Decisions

TATC File No. P-3329-27
MoT File No. 5802-403844 (TAR)

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Zivorad Milosavljevic, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, ss. 3(1); 3(3) and 6.6
Canadian Aviation Regulations, SOR/96-433, s. 400.02
Personnel Licensing and Training Standards Respecting Flight Crew Permits, s. 421.49(4)

Ministerial decisions, Jurisdiction to Review, Failure to renew the licence, Canadian aviation document (CAD), Administrative penalty


Interlocutory Decision
Faye H. Smith


Decision: May 11, 2007

Citation: Milosavljevic v. Canada (Minister of Transport), 2007 TATCE 12

Decided on the basis of written submissions

Held: I find that the Tribunal does not have jurisdiction to review a decision of the Minister of Transport made pursuant to section 400.02(2) of the Canadian Aviation Regulations, SOR/96-433. Specifically, the Minister's decision that the applicant herein may not attempt any examination before December 21, 2007 is not reviewable by this Tribunal. The Tribunal makes no order on costs.

I. BACKGROUND

[1]     The applicant herein Zivorad Milosavljevic is stated to be a licensed pilot holding a Canadian airline transport pilot licence (ATPL) no. AA 403844.

[2]     On December 29, 2006, Mr. Milosavljevic took a written examination at the Transport Canada aviation examination centre at Vancouver, British Columbia, for the purposes of renewing his ATPL.

[3]     The Minister of Transport states that there is evidence to support the finding that Mr. Milosavljevic copied part of the examination questions on a piece of paper which he attempted to remove from the Transport Canada office. The Minister further states that this is an act prohibited by section 400.02(1)(a) of the Canadian Aviation Regulations (CARs).

[4]     On January 2, 2007, Transport Canada sent a letter to Mr. Milosavljevic informing him that Transport Canada believed that he had committed an act contrary to section 400.02(1) of the CARs. Consequently, he could not apply for another examination until December 21, 2007. The letter also advised Mr. Milosavljevic that he could file a request with the Transportation Appeal Tribunal of Canada for a review of the Minister's decision.

[5]     On January 17, 2007, Mr. Milosavljevic filed a request with the Tribunal for a review of the Minister's decision prohibiting him from attempting the examination for one year.

[6]     On February 23, 2007, the Minister rescinded the notice issued on January 2, 2007, and advised Mr. Milosavljevic that the Minister now wished to challenge the jurisdiction of the Tribunal to review the Minister's decision prohibiting the applicant from attempting the examination for one year.

II. MINISTER'S SUBMISSIONS

[7]     The Minister of Transport submits that the prohibition set out in section 400.02(2) of the CARs from taking an examination for a period of a year following commission of a prohibited act under section 400.02(1)(a) is not a decision of the Minister. It is a consequence of the determination that the prohibited act has been done. Neither the decision to find that the prohibited act has been committed nor the consequence of that decision is a Canadian aviation document (CAD), and consequently the Tribunal does not have jurisdiction over the matter.

[8]     The Minister also submits that once it has been determined that Mr. Milosavljevic committed the prohibited act under section 400.02(1)(a) of the CARs, then section 400.02(2) takes effect. The section does not provide any discretion to the Minister to make a "decision". It operates as a matter of course once the above-mentioned offence has been committed. Therefore, it is the submission of the Minister that the prohibition from attempting the examination in section 400.02(2) is not a decision of the Minister in respect of a CAD that is reviewable by the Tribunal.

[9]     The Minister's submissions make an extensive review of the definition of a CAD as defined in sections 3(1) and 3(3) of the Aeronautics Act, R.S.C. 1985, c. A-2, as am. by R.S., c. A-3, and the privilege related thereto in section 6.6 of that Act.

[10]     The Minister of Transport submits that an examination has to be completed successfully before an application for a renewal of the rating is made. There is a process to follow before being able to apply for a renewal of a rating. In the present case, Mr. Milosavljevic was seeking to have his instrument rating renewed in accordance with section 421.49(4) of the Personnel Licensing and Training Standards Respecting Flight Crew Permits, Licences and Ratings. He cannot apply for a renewal of his instrument rating since he has not obtained a 70 percent in the written examination (INRAT) as required by section 421.49(4).

[11]     It is the Minister's submission that the determination that Mr. Milosavljevic has committed a prohibited act is not a decision in respect of a CAD because no application has been made. Mr. Milosavljevic has not completed the pre-requisites necessary to apply for the renewal of his rating yet and this is a second reason why the matter is not reviewable by the Tribunal.

III. APPLICANT'S SUBMISSIONS

[12]     The applicant submits that the central issue in this case in relation to the motion is whether the Tribunal has original legal jurisdiction to review the administrative action taken against Mr. Milosavljevic by the Minister on January 2, 2007 on the basis of his request for a review hearing filed with the Tribunal on January 17, 2007, and whether such jurisdiction continues notwithstanding the Minister's purported rescission of February 23, 2007.

[13]     The applicant further submits that the Tribunal has a general jurisdiction to hear Mr. Milosavljevic's case on the basis of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29. This general jurisdiction arises by virtue of the penalty that the Minister has imposed: Mr. Milosavljevic's licence has been effectively suspended for a period of one year. Since Mr. Milosavljevic will not be permitted to write an aviation examination for one year, he cannot complete the INRAT examination. Successfully passing the INRAT examination is required to obtain an instrument rating, and a group l instrument rating is mandatory so as to be able to exercise the privileges of his ATPL, as per section 401.34(1) of the CARs.

[14]     The applicant also submits that the Tribunal has specific jurisdiction found in section 7.1(3) of the Aeronautics Act as cited in the Minister's letter of January 2, 2007, wherein it imposed the one-year prohibition on Mr. Milosavljevic from writing the examination.

[15]     The applicant states that the CAD at issue is the ATPL of Mr. Milosavljevic referred to above and in any event CAD is given a wide interpretation by law and includes the related "privileges" of such document as set out in Canada (Minister of Transport) v. Beingessner, [1996] 3 F.C., [1996] F.C.J. no. 787 (QL) cited by the Minister in his authorities.

[16]     Finally, the applicant takes issue with the Minister's contention that the Tribunal has no jurisdiction to conduct a review where a penalty against a licence holder arises in relation to a licensing "pre-requisite" where an application for a licence or rating has been made. The enabling legislation is clearly directed at establishing a process of review by the Tribunal for the suspension or cancellation of licences which has been done to Mr. Milosavljevic in the present case (without the completed INRAT examination, he cannot acquire a group l instrument rating and thus cannot enjoy the privileges of his ATPL for a period of one year). Mr. Milosavljevic is not applying for his first pilot licence; he is a pre-existing licence holder at the ATPL level and is merely following the rules to keep his qualifications current.

IV. DISCUSSION

[17]     The applicant states in ¶ 13 of his submissions that the administrative penalty imposed against him is the one-year prohibition cited in section 400.02(2) of the CARs. However, it is my view that this is not in the nature of a penalty that is reviewable by the Tribunal. The Minister's notice dated January 2, 2007 could thus not confer jurisdiction on the Tribunal where such did not exist. There is accordingly no general jurisdiction in the Tribunal to review all ministerial decisions. Rather, the Tribunal's jurisdiction is that established by the Aeronautics Act scheme as found in sections 6.6 to 7.21 and 7.6 to 8.2 which includes in section 6.6 that conferred by way of privilege attaching to a CAD, as found in Beingessner, cited above in ¶ [15].

[18]     Although in ¶ 19 of his submissions the applicant's counsel refers to section 7.1(3) of the Aeronautics Act, it is my view that this section is only applicable where as is stated in section 7.1(1) the Minister has decided to suspend, cancel or refuse to renew a CAD, which is not the case at hand. On the facts of this case, the applicant falls short of being in a position to have his licence renewed as he has not met all prior conditions to such issue. This latter point is a matter of agreement of both parties as found at ¶ 18 of the applicant's submissions and as well as at ¶ 23 of the Minister's submissions.

[19]     I find that the Tribunal does not have jurisdiction to review a decision of the Minister of Transport made pursuant to section 400.02(2) of the CARs. Specifically, the Minister's decision that the applicant herein may not attempt any examination before December 21, 2007 is not reviewable by this Tribunal. The Tribunal makes no order on costs.

May 11, 2007

Faye Smith
Chairperson