Guide for Applicants - Marine

Background

The Transportation Appeal Tribunal of Canada is a quasi-judicial body established in June 2003 (S.C 2001, c. 29) to provide for an independent process of review of administrative and enforcement actions — including the suspension,  cancellation, refusal to renew, or the refusal to issue or amend documents of entitlement, the issuance of railway orders, and the imposition of administrative monetary penalties — taken under various federal transportation Acts.

The Transportation Appeal Tribunal of Canada replaces the Civil Aviation Tribunal which was established under Part IV of the Aeronautics Act in 1986. The Tribunal has 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.

The Tribunal also has jurisdiction in respect of reviews and appeals in connection with administrative monetary penalties provided for under sections 177 to 181 of the Canada Transportation Act, sections 43 to 55 of the International Bridges and Tunnels Act and sections 129.01 to 129.19 of the Canada Marine Act.

Independence

The Tribunal reports to Parliament, and its key feature is its independence from any government department.

Organization

In accordance with the Transportation Appeal Tribunal of Canada Act, the Governor in Council has appointed a full-time Chairperson and Vice-Chairperson to the Tribunal. The other members of the Tribunal are drawn from across Canada and are appointed as full or part-time members by Order in Council on the basis of their expertise in relevant transportation sectors and in medicine. The Chairperson has supervision over, and the direction of the work of the members and staff of the Tribunal.

The Tribunal provides a system within which hearings can be scheduled and conducted promptly, fairly and informally.

Levels of Hearings

There are two levels of hearings:

(1) The first level of hearing, conducted by one Tribunal member, is a REVIEW of:

  • the Minister of Transport's decision to suspend, cancel or refuse to issue or amend, or renew a Canadian maritime document.
  • the Minister's decision to issue a notice of violation, or issue a notice of default, where the Minister believes on reasonable grounds that there has been a breach of a designated provision or of an assurance of compliance.

(2) The second level of hearing, usually heard by a designated chairperson and two other Tribunal members, is an APPEAL of the determination rendered by the Tribunal member at the first level.

The member who conducted the first hearing will not be involved in the second hearing. This appeal is based on the arguments, evidence and exhibits contained in the transcript and record of the review hearing. Only evidence not previously available may be presented at the appeal hearing.

Application for Review Hearing

A request for a review hearing must be filed in writing with the Tribunal, on or before the date specified in the notice or within any further time that the Tribunal on application allows.

This application may be sent by mail, facsimile, electronic mail or delivered in person to the Transportation Appeal Tribunal of Canada Registry at the following address:

The Transportation Appeal Tribunal of Canada
333 Laurier Avenue West
Room 1201
Ottawa, Ontario
K1A 0N5

fax no.: 613-990-9153
e-mail: info@tatc.gc.ca

The application should contain the following information:

  • name, address and telephone numbers;
  • copy of the notice of violation received from the Minister of Transport, or copy of the notice of default and the assurance of compliance, if applicable;
  • name and telephone number of representative, if any;
  • hearing to be conducted in English or French.

For further information, contact the Registry at 613-990-6906 or consult the Tribunal's Web site:

http://www.tatc.gc.ca

Late Application

If the date specified in the notice for submitting an application has expired, a written request for an extension of time is provided for, where the notice falls within the following sections:

  • 16(4)(a), (b), (c), (e), 20(1)(a), (b), (c), (e), (f), (g)(ii), 229(1)(b), or 231.1 of the Canada Shipping Act, 2001; and
  • 19.2(1), (2), (3), 33(1)(b), or 36(1) of the Marine Transportation Security Act.

The request should set out the reason why the application was not filed within the specified period.

Request for Stay of Order or Suspension or Cancellation

The filing of a request for a review in respect of a notice under section 20.1 of the Canada Shipping Act, 2001 (personnel) operates as a stay of the proposed suspension or cancellation until the matter is finally disposed of in accordance with section 20.1 or 20.5 of the Canada Shipping Act, 2001.

On application in writing by the person affected by a decision made under subsection 19.2(2) of the Marine Transportation Security Act, after giving any notice to the Minister that is, in the member's opinion, necessary and after considering any representations made by the parties, a member of the Tribunal assigned for the purpose may grant a stay of the decision until the review is completed, unless he or she is of the opinion that granting a stay would constitute a threat to marine transportation security.

Motions or Preliminary Requests

If at all possible, motions should be submitted in writing to the Tribunal in advance of the hearing to allow the Tribunal to request representations if necessary, so as to avoid unnecessary adjournments and possible costs.

Review Hearing

Scheduling

The Tribunal registrar will set a date, time and place for a review hearing as soon as possible upon receipt of a request for review.

Location

For convenience, hearings are conducted in various regions of Canada in either official language. The location will be determined on the balance of convenience.

Hearings shall be held in public. However, the Tribunal may hold a hearing or any part of a hearing in private as expressly provided for in subsection 15(4) of the Transportation Appeal Tribunal of Canada Act.

Request for Postponement of Hearing

In the interest of fairness and natural justice to all parties and in an effort to conduct its hearings expeditiously, the Tribunal expects all parties to respect scheduled hearing dates. The Tribunal will not accede to all requests for postponements, even where the parties themselves come to an agreed date for a new hearing.

Occasionally, the Tribunal will direct that a hearing be postponed when absolutely necessary. In the absence of good cause, and unless a party would be prejudiced if a postponement were not granted, the Tribunal will direct that hearings take place at the date and time referred to in the Notice previously served on the parties.

Awarding of Costs

The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if

  • it is seized of the matter for reasons that are frivolous or vexatious;
  • a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; or
  • a party that is granted an adjournment of the hearing requested the adjournment without adequate notice to the Tribunal.

Representation at Hearings

Parties may appear personally or be represented by another person. This person may be a lawyer, an association representative, a family member, a friend, etc., in which case the Tribunal registrar should be notified. The Tribunal is not responsible for providing the parties with a representative.

Disclosure

Applicants are entitled to know the case that they have to meet. Such knowledge is usually conveyed through the provision of a disclosure package by the Minister's representative in advance of the review hearing to allow sufficient time for case preparation.

Where disclosure of documents and names of witnesses are not forthcoming, an application for their production may be made to the Tribunal prior to the review hearing.

Procedure

The Minister's representative will present its case first. The burden of proving the case is on the Minister.

An applicant is not required, and shall not be compelled, to give any evidence or testimony in the matter, under the following sections:

  • 16(4)(e)(ii), 20(1)(e), 231.2(1), or 232(1)(b) of the Canada Shipping Act, 2001,
  • 19.4(1), 37(1), or 39(1)(b) of the Marine Transportation Security Act.

The applicant has the right to cross-examine the Minister's witnesses. After the Minister's case is completed, the applicant may present his or her case through calling witnesses and filing documents by way of defence. It follows that the Minister's representative has the corresponding right to cross-examine the applicant's witnesses.

In conclusion, both parties will have an opportunity to present arguments to the Tribunal member by way of a summation of the facts and the law as applicable.

Witnesses

Witnesses may be requested to appear before the Tribunal by either party, and for this purpose the registrar shall issue a summons upon request. For information on fees, allowances and proper service of a summons please refer to Rule 42 of the Federal Courts Rules.

If a witness does not appear at a review hearing, upon proof of proper service and provision of conduct money in accordance with the Federal Courts Rules, the Tribunal registrar may issue a warrant.

Evidence

All relevant evidence and exhibits should be presented at the review hearing. At a subsequent appeal hearing, only evidence which was not available at the time of the review hearing will be accepted and then only if the appeal panel finds it necessary for purposes of the appeal hearing.

Evidence is usually in the form of sworn oral testimony with both parties being provided the opportunity to cross-examine witnesses. Documents, photographs and other forms of evidence may also be used. Both parties may examine the original documents filed as exhibits. Each party should provide sufficient copies for the other party and the Tribunal member.

Where special equipment is required for the introduction of audio tapes or videos, arrangements should be made in advance with the Tribunal registrar.

Witnesses may testify in either official language. Should a witness wish to testify in a language other than the language of the hearing, arrangements must be made with the Tribunal registrar for the use of interpreters if necessary.

The review hearing is recorded to ensure that an adequate record or transcript is available for use at any subsequent appeal hearing.

Burden of Proof

In any proceeding before the Tribunal, the Minister of Transport must prove its case on the balance of probabilities.

Medicals

Where the review hearing is conducted for the purpose of determining medical fitness of the applicant, a doctor representing the Minister will usually be in attendance to give evidence.

In the event the applicant in a medical case is uncertain as to the basis for the Minister's medical assessment, a preliminary meeting can be arranged with Transport Canada. A request for such a meeting or conference call may be made to the Tribunal registrar.

Any additional medical evidence should be brought to the attention of the Minister for reassessment prior to a review hearing.

Review Determination

The Tribunal member shall provide a determination with reasons in writing following the review hearing.

Powers of the Tribunal

Canada Shipping Act, 2001

  • 16(4)(a)(b)(c)(e) – refusal to issue a Canadian maritime document (CMD).
    16(4)(e) – The Tribunal may confirm the Minister's decision or substitute its own determination.
    16(4)(a), (b), (c) – The Tribunal may confirm the Minister's decision or refer the matter back to the Minister for reconsideration.
  • 20(1) – CMD suspension, cancellation or refusal to renew.
    20(1)(e), (f)(ii) or (iii) – The Tribunal may confirm the Minister's decision or substitute its own determination.
    20(1)(a), (b), (c), (f)(i) – The Tribunal may confirm the Minister's decision or refer the matter back to the Minister for reconsideration.
  • 229(1)(a) – notice of violation.
    The Tribunal may confirm the Minister's decision or substitute its own determination.
  • 231.1 – notice of default (when assurance of compliance not complied with).
    The Tribunal may confirm the Minister's decision or determine that the person or vessel has complied with the assurance of compliance.

Marine Transportation Security Act

  • 19.2(1) – refusal to designate a person as a screening officer, suspension, cancellation or refusal to renew the designation of a person as a screening officer.
     The Tribunal may confirm the Minister's decision or refer the matter back to the Minister for reconsideration.
  • 19.2(2) – suspension or cancellation of the designation of a person as a screening officer.
    The Tribunal may confirm the Minister's decision or substitute its own determination.
  • 19.2(3) – suspension of the designation of a person or screening officer for an immediate threat to marine transportation security.
    The Tribunal may confirm the Minister's decision or refer the matter back to the Minister for reconsideration.
  • 33(1)(b) – notice of violation.
    The Tribunal may confirm the Minister's decision or substitute its own determination.
  • 36(1) – notice of default.
    The Tribunal may confirm the Minister's decision or determine that the person has complied with the assurance of compliance.

APPEAL HEARING

The determination rendered by a Tribunal member following a review hearing may be appealed by applying to the Tribunal, in writing, within 30 days after the determination was served on the parties personally or by registered mail. No extension to this time limit is provided for in the Act.

The request for appeal must arrive at the Tribunal registry on or before the 30th day after service of the determination.  

A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

The written request for appeal shall include a concise statement of the grounds on which the appeal is based. The Tribunal will subsequently give notice to the parties of the date, time and place of the hearing. The appeal is based on the record of proceedings of the review hearing. A copy of the transcript of the review proceedings will be provided to the parties by the Tribunal registrar.

New evidence may be accepted at the appeal hearing only if the appeal panel is satisfied that the evidence was not available for the review hearing and is necessary for purposes of the appeal.

The Tribunal member whose determination is appealed will not be a member of the appeal panel. Appeal panels usually consist of three members and are usually chaired by the Chairperson or Vice-Chairperson of the Tribunal.

Procedure at an Appeal Hearing

Oral Argument

The appeal panel shall allow oral argument. Following argument from both parties, there will be an opportunity for response. The appeal panel may request that the parties submit additional written arguments before rendering its decision.

Appeal Decision

The appeal panel shall render a written decision, with reasons, which will be served on the parties following its deliberations. The appeal decision is final and binding on the parties.

NOTE

If further information is required, the Transportation Appeal Tribunal of Canada Act, the Transportation Appeal Tribunal of Canada Rules, the Canada Shipping Act, 2001, and the Marine Transportation Security Act, should be consulted.

The registrar of the Tribunal may also be contacted directly at the address and telephone number indicated in this brochure.

Under no circumstances should a party attempt to discuss a file directly with a Tribunal member.