Decisions

TATC File No. P-3306-30

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Prism Helicopters, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, s. 605.85(1)


Interlocutory Decision
Faye H. Smith


Decision: March 27, 2007

Citation: Prism Helicopters v. Canada (Minister of Transport), 2007 TATCE 10

Decided on the basis of written submissons

Held: I find that the Tribunal has jurisdiction to conduct a review of the Minister's decision to cancel the exemption from section 605.85(1) of the Canadian Aviation Regulations, SOR/96-433, which took effect on March 7, 2007. The parties will be contacted by the Tribunal Registry to set the matter down for a review hearing.

I. BACKGROUND

[1]     On July 12, 2006, the Minister of Transport decided to refuse to renew an exemption from section 605.85(1) of the Canadian Aviation Regulations, SOR/96-433 (CARs). The exemption which was signed by the Director General of Civil Aviation on November 9, 2005 operated to the benefit of the applicant, Prism Helicopters.

[2]     The purpose of this exemption was to permit Canadian air operators and their flight crew members to perform tasks that are identified in airworthiness directive FAA AD 2005-21-02 that are within the flight crew members' 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. The exemption was granted with conditions stated therein and was to be in effect until 11:59 EDT on May 1, 2007 unless the date was abridged for other reasons set out in the exemption document.

[3]     In effect, this exemption absolved Prism Helicopters and others from compliance with section 605.85(1) of the CARs which states:

Maintenance Release and Elementary Work

605.85 (1) Subject to subsections (2) and (3), no person shall conduct a take-off in an aircraft, or permit a take-off to be conducted in an aircraft that is in the legal custody and control of the person, where that aircraft has undergone maintenance, unless the maintenance has been certified by the signing of a maintenance release pursuant to section 571.10.

[4]     On July 12, 2006 a Civil Aviation Safety Inspector in Policy Development at Transport Canada notified the Acting Regional Manager of Aircraft Maintenance and Manufacturing by e-mail of the Minister's decision not to reissue the exemption after its expiry date of May 1, 2007. This e-mail was subsequently forwarded to Prism Helicopters and became the subject of a request for review dated October 2, 2006 by the Transportation Appeal Tribunal of Canada on the grounds that the Minister had refused to renew the exemption which deprives Prism Helicopters of a privilege received through a Canadian aviation document (CAD) issued under Part I of the Aeronautics Act, R.S.C. 1985, c. A-2.

[5]      The substance of the e-mail from Transport Canada is as follows:

Please be advised that, "EXEMPTION FROM SUBSECTION 605.85(1) OF THE CANADIAN AVIATION REGULATIONS", RDIMS # 1397686 and 1397502, in effect until May 01, 2007, will not be re-issued. This is in conjunction with the January 10/11, 2006 CARAC meeting decision not to include inspection by visual aid to the elementary work task list. Visual inspection requiring the use of visual aids remains to be a maintenance task and is subject to a maintenance release by an appropriately rated AME.

On May 2, 2007, Canadian air operators and its flight crew members will no longer be exempted from the requirement in subsection 605.85(1) of the Canadian Aviation Regulations when carrying out tasks identified in FAA AD 2005-21-02.

[6]     The request for review of October 2, 2006 was acknowledged by the Tribunal Registry and the Minister was asked for preliminary submissions on or before November 13, 2006.

A. First Application

[7]     The Minister's representative submitted that the Tribunal has jurisdiction to review the Minister of Transport's refusal to issue an exemption and that section 6.71 of the Aeronautics Act grants the Minister the power to refuse to issue a CAD. She also submitted that the loss of the privilege has not yet occurred and will occur only if the exemption is not reissued after May 1, 2007.

[8]     It is tempting to discuss the timing and notice issues raised by the first application; however, the changed circumstances in this matter and the interests of expediency demand that I reserve such discussion to a future application.

B. Second Application

[9]     On January 26, 2007, the Minister's representative informed the Tribunal Registry that subsequent to written submissions made to the Tribunal on November 10, 2006, the Minister had changed position with respect to the Tribunal's jurisdiction in this matter. The Tribunal granted time to file additional submissions until February 14, 2007 and informed the applicant herein.

[10]     Prior to the due date for the Minister's submissions, the applicant advised the Registry that the Minister had issued a notice of cancellation of the exemption to section 605.85(1) of the CARs which was to take effect on March 7, 2007.

[11]     The substance of this notice of cancellation is as follows:

EFFECTIVE DATE OF CANCELLATION: March 7, 2007

DETAILS ON EXEMPTION:

The exemption from subsection 605.85(1) of the Canadian Aviation Regulations was issued on November 9, 2005 by the Director General Civil Aviation on behalf of the Minister of Transport - RDIMS # 1382285 (a copy is also attached to this Notice).

Dear Sir or Madam:

Our records indicate that you are the owner or operator of an aircraft that may be subject to FAA Airworthiness Directive AD 2005-21-02. This directive is presently addressed in the exemption referred to above as RDIMS 1382285. The exemption was issued to permit flight crew members to perform maintenance tasks identified in the Directive, without the need for a maintenance release.

The Minister has decided to cancel the exemption on the grounds that the Minister is of the opinion that the exemption is no longer in the public interest and in particular that the exemption is likely to adversely affect aviation safety.

In making the decision to cancel the exemption consideration was made of the nature of the defects that may exist, the difficulty of inspection and the serious consequences of a potential blade failure. An overview of the circumstances leading to the decision is attached to this notice.

This cancellation comes into effect at 23:59 Hours UTC, on March 7, 2007.

Following the effective date of this cancellation, the inspections required by AD 2005-21-02 must be performed by an Aircraft Maintenance Engineer (AME) and certified by a maintenance release issued in accordance with Section 571.10 of the Canadian Aviation Regulations. Your Maintenance Control Manual must be amended, where applicable, to remove this task from the list of elementary work.

. . .

[12]     It is not necessary at this point to include the attachment to this notice of cancellation, since the purpose of this application is not to determine the merits of the cancellation decision but to determine whether the Tribunal has jurisdiction to review the matter.

II. MINISTER'S POSITION

[13]     It is the Minister's position that an exemption granted by virtue of section 5.9(2) of the Aeronautics Act is not a CAD as defined in the Aeronautics Act. Rather, the Minister submits that such an exemption is a statutory instrument. Hence, the Tribunal lacks jurisdiction to hear either application.

[14]     The Minister's submissions examine the definition of a CAD, the definition of a statutory instrument and the nature of the section 5.9(2) exemption. The Minister concludes that the exemption by definition falls within the definition of statutory instrument as defined in section 2 of the Statutory Instruments Act, R.S.C. 1985, c. S-22. The Minister concludes that the foregoing interpretation of exemption is confirmed by the wording of section 6.2(1)(d) of the Aeronautics Act which exempts a section 5.9(2) exemption from the application of sections 3, 5 and 11 of the Statutory Instruments Act. (Sections 3, 5 and 11 deal with, respectively, the examination of proposed regulations, transmission and publication in the Canada Gazette.)

[15]     The Minister's representative submits that if, as per section 6.2(1)(d), exemptions made under section 5.9(2) of the Aeronautics Act are deemed exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act then, by necessary implication, such exemptions must be subject to the remaining provisions of that Act. Consequently, section 5.9(2) exemptions must be statutory instruments. If they were not, then they would not be subject to any of the provisions of the Statutory Instruments Act.

[16]     The Minister's representative next examines the definition of a CAD to determine whether an exemption can be a form of "other document" as found in the definition section in the Aeronautics Act. She states that the preceding words in the definition section are "licence", "permit", "accreditation" and "certificate" and concludes that an exemption being a statutory instrument cannot be a CAD as it is distinct and unique from the administrative documents listed in the definition of CAD. The submissions conclude that the exemption is not a CAD and therefore the Tribunal does not have jurisdiction.

III. APPLICANT'S POSITION

[17]     The applicant's representative submits that the waiver in question is manifestly a document. It grants Prism Helicopters authority to do something that would otherwise be prohibited. It is therefore like a "licence, permit, accreditation, certificate or other document". It is issued by the Minister under a provision of Part I of the Aeronautics Act. It is therefore a CAD by definition of section 3 of the Aeronautics Act.

[18]     Furthermore, the waiver offers Prism Helicopters a privilege that is exercised through its approved maintenance organization certificate. It is therefore a CAD by definition of section 6.6 of the Aeronautics Act.

[19]     The applicant's representative further submits that a waiver serves exactly the same function as an alternate means of compliance (AMOC). This particular waiver actually replaced a previously cancelled AMOC that offered exactly the same privileges/authority and which was the object of a Tribunal ruling in Prism Helicopters v. Canada (Minister of Transport), [2005], TATC file no. P-3078-97, which deemed the AMOC to be a CAD. For the same reasons as supported by the Tribunal ruling in the case of the cancelled AMOC, this waiver is a CAD also.

[20]     He urges that the discretionary nature of a waiver issued under section 5.9(2) of the Aeronautics Act is not different than the discretionary powers offered the Minister under section 4.3 of the Aeronautics Act. Since documents issued under section 4.3 have been declared by the Federal Court of Canada to be CADs, it follows that there is no reason to believe that documents issued under section 5.9(2) of the Aeronautics Act would not also be CADs.

IV. DISCUSSION

[21]     Section 7.1 of the Aeronautics Act provides that where the Minister decides to suspend, cancel or refuse to renew a CAD, the Minister's decision to suspend or cancel a CAD takes effect on the date of receipt of the notice and that decision may be the subject of a review by the Tribunal.

A. Statutory Instrument

[22]     I shall first review the Minister's submission that the section 5.9(2) exemption is a statutory instrument.

[23]     Section 2 of the Statutory Instruments Act defines "statutory instrument" as follows:

(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,

. . .

[24]     It is the Minister's position that the exemption issued pursuant to section 5.9(2) of the Aeronautics Act is a statutory instrument as being an "instrument" within section 2(a)(i) of the Statutory Instruments Act. This interpretation of "exemption", the Minister submits, is confirmed by section 6.2(1) of the Aeronautics Act which reads as follows:

6.2 (1) The following are exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act:

(a) a regulation made under paragraph 4.9(l), or a notice issued under section 5.1, that prohibits or restricts the use of any airspace or aerodrome;

(b) a security measure;

(c) an emergency direction;

(d) an exemption made under subsection 5.9(2); and

(e) an interim order made under section 6.41.

[25]     For comparison, we can look to the previous version of section 6.2(1) of the Aeronautics Act, as it existed prior to its amendment in 2004, which reads as follows:

6.2 (1) A regulation, within the meaning of the Statutory Instruments Act, that under this Part prohibits or restricts the use of any airspace or aerodrome, and an order made by the Minister under subsection 4.3(2) in respect of security measures, are exempt from the application of subsections 3(1) and 5(1) and section 11 of that Act.

[26]     Reference to section 5.9(2) exemptions is missing from the list of documents which are exempt from the examination, transmission and publication requirements of the Statutory Instruments Act. If all section 5.9(2) exemptions are by definition "statutory instruments", then they would also have been statutory instruments at the time of the earlier legislation, that is, prior to the current wording of the legislation. If so, they would have been subject to the requirements of the Statutory Instruments Act.

[27]     There may arise situations when the legislation cannot or ought not to apply. In such cases, it is appropriate to issue an "exemption" or "waiver" which excuses compliance from all or part of the legislative requirement in the specified situation. Many exemptions are granted as a "one of" and require deviations from the regulations for a short period of time, as during an air show or for the carriage of construction materials for a phase of a construction project. It would not have been logical to hold that such administrative exemption under section 5.9(2) of the Aeronautics Act be subject to the requirements of a statutory instrument.

[28]     In the matter of Nenn v. Canada (Minister of Transport), [1992], appeal determination, CAT file no. W-0145-33, [1992] C.A.T.D. no. 45 (QL), the applicant was granted an exemption pursuant to section 5.9(2) of the Aeronautics Act which exempted balloon launches within the City of Edmonton within daylight hours if permission was obtained from the appropriate air traffic control unit within 60 minutes prior to launch. This exemption was granted as an administrative exemption and was not treated as a statutory instrument.

[29]     Section 5.9 of the Aeronautics Act authorizes two methods of exemption.

[30]     The first method is legislative. Section 5.9(1) of the Aeronautics Act authorizes the Governor in Council to

make regulations exempting, on any terms and conditions that may be specified in the regulations, any person, aeronautical product, aerodrome, facility or service, or any class of persons, aeronautical products, aerodromes, facilities or services, from the application of any regulation or order made under this Part.

[31]     These regulations are themselves exemptions and because they are regulations, they are statutory instruments and not exempted from the application of sections 3, 5 and 11 of the Statutory Instruments Act as are the exemptions in section 5.9(2).

[32]     The second method of exemption is administrative. According to section 5.9(2) of the Aeronautics Act,

The Minister or an officer of the Department of Transport authorized by the Minister for the purpose of this subsection may, on any terms and conditions that the Minister or officer, as the case may be, considers necessary, exempt any person, aeronautical product, aerodrome, facility or service, or any class of persons, aeronautical products, aerodromes, facilities or services, from the application of any regulation, order or security measure made under this Part if the exemption, in the opinion of the Minister or officer, as the case may be, is in the public interest and is not likely to adversely affect aviation safety or security.

[33]     Hence, section 5.9(2) authorizes exemptions to be made on an administrative basis subject to the two criteria listed. This power to exempt is limited by the requirement that the exemption, in the Minister or its delegate's opinion, be in the public interest and not likely to affect aviation safety.

[34]     I am not persuaded by the proposition that such exemptions are statutory instruments because section 6.2(1)(d) states that an exemption made under section 5.9(2) is exempt from application of the examination, transmission and publication requirements of the Statutory Instruments Act. Rather, to be statutory instruments, they would have to fall within the definition found in section 2 of the Statutory Instruments Act.

[35]     The French version of section 6.2(1)(d) of the Aeronautics Act reads as follows:

6.2 (1) Sont soustraits à l'application des articles 3, 5 et 11 de la Loi sur les textes réglementaires :

. . .

d) toute exemption accordée sous le régime du paragraphe 5.9(2);

[36]     I do not find this section defining or limiting in the way that the Minister suggests, but rather I interpret it to say that an administrative exemption does not attract the requirements of the Statutory Instruments Act, whether they fall within the definition of statutory instruments or not.

[37]     To sum up, I think it is appropriate to say that while all exemptions issued under section 5.9(2) are exempt from the three stated requirements of the Statutory Instruments Act, it does not follow that all exemptions issued under section 5.9(2) are statutory instruments.

B. Canadian Aviation Document

[38]     "Canadian aviation document" is broadly defined in section 3(1) of the Aeronautics Act as:

. . . 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;

[39]     Additionally, section 6.6 of the Aeronautics Act states that " 'Canadian aviation document' includes any privilege accorded by a Canadian aviation document".

[40]     In Aurora Helicopters Ltd. v. Canada (Minister of Transport), [2005], review determination, TATC file no. W-3011-98, [2005] C.T.A.T.D. no. 8 (QL), the Tribunal reviewed the matter of whether the refusal to approve a particular chapter (transportation of dangerous goods) in the applicant's operations manual constituted a refusal to issue a CAD. The Tribunal found that the refusal to approve was reviewable in holding that approving the chapter in question was tantamount to issuing an accreditation or permit thus elevating the approval to the status of a CAD. This determination provides a good review of the words found in the definition of a CAD as follows:

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".

[41]     In addition, I note that The New Shorter Oxford English Dictionary (Oxford: Clarendon Press, 1993) defines "permit" as "permission", "a document giving permission to do a specified thing".

[42]     In Canada (Attorney General) v. Cooper, (1995) [1996] 1 F.C., [1995] F.C.J. no. 1653 (QL), letters purporting to withdraw the Minister's delegated authority to act as designated flight test examiners were found to be CADs. The Minister referred to the following passages from the Federal Court decision:

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.

10 Within the terms of section 6.6 of the Act, the letters accorded a privilege, that is an exceptional advantage or right . . . the exceptional advantage or right being the advantage or right to conduct flight tests, to issue private and commercial pilot licences and multi-engine ratings and to set and collect fees therefore.

[43]     The Federal Court further reviewed the scope of what constitutes a CAD in Canada (Minister of Transport) v. Beingessner, [1996] 3 F.C., [1996] F.C.J. no. 787 (QL). The Court concluded that the suspension of a privilege of a licence endorsement allowing the respondents to fly the A-320 aircraft, following a pilot proficiency check on that aircraft, was a CAD. Hence, it was subject to review by the Tribunal.

[44]     Looking to the current matter, on its face, the section 5.9(2) exemption document was to exempt or exclude Prism Helicopters from the application of section 605.85(1) of the CARs. The purpose of the exemption was contained in the document and described as follows:

The purpose of this exemption is 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.

[45]     Upon reviewing the body of the exemption including its purpose, application and conditions, and considering the CADs above, I conclude that this document would be an accreditation or a permit that, on complying with the conditions and requirements therein, gives to Prism Helicopters a privilege of a waiver from compliance with section 605.85(1) of the CARs. I agree with the submission of the applicant that the waiver herein serves the same function as an AMOC which is also a CAD.

[46]     As I am satisfied that the exemption is a "Canadian aviation document" by definition as being an accreditation or permit, I find as did the Federal Court in Cooper, cited above in ¶ [42], that no question arises that the document might be excluded from the definition by application of the limited class rule or ejusdem generis.

[47]     I find that the Tribunal has jurisdiction to conduct a review of the Minister's decision to cancel the exemption from section 605.85(1) of the CARs which took effect on March 7, 2007. The parties will be contacted by the Tribunal Registry to set the matter down for a review hearing.

March 27, 2007

Faye Smith
Chairperson


Federal Court of Canada (T)


Decision:

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"

Deputy Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: T-693-07

STYLE OF CAUSE:   The Attorney General of Canada

v.

Prism Helicopters et al.

PLACE OF HEARING:   Ottawa, Ontario

DATE OF HEARING: December 5th 2007

REASONS FOR JUDGMENT

AND JUDGMENT BY:   FRENETTE D.J.

DATED: December 20, 2007

APPEARANCES:

Mr. Tzemenakis

FOR THE APPLICANT

No appearance

FOR THE RESPONDENT

Mr. Gerry H. Stobo

Mr. Jack Hughes

FOR THE INTERVENER

SOLICITORS OF RECORD:

John H. Sims

Deputy Attorney General of Canada

FOR THE APPLICANT

Self-represented

FOR THE RESPONDENT

Borden Ladner Gervais LLP

Barristers and Solicitors

World Exchange Plaza

1100-100 Queen Street

Ottawa, ON  K1P 1J9

FOR THE INTERVENER