indicating the Minister had decided
to suspend Skyward’s AOC. The Notice listed a number of conditions for
reinstatement and indicated that the effective date of the suspension was
October 25, 2000.
[2]
Although Skyward disagreed with the grounds provided in the Notice, it
chose to comply with the conditions for reinstatement, rather than lose its AOC
and, consequently, its ability to operate its business. As a result, the
Minister rescinded the Notice on October 23, 2000, before it was to come into
effect.
[3]
Skyward continued to object to the conditions imposed by the Minister
and requested that the Civil Aviation Tribunal (Tribunal) review the action of
the Minister. In other words, Skyward sought a review of the alleged
deficiencies found by the Minister that formed the basis of the Notice. In a
decision dated January 18, 2002, the Tribunal determined that it did not have
jurisdiction to review the grounds for suspension since the Notice had been
rescinded prior to its coming into force. Skyward now seeks judicial review of the
Tribunal’s decision.
II. Issues
[4]
The issue raised by this judicial review is straightforward: did the
Tribunal err in concluding that it had no jurisdiction to conduct a review of the
Notice of Suspension?
[5]
As a preliminary matter, the Minister contends that Skyward’s application
for judicial review is moot.
[6]
For the reasons that are set out herein, I conclude that: (a) the
application is not moot; and (b) the application should succeed.
III. Statutory
Framework
[7]
In addressing the merits of this application, it is helpful to canvass
the statutory scheme relating to the Tribunal, as it existed at the time of the
Notice and subsequent review by the Tribunal. I begin with the restriction set
out in s. 57 of the Canada Transportation Act, S.C. 1996, c. 10,
that no person may operate an air service unless that person holds a “Canadian
aviation document”. A “Canadian aviation document” is defined in s. 3(1) of the
Aeronautics Act, R.S.C. 1985, c. A-2 as am. by R.S.C. 1985, c. 33
(1st Supp.), s. 1; S.C. 1992, c. 1, 4 (the Act) as “any
licence, permit, accreditation, certificate or other document issued by
the Minister”.
[8]
Specifically with respect to an air transport service, s. 700.02(1) of the
Canadian Aviation Regulations, S.O.R./96-433, provides that “no person
shall operate an air transport service unless the person holds and complies
with the provisions of an air operator certificate that authorizes the person
to operate that service”. An AOC may be issued subject to certain conditions.
[9]
Where the Minister decides to suspend or cancel a Canadian aviation
document on the ground that an operator “ceases . . . to meet or comply with
the conditions subject to which the [Canadian aviation document] was issued”,
he must notify the operator (Act, s. 7.1(b)). The notice requirement is met by
the service of a Notice of Suspension that complies with the regulations and
other requirements set out in s. 7.1(2). Of specific relevance to this case, the
Notice must indicate “the conditions subject to which the document was issued
that the Minister believes are no longer being met or complied with” (Act, s.
7.1(2)(a)(ii)). Further, the Notice must state the date, “being thirty days
after the notice is served or sent” before which a request for a review of the
decision of the Minister is to be filed.
[10]
The rights of an operator who wishes to have the decision of the
Minister reviewed by the Tribunal and the review procedures to be followed are
set out in s. 7.1(3) to (9) of the Act. The subsections of s. 7.1 most relevant
to this Application are as follows:
|
7.1 (3)
Where the holder of a Canadian aviation document or the owner or operator of
any aircraft, airport or other facility in respect of which a Canadian
aviation document is issued who is affected by a decision of the Minister
referred to in subsection (1) wishes to have the decision reviewed, he shall,
on or before the date that is thirty days after the notice is served on or
sent to him under that subsection or within such further time as the
Tribunal, on application by the holder, owner or operator, may allow, in
writing file with the Tribunal at the address set out in the notice a request
for a review of the decision.
(8) On a
review under this section of a decision of the Minister to suspend, cancel or
refuse to renew a Canadian aviation document, the member of the Tribunal
conducting the review may determine the matter by confirming the suspension,
cancellation or refusal to renew or by referring the matter back to the
Minister for reconsideration.
(9) Where a
matter of suspension or cancellation of or refusal to renew a Canadian
aviation document is referred back to the Minister for reconsideration under
subsection (8),
(a) the
suspension or cancellation shall cease to be of any force or effect until the
Minister decides otherwise as a consequence of the reconsideration; or
(b) the Minister shall, as
soon as practicable after the referral of the matter back to the Minister if
the document concerned has expired, renew the document that he had refused to
renew unless the Minister decides not to renew the document as a consequence
of the reconsideration
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7.1 (3) L’intéressé qui désire
faire réviser la décision du ministre dépose une requête à cet effet auprès
du Tribunal à l’adresse et pour la date limite indiquées dans l’avis, ou dans
le délai supérieur éventuellement accordé à sa demande par le Tribunal.
(8) Le conseiller peut
confirmer la mesure ou renvoyer le dossier au ministre pour réexamen.
(9) En cas de renvoi du dossier
au ministre, la mesure cesse d’avoir effet, sauf décision contraire du
ministre, après réexamen; celui-ci est tenu, si le document d’aviation
canadien visé est expiré, de le renouveler dès que possible après le renvoi,
sauf décision contraire de sa part.
|
IV. Issue #1: Should the application be
dismissed for mootness?
[11]
A number of other events have transpired since Skyward’s application for
judicial review was filed. Since these facts are relevant to the issue of
mootness, I summarize them briefly in the following paragraphs. Of particular
significance are the following:
- In January
and February 2005 Skyward was served with two Notices of Suspension
pursuant to the Aeronautics Act, R.S.C. 1985, c. A-2 (the Current
Act); Skyward is in the process of seeking a review of those Notices by
the Transportation Appeal Tribunal of Canada (TATC), the successor to the
Tribunal.
- In April 2005
Skyward was placed into receivership and many of its assets, including its
aircraft, were sold;
- On July 6,
2005, Skyward’s Air Operator Certificate was cancelled on the basis that
it no longer operated a commercial air service;
- On June 2,
2006, Skyward was discharged from receivership; and
- On May 19,
2006, Skyward’s name was changed to 2060582 Manitoba Ltd. (for ease of
use, I will continue to refer to the corporation as Skyward).
[12]
The parties are in agreement that the test for mootness is that set out
by the Supreme Court of Canada in Borowski v. Canada (Attorney General),
[1989] 1 S.C.R. 342. Briefly stated, to find an issue to be moot, the Court
must first determine whether there is a live controversy. Secondly, even where
the issue may not be live, the Court should consider whether it should exercise
its discretion and hear the case in any event.
[13]
I turn to the first part of the test. Is there a live controversy in the
case at bar? The Minister submits that there is not, and argues that any
decision of the Court with respect to Skyward’s judicial review can no longer
have a practical effect on the parties. In particular, the Minister points out
that Skyward has no aircraft and no longer operates as an air carrier. Notwithstanding
the Minister’s submissions, I am satisfied that there is a live controversy in
the case at bar.
[14]
First, I find that the Minister’s characterization of Skyward as “no
longer operat[ing] as an air carrier” to be somewhat of a simplification. While
it is clear from a review of the record that Skyward went into receivership and
no longer maintains an AOC, it is equally clear that Skyward is a subsisting
corporation (under a different name) and still in existence as of January 2008.
Accordingly, Skyward maintains some status for which it may pursue its
application for judicial review.
[15]
Second, I agree with Skyward’s assertions that there continues to be a
live issue between the parties with respect to Skyward’s application for
judicial review. Skyward has always maintained that the Minister erred in
issuing the Notice. Although subsequent events have led Skyward to believe that
the Notice forms part of a pattern of misbehaviour, those events have not
changed Skyward’s original position that the alleged deficiencies in its
operations as outlined in the Notice were wrong. The Minister, for its part,
states that even if Skyward were successful on its application “on a…referral
back to…the Transportation Appeal Tribunal of Canada…no decision could have any
meaningful impact on the airline”.
[16]
I disagree. Upon the coming into force of the Transportation Appeal
Tribunal of Canada Act, 2001, c. 29 (TATC Act), the Tribunal was succeeded
by the Transportation Appeal Tribunal of Canada (TATC). Section 32(1) of the
TATC Act gives the TATC, as the successor to the Tribunal, the
jurisdiction to continue proceedings begun under the Tribunal. Assuming this
Court finds that the Tribunal erred in ruling that it did not have
jurisdiction, it is plausible that the TATC would find that the Minister erred
in issuing the Notice and refer the matter back to the Minister for
reconsideration pursuant to s. 7(8)-(9) of the Act. Should such a series of
events transpire, it would not only vindicate Skyward’s original assertion of
no-wrongdoing but assist Skyward in pursuing a civil remedy against the
Minister. Indeed, for Skyward to seek any civil remedy against the Minister for
mistreatment based on the Notice, it is arguable that it is required to seek
judicial review first (Canada v. Grenier, 2005 FCA 348).
[17]
In sum, I am satisfied that the issue before the Court is not moot and
that the Court should proceed to consider the merits of Skyward’s application
for judicial review.
V. Issue
#2: Did the Tribunal err in concluding that it had no jurisdiction?
[18]
Skyward submits that the Tribunal erred in its determination that it had
no jurisdiction to review the Notice. Before
this Court, the Minister takes no position on this issue. However, before the
Tribunal, the Minister’s final position was in support of the Tribunal having
jurisdiction. In spite of submissions advocating jurisdiction by both parties
before the Tribunal, the Tribunal took a contrary view of the relevant
provisions of the Act. The basis of its decision was that s. 7.1 of the Act did
not apply to give a right of review where the Notice had been rescinded.
A. Standard
of Review
[19]
The parties are in agreement that the question of whether or not the
Tribunal erred in finding it did not have jurisdiction to review the Notice is
a question of pure law or statutory interpretation which is subject to the
correctness standard of review (see Canada (Attorney General) v. Woods,
2002 FCT 928 at para. 10; Air Nunavut Ltd. v. Canada (Minister of Transport),
[2001] 1 F.C. 138 at para. 31 (T.D.)).
[20]
This judicial review application turns on the meaning of s. 7.1 of the
Act. I agree with the parties that this question should be reviewed on a
standard of correctness.
B. Analysis
[21]
The proper approach to statutory interpretation was set out by the
Supreme Court in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at
40 and 41 :
Although much has been written
about the interpretation of legislation ..., Elmer Driedger in Construction of
Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to
rely. He recognizes that statutory interpretation cannot be founded on the
wording of the legislation alone. At p. 87 he states:
Today there is only one
principle or approach, namely, the words of an Act are to be read 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.
[22]
Guided by this framework, my task cannot be limited
to attempting to interpret the individual words or phrases used in the relevant
provision; rather, I must have regard to the context in which the words are
placed, the object of the Act and the intention of Parliament.
[23]
These particular provisions have not been the subject of
any jurisprudence.
(1) The
Entire Context
[24]
One of the key arguments of Skyward is that the restrictive
interpretation of the Tribunal’s jurisdiction results in a situation where it
is never able to review the decision of the Minister that Skyward had failed to
comply with its AOC conditions. This argument relates to the “entire context”
in which the legislative provisions must be examined. Integral to this analysis
is the nature of the decision by the Minister. A review of the reasons provided
by the Tribunal demonstrates that the Tribunal considered that there was only
one decision – the decision to suspend. However, when exercising its authority
under the Act, the Minister’s decision to suspend is, in fact, more complex.
The first decision made by the Minister was the determination that Skyward’s
operations did not comply with its AOC. The second decision was that the
penalty or sanction to be imposed was suspension of Skyward’s AOC. In addition,
the Minister determined that Skyward’s suspension would not immediately come
into force.
[25]
The importance of the nature of this multi-part decision can be seen when
a holder of an AOC receives a Notice. In this situation, the Minister will have
determined that an operator has breached one or more conditions of its AOC and
that the sanction to be imposed is a suspension. On the basis of this
two-pronged decision, the operator will lose its AOC unless it: (a) rectifies the
alleged breach(es) to the satisfaction of the Minister, prior to the time when
the suspension is to come into effect; or, (b) successfully applies to the
Tribunal for a review of the Notice.
[26]
It is obvious that a review of the Notice would entail a full review of
the reasonableness of all of the Minister’s findings. The Tribunal’s
jurisdiction would be exercised on two fronts, by reviewing and determining
whether the alleged contravention of the AOC took place and by reviewing the
appropriateness of the sanction (suspension) imposed by the Minister. However,
in the case before me, it was not possible for the Tribunal’s review to be
completed in the time period before the suspension was to come into effect. The
Tribunal could not have been expected to complete a review of the decision
given the short time frames involved in the suspension and under the Act.
[27]
Given the possible delay involved,
waiting for a review to be completed is simply not an option for most operators;
if the review cannot be heard prior to
the 30 day time limit set out in the Notice, the suspension will take effect
and the operator will lose his or her AOC and be unable to continue to operate.
Thus, an operator in receipt of a Notice will almost certainly comply with the
conditions for reinstatement set out in the Notice, regardless of whether the
Minister’s findings have any merit or whether the Minister acted in good faith
and on the basis of all the information before it. On the specific facts of
this case, Skyward was, for all practical purposes, forced to comply with the
Minister’s wishes. Nevertheless, it consistently expressed its disagreement
with the merits of the underlying conditions for reinstatement.
[28]
The matter does not end with the rescission of the Notice. The operator
must continue to operate in accordance with the Minister’s findings or risk the
issuance of another Notice. With no opportunity for review of the Minister’s
decisions by the Tribunal, the operator is forced into compliance, regardless
of the merits and regardless of whether the deficiencies are supportable on the
evidence in the first place. As a result of this unusual characteristic of the
decision-making process, an operator is seriously affected, on an on-going
basis, by the underlying non-compliance determination. The alleged deficiencies
are much more than reasons in the usual sense.
[29]
Thus, without access to the Tribunal, the operator is at the mercy of
the Minister. This is the interpretation given to s. 7 of the Act by the
Tribunal. Is this interpretation consistent with the principle of statutory
interpretation that the words of an Act are to be read in their entire context?
I do not find that it is. In my view, the Tribunal erred by failing to have
regard to the entire context.
(2) The
Grammatical and Ordinary Sense
[30]
Through the prism of the context described above, I turn to the words of
s. 7.1 of the Act. Do the words of s. 7.1 remove the right to a review where a
previously issued Notice has been rescinded?
[31]
The most important provision to my analysis is s. 7.1(3); this is the
provision that gives the operator access to a review by the Tribunal. What is
the meaning of the phrase “Where the holder of a Canadian aviation document
…who is affected by a decision of the Minister referred to in subsection (1)
wishes to have the decision reviewed…” in s. 7.1(3) of the Act? On the one
hand, if Skyward is affected by a decision of the Minister
referred to in subsection 7.1(1) of the Act it has a right of review pursuant
to s. 7.1(3) of the Act. On the other hand, if it is shown that Skyward is not
affected or the decision by which Skyward is affected does not fall into the
definition of a decision as per s. 7.1(1) of the Act, then Skyward has no right
of review.
[32]
In its reasons, it is apparent that the Tribunal interpreted the terms
“affected” and “decision . . . referred to in subsection (1)” very
narrowly. The tribunal saw the term “decision” as limited to the suspension. In
the Tribunal’s view, once the decision to suspend was “withdrawn”, there was no
longer a “decision within the meaning of subsection (1)” and, thus, Skyward was
no longer “affected” by a decision. While I acknowledge that the words of s.
7.1(3), in isolation, may bear such a narrow interpretation, I do not agree
that this reflects the correct interpretation of s. 7.1(3).
[33]
Subsection 7.1(1) of the Act is triggered where “the Minister decides…to
suspend…a Canadian aviation document”. Once the decision is made, a Notice must
be served on the Operator. In the case before this Court, the Minister made
such a decision to suspend the AOC. The rescinding of the Notice does not
change the fact that a decision to suspend was made. The only question is
whether the “decision” disappears because Skyward chose to meet the demands of
the Minister to ensure its continued operation. In my view, it does not. So
long as the Minister continues to hold that Skyward was in breach of its AOC
conditions and requires Skyward to comply with its demands, the decision to
suspend exists. Only the implementation of the Notice is suspended.
[34]
As discussed above, Skyward continues to be affected by the Minister’s
actions and decision to issue the Notice. The Minister has never acknowledged
that the underlying reinstatement conditions were unnecessary and Skyward has
never agreed that it violated the terms of its AOC. In other words, Skyward
continued to be affected by the “decision . . . referred to in subsection (1)”
long after the Minister rescinded the notice of suspension.
[35]
Further support for a broader interpretation of s. 7(3) is seen in the
very general words used in the French language version of the provision. In the
French version of s. 7(3), a review is triggered upon the filing of a request
for a review by “L’intéresse qui désire faire réviser la decision du minister…”.
Loosely translated, any party interested in the matter may ask for a review of
the decision. I can see no words that would remove the right of “l’intéresse”
to a review where the Minister rescinds the Notice.
[36]
In short, s. 7.1(3) does not state that a decision has to come into
force, only that the decision affect the operator. In this case, it is evident
that an operator who is required to comply with the conditions for
reinstatement that were set out in the Notice continues to be affected by the
decision to suspend.
[37]
A further review of the balance of the subsections of s. 7 and other
related provisions, does not, in my view, limit the accessibility to a review.
(3) Object
of the Act and Intention of Parliament
[38]
The overall object of the Act is air safety. How does the Tribunal fit
into that overall objective?
[39]
As pointed out by Justice Noël,
in the case of Civil Aviation Tribunal (Re), [1995] 1 F.C. 43 at 53-54 (T.D.)
(the CAT Reference), the Tribunal was established on June 1, 1986, as a
quasi‑judicial tribunal, pursuant to Part IV of the Act. Its creation
gave effect to one of the recommendations embodied in the Dubin report on
aviation safety:
An effective enforcement process
must give due regard to the rights of those against whom administrative action
is taken. At present, there is no effective recourse for those against whom
administration action is taken and who desire to challenge the propriety of the
sanction. It is essential, therefore, to make provision for the right of an
appeal from all administrative penalties. In order to fully protect the
rights of those affected by disciplinary action, the creation of a Civil
Aviation Appeal Tribunal is required. (Report of the Commission of Inquiry
on Aviation Safety, the Honourable Mr. Justice Charles L. Dubin, October, 1981,
vol. 2, at 498). [Emphasis added.]
[40]
At the time when the Tribunal was created, major amendments were brought
to the Act in order to clearly define the powers of enforcement conferred upon
the Minister and to provide a right to an independent review with respect to
administrative penalties imposed by the Minister in conjunction with alleged
violations of the Act.
[41]
As evidenced by a review of the Commons Debates that took place at that
time, the new Tribunal was to provide an important balancing function in the
overall regulatory scheme. See, for example, the comments of the Honourable Don
Mazankowski, Minister of Transport, during the Commons Debates on the proposed
amendments to the Act set out in Bill C-36.
The proposals for more vigorous
enforcement, however, will be balanced by a method of review of administrative
enforcement decisions. The establishment of an independent civil aviation
tribunal, as recommended by Mr. Justice Dubin, will provide a vehicle for such
a review.
. . .
The aim of the tribunal is to provide a
system whereby these matters can be decided in an expeditious and informal
manner by persons who have a technical knowledge of all factors involved. (House
of Commons Debates, 3 (April 15, 1985) at 3729 (Hon. Don Mazankowski)).
[42]
Although the CAT Reference is distinguishable on its facts, the
case contains some useful statements of principle. The Court in the CAT
Reference was considering two questions referred by the Tribunal. The first
of those questions was whether the Minister was entitled to determine that the
holder of a Canadian aviation document had violated or contravened a regulation
or order enacted pursuant to Part I of the Act without suspending or cancelling
the relevant Canadian aviation
document or imposing a monetary
penalty. In answering this question in the negative, the Court commented on the
scheme of the Act as follows:
In my view, therefore, the
Minister is not empowered to decide that a violation has taken place and to
register this violation as having been committed in a document holder's
enforcement record without resorting to the prescribed procedure set forth in
the Act. The scheme of the Act is such that the commission of an infraction
can only be considered to have been established for purposes of the Act after
the interested party has been afforded a right to an independent review (CAT
Reference, above at 66-67). [Emphasis added.]
[43]
The principle that is stressed in the CAT Reference is the right
of an operator to an independent review of decisions of the Minister. This
principle is also highlighted in the Parliamentary Debates that took place at
the time of the legislative amendments that brought the Tribunal into
existence. Consistent with the purposes for which the Tribunal was established,
that right should be available where decisions of the Minister have continuing
effect on an operator. This right to a review “by persons who have a technical
knowledge of all factors involved”, should not be extinguished by an overly
restrictive interpretation of the enabling legislation.
[44]
Applying this principle to the facts of this case, I note that Skyward’s
alleged infractions were found by the Minister to have been established for the
purposes of issuing a Notice of Suspension. That is, the alleged breaches of
the AOC were “established for purposes of the Act”. Even though the actual
decision to suspend was withdrawn by the Minister, the alleged breaches
continued to exist and impact the operations of Skyward. In these
circumstances, allowing Skyward the right of an independent Tribunal review of
the alleged breaches is consistent with the principles set out in the CAT
Reference and with the intention of Parliament. The power of the Minister
to impose conditions in the interests of air safety is balanced by the right of
Skyward to have the conditions reviewed by the Tribunal. Indeed, given the
particular circumstances surrounding the rescinding of the Notice, I believe
that it would be contrary to the intention of the legislation to remove the
right of review for the underlying decision of the Minister.
VI. Conclusion
[45]
In sum, I conclude that the correct interpretation of s. 7.1 of the Act
incorporates the following elements:
- The
Minister’s decision includes all aspects of the Minister’s determination
that led to the issuance of the Notice of Suspension and is not limited
simply to the Notice itself.
- As an
operator who was served with the Notice and who decided to comply with
re-instatement conditions with which it did not agree rather than losing
its AOC, Skyward continued to be affected by the decision in spite of the
rescission of the suspension.
- The Tribunal
may conduct a review of the re-instatement conditions to assess whether,
on the evidence before it, the Notice should be confirmed, even though it
has been rescinded. That is, the Tribunal may determine that the Minister
did not err in its decision that Skyward was in breach of the terms of its
AOC.
- If the
Tribunal determines that any or all of the re-instatement conditions
cannot be sustained on the evidence before it, the matter can be sent back
to the Minister for reconsideration. While the Minister would not be
determining whether a Notice of Suspension should issue, he would be
reconsidering whether Skyward was in breach of the conditions of its AOC
at the time the Notice was issued. This is not just an academic exercise;
any reconsideration would have the potential for clearing Skyward’s
record.
[46]
Reading the words of s. 7.1 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 leads to the conclusion that
the Tribunal erred in its interpretation of s. 7.1 of the Act.
[47]
The application for judicial review will be allowed and the matter sent
back to the Tribunal for reconsideration, on the basis that it has jurisdiction
to review the Notice.
[48]
Skyward asked that it be allowed to make submissions on costs after the
decision of this Court is issued. Accordingly, Skyward will have until March
30, 2008, to file submissions on costs, such submissions not to exceed three
double-spaced pages. The Minister will have a further 15 days to file reply
submissions.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
The application for judicial review is allowed and the decision
of the Civil Aviation Tribunal is quashed;
2.
The matter is referred back to the Transportation Appeal Tribunal
of Canada, as successor to the Canadian Aviation Tribunal, to be determined in
accordance with these reasons for judgment; and
3.
Skyward will have until March 28, 2008, to make submissions as to
costs, such submissions not to exceed four double-spaced pages and the Minister
will have a further 15 days to file reply submissions, not to exceed four
double-spaced pages.
“Judith A. Snider”
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