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Administrative - Standing

. Democracy Watch v. Ontario Integrity Commissioner

In Democracy Watch v. Ontario Integrity Commissioner (Div Ct, 2020) the Divisional Court considered a judicial review application by a public interest organization of refusals of the Integrity Commissioner and the Conflict of Interest Commissioner to comply with the organization's requests to make formal determinations regarding the conduct of some executive government officials. The court considered the case from the two issues of standing and justiciability. On standing, the court held that the PSOA (Public Service of Ontario Act, 2006) had no public complaints provision, though it did have several other inquiry-triggering mechanism, none of which applied in this case [paras 33-42].

. Delta Air Lines Inc. v. Lukács

In Delta Air Lines Inc. v. Lukács (SCC, 2018) the Supreme Court of Canada held that the issue of public interest standing in the administrative context was not the same as the civil context [where the leading case is Downtown Eastside (SCC, 2012)] but turns on it's parent statute regarding standing:
B. The Legislative Scheme and the Agency’s Discretion

[9] The Agency is charged with implementing the Canada Transportation Act, S.C. 1996, c. 10 (“Act”), and the Regulations. This legislative scheme requires the Agency to balance a range of interests in order to ensure a competitive, safe, and accessible transportation network for all Canadians (s. 5).

[10] To meet these objectives, s. 37 of the Act bestows broad discretion on the Agency to hear and determine complaints:
37 The Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.
[11] With respect to international carriers, including Delta, the Regulations prohibit any terms or conditions of carriage which are unjustly discriminatory (s. 111(2)) and empower the Agency to take action against any such term or condition (s. 113.1). The parties agree that s. 37 of the Act grants the Agency broad discretion to hear complaints regarding international carriers, including Dr. Lukács’ complaint against Delta in this case.

....

[13] The question in this case is whether the Agency reasonably exercised its discretion to dismiss Dr. Lukács’ complaint. On a respectful reading of the Agency’s reasons, I conclude that it did not. The decision does not satisfy the requirements of justification, transparency, and intelligibility for two reasons. First, the Agency presumed public interest standing is available and then applied a test that can never be met. This approach to standing unreasonably fettered the Agency’s discretion. Second, the total denial of public interest standing is inconsistent with a reasonable interpretation of the Agency’s legislative scheme. I will address each of these points in turn.

[14] In this case, the Agency had discretion under s. 37 of the Act to determine whether to hear Dr. Lukács’ complaint. The Agency did not advert to this discretion, however, and appeared to approach the standing question as if bound by the tests for standing as applied in civil courts. As such, it found that it would hear the complaint only if Dr. Lukács could satisfy the test for either private interest standing or public interest standing.



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