Asselin v. Canada (Attorney General), docket T-721-99

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docket T-721-99

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Date: 20000225

Docket: T-721-99

Between:

GEORGES ASSELIN

Applicant

- and -

ATTORNEY GENERAL OF CANADA

(Minister of Transport)

Respondent

REASONS FOR ORDER

PINARD J.:

[1] Through his application for judicial review, the applicant is asking the Court to set aside a decision of the Appeal Panel of the Civil Aviation Tribunal (the Appeal Panel), rendered March 18, 1999, dismissing his appeal from a previous decision of a member of the same tribunal who had upheld the $250 fine imposed on him by the Minister of Transport for contravening subsection 801.01(2) of the Canadian Aviation Regulations, SOR/96-433.

[2] On April 23, 1997, the applicant held the position of ground controller in the Montréal-Dorval control tower. He was then charged, under section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A-2 (the Act) with having contravened subsection 801.01(2) of the Canadian Aviation Regulations (the Regulations):

[Translation] On or about April 23, 1997, at about 21:15 hours, local time, while you were occupying the position of ground controller in the Montréal-Dorval control tower, you authorized the pilot of flight USA 304 to cross runway 10 while flight AAQ 187 was authorized to land on the same runway, contrary to the Canadian Domestic Air Traffic Control Separation Standards, standard 821, chapter 1, par. 2.5(a).

[3] The fine imposed was not paid by the ascertained date, and the matter was sent to the Civil Aviation Tribunal, which, following a review hearing chaired by member Pierre Rivest, upheld the decision of the Minister of Transport and retained the $250 fine imposed on the applicant. The subsequent appeal of this decision to the Appeal Panel was dismissed, hence this judicial review proceeding.

The Facts

[4] The following facts, as stated by the Appeal Panel in its decision, are not disputed:

[Translation]

The evidence filed on the record reveals the following:

(1) A few moments before the offence, the runway in use for takeoffs and landings was 06 left, which was the responsibility of Mr. Frank Bisson, occupying that day the position of air controller at the Montréal-Dorval control tower. Runway 06 left intercepts runway 10/28 which, at the time of the sequence of events to come, was not being used for takeoffs and landings and was therefore under the responsibility of the ground controller, in this case the appellant.

(2) After the landing of flight USA 304 on runway 06 left, this flight was transferred to the appellant"s responsibility for ground traffic.

(3) When Mr. Bisson turned over responsibility for USA 304 to the appellant, Mr. Bisson received a request from the air traffic control unit (ATC unit) to allow a landing on runway 10. Meanwhile, the appellant authorized USA 304 to travel along the BRAVO traffic lane, cross runway 28 and communicate with the tarmac on another radio frequency; once the pilot confirmed that he had indeed received this authorization, the appellant sent him his regards and they signed off.

(4) Meanwhile, Mr. Bisson authorized flight AAQ 187 to land on runway 10 and a few minutes later he realized that a plane travelling on the ground was about to cross runway 10 heading south; this was USA 304 of course.

(5) An order was immediately given by Mr. Bisson to AAQ 187 to ascend again for a new landing.

Parties" submissions

[5] The applicant submits that the Appeal Panel erred in law in finding that he had contravened subsection 801.01(2) of the Regulations. He argues that the applicable standard of review in this instance is one that is situated between a "correct" decision and a "patently unreasonable" decision. He concludes that the application of this standard, owing to the error in law contained in the decision, means the decision must be set aside.

[6] The respondent, on the other hand, denies that the impugned decision is wrong in law and submits that in any event the applicable standard of review is that of a "patently unreasonable" decision, so there is no justification for this Court to intervene.

Analysis

[7] The relevant statutory provisions read as follows:

- Section 7.7 of the Act:

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,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

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 :

a) sous réserve des règlements d'application de l'alinéa 7.6(1)b), le montant qu'il détermine, conformément aux critères qu'il peut établir à cette fin, et qui doit être payé à titre d'amende pour la contravention lorsque la personne ne désire pas comparaître devant un conseiller pour présenter ses observations sur les faits reprochés;

b) la date limite, qui suit d'au moins trente jours celle de signification ou d'expédition de l'avis, et le lieu où le montant visé à l'alinéa a) doit être versé.

- Subsection 801.01(2) of the Regulations:

801.01 (2) No air traffic controller shall issue an air traffic control clearance or an air traffic control instruction except in accordance with the Canadian Domestic Air Traffic Control Separation Standards.

801.01 (2) Il est interdit au contrôleur de la circulation aérienne d'émettre une autorisation du contrôle de la circulation aérienne ou une instruction du contrôle de la circulation aérienne, à moins que celles-ci ne soient émises conformément aux Normes d'espacement du contrôle de la circulation aérienne de l'intérieur canadien.

- paragraph 2.5 of chapter 1 of standard 821 of the Canadian Domestic Air Traffic Control Separation Standards (the Separation Standards):

2.5 Taxiing aircraft shall be held until traffic using the runway has passed the point at which the aircraft is holding:

(a) at a taxi holding position, if one has been established;

(b) at least 200 feet from the edge of the runway, unless other holding positions are established by markings or signs; or

(c) at a sufficient distance from the edge of the runway to ensure that no hazard is created to arriving or departing aircraft, if it is not possible to comply with (a) or (b).

2.5 Les aéronefs en circulation au sol doivent être tenus à l'écart jusqu'à ce que le trafic qui utilise la piste ait franchi le point d'attente de l'aéronef :

a) à un point d'attente de circulation, si un de ces points a été établi;

b) à au moins 200 pieds du bord de la piste, à moins que d'autres points d'attente de circulation soient établis par des marques ou des panneaux indicateurs; ou

c) à une distance suffisante du bord de la piste pour avoir la certitude que les aéronefs à l'arrivée ou au départ ne courent aucun risque s'il n'est pas possible de respecter la condition stipulée en a) ou en b).

[8] In Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982, the Supreme Court of Canada held that the standard of judicial review applicable to an administrative tribunal should be determined using the pragmatic and functional approach, and that the determination of this standard is centred on the intention of the legislature that created the tribunal whose decision is being reviewed. At page 1004, Bastarache J. explains:

... More specifically, the reviewing court must ask: "[W]as the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board?" (Pasiechnyk v. Saskatchewan (Workers" Compensation Board), [1997] 2 S.C.R. 890, at para. 18, per Sopinka J.).

[9] At pages 1005 and 1006, the Supreme Court indicates the factors to be taken into account in determining the standard of review, dividing them into four categories based on a number of its decisions: (1) privative clauses; (2) expertise; (3) purpose of the act as a whole, and the provision in particular; and (4) the "nature of the problem": a question of law or fact?

[10] In the case at bar, using the pragmatic and functional approach discussed in Pushpanathan, supra, I must take into account the following factors:

(a) subsection 37(9) of the Act contains the following privative clause:

(9) A decision of the Tribunal on an appeal under this Act is final and binding on the parties to the appeal.

(9) La décision rendue en appel par le Tribunal est définitive.

Although this privative clause is not as broad worded as the one in section 101 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 that was considered by the Supreme Court of Canada in Canada (A.G.) v. PSAC, [1993] 1 S.C.R. 941, Parliament nevertheless intended that the decision concerned be final, having first provided that the imposition of a fine by the Minister of Transport is reviewable by a member of the Civil Aviation Tribunal, whose decision is appealable to an Appeal Panel of the same tribunal.

(b) the Appeal Panel is a highly specialized tribunal; subsection 29(2) of the Act requires that it be composed of members appointed on the basis of their knowledge and experience in aeronautics:

(2) The Governor in Council shall appoint as members of the Tribunal persons who have knowledge and experience in aeronautics.

(2) Les conseillers sont nommés en raison de leurs connaissances et de leur expérience en aéronautique.

(c) the purpose of the Act is clearly to regulate commercial air traffic safety in the interests of maximum protection of the public (see, in this regard, Aztec Aviation Consulting Ltd. v. Canada (February 26, 1990), T-3017-89, at page 3, and R. v. 264544 Alberta Ltd. et al., 65 A.R. 217, at page 219); furthermore, the Regulations are technical and specialized, the provision in question being clearly aimed at allowing safe movement of airplanes in order to protect the public; and

(d) the nature of the problem before the Appeal Panel was to determine a question of mixed law and fact, and the application of subsection 801.01(2) of the Regulations was to depend on its interpretation and take into account the particular factual context disclosed by the evidence.

[11] Taking into account, therefore, the existence of a privative clause, the expertise of the Appeal Panel, the safety of the public contemplated by the Act and the technical and specialized nature of the Regulations, I am of the view that a standard based on judicial deference is appropriate. However, given that the issue before the Appeal Panel involved not only a question of fact but a question of law pertaining to the interpretation and application of subsection 801.01(2) of the Regulations and par. 2.5 of chapter 1 of standard 821 of the Separation Standards, I believe, as my colleague Gibson J. held in Killen v. Canada (Minister of Transport) (June 8, 1999), T-2410-97, in regard to another decision of the same Appeal Panel, that the applicable standard of review is situated somewhere between correctness and patent unreasonableness, that is, it is the reasonableness simpliciter standard.

[12] According to the evidence, the applicant was charged with authorizing the pilot of flight USA 304 to cross runway 10 "while flight AAQ 187 was authorized to land on the same runway". Moreover, it is clearly established that when the applicant authorized the pilot of flight USA 304 to cross runway 10, flight AAQ 187 had not yet been authorized to land on that same runway. However, the record also indicates that when transferring responsibility over runway 10 to controller Bisson, and without indicating to him that he had himself previously authorized the pilot of flight USA 304 to cross that runway, the applicant learned that Mr. Bisson had already authorized flight AAQ 187 to land on runway 10. Since knowledge of this imminent landing was acquired by the applicant several minutes before the flight USA 304 plane would probably arrive at runway 10, the Appeal Panel criticized the applicant for failing to inform controller Bisson of the authorization granted the pilot of flight USA 304 and failing to cancel that authorization, when he could have done so in good time so as to keep the USA 304 plane away until the AAQ 187 plane had landed and cleared the holding position referred to in par. 2.5 of the Separation Standards. The Appeal Panel therefore considered that the applicant had contravened subsection 801.02(2) of the Regulations, because the evidence clearly indicated that he had thus authorized the USA 304 plane to cross an active landing runway contrary to the Separation Standards, which required that this plane be kept at a holding position away from traffic using that runway.

[13] In my opinion, taking into account the circumstances, and in particular the factual justification for the Appeal Panel"s criticism of the applicant, it was not unreasonable for this tribunal not to limit the application of subsection 801.01(2) of the Regulations to the precise time of the authorization given to the pilot of flight USA 304 and to extend its applicability to the entire period of time necessary for the execution of what had been authorized, that is, the period of time required for the flight USA 304 plane to reach runway 10. And it simply seems reasonable to me to apply a similar interpretation to the Regulations in question, to the effect that they contemplate an authorization that is given for as long as it may usefully be altered or cancelled, in order to prevent a violation of the prescribed separation standards. While I am not necessarily deciding that this is the "correct" interpretation to be given to the provision, the applicable standard of review in this case prevents me from intervening.

[14] Accordingly, the application for judicial review is dismissed, with costs.

OTTAWA, ONTARIO

February 25, 2000

Certified true translation

Martine Brunet, LL.B.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET NO: T-721-99

STYLE: Georges Asselin and Attorney General of Canada

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: February 2, 2000

REASONS FOR ORDER OF PINARD J.

DATED: February 25, 2000

APPEARANCES:

Sean T. McGee FOR THE APPLICANT

Jan Brongers FOR THE RESPONDENT

SOLICITORS OF RECORD:

Nelligan Power

Ottawa, Ontario FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

Ottawa, Ontario FOR THE RESPONDENT