Decisions

TATC File No. W-4195-10
MoT File No. 5258-5319

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Buffalo Airways Ltd., Respondent

LEGISLATION:
paragraph 7.1(1)(c) of the Aeronautics Act, R.S.C., 1985, c. A-2
subsection 7.1(3) of the Aeronautics Act, R.S.C., 1985, c. A-2


Interlocutory Decision
Alex Phillips


Decision: July 13, 2016

Heard By: Written Submissions

RULING ON THE MOTION TO STRIKE THE REQUEST FOR REVIEW

Held: The Minister of Transport's preliminary motion asking the Tribunal for an Order to strike Buffalo Airways Ltd.'s request for review of the Minister's decision to suspend its Air Operator Certificate is denied. Buffalo's compliance with the conditions for the reissuance of an Air Operator Certificate does not render the request for review by the Tribunal to be moot, as alleged by the Minister, because there remains a controversy and live issues between the parties that continues to affect their rights. I find that Buffalo's request for review should proceed to be considered by the Tribunal because it is not moot. I also find that I was not seized of the Minister's preliminary motion for reasons that are frivolous or vexatious and therefore, Buffalo's request for costs to defend the motion is denied.  

I. BACKGROUND

[1] The Minister of Transport (Minister) issued a Notice of Suspension (NOS) of Buffalo Airways Ltd.'s (Buffalo) Air Operator Certificate (AOC) on November 20, 2015, to be effective in 10 days on November 30, 2015.

[2] The NOS was issued under the authority of paragraph 7.1(1)(c) of the Aeronautics Act, R.S.C., 1985, c. A-2 (Act), as the Minister was of the opinion that the public interest and, in particular, Buffalo's safety record, warranted it.

[3] On December 30, 2015, Buffalo requested a review of the Minister's decision to suspend its AOC before the Transportation Appeal Tribunal of Canada (Tribunal) under the authority of subsection 7.1(3) of the Act.

[4] On January 12, 2016, the Minister reinstated Buffalo's AOC when all conditions for terminating the suspension were complied with by Buffalo. Buffalo resumed its operations on January 13, 2016.

II. SUBMISSIONS

A.  Minister

[5] The Minister submits that the Tribunal should decline to hear Buffalo's review of the Minister's decision of November 20, 2015 on the basis that: the Tribunal's statutory authority is restricted to confirming the Minister's decision or referring the matter back to the Minister for reconsideration pursuant to subsection 7.1(7) of the Act and; because Buffalo has already complied with the reinstatement conditions and its AOC has been reinstated by the Minister, neither a confirmation nor a refer-back determination of the Tribunal will have any practical effect, as the dispute has become academic. It is now moot.

[6] The Minister also submits that given there was no objection or opposition to the grounds for suspension or the conditions for reinstatement, and Buffalo fulfilled them, neither the Minister's decision nor a review determination of the Tribunal would have any impact on the parties, the circumstances or act as precedent.

[7] In making these submissions, the Minister relies on Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (Borowski), where the Supreme Court of Canada held that the doctrine of mootness will apply in a judicial context when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to hear the case.

[8] The Minister also submits, relying on Borowski, that the Tribunal should not exercise its discretion to review the Minister's decision in any event if it finds the controversy or issue in dispute underlying Buffalo's review application is now moot. However, because I find the opposite for the reasons outlined below (i.e. that the controversy is not moot), I have not outlined those submissions here, although I have reviewed them.

[9] Lastly, the Minister submits that the Federal Court's decision in Skyward Aviation Ltd. v. Canada (Transport), 2008 FC 325 (Skyward), which is relied upon by Buffalo, should be distinguished on the facts. The Minister submits Skyward Aviation Ltd. objected to its alleged wrongdoing and to the Minister's NOS reinstatement conditions when it took action to comply with those conditions leading to the NOS being rescinded by the Minister, whereas Buffalo worked collaboratively with Transport Canada to fulfill the conditions without objection to the conditions they were required to fulfill for reinstatement of its AOC.

B.   Buffalo Airways Ltd.

[10] Buffalo submits that it filed a request with the Tribunal on December 30, 2015 for a review of the Minister's decision to: (a) issue a November 20, 2015 NOS to suspend its AOC effective November 30, 2015; (b) refuse to grant its requests for an extension of the 10-day notice period to postpone the effective date of the suspension; and (c) refuse to reinstate its AOC prior to January 12, 2016 after Buffalo supplied corrective actions to Transport Canada to satisfy the reinstatement conditions of the NOS.

[11] Buffalo submits that even though its AOC was reinstated because it complied with the reinstatement conditions, it objected to and continues to object to both those conditions and the Minister's reasons for the NOS because it remains affected by the Minister's decisions in that it must continue to comply with those conditions in order to maintain its AOC, or otherwise risk having its AOC suspended again.

[12] Buffalo further submits that the Tribunal is bound by the Federal Court's decision in Skyward and its general rule that an appeal of a rescinded NOS to the Tribunal is not moot. As a result, Buffalo submits that the Tribunal must hear its request for review of the Minister's decisions because its compliance with the reinstatement conditions of the Minister's NOS and the Minister's reinstatement of its AOC does not render the issues in its request for such a review moot.

[13] Buffalo submits then that despite its compliance efforts and the reinstatement of its AOC, Buffalo is and remains entitled to have the Tribunal review the following live issues: the merits of the Minister's decision to use paragraph 7.1(1)(c) of the Act as the basis for the NOS; the merits of the reinstatement conditions which it submits are not supportable and continue to be onerous; and the procedural fairness of the Minister's decision to restrict the effective date of the NOS to 10 days, rather than provide for at least a 30-day notice in the circumstances.

[14] By reviewing the reasons for suspension of its AOC and reinstatement conditions imposed upon it, Buffalo submits a review by the Tribunal to confirm the Minister's decisions (or not) will accord Buffalo the opportunity to clear its aviation record by having the NOS reconsidered and possibly set aside if the Minister's decisions are not supportable.

[15] Lastly, relying upon paragraph 33 of Skyward, Buffalo submits that so long as the Minister continues to hold that Buffalo was in breach of its AOC conditions and requires Buffalo to comply with the reinstatement conditions, the decision to suspend remains a live controversy.

[16] In short, Buffalo submits that its application is not moot and the Tribunal should deny the Minister's motion to dismiss Buffalo's request for review.  

[17] In addition, Buffalo respectfully requests that it be granted costs for having to defend the Minister's motion. However, Buffalo makes no submission on whether the Minister's motion is either frivolous or vexatious.  

C.   Minister's Reply

[18] The Minister submits in its reply regarding Buffalo's submissions that Buffalo did not agree with the grounds for suspension of the AOC or the conditions for reinstatement, and that an Affidavit of Thomas R. McBryan, the accountable executive for Buffalo, should be given little or no weight because there has been no cross-examination of Mr. McBryan's evidence and no opportunity to test the veracity of his statements.

[19] In addition, the Minister submits that in the supporting documents to Buffalo's request for review filed December 30, 2015 and the exhibits to the McBryan Affidavit, there is no objection to any grounds of the NOS or reinstatement conditions. Moreover, there are a number of references in these documents setting out the cooperation and collaboration between the parties, and efforts to address the grounds or conditions in the NOS.

[20] In short, the Minister submits the key point is that, unlike Skyward, Buffalo did not object to the grounds or reinstatement conditions. Buffalo's only objections related to the time frame for the effect of the suspension, therefore Skyward is easily distinguished in the circumstances.

[21] The Minister also submits that Buffalo's request for review is not a case where an air operator was forced to comply with conditions for reinstatement when there were deficiencies or errors in the grounds set out in the NOS, as suggested in Skyward.

[22] The Minister relies on its previous submission that there is no longer a live issue with the fulfillment of the conditions for terminating the suspension and the reinstatement of Buffalo's air operator certificate.

[23] The Minister submits, therefore, that the Tribunal should exercise its discretion to decline to hear this matter and dismiss Buffalo's application for a review hearing on the basis of mootness.

[24] In respect of Buffalo's request for costs in defending the Minister's motion, the Minister submits that the Tribunal's jurisdiction to award any costs is limited by subsection 19(1) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, and the Tribunal can only award costs if the Tribunal finds it is seized of the matter (i.e. the Minister's preliminary motion and application for an Order to strike Buffalo's request for review in this case) for reasons that are frivolous or vexatious.

[25] The Minister submits that this application is not frivolous or vexatious and that Buffalo is not entitled to costs.

III.  DISCUSSION

[26] The Tribunal has jurisdiction in respect of Buffalo's request for review as expressly provided for under the Aeronautics Act, pursuant to subsection 2(2) of the Transportation Appeal Tribunal of Canada Act.  

[27] Specifically, subsection 7.1(3) of the Aeronautics Act provides for the review of the Minister's decision made pursuant to paragraph 7.1(1)(c) of the Act to issue its NOS on November 20, 2015 to Buffalo and to suspend Buffalo's AOC effective on November 30, 2015, provided Buffalo made its request for the review within 30 days of the NOS being served to them. Buffalo met this deadline by filing its request with the Tribunal on December 30, 2015. From that date forward, the Tribunal has been seized with the jurisdiction to review the Minister's decision to suspend. In addition, on this review the Tribunal may determine the matter by either confirming the Minister's decision to suspend or by referring the matter back to the Minister for reconsideration, pursuant to subsection 7.1(7) of the Act.

[28] On March 17, 2016, the Minister filed a Notice of Application with the Tribunal and made the preliminary motion now before me asking for an Order to strike Buffalo's request for review. The basis for this motion is the following: the Minister argues there is no longer a live issue or controversy between the parties and the Minister's decision to suspend is moot.

[29] The Minister argues the decision is now moot because Buffalo has already complied with the reinstatement conditions in the NOS, and its AOC was reinstated on January 12, 2016 by the Minister. Consequently, the Minister argues that a Tribunal determination that either confirms the Minister's decision to suspend or refers the matter back to the Minister for reconsideration, would not have any practical effect as the “dispute” is now academic. The Minister further argues that there was no objection or opposition to the grounds for suspension or the conditions for reinstatement made by Buffalo when Buffalo took action to comply with the reinstatement conditions. Having complied with the reinstatement conditions, a Tribunal determination on the review of the Minister's decision to suspend (i.e. to either confirm the Minister's decision or refer the matter back to the Minister) would not have any impact on the parties.  

[30] In response to this motion, Buffalo argues the validity of the reinstatement conditions in the NOS and the Minister's decision to suspend is still a live issue and is therefore not moot. Buffalo argues that it objected to, and continues to object to, both the reinstatement conditions and the Minister's decision to suspend because that decision is now part of its safety record and it must continue to comply with these “onerous” conditions to maintain its AOC.

[31] Buffalo also argues that the Minister's decision to suspend is comprised of a series of decisions being that its request for review by the Tribunal seeks to have the Tribunal consider the following “live” issues: the merits of the Minister's decision to issue the NOS pursuant to paragraph 7.1(1)(c) of the Aeronautics Act; and, the merits of the reinstatement conditions and the procedural fairness of providing for a 10-day notice period for the suspension to become effective. Buffalo argues that consideration of these issues by the Tribunal will accord Buffalo the opportunity to clear its aviation record, given that the Minister continues to hold that Buffalo was in breach of its AOC conditions and requires Buffalo to comply with the NOS reinstatement conditions.

[32] The Supreme Court of Canada in Borowski outlines the legal principle of “mootness” as follows:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. ... [Emphasis added].

[33] The issue before me on this motion is whether or not there remains a live controversy in respect of the Minister's decision to suspend Buffalo's AOC pursuant to paragraph 7.1(1)(c) of the Aeronautics Act, which affects or may affectthe rights of the parties, notwithstanding that Buffalo's AOC was later reinstated once Buffalo had complied with the NOS reinstatement conditions at a time (on January 12, 2016) which is prior to the time now when the Tribunal is being called upon to make a decision on Buffalo's request for review (which it filed on December 30, 2015).

[34] Justice Snider of the Federal Court faced this same issue in Skyward, albeit on slightly different facts, wherein the Minister rescinded a 30-day NOS two days before it was to come into effect. Although Skyward objected to the NOS reinstatement conditions, it nevertheless took action to comply with them to restore its AOC as soon as possible. In the case before me, the Minister did not rescind the NOS. That NOS took effect on November 30, 2015. Buffalo objected to its reinstatement conditions by filing its request for Tribunal review on December 30, 2015 and thereafter, Buffalo complied with those reinstatement conditions in order to have its AOC reissued as soon as possible on January 12, 2016.  

[35] In Skyward, the Federal Court held that the approach to determining whether a live controversy or issue still exists is as follows:

[Emphases added]

[24] ... the Tribunal considered that there was only one decision - the decision to suspend. However, when exercising its authority under the Act, the Minister's decision to suspend is, in fact, more complex. The first decision made by the Minister was the determination that Skyward's operations did not comply with its AOC. The second decision was that the penalty or sanction to be imposed was suspension of Skyward's AOC. In addition, the Minister determined that Skyward's suspension would not immediately come into force. ...

[26] It is obvious that a review of the Notice would entail a full review of the reasonableness of all of the Minister's findings. The Tribunal's jurisdiction would be exercised on two fronts, by reviewing and determining whether the alleged contravention of the AOC took place and by reviewing the appropriateness of the sanction (suspension) imposed by the Minister. However, in the case before me, it was not possible for the Tribunal's review to be completed in the time period before the suspension was to come into effect. The Tribunal could not have been expected to complete a review of the decision given the short time frames involved in the suspension and under the Act.

[27] ... Thus, an operator in receipt of a Notice will almost certainly comply with the conditions for reinstatement set out in the Notice, regardless of whether the Minister's findings have any merit or whether the Minister acted in good faith and on the basis of all the information before it....

[28] The matter does not end with the rescission of the Notice. The operator must continue to operate in accordance with the Minister's findings or risk the issuance of another Notice. With no opportunity for review of the Minister's decisions by the Tribunal, the operator is forced into compliance, regardless of the merits and regardless of whether the deficiencies are supportable on the evidence in the first place. As a result of this unusual characteristic of the decision-making process, an operator is seriously affected, on an on-going basis, by the underlying non-compliance determination….

[33] ... The rescinding of the Notice does not change the fact that a decision to suspend was made. The only question is whether the “decision” disappears because Skyward chose to meet the demands of the Minister to ensure its continued operation. In my view, it does not. So long as the Minister continues to hold that Skyward was in breach of its AOC conditions and requires Skyward to comply with its demands, the decision to suspend exists. Only the implementation of the Notice is suspended.

[34] ... Skyward continued to be affected by the “decision ... referred to in subsection (1)” long after the Minister rescinded the notice of suspension.

[36] In short, s. 7.1(3) does not state that a decision has to come into force, only that the decision affect the operator. In this case, it is evident that an operator who is required to comply with the conditions for reinstatement that were set out in the Notice continues to be affected by the decision to suspend.

[38] The overall object of the Act is air safety. How does the Tribunal fit into that overall objective?

[39] ... “An effective enforcement process must give due regard to the rights of those against whom administrative action is taken. ... In order to fully protect the rights of those affected by disciplinary action, the creation of a Civil Aviation Appeal Tribunal is required.”

[43] ... Consistent with the purposes for which the Tribunal was established, that right should be available where decisions of the Minister have continuing effect on an operator. This right to a review ... should not be extinguished by an overly restrictive interpretation of the enabling legislation.

[44] ... Even though the actual decision to suspend was withdrawn by the Minister, the alleged breaches continued to exist and impact the operations of Skyward. ... The power of the Minister to impose conditions in the interests of air safety is balanced by the right of Skyward to have the conditions reviewed by the Tribunal….

[36] I accept the Minister's argument that I should give little or no weight to the Affidavit of Mr. McBryan, being new evidence related to Buffalo's continuing objection while it complied with the NOS reinstatement conditions, because I am hearing a preliminary procedural motion on the record, not determining the merits of the request for review at this stage, and because there has been no opportunity for the Minister to cross-examine Mr. McBryan on his Affidavit.

[37] However, for the purposes of deciding the motion before me, I can and do take judicial notice of the fact that Buffalo filed a request for review of the Minister's decision to suspend on December 30, 2015. In and of itself, the action of requesting a review indicates an intention on Buffalo's part to object to the Minister's decision to suspend.  

[38] I also note that the Federal Court in Skyward has held that the Minister's decision to suspend is effectively a series of decisions, and that as a result Buffalo has the legal right pursuant to subsection 7.1(3) of the Act, in any event, to challenge the following: the Minister's determination that Buffalo's operations did not comply with its AOC; the nature of the penalty being a suspension of its AOC with reinstatement conditions; and the fairness of the 10-day notice period for the NOS to become effective.  

[39] Within the contents of Buffalo's request for review of December 30, 2015, it is also clear on the record before me (i.e. notwithstanding the Affidavit), that Buffalo not only objected to the 10-day notice period, but also the “public interest” grounds relied on by the Minister for the NOS and therefore the validity of the NOS being issued at all. I also draw an inference of fact that the Corrective Action Plans (CAPS) proposed by Buffalo were made because it objected to the nature and extent of the reinstatement conditions required by the NOS.  

[40] For the above reasons, I do not accept the Minister's argument that unlike Skyward, Buffalo did not object to the grounds or the reinstatement conditions when it decided to take action to comply with the NOS conditions.  

[41] I turn now to the question of whether or not Buffalo's compliance with the NOS reinstatement conditions and reissuance of its AOC based on those conditions on January 12, 2016, makes its December 30, 2015 request for review of the Minister's decision to suspend “moot”.

[42] The Minister argues the Tribunal should exercise its discretion not to conduct its review of the Minister's decision because any determination to confirm that decision or refer it back to the Minister for reconsideration will not have any practical effect, and that the “dispute” has become academic. In addition, the Minister argues any determination of the Tribunal will also not have any impact on the parties, the circumstances, or act as a precedent.    

[43] For the reasons outlined below, I disagree with both points and find that there remains a live controversy or series of issues associated with the Minister's decision to suspend Buffalo's AOC and therefore, Buffalo's request for a review by the Tribunal is not moot.

[44] I find that the legal principles in Skyward outlined by the Federal Court apply where the NOS reinstatement conditions are complied with by an operator to have its AOC restored forthwith, whether it does so after the suspension becomes effective (after a 10-day NOS as in this case) or before the suspension becomes effective (before a 30-day NOS and the NOS is rescinded as in Skyward). I find that this minor difference is insufficient to permit me to distinguish Skyward on its facts overall where an operator takes steps to comply with the NOS conditions and the Minister's decision to suspend affects, and may continue to affect, the rights of the parties as outlined below.

[45] In short, I find that the reissuance of an AOC based on compliance of the NOS reinstatement conditions does not change the fact that the decision to suspend was made by the Minister. Similarly, as Justice Snider pointed out in Skyward at paragraph 33, the Minister's decision does not disappear because Buffalo chose to meet the demands of the Minister to ensure its continued operation. As long as the Minister continues to hold that Buffalo was in breach of its AOC conditions and requires Buffalo to comply with its reissued AOC based on the NOS reinstatement conditions, the decision to suspend exists.

[46] I also find, applying the principles established in Skyward, that subsection 7.1(3) of the Aeronautics Act, which allows for a request for review to be made to the Tribunal, requires that the Minister's decision to suspend only affect, or continue to affect, an air operator.

[47] In this case, it is evident that Buffalo was required to comply with the conditions for reinstatement to have its AOC reissued forthwith and that Buffalo continues to be affected in the future in that it must comply with the NOS reinstatement conditions or risk losing its AOC for a second time. In addition, the NOS conditions and suspension continue to form part of Buffalo's safety record which can be taken into account in determining whether Buffalo's reissued AOC may be suspended in the future. The NOS and suspension therefore affect the legal rights of the parties – the Minister's right to suspend an AOC based on the public interest and air safety, and Buffalo's legal right to operate under the Aeronautics Act with its AOC.

[48] Applying the legal test for “mootness” from Borowski to the above findings of fact, I find that the Minister's decision to issue a 10-day NOS with reinstatement conditions on November 20, 2015, affects or may continue to affect the rights of the parties, such that there remains a live controversy and series of issues associated with the Minister's decision, which Buffalo is entitled to have reviewed by the Tribunal. Such a review is not an academic exercise. A review and possible determination by the Tribunal to refer the Minister's decision back to the Minister for reconsideration would have the potential for clearing Buffalo's record.

[49] For the above reasons, Buffalo's request for a review by the Tribunal is not moot.

[50] The Tribunal should proceed to hear Buffalo's request for review. In doing so, the Tribunal's jurisdiction and scope of review should be guided by Justice Snider's findings in Skyward as follows:

[45] ... the correct interpretation of s. 7.1 of the Act incorporates the following elements:

  • The Minister's decision includes all aspects of the Minister's determination that led to the issuance of the Notice of Suspension and is not limited simply to the Notice itself. ...
  • The Tribunal may conduct a review of the re-instatement conditions to assess whether, on the evidence before it, the Notice should be confirmed ... That is, the Tribunal may determine that the Minister did not err in its decision that Skyward was in breach of the terms of its AOC.
  • If the Tribunal determines that any or all of the re-instatement conditions cannot be sustained on the evidence before it, the matter can be sent back to the Minister for reconsideration. While the Minister would not be determining whether a Notice of Suspension should issue, he would be reconsidering whether Skyward was in breach of the conditions of its AOC at the time the Notice was issued. This is not just an academic exercise; any reconsideration would have the potential for clearing Skyward's record.

IV.  RULING

[51] I find the Tribunal currently has jurisdiction to hear Buffalo's December 30, 2015 request for review of the Minister's decision of November 20, 2015 to issue a 10-day NOS with conditions to reinstate Buffalo's AOC.

[52] I find Buffalo's compliance with those conditions and the reissuance of an AOC by the Minister does not render that request for review by the Tribunal to be moot because the Minister's decision still exists and continues to affect the parties' rights, and a live controversy or series of issues between the parties still remains.  

[53] I find the Minister's decision to suspend Buffalo's AOC is not moot. The Minister's preliminary motion and application for an Order to strike Buffalo's request for review by the Tribunal is therefore denied.

[54] I also decline to award costs to Buffalo pursuant to subsection 19(1) of the Transportation Appeal Tribunal of Canada Act because I also find the Minister's preliminary motion and application for an Order to strike Buffalo's request for review is not frivolous or vexatious. The Minister's motion was reasonably purposeful and not lacking in merit to be pursued, nor was there any evidence or argument made by Buffalo that the motion was instituted maliciously and without good cause.