Association des Pilotes de Lignes Internationales v. Urbino, 2004 FC 1387

                                                                                                                                   Date: 20041104

                                                                                                                              Docket: T-1701-02

                                                                                                                        Citation: 2004 FC 1387

BETWEEN:

                                                   ASSOCIATION DES PILOTES

                                                DE LIGNES INTERNATIONALES

                                                                                                                                            Applicant

                                                                         - and -

                                                         FRANCESCO URBINO,

                                     THE ATTORNEY GENERAL OF CANADA and

                                                                 AIR TRANSAT

                                                                                                                                      Respondents

                                                        REASONS FOR ORDER

PINARD J.:

[1]         This is an application made pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, following an amendment to section 403.05 of the Canadian Aviation Regulations, SOR/96-433 (hereinafter "CARs"), which was adopted pursuant to section 4.9 of the Aeronautics Act, R.S.C. 1985, c. A-2 (hereinafter the "Act"). The applicant seeks an order that this Court:

1.        Declare that section 403.05 of the CARs be deemed invalid and of no force.

2.          Declare null and invalid all notices of revocation of privileges attached to the Air Maintenance Engineer (hereinafter "AME") licences issued to the constituent member flight engineers of the applicant organization.

3.          Subsidiarily, order Transport Canada to institute a new consultation process, involving all parties interested by the proposed modification of section 403.05, in order to canvass the varying points of view on the new recency requirements for obtaining an AME licence.

4.         Order Transport Canada to conduct a new regulatory impact analysis regarding the recency requirements for obtaining an AME licence, in conformity with the Canadian Aviation Regulation Advisory Council's (hereinafter "CARAC") Management Charter and Procedures.

5.        Subsidiarily, interpret section 403.05 of the CARs and declare that the applicant's flight engineers fulfill all recency requirements for exercising their privileges to sign Maintenance Release Certificates.

6.          Order Francesco Urbino to grant all privileges attached to the AME licence to all of the applicant's flight engineers in accordance with the CARs.

Facts

[2]         The applicant, Association des pilotes de lignes internationales (hereinafter "APLA"), is an association of employees, duly certified in accordance with the Canada Labour Code to represent, amongst others, the pilots and flight engineers working at Air Transat by virtue of certification issued on May 10, 1999. From August 14, 1991 to May 10, 1999, flight engineers at Air Transat were represented by l'Association du personnel navigant technique d'Air Transat AT.

[3]         Air Transat is holder of an Air Operator Certificate issued by Transport Canada in accordance with the CARs, adopted pursuant to section 4.9 of the Act.

[4]         The manufacturer's flight manual of the Lockheed 1011 aircraft (hereinafter the "aircraft") requires a crew of three (3) persons in order to keep it safely in flight. Air Transat must respect the requirements set out in the flight operations manual in order to fulfill its obligation to maintain airworthiness for the aircraft certified by Transport Canada and uses its flight engineers to fill the third crew member position aboard its aircraft.

[5]         Air Transat is also an Approved Maintenance Organization (hereinafter "AMO") in accordance with the CARs. As an AMO, and in accordance with sections 573.01 and following of the CARs, Air Transat must ensure that the holders of Aircraft Maintenance Licences possess the required qualifications in order to exercise certain privileges in relation to the repair and maintenance of aircraft. Mr. Francesco Urbino currently assumes the functions of the AMO at Air Transat.

[6]         Flight engineer duties are listed in Air Transat's Maintenance Control Manual and include verifying and repairing all mechanical, electrical and electronic aircraft systems amongst others. All Air Transat flight engineers must, in addition to the flight engineer's licence, hold a ground mechanic's licence and an AME licence.

[7]         No aircraft which has undergone maintenance is authorized to take off unless the maintenance has been certified by the signing of a Maintenance Release (sections 605.85 and 571.10 of the CARs). Only holders of an AME licence issued by Transport Canada are authorized to sign a Maintenance Release (section 571.11 of the CARs).

[8]         On October 10, 1996 amendments to the regulations relating to the issuance of AME licences were made. As a result, between December 1999 and March 2000 flight engineers who were members of the applicant and Air Transat employees were informed that their certification privileges attached to the AME licence had been revoked and that they were no longer authorized to sign Maintenance Releases.

[9]         Prior to the amendments, the relevant provisions were located in Personnel Licences Order (Air Navigation Order, Series IV, No. 1) volume 2 of the Personnel Licensing Handbook, and in the subsequent Order Respecting Aircraft Maintenance Engineer Licences (Air Navigation Order, Series IV, No. 6, SOR/89-542). The amendments are now found in section 403.05 of the CARs.

[10]       The recommendation to modify the recency requirements as set out in section 403.05 of the CARs comes from the Civil Aviation Regulation Committee (hereinafter "CARC"). The CARC is one of the technical committees under the CARAC which was created on or about July 1, 1995 to render the regulatory process more accessible to the public. CARC is responsible for matters concerning the issuance of licence and training personnel.

[11]       The CARs Regulatory Impact Analysis Statement (hereinafter "RIAS") published together with the Proposed Regulatory Text including section 403.05 on September 16, 1995 and October 1996 indicated that no substantive changes had been made to the existing regulations, procedures, policies and industry practices with respect to AME licences and, therefore, no economic impact is expected. With respect to consultation, the RIAS indicates the following:

Consultation

These Regulations have been extensively consulted through the Canadian Aviation Regulation Advisory Council (CARAC). The actively participating members of the Personnel Licensing Committeee of CARAC include the Aero Club of Canada, Air Canada, Air Operations Group Association, Air Transport Association of Canada, Association québécoise des transporteurs aériens incorporée, Canadian Air Line Pilots Association, Canadian Association of Aviation Colleges, Canadian Airlines International Ltd., Canadian Balloon Association, Canadian Business Aircraft Association, Canadian Owners and Pilots Association, Canadian Air Traffic Controllers Association, Experimental Aircraft Association-Canadian Council, Recreational Aircraft Association of Canada, Soaring Association of Canada, and the Teamsters. The Personnel Licensing Committee has met five times to review Part IV of the CARs. All of the draft regulations and standards have been reviewed at least once and in some cases, twice.

[12]       At the time of publication of the RIAS, the applicant APLA had not yet been certified to represent the pilots and flight engineers working at Air Transat whose name does not appear in the list of actively participating members of CARAC.

[13]       On December 12, 1997, the Director General of Civil Aviation issued a policy statement entitled "Aircraft Maintenance & Manufacturing Policy Letter" which stated that flight crew duties do not qualify as maintenance experience for the purpose of maintaining the currency of an AME licence. Indeed, section 403.05 of the CARs does not include any provision which allows an AME to exercise any of the privileges of the licence if the AME "has spent at least six months as a flight engineer" as previously stated in section 19 of the Personnel Licensing Handbook, supra.

[14]       Following the coming into force of the amended CARs, Air Transat twice requested that Transport Canada suspend the application of section 403.05 in order to allow Air Transat to properly determine its impact. These requests were refused. The Canadian Federation of AMEs Association also lobbied Transport Canada for a re-examination of section 403.05. As a result, the Director General of Civil Aviation agreed to revisit the issue of recency through the CARAC process. In an attempt to arrive at an agreement on the interpretation and application of section 403.05 of the CARs, Air Transat entered into negotiations with Transport Canada. There is currently no agreement between the parties as to the proper interpretation and/or application of section 403.05 of the CARs.

Pertinent Statutory and Regulatory Provisions

[15]       The pertinent provision of the Act reads as follows:

[16]       The pertinent provision of the CARs reads as follows:

[17]       The pertinent provision of the Personnel Licensing Handbook, supra, reads as follows:

19.           Currency of Experience

No AME shall exercise any of the privileges of the licence, or shall be entitled to renewal of the licence, unless within the preceding 24 months, the AME:

(a)           has spent at least 6 months in the performance, management, instruction or full-time study of aviation maintenance;

(b)            has spent at least 6 months as a flight engineer; or

(c)           has successfully completed a Department of Transport examination on the Air Regulations.

[. . .]

[18]       The pertinent provisions of the Order Respecting Aircraft Maintenance Engineer Licences, supra, read as follows:

                                       Privileges

   4. Subject to sections 6 and 7, a licence holder whose licence is endorsed for a type of aircraft may

(a) certify an aircraft of that type or a part or component part thereof as airworthy or serviceable, as the case may be; or

(b) certify an aircraft of that type or a part or component part thereof for return to service following maintenance performed on that aircraft, part or component part thereof.

                                      Avantages

   4. Sous réserve des articles 6 et 7, le titulaire d'une licence portant une annotation pour un type d'aéronef peut :

a) certifier l'état de navigabilité ou le bon état de service d'un aéronef de ce type, de l'une de ses pièces ou de l'un de ses éléments constitutifs;

b) certifier qu'un aéronef de ce type, l'une de ses pièces ou l'un de ses éléments constitutifs peut être remis en service après avoir fait l'objet de travaux d'entretien.

   5. Subject to sections 6 and 7, a licence holder whose licence is endorsed for a type of aeronautical product may

(a) certify an aeronautical product of that type or a part or component part thereof

(i) as airworthy, or

(ii) for return to service following maintenance performed on that aeronautical product, part or component part thereof; or

(b) certify an aircraft for return to service following maintenance performed on an aeronautical product of that type or a part or component part thereof.

   [. . .]

   5. Sous réserve des articles 6 et 7, le titulaire d'une licence portant une annotation pour un type de matériel aéronautique peut :

a) certifier qu'un matériel aéronautique de ce type, l'une de ses pièces ou l'un de ses éléments constitutifs :

(i) soit est en état de navigabilité,

(ii) soit peut être remis en service après avoir fait l'objet de travaux d'entretien;

b) certifier qu'un aéronef peut être remis en service après qu'un matériel aéronautique de ce type, l'une de ses pièces ou l'un de ses éléments constitutifs a fait l'objet de travaux d'entretien.

[. . .]

                           Currency of Experience

   7. No licence holder shall exercise the privileges set out in section 4 or 5 in respect of an aircraft, a part or component part thereof, an aeronautical product, or a part or component part thereof unless the licence holder has been engaged, for a period of six months or more in the period of 24 months immediately preceding that time, in the performance, supervision, instruction or management of the maintenance of aircraft or aeronautical products.

                               Expérience récente

   7. Il est interdit au titulaire d'une licence d'exercer les avantages visés aux articles 4 ou 5 relativement à un aéronef, à l'une de ses pièces ou à l'un de ses éléments constitutifs, ou relativement à un matériel aéronautique, à l'une de ses pièces ou à l'un de ses éléments constitutifs, à moins d'avoir accompli, pendant au moins six mois au cours des 24 derniers mois, des travaux ou des fonctions de supervision, de formation ou de gestion liés à l'entretien d'aéronefs ou de matériels aéronautiques.

Issues

1.         Is section 403.05 of the CARs (and accordingly all notices of revocation of privileges issued pursuant thereto) invalid, as a result of the application of the doctrine of legitimate expectation, because the Federal Government failed to consult the applicant on significant modifications made to this provision in contravention of the Federal Regulatory Plan and the CARAC Management Charter and Procedures?

2.         Subsidiarily, can mandamus issue to compel Transport Canada to institute a new consultation process thereby giving all interested parties, and more particularly the applicant and its constituent flight engineers, the opportunity to be heard concerning the proposed modifications to the recency requirements for an AME licence, the whole in accordance with the Federal Regulatory Plan and CARAC's Management Charter and Procedures?

3.         Can section 403.05 of the CARs be interpreted to recognize that the applicant's flight engineers fulfill all the necessary requirements whereby they should be able to lawfully continue to exercise the privileges of signing Maintenance Release Certificates?

Analysis

Issue 1

[19]       The applicant submits that the Federal Regulatory Plan and the CARAC's Management Charter and Procedures, which include mandatory consultation directives, create a legitimate expectation. The respondents argue firstly that the industry was consulted, as indicated in the RIAS of September 1995 and October 1996, however, even if the industry had not been consulted, the theory does not apply to directives.

[20]       [1978] 1 S.C.R. 118">Martineau et al. v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118, has established that policy directives, whether made pursuant to regulatory authority or general administrative capacity, are no more than directions and are unenforceable by members of the public. The Supreme Court of Canada has also stated that guidelines should not be elevated to the status of legislation, thereby limiting the exercise of discretion conferred by an enabling statute (see for example [1982] 2 S.C.R. 2">Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2 at pages 6 and 7). In [1980] 2 S.C.R. 735">Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735 at 757, the Supreme Court of Canada adopted the following comments made by Justice Megarry in Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373 at 1378:

Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected by delegated legislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy . . . I do not know of any implied right to be consulted or make objections, or any principle upon which the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given.

(The underlining is mine.)

[21]       Both parties cite Apotex v. Canada (Attorney General), [2000] 4 F.C. 264 (C.A.), regarding the issue of legitimate expectation. First, I must point out that the difference between the case at bar and Apotex, supra, is that in the latter case the Minister made a personal political undertaking to consult before enacting the regulations, whereas here, as the respondent, the Attorney General of Canada, points out, there was no such undertaking by the Minister of Transport. In Apotex, Décary J.A. and Sexton J.A., even though concurring with the Reasons for Judgment of Evans J.A., disagreed with respect to the issue of the breach of the undertaking to consult the CDMA before the enactment of regulations. The concurring justices expressed serious reservations as to the applicability of the doctrine of legitimate expectations to Cabinet in the exercise of its regulation-making power, considering the judiciary should be reluctant to move in and impose procedural restrictions of its own creation on the process leading to the making of regulations by the Governor in Council. In any event, Evans J.A.'s comments on this point appear to be obiter dicta. Leave to appeal that decision to the Supreme Court of Canada was denied.

[22]       Apotex, supra, was referred to by the Supreme Court of Canada in Mount SinaïHospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281 at 306:

The second limitation was that "public bodies exercising legislative functions may not be amenable to judicial supervision" (p. 558 (emphasis added)). Reference re Canada Assistance Plan dealt with the application of the doctrine of legitimate expectations to Parliament where the need for judicial restraint is obvious. There may be difficulty in other contexts in distinguishing when the legislative exception applies and where it does not, as debated in the Federal Court of Appeal in Apotex Inc. v. Canada (Attorney General), [2000] 4 F.C. 264, especially Evans J.A. at para. 105 et seq. That issue remains open for another day.

[23]       Like Justice Senécal of the Superior Court of Québec in Le Conseil du patronat du Québec Inc. et al. c. Le Procureur général du Québec et al., [2003] R.J.Q. 3154, I do not consider that Apotex, supra, has changed the applicable law with respect to the doctrine of

legitimate expectations to the regulation-making power of the Governor in Council. I adopt the following comments made by Justice Senécal at page 3167 of Conseil du patronat du Québec Inc. :

[87] La décision de la Cour d'appel fédérale dans Apotex Inc. c. Procureur général du Canada [[2000] 4 C.F. 264 (C.A.F.)] n'a pas changé l'état du droit sur cette question. Même si M. le juge Evans y indique que, suivant son appréciation, la théorie de l'expectative légitime devrait s'appliquer au pouvoir législatif délégué, cette façon de voir a été rejetée par ses deux collègues majoritaires, les juges Décary et Sexton. La Cour suprême a refusé la permission d'en appeler de cette décision alors que l'on souhaitait expressément débattre de la question de savoir « si la doctrine de l'expectative légitime peut être appliquée au pouvoir législatif délégué » .

[88] Contrairement à ce qu'affirment les demandeurs, la jurisprudence est très claire que les principes qui ont été émis par la Cour suprême quant à la non-application de la théorie de l'expectative légitime et des règles de justice naturelle ou d'équité procédurale à l'exercice d'un pouvoir législatif valent entièrement à l'égard du pouvoir de législation délégué, donc à l'égard du pouvoir réglementaire.

[24]       In the case at bar, I am satisfied that the industry was adequately consulted before the adoption of section 403.05 of the CARs, as indicated in the RIAS of September 1995 and October 1996. In any event, there is nothing in section 4.9 of the Act requiring consultation with those interested before enacting regulations. The Governor in Council had discretion under section 4.9 and as such a high level of deference should be accorded. The policy directives included in the Federal Regulatory Plan and the CARAC's Management Charter and Procedures are unenforceable by members of the public. I am of the opinion, therefore, that there was no legitimate expectation to be consulted and that section 403.05 of the CARs is not invalid.

Issue 2

[25]       In order for a mandamus to issue, the applicant must meet all of the requirements as set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.). The requirements are as follows:

1.         There must be a public legal duty to act.

2.         The duty must be owed to the applicant.

3.         There must be a clear right to performance of that duty.

4.         Where the duty sought to be enforced is discretionary, consideration must be given to the nature and manner of exercise of the discretion.

5.         No other adequate remedy is available to the applicant.

6.         The order sought will be of some practical value or effect.

7.         The Court in its exercise of discretion finds no equitable bar to the relief sought.

8.         On a "balance of convenience" an order in the nature of mandamus should (or should not) issue.

[26]       In view of the above finding that there is here no legal obligation for the Governor in Council to consult before enacting a regulation such as section 403.05 of the CARs, it is obvious that the applicant has not met all of the requirements as set out in the caselaw and, therefore, it is inappropriate for this Court to issue a mandamus as requested by the applicant.

Issue 3

[27]       Section 403.05 of the CARs being a valid regulation, I am of the opinion that the Court ought not determine if it can be interpreted so as to permit flight engineers to continue to sign Maintenance Release Certificates. Only holders of AME licences, as set out in section 571.11 of the CARs, can sign Maintenance Release Certificates. Section 403.05 deals specifically with what is required in order for an individual to continue to exercise his AME privileges. I am of the opinion that the issue is not a matter of interpretation of the section, which is unambiguous. It appears rather that the applicant wants this Court to determine that the factors Transport Canada uses to determine recency are unreasonable and that flight engineers possess all the requirements to sign Maintenance Release Certificates.

[28]       Using the criteria set out in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, I would conclude that the applicable standard of review with respect to this third issue is that of patent unreasonableness. While there is no privative clause in the Act, the purpose of the regulation is public safety and does not focus solely on the rights of the applicant. Transport Canada is more adept at determining what is required of flight engineers regarding the safety of aircraft maintenance than this Court is, which is more a question of fact than of law. As such, deference should be accorded to Transport Canada in its capacity to determine what requirements are necessary for AME licence holders to maintain currency of their licences and if such requirements are met.

Conclusion

[29]       For all the above reasons, the application made pursuant to section 18.1 of the Federal Court Act is dismissed, with costs.

       JUDGE

OTTAWA, ONTARIO

November 4, 2004

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       T-1701-02

STYLE OF CAUSE:                                      ASSOCIATION DES PILOTES DE LIGNES INTERNATIONALES v. FRANCESCO URBINO, THE ATTORNEY GENERAL OF CANADA and AIR TRANSAT

PLACE OF HEARING:                                  Montréal, Quebec

DATE OF HEARING:                                    October 4, 2004

REASONS FOR ORDER:                            The Honourable Mr. Justice Pinard

DATED:                                                          November 4, 2004

APPEARANCES:

Me Philippe Vachon

Me Gassim Bangoura                                               FOR THE APPLICANT

Me Louise Béchamp                                      FOR THE RESPONDENTS

FRANCESCO URBINO and AIR TRANSAT

Me Linda Mercier                                           FOR THE RESPONDENT

THE ATTORNEY GENERAL OF CANADA

SOLICITORS OF RECORD:

BORDEN, LADNER, GERVAIS                  FOR THE APPLICANT

Montréal, Quebec

FASKEN, MARTINEAU, DUMOULIN          FOR THE RESPONDENTS

Montréal, Quebec                                           FRANCESCO URBINO and AIR TRANSAT

Morris Rosenberg                                          FOR THE RESPONDENT

Deputy Attorney General of Canada            THE ATTORNEY GENERAL OF CANADA

Montréal, Quebec