Date: 20071220
Docket: T-693-07
Citation: 2007 FC 1346
Ottawa, Ontario, December 20,
2007
PRESENT: The Honourable Orville Frenette
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
and
PRISM
HELICOPTERS LIMITED
Respondent
and
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
brought by the applicant pursuant to s. 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7, as amended, respecting a decision rendered by the
Transportation Appeal Tribunal of Canada (the “Tribunal”), wherein it concluded
that it had jurisdiction to review a decision by the Minister of Transport to
cancel an exemption granted pursuant to s. 5.9(2) of the Aeronautics Act,
R.S., c. A-3, s. 1 (the “Act”).
[2]
The
jurisdiction of the Tribunal is limited to reviewing the Minister of
Transport’s decision to cancel, suspend, refuse to issue, review or amend a
Canadian aviation document (“CAD”).
[3]
The applicant contends that a s. 5.9(2) exemption
is not a Canadian aviation document (CAD) as defined by the Act, and therefore
falls outside of the Tribunal’s jurisdiction. The intervener, the Tribunal,
asserts that a s. 5.9(2) exemption is a CAD under the Act and thus a decision
to cancel or refuse to renew by the Minister is reviewable by the Tribunal. The
respondent, Prism Helicopters, has failed to appear and thus took no part in
the present application.
INTRODUCTION
[4]
Subsection 605.85(1) of the Canadian Aviation
Regulations (the Regulations) prohibits a pilot from taking-off in an
aircraft that has undergone maintenance unless an aircraft maintenance engineer
signs a maintenance release.
[5]
On November 9, 2005, the Minister exempted
Canadian air operators of certain aircraft types and their flight crew from
certain specific requirements of section 605.85 (1) of the Regulations (the
“exemption”). This exemption was made pursuant to section 5.9(2) of the Act.
[6]
On July 12, 2006, the respondent was advised
that the exemption would not be re-issued upon its expiry on May 1, 2007, and
that Canadian air operators would once again be required to obtain a
maintenance release from the aircraft maintenance engineer upon take-off of an
aircraft that had undergone maintenance. On February 2, 2007, the Minister
cancelled the exemption effective March 7, 2007.
[7]
The Respondent applied to the Tribunal for a
review of the Minister’s decision to cancel the exemption on October 2, 2006. On
October 23, 2006, the Tribunal requested representations from the parties as to
whether or not it had jurisdiction to undertake such a review.
THE TRIBUNAL’S
DECISION
[8]
In a decision
dated March 27, 2007, the Tribunal found that it had jurisdiction to conduct a
review of the Minister’s decision to cancel the exemption from s. 605.85(1) of
the Regulations.
[9]
First, the
Tribunal determined whether the exemption in question was a statutory
instrument pursuant to the Statutory Instruments Act, 1970-71-72, c. 38,
s. 1.
[10]
To be considered a statutory instrument, the
Tribunal was of the view that an exemption would have to fulfill the definition
of a statutory instrument set out in s.2 of the Statutory Instruments Act:
[…]
"statutory
instrument"
(a) means any
rule, order, regulation, ordinance, direction, form, tariff of costs or fees, letters
patent, commission, warrant, proclamation, by-law, resolution or other
instrument issued, made or established
i) in the
execution of a power conferred by or under an Act of Parliament, by or under
which that instrument is expressly authorized to be issued, made or established
otherwise than by the conferring on any person or body of powers or functions
in relation to a matter to which that instrument relates, or
(ii) by or
under the authority of the Governor in Council, otherwise than in the execution
of a power conferred by or under an Act of Parliament,
[…]
The Tribunal found
that a s.5.9(2) exemption did not meet the definition of a statutory
instrument.
[11]
In arriving at this conclusion, the Tribunal examined
the two types of exemptions set out in the Act. One exemption, described as an
“Exemption by Governor in Council” (s.5.9(1)), authorizes the Governor in
Council may make regulations exempting any person or aeronautical facility from
the application of any regulation made under Part I of the Act. The second
exemption, described as an “Exemption by the Minister” (s.5.9(2)), authorizes
the Minister to exempt any person or aeronautical facility from the application
of any regulation made under Part 1 of the Act. The Tribunal was of the view
that a 5.9(1) exemption by the Governor in Council was a statutory instrument,
while a s.5.9(2) exemption by the Minister was not.
[12]
Second, it was determined whether a s.5.9(2)
exemption fulfilled the definition of a CAD. In its analysis, the Tribunal
reviewed the purpose of the exemption:
[…] to permit Canadian
air operators and its flight crew members to perform tasks that are
identified in airworthiness directive FAA AD 2005-21-02 that are within the
flight crew member’s capacity to perform, but are not enumerated in the
elementary work listings set out in the Aircraft Equipment and Maintenance
Standards, without requiring a maintenance release.
[Emphasis added]
[13]
Based on the foregoing, the Tribunal held that
the exemption was an accreditation or a permit that, on complying with the
conditions and requirements therein, gave to Prism Helicopters a privilege of a
waiver from compliance with section 605.85(1) of the Regulations.
LEGISLATIVE
CONTEXT
[14]
The paramount requirements and objectives of the
Act include promoting the safety and security of air travel in Aztec
Aviation Consulting Ltd. v. Canada, [1990] F.C.J. No. 154 (QL); Swanson
Estate v. Canada (F.C.A.), [1992] 1 F.C. 408, [1991] F.C.J. No. 452 (QL).
[15]
Section 2.(2) of the Transportation Appeal
Tribunal of Canada Act (the “TATC Act”) grants the Tribunal jurisdiction
“in respect of reviews and appeals as expressly provided for under the Aeronautics
Act, the Canada Shipping Act, 2001, the Marine Transportation Security
Act, the Railway Safety Act and any other federal Act regarding
transportation.” Further, pursuant to s. 7.1(3) of the Act, the holder of a CAD
who has been affected by a Minister’s decision to suspend cancel or refuse to
renew the document may apply to the Tribunal to have the Minister’s decision
reviewed.
[16]
With respect to CADs specifically, the Minister
is authorized by section 7.1(1) of the Act to “suspend, cancel or refuse to
renew a Canadian aviation document” [CAD] on the grounds that the holder is
incompetent, has failed to meet the necessary qualifications or fulfilled the
conditions required for its issuance, or on public interest grounds.
[17]
A CAD is defined in s. 3(1) of the Act in the
following manner:
“Canadian
aviation document" means, subject to subsection (3), any licence, permit,
accreditation, certificate or other document issued by the Minister under Part
I to or with respect to any person or in respect of any aeronautical product,
aerodrome, facility or service;
Furthermore, s.
6.6 adds to the definition by indicating that a CAD includes any privilege
accorded by a CAD.
[18]
However, certain documents are expressly
excluded from belonging to the class of CADs in s. 3(3), such as:
(a) a security
clearance;
(b) a
restricted area pass that is issued by the Minister in respect of an aerodrome
that the Minister operates; and
(c) a Canadian
aviation document specified in an aviation security regulation for the purpose
of this subsection.
Thus, the Act establishes the contours of
what types of documents may constitute CADs.
ISSUES
[19]
This application raises the following issue:
1.
Does the Tribunal have jurisdiction to review
the Minister’s decision to cancel an exemption made pursuant to subsection
5.9(2) of the Act?
THE STANDARD OF
REVIEW
[20]
The applicant, relying on previous jurisprudence
of this Court (Air Nanavut Ltd. v. Canada (Minister of Transport), [2001] 1 F.C.
138; Canada (Attorney
General) v. Woods, [2002] F.C.J. No. 1267), submits
that the appropriate standard of review is that of correctness.
[21]
The intervener, while not asserting what it
believes to be the proper standard of review, contends that “the applicable
standard of review for a decision of the Tribunal will not automatically be one
of correctness, even in those cases where the nature of the determination is
related to the jurisdiction”.
[22]
I agree with the intervener that the standard of
review is not to be applied automatically. In the recent Supreme Court case of ATCO
Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), [2006] 1
S.C.R. 140, [2006] S.C.J. No. 4 (QL), at para. 23, Bastarache J. held that:
In the case at
bar, one should avoid a hasty characterizing of the issue as “jurisdictional”
and subsequently be tempted to skip the pragmatic and functional analysis. A
complete examination of the factors is required.
[23]
However, based on the pragmatic and functional
approach that follows, I conclude that the applicable standard of review is
that of correctness.
·
The presence or absence of a privative
clause. This factor focuses generally on the
statutory mechanism of review. (Dr. Q v. College of Physicians and
Surgeons [2003] 1 S.C.R. 226, at para. 27). Section 7.2(1)(a) of the Act
provides that a person affected by a determination of the Tribunal may appeal
the determination to an appeal panel in the Tribunal. Section 7.2(3)(a) further
provides that the appeal panel of the Tribunal may either dismiss the appeal or
refer the matter back to the Minister for reconsideration. The Act is silent
with respect to the availability of judicial review; however a statute’s silence
on this point is a neutral factor (Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 30).
Further, I am cognisant of MacKay J.’s assertion in Stewart Lake
Airways Ltd. v. Canada (Minister of Transport), [1995] F.C.J.
No. 358 (QL) at para. 16, cited by the intervener, “that judicial review of CAT
“Civil Aviation Tribunal”, replaced by the Transportation Appeal Tribunal of
Canada] decisions should ordinarily not be undertaken except with regard to
final decisions of the tribunal, unless there be extraordinary circumstances
that would warrant intervention.” Accordingly, I conclude that this factor
suggests that some deference is to be accorded to the Tribunal.
·
Relative expertise. The analysis under this heading “has three dimensions: the court
must characterize the expertise of the tribunal in question; it must consider
its own expertise relative to that of the tribunal; and it must identify the
nature of the specific issue before the administrative decision-maker relative
to this expertise” (Pushpanathan, supra, at para 33).
In furtherance of its argument, the intervener refers to Seprotech
Systems Inc. v. Peacock Inc., [2003] FCA 71, [2003] F.C.J. No. 205 (QL), at
para. 18, wherein Evans J.A. held that “[s]pecialist administrative tribunals’
expertise is particularly relevant for resolving ambiguities and filling gaps
in the text of statutes and other documents that they are required to
interpret.” While it is true, that the Tribunal is a specialized body which
possesses a high degree of institutional expertise in its field, the present
question is one of pure law and general statutory interpretation, explicitly
recognized by Evans J.A. in the same case as exceptions to the deferential
approach usually taken. Accordingly, I conclude that this factor militates in
favour of no deference.
·
The Purpose of the Statute. The Tribunal performs an adjudicative function and seeks to resolve
disputes or determine rights between two parties. I do not see a balancing of
multiple interests as being a primary function of the Tribunal in the
fulfillment of its mandate. Thus, no deference is suggested by this factor.
·
The nature of the problem. As indicated above, the nature of the present problem is one of
pure law going to jurisdiction. Accordingly, no deference is merited.
[24]
Case
law reviewing a tribunal in aviation matters, has applied the standard of
correctness, see Canada (Attorney General) v. Woods, 2002 FCT
928, [2002] F.C.J. No. 1267, Air Nunavut Ltd. v. Canada (Minister of
Transport) (T.D.), [2000] F.C.J. No. 1115, [2001] 1 F.C. 138.
[25]
Based on the foregoing, I conclude that the
applicable standard of review is that of correctness.
THE POWERS AND
FUNCTIONS OF THE TRANSPORTATION APPEAL TRIBUNAL OF CANADA
[26]
The
Transportation Appeal Tribunal was given broad powers by section 24 of the Transportation
Appeal Tribunal Act, S.C. 2001, c.29.
24. Wherever, in any Act
of Parliament, in any instrument made under an Act of Parliament or in any
contract, lease, licence or other document, a power, duty or function is vested
in or is exercisable by the former Tribunal, the power, duty or function is
vested in or is exercisable by the new Tribunal.
ANALYSIS
[27]
The crux of the matter before this Court
involves determining whether or not an “exemption” granted by the Minister is a
CAD as defined by the Act. If a s.5.9(2) exemption is a CAD, the Tribunal’s
decision is correct and must be allowed to stand. If it is not a CAD, the
interference of this Court is warranted.
[28]
This Court has pronounced on previous occasions
whether certain documents constituted CADs.
[29]
In Canada v. Cooper, [1995] F.C.J. No.
1653 (QL), Gibson J. held that letters from the Minister to the applicants
which delegated to them the authority to act as Examiners constituted accreditations
or other documents akin to accreditations, the cancellation of which could be
reviewed by the Tribunal. Justice Gibson wrote at para. 5:
“Canadian
aviation document”, is very broadly defined by the Act. It includes not only
any of the specified documents but also any “other document”, issued by the
Minister under Part 1 of the Aeronautics Act. Clearly the delegations of
authority issued to the Applicants in March and May of 1994 were contained in
written documents, namely, letters containing those delegations.
[30]
Further, at para. 11, Gibson J. asserted that “[i]t is of no
consequence that the Minister of Transport may not have intended that the
letters constitute ‘Canadian aviation documents”.
[31]
In Canada (Minister of Transport) v. Beingessner,
[1996] F.C.J. No. 787 (QL), Rothstein J. held that an Examiner’s decision to
fail a pilot on a Pilot Proficiency Check fell within the Tribunal’s
jurisdiction. In that case, while no license or permit was suspended, the
effect of the decision to fail the pilot was a prohibition from being assigned
to fly A-320 aircraft. Thus by operation of law, a privilege was lost that had
otherwise been accorded by an endorsement on the pilots’ licences. Thus, a
privilege granted by a CAD was affected and pursuant to s.6.6 the decision was
reviewable.
[32]
The applicant attempts to distinguish the
previous case law from the present instance by asserting that those cases
involved essentially administrative decisions, while an exemption issued
pursuant to s.5.9 (2) of the Act is made according to the regulatory powers of
the Minister.
[33]
In support of its contention, the applicant
cites s.6.2(1) of the Act which states that:
The following
are exempt from the application of sections 3, 5 and 11 of the Statutory
Instruments Act:
[…]
(d) an exemption
made under subsection 5.9(2); […]
The applicant
asserts that this provision has the effect of identifying an exemption as a
statutory instrument. As an exemption made under subsection 5.9(2) of the Act
is explicitly removed from the application s. 3, 5, and 11 of the Statutory
Instruments Act, then it follows that the exemption must be considered as
being otherwise a statutory instrument. However, I do not agree.
[34]
I interpret s.6.2 (1) of the Act as indicating
that s.5.9(2) exemptions are not to be considered statutory instruments. The
wording of s.6.2(1) has the effect of specifically removing a s.5.9(2)
exemption from the application of the Statutory Instruments Act.
[35]
Further, I find the case of Marine Research
Inc. v. Canada
(Attorney General), [2006] FCA 425, [2006] F.C.J.
No. 1946 (QL), wherein the Federal Court of Appeal dealt with the difference
between an administrative and a legislative act particularly instructive. The
Court cited to an excerpt from S.A. de Smith, Judicial Review of
Administrative Action, 4th ed., 1980, which states:
A distinction
often made between legislative and administrative acts is that between the
general and the particular. A legislative act is the creation and
promulgation of a general rule of conduct without reference to particular
cases; an administrative act cannot be exactly defined, but includes the
adoption of a policy, the making and issue of a specific direction, and the
application of a general rule to a particular case in accordance with the requirements
of policy or expediency or administrative practice.
I am of the view
that the s.5.9(2) exemption in question is akin to the adoption of a policy in
accordance with expediency or administrative practice. This exemption was
directed to Canadian air operators and flight crew members and relates
specifically to airworthiness directive FAA AD 2005-21-02.
[36]
Moreover, in the case of Liberty Home
Products v. Canada (Minister of National Revenue), [1990]
F.C.J. No. 555, at para. 3, the Federal Court of Appeal held that “for an
instrument to be statutory within the meaning of that definition [of the Statutory
Instruments Act], it must be made pursuant to a legislative provision
expressly providing that the power it confers must be exercised by the making of
a specific type of instrument.”
[37]
Exemptions granted under s. 5.9(2) do not
provide that the Minister shall issue an exemption by means of a specific type
of instrument. This is to be contrasted with s.5.9(1) which states that the
Governor in Council may “make regulations” exempting […] from the application
of any regulation or order made under this Part” and thereby establishes a
specific form by which exemptions are to be issued.
[38]
In light of the foregoing, I find that an
exemption issued pursuant to s. 5.9(2) is not a statutory instrument.
[39]
In determining whether a s. 5.9(2) exemption is
a “permit” or “accreditation”, I find it useful to refer to the definitions of
those term used by the Tribunal. In its reasons, the Tribunal cited an earlier
decision where “accreditation” and “permit” were defined:
The Oxford dictionary of current English,
second edition, does not define “accreditation”, but defines “accredited” as
officially recognized” or “generally accepted”. Webster’s thesaurus of the
English language lists a number of synonyms fro “accredited”, including
“qualified”, “licensed”, “empowered” and “certified”. “Permit” means to “give
permission” or “consent to”, “authorize” or “a document giving permission to
act.” (Aurora Helicopters Ltd. v. Canada (Minister of Transport), [2005] TATC
file no. W-3011-98, [2005] C.T.A.T.D. No. 8 (QL)).
[40]
I am of the view that given the fact that the
contours of what constitutes a CAD are explicitly set out in the Act, including
those documents which are expressly excluded from this category, the
determination of what constitutes a permit or accreditation should be carried
out in a broad manner. Consistent with this broad interpretative approach, the
determination of what constitutes a CAD involves consideration of the particular
effect of the document in question. In the present case, the effect of
the exemption was to grant the respondent a permit to perform certain tasks
that were prohibited prior to its issuance. This permit granted a privilege to
the respondent in the form of a waiver from compliance with certain regulatory
requirements. Thus, I see no error in the Tribunal’s determination.
[41]
As I find that the 5.9(2) exemption in issue is
a permit or accreditation, there is no need to examine extensively the
applicant’s further submission that exemptions are excluded from the definition
of CADs based on the ejusdem generis principle.
THE
APPLICABILITY OF THE EJUSDEM GENERIS RULE OF INTEPRETATION OF STATUTES
[42]
The applicant invokes the ejusdem generis
rule of interpretation of statutes to argue that the definition of a CAD is
found in the Act and must be restricted to the class of documents enumerated in
section 3(1) of the Act.
[43]
This rule was well expressed by Justice Turgeon
in the case Renault v. Bell Asbestos Mines Ltd., [1980] C.A. 370, 372 in
the Quebec Court of Appeal as follows:
[…] means that
generic or collective term that complete on enumeration of terms should be
restricted to the same generic or collective term even though the generic or
broader term may ordinarily have a broader meaning…
[44]
This rule must be read with another rule of statutory
interpretation, set out by E.A. Driedger in Construction of Statutes (2nd
ed. 1983) at page 87:
Today there is
only one principle approach, namely, the words of an Act are to be reach in
their entire context and in their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act, and the intention of parliament.
[45]
The answer to the applicant’s query is found in
the reasoning of Justice Gibson, in the Cooper case, supra where he
wrote at para. 9:
Since I am satisfied that the letters are
accreditations or akin to accreditations, no question arises that the letters
might be excluded from the definition by application of the limited class rule
or ejusdem generis.
[46]
In my opinion, the same reasoning applies to exemption
documents which fall in the classification of section 3(1) of the Act.
Therefore, the Applicant’s argument fails on this point.
CONCLUSION
[47]
Therefore, for the foregoing
reasons, the application for judicial review
of the Tribunal’s decision will be dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review of the Tribunal’s decision is dismissed.
"Orville
Frenette"
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