Dr. Lukács goes to Ottawa (op-ed)

Thursday, 5 October, 2017


Yesterday, Dr. Gábor Lukács, Air Passenger Rights Advocate, went to Supreme Court of Canada in Ottawa to present his arguments in the case Delta Air Lines Inc. v. Gábor Lukács (SCC case summary & factums). Dr. Lukács is a respondent for this case because he won in the Federal Court of Appeal (CBC news) in September 2016. And then Delta won the right to appeal that FCA ruling to the Supreme Court of Canada in February 2017. (note: you can watch the hearing webcast video archive (~3 hours) to get a closer look.)

As Dr. Lukács put it in the 2016 CBC news interview,

“The underlying issue is, can you stand up for your neighbour? For the weak? For those who may already be disadvantaged in some way in society?

I first interviewed Dr. Lukács in August 2013 for the video report and article “Halifax mathematician gets bumped Air Canada passengers $200, $400, or $800 compensation“. During this 4+ years, I’m still amazed that a regular Canadian non-lawyer (math professor/researcher by training) has volunteered so much of his free time in helping others. And sometimes even risking being sued (and actually being) by airlines which have teams of lawyers and money.

To me, it was great to be able to video interview Dr. Lukács right inside the Supreme Court gown room where lawyers prepare their formal court attires. At the end of the hearing yesterday, it was nice to see lawyers from both sides and Dr. Lukács shook hands. I believe parties from both sides can violently disagree with each others’ ideas and submissions but it is nice to be civil after arguments are heard.

Over four years later, I still find the following 2013 answers given by Dr. Lukács very illuminating and insightful of why he spend so much of his free time in helping the Canadian flying public,

“Upon hearing the interviewer suggesting this delay compensation [$200, $400, $800 from Air Canada] should be named after Lukács, similar to mathematical theorems were named after Euclid or Gauss, Lukács paused to think for a moment and then thoughtfully insisted that,

“… it doesn’t matter where it was me or somebody else who got those [air passenger] rights. What is important [is] that those rights are put in place. And that people will now have better treatment. It doesn’t matter it was me, or my neighbour, or my friend or you, or that person in another city who made those changes. For me, it’s a question of I’ve learned enough about airlines to know that something are just wrong and against the law. And when I happened to see that, like in the case of what happened in Ottawa airport, I cannot just walk by and do nothing. I feel a responsibility.

Knowledge gives some responsibility. When you know that something is wrong, and you have quite a good idea of how to fix it, that does impose on you some level of moral responsibility, social responsibility. And so the issue of air passenger rights needs a face in Canada. I don’t see myself as a full-time passenger rights advocate, I am a mathematician after all. But certainly, I know that I am able to bring, through the agency, to the Canadian public some prospectives & arguments that benefit everybody. So I do it.””

Concluding thoughts

For years, I’ve gained inspirations from this one particular quote I LOVE“Never doubt that a small group of thoughtful, committed people can change the world. Indeed, it is the only thing that ever has.” by Margaret Mead.

Seeing what Dr. Lukács has been trying to achieve by himself, it seems to me we sometimes doesn’t even need “a small group … people“. At times, all we need is one person to try to make a difference for the better in our increasingly perilous world. Do what each of us can, in the best way we know how. Success is never guaranteed but we and no one else can blame ourselves after we try the hardest we can.

P.S. Have a watch again of the action inside the Supreme Court yesterday.

Justice Russell Brown asks Dr. Gábor Lukács Questions during Supreme Court case with Delta

P.P.S. I’ve always found the political comedy-drama “Mr. Smith Goes to Washington“, a film is about a newly appointed United States Senator who fights against a corrupt political system, insightful and illuminating. As I get older, I find I’m not naive enough to ignore the bad but I’m more willing & eager to look for the good each and everyone of us can do in our own area of interest and competence.

There is no reason you or I can’t be our own “Mr. Smith”, “Dr. Lukács”, … and going to our own “Washington”, “Ottawa”, … which to me stands for ideals we strive to achieve.

Mr. Smith Goes to Washington Speech

P.P.P.S. Speaking about theorems being named after mathematicians, I still hope Dr. Lukács’ Air Passenger Rights work won’t slow down his mathematics research as I hope to see a math theorem bearing his name one of these days.

Delta Air Lines Inc. v. Gábor Lukács – Supreme Court of Canada hearing webcast video archive

Thursday, 5 October, 2017

Supreme Court of Canada has made the hearing webcast video archive (all ~3 hours) of Delta Air Lines Inc. v. Gábor Lukács (summary, parties, factums) – available to watch online.

Also have a watch (with video) of my previous reports
* “Air Passenger Rights Advocate interview post “Delta Air Lines Inc. v. Gábor Lukács” Supreme Court case oral arguments
* “Air Passenger Rights Advocate interview in advance of Supreme Court case with Delta Air Lines

Air Passenger Rights Advocate interview post “Delta Air Lines Inc. v. Gábor Lukács” Supreme Court case oral arguments

Wednesday, 4 October, 2017

Air Passenger Rights Advocate interview at Supreme Court post Dr. Gábor Lukács' oral arguments - thumbnail

Dr. Gábor Lukács, Air Passenger Rights Advocate, presented his oral arguments at the Supreme Court of Canada for the first time. Have a watch of a video clip of Justice Russell Brown asking Dr. Gábor Lukács questions during the Supreme Court hearing.

Justice Russell Brown asks Dr. Gábor Lukács Qs during Supreme Court case with Delta

The following is an interview with Dr. Lukacs soon after the hearing finished while he was still at the Supreme Court of Canada when everything were still fresh in his mind. Some linked timecodes and rough notes are included but all notes are rough, and the video is the real authority of what were said.

Air Passenger Rights Advocate interview at Supreme Court post Dr. Gábor Lukács’ oral arguments

0:00 Reporter Kempton Lam (KL) thanks Dr. Gabor Lukacs (GL) for doing the interview. GL talks about where he is located.
0:30 [KL:] How do you feel right now after appearing in front of the 9 Supreme Court Justices?
1:03 [GL:] Particularly impressed by Justice Malcolm Rowe.
1:58 [GL:] Also impressed by how respectful the hearing was. And how interested the judges were in the case.
2:14 [GL:] On a personal level …
2:50 [KL:] The Judges’ probing questions and pointed comments/observations fascinated me, can you talk about your experiences? How do you feel about the case itself after the hearing?
4:27 [GL:] I think the star of the day is the Amicus Curiae Mr. Benjamin Zarnett.
4:37 [GL:] Also very impressed by Byron Williams, Counsel for Council of Canadians with Disabilities able to achieve in 5 minutes.
5:04 [KL:] I try to clarify if I had the right Amicus Curiae Mr. Benjamin Zarnett in mind. (note: I did)
6:15 [KL:] My impression of Amicus Curiae’s arguments and I ask GL to share his take.
6:53 [KL:] How do you feel about your own presentation? What is your main take away? Read the rest of this entry »

Air Passenger Rights Advocate interview in advance of Supreme Court case with Delta Air Lines

Tuesday, 3 October, 2017

Interview Dr. Gabor Lukacs re Delta Air Lines Supreme Court case

Here is my 2017/Oct/02 Audio interview with Dr. Gabor Lukacs, Air Passenger Rights Advocate, talking about his Supreme Court of Canada case with Delta Air Lines. Here are some rough notes and timecodes (link points) in the interview.

0:00 Independent reporter Kempton [K] asked Dr. Gabor Lukacs [G], Air Passenger Rights Advocate, how is he feeling two days before he appears in front of Supreme Court of Canada Judges?
0:49 [K:] Any special preparation one day before your first Supreme Court appearance? (Yes, G is scheduled to teach a match class Tuesday morning!)
1:20 [G:] Teaching twice a week this term helps my public speaking skills.
2:13 [K:] Not a good idea to lecture the justices? G explains how is it like appearing in front of Supreme Court justices.
4:25 [K:] Briefly explain what this case with Delta is about? And your role?
5:25 G gives a great analogy using a speeding car driving 160km/h down the highway. Who can complain about it?
6:35 G explains Federal Court of Appeal sided with his reasoning and ruled against the CTA (Canadian Transportation Agency) and said it was unreasonable to dismiss the complain.
7:15 G talks about the various PDF files (see reference) filed by him, Delta and other parties. [K’s apologies here re misunderstanding of the pages of documents filed.]
8:22 G explains to K an Amicus Curiae (an impartial adviser) is hired by the Supreme Court and paid for by Attorney General of Canada. And four interveners: ATTORNEY GENERAL (ONTARIO), CANADIAN TRANSPORT AGENCY, INTERNATIONAL AIR TRANSPORT ASSOCIATION, COUNCIL OF CANADIANS WITH DISABILITIES.
9:32 [K:] So the COUNCIL OF CANADIANS WITH DISABILITIES agrees with you and Delta against you. Are there some against you and with you?
11:17 [K:] So roughly how much time have you put into preparing for the case?
13:02 [K:] Have you been to the Supreme Court as a tourist before? How will you feel when you step into the court for the first time arguing a case? Read the rest of this entry »

Viagra free-for-all: Viagra patent deemed impotent by Supreme Court of Canada

Thursday, 8 November, 2012

In a ground breaking 7-0 unanimous decision “Teva Canada Ltd. v. Pfizer Canada Inc., 2012 SCC 60″ today, Supreme Court of Canada has declared Pfizer’s Viagra patent void in Canada with serious sales/financial implications. Quoting Justice LeBel (emphasis added),

Patent 2,163,446 is void.

The patent application did not satisfy the disclosure requirements set out in the Patent Act, R.S.C. 1985, c. P‑4 (“Act”).  The patent system is based on a “bargain”: the inventor is granted exclusive rights in a new and useful invention for a limited period in exchange for disclosure of the invention so that society can benefit from this knowledge.  Sufficiency of disclosure lies at the very heart of the patent system, so adequate disclosure in the specification is a precondition for the granting of a patent.

According to Globe & Mail, “Pfizer Canada made about $80-million last year from sales of Viagra.” Company doesn’t have to apply for patents and disclose the secrets of their inventions. Like Coke just keeps its formula as a trade secret. But if a company wants to get patents, the disclosure requirements are no joking matter and can mean billions as in this case.

Lets be clear on one thing, the declaration of Pfizer’s Viagra patent void doesn’t mean you get Viagra free as some men wish to! It does mean the patent protection afforded Pfizer exclusive right is now gone, and Canadian users of Viagra can expect cheaper generic version of Viagra type drugs to be available soon. In fact, according to CBC News,

The unanimous decision opens the door for Teva to introduce a generic version of Viagra. By the afternoon on Thursday, Teva had already moved to do just that, posting a message on its website, announcing the creation of Novo-Sildenafil and noting the product is available via prescription.

P.S. I am not a lawyer in Canada or U.S. so you should check with expert first. My understanding is that under the U.S. patent and trademark system, the “disclosure requirement” is better know as “2165 The Best Mode Requirement (linked to USPTO)” which I relied heavily in a 2006 patent review I did on an entrepreneur’s patent application within an episode of CBC award-winning hit TV show Dragons’ Den!

NOTE: This article is cross-posted by me at examiner.com

Fact checking & Correcting the USA Today “Supreme Court likely to vote on health care law Friday” article

Friday, 30 March, 2012

Fact checking & Correcting the USA Today “Supreme Court likely to vote on health care law Friday” article
I am not a lawyer and don’t even play one in my dreams but I think the USA Today article (see below for article link) has given an incorrectly impression that US Supreme Court justices’ votes today is final when it is not.

Quoting Wikipedia,

At this conference, each justice – in order from most to least senior – states the basis on which he or she would decide the case, and a preliminary vote is taken.

and the explanation under the title

Circulating draft opinions and changing of views

I honestly expected more informed and precise reporting from widely read publication like the USA Today. Well, I overestimated USA Today. By the way, as a legal geek for some years now (again, I am not a lawyer). I want to point out an interesting difference in the decision making processor between Supreme Court of Canada and Supreme Court of US

In Canada,

They sit at a round table in the room and each judge gives their opinion of the case, starting with the least senior judge [ending with the Chief Justice.

In US,

At this conference, each justice – in order from most to least senior – states the basis on which he or she would decide the case, and a preliminary vote is taken.

My personal take is the Canadian approach is superior in eliciting wider range of freely given opinions where even the most junior justice is given a full opportunity to express his/her view without constrained by more senior justices’ expressed opinions, let alone opinions from the Chief Justice. Of course, some would argue that as supreme court justices of any country of any seniority, the justices can say whatever he/she wants. But I, unscientifically, suspect human nature will limit and restrict opinion expressed in the US model.

What do you think?


See section 10 (last page). “Court Conference” retired Justice Binnie’s discussion of “sundown rule

“In the months following the hearing there is a lot of writing and rewriting and there is debate amongst the judges who sat on the case about how propositions should be formulated and what should be put in and what should be left out, and there is supplementary research done on points of difficulty, and the air is filled with memoranda to and fro the judges. Opinions are modified. Minds are changed. If the court is closely divided on a particular appeal, the outcome could shift.

P.S. I want to emphasize that my point is the Supreme Court justices can change their opinions. I am not saying whether they will or will not in this case.

2 Supreme Court of Canada justices to retire

Friday, 13 May, 2011

From CBC, “2 Supreme Court of Canada justices to retire“,

“Two Supreme Court of Canada judges have announced they will step down at the end of August.

Justice Ian Binnie, 72, and Justice Louise Charron, 60, have written to Federal Justice Minister Robert Nicholson, to inform him of their plans, both effective Aug. 30, Chief Justice Beverley McLachlin said Friday in a release. Binnie has indicated a willingness to stay longer if needed during the judge-selection process”

Awarding damages for Charter breach – The 4 steps

Friday, 23 July, 2010

Today, in an unanimous ruling “Vancouver (City) v. Ward, 2010 SCC 27“, the Supreme Court of Canada laid down the steps to decide the award of damages for Charter breach, (emphasis and link added)

“I conclude that damages may be awarded for Charter breach under s. 24(1) where appropriate and just.

The first step in the inquiry is to establish that a Charter right has been breached.

The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches.

At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust.

The final step is to assess the quantum of the damages.”

CBC News “Top court upholds damages for charter breaches” (with video).

“Responsible communication” as a libel defence for reporters and bloggers: Supreme Court of Canada

Tuesday, 22 December, 2009

Toronto Star,

In a landmark ruling on freedom of expression, the Supreme Court of Canada has created a new legal defence to libel lawsuits that would shield journalists who fairly and responsibly report stories of public interest.

The new defence, dubbed “responsible communication” by the country’s top court, gives greater protection to broadcasters, writers and bloggers who do a form of reporting due diligence.

It is a huge legal victory for the Toronto Star, which along with a broad coalition of Canadian media outlets, and the Canadian Civil Liberties Association, had called for just such a defence.

The decision breaks new ground for Canadian common law, bringing it in line with decisions in Australia, New Zealand, South Africa and the United Kingdom.

CBC News (video deleted? internet archive version),

Two Ontario newspapers will get new libel trials, the Supreme Court of Canada has ruled, opening the door for journalists to defend themselves against libel using the defence of “responsible journalism.”

The Ottawa Citizen and the Toronto Star launched appeals under rules for the possible new defence that were outlined by the Ontario Court of Appeal two years ago.

Read the full SCoC “Grant v. Torstar Corp.” decision. I’ve excerpted three paragraphs 96, 97, 113 that are very relevant to blogging and bloggers (emphasis added). [HT Michael] (Prof. Michael Geist is Chair of Internet & E-com. Law at Faculty of Law at U of Ottawa)

[96] A second preliminary question is what the new defence should be called. In arguments before us, the defence was referred to as the responsible journalism test. This has the value of capturing the essence of the defence in succinct style. However, the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree with Lord Hoffmann that the new defence is “available to anyone who publishes material of public interest in any medium”: Jameel, at para. 54.

[97] A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.

[113] As Lord Nicholls observed in Reynolds, news is often a perishable commodity. The legal requirement to verify accuracy should not unduly hamstring the timely reporting of important news. But nor should a journalist’s (or blogger’s) desire to get a “scoop” provide an excuse for irresponsible reporting of defamatory allegations. The question is whether the public’s need to know required the defendant to publish when it did. As with the other factors, this is considered in light of what the defendant knew or ought to have known at the time of publication. If a reasonable delay could have assisted the defendant in finding out the truth and correcting any defamatory falsity without compromising the story’s timeliness, this factor will weigh in the plaintiff’s favour.

2009 Grant v TorStar

2009 Grant v TorStar

See also “Quan v. Cusson, 2009“.

2016 July 24 update: This post “The Supreme Court of Canada’s Support of Journalism” by Julian Porter, Q.C. is insightful and worth a read.

Dec 6th, 2016: I sometimes confused “Responsible Communication” (as defined by the Supreme Court) and “Responsible Reporting” (which has not been defined). So I am putting both terms here to make Google search easier in the future.

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