Decisions

TATC File No. W-3011-98
MoT File No. 5258-14833

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Aurora Helicopters Ltd., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.71(1)(b)


Review Determination
Sandra Lloyd


Decision: March 14, 2005

I refer the matter of the approval of the applicant's dangerous goods chapter back to the Minister for reconsideration. If after reconsideration the Minister continues to refuse to approve the chapter, then subsection 6.71(2) of the Aeronautics Act applies, and the Minister shall indicate in writing to the applicant the conditions that are not met or fulfilled by the chapter.

A review hearing on this matter was held November 30 and December 1, 2004 at the Federal Court of Canada, in Edmonton, Alberta at 10:00 hours.

BACKGROUND

In early 2004, the applicant Aurora Helicopters ("Aurora") submitted to Transport Canada for approval a dangerous goods chapter for its company operations manual. Transport Canada did not approve the chapter and Aurora re-submitted it in February, 2004. By letter dated April 26, 2004, Transport Canada again advised the applicant that the chapter required changes before it could be approved. Aurora requested a review of the Minister's alleged refusal to approve its dangerous goods chapter.

ISSUES

1. Does the Transportation Appeal Tribunal have jurisdiction to review a decision of the Minister to refuse to approve the dangerous goods chapter of a company operations manual?

2. Was there a refusal to approve? If so, did the Minister err in making that refusal?

THE LAW

Subsection 2.(2) of the Transportation Appeal Tribunal of Canada Act (TATC Act)

[...]

(2) The Tribunal has jurisdiction in respect of reviews and appeals as expressly provided for under the Aeronautics Act, the Canada Shipping Act, the Marine Transportation Security Act, the Railway Safety Act and any other federal Act regarding transportation.

Subsection 3(1) of the Aeronautics Act

[...]

"Canadian aviation document" means any licence, permit, accreditation, certificate or other document issued by the Minister under Part 1 to or with respect to any person or in respect of any aeronautical product, aerodrome, facility or service;

[...]

Sections 6.6, 6.71 and 6.72 of the Aeronautics Act

6.6  In sections 6.7 to 7.21, "Canadian aviation document" includes any privilege accorded by a Canadian aviation document.

6.71(1)  The Minister may refuse to issue or amend a Canadian aviation document on the grounds that

(a) the applicant is incompetent;

(b) the applicant ...does not meet the qualifications or fulfil the conditions necessary for the issuance or amendment of the document; or

(c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the applicant or of any principal of the applicant, as defined in regulations made under paragraph (3)(a), warrant the refusal.

(2) The Minister shall, by personal service or by registered or certified mail sent to their latest known address, notify the applicant or the owner or operator of the aircraft, aerodrome, airport or other facility, as the case may be, of a decision made under subsection (1). The notice shall be in a form prescribed by regulation of the Governor in Council and, in addition to any other information that may be prescribed, shall indicate, as the case requires,

(a) the nature of the incompetence of the applicant;

(b) the qualifications or conditions referred to in paragraph (1)(b) that are not met or fulfilled, as the case may be;

(c) the reasons for the Minister's opinion referred to in paragraph (1)(c); and

(d) except in the case of a document or class of documents prescribed under paragraph (3)(b), the address at which, and the date, being thirty days after the notice is served or sent, on or before which the applicant, owner or operator may file a request for a review of the Minister's decision.

(3) The Governor in Council may make regulations

[...]

(b) prescribing Canadian aviation documents, or classes of such documents, in respect of which a review of the Minister's decision to refuse to issue or amend a document may not be requested.

6.72 (1)  Subject to any regulations made under paragraph 6.71(3)(b), an applicant...who is...sent a notice under subsection 6.71(2) and who wishes to have the Minister's decision reviewed shall...file a written request for a review of the decision...

[...]

(4) The member of the Tribunal who conducts the review may determine the matter by confirming the Minister's decision or by referring the matter back to the Minister for reconsideration.

Sections 703.104 and 703.105 of the Canadian Aviation Regulations (CARs)

Requirements Relating to Company Operations Manual

703.104 (1)  Every air operator shall establish and maintain a company operations manual that meets the requirements of Section 703.105.

(2) An air operator shall submit its company operations manual, and any amendments to that manual, to the Minister.

(3) Where there is a change in any aspect of an air operator's operation or where the company operations manual no longer meets the Commercial Air Service Standards, the air operator shall amend its company operations manual.

(4) The Minister shall, where the Commercial Air Service Standards are met, approve those parts of a company operations manual, and any amendments to those parts, that relate to the information required by Section 703.105.

Contents of Company Operations Manual

703.105 (1)  A company operations manual, which may be issued in separate parts corresponding to specific aspects of an operation, shall include the instructions and information necessary to enable the personnel concerned to perform their duties safely and shall contain the information required by the Commercial Air Service Standards.

[...]

Section 723.105 of the Commercial Air Service Standards (Standard)

723.105 Contents of a Company Operations Manual

(1) For air operators conducting IFR and VFR at night operations, the manual shall contain as applicable to the operations:

[...]

(v) procedures for the carriage of dangerous goods;

[...]

(2) For air operators conducting day VFR operations only, the manual shall contain items (a) through (h) from subsection (1) and;

[...]

(o) procedures for the carriage of dangerous goods;

[...]

(3) For an owner/pilot operating one aircraft and not employing other pilots, the manual shall contain:

[...]

(k) procedures for the carriage of dangerous goods.

ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air, 2003-2004

Part 7 – Operator's Responsibilities

Chapter 4 – Provision of Information

4.2 Information to Employees

An operator must provide such information in the operations manual and/or other appropriate manuals as will enable flight crews and other employees to carry out their responsibilities with regard to the transport of dangerous goods. This information must include instructions as to the action to be taken in the event of emergencies involving dangerous goods, and details of the location and numbering system of cargo compartments together with the maximum total sum of transport indexes of radioactive material permitted in each compartment. Where applicable, this information must also be provided to ground handling agents.

DISCUSSION

1. Does the Transportation Appeal Tribunal have jurisdiction to review a decision of the Minister to refuse to approve the dangerous goods chapter of a company operations manual?

The Minister submitted that the Tribunal has no jurisdiction over the subject matter of this case because the Tribunal has no authority to review matters involving dangerous goods, and the true subject matter of this case is the transportation of dangerous goods. The Minister's position is that the Transportation of Dangerous Goods Act ("TDG Act"), the TDG Regulations, and the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air ("ICAO TI's"), govern completely the transportation of dangerous goods in Canada.

The Minister says that if one takes into account all of the context within which the CARs standards lie, including the TDG legislation, its administration, and its history, one cannot interpret CARs standard 723.105 as conferring jurisdiction upon the Tribunal to review a refusal by the Minister to approve a dangerous goods chapter.

The Minister's view is that CARs standard 723.105 is merely directory. It simply directs operators to write dangerous goods procedures into their operations manual because that is a convenient place to put them.

In addition, the Minister says that a dangerous goods chapter is not a Canadian aviation document.

Transport Canada's witness, Ms. Judith Code, is the Chief of Dangerous Goods Standards within the Commercial and Business Aviation Branch of the Civil Aviation Directorate in Ottawa. I accepted her as an expert in the area of dangerous goods transportation. She gave extensive evidence regarding TDG legislation and its administration in Canada and identified a number of documents relating to the transportation of dangerous goods.

The TDG Directorate is the major source of regulatory development, information and guidance on dangerous goods transport in Canada. The primary legislation governing the transport of dangerous goods in Canada is the TDG Act, 1992. The TDG regulations are made pursuant to the TDG Act.

Ms. Code said that the TDG regulations incorporate by reference the ICAO TI's.

One of the documents Ms. Code identified was an excerpt from an Environment Canada website which said in part:

In Canada, the federal government and each of the provinces and territories have enacted legislation to regulate the transportation of dangerous goods. While the jurisdictional coverage of these pieces of legislation varies, the intent is consistent and, to that end, each piece of legislation adopts the Transportation of Dangerous Goods regulations made under the federal statute.

The TDG Act does not expressly provide for reviews by the Tribunal. However, the requirement for an approved dangerous goods chapter is contained in CARs 703.104, 703.105 and Standard 723.105, which, although they appear to adopt TDG legislation, are promulgated pursuant to the Aeronautics Act.

The Aeronautics Act provides, of course, for reviews by the Tribunal in a number of instances.

For example, while section 6.71 of the Aeronautics Act provides that the Minister may refuse to issue or amend a Canadian aviation document on several grounds, subsection 6.72(1) provides that a person who is sent a notice of a refusal to issue or amend a Canadian aviation document may file a written request for review with the Tribunal.

"Canadian aviation document" is broadly defined in the Aeronautics Act, subsection 3(1) and section 6.6. It includes any licence, permit, accreditation or other document issued by the Minister, and any privilege accorded by a Canadian aviation document.

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 for "accredited", including "qualified",

"licensed", "empowered" and "certified". "Permit" means to "give permission" or "consent to", "authorize", or "a document giving permission to act".

"Approve" means to "confirm", "sanction", or "regard with favour. Synonyms for "approve" include "authorize", "ratify" and "sanction".

The distinctions between the words "accreditation", "permit" and "approve" are minimal. There is no doubt that the Minister's decision to approve a dangerous goods chapter carries with it a privilege, namely, the privilege to transport dangerous goods. I conclude that the approval by the Minister of a dangerous goods chapter under CARs 703.104(4) is tantamount to issuing an accreditation or permit. It follows that a refusal to approve a dangerous goods chapter is a refusal to issue a Canadian aviation document, within the broad definition of that term as set out in the Aeronautics Act.

Two federal court decisions submitted by the applicant support the application of a broad definition of the words "Canadian aviation document". In Canada (Minister of Transport) v. Beingessner [1996] F.C.J. No. 787 (F.C.C. Trial Division), the court held that a suspension of a privilege, in that case, the privilege to fly an A-320 aircraft, was a suspension of a Canadian aviation document. In Canada (Attorney General) v. Cooper [1995] F.C.J. No. 1653 (F.C.C. Trial Division), the Federal Court upheld a Civil Aviation Tribunal decision finding that Minister's letters delegating authority to the respondents to act as designated flight test examiners were Canadian aviation documents.

The Minister submitted that those cases are distinguishable because they both involved privileges attached to paper documents issued by the Minister. The applicant's position was that if it is necessary to find a paper document to which to attach the privilege, then the document in this case is the air operator certificate. Transport Canada's approval of a company operations manual is a condition precedent to issuance of an air operator certificate. I think it would be absurd to say that a refusal to issue or amend an air operator certificate would be reviewable, while a refusal to approve all or part of something that is a condition precedent to that issuance or amendment would not be reviewable.

Alternatively, I presume that Transport Canada would advise a document holder of an approval of a dangerous goods chapter in writing. For example, the applicant in this case identified letters from Transport Canada approving a dangerous goods chapter and a training plan for another helicopter operator, Osimas Helicopters Ltd. Such approval letters clearly are documents issued by the Minister which accord a privilege.

The Minister submitted that the Tribunal should not review refusals to approve dangerous goods chapters because that would involve interpreting TDG legislation and ICAO TI's, matters in which the Tribunal has no expertise. However, my view is that we must presume that legislators intend what their words say. That is, since the legislators chose to make approval of dangerous goods chapters a CARs requirement, we must presume they intended the approval to be subject to all relevant provisions of the Aeronautics Act, including a Tribunal review. While it is apparent that the relevant CARs Standards adopt the ICAO TI's, I do not accept that the TDG legislation can then simply assert paramountcy over the Aeronautics Act and its subordinate legislation such that the words in the latter have little meaning.

I have considered the jurisdiction question in light of the case before me. The Tribunal does not have the jurisdiction to substitute its own decision for the Minister in this matter, but only to refer the decision back to the Minister for reconsideration. I do not believe I need prior expertise in the transportation of dangerous goods in the present case in order to determine whether or not the refusal was justified or ought to be referred back to the Minister for reconsideration.

Finally, I note that paragraph 6.71(3)(b) of the Aeronautics Act allows the Governor in Council to make regulations prescribing Canadian aviation documents in respect of which a review of the Minister's decision to refuse to issue or amend a document may not be requested. If the legislators wish to make decisions under section 6.71 and CARs 703.104(4) immune from review, they may do so in accordance with that paragraph.

I conclude that the Tribunal has jurisdiction to review a refusal to approve a dangerous goods chapter of an operations manual.

Was there a refusal to approve? If so, did the Minister err in making that refusal?

The Minister took the position that the return of the chapter to Aurora on April 26, 2004 was not an Aeronautics Act section 6.71 refusal to issue or amend. Rather, says the Minister, Transport Canada's actions indicated a willingness to continue the approval process. The Minister further submitted that the applicant has an obligation to act reasonably when seeking Transport Canada approval, and that the applicant did not act reasonably in this case.

The applicant submitted that Transport Canada's behaviour amounted to a refusal because: 1) the Minister advised Aurora that the dangerous goods chapter had to be changed, when Aurora was convinced the chapter met all requirements; 2) the Minister erroneously advised the applicant that the chapter had to match the Minister's generic chapter; and 3) the Minister failed to advise the applicant exactly why its chapter did not meet regulatory requirements.

Transport Canada dangerous goods inspector Mr. Mahoney, his supervisor Mr. Brookman, Aurora's principal Mr. Morin, and Aurora's dangerous goods consultant Mr. French gave evidence of the events leading up to the submission of this matter to the Tribunal.

Mr. Mahoney is a Transport Canada Civil Aviation Inspector in the Dangerous Goods section of Commercial and Business Aviation in the Prairie and Northern Region. In his position he reviews documents and manuals relating to dangerous goods, and inspects facilities where dangerous goods are handled.

Mr. French is a consultant with many years experience in developing procedures, manuals and training relating to the transportation of dangerous goods for various air operators, including computer-based training. I accepted him as an expert in the area of the transportation of dangerous goods.

Aurora first submitted its dangerous goods chapter to Transport Canada for approval in January 2004. Mr. Mahoney and Mr. Brookman reviewed the chapter and Mr. Mahoney advised Aurora by letter dated February 6, 2004 that the chapter required changes before it could be approved. The letter also advised Aurora that adherence to attached "Generic Chapters", for the dangerous goods chapter and a further required dangerous goods training plan, would ensure timely approval of the dangerous goods chapter. The letter invited further discussion by telephone.

By telephone on February 25, 2004, Mr. Morin advised Mr. Mahoney that he had retained Mr. French to assist in obtaining approval of the chapter. He also said that Mr. French had told him that a training plan need not be submitted but that a letter advising Transport Canada that Aurora would be using Mr. French's training plan would be sufficient. Mr. Mahoney said he could not comment on the submission without seeing it and that he would be out of town from February 26 to March 19. He provided Mr. Morin with Mr. Brookman's name and telephone number.

Mr. Morin sent a second submission of the dangerous goods chapter to Mr. Mahoney on February 24, 2004. This submission was prepared by Mr. French. It was based on a streamlined chapter that Mr. French had been attempting to get approved on behalf of the Helicopter Association of Canada, for use by helicopter operators across Canada. As Mr. Mahoney was out of town, he did not review it at that time.

On March 30, 2004, Mr. Mahoney received a telephone call and e-mail from Mr. French advising that Aurora would be using Mr. French's dangerous goods training plan. Mr. French said that a formal letter confirming this would follow, but no such letter was sent.

On April 5, 2004, Mr. Brookman signed letters addressed to another operator, Osimas Helicopters, that approved for them a dangerous goods chapter and a training program prepared by Mr. French.

In early April, Mr. Mahoney reviewed Aurora's second submission. He met with Mr. Brookman to discuss the matter, and by letter dated April 26, 2004, again advised Aurora that its chapter required changes. The letter again requested a training plan as well as a completed "Training Program Approval Application Form", and enclosed generic chapters for the dangerous goods chapter and the dangerous goods training plan. It also requested a letter from Aurora formally appointing Mr. French as its representative. The letter invited further discussion by telephone and asked which John French program Aurora intended to use. It repeated the advice that adherence to the attached generic chapters would ensure timely approval of the dangerous goods chapter.

In a telephone conversation on April 30, 2004, Mr. Mahoney advised Mr. Morin that as a minimum, the chapter would have to include what was in the generic chapter. Mr. Mahoney repeated the request for a training program approval application and a letter appointing Mr. French, and asked which training program Aurora intended to use. Mr. Mahoney also advised Mr. Morin that he knew of Mr. French's attempts to get general approval for a streamlined dangerous goods chapter for the Helicopter Association of Canada, but that such general approval had not yet been achieved.

On May 20, 2004, Mr. Jenner, on behalf of Aurora, wrote to the Tribunal requesting a review of the Minister's alleged refusal to approve Aurora's dangerous goods chapter.

On May 28, 2004, Mr. Morin advised Mr. Brookman in writing that Mr. French had the authority to act for Aurora with respect to their operations manual and dangerous goods training plan.

By e-mail on June 9, 2004, Mr. Brookman asked Mr. Morin if he intended to proceed with the approval process through Mr. French or if he intended to bring the matter to the Tribunal. He told Mr. Morin that work on the operations manual would cease pending a Tribunal decision but invited further discussion. However, by letter dated June 14, 2004, Mr. Brookman altered that position, advising Mr. Morin that he would review a further submission of a dangerous goods chapter upon receipt. Mr. Brookman again invited further contact.

On the same day, Mr. Morin wrote in reply that he intended to pursue the matter with the Tribunal, because he felt the operations manual as submitted complied with the CARs.

At the review hearing, Mr. Mahoney and Mr. Brookman described the process they had undertaken in assessing Aurora's dangerous goods chapter. Mr. Mahoney consulted with Mr. Brookman. They had compared Aurora's chapter to the generic manual provided by Transport Canada. Mr. Brookman said that Transport Canada's policy was that if a document had five or more errors on a first submission, it would be returned. On a second submission, three or more errors would mandate a return.

Mr. French said that in preparing Aurora's second submission he considered the generic manual, and then looked at it from the point of view of a CARs 702 and 703 operator. He said that some of the omissions in preparing Aurora's chapter were made at the suggestion of two dangerous goods inspectors with whom he had discussed the matter.

Mr. French's evidence was that except for names and the word processor used, Aurora's second submission was identical in substance to the manual that he had written for Osimas Helicopters and that had been approved by Transport Canada on April 5, 2004.

Mr. French also said that the impression he had got from Mr. Mahoney and Mr. Brookman was that no consideration would be given to approving a dangerous goods chapter that deviated from the generic chapter. He expressed his view that the generic chapter is a guideline, not a minimum. He also had the opinion that there was insufficient detailed communication from Mr. Mahoney and Mr. Brookman as to what was lacking in Aurora's chapter as submitted.

I find there were deficiencies in communication from both sides in this matter. I agree with the Minister's submission that Transport Canada indicated a willingness to continue the approval process, that the applicant has a duty to act reasonably during the process, and that the applicant did not act reasonably in this case.

Throughout the process, Transport Canada advised the applicant that adherence to the generic chapters would ensure timely approval of the dangerous goods chapter. The applicant knew it was asking the inspectors to approve something that was "non-standard". If Aurora needed its dangerous goods manual approved in a timely fashion, it could simply have followed Transport Canada's advice to submit a version of the generic chapter. It could then have later sought to amend the chapter to the streamlined version, thereby avoiding delay in obtaining approval to carry dangerous goods.

In addition, the applicant did not meet Transport Canada's reasonable requests for details of their dangerous goods training plan and a completed "Training Program Approval Application Form".

The applicant also failed to provide Transport Canada with the requested written authority for Mr. French to act on their behalf until May 28, well after they had written to the Tribunal asking for this review.

It is also clear that Mr. French has much experience in dealing with Transport Canada in dangerous goods matters. I think it would have been reasonable for Mr. French to make greater efforts to communicate with the appropriate experts in the dangerous goods directorate in an attempt to achieve timely approval of Aurora's document, before applying to the Tribunal for a review. Mr. French admitted under cross-examination that had he sent a letter to Transport Canada explaining his thinking, he may well have had a different result.

It also appears that Mr. French and Aurora did not make the Minister aware of the situation with the Osimas chapter until the day of the Tribunal hearing. It may well have helped Aurora's application if Mr. French had brought the Osimas chapter to the attention of Transport Canada in April 2004, or even in May or June. Instead, the applicant chose to surprise the Minister at the hearing with the assertion that Transport Canada had approved a virtually identical chapter. This supports the Minister's submission that the applicant did not act reasonably, or did not make its best efforts to obtain approval of the dangerous goods chapter.

On the other hand, it was apparent that Mr. Mahoney did not feel he had the authority or the expertise to approve a dangerous goods chapter that deviated from the generic. It is also apparent from the evidence that there have been some inconsistencies within Transport Canada with respect to approvals of dangerous goods chapters. Further, it may well have been helpful to the process if the inspector put in writing the specific reasons why Aurora's submissions were not approved.

CARs 703.104(4) provides that:

the Minister shall, where the Commercial Air Service Standards are met, approve those parts of a company operations manual, and any amendments to those parts, that relate to the information required by section 703.105.

Section 703.105(1) provides that:

(1) A company operations manual, ... shall include the instructions and information necessary to enable the personnel concerned to perform their duties safely and shall contain the information required by the Commercial Air Service Standards.

CARs Standard 723.105, Contents of a Company Operations Manual, states that, among other things: "...the manual shall contain as applicable to the operations...procedures for the carriage of dangerous goods..." [emphasis added].

It is apparent that CARs section 703.105 and Standard 723.105 adopt the ICAO TI's Part 7, Chapter 4, section 4.2, which require that an operator must provide such information in the operations manual and/or other appropriate manuals as will enable flight crews and other employees to carry out their responsibilities with regard to the transport of dangerous goods.

Ms. Code identified a Transport Canada Commercial and Business Aviation DG Standards Notice dated February 11, 2002 that provided, in part, that:

In order to obtain Transport Canada approval for the Dangerous Goods Chapter of the Operations Manual, Air Operators may use the Dangerous Goods Chapter in the Generic Operations Manual [emphasis added].

Ms. Code also identified a copy of the Dangerous Goods Chapter to the Generic Operations Manual. The generic chapter states in paragraph 8.1.1 that:

The purpose of this document is to provide direction and assistance to all company personnel involved in the handling, offering for transport or transporting of dangerous goods by air.

I conclude from all of the foregoing that it is not necessary for a dangerous goods chapter to adhere exactly to the generic chapter. Rather, an operations manual is required to contain procedures for the carriage of dangerous goods that are applicable to the company's operation, and that includes the instructions and information necessary to enable the personnel concerned to perform their duties safely. The generic chapter appears to be a very useful guide, but to the extent it is not applicable to their operations, operators are not required to follow it.

On April 30, 2004, Transport Canada advised the applicant that their chapter could not be approved unless it contained, at a minimum, what was in the generic chapter. Given that position, it is not surprising that Aurora would consider it futile to make further attempts at obtaining approval for its dangerous goods chapter. I find that by insisting that the applicant follow the generic chapter, the Minister for all practical purposes refused to issue or amend a Canadian aviation document within the meaning of section 6.71 of the Aeronautics Act.

CONCLUSIONS

1. The Tribunal has jurisdiction to review a decision of the Minister to refuse to approve the dangerous goods chapter of a company operations manual; and

2. The Minister refused to issue a Canadian aviation document, that is, refused to approve the applicant's dangerous goods chapter, without providing sufficient grounds for doing so.

DETERMINATION

I refer the matter of the approval of the applicant's dangerous goods chapter back to the Minister for reconsideration. If after reconsideration the Minister continues to refuse to approve the chapter, then subsection 6.71(2) of the Aeronautics Act applies, and the Minister shall indicate in writing to the applicant the conditions that are not met or fulfilled by the chapter.

March 14, 2005

Sandra K. Lloyd
Member
Transportation Appeal Tribunal of Canada