Date: 19981007
Docket: T-595-98
BETWEEN: AVIATION QUÉBEC LABRADOR LTÉE,
Applicant
| AND: MINISTER of TRANSPORT, |
Respondent
REASONS FOR ORDER AND ORDER
DENAULT J.:
[1] The applicant in this case was deprived by the Minister of certain specifications in its operating certificate issued under the Aeronautics Act, R.S.C. 1985, c. A-2 (the Act). Its request for review by the Civil Aviation Tribunal was dismissed, as was its appeal to the appeal panel. It is now seeking judicial review of this decision.
[2] The facts, which are not in dispute, should be summarized. Prior to December 12, 1996, the applicant, an air transport undertaking, was the holder of operating certificate 5791. This certificate included, inter alia, some operations specifications (numbers 3, 4 and 120) that allowed it to override section 24 and subsection 39(3) of the Air Navigation Order (A.N.O.) Series VII, No. 3, enacted in March 1973. On December 12, 1996, the federal Minister of Transport notified the applicant that he was cancelling operating certificate 5791 in full on the ground that it no longer met the conditions of issuance. The Minister explained his decision in the following words: "The Air Regulations and Air Navigation Orders were repealed October 10, 1996." The new operating certificate issued to the applicant by the Minister does not include operations specifications numbers 3 and 120; these advantages have completely disappeared.1 However, it does contain operations specification No. 11, which allows the carrier to override section 703.86 of the new Canadian Aviation Regulations, enacted in October 1996, which essentially correspond to the former subsection 39(3) of the A.N.O. Series VII, No. 3 and operations specification No. 4. The applicant can thereby continue to fly a plane with passengers on board "without second-in-command", as it was already doing thanks to specification No. 4, which was cancelled in December 1996.
[3] The main submissions by the applicant have to do with the role played by the Minister in the context of the Aeronautics Act.
[4] The applicant submits, first, that the tribunal erred in law in situating the award of the operations specifications by the Minister within the regulatory framework. It argues, in effect, that the Minister"s authority to grant the holder of an operating certificate leave to override certain conditions in the regulations was contained not in the Regulations but under subsection 5.9(2) of the Act.2 But while the Air Navigation Order under which its operating certificate included operations specifications has been repealed, subsection 5.9(2) of the Act has not.
[5] In my opinion, this submission by the applicant results from a misreading of the Act and the Regulations, and cannot withstand an analysis thereof.
[6] It is clear, from the applicant"s operations specifications numbers 3, 4 and 120,3 that they were issued to it under section 3 of the A.N.O. Series VII, No. 3.4 This order, rendered by the Minister of Transport on March 16, 1973, was rendered under the authority of the Aeronautics Act then in force5 and the Air Regulations, SOR 61-106 adopted by the Governor in Council. Section 7 of that Order authorizes the Minister to issue to an applicant who meets all the conditions for an operating certificate a numbered certificate that the air carrier is in compliance with "the Air Regulations , Air Navigation Orders and the operations specifications forming part of the certificate". Section 8 lists the contents of the certificate.
[7] In short, the authority to issue operations specifications is given under a regulation adopted by the Governor in Council and not, as the applicant submits, under the ministerial authority stipulated in subsection 5.9(2) of the Act.
[8] The applicant also submits that the Minister could not, as he did, cancel its operations certification and thereby revoke the privileges that it had been granted except by demonstrating that it was in the public interest to do so, under subsection 7.1(1) of the Act. In so far as the Minister did not demonstrate this, it is argued, he exceeded his jurisdiction, confining himself to the statement in the notice of cancellation that the operations certificate no longer met the conditions of issuance, given the repeal of the Air Regulations and the Air Navigation Orders as of October 10, 1996. The applicant argues, therefore, that the tribunal erred in allowing the Minister to cancel a Canadian aviation document without proving the existence of one of the reasons prescribed in subsection 7.1(1) of the Act.
[9] This argument, too, does not withstand an analysis of the wording of subsection 7.1(1).
[10] It is appropriate to reproduce the text of section 7.1 of the Act, in both its English and French versions:
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| 7.1 (1) Where the Minister decides
(a) to suspend, cancel or refuse to renew a Canadian aviation document on medical grounds,
(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or
(c) to suspend or cancel a Canadian aviation document because the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the holder of the Canadian aviation document or of any principal of the holder, as defined in regulations made under subsection 6.71(2), warrant it,
the Minister shall, by personal service or by registered mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister"s decision.
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7.1 (1) Lorsque le ministre décide soit de suspendre, d"annuler ou de ne pas renouveler un document d"aviation canadien pour des raisons médicales, soit de suspendre ou d"annuler un document parce que le titulaire du document est inapte ou que le titulaire ou l"aéronef, l"aéroport ou autre installation que vise le document ne répond plus aux conditions de délivrance ou de maintien en état de validité du document, soit encore de suspendre ou d"annuler un document du titulaire ou de la personne morale dont celui-ci est un dirigeant - au sens du règlement pris en application du paragraphe 6.71(2) -, s"il estime que l"intérêt public, et notamment les antécédents aériens du titulaire ou de tel de ses dirigeants, le requiert, il expédie un avis de la mesure par signification à personne ou par courrier recommandé à la dernière adresse connue du titulaire ou du propriétaire, exploitant ou utilisateur en cause.
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| (2) A notice under subsection (1) shall be in such form as the Governor in Council may by regulation prescribe and shall, in addition to any other information that may be so prescribed,
(a) indicate, as the case requires.
| (i) the medical grounds on which the decision of the Minister is based, |
| (ii) the nature of the incompetence of the holder of the Canadian aviation document that the Minister believes exists, the qualifications necessary for the issuance of the document that the Minister believes the holder of the document or the aircraft, airport or facility in respect of which the document was issued ceases to have or the conditions subject to which the document was issued that the Minister believes are no longer being met or complied with, or |
| (iii) the elements of public interest on which the decision of the Minister is based; and |
(b) state the date, being thirty days after the notice is served or sent, on or before which and the address at which a request for a review of the decision of the Minister is to be filed in the event the holder of the document or the owner or operator concerned wishes to have the decision reviewed.
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(2) L"avis est établi en la forme que peut fixer le gouverneur en conseil par règlement. Y sont en outre indiqués:
(a) soit la raison médicale ou fondée sur l"intérêt public à l"origine, selon le ministre, de la mesure, soit la nature de l"inaptitude, soit encore les conditions - de délivrance ou maintien en état de validité - auxquelles, selon le ministre, le titulaire ou l"aéronef, l"aéroport ou autre installation ne répond plus;
(b) le lieu et la date limite, à savoir trente jours après l"expédition ou la signification de l"avis, du dépôt d"une éventuelle requête en révision.
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[11] It should be noted that in the case at bar the Minister cancelled the applicant"s certificate not because such action was warranted by the public interest or the holder"s record (paragraph 7.1(1)(c) of the English text), but because the holder no longer complied with the conditions subject to which the document was issued (paragraph 7.1(1)(b) of the English text). Thus the applicant is wrong to criticize the Civil Aviation Tribunal as having endorsed the cancellation of its certificate when the minister had failed to prove that the public interest, and in particular the holder"s record, warranted it.
[12] Within the context of that argument, however, the applicant also criticizes the tribunal and the appeal panel for overlooking the Minister"s failure to comply with the requirements of subsection 7.1(2) of the Act, that is, indicating the conditions of issuance with which the holder, in his view, was no longer in compliance. In this regard, I think the applicant is right.
[13] Indeed, under subsection 7.1(1) of the Act, when the Minister decides to cancel or not to renew a Canadian aviation document because, for example, the holder of this document no longer meets or complies with the conditions subject to which the document was issued, Parliament has imposed on him a duty to so notify the holder. It should be explained that a "Canadian aviation document", as defined by the Act, includes "any licence, permit, ... certificate or other document issued by the Minister" (s. 3). Section 6.6 further states that "In sections 6.7 to 7.2, "Canadian aviation document" includes any privilege accorded by a Canadian aviation document." It necessarily follows that in this case the operations specifications are part of the certificate, which itself is a Canadian aviation document.
[14] Parliament apparently wished to provide additional protection to the holders of such certificates should there be alterations, for example, in the conditions of issuance of a Canadian aviation document. In such situations, Parliament enacted that the Minister should specify, in the notice he was to send to the holder of a certificate, the conditions with which the holder no longer complied. In the case at bar, I think it was not sufficient for the Minister to state, in the notice of cancellation,7 that "The Air Regulations and Air Navigation Orders were repealed October 10, 1996." He had to specify how the holder, who possessed an operating certificate including, inter alia , operations specifications numbers 3, 4 and 120, no longer met or complied with the conditions of issuance in the Canadian Air Regulations, which came into force in October 1996.
[15] The application for judicial review shall therefore be allowed. In the circumstances, there is no need for me to rule on the issue of vested rights that was raised by the applicant.
O R D E R
The Court:
| - allows the application for judicial review; |
| - sets aside the decision rendered by the appeal panel of the Civil Aviation Tribunal on March 11, 1998; |
| - returns the matter to the Civil Aviation Tribunal and orders it to reconsider its decision taking into account the Minister"s duty, under paragraph 7.1(2)(a) of the Aeronautics Act, to indicate the conditions subject to which the document was issued that the Minister believes are no longer being met or complied with by the applicant. |
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: AVIATION QUÉBEC LABRADOR LTÉE |
| v. DEPARTMENT OF TRANSPORT |
| PLACE OF HEARING: Québec, Quebec |
| DATE OF HEARING: September 29, 1998 |
REASONS FOR JUDGMENT OF DENAULT J.
APPEARANCES:
Michel St-Pierre for the applicant
Claude Morrisette for the respondent
SOLICITORS OF RECORD:
Beauvais Truchon et Associés
Québec, Quebec for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the respondent
__________________
1 Operations specification No. 120 authorizes the commencement of flights (take-off) when the reported visibility is RVR 1,200', regardless of ceiling, subject to certain operational restrictions, overriding section 24 of the A.N.O. series VII No. 3.
2 5.9 (1) The Governor in Council may make regulations exempting, on such terms and conditions as may be specified in the regulations, any person, aircraft, aerodrome, facility or service from the application of any regulation or order made under this Part.(2) The Minister may, on such terms and conditions as the Minister deems necessary, exempt any person, aircraft, aerodrome, facility or service from the application or order made under this Part if in the opinion of the Minister the exemption is in the public interest and is not likely to affect aviation safety.
3 These operations specifications were awarded, respectively, on July 17, 1991, October 16, 1992 and October 15, 1993. They are found at pages 25, 26 and 31 of the applicant"s record.
4 Except as may be otherwise authorized in the operations specifications, an air carrier shall operate a small aeroplane in any air transport operation in compliance with this Order. [Emphasis added]
5 R.S.C. 1970, c. A-3:s. 6 (1) Subject to the approval of the Governor in Council, the Minister may make regulations to control and regulate air navigation over Canada....s. 6 (2) Any regulation made under subsection (1) may authorize the Minister to make orders or directions with respect to such matters coming within this section as the regulations may prescribe.
The substance of these sections is now contained in subsection 4.3 of the Act:Delegation by Minister4.3 (1) ...
Ministerial orders4.3 (2) The Governor in Council may by regulation authorize the Minister to make orders with respect to any matter in respect of which regulations of the Governor in Council under this Part may be made.
6 Section 702 of these Regulations, which became section 703 with the 1978 codification, provided:
702. Subject to these Regulations, no person shall operate any commercial air service except in accordance with such standards for the safe and proper operation of the service as may be prescribed by the Minister. (Respondent"s record, pp. 42 to 45).
7 Applicant"s record, p. 42.
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