purported, albeit implicitly, to exempt it from the obligation to pay denied boarding compensation for flights from the United Kingdom to Canada. [ 56 ] Subsequently, in Decision No. LET-C-A-25-2014, the Agency found that parts of the appellant’s reply submissions were unrelated to the specific matter of the denied boarding compensation regime proposed by Air Canada in the proceeding that led to Decision No. 442-C-A-2013.

In result, the Agency directed the appellant to refile his reply submissions, deleting all submissions that were unrelated to the denied boarding compensation regime proposed previously by air Canada in the proceeding that led to Decision No. 442-C-A-2013. [ 57 ] Later, the Agency dismissed a request that it reconsider this decision (Decision No. LET-C-A-29-2014). [ 58 ] From this chronology it is apparent that in Decision No. 10-C-A-2014, the Agency made a final decision that it would not require British Airways to incorporate the provisions of Regulation (EC) No. 261/2004 into its tariff.

By allowing British Airways the option to propose the same compensation regime previously proposed by Air Canada, the Agency also made a final decision that British Airways could, as it did, propose a tariff that dealt only with denied boarding compensation amounts for travel from Canada to the

United Kingdom. [ 59 ] Any challenge to these decisions ought to have been brought as an application for leave to appeal Decision No. 10-C-A-2014. The appellant cannot challenge these decisions under the guise of a challenge to Decision No. 201-C-A-2014. [ 60 ] It further follows that the Agency did not breach procedural fairness by ordering that the appellant delete submissions in his final reply that were not relevant to the proposed tariff regime advanced by Air Canada that led to Decision No. 442-C-A-2013.

The impugned submissions were not relevant to the remaining issue before the Agency, and it was not unfair for the Agency to ignore them and order that they be removed from the record. [ 61 ] For these reasons, I would dismiss the appeal with costs. "Eleanor R. Dawson" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD AN APPEAL FROM A DECISION OF THE CANADIAN TRANSPORTATION AGENCY DATED MAY 26, 2014, DECISION NO. 201-C-A-2014. DOCKET: A-366-14 STYLE OF CAUSE: DR. GÁBOR LUKÁCS v.

CANADIAN TRANSPORTATION AGENCY AND BRITISH AIRWAYS PLC PLACE OF HEARING: Halifax, Nova Scotia DATE OF HEARING: September 15, 2015 REASONS FOR JUDGMENT BY: NEAR J.A. CONCURRED IN BY: RYER J.A. DISSENTING REASONS BY: DAWSON J.A. DATED: NOVEMBER 27, 2015 APPEARANCES : Dr. Gábor Lukács For The Appellant (on his own behalf) Allan Matte FOR THE RESPONDENT CANADIAN TRANSPORTATION AGENCY Carol E. McCall FOR THE RESPONDENT BRITISH AIRWAYS PLC SOLICITORS OF RECORD : William F. Pentney Deputy Attorney General of Canada FOR THE RESPONDENT CANADIAN TRANSPORTATION AGENCY

Paterson, MacDougall LLP Toronto, Ontario FOR THE RESPONDENT BRITISH AIRWAYS PLC