Date: 20080505
Docket: 08-A-11
Citation: 2008 FCA 168
Present: PELLETIER
J.A.
BETWEEN:
AIR CANADA, JAZZ AIR LP, as represented
by its general partner, Jazz Air
Holdings GP Inc. carrying on
business as Air Canada Jazz and WEST JET
Moving Parties
and
CANADIAN TRANSPORTATION AGENCY and
THE ESTATE OF ERIC NORMAN, JOANNE
NEUBAUER and
the COUNCIL OF CANADIANS WITH
DISABILITIES
Responding Parties
REASONS FOR ORDER
PELLETIER J.A.
[1]
In
response to the motion by the applicants (Air Canada, Jazz Air LP and West Jet) for leave to
appeal from the Canadian Transportation Agency's decision No. 6-AT-A-2008 (the One
Person-One Fare decision (1P1F)), the Agency has filed a comprehensive
Memorandum of Fact and Law (Memorandum). In its Memorandum, the Agency
acknowledges that the applicants have not asserted any question of jurisdiction.
The Agency takes the position that its statutory right to be heard on the
appeal (see subsection 41(4) of the Canada Transportation Act, S.C. 1996,
c. 10 (the Act)) allows it to participate in the debate beyond simply
addressing questions of jurisdiction and of its administrative procedures.
[2]
The
applicants have moved to strike the Agency's Memorandum on the ground that its
Memorandum amounts to a defence of its decision on the merits and is improper.
[3]
The Agency
relies on the Supreme Court of Canada's decision in CAIMAW v. Paccar of
Canada Ltd., [1989] 2 S.C.R. 983 (CAIMAW) as authority for the
proposition that an administrative tribunal can speak in defence of its own
decision where it is argued that the decision is patently unreasonable:
… In my view, the Industrial Relations Council has standing before this Court to
make submissions not only explaining the record before the Court, but also to
show that it had jurisdiction to embark upon the inquiry and that it has not
lost that jurisdiction through a patently unreasonable interpretation of its
powers.
[CAIMAW, at para. 35.]
[4]
The Court
supported its reasoning by reference to B.C.G.E.U. v. British Columbia (Industrial Relations
Council) (B.C.C.A.),
26 B.C.L.R. (2d) 145, where the British Columbia Court of Appeal held that at
page 153:
… But when the issue becomes, as it does in relation to the patently
unreasonable test, whether the decision was reasonable, there is a powerful
policy reason in favour of permitting the tribunal to make submissions. That
is, the tribunal is in the best position to draw the attention of the court to
those considerations, rooted in the specialized jurisdiction or expertise of
the tribunal, which may render reasonable what would otherwise appear
unreasonable to someone not versed in the intricacies of the specialized area.
In some cases, the parties to the dispute may not adequately place those
considerations before the court, either because the parties do not perceive
them or do not regard it as being in their interest to stress them.
[5]
To the extent that this analysis is rooted in the idea that
a patently unreasonable decision is reviewable because it is made without
jurisdiction, it has been overtaken by events. Reviewability and jurisdiction
have been decoupled in the sense while a decision based upon a patently unreasonable
error is reviewable, it is not reviewable because it necessarily results in the
loss of the jurisdiction.
[6]
Reviewability of a decision no longer depends upon an
allegation of excess of jurisdiction: see paragraph 28 of Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, where
the following appears:
By virtue of
the rule of law principle, all exercises of public authority must find their
source in law. All decision-making powers have legal limits, derived from the
enabling statute itself, the common or civil law or the Constitution. Judicial
review is the means by which the courts supervise those who exercise statutory
powers, to ensure that they do not overstep their legal authority. The function
of judicial review is therefore to ensure the legality, the reasonableness and
the fairness of the administrative process and its outcomes.
[7]
To that extent, the fact that an allegation of patent
unreasonableness is made does not (and has not for some time) automatically
raise an issue of jurisdiction. As a result, CAIMAW must be applied with
care. In this case, it is admitted that no issue of jurisdiction, in the sense
of vires, is raised so that there is no need for the Tribunal to show
that, despite the allegation of patent unreasonableness, its decision was made
within jurisdiction.
[8]
As for the policy ground advanced by the British Columbia
Court of Appeal, namely that a tribunal's explanation may make reasonable that
which would appear unreasonable to one not blessed with the tribunal's
expertise, it is not apparent that any such explanation is offered in the
Agency's Memorandum. The Tribunal reviews each of the applicants' arguments, refers
to the paragraphs in its decision where the issue was dealt with, and concludes,
in most cases, that its decision was based on its assessment of the evidence
and was not perverse, capricious or made without regard for the evidence: see
paragraphs 25, 33, 42 and 47. On other issues, the Tribunal argued the merits
of the objection: "the issues raised by the Moving Parties do not reveal
any serious point to urge nor any question of law that is fairly arguable"
(paragraph 49), "the Agency clearly applied the correct test to this and
other related issues when it stated its conclusion on undue hardship:…"
(paragraph 52), "the Agency respectfully submits that it considered this
argument and the evidence in support of it and determined that it was unable to
asses the impact of this …[followed by a reference to the relevant passage of
the decision]" (paragraph 57).
[9]
In my view, the Agency's Memorandum does not raise any
argument that was not made by the respondents, or that could not have been made
by them.
[10]
Even if the Agency had demonstrated through the exercise of
its expertise that something which appeared unreasonable was in fact
reasonable, what could a reviewing court make of such submissions? In Dunsmuir,
the majority of the Supreme Court described the contents of the concept of
reasonableness:
… A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[Dunsmuir,
at paragraph 47.]
[11]
To the extent that CAIMAW suggests that a tribunal can
remedy any defects in the justification, transparency and intelligibility of
its decision by means of a Memorandum of Argument in support of the decision,
it must be taken as having been overtaken by the development of the law. If the
reasonableness of a decision is a function of its transparency and
intelligibility, in other words, of the quality of the reasons given to support
it, then it seems to me that a decision which can only be supported by facts or
arguments which are not found in the reasons themselves is unreasonable. To
hold otherwise is to give a tribunal an opportunity to file supplementary
reasons in the guise of a Memorandum of Fact and Law every time one of its
decisions is challenged.
[12]
On balance, I am not satisfied that the Memorandum filed by
the Agency comes within the principles enunciated in CAIMAW. It is
simply a restatement of the Tribunal's position on the merits of the case. This
creates an air of partisanship in a case where one of the possible outcomes is
an order that all or part of the decision be returned to the Agency for
consideration in accordance with directions given by this Court. The Agency
must preserve its impartiality and the appearance of impartiality,
notwithstanding the standing which subsection 40(4) affords it. It cannot do so
if it adopts an adversial position with respect to the applicants.
[13]
As a result, there will be an order that the Agency's
Memorandum and supporting material are not to be considered in the disposition
of the application for leave to appeal. Given that the Agency has admitted that
the appeal raises no issue of jurisdiction, properly speaking, no useful
purpose will be served by allowing it to file a further Memorandum.
"J.D.
Denis Pelletier"
Email this Content