Decisions

TATC File No. P-3937-99
MoT File No. RDIMS 7390684

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

AAT Global Inc., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., 1985, c. A-2
CAR 421.40(3)


Interlocutory Decision
J. Richard W. Hall


Decision: April 22, 2013

Citation: AAT Global Inc. v. Canada (Minister of Transport),2013 TATCE 12 (Interlocutory Ruling)

Decided on the basis of written submissions

RULING ON JURISDICTION AND REASONS

Held: The Tribunal does not have jurisdiction to review this matter. Consequently, the Tribunal must deny the Applicant's Request for Review.

I. BACKGROUND

[1] On April 4, 2011, the Minister of Transport (Minister) sent a letter to AAT Global Inc. (AAT Global), which renewed an agreement to accept type rating training services provided by AAT Global regarding the issue of multi-crew type ratings (the Agreement). Specifically, the Agreement provided that:

Transport Canada will accept applications recommended by AAT Global Inc. for multi-crew type ratings under CAR 421.40(3) where the type rating training was provided by AAT Global Inc.

[2] The Agreement stipulated nine conditions to be met by AAT Global, and provided that the Agreement would remain in effect until the earliest of four dates, one of which was “the date on which any of the conditions set out in this agreement is breached.”

[3] On March 9, 2012, the Minister sent a Letter of Cancellation to AAT Global for failing to meet the conditions of the Agreement, specifically for failing to send a list of candidates prior to the start of their training. The Minister sent a further letter to AAT Global on April 25, 2012 regarding this cancellation (Letter of Explanation), an electronic copy of which was also sent to the Applicant's Representative by email.

[4] On November 20, 2012, AAT Global submitted to the Transportation Appeal Tribunal of Canada (Tribunal) a Request for Review of the Minister's decision to cancel the Agreement. Prior to scheduling a Review Hearing, however, the Tribunal requested that the Parties provide the Tribunal with submissions on the Tribunal's jurisdiction to hear this matter.

II. ARGUMENTS

A. Minister

[5] In his submissions, the Minister identified three issues to be considered by the Tribunal in determining its jurisdiction on this matter:

  1. Whether the Agreement between AAT Global and the Minister constituted a Canadian Aviation Document (CAD);
  1. If so, which legislative provision gives the Tribunal authority to review this decision;
  1. Whether AAT Global's Request for Review was out of time pursuant to subsection 7.1(3) of the Aeronautics Act, R.S.C., 1985, c. A-2 (Act).

[6] The Minister contends that the Tribunal lacks jurisdiction to hear this matter because the Agreement between AAT Global and the Minister does not constitute a CAD as defined in the Act.

[7] The Minister submits that the Agreement between AAT Global and the Minister must be a CAD in order to qualify for Tribunal review. In applying the elements of the Act's definition of a CAD, the Minister contends that AAT Global's Request for Review must fail, as the Agreement between the Minister and AAT Global is not a licence or permit identified in the CARs, nor is it an accreditation which gives official authorization or status based on meeting standards through a testing or certification process, as noted in paragraph 4.9(a) of the Act. The Minister submits that the Agreement is not a certificate as it does not formally attest to a fact, nor does it provide authorization to act in a specific way.

[8] Moreover, the Minister contends that the Agreement is not an “other document issued… under Part I” of the Act, as described in the definition of a CAD in the Act. Although the Agreement is an acceptance, the Minister suggests that it is not an authorization since it confers no privileges or delegation of authority.

[9] The Minister submits that the Agreement is not a CAD, but additionally submits that if the Tribunal were to find it to be so, the only provision of the Act that could be relevant to a cancellation would be section 7.1.

[10] The Minister argues that should the Tribunal find that the Agreement between AAT Global and the Minister constitutes a CAD, that AAT Global's Request for Review was nevertheless filed “beyond any reasonable allowance which could be applied” to the existing 30‑day limitation period set out in subsection 7.1(3) of the Act. Indeed, the Minister argues that AAT Global did not submit its Request for Review until five and a half months after the Applicant's Representative confirmed receipt of the Letter of Explanation with regard to the Minister's decision to cancel the Agreement. Consequently, the Minister contends that AAT Global's Request for Review is untimely and should not be accepted by the Tribunal.

B. Applicant

[11] The Applicant's Representative submits that the Agreement between AAT Global and the Minister is a document pursuant to the Act. According to the Applicant's Representative, “logic would tell you that if the Minister is cancelling the Agreement, then the Minister has issued the Agreement.” The Applicant's Representative argues that the evidence before the Tribunal demonstrates that the Tribunal has jurisdiction to review the Minister's decision on this point, since the document in question is an “other document” that was issued by the Minister.

[12] With regard to the Minister's submissions regarding the untimeliness of the Request for Review, the Applicant's Representative contends that AAT Global did not receive the Minister's Letter of Cancellation dated March 9, 2012 because the Letter of Cancellation was sent to an old address of AAT Global instead of AAT Global's current address. Consequently, the Applicant's Representative argues that it was not possible for him to file a Request for Review of the Minister's decision within the 30‑day period set out in the Act.

[13] The Applicant's Representative submits that the five agreements written by the Minister over the past 13 years constitute an “other document issued by the Minister” as noted in the Act, which is within the Tribunal's jurisdiction to review.

C. Minister's Reply

[14] The Minister submits that it is important to distinguish between the acceptance of evidence demonstrating the completion of each requirement prior to the issuance of a CAD, and the actual issuance of a CAD to an individual.

[15] The Minister submits that correspondence which serves to pre-accept specific elements of evidence towards the issuance of a CAD for future applicants is not found in any CAD-related provision in Part I of the Act, and as such cannot be considered an “other document issued … under Part I” as found in the definition of a CAD.

[16] Moreover, the Minister argues that withdrawing a pre-acceptance of evidence demonstrating a completion of a prerequisite for a licensing action is not the same as refusing to issue the CAD, since no CAD is being applied for in this case.

D. Applicant's Reply

[17] In his final reply, the Applicant's Representative states that “AAT Global categorically rejects all 16 items in the letter from Mr. Walker to [the Tribunal] of February 1, 2013.”

III. ANALYSIS

[18] The Tribunal is a creature of statute. As such, any powers exercised by the Tribunal must be provided for in statutory law. Subsection 2(2) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 (TATC Act), provides that the Tribunal has jurisdiction in respect of reviews and appeals as expressly provided under the Act, as well as the other statutes enumerated in that subsection.

[19] The jurisdiction provided to the Tribunal under the Act is limited to the powers to review decisions made by the Minister in relation to: a) CADs, as found in section 6.72 (a request for review resulting from a refusal to issue or amend a CAD); section 6.9 (an enforcement suspension or cancellation of a CAD); section 7 (a suspension of a CAD for an immediate threat to aviation safety or security); section 7.1 (a suspension, cancellation or refusal to renew a CAD); and in relation to: b) the assessment of monetary penalties under section 7.7 of the Act.

[20] The matter at hand is not related to an assessment of a monetary penalty. As such, the Agreement between the Minister and AAT Global must qualify as a CAD in order for the Tribunal to have jurisdiction on this issue.

[21] The Act defines a CAD 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.” Based on this definition, the Agreement must constitute a licence, permit, accreditation, certificate or other document issued by the Minister under Part I of the Aeronautics Act in order to qualify as a CAD.

[22] While the range of documents that fall under the definition of a CAD may seem broad, the scope of documents that qualify as a CAD is limited by the terms “issued by the Minister” and “under Part I”. In this matter, there is no question that the Agreement was issued by the Minister. However, in order for the Agreement to constitute a CAD, it must also be shown to have been issued under Part I of the Act.

[23] To be considered a CAD for the purposes of the Act, a document must be made pursuant to a statutory provision which expressly authorizes the Minister to issue such a document. No provision exists under Part I of the Act which provides for the acceptance, accreditation or certification of the flight training services of an organization like AAT Global. Since no provision in the Act expressly provides for an agreement such as that between the Minister and AAT Global, the Agreement cannot be seen to fulfill the requirement of being made under Part I of the Act.

[24] Since the Agreement between the Minister and AAT Global was not created pursuant to Part I of the Act, the Agreement does not qualify as a CAD. Consequently, the Tribunal has no jurisdiction to review the Minister's decision to cancel the Agreement.

IV. RULING

[25] The Tribunal does not have jurisdiction to review this matter. Consequently, the Tribunal must deny the Applicant's Request for Review.

April 22, 2013

J. Richard W. Hall

Chairperson