Butterfield v. Canada (Attorney General), 2006 FC 894

Date: 20060718

Docket: T-2056-04

T-2057-04

T-5-05

Citation: 2006 FC 894

BETWEEN:

AIDAN BUTTERFIELD

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER

HENEGHAN, J.

I. Introduction

[1]                Mr. Aidan Butterfield (the "Applicant") has commenced three applications for judicial review in respect of the suspension of his pilot's licence. By Order dated May 5, 2005, filed in cause number T-5-05, the Attorney General of Canada was named as the Respondent, in lieu of the Minister of Transport (the "Minister") and the Transportation Appeal Tribunal of Canada ("TATC")"

[2]                In cause number T-2056-04, the Applicant seeks judicial review of the decision made by the Minister on October 29, 2004 in which he was advised that he could not determine when he would serve the suspension of his licence. That decision was communicated to the Applicant on November 4, 2004. The Applicant says that he served the suspension in October 2004 and that the Minister wants him to serve it again. He seeks an order quashing the decision that he must re-serve the suspension and requiring the Minister to acknowledge that he has already served the suspension.

[3]                In cause number T-2057-04, the Applicant seeks judicial review of a decision made on October 14, 2004, by the TATC, scheduling a hearing of the Applicant's appeal to the TATC from the February 3, 2004 decision of Mr. Keith E. Green, sitting as a Review Panel upon the Applicant's initial appeal of the suspension of his licence.

[4]                In its decision of October 14, 2004, the TATC scheduled the hearing of the Applicant's appeal for November 5, 2004. The Applicant seeks an order quashing this decision and requiring the TATC to schedule the hearing for a date after March 15, 2005.

[5]                In cause number T-5-05, the Applicant seeks judicial review of the decision of the TATC dated December 8, 2004, in which the TATC dismissed his appeal of the Review Determination. The Applicant seeks an order quashing the decision of the TATC and requiring it to hold a new hearing.

[6]                The Applicant filed two affidavits, sworn February 6, 2005. These affidavits referred to and included a large number of exhibits. Pursuant to the Order of Prothonotary Hargrave, dated March 21, 2005, the Applicant was given leave to depose to affidavits and to present argument to the Court but where there is conflicting evidence, the Applicant's affidavits will be weighed accordingly.

[7]                The Respondent filed three affidavits, that is the affidavits of Mr. Greg Ostafiew, Ms. Beverlie Caminsky and Ms. Marie Zubryekyj. Mr. Ostafiew is the Superintendent of Enforcement Programs, Civil Aviation Enforcement for Transport Canada. Ms. Caminsky is the Chief of the Advisory and Appeals Division of Regulatory Services, Civil Aviation, Safety and Security, Transport Canada. Ms. Zubryekyj is the Regional Manager, Aviation Enforcement, Pacific Region.

II. Background

[8]                The Applicant holds a private pilot's licence that was issued on April 3, 1975, as number VRP-16093. During a random ramp check on June 8, 2003 conducted at Campbell River by Greg Ostafiew, the Applicant was advised about certain irregularities.

[9]                First, he was informed that the system for numbering pilot's licences had changed several years ago and his licence did not comply with present requirements. The Applicant's current licence number is 1J3915. He was advised to obtain an updated copy of his licence.

[10]            Next, during the inspection, the Applicant was advised that his aircraft maintenance was not up to date. Third, he did not have proof of insurance and he was given a warning for that infraction. The inspector allowed the Applicant approximately three weeks, until June 30, 2003, to provide proof of current insurance by facsimile. On July 8, 2003, the Applicant submitted a copy of an insurance policy but this policy had been put in place after the date of the inspection and warning. The Applicant failed to provide proof that he was insured as of June 8, 2003.

[11]            On September 2, 2003, the Minister issued a Notice of Suspension to the Applicant. His pilot's licence was suspended for seventeen days relative to the overdue annual inspection and his failure to carry liability insurance. The suspension was to be in effect from October 3 to October 19, 2003. The Applicant was required to surrender his licence to Transport Canada during this time.

[12]            Upon delivery of the Notice of Suspension, the Applicant was advised of his right to request a review of the suspension by the TATC. The document also indicated that a request for a review of the suspension did not result in an automatic stay of that sanction and that if a stay were desired, an independent request for same should be made to the TATC, in writing.

[13]            On September 10, 2003, in the same letter which requested a review of the suspension, the Applicant submitted a request for a stay. On September 18, 2003, the stay was granted by the TATC. It was deemed to remain in effect until completion of the review of the suspension.

[14]            A review Panel of the TATC heard the Applicant's review of his suspension on December 9, 2003. Evidence was heard from Greg Ostafiew and from the Applicant. The heart of the Applicant's submissions to the Review Panel was that he could not be punished twice for the same infractions. This argument was based upon his view that the warnings that were given to him on June 8, 2003 constituted the punishment and that the formal suspension should not have been imposed.

[15]            The Review Panel delivered its decision, called a "Review Determination", on February 3, 2004. The Review Panel upheld the suspension and said that the effective date of the suspension was deemed to begin on the thirty-fifth day after service of the Review Determination. In its decision, the Review Panel set out the charges against the Applicant, as found in the Notice of Suspension as follows:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above-indicated Canadian Aviation document on the grounds that you have contravened the following provision(s):

[...]

Count 1:

Canadian Aviation Regulation subsection 605.86(1)(a), in that you conducted a take-off in an aircraft when the aircraft was not maintained in accordance with a maintenance schedule that conforms to the Aircraft Equipment and Maintenance Standards, to wit: aircraft C-GIPO was operated on a flight from Boundary Bay, B.C. to Campbell River, B.C., on or about June 8, 2003, when the twelve month annual inspection requirement was overdue.

Penalty: 14 day suspension

Count 2:

Canadian Aviation Regulations subsection 606.02(8), in that you operated aircraft C-GIPO, on or about June 8, 2003, at or near Campbell River, B.C. when you, as owner, did not subscribe for liability insurance covering risks of public liability.

Penalty: 3 day suspension

[16]            The Review Panel quoted subsections 605.86(1) and 606.02(8) of the Canadian Aviation Regulations, S.O.R.196-433, as follows:

[17]            The Review Panel referred to the evidence and concluded that the Minister had established commission of the offences. The Review Panel rejected the Applicant's arguments that the principle of double jeopardy was invoked, that the Minister was improperly sanctioning him with a second charge relating to proof of insurance when he had already received a warning in that regard. The Review Panel found that the second charge was independent of the first charge. The second charge related to the Applicant's failure to provide proof or confirmation of insurance coverage in accordance with subsection 606.02(8) of the Regulations. The Review Panel said the following concerning the warning:

The Minister appears to have been lenient and quite specific with Mr. Butterfield, providing only a warning instead of a charge under subsection 606.02(9), until verification of a policy could be provided. Count 2 clearly originates from an absence of an original insurance policy and not a lapse of an insurance coverage, resulting from an invalidated Certificate of Airworthiness.

The Review Panel specifically found that double jeopardy did not apply and it upheld the Notice of Suspension issued by the Minister in respect of both counts.

[18]            According to correspondence in the Tribunal Record, some difficulty was encountered in providing the Applicant with a copy of the reasons of the Review Panel. There was evidence that a registered letter failed to reach him. In his affidavit sworn on February 6, 2005, the Applicant refers to several conversations that he had with an employee at the TATC in an attempt to arrange delivery of the decision. In an affidavit sworn on December 16, 2004, the Applicant says that he submitted a request for an appeal from the decision of the Review Panel on March 3, 2004, in order to preserve his appeal rights. The TATC refused to accept this request since the decision had not then been delivered to the Applicant.

[19]            Eventually, the Applicant received the decision on March 21, 2004. He filed his request for an appeal on April 16, 2004. The right of appeal flows from section 7.2 of the Aeronautics Act, R.S.C. 1985, c. A-2. The conduct of the appeal is governed by the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 (the "TATC Act") and the Transportation Appeal Tribunal of Canada Rules, SOR/86-594, amendment SOR/93-346 (the "Rules").

[20]            The hearing of the appeal was initially scheduled for July 23, 2004. On June 1, 2004, the Applicant wrote to the TATC, advising that this date was inconvenient for him and asking that the hearing be rescheduled for a date after March 15, 2005. The basis for this request was the Applicant's participation in an intensive professional development course and he would be writing an exam on July 23, 2004. The Applicant did not disclose the nature of that program but it is now clear that he was serving articles as a law clerk and enrolled in the bar admission course administered by the Law Society of British Columbia, that is the "Professional Legal Training Course", otherwise know as the "PLTC".

[21]            The TATC rescheduled the hearing for September 8, 2004. By letter dated June 14, 2004, the Applicant expressed his dissatisfaction with the appeal process and related delays which he attributed to the Minister. He took the position that since he had tolerated the Minister's delays without complaint, the TATC should accommodate his request to have a hearing after March 15, 2005. The Minister, in a letter dated June 15, 2004, opposed any further postponement of the hearing.

[22]            In a written decision dated June 25, 2004, the TATC refused the Applicant's request that the appeal hearing be postponed to a date after March 15, 2005. In its decision, the TATC said the following:

A Request for Appeal was filed with the Tribunal on April 16, 2004 within the 30-day appeal period and an appeal hearing was scheduled for July 23, 2004. A first request for postponement was received from the Appellant on June 1, 2004 requesting that the appeal hearing be deferred to March 2005. A postponement was granted but the Tribunal was unable to extend this postponement to March 2005 as the Tribunal's mandate is to conduct hearings expeditiously, as stipulated in section 15 of the Transportation Appeal Tribunal of Canada Act. The Appeal Hearing was rescheduled to September 8, 2004.

The Appellant has submitted a further request for postponement and the Tribunal has received objections from the Minister of Transport to the granting of this postponement.

The Tribunal is unable to accommodate such a request. The Appellant has requested an appeal but has chosen to occupy himself so as not to be available for a hearing. A Stay of Suspension was issued on September 18, 2003 and is stayed until the review of the decision of the Minister has been concluded. It is the Tribunal's responsibility to ensure that the scheduling process is done in a timely manner.

Therefore, the request for postponement is denied and the appeal hearing will proceed as scheduled on September 8, 2004 in Vancouver, British Columbia.

[23]            On August 10, 2004, the Applicant wrote to the TATC, disputing that he had requested a second postponement. He characterized his letters of June 1 and June 14, 2004 as constituting a single request. He proceeded to describe perceived deficiencies with the processes of the TATC and its alleged failures to comply with its own protocols. He stated that he had a prior court appearance scheduled for September 8, 2004 and that he would not attend a hearing on that day. By letter dated August 20, 2004, the TATC responded and declined to reschedule the hearing.

[24]            There were further difficulties with delivery of correspondence and the TATC was unable to serve the Applicant with formal notice of the hearing scheduled for September 8, 2004. As a result of lack of service, the hearing was postponed on September 2, 2004.

[25]            Several more letters were exchanged between the Applicant and the TATC concerning the scheduling of the hearing. The Applicant repeated his requests to have the hearing set down for a date after March 15, 2005 and sought explanations from the TATC concerning its refusals to grant his request.

[26]            On September 28, 2004, a notice of hearing was issued, advising the Applicant that the appeal hearing had been set for November 5, 2004. Attempts to serve this notice by bailiff were unsuccessful.

[27]            In a letter dated October 7, 2004, the Applicant advised the TATC that he would be serving his suspension from October 3 to October 19, 2004. Although the Notice of Suspension directed him to surrender his pilot's licence to a Transport Canada office during the suspension period, the Applicant stated that he was unable to do so. In the same letter the Applicant advised that he did not intend to abandon his appeal of the suspension, even though he was then serving same. He repeated his request that the appeal hearing be set for a date after March 15, 2005. Asecond notice of hearing, issued on October 14, 2004, was delivered by priority post, regular mail and facsimile. The Applicant advised by letter to the TATC dated October 23, 2004 that he would be unable to attend on that date.

[28]            By letter dated October 29, 2004, Transport Canada's Advisory & Appeals Officer responded to the Applicant's letter of October 7, advising that it was unacceptable for him to determine the dates of serving his suspension. The suspension dates must be arranged with the Aviation Enforcement division in advance and his licence must be surrendered for the duration of the suspension. The letter provided, in part, as follows:

We also received your letter dated October 23, 2004 on October 25, 2004.

Please be advised that your request to serve your suspension from October 3 until October19, 2004 is not acceptable, nor is your offer to extend the suspension time to October 29, 2004. Ms. Zubryckyj has the authority to negotiate a settlement with you on this matter but the timing of service of that suspension must be decided in advance with her and you must hand over your Canadian aviation document to an agreed upon person (a Transport Canada employee or other appropriate person) in advance of your serving the suspension. It is advised to contact Ms. Zubryckyj directly to determine an appropriate course of action.

Please also note that I will be representing the Minister of Transport before the Transportation Appeal Tribunal of Canada at the hearing scheduled for November 5, 2004.

[29]            By letter dated November 3, 2004, the Applicant responded and expressed the view that since his previous letter had not been "opposed" his suspension had been properly served. He said that he could not be required to serve the suspension again and requested that several of his letters be read into the record of the November 5, 2004 hearing, since he would not be in attendance.

[30]            By letter dated November 1, 2004 from Ms. Mary Zubryckyj of Transport Canada, Regional Manager Aviation Enforcement, the Applicant was again advised that his offer to serve his suspension as outlined in his correspondence of October 7, 2004, was unacceptable. However, Ms. Zubryckyj advised that she was authorized to negotiate a settlement of the matter. The Applicant sent a letter, dated November 5, 2004, to the TATC and said that he had agreed to consider settlement. He further said that he understood there would be no hearing while negotiations were underway. This letter was sent by facsimile to the TATC.

[31]            The appeal hearing proceeded before the TATC on November 5, 2004. The Applicant did not appear. The TATC dismissed the appeal on December 8, 2004, finding that the Applicant failed to present sufficient reason to justify his absence. The Minister sought costs but the TATC refused to award costs, on the basis that such an award would be justified only in exceptional circumstances which did not exist here. A copy of the appeal decision was served upon the Applicant on December 16, 2004.

III. Submissions

A. T-2056-04

[32]            In this application, the Applicant seeks judicial review of the decision conveyed in the letter of October 29, 2004, advising him that he cannot unilaterally determine when to serve the period of suspension and that the timing of the suspension will be determined by Transport Canada. The Applicant argues that this decision effectively imposes double punishment since he had already served the suspension, as set out in his correspondence of October 7 and October 23, 2004. The Applicant submits that since no objection was made to his proposed service of the suspension, in correspondence dated October 14, 2004 from Marie Zubryckyj, Regional Manager, Aviation Enforcement at Transport Canada, there was tacit acceptance of his discharge of the suspension.

[33]            He submits that double punishment, resulting from having to "re-serve" the suspension, contravenes principles set out in [1975] 1 S.C.R. 729">Kienapple v. The Queen, [1975] 1 S.C.R. 729.

[34]            The Respondent submits that the judicial review proceeding in T-2056-04 is moot. In its written submissions, the Respondent acknowledges that the suspension was served between December 31, 2004 and January 16, 2005.

B. T-2057-04

[35]            In this proceeding, the Applicant challenges the refusal of the TATC to postpone the hearing of his appeal until a date after March 15, 2005. He argues that this amounts to a breach of procedural fairness and that the decision was made in breach of the statutory obligations created by the TATC Act. He further submits that notwithstanding the apparent interlocutory nature of the decision, the matter is subject to judicial review.

[36]            In particular, the Applicant argues that the TATC ignored its obligations, pursuant to the the Rules, to provide him with a copy of the Review Determination "forthwith" and to serve him with a copy of a "notice of the date, time and place of the hearing of the appeals". He also made various submissions concerning section 15 of the TATC Act and the TATC Rules concerning the scheduling of hearings, that is Rules 4, 11 and 13. His arguments relate to improper exercise of discretion in the matter of refusing his request for a postponement.

[37]            For its part, the Respondent submits that this application for judicial review is redundant since the appeal hearing has occurred, that is on November 5, 2004.

C. T-5-05

[38]            In this application, the Applicant submits that the TATC breached the rules of natural justice and procedural fairness by proceeding on November 5, 2004. He argues that the TATC breached its statutory obligation pursuant to section 14 of the TATC Act. In this regard, he submits that the TATC was unauthorized to review written submissions upon the hearing of the appeal. He argued that he had not been provided with a copy of the record of proceedings of the Review Panel prior to the hearing on November 5, 2004. He argues that the TATC did not consider the merits of his appeal at the hearing on November 5, 2004.

[39]            The Respondent argues that the decision of the TATC, following the hearing of November 5, 2004, is reviewable on the standard of reasonableness. Relying on the decisions in Hudgin v. Canada(Minister of Transport) (2002), 219 F.T.R. 320 (C.A.) and Asselin v. Canada(Minister of Transport) (2000), 181 F.T.R. 253 (T.D.); affirmed (2001), 281 N.R. 184 (F.C.A.), it submits that the applicable standard of review to decisions of the TATC, other than those involving a question of law, is reasonableness simpliciter. For those matters involving a pure question of law, the applicable standard of review is correctness; see Canada(Minister of Transport) v. Delco Aviation Ltd.(2003), 237 F.T.R. 279 (T.D.); reversed on other grounds (2005), 333 N.R. 220 (F.C.A.).

[40]            The Respondent addressed the following issues that were raised by the Applicant:

i)           the refusal of the TATC to postpone the hearing of the appeal to a date after

March 15, 2005;

ii)          whether the TATC was obliged to consider the "concise statement" submitted by the Applicant together with his Notice of Appeal;

iii)          whether the TATC breached the Applicant's right to procedural fairness by accepting written submissions from the Respondent;

iv)         whether the lack of a verbatim transcript of the proceedings before the TATC breached the Applicant's right to procedural fairness;

v)          whether the failure to provide the Applicant with a transcript of the Review Determination transcript breached his right to procedural fairness;

vi)         whether the Applicant had adequate notice of the time and date of the appeal hearing;

vii)         whether there was undue delay in delivering the Review Determination to the Applicant;

viii)        the adequacy of the reasons of the TATC following the appeal hearing;

ix)         whether the participation of a member of the TATC appeal panel in a pre-hearing motion for an extension of time for the appeal hearing created a reasonable apprehension of bias;

x)          whether the Respondent's decision not to introduce to the TATC panel correspondence from the Applicant breached his right to procedural fairness;

xi)         whether the TATC fettered its discretion by refusing to postpone the hearing until after March 15, 2005; and

xii)         whether the TATC erred when it declined to impose costs against the Applicant in disposing of his appeal.

[41]            The Respondent argued that there was no breach of procedural fairness arising from the manner in which the Applicant was treated in the period prior to the hearing on November 5, 2004 with respect to non-receipt of a transcript of the Review Determination, notification of the time and place of hearing, and the participation of a member of the TATC in a preliminary motion concerning scheduling of the hearing.

[42]            Likewise, the Respondent took the position that there was no breach of procedural fairness resulting from the TATC's decision not to consider the written statement that accompanied the Applicant's notice of appeal when the Applicant failed to attend for the hearing of the appeal or in any other respect concerning the manner in which the TATC proceeded on November 5, 2004.

[43]            As well, the Respondent argued that there is no breach of procedural fairness resulting from the absence of a verbatim transcript of the hearing before the TATC on November 5, 2004.

[44]            Finally, the Respondent notes that the issue of costs does not arise in this application for judicial review. That issue was decided in favour of the Applicant and the Minister did not seek judicial review in that regard.

[45]            The Respondent takes the position that, overall, the decision of the TATC to proceed with the hearing of the appeal on November 5, 2004 was reasonable and that there is no basis for judicial intervention in the result, that is dismissal of the appeal.

IV. Discussion and Disposition

[46]            These three applications for judicial review arise in respect of a sanction imposed pursuant to the Aeronautics Act, and the Applicant's subsequent commencement of an appeal from a Review Determination.

A. T-2056-04

[47]            In T-2056-04, the Applicant seeks judicial review of the decision of the Minister to require him to "re-serve" the suspension of his private pilot's licence at a time to be determined by the Minister, not the Applicant.

[48]            The "decision" here is the letter from the office of the Minister, concerning service of the suspension that had been imposed by the Minister by means of the Notice of Suspension issued on September 2, 2003. Upon application by the Applicant to the TATC for a stay, service of the suspension was stayed until the hearing of the Review Determination.

[49]            In my opinion, the letter of October 29, 2004 was informative in nature. The substantive decision in issue was the suspension itself. The letter of October 29, 2004 can be characterized as an information letter from the Minister, concerning the manner in which the suspension will be served. It is clear that the Notice of Suspension itself provided instructions about the Minister's participation in the scheduling of the service of the suspension, as appears from the following:

The suspension comes into effect at the time and date specified above and ends at the time and date specified above.

...

On or before the effective date of this suspension, you must return your suspended document to the Transport Canada regional office indicated above, unless the Transportation Appeal Tribunal of Canada grants a stay of this suspension. Failure to return a suspended Canadian aviation document to the Minister is contravention of Canadian Aviation Regulation 103.03.

[Emphasis in original]

[50]            The letter of October 29, 2004 is akin to a "courtesy letter". In Hughes v. CanadaCustoms and Revenue Agency (2004), 22 Admin. L.R. (4^th) 49 (T.D.), the Court found that such a letter was not subject to judicial review.

[51]            Furthermore, at the time the letter was written, the Applicant had commenced the further appeal proceedings pursuant to the Aeronautics Act, that is the appeal from the Review Determination. The subject of the appeal was the finding that the suspension was justified. The Applicant was pursuing two inconsistent courses, that is purporting to serve the suspension while his appeal was outstanding.

[52]            Alternatively, if the letter represents a reviewable decision, I will consider the substantive arguments addressed by the parties. Does the advice from the Minister that the Applicant must serve the suspension in accordance with a schedule developed with the Minister attract the application of the principle against double punishment in [1975] 1 S.C.R. 729">Kienapple?

[53]            In [1975] 1 S.C.R. 729">Kienapple, the Supreme Court held that the principle of res judicata is applicable to prevent multiple convictions for different offences arising out of the same facts. That element is not present here. The Applicant is complaining that he is being punished twice by being required to serve the suspension to the satisfaction of the Minister. In my opinion, the decision of [1975] 1 S.C.R. 729">Kienapple is irrelevant in the circumstances.

[54]            The Respondent argues that this application for judicial review is moot since the suspension was subsequently served in January 2005. In any event, the Respondent, on the record, acknowledges service of the suspension.

[55]            The doctrine of mootness is discussed in Borowski v. Canada(Attorney General) (1989), 33 C.P.C. (2d) 105 at 115 as follows:

The doctrine of mootness is an aspect of a general policy or practice that a Court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the Court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the Court will have no practical effect on such rights, the Court will decline to decide the case. ...

[56]            It is within the Court's discretion to recognize a proceeding as moot. Insofar as the Applicant specifically stated in his correspondence of October 7, 2004 that he was pursuing his appeal before the TATC against the imposition of that suspension, that application is not moot. The imposition, not the service, of the suspension is at the heart of the application for judicial review.

[57]            In the result, the application for judicial review in cause number T-2056-04 is dismissed, with costs.

B. T-2057-04

[58]            In this proceeding, the Applicant seeks judicial review of the refusal of the TATC to schedule the hearing of his appeal to a date after March 15, 2005. The Applicant raises various arguments concerning breach of procedural fairness. The Respondent submits that the matter is redundant since the appeal has been heard.

[59]            The Applicant refers to various provisions of the Aeronautics Act and the TATC Act, as well as the TATC Rules. However, I am not persuaded that he has shown any breach of procedural fairness, as alleged. The TATC, as a statutory tribunal, has the inherent authority to manage the conduct of its proceedings, subject to the universal requirements of procedural fairness. In Knight v. IndianHead SchoolDivision No. 19, [1990] 1 S.C.R. 653, the Supreme Court of Canada said that the content of procedural fairness varies and its content is to be determined in the specific context of each case. The content of procedural fairness will depend on the circumstances of the case, the relevant statutory provision and the nature of the matter to be decided.

[60]            The nature of the matter to be decided here was the scheduling of a hearing date. In my opinion, that was a purely administrative step and wholly within the control of the TATC, subject to adequate notice to the Applicant.

[61]            The record shows that the Applicant was made aware of the proposed hearing date of November 5, 2004. This date was selected after difficulties were experienced in advising the Applicant of a September date. The Applicant had no right to a hearing on a date of his choosing. The TATC is required to deal with appeals in an expeditious manner. The record shows that there were a number of difficulties experienced in communicating with the Applicant, but I am satisfied

the TATC acted within its mandate in refusing the request of the Applicant for a lengthy postponement of the appeal hearing until a date after March 15, 2005.

[62]            I consider the Respondent's submissions concerning redundancy to be analogous to the argument on mootness. To the extent that this application raises a question that is related to, if not subsumed in, the remaining application for judicial review, the issue is not moot.

[63]            There is another matter and that is the nature of the "decision". A scheduling decision is an interlocutory matter and generally, interlocutory decisions are not subject to judicial review. In this regard, see Szezecka v. Canada(Minister of Employment and Immigration)(1993), 116 D.L.R. (4^th) 333 and Novopharm Ltd. v. Aktiebolaget Astra, [1996] 2 F.C. 689.

[64]            In Novopharm, the Court declined to enter into judicial review of an interlocutory decision of a federal tribunal where an adequate alternate remedy was available, in the form of an appeal, at the conclusion of the administrative proceedings. In the present case, the issue raised in the interlocutory decision of the TATC to refuse an adjournment of the appeal hearing to a date after March 15, 2005 and the consequences of that request could be adequately addressed in any application for judicial review relative to that hearing.

[65]            In the result, this application for judicial review is dismissed with costs.

C. T-5-05

[66]            In this application for judicial review, the Applicant challenges the decision of the TATC to dismiss his appeal because he had failed to appear at the hearing on November 5, 2004. The operative part of the decision reads as follows:

In view of the appellant's failure to appear, and in view of the fact that he was personally served on October 18, 2004 with the notice of hearing in this matter, there was then no case for the respondent to meet. The Tribunal has decided to dismiss the appeal and uphold the review determination. The appeal panel confirms the seventeen-day suspension assessed by the Minister of Transport.

[67]            The Applicant raises, again, a variety of arguments concerning lack of procedural fairness and breaches of statutory obligations. The Respondent argues the decision involved a mixed question of discretion and law, reviewable on the standard of reasonableness, having regard to the pragmatic and functional analysis, and sustainable on that basis. Alternatively, the Respondent submits that the issue is a question of procedural fairness reviewable on the standard of correctness, without the need to conduct a pragmatic and functional analysis.

[68]            The pragmatic and functional analysis requires consideration of four factors: the presence or absence of a privative clause; the expertise of the tribunal; the purpose of the legislation and the nature of the question. In this regard, I refer to Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226.

[69]            In Asselin, the applications judge applied the pragmatic and functional analysis to a decision of an Appeal Panel of the Civil Aviation Tribunal, the predecessor to the TATC, and said the following at paragraph 11:

Taking into account, therefore, the existence of a privative clause, the expertise of the Appeal Panel, the safety of the public contemplated by the Act and the technical and specialized nature of the Regulations, I am of the view that a standard based on judicial deference is appropriate. However, given that the issue before the Appeal Panel involved not only a question of fact but a question of law pertaining to the interpretation and application of subsections 801.01(2) of the Regulations and par. 2.5 of chapter 1 of standard 821 of the Separation Standards, I believe, as my colleague Gibson J. held in Killen v. Canada (Minister of Transport) (1999), 169 F.T.R. 291 (T.D.), in regard to another decision of the same Appeal Panel, that the applicable standard of review is situated somewhere between correctness and patent unreasonableness, that is, it is the reasonableness simpliciter standard.

[70]            I agree with this approach. In this case, the applicable standard is either correctness, if the summary disposition of the Applicant's appeal is regarded as a matter of procedural fairness and reasonableness, if disposition of the appeal is regarded as a matter of discretion.

[71]            The test for reviewing discretionary decisions is set out in [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at pp. 7-8 as follows:

... It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. ...

[72]            In this case, the TATC has broad power over its proceedings pursuant to section 15 of the TATC Act as follows:

[73]            As well, I refer to Rules 4 and 13 of the TATC Rules as follows:

[74]            In my opinion, the TATC made a discretionary decision when it decided to dismiss the Applicant's appeal and that decision should be subject to review on the standard of reasonableness.

[75]            On the basis of the record, I am satisfied that the Applicant was aware of the hearing date. I am also satisfied that he had made known his intentions not to appear on November 5. He had no legitimate expectation that his appeal would be postponed as the result of his facsimile message to the TATC early in the morning of November 5, 2004. Although there were difficulties in communicating with the Applicant, he was made aware of what was happening concerning the scheduling of his appeal. He has adopted a microscopic analysis of the procedures followed by the TATC but, in my opinion, he has not established that that tribunal committed a reviewable error in the exercise of its discretion.

[76]            Insofar as the appeal before the TATC is concerned, the Applicant was the appellant and he was in control of his own case. He was aware of the hearing date. He did not appear. I see no error arising from the manner in which the TATC exercised its discretion by dismissing the appeal in the absence of the Applicant.

[77]            Alternatively, if the matter is characterized as giving rise to an issue of procedural fairness, I am satisfied, for the reasons above, that the TATC committed no breach of procedural fairness. The Applicant was aware of the hearing and he did not appear. The application for judicial review is dismissed, with costs.

[78]            These Reasons will be filed in T-5-05 and placed on the files in T-2056-04 and T-2057-04.

"E. Heneghan"

Ottawa, Ontario

July 18, 2006

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                           T-2056-04, T-2057-04 and T-5-05

STYLE OF CAUSE:                           ADIAN BUTTERFIELD

                                                            and

                                                            ATTORNEY GENERAL OF CANADA

                                               

                                               

PLACE OF HEARING:                     Vancouver, British Columbia

DATE OF HEARING:                       December 6, 2005 - Additional submissions from the parties received March 3, 13 and 20, 2006

REASONS FOR ORDER

AND ORDER BY:                             The Honourable Madam Justice Heneghan

DATED:                                              July 18, 2006

APPEARANCES BY:

Aidan Butterfield                                    APPLICANT - ON HIS OWN BEHALF

on his own behalf

Cindy Mah/Valerie Anderson                 FOR THE RESPONDENT

SOLICITORS OF RECORD:

Aidan Butterfield

Richmond, B.C.                                                               (Self-Represented) FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada                                                          FOR THE RESPONDENT