Date: 19991229
Docket: T-654-99
OTTAWA, Ontario, the 29th day of December 1999
PRESENT: The Honourable Mr. Justice Rouleau
Between:
AURÈLE LABBÉ
Applicant
And:
MINISTER OF TRANSPORT
Respondent
ORDER
[1] The application is dismissed.
P. ROULEAU
J.
Certified true translation
Bernard Olivier
Date: 19991229
Docket: T-654-99
Between:
AURÈLE LABBÉ
Applicant
And:
MINISTER OF TRANSPORT
Respondent
ORDER
ROULEAU J.
[1] This is an application for leave and for judicial review filed pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision by the Civil Aviation Tribunal (the Tribunal) rendered on March 12, 1999, upholding the decision of the Minister of Transport to issue a notice of fine to the applicant in the amount of $300.00 because he had contravened Part III, subsection 20(1) of the Aerodrome Security Regulations, SOR/87-452.
[2] The facts, which are not disputed, are the following. On April 15, 1997, pursuant to an amendment to the Canadian aerodrome security regulations, Mr. Savard, the operator of the Jean-Lesage international airport, sent a fourth and final notice to all holders of existing green restricted area passes that they should obtain the new red pass to replace it. This letter explained that passes that were not renewed or returned by April 21, 1997 would be considered lost and their holders would be invoiced accordingly.
[3] As a holder of a green pass, the applicant was informed of these changes.
[4] On September 2, 1997, security officer Gaudreau came upon the applicant, who was travelling in the movement area of the Jean-Lesage airport in Québec. Officer Gaudreau intercepted the applicant since his emergency rotating light was not on as required by the existing regulations. After a brief dialogue with officer Gaudreau, the applicant continued on his way without showing him his pass, notwithstanding the officer's request that he do so.
[5] That same day, officer Gaudreau wrote up a breach of security report describing the incident in the following words: "[Translation] Was in a restricted area while not holding a pass for that area, contrary to subsection 20(1) of the Regulations".
[6] On October 3, 1997, the Minister of Transport issued the applicant with a notice of a fine of $300.00, under section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A-2, because he had contravened Part III, subsection 20(1) of the Regulations.
[7] The applicant appealed this decision to the Civil Aviation Tribunal. On March 29, 1998, the Tribunal member upheld the Minister's decision and confirmed the amount of the fine against the applicant.
[8] The applicant appealed under section 8.1 of the Aeronautics Act to the Tribunal, composed this time of three panel members. The appeal was again dismissed and the applicant is now appealing that decision.
[9] The relevant statutory provisions are the following:
Section 7.7(1) of the Act
| 7.7(1) Le ministre, s'il a des motifs raisonnables de croire qu'une personne a contrevenu à un texte désigné, l'informe des faits reprochés par un avis établi en la forme et comportant les renseignements que le gouverneur en conseil peut déterminer par règlement et y indique...
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7.7(1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed...
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Sections 20(1) and 20(5) of the Regulations
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20(1) Il est interdit d'entrer ou de demeurer dans une zone réglementée à moins d'avoir en sa possession un laissez-passer remis pour cette zone et de se conformer à toutes les conditions de remise ou d'approbation du laissez-passer.
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20(1) No person shall enter or remain in a restricted area unless the person has in his possession a restricted area pass in respect of that restricted area and complies with all conditions of issuance or approval of the pass.
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| 20(5) La personne à qui un laissez-passer a été remis par l'exploitant de l'aérodrome ou sous son autorité doit le rendre:
a) soit à la personne qui le lui a remis, dans l'une des situations suivantes:
i) sur demande de cette personne
ii) au terme de son emploi à l'aérodrome ou de toute autre situation ayant donné lieu à la remise du laissez-passer
iii) en cas de violation de toute condition de remise du laissez-passer;
b) soit sur demande de l'exploitant de l'aérodrome.
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20(5) Every person who has been issued a restricted area pass by or under the authority of an aerodrome operator shall surrender the pass
(a) to the person who issued the pass
i) at the request of that person
ii) on termination of employment at the aerodrome or other circumstances giving rise to the issuance of the pass, or
iii) on the breach of any conditions of issuance of the pass; and
(b) to the aerodrome operator on his demand.
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[10] The issues in dispute are the following:
A. Did the Tribunal base its decision on an erroneous finding of fact that it made in a perverse or capricious manner in determining that the applicant did not hold a valid pass as of September 2, 1997, when he was intercepted by officer Gaudreau?
B. Did the Tribunal err in law in its interpretation of subsection 20(1) of the Regulations, to the effect that the word "pass" refers to a valid pass?
C. Did the Tribunal err in law in finding that the applicant contravened subsection 20(1) of the Regulations in light of the facts in this case?
[11] The applicant submits that the evidence in the case showed that he complied with the conditions for the issuance or application of the pass, although these are not defined. He argues that the Tribunal, in determining that subsection 20(1) of the Regulations required anyone entering or remaining in a restricted area to hold a valid pass, is not based on the evidence but rather on some new requirements that it allegedly added.
[12] The applicant also maintains that the green pass he held was valid until March 1998, and adds that there is no indication that the distribution of the new red passes invalidated the old green passes that were still in circulation. In fact, the applicant submits that the Department failed to give the system for establishing new passes a rigid implementation framework, that is, a firm date on which all passes would be invalidated.
[13] The respondent maintains that the applicable standard of review in this case lies somewhere between the tests for patent unreasonableness and correctness of the decision.
[14] The respondent submits that the Tribunal, both at first instance and on appeal, correctly held that the applicant was not the holder of a valid permit as of September 2, 1997. He says the applicant knew he had to have his green pass replaced, failing which he would be invoiced for a lost pass on April 21, 1997, and submits that the applicant did not report to the airport's security office until two days following the incident, on September 4, 1997, to turn in his green pass.
[15] The respondent maintains that the fact that the applicant held a green pass, on which was written "[Translation] expires: March 1998", does not indicate that the pass was still valid on September 2, 1997. Instead, he says, the airport operator has the discretionary authority under subsection 20(5) of the Regulations to demand that the pass be surrendered. Furthermore, Mr. Savard had already sent four notices to the applicant prior to the incident and, accordingly, he was aware of the changes and the steps he was supposed to take to comply therewith.
[16] The respondent submits that the Tribunal did not err in law in deciding that subsection 20(1) of the Regulations required anyone entering or remaining within a restricted area to hold a valid pass. It is implicit, he says, that this subsection refers solely to a valid pass, otherwise the result would be absurd. The respondent adds that under this provision the applicant's pass had to be in his possession when he was intercepted by officer Gaudreau.
[17] The applicant is asking the Court to quash the decision rendered by the Tribunal on March 12, 1999 and to order the respondent to repay the applicant all costs and disbursements he has had to incur in relation to this case.
[18] It seems to be clear law, in light of Baker v. Canada (Minister of Citizenship and Immigration, [1999] S.C.J. No. 39, that a discretionary decision such as the one provided for in subsection 7.7(1) of the Act, rendered by the Minister of Transport, is not reviewable by this Court unless it is unreasonable.
[19] The evidence that has been presented in this case does not appear to demonstrate that the Tribunal rendered a decision based on an erroneous finding of fact, made in a perverse or capricious manner, when it determined that the applicant did not hold a valid pass as of September 2, 1997.
[20] Under subsection 20(1) of the Regulations, no person shall enter or remain in a restricted area unless the person has in his possession a restricted area pass in respect of that restricted area and complies with all conditions of issuance or approval of the pass.
[21] Evidence was given that four letters were sent to the applicant. An initial notice was sent on September 12, 1996. A second notice, dated January 2, 1997, stipulated as follows:
[Translation] Please notify your personnel that we are giving them until February 1, 1997 to comply with the new regulation. Beyond that date, the green passes will be invalid and thus persons displaying these expired passes will be excluded from the restricted areas.
[22] A third notice was sent on January 14, 1997 and, ultimately, a fourth notice was sent on April 15, 1997. I wish to quote the second paragraph on page 2 of this last letter:
[Translation] It appears that you have not complied with these requests. We have asked the other 28 aerodrome operators who signed the agreement to seize all of the expired passes originating from Jean-Lesage international airport.
[23] Although the applicant submits that he does not recall receiving the notices in question, Ms. Pauline Gagnon, his administrative assistant, stated she had brought the content of these notices to Mr. Labbé's knowledge on at least two occasions.
[24] Subsection 20(5) of the Regulations clearly establishes that every person who has been issued a restricted area pass shall surrender the pass to the aerodrome operator on his demand. Thus, even if the system for establishing the new passes had not prescribed any final date on which the green passes would be invalid, it seems clear that the applicant had to surrender his old pass upon demand, thus as soon as the demand was made. In the case at bar, the evidence shows that the aerodrome operator made at least four requests to the pass holders over a period of eight months, through formal notices. The applicant surrendered his pass only on September 4, 1997, four and a half months after the final notice and two days after being intercepted by security officer Gaudreau.
[25] In light of these facts, it seems clear that the applicant failed to comply with subsection 20(5) of the Regulations and it could even be said that he has failed to comply with one of the statutory conditions for surrendering his pass that are prescribed in subsection 20(1) of the Regulations. Notwithstanding the fact that the applicant held a green pass bearing the expiry date "March 1998", I am satisfied that pursuant to the discretionary authority given to Mr. Savard under subsection 20(5) of the Regulations, he could alter the pass conditions.
[26] It is essential for the protection of passengers, crews and the entire aeronautical facility that effective surveillance and security measures be established and complied with by everyone. Under the Act, the Minister has appointed administrators in the aerodromes, giving them all of the necessary powers to impose the appropriate security measures.
[27] I am satisfied that the Civil Aviation Tribunal did not err in ruling as it did on March 12, 1999. Accordingly, the application is dismissed.
P. ROULEAU
J.
OTTAWA, Ontario
December 29, 1999
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE NO: T-654-99
STYLE: AURÈLE LABBÉ
v. MINISTER OF TRANSPORT
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: December 17, 1999
REASONS FOR ORDER OF ROULEAU J.
DATED: December 29, 1999
APPEARANCES:
Danielle Gourdeau for the applicant
Patrick Vézina for the respondent
SOLICITORS OF RECORD:
Thivierge Bradley Avocats
Québec, Quebec for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the respondent
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